ITEMID: 001-90482
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KHUDYAKOVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1-f;Violation of Art. 5-4;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1971 in Kazakhstan and currently resides in the town of Petrozavodsk in the Republic of Karelia in Russia. According to both Russian and Kazakh authorities, the applicant is a citizen of Kazakhstan. According to the applicant, the only citizenship she obtained was that of the former Soviet Union.
6. In October 1997 the applicant moved from Kazakhstan to the Republic of Karelia.
7. On 13 January 1998 the Kazakh police initiated criminal proceedings against the applicant on suspicion of large-scale fraud committed in 1997 in the town of Ust-Kamenogorsk. At the same time she was put on the list of fugitives from justice as her whereabouts were unknown.
8. On 22 January 1998 the Ust-Kamenogorsk Town Prosecutor of Kazakhstan authorised the applicant’s arrest.
9. On 7 February 2003 the Prosecutor General’s Office of the Russian Federation received a request for the applicant’s extradition sent by the General Prosecutor’s Office of the Republic of Kazakhstan.
10. On 7 August 2003, pursuant to the arrest warrant issued by the Ust-Kamenogorsk Town Prosecutor, the applicant was arrested in Petrozavodsk with a view to her extradition to Kazakhstan. According to the applicant, the police officers failed to explain why she had been arrested and detained. According to the Government, on the same day the applicant signed the arrest warrant issued by the Ust-Kamenogorsk Town Prosecutor and was informed of the reasons for her arrest and of the charges against her. The Government provided the Court with copies of the arrest warrant signed by the applicant on 7 and 8 August 2003.
11. Upon the applicant’s arrest she met with her lawyer, Mr Fleganov.
12. On 13 August 2003 the Karelia Prosecutor’s Office sent the extradition file to the Prosecutor General’s Office of the Russian Federation for examination of the extradition request.
13. On 15 August 2003 the applicant’s lawyer lodged a complaint with the Petrozavodsk Town Court contesting the grounds for his client’s detention.
14. On 2 September 2003 the Petrozavodsk Town Court on the request lodged by the Karelia Prosecutor’s Office ordered the applicant’s detention with a view to her extradition to Kazakhstan on the basis of Article 108 of the Code of Criminal Procedure. The Town Court held that the applicant was charged with a criminal offence punishable by a prison term of more than one year and that the extradition request was pending. The Town Court did not find it possible to apply a more lenient preventive measure, referring to the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the 1993 Minsk Convention”) and the Russian Code of Civil Procedure. No time-limit for the applicant’s detention was set. This decision was upheld on appeal on 11 September 2003 by the Supreme Court of Karelia.
15. Later on 2 September 2003 the Petrozavodsk Town Court examined and dismissed the applicant’s lawyer’s complaint about the applicant’s detention lodged on 15 August 2003. Relying on Articles 61 and 62 of the 1993 Minsk Convention, the Town Court found that the applicant’s detention was lawful. The applicant appealed. On 9 October 2003 the Supreme Court of Karelia upheld that decision.
16. On 13 October 2003 the Deputy Prosecutor General of Karelia dismissed the applicant’s request to change the measure of restraint, noting that the Prosecutor’s Office of Karelia was not authorised to examine this issue.
17. On 20 October 2003 the Petrozavodsk Town Court again dismissed the complaint about the unlawfulness of the applicant’s detention. On 27 November 2003 the Supreme Court of Karelia quashed that decision due to procedural flaws and the Town Court’s failure to give reasons for its decision to dismiss the complaint. The case was remitted for fresh examination.
18. In the meantime, on 21 October 2003 the Karelia Prosecutor’s Office dismissed the applicant’s request to inform her about the results of the examination of her extradition file.
19. On three further occasions in October and November 2003 the applicant’s lawyer complained about the unlawfulness of the applicant’s detention to the Prosecutor’s Office. In his submissions Mr Fleganov claimed that Article 109 of the Russian Code of Criminal Procedure prescribed a maximum of two months’ detention pending trial without extension. As the detention period had not been extended following the expiry of that period on 7 October 2003, the applicant’s subsequent detention was unlawful. On 21 November and 1 and 11 December 2003 Karelia Prosecutor dismissed these complaints. The prosecutor held that the period of the applicant’s detention was not limited since the date and time for the applicant’s extradition were fixed neither by the 1993 Minsk Convention nor by the Code of Criminal Procedure.
20. The applicant and her lawyer complained to the Petrozavodsk Town Court about the unlawfulness of the applicant’s detention and the refusal of the Karelia Prosecutor’s Office to authorise her release. They claimed, in particular, that the applicant was not a citizen of Kazakhstan, that she had moved to Russia over six years earlier and that she could thus not be extradited to Kazakhstan.
21. On 17 December 2003 the Petrozavodsk Town Court dismissed the complaint. That decision was upheld on appeal on 16 February 2004 by the Supreme Court of Karelia. The domestic courts found that the applicant’s detention was in conformity with the provisions of the 1993 Minsk Convention. The request for the applicant’s extradition was under examination by the Prosecutor General of Russia and no final decision was taken. The courts further held that the applicant was to be detained until the final decision on her extradition had been taken, as neither the Minsk Convention, nor the Code of Criminal Procedure set any time-limit for the examination of an extradition request. The Town and Supreme courts found accordingly that the applicant’s detention and the actions of the Prosecutor’s Office were in accordance with law.
22. On 10 September 2004 the Petrozavodsk Town Court dismissed the applicant’s complaint about the unlawfulness of her detention, relying on the same grounds as in its decision of 17 December 2003.
23. On 14 October 2004 the Supreme Court of Karelia amended the decision of the Petrozavodsk Town Court of 10 September 2004 and ordered the applicant’s release. The Supreme Court found as follows:
“According to Article 109 § 3 of the Code of Criminal Procedure detention over twelve months may be extended only in exceptional circumstances if the person is charged with a serious or particularly serious criminal offence. This extension is to be granted following a request filed by an investigator with the consent of the Prosecutor General of Russia or his Deputy.
Taking into consideration Article 466 § 1 of the Code of Criminal Procedure the issue of subsequent extension of detention may be decided by a court only in exceptional circumstances prescribed by law and on a request lodged by a prosecutor.
It appears from the material of the case-file that the prosecutor has not lodged such a request.
