ITEMID: 001-60394
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF KLAMECKI v. POLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-3;No violation of Art. 6-1
JUDGES: Georg Ress
TEXT: 10. The applicant was arrested and detained on remand on 30 November 1991 on suspicion of aggravated fraud of about one billion zlotys. The Wrocław Śródmieście District Prosecutor considered that the detention was necessary in view of the dangerousness of the offence concerned and in order to ensure the proper conduct of the proceedings.
11. On 31 August 1992 the bill of indictment was transmitted to the Wrocław Regional Court. On 13 November 1992 the President of the Court found that the indictment was complete and decided that the case could be heard by the court.
12. From 3 to 10 December 1992 the applicant was treated at a specialist hospital.
13. The first hearing was held on 22 and 23 December 1992 and one of the accused was questioned. The next hearing, set for 26 January 1993, was adjourned as the applicant first requested to be granted access to the case-file, and after the court refused, having regard to the fact that the applicant had already had such access from 7 to 17 September 1992, he stated that he felt unwell. On 27 January 1993 the applicant again unsuccessfully requested access to the file and stated that he could not participate in the hearing on health grounds. The court ordered the applicant’s examination by a specialist in forensic medicine.
14. At a hearing on 2 February 1993 the applicant complained of bad health. The hearing set for 3 February 1993 was then cancelled and adjourned to 11 March 1993. On 11 March 1993 the court adjourned the hearing as its order of 27 January 1993 for the applicant’s medical examination had not been carried out.
15. On 4 April 1993 the applicant submitted a request for release.
16. On 8 and 9 April 1993 the hearing was adjourned as a lay judge and one of the accused were not present. Apparently a new hearing was fixed for 13 and 14 April 1993, but then adjourned to 17 until 21 May 1993.
17. On 26 April 1993 a medical expert opinion was submitted to the Court which stated that the applicant’s health condition did not prevent him from participating in the proceedings and was not incompatible with his detention.
18. On 4 May 1993 the applicant requested his release, invoking Article 6 § 1 of the Convention. He submitted that the bill of indictment did not disclose a reasonable suspicion that he had committed the offence in question. He also complained of the length of his detention.
19. On 6 May 1993 the Wrocław Regional Court refused to allow the applicant’s requests for release of 4 April and 4 May 1993. The court found that the evidence gathered so far supported a reasonable suspicion that the applicant had committed the offences concerned, and that his release would jeopardise the court proceedings, in particular as they were in their initial phase.
20. On 6 May 1993 the Court also informed the applicant that the hearing of 13 and 14 April 1993 had been adjourned "for objective organisational reasons".
21. On 6 May 1993 the applicant withdrew his lawyer’s power of attorney, complaining that the latter had failed to comply with the applicant’s request to contact him.
22. On 11 May 1993 the applicant appealed to the Wrocław Court of Appeal against the decision of 6 May 1993 refusing his requests for release. He submitted that this decision had not been issued within the three-day time-limit provided for by law, and that his lawyer was not entitled to attend the examination of his request, whereas the prosecutor was. He complained that the Regional Court had failed to consider his argument based on Article 6 § 1 of the Convention. He pointed out that the court’s statement that the judicial proceedings were in an initial phase confirmed his complaint that the proceedings were not progressing. On the same day the applicant submitted his further request for release.
23. At the hearing on 17 May 1993 it was established that the Regional Court had intercepted the applicant’s letter to his lawyer and transmitted it to him only on 14 May 1993. The hearing set for 17 until 21 May 1993 was therefore adjourned to 13 and 14 July 1993 in order to allow the applicant time to be assigned an officially appointed lawyer as he had withdrawn his power of attorney for his counsel. Apparently, also on 17 May 1993, the Wrocław Regional Court refused the applicant’s further request for release. The applicant appealed against this decision to the Wrocław Court of Appeal, invoking Article 5 § 3 and Article 6 § 1 of the Convention. He submitted that there had been no progress in the proceedings since 22 December 1992, i.e. the date of the first hearing.
24. On 3 June 1993 the Wrocław Court of Appeal upheld the decision of 6 May 1993 not to release the applicant. The court accepted that the Regional Court had breached Article 214 of the Code of Criminal Procedure in that it had considered the applicant’s request of 4 April 1993 only after a month, instead of within three days. With regard to the applicant’s complaint that the Regional Court had failed to consider his complaints under Article 5 § 3 and Article 6 § 1 of the Convention, the court considered that it was sufficient that the Regional Court’s decision was well-founded and in accordance with Article 217 of the Code of Criminal Procedure.
25. On 21 June 1993 the applicant again requested his release. He submitted that his detention was unjustified and too long. He complained that there was no reasonable progress in the proceedings. On 24 June 1993 the Wrocław Regional Court dismissed this request.
26. On 24 June 1993 the President of the Wrocław Regional Court, apparently in reply to the applicant’s letters, stated that the proceedings were not exceeding a reasonable time. He stated that "the length of the proceedings is due to various circumstances, including the state of your health and the court’s efforts (...) to guarantee your defence rights".
27. In a letter of 1 July 1993 the applicant complained to the Regional Court about the length of the proceedings.
28. On 2 July 1993 the applicant appealed against the decision of 24 June 1993. He stated that this decision was in breach of Article 5 § 3 and Article 6 § 1 of the Convention. On 8 July 1993 the Wrocław Court of Appeal dismissed this request as the applicant had failed to submit any new arguments which would justify his release.
29. The hearing set for 13 and 14 July 1993 was not held as the lawyer of one of the applicant’s co-accused failed to appear.
30. On 6 August 1993 judge A.Z. of the Regional Court informed the applicant in reply to his letter of 1 July 1993 that his complaints about the length of the proceedings were inappropriate. The judge stated that "as two accused were detained on remand, the dates of hearings were being set in the manner foreseen for cases of this kind and in accordance with the existing facilities of the court".
31. On 10 August 1993 one of the lay judges failed to appear and the hearing was adjourned. On 11 August 1993 another co-accused was ill. The hearing was adjourned to 23 August 1993.
32. On 19 August 1993 the Wrocław Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 24 June 1993. The court considered that the applicant had failed to indicate any new circumstances justifying his release.
33. On 23 August 1993 the hearing was discontinued at 12.20 p.m. as one judge had to leave the court urgently.
34. On 24 August 1993 the President of the Wrocław Regional Court informed the Polish Helsinki Committee, to whom the applicant had apparently complained, that the case was complex. He submitted that as the applicant had frequently submitted requests for release, the case-file had to be sent to the Court of Appeal and thus it was impossible to set the dates of the hearing before the Wrocław Regional Court. On 26 and 27 January and on 2 February 1993 the hearing had not been held as the applicant had been ill. Moreover, the applicant had wished to have access to the case-file, which had prevented the court from holding the hearing. The President confirmed that on 8 and 9 April 1993 the lay judge had failed to appear.
35. On 1 September, 17 September and 5 October 1993 no hearings were held as one of the co-accused had failed to appear.
36. On 16 September 1993 the applicant underwent a medical examination in the prison out-patient ward and was subsequently referred to the prison hospital.
37. On 28 September 1993 the applicant wrote a letter to the Minister of Justice, complaining about the length of the proceedings.
38. On 12 October 1993 a medical panel found that the applicant’s condition necessitated a minor surgical intervention in the prison hospital and that his condition could be treated in prison and was not incompatible with his detention.
39. The next hearing was held on 22 October 1993. The hearing set for 15 November 1993 was not held as the judge received a promotion on that day. The hearing set for 3 December 1993 was not held as one of the accused had failed to attend.
40. On 3 December 1993 the Wrocław Regional Court decided to release the applicant. The court considered that the case was no longer in an initial stage and ample evidence had been gathered. Thus, the risk that the applicant would jeopardise the proceedings by hiding or suppressing evidence had diminished. The detention had therefore become devoid of its purpose. The court found no risk of absconding as the applicant wished to get married.
41. Hearings set on 4 and 31 January 1994 were not held as one of the co-accused, W.D., had failed to appear.
42. On 22 March 1994 the Wrocław Medical Academy Institute of Forensic Medicine informed the court that W.D. had failed to comply with the summons for a medical examination. Subsequent summonses were not served on him and the postal authorities informed the court that he had moved.
43. The Wrocław Regional Court set the next date for a hearing for 6 October 1994. This hearing started at 9 a.m. The court decided to separate the case of W.D. from that of the applicant as it transpired that he had left the country, and to continue the hearing. The applicant objected thereto, complaining that his new counsel had not had enough time to study the case-file. The court refused to grant this request. The hearing was nevertheless adjourned at 11.40 a.m. due to a bomb alert in the court.
