ITEMID: 001-119229
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF SHINDLER v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote)
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1921 and lives in Ascoli Piceno, Italy. He left the United Kingdom in 1982 following his retirement and moved to Italy with his wife, an Italian national.
6. Pursuant to primary legislation, British citizens residing overseas for less than fifteen years are permitted to vote in parliamentary elections in the United Kingdom (see paragraphs 10-11 below). The applicant does not meet the fifteen-year criterion and is therefore not entitled to vote. In particular, he was unable to vote in the general election of 5 May 2010.
7. Section 1(1) of the Representation of the People Act 1983 (“the 1983 Act”) provides that a person is entitled to vote as an elector at a parliamentary election if on the date of the poll he is, inter alia, registered in the register of parliamentary electors for a constituency and is either a Commonwealth citizen or a citizen of the Republic of Ireland. Pursuant to section 4(1), a person is entitled to be registered if on the relevant date he is, inter alia, resident in the constituency and is either a Commonwealth citizen or a citizen of the Republic of Ireland.
8. Sections 14-17 of the 1983 Act allow certain categories of persons otherwise eligible to vote who do not fulfill the normal residence requirements to continue to register to vote by making a “service declaration”. A service declaration can be made by a person who is (a) a member of the forces, (b) employed in the service of the Crown in a post outside the United Kingdom of any prescribed class or description, (c) employed by the British Council in a post outside the United Kingdom, or (d) the spouse or civil partner of a person falling within categories (a), (b) or (c) above.
9. Section 17 provides that where a person’s service declaration is in force, he shall be regarded for the purposes of section 4 of the 1983 Act as a resident on the date of the declaration at the address specified in it (current or former address in the United Kingdom).
10. Section 1 of the Representation of the People Act 1985 as amended (“the 1985 Act”) provides that a person who is a British citizen is entitled to vote as an elector at a parliamentary election if he qualifies as an overseas elector on the date on which he makes an “overseas elector’s declaration” (see paragraph 14 below). A person qualifies as an overseas elector if he is not resident in the United Kingdom and he satisfies one of the sets of conditions set out in the legislation.
11. The relevant set of conditions for the purpose of the present case is set out in section 1(3):
“The first set of conditions is that—
(a) he was included in a register of parliamentary electors in respect of an address at a place that is situated within the constituency concerned,
(b) that entry in the register was made on the basis that he was resident, or to be treated for the purposes of registration as resident, at that address,
(c) that entry in the register was in force at any time falling within the period of 15 years ending immediately before the relevant date [i.e. the date on which the applicant makes a declaration under section 2], and
(d) subsequent to that entry ceasing to have effect no entry was made in any register of parliamentary electors on the basis that he was resident, or to be treated for the purposes of registration as resident, at any other address.”
12. Section 2(1) provides that a person is entitled to be registered pursuant to an “overseas elector’s declaration” in the constituency where he was last registered to vote or last resided and the registration officer concerned is satisfied that he qualifies as an overseas elector in respect of that constituency. Where the entitlement of a person to remain registered as an overseas voter terminates, the registration officer concerned shall remove that person’s entry from the register (section 2(2)).
13. Section 2(3) requires that an overseas elector’s declaration state the date of the declaration, that the declarant is a British citizen, that the declarant is not resident in the United Kingdom, and the date on which he ceased to be so resident.
14. Section 2(4) stipulates that an overseas elector’s declaration must show which set of conditions in section 1 of the Act the declarant claims to satisfy and, in the case of the first set of conditions, specify the address in respect of which he was registered.
15. Prior to the enactment of the 1985 Act, no British citizen living overseas could vote in a parliamentary, i.e. general, election in the United Kingdom, other than members of the armed forces or Crown servants.
16. In 1982 a parliamentary committee, the Home Affairs Select Committee, published a report on the Representation of the People Acts which recommended that British citizens living in what were then Member States of the European Economic Community should be able to vote in parliamentary elections for an indefinite period. The Government’s response to that report recommended a seven-year limit for all overseas voters, expressing the view that a person’s links with the United Kingdom were likely to have weakened significantly if he had lived outside it for as long as ten years.
17. The 1985 Act as originally enacted extended the right to vote to British citizens resident overseas but who had been resident in the United Kingdom within the previous five years. The bill originally proposed a seven-year period but concerns were expressed during the passage of the bill that that period was both too long and too short. Further concerns regarding the inability of a straightforward time-limit to reflect the positions and intentions of individuals regarding their contact with the United Kingdom were also raised.
18. The five-year period was extended to twenty years by virtue of section 1 of the Representation of the People Act 1989. The bill which led to the Act was prepared following consultation and proposed increasing the time-limit to twenty-five years. During parliamentary debates, the Secretary of State acknowledged that there was no correct answer as to where the correct cut-off point lay and explained that a balance had to be struck between the interests of those who, although resident abroad for some time, had retained close and continuing connection with the United Kingdom and those who had “cut adrift” from such links much earlier. Parliamentarians expressed a broad spectrum of views, with some opposing any change which would allow those resident abroad for long periods to vote and others arguing that restrictions on the right to vote should be kept to a minimum.
19. Section 1 of the 1989 Act was subsequently repealed and replaced, with retention of the twenty-year period, by section 8 and Schedule 2 of the Representation of the People Act 2000.
20. In September 1998 the Home Affairs Select Committee published a report on Electoral Law and Administration. It proposed that the period during which overseas voters be permitted to vote be reduced. The relevant extract of its report reads:
“113. The Representation of the People Act 1985 introduced a right for British citizens resident overseas on the qualifying date to register as a voter for parliamentary and European elections for up to five years following their move overseas. This period was increased to twenty years under the Representation of the People Act 1989. The peak year for actual registrations under the Act was in 1991 when 34,500 registered; the numbers have steadily decreased since then until a rise in 1997, when the total stood at 23,600, followed by a further fall in 1998 to 17,300. Estimates of the potential number who could register have ranged as high as three million.
114. It has been suggested that it is unreasonable for people who have been away for so long to retain the right to vote. Professor Blackburn argued that the system meant that ‘an expatriate living hundreds or thousands of miles away, for the duration of a period exceeding a whole generation, carrying memories of British politics in the past and with little or no personal knowledge of contemporary issues in the constituency where he or she used to live, can influence the election of the government of a country to which he is not subject and to whom he or she may be paying no taxes’. Electoral administrators pointed out that there were costs attached to registering overseas citizens and that a shorter period might be cheaper and easier to operate. The Labour Party and Liberal Democrat representatives both suggested that 20 years was perhaps too long. Professor Blackburn suggested that the right to vote while overseas might be related in some way to the nature of the links retained with the UK or to an intention to return.
115. On the other hand, it is clear that the present rules – with so few persons actually registering – cause very little disruption or distortion to the actual results and, for the Labour Party, Mr Gardner indicated that changing the time limit was not a priority issue. It must also be likely that those who do register are those with the greater commitment to events in the UK and are those most likely to be planning to return. A further restraining factor is that overseas voters have to vote by proxy (because it is not possible to send a ballot paper overseas reliably in the time available) which means that in order to exercise their right to vote they have to establish some form of connection with their former home. The Home Office reported that most of the correspondence they received on this issue was not from people calling for the twenty year period to be lowered but from people who had been resident overseas for more than twenty years arguing for it to be increased.
116. On balance, we take the view that the twenty year maximum period within which a British citizen overseas may retain the right to vote is excessive and that the earlier limit – five years – should be restored.” (emphasis in original; references omitted)
21. The twenty-year period was subsequently reduced to fifteen years pursuant to section 141(a) of the Political Parties, Elections and Referendums Act 2000. The bill preceding the Act proposed a reduction to ten years. During parliamentary debates, the relevant Government minster explained that the proposed ten-year period struck a balance between the various strongly-held views expressed. During the bill’s passage through the House of Lords, the Government minister proposed an increase to fifteen years in response to concerns aired during the debate. While the minister accepted that the amendment represented a broad-brush approach, he considered it to be the most equitable approach that could be adopted.
22. On 6 May 2009, during the passage through Parliament of the bill which led to the Political Parties and Elections Act 2009, an amendment was proposed to raise the period for overseas voting from fifteen to twenty years. The reasons given for the proposed amendment were as follows:
“The first is that we live in an era of increasing globalisation and internationalisation of economic activity, a process which has gathered pace since the reduction of the qualifying period in 2000. Secondly, we need to reflect the different nature of modern society and the mobility of populations. Thirdly, I seek to reflect the fact of Britain’s membership of the European Union.”
