ITEMID: 001-68509
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF OZUPEK AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 with regard to the lack of independence and impartiality;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
TEXT: 4. The applicants were born in 1973, 1965 and 1960 respectively. The first and second applicants live in Ankara and the third applicant lives in Trabzon.
5. The applicants were employed by the Culture and Education Department of the Sincan District Council in Ankara and were involved in the organisation of public activities and events during religious and national days. Upon the instructions of the mayor and the deputy mayor, the applicants organised on 31 January 1997 a special night called the “Jerusalem Night” during the month of Ramadan. The event was announced months in advance and representatives of the security forces and several important personalities living in the district were invited. The hall was decorated with posters of martyrs who had given their lives for the liberation of Jerusalem. The applicants also organised a five-minute play for the evening. The second applicant cleaned the hall, set up and maintained the sound system and welcomed the guests. The play, which was written by the first and third applicants, took the form of a conversation between a father and his son about life in Palestine and the struggle of the Palestinian people. The first applicant played the role of the father in the play. The mayor of Sincan and the Ambassador to Iran made speeches before the play began.
6. The second and third applicants were taken into police custody on 5 February 1997 and the first applicant on 6 February 1997. They were accused of disseminating propaganda in support of an armed, illegal organisation, namely the Hezbollah. During their police interrogations, the applicants denied the charges against them.
7. On 13 February 1997 the applicants were brought before the public prosecutor. During their questioning, they repeated the statements they had made at the police station.
8. On the same day the applicants were brought before the investigating judge attached to the Ankara State Security Court, where they made similar statements. Subsequently, the investigating judge ordered that the applicants be remanded in custody.
9. In an indictment dated 7 March 1997, the public prosecutor attached to the Ankara State Security Court initiated criminal proceedings against the applicants. It was alleged that they had disseminated propaganda in support of an armed, illegal organisation. The prosecution therefore called for the applicants to be sentenced pursuant to Article 169 of the Criminal Code and Article 5 of the Anti-Terrorism Law.
10. On 15 October 1997 the Ankara State Security Court, which was composed of three judges including a military judge, found that the applicants had aided and abetted a terrorist organisation by engaging in propaganda in support thereof. It found the applicants guilty as charged, sentenced them to three years and nine months’ imprisonment and debarred them from public service for three years.
11. On 21 September 1998 the Court of Cassation upheld the decision of the Ankara State Security Court.
12. A full description of the domestic law may be found in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97851
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF HAKAN DUMAN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1983 and lives in Bursa.
5. The applicant had been previously convicted of burglary on 21 March 2001 and his prison sentence had been commuted to a fine.
6. On 11 January 2002 at approximately 12.40 a.m. the applicant was arrested, together with a friend, and taken into custody on suspicion of having committed several burglaries. The arrest was effected on the basis of incriminating information received regarding the applicant and his friend.
7. Later, at approximately 2.40 a.m., the applicant was examined by a doctor, who noted a 2 x 2 cm graze on his left shoulder and a graze under his right knee.
8. It appears that at some point the applicant and his friend confessed to committing a number of burglaries and, as a result, on 11 and 12 January 2002, were required to participate in a number of reconstructions of events. According to the record drafted by police officers and signed by the applicant, the latter indicated one by one the houses and other premises he had broken into, the times of the incidents, the methods used to enter the buildings and the exact amount of goods which had been stolen from each place.
9. On 11 January 2002 the police heard evidence from the applicant's father. It appears from Mehmet Duman's police statement and the seizure report drafted on that day that the applicant's father helped the police recover two stolen guns, one from his own basement and another near a bus stop, on the basis of information he had received from a certain Mr H.P., who had participated in burglaries with his son.
10. On 12 and 13 January 2002 the police heard evidence from the owner of one of the guns and the person to whom the suspects had sold it.
11. In the meantime, on an unspecified date, the applicant signed a preprinted form explaining the rights of arrested persons, including the right to remain silent and the right to legal assistance.
12. On 13 January 2002 the applicant was questioned by two police officers in respect of five incidents he had confessed to during the reconstruction of events. According to the verbatim records signed by the applicant, he was reminded of his legal rights, including his right to remain silent and his right to legal assistance.
13. On the same day the applicant's friend was also questioned. He admitted committing two offences with the applicant. The statements provided by him regarding these incidents were worded in similar fashion to the applicant's statements.
14. Between 11 January and 14 January 2002, the police heard evidence from the owners of the houses and businesses which had been robbed. It appeared that some of the owners had not made any prior complaints to the police about the burglaries committed in their houses.
15. On 14 January 2002 the police returned a watch found on the applicant's friend to its owner.
16. On 14 January 2002, on the release of the applicant from police custody, the Bursa Forensic Medicine Institute issued a medical report indicating that no signs of beating or violence had been observed on his body and that the applicant did not have any complaints.
17. On the same date the Bursa Magistrates' Court heard evidence from the applicant. According to the minutes of the hearing he was reminded of his legal rights and his statements to the police were read out to him and accepted by him. He further stated that, at that juncture, he did not remember with whom and where he had committed the burglaries. The reports and other documents in the case file were read out to him. The applicant did not contest their veracity.
18. On 21 February 2002 the Bursa public prosecutor filed a bill of indictment against the applicant with the Bursa Criminal Court, accusing him of having committed five burglaries.
19. At the hearing held on 28 February 2002, the applicant retracted his earlier statements, claiming that when he had given evidence to the Bursa Magistrates' Court he had been in custody for more than six days, during which time he had been electrocuted, hosed and beaten with a stick in order to force him to confess to the offences. The applicant claimed that he did not remember how he had been brought before the Bursa Magistrates' Court and that before the judge he had just sat there while the verbatim record was written, which he had not signed. The court heard evidence from the other accused and five complainants, who all stated that the accused had accepted the accusations during the reconstruction of events.
20. In the hearing held on 25 April 2002, the prosecutor submitted his opinion on the merits. The applicant's legal representative submitted that some of the evidence in the case file had been unlawfully obtained.
21. At the hearing held on 2 May 2002, the applicant reiterated that he did not accept the charges against him. When asked about the medical reports, the reports of the reconstruction of events and the arrest and seizure form, the applicant submitted that he had nothing to say.
22. On 9 May 2002 the Bursa Criminal Court, relying on the evidence in the case file and, in particular, on the statements made by the applicant and Mr I.Ö. before the police and the Magistrates' Court, found the applicant guilty as charged and sentenced him in total to nine years, two months and five days' imprisonment.
23. On 27 May 2002 the applicant appealed against the trial court's judgment. In particular, he claimed that there was no evidence to demonstrate his guilt and that his statements to the police had been written in accordance with the complainants' testimonies. The applicant submitted that he had not been reminded of his legal rights under Article 135 of the Code of Criminal Procedure and that his statements before both the police and the Magistrates' Court had not been given of his own free will. In part of his appeal petition the applicant submitted that he had not been in a fit condition to give a statement before the Magistrates' Court since he had been exhausted from the torture, coercion and duress he had been subjected to in police custody.
