ITEMID: 001-111179
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SOLIYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention;Take proceedings)
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1974 and lives in Kazan.
6. In September 2009 the applicant left Uzbekistan for Russia looking for employment. On 8 September 2009 he arrived in the city of Kazan, Russia.
7. On 24 December 2009 the Uzbek security service charged the applicant with attempting to overthrow the constitutional order, belonging to a religious group (the Islamic Movement of Uzbekistan) and dissemination of subversive materials.
8. On the same date, an Uzbek judge issued an arrest warrant against the applicant. His name was put on a wanted list.
9. On 30 March 2010 the Russian police arrested the applicant, who had gone to the premises of the migration authority in order to apply for a temporary residence permit. The police relied on Articles 91 and 92 of the Code of Criminal Procedure (“the CCrP”) concerning the arrest of suspects. According to the respondent Government, the presence of the applicant’s name on the wanted list justified his arrest (Article 61 of the Minsk Convention).
10. On the same date, the Uzbek authorities confirmed to the Russian authorities that the applicant’s name was still on the wanted list.
11. A deputy town prosecutor applied to the Vakhitovskiy District Court of Kazan seeking the applicant’s detention with a view to extradition. On 1 April 2010 the District Court confirmed the lawfulness of the applicant’s arrest and authorised his detention until 8 May 2010 in anticipation of an eventual extradition request. The court referred to Articles 97 § 1, 99, 108 and 466 of the CCrP. The court noted that the applicant was a foreign national and had no permanent place of residence in Russia; a foreign court had issued an arrest warrant against him and his name had been put on a wanted list; he had fled justice in Uzbekistan; and thus there was a risk that he would flee again or continue his criminal activity.
12. On 15 April 2010 the applicant applied to the Tatarstan Department of the Federal Migration Service for asylum.
13. On 4 May 2010 the Uzbek Prosecutor General’s Office sent a formal extradition request to the Russian Prosecutor General’s Office.
14. On 7 May 2010 the District Court examined a prosecutor’s request and extended the term of the applicant’s detention until 8 July 2010, with reference to Article 109 § 2 of the CCrP.
15. Before the expiry of the previous detention order, for unspecified reasons on 25 May 2010 the District Court issued a new detention order, extending the applicant’s detention until 30 September 2010, with reference to Article 109 § 2 of the CCrP.
16. The applicant considered that it was impracticable in such circumstances to appeal against the detention order of 7 May 2010.
17. On 4 August 2010 the Russian Prosecutor General’s Office authorised the applicant’s extradition.
18. The applicant was notified of this decision on 23 August 2010. He brought judicial review proceedings against the extradition order, claiming that as his asylum proceedings were pending, the enforcement of the extradition order was suspended. He also asserted that if extradited he would run a serious risk of torture or inhuman treatment.
19. In the meantime, on 26 August 2010 the applicant was informed that his asylum request had been dismissed. He appealed to a higher migration authority.
20. On 20 September 2010 the Supreme Court of Tatarstan held a hearing on the applicant’s appeal against the extradition order. The applicant’s counsel pleaded that in the event of his extradition the applicant would be subjected to torture, like many other individuals charged in relation to religious or extremist activities. On the same date the Supreme Court of Tatarstan dismissed the case, considering that the allegations of ill-treatment had been based on mere assumptions and that the applicant had applied for asylum only when criminal proceedings against him had already been pending in Uzbekistan.
21. The applicant appealed to the Supreme Court of Russia. It appears that on an unspecified date it quashed the judgment of 20 September 2010 and ordered the re-examination of the extradition case.
22. On 30 September 2010 the District Court extended the applicant’s detention until 30 November 2010. It is stated in the detention order that “if the defendant decides to lodge an appeal, he has the right to ask, within three days of receipt of the detention order, for his personal participation in the appeal hearing”. On 30 September 2010 the applicant also signed a note confirming receipt of a copy of the detention order and that he had been informed of his rights to “participate in the appeal hearing and to have legal assistance”.
23. On 4 October 2010 the applicant’s lawyer lodged a statement of appeal, arguing that there was no evidence that the applicant would flee justice or reoffend; that his application for refugee status was pending; and that the prosecutor’s extension request had been submitted to the district court less than seven days before the expiry of the previous detention order, in breach of Article 109 § 8 of the CCrP. The statement of appeal did not contain any request for the lawyer’s and/or the applicant’s participation in the appeal hearing.
24. On 5 October 2010 the prosecutor made observations in reply, stating that the applicant’s arguments had been unfounded and that the application for refugee status had been dismissed.
25. According to the Government, the applicant and his counsel had been informed in advance of the date and time of the appeal hearing. On 8 October 2010 the Supreme Court of Tatarstan heard a prosecutor and upheld the detention order. Neither the applicant nor his lawyer had been present at the appeal hearing.
26. On 25 November 2010 the district court extended the applicant’s detention to 30 January 2011.
27. Having re-examined the extradition case, on 10 December 2010 the Supreme Court of Tatarstan annulled the extradition order. With reference to the international reports and other material submitted by the applicant and the European Court’s case-law on the matter, the court considered that there was a persistent practice of torture of detained suspects or convicts in Uzbekistan and that the applicant also faced a risk of such mistreatment. The court also noted that “in a number of judgments the European Court has held that the mere fact of detention in this country created a risk of ill-treatment”.
28. The applicant was released on the same day.
29. On 3 February 2011 the Supreme Court of Russia examined the prosecutor’s subsequent appeal and upheld the judgment of 10 December 2010. The appeal court noted that there had been a material difference between the criminal offences mentioned in the extradition request and the corresponding offences under the Russian Criminal Code; that the extradition order had been issued before the final decision had been taken on the applicant’s refugee application; and that there had been indications of a risk of ill-treatment in Uzbekistan, in particular in the absence of any relevant assurances on the part of the Uzbek authorities.
30. Article 376 of the Russian Code of Criminal Procedure (“the CCrP”) provided at the time that the parties should be informed of the date, time and place of an appeal hearing and that the court had to decide whether the defendant’s presence was necessary. A convicted defendant, who was in detention and who had asked for his personal participation in the appeal hearing, was to be allowed to do so by way of personal presence in the courtroom or by way of a video link. A party’s failure to appear before the appeal court was not to halt the appeal proceedings.
31. The Constitutional Court considered that Article 376 of the CCrP should be read in conjunction with Articles 16, 50 and 51 of the CCrP, thus requiring the provision of legal assistance in appeal proceedings, if requested by the defendant or in the circumstances provided by the law (including in cases of mandatory legal assistance) (decision no. 251-O-П of 8 February 2007).