23. The Government minister defended the fifteen-year period, noting the absence of any compelling argument or evidence that would justify a change. He considered that the focus should be instead on raising the registration rate of overseas voters, noting that fewer than 13,000 overseas voters were registered in England and Wales as of 1 December 2008. The amendment was not passed.
24. During a short debate in the House of Lords on 2 March 2011 regarding voting arrangements for overseas electors, some members called on the Government to reconsider the fifteen-year period. Attention was drawn to the fact that those who worked abroad for international organisations did not have the same voting rights as members of the armed forces, Crown servants and employees of the British Council, who were not subject to the fifteen-year limit. The Government minister acknowledged that the Government ought to address the issue of overseas votes, noting that of an estimated 5.5 million British citizens resident abroad, only about 30,000 actually voted.
25. On 27 June 2012, during the passage through Parliament of the bill which led to the Electoral Registration and Administration Act 2013, an amendment was proposed in the House of Commons to remove the fifteen-year rule. The reasons for the proposed amendment were explained as follows:
“According to the Institute for Public Policy Research, 5.6 million British citizens currently live abroad. The shocking truth is that although, as of last December, about 4.4 million of them were of voting age, only 23,388 were registered for an overseas vote, according to the Office for National Statistics’ electoral statistics. Out of 4.4 million potential overseas voters, only 23,000-odd are actually registered! ...
...
In most other countries, both developed and emerging, voting rights for parliamentary elections depend solely on nationality, not on an arbitrary time limit. For example, US nationals can vote in presidential, congressional and state elections, regardless of where they reside in the world. Similarly, Australian nationals can vote in the equivalent elections there, no matter where they live. However, the most startling example comes from our nearest neighbour. French citizens in the UK have just elected a new President and taken part in parliamentary elections for one of the 11 Members of Parliament whose job it is solely to represent French people abroad ....
The right of Spaniards abroad to vote is enshrined in article 68 of the Spanish constitution. ...
...
[A]ll Portuguese citizens living abroad have the same right to vote in Assembly elections as fellow citizens living in their home country. The simple fact is that the citizens of the US, Australia, Belgium, the Netherlands, France, Germany, Portugal, Slovenia, Spain, Sweden and all these other countries have better voting rights for their citizens abroad than we do for British citizens living abroad.
For a democracy as ancient as ours, it is not an exaggeration to say that it is a stain on our democratic principles that our citizens are placed at such a disadvantage when they have moved abroad compared with citizens from those other countries. Her Majesty’s Government is very happy to collect tax from most of the enormous number of people involved, but denies them the vote.”
...
“The states in which these British citizens reside do not allow them to vote as residents, because voting rights are based on nationality and not residence, and they cannot vote in the UK on the basis of the current rule, for which there is no obvious rationale. I challenge the Deputy Leader of the House to state where there would be any disadvantage in abolishing the rule. The consequence of the rule is that many British citizens living abroad are in a state of electoral limbo, unable to participate in any election whatsoever. That seems to be a very unsatisfactory state of affairs.”
26. The Government minister replied that the Government would give the issue “serious consideration”. The amendment was subsequently withdrawn.
27. A similar amendment to the bill was proposed at the Committee stage in the House of Lords on 14 January 2013. The reasons given for the proposed amendment were as follows:
“The fundamental issue at stake here is the complete exclusion of so many British citizens living abroad for more than 15 years from the right to vote here. According to the Institute for Public Policy Research, 55% of those who moved abroad in 2008 did so for work-related reasons, 25% for study and 20% for life in retirement. With an ageing population, and increased opportunities for work and study abroad, people are likely to continue to leave the United Kingdom in substantial numbers. Many of them will reside abroad for more than 15 years. In the countries to which they move, voting rights rest overwhelmingly on nationality, not residence. Apart from some nine Commonwealth countries – mainly islands in the West Indies – I understand that no state permits British citizens to vote in its principal national elections. They therefore exist in an electoral limbo.
...
Within the European Union, Britain compares unfavourably with most of its partners. Of the 27 EU members, 22 countries allow their expatriate citizens the right to vote, without any restriction on the period of residence outside the home country. That is apart from Germany, which restricts it to 25 years for expatriates living outside the EU. Just two countries, Denmark and the United Kingdom, restrict the period for voting rights: the UK to 15 years and Denmark to four. In three countries – Cyprus, the Republic of Ireland and Malta – expatriates have no right to vote.
The world has become much smaller. Britons overseas can listen to our radio via their computer, they can watch British television and read British newspapers just as rapidly as anyone living here, if they subscribe to them electronically. I make a confident prediction that this debate in our House today will attract one of the largest television online audiences abroad that your Lordships have had. I have met many British overseas residents who are as well, if not better, informed about British political affairs than the average voter here. So the old argument about expatriates’ inability to make an informed judgment about the great issues in our political life no longer holds.”
28. The Government minister responded that the question whether the time limit was appropriate was a wider question which remained under consideration within Government. He noted that there were valid arguments on both sides which needed to be carefully considered alongside any practical issues before any informed decisions could be taken. The amendment was withdrawn but it was subsequently reintroduced on 23 January 2013 during the Report stage of the bill, with further debate taking place. Again, the Government minister indicated that the issue was under consideration by Government and the amendment was withdrawn.
29. On 1 December 2011, the High Court handed down judgment in the case of Preston v Wandsworth Borough Council and Lord President of the Council. The claimant was a long-term resident of Spain who sought judicial review of the fifteen-year rule under section 1(3) of the 1985 Act. He argued that he had a directly effective right under European Union law to move to and reside in other Member States and that the fifteen-year rule operated unjustifiably to interfere with the exercise of that right.
30. The court found that there was no evidential basis for the contention that the fifteen-year rule created a barrier of any kind to free movement. The matter therefore did not fall within the scope of EU law. That being so, the issue of justification did not arise. The court nonetheless indicated that it considered the rule to be a proportionate interference with the right to free movement. It was of the view that the Government were entitled to hold that there was a legitimate objective which the rule was designed to achieve, namely to remove the right to vote from those whose links with the United Kingdom had diminished and who were not, for the most part at least, directly affected by the laws passed there. It observed:
“44. ... [T]he 15 year rule is designed to establish a test to identify when the absence of residence can fairly be said to have diluted the link with the UK sufficient to justify the removal of the right to vote. The fact that some residence tests do not properly or proportionately measure the strength of commitment does not mean that the adoption of a non-residence test cannot legitimately measure the weakening of commitment. This rule does not fix on non-residence at some particular point in time; it requires a consistent period of non-residence. In my judgment that is a justified way to measure the dilution of commitment. Thereafter the choice of a bright line rule is inevitable. It would in my view be wholly impracticable to adopt a rule which required consideration of the personal circumstances of all potential expatriate voters ...”
31. The court found that decisions of this Court upholding residence rules were “highly material” (referring to Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999VI; Melnychenko v. Ukraine, no. 17707/02, § 56, ECHR 2004X; and Doyle v. the United Kingdom (dec.), no. 30158/06, 6 February 2007).
32. Finally, the court considered that the exceptions to the fifteen-year period for certain categories of citizens were justified as the individuals concerned were resident in other States at the request of the United Kingdom in order to look after its national interests.
33. In its judgment of 25 October 2012, the Court of Appeal upheld the judgment of the High Court on both the question of the existence of an interference with free movement rights and the question of justification. Lord Justice Mummery gave the judgment for the court and, on the latter issue, noted in particular:
“89. First, the Divisional Court was entitled to hold ... that the 15 year rule had a legitimate aim, i.e. to test the strength of a British citizen’s links with the UK over a significant period of time by measuring past commitment to the UK and seeing whether it was sufficiently diminished or diluted to justify removal of the right to vote in parliamentary elections. That aim was legitimate for the purpose of confining the parliamentary franchise to those citizens with an ascertainable, continuing, close and objective connection with the UK, whose government made decisions and whose Parliament passed laws that most directly affected those British citizens resident in the UK.
90. Secondly, the residence of a citizen is not ... an arbitrary measure of connection with a country: far from it, residence is a relevant, rational and practicable criterion for assessing the closeness of the links between a British citizen and the UK.
91. Thirdly, the 15 year rule is proportionate to the aim. The length of the period represents three Parliamentary terms. It provides a substantial opportunity for continued voting by British citizens who have moved to reside in another EU country.
92. Fourthly, it is impracticable for the franchise criteria to be other than bright line rules capable of reasonably consistent practical application. It would be unworkable and disproportionate for the electoral authorities to have to make individual merits assessments of the particular circumstances of each resident in another EU country on a case-by-case basis in order to determine how close a connection there is between that particular individual and the UK despite prolonged absence.
