ITEMID: 001-105436
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: PURICEL v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 1. The applicant, Ms Maria Elisabeth Puricel, is a Romanian national who was born in 1919 and lives in Anglikon, Switzerland. She was represented before the Court by Mr V. Puricel, a lawyer practising in Anglikon. The Romanian Government (“the Government”) were represented by their Agent, Mr. Răzvan Horaţiu Radu, of the Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Ms Puricel practised as a lawyer in Romania until 7 March 1974, when she retired on the ground of having reached pensionable age. She received her pension from the Lawyers’ Insurance Fund (LIF) on a monthly basis until 1989, when she decided to leave the country and go to Germany. Pursuant to the national legislation in force at that time (Law no. 3/1977 and Decree no. 251/1978), those who left the country were compelled to give up the social and political rights conferred on them by the Romanian State. The applicant had thus renounced her pension rights while she also gave up her Romanian nationality. Consequently, by a decision of 27 July 1989, the LIF suspended the payment of the applicant’s pension rights on the grounds that she was about to move abroad and had given up her Romanian nationality.
4. On an unspecified date the applicant moved to Switzerland, where she resides at present. Upon her request, on 7 December 2001 the Romanian Consulate in Bonn granted the applicant Romanian citizenship.
5. The Romanian legislation applicable to the assessment of pension entitlements, Law no. 3/1977 regulating the national pension system and Decree-Law no. 251/1978 regarding the lawyers’ pension system, were repealed on 1 April 2001 and on 28 May 2001 respectively, when the amending Law no. 19/2000 and the Statute of the Lawyers’ Insurance Fund were respectively adopted. The new regulations removed the Romanian nationality and residence criteria from the conditions decisive for the payment of a pension.
6. On 1 December 2001 the applicant lodged her application for the resumption of pension payments, which was registered in due form by the LIF on 14 January 2002.
On 26 June 2002 the LIF allowed the above-mentioned application and granted the applicant the payment of her pension, starting from 1 December 2001, as requested.
7. On 16 August 2002 the applicant contested this decision, claiming that she had retroactive entitlement to a pension, which should be calculated and updated for the previous three years (starting from 1999, three years being the general cut-off period for pecuniary claims). The LIF gave a decision on 18 September 2002 allowing the claims in part. The pension was calculated as of 1 June 2001, the reference date when the new legislation became applicable to the applicant’s case. The reasoning put forward by the LIF in rejecting the claims from 1999 to 1 June 2001 was that the legislation in force until 28 May 2001 had not provided for payment of pensions to persons who did not have Romanian citizenship and/or did not reside in Romania. Once the new legislation had come into force, on 28 May 2001, the nationality and/or residence criteria for a person’s entitlement to payment of a pension had been removed.
Furthermore, Article 76 of the Statute of the LIF prescribed that pension payments were to resume, on request, the month following the month when the ground for their suspension ceased. Taking into account the entry into force of the Statute, the payment of the applicant’s pension would become operative as of 1 June 2001.
The applicant’s pension was calculated and updated in accordance with the lex specialis, Law no. 19/2000.
8. The applicant contested this decision before the Bucharest County Court on 15 October 2002. On 10 December 2002, she amended her request to claim that she had become entitled to her pension rights on 1 January 1990. She argued that her renunciation of Romanian nationality and residence, and implicitly the payment of her pension, had been determined exclusively by the unfair legislation in force during the communist regime. From 1 January 1990, that legislation had lapsed, hence the suspension of her rights should be considered to have terminated and the payments resumed as of right. In support of this claim, she also invoked Article 8 of the Statute, asserting that lawyers’ pension rights were not subject to negative prescription. Consequently, her pecuniary claims were not timebarred, the general cut-off period of three years being inapplicable.
The applicant also contested the LIF’s method of recalculating her pension in that she considered that the readjustment should have been made on the basis of the inflation rate and not in accordance with the specific methods stipulated in the pension lex specialis no. 19/2000.
Furthermore, the applicant also complained that from June until December 2001 she had had to pay taxes on her newly set income, even though, as she did not reside in Romania, she was not a taxpayer within the meaning of the relevant law, OG no. 73/1999 and under Law no. 29/2002 and Law 60/1994 for avoiding double taxation. Consequently, she requested reimbursement of the money deducted as tax from her pension revenue.
9. On 24 June 2003, the Bucharest County Court dismissed her claims, upholding the LIF’s decision and reasoning. The applicant’s submission regarding the lapse of the applicable legislation after the fall of the communist regime, that is, Law no. 3/1977 and Decree no. 251/1978, was rejected by the court, which held that the above-mentioned legislation had been officially repealed once the new pension Law no. 19/2000 and the Statute of the LIF had come into force, namely, on 1 April 2001 and 28 May 2001 respectively. Therefore, applying the tempus regit actum principle and in so far as the applicant had not complied with the statutory conditions (Romanian citizenship and/or residence), the first-instance court considered that the applicant had not proved that she had a substantive right to receive a pension for the period of time in question.
With regard to her claims concerning the pension readjustment, the court held that as long as there was a lex specialis establishing a specific method of adjusting the amounts of all pensions (recorelare), the general principles of adjusting pecuniary claims in line with the inflation rate could not be taken into consideration. The courts further held that the applicant was subject to Romanian taxation as long as she had obtained the income in question in Romania and had not proved that she was actually paying taxes in another country.
10. The applicant filed an appeal on points of law with the Bucharest Court of Appeal. She challenged the lower court’s reasoning, asserting that her pension rights had first been acknowledged in 1974 and had never ceased to exist, despite the changes in her nationality and residence and despite the fact that her enjoyment of those rights had been interfered with from 1989 onwards. Consequently, the suspension of the payment of her pension had to be considered as a wrongful act that should have terminated once the communist regime had fallen.
11. By a decision rendered on 10 February 2004, the court dismissed the appeal. It held that since the LIF’s Statute removing the citizenship and/or residence requirement had come into force on 28 May 2001, it was only from the next month, in accordance with Article 76, that the applicant was entitled to have the payment of her pension resumed. In so far as the applicable legislation before 28 May 2001 had provided that Romanian nationality and/or residence was a mandatory and decisive condition for pension payments, the applicant had not proved that she was eligible for payment of a pension in respect of the earlier period.
12. a) Law no. 3/1977 regarding the pension system and other social security rights and assistance came into force on 1 July 1977; it was repealed on 1 April 2001, once the new “pension law” no. 19/2000 came into force. Section 1 stated that every Romanian citizen who had worked for the system was entitled to pension rights.
b) Decree no. 251/1978 regarding the lawyers’ pension system and other relevant social-security rights came into force on 14 July 1978, and was repealed on 28 May 2001. Article 49 provided that payment of the pension and all other relevant rights would be suspended as long as the retired person had his/her residence established in a foreign country.
c) The Lawyers’ Insurance Fund Statute came into force on 28 May 2001; Article 78 stipulates that payment of suspended pensions will be resumed on request, starting on the first day of the month following the month in which the ground for the suspension ceased to exist. Article 8 of the Statute provides that lawyers’ social-security rights are not subject to negative prescription.
13. Article 69 of the 1952 International Labour Organisation’s Social Security (Minimum Standards) Convention 1952 (“the 1952 ILO Convention”) provides that benefits to which a protected person would otherwise be entitled in compliance with the 1952 ILO Convention (including old age benefits) may be suspended, in whole or in part, by national law as long as the person concerned is absent from the territory of the State concerned. The above provision is echoed in Article 68 of the 1964 European Code of Social Security and Article 74(1)(f) of the 1990 European Code of Social Security (Revised).


ITEMID: 001-77283
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: MARTINOVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Ms Zaneta Martinovska, is a citizen of the former Yugoslav Republic of Macedonia who was born in 1956 and lives in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska-Gerovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
On an unspecified date in 1994 the applicant, together with two other individuals, instituted civil proceedings against her employer, a company called G. (“the employer”) for payment of salary and other related allowances for the period of May 1993 to November 1994.
On 28 April 1998 the Skopje Court of First Instance II granted her claim (and of the other claimants) together with interest. On 11 November 1998 the Court of Appeal upheld the lower court’s judgment. As stated by the applicant, the judgment was served on her seven months later, on an unspecified date.
On an unspecified date, the applicant requested the Skopje Court of First Instance I to enforce the judgment (предлог за извршување). On 10 September 1999 it granted her request and ordered the Public Payment Bureau (“the Bureau”) (Завод за платен промет) to transfer from the employer’s account the amount due to her. On 7 October 1999 the applicant completed her application as requested by the court. However, the order was not enforced as there were no funds in the account.