24. On 26 September 2002 the Court of Cassation, relying on Article 318 of the Code of Criminal Procedure, dismissed the applicant's request for an oral hearing and upheld the judgment of the first-instance court. The opinion of the principal public prosecutor submitted to this court was not communicated to the applicant.
25. On 16 December 2002 the decision of the Court of Cassation was returned to the registry of the Bursa Criminal Court.
26. A request by the applicant dated 26 December 2002 for a rectification of the Court of Cassation's judgment was dismissed by the principal public prosecutor at the Court of Cassation on 19 February 2003.
27. On 17 December 2004 the Bursa Criminal Court, taking into account the relevant provisions of the new Criminal Code (Law no. 5237), ordered the applicant's release from prison. By an additional judgment dated 29 June 2005 the first-instance court adjusted the applicant's sentence in accordance with the provisions of the new Criminal Code (Law no. 5237).
28. The relevant domestic law and practice in force at the material time as well as recent developments can be found in the following judgments: Kolu v. Turkey (no. 35811/97, §§ 42 and 44, 2 August 2005), Göç v. Turkey judgment ([GC], no. 36590/97, § 34, ECHR 2002-V), and Demirci v. Turkey (no. 21843/02, § 14, 3 June 2008).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79318
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF DEYKINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6 and P1-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1957 and lives in Voronezh.
5. She brought civil proceedings against her local authority requesting arrears of child benefits due to her.
6. On 25 August 2000 the Levoberezhny District Court of Voronezh granted her claims and awarded her the arrears in the amount of roubles 4,287.36 (RUR). The judgment was not appealed against and became final on 4 September 2000.
7. On 28 November 2000 a writ of execution was issued.
8. As the judgment remained unexecuted, on an unspecified date the applicant forwarded the writ to the debtor's bank and requested it to debit the sum due from the debtor's account, but the bank refused.
9. She then brought proceedings against the bank claiming damages for its refusal to enforce the judgment of 25 August 2000.
10. On 17 April 2003 the Justice of the Peace of the Second Circuit of the Central District of Voronezh dismissed the applicant's claims on the ground that the bank had not been at fault in refusing to enforce the judgment of 25 August 2000. On appeal, the judgment was upheld by the Central District Court of Voronezh on 10 November 2003.
11. On 30 December 2004 the applicant received RUR 1,402.56 in execution of the judgment of the Levoberezhny District Court of Voronezh of 25 August 2000.
12. On 26 January 2005 the applicant received RUR 818,16, and on 14 December 2005 the outstanding balance of RUR 2,066.64 thus completing full execution of the judgment.
VIOLATED_ARTICLES: 6


ITEMID: 001-57860
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF STAMOULAKATOS v. GREECE (No. 1)
IMPORTANCE: 3
CONCLUSION: Preliminary objection allowed (ratione temporis);Preliminary objection allowed (non-exhaustion of domestic remedies)
JUDGES: C. Russo;N. Valticos;B. Walsh
TEXT: 6. Mr Nicolas Stamoulakatos, a Greek national, is a retired journalist. He currently lives in London.
Before the material time, he had been convicted by the Salonika Criminal Court of forgery, uttering and fraud, in 1974, and by the Agrinion Criminal Court for insulting the authorities, in 1979. Furthermore, in 1978 and 1979 eight separate sets of proceedings were brought against him in the Athens Criminal Court for insulting a public officer, fraud, defamation, misappropriation, forgery, uttering and causing bodily harm. All these proceedings took place in the applicant’s absence; three sets of them are in issue before the Court.
7. On 5 April 1979 in a telegram sent to several public figures, including the Greek President and various ministers, and to the press, the applicant described certain members of the public prosecutor’s office and the Indictment Division of the Court of Cassation as "collaborators of the colonels’ regime", "chief torturers", "admirers of Adolf Hitler", "perjurers", "agents of death", "fabricators of incriminating evidence against democrats", "justicemongers" and "trainers of fascists". The telegram, which was signed by Mr Stamoulakatos, also gave his professional address at 59 Panepistimiou Street, Athens.
8. An investigating judge at the Athens Criminal Court summoned Mr Stamoulakatos for questioning in connection with an investigation he had started in respect of him. The court bailiff took the summons to 59 Panepistimiou Street and as he did not find the applicant there, gave it to Mr Masson, a lawyer who had his office at the same address. The applicant confirmed by telegram that he had been informed of the summons, but he failed to appear.
9. On 15 May 1979 a police officer served on him a summons to appear before the Criminal Court to answer a charge of insulting a public officer. Since he was unable to serve it on the applicant in person, he gave the document to Mr Vassilakis, one of Mr Stamoulakatos’s colleagues (pursuant to Article 155 of the Code of Criminal Procedure); the applicant did not appear at the hearing on 25 May 1979.
10. After ruling that the defendant had been properly summoned, the Criminal Court decided to hear the case and to give judgment "as if [the defendant] were present" (under Article 340 para. 3 of the Code of Criminal Procedure). After two prosecution witnesses and the prosecutor had been heard, Mr Stamoulakatos was convicted and sentenced to two years’ imprisonment. The judgment (no. 16438/1979) was filed at Athens Town Hall on 12 November 1979, as the authorities regarded the applicant as having no known address (Article 156 para. 2 of the Code of Criminal Procedure).
11. On 28 August 1979 an investigating judge at the Athens Criminal Court decided to interview the applicant about a complaint lodged by a Mrs Kritikou. The summons was taken to 59 Panepistimiou Street and again given to Mr Masson; Mr Stamoulakatos failed to appear.
12. On 12 September 1979 Mrs Papargyriou, an employee of the applicant’s, informed the investigating judge that Mr Stamoulakatos had been in New York since 10 May 1979 and gave him his address.
On 15 February 1980 the public prosecutor’s office served a summons to appear before the Criminal Court at the applicant’s professional address in Athens; it was handed over to Mrs Papargyriou (pursuant to Article 155 previously cited).
13. On 3 March 1980 the Criminal Court decided (under Article 340 para. 3 previously cited) to proceed with the trial notwithstanding the absence of the defendant, who had, it ruled, been properly summoned. It imposed a sentence of eight months’ imprisonment, which it converted into a fine. The judgment (no. 8439/1980) was lodged on 19 September 1980 at Athens Town Hall on the ground that neither the prosecuting authority nor the authority responsible for effecting service knew Mr Stamoulakatos’s address.
14. Mrs Kritikou having made a second complaint, the applicant was charged with forgery and uttering in that he had altered the wording of a cheque he had received from her and had attempted to cash it.
