ITEMID: 001-22050
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: OSMANI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Osmani Rufi, was born in 1960. He lives in Gostivar, the Former Yugoslav Republic of Macedonia. He is represented before the Court by Mr Yves Leonard, a lawyer practising in Brussels, Belgium.
At the 1996 local elections the applicant was elected mayor of Gostivar. On 14 February 1997 the Gostivar Local Council took a decision implementing section 140 of the Statute of the municipality of Gostivar on the use of flags. It provided that the Albanian and Turkish flags should be placed along with the Macedonian flag in front of the Town Hall. Other public institutions were also informed to display the Albanian and Turkish flags during public holidays.
On 14 March 1997 the Government and a political party requested the Constitutional Court to examine the constitutionality and legality of the Gostivar Local Council’s decision on the ground that neither the Constitution nor the respective law granted power to the municipalities to regulate the display of flags. On 21 May 1997 the Constitutional Court declared the request for examination of the constitutionality and legality of section 140 of the Statute of the municipality of Gostivar admissible and, by way of an interim order, suspended the validity of all ensuing decisions. The Gostivar Local Council was served with the decision on 22 May 1997.
On 24 May 1997 the applicant organised a meeting at which the Macedonian flag was not flown but the flag of the Republic of Albania was displayed and the Albanian national anthem was played. At the meeting he, inter alia, stated:
“Dear citizens of Gostivar and all Albanians from where ever you come. Your gathering demonstrates once again that we started slowly but surely to fulfil what we have promised in the electoral campaign in the field of politics, culture and economy.
...
Each Albanian, wherever he or she lives has one thought, one idea, one stance concerning the national issue, the issue of the Albanian language, the flag or the University...
This should be a clear message for all, for [the President] Gligorov, [the Prime Minister] Crvenkovski, the Constitutional Court that nobody should touch the Albanian flag. You are right [the citizens shout: “we will sacrifice our lives but not the flag”] we will sacrifice our lives but not the flag. We shall not accept any decision by the Constitutional Court which is entirely a political one, this institution which should protect the constitutionality and the legality but in fact violates the Constitution, the Constitution that they have adopted and laws which they have adopted without asking us, it is for us to decide on our own rights. It is not for them to decide.
Many troops flew the Albanian flag, i.e., Partisans’, Balists’ [Albanian movement which occupied the western part of the Former Yugoslav Republic of Macedonia during the Second World War] and other Albanian troops which were always fighting for the liberation of our territories. Our territories in [the Former Yugoslav Republic of] Macedonia are our territories, this should be acknowledged once for all and on these territories our flag shall always be flown.
...
We were not given our mandates to execute the policy of the Government [of the Former Yugoslav Republic] of Macedonia, but to do what you have wished to be done and that is certainly what we are going to do, because we were not elected by the Government [of the Former Yugoslav Republic] of Macedonia, the Parliament or the President...
The [Government’s] black hand covered with blood the University of Tetovo yesterday, their black hand wishes to cover with blood our national flag today, but they have first to think thoroughly as we are going to reply to a slap with a slap.
I gave them a clear message that as long as I am in the Gostivar Town Hall nobody shall ever touch the Albanian flag - they may go ahead, they may suspend me and the councillors of the Town Hall, but they shall never touch the flag, since we were not elected to remain quiet in our offices, today we are ready to give up our duties and offices, shall we do so?
During the election campaign I promised you that Gostivar will become an Albanian town and so it will be.
It shall [become an Albanian town] by an official display of the flag, the official use of the Albanian language and by putting up the signs of the stores in Albanian language, and [by establishing] many other institutions with other Albanian municipalities. We shall do it within the framework of the project of the regionalisation.
It should be clear that the Albanian flag is the eternal symbol of the Albanians.
Finally, I wish to thank you all and I promise you once more that we shall hold to the issue of the flag, the language, the University and to many other Albanian projects until the end, that we will soon turn them into reality notwithstanding the will of whomever, we shall abide by your political will and the only court that we shall obey eventually is the Albanian nation and nobody else.
Long live the Albanian flag”.
On 26 May 1997 the Gostivar Local Council informed the Constitutional Court of its decision not to implement the Constitutional Court’s interim order of 21 May 1997 emphasising that the removal of the flags would lead to an inter-ethnic conflict.
On 26 May 1997 a group of citizens tried to remove the Albanian flag from the front of the Gostivar Town Hall which led to a fight between the citizens. Following this, the applicant outside his competence as a mayor, organised armed shifts for the protection of the Albanian flag.
Furthermore, he also acting outside of his competence as a mayor and out of law, set up central crisis headquarters with several regional branches. A list of civilians of Albanian ethnic origin with special responsibilities was drawn up and money was allocated for different activities, such as propaganda and communication, shelters for injured people, etc.
On 6 June 1997 the applicant warned the Constitutional Court that the interim order of 21 May 1997 would lead to an inter-ethnic conflict.
On 11 June 1997 the Constitutional Court abrogated section 140 of the Gostivar Statute on the ground that the Local Council had exceeded its power when it had regulated the display of the flags by its statute as it had not been empowered to do so by the Constitution or by law.
On 9 July 1997, at around 2 a.m., the police removed the flags from the front of the Gostivar Town Hall. The Ministry of Foreign Affairs on 15 July 1997 gave, inter alia, the following account:
“...
During the searches carried out in Gostivar ... Town Hall firearms were found, for which their holders did not have a licence...”
In footnote no. 2 it was stated:
“Three armed persons, ... two in Gostivar [who were watching over the Albanian flags] were detained and the following firearms were confiscated - semi-automatic guns “Walter” without a number, calibre 7.65; Unik, model no. 51, without a number, calibre 7.65; and “TT” -33, calibre 7.62 which were found in the kitchen, the toilet and the corridor of the private office of the chairman of the Town Hall” - end of the footnote.
The report goes on:
“At around 7.30 a.m. ..., without any reason a group of 200 citizens, by use of physical violence, projectiles [rocks and stones], metal sticks and “chemical substances” [Molotovs’ cocktails and teargas] attacked the police [apparently positioned nearby the Gostivar Town Hall] and ... breached the public order and peace in the town.
The police used “chemical substances” AF-1 and AG-1 [teargas], truncheons and physical force. The public order was quickly restored, but other people from the nearby villages [who arrived] in an organised manner joined the crowed which became larger. According to our estimations, at around 3 p.m. a crowed of 7-8,000 people gathered in front of the Town Hall.
...
...at around 2.30 p.m. five persons were detained, three of whom were citizens of the Republic of Albania and all 39 bottles with Molotovs’ cocktails were found. Since [the leaders] could no longer use Molotovs’ cocktails to heat-up the crowed they started shouting: “Bosnia, Bosnia”.
At around 3.18 p.m. the first smoke bomb was thrown nearby the positions of the police, and after a while the second smoke bomb was thrown [at the police]. The visibility reduced by the smoke bombs provoked the extremists to open fire with automatic guns.
...one of the policeman was seriously injured and urgently taken to hospital.
After one hour of intensive firing from both sides, the Ministry had not received any information that anybody from the extremists or from the crowed had been killed or injured in the interim. No deaths or injuries were reported until then and later [as a result of] the request of the parents of two victims an autopsy was not ordered by the investigating judge, therefore, the possibility to clarify the circumstances (time, place, manner, etc.) surrounding their deaths was excluded.
Around 5 p.m. the firing had stopped and the police restored the peace in the town.
...the police searched the private offices of the chairmen of the Town Hall ... in Gostivar and the houses of the two “guards” of the flag in front of the Town Hall of Gostivar (two automatic guns and a big quantity of ammunition were found).
In the private office of the chairman of the Gostivar Town Hall the police, inter alia, found documents concerning the “crises headquarters and its regional branches” which were set up in case of an attempt to remove the Albanian flag. The way the headquarters were structured justifies the fear that [the people involved were ready] to put up armed resistance.
In footnote no. 9 of the report it was said:
“In one of the buildings from where it was fired on the police, large quantities of medicines and other medical equipment for an intravenous drip, analgesic drugs, antibiotics, [medicines] against dehydration, ampoules against excessive bleeding, etc, were found...” - end of the footnote.
The report further continues:
“In the Gostivar hospital 196 patients seriously or slightly injured were registered between 9 and 11 July 1997...
On 9 July 1997 seven injured persons requested medical assistance at the Surgery of the Skopje Medical Centre... On the same day nine other persons requested medical assistance at the Skopje Military Hospital ...
...”
