ITEMID: 001-5839
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: MAROTT HANSEN v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Danish national, born in 1975 and living in Skovlunde. He is represented before the Court by Mr Tyge Trier, a lawyer practising in Copenhagen.
The facts of the case, as submitted by the applicant, may be summarised as follows.
By indictment of 29 October 1996 the applicant was charged with malicious damage in that, while walking on a road along with five other young men on their way to a discotheque an evening in July 1996, he had knocked his fist against the front window of an oncoming slow driving car with the result that the window cracked.
At the first court session, held on 27 February 1997, the applicant was heard. Furthermore, the driver testified that she had seen the applicant very close up when the incident happened and therefore was able to identify him shortly afterwards at the discotheque and again in court. The applicant requested an adjournment of the trial in order to hear witnesses on his behalf, more specifically three of the above five men, henceforth called HK, CJ and CE. In the following court session HK testified that he had not seen any window crack and he could not remember if any of the men had discussed later who might have cracked it. The witnesses CJ and CE did not appear. It appears that GJ was not called and the applicant withdrew his request to hear CE. At the prosecution’s request a police officer who was present in the discotheque on the night when the driver had identified the applicant finally testified.
By judgment of 21 August 1997 the City Court of Nykøbing Sj.(retten i Nykøbing Sj.) found the applicant guilty of the charges brought against him following an evaluation of the available evidence and sentenced him to pay a fine of 1,000 Danish kroner (DKK) .
On 4 September 1997 the Leave to Appeal Board (Procesbevillingsnævnet) received an application from the applicant for leave to appeal, co-signed by CE, in which the applicant declared that CE was the perpetrator.
Consequently, CE was provisionally charged with the offence and questioned by the police on 29 and 30 September 1997. According to the police reports CE stated that he could not remember any car or any cracked window, but the applicant had told him that he (CE) was the perpetrator. He refused to elaborate on the exact time when the applicant had told him so. According to a police report of 3 October 1997, CE told the police on the phone that he did not have time to read his previous statements and he did not care either. However, after the last interview he remembered, although he had been very drunk, that he did stretch his arm and thereby hit the car, but he could still not remember that the window cracked.
The applicant was granted leave to appeal to the High Court of Eastern Denmark (Østre Landsret) on 17 December 1997.
On 17 April 1998 the applicant’s appeal was scheduled to take place on 22 September 1998, and on 15 July 1998 a summons was served on CE to appear as a witness. On 17 September 1998 the applicant informed the High Court that CE was going to work in Holland for three weeks as from 20 September 1998, and therefore he requested an adjournment of the trial. A copy of CE’s work contract was enclosed. The High Court, however, proceeded with the trial as scheduled. The driver and a police officer gave testimony. As for the driver she confirmed her identification of the applicant as the perpetrator once more. As to the witnesses on the applicant’s behalf HK did not appear, since he was detained on remand in another case. Accordingly his statement during the City Court trial was read out during the High Court trial. As for CE his statements given to the Police on 29 September, 30 September and 3 October 1997 were read out during the trial. Having regard to the available evidence, including the above statements submitted by CE, the High Court did not find an adjournment necessary as requested by the applicant in order to hear CE in person. On the same day the High Court upheld the City Court’s judgment on the basis of the evidence as set out above.
The applicant’s request for leave to appeal to the Supreme Court (Højesteret) was refused by the Leave to Appeal Board on 26 October 1998.


ITEMID: 001-67992
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TODOROV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 10. The applicant was born in 1968 and lives in Plovdiv.
11. On 14 August 1992 the applicant bought a car from a Mr I.G.
12. On 14 September 1992 the car was impounded by the police who explained to the applicant that it had been stolen. On 17 September 1992 the applicant requested the return of the car but received no reply.
13. On 30 September 1992 a criminal investigation was opened by the Plovdiv District Prosecutor's Office against a Mr N.P. for forgery of customs' declarations for the importation of cars, one of which was the applicant's. The prosecutor in charge of the case ordered that the car be held as a piece of evidence.
14. In October and November 1992 the applicant four times requested from the prosecution authorities the return of his car, but received no reply.
15. On 30 November 1992 the car was handed over to the Plovdiv Customs Administration by order of the Plovdiv District Prosecutor's Office. On 29 January 1993 the head of the Plovdiv Customs Administration made a penal order whereby he confiscated the car on the ground that it had been illegally imported into the country.
16. The applicant appealed against the penal order to the Plovdiv District Court. In a judgment of 28 July 1993 that court quashed the order and on 18 August 1993 the car was returned to the applicant.
17. On 22 November 1993 the applicant brought an action for damages against the Plovdiv Customs Administration and the Chief Prosecutor's Office, complaining that the impounding of his car and the unlawful order for its confiscation had prevented him from using it during a period of eleven months.
18. Noting that the applicant had failed to adduce written evidence in support of his allegations, the Plovdiv District Court instructed him to do so within seven days. The applicant complied with these instructions and the court set the case down for hearing.
19. The first hearing took place on 24 March 1994. The court noted the absence of a representative of one of the defendants, the Chief Prosecutor's Office, and ordered that it be summoned for the next hearing. The applicant's lawyer requested the court to subpoena as a witness the prosecutor who had ordered the car to be handed over to the Customs Administration. The court rejected the request by an order of 28 March 1994, holding that the prosecutor's actions could be proved through the official documents he had made and that his testimony would therefore be superfluous.