On 13 October 1980 a police officer delivered the summons to appear before the Criminal Court to 59 Panepistimiou Street. When he found that the applicant was "unknown" at that address, had not communicated any other to the public prosecutor’s office and had no relatives on whom service could be effected, he lodged the summons at Athens Town Hall (pursuant to Article 156 para. 2 previously cited).
15. The Criminal Court proceeded despite Mr Stamoulakatos’s absence, and on 11 December 1980 he was convicted and given an immediate custodial sentence of two years. The judgment (no. 42211/1980) was delivered to Athens Town Hall (pursuant to Article 156 para. 2 previously cited).
16. Mr Stamoulakatos states that he left Greece in May 1979 but he does not give the exact date of his departure. He went to New York and then London, where he worked until 1985 as a journalist. Following two convictions by Acton Crown Court, he went to Cyprus and then to Belgium, where he was arrested on 19 September 1985 and extradited to Greece on 23 December. He was imprisoned at Ioannina and later at Piraeus and was conditionally released on 7 April 1987.
While he was serving his sentence, he appealed against the three judgments of the Athens Criminal Court (see paragraphs 10, 13 and 15 above). He complained that he had not been duly summoned and that he had therefore been unable to defend himself against the charges against him; he also complained that service of the judgments had been irregular.
17. On 21 July 1986 Mr Stamoulakatos appealed to the Athens Court of Appeal against judgment no. 16438/1979 (see paragraph 10 above).
18. In a judgment of 29 October 1986 the Court of Appeal declared the appeal inadmissible for the following reasons:
"...
The judgment was served on him on 12 November 1979, as appears from the record of service made by the bailiff T. Vassilas. He appealed on 21 July 1986, after the statutory time-limit, without indicating in his pleadings any valid reason for appealing out of time;
The evidence discloses no circumstance that would justify a late appeal, and the court is not convinced that the defendant was prevented by force majeure from lodging an appeal in time. The appeal must consequently be declared inadmissible since, irrespective of the fact that the defendant has not stated what his known address was at the time of service or why he did not appeal in time, it has not been proved at all that the impugned service was void. It has been established, on the contrary, that it was lawful, as the prosecuting authorities did not know where the defendant lived. The allegation of forgery in respect of the record of service is wholly unfounded and ... an investigation of the point would clearly be devoid of purpose since, at all events, the defendant was aware of his conviction from the end of 1985, when he was extradited to Greece.
..."
19. The applicant lodged an appeal on points of law, which the Court of Cassation dismissed on 13 February 1987, holding that the Court of Appeal had provided sufficient reasons for its decision.
20. On 2 January 1990 Mr Stamoulakatos made an application for a retrial (aitissi epanalipseos tis diadikassias) under Article 525 of the Code of Criminal Procedure to the Indictment Division of the Athens Court of Appeal. He relied on Article 4 para. 2 of Protocol No. 7 (P7-4-2) to the Convention and asked for judgment no. 16438/1979 (see paragraph 10 above) to be set aside.
The Indictment Division dismissed the application on 14 February 1991. It noted that the impugned summons had been taken to Mr Stamoulakatos’s professional address, which was known to the authorities at the time, and handed to one of his colleagues. The trial in absentia which followed was therefore in no way contrary to Article 6 (art. 6) of the European Convention or to the European Court’s judgment of 12 February 1985 in the Colozza v. Italy case (Series A no. 89).
The applicant appealed on points of law against that decision on 14 May 1991, but the Court of Cassation dismissed the appeal on 23 December 1991 for failure to comply with the 30-day time-limit laid down in Article 473 para. 1 of the Code of Criminal Procedure.
21. On 16 July 1986 the Athens Court of Appeal declared an appeal by the applicant against judgment no. 8439/1980 (see paragraph 13 above) inadmissible. It said, inter alia:
"...
No evidence has been adduced that justifies appealing out of time and the Court is not persuaded that the defendant was prevented by force majeure from appealing before the statutory time-limit. More particularly, he alleged that on 19 September 1980 his address was not unknown and that service of the judgment appealed against, effected according to the rules applicable to persons whose address is unknown, was not valid; in the alternative, he submitted that it was not valid because it was lodged at Athens Town Hall and not at the town hall of Paleo Faliro. As to this contention, the court notes the following: from the record of service of 19 September 1980 it appears that the officer responsible for service went to the defendant’s last known address, namely 59 Panepistimiou Street, Athens, and that finding neither the defendant nor his wife nor any of his relatives, he lodged the document to be served with the mayor of Athens, who displayed it on the very same day in the appropriate place ... . It should be emphasised that the fact that the defendant formerly lived at 59 Panepistimiou Street ... had been certified at the investigation stage and that this was why - as was disclosed in the record of service of the summons of 28 August 1979 to appear before the investigating judge - service was effected at that address and on the person who shared that address with the defendant. It should furthermore be noted that the offices of the newspaper International Free Observer were at that address, its headquarters - according to its issue of 16 September 1980 - being in New York, where the defendant was its correspondent ... . On 17 June 1980 [the defendant], in a complaint to the Athens public prosecutor’s office, confirmed that he lived in New York (without giving any address) and that he was temporarily living in London, at 29 Summer Place, London SW7, England. Two days before the impugned service ..., i.e. on 17 September 1980, the European Commission of Human Rights had drawn up a document giving the defendant’s address (evidently supplied by him) as 41 Old Brompton Road, GB - London SW7. No other evidence was adduced concerning the defendant’s permanent or temporary address ... during the period from 3 March 1980 ... to 19 September 1980. Evidence was, on the other hand, brought from the period after [this latter date] (such as the documents from the Consulate-General of Greece in London ..., which give the defendant’s address as 10 Townsend Way, Northwood, Middlesex HA 1TF, London, and an envelope from the European Commission of Human Rights date-stamped 7 March 1986 and addressed to the applicant at 1-2, Poseidonos Avenue, Paleo Faliro); however, since this evidence refers to a period well after 19 September 1980, it does not suffice to establish that the defendant had a known address, in particular one known to the authorities responsible for service and for the prosecution. All the aforementioned evidence shows ... that on 19 September 1980 the defendant’s address really was unknown: he had left 59 Panepistimiou Street in Athens, his known address until then, and was travelling between his (unknown) address in New York and his temporary addresses in London, the nearest of which in time to 19 September 1980 - 41 Old Brompton Road, GB - London SW7 - was known neither to the Greek prosecuting authority nor to the authority responsible for service.
The defendant’s submission must therefore be rejected as being ill-founded.
Since nothing proves that the appeal was brought out of time owing to force majeure (which the notice of appeal does not even claim) ..., the appeal must be declared inadmissible.
..."
22. Mr Stamoulakatos brought an appeal on points of law, which the Court of Cassation dismissed on 4 November 1986. Having been summoned to appear while he was serving his sentence, he did not attend.
23. On 2 January 1990 he made an application for a retrial to the Indictment Division of the Athens Court of Appeal. He relied on Article 4 para. 2 of Protocol No. 7 (P7-4-2) to the Convention and asked for judgment no. 8439/1980 (see paragraph 13 above) to be set aside.
