ITEMID: 001-23360
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: JONES v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Anthony William Jones, is a United Kingdom national, who was born in 1961 and is detained in HMP Risley. He was represented before the Court by Mr N. Melville, a lawyer practising in Liverpool.
The applicant and a co-accused were charged with conspiracy to rob a post office on 18 August 1997. Three masked men had broken into the post office through the wall of an adjoining, unoccupied shop. When the post office staff arrived for work in the morning, six of them had their hands cuffed or taped behind their backs, five were also blindfolded, and the Post Master had a knife held against his throat and threats made to himself and his family. The three robbers took GBP 85,000. One of the men was able to escape with the money by car, but the applicant was caught close to the post office by police officers who had chased him from the scene. At the time of his arrest he was wearing clothing seen by officers on one of the men running from the post office, and forensic evidence later found particles of rubble from the hole in the wall in his clothes. The co-accused was also arrested shortly after the robbery. When questioned by the police, neither suspect made any comment.
The applicant and his co-accused were released on bail and granted legal aid. They were arraigned in January 1998; both defendants pleaded not guilty, requested a large number of prosecution witnesses to attend the trial and were again released on bail. The trial was listed to begin on 9 March 1998 but was adjourned at the request of the defence. Later that month each defendant breached his bail conditions by failing to report daily at his local police station. On the date fixed for the start of the trial, 1 June 1998, the applicant and his co-accused did not surrender. A warrant was issued for their arrest and the case was relisted for 5 October 1998. They had not been arrested by that date and the judge, Judge Holloway, adjourned for one day then held a hearing to decide whether the trial should commence in the absence of the defendants.
Defence counsel informed the judge that the applicant’s solicitors and those representing the co-accused had withdrawn from the case in the absence of instructions from their client and that, as a matter of professional conduct, he considered that he was unable to continue to represent the applicant. Counsel for the Crown asked the judge to exercise his discretion to allow the trial to proceed in the absence of the defendants. The judge ruled as follows:
“There are before me two competing positions. Both defendants are still absent and neither their solicitors or their counsel have felt it appropriate for them to remain with this case in the absence of their clients. ...
So I am faced with a situation today where counsel on behalf of the prosecution is inviting me, notwithstanding the absence of the defendants and counsel and solicitors, for this case to proceed primarily because these two defendants have quite voluntarily absented themselves for the last six months of any contact with the court, knowing full well that they face very serious allegations.
There are 35 live witnesses due to give evidence today, some of whom are civilians who must have experienced a quite terrifying event when they were held up by armed, masked men and this robbery took place. Some of the civilian witnesses have already indicated that they are less than happy to attend on a future occasion. Some of the prosecution witnesses have already been dispensed with because of that concern that they have about continual delay.
The information I am led to believe suggests, although there is nothing concrete about this, that the two men are in Spain. One of the men’s families has also left his normal home. There is no concrete evidence, as I say, to suggest that they are in Spain so that any extradition proceedings could commence, that is just the intelligence that the officers have.”
The judge observed that he was not aware of any legal authority which dealt with the question whether it was possible to commence a trial in the absence, from the outset, of the accused, although there were reported cases where trials had been continued when the defendant became unable to attend part of the way through. He continued:
“In normal circumstances I am bound to say that my reaction initially to the proposition was that it would seem wrong to pursue any criminal trial, and particularly one as serious as this, in the absence of either a defendant or indeed in the absence of any assistance from counsel or solicitors on their behalf.
But on the other hand there is another competing interest which seems to me to take precedence over that particular one and that is that there are 35 witnesses outside court who have come here for the second time today and who are anxiously awaiting the prospect of having to give evidence and in view of the defendants’ deliberate absenting of themselves the trauma that some of them experienced during the course of this incident is unlikely to go away until such time as they actually have had this case finally dealt with either with the defendants pleading guilty, which is obviously not their intention, or indeed the trial taking place and a jury coming to a decision.
Having, as I indicated earlier, given very anxious consideration to what is a novel point in my view and having sought the assistance both from the Court of Appeal Criminal Appeals Office and also from colleagues who have considered the matter with me over lunch I have come to the conclusion that the proper way of exercising my discretion in this most unusual case is for me to allow the case to proceed in the absence of both defendants.
I am conscious that the consequence of that is likely to be that the defendants are likely to be found guilty by the jury because of the absence of the defendants and the absence of representation but this is a strong case for the prosecution where clearly the defendants have frustrated and deliberately frustrated the authorities in trying to have this case finally concluded.
I also have to bear in mind the convenience and consideration of a very large number of witnesses, many of whom, as I have indicated, have no doubt anxiously waited for today’s date to come and are frustrated at the prospect that they would have to wait many months if we were to wait for these defendants to be found somewhere else in the world and brought back to this country. I cannot in all conscience feel it is appropriate that those witnesses should be made to wait for what could be 6, 12, 18 months, two years or some other period of time well into the future by which time some may not be willing to give evidence, some may have passed on, some may have gone to another part of the world, emigrated, all sorts of problems can arise which would then be to the advantage of these absent defendants.
At the end of the day, as I say, I have come after anxious consideration to the decision that this is a case that, unusually, should proceed in the absence of both defendants and their counsel and solicitors.
I have also given consideration as to what I ought to say to the jury when they come into court and are sworn and realise that there is nobody here, either the defendants themselves or their representatives, and all I can do is to make sure that anything I say in no way prejudices the position of the defendants at all.
As I have discussed with [the prosecution counsel] already, the way in which this case has to proceed is in accordance with the law, irrespective of the fact that the defendants are absent and there is no counsel here to defend either one of them.
Precisely the same process will be gone through and both [counsel] and myself will give anxious consideration to any matter that we think that might have had some advantage as far as the defendants are concerned and to make sure that this is highlighted during the currency of the evidence. In that way if there is any material that assists either defendant we will make sure that it is properly put before the jury in a fair manner so that the jury can come to a decision on the facts available to them.”
At the close of the prosecution case the judge directed the jury that they should not draw any inference of guilt from the defendants’ failure to answer police questions or to appear for trial. He also instructed them to consider whether the forensic evidence, which strongly suggested that the accused had made the hole in the Post Office wall and/or clambered through it, had been planted by the police or tampered with in any way and pointed out that there was no fingerprint or DNA evidence incriminating the two defendants.
The applicant and the co-accused were convicted and sentenced to thirteen years’ imprisonment. The applicant was arrested a year later and sentenced to an additional concurrent term of twelve months for breach of bail.
The applicant, represented by solicitors and counsel, was granted leave to appeal out of time against conviction and sentence. In January 2001 the Court of Appeal gave joint judgment in his case with two other appellants who had also been convicted in their absence (R. v. Hayward; R. v. Jones; R. v. Purvis [2001] EWCA Crim 168).
Lord Justice Rose, giving the judgment of the Court of Appeal, held that, in the light of domestic and European case-law, the principles which should guide the English courts in relation to the trial of a defendant in his absence were as follows:
“(1) A defendant has, in general, a right to be present at his trial and a right to be legally represented.
(2) Those rights can be waived, separately or together, wholly or in part, by the defendant himself. They may be wholly waived if, knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him. They may be waived in part if, being present and represented at the outset, the defendant, during the course of the trial, behaves in such a way as to obstruct the proper course of the proceedings and/or withdraws his instructions from those representing him.
(3) The trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal representatives.
(4) That discretion must be exercised with great care and it is only in rare and exceptional cases that it should be exercised in favour of a trial taking place or continuing, particularly if the defendant is unrepresented.
(6) If the judge decides that a trial should take place or continue in the absence of an unrepresented defendant, he must ensure that the trial is as fair as the circumstances permit. He must, in particular, take reasonable steps, both during the giving of evidence and ion the summing up, to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits. In summing up he must warn the jury that absence is not an admission of guilt and adds nothing to the prosecution case.”
Lord Justice Rose added that he saw no necessity for a defendant who was released on bail to be expressly warned that, if he absconded, he might be tried in his absence, “for that has been the English common law for over a century”.
He reviewed the facts of the applicant’s case in the light of the above general principles and concluded that the trial judge had exercised his discretion entirely properly. At the hearing on 4 January 2000 it had been conceded by the applicant’s counsel that the applicant’s failure to surrender for trial had been deliberate and that he had been aware of his obligation to attend and of the possible consequences of his non-attendance. Lord Justice Rose held that the applicant had clearly and expressly, through his conduct, waived his right to be present and legally represented at trial, and that the trial had been as fair as was possible given that the defendant had waived these rights. Although the defendant had been present and represented during the appeal proceedings, he had made no application to bring fresh evidence and no submission had been made on his behalf to suggest that the forensic evidence linking him to the robbery was unreliable or that, if he had been present and/or represented at trial any innocent explanation could have been brought forward for the contamination of his clothing, his presence in the vicinity of the robbery or fleeing from the police, or that he was unconnected with a walkie-talkie found near the scene. In conclusion, the Court of Appeal found no reason to hold that the conviction was unsafe or that the trial had been unfair. It did, however, reduce the applicant’s sentence from thirteen to eleven years’ imprisonment.