20. The second hearing was held on 13 June 1994. No representative of the Chief Prosecutor's Office appeared but a prosecutor was present in his capacity of “special party” to the proceedings. The “special party” prosecutor requested that the proceedings be stayed in order to take into account the pending criminal investigation against Mr N.P., as it related to the same car. In particular, there was information that the number on the engine and on the chassis of the car had been forged and that it had been illegally imported. The applicant's lawyer agreed and requested that the actions against the Chief Prosecutor's Office and against the Customs Administration be severed. The court refused to sever the actions and acceded to the request for staying the proceedings, finding that there existed criminal elements the determination of which was decisive for the outcome of the civil dispute before it, within the meaning of Article 182 § 1 (d) of the Code of Civil Procedure (“the CCP”).
21. On 20 June 1994 the applicant appealed against the order for staying the proceedings to the Plovdiv Regional Court. He argued that the outcome of the criminal investigation had nothing to do with the civil proceedings. Moreover, there were no criminal elements whose determination was decisive for the outcome of the civil dispute, as the prosecution authorities had transmitted the car to the customs authorities, thus excluding it from the evidence in the criminal investigation. The appeal was filed with the Plovdiv District Court. Noting that the applicant had not paid the requisite fee, the Plovdiv District Court refused to proceed with the appeal, instructing the applicant to pay the fee. The applicant did so and on 26 July 1994, after the Customs Administration had filed its answer, the Plovdiv District Court forwarded the appeal to the Plovdiv Regional Court. In a final order of 26 September 1994 the Plovdiv Regional Court dismissed the appeal, confirming the lower court's holding that there existed criminal elements whose determination was decisive for the outcome of the civil dispute, within the meaning of Article 182 § 1 (d) of the CCP. In particular, the car bought by the applicant had been impounded as a piece of evidence. The fact that later it had later been delivered to the customs authorities did not change that. Nor was it significant that the criminal proceedings were against a third party and that the penal order against the applicant had been quashed, because the applicant could still suffer the negative consequences of the criminal proceedings, e.g. the forfeiture of the car.
22. On 21 December 1995 the applicant's lawyer requested the Plovdiv District Court to resume the proceedings. In view of the request, on 27 December 1995 the court sent a letter to the Plovdiv Regional Investigation Service, asking whether the criminal investigation against Mr N.P. had been completed. The Investigation Service informed the court that the proceedings were still pending.
23. In the following years the Plovdiv District Court made several inquiries about the stage reached in the investigation against Mr N.P. By letters of 27 February 1996, 22 September 1997, 1 October 1998 and 27 November 2000 the Plovdiv Regional Investigation Service informed the court that the criminal proceedings were still pending, without specifying whether it was undertaking any investigative actions.
24. Following a further inquiry by the court, the Plovdiv Regional Investigation Service notified it by a letter of 13 August 2001 that the case had been sent to the Plovdiv District Prosecutor's Office on 6 July 2001. Taking into consideration that the investigation was still pending, by an order of 20 August 2001 the Plovdiv District Court refused to resume the proceedings. It seems that there was no activity during the period between 19952001 in the criminal investigation against Mr N.P.
25. On 26 November 2001 the Plovdiv District Prosecutor's Office discontinued the criminal proceedings against Mr N.P.
26. The Plovdiv District Court then resumed the proceedings and held a hearing on 28 March 2002. The applicant requested a change in the names of the defendants, as during the time when the proceedings had been stayed the Chief Prosecutor's Office had been renamed the Prosecutor's Office of the Republic of Bulgaria and the Plovdiv Customs Administration had become the Customs Agency at the Ministry of Finance. The applicant also increased the amount of his claim for damages and requested leave to call one witness. The defendant Prosecutor's Office requested the court to include the case-file of the investigation against Mr N.P. in the record. The court acceded to all of the parties' requests and adjourned the case.
27. Three hearings listed for 7 and 21 May and 4 June 2002 did not take place because the Customs Agency had not been duly summoned.
28. A hearing listed for 2 July 2002 failed to take place because the Customs Agency, despite being duly summoned, did not send a representative. Its counsel requested the court in writing to adjourn the case because he was ill and could not attend.
29. The court held a hearing on 10 September 2002. The applicant and his lawyer did not appear. The court found that the case was ready for adjudication and reserved judgment.
30. On 13 September 2002 the applicant's lawyer requested the court to reopen the oral proceedings, as he had been unable to organise his defence prior to the 10 September 2002 hearing because between 15 August and 10 September 2002 the casefile had been sent to the Ministry of Justice in Sofia and he could not therefore prepare for the hearing. The court acceded to his request and scheduled a hearing for 22 October 2002.
31. The last hearing before the Plovdiv District Court was held on 22 October 2002. The court heard the applicant's witness and the parties' closing arguments.
32. In a judgment of 28 November 2002 the Plovdiv District Court partly allowed the applicant's claim for damages against the Customs Agency, awarding him 1,000 Bulgarian levs, and dismissed his claim against the Prosecutor's Office.
33. On 12 December 2002 the applicant appealed against the judgment to the Plovdiv Regional Court.
34. The Plovdiv Regional Court held a hearing on 3 June 2003. The applicant and the Customs Agency did not appear. The Prosecutor's Office requested the court to include in the record the casefile of the administrative case in which the Plovdiv District Court had quashed the penal order for the confiscation of the applicant's car. The court granted the request and adjourned the case until 23 October 2003.
35. A hearing took place on 23 October 2003. The casefile of the administrative case was not produced, because it had already been destroyed in the court's archive. The court adjourned the case until 27 January 2004.
36. On 18 December 2003 (date of the latest information from the parties) the proceedings were still pending before the Plovdiv Regional Court.
37. The CCP provides, in Articles 182 § 1 (d) and 183, that a court examining a civil action:
“182. ... shall stay the proceedings:
...
(d) whenever criminal elements, the determination of which is decisive for the outcome of the civil dispute, are discovered in the course of the civil proceedings...