On 14 February 1991 the Indictment Division dismissed the application on the ground that the file disclosed no procedural defect and that the trial in absentia had not in any way been contrary to Article 6 (art. 6) of the Convention or to the Colozza judgment. It noted that the summons to appear before the Criminal Court, which had been delivered to the address at which the applicant submitted that it should have been served on him at the time, had been given to Mrs Papargyriou pursuant to Article 155 para. 1 of the Code of Criminal Procedure. Furthermore, Greek national law did not oblige the court to assign counsel officially to defend a person accused of a criminal offence. Lastly, Mr Stamoulakatos had not pleaded any impediment such as would have justified adjourning the hearing (Article 349 of the Code of Criminal Procedure).
On 14 May 1991 the applicant appealed on points of law against that judgment, but on 23 December 1991 the Court of Cassation dismissed the appeal for failure to comply with the 30-day time-limit laid down in Article 473 para. 1 of the Code of Criminal Procedure.
24. On 24 December 1985 the applicant lodged an appeal against judgment no. 42211/1980 (see paragraph 15 above) and made an application (under Article 430 of the Code of Criminal Procedure) to have the judgment set aside. He withdrew the appeal on 27 January 1986. On 19 March 1986 the Athens Criminal Court ruled that the application was admissible but dismissed it as the applicant had not adduced any evidence to prove that he had a known address at the material time.
25. On 3 June 1987 the Court of Cassation held that an appeal on points of law brought by the applicant was barred by Article 431 para. 3 of the Code of Criminal Procedure.
26. On 18 December 1989 Mr Stamoulakatos applied to the Indictment Division of the Athens Court of Appeal for a retrial in respect of judgment no. 42211/1980.
On 14 February 1991, after considering the file forwarded by the Criminal Court, the Indictment Division noted that the applicant had properly been summoned as a person whose address was unknown; that it had proved impossible to reach him at the address at which, by his own account, he was to be found; that he had not notified the authorities of any change of address and the file did not disclose the existence of any relatives who could accept service; and that after leaving his known address, he travelled from place to place, which made it impossible to pinpoint his whereabouts. Accordingly, the proceedings ending in his conviction were not in any way defective and the trial in absentia was contrary neither to Article 6 (art. 6) of the Convention nor to the Colozza judgment. As to the new facts relied on by Mr Stamoulakatos in support of his application for a retrial, the Indictment Division concluded that, far from undermining the lower court’s judgment, they confirmed its soundness.
On 14 May 1991 Mr Stamoulakatos appealed on points of law against that judgment, but the appeal was dismissed by the Court of Cassation on 23 December 1991 for failure to comply with the 30-day time-limit laid down in Article 473 para. 1 of the Code of Criminal Procedure.


ITEMID: 001-80947
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ZAGORODNIKOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (public hearing);No Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1967 and lives in Moscow. He was an investor in Russian Credit, a private bank which is now insolvent.
7. In 1998 and 1999 the applicant won two legal actions against the bank. Unable to recover his investment despite the judgments in his favour, the applicant instituted numerous sets of proceedings against the bank and various authorities involved in its insolvency.
8. In April 2000 188,900 of the bank's creditors joined together to form a union, obtained a settlement with the bank and asked the Commercial Court of Moscow to ratify it. 221 creditors disagreed with the settlement. Some of them, including the applicant, lodged their written objections with the court.
9. The Commercial Court of Moscow heard the case in four hearings which took place on 10, 11, 14, and 15 August 2000. The court gave notice of the hearings to the 221 creditors who had objected to the settlement, representatives of the creditors' union and representatives of the bank. Since the applicant received the notice only on 14 August 2000, he was able to participate in the last hearing only. According to the applicant, on 15 August 2000 the judge refused to hear his pleadings on the ground that they were essentially the same as those of the other creditors.
10. Access to the court building was restricted throughout the proceedings. On 10 August 2000 a policeman standing at the entrance turned away twenty to twenty-five people who wished to enter the courtroom but who did not have a notice to appear or an identity card. On each of the following days about three to five people wishing to attend the hearings were refused access to the court building. At each hearing a number of seats in the courtroom remained free.
11. On 15 August 2000 the Commercial Court of Moscow ratiﬁed the settlement. The applicant appealed.
12. On 9 October 2000 the Appeals Division of the Commercial Court of Moscow upheld the settlement. The applicant participated in the hearing, pleaded his case and submitted written arguments. Disagreeing with the judgment, the applicant appealed on points of law.
13. On 1 December 2000 the Federal Commercial Court of the Moscow Circuit dismissed the appeal on points of law. The applicant participated in the hearing, pleaded his case and submitted written arguments.
14. Public access to the appeal hearings was also restricted. Both appeal courts ignored the applicant's complaint that the first-instance hearings had not been public.
15. The commercial courts ratified the settlement in accordance with the Code of Commercial Procedure of the Russian Federation (Law no. 70-FZ of 5 May 1995, in force at the material time). Article 9 of the Code required proceedings to be public:
“Proceedings in commercial courts shall be public. A hearing in camera shall be possible if [the case concerns] State, commercial, and other secrets...”
16. Article 115 of the Code required the commercial court to verify at the beginning of the proceedings whether the notice to appear had been properly dispatched to the absentee parties:
“The presiding judge ... shall verify the presence of the parties and other participants at the hearing ... [and shall find out] whether persons who do not appear have been properly notified and if there is information available concerning the reasons for their failure to appear.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5887
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: CLARK AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Susan Clark, Fred Clark, Claudine Clark, Yvonne Clark, Irene Clark and Clara Cartwright, are United Kingdom nationals, living in Braintree, Essex. They are represented by Mr T. Christie, President of the National Romani Rights Association. The respondent Government are represented by Mr H. Llewellyn of the Foreign and Commonwealth Office.
Until July 1993 the six applicants and their families were living in caravans on a privately owned site at Cressing. On an unspecified date the Braintree District Council informed the owner that there were too many caravans on the site. As a result the applicants had to move.
On an unspecified date the applicants, or some of them, purchased a small plot of land, a few miles away from the site at Cressing, and stationed their caravans there. The applicants then sought retrospectively planning permission for the site’s change of use to a residential caravan site for seven families. This was refused by the Braintree District Council on 12 April 1994. On 28 June 1994 the applicants were served with two enforcement notices which required them inter alia to demolish all unauthorised structures such as fences, sheds and street-lighting appliances and to cease using the site for the siting of their caravans.
The applicants appealed to the Secretary of State for the Environment. An Inspector appointed by him held a public inquiry on 7 December 1994 and visited the site. On 10 January 1995 the Inspector dismissed the appeal.
The Inspector considered that the principal issues were: (i) the resulting impact on the appearance and character of the local countryside; (ii) the resulting impact on road safety; and iii) the degree of need for the accommodation.