The applicant appealed for leave to appeal to the House of Lords, and the Court of Appeal duly certified a question as being one of general public importance, namely: “Can the Crown Court conduct a trial in the absence, from its commencement, of the defendant?” The House of Lords gave judgment on 20 February 2002 (R. v. Jones (Anthony) [2002] UKHL 5). Although the House of Lords judges were unanimous in agreeing that the appeal should be dismissed, they gave different reasons for this conclusion.
Lord Bingham of Cornhill, with whom Lords Nolan and Hutton agreed, observed that the Court of Appeal’s finding that the applicant had waived his right to trial in his presence had not been challenged and was tenable: while there was no direct evidence to show that the applicant knew what the consequences of his absconding would be, nor was there evidence to suggest a belief on his part that the trial would not go ahead in his absence or that, although absent, he would continue to be represented. The applicant’s “decision to abscond in flagrant breach of his bail conditions could reasonably be thought to show such complete indifference to what might happen in his absence as to support the finding of waiver”. Lord Bingham added, however, that: “If, contrary to my opinion, the Court of Appeal were wrong to make the finding of waiver, and I am wrong to accept it, I would none the less hold that the appellant enjoyed his Convention right to a fair trial, for all the reasons given by my noble and learned friend Lord Rodger of Earlsferry”.
Lords Hoffmann and Rodger of Earlsferry, however, disagreed that the applicant could be said to have waived his rights. In the words of Lord Rodger:
“[The] facts certainly justify the inference that the appellant knew that he would not be present when his trial was due to take place. That does not, in itself, justify the conclusion that he had waived his right to be present or represented at any trial of the charges against him. Such an inference could be drawn only if one could be satisfied that the appellant not only knew that the trial was due to take place when he would be absent, but also knew that it could take place even though he was not there and even though he was not represented. ... In the circumstances of this case, ... neither inference can readily be drawn.
So far as the first is concerned, it is sufficient perhaps to notice that the initial reaction of the very experienced judge, Judge Holloway, was that no trial could take place in the absence of the defendants. He had never heard of such a thing and neither had the colleagues with whom he consulted. An official at the Criminal Appeals Office thought it might be possible - but he could not put his finger on a case. It would, I believe, be rash to attribute to the applicant greater knowledge of the arcana of English legal procedure than Judge Holloway and his colleagues actually possessed. Doubtless, the appellant would have been aware that, if eventually brought to justice, he would be punished for absconding to avoid trial. But I see no proper basis for going further and assuming that he would actually have known that he was liable to be tried and sentenced in his absence. I am accordingly unable to draw the conclusion that the appellant had unequivocally waived his right to be present at any trial.
The inference that he had waived his right to representation at any trial of the charge against him is even more difficult. One would have to infer that the appellant knew that, if the court decided to proceed to try him in his absence, it would do so in a situation where no counsel or solicitor was there to represent him on the very serious charge of conspiracy to rob. In fact, at the hearing on 6 October 1998, the appellant was unrepresented from the outset, while the counsel and solicitor for his co-defendant withdrew from acting at the hearing. We were told that, in certain other cases, when a trial has proceeded in the absence of the defendant counsel have agreed to remain in court and to act, even in a limited way, on behalf of the defendant. The Court of Appeal ... indeed envisaged that this might happen in future cases and that the presence or absence of representation would be a factor to be considered by the judge in deciding whether the trial should proceed in the absence of the defendant ... . There is nothing in the Court of Appeal’s narrative of the facts to show whether the appellant knew that no counsel or solicitor would appear on his behalf at the hearing on 6 October or that the trial judge was likely to exercise his discretion by going on with the trial without the appellant being represented. In these circumstances I am again unable to conclude that, merely by deliberately absconding, the appellant had unequivocally waived his right under Article 6 § 3(c) of the European Convention to be represented by counsel at any trial of the charges against him.
For these reasons I prefer to deal with the case on the basis that the appellant had not unequivocally waived his right to be present or to be represented under Article 6 § 3(c). His absence simply meant that he was not in a position to exercise either of these rights when the judge decided to proceed with the trial. The question then comes to be whether there has been a breach of the appellant’s rights under Article 6. As [counsel for the Crown] submitted, that question falls to be determined on a consideration of the whole of the proceedings, including those in the Court of Appeal.”
His Lordship then examined the entirety of the proceedings against the applicant. He observed that the exercise of the trial judge’s discretion to try the applicant in his absence had been exceptional and had taken account of the applicant’s deliberate decision to abscond and the needs and interests of the victims, witnesses and the wider public, as well as those of the accused. In the Court of Appeal the applicant had been present, legally aided and represented. The evidence against him had been strong and the applicant had not availed himself of the opportunity open to him during the appeal proceedings to bring fresh evidence to counter the merits of his conviction. The proceedings taken as a whole had therefore been fair.
Section 2(1) of the Criminal Appeal Act 1968 (“the 1968 Act”), as amended by the Criminal Appeal Act 1995 (“the 1995 Act”), provides a single, composite right of appeal against a criminal conviction. It states that the Court of Appeal:
“(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and
(b) shall dismiss an appeal in any other case.”
The broad intention behind this provision was summarised by the then Lord Chief Justice, Lord Bingham, in R. v. Graham and Others ([1997] vol. 1 Criminal Appeal Reports p. 302 [Court of Appeal]), when he said:
“This new provision ... is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe. If the Court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the Court will dismiss the appeal. But if, for whatever reason, the court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The Court is then subject to a binding duty to allow the appeal.”
The scope of the “safety test” was discussed by Lord Bingham C.J. in his judgment in R v. Criminal Cases Review Commission, ex parte Pearson [2000] 1 Criminal Appeal Reports 141 (Court of Appeal) (after the hearing of the applicant’s appeal), where he stated:
This passage was subsequently cited by the Court of Appeal in the case of R v. Davis, Rowe and Johnson [2001] 1 Criminal Appeal Reports 8, where Lord Justice Mantell, delivering the judgment of the court, stated that:
“The following is not intended to be an exhaustive statement of the principles involved. We simply extract the following. The Court is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been ‘vitiated by serious unfairness or significant legal misdirection’ ... Usually it will be sufficient for the Court to apply the test ... which, as adapted by [counsel for the Crown], might read:
‘Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?’.”
Later in his judgment, Lord Justice Mantell stated that:
“We are satisfied that [the questions of ‘fairness’ and ‘safety’] must be kept separate and apart. The E.C.H.R. is charged with inquiring into whether there has been a breach of a Convention right. This court is concerned with the safety of the conviction. That the first question may intrude upon the second is obvious. To what extent it does so will depend upon the circumstances of the particular case. We reject, therefore, [counsel for Johnson]’s contention that a finding of a breach of Article 6 (1) by the E.C.H.R. leads inexorably to the quashing of the conviction. Nor do we think it helpful to deal in presumptions. The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree.”
Section 23 of the Criminal Appeal Act 1968 provides, in so far as relevant, as follows:
“(1) For the purposes of this part of this Act, the Court of Appeal may, if they think it necessary or expedient in the interests of justice –
(a) order the production of documents, exhibits or other thing connected to the proceedings, the production of which appears necessary for the determination of the case;
(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court whether or not he was called in active proceedings; and
(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.
(2) The Court of Appeal shall, in considering whether to receive any evidence have regard in particular to:
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal;
(d) whether there is reasonable explanation for the failure to adduce the evidence in these proceedings.
...
(4) For the purposes of this part of the Act, the Court of Appeal may, if they think it necessary or expedient in the interests of justice, order the examination of any witness where attendance might be required under sub-section 1(b) above to be conducted in a manner provided by the rules of the Court, before any judge or officer of the Court or other person appointed by the Court for the purpose, and allow the admission of any deposition so taken as evidence before the Court.”


ITEMID: 001-111631
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PIRUZYAN AGAINST ARMENIA
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Release pending trial);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 5. The applicant was born in 1978 and lives in Yerevan.
6. The applicant alleged that at 9.20 a.m. on 18 October 2006 he had been taken to the local police station in the town of Alaverdi in connection with an armed assault that had taken place earlier that day. He further alleged that his arrest had not been recorded and that he had been released several hours later.
7. On 19 October 2006 criminal proceedings were instituted against the applicant under Article 175 § 2 (2) and (4) of the Criminal Code (CC). The proceedings were instituted upon the complaint of the victim, G.H., who lived in the same building as the applicant. According to G.H., at 8.45 p.m. on 18 October 2006 the applicant, who had been wearing a mask, had attacked him on the ground floor of their building, hit him on the head with a metal rod and grabbed his briefcase, which had been full of expensive jewellery.
8. At 8 p.m. on the same day the applicant was formally arrested on suspicion of having committed the above-mentioned offence. The arrest report was signed by the applicant.
