ITEMID: 001-78978
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MAMMADOV (JALALOGLU) v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Violations of Art. 3;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 5. The applicant was born in 1957 and lives in Baku. More commonly known as Sardar Jalaloglu in political circles, he was the Secretary General of the Democratic Party of Azerbaijan. It was one of the opposition parties that considered the presidential elections of 15 October 2003 illegitimate because of alleged falsifications.
6. On 16 October 2003 a number of opposition supporters held unauthorised public manifestations at the Azadliq Square in the centre of Baku, protesting the results of the elections. The manifestations ended with public disorder and violent clashes between the crowd and the police. The applicant claimed that he had not personally participated in these manifestations.
7. According to the applicant, on 18 October 2003, between 6 p.m. and 7 p.m., several masked police officers, armed with Kalashnikov rifles, appeared at the applicant's house, demanding that he open the door. Before the applicant could do so, three or four of them entered the applicant's apartment through a window. Without presenting an arrest warrant or any other document, the police officers handcuffed the applicant and his guest, N.J. Then the officers dragged them out of the apartment and into a police car. The applicant and N.J. were taken to the Organised Crime Unit of the Ministry of Internal Affairs (Mütəşəkkil Cinayətlərə qarşı Mübarizə İdarəsi; hereinafter “the OCU”).
8. Thereafter, the applicant was kept handcuffed for about four hours in one of the rooms inside the OCU's building. When the applicant's lawyer arrived and attempted to find out the reasons for the applicant's arrest, the Chief of the OCU told him that the reasons would be given the next day.
9. On the same day, the applicant was taken to the basement of the OCU's building, which was used as a temporary detention facility. There, in the office of the warden of the detention facility, he was ordered to strip naked in the presence of several policemen. The policemen checked his body for injuries and did not notice any. He was then placed in a cell with two other detainees until the next morning.
10. The next day, on 19 October 2003 between 12 noon and 1 p.m., the applicant was taken to the Investigation Department of the Chief Prosecutor's Office and interrogated in the presence of his lawyer. After the interrogation, he was charged with “organising public disorder” and “use of violence against state officials” for his alleged role in the events of 16 October 2003. According to the applicant, he orally complained to the investigator that he had been ill-treated on the way to the OCU and after being placed in police custody.
11. At 4 p.m. on the same day the Nasimi District Court ordered the applicant's detention on remand for three months. This decision was subsequently upheld by the Court of Appeal on 28 October 2003.
12. The applicant was taken from the Nasimi District Court back to the OCU where he was kept, until 22 October 2003, in the same cell with two other detainees.
13. At around 6 p.m. on 19 October 2003 the applicant was taken to the office of the Deputy Chief of the OCU, where he was told that he would be subjected to “additional interrogation”. The applicant objected, stating that the OCU officers had no competence to interrogate him after his indictment, but his objection was unsuccessful. The interrogation lasted until approximately 10 p.m. and involved questions concerning the activities of members of his political party.
14. According to the applicant, during this interrogation, he was subjected to ill-treatment in the form of, inter alia, beating of the soles of his feet by two masked policemen with truncheons.
15. In the morning of 20 October 2003 the applicant was visited by representatives of the International Red Cross. He complained to them that he had been ill-treated while in police custody.
16. On 21 October the applicant's lawyer sent a telegram to the Chief Prosecutor's Office, complaining that the OCU did not allow him to meet with the applicant in the detention facility on 20 and 21 October. Finally, on 22 October the applicant met with his lawyer and told him that he had been beaten by police officers in the OCU.
17. On the same day, the applicant was transferred from the OCU's detention facility to the Investigative Isolator No. 1. Upon the transfer, he was examined by the Isolator's doctors who observed injuries on his body (more specifically, two haematomas on his right calf and right heel) and made relevant notes in their records.
18. On 22 October 2003 the applicant's lawyer filed a petition with the investigator of the Chief Prosecutor's Office dealing with the applicant's case, requesting a medical examination of the applicant's injuries. In the petition, the lawyer noted that the applicant had complained about torture in the OCU's temporary detention facility and that he had personally seen injuries on the applicant's calf and foot.
19. Five days later, on 27 October, not having received a reply from the investigator, the lawyer filed a complaint with the Head of the Investigation Department of the Chief Prosecutor's Office concerning the investigator's failure to respond to his petition.
20. Following this, on 28 October the investigator ordered a medical examination and on 29 October the applicant was examined by a medical expert of the Forensic Medicine and Pathologic Anatomy Department of the Ministry of Health. According to the forensic report issued on 30 October, the expert observed the following injuries to the applicant's body: (1) a pale rosy circular bruise of 1x1 cm on the left elbow joint; (2) a yellowish haematoma of an indefinite shape measuring 5x3 cm on the upper part of the right calf; and (3) a yellowish haematoma of an indefinite shape measuring 6x5 cm on the inside of the right heel. Finding it unnecessary to determine the degree of gravity of these injuries, the expert concluded that they had been caused by a hard blunt object. The expert also commented that “[the possibility that] the injuries had been inflicted on 16 October 2003 cannot be excluded”.
21. On 18 December the warden of the OCU's temporary detention facility was interrogated in connection with the applicant's complaint. He testified that, when the applicant had been brought to his detention facility on 18 October, he had been in good health and that no injuries had been observed on his body. He further testified that the applicant had not complained about any health problems upon his arrival in the OCU. He also denied the applicant's allegations of ill-treatment in the OCU's detention facility.
22. On 8 January 2004 the Head of the Investigation Department of the Chief Prosecutor's Office, after interrogating four police officers of the OCU, officially refused to institute criminal proceedings concerning the alleged ill-treatment of the applicant in the OCU's detention facility, finding that the applicant's allegations were not substantiated. The investigator noted that the police officers denied all the allegations of ill-treatment, that the forensic report did not establish conclusively that the applicant's injuries had been inflicted while in police custody, and that the applicant failed to furnish any other evidence of ill-treatment.
23. Meanwhile, on 14 December 2003 the applicant filed a separate complaint with the Nasimi District Court, complaining that he had been unlawfully arrested and tortured in police custody. Specifically, he complained that, during the interrogation in the office of the Deputy Chief of the OCU, for approximately four hours, he had been beaten with truncheons on the soles of his feet by two people in masks. He further noted that after the beating his cellmates had witnessed his injuries and provided some assistance to him. He asked the court to bring the officials concerned to criminal responsibility.
24. On 28 January 2004 the Nasimi District Court refused to examine the complaint due to lack of territorial jurisdiction, finding that complaints against the OCU officials must be filed with the Narimanov District Court.
25. On 29 January 2004 the applicant filed a complaint of the same substance with the Narimanov District Court. This court also refused to examine the complaint due to lack of territorial jurisdiction. The matter was referred to the Court of Appeal, which decided that it was within the Nasimi District Court's territorial jurisdiction to examine the complaint.
26. Finally, on 18 February 2004 the Nasimi District Court examined the applicant's complaint concerning the unlawfulness of the Chief Prosecutor's Office's refusal to institute criminal proceedings and dismissed it as unsubstantiated. The court specifically noted that the forensic report did not rule out the possibility that the injuries could have been inflicted to the applicant during the public disorder on 16 October 2003, i.e. prior to the applicant's arrest. As such, the court did not consider this forensic report as conclusive evidence proving the applicant's beating in the OCU's detention facility. The court found that the applicant did not produce sufficient evidence to support his allegations.
27. The applicant appealed, claiming that the Nasimi District Court failed to give proper legal assessment to the evidence showing that he had been tortured in police custody. On 17 March 2004 the Court of Appeal upheld the Nasimi District Court's decision. The full decision of the Court of Appeal was posted to the applicant's lawyer on 18 March 2004. No further appeal lay against this decision under the domestic law.
28. As for the criminal proceedings instituted against the applicant for his role in organising the public disorder on 16 October 2003, on 22 October 2004 he was convicted and sentenced to three years' imprisonment. The court found that, although the applicant had not been personally present at the Azadliq Square on 16 October 2003, he was one of the organisers of the public disorder and gave instructions to his followers from his party's headquarters.
29. In March 2005 the applicant was released from serving the remainder of his prison sentence pursuant to a presidential pardon decree.
30. Article 46 (III) of the Constitution of the Republic of Azerbaijan provides as follows:
“No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...”
31. In accordance with the Criminal Code, torture of an individual who is under detention or otherwise deprived of his or her liberty is a crime punishable by imprisonment for a term of seven to ten years (Article 113). Infliction of physical or psychological suffering to an individual by way of systematic beating or other violent actions performed by a public official in his official capacity is a crime punishable by imprisonment for a term of five to ten years (Article 133).
32. In accordance with Article 37 of the Code of Criminal Procedure, criminal proceedings are instituted on the basis of a complaint by the victim of an alleged criminal offence.
33. The Law On Complaints against Acts and Omissions Infringing Individual Rights and Freedoms, dated 11 June 1999 (hereinafter the “Law”), provides for a judicial avenue for claims against public authorities. In accordance with Article 2 of the Law, any act or omission by a public authority infringing an individual's rights or freedoms may be challenged either (a) directly before a court; or (b) before a higher (supervising) public authority. If the complaint is first filed before a supervising public authority, such authority must inform the complainant in writing, within one month of the receipt of the complaint, of the results of the examination of his or her complaint.