44. The hearing set for 24 November 1994 was not held as two accused, including the applicant, were ill. The applicant’s lawyer did not submit a relevant medical certificate.
45. The hearing fixed for 16 January 1995 was adjourned due to the applicant’s bad health. The applicant’s counsel stated that he had tried to establish contact with his client, but to no avail. The court adjourned the hearing and ordered the applicant to submit a medical certificate to confirm his bad health. On 26 January 1995 the applicant submitted a sick leave certificate from 16 to 21 January 1995.
46. The hearing set for 1 March 1995 was adjourned for personal reasons concerning the judge. From 27 February to 2 March 1995 the applicant was in a hospital for treatment.
47. On 16 March 1995 the court requested the Institute of Forensic Medicine of the Wrocław Medical Academy to examine the applicant in order to verify whether his health allowed him to participate in the proceedings. The applicant did not comply with the relevant summonses for 18 April and 11 May 1995. The applicant was summoned to the court for 26 May 1995 in order to explain the reasons for his failure to undergo the medical examination. He undertook to comply with the court’s order. However, he subsequently failed again to report for the examination. On 13 July and 22 August 1995 the court again requested the Institute to examine the applicant, but he failed to comply with the relevant summonses.
48. On 25 November 1995 the applicant was re-arrested in connection with another criminal case pending against him. On 6 February 1996 he was examined at the Institute of Forensic Medicine. According to a medical opinion, his health was not such as to prevent him from attending the hearings. On 26 February 1996 the applicant withdrew his counsel’s power of attorney and requested the court to appoint for him a lawyer paid under the legal aid scheme. The court allowed his request by a decision of 4 March 1996.
49. On 5 March 1996 the court decided to re-open the trial as the composition of the panel of judges had changed. At the same hearing the applicant’s lawyer informed the court that the applicant had withdrawn his power of attorney. The court refused the applicant’s request to have the hearing adjourned for lack of a sufficient time to prepare his defence.
50. On 11 March 1996 the applicant challenged all judges of that court. On 15 March 1996 the Wrocław Regional Court appointed a new defence counsel for the applicant. By a decision of 10 April 1995 the Wrocław Court of Appeal dismissed the challenge of the judges as unfounded.
51. On 10 April 1996 one of the co-defendants J.S. was arrested and remanded in custody.
52. A hearing set for 22 April 1996 was not held as the court had failed to inform the applicant’s officially assigned lawyer thereof. On 7 June 1996 the applicant again challenged all judges of the Wrocław Regional Court. On 14 June 1996 the Wrocław Court of Appeal dismissed this motion, and held a hearing, at which two co-defendants were questioned. The next hearing was held on 13 September 1996. On 14 October 1996 the hearing was adjourned as one of the accused had failed to attend. On 25 October 1996 the judge was ill. The next hearing was held on 12 December 1996.
53. On 30 January 1997 the hearing was adjourned as the defence counsel for one of the accused, L.B., failed to attend. At that hearing the applicant complained to the court that his lawyer did not represent him properly. On 3 February 1997 the hearing was struck out of the court’s list as one of the lawyers failed to attend. On 10 February 1996 the applicant’s lawyer requested the court to discharge her from the obligation to defend the applicant, arguing that his statements as to her alleged lack of co-operation with the applicant were untrue. On 28 February 1997 one of the accused failed to comply with the summonses and the court adjourned the hearing. On the same day the applicant and his lawyer withdrew their request for the change of the applicant’s defence counsel.
54. On 14 March 1997 the hearing was adjourned at the applicant’s request, the applicant invoking his bad health. On 11 April 1997 the hearing was discontinued after two hours, as a medical certificate as to the applicant’s bad health had not been submitted to the court by the prison authorities. The court ordered that the applicant be examined by physicians.
55. The next hearing was held on 5 May 1997. The applicant was questioned by the court. His questioning was discontinued and the applicant requested the court to adjourn the hearing in view of his bad health.
56. The hearing scheduled for 20 June 1997 was cancelled at the request of one of the defendants. On 18 August 1997 the Court fixed the dates of the next hearings for 10, 13 and 20 October 1997. On 28 September 1997 the court appointed a new legal aid lawyer for the applicant as the previous lawyer had to step down due to health problems. The hearing scheduled for 10 October 1997 was adjourned at the applicant’s and his new lawyer’s requests as they had not had sufficient time to prepare the defence. The next hearing was held on 20 October 1997. On 31 October 1997 the applicant complained about the allegedly inadequate conduct of the case by his new counsel.
57. The next hearing was held on 18 December 1997. On 22 December 1997 the applicant requested again that a new counsel be appointed for him. At a hearing held on 28 January 1998 the applicant again complained about the alleged lack of competence of his new lawyer and stated that he was not ready to submit any motions in defence. The court adjourned the hearing until 23 March 1998. On 9 February 1998 the applicant again requested that his lawyer be replaced. The subsequent hearings were held on 23 and 25 March 1998.
58. On 27 March 1998 the Wrocław Regional Court pronounced a judgment, by which the applicant was sentenced to three years’ imprisonment. On 24 November 1998 the applicant was served with the written grounds for the judgment. On 3 December 1998 the applicant and on 21 December 1998 his defence counsel appealed against the first-instance judgment. On 25 February 1999 the Wrocław Court of Appeal fixed the date of the hearing to be held in the appellate proceedings. On 25 March 1999 the applicant requested the court to adjourn the hearing as he had been placed in a psychiatric hospital. On 31 March 1999 the request was allowed and the hearing was cancelled.
59. On 6 April 1999 the Wrocław Court of Appeal requested information from the hospital as to the expected duration of the applicant’s stay. On 14 April 1999 the court was informed that the applicant would likely be discharged in the first half of June 1999.
60. A hearing was held on 17 June 1999. On 21 June 1999 the Wrocław Court of Appeal upheld the first instance judgment.
61. The 1973 Code of Criminal Procedure, applicable at the relevant time, listed as "preventive measures", inter alia, detention on remand, bail and police supervision.
62
63. After the bill of indictment was transmitted to the court, orders relating to detention were to be made by the court. A decision concerning preventive measures could be appealed to a higher court.
64. Article 217 of the old Code of Criminal Procedure, provided that a person could be held in detention on remand if there were serious grounds for believing that he or she would abscond, in particular when he or she did not have a permanent address or his/her identity could not be established. Further, detention could be imposed if there were serious grounds for believing that there was a risk of collusion or that an accused would otherwise jeopardise criminal proceedings. Finally, alternative grounds for detention on remand were either the fact that an accused was charged with an offence of a particular danger to society, or that he was a recidivist within the meaning of the Criminal Code.
65. The notion of “danger to society” as set out in the Criminal Code related to the assessment of the seriousness of criminal offences and, if the "danger to society" represented by a given offence was serious, this was also an aggravating circumstance which the court had to take into consideration when determining a sentence.
66. Pursuant to Article 218 of the Code of Criminal Procedure, if there were no special considerations to the contrary, detention on remand should not be imposed or should be lifted, if it involved danger to life or limb or entailed particular hardship for a suspect or his family.
67. After the Interim Law of 1 December 1995 entered into force on 1 January 1996, grounds of imposition of detention on remand were restricted to situations in which there was a reasonable risk of absconding, in particular when his identity could not be established or he had no permanent domicile. Secondly, detention could be imposed if there was a reasonable risk that he would attempt to induce witnesses to give false testimony or to hinder the proper course of proceedings by any other unlawful means.
68. At the material time there were three types of proceedings enabling a detainee to challenge the lawfulness of his detention. Under Article 221 § 2 of the Code of Criminal Procedure he could appeal to a court against a detention order given by a prosecutor (see above). Under Article 222 §§ 2 (1) and 3 he could appeal against a further decision by that court prolonging his detention at a prosecutor’s request. Under Article 214 the detainee could at any time request the competent authority to quash or alter the decision concerning the preventive measure imposed in his case. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged with the court competent to deal with the case, by that court, within three days.
NON_VIOLATED_ARTICLES: 5
6
NON_VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-98909
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BİÇİCİ v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1955 and lives in Istanbul.
6. On 29 October 2003, while attempting to participate in a demonstration in the form of “a press conference” held on Istiklal Street in the Beyoğlu district of Istanbul, the applicant was arrested, together with some 50 to 60 other participants, by police officers at approximately 4.10 p.m. The applicant alleged that the police officers had used disproportionate force to disperse the crowd and to arrest the demonstrators, whereas the Government claimed that the demonstrators had resisted the police and had refused to disperse.
7. Following her arrest the applicant was taken to hospital for a medical examination. The doctor who examined her reported that there were no signs of injury on the applicant's body. The doctor noted, however, that the applicant complained of pain in her right upper arm.