9. On 22 October 2006 the applicant was formally charged with robbery under the above-mentioned Article. The charge sheet specified that following the incident the victim had pursued the applicant, who had been forced to drop the briefcase and flee. It was signed by the applicant.
10. On the same date the investigator applied to the Lori Regional Court to have the applicant detained for a period of two months on the grounds that he had previous convictions, the offence belonged to the category of serious crimes and that, if at large, he would abscond.
11. On the same date the Regional Court examined and granted the investigator’s application, finding that the case materials provided sufficient grounds for believing that the applicant might abscond and obstruct the investigation, having regard to the nature and degree of dangerousness of the offence in question.
12. On 8 December 2006 the investigator sought to have the applicant’s detention extended by a further two months. The application stated that a number of examinations had been carried out during the investigation, including chemical and biological examinations and an examination of the traces left by the crime. However, an additional biological examination had to be carried out and the charge amended. The investigator argued that the applicant, if released, would abscond since he had committed a serious crime and might commit further offences as he had previous convictions. He had not admitted his guilt and would therefore obstruct the investigation. The investigator submitted, in support of his application, a number of case materials, such as the decision to institute criminal proceedings, the arrest report and the decision to bring charges.
13. On 12 December 2006 the Regional Court examined the investigator’s application. The applicant was present at that hearing and was seated next to his lawyer.
14. The applicant objected to the investigator’s application and asked the court to release him on bail. He submitted at the outset that there was no reasonable suspicion that he had committed an offence. The fact that he had committed offences in the past did not justify detaining him in this particular case. The Regional Court stated in that regard that it was not examining the case on the merits, including the question of the applicant’s guilt, but was examining the validity of the application for an extension of the applicant’s detention. There was a difference between the issue of guilt and that of the existence of a reasonable suspicion.
15. The applicant further submitted that there was no concrete evidence justifying his detention. In response to a request by the applicant to produce evidence, the investigator admitted that no such evidence was available. He submitted that a number of examinations had been ordered and that it was necessary to take a blood sample in order to determine whether the applicant’s blood group corresponded to the traces of blood found on the victim’s shoes. The presiding judge then asked the investigator to present all the materials of the case. Shortly afterwards, the judge withdrew to the deliberation room.
16. The Regional Court, having examined the investigator’s application and the materials confirming that it was well-founded, decided to grant the application in part and to extend the applicant’s detention by one month – until 19 January 2007 – on the ground that on 8 December 2006 the investigator had ordered a biological examination which had not yet been completed. Referring to Article 143 § 1 of the Code of Criminal Procedure (CCP), the court further decided to refuse the applicant’s request for bail, on the ground that he was accused of a serious crime.
17. On 27 December 2006 the applicant lodged an appeal. He submitted, inter alia, that there was no reasonable suspicion of his having committed an offence. The documents submitted by the investigator in support of his application, such as the decision to institute criminal proceedings, the arrest report and the decision to bring charges, were not sufficient to found a reasonable suspicion. Moreover, the Regional Court had refused, in general terms, to address the issue of the existence of a reasonable suspicion. The applicant further contested the allegation that he might commit further offences, which was based solely on the fact that he had previous convictions. Furthermore, there was no concrete evidence suggesting that he would abscond, and the need to carry out an additional biological examination could not serve as a ground for his continued detention. Lastly, the applicant argued that the proceedings in the Regional Court had not been adversarial and had violated the principle of equality of arms since the presiding judge, having failed at the hearing to examine any evidence on which to found a reasonable suspicion, had received the entire case file from the investigator before withdrawing to the deliberation room. The applicant had neither had access to any of those materials nor the possibility to comment on them.
18. On 25 January 2007 the Criminal and Military Court of Appeal upheld the decision of the Regional Court. It stated that the investigating authority had submitted certain evidence substantiating the applicant’s guilt which confirmed his involvement in the event. Thus, there was a reasonable suspicion that the applicant had committed an offence. The Court of Appeal found that there was a need to extend the applicant’s detention, having regard to the dangerousness and nature of the alleged offence and the fact that he might abscond and obstruct the investigation. It dismissed his application for bail on the same grounds. It considered that the decision of the Regional Court to extend detention and refuse bail was well-founded and reasoned and that there were no grounds to amend that decision.
19. On 9 January 2007 the investigator lodged an application seeking to have the applicant’s detention extended by one month on the same grounds as before.
20. On 12 January 2007 the Regional Court examined the investigator’s application. The applicant was present at that hearing and was seated next to his lawyer. He objected to the investigator’s application and asked the court to release him on bail. The Regional Court decided to grant the application and to extend the applicant’s detention by one month – until 19 February 2007 – on the ground that the investigator had ordered a number of examinations which had not yet been completed. The court further decided to refuse the applicant’s request for bail on the same ground as before.
21. On 27 January 2007 the applicant lodged an appeal.
22. On 8 February 2007 the charges against the applicant were amended. In addition to the original charge the applicant was also accused of recidivism and attempted murder.
23. On 16 February 2007 the investigation was completed and the applicant was granted access to the materials in the case.
24. On 19 February 2007 the applicant’s detention period, authorised by the decision of 12 January 2007, expired.
25. On the same date the prosecutor approved the indictment and the case was sent to the Lori Regional Court for examination on the merits.
26. On the same date the Court of Appeal decided to leave the applicant’s appeal of 27 January 2007 unexamined on the ground that the investigation had been completed and the case transmitted to the Regional Court.
27. On 5 March 2007 the applicant lodged an application with the Regional Court claiming that his detention had been unlawful since 19 February 2007 and requesting his release. A similar application was made to the chief of the detention facility where the applicant was held.
28. By a letter of 6 March 2007 the chief of the detention facility refused the request, referring to Article 138 of the CCP, on the ground that the case had been transmitted to the Regional Court.
29. On 12 March 2007 the Regional Court dismissed the application of 5 March 2007 on the same grounds.
30. On the same date the Regional Court decided to set the applicant’s criminal case down for trial. The decision stated that the applicant’s detention was to remain unchanged.
31. In the courtroom, during the proceedings before the Regional Court, the applicant was placed in a metal cage measuring about 4.5 sq. m. He was represented by a lawyer.
32. At the hearing of 21 March 2007 the applicant requested to be released from the cage. The Regional Court decided to adjourn the examination of that question.
33. At the hearing of 30 March 2007 the applicant challenged the presiding judge. He submitted, inter alia, that his placement in the metal cage had amounted to inhuman and degrading treatment and also violated the principle of equality of arms and the presumption of innocence, despite which the presiding judge had failed to take any measures to eliminate those encroachments on his rights. It appears that this challenge was dismissed as unfounded.
34. The applicant alleged that following the dismissal of that challenge he had again requested to be released from the cage, but the court had refused his request on the ground that it had no other means of ensuring security in the courtroom. The Government alleged that no further steps had been taken by the applicant in that connection following the dismissal of the challenge.
35. During the entire proceedings before the Regional Court the applicant was kept in the metal cage. The proceedings lasted almost nine months and included twenty-one public hearings at which the applicant was present. The hearings lasted between twenty-five minutes and seven hours. It appears that the case attracted public attention in the town of Alaverdi and that the hearings were attended by the applicant’s family and friends and numerous other members of the public, including other inhabitants of the town and many students.
36. On 24 July and 18 August 2007 the applicant lodged appeals on points of law against the decisions of 25 January and 19 February 2007.
37. At the hearing on 8 August 2007 the applicant asked the Regional Court to revoke his detention order or otherwise release him on bail. He submitted that he had been in detention for almost ten months. There were no grounds justifying his continued detention since all the witnesses had already been examined and he could not obstruct the proceedings. The prosecutor objected to the request, stating that the applicant could not be released on bail because he was accused of a serious crime. The Regional Court decided to dismiss the applicant’s request on the ground that the examination of the case was not yet over and there were insufficient grounds to revoke his detention or release him on bail.
38. On 6 September 2007 the Court of Cassation decided to return the applicant’s appeals of 24 July and 18 August 2007 for lack of merit.
39. On an unspecified date the prosecutor decided to drop the charges and sought an order from the Regional Court terminating the criminal proceedings against the applicant on the ground that the evidence obtained was not sufficient to support the charges against him.
40. On 5 December 2007 the Lori Regional Court decided to grant that application and to terminate the criminal proceedings against the applicant under Article 35 § 4 of the CCP.
41. On the same date the applicant was released from detention.
42. Under Article 19, offences, according to their nature and the degree of danger posed to society, are divided into offences of minor seriousness, medium seriousness, serious offences and particularly serious offences. Premeditated acts punishable by a maximum of five years’ imprisonment fall into the category of offences of medium seriousness, while those punishable by a maximum of ten years’ imprisonment are considered serious offences.
