ITEMID: 001-110804
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF AIGNER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 6. The applicant was born in 1954 and lives in Graz.
7. On 20 March 2001 Mrs K was questioned by the police after shouting from the window of the applicant’s room. She stated that she had met the applicant that afternoon in a public house. After visiting further pubs she had accompanied him to his rented room where, she alleged, he had attempted to rape her. On 21 March 2001 Mrs K was again questioned by the police and criminal proceedings were instituted against the applicant.
8. Between 1.04 p.m. and 3.16 p.m. on 18 April 2001 Mrs K was questioned by the investigating judge in the presence of the applicant, his lawyer, a psychiatric expert Mr H and the court stenographer. The applicant and his lawyer were given the opportunity to put questions to Mrs K and the hearing was recorded on video. Mrs K stated that in the course of the attempted rape the applicant had hit her across the left temple, grabbed her by the hair and threatened her with a knife. In the course of the struggle she had injured her hand on the knife. Mrs K also stated that she had worked as a prostitute between 1990 and 1996/97, but said that the applicant had been unaware of this. At the end of the examination the applicant’s counsel stated that she had no further questions to put to Mrs K. Subsequently the questioning was transcribed and the transcript ran to 29 pages.
9. On 9 October 2001 the Graz Regional Court (Landesgericht) convicted the applicant of attempted rape with violence. At the trial Mrs K refused to give evidence. The applicant appealed to the Supreme Court (Oberster Gerichtshof), which upheld his plea of nullity and quashed the conviction. It found that the proceedings before the Regional Court were defective under Article 258 of the Code of Criminal Procedure (Strafprozeßrechtsordnung) as the Regional Court had based its findings on Mrs K’s statements to the police, which had not been read out at the trial.
10. The Regional Court then resumed the proceedings in a new composition. At hearings on 1 July, 26 August, 15 October and 19 November 2002, it heard evidence from the applicant and further witnesses. These witnesses included Mr S, a waiter working in one of the pubs which the applicant had visited with Mrs K, Mrs P, the innkeeper of another pub, and Mr L, Mrs K’s partner. In the course of their testimony these witnesses made inter alia the following statements: Mr S, who had previously stated that he had noticed a blue mark on Mrs K’s left temple, now said that he did not know exactly where the blue mark was and that he had not seen Mrs K’s face. Mrs P stated that Mrs K’s behaviour often became erratic after she had consumed alcohol, that she frequently sought refuge from her partner and later invented a pretext, that her partner beat her and that she often had black eyes. Mr L stated that Mrs K had worked as a prostitute but had stopped doing so some months prior to the incident.
11. The Regional Court heard evidence from four police officers who had been called to the scene. All of them had noticed a knife wound on Mrs K’s hand. Two officers had noticed a slight swelling on her temple. Another police officer had noticed loose strands of Mrs K’s hair including some on the applicant’s clothes.
12. The Regional Court also heard evidence from Mr H, who had submitted an expert opinion on the question of the extent to which Mrs K’s alcohol level at the material time had affected her ability to remember the events. Mr H stated that Mrs K’s statements were likely to be true.
13. Mrs K was invited to give evidence while the applicant, pursuant to Article 250 of the Code of Criminal Procedure, was taken into an adjacent room. However, as Article 152 § 1 subsection 2a of the Code of Criminal Procedure entitled her to do, Mrs K refused to give evidence and requested that the statements she had made to the police and the investigating judge be read out instead. The court granted her request. The Court also granted the applicant’s request for the video recording of her deposition before the investigating judge to be shown. However, when played, the video recording turned out to be a blank tape.
14. The applicant contested Mrs K’s credibility. He argued in particular that her account of how she had come to be in his room and of her conduct after the alleged offence was not plausible and requested the court to inspect the scene. He further contended that there were a number of discrepancies between the events as described by Mrs K to the police and those she had described to the investigating judge, as well as between her evidence and the evidence given by the witnesses, Mr S, Mr L and Mrs P, at the trial. He therefore requested the court to call Mrs K again and, to the extent his opinion was of relevance for the court, the expert witness Mr H. The applicant submitted that Mr H should also give evidence on the methods he had used to assess Mrs K’s credibility and the kind of questions he had asked when she appeared before the investigating judge. The applicant argued, lastly, that, in view of the large number of contradictions in the evidence given by Mrs K, who was the sole prosecution witness, it was essential for the court to view the video recording of her hearing in order to be able to assess her credibility. He added that, if the recording could not be shown, then he should be given the benefit of the doubt and acquitted.
15. The court dismissed the applicant’s requests for the further taking of evidence. It did not consider it useful to visit the scene as the room in question was no longer in the state it had been in at the material time. Furthermore, photographs of the premises could be seen in a file prepared by the police, and it was for the court to analyse the inconsistencies between Mrs K’s and the applicant’s differing statements. For the latter reason it also refused to put further questions to Mr H. Lastly, it dismissed the applicant’s request for Mrs K to be called again to give further evidence as she had refused to give evidence at the trial and there was no indication that she would change her mind.
16. On 19 November 2002 the Regional Court, sitting in a formation of two professional judges and two lay judges, convicted the applicant of attempted rape with violence. It relied partly on Mrs K’s statements to the police and the investigating judge. It noted that Mrs K had been under the influence of alcohol to a considerable degree at the time of the events. The court accepted the applicant’s argument that Mrs K had accompanied him to his room voluntarily. It found, however, that despite Mrs K’s inability to recall the events immediately before and after the attempted rape, her allegations of assault were credible. It noted in this regard that they were consistent with the other evidence obtained in the proceedings, namely the injuries to Mrs K witnessed by the police officers. The court did not believe the applicant’s account that he had invited Mrs K for drinks all afternoon and then to his room out of sympathy for her. It further noted that the applicant could not give any convincing reason for the fact that strands of Mrs K’s hair had been spotted by a police officer on his clothes. Furthermore, it did not believe the applicant’s assertions that Mrs K had injured herself in a fall on the way from the pub to his flat or that she had not suffered any other injuries, in particular the wound to her hand. Having regard to Mrs K’s injuries and to the applicant’s criminal record of eleven previous convictions, it sentenced the applicant to three years’ imprisonment. Referring to a psychiatric expert opinion, it further ordered that he be detained in an institution for mentally ill offenders.
17. The applicant filed a plea of nullity with the Supreme Court (Oberster Gerichtshof) in which he complained inter alia about the dismissal of his requests for further evidence to be taken. He submitted in particular that the photographs to which the Regional Court had referred did not show the room as it was at the time of the events. He argued that in view of the various inconsistencies in Mrs K’s description of the events, the Regional Court should have visited the scene in order to stage a reconstruction. He further argued that the proceedings had been conducted contrary to the direct evidence rule (Unmittelbarkeit) in that the trial court had not seen the video recording of the hearing at which the depositions were taken. In view of this and of new evidence that had come to light at the trial, namely the statement by Mrs P that Mrs K frequently made up stories as she feared being beaten up by her partner, the trial court should have recalled Mrs K or, at least, allowed further questions to be put to Mr H. In the applicant’s submission, the proceedings had therefore violated his right under Article 6 of the Convention to conduct his defence effectively.
18. On 20 February 2003 the Supreme Court rejected the applicant’s plea of nullity. It noted that no inspection of the scene was necessary as the applicant’s intention was to prove that Mrs K’s allegations concerning the way to his room and her behaviour after the attempted rape were not true; however, these facts had not been relevant to the court’s decision. As regards his request to call Mrs K again, the applicant had not submitted any reasons why Mrs K would be prepared to give evidence after refusing to do so at the trial on 1 July 2002. The Supreme Court also found that the applicant’s request to hear further evidence from Mr H had not been sufficiently substantiated as it was conditional. In any event, the Regional Court had not relied on Mr H’s expert opinion in its judgment. The Supreme Court noted, lastly, that the Regional Court had dealt with the inconsistencies between Mrs K’s statements to the police and to the investigating judge and between her statements and Mrs P’s statement in the context of its assessment of evidence, an assessment that appeared logical.
