ITEMID: 001-113300
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KAKABADZE AND OTHERS v. GEORGIA
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - National law;Minor offences;Criminal offence);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 5. The first, second, third, fourth and fifth applicants were born in 1969, 1980, 1985, 1967 and 1984 respectively and live in Tbilisi. They are members of the Equality Institute, a Georgian non-governmental organisation established in February 2004 (“the NGO”). As part of its activities aimed at monitoring of the penal and law-enforcement authorities and promotion of the independence of the judiciary, the NGO held public press conferences and street demonstrations denouncing various serious human-rights abuses allegedly committed by the Ministry of the Interior and in Georgian prisons.
6. At around 2.20 p.m. on 29 June 2006 the applicants began a demonstration outside the Tbilisi Court of Appeal to express their support for Mr Shalva Ramishvili and Mr Davit Kokhreidze, owners of the 202 private television channel, who were on trial that day. The case of Ramishvili and Kokhreidze received considerable public attention at that time (for more details see Ramishvili and Kokhreidze v. Georgia, no. 1704/06, §§ 966, 27 January 2009).
7. As disclosed by the applicants’ written statements drafted on 4 and 5 July 2006 as a reminder of the exact circumstances surrounding the incident of 29 June 2006 (“the applicants’ written statements”), they entered the yard of the Tbilisi Court of Appeal through the main gates; the security guards noticed that one of the applicants was carrying a megaphone but did not object. The applicants stopped ten to twenty metres from the courthouse, and the first applicant, using the megaphone, began uttering the following slogans:
“We should not have political prisoners in Georgia! ... We urge you to obey justice and not the private interests of a number of high officials! ... Give me justice or give me death! ...”.
8. Furthermore, taking the view that the existing situation concerning human rights in Georgia was similar to the terror unleashed by the Soviet State in the late 1930s, the first applicant disdainfully referred to the Minister of the Interior, Mr V.M., as “Lavrentiy Beria’s bastard”. According to the written statements of the fourth and fifth applicants, they also called for the immediate release of Mr Ramishvili and Mr Kokhreidze, as unlawfully detained, and urged the Tbilisi Court of Appeal “not to become an accomplice of the criminal activities of the [Minister of the Interior]”.
9. According to the applicants, nothing was displayed or addressed to the court which could be construed as contempt: this could be confirmed by independent eyewitnesses to the incident, as well as by the images filmed by a cameraman from the 202 television channel (see a description of the video recording submitted by the applicants in paragraphs 23-27 below).
10. The first applicant’s speech had lasted some three minutes when several uniformed court bailiffs approached the applicants and, allegedly without prior warning or explanation, restrained them by force. The applicants were then taken into the court-house and locked in the bailiffs’ duty room.
11. According to the applicants’ written statements, no record of their arrest was drawn up on the spot. In any event, they were not shown or asked to sign any such document. On the contrary, the bailiffs reassured the applicants that they were not formally under arrest, that it was a simple misunderstanding and that they would soon be released.
12. The case file, however, contained five separate records, on the arrest of each applicant. Those records indicated the name of the drafting bailiff as well as the name, date of birth, address and full serial number of the identification card of each of the applicants. The documents further stated that the applicants had been arrested at around 2.20 p.m. on the basis of section 76(3) § 1 (f) of the Courts of Common Jurisdiction Act of 13 June 1997 (“the Courts Act”). In particular, the offenders had “breached public order”, which took the form of “contempt of court, insults, disregard of the bailiffs’ lawful orders to stop the wrongdoing, resistance to the bailiffs, attempts to influence the court by actions and verbal expressions, impeding the administration of justice, and so on”. All the records contained an entry, made in the drafting bailiff’s handwriting indicating that the applicants had “refused to sign this record or to receive a copy thereof”. The President of the Tbilisi Court of Appeal and the police were immediately informed of the offence and of the applicants’ arrest.
13. According to the applicants, these records of their arrest were drafted and added to the file concerning their case ex post factum.
14. Having been confined in the duty room of the court-house in complete unawareness of the reasons for their detention for some three hours, the applicants were transferred by the police to an Interior Ministry remand centre; the case file contains an excerpt from the relevant prison log showing that the fourth applicant entered the remand centre at 5.45 p.m.
15. The case file also contained explanatory memos from three court bailiffs who had participated in the applicants’ arrest. Those memos were half-page handwritten documents containing similar phrases, and were addressed to the Chief of the Bailiff Service of the Tbilisi Court of Appeals. Thus, according to those documents, the applicants, “standing near the public entrance of the court at around 2.20 p.m.”, had started “demanding the release of political prisoners” and “insulting the court by their expressions and actions”. One of the bailiffs added in his memo that the applicants’ actions had amounted to an encroachment upon the court’s independence and impartiality, whilst another submitted that the wrongdoers had been trying to influence the court. All three bailiffs stated that, prior to resorting to the measure of arrest, they had requested the applicants to stop the disturbance.
16. When they were transferred to the remand centre the applicants learnt that they had been detained on the basis of a decision of 29 June 2006 issued by the President of the Tbilisi Court of Appeal.
17. As disclosed by the decision of 29 June 2006, a one-page document, the President of the Tbilisi Court of Appeal, Mrs E.T., sitting privately and without holding an oral hearing, decided, on the basis of the bailiffs’ written submissions alone, to detain the applicants for thirty days under Article 208 § 6(1) of the Code of Criminal Procedure (“the CCP”). Thus, she took note of the bailiffs’ version of the incident of 29 June 2006 (see paragraph 15 above), namely that “[the applicants], who were inside the court building, in its central entrance, were breaching public order, obstructing the normal functioning of the court and seeking to influence the court with respect to proceedings in a particular case”. Despite the bailiffs’ request that they stop the disturbance, the applicants persisted with their conduct, which took the form of “verbal expressions and actions”. The President concluded that the applicants had “breached public order, shown manifest and gross contempt towards the court and endangered the administration of justice.”
18. The operative part of the decision of 29 June 2006 indicated that no appeal lay against it, that the applicants were to serve their sentence in remand centre no. 2 of the Ministry of the Interior (see paragraph 16 above) and that the Tbilisi police department was responsible for its execution.
19. On 21 July 2006 the applicants, referring to the suspension of the operation of Article 208 § 7 of the CCP by the Constitutional Court’s decision of 20 July 2006 (see the Constitutional Court’s judgment of 15 December 2006 at paragraphs 42-47 below) and arguing that their detention was an administrative penalty, requested the Supreme Court of Georgia to examine their complaint against the decision of 29 June 2006 under Article 279 of the Code on Administrative Offences (“the CAO”). They complained that the President of the Tbilisi Court of Appeal had committed a manifest miscarriage of justice by punishing them under Article 208 of the CCP, which provision clearly envisaged liability only for acts committed inside court buildings; a video recording of the applicants’ demonstration was submitted to show that it had taken place in the yard of the Tbilisi Court of Appeal. Thus, the applicants argued that the above-mentioned provision could not be considered a foreseeable and therefore legitimate basis for their conviction and detention. They further complained that the President of the Tbilisi Court of Appeal had violated the principles of a fair trial by delivering her decision entirely on the basis of the one-sided account provided by the bailiffs. The applicants also complained that the President had chosen the severest sanction of those available under Article 208 of the CCP.
20. On 26 July 2006 a Supreme Court judge, Mr Z.M., examined, in absentia, the applicants’ complaint of 21 July 2006 and dismissed it. The date of that examination was not communicated to the applicants in advance.
21. As disclosed by the decision of 26 July 2006, Judge Z.M. first noted that the suspension of Article 208 § 7 of the CCP did not automatically entitle the applicants to lodge an appeal against their detention. However, acknowledging that their detention was, by its nature, an administrative penalty, he ruled that the complaint of 21 July 2006 against the penalty could be examined under Article 279 of the CAO. Judge Z.M. went on to criticise the applicants for abusing their right to freedom of expression. He found it established from the case materials that the applicants had truly exhibited “manifest and gross contempt” towards the Tbilisi Court of Appeal by committing those acts “inside the court building, namely in its central entrance hall”. In any event, the aim of Article 208 § 6(1) of the CCP was, in the opinion of Judge Z.M., to protect public order not only inside court-houses but also outside them, in adjacent premises. The President of the Court of Appeal had no other choice but to sanction the applicants under Article 208 § 6(1) of the CCP, since what was at stake in the given situation was “not the judge’s own interests but the authority of the court and the proper administration of justice”. In reply to the complaint that the President of the Court of Appeal had made her decision entirely on the basis of one-sided submissions, Judge Z.M. stated that all the evidence – the records of the applicants’ arrest and the explanatory notes – had been drafted and submitted by the bailiffs for consideration by the President in accordance with a procedure envisaged by law. Judge Z.M. also stated that the thirty days’ detention had been an appropriate punishment, given the gravity of the acts committed.