183. Proceedings which have been stayed shall be resumed ex officio or upon a party's request after the respective obstacles have been removed...”
Article 222 of the CCP provides:
“The findings contained in a final judgment of a criminal court and concerning the issue whether the act in question has been committed, its unlawfulness and the perpetrator's guilt are binding on the civil court when it examines the civil consequences of the criminal act.”
In a judgment of 18 January 1980 (реш. № 3421 от 18 януари 1980 г. по гр.д. № 1366/1979 г., І г.о.) the First Civil Division of the Supreme Court held:
“In principle the fact of a crime may only be established under the procedures of the Code of Criminal Procedure. That is why, when an alleged civil right derives from a fact which constitutes a crime under the Criminal Code, the civil court, according to Article 182 § 1 (d) of the [CCP], is obliged to stay the civil proceedings. This is necessary in order to respect the decision of the criminal court. It is mandatory for the civil courts regardless of the crime in issue. The mandatory binding force of the decisions of the criminal courts is set out in Article 222 of the [CCP].”
38. The new Article 217a of the CCP, adopted in July 1999, provides:
“1. Each party may lodge a complaint about delays at every stage of the case, including after oral argument, when the examination of the case, the delivery of judgment or the transmitting of an appeal against a judgment is unduly delayed.
2. The complaint about delays shall be lodged directly with the higher court, no copies shall be served on the other party, and no State fee shall be due. The lodging of a complaint about delays shall not be limited by time.
3. The chairperson of the court with which the complaint has been lodged shall request the case file and shall immediately examine the complaint in private. His instructions as to the acts to be performed by the court shall be mandatory. His order shall not be subject to appeal and shall be sent immediately together with the case file to the court against which the complaint has been filed.
4. In case he determines that there has been [undue delay], the chairperson of the higher court may make a proposal to the disciplinary panel of the Supreme Judicial Council for the taking of disciplinary action.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72293
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MÜRSEL EREN v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of P1-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: András Baka;Jean-Paul Costa;Karel Jungwiert;Mindia Ugrekhelidze
TEXT: 8. The applicant was born in 1972 and lives in Ankara. He graduated from secondary school (lycée) in 1993 and started sitting his university entrance examinations in 1994.
9. At the relevant time, in order to attend a university degree course in Turkey, would-be students were required to pass a two-tier, multiple-choice examination organised by the Higher Education Council's Centre for the Selection and Placement of Students (Yükseköğretim Kurulu Öğrenci Seçme ve Yerleştirme Merkezi – “the ÖSYM”), which was held only once a year. Students who were unsuccessful in the first stage of the examination had the right to re-sit it in subsequent years.
10. The applicant failed to pass the first stage of the university entrance examination in his first three attempts between 1994 and 1996. He was not therefore allowed to proceed to the second and final examination during that time.
11. The applicant attended a private course in Ankara in order to prepare for the 1997 examinations. He submitted that during this course he studied very hard and, on occasion, obtained the highest marks in his class in mock examinations.
12. In the first stage of the examinations in 1997, the applicant obtained 131 points which enabled him to proceed to the second stage, the required minimum being 105 points. After the second examination the applicant believed that he had been successful and that he would obtain sufficient points to qualify for access to one of the university programmes he had selected in his application form. When the exam results were announced, the applicant found that his name was not on the list of successful students who were allowed to enrol at a university. When he contacted the ÖSYM he was informed that he had obtained 493 points in his second examination.
13. By a letter of 11 August 1997, the applicant asked the ÖSYM why he had not been selected for a university place of his choice, given his good results.
14. The ÖSYM, in its reply of 12 August 1997, informed the applicant that he had obtained one of the highest results among the students who had sat the second examination, but that his exam results had been annulled on the advice of an academic council, consisting of three professors, which had found that, given his poor results in the previous years, his excellent achievement could not be explained. The letter of the ÖSYM contained no indication that it suspected the applicant of any impropriety.
15. On 27 August 1997 the applicant, through the assistance of a lawyer, applied to the Supreme Administrative Court (Danıştay) and requested that “the decision of the ÖSYM, which had no precedent”, be suspended and annulled, otherwise “his right to university education would be breached”. He argued that the fact that his previous exam results were not good did not mean that he would never succeed in passing subsequent examinations.
16. According to the judge rapporteur of the Supreme Administrative Court appointed in the case, the decision of the ÖSYM was based on pure supposition and should be annulled as it was devoid of any legal basis. However, on 10 October 1997, the Eighth Division of the Supreme Administrative Court, by a majority of three to two, rejected the application to annul the decision of the ÖSYM, finding that it was inexplicable for a student who had obtained very poor results in his previous exams to be so successful in subsequent examinations. The minority argued in their dissenting opinion that the authorities had a duty to organise the examinations properly and that it was their responsibility to prove, with adequate evidence, any impropriety such as cheating.
17. The applicant's appeal, lodged on 30 October 1997, was dismissed by a majority of ten to five on 28 November 1997 by the Supreme Administrative Court's General Council of Administrative Divisions (Danıştay İdari Dava Daireleri Genel Kurulu).
18. On an unspecified date the applicant asked, in a further application submitted to the Eighth Division of the Supreme Administrative Court, for the decision of the ÖSYM to be annulled. On 5 November 1998 the request was rejected by the same court after it had examined the case on its merits, by a majority of four to one.
19. On 30 December 1998 the applicant appealed and sought an injunction suspending the decision of the ÖSYM while the appeal was being examined.
20. On 29 January 1999 the Supreme Administrative Court's General Council of Administrative Divisions began examining the applicant's request for an injunction but decided to postpone the matter until after the conclusion of the appeal.