8. On the same date, at 7.30 p.m., the applicant was questioned by the Beyoğlu public prosecutor. The applicant informed the public prosecutor that she had been subjected to ill-treatment by the police, who had used disproportionate force during her arrest. She claimed that she had attended the meeting, organised by a group called “the Peace Mothers' Initiative”, as the President of the Istanbul Human Rights Association, and that she had been arrested by the police for no reason. She stated that she had merely exercised her legal rights and that she had not breached the Meetings and Demonstration Marches Act (Law no. 2911).
9. The applicant was released from police custody on the same day, after being questioned by the Beyoğlu public prosecutor.
10. On 6 November 2003 the applicant lodged a complaint with the Beyoğlu public prosecutor against the police officers who had been involved in the incident and had arrested her. She complained, inter alia, of the unlawfulness of her arrest and the excessive use of force by the police during the arrest.
11. On the same date the applicant was referred to the Istanbul branch of the Forensic Medical Institute by the Beyoğlu public prosecutor. The doctor who examined the applicant noted a 2 x 6 cm ecchymosis on the back of her left leg and concluded that the injury rendered the applicant unfit for work for five days. The doctor further noted that the applicant was suffering from pain in her right shoulder and right arm.
12. On 12 November 2004 the Beyoğlu public prosecutor issued a decision not to prosecute the police officers who had been on duty at the press conference of 29 October 2003. Relying on the incident report prepared by the police officers, the public prosecutor noted that, despite warnings by the police, the demonstrators, who had gathered illegally without obtaining permission and had disturbed public order by blocking the pedestrian zone and tramway, had refused to disperse and the police had therefore been obliged to use some degree of force to disperse them and restore public order. The public prosecutor considered that the force used by the security forces had been in line with section 24 of the Meetings and Demonstration Marches Act and had been justified in the circumstances. In the public prosecutor's opinion, the applicant's injuries were the result of a proportionate use of force which did not amount to ill-treatment or abuse of authority.
13. On 23 December 2004 the applicant lodged an appeal with the Istanbul Assize Court against the above-mentioned decision of the public prosecutor. She claimed that on 29 October 2003 police officers had beaten her during her arrest, causing injuries rendering her unfit for work for five days, as corroborated by the medical report from the hospital. She further alleged that the participants had not blocked the tramway or pedestrian traffic. She therefore asked the Assize Court to order the prosecuting authorities to bring charges against the police officers.
14. On 30 December 2004, having regard to the content of the file and the reasons given by the Beyoğlu public prosecutor, the Istanbul Assize Court dismissed the applicant's appeal.
15. The Istanbul Assize Court's decision was served on the applicant on 16 February 2005.
16. In the meantime, on 7 November 2003, the Beyoğlu public prosecutor had brought charges against thirteen demonstrators, including the applicant, for violation of the Meetings and Demonstration Marches Act. In her defence submissions before the court, the applicant claimed that, in participating in the demonstration, she had merely been exercising her democratic rights.
17. In a judgment dated 19 December 2006, the Beyoğlu Assize Court acquitted the applicant and her co-accused of the above-mentioned charges. The court held as follows:
“[It] was alleged that the accused had breached the Meetings and Demonstration Marches Act on the day of the incident. Having regard to the content of the case file, there is no convincing evidence indicating with sufficient certainty that the accused committed the alleged offence. It appears from the incident report that the security forces took measures following an intelligence report that the Peace Mothers' Initiative, Gök-Der, Tuad and Yakay-Der associations were to hold a demonstration in front of the post office in the Galatasaray district. After the gathering of the group (demonstrators), the chair of the association Yakay-Der stated that they would stage a sit-in in front of the Galatasaray post office. Following a police warning [that the meeting was unlawful], the demonstrators told the police that they would make a press statement and then disperse. However, the police teams did not release the group and continued to keep them within a circle; they then arrested them without giving a proper warning that could be heard by everyone (no evidence was provided to substantiate the assertion that a warning was given). For these reasons, no evidence was adduced to indicate that the accused committed the alleged offence in contravention of the said Act and that [their action] went beyond the exercise of their democratic rights. It is thus considered that the actions of the accused were merely an exercise of their democratic rights [to freedom of assembly]. The [accused] are therefore acquitted of the charges brought against them...”
18. The relevant domestic law can be found in the case of Nurettin Aldemir and Others v. Turkey (nos. 32124/02, 32126/02, 32129/02, 32132/02, 32133/02, 32137/02 and 32138/02, §§ 20-23, 18 December 2007).
VIOLATED_ARTICLES: 11
3


ITEMID: 001-58742
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF ASAN RUSHITI v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. On 1 April 1993 the Graz Regional Criminal Court (Landesgericht für Strafsachen) took the applicant into detention on remand (Untersuchungs-haft) on charges of attempted murder. He was suspected of having, together with an accomplice, tried to kill M.R. in that his accomplice attacked M.R. with a knife, while the applicant prevented him from fleeing. In these and the following proceedings the applicant was represented by counsel.
8. On 1 September 1993 the Graz Regional Criminal Court, sitting as an Assize Court (Geschwornengericht), acquitted the applicant. The jury answered the main question as to attempted murder and the alternative question as to aggravated assault with seven votes "no" to one vote "yes". According to the record of its deliberations (Niederschrift), the jury had answered both questions in the negative as “the evidentiary basis was insufficient”. Following his acquittal, the applicant was released.
9. On 2 September 1993 the applicant, relying on the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz 1969, hereinafter “the 1969 Act”), filed a compensation claim relating to his detention on remand.
10. On 25 November 1993, the Graz Regional Criminal Court, after a first decision had been quashed on appeal, dismissed the applicant's compensation claim. The court was sitting in camera.
11. The court noted that it had heard the applicant on 12 November 1993. It also noted the submissions of the Public Prosecutor's Office of 16 September 1993, proposing that the compensation claim be dismissed. The court, referring to section 2 (1) (b) of the 1969 Act, found that there had been a reasonable suspicion against the applicant, which had not been dissipated, particularly in view of the statement made by the victim at the hearing of 1 September 1993, which was not entirely without credibility.
12. On 3 December 1993 the applicant filed an appeal. He submitted in particular that the Regional Court's reasoning violated the presumption of innocence guaranteed by Article 6 § 2 of the Convention. For the same reason, section 2 (1) (b) of the 1969 Act was unconstitutional. It put the onus of proof as regards the dissipation of the suspicion on the person claiming compensation, even if that person had been acquitted. Further, the applicant claimed that Article 6 of the Convention applied to the compensation proceedings at issue, as they related to a pecuniary claim. He was, thus, entitled to a public hearing and a public pronouncement of the decisions. As there had not been a public hearing at first instance, he requested that such a hearing be held before the court of appeal.
13. On 30 December 1993 the Graz Court of Appeal (Oberlandesgerich) adjourned the proceedings and requested the Constitutional Court (Verfassungsgerichtshof) to give a ruling that section 2 (1) (b) of the 1969 Act was unconstitutional.
14. On 29 September 1994 the Constitutional Court dismissed the request of the Graz Court of Appeal (see below, § 19).
15. On 15 December 1994 the Graz Court of Appeal, sitting in camera, dismissed the applicant's appeal.
The court, referring to the decision of the Constitutional Court, found that in order to determine whether the suspicion against the applicant had been dissipated it was not entitled to examine the statements of the witnesses heard or other results of the taking of evidence in the criminal proceedings, but had to limit itself to the reasons which the jury gave for its finding. The court also referred to case-law according to which the suspicion was only dissipated if either the claimant's innocence had been proven, or if all arguments supporting the suspicion against him had been refuted. An acquittal for lack of evidence did not give an entitlement to compensation unless the innocence of the person concerned had at least become probable. Applying these principles to the facts of the case the court continued as follows:
“It can be concluded here - from the above-mentioned questions which were put to the jury and from the record of that jury’s deliberations - that both the main and the alternative question were answered with seven ‘no’ votes and one ‘yes’ vote and that seven jurors therefore cast a ‘no’ vote in response to the main and the alternative question ‘because the evidence was insufficient’. This means that on the one hand one juror in any case found the applicant guilty, whereas on the other hand the other jurors answered the questions addressed to them in the negative only because they considered the evidence insufficient, in other words, they were of the opinion that the evidence did not suffice to find Asan Rushiti guilty of the charges brought against him. By no means can one draw the conclusion that, as a result of these considerations, the suspicion has been dispelled or Rushiti’s innocence has at least become probable!”
It concluded that the suspicion against the applicant had not been dissipated.
16. This decision was served on the applicant's counsel on 5 January 1995.

17. The relevant provisions of the Compensation (Criminal Proceedings) Act 1969 read as follows:
“(1) A right to compensation arises:...
