ITEMID: 001-58782
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF DEWICKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award
JUDGES: Matti Pellonpää
TEXT: 9. The applicant was born in 1911.
10. On 18 February 1991 she requested the Polish Telecommunications Office in Wroclaw (Telekomunikacja Polska) to enter into a contract to provide her with telecommunication services and to install a telephone line in her apartment, submitting that it was justified in view of humanitarian reasons such as her old age and disability (in particular, the fact that her mobility, sight and hearing were seriously impaired). She maintained that a total inability to communicate with the outside world in case of emergency was endangering her life.
11. On 19 March 1991 the office replied that at the current stage of development of its services, installing a telephone line in her apartment was technically impossible, although (time and progress in the necessary works permitting) the request would be granted in the near future.
12. Since no such contract had been concluded between the parties by spring 1993, on 19 June 1993 the applicant sued the Polish Telecommunications Office in Wroclaw in the Wroclaw-Fabryczna District Court (Sad Rejonowy), seeking a judgment ordering the defendant to enter into a contract for the provision of telecommunication services with her and to install a telephone line in her apartment. She also requested the court to exempt her from court fees and grant her legal assistance. In that respect she relied on a medical certificate describing her state of health.
13. On 24 June 1993 the court, finding that the Wroclaw-Krzyki District Court was competent to deal with the applicant’s claim, referred her case to the latter court. The case was registered with the Civil Division of that court on 19 July 1993. On 20 July the court ordered the applicant to adduce, within seven days, evidence in support of her request for exemption from court fees and legal assistance.
14. On 3 August 1993 the Wroclaw-Krzyki District Court granted the applicant a general exemption from court fees and legal assistance. Later, on 13 August 1993, it served the statement of claim on the defendant company, ordering it to submit a reply within seven days.
15. On 6 September 1993 the trial court listed the first hearing in the applicant’s case for 12 October 1993. During the hearing, the court established that a similar claim had been lodged by a person living in the same building as the applicant and registered under file no. IC 214/93 with the Civil Division of the Wroclaw-Sródmiescie Court. Apparently, that court had already ordered in those proceedings that expert evidence be obtained to establish whether it was technically possible to install a telephone line in the building. Considering that such expert evidence might be relevant for the outcome of the applicant’s case, her lawyer requested the court to stay the proceedings. On 20 October 1993 the defendant’s lawyer lodged a similar request with the court. On 28 October the court ordered that the proceedings be stayed until the termination of the case no. I C 214/93.
16. In that latter case, on an unspecified date, the Wroclaw-Sródmiescie District Court obtained a report from M., a telecommunications expert, according to whom it was technically possible to install a telephone line in the building. On 28 October 1994 the court gave judgment.
17. On 10 March 1995 the applicant sent a letter to the Wroclaw-Krzyki District Court, requesting it to proceed with the determination of her claim. She also stated that it was high time that her claim was decided as it had been submitted for adjudication in 1993 and that both her age (she was eighty-four at the time) and the state of her health called for a speedy resolution of the proceedings. The court deemed her letter to be a request for the proceedings to be resumed, to which it gave effect on 20 March 1995.
18. On 11 May 1995 the court held a hearing. During that hearing the court decided to obtain evidence contained in the case-file of case no. I C 1280/94. That case-file comprised material relating to a similar claim lodged by L.W., the applicant’s grandson, who lived in the same building as she did. The court further ordered that evidence from L.W. be heard and adjourned the trial to 22 June 1995.
19. After the trial date, on 28 June 1995, the court ordered that the material contained in the case-file of case no. IC 214/93 be obtained and taken into consideration.
20. On 3 July 1995 the Wroclaw Town Social Welfare Office (Miejski Osrodek Pomocy Spolecznej) issued a decision granting the applicant the so-called “domiciliary services” (uslugi pielegnacyjne) in view of the fact that she suffered from sclerosis, her sight and hearing were seriously impaired, she was unable to attend to herself and needed care from third persons.
21. On 11 August 1995 the court ordered that the applicant’s lawyer submit, within seven days, a reply to a pleading filed by the defendant on an unspecified date. Later, on 11 September 1995, the court issued a reminder to the lawyer, ordering him to submit the reply in question within three days.
22. On 15 September, 20 November and 4 December 1995 the court made orders relating to certain - unspecified - procedural issues.
23. On 19 January 1996 the court took evidence from the applicant at her home as it considered that, given her age and disability, she was unable to appear before it. Apparently, the court encountered certain difficulties in communicating with the applicant. A few days later, on 23 January 1996, the court ordered the applicant’s lawyer to submit a medical certificate stating whether the applicant was able to understand and lodge pleadings in her case.
24. On 4 March 1996 the court ordered that evidence from an expert in telecommunications be obtained in order to establish whether it was technically possible to install a telephone line in the applicant’s apartment. The expert submitted his report to the court on 16 April 1996. He concluded that even though installing a telephone line in the applicant’s apartment had been technically possible since as early as 1994, she had failed to comply with certain formal requirements for persons wishing to enter into a contract for telecommunication services, which had resulted in her being ineligible to enter into such a contract. In the expert’s view, the applicant had not submitted documentary evidence demonstrating that priority should have been given to her application for the provision of telecommunication services. Moreover, at the relevant time the Polish Telecommunications Office in Wroclaw had had to deal with many similar requests lodged prior to that of the applicant.
25. A copy of the report was served on the applicant on an unspecified date. Subsequently, on 10 May 1996, the court listed a hearing for 8 August 1996.