21. The appeal against the decision of 5 November 1998 was dismissed on 15 March 1999 by the Supreme Administrative Court's General Council of Administrative Divisions, by a majority of eight to seven. The majority concluded that the applicant had not achieved the result through his own knowledge and ability. The minority argued in their dissenting opinion that the ÖSYM had a duty to take measures in order to ensure that university entrance examinations and the subsequent steps leading to selection for a university place were conducted properly. The ÖSYM had the obligation and power to punish candidates who breached the laws and regulations, if so established on the basis of adequate evidence. According to the minority, the ÖSYM could not hold the applicant responsible for the consequences of its own failures. It could only review its procedures and take measures to prevent the repetition of such situations.
22. On 8 June 1999 the applicant asked for a rectification of the decision of 5 November 1998, which is the final remedy in Turkish law in administrative matters.
23. On 19 November 1999 the application for the rectification of the decision was rejected by the Supreme Administrative Court's General Council of Administrative Divisions. This decision was taken by a majority of eight to seven and was served on the applicant on 30 December 1999.
24. Article 42 of the Turkish Constitution provides that no one shall be denied the right to education or to instruction.
25. According to section 10 of the Higher Education Act of 1981 (Law no. 2547), the ÖSYM – the Higher Education Council's Centre for the Selection and Placement of Students – is an organisation which, in the context of principles established by the Higher Education Council, and in order to select students for admission to institutions of higher education, prepares tests, administers them, evaluates the results and, having regard to the preferences expressed by the successful candidate, effects their placement at universities and other higher educational institutions.
26. The relevant part of section 45 of Law no. 2547 provides as follows:
“Students are placed at higher education institutions by passing an examination, the principles of which are determined by the Higher Education Council. The evaluation of the exam results takes into account the student's secondary school grade average ...”


ITEMID: 001-70304
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: SAVOLA v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Hannu Savola, is a Finnish national who was born in 1949 and lives in Hämeenlinna. He is represented before the Court by Mr Markku Vepsäläinen, a lawyer practising in Helsinki.
The applicant’s firm had constructed chalk stabilisation machines for a construction firm P.. Concerning the first machine, they agreed that the costs up to 1,540,000 Finnish Marks (FIM; corresponding to 259,041 euros (EUR)) were to be financed by the latter. No formal agreements were entered into for the subsequent machines.
Allegedly on 7 July 1989 the applicant and H., a managing director of a company M., which is a subsidiary company of P., concluded a rental agreement for the machines to be used in M.’s construction business in Sweden. One of the machines was rented to M.. On April and May 1989 H. paid the applicant rent amounting to 1,000,000 and 1,109,014.95 Swedish kronor (SEK), respectively.
On 10 May 1990 the applicant allegedly removed one of the machines from the construction site, without returning it to P.. The following day P. filed a criminal complaint with the police of Vantaa, accusing the applicant, as the responsible partner of his firm, of having stolen it.
On 15 May 1990 the applicant’s firm, P. and M. agreed that the civil dispute as to the ownership and the right of possession of the machines were to be resolved before the City Court (raastuvanoikeus, rådstuvurätten) of Helsinki.
On 28 August 1990 the police in Sweden interrogated H. on suspicion of embezzlement (concerning the rental agreements). However, on 28 May 1991 the Swedish prosecutor decided not to lodge charges against him since there was insufficient evidence. At the time the applicant was not a suspect.
On 31 January 1993 the police of Vantaa discontinued the pre-trial investigations concerning the applicant, finding the case to be a civil dispute.
It appears that meanwhile a civil dispute between P. and the applicant was pending before the City Court of Helsinki, which decided on 15 April 1993 that the machines (and apparently also other similar machines) belonged to P.. It ordered the applicant to return the machines to P..
In an another civil dispute, the then District Court (kihlakunnanoikeus, häradsrätten) of Espoo on 25 October 1993 ordered H. to reimburse to M. the rental costs of the machine amounting to SEK 2,213,762.95.
According to the applicant, on 2 September 1993 a demand for an investigation (tutkintapyyntö, begäran om förundersökning) to be opened against him was made to the police of Vantaa. Another demand for an investigation was made to the police of Hämeenlinna on 23 May 1996. Following this, on 5 June 1996 an offence by the applicant was reported to the police. He was suspected of aggravated embezzlement relating to the non-delivery of the constructed machine to P. (“first embezzlement”). On 16 September 1996 the pre-trial investigation was assigned to the economic crime investigation group of the province of Häme. At that time H. was a suspect as well. It is unclear when the applicant was interrogated by the police.
Apparently criminal investigations against the applicant and H. relating to an alleged embezzlement committed in Sweden concerning the rental agreement (“second embezzlement”) were opened in Finland in February 1997.
The applicant was arrested and detained between 4 February 1997 and 2 April 1997. On 6 March 1997 the provisional indictment was served on him.
On 15 September 1997 the pre-trial investigation was concluded. Charges were lodged in October 1997. Following the request by the Swedish public prosecutor, he was also charged with the alleged embezzlement committed there.
On 15 October 1997 the criminal proceedings before the District Court (käräjäoikeus, tingsrätt) of Hämeenlinna began. On 30 December 1999 the District Court issued its judgment, acquitting the applicant and other defendants. The court further ordered P. and M. to pay the defendants’ legal costs.