32. The Constitutional Court interpreted Article 376 of the CCrP as applicable to appeal proceedings concerning the issue of detention (decision no. 66-O of 22 January 2004; see also decision no. 201-Д11-1 of the Supreme Court of Russia of 20 January 2011).
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-23428
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: ZIGARELLA v. ITALY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Generoso Zigarella, is an Italian national who was born in 1945 and lives in Mercogliano (Avellino).
The facts of the case, as submitted by the parties, may be summarised as follows.
First set of proceedings (no. 10221/93)
By a summons of 14 March 1994, served on 27 October 1994, the applicant was requested to appear before the Avellino magistrate’s court (pretura) on 2 January 1995 on charges of breaching three different town planning laws.
As it appears that the hearing was not held, the applicant was summoned again on 24 March 1995 to appear for trial on 15 May 1995. Owing to a lawyers’ strike, the trial was adjourned to 10 April 1996. On that day evidence was heard from one of the prosecution witnesses, but the prosecution decided not to examine their second witness. Both parties asked the court to adjourn the trial to 20 November 1996. On that date the magistrate’s court noted that the applicant had applied to the District Council for his position to be regularised and had obtained planning permission for the relevant building works. The court accordingly concluded that there was no cause to continue with the criminal proceedings because there was no longer any offence.
The judgment became final on 11 January 1997.
Second set of proceedings (no. 590/94)
In the meantime, on 17 June 1996, the Avellino public prosecutor’s office had summoned the applicant to appear before the Avellino magistrate’s court on 26 June 1997 on charges of breaching four different town planning laws. The applicant received the summons on 29 April 1997. It informed him that he was being prosecuted in his capacity as site manager. The works in question involved two building sites that had been the subject of the first set of proceedings and two others. The investigation had been partly conducted by the deputy public prosecutor who had been in charge of the first proceedings.
The hearing listed for 26 June 1997 did not apparently take place. The Avellino magistrate’s court adjourned it to 19 February 1998 as one of the defendants was ill. On 19 February 1998 the same court adjourned the trial to 30 April 1998 because the witnesses had not appeared. On that date the applicant informed the court that he had already been tried for the same offence. On the same day the Avellino magistrate’s court concluded from the pleadings filed by the prosecution and the defence that the proceedings against the applicant could not be continued because a court decision (which had become final on 11 January 1997) had already been delivered in the case. The judgment of 30 April 1998 became final on 4 June 1998.
Article 649 of the Code of Criminal Procedure provides:
“Anyone who has been acquitted or convicted by a final judgment or order of a criminal court cannot be tried again for the same offence, even if it is tried on a different basis in terms of classification, degree of seriousness or circumstances ... .
If fresh proceedings are nevertheless instituted, the court shall, at any stage of the proceedings, acquit or discharge the defendant and state the reasons for doing so in the operative part of the judgment.”
Article 121 of the Code of Criminal Procedure provides:
“The parties and counsel may at any stage of the proceedings submit written pleadings or requests to the court, which they shall file with the court registry.
The court shall rule on these duly submitted requests without delay and in any event, subject to any specific statutory provision to the contrary, within fifteen days.”


ITEMID: 001-6008
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: BAUMANN v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Roland Baumann, is a Austrian national, born in 1969 and living in Graz (Austria).
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 July 1996 the Leoben Regional Court convicted the applicant of murder and aggravated coercion and sentenced him to 18 years’ imprisonment. In assessing the penalty (Strafbemessung) the court considered as mitigating circumstances the applicant’s “neglected education” (vernachlässigte Erziehung) and his partial confession. As aggravating circumstances, the court took account of his criminal record and the fact that he was a recidivist.
On 19 August 1996 the applicant, represented by counsel, filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung). In his appeal he complained that the penalty was too high. As to the mitigating circumstances, he maintained that his neglected education was not given sufficient weight. Moreover, the Regional Court should have taken into account his intoxication and his particular mental state at the time of the criminal act due to the fact that he had suspected the victim of having tried to prostitute his wife. The applicant did not make a request to attend the hearing before the Supreme Court.
On 30 September 1996 the Supreme Court fixed the hearing date for the applicant’s plea of nullity and his appeal for 5 November 1996. The applicant received a notification, which stated that his counsel would be summoned to the hearing. As to the hearing of the plea of nullity, the notification informed him that he, being detained, could only appear through his counsel. As to the hearing of the appeal, he was informed that he would not be brought to court as the conditions set out in the relevant provisions of the Code of Criminal Procedure (Strafprozeßordung) were not fulfilled.
On 5 November 1996 the Supreme Court, after having held a hearing in the absence of the applicant but in the presence of his defence counsel, Ms. S., dismissed his plea of nullity as well as his appeal. As regards the appeal, the court found that the concurrent nature of the offences (Zusammentreffen strafbarer Handlungen verschiedener Art) had to be taken into account as an additional aggravating circumstance. The Supreme Court ruled that a neglected education could not be considered as a mitigating circumstance in the applicant’s case, given that he was an adult and had already been imprisoned several times before. Nor could the applicant’s intoxication be considered a mitigating circumstance because, in view of his previous offences, he should have appreciated the effects alcohol had on him. As to his mental state at the time of commission of the offence, the court relied on an expert’s psychiatric opinion to the effect that the applicant’s personality was characterised by an aggressive attitude as well as coldness and hostility towards other people. Under these circumstances the applicant’s special mental state could not be considered to be a mitigating factor. Furthermore, the Supreme Court noted that the applicant had not put forward any new mitigating circumstances.


ITEMID: 001-108358
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: BARNIC v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: The applicant, Mr Predrag Barnic, is a Serbian national who was born in 1977 and lives in Vienna. His application was lodged on 24 September 2010. He was represented before the Court by Mr T. Neugschwendtner, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. The Government of the Republic of Serbia were given notice of the application, and they informed the Court on 21 December 2010 that they would not exercise their right to intervene in the present case.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant came to Austria in February 2006. On 14 December 2006 he was taken into custody on suspicion of drug trafficking.
On 7 September 2007 an Austrian court convicted the applicant of offences under the Drugs Act (Suchtmittelgesetz) and of attempted use of forged documents, and sentenced him to three years’ imprisonment.
It appears that on 7 November 2007 an exclusion order of unlimited duration (unbefristetes Rückkehrverbot) was issued against the applicant.
