ITEMID: 001-71883
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: MAHDID AND HADDAR v. AUSTRIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Mark Villiger
TEXT: The four applicants Madani Mahdid, Fatiha Haddar, Riad Mahdid and Yacine Mahdid are all Algerian nationals. They were born in 1959, 1965, 1992 and 1993, respectively, and now live in Canada. The first and second applicants are a couple, and the third and fourth applicants are their children. They were represented before the Court by Mr W. Rainer, a lawyer practising in Vienna. The respondent Government were represented by their agent Ambassador H. Winkler, former Head of the International Law Department at the Federal Ministry of Foreign Affairs.
The facts of the case may be summarised as follows.
On 3 November 1996 the applicants arrived at Vienna International Airport on a flight from Tunis (Tunisia). They were in possession of passports, flight tickets and tourist visas for Slovenia.
On 4 November 1996 they presented themselves to the airport and border police. They requested asylum, claiming that they had fled Algeria because of political persecution and that in Tunisia they risked deportation to Algeria. They further submitted that they were no longer in possession of passports.
Noting that the applicants had no passports and had not arrived directly from the State where they feared persecution, the airport and border police refused them leave to enter Austrian territory.
The applicants were offered lodging in a special transit zone (“Sondertransit”) in a locked container near the airport which was equipped with beds and where food was provided. They refused and continued to stay in the main transit zone of the airport.
On 7 November 1996 the applicants made statements to officers of the Federal Refugee Office (Bundesasylamt).
They said that they had left Algeria in 1994 as the first applicant had been persecuted by the Islamic Salvation Front (FIS). Since 1994 they had been living in Tunisia with tourist visas which they renewed every three months by travelling to Libya and subsequently re-entering Tunisia. The first applicant had obtained refugee status from the UNHCR in Tunisia. They had not filed an asylum request in Tunisia as they feared that once the Tunisian authorities became aware of their presence they would be deported. They added that they had destroyed their passports upon their arrival at Vienna Airport in order to avoid deportation.
Later that day the Federal Refugee Office dismissed the applicants’ request for asylum. It noted that the applicants had come from Tunisia where they were safe from persecution.
Subsequently, at a hearing before the Independent Administrative Panel on 17 April 1997, the applicants explained that it was in fact only after that decision that they had destroyed their passports.
Meanwhile, on 8 November 1996 the Schwechat Federal Police Directorate (Bundespolizeidirektion) ordered the applicants’ deportation to Tunisia, stipulating that if the deportation could not be effected, the applicants were to remain in the transit zone of the airport.
Flights from Vienna to Tunis left twice a week, on Thursdays and Sundays.
On 10 and 17 November 1996 the applicants’ deportation to Tunisia had to be postponed as they could not be found in the transit zone. Another attempt was made to deport them on 14 November 1996, but proved to no avail as the applicants did not comply with the order to board the flight and the authorities refused to employ force.
Meanwhile the Regional Office of the UNCHR in Vienna was informed about the applicants’ situation. It gave a favourable opinion on the applicants’ deportation.
In the morning of 21 November 1996 the applicants were placed under police surveillance in order to ensure their deportation on a flight to Tunisia that evening. Their deportation was however postponed indefinitely after information was received from the Tunisian authorities that they would not accept the applicants without passports. The police surveillance was stopped at 2 p.m. that day.
Meanwhile, the applicants’ case attracted the attention of the media, and several articles about their situation appeared in Austrian newspapers.
On 2 December 1996 the Regional Office of the UNCHR in Vienna stated that in Tunisia the applicants would risk deportation to Algeria. It stated in that connection that on 20 November 1996 it had been informed by the first applicant for the first time that he was a member of the Hamas Party.
On 11 December 1996 the first applicant was again interviewed by an officer of the Schwechat Federal Police Office.
On 13 December 1996 the Austrian authorities allowed the applicants to enter Austria on humanitarian grounds.
On 21 May 1997 the Federal Ministry for the Interior (Bundesminister für Inneres) dismissed the applicants’ appeal against the Federal Refugee Office’s decision of 7 November 1996. It noted that there was nothing to show that Tunisia would disregard its obligations under the Geneva Convention on the Status of Refugees and deport them to Algeria.
On 6 July 1999 the Administrative Court rejected the applicants’ complaints. It noted that the Ministry’s decision was void as it was based on the 1991 Asylum Act which, in the meantime, had been replaced by the 1997 Asylum Act. It therefore directed that the proceedings should resume at the stage of the Federal Refugee Office’s decision. However, the applicants did not pursue the proceedings any further.
In the meantime, on 24 January 1997, the applicants lodged complaints with the Lower Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat). They complained that their stay in the transit zone and the authorities’ attempts to deport them to Tunisia had been unlawful as they should have been allowed to enter Austria as asylum seekers who had come from a country where they feared persecution. They further complained that their stay in the transit zone was contrary to Articles 5 §§ 1 and 4 of the Convention. They submitted that they had been left to their own devices without appropriate sleeping or sanitary facilities. Furthermore, there was no statutory right to bring proceedings by which the lawfulness of their detention could be reviewed speedily by a court and their release ordered if their detention was unlawful.
On 15 July 1997, after a hearing on 17 April 1997, the Independent Administrative Panel (IAP) dismissed the complaint concerning the Austrian authorities’ refusal to let the applicants enter Austria and rejected the complaint concerning their stay in the transit zone. It found that the refusal to let the applicants enter Austria and the subsequent attempts to enforce their departure had been lawful, as they did not possess valid passports and had no right to enter under the relevant provisions of the Asylum Act, since they had come from Tunisia where they were safe from persecution.
The Panel further found that the stay in the transit zone had not been ordered by, and was therefore not attributable to, the Austrian authorities. The applicants, who had been free to leave Austria, had remained of their own free will. It further noted that the situation in the case before it differed from the Amuur case (Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996III) in that the applicants were free to move about the transit zone and had not been placed under surveillance. They had also been in contact with the media and a humanitarian organisation, Caritas, in Vienna, which provided, inter alia, legal assistance. It found that their stay in the transit zone did not amount to a deprivation of liberty.
On 30 September 1997 the Constitutional Court (Verfassungs- gerichtshof) declined to deal with the applicants’ complaints and subsequently referred the case to the Administrative Court.
On 23 February 2001 the Administrative Court noted that the applicants’ complaints did not concern the authorities’ refusal to grant them leave to enter Austria or their attempts to deport them to Tunisia, but were restricted to the IAP’s rejection of their complaint about the alleged unlawful stay in the transit zone. It confirmed the IAP’s findings in this regard. This decision was served on the applicants’ counsel on 14 March 2001.
Meanwhile, in the summer of 1997, the applicants had left Austria for Canada.
Section 32(1) of the Aliens Act (Fremdengesetz) 1992 stipulates that aliens who do not satisfy relevant passport or visa obligations shall be prevented (Zurückweisung) from entering the Austrian territory. An alien shall not be prevented from entering Austria when he is entitled to do so under other legislation.
Section 32(3) lays down that the decision whether or not to admit an alien into Austrian territory will be taken by the border police after questioning the alien and on the basis of plausible evidence submitted by the alien or other known facts.
Section 33 provides that the border police may order an alien who has been refused entry into Austria but is present on Austrian territory to leave immediately. If departure is not immediately possible the officer may order the alien to stay in a designated place in the border control area until he or she leaves the territory.
Section 37 forbids the expulsion of an alien to a State where there is good reason to believe that he or she will be exposed to the risk of inhuman treatment or punishment or the death penalty or will be persecuted, within the meaning of the Geneva Convention relating to the Status of Refugees.
Section 1 of the Asylum Act (Asylgesetz) 1991 defines a refugee as a person who has left his or her home country because of a well-founded fear of persecution on account of his or her race, religion, nationality or adherence to a particular social group or political opinion.
Section 2(3) states that asylum is not to be granted to a refugee who has already found a safe haven from persecution in another country.
Section 6(2) provides that an asylum seeker who has come directly from the State where he allegedly suffered persecution shall be allowed to enter Austria without any formalities.
By virtue of section 7(1), an asylum seeker who has entered Austria in accordance with section 6(2) (that is to say, who has come directly from the State where he allegedly suffered persecution) and who files his request for asylum within one week, has a temporary right of residence.
Both the Aliens Act 1992 and the Asylum Act 1991 have now been amended.
The Protection of Personal Freedom Act (Gesetz zum Schutz der persönlichen Freiheit) provides protection against the intentional deprivation of liberty. In particular, it provides for compensation for unlawful detention and a procedure by which the lawfulness of detention is decided by a body, the Independent Administrative Panel, within one week after the complaint is lodged. If the detention is unlawful, an order must be made for the release of the person detained.
However, according to the Constitutional Court’s settled case-law (see its judgment of 11 March 1999; VfSlg. [Collection of Judgments and Decisions of the Constitutional Court] 15465/1999) a mere order to stay in the main transit zone of an airport after leave to enter Austria has been refused does not amount to an arbitrary deprivation of liberty. The above mentioned Act is therefore inapplicable. On the other hand, an order requiring foreigners to stay in the special transit zone at Vienna International Airport may, in certain circumstances, constitute a deprivation of liberty.