The Inspector noted that one of the applicable policies was to protect the countryside from developments unless related to agriculture, mineral extraction, forestry or outdoor recreational uses or other uses compatible with the rural areas. Another policy, contained mainly in Circular 1/94 and earlier relevant circulars intended to ensure that the planning system recognised the need for accommodation consistent with gypsies’ nomadic lifestyle, but also reflected the importance of a plan-led system in relation to site provision.
The Inspector further found that the area where the applicants’ caravans were located was not covered by any specific protective planning designation. However, the landscape was predominantly arable and the development sought would detract from the area’s open rural character. To reach this finding the Inspector took into account that the site was exposed to wide public view; that the development included fences, telephone poles and lighting columns which together with the caravans inherently looked out of place; that permission was sought for a permanent and not temporary development and for seven pitches, whereas the normal policy was to limit them to three.
The Inspector further concluded that “the impact on road safety [was] one of the principal issues” in the appeal. The site was accessible through an unmade green lane, branching off a primary route with heavy traffic where the speed limit was 60 miles per hour and was often exceeded. The road had seen serious and fatal accidents. The use of the access to the site by the occupants of seven dwellings would appreciably increase the likelihood of accidents.
The Inspector also considered the applicants’ need for a caravan site. He noted that the available bi-annual counts showed that there had been a continuing, albeit decreasing, unmet need for authorised accommodation within the District of Braintree. He accepted that the applicants were in need of accommodation when they lost their pitches at the site at Cressing. He considered that these facts were powerful considerations in support of the development sought, but that on balance the benefits were outweighed by the indefinite harmful effects resulting from the choice of the particular site.
On 3 July 1995, the applicants again applied to the Braintree District Council for a planning permission for the site. The application was dismissed on 29 August 1995. The applicants’ appeal was dealt with by written representations and the Inspector dismissed it by letter dated 14 May 1996. In his decision, he considered whether certain changes proposed to the site would overcome the objections. He found however that the fence remained a prominent intrusive feature in the open rural area, with the tops of the caravans rising above it and that screening could only be achieved by planting after some considerable period during which the site would continue to damage the rural landscape. He also noted that the road was heavily used by fast-moving traffic and considered that movement of vehicles in and out of the site would add to the dangers of the type already a feature of this section of the road. He concluded, having carefully considered the applicants’ representations about their links with the area and their children’s schooling that this relatively large scheme twice the size of those normally considered appropriate in the local plan was still harmful to the character and appearance of the area and prejudicial to highway safety.
On 28 March 1996, six of the applicants were convicted by the Braintree Magistrates’ Court for, inter alia, failure to comply with the enforcement notices and were ordered to pay fines between 100 and 200 pounds sterling (GBP), plus costs. The Chairman noted that a wilful refusal to comply with an enforcement notice was a serious offence. Taking into account however the applicants’ previous good character and expressing sympathy for the applicants’ situation, he hoped that the planning authorities would find a way round their difficulties but stated that for a satisfactory outcome of the planning problem the applicants’ cooperation was necessary.
The representative of the applicants and the Braintree District Council exchanged correspondence and had meetings for the purpose of exploring the possibilities for the applicants’ moving to other sites. The applicants were urged to identify two other sites, each for three pitches, and to apply for planning permission. Also, since finding sites was difficult, the applicants were urged to be prepared to apply and accept whatever vacancies for caravan pitches would arise. The applicants objected stating that buying a plot and applying for planning permission without a guarantee that such permission would be granted would involve serious costs. They suggested that compliance with the enforcement notice should not be required or should be delayed. By letter of 13 September 1996 the Council indicated that ownership of a site was not a pre-requisite for applying for planning permission. Also, in the Council’s view the applicants had made no serious effort to find other suitable sites. The letter also addressed the applicants’ argument that the caravan policies were discriminatory. It stated that insofar as there were provisions applicable specifically to gypsy caravans, these discriminated in their favour, by providing for exceptions to the normal restrictive planning policies.
On 24 March 1997, the applicants were fined GBP 100 and GBP 75 costs for failure to comply with the enforcement notices.
The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601).
An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act).
The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State’s decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288).
If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act).
There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector.
Again there is a further right of appeal on a point of law to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector’s decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority.
Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act).
New guidance on gypsy sites and planning, in the light of the 1994 Act, was issued to local authorities by the Government in Circular 1/94 (5 January 1994).
Councils were told that:
“In order to encourage private site provision, local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development. ... The aim should be as far as possible to help gypsies to help themselves, to allow them to secure the kind of sites they require and thus help avoid breaches of planning control.” (paragraph 20)
However:
“As with other planning applications, proposals for gypsy sites should continue to be determined solely in relation to land-use factors. Whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental, and Green Belt policies. ...” (paragraph 22).
It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted, for example Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest. Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt (paragraph 13).
Further guidance issued by the Secretary of State dated 23 November 1994 concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments:
“6. ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies’ presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g. toilets, a skip for refuse and a supply of drinking water. ...
8. Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance.
9. The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.”
Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act. These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. In a judgment of 22 September 1995 (R. v. Lincolnshire County Council, ex parte Atkinson, R. v. Wealden District Council, ex parte Wales and R. v. Wealden District Council, ex parte Stratford, unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages.


ITEMID: 001-110861
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: LEŽAJA v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 1. The applicant, Ms Jozefina Ležaja, is an Croatian national, who was born in 1937 and lives in Semeljci. She is represented before the Court by Ms J. Novak, a lawyer practising in Zagreb.
2. The Croatian Government (“the Government”) are represented by their Agent, Ms Š. Stažnik.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. During the night of 16-17 September 1992 the applicant’s summer house in Zadar was blown up by an unknown perpetrator.
5. On 3 February 1996 the Amendment to the Obligations Act (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996 of 26 January 1996 - “the 1996 Amendment”) entered into force. It repealed section 180 of the Obligations Act - which provided that the State was liable for damage resulting from “acts of violence or terrorist acts” - and stayed all proceedings instituted on the basis of that provision, pending enactment of new legislation.
6. On 14 March 2001 the applicant and her husband brought a civil action against the State in the Zadar Municipal Court (Općinski sud u Zadru) seeking 742,000 Croatian kunas (HRK) as compensation for pecuniary damage sustained as a result of the destruction of their house, with the accrued statutory default interest.
7. On 5 November 2001 the Municipal Court gave judgment dismissing the claim of the applicant and her husband and ordered them to reimburse the State the costs of the proceedings in the amount of HRK 7,720. It held that after section 180 of the Obligations Act had been repealed there was no longer a legal basis for the State to be held liable for damage resulting from terrorist acts.
8. The applicant submits that she paid the costs of the proceedings to the State, as ordered by the Municipal Court. The Government submitted that the applicant had never paid the costs at issue.