19. On 9 April 2003 the Graz Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal, but granted the Public Prosecutor’s cross-appeal and increased the sentence to four years’ imprisonment. That decision was served on the applicant’s counsel on 9 May 2003.
20. Article 258 of the 1975 Code of Criminal Procedure (Strafprozessordnung), provides that all evidence must in principle be taken at the trial. In particular, witnesses and experts must make their statements orally before the court. Documents may only be used as evidence if they have been read out in court.
21. Article 252 lays down that court transcripts of the questioning of witnesses, other official documents in which statements of witnesses have been recorded and technical recordings of the questioning of witnesses may only be read out or shown at the trial if the witnesses concerned are entitled to refuse to give evidence at the trial (Article 152) and the parties have had the opportunity to participate in the questioning (Article 162a and 247).
22. Article 162a § 1 of the 1975 Code of Criminal Procedure provides for an adversarial hearing before the investigating judge if, on factual or legal grounds, there is reason to fear that the hearing of a witness will not be possible at the trial. The public prosecutor, the defendant and the defendant’s lawyer should be given an opportunity to attend the hearing and question the witness.
23. Article 152 § 1 subsection 2a states that victims of sexual offences by the accused are exempted from giving evidence at the trial if there has been an adversarial hearing of the victim in the preliminary proceedings. This provision was introduced as part of the 1998 reform of the Code of Criminal Procedure. Prior to this reform, only minors aged under fourteen at the time of an alleged sexual offence were exempted from giving evidence at trial. The relevant explanatory notes to the government bill (Erläuterungen zur Regierungsvorlage) state:
“In fact it is to be assumed that the manner in which and date on which the victim gives evidence in criminal proceedings are closely linked to the context of the conflicting aims of victim protection, defence rights and the interest of prosecution. The 1993 reform of the Code of Criminal Procedure has already taken account of the necessary rights for the defence to participate in the proceedings and to question [the victim] and these are also relevant to the provisions of the European Convention of Human Rights. However, it would also appear to be in the interest of victims of sexual offences aged over fourteen for them to be questioned only once, as, in general, making a statement places a heavy mental burden on them. On the other hand, it cannot be overlooked that if the victim is only questioned once and at an early date, there is a danger that it will not be possible to obtain complete consistency between this testimony and the results of subsequent investigations or examinations ... However, the argument in favour of nevertheless increasing procedural safeguards for the alleged victims of sexual offences is the danger of the court proceedings causing damage and traumatisation [to the victim] (secondary victimisation) which has, incidentally, been highlighted by all the experts who work with such victims. When responsibly weighing these interests of the victim against the interests of ascertaining the facts, preference must nevertheless be given to the protection of the victim, especially since it is usually possible to at least partly counterbalance the possible negative effects on evidence by corresponding ‘case management’ and since an examination at a potentially early date is not only in the interest of the witnesses but also promotes the purpose of the procedure, as recollections will still be fresh.”
24. Article 250 of the 1975 Code of Criminal Procedure provides that the presiding judge at the trial may exceptionally order an accused to be held in an adjacent room while a witness gives evidence. The accused must be informed of all statements made in his absence.
25. On 1 January 2008 the Code of Criminal Procedure Amendment Act (Strafprozessreformgesetz) entered into force. While this act brought major changes in particular for the proceedings at the pre-trial stage, the above provisions remained essentially unchanged, even though the numbering of some of the Articles described changed.
26. Article 3 of Council Framework Decision no. 2001/220/JHA of 15 March 2001 on the Standing of Victims in Criminal Proceedings requires each Member State inter alia to supply evidence and to take appropriate measures to ensure that its authorities question victims only in so far as necessary for the purpose of criminal proceedings. Articles 2 and 8(4) require each Member State to make every effort to ensure that victims are treated with due respect for their personal dignity during proceedings, to ensure that particularly vulnerable victims benefit from specific treatment best suited to their circumstances and to ensure that where there is a need to protect victims, particularly those most vulnerable, from the effects of giving evidence in open court, victims may, by decision taken by the court, be entitled to testify in a manner enabling that objective to be achieved, by any appropriate means compatible with its basic legal principles.
27. In its judgment of 16 June 2005 in case no. C-105/03, the European Court of Justice stated that the objectives of these provisions consist, in particular, in ensuring that particularly vulnerable victims receive “specific treatment best suited to their circumstances” and the benefit of special hearing arrangements that are capable of guaranteeing to all victims treatment which pays due respect to their individual dignity and gives them the opportunity to be heard and to supply evidence, and in ensuring that those victims are questioned “only insofar as necessary for the purpose of criminal proceedings”. Where national legislation allows testimony to be given only once, during the preliminary enquiries, a national court should be able, in respect of particularly vulnerable victims, to use a special procedure if it best corresponds to the situation of the victims and is necessary in order to prevent the loss of evidence, to reduce the repetition of questioning to a minimum and to prevent the damaging consequences, for the victims, of their giving testimony at the trial.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-75427
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: MOLKA v. POLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Antoni Mółka, is a Polish national who was born in 1957 and lives in Nowy Sącz. He was represented before the Court by Mr P. Sendecki, a lawyer practising in Lublin. The respondent Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant suffers from severe dysfunction of the limbs and is confined to a wheelchair.
On 11 October 1998 the applicant was driven by his mother to a polling station in Nowy Sącz where he intended to vote in the elections to municipal and district councils and provincial assemblies (wybory do rad gmin, rad powiatów i sejmików województw). The applicant’s mother asked the Chairman of the Local Electoral Commission to either show her how the applicant, who was waiting in his wheelchair outside the station, could enter it or hand a ballot paper to him. The chairman informed the applicant’s mother that the applicant could not cast his vote because it was not permitted to take ballot papers outside the premises of the polling station and the chairman was not going to carry the applicant inside the station. The applicant returned home without casting his vote.
At 5 p.m. on the same day, i.e. three hours before the polling stations closed, the applicant telephoned the Municipal Electoral Commission (Miejska Komisja Wyborcza) and protested about the refusal to allow him to vote. He also asked for help in casting his vote. However, the applicant was informed that the Local Electoral Commission acted in conformity with the Law of 16 July 1998 on Elections to Municipal Councils, District Councils and Regional Assemblies (Ordynacja wyborcza do rad gmin, rad powiatów i sejmików województw) (“the Local Elections Act”) and advised to arrange for assistance in entering the premises of the polling station.
On 14 November 1998 the applicant lodged an electoral complaint (protest wyborczy) with the Nowy Sącz Regional Court (Sąd Wojewódzki). He submitted that he had been unlawfully deprived of his right to vote. The applicant pointed out that getting to the polling station had required substantial effort on his part, the assistance of other persons and certain expenses. He ended his submissions with the following statement:
“I would like to stress that the only way I could have been carried in was on a stretcher (which was not available) and anyway no handicapped person would have agreed to that because of the feeling of embarrassment. Carrying me upstairs in a wheelchair was also impossible as [my] battery-powered wheelchair weighed, together with myself, about 200 kg and was not portable.
As the number of physically handicapped persons in Poland is 5 million, one can assume that my case was not isolated and that making it impossible for handicapped persons to vote by not preparing polling stations for them could have had a fundamental impact on the turnout and the results of the elections.”
In a letter of 20 October 1998 the Nowy Sącz Regional Court asked the applicant whether his complaint concerned the validity of the elections or whether he requested amendments to the relevant law.
On 26 October 1998 the applicant informed the Regional Court that his electoral complaint resulted from the fact that he had been deprived of his right to vote in the elections held on 11 October 1998. The applicant referred to section 5 of the Local Elections Act, which stated that every Polish citizen had a right to vote.
On 30 October 1998 the Nowy Sącz Regional Court refused to consider the applicant’s electoral complaint. The court was of the view that it did not fall within “the scope of the subject matter” of an electoral complaint. On 23 November 1998 the applicant appealed against that decision to the Cracow Court of Appeal (Sąd Apelacyjny).
On 5 January 1999 the Court of Appeal allowed the applicant’s appeal, quashed the decision of 30 October 1998 and remitted the case to the Nowy Sącz Regional Court.