34. In accordance with Article 5 of the Law, a direct judicial complaint must be filed within one month from the date the complainant became aware of the infringement of his rights or freedoms. However, if the complainant has initially filed a complaint against acts or omissions of the subordinate public authority with a supervising public authority, a judicial complaint challenging the decision of the supervising authority must be filed within one month of receipt of this decision. Provided the complainant had a good reason for the filing of a complaint after expiry of the deadline, the court may still accept it.
35. According to Article 6 of the Law, the court is entitled to declare the disputed act or omission unlawful, to lift the liability imposed on the complainant or to take other measures to restore the infringed right or freedom, and to determine the liability of the public authority for its unlawful act or omission. The court's finding of an infringement of the individual rights and freedoms gives rise to a civil claim for damages against the State.
36. The Civil Code contains similar provisions. In accordance with the Civil Code, disputes between individuals and public authorities concerning individual rights and freedoms may be the subject matter for a civil action (Articles 2 and 5). Unlawful acts or omissions of a public authority or its officials give rise to a civil claim for damages against the State (Article 22). The State's civil liability is the same as that of an ordinary legal person (Article 43).
37. The Code of Civil Procedure provides for the procedure by which an individual can sue the State for damages in civil proceedings.
38. The European Committee for the Prevention of Torture (CPT) has carried out three visits to Azerbaijan. The first visit took place in November-December 2002 and involved visits to the Investigative Isolator No. 1 as well as the detention facilities under the authority of the Ministry of Internal Affairs, including OCU's temporary detention facility. The main purpose of the second (ad hoc) visit in January 2004 was to collect information concerning the treatment of persons detained in relation to the events which followed the presidential election of 15 October 2003. The delegation interviewed some thirty persons held at Investigative Isolator No. 1. In addition, the delegation visited OCU's temporary detention facility. The main purpose of the third (ad hoc) visit in May 2005 was to examine the situation in Gobustan prison. The CPT's reports on these visits, except that of November-December 2002, have not been made public, such publication requiring the consent of the State concerned, which has not been forthcoming.
39. While the CPT report concerning the visit of November-December 2002 mentions no specific instances of ill-treatment in OCU's temporary detention facility, it notes that the delegation received numerous allegations of physical ill-treatment of persons detained by the police in the establishments under the authority of the Ministry of Internal Affairs. The types of ill-treatment alleged mainly concerned slaps, punches, kicks and blows struck with truncheons, gun butts and other hard objects. In some cases, the severity of the ill-treatment alleged – such as the infliction of electric shocks, blows struck on the soles of the feet, blows to the body while the person concerned was handcuffed in a suspended position – was such that it could be considered as amounting to torture. Further, several persons gave accounts of different forms of humiliation and threats to use physical force (including sexual violence) against them or their relatives, in order to make them confess to a crime or provide information.
VIOLATED_ARTICLES: 13
3


ITEMID: 001-103115
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KONONOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 and 6-3-c;No violation of Art. 6-1 and 6-3-c
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1979 and is currently serving his prison sentence in the Altay Region.
5. The applicant was charged with possession of firearms and several counts of robbery. The pre-trial proceedings were concluded in September 2003 and then the case against the applicant and four other persons was submitted to the Altay Regional Court for trial.
6. During the preliminary hearing on 28 November 2003, the presiding judge informed the defendants of their procedural rights, including, in particular, the right to free legal assistance, the right to meet with their lawyers without restrictions, the right to bring an appeal against a trial court's judgment, the right to participate in the appeal hearing and the right to defend themselves through all lawful means.
7. On 11 February 2004 the Regional Court convicted the applicant as charged and sentenced him to twelve years' imprisonment.
8. In the operative part of its judgment, the trial court informed that any appeal had to be lodged with the Supreme Court of the Russian Federation within ten days. The time-limit for the defendants started running from the day when they were served with a copy of the judgment. For other participants in the proceedings, it would run from the day of pronouncement of the judgment. There was no further information as to the right of the defendants to ask the authorities to ensure their participation in an appeal hearing.
9. Both the applicant and his counsel, who he had chosen and who had represented him at the trial, lodged their appeals challenging the Regional Court's judgment on factual and legal grounds, without stating the wish to take part in the appeal hearing. They claimed, in particular, that the trial court's findings had not been based on the facts of the case and that the court had used for the applicant's conviction the evidence obtained in breach of the criminal procedural law. It appears that some time later the applicant discharged his representative owing to a lack of financial means.
10. On 13 July 2004 the Registry of the Supreme Court despatched a summons for an appeal hearing. It contained several words:
“For information ... the case of Kononov Krasnov Lukyanov Miroshnichenko Nepomnyashchikh is to be heard on 27 July 2004 at 10”.
The applicant was served with the court notification on 15 July 2004.
11. On 27 July 2004 the Supreme Court held an oral hearing. The applicant and his lawyer did not appear. The appeal court did not examine the question whether they had been duly summoned and, if they had not, whether the examination of their appeals should have been adjourned. The public prosecutor and one of the applicant's co-defendants were present and made their submissions. The prosecutor, in particular, asked to re-categorise the crime and uphold the trial court's judgment in the remaining part. On the same date the Supreme Court delivered a judgment by which it dismissed the applicant's appeal as being unsubstantiated and upheld his conviction and sentence in their entirety.
12. In the operative part of a judgment, a trial court shall inform of the manner and the time-limit for lodging an appeal. Furthermore, it shall explain that a convicted or acquitted person has a right to ask that his or her participation in an appeal hearing be ensured (Article 309 § 3 of the Code of Criminal Procedure).
13. If a convicted person wishes to take part in an appeal hearing, he or she shall indicate this in the statement of appeal (Article 375 § 2).
14. The parties shall be notified of the date, time and venue of an appeal hearing no later than fourteen days in advance (Article 376 § 2).
15. A convicted person, who is held in custody and has expressed the wish to be present at the appeal hearing, shall be entitled to participate in the court session either directly or by video link (Article 376 § 3).
16. At the hearing, the appeal court shall hear the statement of the appellant and the objection by the opposing party. The appeal court shall be empowered to examine evidence and additional materials provided by the parties in support of their arguments (Article 377).
17. The appeal court may decide (1) to dismiss the appeal and uphold the judgment, (2) to quash the judgment and terminate the criminal proceedings, (3) to quash the judgment and remit the case for a fresh trial, or (4) to amend the judgment (Article 378).
18. A judgment shall be quashed or amended on appeal if there is an inconsistency between the conclusions reached by the trial court and the facts of the case established by that court. Violation of procedural law and wrongful application of criminal law, as well as unfairness of the judgment, shall also constitute grounds for reversing or changing the judgment (Article 379).
19. In case an accused requests free legal assistance or the interests of justice require that the defence be represented, the relevant authority, that is an investigator, a prosecutor, or a court, shall appoint him or her legal-aid counsel (Articles 50 - 51 of the Code of Criminal Procedure).
20. The Constitutional Court of the Russian Federation, in its decision no. 497-O of 18 December 2003, confirmed the applicability of the requirements of Article 51 of the Code to the appellate proceedings.
21. A trial court's judgment becomes final and binding on the day of the appeal hearing, provided that it was upheld by the appeal court (Article 390 § 3 and Article 392 § 1 of the Code of Criminal Procedure).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4967
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: SZYLAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish citizen, born in 1946 and living in Białystok, Poland.
A.
1. The applicant’s requests to institute criminal proceedings against third parties
In 1989 the Białystok District Prosecutor discontinued criminal proceedings against A.A., who lived in the house purchased by the applicant. In the same year the court imposed fines on other members of the same family for assault, unlawful entry to the applicant’s home and for insulting the applicant. In 1990 the Białystok District Prosecutor discontinued criminal proceedings against another member of the A. family.
On 30 October 1992 the Białystok District Prosecutor discontinued criminal investigations agains a certain Ms K.W. on suspicion of uttering threats against the applicant.
On 30 September 1994 the Białystok District Prosecutor refused to institute, on the applicant’s request, criminal proceedings against various persons, finding that they had no case to answer and that the altercations between these persons and the applicant had originated against the background of a long-standing conflict between him and the tenants of apartments in the building of which he was the owner.
On 10 February 1995 the Białystok District Prosecutor discontinued investigations concerning allegations that various criminal offences had been committed against the applicant.
2. Administrative proceedings concerning the construction permit for the annex to the applicant’s house
In July 1991 the Białystok District Office ordered the applicant to demolish the annex to his house which he had built, considering that he had not obtained the required construction permit.
In May 1992 the decision of the District Office was set aside as the applicable laws did not require a permit for a construction of an annex which would not significantly enlarge the original building.
3. Criminal proceedings concerning an alleged offence against construction laws
In August 1991 the Administrative Offences Board found the applicant guilty of an offence against construction laws and imposed a fine on him. The applicant apparently requested that the case be reconsidered by a court in criminal proceedings.

In November 1991 the Białystok District Court decided that an expert opinion of psychiatrists be obtained in order to establish the applicant’s mental health at the time of the critical events.
On 9 April 1992 the police arrested the applicant and brought him to Pruszków psychiatric hospital. He was discharged from the hospital on the following day. Apparently, the criminal proceedings concerning the charges were later discontinued.
4. Criminal proceedings concerning charges of offences committed in 1990
In 1990 the Białystok District Prosecutor ordered the applicant to undergo a psychiatric observation in the context of criminal proceedings on suspicion of coercion and destruction of property committed by removing windows from the apartments of tenants living in his house. In December 1990 Choroszcz Psychiatric hospital invited the applicant to report for examination. As the applicant refused to comply, in January 1991 he was arrested by the police and brought to the hospital. He was discharged after a week. Later in the same year a bill of indictment against the applicant was submitted to the Białystok District Court.