26. On 10 August 1996 the applicant filed a motion with the court, challenging the impartiality of the expert. She submitted that the expert was a permanent employee of the defendant and had, therefore, an interest in supporting the arguments of her opponent. She requested the court to reject the expert’s report and order that fresh evidence be obtained from another, objective expert. In the applicant’s opinion, the expert (who had been appointed at her expense) had manifestly violated basic principles of professional conduct and payment of the fee for preparing his report had not been justified. The court should, therefore, either order the expert to pay back the fee or appoint another expert at its own expense.
27. On 19 August 1996 the court ordered the applicant’s lawyer to submit a medical certificate stating whether the applicant was able personally to give statements to and file motions with the court.
28. The next hearing was held on 31 October 1996. On that day the court ordered that fresh evidence from another expert be obtained, but at the applicant’s expense. On 14 January 1997 the court requested experts at the Institute of Telecommunications and Acoustics of Wroclaw Technical University to prepare a report within one month.
29. On 21 February 1997 the experts from the Institute submitted their report to the court. They concluded that during the period from June 1993 to 12 February 1997 installing a telephone line in the applicant’s apartment had been technically possible and, consequently, the defendant had had no reason for not entering into a contract for the provision of telecommunication services with the applicant.
30. Later, on an unspecified date, the applicant filed a pleading with the court, amending the statement of claim. On a further unspecified date the court served a copy of her pleading on the defendant.
31. On 26 May 1997 the court held a hearing but adjourned the proceedings to 14 July 1997. However, in July 1997 a massive flood inundated the south-west of Poland, severely affecting Wroclaw and, as a result, the proceedings in the applicant’s case were stayed ex lege on an unspecified date.
32. On 18 August 1997 the Wroclaw-Krzyki District Court held a hearing and gave judgment dismissing the applicant’s claim. The applicant appealed on 9 September 1997 to the Wroclaw Regional Court (Sad Wojewódzki).
33. An appellate hearing was held on 21 January 1998. The court gave judgment the same day, granting the applicant’s claim. Shortly afterwards, the applicant requested the appellate court to provide her with an enforcement order. The court informed her that she should lodge her motion with the court of first instance, which was competent to keep the records of the case in its archives and, if requested, provide the parties to the proceedings with a copy of the final judgment, together with an enforcement order.
34. Subsequently, on an unspecified date, the case-file was transferred to the Wroclaw-Krzyki District Court. It was received at the court’s registry on 2 April 1998.
35. In the meantime, on 16 March 1998, the applicant had requested the Wroclaw-Krzyki District Court to provide her with an enforcement order. As of 20 March 1999, she had not received that order.
36. Section 6 of the Code of Civil Procedure, which sets out a general principle known as the “expedition of civil proceedings” (zasada szybkosci postepowania), provides:
“ The court shall counteract delays in proceedings and shall - insofar as it is possible [to do so] without prejudicing the [proper] elucidation of the case - endeavour to determine the case at the first hearing held.”
37. Section 7811 of the Code of Civil Procedure, contained in Book Two, entitled “Enforcement proceedings”, provides as follows:
“ The court shall examine a motion for an issue of an enforcement order promptly; [such a motion] shall be examined within three days from the date on which it has been lodged with the court.”
38. Before a creditor can institute enforcement proceedings against a debtor, he or she must, as an indispensable statutory prerequisite, obtain a court order of enforcement (Sections 776 and 883 of the Code of Civil Procedure). In practice, a court issues such a decision by stamping a copy of a final judgment with the set text of the order, which must be followed by the signature of a judge. No court session is held to examine a motion for the issue of an enforcement order.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-106408
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MÜLLER v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Mr František Müller, is a Czech national who was born in 1966 and is currently serving a prison sentence in Horní Slavkov (Czech Republic). He is represented before the Court by Mr D. Strupek, a lawyer practising in Prague.
On 2 April 1998 the Munich I Regional Court found the applicant guilty of aiding and abetting murder. The court held that on 10 March 1995, a certain D.P. and the applicant had entered a jewellery shop and that D.P. had taken a shop assistant to another room and shot him dead. The applicant was given a mandatory sentence of life imprisonment. D.P. was tried in the Czech Republic and sentenced to thirteen and a half years’ imprisonment.
The applicant was initially serving his prison sentence in Straubing Prison in Germany. He could work, move freely in the building for most of the day, freely interact with any of the other 400 prisoners, make an appointment with a psychologist, psychiatrist or social worker at any time, follow vocational courses and study programmes, engage in outdoor exercise for up to three hours a day or more, a wide range of sports activities were available to him, and his cell was ventilated and dark at night. He was entitled to apply for conditional release after serving fifteen years, that is, on 3 May 2012.
On 4 December 1998 the Munich Aliens Office issued an administrative expulsion order against the applicant.
On 12 November 2007 the Ministry of Justice of Bavaria requested the Czech Republic to take over the execution of the applicant’s sentence. The applicant did not give his consent to his transfer. The Czech Ministry of Justice, however, agreed to the transfer.
On 18 August 2008 the Prague Regional Court (krajský soud) validated the German judgment regarding the applicant’s conviction and converted his sentence to fifteen years’ imprisonment. It held that, despite the applicant’s objection to the transfer, all the conditions of the Convention on the Transfer of Sentenced Persons, having regard to the Additional Protocol, had been met. It noted that at the time of the commission of the crime a sentence of more than fifteen years’ imprisonment could have been given under the Czech Criminal Code only, inter alia, on the condition that the possibility of the offender’s rehabilitation was particularly remote. Based on the available evidence, it held that this condition had not been met and thus a sentence of imprisonment of more than fifteen years would not be compatible with Czech law.