On 12 March 1999 the Nowy Sącz Regional Court dismissed the electoral complaint lodged by the applicant. The court observed that the applicant had assumed that a ballot paper would be handed to him and cast by his mother. However, he had been advised by the Chairman of the Local Electoral Commission and the Municipal Electoral Commission that this was not permissible under the Local Elections Act. Moreover, the applicant had not considered the possibility of entering the polling station with the assistance of third persons on a stretcher or in a wheelchair as he had felt that it would have been embarrassing and degrading for him. The court further considered that:
“The complainant’s general claim that ‘the organisers of the elections’ should have provided him with the possibility of entering the polling station ... does not fall within the legal scope of an electoral complaint ... since none of the provisions of the Local Elections Act imposes such an obligation on the electoral commissions – on the contrary, section 46 of the Act excludes such help.
Each disability is in itself restricting in different fields of private and public life. It makes it difficult for a handicapped citizen to enjoy his rights. The public authorities are not in position to eliminate all those difficulties. [There] is no statutory or higher provision requiring such [elimination] – even if those provisions concern handicapped persons (Article 69 of the Constitution of the Republic of Poland and Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ... which is part of our legal system, and Article 3 of Protocol No. 1 to the Convention ...).
The complainant was aware of his disability and therefore had a special duty to acquaint himself with his rights and the restrictions under the Local Elections Act before the date of the elections. Ignorance of the law – in particular one so important – cannot excuse anybody. If the complainant had known the law, he would not have expected that it would be breached in order to allow him to vote. He would have taken steps to obtain the assistance of third persons in casting his vote.... As pointed out above, a disability is always a restriction. Therefore, the complainant’s argument that he did not consider the possibility of being carried by third persons to the polling station because it would have been embarrassing for him cannot justify his claim that he could not vote for reasons beyond his control. Since the complainant was put in a car – probably by third persons – he could have been carried by those persons, for instance in a chair....”
The applicant appealed to the Cracow Court of Appeal against the decision of 12 March 1999. In his appeal the applicant submitted that:
“Participation in the elections was the only purpose of my presence at the polling station.... I was not aware of the details of the Local Elections Act, and I thought that I would be able to vote in the way I had done before (i.e. ballot papers are handed to me under the stairs, I mark them and a member of my family puts them into the ballot box). However, this time it turned out that casting a vote by a disabled person would be considered as a violation of the electoral law. ...
The Nowy Sącz Regional Court did not take into consideration my good will and my positive civic attitude and indicated several additional solutions that should have been undertaken by me. [The court] tried to establish that I could, and should, have solved all those problems by myself. ... Under section 5 of the Local Elections Act“... every Polish citizen has a right to vote...”. [It] does not impose on the disabled any additional obligations which should be fulfilled before ... entering a polling station.
I do not know of any institution that would offer “election services” with a stretcher. ... Using a stretcher in the way suggested by the court would make the voting grotesque.
In suggesting that the problem could have been solved with the assistance of third persons, the court did not take into account the fact that such persons could have refused help, or that they might not have managed to help (even using a chair - because of the significant degree of my disability ...), or that there could have been a risk of injuries for those who helped and those who were being helped, or that there could have been no people around to help. The standard solution in similar cases is to provide a ramp or a lift.... Even in the case of the polling station in question, it would have been possible to prepare such a ramp at small (when compared with the electoral campaign) financial cost.
I have read several times with disbelief the reasoning of the Nowy Sącz Regional Court’s judgment which states that ‘each disability is in itself restricting in different fields of private and public life. It makes it difficult for a handicapped citizen to enjoy his rights’. I think that this odd reasoning ... compromises the institution which protects social justice. By giving such reasoning the Nowy Sącz Regional Court outlined the position of a disabled person in Polish society. With reasoning like this one can deprive disabled persons of several other civic rights. It contradicts the perception of disability in all other democratic countries. The question arises here: can criminal law, tax law or traffic regulations also be applied to a limited extent in the case of a disabled person?
The Polish State imposes on its citizens a number of obligations.... In return it gives every citizen a right to vote and in this way the possibility of having an influence on public life. It is the fundamental right in democratic states and that is what democracy is all about. ...”
On 29 April 1999 the Cracow Court of Appeal dismissed the applicant’s appeal. The appellate court agreed with the Regional Court’s conclusion that the applicant’s case did not disclose a breach of the Local Elections Act.
Article 10 of the Constitution provides:
“1. The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers.
2. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and judicial power shall be vested in the courts and tribunals.”
Article 69 of the Constitution provides:
“Public authorities shall provide, in accordance with statute, assistance to disabled persons to ensure their subsistence, adaptation to work and social communication.”
Chapter III of the Constitution, entitled “Sources of Law”, begins with Article 87, which provides:
“1. The sources of the universally binding law of the Republic of Poland shall be: the Constitution, statutes, ratified international agreements, and regulations.
2. Local laws (akty prawa miejscowego) passed by the organs [of local government] shall be a source of universally binding law of the Republic of Poland in the territory of the organ passing the laws.”
The last provision in Chapter III is Article 94, which provides:
“On the basis of and within limits specified by statute, the organs of local government and territorial organs of government administration shall enact local laws applicable to their territorially defined areas of operation. The principles of and procedures for enacting local laws shall be specified by statute.”
Chapter IV, entitled “The Sejm and the Senate”, begins with Article 95, which provides:
“1. Legislative power in the Republic of Poland shall be exercised by the Sejm and the Senate.
2. The Sejm shall exercise control over the activities of the Council of Ministers within the scope specified by the provisions of the Constitution and statutes.”
Chapter VII, entitled “Local Government”, contains the following provisions:
“Article 163
Local government shall perform public tasks not reserved by the Constitution or statutes to the organs of other public authorities.
Article 164
1. The municipality (gmina) shall be the basic unit of local government.
2. Other units of regional and/or local government shall be specified by statute.
3. The municipality shall perform all tasks of local government not reserved to other units of local government.
Article 165
1. Units of local government shall possess legal personality. They shall have rights of ownership and other property rights.
2. The independence of units of local government shall be protected by the courts.
Article 166
1. Units of local government shall have direct responsibility for performing public duties aimed at satisfying the needs of a self-governing community.
2. If the fundamental needs of the State so require, units of local government may be required by statute to perform other public duties. The mode of transfer and manner of performance of the duties so allocated shall be specified by statute.
3. The administrative courts shall settle jurisdictional disputes between units of local government and units of government administration.
Article 167
1. Units of local government shall be assured public funds adequate for the performance of the duties assigned to them.
2. The revenues of units of local government shall consist of their own revenues and general subsidies and specific grants from the State budget.
3. The sources of revenues for units of local government shall be specified by statute.
4. Any alterations of the scope of the duties or powers of units of local government shall be made in conjunction with appropriate alterations of their share of public revenues.
Article 168
To the extent established by statute, units of local government shall have the right to set the level of local taxes and charges.
Article 169
1. Units of local government shall perform their duties through law-making and executive organs.
2. Election to the law-making organs shall be by direct universal suffrage and shall be conducted by secret ballot. The principles and procedures for nominating candidates and for conducting the elections, and the requirements for the validity of the elections, shall be specified by statute.
3. The principles and procedures for the election and dismissal of executive organs of units of local government shall be specified by statute.
4. The internal organizational structure of units of local government shall be specified, within statutory limits, by their law-making organs.
Article 170
Members of a self-governing community may decide, by means of a referendum, matters concerning their community, including the dismissal of an organ of local government established by direct election. The principles of and procedures for conducting a local referendum shall be specified by statute.
Article 171
1. The legality of the actions of a local government shall be subject to review.
2. The organs exercising review of the activity of units of local government shall be: the Prime Minister and provincial governors and, regarding financial matters, regional audit offices.
3. On a motion of the Prime Minister, the Sejm may dissolve a law-making organ of local government if it has flagrantly violated the Constitution or statutes.
Article 172
1. Units of local government shall have the right of association.
2. A unit of local government shall have the right to join international associations of local and regional communities and to cooperate with local and regional communities of other states.
