ITEMID: 001-67913
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: VAN THUIL v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Gijsbert Bertus van Thuil, is a Netherlands national who was born in 1952 and, at the time of the introduction of the application, was detained in a remand centre in Hoogeveen. He is represented before the Court by Mr S.T. van Berge Henegouwen, a lawyer practising in Maastricht.
On 21 November 2001, the applicant was arrested and placed in police custody (inverzekeringstelling) for a maximum of three days on suspicion of involvement in the exportation of synthetic drugs. At the time of his arrest, 1,500 US Dollars was found on him. The search of the premises where he was arrested resulted in the finding of, inter alia, a plastic bag with eight pills with a horse-like logo, a pill with a euro logo, an order for dried flowers, a Netherlands passport in the applicant's name, a Belgian passport in the name of a Mr X. containing an identity photograph of the applicant, two papers with telephone numbers and two address books. When heard on 21 November 2001 in connection with his placement in police custody, the applicant stated that he knew that he did not have to answer any questions, that he understood that he had been arrested in connection with trafficking in and/or exporting hard drugs, and that he wished to be represented by a lawyer.
When heard by the police on 22 November 2001, the applicant stated, inter alia, that he had been convicted and sentenced to five years' imprisonment in the past for drug offences, that he knew nothing about drugs, that he had obtained the Belgian passport from a man from Limburg and that the particulars therein had been made up, and that the pills found, which looked like XTC pills, might have been left behind by one of his acquaintances who had visited him. He further stated that he did not know anything about the transport of more than 1,000,000 XTC pills which had been seized in Germany on 20 November 2001. After he had been confronted with photographs taken under surveillance, the applicant stated that he only recognised someone whom he knew as John, an acquaintance who visited him sometimes. He did not know the other persons in the photographs shown to him.
On 23 November 2001, the applicant was heard by the investigating judge (rechter-commissaris) of the Amsterdam Regional Court (arrondissementsrechtbank) on the public prosecutor's request to place the applicant in detention on remand (inbewaringstelling) on suspicion of his involvement in the exportation of an estimated quantity of 1,600,000 XTC pills, membership in a criminal organisation involved in drugs offences, and the possession of a Belgian passport he knew to be forged.
The public prosecutor's request was accompanied by the written record of the provisional findings in the criminal investigation (voorgeleidingsproces-verbaal). This written record ran to 298 pages and consisted of a full account of the criminal investigation (relaas van onderzoek) and the relevant appendices, including the written records of the arrest of the applicant and two co-suspects, their subsequent questioning by the police, six searches, the notifications of seizures, the finding – on 11 November 2001 on a drugs courier – of four bags containing 3,718 kg. pills tested positive for XTC, a report dated 22 November 2001 from the German authorities stating that the substance found in seized cardboard boxes had tested positive for XTC, the summaries of 36 conversations intercepted on tapped telephones used by co-suspects, a written record on a surveillance operation conducted on 10 November 2001 and on the authenticity verification of the two passports found in the search when the applicant was arrested. These written records were made available to the applicant.
According to the written record of the investigation, in September 2001 the Amsterdam-Amstelland Regional Criminal Intelligence Unit (Regionale Criminele Inlichtingen Eenheid) had received information about several persons involved in XTC trafficking. On this basis, as of 28 September 2001, an investigation was made into a group of persons involved in the commission of drug offences under the direction of one of these persons, Mr E. This investigation disclosed, inter alia, that the applicant was apparently involved in exporting XTC. In the course of the investigation, the authorities had intercepted telephone conversations, conducted surveillance operations and intercepted various XTC shipments. Two drug couriers had been arrested on 10 November 2001 in the United Kingdom upon their arrival on a flight from Amsterdam; one drug courier had been arrested on 11 November 2001 in the Netherlands and, on 20 November 2001, a shipment of about 1,600,000 XTC pills – packed in cardboard boxes hidden between boxes of dried flowers and transported in a truck driven by a Netherlands driver, Mr B. – had been intercepted by the German authorities when the driver was unloading the XTC in Lübeck (Germany). The truck driver had apparently transported these boxes on the instructions of the applicant, who in turn had acted under instructions from Mr E. who would have bought the XTC from the applicant. In the course of surveillance carried out, the applicant had often been seen in the company of Mr B.
When heard by the investigating judge on 23 November 2001, the applicant submitted that the suspicions against him were based on unsubstantiated conclusions drawn by the investigating authorities and therefore could not be taken into account in assessing the question whether there were serious suspicions (ernstige bezwaren) against him. He contended that the written record of the provisional findings in the criminal investigation had not been accompanied by documents containing the facts and/or circumstances from which these conclusions had been drawn by the investigating authorities (e.g. the surveillance records, or the record of the intercepted communications and/or statements taken in the course of the investigation).
On the same day, the investigating judge ordered the applicant's detention on remand for a period of ten days. Noting the applicant's suspected involvement in the exportation of an estimated quantity of 1,600,000 XTC pills, his membership in a criminal organisation and his possession of a forged Belgian passport, the investigating judge considered that there were grave suspicions against the applicant. The judge found that there was a serious risk of the applicant absconding and that there were important reasons of public safety (gewichtige redenen van maatschappelijke veiligheid) which required his immediate detention: the offence of which he was suspected could attract a 12-year prison sentence; the legal order had been seriously shaken by that offence; there was a serious risk that the applicant would commit a further offence whereby the health of persons might be endangered, and the applicant, in view of statements made and/or drugs found, was apparently involved in extensive drug trafficking.