The Prague Regional Prosecutor (krajský státní zástupce) appealed against the decision, requesting the imposition of a sentence of twenty-five years’ imprisonment because of the exceptional degree of danger to society posed by the applicant’s crime.
On 10 October 2008 the Prague High Court (vrchní soud) quashed the Regional Court’s judgment and ruled that the applicant should continue to serve his sentence of life imprisonment without any conversion. It held that the Regional Court had not been entitled to consider whether all the conditions for a life sentence had been met, but only to determine whether under Czech law the sentence imposed by the foreign court was at all possible for the crime in question. As it found that the Czech Criminal Code generally provided for a sentence of life imprisonment for murder, it held that that sentence must continue to be served in the Czech Republic.
On 12 February 2009 the Constitutional Court (ústavní soud) dismissed a constitutional appeal by the applicant as manifestly ill-founded. It held that Czech courts could alter a foreign sentence only if the sentence was not envisaged at all under Czech law for the crime in question.
On 15 April 2009 the applicant was transferred to the Czech Republic and taken into detention pending a court ruling on the execution of his sentence.
On 19 June 2009 the Regional Court ruled that the applicant should serve his sentence in a secure prison (věznice s ostrahou). It held that under the Convention on the Transfer of Sentenced Persons, the penal position of sentenced persons could not be aggravated by their transfer and that this also applied to conditions of detention. Consequently, the applicant could not serve his sentence in a prison with heightened security (věznice se zvýšenou ostrahou) as would normally be the case for prisoners sentenced to life imprisonment.
The applicant appealed, arguing that his penal position would be aggravated because the conditions of detention in a Czech secure prison were much harsher than in Straubing Prison, where he had served his sentence before being transferred.
On 2 September 2009 the High Court upheld the decision. It held that any disadvantages of a Czech secure prison compared to Straubing prison were offset by the advantages of serving the sentence in the applicant’s home country, where his mother tongue was spoken and where he had better possibilities of visits.
Since then the applicant has served his sentence in Horní Slavkov Prison in a section for life-sentenced prisoners. In that prison he allegedly has not been offered any employment; he must spend twenty-three hours a day in his cell or one room on the same floor; he is allowed only one hour, or exceptionally two, of outdoor exercise daily in a very small area; he is able to interact only with two other life-sentenced prisoners; his access to a psychologist or psychiatrist is limited; he cannot follow any vocational or study courses; his cell is lit twenty-four hours a day and it is not possible to open a window in his cell; and there is no possibility of sports activities except for table tennis in summer.
The applicant lodged a constitutional appeal, disagreeing, inter alia, with the advantages of serving his sentence in the Czech Republic noted by the High Court. He argued that he had already become accustomed to a German environment, was fluent in German, was visited by people from the outside and could receive parcels without any problem. In comparison, in the Czech Republic he was in contact only with his mother, who, however, lived in Ostrava, which was more than 500 km away from his prison.
On 30 June 2010 the Constitutional Court dismissed his constitutional appeal as manifestly ill-founded.
Under Article 29 § 2 of the Criminal Code as in force in 1995, an extraordinary sentence of between fifteen and twenty-five years could be imposed by a court only if the degree of danger to society posed by the offender’s crime was very high and the possibility of rehabilitating the offender was regarded as remote.
Under Article 29 § 3, a life sentence could be imposed on an offender who had committed murder where:
(a) the degree of danger posed by such a crime to society was extremely high because of the particularly contemptible manner in which the crime was committed, or a particularly contemptible motive on the part of the offender, or a particularly serious result of the crime for which it was difficult to compensate, and;
(b) the imposition of such a sentence was required for the effective protection of society, and;
there was no hope that the offender could be rehabilitated by a prison sentence of between fifteen and twenty-five years’ duration.
Under Article 88 § 5 of the Criminal Code a life-sentenced prisoner is eligible for parole after serving a minimum of twenty years of his sentence.
Under Article 10 of this Convention the administering State is bound by the legal nature and duration of the sentence as determined by the sentencing State. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure must, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.
Under Article 11, in the case of conversion of a sentence, the competent authority must not aggravate the penal position of the sentenced person, and is not bound by any minimum which the law of the administering State may provide for the offence or offences committed.
Under Article 3 § 1 of the Additional Protocol, upon being requested by the sentencing State, the administering State may agree to the transfer of a sentenced person without the consent of that person, where the sentence passed on the latter, or an administrative decision consequential to that sentence, includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing State once he or she is released from prison.
Articles 7 and 8 provide:
“This Protocol shall be applicable to the enforcement of sentences imposed either before or after its entry into force.
1. Any Contracting State may at any time denounce this Protocol by means of a notification addressed to the Secretary General of the Council of Europe.
...
3. This Protocol shall, however, continue to apply to the enforcement of sentences of persons who have been transferred in conformity with the provisions of both the Convention and this Protocol before the date on which such denunciation takes effect. ...”


ITEMID: 001-61816
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF THOMPSON v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 5-3;Violation of Art. 5-5;Violation of Art. 6-1;Violation of Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: 9. The applicant was born in 1965 and lives in Durham. At the relevant time he was a Lance Corporal in the British army stationed in Northern Ireland.
10. In August 1996 he was reported to his Commanding Officer on a wounding charge, which incident had allegedly occurred in May 1996. On 21 November 1996 he was arrested on two unrelated charges of failing to attend and disobeying a lawful command. On 22 November 1996 he appeared, on the orders of his Commanding Officer, on the latter two charges and he was reduced to the ranks. On the same day he was also remanded for an abstract of evidence (see paragraph 21 below) to be compiled on a charge of wounding with intent to do grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861.