On 9 July 1997 the police searched the applicant’s home and seized three guns and some documents, including minutes of 31 May 1997 on the set up of the central crises headquarters and its regional branches; a list of persons from different municipalities who were responsible for different tasks, i.e., communication and propaganda, shelters for injured, finances, transport and security of the flag; and a copy of the applicant’s speech delivered on 24 May 1997.
The police had requested the applicant several times to address the citizens, but the applicant had allegedly agreed to do so only after the Macedonian flag was removed from the front of the Gostivar Town Hall, the police forces withdrawn and detained persons released. At that occasion the applicant also allegedly stated that one day the Albanian flag would be flown as the official one and not only as the flag of a minority. Around 4.30 p.m. he addressed the people via a local TV station following which the riots stopped.
On 10 July 1997 the applicant was detained pending trial and on 8 August 1997 he was charged with stirring up national, racial and religious hatred, disagreement and intolerance by a public official and with a serious case of organised resistance and the non-execution of a decision or an order of a State institution. He was released on 7 October 1997.
The Gostivar Municipal Court held hearings on 11, 12 and 15 September 1997.
In addition to hearing several witnesses, the court examined, inter alia, typed and hand-written originals as well as a translation of the applicant’s speech, a video-tape of the aforementioned meeting, the minutes and other documents on the setting up of central crisis headquarters with regional branches, shelters for the injured and a list of persons who took part in those activities.
On 16 September 1997 the Municipal Court found the applicant guilty of: (a) stirring up, as a public official, national, racial and religious hatred, disagreement and intolerance for which he was sentenced to eight years’ term of imprisonment; (b) organising resistance against a lawful decision or activity of a State institution for which he was sentenced to four years’ term of imprisonment; and (c) non-execution, as a public official, of a Constitutional Court’s decision for which he was sentenced to three years’ term of imprisonment. The overall sentence was thirteen years and eight months’ term of imprisonment.
The offence of stirring up, as a public official, national, racial and religious hatred, disagreement and intolerance had been made out by the failure of the applicant, who had been an elected mayor, to inform the Local Council and the central Government that the decision to display the flags of Albania and Turkey in front of the Town Hall had been unconstitutional. He had implemented such an unlawful decision and had instructed all other public institutions to display the respective flags during the public holidays. He had refused to implement the Constitutional Court’s interim order and decision and had organised a public meeting under the motto “to defend the official use of the national flag” at which the anthem of the Republic of Albania had been played and the flag of the Republic of Albania displayed.
Moreover, at the meeting he, inter alia, had stated:
“ we shall give our lives but not our flag”, “we do not recognise the decisions of the Constitutional Court”;” “The Albanian flag was flown in front of many troops, i.e., partisans’, balists’ [Albanian movement which occupied western part of the Former Yugoslav Republic of Macedonia during the Second World War] and in front of other Albanian troops which were always fighting for the liberation of our territories. Our territories in [the Former Yugoslav Republic of] Macedonia are our territories, this should be acknowledged once and for all and on these territories our flag will always be flown”.
The court held that the applicant had called and organised the citizens of Albanian origin to protect the respective flag with their lives, thereby, he had encouraged the violent events of 9 July 1997 in which three lives had been lost, many citizens injured and considerable damage caused. He had caused a feeling of insecurity and fear among the citizens of Macedonian origin. He had been aware in advance of the serious consequences which his speech might have and had actually provoked.
There had been a connection between the meeting of 24 May 1997 and the events of 9 July 1997 as it was clear from the evidence that the set up of the central crisis headquarters, shelters for the injured, night shifts and different strategies how to defend the flag had been planned and undertaken by the applicant.
Furthermore, the two villagers who had been “on duty” to protect the flag on the night of 9 July 1997 gave evidence that a person who had identified himself as being a messenger of the applicant had asked one of them, Mr F., to be on the night shift of 8/9 July 1997 for the protection of the flag of the Republic of Albania. For this purpose he had received a proxy with the stamp and signature of the applicant. The name of the second witness Mr B. had also been put on the proxy. In the Town Hall Mr F. and Mr B. had been instructed by Mr K. from the village of Lakavica to watch over the flag until 6 a.m. and to inform the applicant in case they noticed something suspicious. Mr F. had been in a possession of a gun - “Walter”, calibre 7.65 with no licence.
The court concluded that the applicant was determined to protect the flag of the Republic of Albania despite the Constitutional Court’s decision. As an elected mayor of a town with mixed population instead of promoting an inter-ethnic co-operation and tolerance he had called the citizens of Albanian ethnic origin to resist a lawful police action and had organised armed resistance against the implementation of the Constitutional Court’s decision.
The applicant appealed to the Skopje Appellate Court. He argued that his rights to freedom of expression and freedom of assembly guaranteed by Articles 16 and 21 of the Constitution had been violated. The main reason to organise the meeting of 24 May 1997 had been to express his discontent with the Constitutional Court’s interim order of 21 May 1997. The violent events of 9 July 1997 had not been provoked by his speech and actions but by the police action. The “civil night shifts” had been organised to watch over and report if somebody or the police attempted to remove the flags.
On 5 February 1998 the Appellate Court upheld the lower court’s judgment. The sentence for having stirred up, as a public official, national, racial and religious hatred, disagreement and intolerance was reduced to four years’ imprisonment; the sentence for having organised resistance against a lawful decision or activity of a State institution was reduced to three years’ imprisonment; and the sentence for not having executed, as a public official, the Constitutional Court’s decision was reduced to two years’ imprisonment on the ground that the applicant had no previous criminal record. The applicant’s overall sentence was reduced to seven years’ imprisonment.
The court held that the applicant was not punished because he had expressed his opinion or organised an assembly, but because he, as a public official, had stirred up national, racial and religious hatred, disagreement and intolerance by his speech of 24 May 1997 addressed to the citizens of Albanian origin by which he encouraged a group of citizens to criminal activities. As a result there were public riots and disorder on 26 May and 9 July 1997. Furthermore, he, as a public official, had refused to execute the Constitutional Court’s decision and had organised resistance against a lawful decision and activity of a State institution. In particular, he had planned and set up central and regional branches of the crisis headquarters and armed shifts for the protection of the flag of the Republic of Albania.
On 12 May 1998 the Supreme Court dismissed the applicant’s appeal on points of law, holding that the lower courts’ judgments were precise, consistent and reasoned.
On 2 March 1998 the applicant availed himself of his right to submit constitutional complaint concerning the alleged violation of his right to freedom of expression.
On 8 April 1998 the Constitutional Court dismissed his complaint. The court found, inter alia, that: a) the applicant had not informed the Local Council and the Government about the unconstitutionality of the decision to display the flags of the Republics of Albania and Turkey and had implemented it; b) had not implemented the interim order of the Constitutional Court of 21 May 1997; c) at the public meeting which had been organised by him and where he delivered his speech, the Albanian anthem had been played, the flag of the Republic of Albania flown, but the Macedonian flag had not been flown; d) from the content of his speech it was clear that he had conveyed a message that the Albanian population was endangered, that it should fight to defend the flag and promised that Gostivar would become an Albanian town; e) organised armed shifts and central and regional headquarters for the protection of the flag of the Republic of Albania and planned resistance in case of an attempt for its removal; and f) prompted by the applicant’s speech and actions the citizens of Albanian origin offered armed resistance on 9 July 1997 which resulted in three lives being lost, many people injured and substantial material damage being caused.
The court, inter alia, stated:
“...
[The limits of the right to respect for freedom of expression as provided by the Constitution read as a whole, as well as, the Convention are based on] the enforcement of the principle of legality set out in Article 14 § 1 of the Constitution of the Republic of Macedonia (“No person may be punished for an action which was not considered as an offence by law, or other legislation prior to being committed, and for which no sanction has been foreseen”) together with the proscription of actions that impinge upon the rights and freedoms of others and other values guaranteed by the Constitution [that should be] proportionate to the need in a democratic society. ...this is foreseen in Article 2 of the Penal Code of the Republic of Macedonia, which sets out the basis and limits of the criminal punishment, [and] under which “The protection of freedoms and rights of peoples and of other fundamental values, and the enforcement of sanctions [that should be] proportionate to the need to prevent crime provide for the basis and definition of the legal characterisation of criminal offences and sanctions.
...
