ITEMID: 001-95099
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KOHLHOFER AND MINARIK v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - finding a violation sufficient;Pecuniary damage - claim dismissed
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. Through the acquisition of shares before January 2001, the first two applicants became minority shareholders of Českomoravský cement, a.s., a joint stock company incorporated under Czech law.
7. On 1 January 2001 the Commercial Code (hereinafter “the CC”) was amended. In accordance with its newly introduced Article 220p, a general meeting of a joint stock company was empowered to decide to wind up the company and transfer all its assets to a shareholder who owned shares representing more than 90% of the company's share capital (“the main shareholder”). An asset transfer contract between the main shareholder and the company was to be concluded to that end and compensation paid to the minority shareholders.
8. On 31 May 2001 the general meeting of the company adopted, by votes of the main shareholder, a resolution on the winding-up of the company and on the transfer of all its assets to the main shareholder (together also referred to as “the transfer”).
9. On the same day the applicants filed an action to have that resolution and the asset transfer contract set aside with the Prague Municipal Court (městský soud). They asserted that the resolution had been adopted contrary to law, treaties concerning the encouragement and reciprocal protection of investments and their property rights. They informed the court administering the commercial register (obchodní rejstřík) about this step.
10. On 31 October 2001 the court administering the commercial register (rejstříkový soud) approved the transfer. No hearing was held prior to that decision.
11. On 14 December 2001 the applicants contested the decision to register the transfer before the Constitutional Court (Ústavní soud), alleging an infringement of the right to a fair trial and their property rights. They claimed not to have been able to raise their objections to the general meeting resolution in a hearing during the non-contentious proceedings preceding the delivery of the decision. They invited the court to strike down inter alia Articles 220h(3) and (4) and 220p of the CC.
12. On 25 March 2003 the Constitutional Court in its decision no. IV. ÚS 720/01 rejected the applicants' appeal without holding a hearing. It found that the applicants were not entitled to participate in the proceedings as the task of the court in charge of the commercial register had been to decide on the rights of the company, not on theirs. It noted that that court had the applicants' arguments in their action to set aside at its disposal and had taken them into consideration before delivering the impugned decision, whilst reviewing the lawfulness of the resolution as a preliminary question. It held that the power to stay the proceedings was still available to that court under the law as it stood at the relevant time. The Constitutional Court dismissed the applicants' second claim according to which that decision amounted to other interference by public authority into their right to access to a court. Referring to Article 220h of the CC, it found the application of Article 131 of the CC in conformity with constitutional law. In this regard, the court pointed to procedural safeguards enshrined in Articles 131, 220h, 220k, 2201 and 220p of the CC which were available to the applicants, and emphasised the aim of the regulation providing for legal certainty and expeditious transformation of companies. As for the applicants' challenge to the law providing for the winding-up and the transfer on the ground of insufficient protection of the rights of minority shareholders, the court did not examine it since it went beyond the scope of that court's review defined by the applicants' constitutional appeal contesting the decision in which the court in charge of the commercial register had approved the registration of the winding-up and the transfer at the commercial register, but not any decisions adopted in other proceedings available to the complaining minority shareholders.
13. On 27 July 2006 the Municipal Court dismissed the applicants' action lodged on 31 May 2001. Having noted that the court in charge of the commercial register had approved the registration of the transfer, the Municipal Court, referring to Article 131(3)(c) of the CC, refused to deal with the applicants' assertions of unlawfulness of the impugned general meeting resolution, their principal allegation being that the resolution had been adopted by the main shareholder whose voting rights had been suspended. As for the applicants' plea of invalidity of the asset transfer contract, namely the insufficient number of experts commissioned for the expert report on the compensation and the determination of the decisive day (rozhodný den), the court expressed the view that the validity of the asset transfer contract must have been examined as a preliminary question by the court approving the registration of the transfer into the commercial register. At the same time, having reviewed the contract, the Municipal Court found that the determination of decisive day complied with the CC. Having interpreted relevant provisions of the CC, the court further found that the law did not require that more experts be commissioned for the purposes of assessing the compensation to be paid by the main shareholders to the applicants. Finally, the court examined and dismissed the applicants' claims that the compensation had not been properly determined as unfounded or reviewable only by a court reviewing the compensation in separate proceedings.
14. On 6 September 2007 the Prague High Court (vrchní soud), sharing the legal view of the court of first instance, upheld the Municipal Court's judgment of 27 July 2006.
15. The proceedings are now pending before the Supreme Court (Nejvyšší soud). According to the applicants, they have no prospect of success before that jurisdiction due to its settled case law.
16. According to the Government, the applicants filed with a court actions under Article 220k of the CC whereby they asserted that the compensation paid for the transfer pursuant to Article 220p(2) of the CC was not adequate and claimed the remainder thereof. According to the Government, these proceedings and the set-aside proceedings are still pending.
17. The third applicant owned 3% of the share capital of YTONG, a.s., a joint stock company incorporated under Czech law.
18. On 24 June 2003 the general meeting of that company adopted, by votes of the main shareholder, a resolution on the winding up of the company and the transfer of all its assets to the main shareholder.
19. On 25 June 2003 the third applicant filed with the Brno Regional Court (krajský soud) an action to have the resolution set aside, asserting that it had been adopted contrary to the applicable law, treaties concerning the encouragement and reciprocal protection of investments and their property rights. Asserting the unlawfulness of the asset transfer contract on account of its clause reserving for arbitration jurisdiction over disputes concerning the value of the compensation, she further emphasised a number of irregularities of the resolution. She informed the court administering the commercial register about the action.
20. On 1 September 2003 the court in charge of the commercial register approved the registration of the transfer. No hearing was held before that decision, which was not served on the third applicant as she did not have standing to participate in the proceedings.
21. On 11 December 2003 the Olomouc High Court rejected the third applicant's appeal contesting that decision. It ruled that since the applicant did not have standing to take part in the impugned proceedings, she was not entitled to appeal their outcome.
22. On 28 November 2005 the High Court, relying on Article 220h(4) of the CC, discontinued the set-aside proceedings without examining the merits.
23. According to the Government, the third applicant filed with a court an action under Article 220k of the CC whereby she asserted that the compensation for the transfer paid pursuant to Article 220p(2) of the CC was not adequate and claimed the remainder thereof.
24. According to the parties, these proceedings are after dismissive rulings of courts of first two instances pending before the Supreme Court.
25. On 24 June 2008 the Supreme Court rejected the applicant's appeal on points of law and upheld the High Court's ruling of 28 November 2005.
26. On 11 December 2008 the Constitutional Court rejected the applicant's constitutional appeal, in which the applicant claimed an impairment of her right to a fair trial in the set-aside proceedings by reason of the limitation on access to court brought about by Article 220h(4) of the CC. The Constitutional Court found that the Supreme Court had not erred in its impugned decision of 24 June 2008 and that neither the applicant's right to a fair trial nor any other constitutional right had been breached.
27. The third applicant also raised the claim for compensation, together with two other petitioners, before an arbitration tribunal to which she was referred in the decisions of the ordinary courts. The arbitration proceedings were discontinued and the petition rejected on 11 October 2006 for lack of jurisdiction.
28. The first applicant was a minority shareholder of Biocel, a.s., a joint stock company incorporated under Czech law.
29. On 21 November 2001 the company's general meeting decided to wind up the company and transfer its assets to the main shareholder.
30. On the same day the applicant brought an action in the Ostrava Regional Court (krajský soud) to have the general meeting resolution and the asset transfer contract set aside. He argued that the general meeting resolution was void on the grounds of unlawfulness as the main shareholder had taken part in the vote although not entitled to do so, the resolution had been adopted despite the fact that the shares had been lodged as securities, and the compensation payable to minority shareholders had been determined improperly. He further asserted a violation of treaties concerning the encouragement and reciprocal protection of investments and his right to the peaceful enjoyment of his possessions.
31. On 12 November 2002 the Regional Court, acting as a court in charge of the commercial register, approved the registration of the transfer at the commercial register without holding a public hearing.
32. On 21 November 2002 an appeal by the first applicant against this decision was rejected by the Olomouc High Court, which found that the minority shareholders were not parties to the proceedings concerning the approval of the registration at the commercial register.
33. On 14 January 2003 the Regional Court stayed the set-aside proceedings and asked the Constitutional Court to strike down Article 220p and other provisions of the Commercial Code.