22. The period of the applicants’ detention expired and they were released on 28 July 2006.
23. The recording showed excerpts from a television programme prepared by the 202 channel concerning the incident of 29 June 2006.
24. The first scene briefly showed several uniformed bailiffs restraining some of the applicants in the yard of the Tbilisi Court of Appeal. The first applicant, holding a megaphone, was hustled by the bailiffs towards the central entrance of the court-house. At the end of the scene, a man’s hand was placed over the lens of the camera.
25. In a later episode of the programme, the President of the Tbilisi Court of Appeal, Mrs E.T., was shown at a press conference concerning the applicants’ arrest. She stated:
“... five individuals, ... who have shown such direct and gross contempt towards the court and breached public order in the court... I will impose upon them, by my ruling, a form of detention for thirty days, and this will be another good example [of the fact] that respect towards courts and the maintenance of public order in court will be protected very strictly.”
(“...ხუთ მონაწილეს ამ აქციის,... რომლებმაც ასეთი პირდაპირი და უხეში უპატივცემულობა გამოხატეს სასამართლოს მიმართ და დაარღვიეს წესრიგი სასამართლოში ... მე გამოვიყენებ ჩემი განკარგულებით ოცდაათდღიანი დაპატიმრების ფორმას მათ მიმართ და ეს იქნება კიდევ ერთხელ კარგი მაგალითი იმისათვის, რომ პატივისცემის გამოხატვა სასამართლოს მიმართ და სასამართლოში წესრიგის დაცვა იქნება ძალიან მკაცრად დაცული.”)
26. The commentator of the programme noted that, prior to taking office as President of the Tbilisi Court of Appeal, Mrs E.T. had served as deputy to Mr V.M., the Minister of the Interior.
27. The remaining scenes in the broadcast showed interviews with the applicants’ advocates and supporters, some of whom stated that the applicants could not be held liable under Article 208 of the CCP, because their actions had taken place outside the court building.
28. Section 76(3) § 1 listed court bailiffs’ rights and responsibilities:
Section 76(3)
“1. Bailiffs shall
(a) ensure the safety of judges, parties to proceedings and witnesses;
(b) maintain order inside the court-house and hearing rooms;
(c) enforce the instructions of the President of the court and of the hearing judge concerning the maintenance of order;
(d) protect the court-house;
(e) ensure that hearing rooms are well prepared for the conduct of proceedings...;
(f) prevent offences from being committed inside the court-house, identify offenders and, if necessary, arrest them for the purpose of handing them over to the police, and draft a written record on such arrests...;
(g) exercise all other powers envisaged by law.”
29. Section 76(3) § 2 (a) gave bailiffs the right to resort to physical force, to “special equipment” and even to firearms in the exercise of their duties. Section 76(4) §§ 1 and 4 specified that the above-mentioned right could be exercised only if other less severe measures of constraint had been shown to be ineffective, and that bailiffs were obliged to issue a verbal warning to the persons concerned prior to resorting to force.
30. Article 208, on the basis of which the applicants were sanctioned by the decision of 29 June 2006, read as follows:
Article 208: “Liability for breach of public order in court”
“1. The President of the court shall ensure the maintenance of public order in the court, whilst the presiding judge shall be responsible for maintaining order during the hearing of cases...
2. A party to the proceedings, or any other person who has either breached public order during a hearing, or disregarded the presiding judge’s ruling or is in contempt of court, shall be fined and/or expelled from the courtroom. If the person expelled from the courtroom continues to breach such an order, the detention envisaged by this Article may be imposed upon him or her....
6. If manifest and gross contempt of court has been shown, the judge presiding over the hearing may issue a decision to detain the offender for up to thirty days. Such a decision shall be enforced immediately....”
6(1). In the event of a breach of public order or contempt committed inside the court building, the President of the court shall be entitled to apply the measures envisaged by this Article against the offender.
7. So far as the current Article is concerned, the decisions of the presiding judge and of the President of the court shall be delivered by on-the-spot deliberations and without an oral hearing, and no appeal shall lie against them.”
31. Subsequent to the Constitutional Court judgments of 15 December 2006 (see paragraphs 42-47 below), Article 208 of the CCP was significantly revised on 29 December 2006. Thus, the newly added paragraph 8 of that provision explicitly gave the court bailiffs the power to arrest a person who had either “breached public order in the court, was in contempt, or had obstructed the normal functioning of the court”. Bailiffs were obliged to draw up a record of such arrests and to bring the offenders before the President of the relevant court within twenty-four hours. The President had further twentyfour hours to issue a decision on whether to punish the offender. Paragraphs 10 and 11 of the amended Article 208 further stated that proceedings concerning the imposition of detention on an offender should always be adversarial, and conducted at an oral hearing at which the offender would be given an opportunity to defend him or herself. Should the President decide to detain the offender, the latter was entitled to lodge an appeal against that decision with the higher court within the next forty-eight hours.
32. The Code was adopted on 15 December 1984, when Georgia was part of the Soviet Union. Subsequently, numerous amendments were introduced. At the material time the relevant provisions of this Code read as follows:
Article 10: “The notion of an administrative offence”
“An administrative offence is a wrongful action or omission, committed either deliberately or by negligence, which contravenes the State or public order, the rules on Governance, property or citizens’ rights and freedoms, and which attracts administrative liability.
Administrative liability shall be imposed only in those cases where the offences envisaged under the present Code do not call for criminal liability in the light of the applicable legislation.”
33. Article 24 § 1 listed the forms of administrative penalties, of which administrative detention was the severest. Pursuant to Article 32 § 1, administrative detention could be imposed by a district (city) court, only as an exception, for certain types of administrative offences and for a period not exceeding thirty days.
34. Article 244 provided for measures of restraint in administrative proceedings, such as administrative arrest, search of the person or of objects, seizure of objects and of documents. Those measures, including arrest, could be used “in order to prevent an administrative offence..., to ensure a timely and proper examination of an administrative case, and to enforce any decision or ruling delivered in such a case”.
35. Article 246 contained an inclusive list of those authorities which were empowered to effectuate an administrative arrest. Court bailiffs were not among them.
36. Pursuant to Article 247, administrative arrest must not exceed three hours, unless specific statutes provided for longer terms “in cases of exceptional need”.
37. Articles 252, 263 and 264 contained procedural and substantive rules on the conduct of administrative proceedings, and were similar to those normally applicable to criminal proceedings in court. In particular, a person charged with an administrative offence to fundamental procedural rights such as the right to examine the case materials, to submit arguments and evidence and requests, to benefit from legal assistance during the examination of the case, to plead in his or her native language or to be assisted by an interpreter, and to appeal against procedural rulings. An administrative case was always to be examined in the presence of the charged person during an oral hearing; in absentia proceedings could take place only if that person had been duly summoned but had failed to appear.
38. Pursuant to Articles 271 and 279, no appeal lay, as a general rule, against a court decision convicting a person of an administrative offence and imposing a penalty. However, a final decision could be quashed by means of an extraordinary review. These provisions read as follows:
Article 271 § 2: “The right to lodge an appeal...”
“2. The city (district) court’s decision to impose an administrative penalty is final and not subject to an appeal in administrative proceedings, except for those cases where a law holds otherwise.”
Article 279: “Review of a case...”
“The administrative judge’s (court’s) decision concerning an administrative offence can be quashed or amended by the delivering judge (court) at a prosecutor’s request and, whether or not such a request has been lodged, by the President of the superior court...”
39. Article 413 of the Civil Code, explaining the notion of nonpecuniary damage, read as follows:
Article 413 § 1: “Non-pecuniary damage”
“1. Non-pecuniary damage, which amount should be reasonable and equitable, can be claimed exclusively in the situations explicitly envisaged by law.