On 22 December 1999 the applicant requested the Skopje I Court of First Instance to enforce her claim proposing another means of enforcement: an inventory, valuation and public sale of an employer’s property (the same property which was the subject-matter of the second set of proceedings). She requested the court to complete the enforcement by the proposed means only if her claim could not have been discharged by transferring the amount due to her from the employer’s account.
On 7 December 2000 the Skopje I Court of First Instance forwarded the case-file to the Skopje II Court of First Instance, as court competent ratione loci.
In April 2006 the court requested the applicant to submit a certificate of title concerning the employer’s property. It appears that in May 2006 she obtained a certificate of title and submitted it to the court.
On an unspecified date in 1998 the applicant brought against the employer a compensation claim for payment of salary and other related allowances for the period of 1994 to 1997, after she had successfully challenged the lawfulness of her dismissal.
On 4 November 1998 the Skopje II Court of First Instance partially granted her claim. On 6 October 1999 the Skopje Court of Appeal dismissed the employer’s appeal and upheld the lower court’s judgment.
On 7 October 1999 the applicant requested the Skopje I Court of First Instance to enforce the judgment by transferring the amount due to her from the employer’s account into her account. On 24 November 1999 the applicant completed her application submitting a copy of the judgment, as requested by the court.
On 28 February 2000 the Skopje I Court of First Instance granted the applicant’s request and ordered the Bureau to transfer the amount due to her from the employer’s account.
On 7 May 2001 the applicant proposed another means of enforcement, namely an inventory, valuation and public sale of an employer’s property. It was sent to the Skopje I Court of First Instance with a request for forwarding the file to the Skopje II Court of First Instance as court competent ratione loci. On 25 June 2001 the applicant submitted an addendum to the request.
On 13 July 2001 Skopje II Court of First Instance refused the applicant’s request for a charging order over the employer’s property, as it had been the subject of other enforcement proceedings and sold to a third person on 3 June 1999. On 10 November 1999 the creditor in those proceedings had taken possession of the property (this decision became final on 4 December 1999).
On 13 September 2001 the applicant appealed against the judgment before the Skopje Court of Appeal (Апелационен Суд Скопје).
On 10 October 2001 the Skopje Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s judgment.
The applicant did not request the court to enforce her claim against other assets nor did she propose other means of enforcement as specified by law.
The applicant’s cases concerning both sets of proceedings were set to archive in September, November and December 2003, respectively.
On 15 November 2000 the applicant requested the Skopje II Court of First Instance to join the two sets of enforcement proceedings and to proceed only in respect to the employer’s property, as its account reportedly had no funds.
On 27 March 2001 the applicant repeated her request for joining the two sets of enforcement proceedings. She also requested to have her enforcement proceedings joined with the proceedings of another creditor, Mrs N.M., instituted against the employer.
On 28 March 2001 the applicant submitted a corrected version of her request. On 12 June 2001 the applicant repeated her request.
On 3 and 15 October 2001, respectively, the applicant and Mrs N.M. requested the president of the Skopje II Court of First Instance and the Court of Appeal to join their proceedings.
On 16 October 2001 the Skopje II Court of First Instance informed the applicant and Mrs N.M. that on 12 July 2001 the presiding judge had decided not to join the proceedings.
Section 2 of the Enforcement Proceedings Act (“the Act”) (Закон за извршната постпка) provides that enforcement and security proceedings are launched on creditor’s request.
Section 27 of the Act provides the following means for enforcing judgment debts: (i) sale of movable property, (ii) sale of immovable property, (iii) transfer of a pecuniary claim, (iv) encashment of other proprietary rights, and (v) transfer of funds from an account managed by the Public Payment Bureau, in accordance with the regulations.
In accordance with section 29 of the Act, the courts are required to enforce judgment debts by the means and against the assets specified in the request for execution.
Section 35 provides that a request for execution should specify: the creditor and debtor; the final order; the debtor’s duty; the means and assets for enforcement and other information necessary for completion of the enforcement.
In accordance with section 39 § 1, the enforcement order is served on the creditor and the debtor. The dismissal of the request for execution is served only on the creditor.
Section 141 of the Act provides that enforcement over immovable property is effected by recording the order in the register, obtaining a valuation of the property, selling it and settling the creditors’ claims from the proceeds of sale.
Section 142 paragraph 1 of the Act provides, inter alia, that in support of a request for a charging order over immovable property, the creditor should submit an extract from the public records, as evidence that the property is owned by the debtor.
Section 198 of the Act states that the court will not stay enforcement proceedings if there are no funds in the debtor’s account managed by the Public Payment Bureau. Instead, the Payment Bureau is required to keep a record of the order and to make the transfer when there are funds in the account.


ITEMID: 001-90712
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ELĞAY v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1983 and lives in Istanbul.
5. On 10 July 2002 the applicant was arrested and placed in the antiterrorist branch of the Istanbul police headquarters after, during a road check, police officers saw a photograph of Abdullah Öcalan and the slogans “Biji Serok Apo” (“Long live President Apo”) and “Biji Kurdistan” (“Long live Kurdistan”) on the screen of the applicant’s mobile telephone.
6. On the same day, the applicant made statements to the police and, subsequently, to the Gebze Magistrates’ Court, which ordered his detention on remand, having regard to the state of the evidence, the applicant’s statements to the police and the nature of the alleged offence, namely, membership of the PKK (the Kurdistan Workers’ Party), an illegal organisation.
7. On 11 July 2002 the applicant lodged an objection to the remand order. No decision has been taken regarding the applicant’s objection.
8. On the same day, the Gebze public prosecutor issued a decision finding that he lacked jurisdiction. The investigation file was subsequently transferred to the public prosecutor’s office at the Istanbul State Security Court.
9. On 1 August 2002 the public prosecutor at the Istanbul State Security Court charged the applicant with membership of an illegal organisation, under Article 168 § 2 of the former Criminal Code.
10. On 12 August 2002 the Istanbul State Security Court ordered the applicant’s continued detention, having regard to the nature of the alleged offence, the state of the evidence and the date of the initial order for the applicant’s detention.
11. On 25 October 2002 the State Security Court held the first hearing in the case. The applicant’s representative requested the firstinstance court to release the applicant. The court accepted the request and ordered the applicant’s release pending trial.
12. On 5 September 2003 the Istanbul State Security Court acquitted the applicant.
13. A description of the domestic law and practice at the relevant time may be found in Bağrıyanık v. Turkey (no. 43256/04, § 19, 5 June 2007) and Saraçoğlu and Others v. Turkey (no. 4489/02, § 19, 29 November 2007).
VIOLATED_ARTICLES: 5


ITEMID: 001-108654
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KORNEYKOVA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonably necessary to prevent fleeing;Reasonably necessary to prevent offence);Violation of Article 5 - Right to liberty and security (Article 5-3 - Trial within a reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1990 and lives in Kharkiv.
6. On an unspecified date the Dzerzhinsky District Police of Kharkiv instituted criminal proceedings against the applicant, who was fourteen years old at the material time, on suspicion of theft of a mobile telephone and acting as an accomplice in an unsuccessful attempted robbery of earrings, a watch and a mobile telephone, in company with two other minors, in January 2005. The robbery attempt was interrupted when two witnesses to the incident intervened.
7. On 29 March 2005 a bill of indictment was drafted and the investigator ordered the district police to bring the applicant in for questioning. In addition, the investigator imposed an undertaking not to abscond on the applicant as a preventive measure.
8. On the same date the police reported that it was impossible to locate the applicant and placed her on the “wanted list”.
9. On 19 April 2005 the Dzerzhinsky District Police of Kharkiv arrested the applicant at her mother’s home address and drew up an arrest report, the relevant parts of which read as follows:
“Investigator ... L., on 19 April 2005 at 15:00 in accordance with Article 115 of the Criminal Procedure Code of Ukraine detained, on suspicion of the commission of a crime: Korneykova Viktoriya Yuryevna ...
The crime which Korneykova V. Y. was detained on suspicion of having committed falls under Article 15 paragraph 2 [and] Article 186 paragraph 2 of the Criminal Code of Ukraine.
Grounds and motives for detention: commission of a grave offence; may abscond from investigation and court, obstruct establishment of the facts of the case ...”