93. Fifthly, there is no objectionable inconsistency of treatment arising from the excepted categories of overseas residents, such as members of the armed services and Crown employees. In general, they do not move to reside overseas as a voluntary exercise of the right to free movement ... [T]heir circumstances are distinguishable from those of the claimant and others who, like him, have chosen, for their own personal reasons, to live in another Member State.”
34. A foreign national may acquire Italian citizenship after having been resident in Italy and enrolled in the register of the population of a municipality for four years in the case of nationals of European Union Member States. Citizenship may also be acquired after two years of marriage to an Italian citizenship. Dual citizenship is permitted.
35. A foreign national wishing to acquire Italian citizenship must pay a fee of 200 euros plus a notarial fee of around 15 euros. Application forms are available on the website of the Ministry of Interior. An oath of allegiance to the Italian Republic must be sworn.
36. All Italian citizens are entitled to vote in Italian parliamentary elections (unless excluded for such things as conviction for certain offences etc.).
37. The Parliamentary Assembly of the Council of Europe (“the Assembly”) has adopted a number of resolutions and recommendations regarding migration issues, including implications for the right to vote.
38. In 1982 it adopted Recommendation 951 (1982) on voting rights of nationals of Council of Europe member states. The recitals to the recommendation read, in so far as relevant, as follows:
“1. Noting that an estimated 9 million nationals of Council of Europe member states do not reside in their country of origin, but in some other member state of the Council;
2. Considering that these citizens cannot normally take part in elections or referenda held in their country of residence because they are not nationals of that country;
3. Noting that many of them are also unable, under national legislation, to take part from the territory of their country of residence in elections and referenda held in their country of origin because they have no domicile there;
...
5. Considering that millions of nationals of Council of Europe member states are thereby deprived of all civic rights;
6. Mindful that one of the major concerns of the Council of Europe is to preserve and strengthen democracy and civic rights in member states;
7. Emphasising the importance it attaches to the rights guaranteed by the European Convention on Human Rights and the First Protocol thereto, particularly freedom of expression, freedom of peaceful assembly and freedom of association, as well as the obligation for member states to hold free elections at regular intervals ;
8. Believing that steps should, therefore, be taken to ensure that every national of a member state is able to exercise his political rights, at least in his country of origin, when he resides in another Council of Europe member state ...”
39. The Assembly recommended, inter alia, that the Committee of Ministers:
“c. consider the possibility of harmonising member states’ laws in the interests of maintaining the voting rights of their nationals living in another member state with regard to nation-wide elections and referenda, especially with a view to enabling votes to be cast by post or through diplomatic or consular missions;
d. envisage, if appropriate, the drawing up of a protocol to the European Convention on Human Rights whereby member states would undertake to respect such voting rights for their nationals living in another member state and refrain from hindering the exercise thereof by any measure whatever.”
40. In Recommendation 1410 (1999) on links between Europeans living abroad and their countries of origin, the Assembly noted that “several tens of millions” of Europeans were living outside their countries of origin. It continued:
“3. The Assembly believes that it is in the interest of states to ensure that their nationals continue actively to exercise their nationality, so that it does not become merely passive or essentially a matter of feelings and emotions, and that those nationals can in fact play an important go-between role in host countries, working for better political, cultural, economic and social relations between their country of origin and the country where they live.”
41. It recommended that the Committee of Ministers:
“iii. prepare a recommendation to the member states with the intention of fostering voluntary participation of expatriates in political, social and cultural life in their country of origin, by instituting and harmonising arrangements for specific representation, such as the unrestricted right to vote or specific parliamentary and institutional representation through various consultative councils ...
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v. invite member states:
...
c. to draw up, at national level, an in-depth, systematic analytical description of the respective situations of expatriates, with a view to co-ordinating expatriate relations policies at European level and harmonising arrangements for the institutional and political representation of expatriates, for example by creating a real expatriate status through appropriate legal instruments;
d. to take account of their expatriates’ interests in policy-making and in national practices concerning:
...
iii. the right to vote in loco in the country of origin;
iv. the right to vote of expatriates in embassies and consulates in their host countries;
...”
42. In Recommendation 1650 (2004) on links between Europeans living abroad and their countries of origin, the Assembly noted that the question of links between countries of origins and their expatriates was a relatively new problem, particularly in central and eastern Europe, that relations varied from strong and institutionalised to loose and informal and that there was no harmonisation in this respect at the pan-European level. It continued:
“4. The Parliamentary Assembly believes that it is in the interest of states to ensure that their expatriate nationals continue to actively exercise their rights linked to nationality and contribute in a variety of ways to the political, economic, social and cultural development of their countries of origin.”
43. The recommendation further noted that expatriation was the outcome of increasing globalisation and should be viewed as a positive expression of modernity and dynamism, bringing real economic benefit for both host countries and the countries of origin. The Assembly regretted the lack of follow-up to Recommendation 1410 (1999) and recommended that the Committee of Ministers invite member states, inter alia:
“c. to take account of their expatriates’ interest in policy making, in particular concerning questions of nationality; political rights, including voting rights; economic rights, including taxation and pension rights; social rights, including social schemes; and cultural rights ...”
44. It further recommended that the Committee of Ministers:
“ii. promote an exchange of views and co-operation between Council of Europe member states as regards political, legal, economic, social and cultural measures aimed at strengthening the links between European expatriates and their countries of origin;
iii. review the existing models of relations between expatriates and their countries of origin, with a view to making proposals for the introduction of legally-binding measures at the European level ...”
45. In Resolution 1459 (2005) on abolition of restrictions on the right to vote, the Assembly stressed at the outset the importance of the right to vote and to stand in elections as a basic precondition for preserving other fundamental civil and political rights upheld by the Council of Europe. It noted that electoral rights were the basis of democratic legitimacy and representativeness of the political process and considered that they should, therefore, evolve to follow the progress of modern societies towards ever inclusive democracy. It stated:
“3. The Assembly considers that, as a rule, priority should be given to granting effective, free and equal electoral rights to the highest possible number of citizens, without regard to their ethnic origin, health, status as members of the military or criminal record. Due regard should be given to the voting rights of citizens living abroad.”
46. The resolution continued:
“7. Given the importance of the right to vote in a democratic society, the member countries of the Council of Europe should enable their citizens living abroad to vote during national elections bearing in mind the complexity of different electoral systems. They should take appropriate measures to facilitate the exercise of such voting rights as much as possible ... Member states should co-operate with one another for this purpose and refrain from placing unnecessary obstacles in the path of the effective exercise of the voting rights of foreign nationals residing on their territories.”
47. In conclusion, the Assembly invited the member and observer States concerned to:
“b. grant electoral rights to all their citizens (nationals), without imposing residency requirements;
c. facilitate the exercise of expatriates’ electoral rights by providing for absentee voting procedures ...”
48. In its follow-up Recommendation 1714 (2005) on abolition of restrictions on the right to vote, the Assembly called upon the Committee of Ministers to appeal to member and observer States to, inter alia, review existing instruments with a view to assessing the possible need for a Council of Europe convention to improve international co-operation with a view to facilitating the exercise of electoral rights by expatriates.
49. In Resolution 1591 (2007) on distance voting (i.e. the exercise of the right to vote when absent from the country) the Assembly reiterated that the right to vote was an essential freedom in every democratic system and invited member States to introduce distance voting.
50. In 2008, the Assembly adopted two resolutions and two corresponding recommendations on the state of democracy in Europe, one on specific challenges facing European democracies (Resolution 1617 (2008) and Recommendation 1839 (2008)); and the other on measures to improve the democratic participation of migrants (Resolution 1618 (2008) and Recommendation 1840 (2008)). In these, the Assembly recalled that the essence of democracy was that all those concerned by a decision must be directly or indirectly part of the decision-making process. Accordingly, it considered representativeness to be of crucial importance and found it unacceptable that large groups of the population were excluded from the democratic process. It further observed that there were over sixty-four million migrants in Europe and that their increasing number resulted in a corresponding increasing need to ensure that they were given a “fair share” in the democratic process. While the Assembly focussed on the importance of the participation of migrants in the political process of the host country, it noted that democratic participation for migrants in their countries of origin was also important.
51. In Resolution 1696 (2009) on engaging European diasporas, the Assembly noted that policies to manage the many challenges and opportunities that had emerged with migration had not kept pace with the development of the phenomenon. It recalled that it had been engaged in dealing with the issue of Europeans living abroad and their links to their homelands for the last fifteen years. It continued:
“4. The Assembly considers it essential to strike and maintain a proper balance between the process of integration in the host societies and the links with the country of origin. It is convinced that seeing migrants as political actors and not only as workers or economic actors enhances the recognition of their capacity in the promotion and transference of democratic values. The right to vote and be elected in host countries and the opportunity to take part in democratically governed European non-governmental organisations can enable diasporas to endorse an accountable and democratic system of governance in their home countries. Policies that grant migrants rights and obligations arising from their status as citizens or residents in both countries should therefore be encouraged.