43. Under Article 175 § 2 (2) and (4), robbery, that is, assault for the purpose of stealing another’s property accompanied with violence or the threat of violence endangering life or health, if committed for the purpose of stealing a large amount of property and with the use of a weapon or other articles used as a weapon, is punishable by imprisonment of between six and ten years.
44. Under Article 6 § 10, a final decision is any decision taken by the authority dealing with the case which precludes the institution or continuation of proceedings or resolves a case on the merits.
45. Under Article 65 § 2 (20), the accused is entitled to lodge appeals against the actions and decisions of the inquiry officer, the investigator, the prosecutor and the court, including the verdict and any other final judicial decision.
46. Under Article 384, as in force at the material time, appeals could be lodged only against final decisions of the first-instance court.
47. Under Article 134, preventive measures are measures of compulsion imposed on an arrestee or the accused in order to prevent their inappropriate behaviour in the course of the criminal proceedings and to ensure the enforcement of the judgment. Preventive measures include, inter alia, detention and bail.
48. Article 135 provides that the court can impose a preventive measure only when the materials obtained in the criminal case provide sufficient grounds to believe that the suspect or the accused may: (1) abscond from the authority dealing with the case; (2) hinder the examination of the case during the pre-trial or court proceedings by exerting unlawful influence on persons involved in the criminal proceedings, concealing or falsifying materials significant for the case, failing to appear following a summons by the authority dealing with the case without valid reason, or by other means; (3) commit an act prohibited by criminal law; (4) avoid criminal liability and serving the imposed sentence; or (5) hinder the execution of the judgment. Detention and bail can be imposed on the accused only if the severest punishment prescribed for the alleged crime is imprisonment for a term exceeding one year or if there are sufficient grounds to believe that the suspect or the accused might commit any of the actions referred to above. When deciding on the necessity of imposing a preventive measure or choosing the type of preventive measure to be imposed on the suspect or the accused, the following must be taken into account: (1) the nature and degree of danger of the alleged offence; (2) the personality of the suspect or the accused; (3) his or her age and state of health; (4) his or her sex; (5) his or her occupation; (6) his or her family status and dependants, if any; (7) his or her property situation; (8) whether the suspect has a permanent residence; and (9) other important circumstances.
49. Article 136 § 2 provides that detention and bail can be imposed only by a court decision on an application by the investigator or the prosecutor or of the court’s own motion during its examination of the criminal case. The court can replace detention with bail, also on an application by the defence.
50. Under Article 138 § 3, during the pre-trial proceedings of a criminal case the detention period may not exceed two months, except for cases prescribed by the Code. During the pre-trial proceedings of the criminal case the detention period is suspended on the date when the prosecutor transmits the criminal case to the court or when detention is revoked as a preventive measure.
51. Article 143 § 1 provides that “bail” is the money, shares or other property deposited with the court by one or more persons in order to secure the release of a person accused of a crime of minor or medium seriousness.
52. Pursuant to Article 285 § 1, an application by the prosecutor or the investigator to have detention imposed or extended must indicate the reasons and grounds necessitating the suspect’s detention. Materials substantiating the application must be attached to it.
53. Under Article 65 § 2(16), the accused has the right to familiarise him or herself with all the materials of the case upon the completion of the investigation.
54. Under Article 73 § 1(12), defence counsel is entitled to familiarise him or herself with all the materials of the case, to make copies of and take notes on any information contained in the case and in any volume, after the completion of the investigation.
55. Pursuant to Article 201, materials of the investigation can be made public only with the permission of the authority dealing with the case.
56. Pursuant to Article 265, the investigator, on determining that the materials gathered are sufficient to draw up the bill of indictment, informs the accused accordingly and decides where and when he or she can familiarise him or herself with the materials of the case.
57. Pursuant to Article 35 § 4, where the prosecutor discovers, in court, circumstances that rule out a criminal prosecution, he or she must declare that the criminal prosecution against the accused is to be dropped. Such a declaration serves as a ground for the court to terminate the proceedings and stop the criminal prosecution.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4


ITEMID: 001-86482
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SARUKHANYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Partly admissible;Violation of P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 4. The applicant was born in 1962 and lives in Yerevan.
5. The applicant had shared a flat with his parents since 1973. It measured 64.7 sq. m. and had been provided for them by the authorities under the Soviet housing legislation. It was registered in the name of the applicant’s father (the tenant), who died in 1982. In 1988 the applicant’s wife moved in with the applicant. They had two children, who were born in 1989 and 1992.
6. On 10 June 1993 the then Supreme Council (ՀՀ գերագույն խորհուրդ) adopted the Law on Privatisation of the State and Public Housing Fund (Հայաստանի Հանրապետության պետական և հանրային բնակարանային ֆոնդի սեփականաշնորհման մասին ՀՀ օրենք), which outlined the procedure for privatisation of State-owned housing.
7. On 21 February 1994 the applicant’s mother filed an application with the then Executive Committee of People’s Deputies of the Shahumyan District Council of Yerevan (Երևան քաղաքի ժողովրդական պատգամավորների Շահումյանի շրջանային խորհրդի գործադիր կոմիտե) for a declaration that she was the tenant of the flat in question and an order for its privatisation. The relevant sections of this application were filled out in the following manner:
“10. We, the adults having the right to accommodation, agree that: (a) the flat be privatised in the name of the tenant, [the applicant’s mother’s name]...
11. We, the adults having the right to accommodation, wish the flat to be privatised as (underline as necessary): (a) a joint tenancy of all family members; [or] (b) a tenancy in common of all family members. [Note: none of these two options was underlined.]
12. Written consent of the adults enjoying the right to the accommodation that is to be privatised: [three signatures, including those of the applicant, his mother and his wife].
8. On 27 October 1994 the Executive Committee decided to grant the application. This decision stated:
“In accordance with the Law on Privatisation of the State and Public Housing Fund of 29 June 1993 ...
The Executive Committee decides:
1. To allow the tenancy card of [the flat in question] to be changed from [the applicant’s father’s] name to the name of his wife, [the applicant’s mother], and to privatise [the flat] ...”
9. On 18 November 1994 the authorities furnished an ownership certificate (no. 15351 – թիվ 15351 սեփականության վկայագիր), which indicated:
“The entire /share/ [flat in question] is owned by [the applicant’s mother].”
10. On 25 May 2003 a general election to the National Assembly of Armenia was to be held to elect 131 members for a term of four years. Of these, 75 seats were to be allocated by proportional representation (համամասնական ընտրակարգ) to candidates nominated on the party voting lists. The remaining 56 members were to be elected by a single constituency vote (մեծամասնական ընտրակարգ) from single-mandate district constituencies.
11. On 15 March 2003 the applicant submitted the required documents, including a declaration of property (սեփականության մասին հայտարարագիր), to District Election Commission no. 12 (թիվ 12 ընտրատարածքային ընտրական հանձնաժողով) in order to be registered as a single constituency candidate for the relevant constituency.
12. On 19 April 2003 the District Election Commission registered the applicant as a single constituency candidate for constituency no. 12.
13. On 28 April 2003 Election Commission no. 12 addressed a letter to the State Committee of the Real Estate Registry (ՀՀ կառավարությանն առընթեր անշարժ գույքի կադաստրի պետական կոմիտե), inquiring about the property status of several candidates registered in its constituency, including the applicant.
14. On 29 April 2003 the Malatia-Sebastia District Council of Yerevan (Երևանի Մալաթիա-Սեբաստիա թաղապետարան) issued an archival extract addressed to the Shengavit District Division of the State Committee of the Real Estate Registry, informing it that six persons were registered and residing in the flat at the time it was privatised:
“1. Sarukhanyan Kerob [the applicant’s father], who was born in 19...;
2. Sarukhanyan Yeghisapet [the applicant’s mother], who was born in 1938;
3. Sarukhanyan Gagik [the applicant], who was born in 1962;
4. Sarukhanyan Yevgenya [the applicant’s wife], who was born in 1966;
5. Sarukhanyan Yelizaveta [the applicant’s older daughter], who was born in 1989; [and]
6. Sarukhanyan Tatevik [the applicant’s younger daughter], who was born in 1992.”
15. On the same date the Real Estate Registry issued a memorandum in reply to the Election Commission’s inquiry stating that the flat was co-owned by six people, including the applicant, on a joint tenancy.
16. On 3 May 2003 the District Election Commission held a meeting at which it decided to annul the registration of the applicant’s candidacy with reference to Article 108 § 7(2) of the Electoral Code, since there was a discrepancy between the memorandum and the applicant’s declaration of property, which contained no mention of the flat.
17. The applicant contested the decision of 3 May 2003 before the Shengavit District Court of Yerevan (Երևան քաղաքի Շենգավիթ համայնքի առաջին ատյանի դատարան). In his application, he stated that he had not falsified any documents and had not, therefore, contravened Article 108 § 7(2). He explained that he had been living in the flat since 1973 and that it had been privatised in his mother’s name by the decision of the Executive Committee of People’s Deputies of the Shahumyan District Council of Yerevan of 27 October 1994. According to the ownership certificate of 18 November 1994, the entire flat was owned solely by his mother. The memorandum of 29 April 2003 contradicted those two documents and did not correspond to the reality. There were not six people in his family, since his father had died in 1982. He finally submitted that he had been unaware of these discrepancies and had filled out the declaration of property in reliance upon the official documents he had in his possession. The District Election Commission had wrongly equated the notions of falsification and inaccuracy.