On 9 September 1991 this court ordered that the applicant should be examined in a mental hospital, the opinion prepared on the basis of his stay in hospital in January 1991 not reflecting his current health. As he refused to comply, on 9 April 1992 the police arrested him and brought him to Pruszków psychiatric hospital. He was discharged on the following day.
On 30 June 1992 the Białystok District Court convicted the applicant of two counts of coercion and defamation, and imposed on him a fine of 1,000,000 PLZ (old). On 2 December 1992 the Białystok Regional Court upheld this judgment. On 11 June 1993 the Minister of Justice refused to lodge an extraordinary appeal against it.
5. Criminal proceedings concerning charges relating to offences committed in 1992
On 1 September 1990 the Białystok District Prosecutor charged the applicant with coercion, destruction of property, exposure to loss of health, assault and defamation. On 7 November 1992 the charges against the applicant were supplemented by further ones. On the whole, he was charged with commission of 36 offences. The Prosecutor ordered the applicant to undergo a psychiatric examination on an out-patient basis. As the psychiatrists found that it was impossible to give an objective assessment of the applicant’s health on the basis of one examination and as the applicant refused to comply with the order, on 3 March 1993 the Prosecutor ordered that he should be placed in Choroszcz psychiatric hospital for six-week’s observation. This decision was later quashed on the request of the hospital and the applicant’s examination in Pruszków Psychiatric hospital was ordered. The applicant was invited to report to the hospital for examination, but he refused.
Apparently later the case was transferred to the office of Wysokie Mazowieckie District Prosecutor. On 5 October 1993 the applicant was arrested on the order of the Wysokie Mazowieckie District Prosecutor. On 6 October 1993 the applicant was remanded in custody. He lodged an appeal against the detention order, however, and following a decision by the Wysokie Mazowieckie District Court allowing his appeal, he was released on 13 October 1993.
On 28 December 1993 the District Prosecutor of Wysokie Mazowieckie sent an indictment against the applicant to the District Court.
On 27 December 1995 the Wysokie Mazowieckie District Court discontinued the proceedings against the applicant. The Court found that the applicant had in his numerous letters proffered insults against various persons, including judges, prosecutors, agents of the State administration and psychiatrists involved in his psychiatric observations. However, the court observed that the applicant had been involved in many proceedings in which he had acquired a profound conviction that he had become a victim of an insidious and widespread conspiracy against him, and that, as a result, he developed a very strong negative emotional attitude towards the persons acting in their official capacity of State organs, bordering on psychosis. Thus, his actions could be regarded as being subjectively justified. On the objective side, the court analysed the applicant’s conduct and considered that, despite its repetitive character and the violence of his verbal insults, it could not be considered as representing a serious danger, and in view thereof found that the applicant had no case to answer.
6. Proceedings concerning the applicant’s claim for compensation for wrongful detention from 5 to 13 October 1993
On 10 January 1994 the applicant lodged with the Łomża Regional Court an action against the State Treasury, claiming compensation for unjustified arrest on 5 October 1993 and for detention on remand from 6 to 13 October 1993.
On 12 July 1994 the Łomża Regional Court dismissed the applicant’s claim, finding that the arrest had been justified. The applicant lodged an appeal.
On 7 November 1994 the Białystok Court of Appeal set aside the decision under appeal and awarded to the applicant compensation of 20,000,000 PLZ (old). The court found that the Prosecutor had informed the applicant, by a letter of 22 April 1994, that the date of his psychiatric examination had been fixed for 5 October 1993 at 10.00 a.m. The Prosecutor had further warned the applicant that in case of his failure to comply with the summons, he would be taken to the hospital by the police. On the same day the Prosecutor ordered the police to arrest the applicant on 5 October 1993. The Court considered that this order had in fact made it impossible for the applicant to comply with the summons to the hospital. The Court further noted that, given that the criminal proceedings against the applicants had not been conducted diligently and that the applicant had been already questioned on several occasions by the Prosecutor, there was no indication that his arrest was, as argued by the Prosecutor in the order imposing detention on remand, necessary in order to secure the proper course of criminal proceedings. Moreover, there were no indications that the applicant’s remaining at liberty would jeopardise the proper conduct of the proceedings in any manner. The court concluded that the applicant’s detention was unjustified and in breach of the provisions concerning arrest and detention on remand.
Subsequently the Minister of Justice - Prosecutor General lodged an extraordinary appeal against this judgment with the Supreme Court.
On 28 June 1995 the Supreme Court allowed the Minister’s extraordinary appeal, quashed the decision of 7 November 1994, considering that in the view of the applicant’s repeated refusals to comply with the summonses to psychiatric examinations, his arrest and detention had been justified.
7. Criminal proceedings concerning charges of uttering threats, instituted in 1994
On 28 September 1994 the Białystok District Prosecutor instituted criminal proceedings against the applicant on suspicion of having uttered threats. On 21 December 1994 the applicant was charged with uttering threats.
On 31 January 1995 the Białystok District Prosecutor ordered that the applicant should be examined by two psychiatrists and a psychologist so that his mental condition could be established.
By a letter of 4 April 1995 the Białystok District Prosecutor invited the applicant to report to Choroszcz psychiatric hospital on 19 April 1994. On the same date the Prosecutor issued an order for the police to carry out the applicant’s arrest on 19 April 1994.
On 19 April 1995 at 6.10 a m. the applicant was arrested by the police. Later the police brought him to Choroszcz hospital. He was discharged from the hospital at 11. 50 a.m. Apparently the applicant was later examined by a psychologist, who, in a report of 4 May 1995, concluded that he could be suffering from a situational paranoid syndrome.
On 4 March 1996 the Białystok District Court found the applicant guilty of uttering threats, considered that the applicant had at the critical time a diminished ability to understand the meaning of his acts, and sentenced him to a fine of 500 PLZ (new).
The applicant lodged an appeal. On 24 April 1994 the Białystok District Court imposed on him a fine of 600 PLZ, considering that the appeal contained vulgar insults of the court.
On 3 June 1996 the Białystok Regional Court set the judgment under appeal aside and discontinued the criminal proceedings against the applicant. The court found that the findings of fact made by the lower court were well founded. The court went on to state that, taking into account the applicant’s personal situation, the long-standing conflict between the applicant and the victims, the fact that the material events had occurred in broad daylight and in a public place so it had not been likely that the victims could have had a justified fear that he would realise his threats, the danger of the offence was minimal and the proceedings should be discontinued.
On an unspecified date the applicant lodged with the Suwałki Regional Court a civil action for compensation for his arrest on 19 April 1995.
On 23 October 1997 the Suwałki Regional Court dismissed the applicant’s action.
The applicant lodged an appeal. He claimed in particular that he should be awarded compensation in a sum of 50 million PLZ.
On 18 December 1997 the Białystok Court of Appeal amended the decision under appeal in that it awarded to the applicant a compensation of 2,000 PLZ. The court observed that on 31 January 1995 the Prosecutor had ordered that a psychiatric opinion be obtained as to the applicant’s mental health. In March 1996 the applicant had failed to comply with the summons for an out-patient examination. By a letter of 4 April 1994 the Prosecutor invited the applicant to report to a hospital for an examination, and on the same day he ordered the police to proceed to the applicant’s arrest in order to ensure that he be examined on that date. The court considered that the Prosecutor had thereby made it impossible for the applicant to comply with its own invitation to come to the examination of the applicant’s own free will, which was clearly not in accordance with the purposes of arrest as set out by the applicable legal provisions. The court further observed that in the light of these provisions arrest had to be resorted to with prudence, as it was a coercive measure leading to a deprivation of liberty. In the present case, the applicant’s arrest could have been lawfully ordered not earlier than on 19 April 1995, i. e, had it become already clear that the applicant had failed to report to the hospital as requested by the Prosecutor’s letter of 4 April 1995. The court referred to Article 5 § 1 (b) of the Convention and stated that in the light of the foregoing considerations, the applicant’s arrest had been arbitrary and, consequently, it was not compatible with that provision of the Convention.
On thesatisfaction.
The applicant apparently lodged a cassation appeal against this judgment. On 23 January 1998 the prosecutor likewise lodged such an appeal. The cassation proceedings are apparently pending.
8. Civil proceedings lodged by the Białystok Municipality in which the applicant was a defendant
In September 1992 the Białystok Municipality lodged with the Białystok Regional Court an action against the applicant claiming restitution of a plot of land on which the applicant had begun building of an annex and which was the property of the municipality.
In a judgment of 18 October 1993 the Białystok Regional Court ordered the applicant and his wife to restore to the municipality two plots of land of 36 and 164 square metres, having found that these plots, which were used by the defendants, constituted the property of the municipality.
The applicant lodged an appeal, claiming that he had purchased the litigious land from a third party and, consequently, that these plots should remain in his possession.
On 6 May 1994 the Białystok Court of Appeal dismissed his appeal.
On 9 November 1994 the Minister of Justice refused to lodge an extraordinary appeal against this judgment, finding that it was in conformity with the law.
9. Civil proceedings against the Polish Petroleum and Gas Mining Enterprises
On 5 September 1995 the applicant’s wife lodged with the Białystok District Court a civil action against the Polish Petroleum and Gas Mining Enterprises, claiming that her and the applicant’s property be connected to the gas supply installations from which it had been disconnected following his failure to pay certain sums due. Later on the applicant submitted a power of attorney to the court authorising him to represent his wife in the proceedings.