11. In early December 1996 he went missing from his unit. On 27 January 1997 he was arrested in England by the civilian police, charged with aggravated burglary and handed over to the military authorities. When it was discovered that he had been absent without leave, he was placed in close arrest in the guardroom of Catterick garrison. On 28 January 1997 he was escorted under close arrest back to Northern Ireland.
12. The Government maintained that a copy of the information pamphlet entitled “The rights of a soldier charged with an offence under the Army Act 1955” (1994 edition) would have been available to the applicant at Catterick garrison and would have been provided to him against signature of a form acknowledging receipt. Since the relevant disciplinary file was lost, the Government could not provide a copy of the form. The applicant accepted that he received a copy of the pamphlet while in close arrest in Northern Ireland and that it was likely to have been the 1994 version of the pamphlet.
13. On 30 January 1997 he appeared before his Commanding Officer who remanded him in close arrest and ordered an abstract of evidence to be compiled on the absence without leave charge with a view to that Officer applying for power to award extended detention (paragraphs 21 and 24 below). No such application was in fact made. During that hearing the applicant received a copy of the charge sheet (the absence without leave charge).
The applicant maintained, and the Government denied, that at that same meeting he was asked by his Commanding Officer whether he would be pleading guilty or not guilty and that he had indicated the former.
14. On 13 February 1997 the applicant appeared before his Commanding Officer when the latter read the charge of absence without leave and formally asked the applicant whether he pleaded guilty or not guilty. He pleaded guilty and he was awarded 28 days’ military detention. On that day he was also remanded for trial on the wounding charge.
The applicant claimed that he was not afforded the opportunity of electing trial by court-martial whereas the Government submitted that he would have been given this option by the Commanding Officer before the finding of guilty was recorded on 13 February 1997.
15. On 26 February 1997 the applicant appeared before a Magistrates’ Court in Newcastle (England) on the aggravated burglary charge and was remanded on bail until 28 March 1997. He completed his military sentence of imprisonment on 7 March 1997. He was then informed by his Commanding Officer that he was to be retained in close arrest until his trial by court-martial on the wounding charge. He was then released to open arrest on 12 March 1997 following representations by his civilian solicitor. In March 1997 the civilian prosecuting authorities discontinued the burglary proceedings. In June 1997 a notice of temporary discontinuance issued as regards the court-martial proceedings on the wounding charge. No further action on that charge has been taken against the applicant who was subsequently administratively discharged in August 1997 for reasons not related to the afore-mentioned charges or conviction.
16. The relevant domestic law and practice contained in the Army Act 1955 (“the 1955 Act”), the Rules of Procedure (Army) 1972 and the Queen’s Regulations (“QR”) are outlined in the Hood v. the United Kingdom judgment ([GC], no. 27267/95, ECHR 1999-I, §§ 20-43).
17. The relevant provisions of the Army Act 1955 which regulated court-martial procedures are set out in the Findlay v. the United Kingdom judgment (25 February 1997, Reports of Judgments and Decisions 1997-I, §§ 32-51).
18. Following the Armed Forces Act 1996 (Commencement No. 2) Order (adopted on 12 February 1997), the Armed Forces Act 1996 (“the 1996 Act”) came into force into force on 1 April 1997. Article 3 of the Order reads as follows:
“Nothing in Article 2 of this Order insofar as it relates to section 5 of and Schedule 1 [the new procedures for dealing with offences under the various Services Acts] to the Act shall have effect in relation to –
(a) any summary dealing or summary trial,
(b) any trial by a court-martial or a standing civilian court, or
(c) the hearing of any appeal by the Courts-Martial Appeal Court,
which commenced before 1st April 1997.”
19. The 1996 Act significantly amended court-martial procedures and the new system is also summarised in the Findlay judgment (at §§ 52-57) and is outlined in more detail in the case of Cooper v. the United Kingdom ([GC], no. 48843/99, §§ 15-76, ECHR 2003-XII). The references below are to the 1955 Act prior to its amendment.
20. Absence without leave is an offence under the 1955 Act, the punishment for which includes imprisonment for a maximum of two years.
21. An allegation that a person subject to military law had committed an offence had to be reported in the form of a charge to the Commanding Officer, who would investigate. When a Commanding Officer did so, he had to read and, if necessary, explain the charge to the accused. He had to either hear evidence orally himself (summary of evidence) or cause it to be reduced to writing (abstract of evidence). The latter was obligatory if it was considered that the matter could be dealt with summarily and extended detention could be awarded on any finding of guilt (see “summary punishment” below). Having heard the evidence, the Commanding Officer had to determine whether the accused was guilty or not and had either to dismiss the charge or record a finding of guilty in which case he could award one or more of the prescribed punishments.
22. If, having heard the case, the Commanding Officer considered the accused to be guilty and that he would award a punishment greater than a reprimand or a minor punishment or a punishment involving a forfeiture of pay, he could not record a finding of guilty until he had afforded the accused the opportunity to elect trial by court-martial (section 78(5) of the 1955 Act). An accused could have 24 hours to so elect. Even if an accused elected trial by court-martial immediately, the Commanding Officer gave the accused an opportunity to withdraw his election the following day and, if he did not so withdraw, the accused would be remanded for trial by court-martial. Thereafter he could only withdraw his election with the consent of the Commanding Officer (prior to remand for court-martial) or the court-martial Convening Officer (after remand for court-martial).