In particular, the way the applicant made a presentation in public and expressed his opinion, the words he used, the place of his appearance, his position, the aim he wished to achieve and the consequences ..., as well as, the actions he undertook before and after the protest [examined] as a whole represent an action which is directed against legal order as basis for the enjoyment of all freedoms and rights, and it matches the legal characterisation of the criminal offences of which he had been found guilty and sentenced. The circumstance that the criminal offences had been made out by way of action which at its surface appeared to be an enjoyment of the right of freedom of expression does not represent a ground to justify the applicant’s guilt concerning the criminal offences committed, as it transpires from the facts of the case that his action had resulted in loss of the very content of the public expression as guaranteed and protected by the Constitution. The reason for that, as transpires from the facts of the case, is that the applicant with his publicly expressed opinion had not given his intellectual or political stance, nor had [his action] represented a way of intellectual or political persuasion of the persons attending the assembly, but had directly called the citizens of Albanian ethnic origin to disobey or, evenmore, fight against public order, thus causing intolerance, friction and hatred among the citizens of Gostivar in the situation of already existing sensitive inter-ethnic tension, and the feeling of insecurity among the citizens of Albanian ethnic origin, as well as, among the citizens of Macedonian ethnic origin, which all together had the event of 9 July 1997 as its tragic epilogue...”
On 4 February 1999 the Parliament adopted the Amnesty Act following which the applicant was granted amnesty and dispensed from having to serve his prison sentence. He was released on 5 February 1999 after having served one year and three months.
Article 16 of the Constitution of the Republic of Macedonia guarantees the freedom of belief, conscience, opinion and public expression. Article 21 guarantees the right to peaceful assembly. Article 110 §§ 1 and 2 provide that the Constitutional Court is competent to decide on the conformity of the Government regulations and decisions with the Constitution and the laws, whereas § 3 of the same Article sets out the Constitutional Court’s competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication, conscience, opinion and public expression, political association and activities, as well as prohibition of discrimination on the grounds of gender, race, religion or national, political or social affiliation.
Article 115 provides, inter alia, that the citizens directly and through representatives participate in the decision-making in respect of the issues of local relevance. This concerns in particular: the urban planning, communal activities, culture, sport, social security and child care, nursery, primary education, basic health care and other fields determined by the respective law in the units of local self-government.
Article 319 on stirring up national, racial and religious hatred, disagreement and intolerance, as far as relevant, provides as follows:
“1. Any person who stirs up national, racial and religious hatred, disagreement and intolerance by coercion, ill-treatment, duress, who insults national, ethnic and religious symbols, or damages monuments and cemeteries, or in any other way stirs up national, racial and religious hatred, disagreement and intolerance shall be punished with one to five years’ imprisonment.
2. A person who commits the offence set out in § 1 of this section by abusing his official position or power and thereby causes riots and violence against people or huge material damage shall be punished with one to ten years’ imprisonment.”
Article 377 on the non-execution of a judicial decision, as far as relevant, provides as follows:
“...
3. Any official or person who is under a duty to execute a decision of the Constitutional Court of the Republic of Macedonia and who refuses to do so shall either be fined or punished with up to three years’ imprisonment.
4. A person who commits the offence set out in Article 377 § 3 shall be punished with one to five years’ imprisonment when the committed offence seriously impinges upon the rights of others or causes a considerable damage.”
Article 387 on organising resistance, as far as relevant, provides as follows:
“1. A person who organises other people to offer resistance or encourages them to disobey a lawful decision or an order of a State body shall be fined or punished with up to three years’ imprisonment.
2. A person shall be sentenced to from one to five years’ imprisonment if he does not execute a lawful decision or an order of a State body or ... when the offence has been committed by a leader of a group.”
Article 526 provides, inter alia, that a person sentenced to a term of imprisonment or found guilty but dispensed from having to serve a prison sentence shall have the right to be compensated for being unlawfully convicted provided that on the re-opening of the criminal proceedings against him the court decides to terminate them or the person is being acquitted.
Article 530 provides, inter alia, that a person shall have the right to be compensated for being unlawfully detained if: a) he has been detained pending trial, but the criminal proceedings against him are terminated or he is being acquitted; and b) he has already served his prison sentence but on the re-opening of the criminal proceedings against him he was sentenced to a shorter term of imprisonment, or not sentenced to a term of imprisonment.
The law provides, inter alia, that the State flag may only be displayed during the bank holidays, public celebrations, sport and cultural events and private celebrations of the citizens.
Section 44 of the Law on Local Self-Government provides that when a local council adopts a decision or regulation which contravenes the Constitution or the laws the mayor is under a duty to report this to the Government within fifteen days from the day the impugned decision or regulation is adopted.
Section 1 of the Amnesty Act of 4 February 1999 grants amnesty to all persons convicted under Articles 319, 377 and 387 of the Penal Code for having stirred up national, racial and religious hatred, disagreement and intolerance, and/or for not having executed a judicial decision, and/or for having organised other people to resistance and disobedience of lawful decisions, or orders of a State body. Section 2 provides that the prison authorities where the convict, referred to in section 1 of this Act, is serving a prison sentence shall, ex officio, start the proceedings for his liberation.
Article 113 provides that a person who has been granted amnesty shall no longer be criminally prosecuted for that offence, or shall have his or her sentence reduced accordingly, or shall be dispensed from having to serve a sentence. In addition, the judgement against him or her might be deleted from the police record.


ITEMID: 001-101310
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF TROFIMCHUK v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 11
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 4. The applicant was born in 1944 and lives in Rivne.
5. In 1980 the applicant began working as a boiler engine operator at Rivneteplokomunenergo, a municipal enterprise responsible for maintaining central heating in Rivne. In December 1998 a number of employees of Rivneteplokomunenergo, including the applicant, were transferred to Komunenergiya, a new municipal heating provider founded by the Rivne Town Administration. Subsequently, Rivneteplokomunenergo ceased its activities, was declared bankrupt and liquidated.
6. Before March 1999 the applicant's work performance was generally positive. On 12 February 1999 she successfully passed tests on work safety when operating boilers.
7. According to the applicant, she and many of her colleagues had not received the salary due to them for the period of August-December 1998 during which they had worked at Rivneteplokomunenergo. In February 1999 a number of the Komunenergiya employees met to discuss possible solutions to that problem. They agreed to form a trade union at Komunenergiya and to organise a picket. Subsequently, the applicant discontinued her membership of a trade union which had existed at Komunenergiya since 1998 and informed the management of the company that a new trade union had been established by thirty-four employees of Komunenergiya.
8. According to the Government, the employees of Komunenergiya did not form a new trade union.
9. On 22 February 1999 the applicant and two other persons, allegedly acting on behalf of the Komunenergiya staff, gave a written notice to the Mayor of Rivne which read as follows:
“We, employees of Komunenergiya, inform you that at 7.30 a.m. on 3 March 1999 [we] will picket the management of Komunenergiya, which is located at ... [for the reason of] non-payment of salary from August 1998 to February 1999.”
10. On an unspecified date the Rivne Town Administration included the information about the picket in its register.
11. On 27 February 1999 an inspection party comprising several colleagues of the applicant, including her direct supervisor and the deputy director of Komunenergiya, visited various boiler rooms, one of which the applicant worked in, in order to check compliance with safety instructions. In relation to the applicant's room, the inspectors noted that certain pieces of the boiler equipment were broken or otherwise not functioning, that such malfunctioning had not been recorded in a special log kept by boiler operators, that certain parts of boiler equipment were not in place, and that there were unauthorised objects on the boiler and in the room. They concluded that the applicant did not comply with the relevant safety instructions. On those grounds, the management issued a reprimand to the applicant on 2 March 1999.
12. On 3 March 1999 the applicant and some seventy other persons took part in a picket in front of Komunenergiya's main office. They expressed concerns that the management of Komunenergiya did not ensure timely payment of salaries and that the director had misappropriated company funds.
13. On that day, the applicant was required to be at work at 8 a.m. but came to work at 10 a.m. The applicant's direct supervisor drew up a report concerning the applicant's two hour absence from work, noting that because of her absence the applicant's colleague had had to work for two more hours after the latter's night shift.
14. On 9 March 1999 Komunenergiya lodged a claim against the applicant and K. with the Rivne Court, asking the court to rule that the picket on 3 March 1999, which the company termed a strike, had been unlawful. Komunenergiya submitted that the strike had lasted for three hours, that about seventy persons had taken part in it, and that only three persons, including the applicant, had informed it of their participation in the strike by way of a written notice dated 22 February 1999. It alleged that the persons taking part in the strike had not been authorised to represent the interests of staff and that the demands of the strikers had not been approved by the staff or provided to the management in advance. A copy of the notice of 22 February 1999 was joined to the claim.