The offence of which the applicant has been accused does not relate to particularly serious offences ...”
24. The Supreme Court concluded as follows:
“The reasonable time for the applicant’s detention (fourteen months) had expired ...
The Town Court’s referral to the fact that no time-limit was set, either by the 1993 Minsk Convention or by the Code of Criminal Procedure, for the examination of an extradition request was of no relevance to the rights and freedoms of the applicant, who had been held in detention without being charged and without any decision on her extradition for more than one year.”
25. According to the applicant, she was released on 18 October 2004. The Government did not comment on this issue.
26. On 8 September 2005 the Office of the Prosecutor General of Russia informed the Deputy Prosecutor General of Kazakhstan that it was not possible to grant the extradition request in respect of the applicant, since the time-limit for criminal prosecution for the offence (two years) had expired.
27. On 16 December 2003 the applicant and her son, a minor, sought refugee status and interim asylum at the Migration Department of Karelia. On 20 February 2004 the Migration Department dismissed the applicant’s request as unsubstantiated. On 15 June 2004 the applicant’s appeal was rejected by the Head of the Migration Department.
28. On 22 October 2004 the Petrozavodsk Town Court dismissed a complaint lodged by the applicant about the refusal to grant her refugee status and interim asylum.
29. Meanwhile the applicant asked the Petrozavodsk Town Court to establish as a legal fact that she had lived on the territory of Russia since November 1997. On 28 October 2004 the Town Court dismissed the application, having found that establishing that fact would not have any effect on the applicant’s rights and freedoms.
30. On 29 July 2003 the Petrozavodsk police initiated criminal proceedings on suspicion of burglary.
31. On 10 September 2003 the applicant, being detained pending extradition, confessed to the burglary and sent her self-incriminating statement to the police. She was subsequently questioned by the police in the presence of her lawyer.
32. On 29 October 2003 the case investigator terminated the proceedings against the applicant for lack of corpus delicti. The investigator found that the applicant had confessed to the crime in order to hinder her extradition to Kazakhstan.
33. The Constitution guarantees the right to liberty (Article 22):
“1. Everyone has the right to liberty and personal integrity.
2. Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.”
34. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the 1993 Minsk Convention”), to which both Russia and Kazakhstan are parties, provides as follows:
“1. When executing a request for legal assistance, the requested authority applies the laws of its own State ...”
“1. The Contracting Parties shall ... on each other’s request extradite persons who ﬁnd themselves in their territory, for criminal prosecution or to serve a sentence.
2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.”
“1. A request for extradition (требование о выдаче) shall include the following information:
(a) the title of the requesting and requested authorities;
(b) a description of the factual circumstances of the offence, the text of the law of the requesting Contracting Party which criminalises the offence, and the punishment sanctioned by that law;
(c) the [name] of the person to be extradited, the year of birth, citizenship, place of residence, and, if possible, a description of his appearance, his photograph, ﬁngerprints and other personal information;
(d) information concerning the damage caused by the offence.
2. A request for extradition for the purpose of criminal prosecution shall be accompanied by a certiﬁed copy of a detention order. ...”
“Upon the receipt of a request for extradition the requested Contracting Party takes immediate measures aiming at detaining or arresting the person whose extradition is sought ...”
“1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow.
2. The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition.
3. In the event of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.”
“1. A person arrested pursuant to Article 61 § 1 ... shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest ...”
35. The European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows:
“1. Where there is urgency, the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.
...
4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.”
36. Chapter 13 of the Code of Criminal Procedure (“Measures of restraint”) governs the application of measures of restraint, or preventive measures (меры пресечения), which include, in particular, placement in custody. A custodial measure may only be ordered by judicial decision in respect of a person who is suspected of, or charged with, a criminal offence punishable by more than two years’ imprisonment (Article 108 “Placement in custody”). The time-limit for detention pending investigation is fixed at two months (Article 109 “Time-limits for detention”). A judge may extend that period up to six months (Article 109 § 2). Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). A judicial decision ordering or extending the application of a custodial measure may be appealed against to a higher court within three days of its issue (Articles 108 § 10 and 109 § 2). A custodial measure may be revoked or modified by a judicial decision if it is no longer considered necessary (Article 110 “Revoking or modifying the measure of restraint”).
37. Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. Articles 462-463 state that a decision to extradite a person upon a request from another country is taken by the Prosecutor General or his deputy. Article 462 states that a person’s detention finishes when either the Prosecutor General, or his deputy decides on the extradition request. Article 466 governs application of measures of restraint with a view to extradition. Paragraph 1 deals with the situation where a request for extradition is not accompanied by a detention or arrest order issued by a foreign court. In that case a prosecutor must decide whether it is necessary to impose a measure of restraint “in accordance with the procedure provided for in the present Code”. Paragraph 2 establishes that, if a foreign judicial decision on placement in custody is available, a prosecutor may place the person in detention or under house arrest. In that eventuality no confirmation of the foreign judicial decision by a Russian court is required. If a foreign court has authorised the person’s arrest, the decision of the prosecutor does not need to be confirmed by a Russian court.
38. Article 464 provides that extradition cannot take place if the person whose extradition is sought is a Russian national or if he has refugee status.
39. Chapter 15 (“Petitions”) provides that suspects, defendants, victims, experts, civil plaintiffs, civil defendants, and their representatives may petition officials to take procedural decisions that would secure the rights and legitimate interests of the petitioner (Article 119 § 1). Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of damaging the constitutional rights or freedom of the parties to criminal proceedings (Article 125 § 1). The competent court is that which has jurisdiction for the place of the preliminary investigation (ibid.).
40. In the case of Mr A., concerning his detention with a view to extradition to Armenia, the Criminal Division of the Supreme Court held as follows (case no. 72-005-19, 8 June 2005):
“The term of detention of the person who is to be extradited to the place of commission of the offence ... is not governed by Article 109 of the Code of Criminal Procedure. In accordance with the requirements of [the 1993 Minsk Convention], the person arrested at the request of a foreign state, may be held in custody for forty days until a request for extradition has been received. Subsequent detention of the person is governed by the criminal law of the requesting party (Armenia in the instant case).”
41. Verifying the compatibility of Article 466 § 1 of the Code of Criminal Procedure with the Russian Constitution, the Constitutional Court reiterated its constant case-law that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings.