3. The principles governing the exercise by units of local government of the rights referred to in paragraphs 1 and 2 above shall be specified by statute.”
A municipality (gmina) is the basic unit of local government in Poland.
Section 6(1) of the Law of 8 March 1990 provides:
“A municipality is responsible for all local public matters which are not assigned by statutes to other bodies.”
Section 18(1) provides:
“A municipal council (rada gminy) is responsible for all matters falling within the competence of a municipality unless statutes provide otherwise.”
Under section 18(2), the exclusive competence of a municipal council includes, inter alia, adopting a budget, a land-use plan, economic plans, taxes and resolutions concerning municipal finances.
A district (powiat) constitutes a second tier of local government. Section 4 of the Law of 5 June 1998 provides that a district is responsible for matters which are not within the competence of a municipality and which concern, inter alia, education, the public health service, social security, public transport, culture, protection of the environment, agriculture, public order, consumer protection and defence.
Under section 12, the exclusive competence of a district council (rada powiatu) includes, inter alia, enacting local laws and adopting a budget, taxes and resolutions concerning district finances.
There are sixteen regions (wojewόdztwo) in Poland. Section 11 of the Law of 5 June 1998 provides that the regional government shall prepare a development strategy for the region. Under section 18, the exclusive competence of a regional assembly (sejmik wojewόdztwa) includes, inter alia, enacting local laws and adopting a land-use plan, a budget and resolutions concerning regional finances.
Section 46 of the Law of 16 July 1998 on Elections to Municipal Councils, District Councils and Regional Assemblies (Ordynacja wyborcza do rad gmin, rad powiatów i sejmików województw) (“the Local Elections Act”) provided, in so far as relevant:
“A disabled voter may, at his or her request, be assisted in voting by another person, other than members of the [electoral] commission and election monitors (mężowie zaufania).”
At the relevant time section 40 of the Law of 28 May 1993 on Elections to the Sejm of the Republic of Poland (Ordynacja wyborcza do Sejmu Rzeczypospolitej Polskiej) provided:
“A disabled voter may, at his or her request, be assisted in voting by another person, other than election monitors.”
The subsequent Law – of 12 April 2001 – on Elections to the Sejm and the Senate of the Republic of Poland (Ordynacja wyborcza do Sejmu Rzeczypospolitej Polskiej i do Senatu Rzeczypospolitej Polskiej) contains for the first time specific provisions regarding the exercise of the right to vote by disabled persons. Section 52(2) in fine states:
“Premises designated as offices of the regional and local electoral commissions shall be easily accessible to disabled persons.”
Section 53(1) reads as follows:
“The mayor shall provide premises of local electoral commissions that are adapted to the needs of disabled voters.”
It further provides that in each municipality there must be at least one local electoral commission with premises adapted to the needs of disabled persons.
Section 54 of the Law of 27 September 1990 on Elections of the President of the Republic of Poland (ustawa o wyborze Prezydenta Rzeczypospolitej Polskiej) contains a similar provision to section 46 of the Local Elections Act (see above).
Section 5 of the Construction Act (Prawo budowlane) of 7 July 1994, which entered into force on 1 January 1995, requires, inter alia, that public buildings and blocks of flats constructed henceforth must secure the necessary conditions for their use by people with disabilities, in particular those in wheelchairs.
(a) Recommendation No. R (92) 6 of the Committee of Ministers, of 9 April 1992, on a coherent policy for people with disabilities urges Member States of the Council of Europe to “guarantee the right of people with disabilities to an independent life and full integration into society, and recognise society’s duty to make this possible” so as to ensure “equality of opportunity” for people with disabilities. The public authorities should aim, inter alia, to enable people with disabilities “to have as much mobility as possible, and access to buildings and means of transport” and “to play a full role in society and take part in economic, social, leisure, recreational and cultural activities”.
As regards social integration in particular, Recommendation No. R (92) 6 states:
“Legislation should take account of the rights of people with disabilities and contribute, as far as possible, to their participation in civil life. When people with disabilities are not able to exercise their citizens’ rights fully, they should be helped to participate as far as possible in civil life, by means of appropriate assistance and measures.”
(b) Recommendation 1185 (1992), adopted by the Parliamentary Assembly of the Council of Europe on 7 May 1992, on rehabilitation policies for the disabled, emphasises: “Society has a duty to adapt its standards to the specific needs of disabled people in order to ensure that they can lead independent lives.” In furtherance of that aim, it calls on the governments and agencies concerned “to strive for and encourage genuine active participation by disabled people ... in the community and society” and, to that end, “to guarantee ease of access to buildings”.
(c) The revised European Social Charter, adopted by the Committee of Ministers on 1–4 April 1996 and opened for signature on 3 May 1996, provides in its Article 15, entitled “Right of persons with disabilities to independence, social integration and participation in the life of the community”:
“With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular:
...
3. to promote their full social integration and participation in the life of the community, in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.”
(d) Recommendation No. Rec(2006)5 of the Committee of Ministers of 5 April 2006 on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society identifies a comprehensive set of objectives and specific actions to be implemented by Member States in this area.
As regards participation in political and public life, Recommendation No. Rec(2006)5 states:
“The participation of all citizens in political and public life and the democratic process is essential for the development of democratic societies. Society needs to reflect the diversity of its citizens and benefit from their varied experience and knowledge. It is therefore important that people with disabilities can exercise their rights to vote and to participate in such activities.”
It further recommends to Member States, among others, “to ensure that voting procedures and facilities are appropriate and accessible to people with disabilities so that they are able to exercise their democratic rights, and allow, where necessary, the provision of assistance in voting.”


ITEMID: 001-91630
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: S.M. v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant is a Congolese national who was born in 1966 and lives in the Democratic Republic of Congo. She was represented before the Court by Ms A. Bergström, a lawyer practising in Umeå.
2. According to the applicant, she entered Sweden on 23 March 2005 and applied for asylum and a residence permit on the following day. Before the Migration Board (Migrationsverket), she stated that she was born and raised in Kinshasa and had lived in Masina since 1986. She had three children of her own and one niece for whom she had been responsible. These remained in the Democratic Republic of Congo (hereafter “the DRC”) with the applicant’s sister. The applicant claimed that she would risk persecution due to her connections with persons who were fighting against President Kabila. In this respect, she alleged that she had been selling merchandise at a market in Kinshasa which she had purchased in Brazzaville and, for this reason, she had made frequent trips between the two cities. On one of her trips to Brazzaville, she had met a friend, J., who had asked her to deliver a letter to Mr Thomas Kanza, the Ambassador for the DRC to Sweden. In return, Mr Kanza had started sending money to J. This correspondence, the applicant claimed, had continued, with her as courier, until 21 September 2004 when Mr Kanza had said that he was leaving for the USA. He had given the applicant his business card, which she handed over to the Migration Board in April 2006.
3. Moreover, the applicant submitted that, on 22 September 2004, she had been arrested by a group of soldiers belonging to the National Intelligence Agency (Agence National de Renseignement; hereafter “the A.N.R.”). She had been taken to their headquarters and told that they knew that she was working with persons who aimed to overthrow President Kabila and that she knew the whereabouts of a certain arms cache. She was threatened and, during the night, she was raped by two of them who also mutilated part of her genitals. Following this, she had not been physically abused again but repeatedly threatened. One of the soldiers had informed her family of her detention and they had arranged for a lawyer, Mr Y., who had come to visit her. He had tried to reach Mr Kanza but had been informed that he had died of a heart attack. On 25 October 2004 the applicant had suffered an asthma attack and had been taken to hospital from where she had managed to escape when she went to take a shower. She had fled to Kinsuka and then, on 7 November 2004, to Brazzaville. However, due to violence in Kinshasa in January 2005, many people had fled to Brazzaville only to be forcibly repatriated. As the applicant had been afraid also to be forced to return to the DRC, she had moved to Djiri. Still, through Mr Y., she had been informed that the A.N.R. soldiers were looking for her and had questioned her family because a search warrant for her had been issued following her escape. Due to this, she had been so afraid that she had left the country on 21 March 2005 and travelled to Sweden.