In October 2007 the Serbian Ministry of Justice requested the applicant’s extradition to Serbia for the execution of two sentences - one from March 2003 for a robbery, and another from November 2003 for severe bodily harm - and for further criminal proceedings against him on the basis of an indictment of 30 October 2002 issued by the District Public Prosecutor’s office in S. relating to charges of dealing in illegal drugs.
On 24 January 2008 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) declared the extradition unlawful.
On the basis of country reports from the asylum file (see below), which included a report by the United Kingdom Home Office (Operational Guidance Note, Republic of Serbia including Kosovo, dated February 2007), a report by the German Federal Foreign Office (Report on asylum issues regarding Serbia and Montenegro without Kosovo, dated February 2006) and by the United States Department of State (Serbia and Montenegro, Country Reports on Human Rights Practices 2005, dated March 2006), the Regional Criminal Court found that whereas the human rights situation in Serbia had substantially improved since 2005, ill-treatment by the police could not be ruled out - in particular in prisons and during pre-trial detention. Furthermore, investigations into such ill-treatment were slow and ineffective. It also noted that statements made under duress and torture were still accepted as evidence in court proceedings.
From the medical reports submitted during the asylum proceedings the court found it credible that the applicant had suffered ill-treatment by the police in Serbia in 2002. The documentation showed that the applicant had been treated for months for new and acute injuries he had received during police questioning. He still bore two 10-cm-long scars on his right knee, 40-cm-long scars on his right and left thigh and a 15-cm-long scar on his left lower leg, which were consistent with his version of what had happened. Furthermore, the applicant’s complaints of ill-treatment had only been dealt with in Serbia after a long delay, and the proceedings had finally been discontinued. Lastly, the Serbian Ministry of Justice had not commented on the events described by the applicant, although it had been explicitly requested to do so by the court.
Thus, the Regional Criminal Court found that even though the general conditions for extradition had been met, the applicant had been subjected to ill-treatment by the police during his detention in Serbia in 2002 and would continue to be at risk of such treatment. Thus, an extradition would constitute a violation not only of Article 3, but also of the guarantees of Article 6 of the Convention.
On 1 June 2007 the applicant lodged a request for asylum.
He claimed that he had been severely ill-treated and tortured by Serbian police in 2002 in order to obtain his confession to a robbery he had not committed. He had been arrested and taken to another village, where he had been tortured for six hours by police officers. He had been shot in the leg, beaten and suffered a spinal injury. Owing to severe bleeding, he was then taken to hospital. He was kept in custody for eight months.
In March 2003 the applicant was convicted and sentenced to four years’ imprisonment. On account of his poor health he was released on the day of his conviction. He subsequently underwent surgery. In May 2003 he was again taken into custody for a further eight months. He was released in February 2004.
The applicant stated that he had encountered continuing problems with the chief of police in his home town of S., from the year 2000 onwards, when he had refused to pay for protection for one of his companies. With regard to the events in 2002, the applicant had lodged a complaint of ill-treatment with the public prosecutor and the Helsinki Committee for Human Rights. The applicant then tried to continue living in his home town in Serbia, but maintained that he had been continually harassed by the police, and had finally left in November 2005 and travelled to Austria via Croatia and Italy. He claimed that he would be subjected to ill-treatment should he be returned to Serbia.
On 11 July 2007 the Federal Asylum Authority (Bundesasylamt) refused the applicant’s asylum request and ordered his expulsion to Serbia. It found that an isolated incident of ill-treatment by the police did not suffice to establish a substantiated risk of persecution or ill-treatment as required for an asylum claim to be successful. In that context it referred to the period the applicant had stayed in Serbia after the attack, the time that had elapsed in Austria before he had lodged a request for asylum there, and the time which had elapsed since the event itself. On the basis of country reports about Serbia it considered that there was no longer any real risk of systematic and manifest ill-treatment by police in Serbia.
The applicant lodged an appeal against that decision.
On 9 December 2009 the Asylum Court (Asylgerichtshof) dismissed the applicant’s appeal in the asylum proceedings.
It noted that according to the information obtained from the Austrian Embassy in Serbia, the chief of the police force in S., M.K., had been removed (“abgelöst”) from his post in 2006 and apparently was now working as a lawyer. It further found that the applicant’s statement about the events in Serbia in 2002 whilst he was in police custody and detention were credible, but concluded that owing to the time which had elapsed since the events and the general improvement of the security situation in Serbia the applicant was no longer at risk of ill-treatment.
With regard to the general human rights situation in Serbia, the Asylum Court referred to reports by the European Commission (Serbia and Montenegro, 2005 Progress Report, dated 9 November 2005, and Serbia, Progress Report 2007, dated November 2007) and to two reports by the United States State Department (Serbia and Montenegro, Country Report on Human Rights Practices 2005 and 2007, dated March 2006 and 2008, respectively). It cited a report by the German Federal Foreign Office that noted a decrease in systematic police violence since 2000. However, especially in general and police detention, human rights violations could not be excluded, although they were directed not against political adversaries, but against criminal suspects. In some of those cases police officers had been suspended from active duty, and in a number of cases Serbian courts had awarded damages to victims of ill-treatment (Report on asylum issues regarding Serbia and Montenegro, dated August 2008). On the basis of the report of the Council of Europe Commissioner for Human Rights, Thomas Hammerberg, on his visit to Serbia in October 2008 (dated March 2009), the Asylum Court referred to the introduction of a legal framework for complaint procedures in cases of alleged police assault. Lastly, the Asylum Court stated that the length of time which had passed between the events in 2002 and the asylum proceedings had led to the dismissal of the asylum request.
With regard to the decision of the Vienna Regional Criminal Court to declare the extradition unlawful, it found that after almost two more years following that decision the situation in Serbia had further improved. Individual cases of police brutality could not change the overall picture of a much better security situation. It referred again to the country reports on which it had based its evaluation and noted that a Secretariat for Internal Affairs at the Ministry for Interior Affairs, and commissions in every region had been introduced to deal with complaints against the police. Lastly, the Asylum Court observed that it was not bound by the decision of the Vienna Regional Criminal Court.
The applicant lodged a complaint against that decision with the Constitutional Court (Verfassungsgerichtshof). On 22 February 2010 the Constitutional Court refused to deal with the applicant’s complaint. That decision was served on the applicant’s counsel on 24 March 2010.
On 24 September 2010 the applicant lodged the present application with the Court and requested that an interim measure be granted. On 5 October 2010 the Court requested the Austrian Government to stay the applicant’s expulsion to Serbia until further notice, pursuant to Rule 39 of the Rules of the Court.