42. In the Constitutional Court’s view, the absence of a specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is, the procedure laid down in the Russian Code of Criminal Procedure. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Measures of restraint”) which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for examination of extradition requests.
43. The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the Code of Criminal Procedure did not allow the authorities to apply a custodial measure without respecting the procedure established in the Code of Criminal Procedure, or in excess of the time-limits fixed in the Code.
44. The Prosecutor General asked the Constitutional Court for an official clarification of its decision in Mr Nasrulloyev’s case (see above), for the purpose in particular of elucidating the procedure for extending a person’s detention with a view to extradition.
45. The Constitutional Court dismissed the request, finding it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That matter was within the competence of courts of general jurisdiction.
46. Mr Seidenfeld, a US citizen, was arrested in Russia on 9 December 2005 because his extradition was sought by Kazakhstan. Upon receipt of the formal extradition request, on 30 December 2005 a Russian court ordered his detention sine die, pending extradition. Mr Seidenfeld complained to the Constitutional Court that the provisions of the Code of Criminal Procedure which permitted his detention without a judicial decision were incompatible with the Constitution.
47. The Constitutional Court reiterated its constant case-law that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention as such, in that it required a court to examine whether the arrest was lawful and justified.
48. The Constitutional Court held that Article 466 § 1 of the Code of Criminal Procedure, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours, on the basis of a request for his or her extradition, without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the Russian Code of Criminal Procedure and within the time-limits fixed in the Code.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4
VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-98118
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: PAK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Kliment Yencherovych Pak, is a Kazakhstani national who was born in 1947 and lives in Astana. 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 an unspecified date the applicant arrived in Kyiv, Ukraine and applied for refugee status.
On 8 December 2003 the Podilskyy District Police Office of Kyiv (“the Police Office”) arrested the applicant on suspicion of vagrancy.
On 9 December 2003 the local prosecutor authorised the applicant’s detention.
The same day the local authorities refused to grant the applicant refugee status.
On 10 December 2003 the Police Office placed the applicant in the Kyiv Police Holding Centre for vagrancy.
According to the applicant, the cell in which he was held was always overcrowded; he was not provided with sufficient food; he could not take a shower; and he developed back and skin problems there.
On 6 January 2004 the applicant was released.
On 4 May 2005 the applicant instituted civil proceedings in the Podilskyy District Court of Kyiv against the Police Office, claiming that his arrest and detention had been unlawful and seeking compensation on this account.
On 27 February 2006 that court left the claim unexamined in view of the applicant’s repeated failure to appear for the hearings. The applicant did not appeal against that decision.
On 17 February 2007 the domestic authorities forbade the applicant to enter and stay in Ukraine for three years for having breached the regulations on foreigners staying in Ukraine. Following that decision the applicant left Ukraine for Latvia, where he stayed for a while, and subsequently went back to Kazakhstan.
Section 11 of the Act provided, inter alia, that the police authorities could – subject to a prosecutor’s warrant – detain persons who were suspected of vagrancy for a period of up to thirty days.
Section 25 of the Act provided, inter alia, that actions of a police officer could be challenged, in accordance with the established procedure, to a supervising police authority, a prosecutor, or a court.
Article 248-1 of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision, action or omission of a State body, a legal entity or an official, could lodge a complaint with a court.
According to Article 248-6 of the Code, if such complaint concerned a dispute that had to be resolved in the course of civil adversary proceedings, the court had to leave the complaint unexamined and explain to the claimant his right to lodge a civil claim on a general basis.
Under Article 248-7 of the Code, if a complaint lodged under Article 248-1 of the Code was substantiated, the court could declare the decision, act or omission unlawful and oblige the respondent authority or official to put an end to the violation found. The court could quash the obligation imposed on or the measures applied to the claimant or restore his or her rights in another manner. The court could further order immediate execution of its decision.


ITEMID: 001-77543
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF HERMI v. ITALY
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6
JUDGES: Alvina Gyulumyan;Anatoly Kovler;András Baka;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabeth Steiner;Giovanni Bonello;Ineta Ziemele;Javier Borrego Borrego;Jean-Paul Costa;John Hedigan;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Stanislav Pavlovschi;Vladimiro Zagrebelsky
TEXT: 11. The applicant was born in 1969 and is currently serving a sentence in Viterbo Prison.
12. On 28 November 1999 the applicant was discovered in possession of a package containing 485 grams of heroin and was arrested by the Rome carabinieri. Proceedings were instituted against him for drug trafficking. On 23 December 1999 the applicant appointed two lawyers of his own choosing, Mr M. Marini and Mrs D. Puccinelli.
13. A hearing was held in private before the Rome preliminary hearings judge (giudice dell’udienza preliminare) on 25 February 2000, attended by the applicant and his two lawyers. The record of the hearing shows that there was no interpreter present. The applicant stated that he understood the content of the charge and the evidence against him and could speak Italian. He subsequently requested adoption of the summary procedure (giudizio abbreviato) provided for in Articles 438 to 443 of the Code of Criminal Procedure (“the CCP”). His lawyers requested that their client’s detention pending trial be replaced by house arrest (arresti domiciliari). The preliminary hearings judge, taking the view that the charges against the applicant could be determined on the basis of the steps in the proceedings taken at the preliminary investigation stage (allo stato degli atti), ordered that the summary procedure be adopted and adjourned the proceedings.
14. A further hearing was held in private on 24 March 2000, at which the applicant and his two lawyers were present. The record of the hearing states that the applicant “speaks Italian” (si da atto che parla la lingua italiana). One of the applicant’s lawyers requested that his client be released on the ground that the drugs in his possession had been intended for his personal use. In the alternative, he requested that his client’s detention pending trial be replaced by a less stringent security measure. The requests were rejected by the preliminary hearings judge.
15. In a judgment of 24 March 2000, the Rome preliminary hearings judge sentenced the applicant to six years’ imprisonment and a fine of 40 million Italian lire (approximately 20,658 euros). He observed that the quantity of drugs permitted for personal use must not exceed what was required to meet immediate needs. At the time of his arrest, the applicant had just purchased a quantity corresponding to more than 8,000 average daily doses.