A hearing was held on 8 December 1995.
On 12 December 1995 the District Court imposed a fine of 600 PLZ on the applicant for having insulted the court in one of his pleadings.
On 13 March 1996 a hearing was held.
At a hearing on 22 May 1996 the Białystok District Court imposed on the applicant a disciplinary penalty of three days of imprisonment, apparently for proffering insults against the court.
On 25 May 1996 the court dismissed the claim of the applicant’s wife.
On 20 June 1996 the applicant was arrested in order to serve the penalty imposed by a decision of 22 May 1996. He was released on 23 June 1996.
On 12 November 1996 the Białystok Regional Court allowed the appeal lodged by the applicant’s wife against the judgment of 25 May 1996, quashed this judgment and ordered that the case be reconsidered.
On 4 June 1997 the Białystok District Court dismissed the applicant’s wife’s action. She lodged an appeal. On 24 October 1997 the Białystok Regional Court dismissed it.
On 21 November 1997 the Białystok Regional Court rejected the cassation appeal lodged by the applicant as it did not comply with the applicable legal requirements in that it had not been submitted and signed by a lawyer.
On 2 December 1997 the same court exempted the applicant’s wife from the court fees and ordered that she should be assigned a lawyer paid by the legal aid scheme. Apparently later the lawyer lodged a cassation appeal with the Supreme Court. The cassation proceedings are pending.
10. Proceedings concerning the applicant’s claim for compensation for wrongful detention
On 28 May 1997 the Lublin Regional Court dismissed the applicant’s claim for compensation against the State for damage caused by allegedly unlawful detention in a psychiatric hospital from 21 to 31 January 1991 and on 9 April 1992.
On 18 November 1997 the Lublin Court of Appeal dismissed the applicant’s appeal against this judgment. Cassation proceedings are pending before the Supreme Court.


ITEMID: 001-5675
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: BILLEBRO-TACHRITZOGLOU v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: The applicant is a Swedish national, born in 1962 and living in Märsta. She is represented before the Court by Mr Bernardo Bernales, a lawyer practising in Stockholm. The respondent Government were represented by Mr Carl Henrik Ehrenkrona, Ministry of Foreign Affairs.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant has a daughter, A., born in 1986, of whom she has sole custody. She divorced A.’s father in 1989 and has not seen him since 1990. The father was expelled from Sweden in 1991.
In October 1993 the Social Council (socialnämnden) of Salem received a report regarding A. from the student welfare team at A.’s school. According to the report, A. had been absent from school 23 days out of 40 during her first semester, mostly due to other reasons than illness. Those days A. attended school she was often late. The school nurse was in contact with the applicant almost every day to ensure that A. attended school. According to A.’s nursery-school teacher, similar problems were known at A.’s nursery-school stage.
On 11 March 1994 the Social Council decided to arrange a contact family for A. one weekend every month with a view to helping and supporting the applicant. However, the decision was never implemented as, subsequently, more far-reaching measures were deemed necessary.
On 20 May 1994 the president of the Social Council decided, pursuant to Section 6 of the Act with Special Provisions on the Care of Young Persons (Lagen med särskilda bestämmelser om vård av unga, 1990:52; hereinafter “the 1990 Act”), immediately to take A. into public care on a provisional basis. The adduced reasons for the decision can be summarised as follows.
A.’s school attendance was more regular at the end of 1993 and the beginning of 1994. During this period great efforts were made by the school to support this positive development. However, the same problems as before subsequently recurred. The applicant was asked to contact the Children’s Psychiatric Clinic and an appointment was made. However, the applicant did not show up as agreed. On 19 April 1994 the school nurse and the school psychologist visited the applicant’s home at approximately 11 a.m. They found A. still undressed. The applicant told them that A. was ill. However, A. got dressed and accompanied them to school. The school psychologist had the impression that A. was glad that they had come to “save her”. The next day the applicant accepted that she and her daughter be admitted to a children’s home at Geneta for an investigation. The placement, which started on 21 April 1994, was supposed to last for 4-6 weeks. From a report of the Geneta home it appeared that the applicant at the start of her stay there was in a state of mental distress. Both the applicant’s and A.’s personal hygiene was deemed to be poor. On 6 May 1994 the applicant suddenly declared that she no longer agreed to be investigated or to remain at the home. A. remained, however, and the staff at the home had the impression that A. developed favourably after the applicant had left. She was more happy and she made progress in her school work. At the same time the applicant was becoming more nervous and showed signs of stress. On 17 May 1994 the applicant terminated the contract for the investigation.
The decision of 20 May 1994 was confirmed by the County Administrative Court (länsrätten) in Stockholm on 3 June 1994 and by the Administrative Court of Appeal (kammarrätten) in Stockholm on 10 June 1994. A. remained at the Geneta children’s home.
The Social Council later applied to the County Administrative Court for a care order concerning A. under Section 1 § 2 and Section 2 of the 1990 Act.
According to the report of the social authorities accompanying the application, A. had had a worrying and unstable childhood. The Social Council adduced also an opinion of the school psychologist dated 2 June 1994, a report from the Geneta children’s home dated 1 June 1994, and a psychotherapist’s opinion of 15 June 1994. According to the school psychologist, A. had been attending school regularly and had taken active part in the school work since her placement at the Geneta home. She had also taken good care of her personal hygiene and seemed happy and relieved about her situation. The psychologist deemed that A. and the applicant needed further qualified assistance to ensure A.’s continued positive development. The report from the Geneta home concluded that the ties between A. and her mother were not particularly strong, that the applicant did not understand her daughter’s needs and generally lacked the ability to take care of A. in a safe and normal way, and that the applicant, on occasion, had obstructed the investigation. The psychotherapist, who had examined A. at the Geneta home, confirmed that the applicant lacked the capacity to see to it that A.’s needs were met. The applicant did not express any concern about A.’s absence from school. Instead, she showed clear signs of isolation and a distorted sense of reality. The psychotherapist concluded that A. needed to be placed with foster parents.
On 28 June 1994 the County Administrative Court held an oral hearing in the case. The court heard the applicant, her legal counsel, A.’s legal counsel and representatives of the Social Council. Furthermore, two witnesses proposed by the applicant gave evidence. A.’s counsel supported the Council’s application.
By a judgment of 5 July 1994 the County Administrative Court granted the application and issued a care order concerning A. The Court found that the applicant, due to problems with her former husband and her work, money and neighbours, had had difficulties in taking care of her daughter. These problems had not impaired A.’s development until she began school in the autumn of 1993. Thereafter, however, A. had frequently been absent from school and the applicant had been unable or unwilling to see to it that A. went to school, although extensive efforts had been made by the Social Council to help the applicant in this respect. The Court considered this to be a serious deficiency in the applicant’s care of her daughter. It found that the applicant did not understand A.’s needs and was not able to give her adequate support. Having regard to the above-mentioned opinions of the school psychologist and the psychotherapist, the Court also considered that the applicant showed signs of isolation and a distorted sense of reality. It concluded that the applicant’s lack of care constituted a clear risk of impairment of the health and development of A.
On 10 August 1994 A. was placed with foster parents at Tystberga.
The applicant appealed against the County Administrative Court’s judgment and on 8 December 1994 the Administrative Court of Appeal held a further hearing in the case. It heard the same persons as the County Administrative Court and, in addition, it heard evidence from five further witnesses, three of whom had been adduced by the applicant.
On 5 January 1995 the appellate court rejected the appeal. It noted that A. had frequently been absent and had arrived late on numerous occasions during her first school year. Largely, these problems could not be explained by illness or other impediments. The situation had not improved. The applicant had admitted that she had been mentally worn out during the autumn of 1993 and the spring of 1994 and that her care of A., to some extent, had been lacking in that she had failed to see to it that A. attended school. Having regard to the medical certificates in the case, the Court found that the applicant had been mentally unstable and unable to meet her daughter’s needs at the time of the Social Council’s provisional care decision. Although the applicant’s social situation had improved somewhat thereafter and although she was at the time seeing a psychiatrist in order to solve her problems, the Court considered that she was still too unstable and that the public care of A. should thus continue.
On 20 March 1995 the Supreme Administrative Court (Regeringsrätten) refused the applicant leave to appeal.
At regular intervals the Social Council decided on the continued care of A. and on the applicant’s access to A. Initially, the applicant met A. every third weekend from Friday to Sunday in the applicant’s home. After the applicant on two occasions – in December 1994 and August 1995 – had returned A. to the foster parents several days late, the Council decided, on 22 August 1995, to restrict the applicant’s access to A. Accordingly, as from 1 September 1995, the applicant was allowed to meet A. every second Friday between 1 and 5 p.m. at a venue designated by the Council and in the presence of a social welfare officer. Their contacts by telephone were limited to two calls per week. The restrictions were confirmed by later decisions of the Council. The applicant did not appeal against these decisions to the administrative courts.
On 1 August 1996 the Social Council again confirmed the above-mentioned access restrictions with the modification that every second meeting between the applicant and A. could take place in the home of the foster parents.
The applicant appealed against the latter decision to the County Administrative Court, claiming access every second weekend between Friday and Sunday in her own home without a social welfare officer being present. She further claimed extended contacts by telephone.