5. The Assembly regrets that, notwithstanding its long-standing calls to revise the existing models of relations between expatriates and their countries of origin, relations between member states of the Council of Europe and their diasporas are far from being harmonised. Many member states from central and eastern Europe are only beginning to recognise the potential development and other benefits of engaging their diasporas in a more institutionalised manner, especially in the context of the current global economic crisis.
6. The Assembly reiterates that it is in the interest of member states to ensure that their diasporas continue to actively exercise the rights linked to their nationality and contribute in a variety of ways to the political, economic, social and cultural development of their countries of origin. It is convinced that globalisation and growing migration may have an impact on host countries in many positive ways by contributing to building diverse, tolerant and multicultural societies.”
52. It encouraged member States, as countries of origin, to adopt a number of policy initiatives, including civil and political incentives to:
“9.1.1. develop institutions and elaborate policies for maximum harmonisation of the political, economic, social and cultural rights of diasporas with those of the native population;
9.1.2. ease the acquisition or maintenance of voting rights by offering out-of-country voting at national elections;
...”
53. The corresponding Recommendation (1890 (2009)) recalled previous recommendations on the subject and instructed the European Committee on Migration to:
“5.2.1. define the status, rights and obligations of diasporas in Europe, both in their countries of origin and in host countries;
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5.2.3. carry out a study on the experience of member states in setting up government offices for diasporas and the experience of granting voting rights to diasporas and access to other political participation mechanisms;
...”
54. Finally, in its Resolution 1897 (2012) on ensuring greater democracy in elections the Assembly called on the member States to foster citizen participation in the electoral process, in particular by, inter alia:
“8.1.12. enabling all citizens to exercise their right to vote through proxy voting, postal voting or e-voting, on the condition that the secrecy and the security of the vote are guaranteed; facilitating the participation in the electoral process of citizens living abroad, subject to restrictions in accordance with the law, such as duration of residence abroad, whilst ensuring that, if polling stations are set up abroad, their establishment is based on transparent criteria; safeguarding the right to vote of vulnerable groups (people with disabilities, people who are illiterate, etc.) by adapting polling stations and voting material to their needs; abolishing legal provisions providing for general, automatic and indiscriminate disenfranchisement of all serving prisoners irrespective of the nature or gravity of their offences;”
55. In a number of the above texts, the Assembly also addressed the question of the political participation of migrants in their host countries (see also Recommendation 1500 (2001) on participation of immigrants and foreign residents in political life in the member States).
56. In its reply to Recommendation 1650 (2004) on links between Europeans living abroad and their countries of origin (see paragraphs 42-44 above), the Committee of Ministers commented that the Recommendation raised important and timely issues that should be given serious consideration and therefore brought it to the attention of the governments of the member States. The Committee of Ministers agreed with the Assembly that growing expatriation could be a positive effect of globalisation that contributed to building diverse, tolerant and multicultural societies and recognised the role that migrants could play as vectors of development for both countries of origin and destination. It further agreed that the right balance between the integration into host societies and the links with the country of origin should be achieved and maintained, and charged the European Committee on Migration with examining the concrete mechanisms linked to the migratory processes at the pan-European level, with a view to identifying the legal measures that could contribute to such a balance.
57. In its reply to Recommendation 1714 (2005) on abolition of restrictions on the right to vote (see paragraph 47 above), the Committee of Ministers agreed that the abolition of existing restrictions on the right to vote should be the subject of further activities of the Council of Europe. It also agreed that that member States should take measures to facilitate the exercise of voting rights of citizens living abroad, for example through postal, consular or e-voting. However, it did not see any pressing need to elaborate a convention to improve international co-operation on the issue.
58. In its Final Declaration at the 8th Council of Europe Conference of Ministers responsible for migration affairs regarding “Economic migration, social cohesion and development: towards an integrated approach”, 45 September 2008, the Committee of Ministers recognised that the Council of Europe had the potential to develop holistic and coherent policies in the field of migration based on human rights. The thematic report prepared as a main reference for the Conference contained a chapter on migration and social cohesion. On the question of links between the migrant and the country of origin, the report noted:
“286. At the same time, long term and permanent immigrants increasingly maintain multiple social, economic and political ties and sometimes, dual citizenship with both host and home countries, establishing social and communities that transcend geographical, cultural and political borders. As well, migrants are developing transnational activities and multicultural and multilingual skills. These evolving features of international migration also need to be taken into account in designing policies and practices to ensure social inclusion and cohesion in European countries.”
59. The report also commented on the emergence of “transnationalism” in the area of migration:
“386. ... The term transnationalism refers to processes whereby migrants develop multiple social ties between the society from which they come and the host society, establishing social communities that transcend geographical, cultural and political borders. More people attain multiple identities, transnational relationships and dual or multiple citizenship. An increasing number of migrants are organising their lives with reference to two or more societies and are developing transnational activities and multicultural and multilingual skills. Dual citizenship and European ‘citizenship’ reflect greater freedom of movement, multicultural societies, employment mobility, activities in two or more countries, and so on. An increasing migratory circulation within the European area reflecting a gradual emergence of cosmopolitan, intercultural and global citizenship.”
60. The European Commission for Democracy though Law (“Venice Commission”) adopted Guidelines on Elections at its 51st Plenary Session on 5-6 July 2002. As regards the principle of universal suffrage, the Guidelines provided:
“Universal suffrage means in principle that all human beings have the right to vote and to stand for election. This right may, however, and indeed should, be subject to certain conditions ...”
61. These conditions included conditions of age, nationality, residence and other grounds for deprivation of the right to vote. As to residence, the Guidelines noted:
“i. A residence requirement may be imposed.
ii. Residence in this case means habitual residence.
iii. A length of residence requirement may be imposed on nationals solely for local or regional elections.
iv. The requisite period of residence should not exceed six months; a longer period may be required only to protect national minorities.
v. The right to vote and to be elected may be accorded to citizens residing abroad.”
62. The Guidelines were subsequently included, together with an explanatory report, in the Code of Good Practice in Electoral Matters adopted by the Venice Commission at its 52nd Plenary Session, 1819 October 2002.
63. At its 61st Plenary Session, 3-4 December 2004, the Venice Commission endorsed two reports on the Abolition of Restrictions on the Right to Vote in General Elections (CDL-AD (2005) 012 and CDL-AD (2005) 011). One of the reports contained reflections on the right to vote of expatriates in their countries of origin. It noted:
“28. Most of the citizens in European countries who are temporarily working or staying abroad are registered in the Voters’ List in their country of origin. Those persons are mainly registered according to their last place of residence prior to the departure abroad. This clearly indicates the determination of the legislators to use residence as a basis for allocation of the citizens (who have a right to vote) in the Voters’ List ...”
64. It continued:
“31. One question arises from the aforesaid facts: why do most of the states decide to adopt the concept that links the right of a citizen to vote with his or her residence? The methodology of voter registration determines the distribution of the polling stations, and accordingly results in the layout of the electoral districts. But, citizens who are abroad on Election Day in the same Council of Europe member states may exercise their right to vote in the diplomatic and consular offices or by mail. However, according to the legislation of the same countries, they would have to return to their country and cast their vote in the polling station located in the municipality where their last residence was before they left the country. Not all of them might be in a position to do so.
32. In our view, the country of origin should find a formula to encompass this category of voters who reside abroad and want to exercise their right to vote, but cannot come to their country on Election Day. It is up to the citizen to decide whether or not he/she wishes to exercise this right. The same approach should be applied to the legal requirement for passive suffrage ... This approach is particularly important for countries with a large numbers of its nationals living abroad, who, at the same time, maintain relations with [the] state ...”
65. A subsequent opinion on the Assembly’s Recommendation 1714 (2005) (see paragraph 47 above) adopted by the Venice Commission in October 2005 noted:
“3. The right to vote as one of the fundamental political rights is also fundamental for the fulfilment of a number of civil and social rights. At the same time the principles of universality, equality, freedom and secret ballots are the four pillars of the European electoral heritage and they are introduced into the constitutions and electoral legislation of the member and observer states of the Council of Europe. In this respect the abolition of existing restrictions on the right to vote should be of interest to states and it should also serve as an issue for further activities of the Council of Europe and other international organisations.