16. The applicant appealed against the judgment, reiterating the arguments adduced at first instance. He contended that interpreting the law on drugs in a way that penalised drug users was in breach of the Constitution.
17. On 1 September 2000 Mr Marini was informed that the hearing had been set down for 3 November 2000. The applicant, who was in Rome Prison, was notified on the same day. He received a letter entitled “Notice to appear in appeal proceedings before the court sitting in private” (decreto di citazione per il giudizio di appello davanti la Corte in camera di consiglio), the relevant parts of which read:
“The President ... of the Court of Appeal ... in view of the notice of appeal lodged by (1) Pacilyanathan Basilaran, born [in] Sri Lanka on 1 November 1964, who is [in] Vasto Prison and (2) Hermi Fauzi [sic], born [in] Tunisia on 27 January 1969, who is [in] Regina Coeli Prison ... against the judgment of the Rome preliminary hearings judge of 24 March 2000 convicting them as [set out] in the official record[;] whereas in the appeal proceedings the court must sit in private as the circumstances are those provided for in Articles 443 § 4 [and] 599 § 1 of the CCP ...; having regard to Article 601 of the aforementioned Code of Criminal Procedure; gives notice to the abovementioned [persons] to appear at the hearing which the Court of Appeal ... is to hold in private on 3 November 2000, at 9 a.m., to rule on the above appeal. The appellants may, up to five days before the hearing and through the intermediary of [their] lawyers, examine at the registry the records and documents and ... make a copy of and consult them ...”
18. Between 1 September 2000 and the day of the hearing, the applicant had no contact with his lawyers.
19. On 23 October 2000 the applicant’s lawyers filed pleadings with the registry of the Rome Court of Appeal. They submitted that there was no proof that the drugs in the applicant’s possession had been intended for sale; the judges should therefore have accepted the applicant’s assertion that they had been for his own personal use. Moreover, the expert chemical analysis of the drugs had been performed by the police without the defendant’s lawyer being present, and was therefore null and void. The firstinstance judge had also omitted to rule on the objection of unconstitutionality raised by the defence. In the alternative, the lawyers requested a reduction of the applicant’s sentence.
20. At the hearing on 3 November 2000, Mr Marini requested an adjournment of the hearing on the ground that Mrs Puccinelli, the applicant’s other lawyer, was ill. The Court of Appeal dismissed the request. Mr Marini then objected to the continuation of the proceedings in the absence of his client and requested that the latter be brought from the prison to the hearing room. The Rome Court of Appeal dismissed his request, observing that the applicant had not informed the authorities in advance that he wished to participate in the appeal proceedings.
21. In a judgment of 3 November 2000, the Court of Appeal upheld the judgment at first instance.
22. The applicant appealed on points of law. He alleged, inter alia, that the appeal judges had not allowed him to attend his trial and that the notice to appear at the appeal hearing had not been translated into Arabic.
23. In his final submissions, the public prosecutor requested that the impugned decision be set aside.
24. In a judgment of 24 January 2002, the Court of Cassation dismissed the applicant’s appeal. It observed that neither the Convention nor the CCP required procedural documents to be translated into the language of a non-national defendant in Italy. However, the latter had the right to be assisted free of charge by an interpreter in order to be able to understand the charges against him and follow the progress of the proceedings. As to the other complaints, the Court of Cassation observed that the presence of the defendant was not required under the summary procedure, the adoption of which had been requested by the applicant himself of his own volition. Furthermore, the applicant had not made clear his wish to participate in the appeal hearing.
25. On 4 July 2003 the Rome court responsible for the execution of sentences granted the applicant leave to serve the remainder of his sentence under house arrest. On 10 July 2003 the applicant left Frosinone Prison. On that occasion he signed a report setting out the terms of his house arrest and elected to reside in a property (tenuta) belonging to one of his lawyers. He subsequently returned to Viterbo Prison.
26. The documents produced by the Government before the Grand Chamber show that the applicant was first identified by the Rome police authorities (Questura) on 15 September 1990 in connection with an investigation into drug trafficking. His fingerprints were taken by the authorities on at least seven subsequent occasions: on 18 January and 27 February 1991, 5 May and 7 September 1992, 15 January 1993, and 31 January and 26 April 1999. On the last occasion, the applicant was arrested driving a stolen vehicle, which he told the carabinieri he had taken a week previously. During the subsequent criminal proceedings against him for theft and driving without a licence, the applicant declared his address and reserved the right to appoint a lawyer. The applicant later sent two handwritten letters to the Viterbo court responsible for the execution of sentences. The letters, dated 20 July and 25 November 2005, were written in Italian and signed by the applicant. In the first, which was two pages long, the applicant complained of the refusal to grant his application for leave of absence. In the second, consisting of a single page, he requested an alternative measure to detention (semilibertà). The applicant had also sent a handwritten letter to the Court of Cassation in March 2004, and on 29 June 2003 had written a short note in Italian to his lawyer.
27. The summary procedure is governed by Articles 438 and 441 to 443 of the CCP. It is based on the assumption that the case can be decided at the preliminary hearing on the basis of the case file as it stands (allo stato degli atti). When the summary procedure is adopted, the hearing takes place in private and is devoted to hearing the arguments of the parties. As a rule, with the exception of cases in which the defendant requests the admission of fresh evidence (integrazione probatoria), the parties must base their arguments on the documents contained in the file held by the Public Prosecutor’s Office. If the judge decides to convict the defendant, the sentence is reduced by one-third. The judgment is delivered in private.
28. The relevant parts of the provisions of the CCP governing the summary procedure, as amended by Law no. 479 of 16 December 1999, read as follows.
Article 438
“1. The defendant may request that the case be decided at the preliminary hearing on the basis of the case file as it stands ...
2. The request may be made, orally or in writing, until such time as the final submissions have been made under Articles 421 and 422.
3. The wishes of the defendant shall be expressed in person or through the intermediary of a specially instructed representative [per mezzo di procuratore speciale]. The signature on the instruction shall be authenticated by means of the formalities detailed in Article 583 § 3 [by a notary, another authorised person or counsel for the defence].
4. The judge shall give a decision on the request in the order adopting the summary procedure.
5. The defendant ... may make his request subject to the admission of new evidence necessary for the court to reach a decision. The judge shall adopt the summary procedure if the admission of such evidence is necessary for a decision to be reached and is compatible with the aim of economy inherent in the procedure, taking into account the documents already before the court which can be used. In such cases the prosecution may request the admission of rebutting evidence. ...