34. On an unspecified date the first applicant filed a constitutional appeal alleging a violation of his right to judicial protection under Article 36 § 1 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). He claimed that he had not been allowed to act as a party in the proceedings conducted by the court in charge of the commercial register and had been prevented de facto, by Articles 131(3)(c), 220h(4), 220p of the CC and 109(2)(c) of the Code of Civil Procedure (hereinafter “the CCP”), from acting before the court in the proceedings to set aside the general meeting resolution. He further contended that the relevant law was contrary to the Third Council Directive 78/855/EEC. The first applicant requested that the aforementioned provisions be struck down as being contrary to Article 36 § 1 of the Charter.
35. On 31 August 2004 the Constitutional Court by its decision no. II. ÚS 21/03 rejected the applicant's constitutional appeal against the decision approving the registration of the transfer at the commercial register. It found that, under Article 131 of the CC a court in charge of the commercial register is entitled to review as a preliminary question the lawfulness and validity of a general meeting resolution on the basis of which a registration in the commercial register is to be made. It held that the right to judicial protection was not denied to the first applicant having regard to the remedies enshrined in Article 131 taken in conjunction with Articles 220h, 220k, 2201 and 220p of the CC. Therefore, shareholders of a joint stock company could seek protection of their rights before an independent and impartial court by another way than by taking part in the proceedings held before the court in charge of the commercial register.
36. On 22 February 2005 the Plenary of the Constitutional Court rejected by its decision no. Pl. ÚS 51/03 the request of the Regional Court that it should strike down, inter alia, Article 220p of the CC. It found that the Regional Court's request was ill-founded as Article 220p of the CC could no longer be applied by the Regional Court on account of Article 131(3)(c) of the CC, which barred that court from deciding the case before it on the merits once the general meeting resolution on the winding-up of the company and the transfer had been inserted into the commercial register. Four constitutional judges joined their dissenting opinions to the Plenary's decision.
37. On 14 March 2008 the Ostrava Regional Court, relying on Article 220h(4) of the CC discontinued the set-aside proceeding without examining the merits as the transfer was registered in the commercial register.
38. On 1 July 2008 the Olomouc High Court upheld that decision of the Regional Court. Referring to the Constitutional Court's decision no. IV. ÚS 720/01, the High Court found Articles 131(3)(b) and (c) and 220h(3) and (4), and Article 220k(1) of the CC conform with Czech law including the Charter of Fundamental Rights and Freedoms. The first applicant did not pursue the case before higher instances. He alleged to have no prospect of success due to the settled case law of the Supreme Court and the Constitutional Court.
39. According to the Government, the applicant filed with a court an action under Article 220k of the CC whereby he asserted that the compensation for the transfer paid pursuant to Article 220p(2) of the CC was not adequate and claimed the remainder thereof According to the Government, these proceedings are still pending.
40. Article 83 provides that the Constitutional Court is the judicial body responsible for the protection of constitutionality.
41. Article 89(2) provides that all national authorities and individuals are bound by enforceable rulings of the Constitutional Court.
42. Article 27(3) provided inter alia that facts inserted in the commercial register became effective as of the date on which they were made public.
43. In accordance with Article 33 a court administering the commercial register made a registration into the commercial register public.
44. Article 131(1) gave shareholders the right to contest a general meeting resolution by means of an application to set aside if it was deemed to contravene the law, a deed of incorporation or by-laws. An application to set aside could be lodged within three months or, in certain circumstances, one year of the adoption of the resolution. The provision was applicable to general meeting resolutions of joint stock companies by virtue of Article 183(1).
45. Under Article 131(3)(c) the court could not set aside a general meeting resolution if a court in charge of the commercial register had recorded a transfer of the company's assets in the commercial register.
46. Article 131(4) provided, inter alia, that persons who had suffered damage by a resolution of the general meeting adopted contrary to law, the deed of incorporation or by-laws, were entitled to claim damages and/or just satisfaction for an impairment of fundamental shareholders' rights. This right could be asserted even if a court did not declare the general meeting resolution void for one of the reasons set out in Article 131(3) of the Code. Such a claim had to be made before a court within the same time-limit as applied for introducing an application to set aside of a general meeting resolution, or within three months of the day on which a court decided on such an action.
47. Under Article 131(7) everyone is bound by an enunciation of decision delivered pursuant to Article 131(1), (2) or (3).
48. Article 131(7) provides that if a resolution of general meeting was not contested under Article 131(1),(2) or such a claim was not upheld, the resolution may be reviewed only in proceedings on the registration of the resolution in the commercial register, unless the resolution involves amendments of by-laws or a deed of incorporation contrary to law.
49. Pursuant to Article 220a(11) proceedings to set aside a contract providing for a merger may be brought only if an application to set aside the relevant general meeting resolution has been filed.
50. Under Article 220h(3) an action to set aside a general meeting resolution, or a contract, on merger could not be filed if a registration of the merger into the commercial register had been allowed by a court in charge thereof.
51. By Article 220h(4), proceedings to set aside a general meeting resolution, or a contract, on merger brought prior to an registration of the merger in the commercial register could be continued after the registration had been made only if the plaintiff changed his or her action so as to seek damages or an adequate payment for surrendered shares pursuant to Article 220k, provided that those claims had not previously been raised.
52. Under paragraph (1) of Article 220k, if the exchange ratio for shares together with financial compensation was not adequate, shareholders of a merging company were entitled to seek compensation from an acquiring company. The ratio decidendi of a judicial decision granting compensation to a shareholder was by virtue of paragraph (5) thereof binding, in respect of remaining shareholders, upon an acquiring company.
53. Pursuant to Article 220l members of boards of directors and supervisory boards of companies involved in a merger, and experts who drew up an expert report for these companies were liable jointly and severally for damages caused by a breach of their duties during the merger.
54. Article 220p(l) empowered a general meeting of a joint stock company to decide to wind up the company and transfer all its assets to a shareholder owning shares which represented more than 90% of the company's share capital (the main shareholder).
55. Under Article 220p(2) the main shareholder was obliged to provide other shareholders with adequate compensation paid in cash in order to settle such a transfer.
56. Article 220p(3) provided, inter alia, that Articles 220a(l)-(4),(7)-(11), 220h and 2201 were to be applied appropriately to the winding-up of a company and the transfer of its assets to its main shareholder.
57. According to Article 220p(4), among other obligations, a company must have concluded a contract for the transfer of its assets with its main shareholder. Shareholders must have been thereby informed of their right to apply for review by a court of the value of the compensation. Article 220k(l),(5) and (7) governing an exchange of shares pending mergers were to be applied appropriately.
58. The Act which entered into force on 1 July 2008 replaced inter alia the provisions of the CC governing the winding up of a company and the transfer of its assets to its main shareholder, Articles 220h (3) and (4) and 220p (3) of the CC being among them.
59. Under Article 55(2) a court may declare a general meeting resolution on the transfer null and void only until the time when the transfer is inserted into the commercial register. Article 56(a) provides that such a registration may not be rescinded.
60. Under Article 109(2)(c) a court is empowered to stay proceedings should a legal issue which might be relevant for its decision be examined in other pending proceedings. Courts deciding in proceedings on a registration into the commercial register ceased to have that power upon the amendment of that provision, which came into force on 31 December 2001.
61. Article 200c(1) defines the persons having standing to participate in proceedings on a request for a registration into the commercial register. Only the requesting entrepreneur and the persons whose names are required to be inserted into the commercial register have such standing.
62. Under Article 200c(3) a court in charge of the commercial register is obliged to proceed so as to take steps to prepare for delivery of decision within fifteen days from the day when the request was lodged.
63. According to Article 200d(2) a court in charge of the commercial register may decide the matter before it without holding a hearing if, inter alia, it can do so on the basis of deeds before it which have been written pursuant to a particular statute (deeds by notary public etc.).
64. By virtue of Article 243d a court to which a case was remitted following a quashing judgment of the Supreme Court is bound by a legal view enshrined therein.
65. Section 72(1)(a) stipulates that a constitutional appeal may be submitted: a) pursuant to Article 87(l)(d) of the Constitution, by a natural or legal person, if he or she alleges that his or her fundamental rights and basic freedoms guaranteed in the constitutional order have been infringed as a result of the final decision in proceedings to which he or she was a party, of a measure, or of some other encroachment by a public authority.