4. In some member and observer states of the Council of Europe, the implementation of existing standards and general principles is deeply influenced by customs, and traditions, but most of all by the level of political culture. In a number of cases and situations in countries of Europe and elsewhere various norms and practices have been established which restrict the right to vote to certain categories of people. Such restrictions are problematic from a human rights perspective. European institutions and in this case the Parliamentary Assembly of the Council of Europe are working to overcome such restrictions.”
66. The opinion concluded that the Venice Commission was following the achievements in the area of democratic elections and in respect of voting rights as one of the basic human rights which would continue to influence improvements in international and national legislation.
67. A report on Electoral Law and Electoral Administration in Europe, adopted by the Venice Commission in June 2006 (CDL-AD (2006) 018), noted, on the question of overseas voters:
“57. External voting rights, e.g. granting nationals living abroad the right to vote, are a relatively new phenomenon. Even in long-established democracies, citizens living in foreign countries were not given voting rights until the 1980s (e.g. Federal Republic of Germany, United Kingdom) or the 1990s (e.g., Canada, Japan). In the meantime, however, many emerging or new democracies in Europe have introduced legal provisions for external voting (out-of-country voting, overseas voting). Although it is yet not common in Europe, the introduction of external voting rights might be considered, if not yet present. However, safeguards must be implemented to ensure the integrity of the vote .....”
68. In June 2011 the Venice Commission adopted a report on OutofCountry Voting (CDL-AD (2011) 022). The report noted the complexity of the issue of the right to vote of overseas electors and indicated that it was within the scope of the State’s own sovereignty to decide whether to grant the right to vote to citizens residing abroad. The report identified the following arguments in favour of out-of-country voting:
“63. Legal recognition of citizens is based on the principle of ‘nationality’. The citizens of a country therefore enjoy, in principle, all the civil rights recognised in that country.
64. The principle of ‘out-of-country voting’ enables citizens living outside their country of origin to continue participating in the political life of their country on a ‘remote’ basis ...
65. Out-of-country voting guarantees equality between citizens living in the country and expatriates.
66. It ensures that citizens maintain ties with their country of origin and boosts their feeling of belonging to a nation of which they are members regardless of geographical, economic or political circumstances.”
69. Discussing the nature and effects of restrictions imposed, the report observed:
“70. In the case of states whose citizens live abroad in large numbers, to the extent that their votes could appreciably affect election results, it seems more appropriate to provide parliamentary representation for the citizens resident abroad by pre-defined numbers of members of parliament elected by them ...
71. Given that, in the case of national elections at least, it is exceptional for foreign nationals to have the right to vote in their place of residence, citizens residing abroad are likely to be unable to vote anywhere if they do not have the right to vote in their country of origin. Denying them that right is therefore equivalent to a derogation from the right to vote. It should be possible to find a solution more in keeping with the principle of proportionality by placing certain restrictions on voting rights of citizens residing abroad.
72. Restrictions of a formal nature or based on the voting procedure make it possible to exclude persons having no ties with the country of origin – who will probably not vote anyway. The mere fact of requiring registration on an electoral roll, usually for a limited period, calls for action on the part of potential voters.
73. One might also wonder whether, instead of excluding citizens residing abroad completely, it would not be preferable to restrict the right to vote to those who have lived in the country for a certain time, and to set a limit on the period for which they retain the right to vote after leaving the country ...”
70. As regards the loss of the right to vote after a specified period of absence, the report added:
“76. ... it would nevertheless be preferable for the situation to be reconsidered, rather than for provision to be made for the right to vote to be purely and simply lost.”
71. The report concluded that national practices regarding the right to vote of citizens living abroad and its exercise were far from uniform in Europe. However, developments in legislation pointed to a favourable trend in out-of-country voting, in national elections at least, as regards citizens who had maintained ties with their country of origin. The Commission accepted that the denial of the right to vote to citizens living abroad or the placing of limits on that right constituted a restriction of the principle of universal suffrage. However, it did not consider at this stage that the principles of the European electoral heritage required the introduction of such a right, namely a right for all expatriate citizens to vote in their State of nationality which was subject to no residence qualification. The Commission nonetheless suggested, in view of citizens’ European mobility, that States adopt a positive approach to the right to vote of citizens living abroad, since this right fostered the development of national and European citizenship
72. In the context of the Venice Commission’s recent report on Out-of Country Voting (see paragraphs 68-71 above), a review of the legislation of the law and practice of the forty-seven member States of the Council of Europe was conducted. From this, together with other information at the Court’s disposal, one can draw the following broad picture of the right of non-residents to vote in national elections in the country of citizenship.
73. In three States, voting by non-residents is either prohibited or restricted to a very limited category of persons (Armenia, Ireland and Malta).
74. In thirty-five States no restrictions are placed on the period of absence from the country (Albania, Andorra, Austria, Azerbaijan, Belgium, Bulgaria, Cyprus, Czech Republic, Croatia, Estonia, Finland, France, Georgia, Greece, Iceland, Italy, Latvia, Lithuania, Luxembourg, Moldova, Monaco, Norway, Netherlands, Poland, Portugal, Romania, Russia, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey and Ukraine).
75. Nine States allow non-residents to vote but impose restrictions. Seven States restrict the right to vote from overseas to those “temporarily” abroad (Bosnia and Herzegovina, Denmark, Hungary, Liechtenstein, Montenegro, Serbia and the former Yugoslav Republic of Macedonia). In three of these States the term “temporary” is not defined and no particular conditions are imposed on non-residents to demonstrate that their residence abroad is temporary (Bosnia and Herzegovina, Montenegro and Serbia). Two States grant a right to vote to overseas electors abroad for a long-term period but remove the right at the expiry of this period (Germany, which removes the right after twenty-five years, and the United Kingdom).
76. In the forty-four States which allow some degree of voting by nonresidents, the modalities of voting differ, with some allowing votes by post or proxy, others requiring voting in person at embassies and consulates, and yet others permitting voting in person on national territory only (see Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, §§ 32-45, ECHR 2012 for further details).
NON_VIOLATED_ARTICLES: P1
NON_VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-4755
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: E.E. v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, living in Grünbach (Austria). She is the maternal grandmother of the child Andreas, who was born out of wedlock on 18 May 1993.
The applicant is represented before the Court by Mr H. Blum, a lawyer practising in Linz.
On 11 November 1994, the Freistadt District Authority (Bezirkshauptmannschaft) petitioned the Freistadt District Court (Bezirksgericht) that the custody of the applicant's grandchild, Andreas, be withdrawn from the applicant's daughter and transferred to the District Authority's Youth Welfare Office. The authority submitted that Andreas' mother did not care for her child, but left it entirely to her son's grandmother, the applicant, to care for and raise him.
On 26 January 1995, the Freistadt District Court heard the applicant on the question raised by the Authority. She did not object to the withdrawal of her daughter's parental rights, confirming that her daughter failed to take care of Andreas. The applicant explained that she, herself, would like to continue to take care of her grandchild.
On 15 March 1995, the Freistadt District Court approved of the District Authority's petition pursuant to sections 176 and 176a of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) on the ground that Andreas' well-being was endangered by his mother's conduct. On 20 March 1995, the District Court served its decision on, inter alia, the applicant. Andreas was placed with foster-parents on 28 April 1995.
On 9 May 1995, the applicant requested the Freistadt District Court to transfer custody of Andreas to her. She alleged shortcomings in the care by the foster-parents and requested that a child-psychologist's expert opinion be prepared to prove that Andreas' well-being was better ensured by her than by foster-parents.
In its decision of 8 September 1995, the Freistadt District Court rejected both requests. It relied on the Vöcklabruck Youth Welfare Office's report according to which Andreas had adapted well to his foster-parents who took care of his well-being, and that there had been big improvements in his development. The applicant and Andreas' mother were entitled to visit him. The District Court observed that the transfer of custody of Andreas to the District Authority was res judicata and could only be amended in the case of new relevant developments. However, the applicant had failed to prove that the foster-parents' care negatively affected her grandchild's well-being.
On 10 October 1995, the Linz Regional Court (Landgericht) declared the applicant's appeal inadmissible to the extent that it concerned the District Court's decision of 15 March 1995, on the ground that this decision had become final. It dismissed the remainder as she had failed to submit any new relevant circumstances.
In these and the following proceedings, the applicant was represented by counsel.
On 19 April 1996, the applicant applied anew to the Freistadt District Court for the custody of her grandchild to be transferred to her. She submitted that in the course of her visits she had gained the impression that Andreas was not well at the foster-parent's place, although she could not specify reasons therefor. She once again asked for an expert opinion to be prepared in order to prove that both Andreas' psychological and physical condition had deteriorated since he had been living with his foster-parents.