...”
Article 441
“1. The summary procedure shall follow the provisions laid down concerning preliminary hearings, in so far as they can be applied, with the exception of Articles 422 and 423 [provisions governing the power of the judge to order of his own motion the production of crucial evidence and the possibility for the prosecution to amend the charge].
...
3. The summary proceedings shall be conducted in private. The judge shall order the proceedings to be conducted at a public hearing if all the defendants so request.
...
5. Where the judge considers that the case cannot be determined as it stands he shall acquire (assume) of his own motion the evidence necessary for a decision to be reached. In such cases, Article 423 shall apply.
6. For the purposes of the production of the evidence [referred to] in paragraph 5 of the present Article and in Article 438 § 5, the arrangements adopted shall be those set forth in Article 422 §§ 2, 3 and 4 [these paragraphs permit the parties to put questions to the witnesses and expert witnesses through the intermediary of the judge and give the defendant the right to request that he be questioned].”
Article 442
“1. Once the arguments have been heard, the judge shall take a decision under the terms of Articles 529 et seq. [these provisions concern discharge, acquittal and conviction].
1 bis. The judge’s deliberations shall be based on the documents contained in the file [referred to] in Article 416 § 2 [the file held by the Public Prosecutor’s Office on the steps taken in the preliminary investigation], the documents [indicated] in Article 419 § 3 [relating to the steps in the investigation taken after the defendant was committed for trial] and the evidence adduced at the hearing.
2. If the defendant is convicted, the sentence imposed by the judge in the light of all the circumstances shall be reduced by one-third. Life imprisonment shall be replaced by thirty years’ imprisonment. Life imprisonment with solitary confinement ... shall be replaced by life imprisonment.
3. The judgment shall be served on the defendant if he or she was not present.
...”
Article 443
“1. The defendant and the prosecution may not appeal against an acquittal if the object of the appeal is to secure a different form [of acquittal].
...
3. The prosecution may not lodge an appeal against a conviction unless the judgment alters the legal characterisation of the offence [il titolo del reato].
4. The appeal proceedings shall be conducted in accordance with the provisions of Article 599.”
29. Article 597 § 1 of the CCP states:
“The appeal judge shall be empowered to rule [la cognizione del procedimento] solely [limitatamente] on those aspects of the decision referred to in the grounds of appeal.”
30. The relevant parts of Article 603 §§ 1 and 2 of the CCP read as follows:
“1. Where one of the parties, in the grounds of appeal, ... has requested the admission of evidence already produced at first instance or of new evidence, the judge, if he considers that he is unable to determine the case as it stands [se ritiene di non essere in grado di decidere allo stato degli atti], shall order the investigation to be reopened.
2. If fresh evidence has come to light or [has been] discovered since the proceedings at first instance, the judge shall order the investigation to be reopened within the limits laid down by Article 495 § 1 [exclusion of evidence which is prohibited by law, manifestly superfluous or of no relevance to the proceedings].”
31. As indicated in the reference contained in Article 443 § 4 of the CCP (see paragraph 28 in fine above), when an appeal is lodged under the summary procedure, the second-instance proceedings are conducted in accordance with the provisions of Article 599 of the CCP. The relevant parts of Article 599 read as follows:
“1. When an appeal relates solely to the type or severity of the sentence, ... the court shall sit in private in accordance with the arrangements set forth in Article 127.
2. The hearing shall be adjourned if a defendant who has expressed a wish to appear has a legitimate reason for not attending.
3. In cases where the investigation is reopened after the appeal proceedings have begun, the judge shall take the evidence in private, in accordance with Article 603. The prosecution and defence counsel must be present. If the latter is not present when the reopening of the investigation is ordered, the judge shall set down a further hearing and shall order a copy of his decision to be forwarded to the prosecuting authorities and served on counsel for the defence.
...”
32. The overall arrangements for conducting hearings in private are set out in Article 127 of the CCP, which reads as follows.
“When proceedings must be held in private, the judge or the president of the chamber shall set down the hearing and serve notice of it on the parties, other interested persons and counsel for the defence. The notice shall be forwarded or served at least ten days before the date chosen. If the defendant has no counsel, the notice shall be sent to the officially appointed defence lawyer.
2. Memorials may be filed with the registry up to five days before the hearing.
3. Evidence shall be heard from the prosecution, the other recipients of the notice and the defence counsel if they appear at the hearing. If the person concerned is detained or imprisoned in a place outside the jurisdiction of the court and so requests, evidence must be taken from him before the date of the hearing by the judge responsible for the execution of sentences in that place.
4. The hearing shall be adjourned if a defendant or convicted person who has requested leave to give evidence in person and who is not detained or imprisoned in a place outside the court’s jurisdiction has a legitimate reason for not attending.
5. Failure to comply with the provisions of paragraphs 1, 3 and 4 shall render the proceedings null and void.
6. The hearing shall be conducted in camera.
7. The judge shall rule by means of an order to be served on or forwarded to the persons indicated in paragraph 1 as soon as possible. The persons concerned may lodge an appeal on points of law.
8. Enforcement of the order shall not be stayed pending the appeal, unless the judge who issued the order decides otherwise by means of a reasoned decision [con decreto motivato].
9. A decision to declare the notice of appeal inadmissible shall be issued by the judge in the form of an order and without the need for procedural formalities, unless otherwise provided. The provisions of paragraphs 7 and 8 shall apply.
10. The record of the hearing shall be drafted, as a general rule, in the form of a summary in accordance with Article 140 § 2.”
33. The Court of Cassation has ruled that this provision applies to appeal hearings under the summary procedure. In particular, in its judgment no. 6665 of 24 April 1995 in the Visciano case, it articulated the following legal principle: “A defendant who is in prison or under house arrest must also be given a hearing ... in appeal proceedings against a judgment given [following] summary proceedings in accordance with Article 442 of the CCP, but only if he or she so requests within the time-limit laid down by Article 127 § 2 of the CCP (that is, at least five days before the hearing), in accordance with the reference in the last paragraph of Article 443 of the CCP to Article 590, the first paragraph of which refers, in turn, to the ‘formalities provided for in Article 127’ for proceedings conducted in private.”