4. The applicant further claimed that, due to her traumatic experiences, she was in very poor mental health and saw a counsellor regularly. She submitted a medical certificate, dated 19 January 2006, by A. Järnbert, Chief Physician at the Women’s Clinic at Kiruna Hospital, which stated that the applicant had been the victim of sexual violence and that, in November 2005, she had undergone plastic surgery to repair the damage caused to her. The surgery had been successful but the applicant had been depressed as she missed her children and wanted to be reunited with them. From another medical certificate, dated 12 March 2007, by S. Sandström, counsellor at the Kiruna Hospital, it appeared that the applicant suffered from Post Traumatic Stress Disorder (PTSD) because of traumatic experiences in her home country. She also suffered from recurring depression due to the stress and uncertainty of her situation.
5. On 30 March 2007 the Migration Board rejected the application. It first noted that the situation for women in the DRC was very difficult and that rape and violence against women was common and used by all parties to the conflict as a mean of intimidation and part of warfare. Often the women who had been raped were also mutilated. Thus, having regard to the medical certificate submitted by the applicant and the information above, the Board accepted that the applicant had been the victim of rape and mutilation. However, the Board questioned the veracity of the applicant’s claim that she was wanted by the authorities in the DRC and her story of how she had fled. It considered that the violence to which she had been subjected concerned criminal acts carried out by individual persons and not persecution based on suspected political activities. Thus, the Board concluded that the applicant had failed to show that she would risk persecution on the basis of her alleged activity as a courier if she were to be returned to the DRC and, hence, there was no real risk that she would be arrested and tortured. As concerned the applicant’s poor mental health, the Board considered that it was not so serious that she could be granted leave to remain. In this respect, it had regard to reports from the UK Home Office which stated that treatment and competent doctors and medication were available in Kinshasa for persons suffering from, inter alia, depression, traumas and PTSD. Lastly, it observed that the applicant’sere not sufficient grounds on which to grant the applicant leave to remain in Sweden.
6. The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining her claims and adding that the police violence against her had been directly connected to her activity as a courier. Even though she herself had not been politically active, the authorities considered her activities as a political standpoint against the regime. Her first transfer of letters had occurred at the beginning of 2004 and she had only done it for the money. The parties involved had then explained to her that Mr Kanza would be the next President of the country and they had also told her that the letters contained money. She had transferred letters about four times per week and Mr Kanza’s guards had known her. She had been aware of the risks but had been hoping to get a good job if Mr Kanza took power. When she had been arrested, they had not questioned her but simply assumed that she was guilty and knew where the arms cache was. Moreover, through a letter dated 4 May 2007 from Mr Y., which she submitted to the court, she had been informed that the soldier from whom she had escaped at the hospital had been imprisoned for negligence and had subsequently died. Thus, his relatives were also looking for her to obtain revenge for his death. Mr Y. had further written that the applicant was sought on suspicion of complicity in treason under Article 184 of the Penal Code which prescribed the death penalty and was without a statutory time limit. In support of this, she also submitted a copy of a search warrant (Avis de Recherche), dated 20 January 2005, and issued by the Department for Internal Security at the A.N.R. It stated that the suspect was prosecuted for endangering State security (“L’intéressée est poursuivie pour atteinte à la sureté de l’Etat”). The applicant’s name, date of birth, the names of her parents and her address in the DRC were specified in the warrant and it was addressed to all central and provincial directors of the agency.
7. The applicant further alleged that the military had contacted her children about her whereabouts and that the man with whom the applicant’s daughter was staying had been arrested and tortured during questioning. The applicant stressed that she would not be protected in her home country and that she would never have left her children unless forced to.
8. Lastly, in support of her claim that she was in poor mental health, she produced a medical certificate, dated 1 November 2007, by U. Dagerman, psychotherapist at the Swedish Red Cross. It stated that the therapist was treating the applicant for trauma arising from the sexual violence of which she had been the victim in the DRC. She was afraid of going out alone, had problems sleeping and difficulties concentrating. She was very afraid of having to return to her home country and this fear hindered effective treatment.
9. On 29 November 2007, after having held an oral hearing, the Migration Court rejected the appeal. It noted first that the applicant had not been able to prove her identity but that a language test showed that she was from the DRC. As concerned the written evidence submitted by the applicant, the court considered that Mr Kanza’s business card in itself did not prove any connection between the applicant and Mr Kanza. Moreover, the search warrant was a copy which had not been presented earlier in the proceedings even though, apparently, it had been issued three months after the applicant had fled from the hospital, at a point when she had already left the DRC. The letter from Mr Y. mainly contained second-hand information and assumptions and looked more like a plea to allow the applicant to remain in Sweden. Therefore, the court found these documents to have a very low evidential value. Furthermore, the court questioned the applicant’s credibility, in particular with regard to Mr Kanza and his plans to take power in the DRC. In this respect, the court noted that Mr Kanza had been the DRC’s Ambassador to Sweden from 1999 until his death in October 2004. He had lived in exile during the presidency of Mobutu and had returned after Kabila became president and had even been a minister in Kabila’s government. It was thus highly unlikely that he would be planning an overthrow of Kabila’s government together with members of Mobutu’s exiled armed forces (the FAZ; Forces Armées Zaroïses). The court also observed that the applicant had failed to explain how she had been in personal contact with Mr Kanza and how she had come to be a courier of money directly between Mr Kanza and a militia group in Brazzaville, when she lacked both experience and political conviction. She had also failed to explain how she had travelled to Sweden and how that trip had been paid for. Hence, despite the violence of which she had been the victim, she had not shown it to be probable that she would be of interest to the authorities and persecuted or arrested and tortured if she returned to the DRC. As concerned her mental health problems, these were not of such a serious nature that she could be granted leave to remain. The Court further noted that the applicant’s children and sister were in Kinshasa.Sweden.
10. Upon further appeal, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal on 22 January 2008. This decision was final and the deportation order therefore became enforceable.
11. In March 2008 the applicant requested the Migration Board to stop her deportation because she had been informed by Mr Y. that she was still sought and her children had been questioned by the military about her whereabouts. Her children and those caring for them had also been harassed by the military.
12. On 26 May 2008 the Migration Board rejected the request. It found that the applicant had not invoked any new evidence but only added to her story, which had already been considered by the Migration Board and the migration courts. Since no new circumstances of importance had been presented, there was no reason to make a new assessment of her case or stay the enforcement of her deportation.
13. The applicant appealed to the Migration Court, maintaining her claims but, on 27 June 2008, the court rejected the appeal. It found that she had invoked no new circumstances of importance but only added evidence in support of circumstances already considered by the migration courts.
14. It would appear that the applicant did not appeal to the Migration Court of Appeal but instead handed in a new request to the Migration Board to stay her deportation and grant her a new assessment of her case. She stated that new circumstances of importance had appeared. Mr Y. had sent her a new search warrant, dated 14 March 2008, and issued by the Department of Internal Security of the A.N.R. From it, it appeared that she was accused of being an activist of Bundu dia Kongo and prosecuted for threatening State security. Her name, date of birth, the names of her parents and her address in the DRC were specified in the warrant and it was addressed to all central and provincial directors of the agency. The applicant emphasised that she was not a member of BDK but asserted that this had surely been added by the authorities in order to apprehend her. Mr Y. and a friend of hers had seen the original search warrant but, unfortunately, the applicant had lost it on the way to see her lawyer in Sweden. However, she did submit a copy of the warrant and two more letters from Mr Y. The first of these letters, dated 29 July 2008, stated that Mr Y. had been informed about the second warrant against the applicant which, according to Mr Y., had been posted at all airports, ports and train stations. By bribing an official, he had managed to obtain one of the warrants, which he had sent with the letter. He further wrote that the applicant’s children and relatives continued to be harassed by the police. In the second letter, dated 4 August 2008, Mr Y. listed all the information he had about the applicant, inter alia, that she had been sought since 21 September 2004 throughout the DRC on suspicion of being involved with the FAZ, knowing their arms caches and being a courier. These crimes amounted to a threat to the internal security of the country. Mr Y. was convinced that the applicant would be arrested and imprisoned if returned to the DRC.