In its decision of 10 December 1996, the Freistadt District Court dismissed the applicant's request on the ground that the care and custody of the grandchild could only be changed if this were in the child's interest. The District Court observed, first, that the foster-parents had been frequently checked as a result of the applicant's continuous complaints, but that there had never been any basis found for the applicant's charges. According to information provided by a psychologist, Andreas was well established with his foster-parents. The Court further noted that the child's physical development did not demonstrate any anomaly or sign of under-nourishment. Therefore, it did not consider it necessary to obtain a medical expert opinion. The Court also noted that Andreas' mother, who lives in a little house together with the applicant and her infant daughter, did not connect to Andreas at all when he had visited her.
On 30 January 1997, the Linz Regional Court dismissed the applicant's appeal on the ground that, in the absence of any new relevant information, the applicant's request was barred because of the binding effect of the judicial ruling of 15 March 1995. As regards the procedural complaints that the District Court did not obtain a medical and child-psychologist's expert opinion, the Regional Court referred both to the Freistadt District Authority's report of 30 September 1996 and the report of the Vöcklabruck District Authority's psychologist of 16 September 1996, as well as the statements made by Andreas' foster-parents. From all three sources, it followed that Andreas had developed well at his foster-parents' place. For this reason, the Regional Court held that the absence of an expert opinion did not constitute a procedural defect. The Court finally observed that, even if the situation at the foster-parents' place had not been satisfactory, this would not have led to the transfer of custody to Andreas' mother or grandmother, but only to a change of foster-parents.
As regards the alleged lack of information about the results of the District Court's investigation, the Regional Court recalled that the right to be heard, pursuant to Article 6 § 1 of the European Convention on Human Rights, was not violated if the parties concerned had had an opportunity to comment in appeal proceedings. The Regional Court observed that the applicant did indeed make use of this possibility.
On 26 March 1997, the Supreme Court (Oberster Gerichtshof) dismissed the applicant's special appeal on points of law (außerordentlicher Revisionsrekurs). The Supreme Court noted that the circumstances had not changed since the final judgment of 15 March 1995.


ITEMID: 001-61091
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF GEORGIOS PAPAGEORGIOU v. GREECE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 concerning the length of proceedings;Violation of Art. 6-1 and 6-3-d;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Giovanni Bonello
TEXT: 7. The applicant was born in 1955 and lives in Aghios Stefanos (Attica).
8. On 30 May 1990 the Commercial Bank of Greece lodged a criminal complaint against a number of its employees, including the applicant, alleging suppression of documents, forgery and uttering, and fraud, offences which it claimed had caused it a loss of more than 20,000,000 drachmas. It accused the employees concerned of having debited the account of Greek Railways (“the OSE”) using seven cheques from a cheque book that had been produced in the railway company’s name but never actually issued to it. On 2 June 1990 the public prosecutor instituted proceedings against the applicant.
9. On 27 March 1991 the applicant was summoned to appear before the investigating judge and was placed in pre-trial detention. On 23 April 1991 he was released on bail, subject to court supervision entailing, among other things, a ban on leaving the country.
10. In a decision of 26 June 1992 the Indictment Division of the Athens Court of Appeal committed some of the accused, including the applicant, for trial in the Athens Court of Appeal, composed of three judges as is the rule for cases dealt with by courts of appeal at first instance.
11. The hearing, initially set down for 27 May 1994, was adjourned firstly until 26 January 1996 because of a strike by members of the Athens Bar and subsequently until 31 May 1996 because of the ill health of one of the other defendants. On that date the hearing was again adjourned, this time until 13 October 1997.
12. On 4 June 1996 the applicant, who before joining the bank had been an officer in the merchant navy, applied to have the ban on his leaving the country lifted so that he could work in the navy again. He argued that he needed to be in gainful employment in order to support his wife and three children and pointed out that the proceedings had been adjourned several times by the court itself. However, his application was refused by the public prosecutor and subsequently by the Indictment Division of the Court of Appeal, the Court of Appeal having earlier rejected a similar application.
13. The trial finally began on 13 October 1997 – five years, three months and seventeen days after the Indictment Division’s decision of 26 June 1992 and more than seven years after the complaint had been lodged and the proceedings instituted. Hearings were held on 13, 14, 15, 21 and 29 October 1997. One of the co-defendants requested the production in court of the back-up tape for the bank’s computer (but not the cheques in question). Counsel for the bank produced a declaration by the bank’s information technology department attesting that the copies of the computer tapes in the file were authentic. The declaration was read out at the hearing without eliciting any reaction from the defendants. During the trial at least sixty-six documents were read out and evidence was heard from three witnesses.
The Court of Appeal gave judgment on 29 October 1997. It convicted the applicant and sentenced him to five years and four months’ imprisonment, to be reduced by the period already spent in pre-trial detention, and ordered the confiscation and destruction of the seven cheques in question. Lastly, it ruled that if the applicant decided to appeal, the appeal would suspend the execution of the sentence.
14. The applicant appealed against the judgment to the appropriate court, namely the Athens Court of Appeal, sitting as a bench of five judges. On 20 February 1998 that court upheld the judgment delivered at first instance but reduced the sentence to four years and ten months’ imprisonment.
15. During the trial the applicant had requested the production of certain extracts from the log file of the bank’s computer and of the original cheques and had asked for a handwriting expert, Mr Chalkias, to be summoned and cross-examined in the presence of another handwriting expert.
16. The Court of Appeal refused those requests on the following grounds:
“The precision and authenticity of the extracts from the bank’s central computer records, accompanied by declarations by senior executives of the bank, are beyond dispute, and the production of the extracts is unnecessary. Nor is there any need to summon and cross-examine Mr Chalkias, because he has drawn up a detailed report which was read out at the trial. Lastly, the photocopies of the relevant cheques, which none of the parties disputes are forged, satisfy the needs of the proceedings and production of the originals therefore serves no purpose.”
17. The Court of Appeal read out the items of evidence that had already been adduced at first instance and heard evidence from twelve prosecution and five defence witnesses.
18. It noted that, contrary to what the applicant had maintained, the connection between the cheques in question and the OSE’s account could not have been established by members of the bank’s information technology department, which was empowered only to process data from branches. It further observed that on the date of the offence, the applicant had been the only person to use the computer on which the offence had been committed. The handwriting expert had concluded that characteristics of the applicant’s handwriting and signature were visible on the cheques. Lastly, the Court of Appeal noted that the applicant was one of the very limited number of the bank’s employees who knew the OSE’s account number and the names of the OSE employees authorised to issue cheques.
19. The applicant appealed on points of law. On 20 October 1998 the Court of Cassation quashed the judgment appealed against in respect of the charges of suppressing documents and forgery and uttering, and remitted the case to the Court of Appeal in respect of the charge of fraud only.
20. The Court of Appeal held a hearing on 2 December 1998. The applicant again requested the production of extracts from the bank’s log file and sought a declaration from counsel for the bank attesting that the photocopies of the cheques were authentic. The Court of Appeal refused those requests. With regard to the first request, it ruled that it was impossible to recover the extracts from the bank’s log file because the relevant tape reels had not been kept, and added that the authenticity of the documents in question was clear from other pieces of documentary evidence. It construed the second request as an attempt to establish whether the defendant had had an accomplice, whereas his guilt was apparent from other evidence. The Court of Appeal also held that it had not been proved that the photocopies of the cheques had been falsified. It concluded that the defendant had committed the offence on the basis of a pre-defined plan, which he had intended to carry out several times in order to misappropriate funds from Greek Railways.
21. On 8 December 1998 the Court of Appeal found the applicant guilty of fraud within the meaning of Article 386 of the Criminal Code, holding that the loss sustained by the bank had resulted from deception on the part of its employees and that the question whether the computer had been used or not was irrelevant. It sentenced him to three years and six months’ imprisonment (to be reduced by twenty-eight days, the period already spent in pre-trial detention) and ordered the destruction of the forged cheques.
22. On 30 November 1999 the Court of Cassation, on an appeal by the applicant, upheld the Court of Appeal’s judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85838
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FURLEPA v. POLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: The applicant, Mrs Janina Furlepa, was a Polish national who was born in 1926, died in 2006 and lived in Olsztyn, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr K. Drzewicki and subsequently by Mr J. Wołasiewicz of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant lived in a semi-detached house in Olsztyn. In 1994 the house situated on the adjacent plot of land was sold. The new owner - “G. L” - demolished it and began to construct a building there.
On 10 November 1994 the Olsztyn Municipal Office (Urząd Miasta) issued preliminary planning permission authorising G. L. to continue the construction of the building for residential and/or commercial purposes. On 20 December 1994, on an appeal by the applicant, the Olsztyn Regional Office (Urząd Wojewódzki) quashed it and remitted the case. On 21 December 1994 the Olsztyn Municipal Office ordered all the construction works to be stopped and the building area to be secured.