10. On 21 April 2005 Mr Tokarev, the applicant’s lawyer, lodged a complaint with the Dzerzhinsky District Court of Kharkiv (hereinafter – “the District Court”) alleging, in particular, that the applicant’s arrest and detention were in contravention of Article 29 of the Constitution of Ukraine, which authorised extra-judicial detention only where it was necessary to prevent or stop a crime. He argued that, since the crimes imputed to the applicant had taken place in January 2005, in accordance with Article 165-2 of the Code of Criminal Procedure of Ukraine (hereafter – “the CCP”) the investigating authorities had been under an obligation to seek a judicial order in order to arrest the applicant. In addition, he noted that Article 434 of the CCP allowed the detention of minors only in exceptional circumstances, which were absent in the applicant’s case.
11. On the same day the investigating authorities requested the District Court to authorise the applicant’s remand in custody. Having held a hearing in the presence of the applicant and her advocate, the court authorised the measure requested. In its reasoning the court noted that the applicant had been charged with serious offences and had absconded from the investigating authorities, and that this justified her placement on the wanted list. Furthermore, her mother, who had been deprived of her parental rights, was unlikely to be able to ensure that the applicant would appear before the investigating authorities, as she herself had a criminal record and suffered from alcoholism. In addition, the court referred to a report from the staff responsible for the applicant’s welfare at the boarding school where she was officially residing, which stated that the applicant had behavioural problems, including a proneness to run away from the school. In the light of these findings the court concluded that if not detained the applicant might commit another crime or obstruct the investigation. The court’s decision bore no reference to the applicant’s advocate’s complaint about the unlawfulness of her arrest and detention between 19 and 21 April 2005.
12. On 24 April 2005 Mr Tokarev appealed against the court decision of 21 April 2005. He alleged, in particular, that the District Court had failed to analyse the applicant’s situation from the angle of Article 434 of the Code of Criminal Procedure, which allowed for the placement of a minor in detention pending trial only on condition that there existed “exceptional circumstances”. He submitted that in the circumstances of the present case the detention was unwarranted. In particular, the crimes with which the applicant had been charged were not exceptionally serious and the findings that she might abscond, obstruct the investigation or commit another offence were speculative. In particular, no evidence had been presented that during the three months which had passed since the applicant’s alleged offences she had attempted to commit another crime or obstruct the investigation. Moreover, by April 2005 the evidence had been largely collected, which made it improbable that the applicant would obstruct the investigation. As regards the allegation that the applicant had already absconded, which justified her placement on the wanted list, the authorities had presented no evidence that the applicant had ever been subpoenaed to appear for questioning either at her school or at her mother’s address. She had been placed on the wanted list on the day the order to bring her in for questioning had been issued. Eventually she had been arrested at her mother’s address, which was her permanent address and whose location was well known to the police. In the meantime, the applicant’s health and well-being was likely to be seriously endangered by detention in an ordinary pre-trial detention facility, as she was suffering from tuberculosis and had a history of in-patient treatment for psychiatric disturbances. Mr Tokarev also noted that he had not been given a copy of the decision of 21 April 2005 and requested that the applicant be invited to participate in the appeal hearing in person.
13. On 25 April 2005 the investigator in the applicant’s case informed Mr Tokarev in a letter that he could access the decision of 21 April 2005 at the investigator’s office at ‘any convenient time’.
14. On 26 April 2005 Mr Tokarev amended his initial appeal against the decision of 21 April 2005. In particular, he noted that his complaint that the applicant’s arrest and detention between 19 and 21 April 2005 had been unlawful had not been considered. The applicant submitted to the Court a copy of this amended appeal bearing Mr Tokarev’s original signature. There is no receipt slip or any other evidence that the document was ever submitted for judicial consideration.
15. On 27 April 2005 the Kharkiv Regional Court of Appeal (hereinafter – “the Court of Appeal”) dismissed Mr Tokarev’s appeal following a hearing at which the prosecutor and Mr Tokarev, but not the applicant herself, were present. In its decision the Court of Appeal referred to the same arguments as the first-instance court and additionally mentioned that the applicant’s state of health was irrelevant to the finding that she might abscond, obstruct the investigation or commit another crime.
16. In the meantime, on 26 April 2005 the Dzerzhinsky District Police suspended the criminal proceedings against the applicant on account of her state of health, stating in its decision that all investigative actions necessary at the material time had been completed. Subsequently the investigation was resumed and suspended on several occasions on account of the applicant’s state of health.
17. On 12 May 2005 Mr Tokarev inquired of the District Court in a letter as to the state of consideration of his complaint about the unlawfulness of the applicant’s arrest and detention between 19 and 21 April 2005 and allegedly received no answer.
18. On 18 May 2005 the District Court decided, without a hearing but in presence of the prosecutor, to commit the applicant for an in-patient psychiatric assessment.
19. On 30 May 2005 the Dzerzhinsky District Prosecutor allowed the applicant’s premature release from detention under an obligation not to abscond, referring to her tuberculosis, which required in-patient treatment. On an unspecified date the applicant was committed for in-patient psychiatric assessment.
20. On 24 June 2005 the applicant was released from the psychiatric institution following her psychiatric assessment, according to which she was not suffering from any psychotic disorders.
21. The text of the relevant provision of the Constitution of Ukraine of 1996 (Article 29) can be found in the judgment in the case of Svershov v. Ukraine (no. 35231/02, § 39, 27 November 2008).
22. The text of the relevant provisions of Articles 148, 149 and 165-2 of the Code of Criminal Procedure of Ukraine of 1960 (“the CCP”) can be found in the judgment in the case of Osypenko v. Ukraine, no. 4634/04, § 33, 9 November 2010).
23. Other relevant provisions of the CCP, as worded at the material time, read as follows:
“The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:
(1) if the person is discovered whilst or immediately after committing an offence;
(2) if eyewitnesses, including victims, directly identify this person as the one who committed the offence;
(3) if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home.
If there is other information giving ground to suspect a person of a criminal offence, a body of inquiry may arrest such a person if the latter attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established.
For each case of a suspect’s arrest, the body of inquiry shall be required to draw up an arrest order (протокол затримання) outlining the grounds, the motives, the day, time, year and month, the place of arrest, the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest order shall be signed by the person who drew it up and by the detainee.
A copy of the arrest order with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for the arrest shall be sent to him as well. ...
Within seventy-two hours of the arrest, the body of inquiry shall:
(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;
(2) release the detainee and select a non-custodial preventive measure;
(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her.
If the arrest is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days after receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it.
The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the arrest is lawful or allowing the complaint and finding the arrest to be unlawful.
The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling.
Preliminary detention of a suspect shall not last for more than seventy-two hours.
If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up the order to that effect, and shall inform the official or body that carried out the arrest accordingly.”
“An investigator may arrest and question a person suspected of having committed a crime according to procedure envisaged by Articles 106, 106-1, and 107 of the Code.”
“If a forensic medical or psychiatric examination necessitates long-term monitoring or assessment of the suspect, the court, at the investigator’s request and with the prosecutor’s authorisation, may order the suspect’s committal to the relevant medical institution.
The matter shall be examined according to the procedure established by paragraph five of Article 165-2; the ruling of a judge may be appealed against within three days by the prosecutor, the accused, or his defence counsel or statutory representative ...”
“Detention and placement in custody as a preventive measure may be applied to a minor only in exceptional circumstances, where this is warranted by the gravity of the crime imputed to him, in the presence of grounds, and according to the procedure established by Articles 106, 148, ... of this Code.”
24. Relevant provisions of the Act “on the procedure for the compensation of damage caused to a citizen by the unlawful actions of bodies of inquiry, the pre-trial investigative authorities, prosecutors and courts” of 1 December 1994 (with amendments) can be found in the judgment in the case of Dubovik v. Ukraine, nos. 33210/07 and 41866/08, § 34, 15 October 2009.
25. The above document, in so far as relevant, reads as follows:
“... recommends the Governments of Member States to review, if necessary, their legislation and practice with a view: ...
7. to exclude the remand in custody of minors, apart from exceptional cases of very serious offences committed by older minors; in these cases, restricting the length of remand in custody and keeping minors apart from adults; arranging for decisions of this type to be, in principle, ordered after consultation with a welfare department on alternative proposals ...”
26. The above document, in so far as relevant, reads as follows:
“15. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor. They should not be detained in police custody for longer than forty-eight hours in total and for younger offenders every effort should be made to reduce this time further. The detention of juveniles in police custody should be supervised by the competent authorities.
16. When, as a last resort, juvenile suspects are remanded in custody, this should not be for longer than six months before the commencement of the trial. This period can only be extended where a judge not involved in the investigation of the case is satisfied that any delays in proceedings are fully justified by exceptional circumstances.