On 20 November 1996, after having held an oral hearing, the County Administrative Court rejected the appeal. The applicant appealed to the Administrative Court of Appeal, where a new oral hearing was held. On 25 March 1997 the appellate court decided that the applicant be entitled to see her daughter in her own home every second weekend from Friday afternoon to Sunday afternoon without the presence of a social welfare officer. The Court also annulled the imposed limitations on telephone contacts.
It appears that A. is still in public care.
B. Relevant domestic law
According to Section 1 § 2 and Section 2 of the 1990 Act, compulsory public care is to be provided if there is a clear risk of impairment of the health and development of a person under 18 years of age due to ill-treatment, exploitation, lack of care or any other condition in the home and if the necessary care cannot be provided with the consent of the young person’s custodian. The decision whether to place a young person under public care is made by the County Administrative Court following an application from the Social Council.
Under Section 6 of the 1990 Act, the Social Council may order the immediate taking into care of a young person (“provisional care order”) if it is likely that he or she needs to be provided with care under this Act and a court decision in the matter cannot be awaited owing to the risks facing the young person’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented. If such a decision by the Social Council cannot be awaited, an order on taking into public care may be made by the president of the Council. A provisional care order shall be put before the County Administrative Court which shall rule on whether the order shall be upheld pending the Court’s judgment regarding the application for public care.
It is the responsibility of the Social Council to ensure that the greatest possible provision is made for the young person’s need of access to his or her parents. If it is necessary in view of the purpose of the care, the Council may decide how the right of access shall be exercised (Section 14 of the 1990 Act). An appeal against a Council decision on access may be lodged with the County Administrative Court (Section 41 § 3).


ITEMID: 001-58208
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF VALENZUELA CONTRERAS v. SPAIN
IMPORTANCE: 3
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life)
JUDGES: John Freeland
TEXT: 7. The applicant is a Spanish citizen and was born in 1952. He is the deputy head of personnel of the W. company.
8. On 12 November 1984, following a complaint lodged by Mrs M., an employee of the W. company, with Madrid investigating judge no. 31 against a person or persons unknown in respect of insulting and threatening telephone calls and letters she had received, a criminal investigation (diligencias previas) was started. On 6 February 1985 Mrs M.’s fiancé, Mr R., lodged a complaint against a person or persons unknown for the same offence.
9. On 8 January and 19 February 1985, the investigating judge made orders under Article 18 § 3 of the Constitution for Mrs M.’s and Mr R.’s telephone lines to be tapped for a month, as they had requested when making their statement. Several suspect calls made from the W. company and from telephone boxes were intercepted.
10. On 18 February and 25 March 1985 respectively the monitoring ceased.
11. On 29 March 1985 Mrs M. gave the investigating judge the names of the five people, including the applicant, who had access to the telephone at the W. company from which some of the suspect calls had been made.
That same day three other people were summonsed to appear. The W. company was asked to provide information about the offices in which the telephones concerned were located and the people having access to them.
12. On 30 April 1985 the investigating judge made a further order for Mrs M.’s and Mr R.’s telephone lines to be tapped, on this occasion from 1 to 31 May 1985. He also ordered an analysis of the typeface of the anonymous letters containing threats against Mrs M. (in order to determine the make of typewriter used) and of photographs enclosed with some of the letters. In addition, he had the saliva residue and the fingerprints on the envelopes examined.
13. On 7 June 1985 the cassette recording of the calls made on the monitored lines, some of which showed that Mrs M. had been subjected to threats and insults, was delivered to the investigating judge.
14. On 19 November 1985 the investigating judge made an order under Article 18 § 3 of the Constitution (see paragraph 29 below) and Chapter VIII of Volume II of the Code of Criminal Procedure “on the entry into and searches of closed premises, the opening of books and written documents and the interception and opening of written and telegraphic correspondence” (see paragraph 30 below), for the monitoring of the private telephone lines of S. and of Mr Valenzuela, the head and deputy head of personnel of the company where the applicant worked, for a period of one month commencing on 26 November 1985. The applicant was considered to be the prime suspect, firstly, because most of the calls were being made from the W. company, where he worked and where, as deputy head of personnel, he had access to the company’s staff files and, secondly, because he had previously had a relationship with Mrs M. The investigating judge’s order read as follows:
“An application has been made for an order for the monitoring of telephone lines nos. 641 29 25 and 795 22 00, of Cosme Valenzuela Contreras and Mr [S.] respectively, who reside in this town, Mr Valenzuela Contreras at Avda. del Oeste no. 41 de Alorcón and Mr [S.] in H. Street, in connection with a police investigation currently under way into certain offences.
It is implicit in what has been said by the police that reliable evidence exists to suggest that information concerning the commission of an offence may be obtained by monitoring telephone lines nos. 641 29 25 and 795 22 00 belonging to Cosme Valenzuela Contreras and Mr [S.] respectively; it is appropriate to grant the requested application authorising the monitoring, in accordance with Article 18 § 3 of the Constitution as in force. It will be carried out by agents of the National Telephone Company referred to above.
Having considered, in addition to the Article cited above, Chapter VIII of Volume [II] of the Code of Criminal Procedure and other provisions of general application,
[The judge] orders that the telephone lines nos. 641 29 25 and 795 22 00 of Cosme Valenzuela Contreras and Mr [S.] respectively shall be monitored by staff of the National Telephone Company of Spain for a period of one month starting from today; at the end of that period they shall report their findings.
...”
15. On 10 December 1985 police headquarters at the Ministry of the Interior informed Madrid investigating judge no. 1 that the monitoring of Mr [S.]’s line had not revealed anything suspect, no suspicious call or conversation having been recorded. Conversely, the monitoring of Mr Valenzuela’s line had shown that a number of calls had been made from his telephone to Mrs M., her fiancé and their close relatives. However, the caller had hung up as soon as the telephone was answered.
On the same day, after further insulting letters had been sent to Mrs M., police headquarters applied for a warrant from the judge to carry out a search of Mr Valenzuela’s home.
16. Owing to a breakdown in the system, the applicant’s telephone line ceased to be tapped on 20 December 1985. The original cassettes containing the recordings were delivered to the investigating judge and included in the court file that was available for inspection and comment by the parties.
17. On 27 December 1985 the applicant himself applied to Madrid investigating judge no. 2, complaining that he had received threatening telephone calls. On 17 June 1986 the applicant requested the judge to order the monitoring of the applicant’s own telephone line; that measure proved fruitless. On 14 June 1988 the judge made a provisional discharge order (sobreseimiento provisional).
18. On 9 December 1985 and 13 January 1986 police headquarters confirmed before the investigating judge that twenty-two calls had been made from the applicant’s telephone while it was being tapped, three to Mrs M.’s home, eight to Mr R.’s home, two to Mr R.’s aunt and nine to his superior.
19. On 26 January 1986 the public prosecutor applied for criminal proceedings (sumario) to be brought against Mr Valenzuela and, if appropriate, Mr S., for offences of proffering grave insults and making threats.
20. On 25 February 1986 Madrid investigating judge no. 31 ordered that the applicant’s home and the head office of the W. company be searched.
21. On 18 April 1986 he decided to institute criminal proceedings against Mr Valenzuela. In an order (auto de procesamiento) of 18 April 1986 he charged the applicant with proffering grave insults and making threats under Articles 457, 458 §§ 2, 3 and 4, 459, 463 and 493 § 2 of the Criminal Code.
22. On 26 December 1990 Madrid investigating judge no. 27, to whom the case had been assigned on 2 January 1990, closed the investigation and committed the applicant for trial before the Madrid Audiencia provincial.
23. On 25 June and 8 July 1991 the public prosecutor, and Mrs M. and Mr R. as private prosecutors (acusadores particulares), filed provisional submissions.
24. On 7 May 1992 the applicant argued that the monitoring of his telephone line and searches of his house constituted breaches of Articles 18 and 24 of the Constitution (see paragraph 29 below).
25. On 8 May 1992 the Madrid Audiencia provincial convicted the applicant of making threats by letter and on the telephone against Mrs M. and Mr R., her fiancé, and their respective families, both at their homes and at work. It sentenced him to four months’ imprisonment, imposed a number of fines and ordered him to pay Mrs M. compensation.
26. The Audiencia provincial found that neither the searches nor the monitoring had been decisive in establishing the applicant’s guilt. The monitoring had revealed that some of the calls from his home telephone had been made to Mrs M.’s telephone number and that most of the calls complained of had been made from the company where both Mrs M. and the applicant worked. Nevertheless, it had not proved possible to determine the identity of the person making the calls because he had hung up as soon as the telephone was answered.
27. The applicant lodged an appeal on points of law, which the Supreme Court dismissed on 19 March 1994. It held with regard to the telephone tapping that, even if the court order allowing the applicant’s telephone line to be monitored had been couched in general terms, the evidence thereby obtained had not been the only evidence on which the trial court had relied in convicting him and, in any event, the threats had also been made in writing.