18. On 8 May 2003 the Shengavit District Court of Yerevan dismissed the applicant’s application. The judgment stated:
“The court, having heard the parties and having , [namely] the protocol decision ... of 3 May 2003 of District Election Commission no. 12, the declaration filled in on 15 March 2003 by G. Sarukhanyan concerning the property (possessions) of the citizen nominated as a parliamentary candidate in the single constituency vote to the National Assembly and his and his family’s income in the last year, the decision ... [adopted] on 27 October 1994 by [the Executive Committee of People’s Deputies of the Shahumyan District Council of Yerevan], ownership certificate no. 15351 of 18 November 1994, the memorandum ... [issued] on 29 April 2003 by the [Real Estate Registry], the memorandum ... [issued] on 29 April 2003 by the Malatia-Sebastia District Council of Yerevan, and the memorandum [issued] on 6 May 2003 by the Charbakh Unit of the Shengavit Police Department, finds that the applicant’s claim is unfounded and must be rejected on the ground that District Election Commission no. 12, in adopting the decision ... of 3 May 2003, was guided by the requirements of Article 108 § 7(2) of the Electoral Code, according to which the district election commission must annul the registration of a parliamentary candidate if it is disclosed following the registration that the documents submitted for registration have been falsified[. I]n particular, the applicant G. Sarukhanyan, by falsifying the declaration, concealed his right of joint tenancy in respect of [the flat in question].”
19. The judgment further stated that, in accordance with Article 155 of the Code of Civil Procedure (ՀՀ քաղաքացիական դատավարության օրենսգիրք), it was final and not subject to appeal.
20. The relevant provisions of the Code of Civil Procedure, as in force at the material time, read as follows:
“1. The parties have the right to ... [inter alia] appeal against judicial acts.”
“1. A court judgment in which a violation of a citizen’s or party’s (union of parties) electoral rights is found shall provide grounds ... for putting an end to ... [the] violations of the right to vote and to stand for election.
2. The court judgment shall become effective on the date of its delivery and shall not be subject to appeal.”
21. The relevant provisions of the Electoral Code, as in force at the material time, read as follows:
“1. ...[T]he decisions, acts or omissions of an election commission ... may be appealed against to a higher election commission or to a court within two days from the [date of] delivery of the decision, performance of the act or disclosure of the violation caused by the omission...
The decision [(որոշում)] of the first-instance court shall be final with the exception of disputes concerning the non-registration or the annulment of a registration of candidates for the [presidential and parliamentary] elections, including party electoral lists in the vote by proportional representation. In such disputes the court of appeal and the Court of Cassation shall take a decision within three and two days respectively. Court decisions concerning electoral disputes shall become effective from the moment of their delivery...”
“1. The decision of ... a party and the application (decision) of an initiative group to nominate a parliamentary candidate to the National Assembly in the single constituency vote shall contain the number of the constituency and the following information about the nominated candidate: (1) surname, first name, patronym; (2) date of birth; (3) place of registration; (4) place of work and post (occupation); (5) party affiliation; (6) declaration of his property (possessions) and of his and his family’s income in the previous year; and (7) passport number...”
“1. Candidates to the National Assembly nominated in the single constituency vote shall be registered by a decision of a district election commission.
2. At least 45 days before the election to the National Assembly, the parties and initiative groups, shall submit the following [documents] for the purpose of registering candidates in the single constituency vote: (1) 500 signatures of voters residing in the constituency concerned, confirming with their signatures the nomination of the citizen; (2) the invoice for the election deposit in the amount of one hundred times the minimum wage; (3) a certificate of Armenian nationality for the previous five years; and (4) a certificate of permanent residence in Armenia for the previous five years...
...
7. The district election commission shall annul the registration of a parliamentary candidate, if it is disclosed following the registration that: (1) restrictions provided by this Code are applicable to the candidate; and (2) the documents submitted for registration have been falsified. The registration of a candidate shall be annulled by a decision ... of a district election commission...
...
9. The decision of the district election commission ... annulling the registration of a parliamentary candidate may be contested before a court...”
22. The relevant provisions of the Civil Code (ՀՀ քաղաքացիական օրենսգիրք) read as follows:
“1. A property owned by two or more persons shall belong to them through the right of common ownership.
2. A property in common ownership may be in shares divided between each of the owners (tenancy in common) or in undivided shares (joint tenancy).”
23. The relevant provisions of the Housing Code (ՀՀ բնակարանային օրենսգիրք) read as follows:
“Apartment buildings and accommodation in other constructions situated on the territory of Armenia shall comprise the housing fund...”
“Armenian citizens shall be entitled to receive accommodation in State or public housing fund houses... through a prescribed procedure...”
“On the basis of the decision to allocate accommodation in a State or public housing fund property, the [relevant] executive committee shall provide the citizen with a certificate which shall serve as the sole basis for occupying the allocated accommodation...”
“Accommodation tenancy agreements in respect of State and public housing fund properties shall be concluded in writing, on the basis of the accommodation certificate, between the lessor, that is the organisation responsible for the maintenance of the building ..., and the tenant, that is the citizen in whose name the certificate has been issued...”
“Member of the tenant’s family living with him or her shall jointly enjoy all the rights and bear all the obligations arising under the accommodation tenancy agreement...”
“Members of the tenant’s family shall include his spouse, their children and their parents...”
24. The relevant provisions of the Law on Privatisation of the State and Public Housing Fund, as in force at the material time, read as follows:
“The privatisation of flats (accommodation) belonging to the State and public housing fund shall be effected on the basis of an application filed by the tenant with the executive body of deputies of the relevant city council, the governor or the mayor of Yerevan provided there is written consent from the adult family members sharing the accommodation...”
“The privatisation of housing fund flats shall, with the consent of the adult members of the tenant’s family, be registered in the name of the tenant or any adult member of the tenant’s family as a joint tenancy or as a tenancy in common of all family members.
The members of the tenant’s family living with him or her shall enjoy ... all the rights arising from the privatisation of the flat.”


ITEMID: 001-71810
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SIMSEK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1941 and lives in Freising, Germany.
5. On 8 February 1996 the Ministry of Public Works and Settlement (Bayındırlık ve İskan Bakanlığı) issued an order of expropriation for a plot of land belonging to the applicant in Dinar, a district attached to Afyon, following the earthquake which happened on 1 October 1995. A committee of experts assessed the value of the plot and the amount was paid to the applicant.
6. On 2 April 1997 the applicant brought an action for additional compensation before the Dinar Civil Court of First Instance.
7. On 14 August 1997 the first-instance court decided to award the applicant an additional compensation of 3,330,990,000 Turkish liras (TRL) plus interest at the statutory rate applicable at the date of the court’s decision running from 2 April 1997.
8. On 22 October 1997 the Court of Cassation upheld the judgment of the Dinar Civil Court of First Instance.
9. On an unspecified date, the applicant requested rectification of the Court of Cassation’s decision.
10. On 8 December 1997 the Court of Cassation dismissed the applicant’s request.
11. On 20 April and 19 July 1999 the Ministry paid the applicant TRL 6,242,830,425 in additional compensation together with interest.
12. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).


ITEMID: 001-22988
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: KOVAC v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Michal Kováč, is a Slovakian national, who was born in 1951 and lives in Humenné. He was represented by Mr Ľ. Bajužík, a lawyer practising in Humenné. The respondent Government were represented by Mr P. Vršanský, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
Proceedings concerning the applicant’s claim for lost income
On 13 November 1995 the applicant claimed lost income and damages in the context of proceedings concerning the termination of his service as a trade union representative.
On 26 July 1996 the Humenné District Court decided to deal with the claim in a separate set of proceedings.
On 28 February 1997 the applicant withdrew his claim for damages. The proceedings in respect of this claim were discontinued on 7 March 1997. As to the remainder of the applicant’s action, the proceedings were stayed pending the outcome of another set of proceedings in which a preliminary question was to be determined.
On 5 May 1998 the case was assigned to another judge.
On 30 October 1998 the Humenné District Court dismissed the action. On 5 May 1999 the Regional Court quashed the first instance judgment and remitted the case to the District Court.
On 19 January 2001 the proceedings were stayed at the applicant’s request.
On 12 March 2002 the Humenné District Court discontinued the proceedings. On 20 March and on 9 April 2002 the applicant appealed against this decision. The proceedings are pending.
Proceedings concerning the applicant’s actions for protection of his personality rights
On 8 June 1994 the applicant filed two actions with the Humenné District Court alleging a violation of his right to protection of his good name and reputation in the context of the termination of his services as a trade union representative.