9. On 3 December 2001 the applicant and her husband appealed to the Zadar County Court (Županijski sud u Zadru) against that judgment, arguing that the Municipal Court had wrongly applied the relevant substantive law and erred in their assessment of the facts of the case. They did not forward any arguments as to the costs of the proceedings.
10. In 2003 the applicant’s husband died.
11. On 31 July 2003 the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003) of 23 July 2003 – “the Liability Act 2003”) entered into force. It provided that the State was liable in tort for damage caused by death, bodily injury or impairment of health resulting from terrorist acts, whilst damage to property was to be compensated through reconstruction assistance, obtainable before the competent administrative authorities, under the Reconstruction Act. The Act also provided that all proceedings stayed on the basis of the 1996 Amendment were to be resumed in accordance with its provisions.
12. On 9 June 2005 the Zadar County Court dismissed the appeal by the applicant and her husband and upheld the first-instance judgment.
13. On 29 July 2005 the applicant lodged an appeal on points of law with the Supreme Court. She argued that the lower courts had erred in the application of both procedural and substantive law when they had dismissed her compensation claim. She did not forward any arguments concerning the costs of the proceedings.
14. On 24 January 2006 the Supreme Court dismissed the appeal.
15. On 2 July 2007 the applicant lodged a constitutional complaint against the Supreme Court’s judgment, alleging, inter alia, violations of her constitutional rights to equality, equality before the law and ownership. Again, she did not forward any arguments concerning the cost of the proceedings.
16. On 24 June 2008 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 17 July 2008.


ITEMID: 001-92429
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF RASMUSSEN v. POLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 6-3-b;No violation of P1-1;Non-pecuniary damage - finding of violation sufficient
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nicolas Bratza;Roman Wieruszewski
TEXT: 6. The applicant was born in 1948 and lives in Szczecin.
7. The applicant had been a judge for twentyseven years. By virtue of an amendment to the law on the System of Common Courts 1985, which came into effect on 17 October 1997, the status of a “retired judge” was created (see paragraph 24 below).
On 4 December 1997 the applicant who had retired on 8 July 1997 on grounds of ill health acquired the status of a “retired judge”. Under the applicable provisions of domestic law retired judges were entitled, as from 1 January 1998, to a special retirement pension equivalent to seventyfive per cent of their last full salary (sędziowski stan spoczynku) every month.
8. On 3 August 1997 the Lustration Act entered into force. By a further amendment to the 1985 Law of 17 December 1997, which came into effect on 15 August 1998, retired judges who had acquired the right to a special retirement pension were required to submit a declaration under that Act. In September 1998 the applicant made a declaration under the provisions of that Act to the effect that she had never secretly collaborated with the communist secret services.
9. Subsequently, on an unspecified date, the Commissioner of Public Interest applied to the Warsaw Court of Appeal, acting as the firstinstance lustration court, to institute proceedings in the applicant’s case under the Lustration Act on the ground that she had lied in her lustration declaration by denying that she had collaborated with the secret services. He referred to documents showing that in 1986 the applicant had agreed to collaborate and from 1986 until 1988 had submitted fifteen written reports.
10. During the proceedings the applicant was represented by a lawyer. The case file could be consulted by the applicant and her lawyer in the secret registry of the lustration court. They were authorised to make notes. However, the notes could be made only in special notebooks which were subsequently sealed and deposited in the registry. It was possible for them to make notes, but not to take the notes from the registry.
11. On an unspecified date the Warsaw Court of Appeal, acting as the firstinstance court, held a hearing in the applicant’s case. The hearing was not public. She was questioned by the court and commented on the evidence at the court’s disposal. The case file was composed of the applicant’s lustration declaration, copies of certain documents contained in the applicant’s file compiled by the communist secret police and the Commissioner’s application for lustration proceedings to be instituted.
12. On 7 April 2004 the court gave a judgment in which it found that the applicant had made an untrue lustration declaration because she had been a willing secret collaborator of the communist secret services. It observed that the documents in the case file were incomplete, but that they were nevertheless sufficient to find that the applicant had been a secret collaborator. The applicant appealed.
13. On 4 November 2004 the same court, acting as a court of appeal, upheld the contested judgment, holding that the evidence in the case file was sufficient to find that the applicant had knowingly and intentionally collaborated with the communist secret services. The applicant submitted a cassation appeal to the Supreme Court, which dismissed it by a judgment of 7 April 2005.
14. From January 1998 to May 2005 the applicant received 4,614 Polish zlotys (PLN) per month (PLN 3,738 after tax) as the special retirement pension.
15. Subsequently, on 19 May 2005, the National Judicial Council, acting upon a request submitted by the Minister of Justice, instituted proceedings to divest her of her status as a retired judge. It also decided that payment of the special retirement pension to the applicant should cease with effect from 19 May 2005.
16. In her pleadings submitted to the Council the applicant argued that a decision to divest her of her special pension was unlawful as the requirements of the Lustration Act did not apply to retired judges. Even supposing that retired judges were obliged to make a lustration declaration, they could not be divested of their status under the provisions of this Act. In any event, such a decision could only be given after disciplinary proceedings had been conducted under the provisions of the Act on General Courts, but no such proceedings had been conducted in her case. She requested that payment of her special pension be resumed.
17. On 20 July 2005 the National Judicial Council adopted a resolution by which the applicant was divested of the special pension to which she was entitled on account of her status as a retired judge. The applicant appealed, essentially reiterating the arguments which she had raised in her pleadings submitted to the Council.
18. On 7 December 2005 the Supreme Court dismissed her appeal against this resolution.
19. In August 2005 the applicant requested the social insurance authority to grant her an ordinary retirement pension. Her request was refused by a decision of 28 November 2005 on the ground that the applicant had not been working for the statutory period of thirty years necessary for an entitlement to a retirement pension to accrue.
20. Later on, in April 2006, she was granted a partial disability pension (renta z tytułu częściowej niezdolności do pracy) from 1 August 2005, the first day of the month when she had lodged a request for an ordinary social insurance pension, to 31 October 2008, when the applicant was to reach the statutory retirement age, in a monthly amount of PLN 1,351 (PLN 1,124 after tax).
21. As from 1 March 2008 the applicant’s pension was reassessed against inflation. From then on she was paid PLN 1,438 per month (PLN 1,196 after tax).
22. As from 1 October 2008 the applicant has received her monthly retirement pension in the amount of PLN 2,062 (PLN 1,693 after tax).
23. On 3 August 1997 the Lustration Act (Ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne) entered into force. Its purpose was to ensure transparency as regards those people exercising public functions who had been secret collaborators with the secret service during the communist era. It lost its binding force on 15 March 2007. The relevant domestic law and practice have been extensively summarised in the following judgments: Matyjek v. Poland, no. 38184/03, §§ 27-38, 24 April 2007 ; Bobek v. Poland, no. 68761/01, §§ 1843, 17 July 2007; and Luboch v. Poland, no. 37469/05, §§ 28-39, 15 January 2008).