28. The applicant then filed an amparo appeal with the Constitutional Court in which he relied on the principle of the presumption of innocence, on the right to respect for his private and family life and on the confidentiality of telephone communications (Articles 24 and 18 of the Constitution – see paragraph 29 below). That appeal was dismissed on 16 November 1994 on the following grounds:
“... Contrary to what is said by the applicant, there has been no breach of his right to make telephone communications in confidence in the present case, since the monitoring of his telephone line had previously been authorised in a reasoned court order made under Article 579 § 3 of the Code of Criminal Procedure. It must nevertheless be noted that the monitoring failed to produce any decisive results enabling the conclusion to be reached that Mr Valenzuela had been guilty of making the threats of which he was suspected, inasmuch as the only finding was that frequent calls in which the caller had remained silent had been made from his home to the home of the person receiving the threats, as the caller had hung up as soon as [the victim] answered. The decisive factor in this respect [the finding that the applicant was guilty] was the evidence as a whole including the amparo appellant’s recent relationship with [Mrs M.], the fact that he was the deputy head of personnel in the company where she worked, the fact that it had been shown that some of the calls had been made from that company’s premises, the fact that the photographs enclosed with some of the anonymous letters were from the company’s archives to which only members of the personnel department had access, [Mr Valenzuela’s] reactions during the oral hearing, etc. That evidence, which was properly reviewed by the [Audiencia provincial] in a clearly reasoned judgment that was not illogical, may be considered to have been sufficient to rebut the presumption that the appellant was innocent...”
29. The relevant provisions of the Constitution read as follows:
“The rules relating to the fundamental rights and the freedoms recognised under the Constitution shall be construed in accordance with the Universal Declaration of Human Rights and the international treaties and agreements concerning the same subject matter that have been ratified by Spain.”
“Communications, particularly postal, telegraphic and telephone communications, shall be confidential unless the court decides otherwise.”
“Properly concluded international treaties shall form part of the domestic legal order once they have been published in Spain...”
30. The relevant provisions of Chapter VIII of Volume II of the Code of Criminal Procedure “on the entry into and searches of closed premises, the opening of books and written documents and the interception and opening of written and telegraphic correspondence” were as follows:
“A court may authorise the seizure, opening and examination of private postal and telegraphic correspondence sent or received by a person charged if there is reason to believe that facts or circumstances material to the case may thereby be uncovered or verified.”
“The officer who seizes the correspondence shall immediately hand it to the investigating judge.”
“The decision, which shall be reasoned, authorising the seizure and inspection of correspondence ... shall specify which correspondence is to be seized or inspected...”
“The procedure shall take place by the judge himself opening the correspondence...”
“The fact that the correspondence has been opened shall be noted in a record...
The record thereof shall be signed by the investigating judge, the registrar and any other persons present.”
31. Implementing Law no. 4/1988 amended two Articles of Chapter VIII of Volume II (see paragraph 30 above), namely Articles 553 and 579. Of these, only Article 579 is relevant in the present case and it now provides:
“1. A court may authorise the seizure, opening and examination of private postal and telegraphic correspondence sent or received by a person charged if there is reason to believe that facts or circumstances material to the case may thereby be uncovered or verified.
2. A court may also authorise, in a reasoned decision, the monitoring of the telephone calls of a person charged if there is evidence to show that facts or circumstances material to the case may thereby be uncovered or verified.
3. Likewise, a court may, in a reasoned decision, authorise for a maximum renewable period of three months the monitoring of the postal, telegraphic and telephonic communications of persons reasonably believed to have committed an offence and of communications made for criminal ends.
...”
32. In its judgment no. 114/1984 of 29 November 1984 the Constitutional Court held that the concept of “confidentiality” did not cover just the content of communications, but also other aspects of them such as the subjective identity of the people communicating.
33. In its judgment of 21 February 1991 the Supreme Court noted that the legislative amendment made by Implementing Law no. 4/1988 of 25 May 1988, bringing in the new wording of Article 579 of the Code of Criminal Procedure, was not perfect. The court said that cassette recordings of telephone conversations should be put at the disposal of the judge with an accurate transcript, which was to be checked by the registrar for use at the trial if appropriate. It added that “if the conditions laid down by Article 579 are satisfied, if the judge has reviewed the content of the evidence so obtained and has given leave for it to be used at the trial”, evidence obtained from telephone tapping may be considered admissible.
34. In a decision (auto) of 18 June 1992 the Supreme Court construed the Spanish legislation on the admissibility of evidence obtained by telephone tapping as it stood after Implementing Law no. 4/1988 of 25 May 1988 had come into force (see paragraphs 29 and 31 above). It stated that “the legislature [had] not specified any limitations according to the nature of the possible offence or the sentence it carried” and emphasised that the deficiencies, inadequacies and vagueness of that legislation needed to be rectified by the case-law of the domestic courts and of the European Court of Human Rights.
In the light of the latter Court’s case-law, the Supreme Court reached the following conclusions in its decision:
“In summary, the violations that render evidence obtained from telephone tapping inadmissible and determine its effects are as follows:
(1) Lack of evidence. Lack of sufficient reasoning
Lack ... of evidence capable, in the judge’s view, of justifying a measure restricting fundamental rights to the extent telephone tapping does; mere suspicion on the part of the police, which in principle serves as the basis for the court’s decision, cannot suffice.
(2) Lack of supervision
There was an almost total lack of any form of judicial supervision of the actual monitoring of the telephone concerned, which must necessarily be effected in compliance with the proportionality principle, which indeed can only be established through the reasoning, by, for example, listening to conversations recorded over reasonable periods in order for progress in the investigation (in this case a police investigation) to be checked and a decision taken as to whether or not expressly to extend the measure/surveillance – which, moreover, should not be for more than a reasonable period – in accordance with the principles laid down by the Code of Criminal Procedure.
(3) Periodic review. Effects
Once the conversations have been recorded on the tapes, the judge must periodically, in the manner he deems appropriate in the light of all the circumstances, examine them in the presence of the court registrar and, after hearing the recorded voices, decide on the proper course of action and, if appropriate, order that the monitoring continue, in which case he determines the appropriate guidelines to be followed by those responsible for implementing the measure.
If he orders that the measure should cease, the person or persons affected by that measure must be informed of the operation that has ended ... so that they may henceforth take such action as they deem appropriate...
Only in exceptional cases can the measure remain secret until the end of the investigation so as not to frustrate the legitimate interest in pursuing it ... but it must cease to remain secret once the investigation has ended...
(4) Divergence between the monitoring and the investigation
... There is a violation of the right to private life or, even more simply, the confidentiality of communications in general and of telephone communications in particular where ..., during the course of the originally authorised monitoring, it appears possible that one or more new offences may have been committed. At that point ... the police must, without delay, immediately inform the investigating judge who authorised/ordered the monitoring so that he may consider the question of his jurisdiction and the requirement of proportionality... A blanket authorisation may not be given; nor, without a fresh, express authority from the judge, can the measure/surveillance continue if the new presumed offence revealed on the telephone is found to be independent of the offence covered by the original authorisation. Such situations, if uncontrollable and not directly supervised by the judge, cause or are apt to cause a total failure to comply with the proportionality principle. It will never be known whether or not that principle was complied with in the present case...
(5) Production of copies rather than originals
There will also be a violation where the measure fails to comply with the Constitution and all the legislation (Article 579 of the Code of Criminal Procedure). The fact that the tape recordings produced to the court were copies, not originals, and moreover represented a selection made by the police without any judicial supervision, is a serious violation of the system. ... as the judge, in the registrar’s presence, must select, in the manner he deems appropriate, what is relevant to the investigation ordered by him while the remaining recordings must be kept in the registrar’s custody, thereby precluding any undesired or undesirable knowledge of conversations beyond the scope of the decision to monitor. The judge must order the immediate cessation of the measure when it is no longer relevant to the legitimate aim of establishing the commission of a serious offence, whose gravity must always be proportionate to what is, in principle, an intolerable interference with private life...
(6) Finding of proportionality
On that basis, it is necessary to consider whether or not the preventive measures used were proportionate to the aim pursued... The judge, who is the essential guarantor of fundamental rights and public freedoms, must consider each offence in the light of all the circumstances and decide whether the legitimate interests in investigation, prosecution and, where appropriate, conviction warrant in a given case the sacrifice of legal interests as important as the dignity, privacy and freedom of the individual...
(7) Determination of the measure and its limits
… The judicial authority must state what form the measure is to take and ensure that it is implemented with the least possible harm to the person affected by it...”
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-101647
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF DEES v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1950 and lives in Alsónémedi.
6. It appears that from early 1997 the volume of cross-town traffic in Alsónémedi increased, since a toll had been introduced on the neighbouring, privately owned motorway M5. In order to avoid the rather high toll charge, many trucks chose alternative routes including the street (a section of national road no. 5201) in which the applicant's house is situated.
7. To counter this situation, from 1998 onwards three bypass roads were built; and several measures, including a 40 km/h speed limit at night, were implemented in order to discourage traffic in the neighbourhood. Two nearby intersections were provided with traffic lights. In 2001 road signs prohibiting the access of vehicles of over 6 tons and re-orientating traffic were put up along an Alsónémedi thoroughfare, an arrangement which also affected the applicant's street. The Government submitted that compliance with these measures had been enforced by the increased presence of the police in general in Alsónémedi and in particular in the applicant's street; in the applicant's view, however, no effective enforcement was in place.
8. In or about 1997 the applicant observed damage to the walls of his house. He obtained the opinion of a private expert, who stated that the damage was due to vibrations caused by the heavy traffic. The applicant also alleges that, because of the increased noise and pollution due to exhaust fumes, his home has become almost uninhabitable.
9. On 23 February 1999 the applicant brought an action in compensation against the Pest County State Public Road Maintenance Company before the Buda Central District Court. He claimed that, due to increased freight traffic in his street, the walls of his house had cracked. The case was transmitted to the Budapest Regional Court for reasons of competence on 11 March 1999. On 11 November, 16 December 1999 and 30 March 2000, the court held hearings. On 6 April 2000 it dismissed the claims.