The prosecutor, the complainants, the applicant and co-defendants appealed to the Court of Appeal (hovioikeus, hovrätt) of Turku. In one of the four oral hearings before the appellate court the applicant, among others, requested the court to dismiss the charges alleging that the proceedings had been excessively lengthy. On 24 April 2001 the Court of Appeal issued its judgment, upholding by two votes to one, the judgment of the District Court concerning the alleged first embezzlement, but quashing the judgment concerning the second embezzlement. It convicted the applicant of aggravated embezzlement in this respect. The court admitted that the period from the lodging of criminal complaint until the Court of Appeal proceedings, i.e. 11 years, had exceeded the period at issue in cases before the Strasbourg Court, relied on by the applicant’s company. The court nevertheless rejected the request to dismiss the charges ruling, inter alia, that:
“These proceedings were already pending in 1997. The handling of the case at issue began on 21 April 1999. The proceedings before the District Court took one year and eight months and the proceedings before the Court of Appeal will have taken approximately one year and three months, i.e almost three years in all. As from the reporting of the offence until the end of the proceedings before the Court of Appeal the time elapsed has been almost 11 years. ... The interests at stake are exceptionally wide, including, inter alia, the civil proceedings. ... The Court of Appeal notes that the court proceedings have not been excessively lengthy taking into account the nature and extent of the case ... However, the pre-trial proceedings have been lengthier than on average. ... The Court of Appeal concludes that ... the proceedings have not exceeded the reasonable length–requirement as provided in the European Convention on Human Rights.
Conclusion
The request to rule inadmissible or dismiss the charges is rejected.”
The appellate Court took the long time which had elapsed since the incriminated conduct into account when imposing the sentence. Instead of an unconditional term of imprisonment, the applicant was sentenced to a suspended sentence of one year and three months. He was further ordered to pay FIM 4,000 by way of supplementary fines and, jointly with H., the other defendant, M.’s legal costs. The appellate court ruled, inter alia, that:
“The sentences for [the applicant] and [H.] have to be severe taking into account the amount of embezzled property and the premeditation of the offences ... [thus] the reprehensible conduct warrants that [the applicant] and [H.] be sentenced to imprisonment. For the same reason, the general obedience to the law would require that the sentences be ones of imprisonment. [The complainants] became aware of the offences committed by [the applicant] and [H.] on 10 May 1990. The effective criminal investigation began, however, on 7 February 1997 in respect of [the applicant] ... The proceedings before the District Court began on 15 October 1997. The lapse of time since the acts were committed until the initiating of the criminal proceedings was not caused by the [applicant] and [H.] covering up the acts. The fairly lengthy period which elapsed before the courts was not to any major extent caused by [the applicant] or [H.]. Taking into account the exceptionally long pre-trial period and the proceedings ... the punishment shall be a suspended sentence ...”
The applicant and the other defendants applied for leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen), which was rejected on 19 September 2001.
Section 2, subsection 1 of the Criminal Investigations Act (esitutkintalaki, förundersökningslag; 449/1987) provides that the police or another investigation authority shall carry out a pre-trial investigation where, on the basis of a report made to it or otherwise, there is a reason to suspect that an offence has been committed.
Section 6 of the said Act provides that a pre-trial investigation shall be carried out without undue delay.
Section 21 of the Constitution of Finland (perustuslaki, grundlagen 731/1999) provides that everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority. This section is equivalent to section 16 of the repealed Constitution Act of Finland of 1918 (Suomen Hallitusmuoto, Regeringsform för Finland), as in force at the relevant time.
Chapter 28, section 5 of the Criminal Code (rikoslaki, strafflagen) prescribes a maximum penalty of four years’ imprisonment for aggravated embezzlement.


ITEMID: 001-5993
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: GUGGENBICHLER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Dietmar Karl Guggenbichler, is a Austrian national, born in 1942 and living in Thalgau. He is represented before the Court by Mr J. Neumayer, a lawyer practising in Vienna.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was arrested on 14 August 1982 on suspicion of blackmail. On 20 October 1982 he was released on bail. On 31 May 1985 he was partly acquitted by the Salzburg Regional Court (Landesgericht). Upon his appeal he was fully acquitted by the Linz Court of Appeal (Oberlandesgericht) on 23 December 1985.
On 16 March 1990, the applicant filed an action requesting compensation for his detention on remand under the 1969 Compensation (Criminal Proceedings) Act. The Salzburg Regional Court dismissed the applicant’s claim on 8 August 1990. Upon the applicant’s appeal, the Linz Court of Appeal, on 17 October 1990, quashed the decision of the Salzburg Regional Court and referred the case back to it.
On 31 March 1995, the Salzburg Regional Court dismissed the applicant’s action for a second time. Upon the applicant’s appeal, the Linz Court of Appeal again quashed the decision of the Salzburg Regional Court and referred the case back to this court on 6 July 1995.
On 18 December 1996, the Salzburg Regional Court dismissed the applicant’s action for a third time. The applicant’s appeal of 3 January 1997 was dismissed by the Linz Court of Appeal on 6 February 1997.
Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows.
"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.
(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.
(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."


ITEMID: 001-4681
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: LOWRY v. PORTUGAL
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a British national born in 1944. He is currently detained at Caxias Prison in Portugal.
The applicant is represented before the Court by Ms Gudrun Parasie, lawyer and director of European Legal Advice, a human rights association in London.
A.
a. The proceedings against the applicant
In April 1997, a preliminary investigation was opened concerning the activities of the applicant as partner, manager and director of the company “Paramount Portugal - Consultadoria Comercial Lda.”. At least one person had complained to the Portuguese Stock Exchange authority (Comissão do Mercado de Valores Mobiliários, hereinafter CMVM) about the activities of this company. It was accused of selling shares and securities of other international companies which, allegedly, did not have a real existence or activity.
On 22 April 1997, officials of the CMVM and of the Judicial Police (Polícia Judiciária) entered and searched the two offices of Paramount in Lisbon and arrested the applicant. Numerous files, including computer data, discs and records, were seized.