17. Where possible, alternatives to remand in custody should be used for juvenile suspects, such as placements with relatives, foster families or other forms of supported accommodation. Custodial remand should never be used as a punishment or form of intimidation or as a substitute for child protection or mental health measures.”
27. Article 37 of the above document, in so far as relevant, reads as follows:
“States Parties shall ensure that ...
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
5-5
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-127814
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF E.B. AND OTHERS v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award
JUDGES: Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The first applicant, Mr E. B., is an Austrian national born in 1947.
6. On 23 September 1982 the Innsbruck Regional Court convicted the applicant of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article 209 of the Criminal Code, and sentenced him to ten months’ imprisonment. On 10 August 1983 the Innsbruck Court of Appeal reduced the sentence to seven months’ imprisonment.
7. On 18 November 1999 the Vienna Regional Court convicted the applicant of other offences under the same provision and sentenced him to two years and six months’ imprisonment. On 30 March 2000 the Supreme Court partly acquitted him and reduced the sentence to one year’s imprisonment.
8. On 6 April 2001 the Vienna Regional Court convicted the applicant under Article 209 of the Criminal Code and sentenced him to one year’s imprisonment. The applicant did not appeal.
9. All those convictions were entered in the applicant’s criminal record.
10. On 8 May 2006 the first applicant applied to have each conviction under Article 209 of the Criminal Code deleted from his criminal record on the grounds that Article 209 of the Criminal Code had been repealed by the Constitutional Court in the meantime. On 20 October 2006 the Federal Minister of the Interior dismissed his application.
11. On 29 November 2006 the applicant applied for legal aid in order to lodge a complaint against the Federal Minister’s decisions with the Administrative Court and the Constitutional Court.
12. On 18 December 2006 the Constitutional Court dismissed the request for legal aid, holding that the applicant’s complaint had no prospect of success. It noted that in a previous judgment of 4 October 2006 it had found that the administrative authorities were only entitled to execute the orders of the criminal courts concerning registration, but that they had no competence to review on their own initiative the lawfulness of the respective order on its merits. Since a review of the lawfulness of an ordinary court’s decision by an administrative authority would be in contradiction to the separation of powers under constitutional law, the Federal Ministry of the Interior’s decision had not breached the law.
13. On 12 December 2006 the Administrative Court, referring to the Constitutional Court’s case-law, according to which the authorities were only entitled to check whether a mistake had occurred when a conviction was registered, but not to decide on the lawfulness of an entry on their own initiative, dismissed the applicant’s request for legal aid on the grounds that his complaint lacked any prospect of success.
14. On an unspecified date the first applicant lodged a request for a renewal of each set of criminal proceedings which had led to his convictions under Article 209 of the Criminal Code with the Supreme Court in order to seek the quashing of the convictions, with a view to their subsequent deletion from his criminal record.
15. By decisions of 27 September 2007, 23 October 2007 and 15 November 2007 respectively, the Supreme Court rejected the application. As the highest instance for criminal proceedings, it found that it had, in principle, the competence to take the necessary decisions in fulfillment of its obligations arising from the Federal Constitution and the European Convention on Human Rights. However, in order to safeguard the principle of legal certainty, it had to apply the same admissibility criteria as the European Court of Human Rights under the Convention. This meant that applying Article 35 § 1 of the Convention per analogiam, a request for a renewal of the criminal proceedings had to be submitted within a period of six months after the conviction had become final and that the applicant had to have exhausted domestic remedies. It rejected the applicant’s request because it had been introduced outside of the six-month period and, as regards the first set of proceedings, on the additional ground that the applicant had failed to raise his complaint before the domestic courts. Furthermore, it noted that the matter had already been examined by the Supreme Court in the first set of proceedings.
16. The second applicant, Mr H. G. is an Austrian national born in 1960.
17. On 31 May 1989 the Leoben Regional Court convicted the second applicant of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article 209 of the Criminal Code, and sentenced him to eight months’ imprisonment. The conviction was entered in the criminal record.
18. On 25 September 2005 the second applicant applied to have the conviction under Article 209 deleted from his criminal record, on the grounds that that provision had been repealed in the meantime. On 24 February 2006 the Federal Ministry of the Interior dismissed the application.
19. On 3 April 2006 the second applicant lodged a complaint against that decision with the Administrative Court and the Constitutional Court, and applied for legal aid.
20. On 11 October 2006 the Constitutional Court declined to deal with the complaint for lack of any prospect of success. In its reasoning it referred to its judgment of 4 October 2006 (see paragraph 12 above).
21. On 21 March 2007 the Administrative Court dismissed the applicant’s complaint, finding that the mere repeal of a criminal provision by the Constitutional Court or the legislator, without any specific order of a competent court, as in the instant case, could not give rise, under the Criminal Record Act, to the administrative authorities deleting a conviction that had been lawfully entered in a person’s criminal record. The authorities were only entitled to check whether a mistake had occurred when the conviction had initially been recorded.
22. On an unspecified date the applicant lodged a request for a renewal of the criminal proceedings to the Supreme Court order to seek the quashing of the conviction, with a view to its subsequent deletion from his criminal record.
23. On 1 August 2007 the Supreme Court rejected the application. As the highest instance for criminal proceedings, it found that it had in principle the competence to take the necessary decisions in fulfillment of its obligations arising from the Federal Constitution and the European Convention on Human Rights. However, in order to safeguard the principle of legal certainty, it had to apply the same admissibility criteria as the European Court of Human Rights under the Convention. This meant that, applying Article 35 § 1 of the Convention per analogiam, a request for a renewal of the criminal proceedings had to be submitted within a period of six months after the conviction had become final and that the applicant had to have exhausted domestic remedies. It rejected the applicant’s request since it had been introduced outside of the six-month period.
24. On 24 March 1994 the Leoben Regional Court convicted the second applicant again of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article 209 of the Criminal Code, and sentenced him to one year’s imprisonment.
25. On 20 September 1994 the Supreme Court rejected a plea of nullity lodged by the second applicant and on 4 November 1994 the Graz Court of Appeal dismissed an appeal lodged by him. The conviction was entered in the criminal record.
26. On 25 September 2005 the second applicant applied to have the conviction under Article 209 deleted from his criminal record. On 24 February 2006 the Federal Ministry of the Interior dismissed the application.
27. On 3 April 2006 the second applicant lodged a complaint against that decision with the Administrative Court and the Constitutional Court, and applied for legal aid.
28. The Constitutional Court declined to deal with the complaint on 11 October 2006 because, in accordance with its case-law, it lacked any prospect of success.
29. On 21 March 2007 the Administrative Court dismissed the second applicant’s complaint.
30. On an unspecified date the applicant lodged a request for a renewal of the criminal proceedings with the Supreme Court in order to seek the quashing of the conviction, with a view to its subsequent deletion from his criminal record.
31. On 23 October 2007 the Supreme Court rejected the request for the same reasons as those given in its judgment of 1 August 2007 (see paragraph 23 above).
32. The third applicant, Mr A. S., is an Austrian national born in 1949.
33. On 25 May 1999 the Graz Regional Court convicted the applicant of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article 209 of the Criminal Code. It sentenced him to one year’s imprisonment and ordered his detention in a secure psychiatric institution, pursuant to Article 21 § 2 of the Criminal Code. The applicant did not appeal against that decision. The conviction was entered in his criminal record.
34. On 25 September 2005 the third applicant applied to have the conviction deleted from his criminal record. On 22 February 2006 the Federal Ministry of the Interior dismissed his application.
35. On 3 April 2006 the third applicant lodged a complaint with the Administrative Court and the Constitutional Court against the Federal Minister’s decision.
36. On 11 October 2006 the Constitutional Court declined to deal with the case because, in accordance with its case-law, it lacked any prospect of success.
37. On 21 March 2007 the Administrative Court dismissed the complaint.
38. On an unspecified date the third applicant lodged a request for a renewal of the criminal proceedings with the Supreme Court in order to seek the quashing of the conviction with a view to its subsequent deletion from his criminal record.
39. On 13 November 2007 the Supreme Court rejected the request for the same reasons as those given in its judgment of 1 August 2007 (see paragraph 23 above).
40. The fourth applicant, Mr A. V., is an Austrian national born in 1968.
41. On 29 August 1997 the Vienna Regional Court convicted the fourth applicant of homosexual acts with consenting adolescents within the age bracket of 14 to 18, an offence under Article 209 of the Criminal Code, and sentenced him to six months’ imprisonment. As the fourth applicant did not appeal against that decision, it became final. The conviction was entered in his criminal record.