23. The pamphlet entitled “The rights of a soldier charged with an offence under the Army Act 1955” (1994 edition) contained the above information (“the information pamphlet”).
24. If an accused was a soldier, his Commanding Officer (not below the rank of Field Officer) could award detention for up to 28 days or, if extended powers were granted, for up to 60 days (section 78 (3)(a) of the 1955 Act and Regulation 13A of the Army Summary Jurisdiction Regulations 1972).
25. QR 6.089 provided that, following an accused’s election for trial by court-martial, a charge could not be increased in gravity before the court-martial unless evidence of a more serious offence subsequently became available. As to punishment options available to the court-martial, QR 6.121 provided as follows:
“If an accused has elected to be tried by court-martial his punishment is not for that reason to be increased. In ordinary circumstances, the court should not award a heavier punishment than that which could have been awarded summarily. However, the court sentencing him is not bound by the limits imposed on summary awards ...”
26. The information pamphlet contained the above information.
27. Section 181 of the 1955 Act set down a procedure by which an accused (a warrant officer, non-commissioned officer and a soldier) could complain to the Defence Council if he considered himself to have been wronged in any manner by his Commanding Officer. Section 180 of the 1955 Act made similar provision for complaints by officers.
28. Section 115 of the 1955 Act provided that the Defence Council and certain senior officers “may” review a finding or award emerging from a summary trial. On any such review, the reviewing body or officer could quash the finding if it considered it expedient to do so and/or could vary the award by substituting a less severe punishment.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
5-5
6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-57477
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1988
DOCNAME: CASE OF EKBATANI v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 11. The applicant, Mr. John Ekbatani, was born in 1930. He is a citizen of the United States of America and, at the time of the domestic proceedings in question, he resided at Gothenburg.
12. The applicant came to Sweden in 1978 to do certain research work at the University of Gothenburg. However, his initial plans did not come to fruition and his financial situation forced him to look for other work. In March 1981 he found a job at the Gothenburg Tramway Company (Göteborgs Spårvägar). He was, however, obliged to pass a Swedish driving test, since he only had an American driver’s licence. On 14 April 1981 he took the test but failed. This led to an angry exchange of views on 7 May 1981 between the applicant and the traffic assistant who had been in charge of the test; subsequently the traffic assistant reported the incident to the police.
13. In August 1981 the applicant was questioned by the police about the matter, and on 7 October 1981, he was charged with threatening a civil servant in breach of Chapter 17, section 1 of the Penal Code (brottsbalken).
14. During the trial hearing (huvudförhandling) before the City Court of Gothenburg (Göteborgs tingsrätt) on 9 February 1982, both the applicant and the traffic assistant were heard. On this testimony the City Court in a judgment on the same day found the applicant guilty of the charge brought against him and sentenced him to a fine of 600 Swedish Crowns (SEK). The costs of the proceedings were to be borne by the State. At the City Court the applicant was assisted by two public defence lawyers.
15. On 17 February 1982, the applicant appealed against this judgment to the Court of Appeal for Western Sweden (hovrätten för Västra Sverige) requesting acquittal as he claimed he had not committed the criminal act of which he was accused. Before the Court of Appeal, he was represented, first by a public defence lawyer and later by a private counsel.
In his first written statement of evidence to the Court of Appeal on 18 June 1982, the applicant took it for granted that a hearing would be held and requested that the traffic assistant appear in person before the Court of Appeal.
On 20 July 1982, the public prosecutor declared that he did not wish to adduce any new evidence. At the same time he applied for the case to be dealt with without a hearing in the Court of Appeal. In the event of a hearing he requested a rehearing of the testimony of both the applicant and the traffic assistant.
In a new statement of evidence of 20 August 1982, the applicant’s counsel requested that a witness be heard. The witness was to inform the Court about "the applicant as a person and his credibility". In his reply of 16 September 1982, the public prosecutor did not oppose the calling of this new witness if a hearing were to be held. However, he asked that, in that event, three other new witnesses should be heard to prove inter alia "Mr. Ekbatani’s lack of credibility and that the [traffic assistant’s] statement of the course of events on 7 May 1981 was correct".
The applicant’s defence counsel, on 27 September 1982, objected to the calling of these three new witnesses.
On 4 October 1982, the Court of Appeal informed the parties by means of a written notice that, as the case might be determined without a hearing, they were invited to file their final submissions in writing.
On 6 October 1982, the public prosecutor declared that he had no objection to the Court of Appeal’s giving judgment without a hearing. He added that, if there was a hearing, he would insist on the examination of the three new witnesses. On 19 October 1982, the applicant’s counsel stated his objection to the case being determined on the basis of the case-file, on the ground that a hearing was necessary for a thorough examination of the case. He also reiterated his objections to the calling of the witnesses called for by the prosecution. He added that, if the Court of Appeal should reach a decision on the basis of the case-file and acquit the applicant, he claimed reimbursement of his costs and expenses.
16. The Court of Appeal held no hearing and in its judgment of 12 November 1982 simply stated: "The Court of Appeal confirms the City Court’s judgment."
17. On 7 December 1982, the applicant appealed to the Supreme Court (högsta domstolen). He asked the Supreme Court either to quash the Court of Appeal’s decision and send the case back for a hearing, or to acquit him, or to remit the sentence imposed.