By virtue of Section 67a (1) of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) Independent Administrative Panels have jurisdiction, inter alia, to examine complaints from persons who allege a violation of their rights as a result of the exercise of direct administrative authority and coercion (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt).
A refusal by the border police to admit foreigners arriving at Vienna International Airport into Austria is deemed to be an exercise of direct administrative authority and coercion.
Section 73 of the General Administrative Procedure Act deals with the administrative authorities’ duty to give a decision. It provides that, in the absence of any contrary provision in the administrative regulations, the authorities must decide applications by parties without unnecessary delay and at the latest six months after the application or appeal has been lodged.


ITEMID: 001-5956
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: SANIEWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a Polish national, born in 1980 and living in Pionki.
On 20 June 1997 the applicant obtained a school report for the school year 1996/97. He attended a State secondary school in Pionki. The report contained a list of courses that he had followed during this year, including “religion/ethics”, and marks obtained for his progress. The place reserved for “religion/ethics” contained no mark, but was left blank. Likewise, places reserved for certain other subjects such as “informatics”, “music” and “fine arts” were left blank.
Article 53 of the Constitution of Poland, adopted on 2 April 1997, provides that freedom of faith and religion shall be ensured to everyone. Pursuant to this Article, freedom of religion shall include the freedom to profess or to accept a religion by personal choice as well as to manifest such religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in ceremonies, performing rites or teaching. Freedom of religion shall also include the possession of sanctuaries and other places of worship as well as the right of individuals, wherever they may be, to benefit from religious services.
According to this Article, parents shall have the right to ensure their children’s moral and religious upbringing and teaching in accordance with their convictions.
The religion of a church or other legally recognised religious organisation may be taught in schools, but the freedom of religion and conscience of others shall not be infringed thereby.
The freedom to express publicly one’s religion may be limited only by means of statute and only where this is necessary for the defence of State security, public order, health, morals or the rights and freedoms of others.
No one shall be compelled to participate in religious practices or prevented from such participation. No one may be compelled by the organs of a public authority to disclose his philosophy of life, religious convictions or beliefs.
Other provisions on freedom of religion and conscience are laid down in the Freedom of Conscience and Religion Act of 17 May 1989, as amended, which reads as follows:
"1. Poland (...) shall secure to its citizens freedom of conscience and religion.
2. Freedom of conscience and religion includes freedom to choose one's religion or belief and freedom to manifest one's religion or belief, either alone or in community with others, in private and in public. (...)"
"In the exercise of their freedom of conscience and religion, citizens may in particular: (...)
2a) belong, or not belong, to churches or other religious communities;
3) express their religious opinions;
4) raise their children in conformity with their religious convictions;
5) remain silent as to their religion or convictions, ... ."
The majority of schoolchildren attend State schools. In August 1990 the Ministry of Education issued two Ordinances, introducing religious instruction in Roman Catholicism and other religions into public schools on a voluntary basis. A declaration was to be made by parents in primary schools, and pupils in secondary schools, to confirm whether the pupils wished to attend. Separate school reports were to be issued with marks for religious instruction.
The Ombudsman lodged a constitutional complaint with the Constitutional Court (Trybunał Konstytucyjny), challenging the conformity of certain provisions of those Ordinances with the law. The Ombudsman considered that they breached the statutory guarantee of the right to remain silent with regard to one's religion and convictions, as provided for in the Freedom of Conscience and Religion Act of 1989. He contended that the Ordinances disclosed a breach of this guarantee as their implementation would result in an obligation to reveal the religious convictions of parents and children.
In a decision of 30 January 1991, the Constitutional Court found that voluntary religious tuition at school was not in breach of the Freedom of Conscience and Religion Act. The court considered that by allowing a child to attend religious instruction a parent is not obliged to reveal his or her beliefs, since a non-believer could agree to the child attending such classes whereas a believer could refuse. It further considered that the right to remain silent with regard to one's religion and convictions could not be interpreted as an obligation to remain silent. The Court stressed that neither declaring one's wish to attend religious instruction nor the instruction itself was mandatory.
On 15 April 1992 the Minister of Education enacted a new Ordinance on the organisation of religious instruction in public schools. The Ordinance replaced the 1990 Ordinance referred to above. It provides for participation in religious instruction on a voluntary basis, a course on ethics being organised on the same voluntary basis for those pupils who do not wish to attend such instruction. It further provided for marks for "religious instruction/ethics" to be included in the official school reports. Article 9 of the Ordinance provides that the school report should not contain any data which would disclose whether a pupil attended a course in any particular religion or in ethics "in order to eliminate any possible opportunities for intolerance" ("w celu wyeliminowania ewentualnych przejawów nietolerancji").
In August 1992 the Ombudsman filed a constitutional complaint against this Ordinance with the Constitutional Court. The Ombudsman submitted that including marks for religious instruction in an official school report breaches the principle of the separation of churches and the State, and infringes the right to remain silent about one's beliefs and convictions, guaranteed by law.
In a decision given on 30 April 1993, the Constitutional Court found that including marks for "religion/ethics" in official school reports did not reveal whether a pupil had attended one course or the other. Therefore, the court found it unnecessary to examine the question whether the impugned Ordinance had infringed the right to remain silent regarding one's religion and convictions.
On 14 April 1997 Poland ratified the concordat with the Vatican. Article 12 (1) of the concordat reads as follows:
“The State, respecting the right of parents to ensure the religious education of their children and the principle of tolerance, shall guarantee that public primary and secondary schools and pre-school establishments, run by the State and local government administration, organise, if interested persons so wish, courses in religious education within the framework of school and pre-school curricula.”
In accordance with Article 33a of the Constitution of 2 April 1997, the Constitutional Court rules on the conformity of statutes and other normative acts enacted by the main and central State organs with the Constitution, and establishes a universally binding interpretation of laws.
Pursuant to Article 79 of the Constitution, everyone whose constitutional rights or freedoms have been infringed shall have the right to request a ruling by the Constitutional Court as to the conformity with the Constitution of a statute or another normative act, on the basis of which a court or organ of public administration has given a final decision impinging upon the complainant’s constitutional rights or freedoms.
Under Article 188 of the Constitution, the Constitutional Court shall give rulings concerning, inter alia, the conformity of statutes and international agreements with the Constitution, and also the conformity of provisions enacted by central State organs with the Constitution, as well as that of ratified international agreements and statutes.
Under the provisions of the Constitutional Court Act of 1 August 1987, a constitutional complaint should not be directed against an individual act of application of legal provisions, such as an administrative decision or a judicial decision. Its purpose and scope should be limited to challenge the compatibility with the Constitution of legal provisions which served as a legal basis for such an individual act.
The complaint shall indicate which constitutional rights or freedoms have been violated by a statute, ordinance, order, or other normative act complained of, and contain a description of the alleged violation.
It should be lodged with the court within three months after a final individual decision has been served on the complainant.


ITEMID: 001-106167
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KACHURKA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Mykhaylo Buromenskiy
TEXT: 6. The applicants, husband and wife, were born in 1937 and 1939 respectively and live in Zaporizhya.
7. At about 1:40 a. m. on 29 March 2000 N.K., the wife of S.K. (the applicants’ son) and M.S., a family acquaintance, informed the police that S.K. had committed suicide by hanging himself in the bathroom in his flat.
8. Having arrived at S.K.’s flat, the police examined the scene of the incident and drew up a report, noting that by the time of their arrival S.K.’s body was lying on the bathroom floor, fully dressed in outdoor clothes without any recent damage to them. He had no visible injuries, except strangulation marks on his neck and an abrasion on his hand. The strangulation marks were uneven (three on the right side and two on the left) and particularly visible on the front of the neck. A self-tightening loop of grey synthetic cord was found near the body and another fragment of analogous cord was tied to the middle of a horizontal water supply pipe three meters above the floor. The flat was in good order and no signs of any struggle could be found either on the body or anywhere in the flat. Following the examination, the police took away the cord.
9. On the same date the police also took written statements from M.S. (the family acquaintance) and S.M. (a neighbour whose telephone had been used to call the police). M.S. told the police that he knew S.K. and his family and lived in the neighbourhood. At about 1.30 a. m. N.K. (S.K.’s wife) had rung his door and requested his help in breaking into her locked bathroom. She explained that her husband had come home drunk at about 1 a.m., had locked himself in the bathroom and had been crying loudly. She had attempted to break the door open with an axe, but to no avail. M.S. had then followed N.K. to her flat, broken open the bathroom door with a chisel, and had seen S.K. suspended by his neck from the pipe. M.S. and N.K. had cut the cord and had placed S.K.’s body on the floor. They had called the police and an ambulance and had attempted to resuscitate S.K. However, S.K. had already died. S.M. (the neighbour) stated to the police that at about 1:30 a.m. N.K. had asked him to call an ambulance, as her husband had hung himself. He had entered the flat at N.K.’s invitation and had seen the body already placed on the floor.
10. Also on the same date, an autopsy of S.K.’s body took place. According to the resulting findings, he died of mechanical asphyxia caused by hanging.