2. An individual is entitled to request compensation for non-pecuniary damage caused in respect of damage to his or her health.”
40. Article 1005 of the Civil Code specified that State agencies were jointly liable for damage caused to a private party by intentional or negligent actions on the part of their officials, including such particular instances, the existence of which should first be established by a court, as unlawful conviction for a criminal or administrative offence or imposition of unlawful detention.
41. Subsequent to Article 423 § 1 (f) of the Code of Civil Procedure, a final judgment (decision) in a civil case could be reconsidered on the basis of newly discovered circumstances. Grounds for such reconsideration were, amongst others, factual circumstances or evidence which, had they been submitted to the domestic courts pending the original examination of the case, would have led to a different outcome.
42. The case originated in constitutional appeals by two advocates who had been detained under Article 208 § 6 of the CCP for breach of public order and contempt of court committed in courtrooms during the oral hearing of criminal cases.
43. In a decision of 20 July 2006, the Constitutional Court declared the constitutional appeals admissible for an examination on the merits, and suspended the operation of Article 208 § 7 of the CCP pending the proceedings.
44. In a judgment of 15 December 2006, the Constitutional Court abrogated Article 208 § 7 of the CCP as unconstitutional.
45. In its reasoning, the Constitutional Court, referring to the Court’s case-law, found that Article 6 § 1 of the Convention applied under its “criminal head” to the proceedings under Article 208 of the CCP. It further reasoned that those proceedings, which entitled the hearing judge to convict a person of a breach of public order/contempt of court by onthespot deliberations, without holding an oral hearing, negated the most fundamental safeguards of a fair trial, such as the right to equality of arms and adversarial proceedings, the right to have adequate time and facilities for the preparation of the defence, and so on.
46. The Constitutional Court stated that, by denying a person convicted under Article 208 of the CCP the right to lodge an appeal, paragraph 7 of that provision violated Article 42 § 1 of the Constitution and Article 2 of Protocol No. 7. In support of the latter finding, the Constitutional Court referred to the Court’s judgment in the case of Gurepka v. Ukraine (no. 61406/00, §§ 59-62, 6 September 2005).
47. In its judgment, the Constitutional Court also criticised the definition of the offence of contempt of court, as contained in paragraph 6 of Article 208 of the CCP, as vague. Notably:
“the offence prescribed by the disputed provision is not clearly formulated... and the interpretation may be ambiguous due to the lack of specificity and vagueness of the provision.... Where the legislation introduces a sanction such as detention, an offender must clearly understand the nature of the offence for which he is subjected to detention and, on the other hand, the judge applying the law should be able to do so correctly and adequately. ...
[I]n the Constitutional Court’s view, achieving and maintaining such important purposes as the protection of the authority of the courts and the smooth functioning of the justice system should not be carried out at the expense of the impairment of fundamental human rights.”
VIOLATED_ARTICLES: 11
5
6
P7
VIOLATED_PARAGRAPHS: 11-1
5-1
6-1
6-3
P7-2
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-86024
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF JUOZAITIENE AND BIKULCIUS v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 2;Pecuniary and non-pecuniary damage - award (global)
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Nona Tsotsoria
TEXT: 7. The first applicant, Mrs Regina Juozaitienė, is a Lithuanian national who was born in 1940 and lives in Kaunas. The second applicant, Mr Jonas Bikulčius, is a Lithuanian national who was born in 1935 and lives in Kaunas.
8. In the late evening of Friday 24 July 1998 the first applicant’s son, Dalius Juozaitis, and the second applicant’s son, Darius Bikulčius, were found dead in a car with single gunshot wounds to their backs. The deaths had occurred as the police tried to chase a Ford Escort (hereinafter “the car”) driven by a private individual, RM, the applicants’ sons being the passengers in the car. RM was not killed during the incident.
9. On 25 July 1998 criminal proceedings were instituted against RM for manslaughter in regard to the deaths of the applicants’ sons (Article 109 of the Criminal Code as then in force) and for resisting the orders of the police (Article 201). The applicants submitted their civil claims and were recognised as complainants in those proceedings.
10. On 15 March 1999 the Kaunas City District Court convicted RM of resisting the lawful orders of the police, an offence under Article 201-1 § 2 of the Criminal Code.
11. The following account of the incident can be reconstructed from the evidence admitted by the court in those proceedings. On 24 July 1998, after 10.30 p.m., the police received a telephone call from a private individual, informing them about a car driving in the streets of Kaunas in breach of various road-traffic regulations.
12. Officers AM and AR submitted that they had been patrolling in police car no. 548 when they had heard the information about the Ford Escort on the police radio and had unsuccessfully tried to stop it at around 11 p.m. Officers AM and AR had followed the car, but had soon lost sight of it. AR submitted to the court that, to his knowledge, two passengers and a driver had been in the car.
13. The information about the car being driven in a dangerous manner was transmitted through the control centre to other patrol officers on duty, and two more policemen, NB and EP, in police vehicle no. 424, were involved in the chase.
14. They were joined by three more policemen, RZ, SG and JM, patrolling in police vehicle no. 427. These officers submitted to the court that they had received information about the car via the police radio at around 11 p.m. and had followed the order to arrest the driver. They had therefore arrived as reinforcements and had joined car no. 424 in chasing the Ford Escort, which was fleeing at about 130 to 140 kilometres per hour.
15. The two police cars had their light and sound signals turned on, and tried to block the Ford Escort, while orders to stop were given over the loudspeakers. However, the car tried to escape, attempting to push the police vehicles off the road.
16. RZ fired two warning shots into the air, but the car only accelerated.
17. A moment later, the driver of the car lost control of the vehicle, hitting the fence of a building. The car was brought to a halt. Police vehicle no. 427 stopped several metres behind the car, and vehicle no. 424 moved to its left, trying to block its way. Suddenly, the car started moving backwards, damaging police vehicle no. 427. The policemen left their vehicles and ran towards the car, shouting and gesturing at the driver to surrender. The Ford Escort turned right, hitting officer RZ, and began to drive away. An expert medical examination later confirmed that RZ had suffered slight bodily injuries, including several scratches and bruising to his left calf.
18. When the car hit him, officer RZ fired a shot, apparently damaging its radiator, as he noticed that the cooling liquid was leaking.
19. In addition, immediately after RZ had been hit, NB, who had left police vehicle no. 424, fired one shot towards the car’s wheels. RZ then fired several more shots towards the car as it escaped. Officer SG likewise fired a number of shots towards the fleeing car. The other policemen did not use their guns.
20. Soon afterwards, the car was forced to stop in another area of Kaunas as a result of the leak of the cooling liquid from the radiator which had been damaged by RZ’s shot. Police officers AR and AM, who were driving vehicle no. 548, arrested RM while he was trying to flee. In the car, the policemen found the bodies of the applicants’ sons, whose deaths were confirmed on the arrival of a medical team at 11.56 p.m. RM was found to have been drunk and not in possession of any of the relevant documents permitting him to drive a car.
21. The court did not specify how many shots had been fired by SG, even though it noted that two of his shots had caused the deaths of the applicants’ sons. The court took account of SG’s statements that he had suspected that one of the passengers of the car had a weapon which he thought he had seen through the front window which was wound down, and that he had fired only after having heard a first shot (in fact fired by his colleague RZ), and having no idea where that shot had come from. The court also noted that no firearms or other weapons had been found in the car.
22. The court did not establish the exact time when the chase had started, concluding that the crime of which RM was convicted had been committed at around 11.30 p.m.
23. RM was acquitted of the offence of manslaughter, the court having noted that the deaths had been caused not by his acts, but by the “lawful actions of a third person who had used an official weapon.” The court noted in this connection:
“the internal institutional inquiry shows that all the policemen acted in a lawful and reasonable manner. The court has no grounds to doubt the conclusions of the internal investigation, as they have been confirmed by the circumstances established during the criminal investigation. Article 42 of the Police Act authorised the policemen to use firearms against the vehicle and the offender. The acts committed by the defendant, including his resisting the police officers, constituted grounds for using firearms. The use of firearms was lawful and reasonable...”
24. The applicants’ civil claims for damages against the police were not examined. The court nonetheless noted that it was open to the applicants to bring their claims by way of a separate set of civil proceedings.