42. On 25 September 2005 the fourth applicant applied to have the conviction deleted from his criminal record, because Article 209 had been repealed in the meantime. On 24 February 2006 the Federal Ministry of the Interior dismissed his application.
43. On 3 April 2006 the fourth applicant lodged a complaint against the Federal Minister’s decision with the Administrative Court and the Constitutional Court.
44. On 4 October 2006 the Constitutional Court dismissed the complaint. It found that the administrative authorities were only entitled to execute the orders of the criminal courts concerning the recording of convictions, but that they had no competence to review on their own initiative whether the respective order was lawful on its merits. Since a review of the lawfulness of an ordinary court’s decision by an administrative authority would be in contradiction to the separation of powers under constitutional law, the Federal Ministry of the Interior’s decision had not breached the law.
45. On 21 March 2007 the Administrative Court dismissed the fourth applicant’s complaint.
46. On 30 November 2006 the fourth applicant lodged a request for a renewal of the criminal proceedings with the Supreme Court in order to seek the quashing of the conviction with a view to its subsequent deletion from his criminal record.
47. On 6 September 2007 the Supreme Court rejected the request for the same reasons as those given in its judgment of 1 August 2007 (see paragraph 23 above).
48. Article 209 of the Criminal Code, in force until 14 August 2002, deals with consensual homosexual acts and reads as follows:
“A male person who, after attaining the age of nineteen, fornicates with a person of the same sex who has attained the age of fourteen years but not the age of eighteen years, shall be sentenced to imprisonment of between six months and five years.”
49. In a judgment of 21 June 2002, following a request for a constitutional review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 of the Criminal Code was unconstitutional.
50. The Constitutional Court held that Article 209 concerned only consensual homosexual relations between men aged over 19 and adolescents between the ages of 14 and 18. In the 14-to-19 age bracket, homosexual acts between persons of the same age (for instance two 16year-olds) or persons with an age difference of between one and five years, were not punishable. However, as soon as one partner reached the age of 19, such acts constituted an offence under Article 209. They became legal again when the younger partner reached the age of 18. Given that Article 209 applied not only to occasional relations but also to ongoing relationships, it led to rather absurd results – namely, a change of periods during which the homosexual relationship of two partners was first legal, then punishable and then legal again – and could therefore not be considered to be objectively justified.
51. On 10 July 2002, following the Constitutional Court’s judgment, the Austrian Parliament decided to repeal Article 209. It also introduced Article 207b, which penalises sexual relations with persons under 16 years of age under specific conditions and which is formulated in a gender neutral way. This provision prohibits sexual acts with a person under 16 years of age if, for certain reasons, that person is not mature enough to understand the meaning of the act and the offender takes advantage of that immaturity, or if the person under 16 is in a predicament and the offender takes advantage of that situation. Article 207b also penalises the inducing of persons under 18 years of age to engage in sexual activities in return for payment. Article 207b applies irrespective of whether the sexual acts at issue are heterosexual, homosexual or lesbian. The above amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, entered into force on 14 August 2002.
52. Under its transitional provisions, the amendment did not apply to criminal proceedings in which a first-instance judgment had already been given. It did exceptionally apply, subject to the principle of the application of a more favourable law, where a judgment had been set aside, inter alia, following the reopening of proceedings or in the context of a renewal of the proceedings following the finding of a violation of the Convention by the European Court of Human Rights. Apart from those situations, convictions under Article 209 remained unaffected by the amendment.
53. Under the heading “Renewal” (Erneuerung des Strafverfahrens), the Code of Criminal Procedure (Strafprozeßordnung) provides as follows:
“1. If it is established in a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette [Bundesgesetzblatt] no. 210/1958) or of one of its Protocols on account of a decision [Entscheidung] or order [Verfügung] of a criminal court, a retrial shall be held on application in so far as it cannot be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned.
2. All applications for a retrial shall be decided by the Supreme Court. ...”
“1. On an application for a retrial, the Supreme Court shall deliberate in private only where the Attorney-General or the judge rapporteur proposes that a decision be taken on one of the grounds set out in paragraphs 2 and 3.
2. Where the Supreme Court deliberates in private, it may refuse an application.
...
if it unanimously considers the application to be manifestly ill-founded.
...”
54. Under the Criminal Record Act (Strafregistergesetz), every criminal conviction and sentence pronounced by a court for criminal matters (excluding those dealt with by administrative authorities) is to be registered in the criminal record (Strafregister), and is to remain visible there until its deletion. The criminal record is a central register which is kept by an administrative authority and which is accessible to law-enforcement authorities (Strafregisterauskunft). Furthermore, anybody is entitled to obtain a copy of his or her own criminal record, which may be presented to employers in order to prove his or her moral integrity (Strafregisterbescheinigung).
The following provisions are relevant to the present case:
“(1) The following must be entered in the criminal record:
1. all final convictions by the domestic criminal courts ...,
2. all final convictions of Austrian nationals and persons who have their residence or usual place of abode in Austria, by foreign criminal courts ...,
...
4. all decisions of the Federal President in connection with a conviction mentioned under subparagraphs 1 to 3, and decisions of the domestic courts regarding
...
(c) the pardoning of the convicted person, the mitigation, conversion or new fixing of a penalty
...
(k) the setting aside or alteration of a conviction or later decision;
...
(m) the extinction of a conviction;
...
(3) Any ruling imposing a penalty or preventive measure against a person or guilty verdict because of an act triable under Austrian law by the courts pursuant to the 1960 Code of Criminal Procedure in proceedings that are in compliance with the principles of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Federal Law Gazette no. 210/1958, shall be deemed a conviction within the meaning of this federal law.”
“(1) Convictions by domestic criminal courts shall, once they take effect, be notified by the courts determining the case at first instance to the Vienna Federal Police Directorate through the transmission of criminal record cards.
...”
“(1) Decisions of the Federal President relating to one of the convictions mentioned in subparagraphs 1 to 3 of section 2(1) and final decisions by domestic criminal courts shall be notified to the Vienna Federal Police Directorate by the court, which shall inform the convicted person thereof. The notification shall state the conviction to which the President’s or court’s decision refers. Detailed regulations regarding the external form of these notifications shall be adopted by the Federal Ministries in charge of the implementation of this federal act by mutual agreement through official instructions.
(2) The date on which all prison sentences, fines (penalties in lieu of forfeiture or confiscation) and preventive measures accompanying deprivation of liberty imposed in a conviction have been completed, are deemed to have been completed, have been remitted or no longer need to be executed (section 2(1)(5)) shall be notified to the Vienna Federal Police Directorate by the court determining the case at first instance. If, in the case of a conviction under section 6(4) of the Criminal Records (Deletion) Act 1972, Federal Law Gazette no. 68, in respect of an unconditionally remitted prison sentence or in respect of a completely or only partly conditionally remitted prison sentence where remission has been revoked, the date of release from prison precedes the date stated in the first sentence, this release shall also be notified.
(3) Convictions and decisions, orders and notifications by foreign organs relating to convictions shall be notified to the Vienna Federal Police Directorate by all domestic authorities and offices obtaining knowledge thereof, unless they are aware that the Vienna Federal Police Directorate has already received a corresponding notification.
...”
“(1) If a domestic criminal court becomes aware that there has been a change in the personal situation of a convicted person (section 3(2)(2)) or that the information contained in the criminal record about a convicted person or a conviction is incorrect or that a person has convictions that are not included in the criminal record, it shall notify the Vienna Federal Police Directorate accordingly.
...”
“(1) Any person in connection with whom a conviction, a decision by the Federal President or any other decision, order or notification relating thereto has or has not been entered in the criminal record may request a declaration that the entry in the criminal record is incorrect or inadmissible and therefore must be replaced or deleted, that the entry should have been made or that the conviction has been extinguished.
(2) A request under subsection (1) shall be filed with the Federal Ministry of the Interior, which shall determine it.
(3) If a request under subsection (1) is completely or partly allowed, the criminal record shall be corrected.”
“(1) Except where provided for in other federal laws and international agreements, the Vienna Federal Police Directorate shall, on request, provide free of charge information about entries in the criminal record:
1. to all domestic authorities, offices of the federal police and – in respect of members of the armed forces – also to the military authorities;
2. to all foreign authorities in so far as a reciprocal agreement exists.”
“(1) Mayors, in places where there are federal police directorates, these directorates, as well as Austrian missions abroad, shall, on request, issue certificates on the basis of documentation collected by the Vienna Federal Police Directorate about the applicant’s convictions appearing in the criminal record or stating that the criminal record does not contain any such convictions (criminal record certificates).
...”