On 24 April 1997, the applicant was brought before the investigating judge at the Lisbon Criminal Investigation Tribunal (Tribunal de Instrução Criminal) and questioned in the presence of his lawyer. After questioning the applicant, the investigating judge told him that he was suspected of having committed the offences of forgery of shares (Articles 262 and 267 of the Penal Code) and aggravated fraud (Articles 217 and 218 of the Penal Code). Considering the danger of disruption of the investigations, the danger of absconding and taking into account also that the applicant was a foreigner, the investigating judge ordered the detention on remand of the applicant.
The applicant unsuccessfully appealed to the Lisbon Court of Appeal (Tribunal da Relação), which upheld the investigating judge’s order by a decision of 1 July 1997.
Thereafter the applicant filed numerous applications for release, which were rejected by the Lisbon Court of Appeal on 23 September 1997, 4 February 1998 and 25 March 1998. He also applied for bail on medical grounds, which was refused by the investigating judge on 19 November 1997. The Lisbon Court of Appeal upheld this decision by a judgment of 25 February 1998.
The applicant also filed a constitutional complaint with the Constitutional Court (Tribunal Constitucional) against the Lisbon Court of Appeal’s decision of 23 September 1997. This complaint, concerning the rules of the Code of Criminal Procedure governing the grounds on which detention on remand can be ordered, was declared partly inadmissible and rejected as partly ill-founded, by a judgment of 4 March 1998.
On 19 December 1997, the investigating judge issued a decision by which the proceedings were declared exceptionally complex (excepcional complexidade). As a result of this decision, the maximum duration of detention on remand before indictment (acusação) by the Public Prosecutor according to the Code of Criminal Procedure was increased from eight months to one year.
During the period of investigation, the applicant was questioned by the police on 23, 24 and 25 July 1997 and on 30 September, 1, 2 and 3 October 1997.
On 21 April 1998, the Public Prosecutor filed his indictment against the applicant and eight other persons. The applicant was accused of fraud, criminal association, forgery of documents and illegal use of databases. According to the prosecution, the applicant and the other eight accused persons contacted potential customers by telephone, without their having given their consent, offering to send them detailed information on attractive financial investments all over the world. Shares of companies with no real existence were then sold to the customers, payments being made by cheque or bank transfer to a specified account in a Swiss bank. These customers were all non-Portuguese and the shares were first sent to Switzerland and then from Switzerland to the customers. It was alleged that the false share certificates were printed, filled in and signed in Portugal, under the direction and control of the applicant.
The indictment was served on the applicant on the same day, with the help of an interpreter. An English translation of the indictment was subsequently given to the applicant, on 19 May 1998.
Several customers of the “Paramount Portugal - Consultadoria Comercial Lda.” subsequently filed private prosecutions and requests for damages.
On 24 April 1998, the applicant filed with the investigating judge an application for release. He alleged, invoking Article 6 § 3 (a) of the Convention, that the service of the indictment was null and void due to the absence of a written translation. The applicant submitted that the maximum lawful duration of his detention on remand had expired, which rendered his further detention unlawful.
On the same day, the investigating judge rejected the application, noting that neither Article 6 § 3 (a) nor the relevant Portuguese legislation required a written translation of the indictment. The investigating judge added that in any event the one-year period ran until the issuing of the indictment and not until its service.
A writ of habeas corpus filed by the applicant before the Supreme Court (Supremo Tribunal de Justiça) on 4 May 1998, on the same grounds, was also rejected, by a judgment of 7 May 1998.
The applicant appealed to the Lisbon Court of Appeal against the decision of the investigating judge. The Court of Appeal, by a judgment of 1 July 1998, upheld this decision.
On 13 July 1998, the applicant filed a constitutional complaint before the Constitutional Court against this decision.
By a judgment of 23 September 1998, the Constitutional Court rejected the complaint as ill-founded, referring to the European Court’s judgment in the Kamasinski v. Austria case (judgment of 19 December 1989, Series A no. 168).
The trial opened on 21 September 1998 in the First Chamber of Lisbon Criminal Court (1ª Vara Criminal). The court decided, at the first hearing and as a preliminary issue, that the proceedings could be directed only against the applicant (separação de culpas), the whereabouts of the other eight accused persons being unknown. Several other hearings were held until 9 December 1998.
By a judgment of 5 March 1999, the applicant was convicted of the four offences in question and sentenced to nine years’ imprisonment.
The applicant appealed to the Supreme Court, where the proceedings are currently pending.
b. The applicant’s conditions of detention and his medical situation
According to the applicant, throughout the entire period of his detention he was held in a 5-person cell with 13 other people with little or no provision for recreation or welfare. He developed numerous tumours in his throat and suffered from high blood pressure, high cholesterol and thyroid problems.
In a letter dated 27 March 1998 from the director of the private office of the Minister of Justice to the Portuguese Parliament (on request of one of the applicant’s representatives), the following information concerning the medical situation of the applicant was given :
The applicant was first examined by the prison doctor on 24 April 1997, two days after his arrest. He was again examined on 5 May 1997. As a result, the applicant underwent a certain number of tests as well as an electrocardiogram and abdominal, renal and thyroidal scans.
An endocrinological consultation in a public hospital was scheduled for 30 January 1998 but the applicant did not attend it for lack of transportation. However, the applicant was taken to a private doctor for this consultation on 18 March 1998.
His personal doctor also visited the applicant in prison on 24 July 1997, 8 October 1997 and 10 March 1998.