66. By virtue of Section 82(3) if the Constitutional Court grants the constitutional appeal of a natural or legal person under Article 87(l)(d) of the Constitution, it shall: a) quash the contested decision of the public authority, or b) if a constitutionally guaranteed fundamental right or basic freedom was infringed as the result of an encroachment by a public authority other than a decision, enjoin the authority from continuing to infringe this right or freedom and order it, to the extent possible, to restore the situation that existed prior to the infringement.
67. The Supreme Court is by virtue of that legislation the highest Czech court of ordinary jurisdiction with the task inter alia to settle case law of ordinary courts.
68. In its judgment of 18 March 1997 the Constitutional Court, interpreting Article 89(2) of the Constitution, rejected the assumption according to which its views enshrined in reasoning of its judgments are legally irrelevant. The court held inter alia that an a priori disrespect by ordinary courts towards such views raises doubts whether ordinary courts decide in conformity with Article 90 of the Constitution, according to which their principal task is to ensure the protection of rights pursuant to law. Ordinary courts declining to follow such views must be aware that their rulings will be most probably brought by the Constitutional Court in line with its existent case law. The Constitutional Court added in this regard that an a priori disrespect towards existent case law, resulting in different decisions on a same matter, contravenes the principle of legal certainty, which is an indispensable component of constitutional law and the rule of law.
69. In this decision of 25 May 2005 in which it rejected an appeal against a court's decision approving the registration of a transfer of company's assets to the main shareholder at the commercial register and a request to strike down Articles 131(3)(c), 220h(3) and 220p of the CC, the Constitutional Court held as follows:
“The law providing for the winding up of a company and the transfer of its assets to its main shareholder is at the very limit of constitutional conformity owing to the imperfect coordination of proceedings for a registration into the commercial register with proceedings to set aside an asset transfer contract (filed together with an application to set aside a general meeting resolution) which makes possible the irreversible registration of [the winding up of a company and the transfer of its assets to its main shareholder] into the commercial register without examination of an action to set it aside. It cannot be said, however, that minority shareholders have no remedy at their disposal.. ..[A]ccording to Article 131(4) of the [CC], they can seek damages and just satisfaction.
The law governing proceedings before a court in charge of the commercial register is proportionate to the aim and objective of the legislation providing for transformations of companies, whose purpose is to accommodate expeditious registration of those transformations, made on the basis of the agreement among the companies' shareholders, into the commercial register, with regard to the fact that such a transformation is from a certain moment irreversible owing to legal, economic and technical aspects of that process.
...[T]he impugned decision of the court in charge of the commercial register did not amount to unconstitutional interference with the appellant's property rights as he retained access to legal remedies for the protection of his ownership rights to the shares in a proportionate manner.. ..[L]egitimate expectations of shareholders do not have the same intensity as those of owners of other property. ..[as] the nature of a joint stock company implies risks of a change in the shareholders' status...
The gist of the appeal consists in the applicant's disagreement with the law providing for [the winding-up of a company and the transfer of its assets to its main shareholder] as such, in particular with the insufficient guarantees for minority shareholders. The Constitutional Court, however, by Section 74 of the Constitutional Court Act is not empowered to examine these complaints as the appeal at hand contested only the decision adopted by the court in charge of the commercial register in the proceedings on the registration of the winding up and the transfer into the commercial register. [Examination] of these complaints would go beyond the scope of that court's review defined by the applicants' constitutional appeal contesting the decision of the court in charge of the commercial register which decided on the registration in the commercial register, not on decisions adopted in other proceedings available to the complaining minority shareholders.”
70. In this decision the Supreme Court upheld lower court's views according to which a legal impediment, enshrined in Article 131(3)(c) of the CC taken in conjunction with Article 183(1) thereof, and Article 220h(4) of the CC taken in conjunction with Article 220p(3) thereof, barred courts from setting aside general meeting resolutions and asset transfer contracts after such an asset transfer had been recorded into the commercial register.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111406
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF UMAYEVY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos
TEXT: 6. The applicants, a married couple, were born in 1960 and 1957 respectively and live in the village of Prigorodnoye in the Chechen Republic.
7. The applicants are the parents of Mr Vidzha Umayev, born in 1982. The first applicant is the sister of Mr Timur Mezhidov, born in 1972. The latter is the brother-in-law of the second applicant.
8. The description of the events below is based on the information contained in the application form and written statements by the first and second applicants, dated 17 and 23 July 2007 respectively.
9. On 14 July 2006 the first applicant, Vidzha Umayev and Timur Mezhidov were travelling in the applicants’ VAZ-2107 vehicle from the village of Nikhaloy to the village of Prigorodnoye.
10. At the Russian federal forces roadblock located at the entrance point of Shatoy village (hereinafter “the Shatoy roadblock”) Russian servicemen stopped the applicants’ vehicle to carry out a check. At the roadblock the first applicant saw a group of seven to eight servicemen of Chechen ethnic origin, who were standing near a silver-grey four-door Niva vehicle and speaking to each other in Chechen. The first applicant observed them for a while and was able to memorise their faces. She also specifically noticed that, whilst the servicemen from the roadblock who checked the identity papers were Russian, those standing by the Niva vehicle were Chechen. After checking Vidzha Umayev’s and Timur Mezhidov’s identity papers, Russian servicemen entered the relevant information in the roadblock logbooks and allowed them to continue their journey.
11. The first applicant, Vidzha Umayev and Timur Mezhidov then drove through Shatoyskiy District and crossed the border into Groznenskiy District. At the bridge in the vicinity of the entrance point of Yarash-Mardy village they saw three Chechen servicemen from the group they had already seen at the Shatoy roadblock. The servicemen walked towards the vehicle and ordered it to stop. One of the servicemen ordered the driver and the passengers, in Chechen, to get out of the vehicle. Vidzha Umayev, Timur Mezhidov and the first applicant complied with the order and got out of the car. One of the servicemen then ordered Vidzha Umayev and Timur Mezhidov to get back into the applicants’ vehicle. They obeyed and got into the back seats. At the same moment two servicemen joined them in the back seat, the third serviceman got into the driver’s seat and the vehicle moved off quickly. Vidzha Umayev shouted in Chechen: “That’s my mother! Don’t leave her alone!” and the first applicant rushed towards the car. However, the car did not stop and the first applicant ran into a bridge barrier and fell to the ground.
12. The applicants have not seen Vidzha Umayev and Timur Mezhidov since.
13. On 14 July 2006, shortly after the car with the abductors had left, the first applicant managed to stop a private vehicle, which took her home. Once there she told the second applicant about the abduction, and the applicants immediately left for Shatoy, intending to alert the Shatoyskiy District Department of the Interior (“the ROVD”) to the incident.
14. On their way, about 2.5 km from the bridge, where the first applicant, her son and brother had been stopped by the Chechen servicemen, the applicants saw their VAZ-2107 vehicle. It was parked about fifty metres from the road, at a dugout in which were two Russian servicemen. In the applicants’ submission, on that day Russian military forces had groups of servicemen stationed at the Shatoy road at about 200 metres distance from each other. The applicants saw that three of the doors of their VAZ-2107 vehicle were open and its headlights were on. Vidzha Umayev’s mobile phone was in the vehicle. The first applicant asked the servicemen how their car had arrived at the dugout. They replied that it had arrived there, followed by a four-door silver-grey Niva vehicle. Two people were taken out of the VAZ-2107 vehicle and put into the silver-grey Niva vehicle, which then left in the direction of the village of Duba-Yurt.
15. After that the applicants took Vidzha Umayev’s mobile phone and went to the ROVD. From there the second applicant, the head of the ROVD, whom the applicants identified as “Sayd-Akhmed”, and several police officers left for the Shatoy roadblock. The first applicant stayed at the ROVD and lodged a written complaint about the abduction of her son and brother.