11. On 6 April 2000 further results of the forensic examination of S.K.’s body were received, according to which S.K. had been moderately intoxicated by alcohol (2.0%) at the time of his death. The expert report stated that there had been no other injuries or abnormalities on his body.
12. On 8 April 2000 N.K. (S.K.’s wife) stated that shortly before his death her husband had shared with her that he had a lover, who had fallen pregnant, and that he was worried about the debt owed by his father to company S. On the day of the incident, he had come home at about 10 p.m. with D.Sh., an acquaintance. They had both been rather drunk. After a little while, N.K., S.K. and Y.K. (their eight-year-old daughter) had accompanied D.Sh. out and had returned home. The daughter had gone to bed, while S.K. and N.K. had been drinking coffee in the kitchen until about 1 a.m. At some point in time, they had been interrupted by a visit from G.P., another acquaintance, who had been looking for D.Sh., and, having learned that he had already gone, G.P. had left immediately. Subsequently, S.K. had gone to the bathroom. Worried about his long absence, N.K. had called for him and had received no answer. She had attempted to break into the bathroom with a kitchen axe, but had been unsuccessful. Thinking that S.K. may have fallen asleep, she had gone to get the help of M.S., who lived nearby and who was well respected by her husband.
13. On the same date the investigative department of the Leninskiy District Prosecutor’s Office in Zaporizhya (“the District Prosecutor’s Office”) decided not to institute criminal proceedings into the circumstances of S.K.’s death, having found it sufficiently established that he had deliberately taken his own life.
14. On 10 April 2000 the applicants appealed to the Leninskiy District Prosecutor requesting further investigation. They noted, in particular, that they had suspected G.P., allegedly their son’s wife’s lover and who had visited the family shortly before S.K.’s death, of having strangled S.K., potentially in connection with a property dispute between the spouses, who had been planning to divorce. They drew the prosecutor’s attention to certain facts which appeared peculiar to them: in particular, S.K.’s being dressed in a jacket after having allegedly been home for several hours; contradictory evidence as to the existence of an abrasion (possibly from the cord) on S.K.’s hand; and the failure of the investigative authorities to examine the cord and to take away the axe and the chisel. Subsequently, on many occasions throughout the investigation, the applicants continued to suggest that S.K. could have been intentionally strangled with the cord and then placed in the bathroom, the hanging being imitated. Alternatively, he could have been poisoned by narcotic or psychotropic substances and incited to commit suicide. They alleged that the persons potentially implicated in the murder included his wife, her parents, and her lover (G.P.) and subsequently Y.M., a neighbour who had been on bad terms with S.K.
15. On 16 June 2000 the Zaporizhya Regional Prosecutor’s Office (“the Regional Prosecutor’s Office”) quashed the decision of 8 April 2000 and ordered additional inquiry. It reprimanded the District Prosecutor’s Office, in particular, for not having served the applicants with its decision of 8 April 2000 and not letting them access the inquiry materials. They further instructed the investigators, in particular, to question: the applicants in order to verify the probability of the applicants’ assertions concerning the murder being correct; the two acquaintances, who visited the family before S.K.’s death (D.Sh. and G.P.); relatives of G.P.; and two neighbours who had acted as lay witnesses during the examination of the scene of the incident.
16. On 5 July 2000 a new decision not to institute criminal proceedings was taken, the text of which did not reflect whether the Regional Prosecutor’s Office’s instructions had been carried out.
17. On 10 August 2000 the Regional Prosecutor’s Office annulled this decision, having found that the investigation had been perfunctory. On 14 August 2000 it further addressed a letter to the Leninskiy District Prosecutor, noting that the case-file documents had not been kept in order, as required by the applicable document processing rules, which also stipulated procedures regarding stitching and numbering. In addition, it gave detailed instructions as to further investigative actions to be taken. It ordered, in particular, that: the cord be examined and where S.K. had taken it from be determined; S.K.’s colleagues be questioned concerning his moods and affairs; his wife’s allegations about his involvement with his father’s alleged debts and his alleged lover’s pregnancy be investigated; why S.K. had been wearing a jacket be determined; and whether S.K.’s wife and G.P. had had a love affair and whether this could have played a role in S.K.’s death be assessed.
18. On 29 August 2000 the District Prosecutor’s Office took a fresh decision not to institute criminal proceedings. It noted, in particular, that S.K.’s wife had stated during additional questioning of her that she had never had an affair with G.P. and that there had been no conflicts in the family in this respect, while S.K.’s wearing of a jacket was explained by his regular habit of dining in outdoor clothes. The prosecutor’s office further referred to a statement of S.K.’s minor daughter (Y.K.) confirming that G.P., who had indeed visited them during the evening, had left the flat long before her father’s death. In addition, it found that the first applicant had not had financial problems involving his son in any way.
19. On 25 September 2000 the Regional Prosecutor’s Office annulled this decision, having found that its instructions had not been duly carried out.
20. On 11 October 2000 the investigator, O.P., reported to the Zaporizhya City Prosecutor that it had not been possible to examine the cord, as, contrary to his expectations, for unexplained reasons it was absent from the safe and could not be found anywhere.
21. On 17 October 2000 a fresh decision refusing to institute criminal proceedings was taken.
22. On 10 November 2000 the applicants appealed to court. They noted that the investigation had failed to examine whether the pipe had contained any friction marks attesting to the suspension of a heavy, jerking body from it and whether the bathroom door could have been locked from the outside after the dead body had been placed within it. It had further failed to reconcile contradictions between various data concerning an abrasion on S.K.’s hand. In addition, the applicants alleged that their granddaughter had initially told them that G.P. (N.K.’s alleged lover) and Y.M. (a neighbour, with whom S.K. had allegedly been on bad terms) had been in their house shortly before S.K.’s death, and that she had heard sounds of an argument, followed by a cry and then the sound of running water.
23. On 22 November 2001 the applicants amended their appeal, submitting that they had been unable to present full arguments earlier, having been denied access to the case file. They further pinpointed various contradictions between N.K.’s, M.S.’s, G.P.’s and Y.M.’s statements and suggested that they had earlier seen a cord, similar to that by which S.K. had been strangled, near G.P.’s car. They further noted that the case file had not contained their son’s wife’s and their granddaughter’s statements which had been given shortly after the incident, and that the investigation had baselessly affirmed that there were no traces of narcotic or psychotropic substances in S.K.’s blood, while in fact this point had never been examined. They further contended that the information concerning an abrasion on S.K.’s hand, together with the finding that there were three strangulation marks on one side and two on the other side of S.K.’s neck, could signify that S.K. had attempted to defend himself from an intruder trying to strangle him. The applicants also alleged that they had been called on the phone and threatened by strangers, and that the people involved in their son’s death could have included his wife, her lover and her parents, and Y.M. (a neighbour).
24. On 16 September 2002 the Zavodskiy District Court in Zaporizhya annulled the decision of 17 October 2000. It noted, in particular, that the District Prosecutor’s Office had failed to examine all relevant facts and collect evidence in accordance with the instructions of the Regional Prosecutor’s Office, and it remitted the case for additional inquiry.
25. On 16 December 2002 the District Prosecutor’s Office took a fresh decision not to institute criminal proceedings, relying, in essence, on the same arguments as in the previous decisions.
26. On 10 January 2003 the Zaporizhya City Prosecutor annulled this decision, noting that no additional actions had been carried out.
27. Following this decision, in January 2003 the investigative authorities carried out additional questioning of various witnesses, including S.K.’s daughter (Y.K.), who confirmed her mother’s statements, and M.S. (the acquaintance, who helped to open the bathroom door and take S.K. off the pipe), who noted that when he had entered the bathroom, S.K. had been suspended from the pipe, his legs approximately twenty centimetres above the floor.
28. On 20 January, 10 February and 10 April 2003 the Prosecutor’s Office took fresh decisions not to institute criminal proceedings, all of them subsequently being quashed.
29. On 26 May 2003 the Regional Prosecutor’s Office annulled the lastmentioned decision, having found that the investigation was incomplete. In particular, it noted that there were still contradictory sources of evidence with regard to the hand injury. The case was transferred to the Zaporizhya City Prosecutor’s Office for further handling.
30. On 9 June 2003 the City Prosecutor’s Office again decided not to institute criminal proceedings. However, the applicants continued to lodge various complaints with the authorities, including complaints that they had been unlawfully denied access to the case file and that the investigation had failed to properly examine an audio-recording of a conversation they had had with their granddaughter and to incorporate it into the body of evidence.
31. In response to their complaints, some additional actions were carried out, including: a request that S.K.’s wife to allow the re-examination of her home, which she refused on the basis that she had already renovated the bathroom; and an additional questioning of the medical expert, who had recorded that S.K. had not had any injuries on his hand. The authorities further noted that the questioning of another expert witness involved was no longer possible, as that expert witness had died.
32. On 16 March 2004 the Regional Prosecutor’s Office refused an application by the applicants for reopening of the investigation, having informed them, in particular, that no statements by S.K.’s wife and daugther were missing from the case file, as they had first been questioned on 8 April and 5 July 2000 respectively. It also noted that in accordance with the Destruction of Unnecessary Evidence Act of 15 November 2001, the cord had been deliberately destroyed.