15. On 1 September 2008 the Migration Board decided not to stay the enforcement of the deportation order as it considered that the circumstances invoked by the applicant had already essentially been tried by the Swedish authorities and that there were no impediments to her deportation. It further decided not to grant the applicant a new assessment of her case since the new evidence invoked only modified and slightly added to her original claims.
16. The applicant lodged an appeal with the Migration Court, relying on the same grounds as earlier and submitting a letter from a friend of hers which stated that, during his visit to the DRC in July 2008, he had seen and read the search warrant regarding the applicant which the Congolese police had issued.
17. On 23 September 2008 the Migration Court upheld the Migration Board’s decision in full. The applicant has lodged a further appeal with the Migration Court of Appeal which, apparently, is still pending.
18. On 6 October 2008 the applicant requested the Court to indicate to the Swedish Government, under Rule 39 of the Rules of Court, the suspension of her deportation to the DRC. The President of the Section to which the case had been allocated rejected the request on 7 October 2008.
19. The applicant was deported to her home country on the following day, 8 October 2008. However, on 20 October 2008, she informed the Court, through her legal representative in Sweden, that she wished to maintain her application before the Court.
20. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.
21. Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act).
22. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6 of the 2005 Act). During this assessment, special consideration should be given to, inter alia, the alien’s health status. In the preparatory works to this provision (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for the grant of a residence permit.
23. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act).
24. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act).
25. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist.


ITEMID: 001-112090
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GREGACEVIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-b - Adequate facilities;Adequate time);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Obtain attendance of witnesses;Article 6 - Right to a fair trial);Just satisfaction dismissed (out of time) (Article 41 - Just satisfaction)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 4. The applicant was born in 1974 and lives in Čepin.
5. On 29 August 2006 the Osijek Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Osijeku) indicted the applicant in the Osijek Municipal Court (Općinski sud u Osijeku) on charges of fraud and business fraud, claiming that, acting as a director of companies D.L.L. and M.C., he had defrauded companies A. and R. by using fraudulent payment instruments in exchange for goods which his companies received from A. and R. in the period between 10 August 2005 and 13 December 2005 and on 24 April 2006.
6. On 27 October 2006 the trial court commissioned a report from an accounting expert, D.D.
7. On 7 November 2006 D.D. submitted his report to the Osijek Municipal Court. He found that M.C.’s bank account had been frozen at the time when it had engaged in business transactions with company A. He also found that D.L.L.’s bank account had not been frozen at the time of its business transactions with company A., but that its account had been frozen at the time of its business transactions with company R.
8. At a hearing held on 17 November 2006 D.D. gave oral evidence. He confirmed all his findings in the report. The parties made no objections to the report, nor did they put any questions to D.D. The applicant’s lawyer asked that the prosecution submit all documents they had seized from the applicant so that they could be examined by D.D. The trial court requested further documents from the police and two commercial banks.
9. At a hearing held on 12 December 2006 D.D. asked for an additional period to examine the documents submitted by the two banks.
10. At a hearing on 16 January 2007 the applicant’s lawyer reiterated his request that the police be ordered to submit all business documentation they had seized from the applicant concerning companies D.L.L. and M.C. The trial court accepted the request.
11. On 12 February 2007 D.D. submitted an additional report. He reiterated his previous findings and also explained the manner and nature of the business transactions in issue.
12. At a hearing held on 9 March 2007 D.D. gave further oral evidence. The applicant’s lawyer and the applicant put no questions to D.D. and made no objection to his report.
13. On 28 June 2007 the applicant’s lawyer submitted written observations before the Osijek Municipal Court. He commented on the reports drawn up by D.D. in setting out the defence’s arguments. His observations were forwarded to D.D.
14. On 13 July 2007 D.D. submitted written observations in which he expressly reiterated all his previous findings and highlighted certain sentences from his reports. He also disagreed with the conclusions drawn from his reports by the defence.
15. At a hearing held on 18 July 2007 the judge conducting the proceedings presented D.D.’s written observations of 13 July 2007 to the parties and read them out. Two large envelopes containing documents submitted by the police were also presented to the parties and read out in court.
The applicant’s lawyer asked the trial court to request information from the Serbian authorities about the applicant’s detention in that country or to examine witnesses Mat.G. and Mar.G., who he stated could confirm that the applicant had been in detention in Serbia between January and mid-February 2006 and that he had therefore been unable to conduct business affairs in the relevant period. He also suggested that these witnesses could confirm that all goods that the applicant’s companies had received from companies A. and R. had been stolen during the applicant’s absence. The applicant’s lawyer made further observations in respect of D.D.’s written observations of 13 July 2007 and asked that he be recalled. In respect of the documents provided by the police, he asked that the trial be adjourned for a period of eight to fifteen days so that they could prepare the defence and also in order that the documentation might be forwarded to D.D. Finally, he asked that another additional witness be heard. The Osijek Municipal Court dismissed all of the defence’s requests on the grounds that all the relevant facts had been sufficiently established.
16. On 20 July 2007 the Osijek Municipal Court found the applicant guilty on three counts of business fraud and one count of fraud. It also revoked the suspension of a sentence given to the applicant in previous criminal proceedings and sentenced him to five years’ imprisonment.
In its judgment the court noted:
“The parties had no objections in respect of the evidence taken and read out, nor did they make any further requests, and the authenticity of the documents [in the case file] has not been brought into doubt.”
17. On 12 December 2007 the applicant lodged an appeal against conviction. He complained that the defence had not had sufficient time to examine D.D.’s written observations of 13 July 2007 and that they had had no opportunity to examine the documentation provided by the police. He further complained that D.D. had not been recalled and that the witnesses Mat.G. and Mar.G. had also not been heard, although the trial court had not provided any reasons for not hearing these witnesses. He also complained that the suspension of his previous sentence had been revoked, although he had had no opportunity to present arguments in that respect.
18. On 24 January 2008 the Osijek County Court (Županijski sud u Osijeku) upheld the applicant’s conviction but decreased his sentence to four years’ imprisonment. It found that the Osijek Municipal Court had analysed witness statements and other documents in detail and had provided sufficient reasons for the applicant’s conviction. In respect of the complaint about D.D., the Osijek County Court’s judgment reads:
“Under Article 331 paragraph 5 of the C[ode] [of] C[riminal] P[rocedure], in respect of crimes punishable by [up to] eight years’ imprisonment, when an expert witness has already been heard before the president of a [trial] panel [and there has been no change in president], the expert’s report can be read out without the agreement of the parties. It is to be noted that the accounting expert submitted his report on 12 February 2007, which [report] was forwarded to the parties. On 28 June 2007 the defence lawyer submitted observations before the court asking that the expert respond to certain questions. The expert then responded to these questions. He therefore had not provided a new report. In his findings he had not amended anything relevant but had only responded to the defence lawyer’s observations. ...”
The County Court also found that the suspension of the applicant’s previous sentence had been correctly and lawfully revoked pursuant to Article 69 paragraph 1 of the Criminal Code. It made no observations in respect of the Osijek Municipal Court’s refusal to hear witnesses Mat.G. and Mar.G. and also made no comment on the applicant’s complaint that he had had no opportunity to examine the documentation submitted by the police.
19. On 27 October 2008 the applicant lodged a request for extraordinary review (zahtjev za izvanredno preispitivanje pravomoćne presude) of the County Court’s judgment with the Supreme Court (Vrhovni sud Republike Hrvatske), complaining that the defence had not had sufficient time to examine D.D.’s written observations and had had no opportunity to examine the documentation provided by the police, and that the witnesses proposed by the defence had not been heard or D.D. recalled without the trial court providing sufficient reasons. Finally, he complained that the suspension of his previous sentence had been revoked, although he had had no opportunity to present arguments in that respect.
20. On 30 October 2008 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the judgments of the Osijek Municipal Court and the Osijek County Court, reiterating the arguments he had adduced before the Supreme Court.
21. On 22 December 2008 the Supreme Court dismissed the applicant’s request for extraordinary review of the County Court’s judgment on the grounds that there had been no violation of any defence rights in the proceedings before the lower courts.