(b) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in Austria … and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or prosecution is excluded on other grounds, in so far as these grounds existed when he was arrested; ...”
“... (2) A court which acquits a person or otherwise frees him from prosecution … (section 2 (1) (b) or (c)) must decide either of its own motion or at the request of the individual in question or the public prosecutor’s office whether the conditions of compensation under section 2 (1) (b) or (c), (2) and (3) have been satisfied or whether there is a ground for refusal under section 3 ... If the investigating judge decides to discontinue the proceedings, the Review Division concerned shall rule.
(3) Before ruling, the court shall hear the detained or convicted person and gather the evidence necessary for its decision where this has not already been adduced in the criminal proceedings ...
(4) Once the judgment rendered in the criminal proceedings has become final, the decision, which need not be made public, must, as part of the proceedings provided for in paragraph 2, be served on the detained or convicted person personally and on the public prosecutor ...
(5) The detained or convicted person and the public prosecutor may appeal against the decision to a higher court within two weeks.
(6) The court with jurisdiction to rule on the appeal shall order the criminal court of first instance to carry out further investigations if that is necessary for a decision. If the court which has to rule is the court of first instance, the investigations shall be carried out by the investigating judge.
(7) Once the decision has become final, it is binding on the courts in subsequent proceedings.”
18. As a general rule, there is no public hearing in the Court of Appeal. The Court of Appeal rules after sitting in private.
19. In its judgment of 29 September 1994 (VfSlg 13879) the Constitutional Court dismissed the application filed by the Graz Court of Appeal to have section 2 (1) (b) of the 1969 Act annulled as being unconstitutional. It found that section 2 (1) (b) as such did not violate Article 6 § 2 of the Convention which, under Austrian law, has the force of constitutional law. In the light of the Sekanina v. Austria case (judgment of 25 August 1993, Series A no. 266-A), it held that it was not the refusal of a claim for compensation which was contrary to the Convention, but the re-examination of the question of guilt after a final acquittal. In the Constitutional Court’s view only the separate re-assessment of evidence on the basis of the contents of the whole court file was likely to infringe the presumption of innocence. Nevertheless, the Constitutional Court observed that it would be desirable to amend section 2 (1) (b) of the 1969 Act in order to clarify the law.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-2


ITEMID: 001-67001
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: RAHOTCHI v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Oleg Rahotchi, is a Moldovan national, who was born in 1947 and lives in Chisinau.
The applicant alleges that his grandfather was a victim of political repression in 1941, when he had to flee to Romania to save himself from persecution. He submits that his parents remained living in the house but were evicted in 1944 without any reason.
On 24 October 1949 a local court found that the applicant's grandfather was in all probability killed during a bombing of Chisinau in June 1944 and declared him missing. The court also prolonged the term for accepting the inheritance of the applicant's grandfather's house in favour of the applicant's father.
In 1952 the family house and the land around it were declared “property without an owner” and thus State property.
On 10 May 1995 the applicant's father obtained a judgment of the local court confirming that the applicant's grandfather had been subjected to political repression and that his house and land were nationalised.
In 1995 the applicant's father requested the return of the house and land which were by then owned by a third party. On 23 June 1996 the Centru District Court found in his favour and awarded him the house and the land claimed.
In October 2001 the Prosecutor General filed a request for annulment of the judgment of 10 May 1995 asking the court to reject the claim that the applicant's father had been subjected to political repression. On 19 December 2001 the Supreme Court of Justice upheld the Prosecutor General's request for annulment and quashed the 1995 judgment. It ordered a full re-hearing of the case.
On 11 April 2002 the applicant's father died. The applicant continued the proceedings.
On 23 May 2002 the Centru District Court awarded the applicant the house and land. On 9 October 2002 the Chişinău Regional Court upheld that judgment in regard to the house but not in regard to the land.
On 11 February 2003, the Court of Appeal set aside that judgment and rejected the applicant's claim because the crucial factual circumstance of repression against his father had not been proven. That judgment was final.
The Court refers to its description of the relevant domestic law and practice in its decision of even date herewith in the case of Frunze v. Moldova (Application no. 42308/02).


ITEMID: 001-96444
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BUCURIA v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;No violation of P1-1
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. On 25 November 2002 the applicant company dismissed M. from his job. On 20 December 2002 M. initiated court proceedings seeking his re-instatement.
7. After numerous postponements of the hearing at M.’s request, the Buiucani District Court found in his favour on 5 February 2004.
8. The applicant company appealed. On 22 April 2004 the Court of Appeal quashed the first-instance judgment and adopted a new one, rejecting all of M.’s claims. The court found that M. had not submitted any evidence to support his claim that on 1 November 2002, when he was absent from work, he had been at a close relative’s funeral.
9. M. lodged an appeal in cassation. The first hearing before the Supreme Court of Justice was scheduled for 23 June 2004. On 18 June 2004 the applicant company informed the court that its representative would be away for the day and asked for a postponement of the hearing.
10. According to the applicant company, it did not hear from the court and thus did not submit its written reply to M.’s appeal, as it was waiting for a summons for a new date. On 15 July 2004 it enquired about the new date of the hearing. In response, it was informed that M.’s appeal had been examined on 7 July 2004 and fully allowed.
11. In its judgment, the court relied, inter alia, on evidence of M.’s presence at a close relative’s funeral and on the trade union association’s opposition to the dismissal.
12. Having examined the materials in the file, the applicant company found that its request for a postponement had been accepted by the court on 23 June 2004 and a new date for the hearing had been set for 7 July 2004. There was also a summons for that date, which had been signed only by M.
13. The applicant company lodged a request for revision of the judgment of the Supreme Court of Justice. It informed the court that it had not received any summons for 7 July 2004 and drew the court’s attention to the absence in the file of any evidence regarding the delivery of the summons. It invoked Article 6 of the Convention.
14. On 27 October 2004 the Supreme Court of Justice rejected the request. It found that the court had sent the summons to the applicant company’s address on 24 June 2004 and that the applicant company had failed to appear at the hearing on 7 July 2009 without informing the court. The court did not see any reason to believe that the applicant company had not received the summons since the stub from the summons proved that it had been sent out and since “there was no evidence that the summons had not been received”. It added that, under Article 444 § 2 of the Code of Civil Procedure (CCP, see below), the failure of one of the parties to appear did not prevent the court from examining the case and that, under Article 449 CCP, the examination of the case in the absence of a party was not a ground for the revision of the judgment.
15. The relevant provisions of the Code of Civil Procedure read as follows:
“Article 105. Service of the summons...
(1) The summons ... shall be sent by registered mail with confirmation of delivery or through a person authorised by the court. The date of service of the summons ... shall be written on the summons, as well as on the receipt, which shall be returned to the court.
...
(5) The summons ... addressed to a natural person shall be served on him or her personally and shall be countersigned on the receipt. The summons ... addressed to a legal person shall be served on the authorised employee and shall be countersigned on the receipt; if such a person is absent, the summons shall be served on another employee in the same conditions...”
“Article 441
... (2) The President of the Chamber [of the Supreme Court of Justice] shall set, within one month, the date for hearing the appeal in cassation and inform the parties accordingly. A copy of the appeal in cassation shall be sent to the other parties together with a summons to attend the hearing, indicating that a written reply should be submitted to the court not later than five days before the hearing.
Article 444
... (2) The appeal in cassation shall be examined after the parties have been summoned. However, their failure to appear shall not prevent the examination of the appeal.”
16. On 12 December 2005 the plenary meeting of the Supreme Court of Justice adopted a decision “Regarding the application of the rules of the Code of Civil Procedure to the examination of cases by the first-instance courts”. In point 5 of that decision the court noted that examining a case in the absence of a party which had not been properly summoned was contrary to the law. It added that under Article 105 § 5 of the Code of Civil Procedure a person should be considered as lawfully summoned only if he or she had been personally served with the summons and had countersigned the receipt.
17. In the following judgments adopted by the Supreme Court of Justice on 30 January 2008 (no. 2ra-3/08), 4 June 2008 (no. 2ra-1097/08) and 25 June 2008 (no. 2r-156/08), that court confirmed the requirement of personal service of the summons and the counter-signature by the addressee, failing which the summons was considered as not having been properly served.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-96151
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SHASTIN AND SHASTINA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicants were born in 1932. The first applicant lives in Slovyansk. The second applicant lived in the same town before his death.
5. At the material time the applicants worked at the State Soda Plant (ВАТ «Содовий завод»).
6. On 24 October 1997 and 5 June 1998 the Slovyansk Town Court awarded the first applicant 1,752.56 and 717.74 Ukrainian hryvnias (UAH) in salary arrears to be paid by the above-mentioned company.