33. The applicants appealed to the courts.
34. On 21 September 2004 the Ordzhonikidzevskiy District Court in Zaporizhya quashed the preceding decision not to institute criminal proceedings. It noted, in particular, that the investigation had been onesided; the authorities focusing entirely on whether the explanation of suicide was probable. There had been no comprehensive and coherent analysis of the probability or improbability of the applicants’ allegation of imitated hanging preceded by intentional strangling. In particular, the investigative authorities had failed to establish the manner of S.K.’s hanging and had not reconciled various contradictions in the evidence in this respect. Information which had not been uncovered included details of the position of S.K.’s body; the capacity of the water supply pipe to withstand the weight of his body being suspended from it, particularly with regard being had to its sudden jerk from the bathtub edge; S.K.’s technical ability to prepare and complete the hanging, given the level of alcohol in his blood; and the nature and origins of the abrasion on his hand. The court also noted that the authorities had negligently failed to take away and examine the chisel and the axe.
35. On 24 May 2005 V.Sh., one of the lay witnesses who had signed the report of the examination of the scene on 29 March 2000, refused to report for questioning, alleging, in particular, that he was very ill and could no longer recall the relevant details.
36. On 10 June 2005 a fresh decision not to institute criminal proceedings was taken.
37. On 15 March 2006 the Ordzhonikidzevskiy District Court quashed the decision, having found that its previous instructions had remained largely not followed and that the manner of S.K.’s hanging had not been established.
38. On 24 October 2006 a new decision not to institute criminal proceedings was taken. As noted in that decision, it had been no longer possible to examine relevant physical evidence, as the bathroom had been renovated and such objects as the axe, the chisel, and the cord had not been available. However, regard being had to the available materials, particularly to the witness statements, it was found that it would not have been possible to place a strangled body into the bathroom and lock the door from the outside. Rather than jumping from the bathtub edge, S.K. had either leaned against it or touched the floor with his feet, his incomplete hanging explaining the distribution of his weight, which would have been able to be supported by the water supply pipe. His alcohol intoxication being moderate, he ought not to have lost his judgment to the point of not being able to hang himself.
39. On 6 April 2007 the Ordzhonikidzevskiy District Court rejected the first applicant’s appeal against this decision, having noted that he had lodged it outside the statutory time-limit without having a valid justification for his failure to meet the deadline. In any event, the court held that the investigative authorities had used up all the means reasonably available to them to examine the situation and that it was not likely that any further investigation would bring new results or secure evidence in support of the applicants’ allegation that S.K. could have been murdered.
40. The parties did not inform the Court whether this decision was appealed any further.
41. The relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 36-39, 4 April 2006).
VIOLATED_ARTICLES: 2


ITEMID: 001-22018
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: MARINKOVIC v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Veselin Marinkovic, is a national of the Federal Republic of Yugoslavia, who was born in 1970 and currently lives in Lustenau. He is represented before the Court by Mr. W. Weh, a lawyer practising in Bregenz.
The facts of the case, as submitted by the applicant, may be summarised as follows:
The applicant has been living in Austria since 1986. His wife followed him in 1988 and their three children were born there.
On 2 February 1995 the Bregenz District Authority (Bezirkshauptmannschaft) imposed a ten year residence ban on the applicant pursuant to section 18 of the 1992 Aliens Act (Fremdengesetz). It referred to the applicant’s conviction on charges of burglary and coercion, for which he had been sentenced to eight months’ imprisonment. Further, it had regard to thirteen convictions in relation to administrative offences for which he had been fined. It found that although the issue of a residence ban constituted an interference with the applicant’s private and family life, the public interest outweighed the applicant’s personal interests in remaining in Austria.
On 2 August 1995 the Vorarlberg Federal Security Authority (Sicherheitsdirektion) confirmed the decision, but reduced the duration of the residence ban to five years.
Subsequently, the applicant lodged a complaint with the Administrative Court (Verwaltungsgerichtshof).
On 5 October 1995 the Administrative Court granted the applicant’s request for suspensive effect.
On 1 January 1998 the Aliens Act 1997 entered into force (“the 1997 Act”).
On 23 June 1998 the Administrative Court declared the applicant’s complaint to be devoid of purpose and discontinued the proceedings.
It noted in the first place that, pursuant to the 1997 Act, the conditions for issuing a residence ban differed from those set out in the Aliens Act 1992 (“the 1992 Act”). In the present case, the requirements of section 114 (4) of the 1997 Act to discontinue proceedings were fulfilled for the following reasons: Unlike section 18 of the 1992 Act, under which the authority had to issue a residence ban if the conditions were met, section 36 of the 1997 Act left a certain degree of discretion to the authority. In the proceedings conducted so far, the applicant had not had the opportunity to submit facts, which - having regard to the authority’s discretion - could militate against the issue of a residence ban. Moreover, the residence ban against the applicant was not one which could obviously be based on the provisions of the 1997 Act. This was why the applicant’s complaint had become devoid of purpose and the proceedings had to be discontinued. Referring to section 115 of the 1997 Act, the Administrative Court found that the applicant had to bear his own costs. The Administrative Court’s decision was served on the applicant on 27 July 1998.
As a consequence of the Administrative Court’s decision, the residence ban proceedings were remitted to the first instance authority.
On 5 October 1998 the Dornbirn District Authority again imposed a ten year residence ban on the applicant pursuant to section 36 of the 1997 Act. It had regard to the fact that, in addition to the conviction already relied on in the residence ban of 2 February 1995, the applicant had also been convicted of negligently causing bodily harm, of intentionally causing bodily harm and of poaching and, in each case, had been sentenced to a fine. Moreover, his convictions for administrative offences had in the meantime increased to a total of forty-five. The applicant had, thus, shown a continuous disrespect for the Austrian legal order. Although the issue of a residence ban constituted an interference with the applicant’s private and family life, it was necessary for the prevention of disorder and crime.
The applicant’s appeal and his further complaint to the Administrative Court remained unsuccessful.
Section 114 of the 1997 Act contains transitional provisions relating inter alia to residence bans. So far as relevant it reads as follows:
“(4) A residence ban, which is being challenged in proceedings before the Administrative Court or the Constitutional Court, ceases to be effective on the date of entry into force of this Act, unless it obviously has a basis in the provisions of this Act. ...
(7) In cases falling under paragraph 4 ... the complaint [to the Administrative Court or the Constitutional Court] has to be declared devoid of purpose and the proceedings are to be discontinued without hearing the applicant. ...”
The Administrative Court has to decide in each of such pending cases whether the conditions for discontinuing the proceedings are met. Following a decision discontinuing the proceedings pursuant to section 114 (4) and (7), the residence ban proceedings are remitted to the first instance authority.
Section 115, so far as material, provides as follows:
“(1) ... section 114 (4) .. applies to proceedings which are pending at the time of the entry into force of this Act and are ... not to be rejected as being inadmissible. The parties to these proceedings have to bear their own costs.”
Section 47 (1) of the Administrative Court Act provides that the prevailing party may claim the reimbursement of their costs from the unsuccessful party.


ITEMID: 001-112574
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PRYNDA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicants were born in 1944 and 1942. The first applicant, Ms Olga Prynda, died on 1 February 2010. The second applicant lives in the town of Stryy, Ukraine.
6. On 6 October 2003, at around 9 p.m., the applicants’ son was hit and killed by a car being driven by a German national, Mr F. The car belonged to a Polish national, Ms G.
7. The law-enforcement authorities examined the scene of the accident immediately after and prepared a vehicular accident scheme with the relevant measurements. The participants in the road traffic accident (Mr F. and Mr G., who was also in the car during the accident) gave their account of it.
8. On 7 October 2003 the Stryy Police Department instituted a criminal investigation into the road traffic accident and ordered a forensic medical examination of the victim.
9. On 8 October 2003 an on-site vehicular accident reconstruction was carried out with the participation of Mr F. and Mr G. and in the presence of attesting witnesses (Mr R. and Mr L.). On the same date two other persons were questioned as witnesses.
10. On 9 October 2003 the investigator ordered a technical vehicular examination, which was conducted on 13 October 2003 and established that the applicants’ son had died of serious head trauma as a result of the road traffic accident.
11. The applicants learned on 13 October 2003 that their son was dead and his body was in the town morgue.
12. On 23 October 2003 the applicants applied to the Transport Insurance Company for compensation. On 3 November 2003 the applicants and their granddaughters were awarded compensation of UAH 8,500 as heirs of the victim. In the accompanying letter, the Insurance Company informed the applicants that the above amount was the maximum amount it could pay under the law without consent of the foreign insurance company and it was open to them to seek any further compensation by lodging a civil claim against a person or persons liable for the accident. The applicants and their grandchildren received the above amount in equal shares on 13 June 2005.
13. On 28 October 2003 the forensic medical examination ordered on 7 October 2003 was conducted. It concluded that the applicants’ son had died as a result of the road traffic accident from open head trauma, and that he had been moderately drunk when the accident had occurred.