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-96805
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ČÍŽKOVÁ v. SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 6. The applicant was born in 1947 and lives in Tabor, Czech Republic.
7. On 27 August 1982 the applicant was involved in a major traffic accident in Serbia. Her car was destroyed in a head-on collision with an inter-city bus while the applicant and her family members all sustained serious injuries.
8. On 16 May 1985 the applicant filed a compensation claim against a Serbian insurance company with the Municipal Court in Novi Sad (Opštinski sud u Novom Sadu).
9. Following two remittals, both of which took place before Serbia ratified the Convention, on 25 October 2002 the parties in the domestic proceedings informed the Municipal Court that they were willing to consider a friendly settlement.
10. On 18 March 2003 the Municipal Court suspended the proceedings, stating that they would be continued should the parties fail to reach a settlement.
11. Since the friendly settlement negotiations were unsuccessful, on 13 February 2004 the applicant urged the Municipal Court to resume the proceedings.
12. Following at least three scheduled hearings and the receipt of an expert's report, on 14 June 2007 the Municipal Court ultimately ruled partly in favour of the applicant. On an unspecified date thereafter this judgment became final since neither party filed an appeal against it.
13. The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings in question had been incompatible with the “reasonable time” requirement which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
14. The Government contested that argument.
15. The Court observes that the proceedings in question ended by 14 June 2007. Since the respondent State ratified the Convention on 4 March 2004, they have thus been within the Court's competence ratione temporis for a period of more than three years and three months at one level of jurisdiction.
16. The Court also recalls that, in order to determine the reasonableness of the delay at issue, regard must be had to the state of the case on the date of ratification (see, mutatis mutandis, Styranowski v. Poland, 30 October 1998, Reports of Judgments and Decisions 1998VIII) and notes that on 3 March 2004 the impugned proceedings had already been pending for almost nineteen years in all.
17. The Government raised various objections to the admissibility of the applicant's complaint. However, the Court has rejected similar objections in many previous cases (see, for example, Cvetković v. Serbia, no. 17271/04, §§ 38 and 42, 10 June 2008; Tomić v. Serbia, no. 25959/06, §§ 81 and 82, 26 June 2007; V.A.M. v. Serbia, no. 39177/05, §§ 85 and 86, 13 March 2007). It finds no particular circumstances in the instant case which would require a departure from this jurisprudence. It therefore declares this complaint admissible.
18. The Government further stated that there had been no violation of Article 6.
19. Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000VII).
20. The Court has frequently found violations of Article 6 § 1of the Convention in cases raising issues similar to the one in the present case.
21. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In view of its case-law on the subject, the Court therefore considers that the length of the impugned proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.
22. The applicant further complained under Article 6 of the Convention that the proceedings at issue had been unfair.
23. The Court notes that the applicant did not avail herself of the opportunity to file an appeal against the Municipal Court's judgment of 14 June 2007. It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
24. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
25. The applicant claimed 50,000 euros (EUR) and EUR 130,000 in respect of the non-pecuniary and pecuniary damages suffered, respectively.
26. As regards the former, tapplicant EUR 1,200 under this head.
27. The Court, however, does not discern a causal link between the violation found and the pecuniary damage sought. It therefore rejects the applicant's claim in this regard.
28. The applicant did not make any claim for costs and expenses. Accordingly, the Court is not required to make an award under this head.
29. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5542
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: KASPERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Dutch national, born in 1958, and currently detained in HM Prison Swaleside, Kent. He is represented before the Court by Ms. A. Röttgering, a lawyer practising in Amsterdam. The respondent Government are represented by their agent, Mr C.A. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 February 1992 the applicant was placed under surveillance by British Customs and Excise officers after he was seen having a business meeting with two British citizens, “J” and “O”, both of whom had been under investigation since June 1991.
The applicant was arrested on 27 July 1992. On 28 July 1992 he was charged with conspiracy to import cannabis, cannabis resin and cocaine and with the importation of cocaine contrary to Section 170(2) of the Customs and Excise Management Act 1979. On 26 October 1992 the charge against the applicant relating to the alleged conspiracy to import cannabis and cannabis resin was withdrawn.
The applicant’s trial at the Inner London Crown Court commenced on 19 July 1993. The prosecution claimed that between November 1990 and July 1992 he had conspired with J. to import large quantities of cocaine into the United Kingdom. On 27 July 1992 he had smuggled in eight kilograms of cocaine, worth GBP 1.13 million, hidden in satellite receiver boxes in his car. One of the bags had the applicant’s fingerprints on it. It was claimed that he had used his company, “Eurosales”, as a cover.
The applicant gave evidence at trial. He admitted bringing the cocaine into the United Kingdom, but claimed not to have known that the satellite box contained drugs, believing instead that he was smuggling jewellery. He stated that he had had previous dealings with J. and O. in connection with valuable watches and had put them in touch with his supplier. They had asked him to bring over a consignment of jewellery on his next business trip of 27 July 1992.
J. pleaded guilty to charges of conspiracy to evade the restrictions on the importation of both cannabis and cocaine. Four other co-defendants, O., K., M. and D., pleaded guilty to conspiracy to evade the restrictions on the importation of cannabis.
Prior to the trial, the prosecution made an ex parte application to the trial judge in accordance with the Court of Appeal’s guidelines in R. v. Davis, Johnson and Rowe (see below). The judge ruled there was no obligation on the prosecution to make further disclosure and indicated that he would review his decision during the course of the trial. The defence was notified that an application would be made, but was not informed of the category of material which the prosecution sought to withhold on grounds of public interest immunity.
At various points during the trial the judge prohibited questioning on certain issues, including whether or not Customs and Excise had relied on an informer and details relating to the manner in which surveillance of the applicant had been carried out. On 23 July 1993 the judge stopped defence counsel from asking any questions about undisclosed sensitive material. When defence counsel asked how he would know if his questions were straying into sensitive areas, he was referred to a list of questions produced four days prior to the trial.
In his summing-up the judge told the jury that there were some areas of investigation which he had not allowed to be opened up through disclosure or cross-examination. Defence counsel told the jury that there was a risk that the restrictions on questioning could result in a miscarriage of justice.