25. The court sentenced RM to six years’ imprisonment for resisting the lawful orders of the police, and ordered the confiscation of part of his property amounting to 200 Lithuanian litai (LTL – approximately 58 euros (EUR)).
26. On 18 May 1999 the Kaunas Regional Court upheld the judgment. It was also decided to institute criminal proceedings against SG for the manslaughter of the applicants’ sons (Article 109 of the Criminal Code as then in force) and for exceeding his authority (Article 287). In this connection, the court noted:
“in the situation under consideration, there were no circumstances permitting the use of a firearm against a person (Article 42(2) of the Police Act). The police officers had the right to use firearms against the vehicle only (Article 42(5) of that Act). ...
Nobody disputes that the police officer [SG] had the right to use a firearm against the car (Article 42(5) of the Police Act); however, despite the fact that two innocent people were shot, it has not been examined whether he used that right properly. In taking this decision, the court is seeking to establish the truth. It does not intend to weaken the determination of police officers when carrying out their duties. Nevertheless, the duty of professional integrity, self-control and endurance cannot be underestimated; when using firearms, police officers must seek to avoid severe consequences (Article 41(3) of the Police Act). ... The investigation should aim to examine [the elements pointed out by the applicants], inter alia, the allegedly poor visibility at the scene of the incident, and the fact that [SG] hit the interior of the car and not its tyres, which he had allegedly fired at. According to [the applicants], this fact alone indicated that [SG] had fired the shots while being guided by his anger and ill-temper. ...”
27. On 12 October 1999 the Supreme Court upheld the judgment of 18 May 1999.
28. The criminal proceedings brought against SG by virtue of the decision of the Kaunas Regional Court on 18 May 1999 were discontinued by the prosecutor on 27 December 1999. The prosecution found no indication of any crime in the actions of officer SG. It was noted, in particular, that SG had used his gun in accordance with instructions, had targeted the wheels of the car and had had recourse to his firearm only after the driver had committed a crime by hitting one of his colleagues. The driver, RM, had apparently been predisposed to escape by any means, threatening the safety of other people. The deaths of the two victims had been the result not only of the shooting as such, but also of the unpredictable actions of the driver.
29. The prosecution based their conclusions, inter alia, on the following sources of evidence: the submissions of the policemen; the records of the on-site examinations of the scene, conducted on 27 July 1998, 19 August 1998 and 21 September 1999; a letter from the meteorological service on weather conditions at the time of the events; illumination tests at the scene of the shooting; the results of the ballistic examination of 30 November 1999, and records of the on-site reconstruction of the event, including diagrams of the position and movement of the cars and policemen, drawn in accordance with the submissions of the officers concerned.
30. On 19 April 2000 the Kaunas City District Court quashed the prosecutor’s decision. The court noted, inter alia, that the prosecutors had not made a detailed assessment of “the way” in which SG had used the gun with reference to the relevant domestic legal provisions.
31. During the investigation, none of the policemen made clear submissions as to the moment when SG had begun shooting.
32. On 9 June 2000 the prosecutor again discontinued the investigation, noting that no evidence of any crime had been found in the actions of SG. The prosecution referred to the evidence mentioned in the earlier decision of 27 December 1999 as well as the additional submissions of the policemen.
33. The following order and impact of the use of firearms had been established. Two warning shots had been fired into the air by RZ during the chase; one shot by RZ had damaged the radiator after the car had hit the fence, and soon afterwards one shot fired by NB had hit the wheel of the car. Finally, seven shots had been fired by RZ towards the fleeing car and four by SG. The prosecutor found that two of SG’s shots had hit the applicants’ sons, causing their deaths. Some of the other shots had marked the car’s tyres, wheel rims, seats, front panel and windows, and the rear window was broken. The car body work also bore traces of bullets.
34. Referring to the submissions of SG, taken at the scene of the shooting, the prosecution concluded that SG had directed the shots at the wheels of the moving car from a distance of 11.4 metres (the first shot) up to 27.5 metres (the fourth shot). He had fired the shots after the driver had hit his colleague RZ, that is, after he had committed an offence punishable by the criminal law (Article 201-1 § 2 of the old Criminal Code), of which he had already been convicted. Hence, it could not be alleged that the firearms had been used only because the car had been driven in defiance of traffic regulations. The prosecution took account of RZ’s statement that he had been hit by the car and thrown onto the bonnet and then the ground. For this reason the policemen could have reasonably considered it necessary to avert the danger which the car represented for other people, given in particular that RM had been drunk and had been seeking by dangerous means to escape arrest and punishment.
35. It was stressed that SG had used the firearm not against the people in the car, but against the vehicle, and he had only tried to hit the tyres. There had been no significant obstacles to visibility, such as inadequate lighting or dust. However, the fact that the car had moved in sudden and swerving directions was emphasised as a cause of the deaths, rather than any breach of regulations governing the use of firearms. In view of these circumstances, and given that SG had had a valid reason to use the gun as a last resort in accordance with Article 42 of the Police Act, the prosecutor concluded that there was no evidence that he had committed a crime.
36. Finally, the prosecution stated that, during the proceedings against RM, none of the three levels of jurisdiction had questioned the lawfulness of the use of the firearm by SG.
37. The applicants appealed against the decision to discontinue the investigation. They alleged that SG had sought revenge against the driver of the car and had fired recklessly at the moving vehicle, disregarding the fact that he might hit the passengers. The applicants argued that SG had known about the presence of other people in the car and must have understood that innocent passengers might be killed; however, he had allowed this to happen, as he had fired at the vehicle.
38. As to the quality of the investigation, the applicants stressed that the prosecution had failed to provide any explanation for the fact that one of the bullets fired by SG had hit the side window of the car, whereas it had been concluded that SG had first fired at the vehicle only after it had moved 11.4 metres away.
39. On 17 October 2000 the Kaunas City District Court upheld the decision of the prosecution. The court mentioned that SG had fired at the moving car during a very a short period of time, within a perimeter of about 20 metres. The court held that SG had used the firearm lawfully, the shots being directed at the wheels of the car, not at the people sitting in it. It was found that the car had been moving in swerving directions, two shots having, as a result, hit the passengers. SG had thus not been able to foresee the consequences of his actions. At the same time the court noted that, even though the incident had taken place at about midnight, the street and the car had been well lit.
40. The court emphasised that the ground for using firearms was the fact that RM had been driving while drunk, and had not only violated traffic regulations, but had tried to escape in a dangerous manner. His behaviour had put other people at risk. The policemen had tried all alternative means to stop RM, and firing at the tyres of the fleeing car had been used as a measure of last resort.
41. The court also stated that there had been no causal link between the actions of SG and the impugned consequences, namely the death of the applicants’ sons. It held that manslaughter had not occurred as a result of the actions of SG; he had made an appropriate assessment of the circumstances and had not exceeded the requirements of the relevant legal provisions in using his gun. The death of the applicants’ sons had been an accident for which SG could not be held criminally responsible.
42. Article 109 of the Criminal Code, as then in force, punished the act of manslaughter (nužudymas dėl neatsargumo). Article 201-1 § 2 and Article 287 of the Code punished, respectively, resisting the lawful orders of the police and acting in excess of official authority (tarnybos pareigų viršijimas).
43. Article 228 of the new Criminal Code, which entered into force on 1 May 2003, punishes acts of abuse of office (piktnaudžiavimas).
44. Article 34(4) of the Police Act, as applicable at the material time (in force from 9 June 1998 to 9 October 2000), entitled a police officer to use firearms. Article 39 of the Act listed the rights of police officers in ensuring road safety:
“In order to ensure traffic safety, a police officer shall have the right:
(1) to stop a motor vehicle and check the documents of the driver ...;
(2) to stop a person from driving in the event of a suspicion that he or she is under the influence of alcohol, drugs or medication or is not entitled to drive. ...”
45. Article 41 of the Act further stated:
“... [2.] The police shall use firearms ... in order to discontinue actions that endanger the public or to apprehend the perpetrator of such actions and to take him or her to the police station. Firearms shall be used only for the purposes provided for by law.
[3.] When using firearms ..., an officer shall take into account the nature of the offence, the personal characteristics of the offender and other particular circumstances of the situation. ... [T]he police officers shall try to avoid detrimental consequences.