15. The parties did not provide information concerning the outcome of Komunenergiya's claim.
16. On 10 March 1999 the applicant was dismissed from work for systematic breach of her duties of employment (Article 40 § 3 of the Labour Code).
17. On 29 March 1999 the applicant instituted proceedings in the Rivne Court seeking reinstatement in her position at Komunenergiya and recovery of salary arrears. She argued that her dismissal had been unlawful and unfounded, and that the real reason for it had been the labour dispute between Komunenergiya's management and staff concerning non-payment of salary arrears.
18. In the course of the court hearings concerning her case, the applicant stated that she had not been responsible for the issues discovered at her workplace on 27 February 1999, that she had been absent from work on 3 March 1999 because she had participated in the picket, of which the local authorities had been duly informed, and that prior to the picket she had arranged with her colleague O. that he would replace her on that day. The applicant acknowledged that she had not informed her direct supervisor of her absence in advance.
19. The representatives of Komunenergiya denied that there had been a dispute between the applicant and the company's management and reiterated that the applicant had been dismissed for systematic breach of her duties of employment, in particular because of her failure to ensure the safe working conditions in the boiler room on 27 February 1999 and because of her unauthorised absence from work on 3 March 1999.
20. On 21 June 2000 the court rejected the applicant's claim, finding that she had committed serious violations of work regulations during the short period of time she had worked at Komunenergiya. In particular, it noted that, according to the statements of the applicant's colleagues obtained during the court hearings and the documents submitted by Komunenergiya, the applicant had been responsible for the safety-related issues discovered on 27 February 1999 and that she had been absent from work for two hours on 3 March 1999 without informing management and her direct supervisor in advance. On these grounds, the court concluded that the applicant had been lawfully dismissed pursuant to Article 40 § 3 of the Labour Code.
21. The court also held that the applicant's submissions concerning a labour dispute between the management and staff were unsubstantiated, as Komunenergiya was not responsible for the non-payment of salary arrears due to the applicant for the period before she left Rivneteplokomunenergo in December 1998.
22. The applicant appealed against the judgment of the first-instance court and contested its findings of fact. She also stated that the management had been informed in advance of her participation in the picket on 3 March 1999, as on 22 February 1999 she had submitted a written notice to the local authorities.
23. On 11 September 2000 the Rivne Regional Court quashed the judgment of 21 June 2000 and remitted the case for fresh consideration. The Regional Court disagreed that the applicant's case concerned systematic breaches of her employment duties.
24. On 10 July 2001 the Rivne Court dismissed the applicant's claim on the same grounds as those given in its judgment of 21 June2000.
25. By decisions of 3 January and 13 August 2002, the Rivne Court of Appeal and the Supreme Court of Ukraine, respectively, dismissed the applicant's appeals as unsubstantiated and upheld the findings of the firstinstance court.
26. In its decision of 3 January 2002, the Rivne Court of Appeal noted that the applicant's allegation that she had been dismissed as a result of her participation in the picket on 3 March 1999 was unsubstantiated.
27. The relevant provisions of the Constitution read as follows:
“Employees have the right to strike in order to protect their economic and social interests.
The procedure for exercising the right to strike shall be established by law, taking into account the need to ensure national security, the protection of health, and the rights and freedoms of other persons.
No one shall be forced to participate or to not participate in a strike.
A strike may only be prohibited on the basis of law.”
28. The relevant extracts from the Labour Code read as follows:
“A labour contract of indefinite duration ... may be discontinued by [an employer] in the following cases:
...
(3) systematic and unjustified failure by an employee to fulfil his duties under the labour contract or staff regulations, if there were earlier disciplinary or public sanctions imposed on him ...”
“If no new disciplinary sanction is imposed on an employee within a year of the imposition of a [previous] disciplinary sanction, he is considered to have not been subjected to a disciplinary sanction ...”
29. The relevant extracts from the Act read as follows:
“Parties to a collective labour dispute are:
at an occupational level – employees (certain categories of employees) ... or a trade union, or another organisation authorised by employees [to represent their interests] and the owner of an enterprise ... or [the employer's] representative.
...
A body authorised by employees to represent [their interests] shall be the only authorised representative of employees during the time such a dispute exists.”
“A strike is a temporary, collective and voluntary cessation of work by employees (non-appearance at work, breach of labour duties) ... with the aim of resolution of a collective labour dispute.
Striking shall be an extreme means of resolution of a collective labour dispute (when all other possibilities [of such resolution] have been exhausted) if [the employer] refuses to allow the claims of employees or of a body authorised by them, or of a trade union, or of an association of trade unions or of a body authorised by them.”
“Pursuant to Article 44 of the Constitution of Ukraine employees have the right to strike in order to protect their economic and social interests.
The procedure for exercising the right to strike is established by this Act.
A strike may be commenced if conciliatory procedures have not led to the settlement of a collective labour dispute or if [the employer] avoids conciliatory procedures or does not comply with an agreement reached in the course of the resolution of a collective labour dispute.”
“A decision to announce a strike at an enterprise shall be taken by the majority of employees at a general assembly (conference) of employees or by two-thirds of delegates to the conference ... upon a request of a trade union or another association of employees, authorised, in accordance with section 3 of this Act, to represent the interests of employees. Minutes must be drawn up reflecting such a decision.
...
No one shall be forced to participate or to not participate in a strike.
A body (person) leading a strike shall inform [the employer] no later than seven days before the commencement of a strike, or no later than fifteen days if the decision to strike concerns a non-stop work process.
The owner or his representative shall inform, as soon as possible, suppliers, consumers, transport organisations, and other interested enterprises ... about the employees' decision to announce a strike.
A body (person) leading a strike shall determine [the place of the strike] in agreement with the owner or his representative.
If an assembly, meeting, or a picket takes place outside the enterprise, the body (person) leading the strike shall inform the local authority no later than three days before it takes place.”
“An application by [the employer] seeking to have a strike declared unlawful shall be considered by a court.
[It] must be considered by a court ... within seven days.
A court's judgment declaring a strike unlawful obliges persons taking part in the strike to adopt a decision discontinuing or cancelling the announced strike, and [it obliges] employees [to return to work] no later than the next day after the body (person) leading the strike is served with a copy of the court's judgment.
“Employees' participation in a strike, with the exception of strikes declared unlawful by a court, shall not be considered as a violation of work discipline and may not serve as a ground for disciplinary action...”
“Organisation of, or participation in, a strike declared unlawful by a court shall constitute a violation of work discipline.
Employees shall not be remunerated for the time during which they take part in a strike.
The time during which an employee takes part in a strike declared unlawful by a court shall not be included in the [period of his] general and uninterrupted length of service.”
30. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows:
“23. An employee may be dismissed pursuant to Article 40 § 3 [of the Labour Code] for an offence committed at work only after disciplinary or public sanctions for unjustified breach of his duties under the labour contract or staff regulations have been imposed on him.
In such cases, only the disciplinary sanctions which are envisaged by law and are still in force ... (Article 151 [of the Labour Code]) shall be taken into account...”
NON_VIOLATED_ARTICLES: 11


ITEMID: 001-71432
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: NOVOTKA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Tibor Novotka, is a Slovakian national who was born in 1963 and lives in Bratislava. He is represented before the Court by Mrs G. Zelemová, a lawyer practising in Bratislava.
On 29 February 1996 the applicant, as a member of the public, took part in a public hearing which was held before the Supreme Court (Najvyšší súd) in an unrelated matter. For his private use, the applicant intended to make an audio recording of the hearing. He was however forbidden to do so by the President of the Chamber and subsequently lodged a complaint of the prohibition with the Supreme Court.
In a letter of 2 April 1996, in response to the applicant’s complaint, the President of the Supreme Court observed that the applicant had had the chance of taking part in the hearing and thus of receiving information about the case. In his view the prohibition on recording had not injured the applicant’s right to receive and impart information.
On 25 April 1996 the applicant lodged a petition (podnet) under Article 130 § 3 of the Constitution with the Constitutional Court (Ústavný súd). He challenged the prohibition on recording and the response to his complaint about it and argued that they constituted a violation of his right to seek, receive and impart information guaranteed under Article 26 §§ 1 and 2 of the Constitution. The applicant also invoked Article 19 § 2 of the United Nations International Covenant on Civil and Political Rights and Article 10 § 1 of the Convention.