B. Relevant domestic law and practice
Articles 86 § 1 and 89 § 2 of the Portuguese Code of Criminal Procedure - applicable at the time of the facts - provided that the accused was not given access to the prosecution evidence until the date of the indictment. By a judgment of 19 February 1997, published in the Official Gazette (Diário da República) of 30 April 1997, the Constitutional Court, referring to the European Court’s judgment in Lamy v. Belgium (judgment of 30 March 1989, Series A no. 151), ruled that these provisions would be contrary to the Constitution if interpreted in such a way as to deny access to the case-file to an accused who wished to challenge the prosecution’s views on the lawfulness of the detention.


ITEMID: 001-58855
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF DAKTARAS v. LITHUANIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;No violation of Art. 6-2;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. On 18 February 1996 a prosecutor at the Organised Crime Division of the Office of the Prosecutor General instituted criminal proceedings against the applicant. He was suspected of being an accomplice to the offence of demanding and obtaining a ransom of 7,000 United States dollars for returning the stolen car of a certain J.M.
10. On 1 April 1996 the applicant was charged on four counts, including blackmail (turto prievartavimas) and inciting the victim (poveikis nukentėjusiajam) to make false statements.
11. The pre-trial investigation in the case was conducted by prosecutors at the Organised Crime Division of the Office of the Prosecutor General. It was concluded on 26 September 1996. From that date until 1 October 1996 the applicant and his counsel were given access to the case file.
12. After having access to the case file, the applicant and his counsel requested the prosecution to discontinue the case, arguing that the charges against the applicant were ill-founded and that the case file “contained no evidence [of his] guilt”.
13. On 1 October 1996 a prosecutor of the Organised Crime Division dismissed the applicant's requests. In his decision the prosecutor stated, inter alia:
“After having access to the case file, [the applicant] ... submitted [requests] to discontinue the criminal case on the ground that he had not committed the offences alleged ... and that his guilt ... had not been proved [kaltė ... neįrodyta]. [These] allegations must be dismissed as ill-founded because it has been established [kaltė ... įrodyta] from the evidence collected in the course of the pre-trial investigation that the applicant is guilty of [these] crimes.
Although Henrikas Daktaras has not admitted having committed the alleged offences, his guilt has been proved by the witnesses' evidence, ... video and audio records ... and other material collected in the course of the pre-trial investigation. The fact that H. Daktaras concealed an offence ... is proved by the evidence [given by witnesses S.Č., V.V. and A.L.] ... The fact that H. Daktaras threatened [the victim J.M.] by force to obtain property ... is proved by the evidence [given by S.Č. and the material evidence] ... The fact that H. Daktaras conspired with persons who had committed the theft [of the car] ... is proved by [his own statements] ... The fact that H. Daktaras ... intimidated the victim is fully proved by the evidence [given by J.M., S.Č. and material evidence] ... [The above evidence] is assessed by the prosecution as an incitement to make [J.M.] give false statements ...
Against the above background, in accordance with Article 229 of the Code of Criminal Procedure, it is decided
1. to dismiss [the applicant's] requests entirely, and
2. to inform the persons concerned about the decision.”
14. On 2 October 1996 the Chief Prosecutor at the Organised Crime Division confirmed the bill of indictment and sent the case to the Supreme Court.
15. On the same date the President of the Criminal Division of the Supreme Court transmitted the case to the Vilnius Regional Court.
16. On 18 November 1996 a judge of the Vilnius Regional Court committed the applicant for trial.
17. On 13 February 1997 the judge found the applicant guilty of blackmail and inciting the victim to make false statements. He was convicted as the principal offender on the blackmail charge. He was acquitted on two other counts. The applicant was sentenced to seven years and six months' imprisonment. He was also fined 15,000 litai and his property was confiscated.
18. The applicant appealed, relying on various errors of domestic substantive and procedural law. He pleaded, inter alia, that he had been presumed guilty and that he had been deprived of a fair trial by an independent and impartial court.
19. On 27 May 1997 the Court of Appeal held a full appeal hearing. It amended the judgment of 13 February 1997 in so far as it concerned the applicant's conviction for blackmail, ruling that the applicant was a secondary party, not the principal offender. The sentence remained unchanged.
20. The applicant lodged an appeal with the Supreme Court, pleading that both lower courts had erred in fact and law and that he had not committed the alleged offences.
21. On 3 July 1997 the judge of the Vilnius Regional Court who had delivered the first-instance judgment wrote a letter to the President of the Criminal Division of the Supreme Court in which he contested the conclusions reached by the Court of Appeal as to the level of the applicant's participation in the blackmail offence. In that letter the judge maintained that the applicant ought to have been convicted as the principal offender. The judge requested the President to lodge a petition (kasacinis teikimas) to quash the Court of Appeal's judgment.
22. On 27 August 1997 the President of the Criminal Division of the Supreme Court lodged a petition with the Criminal Division of the Supreme Court to quash the Court of Appeal's judgment. In the petition the President stated, inter alia:
“The judgment of the Court of Appeal should be quashed ... [The appellate court] ... wrongly interpreted and applied the law ... On the basis of the material ... it established that H. Daktaras ... executed the will of the group of persons ... and was the principal offender on the blackmail charge ...
In accordance with Article 417 of the Code of Criminal Procedure, I petition
to quash the judgment of the Court of Appeal of 27 May 1997 ... and to uphold the judgment of the Vilnius Regional Court of 13 February 1997.”
23. On 8 September 1997 the same President of the Criminal Division of the Supreme Court appointed a judge rapporteur in the case. On 23 September 1997 the President also appointed a Chamber of three judges of the Criminal Division of the Supreme Court to examine the case.
24. A hearing was held on 2 December 1997 during which the Chief Prosecutor of the Organised Crime Division requested the Chamber to uphold the petition on behalf of the prosecution, which had not lodged an appeal itself in the case. The applicant requested the Supreme Court to uphold his appeal and reject the petition.