By letter of 27 November 2001, the applicant's lawyer informed the public prosecutor that it appeared from the copies of the written records (processenverbaal) with which he had been provided that, in the course of the investigation, several so-called special investigative powers (bijzondere opsporingsbevoegdheden) had been deployed. He requested the public prosecutor to provide him with all the written records and orders relating to the exercise of these powers.
On 29 November 2001, the applicant was heard by the Amsterdam Regional Court on the public prosecutor's request for his further detention on remand (gevangenhouding). At this hearing, the applicant requested the Regional Court to lift his pre-trial detention, arguing that the investigating judge had unjustly assessed the seriousness of the suspicions against him on the basis of conclusions drawn by the police, whereas the facts and/or circumstances (e.g. the surveillance records or the intercepted communications and/or statements taken in the course of the investigation), on which these police conclusions were based, were not included in the case file. On the same day, the Amsterdam Regional Court ordered the applicant's further detention on remand for a period of thirty days. It considered, after having heard the prosecutor and the applicant, that the suspicion and grounds which had led to the applicant's detention on remand were still pertinent.
By letter of 1 December 2001, the Amsterdam public prosecutor dealing with the applicant's case informed the latter's lawyer that he would shortly transmit copies of all written records and orders issued in the applicant's case. However, owing to the prosecution's workload, this could not be done immediately. The public prosecutor added that no documents would be withheld, as the interests of the investigation did not require that.
On 24 December 2001, acting on a request by the public prosecutor, the Amsterdam Regional Court prolonged the applicant's further detention on remand by thirty days. After having heard the prosecutor and the applicant, it considered that the suspicion and grounds which had led to the applicant's further detention on remand were still pertinent.
On 27 December 2001, the applicant filed an appeal against the decision of 24 December 2001 with the Amsterdam Court of Appeal (gerechtshof).
On 11 January 2002, the public prosecutor transmitted to the applicant's lawyer copies of the requests, authorisations and orders in respect of the investigative powers that had been used in the applicant's case. These documents were accompanied by various written records containing the findings of the investigation authorities in support of their requests for authorisation to use special investigative powers.
On 22 January 2002, acting on a request by the public prosecutor and having noted that the applicant had indicated in writing that he did not wish to be heard on that request, the Amsterdam Regional Court prolonged the applicant's detention on remand for a further period of thirty days, considering that the suspicion and grounds which had led to the applicant's further detention on remand were still pertinent.
On 6 February 2002, having noted the impugned decision of 24 December 2001 and the documents relating to the applicant's pre-trial detention, and after having heard the parties, the Court of Appeal rejected the applicant's appeal and upheld the decision of 24 December 2001. As regards the applicant's request – made orally at the hearing – to lift his pre-trial detention on the same grounds as those he had raised before the Regional Court on 29 November 2001, the Court of Appeal considered that the serious reasons of public safety referred to in the order for the applicant's further detention on remand, and which continued to require his detention, outweighed the applicant's interests in being released and, consequently, rejected the request.
On an unspecified date at the end of February 2002 and after having received copies of the written records containing the results of the special investigative powers that had been used in the criminal investigation, the applicant's lawyer requested that several witnesses be heard. At the time of the introduction of the application, first-instance trial proceedings against the applicant had started. No further information about these trial proceedings has been submitted.
Pursuant to Article 152 of the Code of Criminal Procedure (Wetboek van Strafvordering – the “CCP”), officials with powers of investigation into offences must record as soon as possible in writing (procesverbaal) the investigated punishable fact or what they have done or found in the investigation.
Article 133 of the CCP defines pre-trial detention (voorlopige hechtenis) as a deprivation of liberty pursuant to an order for detention on remand (inbewaringstelling), a warrant for the taking into pre-trial detention (gevangenneming), or an order for further detention on remand (gevangenhouding). The statutory rules governing pre-trial detention are set out in Articles 63 to 88 of the CCP.
An order for pre-trial detention can only be issued against persons suspected of an offence attracting a punishment of four years or more, or of a number of other specified criminal acts (Article 67 § 1 of the CCP). Pursuant to Article 67 § 3 of the CCP, pre-trial detention can only be applied when it appears from the facts or circumstances that there are serious suspicions against the suspect (“wanneer uit feiten of omstandigheden blijkt van ernstige bezwaren tegen de verdachte”). Orders for pre-trial detention are immediately enforceable (Article 73 § 1 of the CCP).
A (deputy) public prosecutor is competent to order the arrest of a person suspected of having committed a criminal offence, in respect of which detention on remand may be ordered (Article 54 of the CCP). A (deputy) public prosecutor can further order a person's subsequent detention in police custody (inverzekeringstelling), after having seen and heard that person (Article 57 of the CCP). An order for detention in police custody can only be issued in respect of offences for which detention on remand may be ordered. A custody order is valid for a maximum of three days and may only be prolonged for a further maximum period of three days (Article 58 of the CCP). No appeal lies against a police custody order.
Article 59a of the CCP requires that no later than three days and fifteen hours after the arrest, the suspect must be brought before an investigating judge in order to be heard. On that occasion the suspect may request the investigating judge to order his or her release (Article 59a § 4 of the CCP). Where the investigating judge finds the police custody order unlawful, the suspect's immediate release must be ordered (Article 59a § 5 of the CCP). In order to prolong the detention of a suspect, the public prosecutor can request the investigating judge to issue an order for detention on remand under Article 63 of the CCP. A remand order given by the investigating judge is valid for a maximum period of ten days (Article 64 § 1 of the CCP).