On 12 May 1997 the Constitutional Court found a violation of the applicant’s above rights. In its finding the Constitutional Court expressed the view that the right to seek, receive and impart information afforded legal protection also to the possibility of obtaining information actively. It was for each individual to decide how he would exercise the said right and whether, in exercising it, he would apply technical means of audio or video recording in order to store, process and disseminate the information obtained.
On the one hand it was true that taking measures in order to secure the orderly conduct of court proceedings was within the discretionary power of the president of the court’s chamber. However, on the other hand, to forbid recording which did not disturb the course of the hearing would exceed such discretion. In the present case there was no indication or allegation that the applicant’s intended recording would disturb the hearing. There was therefore a violation of Article 26 of the Constitution.
As to Article 10 of the Convention, the Constitutional Court observed that its application in respect of recording court hearings had not yet been tested. The lacking Convention standard had therefore to be substituted by a domestic standard. The Constitutional Court was of the view that there was accordingly a violation of Article 10 of the Convention as well.
On 11 July 1997 the applicant brought an action against the Ministry of Justice in the Bratislava I District Court (Okresný súd). On 3 November 1998 the applicant provided further and better particulars through the intermediary of a lawyer who represented him from then on throughout the proceedings.
In reliance on the Constitutional Court’s finding the applicant argued that the prohibition of recording was wrongful. He maintained that it had caused him nonpecuniary damage and claimed an amount of money by way of just satisfaction. The applicant based the claim alternatively on the State Liability Act (Law no. 58/1969 Coll.) and on the provisions of the Civil Code concerning protection of personal integrity. In the latter case the applicant also claimed an apology.
On 13 September 2000, following a hearing held on the same day, the District Court dismissed the action. In so far as the applicant invoked the State Liability Act, it was held that it guaranteed no right to compensation in respect of nonpecuniary damage. As no pecuniary damage had been asserted, the relevant part of the action was unfounded. It was further held that liability for damage caused by erroneous official conduct was governed exclusively by the State Liability Act as the lex specialis. The Civil Code as the lex generalis did not apply to it and the State did not have the standing to be sued under its provisions.
On 27 March 2001, following a hearing held on the same day, the Bratislava Regional Court (Krajský súd) upheld the part of the judgment of 13 September 2000 concerning the dismissal of the action in so far as it had been based on the State Liability Act. It concurred with the District Court’s view that the said legislation provided for no right to compensation in respect of nonpecuniary damage. The Regional Court however quashed the contested judgment as being premature and lacking adequate reasoning in so far as it concerned the applicant’s claim under the Civil Code.
In a judgment of 29 October 2001 the District Court ordered that the Ministry of Justice apologise to the applicant for the violation of his rights found by the Constitutional Court. It was held that the State, in the person of the Ministry, had the standing to be sued in the case. The prohibition of the recording constituted an interference with the applicant’s personal integrity within the meaning of Article 11 of the Civil Code, in particular with an element of his personal liberty. As found by the Constitutional Court the prohibition was wrongful, and directly causally linked to the interference with the applicant’’s wishes. In view of these considerations and the fact that the applicant was involved as a private citizen and not as for example a journalist, the gravity of the interference was diminished. The applicant challenged the judgment by an appeal disputing the interpretation of the relevant legal rules by the District Court. In particular, he maintained that his entitlement to financial compensation was sui generis, and that it was based on the violation of his fundamental right as such and that the requirement of “diminishment of dignity or position in society” therefore did not apply to his case.
On 18 June 2002 the Regional Court upheld the District Court’s judgment of 29 October 2001 fully endorsing its legal reasoning. No appeal lay against the Regional Court’s judgment and it became final and binding on 30 July 2002.
On 26 September 2002 the applicant who was represented by a lawyer lodged a complaint under Article 127 of the Constitution with the Constitutional Court. He argued that he had not received a fair trial in the proceedings in his action of 1997 in that the courts had failed to assess his claim for financial compensation in the light of all the relevant evidence. They consequently drew incorrect conclusions and arbitrarily dismissed the claim while failing to support the dismissal by an adequate reasoning.
On 13 November 2002 the Constitutional Court sitting in camera pursuant to Section 25 § 1 of the Constitutional Court Act (Law no. 38/1993 Coll., as amended) held a preliminary examination of the complaint following which it declared it inadmissible as being manifestly ill-founded. It was observed that the applicant was in fact challenging legal conclusions of general courts which did not correspond to his wishes and which the Constitutional Court had no jurisdiction to review unless contrary to constitutional principles. No such contradiction had however been established.


ITEMID: 001-23211
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: ANTOINE v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Pierre Harrison Antoine, is a United Kingdom national, born in 1979 and detained in Bexley Hospital. He is represented before the Court by Kaim Todner Solicitors, lawyers practising in the United Kingdom.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, then aged 16 years, was arrested on 3 December 1995, together with another youth D. aged 17 years in connection with the murder of Michael Earridge, aged 15. The applicant was interviewed in police custody over a period of three days. He admitted being present on the premises where the killing had taken place but denied having taken an active part. He said that he left the room on two occasions and when he returned the second time, he saw D. stabbing Michael Earridge. D. was charged with murder on 4 December 1995, the applicant on 5 December 1995.
The prosecution case was that the two had acted in furtherance of a joint enterprise and that the murder had been committed as an act of sacrifice to the devil. It was alleged that D. had plunged a knife into Michael Earridge’s chest in the presence of the applicant after the applicant had prevented the victim from leaving and had struck him. The applicant and D. were committed for trial to Inner London Crown Court on an indictment charging them with murder and, in the alternative, manslaughter. His co-accused, D., entered a guilty plea to manslaughter by reason of diminished responsibility. After consideration of medical reports, the plea was accepted by the Crown and D. was sentenced to committal to hospital under a hospital order subject to a restriction order without limit of time under sections 37 and 41 of the Mental Health Act 1983.
The applicant appeared before the Crown Court on 13 March 1997. The evidence of three psychiatrists who had examined the applicant was that he was suffering from paranoid schizophrenia. Counsel acting on the applicant’s behalf submitted that the applicant was unfit to plead or to stand trial by reason of his mental disability.
On 18 March 1997, evidence was heard before the jury from three psychiatrists (two for the defence and one for the prosecution). The trial judge, with the support of both counsel for the prosecution and for the defence, directed the jury to find that the applicant was unfit to plead or stand trial. This finding was in accordance with the R v. Pritchard case ([1836] 7 C & P 303), on the basis that the applicant was unable to instruct his legal representatives to plead to the indictment, to challenge jurors, to understand the evidence or to give evidence in his own defence. Following this finding, and in accordance with section 4A of the Criminal Procedure (Insanity) Act 1964 (the “1964 Act”), a second jury was empanelled in order to determine whether the applicant ‘did the act or made the omission charged against him’ (a “section 4A hearing”).
On 19 March 1997, counsel for the applicant submitted that the applicant should be entitled to raise the issue of diminished responsibility during the section 4A hearing. The judge made two rulings: firstly, that in order to prove that the applicant had committed the act, the prosecution must prove both the actus reus and the mens rea and, secondly, that diminished responsibility could not be raised in a section 4A hearing.
On 2 June 1997, the jury heard evidence concerning the events surrounding the killing, including the applicant’s interviews. The case followed the adversarial procedure of a criminal trial, with evidence being called by each side and subjected to cross-examination, closing speeches and a summing up to the jury. At the conclusion of the evidence, the second jury were satisfied that the applicant had committed the necessary act, and the judge thereupon made an order under the provisions of section 5 of the 1964 Act that the applicant be committed to hospital without limit of time.
On 19 April 1999, the applicant was granted leave to appeal. On 29 April 1999, the Court of Appeal dismissed the appeal but certified that the case raised a point of law of general public importance, namely, whether it was open to a person found unfit to plead, and who was subject to a trial of the facts on a charge of murder under section 4A, to raise the defence of diminished responsibility. The House of Lords granted leave to appeal on 26 July 1999.
On 30 March 2000 the House of Lords ruled that the prosecution only had to prove the actus reus and not the mens rea in a section 4A hearing. The only time when mens rea might become relevant would be where there is “objective evidence which raises the issue of mistake or accident or self-defence, then the jury should not find that the defendant did the act unless it is satisfied beyond reasonable doubt on all the evidence that the prosecution has negatived that defence”. Their Lordships also ruled that the statutory defence of diminished responsibility could not be raised in a section 4A hearing. This decision was taken principally because of the effect of the wording of section 2 of the Homicide Act 1957, which established this statutory defence as being available only as an alternative to a liability for murder. Once unfitness to plead has been determined, the trial cannot proceed, the defendant can no longer be ‘liable to be convicted of murder’, and that defence is no longer available.