25. On the above date the Supreme Court quashed the judgment of the Court of Appeal and upheld the judgment of the Vilnius Regional Court, rejecting the applicant's appeal and upholding the petition. The Supreme Court found that the applicant had been the principal offender on the blackmail charge.
26. Relevant provisions are as follows:
“In administering justice in criminal matters judges are independent and beholden only to the law. Judges decide criminal cases in accordance with the law and their conscience in conditions which make it impossible for them to be affected by outside matters. Any interference with the judges' or courts' actions in administering justice is prohibited and gives rise to liability under the law.”
No evidence shall have a prejudicial influence on a court ...”
Under the terms of Article 31 a judge in respect of whom there are lawful grounds to fear a lack of impartiality must withdraw. On the same ground the judge can be challenged by the defendant and other parties to the case.
Under section 13 of the Courts Act and Article 2 of the Statute of the Supreme Court, the Supreme Court is composed of the President, Presidents of the Civil and Criminal Divisions and other judges.
Under sections 24 and 35 of the Courts Act and Articles 16 to 18 of the Statute of the Supreme Court, judges of the Supreme Court are professional and permanent judges appointed by Parliament.
According to section 39 of the Courts Act, presidents of divisions are officers having power over the “organisational sphere” of the courts' work. Under the third paragraph of section 39, presidents of divisions may also sit as judges; in such cases they perform the same judicial functions as ordinary judges.
Article 12 of the Statute of the Supreme Court provides that the President of the Criminal Division,
“(1) in examining cases, has the same rights and obligations as other judges. [He] may submit petitions to quash or amend a lower court's judgment ...;
(2) constitutes chambers of judges and appoints their presidents, ... distributes cases among judges ... [and] supervises their examination;
(3) submits proposals to the President of the Court on premiums and bonuses for judges and other officials;
(4) heads the Registry;
(5) organises the case-law research work ...;
(6) confirms the statistical survey of activities ...;
(7) executes other functions under the law and the organisational directives of the President of the Supreme Court.”
Article 14 of the Statute provides that the President of the Criminal Division is responsible for the organisation of appeal hearings.
The fourth paragraph of section 39 of the Courts Act effectively prohibits presidents of courts or presidents of divisions from exerting any influence over or otherwise breaching the independence of other judges in their administration of justice.
Under Article 417 § 4 of the CCP the President of the Supreme Court, the President of the Court of Appeal, presidents of regional courts, and presidents of the criminal divisions of the above courts may submit a petition to quash or amend a particular lower court's judgment. According to Article 417 § 5 the court hearing the petition shall follow the same procedure as on a normal appeal lodged by the parties to the proceedings.
Article 418 § 2 lays down the requirements for lodging an appeal or petition: it should refer to the specific court hearing the appeal, the case and decision at issue, the substance of the decision and the grounds for quashing the lower court's judgment.
Article 31 § 1 of the Constitution provides:
“A person shall be considered innocent until proved guilty in accordance with law by a final judgment of the court.”
Article 11 § 2 of the CCP provides:
“No one shall be declared guilty of having committed an offence or punished by a criminal penalty save by a court judgment in accordance with law.”
Article 118 of the Constitution provides that prosecutors conduct, inter alia, criminal prosecutions and supervise those responsible for the pre-trial investigation.
Under Articles 45 and 46 of the CCP the prosecutor's role is to ensure that the criminal case is instituted lawfully and that the domestic law is complied with during the pre-trial investigation, to press charges at trial, to appeal against any procedural act and to supervise the execution of judgments.
In a decision of 5 February 1999 the Constitutional Court gave, inter alia, the following description of the general role of a prosecutor in the Lithuanian criminal process:
“The Constitution treats prosecutors as part of the judiciary having specific functions. A prosecutor is an officer who supervises the pre-trial investigation ...
The prosecutor can take part in the criminal case right from the outset. ... In accordance with the procedure provided for by law, he commences the criminal prosecution and pursues it by investigating the crime. One of his functions is to supervise the authorities conducting the pre-trial investigation. ... The prosecutor can himself conduct the investigation of any offence. ...
The prosecutor is therefore responsible for the pre-trial stage of the criminal proceedings. ...
The law does not provide the court ... [but] the prosecutor with the procedural means to supervise the pre-trial investigation.”
Under Articles 3, 125 to 128 and 130 of the CCP, an investigator, prosecutor and court are all entitled to institute or discontinue a criminal case and to collect evidence in the case (Articles 18 and 74-76). These functions are exercised according to the stage of the proceedings.
The pre-trial investigation can be conducted by prosecutors working under the authority of the Office of the Prosecutor General, or investigators working for the Ministry of the Interior (Article 142).
Pursuant to Articles 24 and 133 of the CCP the prosecutors ensure that domestic law is complied with by the investigators at the stage of the pre-trial investigation. They are responsible for rectifying any breaches of the law. In doing so, the prosecutors “function independently from other authorities and are beholden only to the law” (Article 24 §§ 2 and 3). Under Article 24 § 4 the prosecutors' decisions are “binding on all authorities and persons”.
Where the pre-trial investigation is conducted by the prosecution, an accused may, while having access to the case file (Articles 225-29 of the CCP), request the prosecutor to “supplement the investigation”. The prosecutor must give a reasoned decision if he dismisses this request (Article 229 § 2). After such a decision, the bill of indictment may be prepared (Article 230).
A complaint by the accused about an act of the prosecutor at the stage of the pre-trial investigation shall be submitted to and determined by a higher prosecutor (Articles 242-44 of the CCP).
After the bill of indictment is confirmed, the case must be transmitted to a court (Article 241 of the CCP). From that stage on “any requests or complaints about the case shall be submitted directly to the court” (Article 241 § 2).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-2