10. On appeal, the Supreme Court, acting as a second-instance court, held a hearing on 30 January 2002, quashed the first-instance judgment and remitted the case.
11. In the resumed proceedings, on 2 June 2002 the Regional Court appointed as expert the Department of Road Construction at Budapest Technical University. The latter presented an opinion on 20 January 2004 which was discussed at the hearing of 29 April 2004. The expert stated that the level of noise outside the applicant's house had been measured as 69.0 dB(A) on 5 May and 67.1 dB(A) on 6 May 2003, daytime on both occasions, as opposed to the applicable statutory limit of 60 dB(A). On 10 June 2004 the court held another hearing and ordered the supplementation of the opinion, which was done on 15 September 2004.
12. On 17 February 2005 the Regional Court dismissed the applicant's claims. It relied on the opinion of the expert, documentary evidence and the testimony of the parties. It refused the applicant's motion to obtain the opinion of another expert since it was of the view that the original opinion was thorough and precise.
13. The court noted the expert's opinion that the vibration, as measured on the scene, was not strong enough to cause damage to the applicant's house, nor could the traffic noise entail cracks in its walls although it was higher than the statutory level. The court therefore concluded that no causal link could be established between the measures adopted by the respondent authority and the damage to the house. The court observed that the respondent had spent more than one billion Hungarian forints on developing the road system in the area, constructed four roundabouts and put up several road signs and traffic lights in order to divert traffic from Alsónémedi. In sum, it had carried out every measure with a view to sparing Alsónémedi from heavy traffic and limiting the speed of cross-town traffic that could reasonably be expected in the circumstances to protect the applicant's interest. The respondent had to balance competing interests, since the barring of heavy vehicles from a public road might have been advantageous to the inhabitants of Alsónémedi but could have caused disproportionate prejudice to the other users or providers of public and private transportation.
14. On 15 November 2005 the Budapest Court of Appeal dismissed the applicant's appeal.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80520
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF EMMER-REISSIG v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (lack of an oral hearing);Not necessary to examine the further complaint under Art. 6-1
JUDGES: Christos Rozakis
TEXT: 5. The applicant was born in 1921 and lives in Klosterneuburg.
6. He is a lawyer practising in Klosterneuburg and the owner of a parcel of land in the municipality of Königstetten, which is designated as “forest” land in the zoning plan. On parts of this parcel – approximately 1,500 square meters – he runs an organic farm on a part-time basis, breeding sheep and goats. Besides that, he keeps bees and grows herbs.
7. On 18 August 1998 the applicant applied to the mayor of Königstetten for a building permit for a shed, to be used as a shelter for sheep and goats in summer and beehives in winter. It is also designed as a refuge for farm workers. He therefore submitted construction plans for the planned shed and a map of the land in question.
8. The mayor rejected the applicant's request on 16 February 2000. Relying on a report by an agricultural expert at the Lower Austria Regional Government, he stated that, in view of its shape, size and design, it would not qualify as a farm building and that even if it was an agricultural construction, it could not be erected on the land in question, as the latter had been designated as forest and grassland.
9. The applicant lodged an appeal with the municipality of Königstetten on 10 April 2000. On 3 July 2000 the municipality dismissed his appeal on the same grounds.
10. Subsequently, on 13 September 2000, the applicant filed an objection (Vorstellung) with the Lower Austria Regional Government and requested it to hear representatives of the District Farmer's Association (DFA, Bezirksbauernkammer) and the Austrian beekeeper association (ABA, Österreichischer Imkerbund) as experts who would prove that the building he intended to erect was necessary for the intended agricultural enterprise.
11. The Regional Government quashed the municipality's decision on 10 January 2001 and referred the case back to the municipal council. It stated that the municipality had failed to address all the points of appeal.
12. The applicant lodged further grounds in support of his appeal on 19 March, 4 and 24 April 2001. In addition to his comments on the decision of 3 July 2000, he filed requests for the taking of evidence. He also submitted a statement by the Tulln Administrative District Authority and a document he referred to as a business plan.
13. On 23 November 2001 the Königstetten Municipality requested the applicant to comment on an expert opinion it had obtained from the Planning Office at the Lower Austria Regional Government (Gebiets-bauamt) on 31 October 2001. It stated that by far the largest part of the land was covered by forest, which would impede serious agricultural activities. With reference to the earlier decisions, it repeated that, judging by its design and shape, the building at issue would be untypical of an agricultural shed and that the applicant could be assumed never to have intended to carry on agricultural activities, but rather to use it for different purposes.
14. The applicant commented on the expert opinion on 10 December 2001. Claiming that the authorities had incorrectly established the relevant facts, he contended that the expert opinion was in breach of Austrian law and European Community law. Besides that, the applicant repeated his request to obtain opinions from the DFA, the ABA and a certain organic farming association (Biobauernverband Ernte) in order to prove the feasibility of the business plan and its compliance with the relevant legal criteria. He also filed an application for an on-site inspection of the land at issue.
15. On 29 January 2002 the municipal council also rejected the applicant's appeal. It held that the planned construction would conflict with the zoning plan and that the building would not resemble a shed for agricultural use.
16. The applicant filed an objection (Vorstellung) with the Lower Austria Regional Government again on 11 February 2002, submitting that the municipality had relied solely on an incorrect expert opinion without carrying out investigations of its own. In addition, he claimed that the decision was in breach of European Community law.
17. Subsequently, on 12 March 2002, the applicant lodged a complaint with the Administrative Court and requested an oral hearing.
18. On 30 July 2002, without holding an oral hearing, the Administrative Court rejected the complaint as inadmissible for non-exhaustion of administrative remedies, as the applicant had failed to file an objection against the decision of 29 January 2002.
19. The applicant's objection of 12 March 2002 was dismissed by the Lower Austria Regional Government on 22 July 2002.
20. The applicant lodged a further complaint with the Administrative Court on 22 August 2002 and repeated his request for an oral hearing.
21. On 16 September 2003 the Administrative Court dismissed the applicant's complaint and rejected his request for an oral hearing. It found that, despite its request for a detailed business plan, the applicant had failed to provide one. Accordingly, the alleged need for a shed for the so-called agricultural enterprise had not been made out.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101217
LANGUAGEISOCODE: ENG
RESPONDENT: DEU;SVK
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: HEROLD TELE MEDIA S.R.O. v. SLOVAKIA AND GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Herold Tele Media, s.r.o., is a private limited company which has its registered office in Bratislava. The application on its behalf was filed by Mr I. Matušík, the company's managing partner.
company, may be summarised as follows.
Company Slovenské telekomunikácie, š.p. was established by the Ministry of Transport, Telecommunications and Public Works on 1 January 1993. It was a State-owned company. Its director, or deputy director in his or her absence, was authorised to act and sign documents on behalf of the company.
According to the register of companies available on the Internet, Mr P.V. had been the company's director between 9 June 1995 and 26 February 1998. He had been the company's managing director from 27 February 1998 to 2 February 1999. Mr F.D. had been deputy managing director between 27 February 1998 and 2 February 1999.
A different section of the register of companies concerning Slovenské telekomunikácie, š.p. was entitled “Further legal issues”. It comprised an entry covering the period from 28 January 1997 to 31 March 1999, which indicated:
“For the period of the settlement negotiations, the council of creditors suspended, within the meaning of section 4e(2)(a) of the 1991 Bankruptcy Act, the exercise of functions of the persons authorised to act on behalf of the company under its articles listed in the register, and appointed Mr F. Eke as manager. During the period of the settlement proceedings the director thus appointed shall represent the company and sign documents on its behalf. [The proceedings] were discontinued by a decision of the Bratislava City Court of 24 October 1996 ... in accordance with Act no. 292/1996. The Supreme Court upheld the Bratislava City Court's decision by its decision no. 1 Obo 2/97 of 26 March 1997.”
On 23 December 1998 the Minister of Transport and Telecommunications decided to dissolve Slovenské telekomunikácie, š.p. The company was transformed into a joint stock company, Slovenské telekomunikácie, a.s., which succeeded to all the rights and obligations of its predecessor. On those grounds company Slovenské telekomunikácie, š.p. was deleted from the companies register on 1 April 1999.
Under a contract of 18 July 2000 the Fund of National Property, with the agreement of the Ministry of Transport, Post and Telecommunications, sold 51% of the shares of Slovenské telekomunikácie, a.s. to Deutsche Telekom AG, a company which had its registered office in Bonn, Germany. Point 6 subjected the transaction to several conditions with suspensive effect. They included the absence of any binding decision, delivered by a court or other public authority, prohibiting the transaction agreed upon in the contract.
Subsequently, the company Slovenské telekomunikácie, a.s. was twice renamed. Its current business name is Slovak Telekom, a.s.
On 8 April 1998 a meeting of the council of creditors of Slovenské telekomunikácie, š.p. was held in the presence of a notary public. That council had been established in the context of the proceedings under the 1991 Bankruptcy Act, which were held before the Bratislava Regional Court under file no. 38 K 10/96 (for further details see also Slovenské telekomunikácie, š.p. and Herold Tele Media, s.r.o. v. Slovakia (dec.), no. 47097/99, 28 September 2010). Three members of the council of creditors attended the meeting as well as Mr Eke, whom that council had earlier appointed as director of Slovenské telekomunikácie, š.p. in the context of the above proceedings.
At the meeting the council of creditors, with reference to section 4e (2) and (3) of the 1991 Bankruptcy Act, authorised Mr Eke to conclude a contract on the sale of Slovenské telekomunikácie, š.p. to the applicant company.