24. On 17 October 1997 amendments of 28 August 1997 to the Law on the System of Common Courts 1985 (“the 1985 Law”) entered into force (“the October amendments”). The amendments introduced the status of a “retired judge”. By a further amendment which entered into force on 1 January 1998 it was provided that a judge, with the status of a retired judge, who had retired on grounds, inter alia, of age or illhealth should be entitled to remuneration equal to seventy-five per cent of his or her basic salary plus a bonus calculated on the basis of the years of service.
25. On 15 August 1998 further amendments of 17 December 1997 to the 1985 Law came into effect (“the December amendments”). The amendments provided, so far as relevant:
“Article 78 .... § 1. A retired judge shall be obliged to keep the dignity of the position of a judge.
§ 2. A retired judge shall take disciplinary responsibility for a failure to maintain the dignity of the position of judge after having retired and for any failures to maintain such dignity when serving as a judge.”
26. The December amendments further provided, inter alia, as follows:
“Article 7 § 6. Judges ... who have acquired the right to the retirement pension or disability pension shall submit the declaration envisaged under section 18 of [the Lustration Act 1997].
Article 8 § 1. Retired judges ... who worked for or served in the [State’s security services] or who have submitted untrue declarations concerning such service or employment or collaboration with [such services] shall lose the right to retired judge status and to remuneration in the retired status.
§ 3. The circumstances referred to in § 1 shall be ascertained according to the procedure laid down in [the Lustration Act 1997]. The loss of the rights shall occur from the date of issue of the decision.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b


ITEMID: 001-98024
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SMITH v. GERMANY
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 5. The applicant was born in 1950 and lives in Groningen.
6. On 27 July 2001 the Ahrensburg District Court (Amtsgericht) issued a warrant for the applicant's arrest.
7. On 30 January 2002 the applicant was arrested in Germany and remanded in custody at Oldenburg Prison.
8. On 22 May 2002 the Lübeck Public Prosecutor issued an indictment against the applicant on several counts of trafficking and importing narcotic substances (cannabis and marihuana).
9. On 20 June 2002 the Lübeck Regional Court (Landgericht) opened the applicant's trial.
10. On 22 July 2002 the Schleswig-Holstein Court of Appeal quashed the arrest warrant for failure to comply with the obligation to expedite criminal proceedings where an applicant is in detention pending trial. Following his release from detention, the applicant returned to the Netherlands.
11. Following negotiations with the applicant's legal representatives, the Lübeck Public Prosecutor gave the applicant an assurance that the prosecution service would institute proceedings under Article 11 of the Convention on the Transfer of Sentenced Persons (European Treaty Series no. 112, “the Transfer Convention”) if the applicant returned to Germany for his trial and confessed to the alleged crimes.
12. During the oral hearing before the Lübeck Regional Court, which took place on 16 September 2002, the applicant, who had voluntarily returned from the Netherlands, gave a full confession. The Public Prosecutor gave the following statement, as recorded in the transcript of the hearing:
“In this case the current view is that there are no objections to the transfer of the defendant to the Netherlands under the Transfer Convention of 21 March 1983 or against the application of Article 11 of the Transfer Convention.”
13. Following the hearing, the Lübeck Regional Court, on the basis of the applicant's confession, convicted him on twenty-six counts of unlawful importing and unlawful trafficking of narcotic substances, and sentenced him to three and a half years' imprisonment.
14. The court accepted as mitigating factors the applicant's confession and the fact that he had voluntarily returned from the Netherlands in order to stand trial. It considered that the oral hearing could probably not have taken place without his cooperation. The applicant having waived his right to appeal, the judgment became final on 16 September 2002.
15. Following the hearing, the applicant returned to the Netherlands.
16. On 17 September 2002 the applicant applied to the Schleswig-Holstein Ministry of Justice for the institution of transfer proceedings under Article 11 of the Transfer Convention. In his pleadings, the applicant's counsel relied upon the agreement between the defence, the criminal chamber of the Lübeck Regional Court, and the Public Prosecutor's Office at the Lübeck Regional Court.
17. On 7 October 2002 the Ministry of Justice forwarded the application to the Head of the Chief Public Prosecutors (Leitender Oberstaatsanwalt) in Lübeck with a request for him to submit a report.
18. On 22 November 2002 the Head of the Chief Public Prosecutors stated that, as a general rule, execution of sentence in the home country was not an option in such serious cases of drug trafficking. However, the special circumstances of this particular case justified lodging an application for execution assistance with the Dutch Justice Ministry.
19. On 19 December 2002 the Schleswig Holstein Justice Ministry wrote to the Dutch Justice Ministry enquiring whether it would be possible for it to continue the execution of the German sentence directly under Article 8 § 1 (a) of the Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal Sentences of 13 November 1991 (“the EC Convention on Enforcement” – see International Treaties below). The German Ministry expressed the opinion that the Transfer Convention was not applicable, as the applicant was not in German custody.
20. On 17 March 2003 the Dutch Justice Ministry declared that in principle there was a willingness to allow the sentence to be executed in the Netherlands. However, in the Netherlands continued enforcement was allowed only in exceptional circumstances, which did not apply in the present case. The Dutch Ministry therefore requested its German counterpart to approve the conversion of the prison term imposed on the applicant, under Article 8 § 1 (b) of the EC Convention on Enforcement.
21. On 24 April 2003 the German Ministry requested the Head of the Chief Public Prosecutors to state his position. By a letter dated 1 July 2003 the Head of the Chief Public Prosecutors stated that he was opposed to a formal application for execution assistance because the Netherlands would make the execution dependent on a conversion of the sentence.
22. On 21 July 2003 the Ministry of Justice informed the applicant that it would refrain from lodging a formal application with the Netherlands.
23. In September 2003 the applicant was summoned to serve his sentence. His requests for the suspension of the execution of his sentence until a final decision on his transfer request was given were unsuccessful.
24. On 18 January 2004 the applicant lodged a constitutional complaint against the Ministry's decision not to institute transfer proceedings under Article 11 of the Transfer Convention.
25. On 10 February 2004 an arrest warrant was issued against the applicant as he had failed to start serving his sentence.
26. On 14 January 2005 the Federal Constitutional Court, sitting as a panel of three judges, declined to consider a constitutional complaint lodged by the applicant. According to the Federal Constitutional Court, the applicant had failed to exhaust domestic remedies. With regard to domestic remedies, the Federal Constitutional Court found as follows:
“The applicant has no right to a judicial review of the exercise of discretion in so far as the decision is based on general, in particular foreign policy, considerations..., the evaluation of which belongs to the core area of Government. However, the judicial review of discretionary powers in respect of law enforcement remains unaffected thereby, in particular with regard to the statement made on the day of the trial by the Lübeck Public Prosecutor's Office ... It cannot be denied that uncertainties may remain for the person seeking justice in this connection in view of the previously disputed contestability of decisions by the authorising authority, as well as in regard to the possible legal remedies. Sufficient account is taken of the possible uncertainties with regard to the legal remedy on account of the possibility of a binding referral under section 17a § 2 of the Courts Act. It is reasonable to expect the applicant to have recourse to a disputed legal remedy.”