Although no direct appeal lies against a remand order, a person whose detention on remand has been ordered can, in accordance with Article 69 § 1 of the CCP, apply to the Regional Court for a lifting order (opheffing voorlopige hechtenis). Under Article 87 § 2 of the CCP, an appeal against a rejection by the Regional Court of a first request to lift the detention on remand may be lodged with the Court of Appeal.
Upon a request by the public prosecutor, the Regional Court can, after having heard the suspect, order the prolongation (gevangenhouding) of the original remand order of the investigating judge (Article 65 of the CCP). The Regional Court's order for further detention on remand is valid for a maximum period of thirty days (Article 66 of the CCP).
An appeal against an order for further detention on remand lies to the Court of Appeal who is to determine such an appeal as soon as possible (Article 71 of the CCP).
According to Article 30 § 2 of the CCP, the investigating judge or the public prosecutor can, if the interests of the investigation so require, withhold certain case file documents from the suspect. In that case, the suspect will be informed in writing that the documents available to him or her are incomplete. If documents are withheld from a suspect, the latter can file an objection (bezwaar), within fourteen days after the notification of the decision, to the court to which the public prosecutor or investigating judge is attached, which court must determine the matter as soon as possible (Article 32 of the CCP).
Pursuant to Article 33 of the CCP, a suspect must be given access to all documents in the case file as soon as the decision to close the preliminary judicial investigation has become final or, where there has been no preliminary judicial investigation, as soon as the decision to pursue the prosecution or the indictment has been served on the suspect.


ITEMID: 001-84192
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: CVEKLOVA AND OTHERS v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicants are:
Ms Bohumíra Cveklová, born in 1934 and living in Prague (no. 24788/03);
Mr Radovan Zdražílek and Ms Emílie Zdražílková, born 1928 and 1932 respectively, and living in Brno (no. 30793/03);
Mr Oldřich Konvička, born in 1920 and residing in Buchholz, Germany, represented before the Court by Mr J. Šetina, a lawyer practising in Prague (no. 1335/04);
Mr Stanislav Kašpar, born in 1952 and living in Kuřim (no. 1392/04);
Ms Jindřiška Kořínková, who was born in 1929 and lived in Prague. She was represented by Mr Vladislav Petrů, a lawyer practising in Prague (no. 6855/04). By a letter received at the Court on 29 September 2005 the applicant’s lawyer informed the Court that on 14 July 2005 the applicant had died and that her four children wished to pursue the application in her stead; and
Ms Věra Marková, born in 1944 and living in Prague (no. 43635/04).
They are Czech nationals. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the cases, as submitted by the parties, may be summarised as follows.
In April 1988 an easement was established over the applicant’s property in favour of her neighbour. As the latter had reconstructed his house so that it encroached on the applicant’s land, on 31 March 1992, the applicant requested the Děčín District Court (okresní soud) to order him to allow the officers of the Centre of Geodesy entry onto his plot of land for a survey.
On 2 November 1993 she lodged a new action seeking this time to clear the property.
On 6 March 1995 the District Court stayed the proceedings initiated by the applicant in March 1992.
It appears that the applicant’s action for the clearance of the property is currently pending before the national courts.
On 4 February 1992 the applicants brought an action in the Brno Municipal Court (městský soud) for recovery of property which they had been forced to sell in 1973. It appears that the proceedings are still pending before the national courts.
In 1976 the applicant left the former Czechoslovakia. On an unspecified date he acquired German citizenship. On 30 May 1977 the Olomouc District Court (okresní soud) convicted the applicant in absentia of deserting the Republic, sentenced him to two and a half years’ imprisonment and ordered the confiscation of all his property, including a plot of land in Slavonín.
On 24 September 1990 the same court declared that, pursuant to the Judicial Rehabilitation Act, the applicant’s convictions and all ancillary decisions had been quashed with retrospective effect.
On 9 March 1994 the applicant re-acquired Czech citizenship.
On 13 December 1995 the Constitutional Court (Ústavní soud) abrogated the condition of permanent residence within the territory of the Czech Republic, laid down in the Land Ownership Act, for persons claiming restitution. On 8 February 1996 the Parliament adopted Act No. 30/1996, which amended the Land Ownership Act, setting a new deadline for the lodging of restitution claims by the persons concerned, i.e. those who had not, until 31 January 1993, satisfied the permanent residence condition.
On 17 July 1996 the applicant lodged an action for restitution of the land which the District Court granted on 26 October 1999. In a judgment of 26 November 2002 the Ostrava Regional Court (krajský soud) modified the District Court’s judgment in that it dismissed the applicant’s restitution action finding that on the date of 31 December 1992, he had not satisfied the restitution requirements laid down by the Land Ownership Act. Actually, he was not a Czech citizen and did not reside permanently on the territory of the Czech Republic. The court held that the amendment of Act No. 30/1996 did not concern the applicant’s case.
On 25 November 2004 the Supreme Court (Nejvyšší soud) dismissed the applicant’s appeal on points of law.
On 8 August 2005 the Constitutional Court dismissed the applicant’s constitutional appeal (ústavní stížnost) stating, inter alia, that on the date of 31 January 1993 (expiry of the time-limit for introducing restitution claims under the Land Ownership Act), the applicant had not been a Czech citizen and that the new time-limit set up in Act No. 30/1996 was not relevant in his case.