On 23 October 1996 the District Court granted the applicant’s request to extend the action to include two other defendants.
On 27 June 1997 the District Court granted the applicant’s request that his claims be amended. The defendants were requested to submit comments on the new claims.
On 25 August 2000 the case was assigned to another judge. A hearing before the District Court was scheduled for 14 March 2001. On 13 March 2001 the applicant requested that the proceedings be stayed with the explanation that he had introduced an application under Article 34 of the Convention with the European Court of Human Rights.
The proceedings before the Humenné District Court have not yet ended.
Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
Pursuant to Article 130 (3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon a petition (“podnet”) presented by any individual or corporation claiming that their rights had been violated.
As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127 the relevant part of which reads as follows:
“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 have been violated as a result of a final decision, by a particular measure or by means of any other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of a failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms shall take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 have been violated.” ...
The implementation of the above constitutional provisions is set out in more detail in Sections 49 - 56 of Act No. 38/1993 (the Constitutional Court Act), as amended with effect from 20 March 2002.
Pursuant to Section 20 (2) of the Constitutional Court Act, a person who wishes to bring proceedings before the Constitutional Court shall submit an authority for the lawyer representing him or her in the proceedings.
After 20 March 2002 the Constitutional Court delivered a number of decisions in which it found a violation of Article 48 (2) of the Constitution, ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred.
According to an explanatory letter by the president of the Constitutional Court of 6 June 2002, nothing prevents the Constitutional Court from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed.


ITEMID: 001-115672
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ERKUŞ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 1. The applicant, Mr Adnan Erkuş, is a Turkish national, who was born in 1960 and lives in Mersin. He was represented before the Court by Mr T. Benhür, a lawyer practising in Ankara.
3. The applicant is a professor at the University of Mersin. During a meeting in preparation for a national congress he had a verbal disagreement with another professor (“Mr A.T.”), who was the Dean of the Faculty in which the applicant worked. The applicant called Mr A.T. a “thief” for having allegedly distributed to students, without his permission, several pages of a book written by the applicant (as well as an article) under Mr A.T.’s own name.
4. Following the disagreement, the applicant initiated civil proceedings against Mr A.T. for plagiarism and Mr A.T., in turn, lodged a complaint against the applicant with the public prosecutor, alleging defamation and threatening behaviour.
5. On 15 June 2011 the Ankara Civil Court found against Mr A.T. in respect of plagiarism.
6. During the criminal proceedings conducted against him at the Mersin Criminal Magistrates’ Court, the applicant, in his defence statements dated 27 June and 22 October 2010, requested the court to suspend the pronouncement of the judgment if he could not be acquitted.
7. On 30 June 2011, after having heard the testimonies of seven witnesses, the Mersin Criminal Magistrates’ Court acquitted the applicant of threatening behaviour, but convicted him of defamation. However, having recourse to the provisions of Article 231 of the Code of Criminal Procedure, the court suspended the pronouncement of the judgment on account of the applicant’s previous good record and the unlikelihood of his committing a further offence. On 15 July 2011 the Mersin Criminal Court dismissed an objection lodged by the applicant and upheld the decision.
8. The relevant parts of Article 231 of the Code on Criminal Procedure (Law no. 5271) provide as follows:
“(5) If the accused, who had been tried on the charges brought against him, has been sentenced to a judicial fine or to a term of imprisonment of less than two years, the court may decide to suspend the pronouncement of the judgment .... The suspension of the pronouncement of the judgment means that the judgment would not have any legal consequences for the offender.
(6) A decision to suspend the pronouncement of the judgment may be given provided that:
(a) the offender has never been found guilty of a deliberate offence;
(b) the court is convinced, taking into account the offender’s character and his behaviour during the proceedings, that there is little risk of any further offence being committed;
(c) the damage caused to the victim or to society is repaired by way of restitution or compensation. (Additional Sentence: Article 7 of Law no. 6008 – entered into force on 25 July 2010) If the accused does not agree to this, the pronouncement of the judgment shall not be suspended. (...)
(8) If the pronouncement of the judgment is suspended, the offender shall be bound by a supervision order for the following five years. (...)
(10) If the offender does not commit another deliberate offence and abides by the obligations of the supervision order, the suspended judgment shall be cancelled and the case discontinued.
(11) If the offender commits another deliberate offence or breaches the obligations of the supervision order, the court shall then impose a sentence of imprisonment. Nevertheless, after evaluating the offender’s situation, the court may decide to reduce up to half of the term imposed. If conditions so permit, the court may also choose to suspend the sentence or commute it to other optional penalties.
(12) An objection may be lodged against the decision to suspend the pronouncement of the judgment.”
9. Provisional Article 2 of Law no. 6008, which entered into force on 25 July 2010, provides as follows:
“If persons in respect of whom pronouncement of the judgment has been suspended apply to the courts within fifteen days after the entry into force of this section, the decision shall be retracted by the court and a judgment will be rendered.”


ITEMID: 001-71543
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: RESZKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Mieczysław Reszka, is a Polish national who was born in 1940 and lives in Brwinów.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant had constructed a building on a plot of land which he and his wife jointly owned. On 1979 the applicant divorced. Subsequently, his former mother-in-law successfully challenged the applicant’s title to the land.
On 25 May 1984 the applicant instituted a civil action before the Grodzisk District Court. He claimed that, considering that the building had been constructed in good faith and that the value of that building significantly exceeded the value of the land, the ownership should pass to him and to his former wife as they had been spouses at the relevant time and all the expenditures had been incurred jointly by them.
Several hearings were held in 1984 and 1985. On 21 February 1986 the court admitted in evidence an expert report.
On 26 February 1986 the court decided to stay the proceedings pending the outcome of the proceedings for the division of marital property between the applicant and his former wife. The applicant appealed. He maintained that the outcome of the proceedings for the division of marital property was not decisive for the outcome of this case. He argued that it was rather to the contrary, as the proprietary rights - if established - could be relevant for the outcome of the proceedings for the division of property. On 3 April 1986 the court rejected the applicant’s appeal for procedural reasons. The applicant appealed. On 21 May 1986 the Warsaw Regional Court allowed his appeal and quashed the decision to stay the proceedings. That court accepted the applicant’s argument that the outcome of the proceedings concerning proprietary rights should be relevant for the outcome of the proceedings for the division of marital property and not the other way around.
Several hearings were held in November and December 1987 and in April, May and June 1988. Two expert opinions were admitted, which were followed by an update of these opinions. By a judgment of 28 June 1988 the District Court dismissed the applicant’s action. The court found that although the applicant’s expenditure to build his house had been considerable it had not significantly exceeded the value of the land. The applicant appealed. On 24 November 1989 the Warsaw Regional Court quashed the first instance judgment and remitted the case for reconsideration.
The Warsaw District Court held several hearings in 1990 and in 1991. Another expert’s opinion and an update of a previously-given opinion were submitted. On 12 April 1991 the Warsaw District Court delivered a partial judgment by which it ruled that the ownership of a fraction of the land should pass to the applicant and to his former wife. The applicant appealed to the Warsaw Regional Court.
The Warsaw Regional Court held two hearings in 1991 and subsequently stayed the proceedings at issue as other proceedings were pending which were of relevance for the outcome of the present case. On 27 May 1993 the Warsaw Regional Court resumed the proceedings. On 25 June 1993 the Warsaw Regional Court quashed this judgment and the case was remitted to the first instance court.
The Grodzisk Mazowiecki District Court held several hearings in 1996 and 1997. It ordered an update of an opinion. On 25 February 1998 the proceedings were stayed until the question of the division of the inheritance after the applicant’s former mother-in-law had been settled. The proceedings were resumed on 3 February 2000. Several hearings were held in 2000, 2001 and 2002. A supplementary expert opinion was ordered. On 29 November 2992 the Grodzisk Mazowiecki District Court delivered a judgment dismissing the applicant’s action. The applicant appealed.
On 14 May 2003 the Warsaw Regional Court delivered its judgment dismissing the appeal.
On 17 June 2004 Polish Parliament adopted a new law “on complaint about a breach of a right to have one’s case heard within a reasonable time”. The act entered into force on 17 September 2004.
Section 2 of the Act provides for a special action by which a party can seek a declaration that his or her right to have a case heard within a reasonable time has been breached. The court shall take into consideration the following criteria: the conduct of the court before which the case is pending; the character of the case and the complexity of the legal and factual issues involved therein; what was at stake for the complainant, and the conduct of the parties. The length complaint must be lodged when the proceedings are still pending.
Pursuant to Section 2, if the court finds that the length complaint is wellfounded, it shall give a ruling to this effect. If the complainant so requests, the court can also recommend that the court before which the case is pending takes certain procedural measures in the impugned proceedings. The court may also, award an appropriate amount of money to the complainant, in the amount not exceeding PLN 10,000.