14. On 1 November 2003 the investigator ordered a forensic technical vehicular examination, which was conducted on 2 December 2003.
15. On 26 February 2004 the investigator ordered a vehicular trace examination, which was conducted on 26 April 2004.
16. Between December 2003 and December 2004 the applicants made numerous complaints to the different State authorities about delays in the investigation into the death of their son.
17. On 26 June 2004 the investigator stayed the proceedings on the ground that the only witnesses to the accident were the driver and the passenger of the car which had hit the applicants’ son, but they could not be questioned as they resided abroad and the police had no funds to arrange for them to travel to Ukraine.
18. On 14 July 2004 the Lviv Regional Prosecutor’s Office (“the LRPO”) quashed the decision of 26 June 2004 and instructed the police to continue the investigation.
19. On 30 December 2004 the investigator of the Lviv Regional Police Department decided to discontinue the criminal proceedings for lack of corpus delicti in the driver’s actions. It was established that, given the darkness, the wet road and the headlights from an oncoming car, the driver had only seen the applicant’s son, who had been walking on the road, at a distance at which he could not avoid hitting him.
20. On 10 January 2005 the LRPO quashed the decision of 30 December 2004 on account of the incompleteness of the investigation and gave instructions for further investigative actions.
21. By a letter of 25 January 2005, the Lviv Regional Police Department informed the applicants that the investigation of the case was complicated by the fact that the defendants resided abroad and the Department had no means available to cover the costs that would be incurred by them travelling to Ukraine.
22. On 31 January 2005 the investigator ordered an additional forensic technical vehicular examination, which was conducted on 25 February 2005.
23. On 4 April 2005 the investigator again decided to discontinue the criminal proceedings for lack of corpus delicti in the driver’s actions.
24. On 13 May 2005 the LRPO quashed the decision of 4 April 2005 on account of the incompleteness of the investigation, and gave instructions for further investigative actions to be taken.
25. On 12 August 2005 the investigator discontinued the criminal proceedings. The decision noted that the investigation had followed all the instructions of the prosecutor but had found no new factual data capable of affecting its previous conclusions.
26. On 26 December 2005 the LRPO quashed the decision of 12 August 2005. It noted that the investigator had followed the instructions given on 10 January 2005 only in part, while the instructions given on 13 May 2005 had been ignored altogether.
27. By a letter of 5 January 2006 the LRPO informed the applicant that the investigation had been reopened and disciplinary proceedings had been instituted against the investigator in their son’s case for having breached criminal procedure.
28. On 16 January 2006 the investigator refused to institute criminal proceedings against Mr F., Mr G. and Ms G.
29. On 30 January 2006 the investigator stayed the criminal proceedings concerning the death of the applicants’ son, stating that the prosecutor had instructed him to find other witnesses to the accident, which he had been unable to do so far.
30. On 5 May 2006 the investigation was resumed.
31. On 16 May 2006 the LRPO refused to institute criminal proceedings in connection with a complaint by the applicants in which they alleged that Mr. F, Mr. G. and Ms. G had bribed the police.
32. On 24 November 2006 the criminal proceedings were again discontinued. The investigator noted that he had summoned Mr G., who resided in Poland, to appear for participation in further investigative actions, but he had failed to appear. He also noted that Mr F. could not be summoned from Germany, as the investigation had no funds to pay for his travel expenses to Ukraine. It was further mentioned that there was no evidence that Mr F. had been the guilty party in the road traffic accident in question.
33. On 28 November 2006 the LRPO quashed the decision of 24 November 2006 on account of the incompleteness of the investigation.
34. On 4 November 2007 the investigation conducted an on-site reconstruction of the accident with the participation of Mr F., who was summoned from Germany.
35. On 17 November 2007 the investigator refused to institute criminal proceedings against Mr F. and discontinued the criminal proceedings into the road traffic accident that had led to the death of the applicants’ son. This latter decision was quashed by the LRPO on 15 January 2008.
36. On 6 February 2008 the investigator ordered an additional forensic transport trasological examination, which was completed on 3 April 2008.
37. On 19 April 2008 the investigator discontinued the criminal proceedings once again. He noted that the additional examination had established that the driver could have avoided hitting the victim with the use of emergency breaking only if the victim had been running. Given that there was no confirmation that the victim had been running, the investigator discontinued the proceedings, noting that under Article 62 of the Constitution an accusation could not be based on assumptions.
38. On 4 July 2008 the LRPO quashed the decision of 19 April 2008, stating that it was necessary to conduct additional investigations.
39. On 22 November 2008 the investigator discontinued the criminal proceedings. That decision was quashed by the LRPO on 9 December 2008.
40. On 30 December 2008 the criminal proceedings were stayed by the investigator, who indicated in his decision that on 6 October 2003 Mr F. had hit an unknown person.
41. On 20 April 2010 the investigator resumed the criminal proceedings.
42. On 20 August 2010 the investigator refused to institute criminal proceedings against Mr F. for lack of corpus delicti in his actions. By another decision, of the same date, the investigator discontinued the criminal proceedings concerning the road traffic accident which had led to the death of the applicants’ son. That decision by the investigator had been examined and upheld by the General Prosecutor’s Office.
43. The relevant provisions of domestic law can be found in the judgments in the cases of Muravskaya v. Ukraine (no. 249/03, §§ 35-36, 13 November 2008), and Igor Shevchenko v. Ukraine (no. 22737/04, § 31, 12 January 2012).
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-109292
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ATAKISHI v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of opinion of people;Stand for election);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1959 and lives in Baku.
6. He stood in the elections to the National Assembly of 6 November 2005 as an independent candidate. He was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single-mandate Shamakhi Electoral Constituency No. 85.
7. On 29 October 2005 the ConEC held a meeting in the applicant’s absence and decided to apply to the Court of Appeal with a request to cancel the applicant’s registration as a candidate owing to reports of his engaging in activities incompatible with the requirements of Articles 88.1-88.4 of the Electoral Code. The ConEC relied on the following grounds.
8. Firstly, it noted that it had received a written complaint from a voter (H.S.) claiming that the applicant had given him money (in the amount of 300 US dollars) and asked him to promote the applicant’s candidacy among the population, offer money to voters in exchange for their votes, and disrupt his main opponent’s campaign.
9. Secondly, it noted that it had received complaints from a number of voters and from another candidate (M.I.) that the applicant had regularly insulted his opponents and the government in his campaign speeches and publications and physically disrupted his opponents’ meetings with voters. In particular, one of the complaints by voters, sent to the ConEC by telegram, stated, in its entirety, as follows:
“[The applicant] and his supporters insult the current government and use offensive language in respect of other candidates, we ask you to take the necessary measures.”
10. Another telegram by a voter stated, in its relevant part, as follows:
“... during his meeting with voters in our village, [the applicant], instead of speaking about his election platform, insulted and spread calumnious rumours about [four other] candidates; such a candidate should be disqualified from the election if his actions are contrary to the election law, and what good can [the applicant] bring to the population, to the State; his candidacy should be cancelled ...”
11. There were several other hand-written letters or telegrams with a similar content.
12. The complaint by the candidate M.I. stated that the applicant insulted him at all his meetings with voters, using offensive language. M.I. further stated that on 28 October 2005 a large group of the applicant’s supporters, including his brother, had forcibly broken into a meeting room where M.I. was holding a campaign meeting with voters, disrupted the meeting, caused disorder and insulted M.I. using obscene language.
13. Another complaint was submitted by several highly-ranked members of the local branch of the Yeni Azerbaijan Party (“the YAP” – the ruling party, which, it appears, supported candidate M.I. in the election in question). They noted that the applicant’s supporters had disrupted M.I.’s meeting and subsequently “made for the streets and attempted to disrupt the peace and quiet of the town’s population”.
14. According to the applicant, on 28 October 2005 H.S. wrote a letter to the ConEC retracting his previous accusations against the applicant and explaining that he had made those statements owing to a personal disagreement with one of the applicant’s supporters and under the influence of emotion in the heat of the moment. In the following days, H.S. wrote similar letters to various electoral commissions and courts, retracting his accusations. According to the applicant, he also attempted to attend the Court of Appeal hearing concerning his disqualification (see below).
15. It appears that, on 29 October 2005, the Prosecutor’s Office of the Shamakhi Region commenced a criminal inquiry into allegations that on 28 October 2005 the applicant’s brother had resisted a police officer who was trying to restore order at a meeting of M.I. with voters, which had allegedly been disrupted by the applicant’s supporters. No information is available about the outcome of this inquiry.
16. The Court of Appeal examined the ConEC’s request at a hearing held on 31 October 2005. According to the applicant, although the hearing was officially scheduled to commence at 11 a.m., it actually took place at around 5 p.m. He had not received a written summons and was informed of the hearing orally only at around 2 p.m. on the same day, about three hours before the hearing. It was the first time he had been officially informed of the ConEC’s request of 29 October 2005 and that the Court of Appeal was considering the issue of his disqualification.