7. On 24 October 1997 and 28 March 2001 the Slovyansk Town Court awarded the second applicant UAH 940.84 and UAH 715.63 in salary arrears to be paid by the above-mentioned company.
8. These decisions became final and the State Bailiffs' Service instituted proceedings to enforce them.
9. On 3 January 2001 the Donetsk Regional Arbitration Court (after June 2001 the Donetsk Regional Commercial Court) instituted insolvency proceedings against the debtor company. On 4 September 2003 the court, having declared the debtor insolvent, ordered its liquidation, which is still pending.
10. The decisions given in the applicants' favour have not been executed.
11. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
VIOLATED_ARTICLES: 6


ITEMID: 001-106427
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ALIM v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-1-f;Violation of Art. 8 (in case of expulsion from Russia);Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 4. The applicant was born in 1981 and lives in the Krasnodar region.
5. According to the applicant, in 1995 he signed a contract with a Russian football club as a football player, obtained a Russian visa and settled in Russia. Later on, he gave up football because of an injury and entered (some time between 1998 and 2002) a higher educational institution in Krasnodar.
6. It appears that since 2003 or 2004 the applicant has been living in the Krasnodar region with a Russian national, Ms A., as common-law husband and wife. The applicant has been lawfully resident in Russia at least since 20 October 2004. In April 2005 Ms A. gave birth to a son. The applicant formally acknowledged paternity. The boy was given the applicant’s last name and patronymic.
7. On 20 June 2006 the applicant was expelled from the University because of his failure to attend classes. It appears that on 9 September 2006 the document authorising his stay in Russia (apparently a student visa) was revoked.
8. According to the applicant, he applied to a private firm for assistance in obtaining or renewing his visa. It is alleged that an employee of this firm handed over the applicant’s passport to the local Federal Security Office.
9. On 25 October 2006 Ms A. gave birth to a daughter. Although for unspecified reasons the applicant did not formally register paternity, he never contested it and the girl has his first name as a patronymic.
10. On 3 November 2006 the applicant was arrested by officers of the Russian Federal Migration Service (“FMS”). On the same day the Oktyabrskiy District Court of Krasnodar found the applicant guilty of the administrative offence of violating the residence regulations for foreign nationals (see paragraph 26 below) and imposed on him a fine of 1,500 Russian roubles (RUB). The applicant was then released. He did not appeal against this court decision and paid the fine.
11. As the applicant had no valid authorisation to remain in the country he was provided with a transit visa valid from 7 to 16 November 2006, to enable him to leave Russia. However, he did not leave the country, because, as he explained, his wife had recently given birth to their second child and he had to take care of their first child.
12. The applicant stated that between 1 and 10 January 2007 he could not make any arrangements to regularise his residence status due to the closure of public offices during the public holidays in Russia.
13. On 11 January 2007 the applicant was subjected to an identity check by FMS officers. As he had no valid document, the officers arrested him and took him to the FMS premises, where they drew up an administrative offence report concerning a violation of residence regulations for foreigners (see paragraphs 26 and 33 below). The report reads as follows:
“[The applicant] was subjected to an identity check and could not provide evidence of his compliance with the requirement of temporary registration for a period longer than three days of residence...
I have been informed of my procedural rights, including the right to have access to the record and other materials, the right to legal assistance...Court proceedings, which may result in an administrative arrest or administrative removal from Russia, should be carried out in the presence of the person concerned...[the applicant’s signature]
The person’s explanations: {in handwriting in the Russian language} I did not have enough time to renew my registration status.”
14. According to the applicant, after his arrest he asked in vain to see a lawyer and an interpreter. Having drawn up the report, the FMS officers told the applicant where he should sign it, which he did. One of them wrote down the applicant’s oral explanations (see above). In the applicant’s submission, his language skills were at the time limited: although he could speak and understand some Russian, he had no writing skills.
15. Later the same day the applicant was taken to the Leninskiy District Court of Krasnodar. The court held a hearing, at which, however, no lawyer or interpreter was designated to assist the applicant. According to the applicant, he was unable to make oral submissions to the court concerning his family status. The District Court judgment reads as follows:
“[The applicant] had arrived in Krasnodar in November 2004, for educational purposes. During an identity check on 11 January 2007 at his place of his residence it emerged that he had had offence report, the court considers that [the applicant] violated the residence regulations for foreign nationals and thus committed an offence under Article 18.8 of the Code of Administrative Offences.”
The court sentenced the applicant to a fine in the amount of twenty times the minimum wage (RUB 2,000). The court also ordered the administrative removal of the applicant from Russia, and that he be detained until removal in a special detention facility situated in the village of Kopanskoy.
16. On 22 January 2007 a lawyer appealed on behalf of the applicant against the first-instance judgment, requesting that the administrative removal be annulled. He argued that the administrative offence report was unlawful, as the applicant had not been provided with an interpreter at the FMS. He also mentioned that the removal would affect his client’s family life, arguing as follows:
“The court failed to examine the entirety of the relevant circumstances...Since 2003 [the applicant] has been living with a Russian national, A., and has two children, born in 2005 and 2006...These circumstances show that he has a family life...The court did not provide reasons for applying a subsidiary penalty of administrative removal in respect of [the applicant] and did not take account of the matters relating to his family life in Russia. Nor did the court assess the fact that administrative removal would prevent [the applicant] for five years from obtaining permission for temporary residence in Russia. The court should have provided reasons for considering that removal was the only way of striking a fair balance between the private and public interests at stake.”
17. On 24 January 2007 the Krasnodar Regional Court dismissed the appeal and upheld the first-instance judgment. Apparently, no oral hearing had been held. The appeal court stated as follows:
“The argument relating to the existence of a relationship with A. cannot be considered as a ground for residence in Russia without valid permission issued by the competent authority. In addition, [the applicant] had already been fined for a similar offence, whilst no administrative removal had been ordered. Taking account of all circumstances, including [the applicant’s] personality and both mitigating and aggravating circumstances, it should be concluded that the first-instance court issued a lawful decision.”
The appeal court further stated that, according to the administrative report, the applicant had been informed of his rights but had not asked for an interpreter and had made a handwritten note in Russian on the report.
18. The applicant’s lawyer continued to complain about the measure of administrative removal against his client. On 2 March 2007 the Regional Prosecutor’s Office informed the lawyer that the removal was lawful. On or around 14 March 2007 the applicant lodged an application for supervisory review in respect of the court decisions of 11 and 24 January 2007. On 2 April 2007 the Regional Court informed the lawyer that his complaint had been examined by way of supervisory review and that no violations had been found.
19. On an unspecified date, the applicant lodged an application for supervisory review before the Supreme Court of Russia. On 4 May 2007 a judge of the Supreme Court rejected it. He stated that the absence of an interpreter could not serve as a reason for quashing the decision, that the applicant had not registered a marriage with Ms A. and that the defence had not provided the district court or the supervisory-review court with evidence confirming that the applicant was the father of the two children.
20. According to the applicant, the FMS officers repeatedly told him that the State authorities had no funds to pay for his expulsion and told him to return to Cameroon at his own expense. According to the Government, since the applicant’s national passport had expired on 6 June 2007 it was necessary to make arrangements to renew it.
21. By a letter of 6 July 2007 the Regional Prosecutor’s Office informed Ms A. that the removal order could not be enforced because no funds had been allocated for this purpose in the federal budget and the applicant’s passport had expired. It was noted that arrangements were being made by the Embassy of Cameroon to issue a departure certificate and travel documents to the applicant. On 9 July 2007 the Embassy issued a travel document. Apparently, Ms A. purchased for the applicant a train ticket to Moscow.
22. The applicant was released on 16 July 2007. In March 2011 the applicant’s lawyer submitted to the Court a letter from the applicant. In that letter the applicant stated that after his release he had been living with his family in the Krasnodar Region; he had to be discreet because he did not want to be arrested and because the order of administrative removal against him remained enforceable; he could no longer regularise his stay in Russia; he could not work or initiate any administrative procedures concerning marriage or paternity. By April 2011 the removal measure had not been enforced in respect of the applicant.
23. From 11 January to 16 July 2007 the applicant was detained in Kopanskoy detention facility.
24. According to the applicant, during his detention he was kept in a metal trailer. In winter the temperature in the trailer was at times as low as 5 degrees Celsius, while in summer it was very hot inside. The applicant was provided with food once a day. He was obliged to do unpaid physical work. His state of health deteriorated significantly, to the extent that an ambulance was called for him on several occasions.
25. According to the Government, in the living quarters of the detention centre each detainee was provided with an individual bed, bedding and bedside table. The living quarters provided access to water and electricity. A shower room was made available to detainees. Each detainee was afforded three square metres of floor space. Each unit had its own heating system. The applicant was provided with the requisite medical assistance. For instance, on 24 April 2007 he was admitted to hospital because of an abdominal contusion. The applicant received visits from his lawyer, Ms A. and other persons, who supplied him with food and clothes. No detainee was required to work in the detention facility.