[4.] Before using firearms ..., and if the circumstances allow, the person concerned shall be given a warning ... . Firearms shall be used only after all alternative means have been exhausted or where there is no time to use them.”
46. Article 42 of the Act laid down conditions for the use of firearms:
“[1.] A police officer shall have the right to use firearms against persons and vehicles ... .
[2.] He or she shall have the right to use firearms in the following circumstances:
(1) where the life or limb of a police officer is in danger ...;
(2) to protect other persons from attack ...;
(3) to repel an armed attack;
(4) when in pursuit of a person suspected of a crime, if that person uses or attempts to use a firearm or other objects dangerous to human life or limb, in order to escape arrest; ...
(5) to apprehend a person caught in the process of committing a serious offence, if that person cannot be apprehended in any other way;
(6) to apprehend a detainee or a convict who is trying to escape or has escaped from a prison or detention facility or a transfer vehicle;
(7) during a mass escape from a prison or during prison riots;
(8) in the event of an attack against a specially protected object ... .
[3.] The prosecutor shall be immediately informed about the fact and the consequences of the use of firearms against a person. ...
[5.] A police officer shall have the right to use firearms against a vehicle if its driver refuses to stop following an obvious and express demand which is made in advance by a police officer, and where traffic safety and other people are endangered by the person’s driving. ...”
VIOLATED_ARTICLES: 2


ITEMID: 001-59533
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF TRUHLI v. CROATIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: Georg Ress
TEXT: 8. The applicant served in the Yugoslav People’s Army (hereinafter the “YPA”) and retired from service in 1987. His military pension was assessed according to his rank and years of service and was paid from the Federal Pension Fund in Belgrade. The payments terminated in December 1991, following the dissolution of the Socialist Federal Republic of Yugoslavia.
9. Three separate proceedings subsequently dealt with the decrease of the applicant’s military pension.
10. Firstly, on 12 December 1992, the Croatian Social Security Fund, Pula Office, assessed the applicant’s pension, as from 1 October 1992, to 63,22% of the amount he had received until 31 December 1991. The applicant appealed against that decision and, after his appeal was dismissed, instituted administrative proceedings with the Administrative Court (Upravni sud Republike Hrvatske) which dismissed the applicant’s claim on 19 May 1993.
11. On 7 February 1994 the applicant lodged a constitutional complaint claiming that the decisions of the administrative bodies and the Administrative Court to decrease the amount of his pension violated his constitutional rights. He alleged specifically that the decision to decrease his military pension was not based on legal grounds.
12. On 7 April 1999 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint concerning the lower bodies’ decisions to reduce his pension. It stated that these decisions were based on the laws that prescribed that the pensions of the former YPA officers would be assessed in the amount of 63,22 % of what they had received in December 1991.
13. Secondly, on 29 April 1993, the applicant lodged a constitutional claim challenging the constitutionality of the Decree regulating the pension rights of the former YPA officers whose service in the YPA terminated prior to 31 December 1991 (Uredba o ostvarivanju prava iz mirovniskog i invalidskog osiguranja osoba kojima je prestalo svojstvo aktivne vojne osobe u bivšoj JNA do 31. prosinca 1991 - Official Gazette 46/92 and 71/92). He alleged specifically that his constitutional rights were violated insofar as his pension had been drastically decreased.
14. On 18 October 1993 the Croatian Parliament passed the Act on regulation of pensions of the former YPA officers that, inter alia, reiterated that the amount of the former YPA officers’ pensions was to be 63,22 % of what they had received in December 1991 (Zakon o ostvarivanju prava iz mirovinskog i invalidskog osiguranja pripadnika bivše JNA - Official Gazette 96/93).
15. On 4 February 1998 the Constitutional Court terminated the proceedings concerning the applicant’s constitutional claim of 29 April 1993 due to the fact that the above legislation had entered into force.
16. Thirdly, on 10 November 1993 the applicant lodged a constitutional complaint against the Act of 18 October 1993, challenging the constitutionality of that Act as a whole.
17. As of 1 January 1999 new legislation entered into force regulating the pension rights of all Croatian citizens (Zakon o mirovinskom osiguranju – Official Gazette 102/98).
18. Consequently, on 20 January 1999 the Constitutional Court terminated the proceedings regarding the applicant’s constitutional claim of 10 November 1993.
19. The relevant provisions of the 1991 Constitutional Court Act read as follows:
“Every person has a right to institute proceedings challenging the constitutionality of the laws...”
“Each person whose rights have been violated by a decision based on the legislation declared unconstitutional or unlawful may ask the body that took the decision to vary it...”
“The Constitutional Court shall terminate proceedings concerning the constitutionality of legislation that has been repealed or brought into line with the Constitution and statute law while those proceedings are pending before the Constitutional Court.”
“Every person, who considers that any of his constitutional right has been violated by a decision of judicial or administrative body or any other body invested with public authority, may lodge a constitutional complaint with the Constitutional Court.”
“By a decision adopting a constitutional complaint the Constitutional Court quashes the contested decision and remits a case for re-trial.”
20. The relevant provisions of the 1999 Constitutional Court Act read as follows:
“The Constitutional Court shall decide upon the constitutionality of the contested legislation even in cases where that legislation is repealed or amended while the proceedings are pending before the Constitutional Court.”
“When the Constitutional Court declares the legislation contemplated in § 1 unconstitutional or unlawful, each person whose rights have been violated by a decision based on that legislation may ask the body that took the decision to vary it.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5933
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: O'ROURKE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1941 and living in London. He is represented before the Court by Mr A. J. Mullem of Moss Beachley and Mullem, a firm of solicitors practising in London. The respondent Government are represented by their Agent, Mr H. Llewellyn of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was released from prison in or around February 1991, having served a two year sentence for attempted rape and indecent assault. On 22 February 1991 the applicant applied to Camden London Borough Council (“CLBC”) for accommodation. In response CLBC told him that he did not fall within any of the priority categories as set out in Part III of the Housing Act 1985 (“the 1985 Act”). The applicant made a further approach to CLBC on 28 March 1991, whereupon CLBC agreed to make initial inquiries pursuant to section 62 of the 1985 Act (see below). Since the applicant appeared to have a priority need owing to health problems, CLBC provided him with temporary accommodation in accordance with section 63 of the 1985 Act (see below), in a hotel room. On 24 April 1991, before CLBC had completed its inquiries under section 62, the applicant was evicted from the hotel following complaints about his behaviour there, including allegations of nuisance and assault on female residents. He was advised by CLBC to go to a night shelter pending a decision on permanent housing, but he failed to do so.
The applicant informed CLBC that he wanted permanent accommodation and was thus unwilling to accept anything on a temporary basis. A search for suitable accommodation was conducted by five different District Rehousing Offices. The applicant was offered a tenancy on 7 August 1991, but he refused it as he believed that the majority of the surrounding tenants were aware of his past history and claimed that he had been threatened. In February 1992 all five District Rehousing Offices indicated that they were finding it difficult to find permanent accommodation for the applicant due to his specific housing requirements designed to minimize his exposure to women. In or around March 1992 the applicant refused an offer of permanent bed-sit accommodation because it shared a bathroom and toilet. In June 1992 the applicant decided to accept an offer of temporary accommodation.
The applicant had remained on the streets, to the detriment of his health, since his eviction from the hotel. In particular, the asthmatic condition and chest infection of which the applicant had been suffering when he first contacted CLBC had deteriorated following his eviction, leading Dr A.M. Rehman to advise CLBC in February 1992 that the applicant should be rehoused urgently.
On 13 October 1992 the applicant refused permanent bed-sit accommodation because he said he wanted a one-bedroom flat. On 2 February 1994 he was offered a secure tenancy, which he accepted subject to repairs and decorations being carried out. The applicant’s tenancy commenced on 28 February 1994.
Some time in 1993 the applicant commenced an action for breach of statutory duty and damages against CLBC. On 30 October 1995 his claim was struck out by the Central London County Court as disclosing no cause of action. The applicant appealed to the Court of Appeal which decided, on 13 February 1996, that the aspect of the claim concerning CLBC’s failure to provide alternative accommodation following the applicant’s eviction should not have been struck out.