“After a period of two years has elapsed following the extinction of a conviction, any data concerning the conviction and the convicted person shall be deleted from the criminal record.”
55. Under section 4 of the Criminal Record (Deletion) Act 1972 (Tilgungsgesetz) the period during which a simple conviction remains on the criminal record before its deletion is calculated by adding together all the recorded convictions. This period may last from three years for a conviction of minor importance, and if no further convictions are entered during this period, up to fifteen years for a conviction for which a sentence of more than three years’ imprisonment was imposed. Thus the duration of the criminal record depends on the sentence and may be prolonged by subsequent convictions. A sentence of life imprisonment is never deleted from the record.
VIOLATED_ARTICLES: 13
14
8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-89533
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF OMMER v. GERMANY (No. 2)
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1950 and lives in Bergisch Gladbach, Germany. In the 1970s he participated as a sprinter in the Olympic Games and from 1986 to 1993, he was the president of FC Homburg, a football club playing in the German Football League.
6. From 1982 the applicant was the sole shareholder and sole managing director of the DETAG investment trust corporation which negotiated the sale of apartments to private investors. He later arranged for some of these apartments, which had been returned by the investors, to be taken up into funds managed by the IHV Real Estate Company.
7. The present application concerns criminal investigations instituted against the applicant and others related to the management of the real estate funds of the IHV Company. Additional criminal proceedings were pending against the applicant in connection with his business activities for the DETAG corporation and its arrangements made for the sale of apartments to private investors. On 4 February 2002 the judgment of the Bonn Regional Court acquitting the applicant of charges of fraud in this respect became final. The applicant also lodged an application with the Court related to these proceedings (no. 10597/03).
8. By a letter dated 19 February 1987, which reached the applicant on that day, the Cologne police headquarters summoned the applicant for questioning on charges of fraud in connection with his business activities for the DETAG corporation. Thereby the applicant obtained knowledge of the criminal investigations instituted against him in this respect. The Cologne Public Prosecutor’s Office later joined several sets of proceedings concerning accusations of fraud against the applicant (file no. 110 Js 24/88).
9. On 6 December 1990 the Cologne District Court’s order of 28 October 1990, made in the proceedings no. 110 Js 24/88, to search the applicant’s home and car was executed and a file was seized. The applicant was suspected of having at least instigated a partner of the IHV Real Estate Company to breach her fiduciary duty. The applicant had purportedly abetted that partner in respect of apartments, which had been returned to the DETAG corporation having been bought by private investors at prices far above their market value, into the real estate funds managed by the IHV Company.
10. On 11 and 17 December 1990 and on 11 and 18 April 1991, 23 and 31 October 1991 and 6 November 1991 the Cologne Public Prosecutor’s Office questioned suspects on the charges related to the IHV Company. In December 1991 and January 1992 the Public Prosecutor’s Office evaluated the documents seized in a note for the records.
11. On 10 November 1993 the Cologne Public Prosecutor’s Office instituted further separate proceedings for fraud and breach of fiduciary duty against the applicant and others concerning the management of the funds of the IHV Real Estate Company (file no. 110 Js 748/93). The accused persons in these proceedings were suspected of having committed fraud to the detriment of investors by including unmarketable apartments in the funds set up by the IHV Real Estate Company, thereby reducing the profitability of the funds. Moreover, they were suspected of breach of fiduciary duty by mismanaging the said funds, which operated at a loss.
12. In a file note dated 21 November 1994 the Cologne Public Prosecutor’s Office stated that the suspicion that fraud and breach of fiduciary duty had been committed in connection with the management of funds of the IHV Real Estate Company had already arisen in the proceedings no. 110 Js 24/88. Several searches had been conducted on 6 December 1990 and several persons had already been examined in the course of those proceedings. In so far as the investigation proceedings in file no. 110 Js 24/88 concerned charges of fraud in connection with the funds of the IHV Real Estate Company, they were separated from the said file and joined to the proceedings no. 110 Js 748/93.
13. On 13 December 1994 the Cologne Public Prosecutor’s Office questioned witness G.
14. On 10 January 1995 M., a specialist in economic offences at the Cologne Public Prosecutor’s Office, having examined the case file, concluded that several funds managed by the IHV Company would always operate at a loss and that the investors had been deceived about the value of the funds.
15. On 23 April 1996 the Cologne District Court’s order of 23 October 1995 to search the homes of the applicant and of other co-accused was executed and several documents were seized.
16. In April 1996 W., another specialist in economic offences at the Cologne Public Prosecutor’s Office, as did M., on 6 May 1996, submitted reports concerning the profitability of the funds in question, finding that in respect of several of them a suspicion of fraud prevailed.
17. In a letter to the Cologne Public Prosecutor’s Office dated 7 May 1996 the Federal Supervisory Office for Banking explained the nature of the contracts concluded between the IHV Company and the investors.
18. On 20 May 1996 the Cologne District Court ordered the seizure of further documents.
19. On 8 August 1996 W. submitted another expert report, finding that there was a persistent lack of profitability of the funds managed by the IHV Company.
20. On 18 February 1997 and on 7 November 1997 M. found that the prosecution of part of the offences had become time-barred, but that there still was a suspicion of fraud in respect of several funds managed by the IHV Company. By submissions dated 24 November 1997 and 10 December 1997 the applicant contested these findings. He submitted an expert report drawn up by the ETL auditing company in support of his view.
21. In a note dated 7 April 1998 expert M. contested the findings of the ETL auditing company.
22. On 29 April 1998 and on 8 June 1998 the Public Prosecutor’s Office asked the applicant to submit certain documents, which the latter refused to do in submissions dated 31 July 1998 before re-inspecting the case file.
23. On 15 October 1998 counsel for the applicant proposed that all investigation proceedings pending against the applicant be settled. The prosecution rejected that proposal on 10 November 1998.
24. On 8 October 1999 the Public Prosecutor’s Office again requested the applicant to submit certain documents. In December 1999 the applicant initially agreed to do so before the end of the year 1999, but subsequently failed to submit the documents in question.
25. On 21 December 1999 the Cologne District Court ordered the seizure of the balance sheets of the IHV Company.
26. On 4 July 2000 the Cologne Public Prosecutor’s Office questioned the applicant.
27. On 5 February 2001 K., another specialist in economic offences at the Public Prosecutor’s Office, disagreed with M.’s conclusions and found that part of the IHV Company’s funds actually seemed to be operating profitably.
28. On 11 May 2001 the Cologne District Court ordered another search, which was carried out on 31 October 2001.
29. On 18 December 2002 and on 10 January 2003 expert K., having regard to further balance sheets seized, found that the funds examined had in fact yielded considerable profits.
30. On 29 January 2003 the Cologne Public Prosecutor’s Office discontinued the proceedings against the applicant, partly pursuant to Article 170 § 2 of the Code of Criminal Procedure (see paragraph 36 below), and partly pursuant to Article 153 § 1 of that Code (see paragraph 32 below). It found that the prosecution of a part of the offences of which the applicant was suspected was time-barred. As to the suspicion that the applicant was guilty of a breach of fiduciary duty, the Public Prosecutor’s Office found that mismanagement of the funds concerned had not been proved, as the funds disposed of assets of a considerable value. There prevailed a suspicion of fraud in respect of part of the funds, as apartments had been bought for the funds at prices far above their market value. The proceedings should, however, be discontinued pursuant to Article 153 § 1 of the Code of Criminal Procedure in this respect. The said apartments constituted only a small part of the assets of the fund, so the damage caused had to be considered minor. Moreover, the commission of the offences dated back a long time.
31. By a letter dated 3 February 2003 the Cologne Public Prosecutor’s Office, having obtained the consent of the Cologne District Court to discontinue the proceedings pursuant to Article 153 § 1 of the Code of Criminal Procedure, notified the applicant that the investigation proceedings no. 110 Js 748/93 against him had been discontinued.
32. Article 153 § 1 of the Code of Criminal Procedure governs the discontinuance of criminal proceedings on the ground of insignificance. During the investigation proceedings the Public Prosecutor’s Office may discontinue the criminal proceedings if they concern an offence for which it is not mandatory to impose a sentence of at least one year’s imprisonment (Vergehen), if the defendant’s guilt would be of a minor nature and if there was no public interest in criminal prosecution. The court which has jurisdiction to open the main proceedings must consent to discontinuing the proceedings unless they concern offences which are not subject to an increased minimum penalty and the consequences ensuing from the offence are minor.