16. On the same day, on arrival at the Shatoy roadblock, the second applicant and Sayd-Akhmed spoke to a senior roadblock officer from the Shatoyskiy District military commander’s office. He confirmed that the servicemen at the roadblock had checked Vidzha Umayev and Timur Mezhidov’s identity papers and stated that everything was in order, and that the two men had been let through the roadblock and had left. Meanwhile the first applicant also arrived at the roadblock. While the second applicant was speaking to the officer, a UAZ vehicle with two Chechen servicemen in it arrived at the roadblock. The first applicant identified them as members of the group of Chechen servicemen she had seen at the Shatoy roadblock while the authorities were checking her relatives’ identity papers. The applicants immediately asked those servicemen where the other members of their group were and where they had taken Vidzha Umarov and Timur Mezhidov. The two men laughed and answered that they had not arrested Vidzha Umayev and Timur Mezhidov. They also stated that they did not know the other servicemen who had been at the Shatoy roadblock with them. According to the applicants, the head of the ROVD told them that the two Chechen servicemen were from the special Vostok Russian Military Battalion of the Main Intelligence Service (“the GRU”) and that they were called “Yamadayevtsy” after their commander Sulim Yamadayev. The applicants then returned home.
17. On 15 July 2006 the applicants again complained to various State bodies about the abduction of Vidzha Umayev and Timur Mezhidov. They did not keep copies of those complaints.
18. On 17 or 18 July 2006 a certain Mr I.A., a GRU officer, visited the applicants and told the second applicant that a certain Mr R., a GRU colonel and commander of the 921st regiment, wished to talk to him.
19. On 23 July 2006 the applicants and Mr I.A. drove to a Russian federal forces base located in the village of Borzoy in the Chechen Republic. The second applicant left his vehicle, with the first applicant and Mr I.A. inside. At the military base checkpoint he was met by two Russian servicemen, one of them a warrant officer and the other a captain. They accompanied the second applicant into the checkpoint building, where Mr R. was already waiting for him.
20. Mr R. confirmed that the applicant’s son was being held in the military base and said that he “opened his eyes when touched but then rolled them up”. Mr R. then asked the second applicant to write a note for his son, “telling him to answer their questions”. The second applicant asked Mr R. what statement they wanted from his son, but received no reply. The second applicant then handed over to Mr R. medical certificates attesting to his son’s disability. Mr R. looked at them, and from his reaction the second applicant inferred that Mr R. had realised that his servicemen had beaten up a seriously ill person. The second applicant then told Mr R. that he would not write any notes for his son and requested that he be released. Mr R. replied that “they did not have a deal then” and ordered the servicemen to accompany the second applicant to the exit, which they did. The second applicant returned to the car and left the premises with the first applicant.
21. On an unspecified date in October 2006 the first applicant received a phone call on her mobile phone from a person who whispered “Mother, mother!” and then suddenly the conversation was disconnected. The first applicant inferred that it was Vidzha Umayev and, since the number was displayed, she called back. A woman replied to her in Russian and immediately hung up. When the first applicant dialled the number again, a man’s voice told her not to call that number any more. The first applicant informed the law-enforcement authorities about the call. In the applicants’ submission, at the material time the only company providing mobile communication services in the Chechen Republic was Megafon. The figures 923 indicated that the number from which she had received the call was not a Megafon number but was from another company. In the applicants’ opinion, only Russian army servicemen could have had phone numbers from mobile communication providers other than Megafon.
22. On an unspecified date in November 2006 Mr I.A. visited the applicants again and offered them information on Vidzha Umayev and Timur Mezhidov in exchange for 50,000 Russian roubles (RUB). Two days later the second applicant met Mr I.A. in Prigorodnoye and the latter told him that Vidzha Umayev and Timur Mezhidov were not alive. Mr I.A. promised the second applicant that their bodies would be retrieved, and left.
23. Two days later the second applicant and his relative went to the village of Borzoy to meet Mr I.A. He told the second applicant that there were three mass graves in Borzoy but he did not know in which of them Vidzha Umayev and Timur Mezhidov had been buried. He also specified that their bodies were in different graves and that they “had been shot dead by Chechens in the presence of a Russian”. He noted however that he had not witnessed the killings.
24. On an unspecified date the second applicant contacted a Russian army general whom he knew well and told him about Mr R. The general told the applicant that this was the first time he heard that name and that it must have been a false name.
25. The Government submitted that on 14 July 2006, on the road between Grozny and Shatoy, near the bridge close to the village of YaryshMardy, three unidentified individuals wearing camouflage uniforms and carrying automatic weapons had stopped a vehicle in which Vidzha Umayev and Timur Mezhidov were travelling, following which the latter disappeared.
26. It appears that following the applicants’ complaints about the abduction of their relatives the ROVD carried out an inquiry into their allegations. The inquiry was given the number 81. The exact date of the opening of the inquiry remains unclear.
27. On 25 July 2006 the prosecutor’s office of the Groznenskiy District (“the district prosecutor’s office”) received the inquiry file from the ROVD.
28. On the same date the district prosecutor’s office instituted a criminal investigation in respect of the abduction of Vidzha Umayev and Timur Mezhidov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was assigned the number 54063. The decision stated that at about 4 p.m. on 14 July 2006 at the bridge near Yarysh-Mardy village, three unidentified armed individuals in camouflage uniforms had stopped the VAZ-2107 vehicle in which Vidzha Umayev, Timur Mezhidov and the first applicant were travelling, and had taken Vidzha Umayev and Timur Mezhidov to an unknown destination.
29. By a letter of 26 July 2006 the prosecutor’s office of the Chechen Republic (“the republican prosecutor’s office”) replied to the first applicant that it had examined her complaint about the abduction of Vidzha Umayev and Timur Mezhidov and informed her that on 25 July 2006 the district prosecutor’s office had opened a criminal investigation in respect of the abduction of her son and brother.
30. On 20 September 2006 the first applicant was granted victim status in connection with the proceedings in case 54063. She was informed of that decision on 21 September 2006.
31. On 28 May 2007 the first applicant wrote to the President of the Chechen Republic. She described in detail the circumstances of the abduction of her relatives and her attempts to find them and asked for assistance in her search for them.
32. On 15 June 2007 the republican prosecutor’s office replied to the first applicant that on 25 July 2006 the district prosecutor’s office had opened a criminal case in respect of the abduction of her relatives. The letter also stated that on 25 October 2006 the investigation in case 54063 had been suspended for failure to identify the perpetrators.
33. On 17 July 2007 the first applicant wrote to the district prosecutor’s office, seeking information on the progress of the investigation in case 54063. She requested that the proceedings be resumed if they had been suspended and sought access to the investigation case file and permission to make copies from it. There is no indication that the applicant’s request was ever replied to.
34. By a letter of 22 June 2007 the district prosecutor’s office informed the first applicant that on 22 July 2007 it had resumed the investigation in case 54063.
35. In the applicants’ submission, in October 2007 the district prosecutor’s office informed them orally that on an unspecified date the investigation in case 54063 had been suspended again.
36. The Government refused to submit any documents from criminal case file concerning the abduction of the applicants’ relatives, referring to Article 161 of the Russian Code of Criminal Procedure.
37. The information about the investigation provided by the Government can be summarised as follows.
38. On 25 July 2006 the district prosecutor’s office opened a criminal investigation in respect of the abduction of Vidzha Umayev and Timur Mezhidov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was assigned the number 54063.
39. On 25 October 2006 the investigation was suspended for failure to identify the perpetrators.
40. On 22 June 2007 the investigation was resumed because the investigating authorities had established that serviceman R.D. of military unit 44822 was implicated in the abduction.
41. On 21 July 2007 Mr R.D.’s name was put on a wanted list.
42. On 6 June 2008 the investigation of the abduction of the applicants’ relatives was entrusted to an investigating committee of the prosecutor’s office of the Russian Federation in the Chechen Republic (hereinafter “the investigating committee”).
43. On 8 July 2008 the investigating committee issued a decision to formally charge Mr R.D. with abducting the applicants’ relatives and the criminal case was transferred to the military investigating department with the United Group Alignment of the Military Forces for Counterterrorist Operations in the North Caucasus Region (hereinafter the “investigating department”). The case file was given the number 34/00/0023-08.
44. It appears that shortly thereafter the investigation was suspended again and that it was resumed on 11 November 2009.
45. In the Government’s submission the investigation in case 34/00/0023-08 is still pending.
46. The Government stated that the findings of the preliminary investigation confirmed the version of events submitted by the applicants.