26. Article 18.8 (1) of the Code, in its version in force in January 2007, concerned the following violations of residence regulations by foreign nationals: absence of documents confirming the right to reside in Russia and non-observance of the registration procedure or residence procedure. The above violations were punishable by a fine with or without administrative removal from Russia.
27. A deportation order is enforced by transferring the person concerned to the authorities of a foreign State or by the voluntary departure of this person under the supervision of the deporting authority (Article 32.10 § 1). A court is empowered to detain the person concerned until his actual deportation (Article 32.10 § 5). The detainee should be kept at the place assigned for this purpose or in specialised detention facilities, which should have appropriate sanitary conditions and prevent voluntary departure (Articles 27.3 and 27.6 of the Code). The detainee should be fed and given medical assistance in compliance with the rules adopted by the Government.
28. In ruling no. 6-П of 17 February 1998 the Constitutional Court held, with reference to Article 22 of the Russian Constitution, that detention of a person to be removed from Russia for more than forty-eight hours required a court decision, which should establish that detention is indispensable for enforcing the removal; the court should assess the lawfulness and reasons for detention; detention for an indefinite period of time would be unacceptable since it would be capable of amounting to a separate form of punishment, which is not prescribed by the Constitution.
29. Article 31.9 of the CAO provided, at the time, that a decision imposing an administrative penalty could not be enforced after the expiry of a one-year period since the date on which this decision had become final. This period could be suspended if the defendant had impeded or was impeding enforcement proceedings.
30. Section 5 of the Act provides that a foreigner should leave Russia after the expiry of the authorised period, except when on the date of expiry he has already obtained an authorisation for extension or renewal, or when his application for extension and the relevant documents have been accepted for processing. A deportee should bear the cost of his or her deportation unless he has no means (section 31 § 5 of the Act). The deportee should be detained under a court order in a specialised detention facility until deportation (section 31 § 9).
31. Section 7 § 1 (3) of the Act provides that a temporary residence permit could not be issued to a foreigner who had been deported from Russia within the previous five years.
32. In decision no. 86-АД05-2 of 7 December 2005, the Supreme Court of Russia considered that it was incumbent on a national court to examine whether enforcement of a deportation order was compatible with Article 8 of the Convention. Given that section 7 of the Foreigners Act prevented a deportee from claiming a temporary residence permit for five years, “a serious issue [could] arise as to an interference with [the persons’] right for respect of their family life”. In another decision, the Supreme Court varied its reasoning, stating that enforcement of a deportation order “results in the violation of fundamental family ties and impedes the family’s reunification” (decision no. 18-АД05-13 of 24 January 2006). The Supreme Court subsequently considered that a deportation order should be based on considerations which confirm the necessity of such a measure “as the only possible way of ensuring a fair balance between public and private interests” (decision no. 86-АД06-1 of 29 March 2006).
33. Until 15 January 2007 the Foreigners Act contained provisions concerning registration of foreigners. Foreigners had to apply for “registration” within three days of arrival in Russia (sections 20 and 21).
34. Under section 27 of the Act re-entry should be refused to a foreign national for five years of the date on which he or she has been previously subject to administrative removal from Russia.
35. Article 47 of the Family Code provides that the rights and obligations of parents and their children are based on their descent/parentage, which has been lawfully established. Paternity of a person who is not married to the child’s mother should be established by a joint declaration to a competent authority or in court proceedings (Articles 48 and 49).
36. As confirmed by the Constitutional Court (decision no. 26-O of 17 May 1995), Russian law does not recognise “unregistered marriage”, which does not entail any legal consequences.
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-103625
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF BENET PRAHA, SPOL. S R.O.,  v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert
TEXT: 5. The applicant, BENet Praha, spol. s r.o., is a limited liability company incorporated under Czech law with its registered seat in Prague.
6. Between 1994 and 1997 the applicant company dealt in ferrous alloys.
7. In April 2001 customs authorities initiated a set of administrative proceedings against the applicant company in order to check the accuracy of the customs debt (concerning customs plus VAT) the company had paid during the aforementioned period of time.
8. Simultaneously, criminal proceedings were instituted against a person, who was a manager (jednatel) of the applicant company during that period of time, on suspicion of tax evasion while he was managing the applicant company. According to the Government the damage caused to the State exceeded 200,000,000 Czech korunas (CZK; 7,770,000 euros (EUR)).
9. Within the framework of the criminal proceedings a search of the applicant company's premises was carried out on 24 April 2001. Cash in several currencies in the total amount of approximately CZK 20,000,000 (EUR 770,000) and several documents such as financial files, books of accounts and business documents were seized. According to the applicant company these documents and most of the cash have not yet been returned to it.
10. On 25 and 27 April 2001 the prosecuting authorities seized all of the applicant company's assets deposited on its five bank accounts on the suspicion that they constituted profits from the criminal activities of the former manager. The applicant company's bank accounts contained at that time funds equivalent to CZK 98,458,516 (EUR 3,786,866). The seizure orders, which were notified to the applicant company on 8 October 2001, did not specify what assets had been seized, nor to what amount. This was remedied on 28 November 2001 by the Prague High Prosecutor (vrchní státní zástupce) who amended the original decisions by writing in the sums to be seized. While doing so, he froze all assets deposited on the applicant company's accounts on that day, which included payments which had come in after 25 April 2001 and 27 April 2001 respectively. The applicant company's assets amounting to CZK 101,909,105 (EUR 3,919,580) were thus seized.
11. Simultaneously with the criminal investigation, the customs and tax administrative proceedings resulted in the delivery of numerous payment orders assessing duty payable by the applicant company. With all of its assets frozen, the applicant company requested the prosecuting authorities on a number of occasions to lift the seizure in order to discharge these duties, but only few of these requests were granted. Its appeals did not suspend the effect of those orders payable within thirty days of delivery. Consequently, the company had to take out a loan, among other measures adopted to overcome this situation, and avoid insolvency, as it was obliged to pay under these orders a sum totalling CZK 55,000,000 (EUR 2,115,385).
12. Between 2004 and 2005, upon the applicant company's appeals, all of the payment orders and other decisions adopted by tax and customs authorities imposing the duties on the applicant company were quashed as unlawful either by superior authorities or administrative courts. The tax proceedings were discontinued and sums paid by the applicant company upon the orders reimbursed accordingly.
13. The former manager has been prosecuted for acts committed in his capacity as the manager of the applicant company and in the context of its business activities. On 4 June 2009 the former manager was acquitted by Prague Municipal Court (městský soud) from some of the charges, and on 30 April 2010 Prague High Court (vrchní soud) upheld that judgment. The investigation concerning other charges is apparently still pending. During the investigation the prosecuting authorities, inter alia, collected over 100,000 pages of documentary evidence, interviewed several hundred witnesses, including homeless persons with unknown whereabouts whose names the accused had allegedly used in sham transactions to evade customs and other duties, and requested legal assistance from the competent authorities of sixteen countries.
14. In December 2001 the Frýdek-Místek Customs Office (celní úřad) ordered the applicant company to pay customs duties in the amount of CZK 280,672 (EUR 9,955).
15. In May and June 2002 the Prague 4 Customs Office ordered the applicant company to pay customs duties of CZK 3,361,940 (EUR 119,242).
16. On 6 June 2002 the High Prosecutor granted the applicant company's request for the seizure to be lifted for the sum of CZK 280,672.
17. On 5, 17 and 21 June 2002 respectively, the applicant company requested the High Prosecutor to lift the seizure in order to enable it to pay the customs duties ordered in May and June 2002.
18. On 11 July 2002 the High Prosecutor dismissed its requests, finding that the orders had not yet become final. According to the prosecutor, it was premature to lift the seizure under these circumstances, as such a step might have been contrary to the interests pursued by the prosecuting authorities.
19. The applicant company appealed to the High Court, which dismissed its appeal on 27 August 2002.
20. On 18 November 2002 the applicant company lodged a constitutional appeal (ústavní stížnost) maintaining that the customs authorities, together with the prosecuting authorities, had misused the law to its detriment and consequently had violated Article 4 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) (hereinafter “the Charter”).
21. In December 2002 the Constitutional Court (Ústavní soud) invited the respondent parties to the proceedings, the High Court and the High Prosecutor, to submit written observations on the applicant's constitutional appeal pursuant to section 42(4) of the Constitutional Court Act.
22. The High Prosecutor did not submit any observations. The High Court submitted written observations, referring to the reasoning of its impugned decision. It expressed the view that the applicant's constitutional appeal should be dismissed. This submission was not communicated to the applicant company.