CLBC then appealed to the House of Lords which, on 12 June 1997, allowed the appeal. In the course of delivering the leading judgment in the House of Lords, Lord Hoffman stated that:
“The question is whether s 63(1) creates a duty to Mr O’Rourke which is actionable in tort. There is no doubt that, like several other provisions in Pt III, it creates a duty which is enforceable by proceedings for judicial review. But whether it gives rise to a cause of action sounding in damages depends upon whether the Act shows a legislative intention to create such a remedy.”
Having considered the relevant domestic legal principles and authorities, Lord Hoffman concluded that:
“Both in principle and on the authority of the actual decision of this House in Cocks v Thanet DC [1982] 3 All ER 1135, (...) I would therefore hold that the breach of statutory duty of which the plaintiff complains gives rise to no cause of action in private law and I would allow the appeal and restore the order of Judge Tibber striking out the action.”
The Housing Act 1985 (“the 1985 Act”) provides in Part III, section 62(1) that, in respect of a person applying to a local authority, if the local authority “have reason to believe that he may be homeless ... they shall make such inquiries as are necessary to satisfy themselves as to whether he is homeless ...”.
Under section 63(1) of the 1985 Act, if the authority “have reason to believe that an applicant may be homeless and has a priority need, they shall secure that accommodation is made available for his occupation pending a decision as a result of their inquiries under section 62”.
Both of these sections appear at Part III of the 1985 Act.
Administrative decisions by public authorities are generally challengeable under English law by way of judicial review proceedings under Order 53 of the Rules of the Supreme Court. Such proceedings must generally be brought within three months of the offending decision.
English law recognizes a dichotomy between public authorities’ public and private law functions. In the leading case of O’Reilly v. Mackman [1983] 2 A.C. 237, Lord Diplock stated:
“[I]t would ... as a general rule be contrary to public policy, and as such be an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities.”


ITEMID: 001-97635
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KOIVUSAARI AND OTHERS v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants, Mr Rauno Koivusaari, and Mr Mikael Marttinen, are Finnish nationals who were born in 1964 and 1968 and live in Koria and Espoo respectively. They were represented before the Court by Mr Jan Aminoff, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In an autumn storm in 1771, the Vrouw Maria, a Dutch merchant ship, was wrecked on the seabed in Finnish waters in the south-western archipelago in the vicinity of Borstö and Jurmo islands. The ship, which was on its way from Amsterdam to St Petersburg, is believed to have been carrying valuable works of art destined for Empress Catherine the Great of Russia.
On 28 June 1999, the first applicant, an experienced diver, located the vessel at a depth of 41 metres and subsequently informed the Finnish Maritime Museum (merimuseo, sjöhistoriska museet) of the find as required under the Antiquities Act (muinaismuistolaki, lagen om fornminnen; Act no. 295/1963). The first applicant had a total of 16 divers in his team.
On 9 July 1999 artefacts were brought up from the wreck by the applicants. According to the applicants, they were brought up at the request, alternatively with the permission, of Ms F., a representative of the National Board of Antiquities (museovirasto, museiverket; a subordinate body of the Ministry of Education; opetusministeriö, undervisningsministeriet).
Under the Antiquities Act, as in force at the time, a wreck more than 100 years old could not be removed or touched without permission from the Maritime Museum and/or the National Board of Antiquities. The same was true of items found in, or originating from, such a wreck. Subsequently the Museum and/or the Board consistently refused the applicants permission to deal with the wreck and the associated items.
In or around December 1999 the applicants informed the local police of the find and, when no owner appeared, a claim to title was lodged with the police in or around May 2000, in accordance with the procedure laid down in the Lost Property Act (löytötavaralaki, hittegodslagen; Act no. 778/1988).
On 1 December 2002 an amendment to section 20 of the Antiquities Act, vesting the ownership of a wreck in the State, entered into force (see below).
On 22 December 1999 the applicants instituted proceedings in the Maritime Court (merioikeus, sjörätten; a department of the District Court (käräjäoikeus, tingsrätten) composed of three professional judges and two sea captains), requesting the court to confirm that on 9 July 1999 by bringing up three chalk pipes, a clay bottle, a seal and a zinc ingot they had engaged in salvage operations for which they were entitled to remuneration under Chapter 16 of the Maritime Code (merilaki, sjölagen; Act no. 674/1994) and that they had a right, either under a contract or as first salvors, to bring up all objects for which they were entitled to salvage remuneration. The court was also asked to confirm that the applicants were to be considered owners of the wreck and that they had the right also on that ground to engage in salvage operations. Were the court to consider the State owner of the wreck, the applicants requested it to confirm that they, either under a contract or as first salvor, had the right to engage in salvage of the wreck and to receive remuneration therefor. Lastly, they claimed legal costs.
Under Chapter 16, article 1, of the Maritime Code anyone who salvages or assists in salvaging a foundered vessel, or goods in such a vessel, is entitled to salvage remuneration. As the applicants had been the first at the scene, they contended that they had been entitled to engage in salvage. Under the Maritime Code a right to salvage remuneration arose even if the wreck was no longer in danger. In any event, the presumably valuable cargo could be considered in danger as divers had access to it through the wreck's open cargo hold. This was shown by the fact that on 19 July 1999 the Maritime Museum had asked the Finnish Naval Forces and the Frontier Guard to monitor the wreck.
The applicants conceded that ownership as regards objects found in the wreck fell to the State under section 20 of the Antiquities Act as in force at the time when the case was heard before the courts. However, they considered themselves owners of the wreck under former section 20 as in force at the time of the find. The old provision did not state anything about the ownership of a vessel more than 100 years old but the decision was to be made in accordance with the general principles. The subsequent entry into force on 1 December 2002 of the amendment could not remove the applicants' right of ownership, although the Act was given retroactive effect if the wreck did not have an owner. As the applicants had become owners in July 1999 as a result of appropriation, the subsequent amendment could not be given retroactive effect in the present case.
The State contested the action, arguing that objects had been brought up under section 10 of the Antiquities Act with the permission of the Maritime Museum for research purposes. The Vrouw Maria was a relic of antiquity within the meaning of the Antiquities Act. The exclusive right to make decisions concerning the wreck and objects therein, their examination and possible removal was vested in the State. Any decision to bring up objects did not mean engaging in salvage but rather the conduct of research under the Antiquities Act. The remuneration of such work was to be decided pursuant to a contract, or in the absence of such, pursuant to the Code of Commerce (kauppakaari, handelsbalken).
The State argued that there was no salvage contract. In any event, such a contract was not binding on the State since Ms F., a researcher, had not been competent to enter into such a contract, a fact of which the applicants had been aware. If the court were to find that a salvage contract had been established, it must be considered to have concerned only the bringing up of objects in the summer of 1999. The State also argued that, as there had been no dangerous situation requiring immediate salvage action, the applicants could not be considered first salvors. Accordingly, they had no right to salvage remuneration.
The State argued that the National Board of Antiquities had the right to forbid possible further action under Chapter 16, article 1, of the Maritime Code. It was likewise free to choose its own salvor for the remaining work.
In the State's view, the amendment of the Antiquities Act had only been of a clarifying nature. The intention of the Act from the outset had been that the State would receive ownership of a wreck based on protection. This was evidenced from the duty to inform the Maritime Museum of a find. Under the Antiquities Act a third party did not have the right to interfere, touch or otherwise repossess an immovable relic of antiquity. Therefore, the applicants could not have gained ownership of the wreck on the basis of appropriation. As the Vrouw Maria had been abandoned by its original owner, she had immediately become protected following her discovery in July 1999 without any separate decision or action.
By an interim judgment of 19 September 2002 the Maritime Court (composed of one single professional judge) held that the provisions of the Maritime Code on salvage were applicable to the operations aimed at salvaging the wreck and the property originating from it.
During the course of the present proceedings, and as noted above, Parliament amended section 20 of the Antiquities Act so as to vest ownership of vessels wrecked more than 100 years previously in the State. According to the applicants, this enabled the State to assert as owner that it objected to salvage, which it had not been able to do before, thus depriving the applicants of their position as first salvors.
In a final judgment of 16 June 2004 the Maritime Court (in its full composition), having held an oral hearing and heard 11 witnesses, decided that the Antiquities Act, as amended, was to be considered lex specialis. As the wreck and objects therein were protected, any interference required the permission of the National Board of Antiquities.