47. In the Government’s submission, the preliminary investigation established that Mr R.D. had been doing military service in military unit 44822 of the Vostok special-purpose battalion (previously an infantry battalion) since 10 August 2004. In mid-July 2006 Mr R.D. had colluded with two unidentified individuals with a view to abducting Vidzha Umayev and Timur Mezhidov. On 14 July 2006, having acquired information on the route taken by Vidzha Umayev and Timur Mezhidov, Mr R.D., armed with an automatic weapon, organised an ambush at the Grozny-Shatoy road near Yarysh-Mardy with a view to arresting and abducting them. At about 4 p.m. on the same day Mr R.D. stopped the VAZ-2107 vehicle with Vidzha Umayev and Timur Mezhidov, following which “Mr R.D. and two armed men in camouflage uniforms arrested them and took them to an unknown destination”, leaving the first applicant behind.
48. In the Government’s submission, the above account of the events was confirmed by the first applicant, who had been granted victim status, and the second applicant, who had been interviewed as a witness. The applicants also informed the investigators that following the abduction they had learnt from Mr I.A. that their abducted relatives had been held at the military base in the village of Borzoy and eventually killed.
49. The first applicant confirmed those submissions during a check of her statement at the crime scene (проверка показаний на месте совершения преступления) and identified Mr R.D. from a photograph as the person who had abducted her son and brother.
50. Mr I.A., interviewed on an unspecified date, stated that he had learnt about the abduction of Vidzha Umayev and Timur Mezhidov from Z.M. The second applicant had contacted Mr I.A. six months after the abduction, asking the latter to organise a meeting with officers of the military base, following which they had met a serviceman named Volodya, who had asked for RUB 50,000 for information about the applicants’ son and had then informed them that the applicants’ relatives had been killed.
51. On an unspecified date the investigating authorities opened a criminal case against Mr R.D. on suspicion that he had caused serious damage to the health of a third person by shooting at him at the local market in the village of Borzoy on 23 May 2007. The case file was given the number 68800.
52. On 18 October 2008 case 68800 was transferred for investigation to an unspecified investigating department of an unspecified military unit.
53. On 22 January 2009 criminal case 6800 was joined to the criminal case concerning the abduction of the applicant’s relatives and the new file was given the number 34/36/0092-08.
54. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
VIOLATED_ARTICLES: 13
2
3
5
VIOLATED_PARAGRAPHS: 2-1
5-1


ITEMID: 001-114254
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF STRELETS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1956 and lives in Moscow.
6. At the material time the applicant held the post of Vice President of LLC Volga Aviaexpress Airlines (ООО “Авиакомпания ВолгаАвиаэкспресс”).
7. On 28 July 2003 the applicant left for annual leave in South Africa, where he stayed until 17 September 2003, following which he was in the United Kingdom until 23 September 2003 before returning to Russia.
8. Meanwhile, on 30 July 2003 the Volgograd Regional Prosecutor’s Office instituted criminal proceedings under Article 159 § 3 (b) of the Criminal Code for fraud involving a Yak-42 aircraft.
9. On 24 September 2003 the applicant was placed on an international wanted list.
10. On 26 September 2003 Tsentralniy District Court (Volgograd – “Tsentralniy District Court”) ordered the applicant’s remand in custody on suspicion of fraud. The District Court held as follows:
“... Following the institution of the criminal proceedings [the applicant] absconded from Volgograd and the Russian Federation.
In connection with the establishment of [the applicant’s] whereabouts in South Africa, on 24 September 2003 he was placed on a wanted list.
... Taking into account the fact that [the applicant] is charged with a serious offence, [that he] fled from investigation, has actively obstructed the establishment of the truth in the case, and may continue the criminal activity, the court considers it necessary to choose a measure of restraint in the form of placement in custody.”
11. According to the applicant, until 29 September 2003 he did not know anything about the criminal proceedings against him. As soon as he knew about them, he went to the investigation department of the Volgograd Regional Prosecutor’s Office, where he was arrested pursuant to the court order of 26 September 2003.
12. The applicant was placed in a temporary detention facility, where he was kept until 17 October 2003. Throughout this period the applicant’s family was unaware of his whereabouts. The applicant was subsequently transferred to IZ-34/1 remand prison (Volgograd).
13. In the meantime, on 14 October 2003 Volgograd Regional Court upheld the decision of 26 September 2003 on appeal.
14. On 28 November 2003 and 15 March 2004 Tsentralniy District Court extended the applicant’s pre-trial detention until 30 March and 30 May 2004 respectively. On both occasions the court relied on the gravity of the charges against the applicant and the fact that he had been placed on an international wanted list prior to his arrest, which gave the court sufficient grounds to believe that if at large the applicant might obstruct the proceedings. Under these circumstances the court held that the application of a non-custodial preventive measure was not possible.
15. On 9 December 2003 Volgograd Regional Court upheld the extension order of 28 November 2003 on appeal. The case file contains no information as to whether the applicant appealed against the extension order of 15 March 2004.
16. On 31 May 2004 the applicant’s case file was remitted to Dzerzhinskiy District Court (Volgograd – “Dzerzhinskiy District Court”) for examination on the merits.
17. On 30 May 2004 the applicant’s detention ordered by the decision of 15 March 2004 expired. No other decision was made regarding his detention until 14 June 2004. However, the applicant remained in detention.
18. On an unspecified date in 2005 the applicant sought compensation for unlawful detention between 30 May and 14 June 2004.
19. On 27 March 2006 Tsentralniy District Court acknowledged that the applicant’s detention in the above period had been unlawful and awarded him 5,000 Russian roubles.
20. The applicant submitted that the above judgment remained unenforced to date.
21. On 14 June 2004 Dzerzhinskiy District Court fixed a date for a preliminary hearing of the case and held that the preventive measure applied to the applicant and three other co-defendants “should remain unchanged”.
22. On 26 October 2004 Dzerzhinskiy District Court scheduled the opening day of the trial and ordered that the preventive measure in respect of the applicant and his three co-defendants “should remain unchanged”. The applicant’s request for release was dismissed as follows:
“[The applicant and his three co-defendants] are charged with grave crimes punishable with long-term imprisonment. The custodial measure was applied [to them] during the preliminary investigation after assessment of the defendants’ personalities, their health and the gravity of the crimes [charged against them]. The arguments of the defendants and their representatives about the unlawful application of the custodial measure ... cannot be taken into consideration since this [issue] is not the subject matter of the present hearing. ...”
23. The applicant appealed against the above decision, in so far as it concerned the preventive measure, to Volgograd Regional Court, arguing that the custodial measure had been applied to him unlawfully and without consideration of his personal circumstances. The applicant’s co-defendants also appealed.
24. On 25 January 2005 Volgograd Regional Court upheld the decision of 26 October 2004 on appeal.
25. However, on 14 April 2005 the Presidium of Volgograd Regional Court quashed the appeal decision of 25 January 2005 by way of supervisory review, as it failed to address the arguments advanced on behalf of the applicant and his co-defendants by their representatives.
26. On 19 July 2005 Volgograd Regional Court again upheld the decision of 26 October 2004 on appeal.
27. In the meantime, on 30 November 2004 Dzerzhinskiy District Court extended the applicant’s and his three co-defendants’ detention for three months, until 28 February 2005:
“The circumstances which prompted the application of the custodial measure did not change. The defendants’ reference to the fact that they cannot exert pressure on witnesses or victims, as the preliminary investigation is over, and that they will not abscond as they have no previous criminal record and are no danger to society, can not be accepted by the court, because at the present moment the trial has not yet started, and the court has not begun the examination of the evidence in the case, including the examination of witnesses and victims ...
In such circumstances the court does not find grounds for altering the custodial measure to a more lenient one ...”
28. On 25 February 2005 Dzerzhinskiy District Court extended the applicant’s and his three co-defendants’ detention for three months, until 28 May 2005, even though the prosecution considered it no longer necessary:
“The defendants are charged with grave crimes punishable by long-term imprisonment. The custodial measure was applied [to them] after consideration of their personalities, health, family situation, existence of dependents, and the gravity of the crimes [with which they were charged]. No medical certificates indicating that the defendants cannot be detained in the remand prison for health reasons have been provided to the court.
The circumstances which prompted the application of the custodial measure have not changed so far. The defendants’ statements that they cannot exert pressure on witnesses and victims, as the majority of them have already been questioned by the court, and that they will not abscond as they have no previous criminal record and are not a danger to society, cannot be accepted by the court, because at the present moment the trial has not been completed and the court has not examined the evidence in full. The defendants’ maintaining their innocence ... cannot justify changing the custodial measure to a more lenient one, as the court is yet to assess the cumulative evidence and to reach a conclusion as to the defendants’ guilt or innocence ...”