On 8 July 1988 the applicant brought an action in the Žďár nad Sázavou District Court (okresní soud), claiming damages for an injury he had sustained when working in uranium mines.
On 13 February 2007 the District Court stayed the proceedings following the applicant’s withdrawal of his action filed on 11 January 2007. This decision became final on 16 March 2007.
1. On 23 April 1970 the applicant was dismissed from her work following a breach of the rules of work discipline. On 10 June 1970 she filed an action against her employer seeking to declare her dismissal null and void.
It appears that the proceedings are still pending before the Czech courts.
On 19 May 1998 the applicant lodged an action for unjust enrichment against a private building company with the Prague 2 District Court (obvodní soud). It appears that the proceedings are still pending before the national courts.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-90581
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SORVISTO v. FINLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violations of Art. 6-1;Violations of Art. 13;Violation of Art. 8;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1959 and lives in Espoo.
6. On 2 February 1995 the applicant, a member of the board of a wound-up company (“V.”), was detained on suspicion of involvement in offences of aggravated fraud, debtor dishonesty and false book-keeping, allegedly committed in 1991 and 1992, before the winding up of V.
7. The criminal proceedings against his four co-defendants began on 18 April 1996 before the Salo District Court (käräjäoikeus, tingsrätten). The charges were served on the applicant on 6 May 1996 and 16 December 1996, respectively, and the trial against him apparently began on 19 March 1997.
8. On 21 March 2006 the District Court gave its judgment. It convicted the applicant of aggravated fraud. The court found that the “reasonable time” requirement laid down in the Constitution and the Convention had not been respected and that the applicant was therefore entitled to redress. The court considered that the redress had to be significant and, having regard to the exceptionally lengthy nature of the proceedings, it should also be substantial. The applicant had not contributed to the length of the proceedings. The court stated that it would reduce the applicant’s sentence by half, owing to the breach of the “reasonable time” requirement. It sentenced the applicant to 18 months’ imprisonment.
9. The applicant and his co-defendants appealed to the Turku Appeal Court (hovioikeus, hovrätten).
10. One of the applicant’s co-defendants requested that the Appeal Court terminate the proceedings immediately in his respect and dismiss all charges against him. He based his request on the European Court’s judgment of 9 January 2007 in the case Uoti v. Finland (application no. 61222/00), in which the Court found a violation of Article 6 § 1 of the Convention due to the excessive length of proceedings.
11. On 16 January 2007 the Appeal Court rejected this request. The court found that the European Court had not requested in its judgment that the proceedings be terminated.
12. On 22 October 2007 the Appeal Court gave its judgment. It found that, taking into account the applicant’s previous conviction, the applicant should have been sentenced to imprisonment of three years and three months. However, due to the excessive length, this sentence should be mitigated and the redress had to be more significant than that granted by the District Court. The Appeal Court mitigated the applicant’s sentence by two-thirds owing to the breach of the “reasonable time” requirement and sentenced him to 13 months’ imprisonment.
13. The applicant and his co-defendants appealed to the Supreme Court (korkein oikeus, högsta domstolen).
14. On 22 May 2008 the Supreme Court refused leave to appeal.
15. On 29 June 1994 the bankruptcy estate of V. lodged claims for damages against the applicant and three other persons with the Helsinki District Court.
16. The court informed the applicant three times, the first being on 29 January 1996, that the case had been adjourned in anticipation of the outcome of the criminal proceedings pending before the Salo District Court (see above), which was based on the same facts as the civil proceedings. On 7 October 1999 and 2 June 2000 it issued decisions to the same effect.
17. The applicant objected and requested that the civil proceedings be continued. He also requested that the claims be dismissed because the length of the proceedings had already exceeded a reasonable time. On 1 April 2003 the court rejected his request. It stated that the length of the proceedings was due to the need to await the outcome of the pending criminal proceedings, and adjourned the case.
18. The applicant complained to the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman). On 22 June 2005 the Deputy Parliamentary Ombudsman found that the domestic legislation did not provide a possibility for the Finnish courts to dismiss civil claims because of the length of proceedings. The applicable domestic law and practice were unsatisfactory, also in the light of Article 13 of the Convention. However, as the instant case was pending before the domestic court and the European Court, he could not rule on the complaint.
19. On 5 January 2007 the applicant renewed his request to the District Court that the claims be dismissed, arguing that during the pre-trial investigation the plaintiff’s (V.’s) lawyer had seen and read legally privileged documents which could not be used as evidence against him. He also maintained that the proceedings had exceeded a reasonable time.
20. The plaintiff objected. It gave an assurance that it would not use any privileged information in the forthcoming trial. It further stated that the appellate court would deliver its judgment in the criminal proceedings in August or September 2007. If the first-instance court’s judgment were upheld, there would be no grounds for continuing the civil proceedings against the applicant.
21. On 1 March 2007 the District Court rejected the applicant’s request. It noted the plaintiff’s submission that no prohibited privileged material would be used in the trial. Furthermore, the criminal proceedings were the main proceedings and consequently, in order to avoid unnecessary trial costs, the civil proceedings should only be resumed once the criminal proceedings had come to an end.
22. By a letter of 11 June 2008, the plaintiff in the civil proceedings withdrew its action. The case was expected to be pending for a few weeks more as the District Court needed to decide on the costs and expenses.