22. On 17 February 2009 the applicant lodged a constitutional complaint before the Constitutional Court against the judgment of the Supreme Court by which his request for extraordinary review of the County Court’s judgment had been dismissed. He argued that the Supreme Court had failed to examine all his complaints and that it had failed to remedy the violation of defence rights that had occurred during the proceedings before the lower courts.
23. On 12 March 2009 the Constitutional Court dismissed the applicant’s constitutional complaint of 30 October 2008 against the judgments of the Osijek Municipal Court and the Osijek County Court. The Constitutional Court found that the criminal proceedings against the applicant had been fair and that the judgments of the lower courts had been sufficiently reasoned and did not disclose any arbitrariness. As to the trial court’s refusal to take the applicant’s further evidence, the Constitutional Court noted that it had been for the trial court to decide which evidence to take and that the applicant had not objected to the evidence that had been read out during the trial.
24. On 26 May 2009 the Constitutional Court declared the applicant’s constitutional complaint of 17 February 2009 against the judgment of the Supreme Court of 27 October 2008 inadmissible on the grounds that it had not been an act by which the applicant’s civil rights or obligations or any criminal charge against him had been determined.
25. The relevant part of section 62 of the Constitutional Court Act (Official Gazette no. 49/2002, of 3 May 2002, Ustavni zakon o Ustavnom sudu Republike Hrvatske) reads as follows:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, concerning his or her rights and obligations, or about a suspicion or an accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: a constitutional right) ...
26. The relevant provisions of the Code of Criminal Procedure in force at the time (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006) provided:
“(1) A defendant who has been finally sentenced to a prison term ... may lodge a request for the extraordinary review of a final judgment on account of infringements of this Act.
(2) A request for the extraordinary review of a final judgment shall be lodged within a month after the final judgment has been served on the defendant.”
“The Supreme Court shall decide requests for the extraordinary review of a final judgment.”
“A request for the extraordinary review of a final judgment may be lodged [in respect of]:
...
3. an infringement of the rights of the defence at the trial or of the procedural rules at the appellate stage, if it may have influenced the judgment.”
27. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008, 57/2011) provided:
“(1) The court shall revoke the suspension of a sentence and order the execution of the pronounced punishment if the convicted person, within the period of probation, commits one or more criminal offences for which the court has imposed imprisonment of two years or a more serious punishment.”
“(1) Whoever, with the aim of obtaining unlawful pecuniary gain for himself or a third party, by false representation or concealment of facts, deceives another or continues the deception of another, thereby inducing him to do or to omit to do something to the detriment of his property or the property of another, shall be fined or punished by imprisonment for three months.”
“(1) A person responsible [for the actions] of a legal person who, with the aim of obtaining unlawful pecuniary gain for himself or the legal person, by using fraudulent instruments in security for payment or by deceiving another or continuing the deception of another in any other way, thereby inducing him to do or to omit to do something to the detriment of his property or the property of another, shall be punished with imprisonment from six months to five years.
(2) If the perpetration of the offence referred to in paragraph 1 of this Article results in obtaining significant pecuniary gain or if it causes significant damage, and the perpetrator acted with intent to obtain such a pecuniary gain or to cause such damage, he shall be punished with imprisonment from one to eight years.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-71034
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF J.A. PYE (OXFORD) LTD AND J.A. PYE (OXFORD) LAND LTD v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of P1-1;Just satisfaction reserved
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: 9. The second applicant company is the registered owner of a plot of 23 hectares of agricultural land in Berkshire. The first applicant company was its predecessor in title. The owners of a property adjacent to the land, Mr. and Mrs. Graham (“the Grahams”) occupied the land under a grazing agreement until 31 December 1983. On 30 December 1983 a chartered surveyor acting for the applicants wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land. In January 1984 the applicants refused a request for a further grazing agreement for 1984 because they anticipated seeking planning permission for the development of all or part of the land and considered that continued grazing might damage the prospects of obtaining such permission.
10. Notwithstanding the requirement to vacate the land at the expiry of the 1983 agreement, the Grahams remained in occupation at all times, continuing to use it for grazing. No request to vacate the land or to pay for the grazing which was taking place was made. If it had been, the evidence was that the Grahams would happily have paid.
11. In June 1984 an agreement was reached whereby the applicants agreed to sell to the Grahams the standing crop of grass on the land for £1,100. The cut was completed by 31 August 1984. In December 1984 an inquiry was made of the applicants as to whether the Grahams could take another cut of hay or be granted a further grazing agreement. No reply to this letter or to subsequent letters sent in May 1985 was received from the applicants and thereafter the Grahams made no further attempt to contact the applicants. From September 1984 onwards until 1999 the Grahams continued to use the whole of the disputed land for farming without the permission of the applicants.
12. In 1997, Mr Graham registered cautions at the Land Registry against the applicant companies’ title on the ground that he had obtained title by adverse possession.
13. On 30 April 1998 the applicant companies issued an originating summons in the High Court seeking cancellation of the cautions. On 20 January 1999 the applicant companies issued further proceedings seeking possession of the disputed land.
14. The Grahams challenged the applicant companies’ claims under the Limitation Act 1980 (“the 1980 Act”) which provides that a person cannot bring an action to recover any land after the expiration of 12 years of adverse possession by another. They also relied on the Land Registration Act 1925, which applied at the relevant time and which provided that, after the expiry of the 12-year period, the registered proprietor was deemed to hold the land in trust for the squatter.
15. Judgment was given in favour of the Grahams on 4 February 2000 ([2000]Ch 676). Mr Justice Neuberger held that since the Grahams enjoyed factual possession of the land from January 1984, and adverse possession took effect from September 1984, the applicant companies’ title was extinguished pursuant to the 1980 Act, and the Grahams were entitled to be registered as proprietors of the land. At the conclusion of his 30-page judgment, Neuberger J. remarked that the result he had reached did not accord with justice and could not be justified by practical considerations: the justification advanced for the right to acquire title to land by adverse possession – namely the avoidance of uncertainty – had in his view little relevance to the use of registered land where the owner was readily identifiable by inspecting the register of the relevant title at the Land Registry. The fact that an owner who had sat on his rights for 12 years should be deprived of the land was in his view “illogical and disproportionate”: as he expressed the point, “it does seem draconian to the owner and a windfall for the squatter that, just because the owner has taken no step to evict a squatter for 12 years, the owner should lose 25 hectares of land to the squatter with no compensation whatsoever”.
16. The applicant companies appealed and on 6 February 2001, the Court of Appeal reversed the High Court decision on the ground that the Grahams did not have the necessary intention to possess the land, and the applicant companies were therefore not “dispossessed” of it within the meaning of the 1980 Act ([2001]EWCA Civ 117, [2001]Ch 804). Although this conclusion was sufficient to dispose of the appeal, two members of the Court of Appeal went on to address the question whether the applicants’ loss of title to the land could also have given rise to a violation of Article 1 of Protocol No. 1 as applied in domestic law by the Human Rights Act 1998.
17. Lord Justice Mummery held that Article 1 did not impinge on the relevant provisions of the Limitation Act 1980, which did not deprive a person of his possessions or interfere with his peaceful enjoyment of them but only deprived a person of his right of access to the courts for the purpose of recovering property if he had delayed the institution of his legal proceedings for 12 years or more after being dispossessed by another. The extinction of the applicants’ title was not, in his view, a deprivation of possessions nor a confiscatory measure for which payment of compensation would be appropriate, but simply a logical and pragmatic consequence of the barring of the right to bring an action after the expiration of the limitation period. In the alternative, Mummery L.J found that any deprivation was justified in the public interest, the conditions laid down in the 1980 Act being reasonably required to avoid the risk of injustice in the adjudication of stale claims and as ensuring certainty of title: those conditions were not disproportionate, the period of 12 years being reasonable and not imposing an excessively difficult burden on the landowner.
18. Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention. This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol.