The Council of Europe Commissioner for Human Rights visited Serbia from 13 to 17 October 2008 for an assessment of the overall human rights situation, and published his report on that visit on 11 March 2009 (CommDH(2009)8). With regard to ill-treatment by the police, he found that various sources had indicated that police ill-treatment had decreased in Serbia since the European Committee on the Prevention of Torture had visited in 2004. While it now appeared that allegations of police violence were the exception rather than the rule, police violence had not yet been completely eradicated. NGOs and representatives from the legal community had pointed out that many people still failed to report incidents of violence for fear of retaliation by the police (paragraph 66).
An Internal Control Sector had been established as a separate department within the Ministry of the Interior by the new police act in 2005 to deal with complaints regarding police misconduct. Furthermore, police misconduct was monitored by special commissions established in each of the twenty-seven regions of the Republic. These commissions consisted of three members, namely a police officer, a representative of the Sector and a local citizen. From 2003 until 2007, the Sector had opened 150 formal investigations against police officers, compared with 350 in 2008 alone. In the Commissioner’s opinion, the police complaints mechanism was still in its infancy, and its impact in practice could not yet be gauged (see paragraphs 71-74).
The European Committee on the Prevention of Torture (“CPT”) visited Serbia from 19 to 29 November 2007 and published its report on 14 January 2009 (CPT/Inf(2009)1). It stated that the number of allegations of ill-treatment by the police heard by the CPT’s delegation in the course of the 2007 visit was lower, and the ill-treatment alleged less severe, than during the first of the Committee’s periodic visits, in 2004. However, the delegation did receive a number of allegations of physical ill-treatment (consisting of punches, kicks, blows with a truncheon, blows with a thick book or with a wet, rolled newspaper, and handcuffing to fixed objects in a hyperextended position) during questioning by police officers, with the aim of obtaining confessions or other information (see paragraph 13).
The CPT welcomed the legislative and other measures taken to combat ill-treatment by the police. However, it concluded from the information gathered throughout its visit that continued determined action was needed to combat ill-treatment by the police (paragraph 16). It recommended the systematic and ongoing training of the police, independent agents to investigate any complaints of misconduct, the introduction of procedural rules for judges and prosecutors dealing with complaints of ill-treatment by the police, and thorough record-keeping of medical examinations of newly-arrived remand prisoners (pages 15 et seq.).
The Serbia 2010 Progress Report of the European Commission (Com(2010)660), published on 9 November 2010 within the framework of the Enlargement Strategy 2010-2011, noted with regard to civil and political rights that there had been only a small amount of progress in further improving the prevention of torture, ill-treatment and the fight against impunity. Police detention procedures were of great concern, as well as the lack of any internal and independent external oversight mechanisms. Additional efforts aimed at preventing any further cases of torture and ill-treatment were needed. The Deputy Ombudsman in charge of the protection of people deprived of their liberty was operational but still not fully effective (see page 13). The report concluded by stating that overall, the constitutional framework providing for respect for civil and political rights was largely in place. However, full implementation and enforcement remained to be ensured. Further action by the authorities in combating violence of all types was needed (page 14).
In 2009 the Helsinki Committee for Human Rights in Serbia published its Annual Report, Serbia 2008: Human Rights, Democracy and Violence. In its concluding remarks in the chapter titled “Police: Dynamics without radical change”, the Committee stated that during 2008 no further significant steps for reform had been taken with regard to the police in Serbia; that the adoption of a new police act, which was required for the continuation of reforms, had not been announced; that the police still very often abused their authority, and that there were numerous cases of police torture, especially in the interior of Serbia (see page 201).
In its report for the year 2009, published in 2010, the Helsinki Committee for Human Rights in Serbia acknowledged that the Ministry of the Interior of the Republic of Serbia had achieved outstanding results and that it could be stated that 2009 had been the most successful year for the Serbian police since 2000. However, in the context of police work there were still many abuse cases involving police officers. Furthermore, the Ministry of Internal Affairs was withholding information of public importance and police work was not sufficiently transparent. It emphasised that future reform efforts would require the training of police personnel, especially with regard to human rights standards (pages 95-96).
In its annual report for 2010, published in 2011, the Helsinki Committee for Human Rights in Serbia concluded its chapter on the police by stating that although the number of criminal offences and abuses committed by police officers had been significantly lower compared to recent years, it was still very high. The fact that the number of criminal offences with elements of violence committed by police officers was about 15% higher gave rise to particular concern. The report emphasised that the continuation of reforms and the positive trends in 2010 would give rise to expectations that the Serbian police would be able to provide full security to all citizens of Serbia in the forthcoming period (page 222).


ITEMID: 001-23582
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: NIKKA v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Aarno Nikka, is a Finnish national, who was born in 1957 and lives in Stockholm, Sweden. He is represented before the Court by Ms K. Koorti, a lawyer practising in Stockholm. The respondent Government were represented by Mrs E. Jagander, of the Ministry for Foreign Affairs, as Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
The case concerns criminal proceedings brought against the applicant in relation to charges of assault and threats allegedly committed against his cohabitant, E., on 4 July 1996.
The same day E. reported the incident to the police. According to E., the relationship between her and the applicant had deteriorated over a period of time. The applicant had also started to drink during the days preceding the incident. During the evening of 4 July 1996 E. began to pack her belongings because she had decided to leave the applicant. The applicant became aggressive and put his finger in her mouth. He then pulled her to the floor, injuring the back of her head and her shoulder. E further stated that the applicant slapped her in the face and threatened to kill her.
The applicant admitted that they had quarrelled during the evening, but denied that he had assaulted or threatened E Instead, he alleged that E had fallen on the floor by accident. He also stated that he placed his hand over her mouth in order to prevent her from screaming.
The applicant was charged with the offences of “assault” and “unlawful threat” against E, who also joined her claim for compensation to those proceedings.
The applicant denied the charges at the hearing before the District Court trying the case, as well as civil liability to pay compensation, though he had already paid E certain sums totalling 7,210 Swedish kronor (SEK). E was heard before the court and maintained the statements she had made during the police investigation. The prosecutor also relied on a medical certificate and a photograph attesting to E’s injuries.
In its judgment of 26 July 1996 the District Court convicted the applicant and sentenced him to two-months’ imprisonment, and made him liable to pay compensation to E, not to exceed the amount (SEK 7,210) already paid.
The applicant appealed to the Court of Appeal.