Lord Hutton, in giving the leading judgment, commented:
“The purpose of section 4A, in my opinion, is to strike a fair balance between the need to protect a defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea. The need to protect the public is particularly important where the act done has been one which caused death or physical injury to another person and there is a risk that the defendant may carry out a similar act in the future. I consider that the section strikes this balance by distinguishing between a person who has not carried out the actus reus of the crime charged against him and a person who has carried out an act (or has made an omission) which would constitute a crime if done (or made) with the requisite mens rea.”
The criminal proceedings are currently stayed against the applicant indefinitely, and the Crown Prosecution Service has indicated in this case an intention to revive the proceedings if, at any time in the future, the applicant should recover.
A jury cannot make a determination that a defendant is unfit to be tried “except on the written or oral evidence of two or more registered medical practitioners” (section 4(6) of the Criminal Procedure (Insanity) Act 1964). The test for the jury is whether the defendant is able to plead to the indictment, whether the defendant is of sufficient intellect to comprehend the course of the proceedings of the trial, so as to make a proper defence, to challenge a juror to whom he might wish to object, and to understand the details of the evidence (R. v. Pritchard [1836] 7 C. & P. 303).
On a finding of unfitness to plead “the trial shall not proceed” (section 4A(2)), and a further jury must be empanelled to determine “whether they are satisfied, as respects the count or each of the counts on which the accused was to be tried, that he did the act or made the omission charged against him as the offence” (section 4A(2)). If they are so satisfied, then “they shall make a finding that the accused did the act or made the omission charged against him” (section 4A(3)). If they are not so satisfied “they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion” (section 4A(4)).
The burden of proof is on the prosecution and, in order to prove that the defendant was guilty of doing the act charged, the prosecution must prove their case beyond reasonable doubt. A finding under this procedure is not a finding of guilt (R. v. Southwark Crown Court ex parte Koncar [1998] 1 Cr.App.R. 321, DC).
Under section 5, if the accused is found unfit to plead and the jury determines that he did the act or made the omission charged, then the court may make one of the following orders:
(a) an admission order to such hospital as the Secretary of State specifies;
(b) a guardianship order under the Mental Health Act 1983;
(c) a supervision and treatment order; or
(d) an order for the accused’s absolute discharge.
Where however the offence to which the finding relates is murder, then the court must make an admission order together with an order restricting his discharge without limitation of time. If the jury are not satisfied that the accused did the act or made the omission charged they must return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion (section 4A(4)).
If, while a person is detained under an admission order, the Secretary of State is satisfied that he can be properly tried, he may remit the person for trial (Schedule 1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, paragraph 4(1)).
Following the decision in the applicant’s case and the entry into force of the Human Rights Act 1998, the Court of Appeal gave leave to appeal to the House of Lords in the case of R. v. H. and the Secretary of the Home Department, certifying as a point of law of general public importance the question whether the section 4A procedure was compatible with an accused’s rights under Article 6 §§ 1, 2 and 3(d) of the Convention.
In the House of Lords judgment of 30 January 2003, Lord Bingham endorsed the views expressed in the applicant’s case by Lord Hutton (see above) and referring to the Engel v. the Netherlands case (judgment of 8 June 1976, Series A no. 22) in considering whether the section 4A procedure fell within the scope of Article 6 of the Convention, held, inter alia:
“16. It is first necessary to know how the issue is classified in domestic law. This test is far from decisive and rightly so, since the Convention seeks the achievement of broadly equivalent standards among the member states of the Council of Europe and such aim would be defeated if domestic rules were determinative. But this is the starting point, and it is clear that the domestic law of England and Wales does not treat the section 4A procedure as involving the determination of a criminal charge. When a finding of unfitness is made it is provided that the trial (meaning the criminal trial) “shall not proceed or further proceed”. Section 4A(2) is expressed in terms which make it clear that the task of the jury is not that carried out by a jury in a criminal trial: ... the jury have the power to acquit but they have none to convict. The jury take an oath different from that in a criminal trial. There can be no verdict of guilty. There can be no punishment. In a case such as the present, as the legislation has been amended to make clear, an order of absolute discharge may be made in the absence of any conviction and without consideration of the expediency of punishment. It is true that by virtue of section 1(4)b of the Rehabilitation of Offenders Act 1974 references in that Act to a conviction are expressed to include reference to a finding that a person has done the act or made the omission charged, but this was an Act designed to promote the rehabilitation of offenders by enabling them to live down past convictions and the obvious purpose of this provision was to give persons subject to adverse findings under section 4A the benefit of that protection. It is also true that a person found to have done the act or made the omission charged is subject, by virtue of section 1(1)b of the Sex Offenders Act 1997, to the notification requirements of that Act. But I regard it as clear, as a matter of domestic law, that this provision is designed to protect the public and not to punish the subject of the order. The non-punitive nature of the order was recognised by the Commission in Ibbotson v. the United Kingdom (1998) 27 EHRR CD 332. The registration order is analogous to a sex offender order or an anti-social behaviour order ...
17. The second Engel test, and that on which the appellant’s argument depended, directed attention to the very nature of the offence. ...
18. It would be highly anomalous if section 4A, introduced by amendment for the protection of those unable through mental unfitness to defend themselves at trial, were itself to be held incompatible with the Convention. It is very much in the interest of such persons that the basic facts relied on against them (shorn of issues concerning consent) should be formally and public investigated in open court with counsel appointed to represent the interests of the person accused so far as possible in the circumstances. The position of accused persons would certainly not be improved if section 4A were abrogated. In my opinion, however, the argument is plainly bad in law. Whether one views the matter through domestic or European spectacles, the answer is the same: the purpose and function of the section 4A procedure is not to decide whether the accused person committed a criminal offence. The procedure can result in a final acquittal, but it cannot result in a conviction and it cannot result in punishment. Even an adverse finding may lead, as here, to an absolute discharge. But if an adverse finding leads to the making of a hospital order, there is no bar to a full criminal trial if the accused person recovers, an obviously objectionable outcome if the person has already been convicted. ...
19. ... [As regarded the third Engel test] Mr Smith for the appellant accepted that he could not rely on this test, because he accepted that the orders which the court could make on a finding by the jury adverse to the accused under section 4A were none of them punitive. But the fact that the procedure cannot culminate in any penalty is not neutral. The House was referred to no case in which the European Court has held a proceeding to be criminal even though an adverse outcome for the defendant cannot result in any penalty. It is, indeed, difficult if not impossible to conceive of a criminal proceeding which cannot in any circumstances culminate in the imposition of any penalty, since it is the purpose of the criminal law to proscribe, and by punishing to deter, conduct regarded as sufficiently damaging to the interests of society to merit the imposition of penal sanctions.”
Section 2 provides for a defence of diminished responsibility to a charge of murder:
“(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind ... as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. ...
(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.
(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.”


ITEMID: 001-105353
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF LIGERES v. LATVIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 6-1
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 6. The applicants were born in 1957 and 1986 respectively and live in Rīga.
7. On 3 December 1994 the second applicant, who at the time was eight years old, was hit by a car driven under the influence of alcohol by P.S. (“the driver”), an employee of a limited liability company (“the company”). As a result the second applicant sustained serious bodily injuries: abdominal bruising with abdominal haemorrhage, rupture of the small and large intestine and liver, lung contusion, bruising and fracture of both thighs, and serious shock. She underwent numerous operations. Another person died as a result of the incident.
8. On 14 December 1994 criminal proceedings were opened in relation to the incident. On 4 January 1995 the first applicant was joined as a civil party (civilprasītājs) and on 20 June 1995 the company was joined as a civil respondent (civilatbildētājs) in those criminal proceedings. On 29 June 1995 a final charge was brought against the driver in relation to the incident.
9. On 19 July 1995 the first applicant, in her capacity as legal guardian of her minor daughter, the second applicant in the present case, submitted a civil claim in the amount of 5,968.13 Latvian lati (LVL) within the criminal proceedings to the Rīga City Centre District Court (Rīgas Centra rajona tiesa). Her civil claim consisted of the following items: LVL 63.90 for services in hospital, LVL 42.25 for rehabilitation in a sanatorium, LVL 472.50 for additional products, LVL 53 for damaged clothing, LVL 17.50 for damaged clothing during recovery, LVL 20 for consultations and visits to doctor, LVL 358.98 for transport and LVL 3,500 for disfigurement (sakropļojums).