Under Section 18, within six months after the entry into force of the Act, that is, from 17 September 2004, anyone who had lodged an application with the European Court of Human Rights in due time complaining of a violation of the “reasonable-time” requirement contained in Article 6 § 1 of the Convention was entitled to lodge a length complaint provided for by the Act, if the application to the Court had been lodged when the proceedings were still pending and if it had not yet been declared admissible by the European Court.


ITEMID: 001-5496
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: JANKOVIĆ v. CROATIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Croatian citizen, born in 1934 and living in Pula, Croatia. He is represented before the Court by Mr Vladimir Rubčić, a lawyer practising in Zagreb (Croatia). The respondent Government are represented by their Agent, Mrs Lidija Lukina-Karajković.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant served in the Yugoslav People’s Army and in 1987 retired from service. His military pension was assessed to 85% of his average wage, according to his rank and years of service and was paid from the Federal Pension Fund. The payments terminated in December 1991, following the dissolution of the Federal Republic of Yugoslavia.
However, on 12 December 1992, the Croatian Social Security Fund, Pula Office, assessed the applicant’s pension, as from 1 October 1992, to 63,22 % of the amount he had received until December 1991. The applicant appealed against that decision and after his appeal was dismissed, instituted administrative proceedings with the Administrative Court, which dismissed the applicant’s claim on 26 May 1993.
According to the Government, in January 1993 the pensions of the former Yugoslav People’s Army officers have been increased by 15,47 %, and ever since the real amount of those pensions has been 73 % of what they amounted to in December 1991. Furthermore, the Government claim that as from 1 January 1992 the pensions in question had been adjusted in the same way as those of all other categories of pensioners, i.e., to take into account an increase of salaries in Croatia and as from 1 January 1997 to take into account an increase in living expenses.
On 19 November 1993 the applicant lodged a constitutional complaint claiming that the decisions of the administrative bodies and the Administrative Court violated his constitutional rights. On 22 November 1993 the Constitutional Court informed the applicant that his constitutional complaint had been registered. On 27 November 1995 and 3 February 1997 the applicant requested that the Constitutional Court proceed with his case. He received no reply.
On 17 March 1999 the Constitutional Court dismissed the applicant’s complaint.
B. Relevant domestic law
Article 30 of the 1991 Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu) provides as follows
<Original>
“Odlukom kojom se usvaja tužba ukida se osporeni akt kojim je povrijeđeno ustavno pravo i vraća nadležnom organu na ponovni postupak.”
<Translation>
“By the decision granting a claim, the impugned decision that violated a constitutional right is quashed and the case is remitted to the competent body for retrial.”


ITEMID: 001-58784
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF KUOPILA v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 8. The applicant is a Finnish national, born in 1927 and living in Uusikaupunki. She is an art dealer. At the beginning of November 1990, she obtained through a transfer of a sales commission a painting that was to be sold by the end of November. A statement of 1955, according to which the painting was an authentic work of Helene Schjerfbeck (a famous Finnish artist), was attached on the back of the painting.
9. On 9 April 1991, the original owner of the painting reported to the police that the applicant had refused to return the painting despite the expiry of the sales commission and his repeated requests. He considered that a crime had been committed. Subsequently, a police investigation was initiated. The police questioned the applicant and the original owner of the painting. As it appeared that the applicant had sold the painting to a third person, the police questioned him, too. Furthermore, the painting was seized.
10. The applicant was charged with aggravated fraud and aggravated embezzlement, committed concurrently, contrary to chapter 28, section 5 (1), and chapter 36, section 2 (1), of the Criminal Code (rikoslaki, strafflag). According to the indictment, the applicant had on 14 April 1991 stolen the painting, worth at least 250,000 Finnish marks (FIM), entrusted to her, by selling it to a third person, deceitfully as her own, for FIM 250,000. Her intention had been to obtain an unjust pecuniary advantage, and the action had caused financial loss to the buyer. The Prosecutor considered that both the embezzlement and the fraud were aggravated in particular since the property in question was very valuable and since considerable benefit had been sought.
11. On 26 September 1991 the court proceedings in the District Court (kihlakunnanoikeus, häradsrätten) of Hyvinkää commenced. The court ordered that the painting remain seized. The court heard the applicant, the original owner and the buyer. The applicant pleaded not guilty to the above-mentioned charges, claiming that there was only a dispute over the ownership and payment of the painting. Furthermore, three witnesses were questioned relating to the circumstances of the sales commission and the applicant's business activities. Later, the applicant was accused of four additional counts of embezzlement and fraud.
12. On 20 February 1992, the applicant, who now had doubts as to whether the painting was authentic, requested the court to authorise and order the examination of its authenticity. The District Court ruled, as far as relevant, as follows:
(Translation)
"... the examination of the authenticity of the painting at this stage does not concern [the applicant's] interests and rights and thus the request concerning such an interlocutory decision cannot be complied with. ..."
13. On 7 May 1992, the District Court convicted the applicant on all five charges brought against her, i.e. also on the charge of aggravated embezzlement and aggravated fraud now at issue. The court sentenced her to imprisonment totalling two years and six months. The seizure of the painting was lifted, and the court ordered that it be returned to the estate of the buyer.
14. On 5 June 1992, the applicant appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki requesting that she be acquitted or her sentence be reduced. She submitted that the first charge had led to the other four charges. She stated that she would attempt to obtain new evidence concerning the authenticity of the painting and requested that an oral hearing be held or that the case be returned to the District Court in case such new evidence appeared.
15. On 13 July 1992, the applicant, represented by counsel, requested the Prosecutor to order an investigation into the authenticity of the painting. Following her request an investigation was initiated. The police obtained from the National Gallery of Finland a statement, dated 15 September 1992, according to which the painting was not authentic. On 21 October 1992, the police questioned the original owner of the painting. The applicant was not questioned.
16. On 2 August 1993, the Prosecutor submitted a supplementary police report, including the National Gallery’s statement, to the Court of Appeal. In the accompanying letter the Prosecutor asked the Court of Appeal to take the report into account by virtue of chapter 26, section 5, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk). The Prosecutor found that, from the angle of criminal law, the non-authenticity of the painting did not essentially affect the assessment of the case. He stated further that the police had made attempts in order to question the applicant but they had not been able to reach her. The Prosecutor did not specify these attempts any further.
17. On 14 September 1993, the Court of Appeal upheld the judgment of the District Court without inviting the applicant to submit comments or holding an oral hearing. Furthermore, neither the original owner nor the estate of the buyer were heard. The court did not make any separate decision as to whether the supplementary police report had been taken into account as evidence or not. The Court of Appeal approved the District Court’s reasoning without making any changes to it and, consequently, in its own reasoning it did not in any way mention the content of the supplementary police report or of the National Gallery’s statement.
18. The applicant found out about the above-mentioned National Gallery’s statement in the autumn of 1993. Following her request, the Prosecutor sent it to her on 12 November 1993.
19. On 14 November 1993, the applicant, assisted by counsel, requested leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). She referred to the fresh statement and maintained that if this information had been available in the lower courts the outcome of the case would have been a different one. She invoked the concept of a fair trial guaranteed by human rights conventions.
20. In his comments to the Supreme Court the Prosecutor stated that the authenticity of the painting was not relevant for the assessment of the criminal case at issue.
21. On 24 May 1994, the Supreme Court on 24 May 1994 refused the applicant leave to appeal.
22. On 14 April 1995, the applicant lodged a petition with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) concerning the Prosecutor's failure to communicate to her the police report concerning the authenticity of the painting.
23. On 22 July 1996, the Deputy Parliamentary Ombudsman (apulaisoikeusasiamies, biträdande justitieombudsman) found that the Prosecutor, by failing to communicate the supplementary police report to the applicant or her representative, had shown negligence in respect of his official duties. The Deputy Parliamentary Ombudsman took into account that the supplementary police investigation concerned the value of the painting, this being an important element when considering the nature of the offence and the punishment thereupon. As a result, the Deputy Ombudsman addressed a critical remark (huomautus, anmärkning) to the Prosecutor.
24. The applicant served two thirds of the total thirty months imprisonment, which means that she spent one year and eight months in prison.

25. According to chapter 26, section 5, of the Code of Judicial Procedure, the court of appeal may take into account a written pleading or other documents submitted to it after a time-limit has expired if special grounds therefor exist. If the pleading or document can affect the outcome of the case the court of appeal is obliged, under section 6, to request the parties to give written comments, if such a measure is not considered to be manifestly unnecessary.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91347
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: COMANDARI v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicants, Mr Vasile Comandari and Dumitru Comandari, are Moldovan nationals who were born in 1974 and 1978 respectively and live in Bălţi. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu.
Following the unlawful criminal prosecution of the applicants, they instituted civil proceedings against the Government and claimed non-pecuniary compensation.