On the same day Mr Eke concluded a contract with the applicant company under which the latter purchased the entire company Slovenské telekomunikácie, š.p. The contract provided, inter alia, that the purchase price would be determined in a separate agreement at a later date.
Mr Eke authorised Mr A., a lawyer practising in Bratislava, to petition for the above sale of company Slovenské telekomunikácie, š.p. to be entered in the register of companies. Mr A. lodged such a petition on behalf of Slovenské telekomunikácie, a.s. with the Bratislava I District Court on 14 July 2000. In it reference was made to instructions which Mr Eke had given to Mr A. on 8 April 1998. With the approval of the petitioner, the applicant company asked for leave to act as a third party in the proceedings.
On 2 August 2000 the Bratislava I District Court rejected the petition. The decision indicated Mr Eke as plaintiff. With reference to Articles 13, 31 and 191 of the Commercial Code and the data entered in the register of companies, the court did not consider it established that Mr F. Eke had been a member of the managing board of Slovenské telekomunikácie, a.s. Accordingly, neither the company's articles nor the Commercial Code entitled him to act on that company's behalf. The decision further stated that Mr A. had acted on the basis of written instructions which Mr Eke had signed on 7 July 2000, that is at a time when Slovenské telekomunikácie, š.p., had been dissolved without liquidation.
The District Court dismissed the applicant company's request for leave to join the proceedings as a third party. It held that a third party could not be admitted to proceedings initiated by a person who lacked standing to do so. Furthermore, a third party could be admitted only in the context of contentious proceedings. However, proceedings concerning an entry in the register of companies did not fall within that category.
On 17 and 18 August 2000 Mr A., acting on behalf of Slovenské telekomunikácie, a.s., the applicant company and Mr Eke appealed. They argued that the District Court had incorrectly considered Mr Eke as plaintiff, had refused to admit the applicant as a third party in the proceedings, had failed to hear the parties and had not allowed them to consult the file with a view to checking the date of the authority of Mr A. They requested that the court of appeal hear them and that the sale be entered in the register of companies ex officio, pursuant to Article 200a of the Code of Civil Procedure.
On 22 August 2000 Mr F. Eke complained to the President of the Bratislava I District Court that he had been erroneously indicated in the decision as plaintiff.
On 5 September 2000 Mr F. Eke complained to the President of the Bratislava Regional Court that the court file did not contain an authority of 7 July 2000 to which the Bratislava I District Court had referred in its decision of 2 August 2000.
On 25 September 2000 Mr Eke filed a similar complaint with the Supreme Court. Mr Eke further complained that the court file was not complete.
On 30 March 2001 the Bratislava Regional Court decided that the Bratislava I District Court judges were not excluded from dealing with the above case. The Regional Court further upheld the Bratislava I District Court's decision of 2 August 2000. The decision indicated Mr Eke as plaintiff and mentioned Mr A. as his representative.
The Regional Court held that a judge's failure to act in accordance with the wish of a party was not a relevant reason for that judge's exclusion. There was nothing to indicate that the judges of the Bratislava I District Court were biased.
The Regional Court further held that, at the time when the petition had been lodged, Mr F. Eke had not been entered in the register of companies as a person entitled to act on behalf of the company at issue. No document authorising Mr Eke to take such action had been submitted in the context of the proceedings. Moreover, Slovenské telekomunikácie, a.s., in an opinion of 25 July 2001, had denied that its representatives had initiated an entry in the register of companies concerning that company's sale. The first-instance court had therefore correctly concluded that Mr A. had filed the petition on behalf of Mr Eke as a natural person. The latter lacked standing to petition for the entry at issue to be made in the register of companies.
The Regional Court held that a person could be admitted as a third party exclusively in contentious proceedings. Article 200b § 2 of the Code of Civil Procedure entitled the first-instance court to decide on the petition of 14 July 2000 without a prior hearing. The Regional Court, with reference to Article 214 § 2 (c) of the Code of Civil Procedure, did not hold a hearing in the appeal proceedings.
On 28 May 2001 Mr Eke and the applicant company lodged an appeal on points of law. On 16 August 2001 Mr A. informed the Supreme Court that company Slovenské telekomunikácie, a.s. was also a plaintiff in the cassation proceedings. They argued that they had not been heard by the courts and had been prevented by them from verifying the documents in the file and from submitting comments on those documents. The conclusion that Mr Eke had lacked standing to file the petition on behalf of Slovenské telekomunikácie, š.p. and in respect of that company's legal successor was arbitrary. The applicant company was also a party to the proceedings.
On 23 November 2001 the Supreme Court rejected the appeal on points of law lodged by Mr Eke It held that the lower courts had correctly concluded that Mr Eke had lacked standing to file a petition on behalf of Slovenské telekomunikácie, a.s. and considered it as having been filed in his own capacity. The relevant provisions of the Code of Civil Procedure allowed for petitions concerning an entry in the register of companies to be decided upon without a hearing. The petitioner was under an obligation to substantiate the request by all relevant documents. There was therefore no need to hear him or her.
The applicant company maintained that a series of steps had been taken with a view to preventing the requested entry to be made in the companies register.
Its representative argued, with reference to the safeguard provisions included in the contract on the transfer of shares of Slovenské telekomunikácie, a.s. to Deutsche Telekom, A.G., that representatives of those companies and the Ambassador of Germany to Slovakia had intervened with the Prime Minister, the Ministry of Justice, the Ministry of Post, Transport, Post and Telecommunications, the Telecommunications Office and the Anti-Monopoly Office.
The applicant further referred to a document which the Ministry of Transport, Post and Telecommunications had presented in September 2001. Entitled “Information on judicial disputes of Slovenské telekomunikácie, a.s. in the case 'Yellow Pages'”, the document indicates that the claims were based on two contracts concluded in 1990 and 1992 on the publishing of telephone directories. Slovenské telekomunikácie, a.s. or its predecessor contested such claims. The document states that the Slovakian authorities had undertaken to do as much as possible, to the extent that the law allowed, to contest the claims related to the “Yellow Pages Dispute”. Immediate measures were therefore required, within the framework of the law in force, with a view to a final resolution of the issue. In particular, it was necessary to accelerate the judicial proceedings pending as well as the investigation into the criminal complaint. An annex to the document lists fourteen sets of pending judicial proceedings.
Article 200a § 1 provides that proceedings relating to the register of companies are brought upon the request of the natural or legal person whom the entry in the register concerns or by other persons entitled to do so under the relevant law. Paragraph 2 of Article 200a entitles courts to start such proceedings of their own initiative for the purpose of harmonising information entered in the register of companies with the actual situation.
Pursuant to Article 200b § 1, in proceedings concerning an entry in the register of companies courts are obliged to examine whether the statutory requirements for making such an entry are met. Paragraph 2 of Article 200b authorises courts to deliver decisions on the content of an entry in the register of companies without holding an oral hearing.
Under Article 214 § 2(c), a court of appeal may dispense with a hearing where an appeal concerns a decision (not a judgment) of the first-instance court.
Article 243a § 3 provides that the court of cassation always decides on appeals on points of law lodged against a decision (not a judgment) without a prior hearing.
Pursuant to Article 13 § 1, legal persons act through the intermediary of bodies established under their articles or through their representative.
Under Article 28 § 1(e), information about a company entered in the register of companies shall comprise the name and address of the persons who are the representatives of the company under its articles and also specify the manner in which such persons are authorised to act on behalf of the company.
Article 31 § 1 provides that a request for an entry to be made in the register of companies is to be submitted either by authorised persons whom such an entry concerns or by persons entitled to do so in accordance with the law or by persons whom the above mentioned persons authorise to do so. A petition for an entry in the register of companies must be accompanied by documents proving the facts which are to be specified in the register (paragraph 2 of Article 31).
Pursuant to Article 32, courts or other authorities have to notify the court which holds the register of companies of any inconsistencies between the actual situation and the information in the register of companies as soon as they become aware of them in the context of their activity.
Article 191 § 1 provides that managing board directs the activities and acts on behalf of a joint stock company. It decides on all issues concerning the company, unless they fall within the power of its general assembly. Members of the managing board who are authorised to represent the company and the manner in which they can do so are to be entered in the register of companies.
Pursuant to Article 488 § 1, where a company is sold by a person entered in the register of companies, such a person files a petition for a corresponding entry to be made in the register of companies.
Section 18 of the State-Owned Companies Act (Zákon o štátnom podniku) of 1990 provides that the bodies of a State-owned company comprise its director and supervisory board.
Section 19(1) and (2) provide that the director is appointed and revoked by the central governmental authority which established the company.
Pursuant to section 19(3), the director acts on behalf of a State-owned company.
Law no. 92/1991 sets out the conditions for the transfer of State-owned property to other persons.
Section 45(1), as in force at the relevant time, prohibited State-owned companies from concluding contracts on the transfer of property which served their business activities.
In accordance with the Supreme Court's practice, proceedings concerning an entry in the register of companies are non-contentious. A petition for an entry in the register of companies is to be supported by documents proving the relevant facts. Where a legal person initiates proceedings concerning an entry relating to it in the companies' register, the court involved decides exclusively on the rights and obligations of the petitioner as a party to such proceedings. Third parties are excluded from proceedings concerning entries in the register of companies (Collection of judicial decisions and opinions of the Supreme Court, nos. 31/1994, 38/1995 and 39/1995).