10. On 30 September 1996 the driver’s trial began at the Rīga City Centre District Court. During that hearing the court heard statements from the driver, the company managing director, an indirect witness and the first applicant, who maintained her claim for compensation. As three witnesses to the incident failed to appear the hearing was adjourned. The district court requested that local police forcibly convey (piespiedu atvešana) the witnesses to the next hearing.
11. The next hearing was held on 14 October 1996 and only one witness was present. On that date the district court adjourned the hearing at the parties’ request, as counsel for the first applicant could not attend the hearing and had notified the court in advance.
12. The next hearing was held on 4 June 1997 and two of witnesses were forcibly conveyed, but counsel for the company was absent. The district court adjourned the hearing and noted in its decision that all witnesses not attending should be forcibly conveyed, and that counsel for the company should attend.
13. On 3 December 1997, when the next hearing was held, the driver, counsel for the company and all the witnesses failed to appear.
14. The next hearing was held on 16 March 1998 and the driver and counsel for the company were absent. The district court adjourned the hearing once more and remanded the driver in custody. The first applicant was present during all the above-mentioned hearings. The second applicant was present during all the hearings except that which took place on 3 December 1997.
15. On 8 October 1998, following a hearing held on the same date in the absence of counsel for the company, the driver was convicted and sentenced to three years’ imprisonment, suspended. The conviction was based on his confession, the testimony of the second applicant, her brother, one witness and forensic evidence. The district court did not examine the applicants’ claim for damages. In that regard it ruled as follows:
“[The first applicant] has submitted a civil claim in the amount of LVL 5,968.13, which consists of LVL 63.90 for services in hospital, LVL 42.25 for rehabilitation in a sanatorium, LVL 472.50 for additional products, LVL 53 for damaged clothing, LVL 17.50 for damaged clothing during recovery, LVL 20 for consultations and visits to a doctor, LVL 358.98 for transport and LVL 3,500 for disfigurement.
As it is not possible to make a detailed calculation of the civil claim, this issue would have to be determined by the civil courts.
Having evaluated the evidence the court, in accordance with section 307 of the Code of Criminal Procedure, leaves the civil claim unexamined.”
16. On 23 October 1998, upon the applicants’ appeal, the case was forwarded for examination to the Rīga Regional Court (Rīgas apgabaltiesa). In her appeal the first applicant contented that she had specified the incurred damage and had submitted documents to prove that. On 27 April 1999 the court adjourned the hearing due to the absence of counsel for the company. During this hearing the driver requested a lawyer, because the lawyer who had represented him up to that point was not present. On 18 April 2000 the court adjourned the hearing because the driver had requested that a lawyer be appointed. The first applicant was present at all these hearings.
17. Finally, on 9 May 2000 the regional court upheld the district court’s judgment refusing to examine the applicants’ claim for damages. The first applicant testified before the appellate court that she had specified all sums of the damage and that they were correct. She had given all the documents to her counsel, who had prepared the civil claim, which she had signed later. She admitted that a mistake in calculating the overall sum might have been made, but all the heads of damage were correct in themselves. The regional court noted the difference between the total amount of the civil claim as requested (LVL 5,968.13) and the actual sum of all damage claimed as enumerated (LVL 4,528.13). No particular expenses had been specified for the difference between those sums (LVL 1,400). The Court noted the following:
“For these sums no documents justifying damage have been submitted (such documents might not exist for damaged clothing and [as regards] compensation for disfigurement).
It can be seen that the following documents are present in the case file:
signature and application for transport in the amount of LVL 250 (in the civil claim a sum of LVL 358.98 is mentioned);
extract certifying that [the first applicant] had bought the necessary material for the operation in the amount of LVL 13 (but a sum of LVL 63.90 is noted in the civil claim);
receipt for lawyer’s services in the amounts of LVL 50 and LVL 40, but these expenses have not been noted in the civil claim at all.”
For these reasons, the regional court concluded that it was not possible to make a detailed calculation of the civil claim, as rightly found by the first-instance court. Finally, the claim was left unexamined, with a note that the civil party had the opportunity to initiate proceedings before the civil courts. The regional court’s decision took effect on 20 May 2000, as none of the parties had appealed on points of law.
18. On 9 May 2001 the first applicant, in her capacity as the second applicant’s legal guardian, lodged a civil claim against the company with the Rīga Regional Court. They submitted that the driver had been unlawfully employed as he was not capable of performing such duties because of his state of health at the material time. They claimed LVL 33,000 for medical expenses and damages for the injuries, disfigurement and psychological suffering of the second applicant caused by the incident and its consequences. In order to assess the second applicant’s state of health objectively, they requested that a medical and psychiatric expert report be commissioned and that a public prosecutor participate in the hearings. It was noted that the first applicant had attempted to reach a friendly settlement with the company for LVL 10,000, in vain. According to the applicants, in view of the company’s and the (criminal) court’s unwillingness to act in the interests of a child and in view of the protracted criminal proceedings, they had suffered additional pecuniary and non-pecuniary damage. No invoices or other documents that would prove the incurred expenses were added to this claim.
19. The Rīga Regional Court adjourned the hearing twice, first on 10 July 2001, due to the illness of counsel for the company, and second on 24 September 2001, to enable the judge to examine additional case materials that had been submitted by parties. On 5 October 2001 the applicants asked the court to request another expert report, on the second applicant’s medical care. They also asked that other witnesses be called – an expert and the second applicant’s doctor.
20. On 10 December 2001 the Rīga Regional Court examined the civil case. The applicants’ representative testified before the regional court that they have not retained the evidence about medical expenses; they only had two invoices dating from August 2001 for LVL 13.85. The regional court upheld the applicants’ claim in part and awarded them LVL 5,013.85, to be paid by the company. This amount consisted of LVL 13.85 for medical expenses and LVL 5,000 as compensation for bodily injuries.
21. The applicants appealed against that judgment and noted that the awarded sum was disproportionately low and maintained their civil claim in full. They did not complain about the lower court’s refusal to commission expert reports or to summon two witnesses.
22. On 23 May 2002 the Civil Chamber of the Supreme Court (Augstākās tiesas Civillietu tiesu palāta) upheld the applicants’ claim in part and awarded them LVL 10,013.85, to be paid by the company. The chamber increased the non-pecuniary compensation from LVL 5,000 to LVL 10,000 as the second applicant’s injuries were not only bodily injuries but had amounted to disfigurement of her body. The applicants submitted an appeal on points of law against that judgment and required that the total amount of compensation be increased to at least LVL 20,000. An appeal on points of law was also submitted by the company.
23. On 9 August 2002 the Civil Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Civillietu departaments) dismissed the applicants’ appeal on points of law and on 13 September 2001 it dismissed the company’s appeal on points of law.
24. On 29 August 2002 the first applicant submitted a writ of execution to a bailiff. The writ contained an incorrect reference to the company’s registration number. Therefore, on 29 October 2002 a new writ was issued. Two days later the first applicant submitted it to the bailiff.
25. On two subsequent occasions, a month apart, on 17 September and 17 October 2002, the Civil Chamber of the Supreme Court rejected the company’s application to pay damages in instalments.
26. Between 26 November 2002 and 30 April 2003 the first applicant received the whole debt in four instalments.
27. Between 19 September and 17 December 2002 the first applicant contacted the bailiff on three occasions with a view to enquiring about the execution of the judgment. The bailiff responded to her letters and informed about progress achieved in the enforcement.
28. On 20 March 2003 the first applicant complained to a prosecutor that the company, contrary to the decisions of the Civil Chamber of the Supreme Court, were paying damages in instalments. The prosecutor replied that the company had not acted illegally, as it had paid the whole amount, LVL 10,013.85.
29. On 4 June 2003 a superior prosecutor reviewed her further complaint. He noted that in accordance with the Law on Civil Procedure a bailiff had to submit an application to initiate administrative or criminal proceedings if a debtor had provided false information. Having reviewed the case material, that prosecutor found that the company had paid almost every month since September 2002 and therefore they had not deliberately obstructed the enforcement procedure.
30. On 19 August 2003 the first applicant lodged another civil claim against the company with the Rīga City Ziemeļu District Court (Rīgas pilsētas Ziemeļu rajona tiesa). She submitted that a private person had granted her a loan over a period of four years so that she could ensure proper care for her daughter, the second applicant in the present case. The loan had to be repaid by 31 December 2002. She did not have enough financial resources to do so and thus she was also liable to pay a contractual penalty for any delay. She claimed that the company was liable for her debt as it had not paid her damages immediately after they were awarded in the first set of civil proceedings against the company.