The main hearing before the Court of Appeal was first scheduled to take place on 28 November 1996. On 20 November 1996, when an official of the Court of Appeal called the applicant at the apartment which used to be his and E’s home, E was present in the apartment and was informed of the date and place of the hearing. E was, however, not formally summoned to the hearing. In any event, E failed to appear at the main hearing on 28 November 1996 and the hearing was cancelled.
The trial hearing was postponed until 29 April 1997. However, E. was not notified of the hearing and it was cancelled. The parties were invited to give their views on whether it was necessary to take evidence from her again or whether the audio-tape recording of her testimony in the District Court could be played back. Both the prosecutor and the applicant were of the opinion that it was essential to take evidence from her also in the Court of Appeal.
3 March 1998 was then fixed as the new date for the hearing and E was notified of the summons. However, as she failed to appear and her testimony was deemed necessary, the hearing was cancelled. E. was ordered to pay a fine of SEK 2,000 and it was decided that next time she should be brought to the hearing by the police.
On 28 May 1998, as the attempt to fetch E. failed (she had not been notified of the hearing), the Court of Appeal cancelled the hearing since it was deemed necessary to take evidence from her. A new hearing was scheduled for 14 September 1998. The court ordered that E. be fetched and taken into custody a few hours in advance of the hearing in order to secure her attendance.
Subsequently, a hearing scheduled for 14 September 1998 was cancelled as it had not been possible to fetch E. and her renewed testimony was considered necessary. A new hearing was scheduled for 30 September 1998. The Court of Appeal ordered once again that E was to be fetched and that she could be taken into custody prior to the transportation to the court.
A sixth attempt to hold a hearing, on 30 September 1998, was also in vain since the police had failed to find E. The hearing was cancelled even though the prosecutor now claimed that E’s absence was no longer an impediment to holding a hearing. It was then decided to hold the hearing on 14 October 1998 and that the police should secure E’s attendance by fetching her and keeping her in custody a few hours before taking her to the court room.
The Court of Appeal finally held the appeal hearing on 14 October 1998, in E’s absence, as the police had not been able to fetch her. Under the Code, Chapter 35 section 13, the Court decided to go ahead with the hearing since all legal possibilities to secure E’s attendance had been exhausted and impediments therefore existed to her giving testimony once more.
The prosecutor invoked the audio-tape recording of her testimony previously given before the District Court. Defence counsel was of the view that E should be heard in person and that a new attempt to bring her to the Court of Appeal should therefore be made. However, counsel left it to the Court to decide whether E’s absence was an impediment to the holding of the hearing.
The Court of Appeal heard the applicant and an audio-tape recording of E’s testimony to the District Court. The evidence also included four letters that E had addressed to the defence counsel, the public prosecutor and the Court of Appeal respectively on 8 August and 18 November 1996 and 10 March 1998.
In her letter to defence counsel of 8 August 1996, which was only submitted by counsel to the Court of Appeal on 14 October 1998, E offered to take back all of what she had claimed previously against the applicant. She did not know how matters would evolve between them and thought that this was unimportant. In her view, the applicant had suffered enough by being detained on remand. She stated in addition that "I know, as he does, what he has done to me". E finally asked defence counsel to lodge an appeal against the District Court’s judgment and stated that she waived damages.
In her letter to the prosecutor of 18 November 1996, E stated that she had made a big mistake, had lied about what had happened, that her motive had been revenge and that she retracted everything she had stated in court.
Her letter addressed to defence counsel on the same date stated that her afore-mentioned letter to the prosecutor had not been worded in the right manner. When the event took place and the applicant "took hold of her", she had relived a rape that she had experienced as a girl. She had become very uncertain about what had actually occurred and thought that she might have mixed up the situations.
In her letter of 10 March 1998 to the Court of Appeal, E explained that she had lacked the financial means to attend its hearing on 3 March 1998. In her view, the police report was incorrect and this she had pointed out during the previous trial. Moreover, she claimed not to remember events that took place two years earlier in her and the applicant’s apartment.
In its judgment of 23 October 1998 the Court of Appeal upheld the District Court’s conviction and sentence of the applicant and, because of E’s statements, quashed the compensation order. It observed that the District Court had heard E extensively, for over an hour, and that the prosecutor, E’s counsel and the applicant’s counsel had asked her a large number of questions. The court went on to state:
“....[E.] maintained during the hearing the information that she had first given to the police and she did not give any contradictory answers. Her testimony in the District Court was full of details and gives the impression that she is talking about something that she indeed experienced. [E] had been eager not to exaggerate what happened. She had also pointed out that [the applicant] had not been violent previously and she also tried to give an explanation as to why he had acted as he did on the occasion in question. There is nothing to indicate that [E] should have any reason to tell lies about [the applicant].
[E] has stated in one of her letters that she sought revenge against [the applicant]. Nevertheless, she did not state why. [The applicant] has declared that he thinks that she would like to seek revenge on the ground that he called her a whore and that the relationship was over. It does not appear very likely that [E] would give false information deliberately for that reason.
As to the rest of the information given by [E] in the case, it is to be observed that her statements remained substantially the same, from her report to the police until her testimony before the District Court. Further, as regards the reliability of her statements, this must be considered as being strengthened by the medical certificate and the photograph. It appears unlikely that the injuries accounted for in the medical certificate had been caused by the course of events described by [the applicant].
The letters from [E] do not contain any information about what happened on the actual evening, but only the allegation that she had lied. In one of the letters she only stated that she had been uncertain about what had happened and that she could not remember the incident two years after. Her letters are vague and lacking in detail. In the light of these facts the court attaches no weight to [E’s] statements in the letters.”
The applicant appealed to the Supreme Court. On 21 December 1998 the Supreme Court refused leave to appeal.


ITEMID: 001-110768
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: KHACHATRYAN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicant, Mr Arman Lenvelovich Khachatryan, is an Armenian national who was born in 1974 and lives in Moscow. He was represented before the Court by Ms O. Mikhaylova, a lawyer practising in Moscow. The Russian Government were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. In view of the applicant’s nationality, the Government of Armenia were invited to submit written comments on the case. However, no reply was received within the prescribed time-limit.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 18 June 2003 the applicant was arrested and charged with attempted murder, robbery and illegal firearms trafficking. His pre-trial detention was extended on several occasions.
4. On 18 March 2004 the Moscow City Court, in a jury trial, convicted the applicant as charged and sentenced him to fifteen years’ imprisonment.