23. On 17 May 1999 the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen, “the police”) conducted a search of a storage facility, situated in Helsinki and rented by Mr O. The search was based on the suspicion that the applicant had not declared all his assets in debt recovery proceedings. The police seized a large number of documents belonging to some private persons, including, inter alia, correspondence between the applicant and his Spanish lawyer, C.
24. The applicant requested the Vantaa District Court to annul the seizure on grounds of its unlawfulness, since the documents seized contained privileged information between him and his lawyer. On 24 March 1999 the court upheld the seizure. It found that the material seized contained documents which were protected by legal professional privilege under Chapter 17, Article 23 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken). Consequently, such documents could not be seized from the applicant’s or his lawyer’s possession. The court, however, went on to find that in the instant case the seized documents were not “in the possession” of the applicant or his lawyer within the meaning of Chapter 4, section 2, subsection 2, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen) as they had been stored in a storage facility together with other persons’ belongings. The seizure had therefore been lawful.
25. The applicant appealed to the Helsinki Appeal Court, claiming that the Coercive Measures Act had been interpreted in a manner that contradicted the Convention, given that he had sole authority over the seized documents. They were thus “in his possession” and had only been stored in the storage facility.
26. On 14 January 2000 the Appeal Court revoked the seizure in so far as it concerned the correspondence between the applicant and C. and ordered the documents to be returned to the applicant. It held that the correspondence had not been in the possession of a third party and was therefore protected by legal professional privilege. In its view, the domestic legislation had to be interpreted in the applicant’s favour.
27. On 24 March 2000 the Supreme Court refused the police leave to appeal.
28. Consequently, the police requested the District Court to prolong the seizure until 17 May 2000. In their view, the correspondence between the applicant and C. was not privileged material which had been drafted for the applicant’s defence in a pending trial but concerned his possessions abroad, thus falling outside legal professional privilege.
29. The District Court disagreed. In its decision of 3 April 2000, it held that the correspondence might have contained legally privileged information. Thus it was, as a whole, subject to a prohibition on seizure.
30. Upon the applicant’s request, the bailiff ordered the police to return the documents. The documents were to be stored in the bailiff’s office until the decision on seizure had acquired legal force.
31. The police appealed to the Appeal Court, maintaining that the seized documents did not concern legally privileged information that the applicant had passed to C. for the purpose of pleading a case before a trial. In addition C. was not, at the time, the applicant’s defence lawyer.
32. On 25 May 2000 the Appeal Court upheld the decision.
33. Having granted interim measures, the Supreme Court granted the police leave to appeal on 8 August 2000. By decision of 9 April 2001 it quashed the Appeal Court’s decision of 25 May 2000, finding that the revocation of the seizure had already acquired legal force on 24 March 2000 when the Supreme Court had refused leave to appeal. On that date the seizure was revoked and the documents were to be returned to the applicant. Consequently, it would not have been possible, even in theory, to prolong the seizure after that date. The court did not address the issue of whether the documents seized concerned legally privileged material. It also declined to examine the police’s request to prolong the time-limit for prosecution as such a request should have been filed with the District Court.
34. On 30 May 2001 the police again seized the same documents on the basis that they could be used as evidence in forthcoming criminal proceedings against the applicant.
35. On 24 July 2001 the police requested the District Court to prolong the time-limit for bringing charges against the applicant and for the seizure of the documents, as they had not been allowed to examine the content of the seized documents due to the pending complaints concerning their allegedly privileged nature. The applicant objected, claiming that the police should not have seized the same documents twice. He further maintained that the material was privileged and could not be seized. In his view, the seizure was in breach of Article 8 of the Convention.
36. The District Court revoked the seizure on 10 August 2001, referring to the Appeal Court’s decision of 14 January 2000 and finding that legal privilege applied to the correspondence.
37. The police appealed to the Appeal Court, renewing their argument that the documents seized did not concern information which the applicant had passed to C. for the purpose of pleading a case before a trial, and which, for that reason, could be covered by legal professional privilege.
38. On 21 May 2002 the Appeal Court upheld the decision, rejecting the police’s appeal.
39. Having granted the police leave to appeal, the Supreme Court quashed the decision by nine votes to two on 5 December 2003. The decision became a precedent (no. KKO 2003:119). The majority found that the main issue in the proceedings was whether counsel’s right not to testify against his client and the consequent prohibition on seizure extended also to material passing between a client and his lawyer if that material did not relate to a pending or forthcoming trial. They found the domestic legislation in this respect somewhat open to interpretation but concluded, having assessed the Court’s case-law, that as the seized documents did not concern information which the applicant had given to his lawyer in order to assist him in a trial, they could have been subject to seizure. Two of the Justices dissented, finding that the seizure had interfered with the applicant’s fundamental rights. However, the applicable domestic legislation was not clear and unambiguous, and therefore it should have been applied with due regard to fundamental rights and the requirements of legal professional privilege. The dissenting Justices interpreted the domestic law to the effect that the correspondence between the applicant and C. was covered by the prohibition on seizure.
40. The documents seized were returned to the police and it appears that the seizure was prolonged a number of times until summer 2005.
41. On 6 July 2006 the criminal proceedings started in the Vantaa District Court. On 23 August 2006 the charges, three counts of aggravated debtor fraud, were served on the applicant. On 25 August 2006 the District Court dismissed the first count as it was already statute-barred. This decision was upheld by the Appeal Court on 19 October 2006 and by the Supreme Court on 24 October 2007.