29. On 27 May 2005, having reiterated its previous reasoning, Dzerzhinskiy District Court extended the applicant’s and his three codefendants’ detention for another three months, until 28 June 2005.
30. On 7 June 2005 the Dzerzhinskiy District Court convicted the applicant of fraud and forgery and sentenced him to five years’ imprisonment. The pronouncement of the judgment took four hours, from 8.30 p.m. to 00.30 a.m. the following day. The applicant’s and his co-defendants’ request to be allowed to sit down during the pronouncement of the judgment was turned down.
31. On 4 October 2005 the Volgograd Regional Court upheld the judgment on appeal. The court held that the applicant’s sentence should be suspended for two years, and the applicant placed on probation.
32. On 5 October 2005 the applicant was released.
33. According to the applicant, on the dates of the hearings he was woken up at 6 a.m., taken from his cell to the “waiting unit” or “assembly cell”, together with other detainees who had a hearing on that day, and later on taken to the convoy area of the court-house. The applicant had to wait in that area for long hours, sometimes until late in the afternoon, until called by the court. At night the convoy transferred him back to the remand prison, and he was again woken up early in the morning the following day to be taken to the court. He received no food on the days of his transfers to the courthouse, either at the remand prison or in the courthouse.
34. According to the Government, the applicant was taken to the courthouse on the following dates:
35. The Government submitted that on the days of the applicant’s transfers to the court-house the applicant was woken up as usual at 6 a.m. As a rule, he was returned to the remand prison before 10 p.m. On the rare occasions when the applicant was returned to the remand prison after 10 p.m. he was allowed to sleep at any time during the next day. The Government were unable to submit information as to the exact time of the applicant’s arrivals at the remand prison from the court-house because the relevant documentation had been destroyed in 2006 and 2009 due to the expiry of the retention period, but they affirmed that the court’s working hours were from 9 a.m. to 6 p.m.
36. According to the Government, on the dates of the applicant’s transfers to the District Court he received dry rations (bread or dry biscuits, tinned first and second courses, sugar, tea, a plastic spoon and a plastic cup), in compliance with the applicable legal norms. In the “waiting unit” of the remand prison and the convoy area of the court the applicant was provided with hot water if he requested it. In support of their submissions the Government provided a certificate issued by the governor of IZ-34/1 on 12 October 2010 accompanied by two invoices (накладные) from the applicant’s remand prison record, dated 11 May and 20 May 2005 on provision of fifty-two dry rations and one dry ration respectively to detainees transported to the court-house on those dates.
37. Since 1 July 2002, criminal-law matters have been governed by the Russian Code of Criminal Procedure (Law no. 174-FZ of 18 December 2001, “the Code”).
38. “Preventive measures” include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend, or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99). In exceptional circumstances, and when there exist grounds provided for by Article 97, a preventive measure may be applied to a suspect, taking into account the circumstances listed in Article 99 (Article 100). If necessary, the suspect or accused may be asked to give an undertaking to appear in court (Article 112).
39. The Code makes a distinction between two types of detention: the first being “pending investigation”, that is, while a competent agency – the police or a prosecutor’s office – is investigating the case, and the second being “before the court” (or “pending trial”), at the judicial stage.
40. A custodial measure may only be ordered by a judicial decision in respect of a person who is suspected of, or charged with, a criminal offence punishable by more than two years’ imprisonment (Article 108). The maximum length of detention pending the investigation is two months (Article 109). A judge may extend that period up to six months (Article 109 § 2). Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4).
41. From the time the prosecutor sends the case to the trial court, the defendant’s detention falls under the category “before the court” (or “pending trial”). The period of detention pending trial is calculated up to the date on which the first-instance judgment is given. It may not normally exceed six months from the moment the case file arrives at the court, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions, of no longer than three months each (Article 255 §§ 2 and 3).
42. In its resolution no. 1 of 5 March 2004 “On the Application by Courts of the Russian Code of Criminal Procedure”, as in force at the relevant time, the Supreme Court of Russia noted with regard to the provisions of Article 255 § 3 of the Code that, when deciding whether to extend a defendant’s detention pending trial, the court should indicate the grounds justifying the extension and its maximum duration (paragraph 16).
43. An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must decide the appeal within three days of receiving it (Article 108 § 10).
44. At any time during a trial the court may order, vary or revoke any preventive measure, including detention (Article 255 § 1). An appeal against such a decision lies with the higher court. It must be lodged within ten days and examined no later than one month after its receipt (Articles 255 § 4 and 374).
45. The Pre-trial Detention Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees have, in particular, the right to receive free food, including when they are taking part in court hearings, and to have eight hours’ uninterrupted sleep at night (section 17 §§ 9 and 10).
46. On 4 February 2004 the Ministry of Justice adopted rules on supply of dry rations, under which those suspected or accused of criminal offences should be supplied with dry rations (bread, precooked first and second courses, sugar, tea, tableware) during their presence at a court-house. Detainees should be supplied with hot water to consume with the rations.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-72158
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MARIA KACZMARCZYK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1953 and lives in Wiśniowa, Poland.
5. On an unspecified date in 1989 the applicant’s father lodged an application with the Myślenice District Court (Sąd Rejonowy) for distribution of the inheritance from his late wife. The applicant was a participant in the proceedings.
6. Between October 1989 and December 1992 the court held four hearings.
7. On 19 February 1993 the court ordered that expert evidence be obtained.
8. On 26 May 1993 four of the participants challenged the expert opinion.
9. On 2 November 1994 the applicant submitted her own proposal to the court for distribution of inheritance.
10. On 15 November 1994 the expert submitted his new opinion.
11. At a hearing on 19 January 1995 the court proposed that the participants conclude a friendly settlement. Only two of the participants accepted the court’s proposal.
12. At a hearing on 23 March 1995 the court ordered that new expert evidence be obtained. It also ordered the participants to pay an advance to cover the costs of the preparation of an expert report..
13. On 17 September 1997 the court decided that, as the participants had failed to comply with the order of 23 March 1995, the costs of the preparation of expert opinions would be temporarily covered by the court.
14. Between 17 January 1996 and 16 July 1998, J.M., one of the participants in the proceedings, unsuccessfully challenged the presiding judge four times.
15. On 2 October 1998 and 4 March 1999 the court appointed experts to prepare opinions on agriculture and forestry. The experts submitted their reports on 12 November 1998 and 21 March 1999 respectively.
16. On November 1999 the court held a hearing.
17. On 30 November 1999 the Myślenice District Court gave judgment.
18. On 27 March 2000 the Kraków Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal.
19. On 28 June 2001 the Supreme Court (Sąd Najwyższy) refused to deal with her cassation appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59208
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF GARCIA ALVA v. GERMANY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award
JUDGES: Elisabeth Palm
TEXT: 7. The applicant is a Peruvian national, born in 1964, and is a graduate in computer science.
8. On an unspecified date, the Berlin prosecution authorities started an investigation against the applicant and other persons on suspicion of involvement in drug-trafficking (Handel mit Betäubigungsmitteln). In March 1993, when questioned as a witness in connection with other investigation proceedings, Mr K., who had been convicted of drug-trafficking in 1992 and sentenced to twelve years’ imprisonment, outlined his drug-trafficking activities in Germany since 1991 and implicated several persons involved therein, including the applicant. He gave further details on those issues when questioned in Berlin in late March. He stated, inter alia, that the applicant had once kept 16 kg and on four other occasions 1,5 kg of cocaine for a third person in an apartment in Berlin. He also maintained that the applicant had twice sold him cocaine.
9. On 6 April 1993 preliminary investigations were initiated against the applicant on suspicion of offences under the Narcotics Act (Verstoß gegen das Betäubungsmittelgesetz). That evening the applicant was arrested.
10. In the morning of 7 April 1993 the applicant was questioned by the Berlin police authorities. In the course of this questioning, he was informed that, following the statements made by witness K., there was a strong suspicion that in 1991 he had kept 22 kg of cocaine for a Mr A.C., that he had aided and abetted the drug-trafficking offences committed by the latter and that he had sold 40g of cocaine to the witness Mr K. The applicant thereupon explained how he had met Mr A.C. and that he had known about his involvement in drug-trafficking. He also made statements on the involvement of third persons in drug-trafficking. He denied the accusations made by the witness Mr K.