33. Pursuant to Article 153a § 1 of the Code of Criminal Procedure, the Public Prosecutor’s Office may discontinue criminal proceedings concerning offences for which the regular minimum penalty is less than one year’s imprisonment at the investigation stage with the defendant’s consent, if the latter complies with certain conditions. These conditions must be suitable to remove the public interest in criminal prosecution and may not be in conflict with the severity of the defendant’s guilt. Such conditions notably entail the payment of a sum of money to a non-profit-making organisation or to the Treasury. The court which has jurisdiction to open the main proceedings must consent under certain circumstances. If the indictment has already been preferred with that court, the latter may discontinue the proceedings under the conditions set out in § 1 with the consent of both the Public Prosecutor’s Office and the defendant (Article 153a § 2).
34. Article 154 § 1 of the Code of Criminal Procedure provides that the Public Prosecutor’s Office may dispense with prosecuting an offence if the penalty in which the prosecution might result is not particularly significant compared to a penalty which has been imposed with binding effect upon the defendant for another offence or which he has to expect for another offence. It may also dispense with prosecuting an offence if a judgment in respect of that offence is not to be expected within a reasonable time and if the penalty which has been imposed on the defendant with binding effect or which he has to expect for another offence appears sufficient to have an influence on the offender and to defend the legal order. Pursuant to Article 154 § 2 of the Code of Criminal Procedure, the court may provisionally discontinue proceedings upon the request of the Public Prosecutor’s Office at any stage if charges have already been preferred. If the proceedings have been discontinued provisionally on account of a penalty which was to be expected for another offence, the proceedings may be resumed, unless barred by limitation in the meantime, within three months after the judgment delivered in respect of the other offence has become final (Article 154 § 4 of the Code of Criminal Procedure).
35. Article 154a § 1 of the Code of Criminal Procedure authorises the Public Prosecutor’s Office to limit prosecution to certain parts of an offence or certain breaches of the law if, in particular, other separable parts of the offence or other breaches of the law committed by the same act are not particularly significant for the penalty to be expected. The court may order such limitation with the consent of the Public Prosecutor’s Office at any stage of the proceedings after the bill of indictment has been filed (Article 154 § 2). The court may reintroduce into the proceedings those parts of the offence or breaches of the law which have not been considered at any stage of the proceedings (Article 154a § 3).
36. Pursuant to Article 170 § 2 of the Code of Criminal Procedure the Public Prosecutor’s Office discontinues the criminal investigation proceedings if investigations show that there are not sufficient reasons to prefer an indictment. It notifies the accused of this if he has been questioned as accused, if an arrest warrant has been issued against him, if he has requested to be notified or if it is obvious that there is a special interest in notification.
37. Compensation for damage caused by wrongful prosecution is covered by the Act on Compensation for Measures of Criminal Prosecution (Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen).
38. Pursuant to section 2 of that Act, a defendant is notably entitled to compensation for damage incurred by certain specified measures of criminal prosecution if he is acquitted, if the proceedings against him are discontinued or if the court refuses to open the main proceedings against him. The measures of criminal prosecution for which compensation may be granted notably comprise pre-trial detention and searches and seizures of property.
39. In cases in which proceedings have been discontinued pursuant to a provision allowing for discontinuance at the discretion of the prosecution or the court, the person concerned may be granted compensation for the measures listed in section 2 if this issection 3 of that Act). Compensation may be refused if the proceedings against the defendant have been discontinued due to an impediment to the proceedings (see section 6 § 1 no. 2 of that Act).
40. Section 7 § 1 of the Act on Compensation for Measures of Criminal Prosecution stipulates that pecuniary damage incurred as a result of the criminal prosecution measure is compensated for, as well as non-pecuniary damage in the event of a deprivation of liberty by a court decision. Once the court’s finding that the Treasury is under a duty to compensate has become final (see section 9 of the said Act), a compensation claim must be submitted within six months to the Public Prosecutor’s Office which was last in charge of the investigations at first instance (section 10 § 1 of the said Act).
41. Pursuant to Article 34 of the Basic Law, taken in conjunction with Article 839 of the Civil Code, an individual has the right to be compensated by the State for any damage arising from a breach of official duty committed by a public servant. These provisions are also applicable to a breach of duty in giving judgment on an action if the breach consists of a refusal to discharge a function or a delay in performing it contrary to professional duty.
42. Damages are afforded to the individual concerned in accordance with Articles 249 et seq. of the Civil Code. By Article 253 of the Civil Code, in the version in force until 31 July 2002 and applicable to damage caused up to that date, compensation for non-pecuniary damage can be awarded only if it is provided for by law. In this connection, Article 847 § 1 of the Civil Code, in force until that same day, provided for non-pecuniary compensation only in the event of physical injury, damage caused to someone’s health or deprivation of liberty. According to the established case-law of the Federal Court of Justice, a claim for non-pecuniary damage can, moreover, arise in case of a serious violation of a person’s personality rights (Persönlichkeitsrecht) which cannot be compensated for in another manner (see, inter alia, Federal Court of Justice, no. III ZR 9/03, judgment of 23 October 2003, Neue Juristische Wochenschrift (NJW) 2003, pp. 3693 et seq. with further references). The new Article 253 § 2 of the Civil Code, in force since 1 August 2002, which replaced Article 847 of the Civil Code, has not introduced any amendments relevant to the matters in issue in the instant case.
43. According to the settled case-law of the Federal Constitutional Court, Article 2 § 1 of the Basic Law, read in conjunction with the principle of the rule of law as enshrined in Article 20 § 3 of the Basic Law, guarantees the right to expeditious criminal proceedings (see, inter alia, that court’s judgment of 24 November 1983, no. 2 BvR 121/83, § 3; decision of 19 April 1993, no. 2 BvR 1487/90, § 16; and decision of 5 February 2003, nos. 2 BvR 327/02, 2 BvR 328/02 and 2 BvR 1473/02, § 33). Moreover, penalties imposed on a defendant have to comply with the constitutional right to liberty guaranteed by Article 2 § 2 of the Basic Law, read in conjunction with the principle of proportionality enshrined in the rule of law (see, inter alia, the Federal Constitutional Court’s decision of 5 February 2003, nos. 2 BvR 327/02, 2 BvR 328/02 and 2 BvR 1473/02, § 58; decision of 25 July 2003, no. 2 BvR 153/03, § 31, and decision of 21 January 2004, no. 2 BvR 1471/03, § 28).
44. As the legislator did not lay down any rules on the consequences of a violation of the right to expeditious proceedings, the criminal courts and the prosecution authorities are, as a rule, called upon to draw the necessary conclusions from undue delay in the proceedings. They may discontinue the proceedings pursuant to Articles 153 and 153a of the Code of Criminal Procedure, limit criminal prosecution pursuant to Articles 154 and 154a of the Code of Criminal Procedure, terminate the proceedings either by dispensing with a penalty or by a warning with sentence reserved (Verwarnung mit Strafvorbehalt) or take the length of the proceedings into account as a mitigating factor when fixing the penalty (see Federal Constitutional Court, judgment of 24 November 1983, no. 2 BvR 121/83, §§ 4-5; decision of 5 February 2003, nos. 2 BvR 327/02, 2 BvR 328/02 and 2 BvR 1473/02, §§ 35-36; decision of 25 July 2003, no. 2 BvR 153/03, §§ 34-35, and decision of 21 January 2004, no. 2 BvR 1471/03, §§ 31-32). In exceptional cases, in which the delay in the proceedings was particularly serious and had led to a particular burden for the person concerned and in which the said options provided by the criminal law and the law on criminal procedure were insufficient, the proceedings may be discontinued because of a constitutional impediment to the proceedings (see Federal Constitutional Court, judgment of 24 November 1983, no. 2 BvR 121/83, § 8; decision of 19 April 1993, no. 2 BvR 1487/90, § 18; decision of 5 February 2003, nos. 2 BvR 327/02, 2 BvR 328/02 and 2 BvR 1473/02, § 36, and decision of 21 January 2004, no. 2 BvR 1471/03, § 45). In the latter case, the Federal Constitutional Court may discontinue the proceedings itself (see, inter alia, that court’s decision of 5 February 2003, nos. 2 BvR 327/02, 2 BvR 328/02 and 2 BvR 1473/02, § 61, and decision of 25 July 2003, no. 2 BvR 153/03, § 49).
45. Pursuant to section 90 § 2 of the Federal Constitutional Court Act, complainants must exhaust the remedies available in the domestic courts prior to lodging a constitutional complaint. However, the Federal Constitutional Court may decide on a constitutional complaint lodged before the exhaustion of these remedies if the complaint is of general importance or if the complainant would otherwise suffer a serious and unavoidable disadvantage.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58190
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF ABENAVOLI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. Mr Francesco Abenavoli, a teacher who works in two secondary schools in Calabria, lives in Reggio di Calabria.