17. During the hearing, the applicant denied all the accusations against him, arguing that they had not been duly proved and, in any event, could not be a basis for cancelling his registration as a candidate. He noted that H.S. had retracted his accusations against him and had admitted that they had been false. He further noted that he had not been summoned to the ConEC meeting of 29 October and that the ConEC’s decision had not been made available to him. Lastly, he denied the accusation that his supporters had interfered with M.I.’s meeting with voters.
18. Having examined the written evidence submitted by the ConEC, which consisted mainly of copies of the above-mentioned written complaints by several voters, M.I. and local YAP members, the Court of Appeal considered that that evidence was sufficient to find that the applicant had breached the requirements of Articles 88.1, 88.2 and 88.4 of the Electoral Code, and it therefore cancelled his registration as a candidate.
19. The applicant appealed. Among other things, he complained that he had not been informed of the ConEC meeting of 29 October 2005 and that neither the ConEC decision nor any case materials had been officially made available to him prior to the Court of Appeal’s hearing. He further noted that it was in any case unclear from the relevant documents (which had been made available to him subsequently) whether the said ConEC meeting had taken place on 25 or 29 October, because the documents were contradictory and “falsified”. He claimed that all the alleged evidence against him had been fabricated in one day and that the allegations of his alleged wrongdoings were false and based on lies. He further complained that the Court of Appeal had not heard any of the complainants. As to the “complaints by voters”, the court had not even attempted to verify whether they had been authored by existing persons. Moreover, despite the fact that H.S. had sent a retraction of his accusations to the ConEC and the Court of Appeal and had personally attended the hearing, the court had refused to hear him.
20. On 5 November 2005 the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’s judgment of 31 October 2005. It found that the Court of Appeal had not committed any breaches of substantive or procedural law and that the applicant’s arguments were not supported by the material in the case file.
21. According to Article 88.1 of the Electoral Code, the election programmes of candidates, and their pre-election speeches and campaign materials distributed through the media, must not contain statements inciting to the capture of State power by force, change to the constitutional system by force, or violations of the country’s territorial integrity, or statements insulting the honour and dignity of citizens.
22. Article 88.2 of the Electoral Code prohibits candidates from abusing the right to campaign in the media by inciting social, racial, ethnic or religious hatred and hostility.
23. Article 88.4 of the Electoral Code of 2003 provides as follows:
“88.4. Candidates ... are prohibited from gaining the support of voters in the following ways:
88.4.1. giving money, gifts and other valuable items to voters (except for badges, stickers, posters and other campaign materials having nominal value), except for the purposes of organisational work;
88.4.2. giving or promising rewards based on the voting results to voters who were involved in organisational work;
88.4.3. selling goods on privileged terms or providing goods free of charge (except for printed material);
88.4.4. providing services free of charge or on privileged terms;
88.4.5. influencing the voters during the pre-election campaign by promising them securities, money or other material benefits, or providing services that are contrary to the law.”
24. According to Articles 113.1, 113.2.3 and 113.2.10 of the Electoral Code, the relevant electoral commission may request a court to cancel the registration of a candidate who engages in activities prohibited by Articles 88.2-88.4 of the Code.
25. Complaints concerning decisions of electoral commissions must be examined by the courts within three days (unless the Electoral Code provides for a shorter period). The period for lodging an appeal against a court decision is also three days (Article 112.11).
26. Chapter 25 of the Code of Civil Procedure sets out rules for the examination of applications concerning the protection of electoral rights (or the right to participate in a referendum). According to Article 290, such applications must be submitted directly to the appellate courts in accordance with the procedure established by the Electoral Code.
27. Applications concerning the protection of electoral (referendum) rights must be examined within three days of receipt, except for applications submitted on election day or the day after election day, which must be examined immediately (Article 291.1). The court must hear the case in the presence of the applicant, a representative of the relevant electoral commission and any other interested parties. Failure by any of these parties to attend the hearing after due notification does not preclude the court from examining and deciding the case (Article 291.2).
28. The appellate court’s decision can be appealed against to the higher court (the cassation court) within three days. This appeal must be examined within three days, or immediately if submitted on election day or the next day. The decision of the cassation court is final (Article 292).
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-60791
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF NOWICKA v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Gaukur Jörundsson
TEXT: 9. The applicant was born in 1940 and lives in Łódź, Poland.
10. On an unspecified date the applicant inherited from her mother a 25% share in a property situated in Łódź at 6 Piotrowska Street. The property consisted of an apartment building and a plot of land. On 18 October 1990 the Łódź District Court (Sąd Rejonowy) appointed the applicant as the administrator of the property.
11. Subsequently, the applicant requested the previous administrator of the property, the association Z.W.Z.D., to cease all of its activities relating to the administration of the property. However, the association ignored her request and continued to collect rent from tenants living in the apartment building. In addition, the applicant challenged the right of Mr H.D. to collect rent from tenants leasing business premises located in the building, claiming that his title to a part of the property had been obtained under false pretences. These challenges resulted in an on-going dispute between the applicant on the one side and the association and Mr H.D. on the other.
12. On 8 March 1994, Mr H.D., acting through his counsel Mr L.B., brought a private prosecution against the applicant. A private bill of indictment filed by Mr H.D. alleged that the applicant was guilty of criminal libel since, on 19 January 1994, she had sent to a bank, which had made a loan to Mr H.D., a letter stating that he had obtained the loan under false pretences and had been repaying it from income obtained from her property.
13. During the hearing before the Łódź District Court held on 12 April 1994, counsel for Mr H.D. and the applicant refused to settle the case. The applicant confirmed that on 19 January 1994 she had sent the impugned letter, which had led Mr H.D. to bring the private prosecution against her. Counsel for Mr H.D. asked the court to request the Łódź Psychiatric Clinic (Poradnia Zdrowia Psychicznego) for information on whether the applicant was a patient of that clinic and, if so, to instruct it to provide the court with her medical file. Counsel based his request on the fact that, according to his knowledge, the applicant was indeed a patient at that clinic. The applicant denied that she had ever undergone psychiatric treatment and stated that counsel's submission was slanderous. The court decided that it would consider counsel's request in camera at a later date, and that it would request information about the applicant's criminal record and background (wywiad środowiskowy).
14. On 14 April 1994 the District Court granted the request made on 12 April 1994 and asked the Łódź Psychiatric Clinic to provide information about any medical treatment which the applicant had received there.
15. On 19 April 1994 the Łódź Psychiatric Clinic informed the District Court, in a letter signed by Dr B.K., that on 23 October 1973 the applicant had visited the clinic and that her medical file included a reference to “suspected paranoid schizophrenia” (podejrzenie schizofrenii urojeniowej).
16. On 6 May 1994 police constable Z.A. issued a statement concerning the outcome of the background check, which had been conducted at 4 Sienkiewicza Street where the applicant resided at that time. He concluded, inter alia, that the applicant's neighbours had a good opinion of her, that she did not drink heavily and that she was not involved in any quarrels with her neighbours.
17. On 11 May 1994 counsel for Mr H.D. requested the Łódź District Court to order an expert opinion on the state of the applicant's mental health. He also submitted several letters written by the applicant and pointed out that they showed that the applicant had claimed rent from certain tenants occupying retail and office space located on the property, despite the fact that the association Z.W.Z.D. had been letting out those premises.
18. On 19 May 1994 the court appointed two psychiatrists and a psychologist and instructed them to prepare a report on the applicant's condition at the time of the commission of the alleged crime. On 30 May 1994 the experts scheduled an appointment with the applicant for 10 June 1994.
19. On 1 June 1994 the applicant asked the Łódź District Chamber of Doctors (Okręgowa Izba Lekarska) to initiate disciplinary proceedings against Dr B.K. for making a false representation in her letter of 19 April 1994. The applicant contested the contents of that letter, claiming that it had been based on fabricated medical records since she had never visited the Łódź Psychiatric Clinic. The applicant's requests for an investigation into the circumstances in which the letter had been issued were rejected by the Łódź District and Regional Prosecutors.
20. On an unspecified date, the Łódź District Court ordered the applicant to report on 10 June 1994 for an examination in a psychiatric ward of the Babiński Hospital headed by Dr B.K. The applicant's appeals and complaints concerning that decision were rejected by the Łódź District and Regional Courts. The applicant submitted that she had asked the District Court to change the venue of her examination as she had considered that no objective opinion on her mental health could be issued after an examination in a ward headed by Dr B.K.
21. On 10 June 1994 the applicant failed to attend the psychiatric examination.
22. On 14 June 1994 the applicant filed an application challenging all judges of the Criminal Section of the Łódź District Court, but it was dismissed on 23 June 1994.
23. On 13 July 1994 the Łódź District Court issued an arrest warrant in order to secure the applicant's compliance with its order concerning her psychiatric examination.
24. The Government submitted that on 27 July 1994 the police informed the court that the applicant had refused to open the door to her flat and the police officers had therefore been unable to enforce the arrest warrant. The applicant denied that, and pointed to the fact that on 25 October 1994 she had voluntarily gone to the police station (see below).
25. On 1 August 1994 the District Court issued an order fixing 12 August 1994 as the new date for the applicant's compulsory psychiatric examination. However, the applicant did not keep the appointment.