On 11 September 1993 the applicant was convicted of conspiracy to contravene Section 170(2)(b) of the Customs and Excise Management Act 1979 in relation to the importation of a Class A controlled drug. On 21 October 1993 he was sentenced to eighteen years’ imprisonment. A confiscation order in the sum of GBP 36,707 was also imposed under the Drug Trafficking Offences Act 1986 with a consecutive sentence of eighteen months’ imprisonment in default of payment.
On 22 May 1995 the Court of Appeal refused leave to appeal against conviction and sentence, commenting:
“Before the hearing we had the advantage of looking at the material which was put before the trial judge. Each member of this court has read it. We have no doubt, having read it and being fully apprised of the issues in the case and the basis upon which the defence sought to have further material disclosed, that the trial judge was correct in his ruling. [The applicant’s] counsel frankly and properly indicated to this court that since he did not know what the material was and since he knew that we had seen it, he could not develop the grounds upon which he had relied beyond reasserting them and inviting us to take a different view from that taken by the trial judge. Not only do we consider that the trial judge was correct in his decision, but we consider that he followed the correct procedure to the letter in everything he did in relation to the ex parte application and the decisions arising from it.”
The Court of Appeal also concluded that the judge had been correct to withhold information regarding the manner in which surveillance had been carried out, noting that the work of Customs and Excise would be hampered if such information were made known.
At common law, the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial. The duty also extends to statements of any witnesses potentially favourable to the defence.
In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common law duty to disclose to the defence certain evidence of potential assistance to it ((1982) 74 Cr. App. R. 302 (“the Guidelines”)). The Guidelines attempted to codify the rules of disclosure and to define the prosecution’s power to withhold “unused material”. Under paragraph 1, “unused material” was defined as:
“(i) All witness statements and documents which are not included in the committal bundle served on the defence; (ii) the statements of any witnesses who are to be called to give evidence at the committal and (if not in the bundle) any documents referred to therein; (iii) the unedited version(s) of any edited statements or composite statement included in the committal bundles.”
According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive” material which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as follows:
“(a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of, an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of, a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier - e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife.”
According to paragraph 8, “in deciding whether or not statements containing sensitive material should be disclosed, a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence”. The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution, although any doubt should be resolved in favour of disclosure. If either before or during the trial it became apparent that a duty to disclose had arisen, but that disclosure would not be in the public interest because of the sensitivity of the material, the prosecution would have to be abandoned.
Since 1992 the Guidelines have been superseded by the common law, notably by a number of decisions of the Court of Appeal. In R. v. Ward ([1993] Weekly Law Reports p. 619) the Court of Appeal dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity. It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case, because:
“... [When] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings. Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned.”
The Court of Appeal described the balancing exercise to be performed by the judge as follows:
“... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed”.
In R. v. Davis, Johnson and Rowe ([1993] Weekly Law Reports p. 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted. The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence then had the opportunity to make representations to the court. Secondly, however, where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed, the prosecution should still notify the defence that an application to the court was to be made, but the category of the material need not be disclosed and the application should be ex parte. The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence.


ITEMID: 001-80482
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KUSHOGLU v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Peer Lorenzen
TEXT: 7. The applicants, Ms Ayten Kushoglu (alias Ayten Zeynal Ali) and Mr Mehmed Kushoglu (alias Mehmed Sali Ali), have Bulgarian and Turkish nationality. They were born in 1958 and 1956 respectively and live in Malkara, Turkey.
8. The applicants were born and lived in Bulgaria until the summer of 1989, when the communist regime in Bulgaria forced tens of thousands of ethnic Turks, among them the applicants, to emigrate.
9. Before leaving, on 24 July 1989 the applicants sold their two-storey house in Dulovo to the local municipality. At the relevant time, a person willing to sell real estate could only do so through the intermediary of the local municipality. The price was fixed at 19,288 Bulgarian levs (“BGL”), in accordance with an evaluation made by an expert at the municipality. The applicants received that amount.
10. On 12 February 1990 the municipality sold the house to two individuals, Ms A. and Mr N. The price was BGL 21,376.
11. On an unspecified date in 1991 the applicants brought an action against the Dulovo municipality for a declaration that the 1989 transaction between them was null and void as being contrary to the law or concluded in circumstances of urgent necessity and under obviously unfavourable terms.
12. On an unspecified date in 1993 the applicants brought another action against Ms A. and Mr N. claiming that the contract of 12 February 1990 between the Dulovo municipality as the seller and Ms A. and Mr N. as the buyers was also null and void as being contrary to the law. On that basis the applicants asked the court to order the defendants to “surrender the ownership and the possession” over the disputed house. The proceedings in the above two cases were joined on 19 February 1993.
13. On 2 March 1994 the Dulovo District Court gave judgment. It declared inadmissible, as having been submitted out of the relevant one-year statutory time-limit, the applicants' claim that the 1989 transaction had been concluded in circumstances of urgent necessity and under obviously unfavourable terms. It further rejected on the merits the applicants' claims that the 1989 and 1990 transactions were null and void as being contrary to the law.
14. Upon the applicants' appeal, on 8 June 1994 the Silistra Regional Court upheld the lower court's judgment. The applicants submitted a petition for review to the Supreme Court.
15. On 17 January 1995 the Supreme Court quashed the lower courts' judgments and declared with final effect the nullity of the 1989 transaction between the applicants and the municipality. The transaction was null and void as it had been signed on behalf of the municipality by a person lacking the relevant power.
16. As to the applicants' claim that the 1990 transaction between the municipality and the third parties was also null and void, the Supreme Court found that the lower courts had not considered all relevant factors and referred this part of the case back to the Regional Court. It also referred for renewed examination the applicants' rei vindicatio claim, stating that it must be considered in the light of the outcome of the dispute about the validity of the 1990 contract.
17. On 19 April 1995, in the renewed examination of the remainder of the case, the Silistra Regional Court found that the 1990 contract was valid. It then went on to dismiss the applicants' rei vindicatio claim stating:
“The binding directions given by the Supreme Court [in its judgment of 17 January 1995] appear to indicate that the outcome of the rei vindicatio claim depends on the outcome of the claim [that the 1990 contract was null and void]. The latter claim must be dismissed as there are no defects in the 1990 transaction. In this sense, the defendants Ms A. and Mr N. are in possession of the disputed property on existing grounds. It follows that one of the conditions for a successful rei vindicatio – that the defendant holds the property without valid grounds – has not been established. As there exists a valid contract between the municipality and Ms A. and Mr N., it cannot be considered that there is a lack of valid grounds. ”
18. The applicants submitted a petition for review (cassation), claiming that they were entitled to recover the house from Ms A. and Mr N.