In support of his claims he stated:
"The case concerns the credibility of Mr. Ekbatani and of the aggrieved party. In support of his credibility, Mr. Ekbatani has requested the hearing of a person who was not heard by the City Court. The prosecutor has not objected to the hearing of the new witness by the Court of Appeal. Since the case concerns new evidence of decisive importance for the outcome of the case, the second sub-paragraph of section 21 in Chapter 51 of the Code of Judicial Procedure (rättegångsbalken) ought not to be applied. The preparatory work also indicates that great consideration should be given to the wishes of the parties even in the case of a fine and in particular to those of the accused (Nytt Juridiskt Arkiv II 1943, pp. 670 et seq.). Also the prosecutor requested the hearing of new evidence before the Court of Appeal. For Mr. Ekbatani it is of great importance that he is not sentenced without having received an opportunity to have the evidence adduced by him tested. The Court of Appeal ought to make its own assessment of Mr. Ekbatani. In addition, the holding of a hearing would not lead to any major increase in the costs of the proceedings."
On 3 May 1983, the Supreme Court held:
"The Supreme Court finds no reason to grant leave to appeal, for which reason the Court of Appeal’s judgment shall stand."
18. Under the rules on public access to official documents, contained in the Freedom of the Press Act (tryckfrihetsförordningen) and the Secrecy Act (sekretesslagen, 1980:100), the case-files from the courts involved were all available to the public.
19. According to Chapter 21 of the Code of Judicial Procedure, lower courts shall as a rule render judgment in criminal cases only after the accused has been able to defend himself at an oral hearing. Exceptions to this rule do however exist, particularly at appellate level. Thus Chapter 51, section 21 of the Code of Judicial Procedure, as applicable at the relevant time, stated that:
"the Court of Appeal may decide the case without a hearing if the prosecutor appeals only for the benefit of the accused or if an appeal lodged by the accused is supported by the opposing party.
The case may be decided without a hearing if the lower court has acquitted the accused or discharged the offender or found him to be exempted from punishment by virtue of mental abnormality or if it has sentenced him to a fine or ordered him to pay a money penalty (vite) and there is no reason to impose a more severe sanction than those mentioned above or to impose any other sanction ..."
As of 1 July 1984 - and therefore after the facts of the present case - this provision has been amended to read as follows in the relevant parts (Svensk Författningssamling 1984:131):
"The Court of Appeal may dispose of an appeal on the merits without a hearing,
1. if the prosecutor appeals only for the benefit of the accused,
2. if an appeal brought by the accused is supported by the opposing party,
3. if the appeal is plainly unfounded, or
4. if no cause exists to hold the accused legally liable, or to impose a sanction upon him, or to impose a sanction other than a fine or conditional sentence, or a combination of such sanctions.
...
If, in a case referred to [above], a party has requested a hearing, this shall take place unless manifestly unnecessary.
...
For a ruling not relating to the merits a hearing need not take place."
20. The Court of Appeal has the power to review both questions of law and of fact. However, there are certain limitations to the Court of Appeal’s full jurisdiction. Chapter 51, section 25 of the Code of Judicial Procedure (as amended by Laws 1981: 22 and 228) contains a rule proscribing reformatio in pejus in certain cases:
"In an appeal lodged by the accused, or by the prosecutor for the benefit of the accused, the Court of Appeal may not sentence the accused to a criminal sanction more severe than the one imposed by the lower court. If the accused was sentenced by the lower court to imprisonment, the Court of Appeal may order suspension of sentence, probation or placing under special care; in addition to suspension of sentence and to probation or placing under care within the social service, the Court of Appeal may impose a fine or probation coupled with imprisonment pursuant to Chapter 28, section 3, of the Penal Code. When the lower court has ordered a sanction of the kind referred to above, the Court of Appeal may impose a different kind of sanction."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79876
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: GÜNGÖR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs Pınar Güngör, is a Turkish national who was born in 1937 and lives in Ankara. She was represented before the Court by Mr K. Berzeg, a lawyer practising in Ankara. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of 102.08 square metres of land, in a plot of 700 square metres (plot no. 15/A), in Kızılay Square, in the Çankaya district of Ankara. The plot in question is situated in front of the Soysal Business Centre, of which the applicant is a co-owner.
On 22 March 1994 the applicant brought an action for compensation against the Ankara Municipality (Ankara Büyükşehir Belediyesi) before the Ankara Civil Court of First Instance. She submitted, inter alia, that the Ankara Municipality occupied plot no. 15/A illegally for the purposes of constructing a tube station in Kızılay Square. The applicant maintained that the Municipality neither conducted expropriation proceedings nor compensated her for the damage resulting from the de facto taking of her property. She requested to be paid the value of the plot in question. She also submitted an expert report dated 16 March 1994 in support of her claim. According to this report, the Municipality was in actual possession of plot no. 15/A.
The Municipality denied the allegations and argued that they had been in actual possession of plot no. 15/A since 1967. They therefore argued that the applicant’s action for compensation had to be rejected as being time-barred.
On 15 April 1994 the Ankara Municipality submitted a sketch plan to the Ankara Civil Court of First Instance according to which plot no. 15/A was situated next to two other plots of land belonging to the applicant and her co-owners and was left by the owners as an access area.
On 16 September 1994 the Ankara Civil Court of First Instance requested the Çankaya and Ankara Municipalities to submit information on whether plot no. 15/A was used by these municipalities.
On 5 October 1994 the Ankara Land Registry Directorate informed the Ankara Civil Court of First Instance that the applicant was one of the co-owners of plot no. 15/A and that, in the registry records, it was stated that the plot was “to be expropriated”.
On 7 October 1994 the Çankaya Municipality informed the first-instance court that the applicant’s land had been used by the Ankara Municipality since 16 March 1967.