23. The Constitutional Court also requested the Prague High State Prosecutor's Office to send it the criminal file in the context of which the seizure had been carried out. The Constitutional Court made copies of the relevant documents, which were included in the case file of the Constitutional Court. Subsequently the criminal file was returned to the Prosecutor's Office on 29 May 2003.
24. On 22 May 2003 the applicant company's acting manager consulted the case file at the Constitutional Court. The next day he sent a letter to the court with the following text:
“On 22 May 2003, when consulting the case file, I found that it should also include nine files [covering the criminal proceedings] submitted by the Prague High Prosecutor ... [A]bout nine files annexed to the reply of the Prague High Prosecutor submitted upon the Constitutional Court's invitation of 5 December 2002 were dispatched on 8 January 2003 ... and delivered to the Constitutional Court on 9 January 2003.
At the time of my study of the case file these nine files had been sent somewhere for consultation. ... I kindly ask you to set another date on which consultation of the case file including the aforesaid documentary evidence, will be possible.”
25. In a letter of 29 May 2003 from the Constitutional Court judge, the applicant company's acting manager was told to make a direct approach to the High Prosecutor's Office to which the file in question had been returned. The same letter also informed the representative of the applicant company that he was free to inspect the Constitutional Court's file after arranging a visit to do this with the court's registry.
26. In a letter of 5 June 2003 the applicant company's acting manager asked the Constitutional Court judge to remedy the situation and ensure the applicant company had access to those criminal files. The latter replied, on 1 July 2003, that pursuant to section 30(1) of the Constitutional Court Act, a party to the proceedings must be legally represented. He further stated that the criminal case file was not a Constitutional Court file, but subject to the Code of Criminal Procedure, in particular Article 65, which governs access to criminal files.
On 11 March 2004 the Constitutional Court dismissed the applicant company's constitutional appeal (II. ÚS 708/02). It held in particular:
“As it appears from the decision refusing to lift the seizure of the assets, in the High Prosecutor's view, to lift it could jeopardise the purpose of the criminal proceedings. ... [The High Court] shared his opinion ... In its written observations, it found that there was no ground justifying the conclusion that the seizure of the [applicant company's] assets ... was no longer necessary.
In the present case, the Constitutional Court did not consider the conduct of the State authorities a misuse of law to the applicant company's detriment, contrary to the basic requirements of fairness and of Article 4 of the Charter. The mere fact that the applicant company was not successful in its request cannot be in itself considered as violating its right to a fair trial.”
27. On 18 March 2004 the Constitutional Court dismissed as manifestly ill-founded another applicant company's constitutional appeal regarding a decision of the High Court to reject another applicant company's request to partially lift the seizure.
28. In May and June 2002 the Prague II Customs Office ordered the applicant company to pay customs duties in the amount of CZK 16,527,646 (EUR 584,724).
29. On 20 August 2002 the High Prosecutor dismissed the applicant company's request of 23 July 2002 for the seizure to be partially lifted in order to enable it to pay this amount.
30. At the applicant company's request the Customs Office postponed the time-limit for payment of the company's customs duties until 28 February 2003.
31. On 20 September 2002 the applicant company again requested the High Prosecutor to lift the seizure in order to enable the company to pay the customs duties ordered in May and June 2002. Its request was, however, refused by the prosecutor on 23 October 2002. This decision was approved by the High Court on 11 December 2002.
32. On 10 December 2002 and 10 February 2003, the High Prosecutor partly lifted the seizure covering the sum of CZK 16,527,645. The applicant company then discharged its customs debt. However, as it had not done so in time, the Customs Office ordered it to pay a penalty of CZK 232,423 (EUR 8,223).
33. On 10 October 2002 the High Court dismissed the applicant company's appeal against the High Prosecutor's decision of 20 August 2002.
34. On 16 December 2002 the applicant company lodged a constitutional appeal against the High Court's dismissal.
35. At the invitation of the Constitutional Court the High Court submitted written observations, referring to the reasoning of its impugned decision. It expressed the view that the applicant's constitutional appeal should be dismissed. This submission was not communicated to the applicant company.
36. The appeal was dismissed as manifestly ill-founded by the Constitutional Court on 24 August 2004 (I. ÚS 723/02).
37. On 4 November 2002 the Mladá Boleslav Customs Office ordered the applicant company to pay customs duties in the amount of CZK 14,371,989 (EUR 508,460).
38. On 12 and 29 November 2002 and 3 January 2003 respectively the Kladno Customs Office ordered the applicant company to pay customs duties amounting to CZK 1,219,922 (EUR 43,159).
39. On 12 November 2002 and 29 January 2003 the applicant company requested the High Prosecutor to lift the seizure in order to enable the company to pay its customs duties.
40. On 25 March 2003 the High Prosecutor decided not to grant the company's requests.
41. On 2 July 2003 the High Court dismissed an appeal by the applicant company of 2 April 2003 challenging the High Prosecutor's refusal to lift the seizure.
42. On 13 October 2003 the applicant company lodged a constitutional appeal alleging a violation of Article 4 of the Charter.
43. Upon the invitation of the Constitutional Court the High Court and the High Prosecutor submitted written observations. They expressed the view that the applicant's constitutional appeal should be dismissed. These submissions were not communicated to the applicant company.
44. On 15 December 2004 the Constitutional Court dismissed the applicant company's constitutional appeal as manifestly ill-founded (I. ÚS 538/03).
45. On 2 June 2003 the High Prosecutor decided not to grant the applicant company's request of 19 May 2003 to lift the seizure.
46. On 20 August 2003 the High Court, upon the applicant company's appeal of 9 June 2003, upheld the prosecutor's refusal.
47. On 11 November 2003 the applicant company introduced a constitutional appeal challenging the aforesaid decisions and alleging, inter alia, that its property rights continued to be limited contrary to the national law.
48. At the invitation of the Constitutional Court, the High Court submitted written observations, referring to the reasoning of its impugned decision. It expressed the view that the applicant's constitutional appeal should be dismissed. This submission was not communicated to the applicant company.
49. Its appeal was dismissed as unsubstantiated by the Constitutional Court on 9 February 2005 (IV. ÚS 585/03).
50. On 25 May 2004 the applicant company requested the High Prosecutor to lift the seizure of its assets, maintaining in particular that it had discharged all its customs duties.
51. On 16 December 2004 the prosecutor dismissed the request, holding that there was a reasonable suspicion that the assets represented profit from the criminal activities of the accused manager.
52. On 23 December 2004 the applicant company appealed to the High Court.
53. On 21 February 2005 the High Court accepted in principle that prolonged seizure of assets could constitute a disproportionate interference with property rights, but did not find such a disproportionality in the applicant company's case and thus rejected its appeal.
54. On 26 July 2005 the applicant company appealed to the Constitutional Court, complaining of excessive length of the seizure of its assets.
55. Upon the invitation of the Constitutional Court, the High Court and the High Prosecutor submitted its written observations. The High Court proposed that the applicant's constitutional appeal be dismissed. The High Prosecutor informed in detail on several aspects of the criminal proceedings. He also addressed the issue of the length of the seizure by stressing the extent and complexity of the investigation and the need for foreign cooperation. He also proposed to dismiss the appeal. These submissions were communicated to the applicant company in September 2005. The applicant company reacted by sending a letter it had received from the Ministry of Finance which contained an assurance that all money held by the customs authorities would be returned to the applicant company. The letter also contained an apology from the Ministry for problems arising in the complex case of the applicant company.
56. On 13 January 2006 the Constitutional Court again requested the High Prosecutor to inform it about the stage the investigation had reached and when it was expected to be finished. On 20 January 2006 the High Prosecutor submitted to the court a one-paragraph reply saying that almost all the sixteen States from whom assistance had been requested had responded and it was expected that they would send the required materials before April 2006. He further informed the court that he expected to conclude the investigation by mid-2006 and that it was highly likely that all the accused persons would be tried before a court. These submissions were not communicated to the applicant company.
57. On 9 February 2006 the Constitutional Court rejected the appeal as manifestly ill-founded (III. ÚS 394/05). It held that the seizure of the assets was still proportionate in view of the complexity of the investigation and in this context it considered important the assurance of the High Prosecutor that the investigation should be finished that year.
58. On 30 January 2008 the Constitutional Court found a violation of the right to property of a company, Benet Czech, spol. s r.o., which was in the same position as the applicant company. It held that the length of the seizure, over six years, was unreasonable, which thus disrupted the fair balance between the general interest of fighting serious crime and the protection of the rights of the applicant company. Consequently, the applicant company lodged another request for the seizure of its bank accounts to be lifted referring to this decision of the Constitutional Court.