26. On 1 September 1994 the District Court issued a new arrest warrant and scheduled the applicant's examination for 23 September 1994. The applicant again failed to attend the examination.
27. On 4 October 1994 the Łódź District Court decided that the applicant should be arrested and detained on remand in order to secure her compliance with its order.
28. On 25 October 1994 the applicant visited the Łódź-Śródmieście District Police Station (Komenda Rejonowa Policji) in order to file a complaint about a breaking and entry into one of her apartments. However, her complaint was not accepted by the police and she was arrested under the District Court's warrant. On 26 October 1994 the applicant was transferred to the Łódź Prison No. 1.
29. On 26 October 1994 the applicant's daughter filed an appeal against the District Court's decision of 4 October 1994 ordering the applicant's arrest and detention. However, the appeal was rejected on 27 October 1994 because the court considered that the applicant's daughter was not authorised to file an appeal on behalf of her mother.
30. On 28 October 1994 the applicant's counsel appealed the decision of 4 October 1994, but the appeal was dismissed on an unknown date.
31. On 2 November 1994 the applicant underwent a psychiatric examination. The psychiatrists who examined the applicant concluded that they could not make a diagnosis based on a single examination, and recommended that the applicant undergo a psychiatric examination in a public hospital. They also stated that only if the applicant failed to present herself for an examination at the public hospital should she be subjected to an examination in a prison hospital. On 3 November 1994 she was released from detention.
32. Between 25 October and 3 November 1994 the applicant's daughter applied twice to the Łódź District Court for leave to visit the applicant. Both applications were allowed.
33. On 8 November 1994 the Łódź District Court decided that the applicant should undergo a psychiatric examination in a medical establishment (zakład leczniczy). On 23 November 1994 the Łódź Regional Court (Sąd Wojewódzki) dismissed the applicant's appeal against that decision.
34. On 12 December 1994 the experts appointed by the court to examine the applicant informed it that the examination could take place between 2 and 7 January 1995.
35. On 6 January 1995 the applicant again failed to report for an examination.
36. On 9 January 1995 the Łódź District Court issued an arrest warrant because of the applicant's failure to attend a psychiatric examination at a public hospital. The court decided that she would be detained on remand under Article 217 § 1(2) of the Code of Criminal Procedure. It considered that the applicant had obstructed the criminal proceedings against her since she had not attended the hospital, despite being served with a summons, and because the police were unable to bring her to the hospital.
37. On 22 February 1995 the Łódź District Court issued a search warrant, considering that the applicant was in hiding since she was not staying at her residence.
38. On 23 March 1995 the applicant was arrested. On 24 March 1995 she was transferred to prison.
39. On 24 March 1995 the District Court allowed an application for leave to visit the applicant filed by the applicant's daughter.
40. On 29 March 1995 the Łódź Regional Court dismissed the applicant's appeal against the District Court's decision to arrest her. On the same day the experts advised the court that the applicant's examination could start on 19 April 1995.
41. On 31 March 1995 the applicant's daughter, Astrid Nowicka, filed with the Łódź District Court an application for leave to visit the applicant. She asked for two separate authorisations, for herself and her sister Inez Nowicka, to visit their mother on “multiple occasions” (wielokrotne widzenia). On 4 April 1995 the judge noted the following instruction to the registry:
“Inform A. Nowicka that the court gives 1 authorisation per month as far as meetings with a detainee are concerned, and other [authorisations] only in exceptional cases.”
42. On 4 April 1995 the Łódź District Court dismissed the applicant's request that she be released from prison.
43. On 10 April 1995 the District Court allowed the application for leave to visit the applicant filed by the applicant's daughter.
44. On 19 April 1995 the Regional Court dismissed the applicant's appeal against the District Court's decision of 4 April 1995.
45. Between 19 April and 26 May 1995 the applicant underwent a psychiatric examination in the prison hospital at the Łódź Prison No. 2. A medical opinion issued after that examination concluded that the applicant's intellectual ability was substantially above average and that she showed no signs of being either mentally ill or retarded. The opinion also stated that she had a paranoid personality and that she had understood what she was doing at the time of the commission of the alleged offence.
46. In the meantime, on 5 May 1995 the District Court allowed the application for leave to visit the applicant filed by the applicant's daughter.
47. In a letter of 22 May 1995 the Vice-President of the Łódź Regional Court advised the applicant that her examination in a medical establishment had been ordered by a court in response to the request by psychiatrists, who had concluded that they had been unable to draw up an expert opinion on the applicant's mental health after a single examination.
48. On 30 May 1995 the applicant was transferred to the Łódź Prison No. 1. On 2 June 1995 the District Court allowed the application for leave to visit the applicant filed by her daughter.
49. On 3 June 1995 the applicant was released from prison.
50. Subsequently, the Łódź District Court discontinued the criminal proceedings against the applicant.
51. Article 25 § 1 of the Code of Criminal Procedure 1969 (“the Code”), in so far as relevant, provides:
“A person who, because of being mentally retarded or ill ..., could not understand his acts or who could not control his behaviour [at the time of the commission of the offence] shall not be criminally responsible.”
52. Article 217 § 1(2) of the Code, in so far as relevant, provides:
“Detention on remand may be imposed if: ...
2. there is a reasonable risk that [the accused] will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ...”
53. Article 65 § 1(1) of the Code, in so far as relevant, reads as follows:
“If it proves necessary for the purposes of taking evidence, the accused shall submit to:
(1) the external examination of the body and other examinations not involving interference with the body ...”
54. Paragraph 34(1) of the Resolution of the Minister of Justice 1989 concerning the rules governing detention on remand provides as follows:
“A person detained on remand may have visits after obtaining permission from the organ at whose disposal he remains, unless that organ decides otherwise.”
VIOLATED_ARTICLES: 5
8
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-103365
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ŚCIEBURA v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 5-3
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano
TEXT: 5. The applicant was born in 1971 and lives in Cracow.
6. On 14 January 1999 criminal charges were brought against the applicant. He was suspected of armed robberies, committed in an organised criminal group. The applicant was in hiding at the material time.
7. On 29 January 1999 an arrest warrant was issued against the applicant by the Polish authorities. After having been unsuccessfully sought for many months, he was eventually detained in Spain on 23 October 2001 and remanded in custody.
8. Subsequently, action was taken with a view to the applicant's extradition and on 21 October 2002, the Spanish authorities handed him over to Poland.
9. On 24 October 2002 the Katowice District Court ordered that the applicant remain in custody, relying on the reasonable suspicion that he had committed the offences in question. The court considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence and induce witnesses to give false testimony or go underground again (he had earlier been in hiding in Spain). It further stressed the severity of the anticipated penalty and the fact that the applicant had been acting in an organised criminal group.
10. The applicant's appeal against the detention order was dismissed by the Katowice Regional Court on 23 December 2002. Likewise, his further appeals against decisions prolonging his detention and all his subsequent, numerous applications for release and appeals against refusals to release him were unsuccessful. In his applications and appeals he relied on his personal circumstances, in particular his poor health, stressing that he had been infected with an HCV virus.
11. In the course of the investigation, the applicant's detention was prolonged on several occasions, namely by the Katowice Regional Court's decisions of 16 January, 20 March and 8 September 2003, 16 January and 20 September 2004, 14 January, 6 June and 14 November 2005, 24 April and 20 October 2006 and the Katowice Court of Appeal's decisions of 8 August 2007 and 6 February 2008. In all their detention decisions the authorities repeatedly relied on the original grounds given for the applicant's detention. In addition, they stressed the existence of a strong suspicion that the applicant had committed the offences in question, which was supported by an extensive body of evidence from witnesses and experts. Further, they attached importance to the grave nature of the charges against him and the fact that a “wanted” notice had been issued for his arrest.
12. On 3 March 2003 the Regional Prosecutor filed a bill of indictment with the Częstochowa Regional Court. The applicant was charged with inter alia numerous counts of armed robberies committed in an organised criminal group.
13. On 27 March 2003 the Częstochowa Regional Court requested the Supreme Court that the case be transferred to the Katowice Regional Court. The court stressed the special nature of the case, which implied that exceptional security measures be taken and special facilities provided. On 14 May 2003 the Supreme Court granted the request.
14. Between 18 November 2002 and 16 September 2005 the applicant served a prison sentence imposed in another set of criminal proceedings (on the strength of the Cracow District Court's judgment of 23 February 1998).
15. On 14 April 2008 the Katowice Regional Court granted the applicant's request to be released on bail. On 16 April 2008 the applicant was released as he had paid bail of 350,000 Polish zlotys (PLN).
16. It appears that the criminal proceedings are still pending.
17. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-101358
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF VASILKOSKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicants were born between 1947 and 1985 and live in different cities in the former Yugoslav Republic of Macedonia.
6. They were toll collectors, controllers or senior staff (инкасанти на наплатна рампа или раководители) in a public roads enterprise.