On 30 January 1995 the Olsztyn Municipal Office gave a decision confirming that the intended construction could be located in the specified area (decyzja o ustaleniu warunków zabudowy i zagospodarowania terenu). On 23 March 1995 the Self-Government Board of Appeal in Olsztyn (Samorządowe Kolegium Odwoławcze) quashed this decision and remitted the case.
On 6 April 1995 the Municipal Office gave a decision ordering G. L. to secure the building area by constructing a special wall. In spring 1995 G. L. proceeded with the construction of the building.
On 16 May 1995 the Municipal Office delivered a second planning permission (decyzja o ustaleniu warunków zabudowy i zagospodarowania terenu) concerning the location of the intended construction. It refused permission for construction of a car repair garage and held that it was only possible to locate a car accessory shop on the site. This decision was later upheld by the Self-Government Board of Appeal, on 5 July 1995. The applicant lodged an appeal with the Supreme Administrative Court (Naczelny Sąd Administracyjny).
On 14 July 1995 the Municipal Office gave a decision discontinuing the administrative proceedings as regards the safety requirements. It was established that G. L. had fulfilled all the necessary requirements as regards the security of the adjacent building.
On 12 July 1995 the Municipal Office ordered G. L. to demolish part of the constructed building as it had been built without the appropriate building permit (pozwolenie na budowę). On 14 November 1995 the Municipal Office again ordered G. L. to demolish part of the new building.
On 5 August 1996 the Municipal Office issued a building permit in favour of G. L. and allowed her to construct a car accessory shop. On 25 September 1996 the Regional Office quashed this decision and remitted the case. It held that as the construction works had begun and been carried out illegally, the case should be considered under Article 48 of the Law on Construction (Prawo budowlane). On 17 October 1996 the Municipal Office allowed the construction of the car accessory shop on the site. This decision was again quashed by the Regional Office on 14 January 1997.
On 7 May 1997 the Municipal Office delivered yet another decision allowing the construction of a car accessory shop and a shop selling new cars on the adjacent plot.
On 14 May 1997 the Supreme Administrative Court gave judgment and quashed the decision of 5 July 1995. It held that according to the local development plan, the planned construction was in a zone designated as residential. While it was possible to allow for such developments as grocery shops and local services, the construction of a car sales point or a car accessory shop was not a development of that kind.
On 25 June 1997 the Olsztyn Regional Office quashed the decision of 7 May 1997 and remitted the case.
On 27 March 1998 the Municipal Office ordered G. L. to stop the construction works as they had been carried out without an appropriate permit. On 11 May 1998 the Regional Office upheld this decision.
On 13 October 1999 the Supreme Administrative Court quashed the decision of 25 June 1997. It held that since 1995 the construction works on G. L.’s plot had been carried out illegally and that the administrative authorities had been fully aware of that fact.
On 14 July 2000 the District Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego) ordered the garage to be demolished. This decision was upheld by the Regional Inspector of Construction Supervision (Warmińsko-Mazurski Wojewódzki Inspektor Nadzoru Budowlanego) on 2 October 2000. On 7 December 2000 the District Inspector of Construction Supervision imposed a fine on G. L. as she had failed to comply with this order. This decision was upheld by the Regional Inspector on 21 January 2001.
Meanwhile, on 23 October 2000 the Regional Sanitary Inspector (Warmińsko-Mazurski Wojewódzki Inspektor Nadzoru Budowlanego) informed the applicant that there had been an inspection of G. L’s building. During the inspection it was established that no repairing or spraying of cars was taking place. At the same time, the inspector reiterated that he was not competent to decide on the legality of the adjacent building.
On 25 May 2001 the Supreme Administrative Court decided to stay the enforcement of the decision of 21 January 2001. The court noted that enforcement of this decision before G. L’s appeal was examined could expose her to irreversible damage.
On 23 December 2002 G. L. sought to have the decision of the Regional Inspector of Construction Supervision of 2 October 2000 declared null and void. On 9 May 2003 and 23 June 2003 the Head Authority for Construction Supervision refused to declare this decision null and void. On 6 November 2003 the Supreme Administrative Court dismissed a further appeal by G. L.


ITEMID: 001-72150
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF DELİGÖZ  v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Not necessary to examine under Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1944 and lives in Mersin.
5. On 2 November 1993 the General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant in Mersin in order to build a motorway. A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicant when the expropriation took place.
6. Following the applicant’s request for increased compensation, on 25 April 1997 the Mersin Civil Court of First-instance awarded him additional compensation of 305,201,400 Turkish liras (TRL), plus interest at the statutory rate, applicable at the date of the court’s decision, running from 2 November 1993, the date of transfer of the title-deeds.
7. On 23 March 1998 the Court of Cassation upheld the judgment of the Mersin Civil Court of First-instance.
8. On 17 May 2000 the General Directorate of National Roads and Highways paid the applicant TRL 1,167,070,000, interest included.
9. The relevant domestic law and practice are set out in the Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997-IV).


ITEMID: 001-95091
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SOKUR v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant is a Russian national who was born in 1977 and is serving a prison sentence in Kaliningrad.
7. On 1 June 1998 the applicant was arrested on suspicion of assault and robbery. He remained in custody pending investigation and trial.
8. On 20 May 1999 the Moskovskiy District Court of Kaliningrad found the applicant guilty as charged and sentenced him to seven years' imprisonment.
9. On 31 August 1999 the Kaliningrad Regional Court quashed the applicant's conviction on appeal and discontinued the criminal proceedings against him. He was released on the same day.
10. It appears that approximately a month after his release the applicant was arrested on suspicion of two counts of murder.
11. In December 2001 the applicant, who was at that time serving a prison sentence, sued the Ministry of Finance and M., the trial judge who had convicted him on 20 May 1999, for compensation for damage resulting from his unlawful detention and conviction. The applicant claimed an award for non-pecuniary damage in the amount of 500,000 Russian roubles (RUB), reimbursement of his lawyer's fee and lost earnings in the amount of RUB 55,000. He also sought leave to appear before the court.
12. On 25 January 2002 the Moskovskiy District Court of Kaliningrad granted the applicant leave to appear and scheduled the hearing for 22 February 2002.
13. The District Court heard the case on 22 February 2002 as scheduled. The applicant was not transported to participate in the hearing. Mr D., his representative, was present. He asked the court to consider the matter in the applicant's absence. The District Court granted the applicant's claims in part and awarded him RUB 25,000 in compensation for non-pecuniary damage. The remainder of the applicant's claims were dismissed.
14. On a complaint by the applicant, the Presidium of the Kaliningrad Regional Court quashed the judgment of 22 February 2002 by way of supervisory review on 30 July 2002. The court noted, inter alia, that the District Court had failed: (1) to inform the applicant of his duty to submit documents substantiating his claim for compensation for lost earnings; and (2) to establish the circumstances with regard to the applicant's claim concerning non-pecuniary damage.
15. On 15 August 2002 the applicant was notified of a new court hearing, scheduled for 28 August 2002. He was also advised of his right to be represented in the proceedings before the court.
16. In response to the District Court's decision of 6 August 2002 to grant the applicant leave to appear, the head of the administration of the penitentiary establishment responded that it was not possible to comply with the court's decision. On 28 August 2002 the District Court adjourned the hearing.
17. On 29 August 2002 the District Court asked the applicant to make written submissions in connection with his claims. The applicant asked the court to appoint the regional ombudsman to represent him in the proceedings. He further asked the court to obtain certain documents to substantiate his claims for compensation for lost earnings and reimbursement of the lawyer's fee.
18. On 1 November 2002 the District Court adjourned the hearing of the matter pending the receipt of the documents requested by the applicant. The court scheduled the next hearing for 11 December 2002 and advised the applicant of his right to appoint a representative.
19. Following the ombudsman's refusal to represent the applicant, the latter asked the District Court to secure his presence at the next hearing.
20. On 11 December 2002 the District Court granted the applicant's claims in part and awarded him RUB 15,000 in compensation for non-pecuniary damage and RUB 1,900 by way of reimbursement of the lawyer's fee. The court dismissed the applicant's claims for lost earnings, noting that he had failed to submit documents proving that he had been actually employed at the relevant time. Neither the applicant nor the respondents were present. The record of the court hearing and other items from the case file were forwarded to the applicant.
21. The applicant appealed against the judgment of 11 December 2002. In response to the applicant's request to be present at the appeal hearing, the Regional Court informed him that the applicable laws did not provide for the personal presence of persons serving a prison sentence at a hearing concerning the determination of their civil rights and obligations. The court further advised the applicant of his right to submit observations in writing and/or to appoint a representative.