59. On 6 March 2008 the High Prosecutor lifted the seizure of the applicant company's bank accounts, holding that the conclusions of the Constitutional Court also applied to the applicant company.
60. Section 30(1) provides that the applicant must be represented in the proceedings before the Constitutional Court by an attorney.
61. Section 32 provides that parties and joined parties are entitled to comment on a constitutional appeal, to make submissions to the Constitutional Court, to consult a case file (with the exception of records of voting), to make excerpts therefrom and copies thereof, to adduce any evidence, to take part in any oral hearing in the matter, and to assist at any taking of evidence.
62. Under section 48, the Constitutional Court must take all evidence necessary to establish the facts of the case. It decides what evidence submitted by parties should be accepted and may take evidence which has not been adduced by the parties. It may assign a judge to take evidence obtained otherwise than at an oral hearing, or request another court to take such evidence. At its request, courts, public administrative authorities and other State institutions must assist it in its decision-making by procuring documentary evidence. A record must be drawn up of all evidence taken outside an oral hearing, this record being signed by a judge, a clerk and other persons participating in that evidence session. The outcome of the taking of evidence must always be communicated at an oral hearing.
63. Section 49(1) provides that any means which may be instrumental to establish facts of a case may be used in evidence, in particular the testimony of witnesses, expert opinions, reports and statements of State authorities and legal persons, documents, outcomes of inquiries and the testimony of parties.
64. Pursuant to Article 9, prosecuting authorities shall assess preliminary issues arising in course of proceedings; should a final and binding decision on such an issue have already been adopted by a court or another state authority, prosecuting authorities shall be bound by it unless it concerns an issue of the guilt of the accused.
65. Article 42 provides for the rights of a concerned person. It states that anyone whose property has been seized or is liable to be seized following an application for seizure must be provided with an opportunity to comment on the given case, may attend a hearing, raise its own requests, consult the case file within the meaning of Article 65, and lodge appeals as provided for by this law.
66. Article 65 concerns access to files. The first paragraph provides, inter alia, that the accused, injured and intervening parties, their counsel and guardians shall have the right of access to files except for records and those sections of records containing personal data of anonymous witnesses, to make excerpts and notes therefrom, and to have duplicates of the files and the parts thereof made at their own expense. Other persons may do so with the authorisation of a president of a chamber and a prosecutor, or with police authority at the pre-trial stage of proceedings if it is necessary for the exercise of their rights.
67. Article 79a § 1 provides for a seizure of financial instruments deposited on a bank account. If the given facts indicate that the financial instruments on a bank account are intended for the commission of a crime, or have already been used for such a purpose, or constitute profits from criminal activities, a president of a chamber and a prosecutor, or the police authority at the pre-trial stage of criminal proceedings, are empowered to seize them.
68. Pursuant to Article 79a § 3, the State authority listed in paragraph 1 lifts or reduces the seizure if such a measure is no longer necessary, or it is not necessary to maintain it at the given amount. A decision within the meaning of the previous sentence by police is subject to prior approval by a prosecutor.
69. Under Article 79a § 4 the owner of a bank account whose assets are seized, has the right to request that the seizure be lifted or reduced. A prosecutor has to decide on such a request without delay.
70. Article 79a § 5 provides that decisions adopted pursuant to paragraphs 1, 3 and 4 may be appealed by a complaint.
71. According to Article 145 § 2 a complainant may rely on new facts and evidence.
72. Pursuant to Article 149 § 4, if a decision is erroneous due to the fact that a part of its operative section is missing, an appellate authority is empowered either to amend the impugned decision, remit the case to the authority of first instance whose decision is challenged, for it to decide on the missing part of the decision or to amend it.
73. Article 48 § 12 provides that an appeal shall not suspend the entry into force of a decision adopted in administrative proceedings on tax and other fees unless a special law provides otherwise.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: P1
NON_VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-2


ITEMID: 001-67514
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF QUFAJ CO. SH.P.K. v. ALBANIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (victim);Violation of Art. 6;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 7. The applicant company, “Qufaj Co. sh.p.k.”, is an Albanian company, established by decision no. 5883 of the Tirana District Court on 20 July 1992, with the object of investing in the construction business.
8. The Municipality of Tirana sold the applicant company 15,788 square metres of land in a residential area in Tirana by decision no. 165 dated 9 June 1992.
9. By decision no. 174 of 15 June 1992, the Municipality granted the applicant company planning permission to build five hundred flats. A building permit was also required before the project could start, but the Municipality failed to decide the matter for a considerable length of time, thus preventing the building works from getting under way.
10. After the Municipality had refused to grant a building permit, the applicant company brought proceedings in the Tirana District Court seeking compensation of 60,000,000 leks (ALL) for its loss. Its claim was dismissed by judgment no. 4064 of 23 June 1995.
11. On appeal, the Tirana Court of Appeal quashed the first-instance judgment and ordered the Municipality to pay the applicant ALL 60,000,000 (decision no. 1197 of 23 February 1996).
12. In the absence of an appeal by the Municipality to the Court of Cassation, the Court of Appeal’s judgment became final and enforceable.
13. On 16 July 1996 the President of the Court of Cassation, in a document addressed to the Municipality, stated that, after the entry into force of the new Code of Civil Procedure, he no longer had the right to initiate a supervisory review of the legality of lower court decisions.
14. On 16 July 1997 the applicant company requested the Tirana District Court to issue a warrant for the execution of the compensation award.
15. On 25 June 1998 the Tirana District Court rejected a request by the Municipality to review the merits of decision no. 5492 of 20 December 1994, there being no basis in either law or fact for it to do so.
16. On 23 July 1997, in a document no. 704/gj dated 23 July 1997, the Enforcement Office notified the Municipality that it should execute the Court of Appeal decision by paying the applicant company ALL 60,000,000. However, the Municipality repeatedly refused to comply, arguing that it had no budget for the execution of judicial decisions.
17. At the same time, the Enforcement Office requested the Exchequer and Budget Department of the Ministry of Finance (the ultimate financial institution responsible for such payments) to comply with the decision by providing the necessary funding (Article 589, paragraph 2, of the Code of Civil Procedure).
18. By documents nos. 2018/3 of 19 September 1997, 2018/5 of 7 November 1997, and 4670 of 22 September 1999, the Ministry of Finance rejected the requests of the Enforcement Office, arguing that either Article 589 of the Code of Civil Procedure was not applicable, or that central funding was not possible under the State Budget Law. It added that the Municipality should contact the “District of Tirana Branch of the Treasury”, specifying the fund from which the debt should be paid and the part of the Municipality’s budget to which it should be allocated.
19. As the judgment was not executed, the applicant company brought proceedings in the Constitutional Court, claiming that local governmental institutions were obliged to guarantee the enforcement of final judicial decisions, not to impede them.
20. The Constitutional Court rejected the applicant company’s complaint, stating that the “complaint [could] not be taken into consideration because the enforcement of court decisions is outside the jurisdiction of the Constitutional Court”.
21. The relevant parts of the Albanian Constitution read as follows:
“In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
“State bodies shall comply with judicial decisions.”
“The Constitutional Court shall decide: ...
(f) in a ruling that shall be final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
“State bodies shall comply with judicial decisions.”
22. According to Article 450 of the Civil Code “Compensation for damage caused by delay in the payment of a specific sum of money shall take the form of interest which shall accrue from the day the debtor falls into arrears in the official currency of the country where payment is to be made. The rate of interest shall be prescribed by law.”
23. No legislation prescribing the statutory rate of interest has yet been passed.
24. The relevant part of this Instruction reads as follows:
“Payments deriving from judicial decisions relating to the normal activity of budgetary institutions shall be authorised by the Head of the Central Institution. At the same time, where the damage for which the State is liable is the consequence of public officers acting ultra vires or failing to act in accordance with their powers, the Head of the Central Institution shall take administrative measures and institute civil proceedings against them according to the degree of their responsibility.”
25. The relevant part of the Decision provides:
“The Ministry of Finance, through funds allocated to it in the annual budget, shall comply with judicial decisions directly related to the State’s budgetary obligations but not to the obligations of budgetary institutions. Such decisions shall include: ...
(e) Judicial decisions expressly determining the liability of the State for other reasons provided for by law.”
26. Article 64 of the Companies Registration Act provides:
“Commercial companies registered before the entry into force of this Act whose registered particulars and forms do not comply herewith shall re-register no later than six months after the entry into force of this Act. Any such company that fails to request the re-registration or to present the requisite documents shall be automatically unregistered from that date on. They may apply for a three-month extension of time in which to comply with this obligation. Re-registered companies shall retain all the rights they enjoyed before re-registration.”
VIOLATED_ARTICLES: 6