19. On 8 February 1996 the Supreme Court rejected the petition for review (cassation), stating in the reasoning and operative parts of its judgment, that the Regional Court's conclusions had been correct. In the introductory part of its judgment, restating the procedure in the case, the Supreme Court mentioned that the Regional Court had decided that the 1990 contract was valid and “Ms A. and Mr N. were the owners of the property”.
20. In 1996 the applicants sent complaints to the municipal authorities in Dulovo and other institutions. In reply, on 28 February 1997 the mayor of Dulovo advised them that following the Supreme Court's judgment of 17 January 1995 declaring null and void the 1989 contract, the applicants were considered its owners.
21. On 15 April 1998 the applicants brought a fresh rei vindicatio action against Ms A., Mr N. and the Dulovo municipality, stating that they based their new action on grounds different from those raised in the previous proceedings. In particular, they did not claim that the 1990 contract between the municipality and Ms A. and Mr N. was null and void but that it had never had any effect in rem since, in accordance with the basic principles of property law, ownership could only be acquired by dealing with the owner. Since the 1989 contract had been null and void ab initio, the Dulovo municipality had never become the owner of the disputed house and thus could not validly transfer the title thereto. The applicants stressed that the courts in the first proceedings had not dealt with this ground for restitution.
22. On 20 July 1998 the Dulovo District Court terminated the proceedings on the basis that the dispute was a res judicata. It referred in particular to the judgment of the Supreme Court of 8 February 1996.
23. The applicants appealed, stating that the previous proceedings had been limited to the issue whether or not the 1990 transaction had been null and void. The courts had never dealt with the question who was the owner of the disputed property. Any other interpretation of the judgments in the previous proceedings was absurd, as it would run contrary to the basic principles of property law.
24. On 26 September 1998 the Silistra Regional Court dismissed the appeal in private. The applicants' ensuing appeal to the Supreme Court of Cassation was also dismissed in private, on 29 December 1998. The Supreme Court of Cassation stated:
“The parties to the [previous] proceedings and the current proceedings are the same ... The dispute [in the previous proceedings] concerned the ownership of the [same house] ... The grounds invoked were the nullity of the 1989 transaction between the applicants and the municipality and, on that basis, the [alleged] nullity of the subsequent transaction [of 1990] between the municipality and [Ms A. and Mr N.].
All matters have been decided and are res judicata ... “
25. In August 1998, the applicants requested the interpretation of the Supreme Court' judgment on 8 February 1996, stating that it was unclear. In their submissions, they averred that the courts had delivered arbitrary decisions, bringing about an absurd situation. In particular, the applicants criticised the courts' failure to explain on the basis of the relevant principles of property law who was the owner of the property and why.
26. By judgment of 11 June 1999 the Supreme Court of Cassation dismissed the request. In the introductory part, the impugned judgment of 8 February 1996 was described as having recognised that Ms A. and Mr N. were the owners of the disputed house. The Supreme Court of Cassation further stated that the judgment of 8 February 1996 was clear in so far as it upheld the Regional Court's judgment of 19 April 1995. As regards the clarity of the Regional Court's judgment, it was not possible to engage in its interpretation as that would be tantamount to a re-examination of the case.
27. Under the Law on Obligations and Contracts, as interpreted by the courts, a contract that is null and void as being contrary to the law is considered null and void ab initio. It is considered to have never produced any legal effect. Each party can seek from the other restitution of all it has given under the void contract.
28. Under the Property Act and the relevant judicial practice, a person who has bought a real estate from another does not become its owner if the seller's title was not valid. In such cases, if the original owner seeks rei vindicatio from the last buyer even after a chain of transactions, the validity of the last buyer's contract is immaterial as it does not produce effects in rem. The Supreme Court of Cassation has applied this practice in cases of two or more consecutive transfers where the first transaction was found to have been null and void ab initio and, therefore, none of the subsequent buyers could acquire title to the property, even if their contracts were valid. In such cases, each consecutive transaction is retrospectively considered as a sale of a real estate belonging to a third person (see judgment no. 1876 of 3.12.1998 in case no. 3515/96 of the Supreme Court of Cassation). The last buyer may only become the owner of the property through acquisitive prescription (usucapion) on the basis of undisturbed possession of five or ten years.
29. Where the owner has successfully recovered the property from the last buyer, the latter can seek from “his” seller recovery of the price paid.
30. Under section 108 of the Property Act and the relevant case-law, the plaintiff in rei vindicatio proceedings must prove two elements: 1) the validity of his title and 2) the fact that there are no legal grounds for the defendant to hold the property. Valid grounds to hold the property may be rights in rem such as ownership or a right to use the property, contractual rights such as tenancy or a right to withhold possession until the payment of a debt and other concrete rights.
31. Judgments of the civil courts are binding on the parties, their successors, the courts and all other State organs (Article 220 § 1 of the Code of Civil Procedure).
32. Final judgments preclude any re-examination of the same dispute between the same parties (Articles 221 and 224 of the Code). They are not conclusive, however, in respect of disputes on the same subject between different parties or between the same parties on a different subject matter.
33. The issue determined in a court's findings on the merits is a res judicata. In order to establish the content of the issue determined, regard must be had to the scope of the dispute and, therefore, to the court's reasoning. In addition, certain decisive findings on elements directly determinative of the disputed right or obligation may also be seen as res judicata (201-91-I, 98790-I, 433-90-I, 30-64-OSGK).
34. The Law on Restitution of Real Property of Bulgarian Citizens of Turkish Origin Who Sought to Travel to Turkey or to Other Countries in the Period May - September 1989 provides for the restitution, under certain conditions, of property sold or transferred otherwise during the forced exodus of the Bulgarian Turks. The law only applies in respect of persons who settled back in Bulgaria before 1 March 1992. It does not exclude the application of the general rules of civil law in all other cases.