On 18 August 2004 the Supreme Court of Russia upheld the conviction on appeal.
5. Following the applicant’s request, on 5 October 2005 the Presidium of the Supreme Court of Russia quashed the judgment of 18 March 2004, as upheld on 18 August 2004, by way of supervisory review, and remitted the case for a retrial.
6. On 13 April 2006 the Moscow City Court convicted the applicant as charged and sentenced him to three years and one month’s imprisonment.
7. The applicant did not appeal against that judgment.
8. During his arrest on 18 June 2003 the applicant received a number of serious injuries, including gunshot wounds and fractures of the lower limbs, craniocerebral injury and concussion.
9. On the same day the applicant was taken to Moscow hospital no. 71, where he received primary surgical treatment for the gunshot wounds and had plaster casts applied to the fractures. He was subsequently transferred to Moscow hospital no. 20, where he stayed until 24 June 2003.
10. On 24 June 2003 the applicant was placed in Moscow remand prison IZ77/1. Upon his admission, the applicant was examined by a surgeon and discovered to have a perforating gunshot wound of the right thigh, a nonperforating gunshot wound of the left gluteal region, a closed fracture (immobilised) of left medial malleolus, a fracture (immobilised) of the lower third of the right shinbone, a fracture of the proximal phalanx of the hallux of the right foot, and a closed craniocerebral injury. He was subsequently hospitalised in the surgical unit of the remand prison hospital.
11. In the surgical unit of the remand prison hospital the applicant was further diagnosed with concussion and traumatic neuropathy of the right median nerve. His condition was evaluated as “moderately severe”. The applicant was treated with antibacterial, anti-inflammatory, general health-improving, anaesthetic, local, antispasmodic and sedative medication.
12. On 28 July 2003 the applicant was discharged from the IZ-77/1 prison hospital in a satisfactory condition, after which he received outpatient treatment at the IZ-77/1 medical unit.
13. On 11 September 2003 the applicant filed a request with the acting Prosecutor of Moscow asking for his transfer from remand prison IZ-77/1 to Moscow hospital no. 20 for specialised treatment.
14. On 8 January 2004 the applicant’s defence counsel made an enquiry with the governor of facility IZ-77/1 as to the state of the applicant’s health and the possibility of the removal of the two bullets from the applicant’s body in the remand prison.
15. On 3 February 2004 the applicant’s grandfather applied to the Chief Department for the Execution of Sentences asking for the applicant to be transferred to a correctional establishment with adequate medical equipment.
16. On 19 March 2004 the chief surgeon of IZ-77/1 surgical unit, having examined the applicant, excluded any emergency surgical pathology, having found that the location of the two bullets did not pose any risks to the applicant’s life and to the functioning of his essential organs. The applicant was recommended elective (non-urgent) surgery.
17. On 23 March 2004 the all-Russian advocacy group “For Human Rights” applied to the Preobrazhenskiy District Court of Moscow for the lifting of the applicant’s custodial measure and his transfer to the Burdenko Neurosurgery Institute for the removal of the bullets from his body.
18. On 17 April 2004 the applicant was placed in Moscow remand prison IZ-77/4, where he continued to receive treatment on an outpatient basis, with the assistance of civilian medical specialists.
19. On 29 June 2004 the All-Russian Public Organisation of War and Military Service Veterans wrote to the Prosecutor General of Russia requesting him to intervene and to assist the applicant in getting medical assistance for his gunshot wounds.
20. On 2 July 2004 the head of the Department for the Execution of Sentences in Moscow replied as follows:
“[...] At present [the applicant] is being supervised by the medical staff of [Moscow remand prison IZ-77/4].
On 25 June 2004 an additional examination and consultation was provided to [the applicant] with the assistance of civilian medical specialists from [Moscow] city clinical hospital no. 20 – a neuropathologist, a traumatologist, a surgeon, and a neurosurgeon – in which [the applicant] was diagnosed with suture sinus in the region of the middle third of right thigh [...], a foreign body (bullet) in the soft tissue of the right thigh and pelvis, a wrongly healed fracture of right ankle, a healed fracture of the left ankle [and] deforming arthrosis of the ankle joints. ...
At present, surgery on the ankle joints is not recommended owing to a chronic infection of the right thigh soft tissue.
Surgical treatment on the right thigh soft tissue is required in a surgical hospital.
On 29 June 2004 [the applicant] categorically refused treatment in the surgical unit of IZ-77/1 remand prison hospital and in city clinical hospital no. 20. ...”
21. A number of replies with similar content followed.
22. On 8 July 2004 the All-Russian public organisation “the Union of Armenians in Russia” applied to the Ombudsman requesting him to assist the applicant in obtaining qualified medical aid and a transfer to the Burdenko Neurosurgery Institute.
23. On 12 July 2004 the deputy head of the medical section of the Chief Department for the Execution of Sentences replied that no specialised neurosurgical treatment had been recommended for the applicant.
24. On 4 August 2004 the applicant’s defence counsel made an enquiry with the Chief Department for the Execution of Sentences as to the state of the applicant’s health and the possibility for him to have the two bullets removed from his body in the remand prison. The information requested was necessary to substantiate his application for release on medical grounds.
25. On 11 August 2004 the Bureau of Medical and Social Expertise examined the applicant’s medical file and classified his disability as “category three” for a period of one year, until 1 September 2005.
26. On 23 August 2004 the applicant’s defence counsel requested the Chief Department for the Execution of Sentences to carry out a medical examination of the applicant and to suspend his transfer to the correctional colony until the issue of the applicant’s placement and treatment in a specialised medical establishment in Moscow had been settled.
27. On 27 August 2004 the applicant left IZ-77/4 in order to serve his sentence.
28. On 29 August 2004 the applicant was placed in the Saratov Region correctional colony IK-33, where he received outpatient treatment. He was examined by medical specialists on a daily basis and received etiotropic, pathogenetic and symptomatic therapy.
29. On 30 August 2004 the applicant’s grandfather challenged the applicant’s transfer to the correctional colony in the Saratov Region before the Department supervising compliance with lawfulness and respect for human rights by the authorities and institutions of the Department for the Execution of Sentences. He referred to the applicant’s state of health and the alleged impossibility of adequate medical treatment in medical establishments within the prison system.
30. On 9 September 2004 the applicant was admitted to the surgical unit of Saratov Region prison hospital OTB-1.
31. On the same day the applicant’s defence counsel requested the head of the Department for the Execution of Sentences in the Saratov Region to carry out medical examination of the applicant necessary for deciding the issue of relief from serving his sentence on account of serious illness.