11. Still on 7 April 1993 he was brought before a detention judge (Haftrichter) at the Berlin-Tiergarten District Court (Amtsgericht) who, after hearing the applicant, issued a warrant for his arrest (Haftbefehl).
12. The arrest warrant stated that the applicant was suspected of having, as a dealer, received in 1991 several deliveries of cocaine (a total of 6 kg) from a Mr A.C., against whom separate criminal proceedings were pending; of having received further deliveries (a total of 16 kg) between 16 and 18 December 1991; and of having sold in 1991, for a price of 3,000 Deutschmarks, two lots of cocaine to Mr K. The arrest warrant indicated that the applicant was suspected on the basis of the statements made by Mr K., who had previously been convicted of drug-trafficking and was being prosecuted in separate proceedings in respect of new offences. The applicant was orally informed of the content of the arrest warrant.
13. On 8 April 1993 the applicant’s defence counsel applied to the Berlin Public Prosecutor’s Office (Staatsanwaltschaft) for access to the criminal files. The Prosecutor’s Office supplied the defence counsel copies of the applicant’s statements to the police authorities and the detention judge, of the record of the search of the applicant’s premises, as well as of the arrest warrant. As regards the other documents contained in the files, counsel’s request was dismissed, pursuant to Article 147 § 2 of the Code of Criminal Procedure (Strafprozeßordnung), on the ground that such consultation would endanger the purpose of the on-going investigations.
14. Subsequently the applicant chose Mr Zieger as his new defence counsel and he repeated the request on 4 May 1993. He also applied for a review of the applicant’s detention on remand (Haftprüfung). Thereupon, on 13 May 1993 the Public Prosecutor’s Office forwarded a copy of the investigation file concerning detention matters, which at that time comprised a single volume, to the Berlin-Tiergarten District Court.
15. On 14 May 1993 the Public Prosecutor’s Office again sent copies of the above-mentioned documents and, as regards the other documents of the file, replied that for the time being a full inspection of the file could not be granted, as otherwise the purpose of the investigation proceedings would be jeopardised.
16. On 27 May 1993 the Berlin-Tiergarten District Court, after an oral hearing in the presence of the applicant, his counsel and the Public Prosecutor, ordered the applicant’s continued detention on remand. The District Court, having regard to the results of the investigations, especially the statements made by Mr K. who had been further questioned in the meantime, found that there was a strong suspicion that the applicant had committed the offences mentioned in the arrest warrant and was also involved in organised crime relating to drug-trafficking. The Court considered that K’s statements were particularly detailed and conclusive. Neither the applicant nor his counsel were given access to the record of K.’s questioning.
17. On 14 June 1993 the Berlin Regional Court (Landgericht) dismissed the applicant’s appeal (Beschwerde) against that decision. The Regional Court, which had a copy of the investigation file at its disposal, observed that it was not competent to decide on the applicant’s complaint about the refusal of full access to the files, while confirming that there was a risk of collusion.
18. On 15 July 1993 the Berlin Court of Appeal (Kammergericht) dismissed the applicant’s further appeal (weitere Beschwerde) against the decision of 14 June 1993. According to the Court of Appeal, the oral information provided to the applicant on the statements of witness K. had been sufficient for him to be in a position effectively to defend himself. In so far as the applicant had invoked Article 5 § 4 of the Convention and the Lamy judgment of the European Court of Human Rights, the Court of Appeal considered that the applicant’s case was different in that access to the files was not wholly excluded, but only to the extent that legitimate public interests in an effective prosecution of offenders required such measures. The Court of Appeal confirmed the existence of a risk of collusion. The Court of Appeal based its decision on the contents of a copy of the files which had been prepared by the Prosecutor’s Office for the purposes of the appeal proceedings and had been sent to the Court on 7 July 1993.
19. On 9 August 1993 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundesverfassungsgericht). Furthermore, counsel requested that the incriminating passages of the statements made by witness K. should be read out or otherwise be made known to him by the Public Prosecutor’s Office. According to a file note of 12 August 1993, the Public Prosecutor’s Office was not prepared to grant full access to the files as the records on the questioning of witness K. contained information on further suspects and other investigation proceedings where arrest or search warrants had not yet been executed.
20. On 13 August 1993 applicant’s counsel obtained copies of the records on the questioning of witness K. to the extent that they related to the applicant. Other passages had been blacked out.
21. On 23 August 1993 counsel again requested full access to the files as the copies sent to him were not comprehensible as a consequence of the blacked out passages. Moreover, he requested further investigations. The request for full access to the files was dismissed on 25 August 1993. The requested investigations were carried out.
22. On 13 September 1993 the Public Prosecutor’s Office informed applicant’s counsel that there were no longer any reasons to refuse full inspection of the files, and the Federal Constitutional Court was also informed of that fact. In view of this development, the Federal Constitutional Court asked the applicant whether he wished to maintain his constitutional complaint. The applicant’s reply was affirmative. The applicant’s lawyer was granted access to the file on 17 September 1993.
23. On 27 October 1993 the Federal Constitutional Court decided not to entertain the constitutional complaint.
24. On 12 July 1994 the applicant was convicted of aiding and abetting drug-trafficking in respect of the storage of 16 kg and 6 kg of cocaine and sentenced to four years’ imprisonment. The time he had spent in detention on remand was counted towards the sentence. The judgment became final.
25. Articles 112 et seq. of the Code of Criminal Procedure (Strafprozeßordnung) concern the arrest and detention of a person on reasonable suspicion of having committed an offence. According to Article 112 a person may be detained on remand if there is a strong suspicion that he or she has committed a criminal offence and if there is a reason for arrest, such as the risk of absconding or the risk of collusion. Article 116 regulates the suspension of the execution of an arrest warrant.
26. Under Article 117 of the Code of Criminal Procedure, remand prisoners can ask any time for judicial review of the arrest warrant. An oral hearing will be held upon the request of the remand prisoner, or if the court so decides on its own motion (Article 118 § 1). If the arrest warrant is held to be valid following an oral hearing, the remand prisoner is entitled to a new oral hearing only if the detention has lasted for three months altogether and if two months have elapsed since the last oral hearing (Article 118 § 3). Article 120 provides that an arrest warrant has to be quashed if reasons justifying the detention on remand no longer persist or if the continued detention appears disproportionate. Any prolongation of detention on remand beyond an initial six months is to be decided by the Court of Appeal (Articles 121-122).
27. Articles 137 et seq. of the Code of Criminal Procedure concern the defence of a person charged with having committed a criminal offence, in particular the choice of defence counsel or appointment of official defence counsel. According to Article 147 § 1, defence counsel is entitled to consult the files, which have been presented to the trial court, or which would have to be presented to the trial court in case of an indictment, and to inspect the exhibits. Paragraph 2 of this provision allows for a refusal of access to part or all of the files or to the exhibits, for as long as the preliminary investigation has not been terminated, if the purpose of the investigation would otherwise be endangered. Pending the preliminary investigation, it is for the Public Prosecutor’s Office to decide whether to grant access to the file or not; thereafter it is for the president of the trial court (Article 147 § 5). By an Act amending the Code of Criminal Procedure (Strafverfahrensänderungsgesetz, BGBl. 2000, I, p. 1253) with effect as from 1 November 2000, the latter provision has been amended to the effect, inter alia, that an accused who is in detention is now entitled to ask for judicial review of the decision of the Public Prosecutor’s Office denying access to the file.
28. Articles 151 et seq. of the Code of Criminal Procedure regulate the principles of criminal prosecution and the preparation of the indictment. Article 151 provides that any trial has to be initiated by an indictment. According to Article 152 the indictment is to be preferred by the Public Prosecutor’s Office which is, unless otherwise provided, bound to investigate any criminal offence of which there exist sufficient grounds for suspicion.
29. Preliminary investigations are to be conducted by the Public Prosecutor’s Office according to Articles 160 and 161 of the Code of Criminal Procedure. On the basis of these investigations the Public Prosecutor’s Office decides under Section 170 whether to prefer an indictment or to discontinue the proceedings.
30. According to Article 103 (1) of the German Constitution (Grundgesetz), every person involved in proceedings before a court is entitled to be heard by that court (Anspruch auf rechtliches Gehör).