42. On 23 April 2008 the District Court convicted the applicant on two counts of aggravated debtor fraud and sentenced him to a six-month term of imprisonment. The court found that the pre-trial investigation had been excessively long in the applicant’s case. The applicant would have been sentenced to 18 months’ imprisonment but as he had already been sentenced to imprisonment on 29 November 2006 and on 22 October 2007, his sentence was mitigated by twelve months.
43. The applicant and the public prosecutor appealed to the Appeal Court where the case is apparently still pending.
44. Chapter 6, Article 7, point 3, of the Penal Code (rikoslaki, strafflagen; as amended by Act No. 515/2003 which took effect on 1 January 2004) reads:
“In addition to what is provided above in section 6, grounds for mitigating the sentence that are also to be taken into consideration are
...
(3) a considerably long period that has passed since the commission of the offence;
if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result.”
45. In its judgment of 11 June 2004 (KKO 2004:58), the Supreme Court noted that, although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings, such a dismissal or declaring a case inadmissible might in some exceptional circumstances, for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case here. In considering whether there were grounds for applying Chapter 6, Article 7, point 3, of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (here over 5.5 years) had been unreasonable. It concluded that in this case there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings.
46. In its judgment of 15 June 2005 (KKO 2005:73) the Supreme Court, applying Chapter 6, Article 7, point 3, of the Penal Code, reduced the sentence by six months owing to the lengthy proceedings (some ten years). It imposed an immediate term of ten months’ imprisonment, finding that it was not justifiable to further mitigate the sentence by suspending the term of imprisonment.
47. According to Chapter 5, section 1, of the Coercive Measures Act (Act No. 450/1987, as in force at the relevant time), the police may conduct a search, inter alia, if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds six months’ imprisonment. The search warrant is issued by the police themselves.
48. Chapter 4, section 2, subsection 2, of the Coercive Measures Act provides that a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in Chapter 17, Article 23, of the Code of Judicial Procedure is not allowed to give evidence at a trial and provided that the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed. A document may nevertheless be seized if, under section 27, subsection 2, of the Pre-Trial Investigation Act (esitutkintalaki, förundersökningslagen; Act No. 449/1987), a person referred to in Chapter 17, Article 23, of the Code of Judicial Procedure would have been entitled or obliged to give evidence in the pre-trial investigation about the matter contained in the document.
49. Under Chapter 17, Article 23, subsection 1, of the Code of Judicial Procedure, counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case, unless the client consents to such testimony. Although subsection 3 provides for an exception to this secrecy obligation if the charges concern an offence carrying a minimum sentence of six years’ imprisonment (or attempting or aiding and abetting such an offence), this exception does not extend to counsel for an accused.
50. Under section 5c (626/1995) of the Advocates Act (laki asianajajista, lagen om advokater) an advocate or his assistant shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity. Breach of this confidentiality obligation shall be punishable in accordance with Chapter 38, Article 1 or 2, of the Penal Code, unless the law provides for a more severe punishment on another count.
51. According to section 40 of the Pre-trial Investigation Act, only such evidence as may be considered relevant in the case shall be entered in the records of investigation. As regards other evidence, any police officer is under an obligation to respect the confidentiality requirement.
52. The Supreme Court issued on 5 December 2003 a precedent on the interpretation of Chapter 17, Article 23, of the Code of Judicial Procedure (KKO 2003:119, no. 3010, votes 9–2). The decision concerned specifically the course of events in the present case. According to the decision of the Supreme Court, the documents seized from the applicant, related to the commission relationship between himself and his Spanish legal counsel, did not contain information entrusted by the applicant to his legal counsel for the pursuit of a case as referred to in Chapter 17, Article 23, subsections 1 and 4, of the Code of Judicial Procedure. Therefore, there was no obstacle to seizing the documents from the applicant. The Supreme Court ruled on the case by nine votes to two, sitting as an enlarged chamber presided by the President of the Court.
53. The Supreme Court reiterated this position in its other precedent case, KKO 2003:137.
54. Recommendation Rec(2000)21 of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer provides, inter alia, as follows:
“Principle I - General principles on the freedom of exercise of the profession of lawyer
... 6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the rule of law. ”
VIOLATED_ARTICLES: 13
6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-92416
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GODYSZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1951 and lives in Siemanowice.
6. On 28 April 2005 the applicant was arrested on suspicion of bribery, several counts of evasion of tax and customs duties and several counts of forgery, committed in an organised criminal gang.
7. On 29 April 2005 the Katowice District Court remanded him in custody, relying on the reasonable suspicion that he had committed the offence in question. The court referred to the complexity of the case and the considerable number of accused. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence and induce witnesses to give false testimony. The court also stressed the severity of the anticipated sentence.
8. Later, twenty-one other persons were detained and charged in connection with the investigation against the applicant.
9. The applicant’s appeal against the detention order, like his further appeals against decisions prolonging his detention and all his subsequent numerous applications for release and appeals against refusals to release him, were unsuccessful. In his applications and appeal, he argued that the charge against him was based on unreliable and contradictory evidence.
10. In the course of the investigation, the applicant’s detention was prolonged on 22 July 2005, 20 October 2005, 20 January 2006, 29 March 2006, 28 June 2006, 27 September 2006, 4 January 2007 and 4 April 2007.