8. On 19 February 1982 he applied to the Calabria Regional Administrative Court (“the RAC”) for judicial review of two reductions in salary, for the months of February and May 1981, imposed on him by the schools’ inspectorate and reimbursement of the sums unpaid, after adjustment for inflation and the addition of interest at the statutory rate.
9. On 9 March 1982 he asked for a date to be fixed for the hearing. On 13 June 1988 and 7 April 1992 he applied for the case to be set down for an urgent hearing.
10. According to the information supplied by the applicant, on 4 June 1996, the proceedings were then still pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57635
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF WASSINK v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;No violation of Art. 5-4;No violation of Art. 5-5;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos
TEXT: 8. Mr Jan Wassink, a Netherlands national, currently resides at Klazienaveen in the Netherlands.
9. On 15 November 1985 the Burgomaster of Emmen ordered Mr Wassink’s emergency confinement in a psychiatric hospital pursuant to section 35 (b) of the Mentally Ill Persons Act 1884 (Krankzinnigenwet, see paragraph 16 below). His decision was based on a medical report drawn up the same day by a psychiatrist, Dr S., according to which there were serious grounds for believing that the applicant suffered from a mental disorder representing an immediate danger to himself, to others and to public order. Mr Wassink had already threatened members of his family and attacked a neighbour in her house.
10. On 19 November 1985 the Crown Prosecutor (Officier van Justitie) requested the President of the District Court (Arrondissementsrechtbank) of Assen to extend the applicant’s confinement. In addition to the file attached to this application, the President received a police report dated 18 November 1985 containing the statements of various witnesses and of Mr Wassink’s wife, and a memorandum, of the same date, setting out the opinion of the applicant’s doctor, Dr R.
11. On 20 November, in the presence of Mr Jongeneelen, Mr Wassink’s "confidential counsellor" (patientenvertrouwenspersoon), the District Court President interviewed the applicant together with a psychiatrist, Dr V. He then consulted three other persons by telephone - Dr R., Mr Wassink’s wife and another doctor, Dr H. - and made a brief note of their statements. Again by telephone, he gave a summary of the resulting information to Mr Jongeneelen.
In a letter of 9 January 1986, Mr Jongeneelen told the applicant’s lawyer that this conversation, which had lasted some ten minutes, had taken place at his request and had given him (Mr Jongeneelen) an opportunity to put forward his views; a few days after the conversation, the President had communicated the whole file to him.
12. On 25 November 1985 the President ordered the continuation of the applicant’s confinement pursuant to sections 35 (i) and 35 (j) of the Mentally Ill Persons Act. Referring to the medical report by Dr S. (see paragraph 9 above) and the statements of Mr Wassink, Dr. V. and the three persons whom he had questioned by telephone (see paragraph 11 above), he considered that, because of his mental illness, the applicant was an immediate danger to himself, to others and to public order. The President added that it was clear from the statements which he himself had obtained and those contained in the police report of 18 November 1985 that Mr Wassink had already caused considerable disturbance to his neighbours. It was therefore to be feared that, as he was unaware of the effect of his actions on others, he would continue his unacceptable behaviour if he were to return home.
13. Mr Wassink left the hospital on 20 December 1985. On 31 December the President of the District Court sent to the applicant’s lawyer, at the latter’s request, various documents from the file, including the note that he had made after interviewing Mr Wassink and hearing the views of the persons whom he had questioned by telephone. He explained that circumstances relating to the organisation of the court made it impossible to arrange for a registrar to be present in every case of emergency confinement. There were three large psychiatric hospitals within the court’s jurisdiction and it was a small court.
14. On 24 January 1986 the applicant filed an appeal on points of law with the Supreme Court (Hoge Raad) against the order of 25 November 1985. He complained that the President of the District Court had not specified sufficiently the nature of the danger which his mental illness represented for himself and for public order, that the President had held a hearing without a registrar’s being present to draw up a record and, finally, that, before making the order, the President had failed to communicate to him the text of the statements of the persons whom he had telephoned, thereby depriving the applicant of any opportunity to react thereto.
15. In his submissions of 11 March 1986, the Attorney General at the Supreme Court (Procureur-Generaal bij de Hoge Raad) expressed the view that the second of these grounds (and only the second) was well-founded. However, on 18 April 1986 the Supreme Court declared the appeal inadmissible, finding that Mr Wassink no longer had any interest in having the contested order quashed since the maximum period for an emergency confinement had already expired.
16. In the Netherlands the confinement of mentally ill persons is governed by an Act of 27 April 1884 on State Supervision of Mentally Ill Persons, commonly known as the Mentally Ill Persons Act (Krankzinnigenwet, "the 1884 Act").
17. Sections 35 (b) to 35 (j) make provision for the emergency committal procedure which was followed in the present case.
Where there are serious grounds for believing that a person represents an immediate danger to himself, to others or to public order on account of mental illness, the burgomaster of the municipality in which he resides is empowered to order his compulsory committal (inbewaringstelling) to a psychiatric hospital (section 35 (b)).
In so doing, the Burgomaster is required first to seek the opinion of a psychiatrist or, if that proves impossible, of another medical practitioner (section 35 (c)). As soon as he has ordered a confinement, he must inform the Crown Prosecutor and transmit to him the medical certificate on which he based his decision (section 35 (e)). The Crown Prosecutor has then, in his turn, to forward the certificate to the President of the District Court, not later than the following day, requesting, where appropriate, the continuation of the confinement (section 35 (i)). The President must give his decision within three days. An order to continue the confinement is valid for three weeks, but the President may renew it for a second period of the same length if, before the expiry of the first period, an application for judicial authorisation for confinement (rechterlijke machtiging, sections 12 and 13) is made (section 35 (j)).
18. By virtue of Article 72 of Regulation I (Reglement I) made in pursuance of the Judiciary (Organisation) Act (Wet op de Rechterlijke Organisatie), "hearings and examinations" ("terechtzittingen en verhoren") must be conducted in the presence of a registrar whose duty it is to draw up a record of the proceedings.
19. The Netherlands Supreme Court has held that, in view of the importance of having up-to-date information as a basis for a confinement decision, the judge may be justified in using information obtained by telephone. He must, however, communicate any such information to the person concerned or his counsel in order to enable them to comment on it. The Supreme Court has quashed a number of decisions on account of a failure to comply with this requirement (see, for example, the judgments of 4 January, 10 May and 7 June 1985, Nederlandse Jurisprudentie (NJ), nos. 336, 665 and 718).
It appears from a judgment of 1 December 1989 (NJ 1990, no. 438) that the case-law on the subject may be summarised as follows:
1. if a judge obtains information by telephone, he must ensure that it is taken down in writing;
2. (a) in principle, the judge must not make use of such information unless he has advised the person concerned or his counsel of its substance and has given them sufficient opportunity to comment on it;
(b) this may also be done by telephone;
3. the decision or the documents of the court proceedings must show that the requirements referred to under 2 (a) have been met;
4. only under special circumstances may the judge decide not to observe the rule referred to under 2 (a);
5. in such cases the reasons must be stated so as to enable the Supreme Court to assess whether rule 4 has been complied with;
6. if a statement taken by telephone contains information concerning points that are essential for the decision and the judge has not unequivocally discounted that statement in his decision, it must be assumed that the judge made use of that information when reaching his decision.
20. On the question of the presence and the role of the registrar during hearings held pursuant to the 1884 Act, the Supreme Court has stated as follows:
"Having regard to the serious nature of decisions taken under the Mentally Ill Persons Act, to the requirements which have accordingly to be complied with in respect of the statement of the reasons on which they are based and to the importance of its being possible to review, in cassation proceedings, their conformity with those requirements, a record, signed by the registrar, must be made of any interviews effected and any questioning at the hearing. A copy of the record must be given to the person concerned if he so requests." (judgment of 18 May 1984, NJ 1984, no. 514)
In a judgment of 14 February 1986 (NJ 1986, no. 400), the Supreme Court held that, if these conditions were not complied with, the decision ordering the confinement was to be set aside, even though the person concerned had not indicated what consequences the failure to observe these requirements actually had in relation to him.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-4
5-5


ITEMID: 001-88322
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: TOLUI v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Hadi Tolui, is a British national who was born in 1946 and lives in London. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 9 July 1991. His claim for widows’ benefits was made in February 2001 and was rejected on 19 February 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.