32. On 23 September 2004 the head of the Department for the Execution of Sentences in the Saratov Region replied that the applicant’s state of health was satisfactory, that there were no grounds for emergency surgery, and that the issue of elective surgery would be decided upon following the applicant’s examination by medical specialists.
33. On 2 November 2004 the applicant underwent elective surgery for the removal of two bullets from the soft tissue of his right thigh and the sacral region.
34. On 3 November 2004 the applicant’s defence counsel asked the governor of Saratov Region prison hospital OTB-1 to carry out the medical examination of the applicant necessary for deciding the issue of his relief from serving his sentence on account of serious illness.
35. The post-operative period being uneventful, on 10 November 2004 the applicant was discharged from the Saratov Regional prison hospital OTB-1. He was transferred to Saratov Region remand prison IZ-64/1.
36. On 12 November 2004 the applicant’s father complained to the Saratov Regional Prosecutor about the applicant’s transfer from prison hospital OTB-1 to remand prison IZ-64/1. He asked that the applicant be transferred back to prison hospital OTB-1 for his subsequent treatment.
37. After removal of the post-operative sutures, on 13 November 2004 the applicant complained of fever, excessive sweating, dizziness and pain. In the absence of a surgeon among the staff of the remand prison’s medical unit the applicant was transferred back to Saratov Region prison hospital OTB-1, where he stayed until his discharge on 9 December 2004, when he was transferred to remand prison IZ-64/1.
38. On 18 December 2004 the applicant was placed in Saratov Region correctional colony IK-7.
39. On 29 December 2004 the applicant’s defence counsel challenged with the head of the Federal Service for Execution of Sentences the applicant’s transfer to Saratov Region correctional colony IK-7, which had deprived him of the possibility of receiving a complete course of postoperative treatment in prison hospital OTB-1.
40. On 12 January 2005 the expert medical commission examined the quality of the medical assistance provided to the applicant and came to the conclusion that the applicant had received comprehensive examinations and treatment in compliance with the standards for provision of specialised medical assistance. The decision read as follows:
“... Complaints: moderate pain in right and left ankle joints, restriction of function in these joints, pain in left knee joint on activity, restriction of function in this joint due to pain. Presence of scar tissue on the medial surface of the right thigh.
Results of objective examination: [various observations based on an applicant’s external inspection and radiographic and neurological examinations of the applicant (by a neurologist and a neurosurgeon) and the results of CT, MRI and EMG examinations carried out on 14-15 December 2004)].
Diagnosis: Effects of a gunshot wound to the right thigh and the lumbar-sacral region of June 2003. ... Wrongly healed fracture of right ankle, a healed fracture of the left ankle. Effects of closed craniocerebral injury with astheno-neurotic syndrome.
The patient was subjected to comprehensive examination and treatment in accordance with the standards for provision of specialised medical assistance.
Recommended: walking with the help of a crutch, with the weight on the left [foot]. No further in-patient examination and treatment are required. ...”
41. On 18 August 2005 the applicant was again admitted to Saratov Region prison hospital OTB-1, where he was diagnosed with deforming osteoarthrosis of the right ankle. He was provided with treatment appropriate to his condition.
42. On 8 September 2005 the applicant again underwent an expert medicosocial examination and was found to have no signs of persistent disability. The applicant’s continued classification as disabled, therefore, was not required.
43. On 7 October 2005 the applicant was discharged from Saratov Region prison hospital OTB-1.
44. On the same day he was admitted to correctional colony IK-33.
45. On 9 October 2005 the applicant was placed in Saratov Region correctional colony IK-7.
46. On 14 November 2005 the applicant was transferred back to correctional colony IK-33.
47. From 16 November 2005 up to his release the applicant was held again in Moscow remand prison IZ-77/1, where he was further diagnosed with, and treated for, osteochondrosis of the thoracic spine, lumbar osteochondrosis and astheno-neurotic syndrome.
48. On 23 January 2006 the applicant’s parents applied to the governor of Moscow remand prison IZ-77/1 asking for the applicant’s transfer back to prison hospital OTB-1, without success.
49. On 18 July 2006 the applicant was released from prison.
50. The federal law on the detention of persons suspected of and charged with criminal offences (Federal Law no. 103-FZ of 15 July 1995) provides that inmates are entitled to medical assistance (section 17). If an inmate’s health deteriorates, the medical officers of the remand prison are obliged to examine him promptly and inform him of the results of the examination in writing. If the inmate requests to be examined by staff of other medical institutions, the administration of the detention facility is to organise such an examination. If the administration refuses, the refusal can be appealed against to a prosecutor or court. If an inmate is suffering from a serious disease, the administration of the remand prison is obliged immediately to inform the prosecutor, who can carry out an inquiry into the matter (section 24).


ITEMID: 001-4936
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: W.G. S. AND M.S.L. S. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant is a citizen of Austria and of the United States of America. He was born in Hungary in 1935 and is currently living in London, England.
The second applicant, the first applicant’s son, is a British national, born in 1962 and living in London.
Both applicants are represented before the Court by Isadore Goldman, Solicitors, London, and by Mr J.P. Gardner, a lawyer practising in London.
A.
The applicants were directors of the Kensington Property Management Ltd (Kensington), which was responsible for managing various companies operating in the property investment sector. As a result of the property collapse from 1989 onwards, Kensington’s various sources of property-based income suffered and it ceased trading in January 1993. Kensington was placed into Creditors’ Voluntary Liquidation on 17 February 1993.
The management functions of Kensington were thereafter carried out by Westminster Property Management Ltd (Westminster) of which the applicants became directors on 13 February 1990. In 1994 Westminster agreed a schedule of payments of outstanding income tax but as trading conditions continued to deteriorate the agreed schedule of conditions could not be met and on 15 August 1994 the Inland Revenue presented a winding up petition to the court and a winding-up order was made on 26 October 1994.
The Secretary of State for Trade and Industry subsequently appointed an Official Receiver who became Liquidator on an interim basis. As such, he had various obligations under the provisions of the Insolvency Act 1986 (“the 1986 Act”) to look into the affairs of Westminster and in particular its causes of failure.
The applicants, as well as a number of officers of companies within Westminster’s management remit, were interviewed by an Examiner from the Official Receiver’s Office in connection with Westminster’s affairs. The persons interviewed were required to give written statements.