11. On 17 April 2007 the Katowice Regional Prosecutor lodged a bill of indictment with the Katowice Regional Court. The applicant was charged with bribery, several counts of evasion of tax and customs duties, several counts of forgery and membership of an organised criminal gang. The bill of indictment also concerned twenty-one other persons.
12. Further decisions extending the applicant’s detention were taken on 25 July 2007, 24 October 2007 and 27 February 2008.
In a decision given on 24 October 2007, the Katowice Court of Appeal Court criticised the manner in which the investigation had been conducted. It also referred to delays in the proceedings which amounted to six months. It acknowledged that almost all the evidence had been gathered and that the risk that the applicant would tamper with evidence had been marginal.
In a decision given on 27 February 2008, the Katowice Court of Appeal ruled that the applicant could be released on bail on payment of security of 800,000 Polish zlotys. The applicant requested the court to reduce the amount of bail. On 28 March 2008 the court reduced it to 300,000 Polish zlotys. The applicant paid the security and he was released on 30 April 2008.
13. The criminal proceedings are currently pending before the firstinstance court.
14. The relevant domestic law and practice concerning the imposition of detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
15. On 6 June 2007 the Committee of Ministers adopted on the Interim Resolution concerning the judgments of the European Court of Human Rights in 44 cases against Poland relating to the excessive length of detention on remand (“the 2007 Resolution”). Noting that the number of cases in which the European Court had found similar violations was constantly increasing. It concluded that the number of the Court’s judgments finding Poland in violation of Article 5 § 3 of the Convention revealed a structural problem. A more detailed rendition of the 2007 Resolution can be found in the Court’s judgment given in the case of Kauczor v. Poland (see Kauczor v. Poland, no. 45219/06, § 34, 3 February 2009; not final).
16. On 20 June 2007 the Council of Europe’s Commissioner for Human Rights released the Memorandum to the Polish Government concerning, among other issues, the use of the detention measure in Poland, stressing that examples of cases brought to the Court where pre-trial detention had lasted between 4 to 6 years were not uncommon. The Commissioner urged the Polish authorities to review the application and functioning of pretrial detention in Polish law. A more detailed rendition of the relevant parts of the memorandum can be found in the above mentioned Kauczor judgment (see Kauczor v. Poland, cited above, § 35).
VIOLATED_ARTICLES: 5


ITEMID: 001-72642
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF DOLGOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic and Convention proceedings) - claim dismissed
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1986 and lives in Moscow.
7. The applicant was a member of the National Bolsheviks Party.
8. At 12.30 p.m. on 14 December 2004 forty Party members effected an unauthorised entry into the reception area of the Administration of the President of the Russian Federation (the “President’s Office”). Some of them pushed away the guards at the entrance and occupied room no. 14 on the ground floor. They locked themselves in, blocked the door with a heavy safe and let the others enter through the window.
9. Until the police arrived, the Party members, including the applicant, waved placards through the office window, threw out leaflets and chanted slogans calling for the President’s resignation. They stayed in the office for approximately one hour.
10. On 14 December 2004 the applicant came with her friends for a walk in the city centre. Suddenly she found herself in the midst of a dense crowd and she thought it best to go in the same direction as everyone else. The crowd brought her into a certain building which turned out to be the waiting area of the President’s Office. She felt weak and sat down on the floor. The people around shouted and chanted but she could not understand what was going on. Then the police arrived and took everyone in custody.
11. The media reported that on 14 December 2004 a group of about forty members of the National Bolsheviks Party locked themselves in an office on the ground floor of the President’s Office.
12. They asked for a meeting with the President, the deputy head of the President’s Office Mr Surkov, and the President’s economic advisor Mr Illarionov. They waved placards with “Putin, resign!” («Путин, уйди!») written on them through the window and distributed leaflets with a printed address to the President that listed ten aspects in which he failed to respect the Russian Constitution, and a call for his resignation.
13. The intruders stayed in the office for one hour and a half until the police broke through the door. They did not offer any resistance to the authorities.
14. On 15 December 2004 the Khamovnicheskiy District Court of Moscow ordered the applicant’s placement in custody on the ground that she was suspected of a particularly serious criminal offence. The applicant did not appeal against the arrest warrant.
15. On 21 December 2004 an investigator for particularly important criminal cases of the prosecutor’s office of the Central Administrative District of Moscow charged the applicant with violent overthrow of State power (Article 278 of the Criminal Code) and intentional destruction and degradation of others’ property in public places (Articles 167 § 2 and 214).
16. Between 24 December 2004 and 4 February 2005 the applicant did not participate in any investigative actions.
17. On 4 February 2005 the Zamoskvoretskiy District Court of Moscow extended her detention on remand until 14 April 2005. The court’s entire reasoning read as follows:
“The court sees no reason to apply a more lenient preventive measure to [the applicant]. She is charged with a criminal offence under Article 278 of the Criminal Code which is classified as a particularly serious one and requires a thorough, comprehensive and objective investigation.
Notwithstanding the fact that [the applicant] has a permanent registered place of residence in Moscow, has no criminal record, is a student, has positive references and suffers from frail health, the court, taking into account the nature and factual basis of the imputed offences, gravity of the charges, her character and other circumstances described in the investigator’s decision, considers that there are sufficient indications to believe that, once released, [the applicant] would abscond or otherwise interfere with the proceedings.”
18. On 3 March 2005 the Moscow City Court upheld, on an appeal by the applicant, the remand decision of 4 February 2005, finding that it had been lawful, “sufficiently reasoned and justified”.