Under section 20(3) of the Antiquities Act the State was the owner of any object found in or obviously originating from the wreck. Under the amended section 20(2) also the wreck belonged to the State. As the Vrouw Maria had been shipwrecked in 1771, it was clear that she had been abandoned by her owner. Because she was over 230 years old she had become protected by law before 1 December 2002 when the amendment to the Antiquities Act took effect. Appropriation by the applicants, which presupposed, inter alia, the gain of control over an object, had not been possible due to the protection by law.
According to the court, the Maritime Code applied only to ships in navigation and in danger. In respect of a foundered ship which fell within the purview of the Antiquities Act (an historic vessel without an apparent owner), the Act worked to exclude the provisions on salvage; hence, the applicants were not in the position of first salvors. The court further held that, even if the applicants were considered as first salvors, the State had in any case the right to forbid any salvage operation and the salvage remuneration could be refused on that ground.
The judgment was not unanimous as one of the professional judges expressed the view that the applicants had the right of first salvors and a right to remuneration for the objects brought up by them. The claim for remuneration for further actions was premature as it was not known whether anything else would be brought up. The judge did not find the existence of a salvage contract established.
The applicants appealed, repeating their claims as presented before the District Court. In their counter appeal, the State requested the court to find that the Antiquities Act superseded the provisions on salvage in the Maritime Code as lex specialis and lex posterior and because of the hierarchical order of these laws and that the action should be dismissed on the ground that the Maritime Court had lacked jurisdiction to examine the case.
On 23 March 2005 the Court of Appeal (hovioikeus, hovrätten), having held an oral hearing in which it received testimony from twelve witnesses, rejected the appeals save that it discharged the applicants from their obligation to pay the State's legal costs.
The court found that both the Antiquities Act and the Maritime Code were lex specialis. There were no grounds for considering that the former superseded the latter. Neither did the court uphold the Government's contention that there were two different groups of flotsam, one to be examined under the Antiquities Act and another under the Maritime Code. Nor did it uphold the Government's argument that Chapter 16, article 1, of the Maritime Code applied only to wrecks in danger. Finding that an unendangered wreck could also be the object of salvage, it confirmed that the Vrouw Maria was shipwrecked within the meaning of Chapter 16 of the Maritime Code. The court also noted that the Antiquities Act did not include a provision forbidding the application of the Maritime Code's provisions on salvage to flotsam within the meaning of the Antiquities Act. In sum, both Acts were applicable to the present case.
As to the applicants' claim for ownership based on appropriation, the court noted that the wreck was placed under protection under section 1 of the Antiquities Act, which meant that all types of interference were forbidden without the permission of the National Board of Antiquities. The provisions on protection worked to prevent the finder of a wreck from gaining de facto dominion over it. Therefore appropriation of an abandoned object such as the one in issue was not possible and the applicant's claim for ownership could not be upheld. Under section 20(2) the State was the owner of the wreck.
As to the applicants' contention that the parties had entered into a salvage contract, the court held that the existence of such an agreement had not been evidenced. It noted the following. On the basis of the witness statements of Ms M. and Ms P. the former had, in any event, not been competent to enter into such an agreement with binding effect on the State. On the basis of Ms P.'s testimony it was equally clear that the personnel of the Maritime Museum had not been competent to agree on remuneration. Ms M. also gave evidence to the effect that she had plainly given permission to bring up objects for research purposes in order to identify the wreck and without having the intention of engaging in a salvage contract. While noting that the Maritime Museum had paid compensation to one of the applicants for operations carried out during a diving expedition, the compensation paid could not be equated to salvage remuneration. The court found that the sums already paid did not support the conclusion that a salvage contract had been established between the parties. As to a document relied on in evidence and entitled “the wreck of the Vrouw Maria”, its drafter, Ms P., explained that she had made an estimate of the costs for examining the wreck. When drawing up the document there had been no discussion about bringing up the wreck. The court also noted a written statement by Ms M. according to which there had been discussion within the National Board of Antiquities about the possible bringing up of objects. However, none of these documents showed that the representatives of the Maritime Museum had intended to engage in a salvage agreement with the applicants.
As to whether the State as owner had the right under Chapter 16, article 1(2), of the Maritime Code to forbid the applicants from engaging in salvage, the court noted that the first salvor may engage in salvage contrary to the owner's will when there is a concrete danger which necessarily requires engaging in salvage. In the present case, there was no such danger. The wreck and its cargo had lain at the bottom of the sea for over 230 years. The wreck and at least part of the cargo had been found in good condition and it could be assumed that they would continue to remain so for decades. The wreck was situated at a depth of 42 metres and at a difficult location navigationally. It caused no danger to navigation. It was possible that divers might enter the wreck and remove items. On the other hand, the wreck was under radar and camera surveillance by the authorities and therefore it was not probable that any stay of a long duration at the location where the ship went down would be possible without the intervention of the authorities. The ship went down in territorial waters and therefore it was unlikely that the wreck could be damaged by anchoring. Neither did archaeological concern require the immediate salvage of the wreck or its cargo. On these grounds the Court of Appeal considered that the State had the right to prohibit salvage.
The court did not comment on the amendment of section 20 of the Antiquities Act.
The applicants appealed, repeating their claims as presented before the District Court and the Court of Appeal. However, in their request for leave to appeal, the applicants expressly abandoned their ownership claim. They did so because they considered that the intervening amendment to the Antiquities Act had made it impossible for them to succeed in that claim as the Supreme Court (korkein oikeus, högsta domstolen) was bound to give effect to the legislation and therefore to reject their ownership claim.
On 24 November 2005 the Supreme Court refused leave to appeal.
Article 15 of the Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides that the property of everyone is protected. Provisions on the expropriation of property, for public needs and in consideration of full compensation, are laid down by an Act.
According to Article 106:
"[i]f, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court of law shall give primacy to the provision in the Constitution."
The Supreme Court found, inter alia, in the case KKO 2004:26 concerning property rights that a provision of the Act on the Protection of Buildings (rakennussuojelulaki, byggnadsskyddslagen) was in conflict with the Constitution and that primacy was to be given to the latter.
Section 1 of the Antiquities Act (Act no. 295/1963) provides that immovable relics of antiquity are protected as traces of the previous settlement and history of Finland. Without permission given under this Act such relics are not to be the object of excavation, covering, modification, damage, removal or other unauthorised interference.
Section 10 provides that the National Board of Antiquities has the right, inter alia, to examine and restore an immovable relic of antiquity, or it can entrust this task to someone else.
Sections 16 and 17 provide that the find of certain specified movable objects, which can be presumed to be at least one hundred years old, must be reported to the National Board of Antiquities, which is entitled to redeem them. A movable antiquity found on an immovable one belongs to the State without redemption provided that it is connected with the immovable antiquity. The National Board of Antiquity may however decide to give a finder's reward if it considers this justified.
At the time when the Vrouw Maria was found, section 20 of the Antiquities Act (Act no.295/1963) provided:
“A wreck of a ship or other craft, or part of such a wreck, discovered in the sea or inland waters, which can be presumed to be more than 100 years old, is protected. The provisions regarding immovable antiquities shall apply where relevant to such a wreck or part thereof.
Items found in a wreck referred to in subsection 1 or which apparently originate from such a wreck belong to the State without redemption, and otherwise the provisions concerning movable antiquities shall apply where relevant.
Anyone who finds a wreck or an item referred to in this section shall immediately inform the National Board of Antiquities.”
On 15 November 2002, that is during the course of the proceedings in the present case, Parliament amended section 20 of the Antiquities Act so as expressly to vest ownership of vessels wrecked more than 100 years previously in the State. The amended section 20 (Act no. 941/2002) reads:
“A wreck of a ship or other craft, or part of such a wreck, discovered in the sea or inland waters, which can be presumed to have gone down more than 100 years ago, is protected. The provisions regarding immovable antiquities shall apply where relevant to such a wreck or part thereof.
If, on the basis of external conditions, it is obvious that the owner has abandoned a wreck referred to in subsection 1 or a part thereof, it shall belong to the State.
Items found in a wreck referred to in subsection 1 or which apparently originate from such a wreck belong to the State without redemption, and otherwise the provisions concerning movable antiquities shall apply where relevant.