22. On 26 March 2003 the Regional Court upheld in substance the judgment of 11 December 2002 on appeal, increasing to RUB 35,000 the amount awarded to the applicant in compensation for non-pecuniary damage. Neither the applicant nor the respondents were present.
23. Parties to civil proceedings may appear before a court in person or act through a representative (Article 43 of the Code of Civil Procedure in force until 31 January 2003 (“the old CCP”) and Article 48 of the Code of Civil Procedure in force as of 1 February 2003 (“the new CCP”). A court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50 of the new CCP). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims for health damage (section 26 § 1).
24. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). The Code does not mention the possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or defendant.
25. On several occasions the Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person's access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving the sentence or the court hearing the case may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant's submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004, and no. 94-O of 21 February 2008).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90293
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GONCHAROVY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicants, Mr Nikolay Stepanovich Goncharov and Mr Ivan Stepanovich Goncharov are Russian nationals who were born in 1947 and 1955 respectively and live in the Smolensk Region. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 19 February 1981 the applicants were arrested on suspicion of having committed several crimes. They were detained pending investigation.
On 26 May 1982 the Kaluga Regional Court convicted the first applicant of unlawful carriage of firearms, forgery, death threats and misappropriation (Articles 218, 196, 175, 96 and 207 of the Russian Soviet Federative Socialist Republic (“RSFSR”) Criminal Code, hereinafter the “Criminal Code”) and the second applicant of forgery and misappropriation (Articles 196 and 96 of the Criminal Code). The Regional Court further acquitted the applicants of several other crimes. The applicants were sentenced to one year and three months’ imprisonment and one year’s imprisonment respectively. The applicants were released in the courtroom.
On 28 July 1982 the Supreme Court of the RSFSR upheld the above judgment on appeal.
On 1 April 1991 the first applicant applied to the Supreme Court of the RSFSR requesting the court to initiate a supervisory review of his criminal case, to quash the judgment of 26 May 1982, as upheld on 28 July 1982, and to terminate the criminal proceedings against him owing to the absence of corpus delicti in his actions.
On an unspecified date the President of the Supreme Court of the RSFSR lodged an application for supervisory review of the judgment of 26 May 1982, as upheld on 28 July 1982.
On 25 September 1991 the Presidium of the Supreme Court of the RSFSR quashed the judgment of 26 May 1982, as upheld on 28 July 1982, by way of supervisory review. The Supreme Court found that the above judgment could not be considered lawful and well-founded At the same time, the Presidium left the remainder of the judgment, that is the acquittal part, in force.
On 25 November 1991 the Prosecutor of the Smolensk Region discontinued the criminal proceedings in respect of the first applicant partly for want of proof of a crime and partly on the ground that further prosecution was time-barred. The criminal proceedings against the second applicant were discontinued partly because of the lack of corpus delicti in his actions and partly because further prosecution was time-barred.
The applicants appealed against the above decision. In their appeal they expressed discontent with the grounds given for termination of the criminal proceedings against them and insisted on the remittal of their case to the court for its examination on the merits. As a result, on 10 January 1992 the Prosecutor of the Smolensk Region quashed the decision of 25 November 1991. The preliminary investigation into the case was assigned to the Bryansk Transport Prosecutor’s Office.
On 25 August 1992 and 15 May 1993 the Bryansk Transport Prosecutor’s Office again terminated the criminal proceedings against the applicants on the same grounds as previously. However, on 4 September 1992 and 23 October 1998 respectively the Moscow Transport Prosecutor’s Office quashed the above decisions on appeal and resumed the preliminary investigation. The Moscow Transport Prosecutor’s Office noted on both occasions that a criminal case could be terminated on nonexonerative grounds, such as a time-bar on further prosecution, only with the consent of the prosecuted person. As the applicants had never agreed to the termination of the case on this ground the investigation would have to be continued.
On 18 February 1999 the investigator made the applicants sign a written undertaking not to leave the town.
After the completion of the preliminary investigation, on 30 August 1999 the case was remitted to the Monastyrshinskiy District Court of the Smolensk Region for examination on the merits.
Since the applicants refused to attend the preparatory hearing, the Monastyrshinskiy District Court decided on 15 November 1999 to change the above preventive measure to detention on remand.
The second applicant was remanded in custody on 17 November 1999; however, on the same day the District Court ordered his release subject to an undertaking not to leave the town.
On 7 December 1999 the Smolensk Regional Court upheld on appeal the decision of 15 November 1999 in respect of the first applicant.
On 3 March 2000 the first applicant was detained.
On 7 March 2000 the applicants consented to termination of the criminal proceedings against them owing to the expiry of the statutory limitation period for their criminal prosecution.
On the same day the Monastyrshinskiy District Court of the Smolensk Region in compliance with Article 5 § 1 (3) of the Code of Criminal Procedure of the RSFSR discontinued the criminal proceedings against the applicants for being time-barred. The first applicant was released from detention.
On 4 July 2000 the Smolensk Regional Court upheld the above decision on appeal.
The first applicant challenged the lawfulness of the decision of 15 November 1999, as upheld on 7 December 1999, before the Presidium of the Smolensk Regional Court.
On 15 June 2005 the Presidium of the Smolensk Regional Court acknowledged that the decisions in question had been unlawful and accordingly quashed them by way of supervisory review.
Section VI, Chapter 30, of the 1960 Code of Criminal Procedure (Уголовно-процессуальный кодекс РСФСР), as in force at the material time, allowed certain officials to challenge a judgment which had become effective and to have the case reviewed on points of law and procedure. The supervisory review procedure (Articles 371-83 of the Code) is distinct from proceedings in which a case is reviewed in the light of newly established facts (Articles 384-90). However, similar rules apply to both procedures (Article 388).
Under the terms of Article 356 of the Code of Criminal Procedure, a judgment takes effect and is enforceable from the date on which the appeal court renders its decision or, if no appeal has been lodged, once the timelimit for appeal has expired.
“The grounds for quashing or varying a judgment [on supervisory review] are the same as [those for setting aside judgments (which have not taken effect) on appeal] ...”
“The grounds for quashing or varying a judgment on appeal are as follows:
(i) prejudicial or incomplete investigation or pre-trial or court examination;
(ii) inconsistency between the facts of the case and the conclusions reached by the court;
(iii) a grave violation of procedural law;
(iv) misapplication of [substantive] law;
(v) discrepancy between the sentence and the seriousness of the offence or the convicted person’s personality.”
Article 371 of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review could be exercised by the Prosecutor-General, the President of the Supreme Court of the Russian Federation or their respective deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of those officials for a review.
Article 373 of the Code of Criminal Procedure did not set a limitation period for lodging an application for a supervisory review that might be beneficial to a convicted person.
Under Articles 374, 378 and 380 of the Code of Criminal Procedure, a request for supervisory review was to be considered by the judicial board (the Presidium) of the competent court. The court could examine the case on the merits and was not bound by the scope and grounds of the request for supervisory review.
The Presidium could dismiss or grant the request. If it dismissed the request, the earlier judgment remained in force. If it granted the request, the Presidium could decide to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, to order a fresh court examination at any instance, to uphold a first-instance judgment reversed on appeal, or to vary or uphold any of the earlier judgments.
Article 380 §§ 2 and 3 provided that the Presidium could, in the same proceedings, reduce a sentence or amend the legal classification of a conviction or sentence to the defendant’s advantage. If it found a sentence or legal classification to be too lenient, it was obliged to remit the case for a new examination.
Under Article 331 of the Code of Criminal Procedure an appeal against a decision of a first-instance court (including an order authorising or extending pre-trial detention) lay to a higher court. It had to be lodged within ten days and examined within the same time-limit as an appeal against a judgment on the merits.
The State or regional treasury is liable – irrespective of any fault by State officials – for the damage sustained by an individual on account of unlawful criminal prosecution, unlawful application of a preventive measure in the form of placement in custody or an undertaking not to leave the place of residence, or an unlawful administrative penalty in the form of detention or community work (Article 1070 § 1 of the Civil Code).
A court may hold the tortfeasor liable for non-pecuniary damage incurred by an individual through actions impairing his or her personal non-property rights, such as the right to personal integrity and the right to liberty of movement (Articles 150 and 151). Non-pecuniary damage must be compensated for irrespective of the tortfeasor’s fault in the event of unlawful conviction or prosecution, unlawful application of a preventive measure in the form of placement in custody or an undertaking not to leave the place of residence, or an unlawful administrative penalty in the form of detention or community service (Article 1100 § 2).