19. On 21 February 2005 the applicant’s charge was amended to that of participation in mass disorders, an offence under Article 212 § 2 of the Criminal Code.
20. On 11 April 2005 the Zamoskvoretskiy District Court granted the prosecution’s request for a further extension of the applicant’s detention until 14 August 2005, relying on the following reasons:
“At present there are no reasons to vary the preventive measure applied to [the applicant]... Although [the applicant] has a permanent registered place of residence in Moscow, having regard to the gravity of the charge against her, the fact that the charge is well-founded, the circumstances of the crime, there is no guarantee that the [applicant] would not default on the investigator’s and court’s summons if released from custody.”
21. On 7 June 2005 the investigation was completed and thirty-nine persons, including the applicant, were committed for trial before the Tverskoy District Court of Moscow.
22. On 20 June 2005 the trial court scheduled the preparatory hearing for 30 June 2005. It extended the detention on remand of all the defendants, noting that “the grounds on which the preventive measure [had been] previously imposed, still persist[ed]” and that “the case-file gave sufficient reasons to believe that, once released, the defendants would flee or interfere with the trial”.
23. On 30 June 2005 the court fixed the opening of the trial for 8 July 2005. It rejected the defendants’ requests for release, citing the gravity of charges against them and the risk of their absconding or obstructing justice.
24. On 10 August 2005 the Tverskoy District Court rejected the applications for release filed by many defendants, including the applicant, although she had produced a personal surety from Mr M. Rotmistrov, a member of the lower chamber of the Russian Parliament. The court held:
“The court takes into account the defence’s argument that individual approach to each defendant’s situation is essential when deciding on the preventive measure.
Examining the grounds on which... the court ordered and extended detention on remand in respect of all defendants without exception... the court notes that these grounds still persist today. Therefore, having regard to the state of health, family situation, age, profession and character of all defendants, and to the personal sureties offered by private individuals and appended to the case file, the court concludes that, if released, each of the applicants can abscond or obstruct justice in some other way...
In the court’s view, in these circumstances, having regard to the gravity of the charges, there are no grounds for varying or revoking the preventive measure in respect of any defendant...”
25. On 8 December 2005 the Tverskoy District Court found the applicant and her co-defendants guilty as charged and gave her a suspended sentence of three years’ imprisonment. It appears that the applicant did not lodge an appeal against the conviction.
26. Since 1 July 2002 criminal-law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the Code”).
27. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention on remand (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112).
28. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, re-offend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).
29. Detention on remand may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).
30. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances” (Article 109 §§ 1-3). The period of detention “pending the investigation” is calculated to the day when the prosecutor sent the case to the trial court (Article 109 § 9).
31. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The term of detention “during the trial” is calculated to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-107362
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: VASYLENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Stanislav Shevchuk
TEXT: The applicant, Mr Sergey Konstantinovich Vasylenko, is a Ukrainian national who was born in 1977 and lives in Dnipropetrovsk. He was represented before the Court by Mr V. Koloshin, a lawyer practising in Dnipropetrovsk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 March 2003 an officer of the Traffic Police stopped the applicant for having exceeded a displayed 40 kph (kilometres per hour) speed limit by 40 kph. The officer, using a speed measurement device, noted that the speed limit had been exceeded. He drew up an official report in the presence of the applicant, who made no objections, and sent the report to the Krasnogvardiysky District Court of Dnipropetrovsk (“the District Court”) for its consideration.
On 30 April 2003 the District Court considered the applicant’s case in the absence of any party. It found that the applicant had exceeded the speed limit while driving a vehicle. It further found the applicant guilty of the offence defined in Article 122 § 1 of the Code of Administrative Offences, and imposed a fine of 17 Ukrainian hryvnias (UAH) on him. The District Court noted in its judgment that the applicant had been notified of the date of the hearing. According to the applicant, he never received any notice concerning the hearing in the District Court.
On 2 June 2003 the applicant was served with a copy of the judgment of 30 April 2003. The judgment was not subject to an ordinary appeal.
On 5 June 2003 a prosecutor of the Dnipropetrovsk Regional Prosecutor’s Office, replying to a request by the applicant for an extraordinary review of the judgment of 30 April 2003, informed him that there were no grounds for lodging an objection (протест) against that judgment.
On 11 June 2003 the applicant submitted to the President of the Dnipropetrovsk Regional Court of Appeal a request for an extraordinary review of the judgment of 30 April 2003. The applicant contended that he had not been notified of the hearing and that his case had been wrongly determined.
By a letter dated 26 June 2003 the President of the Regional Court of Appeal notified the applicant that his request for an extraordinary review had been refused since the impugned court judgment was lawful and reasonable.
Article 122 § 1 of the Code prohibited drivers of vehicles from, inter alia, exceeding the prescribed speed limit by more than 20 kph. A breach of that provision was punishable by a written warning or a fine of up to an amount equal to the tax-free monthly income.
In accordance with Article 268 of the Code, any administrative case had to be considered in the presence of the person concerned. The case could be considered in the absence of that person only if there was information that he or she had been duly notified of the hearing and if he or she had not made any request for an adjournment.
Article 307 of the Code provided, inter alia, that the fine was to be paid within fifteen days of the date of receipt of the relevant decision.
Article 308 of the Code provided that in the event of failure to pay the fine within the time-limit provided under Article 307 of the Code the decision imposing the fine had to be enforced by the bailiffs.