According to the Federal Constitutional Court (Bundesverfassungs-gericht), this rule requires a court decision to be based only on those facts and evidential findings which could be commented upon by the parties. In cases involving arrest and detention on remand, the arrest warrant and all court decisions upholding it must be founded only on those facts and pieces of evidence of which the accused was previously aware and on which he was able to comment (Federal Constitutional Court, decision of 11 July 1994 (NJW 1994, 3219), with further references).
In the aforementioned decision, the Federal Constitutional Court held that, following his arrest, an accused had to be informed of the content of the arrest warrant and promptly brought before a judge who, when questioning him, had to inform him of all relevant incriminating evidence as well as of evidence in his favour. Moreover, in the course of ensuing review proceedings, the accused must be heard and, to the extent that the investigation will not be prejudiced, the relevant results of the investigation at that stage must be put to him. In some cases, such oral information may not be sufficient. If the facts and the evidence forming the basis of a decision in detention matters cannot or can no longer be communicated orally, other means of informing the accused, such as a right to consult the files (Akteneinsicht), are to be used. On the other hand, statutory limitations on an accused’s access to the files pending the preliminary investigation are to be accepted, if the efficient conduct of criminal investigations so requires. However, even pending those investigations, an accused who is detained on remand has a right of access to the files through his lawyer if and to the extent that the information which they contain might affect his position in the review proceedings and that oral information is not sufficient. If in such cases the prosecution refuses access to the relevant parts of the files pursuant to Article 147 § 2 of the Code of Criminal Procedure, the reviewing court cannot base its decision on those facts and evidence and, if necessary, has to set the arrest warrant aside (Federal Constitutional Court, loc. cit.).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-95133
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: GENCER INSAAT TAAHHUT TURIZM TICARET SANAYII LTD. STI. v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: 1. The applicant, Gençer İnşaat Taahhüt Turizm Ticaret Sanayii Ltd. Şti., is a Turkish commercial company based in Ankara. It was represented by Mr M. Bir, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
2. On 18 June 1996 the applicant company brought civil proceedings against a private individual (Ö.L.Ö.) before the Kaş Civil Court of First Instance, claiming unjust enrichment.
3. The first hearing scheduled for 24 September 1996 was postponed for administrative reasons. At the next hearing, which was held on 22 October 1996, both parties requested an adjournment to present their evidence.
4. At the following hearing on 20 December 1996 the applicant company explained that it wished to adduce as evidence the entire case-file of a pending claim for reimbursement it had lodged against Ö.L.Ö. The court therefore decided to await the outcome of the proceedings concerning the reimbursement claim and adjourned the case to 2 April 1997. The case-file indicates that the judgment in respect of the applicant company’s reimbursement claim was delivered on 22 October 1996, in accordance with an agreement that had been reached between the applicant company and Ö.L.Ö. This judgment was served on the applicant company on 7 May 1997 and became final in the absence of any appeal.
5. As neither party attended the following two hearings on 2 April 1997 and 28 May 1997 the court decided to discontinue the proceedings unless asked to reinstate them. Following a request to that effect by the applicant company the case was reinstated on 18 August 1997 and a hearing was scheduled for 5 November 1997.
6. Of the fifteen subsequent hearings that were held between 5 November 1997 and 23 February 2000, the applicant company failed to attend eight and requested adjournments in a further two.
7. On 3 June 1998 an expert report was requested by the court. The report was submitted on 3 December 1999.
8. The Kaş Civil Court of First Instance held twenty-three hearings in forty-six months before it delivered its judgment on 14 April 2000. The court awarded the applicant company 8,754,110,491 Turkish liras. Both parties appealed. On 21 March 2001 the Court of Cassation quashed that judgment on the ground, inter alia, that the applicant company had not presented material evidence as proof of its alleged loss. The applicant company’s rectification request was dismissed on 17 September 2001.
9. The case was remitted to the Kaş Civil Court of First Instance, which abided by the decision of the Court of Cassation and dismissed the case on 21 November 2001. The applicant company appealed. On 10 June 2002 the Court of Cassation upheld the judgment.
10. The applicant company then sought rectification. On 26 December 2002 the Court of Cassation refused the applicant company’s request.
11. The decision was lodged with the first-instance court’s registry on 7 January 2003 and served on the applicant company on 4 February 2003.


ITEMID: 001-105445
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: GOLOB v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre
TEXT: The applicant, Mr Ivan Golob (“the applicant”), is a Slovenian national who was born in 1969 and lives in Solkan, Slovenia. The applicant lodged the application on his own and his daughter’s, A.’s, behalf. He was represented before the Court by Mr B. Verstovšek, a lawyer practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent, Mrs Verdir, State Attorney.
The facts of the case, as submitted by the parties, may be summarised as follows.
Following the separation of the applicant and his daughter’s mother, the latter obtained custody of the daughter.
Subsequently, on 17 November 2003, the applicant lodged a request for determination of contact arrangements with his daughter. The Ajdovščina Welfare Office issued a decision on those contact arrangements on 6 May 2004. It determined that the applicant and his daughter should have weekly contact and contact during holidays. As regards the latter, it stated that the applicant and his daughter should spend one week during the winter holidays and three weeks during the summer holidays together. The mother appealed.
On 1 March 2005 the Ministry for Labour, Family and Social Matters (“the Ministry”) quashed the part of the Welfare Office’s decision that concerned contact arrangements during the holidays. It found that the decision had lacked an indication of the exact periods of contact to be put in place during the holidays. On 14 March 2005, the case was transferred to the Nova Gorica District Court, which, further to a reform in this field, had acquired jurisdiction in the matter.
On 7 June 2005 a hearing was held before the court. At the hearing, the judge noted that the subject of the proceedings was restricted to contact arrangements during holidays. On the same date the applicant requested that an interim decision be issued regulating contact arrangements during holidays and stipulating a physical taking of his daughter from her mother in the case of her non-compliance with the decision.
On 15 June 2005 the court rejected the applicant’s request for an interim decision. It relied on the Welfare Office’s report and a psychologist’s report indicating that the applicant’s daughter did not want to have weekly contact with the applicant, as a result of which no visits had been carried out at that time. The court found that provisional holiday contact arrangements might therefore not be in the child’s interests and that it was better to wait for evidence to be produced in the proceedings and a final decision reached on that basis. The applicant appealed. On 9 November 2005 the Koper Higher Court rejected the applicant’s appeal concerning the request for an interim decision, finding that the lower court had properly conducted the proceedings and had been led by the best interests of the child.
In the meantime, the applicant and his daughter also lodged a request for contact arrangements between the daughter and relatives on the applicant’s side of the family. On 14 July 2005 the District Court joined the request for contact arrangements between the daughter and her relatives to the proceedings concerning contact during holidays. On 19 July 2005 the court declared inadmissible the request for contact arrangements with the aforementioned relatives, finding that neither the applicant nor his daughter, who was still a minor, had standing to pursue such proceedings. On 9 November 2005 the Koper Higher Court upheld that decision.
On 18 August 2005 the applicant’s daughter’s mother lodged a request for new (reduced) weekly contact arrangements between the applicant and his daughter which would replace those set out in the Welfare Office’s decision of 6 May 2004. She also requested that an interim decision be issued in that regard. The latter request was rejected on 30 August 2008.
On 7 February 2006 the District Court held a hearing. Both parties confirmed that the weekly contact arrangements as set out in the Welfare Office’s decision of 6 May 2004 had been complied with since July 2005. Moreover, the applicant and his daughter had also taken a holiday together in November and December 2005.
At the hearing of 7 February 2006 the court decided the case and terminated the proceedings. Having regard to several Welfare Office reports, as well as expert reports and statements from the parties, it determined new weekly contact arrangements, which were similar to those set out in the Welfare Office’s decision. In also decided that the applicant and his daughter should spend the winter school holidays and four weeks during the summer holidays together and specified the way in which these arrangements should be implemented in practice.
Both parties appealed. On 12 September 2006 the Koper Higher Court quashed the part of the lower court’s decision concerning the weekly contact arrangements and slightly modified the way in which the arrangements for the holidays should be implemented in practice. It found that there had been no basis for the lower court to replace the Welfare Office’s final decision of 6 May 2004 as regards the part of that decision concerning weekly contact arrangements, which therefore remained in force. The Higher Court’s decision was served on the applicant’s representative on 21 November 2006.
As regards the relevant provisions of domestic family law see Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, §§ 63-73, 1 December 2009.