By a final judgment of 21 September 2004 the Balti Court of Appeal ordered the Ministry of Finance to pay each of them 16,190 Moldovan lei. On 19 October 2004 the applicants formally requested the enforcement of that judgment and the money was paid to them on 14 September 2005.
The applicants did not inform the Court about the enforcement of the judgment in their favour, even in their post-communication correspondence. It was only through the Government’s observations that the Court learned about the enforcement of the judgment in September 2005.


ITEMID: 001-76906
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: INOZEMTSEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Valeriy Vladimirovich Inozemtsev, is a Russian national, who was born in 1961 and lives in the village of Listvyanka of the Ryazan Region. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a retired serviceman. On unspecified dates in the past, he had taken part in peace-keeping operations in former Yugoslavia and Tajikistan.
On unspecified dates, the applicant instituted two sets of proceedings against military unit no. 03611, seeking to recover the unpaid daily allowances owed to him for his participation in the above operations.
In the proceedings before the Military Court of the Ryazan Garrison (Рязанский гарнизонный военный суд) the representative of the military unit fully accepted both the applicant’s claims. He submitted that it was impossible to pay the sums owed to the applicant, since there was no mechanism developed for payment of daily allowances to servicemen who had been commissioned abroad. Furthermore, no funds were available for this purpose.
On 11 December 2001 the Military Court of the Ryazan Garrison granted the applicant’s first claim and ordered the defendant to pay him 379,632.12 Russian roubles (“RUR”, approximately 14,170 euros at the material time). The court found that the applicant could not be deprived of the right to receive the sums owed to him because of the absence of an appropriate mechanism of payment. No appeal was lodged and this judgment became final on 24 December 2001.
On 20 December 2001 the Military Court of the Ryazan Garrison granted the applicant’s second claim and ordered the defendant to pay him RUR 182,587.80 (approximately 6,683 euros at the material time). The court came to the same finding as above. No appeal was lodged and this judgment became final on 3 January 2002.
On 5 February 2002 the Military Court issued two execution writs.
On an unspecified date, the applicant submitted the execution writs to the Ryazan Regional Branch of the Federal Treasury. He was advised to apply to the Ministry of Finance for the latter to recover the amount due from the Ministry of Defence.
On 22 April 2002 the applicant forwarded the execution writs to the Ministry of Finance.
According to the Government, the Ministry acted under the procedure set out in Decree No. 143 and notified the Ministry of Defence about the applicant’s claims, requesting it to pay.
By payment order no. 262 of 23 April 2003 the applicant received the outstanding amount of RUR 562,219.92 in full.
Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that a coercive action will follow, should the defendant fail to comply with the time-limit.
Under Section 13 of the Law, the enforcement proceedings should be completed within two months upon receipt of the writ of enforcement by the bailiff.
Under special rules governing enforcement of execution writs against the recipients of allocations from the federal budget, adopted by the Federal Government on 22 February 2001 (Decree No. 143, as in force at the relevant time), a creditor is to apply to a relevant branch of the Federal Treasury holding debtor’s accounts or, in certain cases, to the Ministry of Finance (Sections 1 to 4).
Within the next five days the branch examines the application and notifies the debtor of the writ, compelling the latter to abide by the respective court decisions (Sections 7 to 12). In case of the debtor’s failure to comply within two months, the branch may temporarily freeze the debtor’s accounts (see Section 13).


ITEMID: 001-100309
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KAUSHAL AND OTHERS v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Violation of Art. 13;Violation of P7-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The first applicant, Mr Rajesh Kaushal, born in 1967, settled in Bulgaria in 1990. Soon after that he met the second applicant, born in 1974. Their first daughter, the third applicant, was born on 13 November 1992. The first and second applicants married on 17 April 1994. Their second daughter, the fourth applicant, was born on 19 February 1998. On an unspecified date Mr Kaushal was granted a permanent residence permit in Bulgaria. He learned Bulgarian and started his own business. He owns a hotel and a restaurant in Sofia.
6. On 28 November 2005 the head of the Ministry of the Interior's National Security Service ordered the expulsion of Mr Kaushal. He also deprived him of the right to reside in Bulgaria and excluded him from Bulgarian territory for a period of ten years. The order, which was based on sections 42 and 44(1) of the 1998 Aliens Act (see paragraph 17 below), relied on
“the reasons set out in proposal no. M-2886/22.11.2005 and the fact that [Mr Kaushal's] presence in the country represent[ed] a serious threat to national security”.
No factual grounds were given. It was indicated in the order that it was immediately enforceable, as provided for in section 44(4) of the Aliens Act (see paragraph 17 below).
7. On 28 November 2005 Mr Kaushal was detained. On 1 December 2005 he was deported to India. Subsequently he settled in Thessaloniki, Greece, where his wife and daughters visit him.
8. Once abroad, Mr Kaushal retained a lawyer who lodged with the Sofia City Court an application for judicial review of the expulsion order of 28 November 2005. He argued that no reasons had been given for the order and that the relevant factual circumstances had not been duly established. Furthermore, he pointed out that he had a family in Bulgaria.
9. In the course of the ensuing proceedings the Sofia City Court accepted in evidence the classified proposal referred to in the impugned order (see paragraph 6 above). The proposal apparently stated that Mr Kaushal was suspected of affiliation to extremist groups and trafficking in human beings. It is unclear whether Mr Kaushal's representative was also given an opportunity to familiarise himself with the document.
10. The Sofia City Court gave judgment on 16 December 2006. Relying on the Court's judgment in the case of Al-Nashif v. Bulgaria (no. 50963/99, 20 June 2002), it found that the bar to judicial review set out in section 46(2) of the Aliens Act (see paragraph 17 below) was contrary to Article 13 of the Convention and was thus to be disregarded.
11. Examining Mr Kaushal's application on the merits, the Sofia City Court found that the order of 28 November 2005 was lawful as it had been issued by a competent authority and in accordance with the law. Referring to different legal provisions relating to national security, it continued as follows:
“As can be seen from the text of proposal no. M-2886/22.11.2005, the measures imposed [on Mr Kaushal] by virtue of the disputed order are aimed at the prevention of unlawful activity, as described in [the provisions on national security], namely affiliation of Rajesh Kaushal to extremist groups and participation in organised trafficking in human beings into countries of the European Union. The data related to these activities have been collected lawfully, by operational means within the competence of the Ministry of the Interior's National Security Service.”
12. Lastly, the Sofia City Court found that it was not necessary to examine Mr Kaushal's arguments relating to his family life in Bulgaria. It held:
“In view of the issues raised in the present case, the arguments set out in [Mr Kaushal's] application referring to his lawful residence in the country and his being married to a Bulgarian citizen are irrelevant. The administrative measures [at issue] are not of a punitive character, but aim at the prevention of the alien's unlawful activity described above. Collecting objective data related to unlawful activity suffices to justify the [impugned] order. The administrative body was competent to assess in each specific case the extent to which the country's security was threatened and the effectiveness of the measures to be applied”.
13. On an unspecified date Mr Kaushal appealed against the Sofia City Court's judgment. He argued that he had been unable to understand which actions on his part had been deemed to threaten national security and that the conclusions about his alleged unlawful activity set out in the proposal of 22 November 2005 had no evidentiary value as they needed themselves to be proven. Once again, he pointed out that he had a family in Bulgaria.
14. In a final judgment of 28 June 2007 the Supreme Administrative Court dismissed the appeal and upheld the Sofia City Court's judgment. It found that the data relating to the first applicant's alleged unlawful activity had been collected in accordance with the law and that the impugned expulsion order had been “reasonably related to the facts set out in the proposal”. It held that
“the burden to disprove these facts rested on [Mr Kaushal] who has not presented evidence in support of his arguments”.
15. Furthermore, the Supreme Administrative Court found that Mr Kaushal had been able effectively to challenge the impugned order as he had been represented by counsel in the judicial proceedings. The measures against him had been based on grounds of national security, which necessitated “certain restrictions of the possibilities to defend oneself”.
16. The Supreme Administrative Court examined the first applicant's arguments about his right to family life and dismissed them. It noted that the right to family life was protected under Article 8 of the Convention; however, under paragraph 2 of Article 8 it was acceptable to interfere with a person's right to family life in the interests of national security. Furthermore, it held:
“The right to respect for one's family life is not an absolute right, which always has to prevail ... The interference with the alien's family life is the result of the coercive administrative measure [which Mr Kaushal] has to endure in case the family does not settle in the country he has chosen to reside in after his expulsion from the Republic of Bulgaria. The coercive administrative measure prevents the person from exercising the unlawful activity which justified its imposition, and the separation itself, if it poses a problem for the family, can be resolved by the spouses”.
17. The relevant domestic law and practice have been summarised in the Court's judgments in the cases of C.G. and Others v. Bulgaria (no. 1365/07, §§ 18-28, 24 April 2008) and Raza v. Bulgaria (no. 31465/08, §§ 30-36, 11 February 2010).
VIOLATED_ARTICLES: 13
8