The first applicant was interviewed on 9 January and 12 December 1995 and the second applicant on 7 February and 15 December 1995. The statements were given pursuant to the provisions of sections 131, 132 and 235 of the 1986 Act. The first applicant states that the first interview was unfair and oppressive and that the questioning was conducted in a peremptory and police-like manner. He was not advised that he had the right to have a legal adviser during interview. The first applicant signed a written statement in connection with this interview on 31 January 1995. He was accompanied by his solicitor at the second interview.
The second applicant also states that his first interview was conducted in an oppressive, intense and accusatory manner. He was not informed of his right to have his lawyer present at the interview and many of the questions put to him were not within his personal knowledge. His solicitor was present at the second interview, which was conducted smoothly, speedily and in a dignified and business-like manner.
On 24 October 1996 the Official Receiver acting on behalf of the Secretary of State issued proceedings against the applicants under the Company Directors’ Disqualification Act 1986 (“the CDDA”) asserting that they were unfit to be company directors and should be disqualified from that competence.
The proceedings were founded on a report made to the court by the Deputy Official Receiver on 23 October 1996 which drew extensively on the statements made by the applicants in interviews as well as materials which they and others produced to the Examiner acting under compulsory powers.
On 6 November 1996 a national newspaper published an article stating that proceedings had been issued against the applicants on 24 October 1996.
The disqualification proceedings were served on the applicant on 7 or 8 November 1996 and alleged, inter alia, that the applicants allowed Kensington and Westminster to continue to trade without there being any commercial prospect of the companies meeting their liabilities, misapplication of company funds and unlawful payments to directors. The applicants state that the criticism levelled against them is based on information obtained unfairly in the exercise of compulsory powers and that difficulties which Kensington and Westminster encountered are to be explained in terms of the exceptional cash flow problems due to market forces at the relevant time.
B. Relevant domestic law
Appointment etc. of official receivers under the Insolvency Act 1986
Section 399 of the Insolvency Act 1986 states:
“(1) For the purpose of this Act the official receiver, in relation to any bankruptcy or winding up, is any person who by virtue of the following provisions of this section or section 401 below is authorised to act as the official receiver in relation to that bankruptcy or winding up.
2) The Secretary of State may (subject to the approval of the Treasury as to numbers) appoint persons to the office of official receiver … .
(3) Where a person holds the office of official receiver, the Secretary of State shall from time to time attach him either to the High Court or to a county court having jurisdiction for the purposes of the second Group of Parts of this Act.
(4) Subject to any directions under subsection (6) below, an official receiver attached to a particular court is the person authorised to act as the official receiver in relation to every bankruptcy or winding up falling within the jurisdiction of that court. ...”
Company’s statement of affairs
Section 131 of the Act reads:
“(1) Where the court has made a winding-up order or appointed a provisional liquidator, the official receiver may require some or all of the persons mentioned in subsection (3) below to make out and submit to him a statement in the prescribed form as to the affairs of the company.
(2) The statement shall be verified by affidavit by the persons required to submit it and shall show ...
(e) such further or other information as may be prescribed or as the official receiver may require.
(3) The persons referred to in subsection (1) are
(a) those who are or have been officers of the company; ...
(7) If a person without reasonable excuse fails to comply with any obligation imposed under this section, he is liable to a fine and, for continued contravention, to a daily default fine. ...”
Investigation by the official receiver
Section 132 provides:
“(1) Where a winding-up order is made by the court in England and Wales, it is the duty of the official receiver to investigate
(a) if the company has failed, the causes of the failure; and
(b) generally, the promotion, formation, business, dealings and affairs of the company,
and to make such report (if any) to the court as he thinks fit.
(2) The report is, in any proceedings, prima facie evidence of the facts stated in it.”
Section 235 provides:
“(1) This section applies as does section 234; and it also applies, in the case of a company in respect of which a winding-up order has been made by the court in England and Wales, as if references to the office-holder included the official receiver, whether or not he is the liquidator.
(2) Each of the persons mentioned in the next subsection shall
(a) give the office-holder such information concerning the company and its promotion, formation, business, dealings, affairs or property as the office-holder may at any time after the effective date reasonably require, and
(b) attend on the office-holder at such times as the latter may reasonably require. …
(5) If a person without reasonable excuse fails to comply with any obligation imposed by this section, he is liable to a fine and, for continued contravention, to a daily default fine.”
Section 5 of the Perjury Act 1911
Section 5(c) of the Perjury Act 1911 makes it a criminal offence for any person knowingly or willingly to make a statement that is false in a material respect if that person is required to provide an oral declaration or an oral answer under or in pursuance of a Public General Act of Parliament for the time being in force.
The Company Directors Disqualification Act 1986 gives power for the disqualification of directors of companies who are regarded as unfit.
Section 1 reads:
"(1) ... a court may, and under Section 6 shall, make against a person a disqualification order, that is to say an order that he shall not, without leave of the court
(a) be a director of a company, or
(b) be a liquidator or administrator of a company, or
(c) be a receiver or manager of a company's property, or
(d) in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company,
for a specified period beginning with the date of the order. ...
(2) In each section of this Act which gives to a court power or, as the case may be, imposes on it the duty to make a disqualification order, there is specified the maximum (and, in section 6, the minimum) period of disqualification which may or (as the case may be) must be imposed by means of the order.
(3) Where a disqualification order is made against a person who is already subject to such an order, the periods specified in those orders shall run concurrently.
(4) A disqualification order may be made on grounds which are or include matters other than criminal convictions, notwithstanding that the person in respect of whom it is to be made may be criminally liable in respect of those matters. ...”
Section 6 provides:
“(1) The court shall make a disqualification order against a person in any case where, on an application under this section, it is satisfied -
(a) that he is or has been a director of a company which has at any time become insolvent (whether while he was a director or subsequently), and
(b) that his conduct as a director of that company (either taken alone or taken together with his conduct as a director of any other company or companies) makes him unfit to be concerned in the management of a company. …”
Rule 3 of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987 reads as follows:
“(1) There shall, at the time when the summons is issued, be filed in court evidence in support of the application for a disqualification order, and copies of the evidence shall be served with the summons on the respondent.
(2) The evidence shall be by one or more affidavits, except where the applicant is the official receiver, in which case it may be in the form of a written report (with or without affidavits by other persons) which shall be treated as if it had been verified by affidavit by him and shall be prima facie evidence of any matter contained in it.
(3) There shall in the affidavit or affidavits or (as the case may be) the official receiver’s report be included a statement of the matters by reference to which the respondent is alleged to be unfit to be concerned in the management of a company.”