Anyone who finds a wreck or an item referred to in this section must inform the National Board of Antiquities without undue delay.
... ”
The amendment (Act no. 941/2002) took effect on 1 December 2002. It was, however, given retroactive effect. The amendment was applicable to wrecks and parts thereof which had already become protected as historical monuments before the entry into force of the amendment if, based on external conditions, it was obvious that they had been abandoned by their owner.
The preparatory works of the amendment of section 20 of the Antiquities Act (see the Government bill HE 80/2002) noted the need to clarify the question of ownership of a protected wreck or part thereof. It stated, inter alia, that:
“Since the enactment of the Antiquities Act, technological developments have facilitated locating and exploring old shipwrecks under water. The number of wrecks located by means of side scan sonar in territorial waters of Finland will probably grow in the next few years. ....
The Vrouw Maria, which foundered in 1771, was discovered in 1999 in the Nauvo archipelago. It has been stated that the title to the wreck itself is not unambiguous in the light of current law, because the Act does not stipulate directly that a wreck regarded as a relic of antiquity is owned by the State. No case-law exists on the application of the Antiquities Act to this question, and it is not covered in legal literature either.
.... Swedish and Norwegian legislation contains an unambiguous provision stipulating that the title to a shipwreck regarded as a relic of antiquity is vested in the State. The preparatory works of the Finnish Antiquities Act in force state, however, that relics of antiquity, because of their old age, can no longer be regarded as the property of private individuals. Relics of antiquity are considered to have primarily antiquity value and/or historical value but no longer use value. Also the raising of a sunken historical wreck constitutes primarily archaeological research. For these reasons it can be considered that the legislator originally intended to stipulate that historical shipwrecks are owned by the State, although this intent was not expressed openly.”
Chapter 16, article 1, of the Maritime Code (Act no. 674/1994), as in force at the material time, provided that anyone who salvaged or assisted in salvaging a foundered vessel or a vessel in danger, or goods in such a vessel, or anything having pertained to such a vessel or goods, was entitled to salvage remuneration. Anyone who had taken part in a salvage operation notwithstanding the express and justified prohibition of the master of the vessel had no right to salvage remuneration.


ITEMID: 001-78794
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BORISOVA v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 6+6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-a - Information on nature and cause of accusation;Prompt information;Article 6-3-b - Adequate facilities;Adequate time;Preparation of defence;Article 6-3-d - Examination of witnesses;Same conditions);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Peer Lorenzen
TEXT: 6. On the morning of 8 September 1999 the applicant, who was unemployed at the time, went to the Employment Office to look for new job offers. A considerable number of people, mainly women of Roma origin, had already gathered there and were waiting to enter the Employment Office. The applicant, also of Roma origin, lined up at the back of the queue that had formed in front of the building.
7. At around 11.15 a.m. part of the group of persons burst into the Employment Office. A police officer, who was there to enforce public order, managed to force them back outside. As the police officer was walking out of the building he was pushed by several women, who did not include the applicant. One of those women indicated to the police officer that the applicant, still at the back of the queue, had pushed them.
8. The police officer approached the applicant and requested to see her identity documents. She refused and after a short, impolite verbal exchange the police officer instructed her to accompany him to the police station so as to perform an identity check. The applicant did not comply and the police officer tried to handcuff her. In accordance with the statements later given by two police officers before the District Court, the applicant then slapped the police officer in the face and threw herself to the ground screaming. Another police officer then came over and assisted the first police officer in removing the applicant from the queue and escorted her to the police station. The time was 11.30 a.m.
9. At the police station, the applicant was placed in a cell. She was not allowed to use a phone to contact a next of kin or an attorney.
10. Approximately two hours later, the applicant was taken out of the cell and placed in a police car together with the two police officers who had arrested her. They were all taken to the Pazardzhik District Court where they arrived at 2.40 p.m.
11. Shortly before the start of the hearing the applicant was requested to sign an assessment of an act of minor hooliganism (акт за констатиране на дребно хулиганство : the “assessment”). The applicant alleged, which the Government challenged, that she did not have time to review the document. She signed the document without making any reservations. The applicant further alleged, which the Government did not expressly dispute, that she was not given a copy of the signed assessment.
12. The hearing began at 3 p.m. The applicant represented herself before the Pazardzhik District Court. She was charged with the administrative offence of minor hooliganism.
13. The hearing started with the assessment being read out in court. It was claimed that the applicant (1) had created a disturbance in front the Employment Office by pushing the other women in the queue; (2) had acted disruptively in response to the police officer's instructions and had resisted arrest; and (3) had slapped one of the police officer's in the face. When the applicant was asked whether she was aware of the assessment she responded as follows:
“I am aware of it, actually I am not aware of the assessment of [an act of minor hooliganism]. Now that you read it out though, I understand what all of this is about, but it is not true, I have witnesses.”
14. The court proceeded to question the applicant, the two police officers who arrested her and an official from the Employment Office.
15. The applicant refuted the accusations against her. She claimed that the police officers had dragged her to the police station and had kicked her repeatedly before placing her in a cell. She also claimed that she had never hit the police officer, but that he had injured himself on a tree during the arrest. On several occasions during the hearing the applicant claimed that she could summon witnesses who would corroborate her version of events. She also stated that she was unable to call witnesses for the hearing as she was not aware where the police officers were taking her when they placed her in the police car to take her to court.
16. Both police officers testified that the applicant had acted disruptively and had hit one of them.
17. The official from the Employment Office testified that she had seen the applicant lifting her hand, but had not seen her actually slap the police officer.
18. The hearing ended at 3.20 p.m.
19. After a short session in camera for deliberations, the Pazardzhik District Court delivered its verdict. It found the applicant guilty of minor hooliganism and imposed an administrative sanction of five days' detention at the Pazardzhik police station effective as of 11.30 a.m. on 8 September 1999. The court fully credited the testimonies of the police officers and the official from the Employment Office while it refused to accept that of the applicant, because she had made the statements in “the context of her defence”. The judgment was not subject to appeal and entered into force immediately.
20. The applicant was then taken back to the Pazardzhik police station where she served her sentence.
21. The Decree on Combating Minor Hooliganism (the “Decree”) was adopted in 1963. It envisages an expedited procedure for bringing to court minor offences of hooliganism which are punishable with an administrative sanction of up to fifteen days' detention at a police station or a fine of between 10 to 200 Bulgarian levs (approximately between 5.13 to 102 euros: section 1). It is unclear whether the Administrative Offences and Punishments Act, which sets out general principles of procedure, is applicable to the proceedings under the Decree (see two contradictory decisions on that issue: Тълкувателно решение № 46 от 16. X. 1979 г. по н. д. № 36/79 г. на ОСНК and Определение № 9959 от 07.11.2003 г. по адм. д. № 9327/2003 г., I отд. на ВАС).
22. The expedited procedure under the Decree provides that an “assessment of an act of minor hooliganism” (акт за констатиране на дребно хулиганство) is prepared by the police or competent municipal authorities. The document is then presented to the accused for signature who has the right to make any reservations he or she deems fit (section 2).
23. If judicial proceedings are to be initiated against the accused, the assessment, together with the colleted data, is to be filed with the District Court immediately, or at the latest within twenty-four hours (section 3). In turn, a District Court judge, sitting alone, holds a hearing in the presence of the accused and examines the case within a further twenty-four hours (sections 4 and 5).
24. Witnesses are summoned at the discretion of the judge and the accused have the right to be represented by legal counsel (section 5).
25. The resulting judgment of the District Court judge is not subject to appeal and is to be executed immediately (section 7). Prior to the amendments of 1998 to the Administrative Offences and Punishments Act it was possible to file a petition for review of the judgments adopted under the Decree by following the procedure envisaged in the said act (Тълкувателно решение № 58 от 30.XII.1980 г., н.д. № 53/80 г., ОСНК). Following the amendments of 1998 that was no longer possible. Similarly it was not possible to file a cassation appeal under the above mentioned act (Определение № 9959 от 07.11.2003 г. по адм. д. № 9327/2003 г., I отд. на ВАС).
26. A judgment against an individual under the Decree is not considered a criminal conviction and is not entered into his criminal record.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-a
6-3-b
6-3-d