On 18 November 1994 the Ankara Municipality informed the firstinstance court that there had been a de facto interference with the applicant’s co-ownership rights to plot no. 15/A by the Municipality during the construction of the tube station in Kızılay Square.
On an unspecified date, the first-instance court ordered an expert report to be prepared in order to determine the value of plot no. 15/A.
On 8 April 1996 a committee of experts submitted a report to the Ankara Civil Court of First Instance. According to the experts’ report, the Municipality was in actual possession of plot no. 15/A although the applicant was identified as the co-owner of the plot in the land registry records. The experts stated that the value of the land that the applicant co-owned was 7,145,600,000 Turkish liras (TRL) (258,273 euros (EUR)).
On 17 March 1997 the Ankara Municipality informed the Ankara Civil Court of First Instance that plot no. 15/A, which was located in front of the Soysal Business Centre, had been used during the construction of the tube station with a view to ensuring the security of the surrounding area. Following the lodging of the case by the applicant, they separated the plot from the entrance to the tube station by means of a wall and restored the plot to its original state by paving it.
On 30 April 1997 another expert report was drafted. According to this report, plot no. 15/A had been used during the construction of the tube station in Kızılay Square in order to ensure the security of the neighbouring buildings. The report further indicated that the plot in question had been paved by the Municipality and that it was used as a pedestrian area.
On 7 July 1997 the Ankara Civil Court of First Instance held that the Ankara Municipality had been in actual possession of the land since 1967. It accordingly rejected the case as having been introduced outside the statutory time-limit laid down by the Expropriation Act (Law no. 2942).
The applicant appealed.
On 23 February 1998 the Court of Cassation rendered its decision. It observed that according to the local master building and settlement plan (imar planı), plot no. 15/A was used as an access area for the surrounding buildings. The Court of Cassation considered that the administration could not therefore be considered to be in actual possession of the plot. It further held that the legal reasoning of the first-instance court was erroneous since plot no. 15/A had only been used to ensure the neighbouring buildings’ security during the construction of the tube station and that there had been no interference with the plot afterwards. The Court of Cassation based its assessment on the expert report of 30 April 1997. It nevertheless agreed with the Ankara Civil Court of First Instance that the case should be dismissed and upheld the judgment of 7 July 1997, but for different reasons.
On 13 May 1998 the Court of Cassation dismissed the applicant’s request for rectification of the decision of 23 February 1998.
On 9 June 1998 the decision of 13 May 1998 was served on the applicant.
It appears from this document that the applicant is one of the co-owners of plot no. 15/A.
According to the judgment of the Ankara Civil Court of First Instance of 23 May 1977, on 24 June 1964 the Ankara Municipality brought an action against the applicant’s and her co-owners’ heirs and requested that the title to plot no. 15/A be transferred to it. The court dismissed the case.
The Municipality informed one of the applicant’s co-owners, Zeki Güngör, that plot no. 15/A was the front access area of the buildings next to the plot and that construction of a building on the plot was not possible.
The Municipality proposed that the Soysal Business Centre Directorate transfer the title to plot no. 15/A to it free of charge. It further proposed that the Municipality would, in return, construct one of the exits of the tube station in the Business Centre - which would normally cost 300,000 US dollars (USD) - free of charge.
Article 13 of Law no. 2577 on administrative procedure provides that any person who has suffered damage as a result of an act committed by the administration may request compensation from the administration. In the event of complete or partial rejection of a compensation request, or if no reply has been received within a time-limit of sixty days, the person involved may initiate administrative proceedings.


ITEMID: 001-70354
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SVINTITSKIY AND GONCHAROV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Not necessary to examine under Art. 13;Violation of P1-1;Pecuniary and non-pecuniary damage -  financial awards (global);Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - partial awards
TEXT: 7. The applicants were born in 1954 and 1960, respectively, and live in the city of Kirovograd, Ukraine.
8. Until 1998 the applicants served as career officers in military unit A-425. In 1998, the applicants retired.
9. Upon retirement, the applicants were entitled to different types of compensation and payments. As these entitlements went unpaid, they instituted proceedings in the Cherkassy Garrison Military Court against military unit A-0425 for their recovery.
10. On 13 August 1998 the court found for Mr Svintitskiy and awarded him UAH 2,376.37.
11. On 24 September 1998 the court found for Mr Goncharov and awarded him UAH 670.
12. These court decisions were not appealed and came into force. The execution writs were sent to the Kirovograd Bailiffs' Service for enforcement.
13. Between March 1999 and March 2000 the applicants lodged numerous complaints with the local departments of justice and defence and with the local prosecutor's office about the non-enforcement of the judgments in their favour.
14. By letter of 6 September 1999, the head of the economic department of the Ministry of Defence informed the applicants that the judgments in their favour remained unenforced due to the lack of sufficient funding from the State Budget.
15. By letter of 12 January 2000, the Kirovograd District Prosecutors' Office informed the Mr Svintitskiy that the judgment in his favour could not be enforced due to the lack of funds of the debtor, and the impossibility of attaching the debtor's property since it belonged to the State.
16. On 1 August 2001 the judgment in favour of Mr Goncharov was enforced in full.
17. On 17 September 2001 the judgment in favour of Mr Svintitskiy was enforced in full.
18. The relevant domestic law is summarised in the judgment of Voytenko v. Ukraine (no 18966/02, §§ 20-25, 29 June 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80803
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: PLOTNIKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Sergey Yuriyevich Plotnikov, is a Russian national who was born in 1972 and lives in the town of Chelyabinsk. He was represented before the Court by Mrs O. Preobrazhenskaya, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 August 1999 the applicant was arrested on charges of murder, theft and deliberate destruction of property. From the very outset of the investigation he refused to testify or cooperate with the authorities.