19. The Grahams appealed to the House of Lords, which, on 4 July 2002, allowed their appeal and restored the order of the High Court ([2002] UKHL 30, [2002] 3 All ER 865). Lord Browne-Wilkinson, with whom Lord Mackay of Clashfern and Lord Hutton agreed, held that the Grahams did have “possession” of the land in the ordinary sense of the word, and therefore the applicant companies had been “dispossessed” of it within the meaning of the 1980 Act. There was no inconsistency between a squatter being willing to pay the paper owner if asked and his being in possession in the meantime. Lord Browne-Wilkinson referred to the European Convention on Human Rights only to note that there was no ambiguity in the 1980 Act which called for resolution.
20. Lord Bingham of Cornhill, agreeing with Lord Browne-Wilkinson, made the following statement in the course of his judgment:
“[The Grahams] sought rights to graze or cut grass on the land after the summer of 1984, and were quite prepared to pay. When Pye failed to respond they did what any other farmer in their position would have done: they continued to farm the land. They were not at fault. But the result of Pye’s inaction was that they enjoyed the full use of the land without payment for 12 years. As if that were not gain enough, they are then rewarded by obtaining title to this considerable area of valuable land without any obligation to compensate the former owner in any way at all. In the case of unregistered land, and in the days before registration became the norm, such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay. But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result, and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it. It is reassuring to learn that the Land Registration Act 2002 has addressed the risk that a registered owner may lose his title through inadvertence. But the main provisions of that Act have not yet been brought into effect, and even if they had it would not assist Pye, whose title had been lost before the passing of the Act. While I am satisfied that the appeal must be allowed for the reasons given by my noble and learned friend, this is a conclusion which I (like the judge [Neuberger J]...) ‘arrive at with no enthusiasm’.” [JA Pye (Oxford) Ltd and another v. Graham and another [2000] 3 All ER 865, at 867]
21. The question whether the result was incompatible with the applicants’ rights under Article 1 of Protocol No. 1 to the Convention was not pursued before the House of Lords, it being conceded that the Human Rights Act 1998 had no retrospective effect. However, in his judgment Lord Hope of Craighead, who also agreed with Lord Browne-Wilkinson on the reasons for dismissing the appeal, observed that the question under the Convention:
“....is not an easy one, as one would have expected the law - in the context of a statutory regime where compensation is not available - to lean in favour of the protection of a registered proprietor against the actions of persons who cannot show a competing title on the register. Fortunately.......a much more rigorous regime has now been enacted in Schedule 6 to the 2002 Act. Its effect will be to make it much harder for a squatter who is in possession of registered land to obtain title against the wishes of the proprietor. The unfairness in the old regime which this case has demonstrated lies not in the absence of compensation, although that is an important factor, but in the lack of safeguards against oversight or inadvertence on the part of the registered proprietor.”
22. Section 15 of the Limitation Act 1980, a consolidating Act, provides:
“(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person...
(6) Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.”
23. Paragraph 1 of Schedule 1 provides:
“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.”
24. In the case of unregistered land, section 17 of the 1980 Act provides that, on the expiration of the limitation period regulating the recovery of land, the title of the paper owner is extinguished. In the case of registered land, section 75(1) of the Land Registration Act 1925 provides that, on the expiry of the limitation period the title is not extinguished but the registered proprietor is deemed to hold the land thereafter in trust for the squatter.
25. The Law Reform Committee considered the law on limitation periods in its report of 1977 (Cmnd 6923). It commented negatively on the courts’ practice of granting an implied licence to the would-be adverse possessor, which had the effect of stopping time running against the owner, and proposed no change to the existing limitation periods, and agreed that the expiration of the limitation period should serve to extinguish the claimant’s title.
26. A Law Commission Consultation Paper on Limitation of Actions in 1988 (Law Com 151) gave a number of general policy aims of the law on limitations. The Consultation Paper noted that defendants have a legitimate interest in having cases brought to court reasonably promptly as evidence may not be available indefinitely, and because defendants should be able to rely on their assumed entitlement to enjoy an unchallenged right. The State, too, has an interest in ensuring that claims are made and determined within a reasonable time in order to deliver a fair trial, and as guarantor of legal certainty. Finally, limitation periods were seen to have a salutary effect on plaintiffs in encouraging them to bring claims reasonably promptly.
27. A separate Law Commission Consultative Document on land registration in 1998 (prepared with the Land Registry; Law Com 254) noted that although the original intention of the system of land registration was to apply the principles of unregistered land to a registered format, there were certain areas where this was not wholly true. One example given was the position of the rights of adverse possessors (section 75(1) of the Land Registration Act 1925 was referred to). The Consultative Document set out and commented on four particularly cogent reasons often given for the law on adverse possession: (i) Because it is part of the law on limitation of actions. It noted:
“... because adverse possession is an aspect of the law of limitation, it is of course customary to account for it, at least in part, in terms of the policy of limitation statutes generally, namely to prevent defendants from stale claims and to encourage defendants not to sleep on their rights. However, adverse possession does not merely bar claims. Its effect is positive: ‘a squatter does in the end get title by his possession and the indirect operation of the Limitation Act ..’. This can only be justified by factors over and above those which explain the law on limitation ... this particular justification has much greater force in relation to unregistered land than it does for land with registered title. Unregistered title ultimately depends on possession. It therefore behoves a landowner to be vigilant to protect that possession and not to sleep on his or her rights. ... where title is registered (...) the basis of title is primarily the fact of registration rather than possession. Registration confers title because the registration of a person as proprietor of land of itself vests in him or her the relevant legal estate ...”
(ii) Because if land and its ownership are out of kilter, the land may become unmarketable. Where the registered owner has disappeared, and cannot be traced, and a squatter takes possession, the doctrine of adverse possession “does at least ensure that in such cases land remains in commerce and is not rendered sterile”. Where there have been dealings “off the register”, such as where a farmer agrees to a land swap with a neighbour under a “gentleman’s agreement” but does not register the change, “adverse possession fulfils a useful function”. (iii) Because in case of mistake the innocent but mistaken squatter of land may have incurred expenditure. In such circumstances adverse possession can be justified on grounds of hardship, and there are parallels with the principles of proprietary estoppel. (iv) Because it facilitates and cheapens investigation of title to land. The Law Commission accepted this last reason as being very strong for unregistered land, but considered that for registered land, where title depends on the contents of the register rather than possession, it was not applicable.
28. The Law Commission proposed, provisionally, that the system of adverse possession as it applied to registered land should be recast to reflect the principles of title registration, and that it should be limited to very few, exceptional cases.
29. Two Reports, on Limitation of Actions (Law Com 270) and on registered land (Law Com 271), followed the Consultation Papers, and were published in July 2001.
30. The Law Commission Report on Limitation of Actions recommended that the general limitation period for actions in respect of land should be ten years. It added that if the proposals made on registered land in Law Com 254 were accepted, the proposal would relate only to interests in unregistered land (and unregistrable interests in registered land).
31. The Report on registered land (Law Com 271) proposed that a squatter should be able to apply to be registered as proprietor after 10 years’ adverse possession, and that the registered proprietor should be notified of that application. If the proprietor objected to the registration, the application by the adverse possessor for registration would be rejected. The registered proprietor would then be required to regularise the position (for example by evicting the squatter) within two years, failing which the squatter would be entitled to be registered as proprietor.
32. The Land Registration Act 2002, which does not have retroactive effect, implemented the proposals in Law Com 271.
33. On 23 March 2005, Deputy Judge Strauss in the Chancery Division gave judgment in the case of Beaulane Properties Ltd v. Palmer (Times Law Reports, 13 April 2005). The case concerned a licensee who had remained in possession of registered land for over 12 years after the expiry of his licence. Applying the judgment of the House of Lords in the present case, the judge found that under English law as it stood up to the entry into force of the Human Rights Act 1998, the registered owner of the land lost all claim to it. However, on analysing the facts on a Convention basis, he found that there was no real public or general interest in the law on adverse possession in the case of registered land, and that the adverse consequences for the landowner were disproportionate. By re-interpreting the relevant legislation in accordance with Section 3 of the Human Rights Act, the judge found that the claim by the former licensee to have acquired the disputed land failed.