7. The applicants were detained in several police stations in Skopje, some on 18 and some on 24 November 2007 on suspicion of abuse of office, namely that they had acted as an organised group and misappropriated over 5 million euros (EUR) from toll charges collected between April and November 2007. An individual report was drawn up for the detention of each applicant.
8. A group of applicants were brought before an investigating judge of the Skopje Court of First Instance (“the trial court”) on 19 November 2007, and the remainder on 25 November. By two separate decisions of 20 and 26 November 2007 respectively, after having heard oral evidence from the applicants, the investigating judge started the investigation and remanded them in custody. The orders were based on all the grounds specified in section 199 of the Criminal Proceedings Act (“the Act”, see paragraph 32 below), namely a risk of absconding and reoffending, and of interference with the investigation. The judge relied on the gravity of the charges and the potential penalty and the fact that the applicants had acted as a well organised group.
9. Nine applicants and other co-accused appealed against the detention order, requesting its replacement by a more lenient measure. The appellants relied on their family situation in the respondent State, the absence of a previous criminal record, the fact that some of them had appeared voluntarily in police stations and the failure of the investigating judge to give concrete reasons justifying the detention of each of them separately. A three-judge panel of the trial court (“the panel”), set up under section 22 § 6 of the Act, dismissed appeals submitted by two applicants. No evidence was produced that the panel decided the remaining appeals.
10. On 18 and 21 December 2007 respectively, the panel extended the applicants' detention for thirty days on all three counts specified under section 199 of the Act. The risk of absconding was justified by the gravity of the charges, the potential penalty and the fact that ten applicants had no possessions and no family in the respondent State. Eighteen applicants appealed, alleging lack of reasons. Their requests for a more lenient measure were supported with evidence about their poor health, copies of their passports and certificates attesting to their possessions in the respondent State. Some of them also requested release on bail.
11. On 31 December 2007 and 4 January 2008 respectively, the Skopje Court of Appeal dismissed the appeals and confirmed the orders. Only in respect of Mr Z. Pankovski, who produced the original copy of his employer's decision dismissing him from work, did the court exclude “the possibility of reoffending” from the list of grounds for his detention. It did not admit in evidence the uncertified copies of the dismissal decisions submitted by the other appellants. As to the remainder, it stated inter alia:
“... circumstances related to the type and nature of the criminal offence for which the investigation has started against the accused, the potential penalty prescribed for the offence, as well as the personal circumstances of the accused, taken as a whole, suggest that there is a real risk of flight if they are released at this stage of the proceedings ... a reasonable risk that they may interfere with the investigation, as well as grounds to reoffend ... it is this court's view that there are no statutory grounds at this stage of the proceedings to replace custody with a more lenient measure that would guarantee that the accused would appear for trial ...”
12. The investigation was subsequently extended and involved, in total, seventy-two accused.
13. On 16 and 21 January 2008 respectively, the panel extended the applicants' pre-trial detention for thirty days, relying on all the grounds specified in section 199 of the Act, namely the risk of absconding and reoffending, and of interference with the investigation. Sixteen applicants appealed against these orders, seeking release.
14. With decisions of 28 January and 1 February 2008 respectively, the Skopje Court of Appeal ruled partly in favour of those applicants who appealed and presented originals or certified copies of the employer's decisions dismissing them from work. “The possibility of them reoffending” was no longer relied on as a ground for their continued detention. Furthermore, of its own motion and relying on section 397 of the Act (see paragraph 34 below), the court excluded in respect of all the accused included in the panel's decision of 21 January 2008, “the possibility of them interfering with the investigation” from the list of grounds for their detention. In so doing it reasoned that the accused could not interfere with the examination of protected witnesses and the viewing of a DVD, which were the only remaining investigative measures. The court confirmed the panel's concern about the risk of flight, however, relying on the gravity of the charges and the potential penalty.
15. On 15 February 2008 the public prosecutor lodged an indictment against all the accused, including the applicants. On the same day, the panel partly upheld the public prosecutor's request and extended the applicants' detention, but only on account of the risk of them absconding. In this connection it stated:
“... the detention in prison is justified given the fact that there is a real risk of flight in view of the gravity and nature of the offences with which the accused are charged, and the potential penalty ...”
16. That decision was challenged by eight accused, including five applicants. They alleged that the panel had not given sufficient reasons to substantiate the risk of them absconding, given their family situation, their state of health, the absence of any previous criminal record and the fact that some of them had already had their passports seized.
17. On 6 March 2008 the Skopje Court of Appeal confirmed the panel's decision, stating that the risk of flight was substantiated by the gravity of the charges, the potential penalty and the way in which the offence had been committed.
18. By individual decisions rendered between 7 March and 1 April 2008, Mr Mehmed Asani and Mr Mitre Kirovski were released on bail. Ms Lenka Jovanovska, and Ms Slavjanka Angelova, were also released on condition that they appeared in court on a regular basis. These decisions were given in response to separate requests from these applicants for the detention order to be replaced by a more lenient measure.
19. On 15 March 2008 the panel ordered a thirty-day extension of the pre-trial detention of the remaining applicants. “The risk of them absconding” was once again based, in respect of all of them, on the gravity of the charges and the potential penalty. Four accused appealed against that decision, including two applicants who argued that the panel had not given specific reasons to substantiate the risk of them absconding. They submitted that they had not gone into hiding; their identity was known and they had appeared in court regularly. The Skopje Court of Appeal dismissed those arguments, holding that the risk of flight lay in the nature of the offence, the gravity of the charges and the potential penalty.
20. On 7 April 2008 the trial started. Given the high number of accused, the trial court decided to hold hearings outside the court building. After taking oral evidence from the applicants, on 15 April 2008 the trial court accepted the proposal of the public prosecutor and replaced the order for prison custody with an order for house arrest in respect of all remaining applicants, except Mr Nikola Vasilkoski, Mr Ljoki Mevaip, Mr Agim Stafai, Mr Dragan Trickovski and Mr Goran Nautliev, who remained in prison. In taking that decision the court relied on section 198 (2) of the Act (see paragraph 31 below), under which prison custody should be as brief as possible. The police were also ordered to supervise compliance with the house arrest. For the same reasons as in earlier decisions, the detention in respect of the remaining applicants was ordered on account of the risk of them absconding.
21. It would appear that only Mr Agim Stafai appealed against that decision. On 8 May 2008 his appeal was dismissed with the explanation that the panel had given sufficient reasons for extending his detention, namely that the gravity of the charges and the potential penalty pointed to a risk of him absconding.
22. On 15 May 2008 the panel extended the detention of the remaining applicants for the same reasons as before. On 22 May 2008, of its own motion, the panel substituted the order for detention in prison with an order for house arrest in respect of the five applicants mentioned in paragraph 20 above.
23. After that date, the house arrest of the remaining applicants was extended on several occasions. The extension was grounded on their potential to abscond in view, once more, of the gravity of the charges and the potential penalty.
24. In a decision of 10 October 2008, the panel extended the house arrest for the following reasons:
“... the criminal proceedings are about to end ... for the sake of expediency it is considered that the risk of flight still persists in view of the gravity of the charges, the potential penalty and the number of accused, suggesting the need to extend the house arrest as the most lenient means of securing attendance at the trial ...”
25. In decisions of 11 and 17 November 2008 respectively, the panel gave the same reasons for extending the house arrest of the remaining applicants. For failure to comply with the house arrest order, Mr Nikola Vasilkoski and Mr Goran Nautliev were ordered to be sent back to prison.
26. On 28 November 2008 the trial court found the applicants guilty and imposed a prison sentence in respect of six applicants and a suspended sentence in respect of the others. As the trial had ended and the applicants had a permanent residence and family in the respondent State, the court also ordered their release, considering that there was no risk of them absconding.
27. At a public hearing held on 30 November and 1 December 2009, the Skopje Court of Appeal quashed the trial court's decision and referred the case for fresh consideration. It would appear that the proceedings are pending at the trial level.
28. During the proceedings, the applicants made numerous unsuccessful requests for their detention in prison to be replaced by a more lenient measure, or sought their release on bail.
29. Section 22 § 6 of the Criminal Proceedings Act of February 2005 provides for a three-judge panel of the trial court to rule, inter alia, on appeals against decisions of the investigating judge.
30. The Act specifies the measures which the court may issue in order to secure the attendance of an accused at a trial (sections 185-199).
31. Under section 198 § 2 of the Act detention in prison should be as brief as possible.
32. Under section 199 § 1 (1-3) of the Act detention in prison may be ordered on reasonable suspicion that the person concerned has committed an offence if there is a risk of absconding, interference with the investigation or reoffending.
33. Under section 200 §§ 1 and 6 of the Act an investigating judge has jurisdiction to order pre-trial detention. The person concerned may appeal before the panel.
34. Section 205 §§ 2 and 6 of the Act provides for the panel set up under section 22 § 6 to extend the detention at the request of the investigating judge or the public prosecutor. The extension order may be challenged before the court above.
35. Under section 397 of the Act, if the second-instance court considers grounds for an appeal applicable to any co-accused who did not lodge a formal appeal, it may, of its own motion, proceed as if the appeal had been lodged by the co-accused concerned (the beneficium cohaesionis rule).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3