31. On 15 October 2003 the Rīga City Ziemeļu District Court found against the first applicant. That court refused her request for three witnesses to be summoned who could have confirmed the existence of the loan agreement, as it was not disputed by the parties. She appealed against that judgment. She required the appellate court to question three witnesses, whom she would invite herself.
32. On 13 April 2005 the Rīga Regional Court examined the case and upheld the lower court’s judgment. During the hearing, the first applicant’s representative did not request any witnesses to be summoned.
33. On 1 August 2005 the Supreme Court dismissed the first applicant’s appeal on points of law.
34. On 25 January 2002 the first applicant lodged a civil claim for child support payments against the mother of her ex-husband (“the respondent”) for her three children, including the second applicant.
35. On 17 May 2002 the Rīga City Vidzeme District Court (Rīgas pilsētas Vidzemes priekšpilsētas tiesa), composed of a single judge, S.B., examined the case and decided in favour of the first applicant. The first applicant was present at the hearing. The respondent appealed against the judgment. Her appeal was transmitted to the Rīga Regional Court in a letter dated 23 July 2002, and the first applicant was invited to submit her observations in reply by 23 August 2002. On 2 October 2002 the Rīga Regional Court quashed the judgment and found in favour of the respondent; the first applicant was present at the hearing. On 19 February 2003 the Senate of the Supreme Court, on an appeal by the first applicant on points of law, upheld the judgment of the appellate court.
36. On 15 August 2002 the first applicant submitted an appeal to the Rīga City Vidzeme District Court against the 17 May 2002 judgment, together with a request for an extension of the time-limit for her appeal. Judge B.T. registered her appeal. Her request for an extension of the time-limit was not put before a judge for decision in timely fashion. On 25 October 2002 the first applicant complained to the Rīga City Vidzeme District Court about it. That court then sent her a letter dated 4 November 2002, to the effect that a hearing on the matter would take place on the next day and that she had been notified of it. On 5 November 2002 Judge B.T., holding a hearing at which the first applicant was present, decided not to allow her appeal against the 17 May 2002 judgement, on the ground that she had been present at the hearing on 17 May, when the judgment was delivered, read out in full and the appeals procedure against it explained.
37. On 14 November 2002 the first applicant submitted an ancillary complaint about the decision of 5 November 2002 and contended that at the hearing of 17 May 2002 Judge S.B. had read out only the operative part and had stated that the full judgment would be available twenty days later. She also noted that on 7 June 2002, when she had gone to the court, the full judgment had not yet been available.
38. On 18 December 2002 the Rīga Regional Court upheld the decision of 5 November 2002, on the ground that she had been present at the 17 May 2002 hearing, and that the procedure for appeal had been explained and the date determined when the full judgment would be available. It referred to the case file, which contained the information that the judgment had been sent to the other party on 22 May 2002 and thus rejected the first applicant’s argument that on 7 June 2002 the full judgment had not yet been ready. The court noted that there were no grounds to extend the time-limit, even assuming that on 7 June 2002 the full judgment had not yet been ready, as she had not inquired about it thereafter and had waited to receive it by ordinary mail on 26 July 2002.
39. According to section 101 of the former Code of Criminal Procedure (Latvijas Kriminālprocesa kodekss), in force until 1 October 2005, a civil claim could be submitted by an individual who had suffered damage as a result of crime. A civil claim could be submitted when criminal proceedings had been opened, during the preliminary investigation and to the court prior to the court’s investigation. It could be brought against an accused or a person materially liable for the acts of the accused.
40. Section 307 read as follows:
“Upon delivery of a convicting judgment the court shall satisfy the civil claim fully or in part, or dismiss it, depending on whether or not the basis and the amount of the civil claim have been proved.
In exceptional circumstances, when it is not possible to perform a detailed calculation of the civil claim without adjourning the proceedings or without additional documents, the court in a convicting judgment may recognise the victim’s right to receive redress for his/her claim and forward the claim for determination of its amount in civil proceedings.”
41. Under section 308, paragraph 2 if a civil claim in the criminal proceedings had been left unexamined, the victim had a right to lodge the claim in civil proceedings.
42. Pursuant to section 241, adjudication of a case in a hearing was to be commenced within twenty days (in exceptional cases within a month) of the date the case is received at the court. A case could only be adjudicated in the absence of the accused if he was not in the country’s territory and was evading proceedings (section 247). Finally, under section 253 a case could be adjudicated in the absence of a civil respondent.
43. According to section 7, paragraph 1 of the Law of Civil Procedure (Civilprocesa likums), in force since 1 March 1999, claims for pecuniary or non-pecuniary damages in criminal matters can be brought before civil courts if they have not been submitted or adjudicated within criminal proceedings. Under section 96, paragraph 3 a judgment adopted in criminal proceedings is binding in civil proceedings to the extent that it concerns the crime perpetrated and the liability of the perpetrator.
44. Pursuant to section 204, a judgment is executed upon its entry into force, except in cases where it is to be executed without delay. Under section 205, paragraph 1, part 4 the court can, at the request of one of the parties, order that a judgment be executed without delay in cases concerning compensation for disfigurement or other injury to health. Such a decision must be expressly contained in the writ of execution (section 538). In accordance with section 541, the court draws up a writ of execution after the judgment’s entry into force; in cases of immediate execution this must be done immediately after delivery of the judgment. It further provides that a court issues the writ of execution to the creditor upon request. Under section 556 the enforcement procedure is commenced following a ten-day period for voluntary execution.
45. Under section 632, paragraph 1, a bailiff’s actions concerning enforcement can be appealed against by submitting an application to a district (city) court within ten days of the impugned actions.
46. With regard to trial, section 10 provides that parties exercise their procedural rights in adversarial proceedings, including by providing explanations, submitting evidence, and questioning witnesses and experts. Under the rules of evidence contained in section 94 the court allows only relevant evidence. Under section 199 a judge delivers the judgement in a courtroom, reads it out and explains its contents, the procedure and the time-limits for appeal. Under section 208 a copy of the judgment is sent to the absent party.
47. With regard to appellate proceedings, under section 415 an appeal must be submitted to the first-instance court within twenty days of the delivery of its judgment. After checking that the appeal complies with all requirements, a judge of the first-instance court informs the other party without delay and sets a time-limit for their observations in reply. After expiry of the time-limit for appeal, the judge sends the case materials, together with any appeal, to the appellate court without delay (section 422). Under sections 423-242 the other party has a right to submit their observations or counter-appeal (pretapelācijas sūdzība) directly to the appellate court within thirty days of receiving an appeal submitted by the first party.
48. Under section 15 of the Law on Bailiffs (Tiesu izpildītāju likums), in force since 1 January 2003, sworn bailiffs bear disciplinary, civil and criminal liability for their activities.
49. In particular, sworn bailiffs are under an obligation to insure themselves against possible risk of loss related to their professional activities (section 33). Any damage caused by a sworn bailiff’s activities performed while fulfilling his official duties, irrespective of disciplinary or criminal liability, should be covered by an insurance policy (section 39). Claims for losses shall be brought to the regional court under whose supervision the sworn bailiff is.
50. With regard to disciplinary liability, sections 53 and 54 provide that the Latvian Council of Sworn Bailiffs and the Minister of Justice can initiate disciplinary proceedings against a bailiff. They can do so, inter alia, upon a complaint received from an individual.
51. The relevant sections of the Civil Law, which was adopted on 28 January 1937, as in force at the material time, read as follows:
“Every wrongful act as such shall give the person who has suffered damage the right to claim compensation from the wrongdoer, in so far as he or she may be held culpable of such an act.
Note: The term act is used here within the widest meaning, including not only acts, but also failure to act, that is, inaction.”
“All damage that is not incidental shall be compensated for.”
“Everyone shall have a duty to compensate for damage he or she has caused through his or her acts or failure to act.”
52. Under section 1 of the Law on Disciplinary Responsibility of Judges a judge may be subject, inter alia, to disciplinary responsibility for intentional violation of the law during the adjudication of a case, failure to perform his or her duties of employment, dishonourable actions and administrative violations.
53. In accordance with section 13, paragraphs 5 and 6 of the Law on the Judiciary a judge shall not be financially liable for damage incurred by a person who participates in a case, as a result of an unlawful or unfounded judgment of a court. In cases provided for by law, damages shall be paid by the State. A person who considers that a judgment of a court is unlawful or unfounded may appeal against it in accordance with the procedures provided by law, but may not make a claim in court against the judge who has adjudicated the matter.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1