On 4 September 2000 the Chelyabinsk Regional Court held its first hearing on this case. The bench was composed of Judge Zh. and two lay assessors, T. and Ch.
The applicant submitted that at one of the hearings his counsel had failed to appear, but the trial court had refused his request to adjourn the hearing. He also submitted that oral evidence given by some prosecution witnesses during the trial had not been properly recorded in the minutes and that he unsuccessfully requested the Regional Court to accept his mother as his counsel.
By judgment of 15 September 2000 the court convicted the applicant of aggravated murder and theft and sentenced him to nineteen years’ imprisonment. The applicant submitted that the court had used his refusal to testify to support the findings about his guilt.
The applicant appealed against the judgment to the Supreme Court. In his appeal, he complained, among other things, that lay assessor T. had not complied with the domestic rules in respect of lay assessors.
On 20 August 2001 the Supreme Court applied an amnesty law as regards some of the charges and reduced the applicant’s sentence to eighteen years of imprisonment. It appears that the court did not examine the applicant’s complaint about the lay assessors and the allegedly unlawful composition of the bench.
The Supreme Court decision was served on the applicant on 8 October 2001.
On 10 January 2002 the applicant requested the Regional Court to provide him with information about the composition of the court that had tried his case, and in particular, the list of lay judges and the record of their participation in the trials at the material time. However, he received no response.
On 2 November 2001 and 7 May 2002 the applicant lodged a complaint with the Constitutional Court. In this complaint he alleged that the court composition in his case had been unlawful.
By decision of 10 October 2002 the Constitutional Court rejected the complaint.
On 25 September 2005 the applicant lodged a request for supervisory review with the Supreme Court of Russia. He maintained, among other things, that the court composition in his criminal case had been unlawful.
On 12 January 2006 a judge of the Supreme Court of Russia examined the applicant’s request and took a decision to initiate supervisory review proceedings in the case.
By a decision of 22 February 2006 the Presidium of the Supreme Court examined the arguments of the applicant’s appeal. It found that the participation of lay assessor T. in the proceedings was unlawful. Accordingly, the court quashed the applicant’s conviction and remitted the case for a fresh examination in the first instance.
By judgment of 24 July 2006 the Regional Court, sitting in a new composition, freshly examined the applicant’s criminal case and convicted him of aggravated murder. The applicant was sentenced to thirteen years and four months of imprisonment.
For a summary of the relevant domestic law provisions, see Posokhov v. Russia, no. 63486/00, ECHR 2003IV, and Fedotova v. Russia (dec.), no. 73225/01, 1 April 2004.


ITEMID: 001-100026
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF YERANOSYAN AND OTHERS v. ARMENIA
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicants were born in 1976, 1975, 1971, 2001, 2004, 1994, 1999 and 1978 respectively and live in Yerevan.
5. According to the applicants, they enjoyed a right of use of accommodation in respect of a house which measured 60.2 sq. m and was situated at 15 Byuzand Street, Yerevan. The house was owned by their family member, A.Y. The Government contested this allegation and claimed that only the applicants Vahan Yeranosyan, Vardan Yeranosyan, Ruzanna Yeranosyan and Siranush Khachatryan enjoyed such a right, while the remaining applicants, who were minors, were only entitled to live in the house in question.
6. On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the immovable property (plots of land, buildings and constructions) situated within the administrative boundaries of the Central District of Yerevan to be taken for the needs of the State for the purpose of carrying out construction projects, covering a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones.
7. On 17 June 2004 the Government decided to contract out the construction of one of the sections of Byuzand Street – which was to be renamed Main Avenue – to a private company, Vizkon Ltd.
8. On 1 October 2004 Vizkon Ltd and the Yerevan Mayor's Office signed an agreement which, inter alia, authorised the former to negotiate directly with the owners of the property subject to expropriation and, should such negotiations fail, to institute court proceedings on behalf of the State, seeking forced expropriation of such property.
9. It appears that by a letter of 8 June 2005 Vizkon Ltd informed the applicants that the house in question was situated within the expropriation zone of the Main Avenue area and was to be taken for State needs. It further appears that each applicant was offered USD 2,000 as compensation.
10. It appears that the applicants did not accept this offer.
11. On an unspecified date Vizkon Ltd instituted proceedings against the applicants on behalf of the State, seeking to terminate their right of use of accommodation and to have them evicted.
12. On 30 June 2005 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան) granted the claim of Vizkon Ltd, terminating the applicants' right of use and awarding each of them the Armenian dram equivalent of USD 2,000 in compensation. In doing so, the court referred to Article 218 § 1 of the Civil Code.
13. On 15 July 2005 the applicants lodged an appeal.
14. On 8 August 2005 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) granted the claim of Vizkon Ltd on the same grounds as the District Court.
15. On 22 August 2005 the applicants lodged an appeal on points of law which they supplemented on 19 September 2005.
16. On 23 September 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the applicants' appeal.
17. For a summary of the relevant domestic provisions related to the right of use of accommodation see the judgment in the case of Minasyan and Semerjyan v. Armenia (no. 27651/05, §§ 36-43, 23 June 2009).
18. Article 218 § 1 of the Civil Code, as in force at the material time, provided that a plot of land might be taken from the owner for the needs of the State or the community by compensating its value. Depending on for whose needs a plot of land was to be taken, its value was to be compensated by either the State or the community.