27. According to the Federal Constitutional Court, it was for the lower courts to decide which court was competent in the applicant's case. These courts had further to consider whether the impugned act interfered with the applicant's right to a fair trial or with the principle of protection of legitimate confidence. Notwithstanding the possibility of lodging a fresh request, the fact that the relevant time-limits for lodging appeals might in the meantime have expired did not lead to the constitutional complaint being admissible.
28. This decision was served on the applicant's counsel on 10 February 2005.
29. On 14 February 2005 the applicant lodged a fresh request with the Justice Ministry that execution of his sentence be taken over under Article 11 of the Transfer Convention.
30. A warrant is still out against the applicant for having failed to start serving his sentence.
31. Section 17a § 2 of the Courts Act (Gerichtsverfassungsgesetz) reads as follows:
“If the invoked court is not competent to adjudicate the case, the court shall decide this of its own motion after hearing the parties and shall, at the same time, refer the legal dispute to the competent court ... The decision shall be binding ... on the court to which the legal dispute is referred.”
Section 23 of the Introductory Act to the Courts Act, in so far as relevant, provides as follows:
“(1) Upon request, the ordinary courts shall decide on the lawfulness of directives, orders or other measures taken by the judicial authorities to regulate individual issues in the sphere of the civil law ... and the criminal law.
(2) By means of a request for judicial determination an order requiring a judicial or executive authority to take a decision it has omitted or refused to take may also be sought.”
In accordance with section 26 of the same Act, the request has to be lodged within one month of communication of the impugned administrative act. If a party has been prevented from complying with this time-limit through no fault of their own, they can lodge a request to restore the previous time-limit. However, such a request is inadmissible if it has been lodged more than one year after expiry of the time-limit, with the exception of cases of force majeure (Section 26 § 4).
32. The German Act on International Mutual Assistance in Criminal Matters does not explicitly define the role of the enforcement authority in the transfer proceedings. The Act merely provides that the authorising authority, that is the Federal Ministry of Justice – which can delegate its competence to the Land Ministry – must send a transfer request to the administering State. If the decision is taken by a Land Ministry, that Ministry, after consulting the public prosecutor's office, exercises discretion with regard both to foreign policy considerations and law-enforcement issues.
33. The aim of the Convention on the Transfer of Sentenced Persons (“the Transfer Convention” – European Treaty Series no. 112) is to develop international cooperation in the field of criminal law and to further the ends of justice and the social rehabilitation of sentenced persons. According to the Preamble, foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentence within their own society.
Article 9 (“Effect of transfer for administering State”) reads as follows:
“1. The competent authorities of the administering State shall:
(a) continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or
(b) convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.
2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.
3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions.
...”
Article 10 (“Continued enforcement”) provides:
“1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.
2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.”
Article 11 (“Conversion of sentence”) reads as follows:
“1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority:
(a) shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State;
(b) may not convert a sanction involving deprivation of liberty to a pecuniary sanction;
(c) shall deduct the full period of deprivation of liberty served by the sentenced person; and
(d) shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.
2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.”
Article 8
Determination of the custodial penalty
“1. Where the transfer or enforcement of a custodial penalty is accepted, the competent authorities of the administering State shall:
(a) enforce the penalty imposed in the sentencing State immediately or through a court or administrative order ...
or
(b) through a judicial or administrative procedure convert the sentence into a decision of the administering State, thereby substituting the penalty imposed in the sentencing State by a penalty laid down by the law of the administering State for the same offence...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82079
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BORGMANN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Matthias Borgmann, is a German national who was born in 1948 and lives in Berlin. He was represented before the Court by Mr Kaleck, a lawyer practising in Berlin.
On 17 March 2000, the Federal Court of Justice issued an arrest warrant in respect of the applicant, who had been employed with the Technical University in Berlin, on the ground that he was strongly suspected of being member of a terrorist group called the Revolutionäre Zellen and that he had participated in various terrorist attacks during the period between 1985 and 1994. The Revolutionäre Zellen, which dissolved itself in 1995, was responsible for at least 186 terrorist attacks. Its regional branch in Berlin, the Berliner Zelle, was responsible for at least forty terrorist attacks, inter alia for attempts to explode the Wedding Social Welfare Office for Asylum Seekers and the victory column in Berlin as well as for attempted assassinations of the chief of the Aliens Office and a presiding judge of the Federal Administrative Court.
On 19 April 2000, the applicant was put on detention on remand. On 30 October 2000, the Federal Prosecutor filed the bill of indictment against the applicant and three other indicted persons for membership of a terrorist organisation and the causing of an explosion in two instances. The bill of indictment was based on various items of evidence, among them the testimony of a privileged prosecution witness (Kronzeuge), the results of the preliminary investigations, the preliminary investigation against the above witness for the prosecution and subsequent measures under the Code of Criminal Procedure as well as further seized evidence. The main proceedings regarding the above charges commenced on 22 March 2001, but were subsequently adjourned until 17 May 2001 in order to join them to the proceedings against a further person.
On 12 April 2001, the Berlin Regional Court dismissed the applicant’s motion to quash or set aside the arrest warrant of 17 March 2000. It found that there existed a strong suspicion that the applicant had committed the crimes of which he was accused and that he was likely to abscond if released, given the sentence which he risked incurring if found guilty as charged. The Berlin Regional Court noted that the applicant had stable social ties as he had been married since 1997, he was frequently in touch with his daughter who lived in England, and the dismissal from his job at the Technical University in Berlin had not yet become final. However, the Berlin Regional Court took the view that there was concern that the applicant could vanish abroad as he owned with his wife an estate in France where he could travel uncontrolled. His various skills could earn him a living there, and his extradition to Germany could not be taken for granted given the practice of the French authorities. Moreover, the current length of the detention on remand was not disproportionate to the expected prison sentence.
On 23 May 2001, the Federal Court of Justice dismissed the applicant’s motion against the decision of the Berlin Regional Court of 12 April 2001. It found that neither the manner in which the proceedings had so far been conducted nor the adjournment until 17 May 2001 had been in violation of the obligation to proceed speedily (Beschleunigungsgrundsatz). The reasons given by the Federal Prosecutor for the adjournment were plausible, and the delay of the proceedings was still proportionate to the length of the applicant’s detention on remand.
On 20 July 2001, the Berlin Regional Court ordered the continuation of the applicant’s detention on remand because both the strong suspicion and the reasons for detention persisted.
On 23 August 2001, the Federal Court of Justice dismissed the applicant’s appeal against the decision of the Berlin Regional Court of 20 July 2001. It considered that there persisted strong suspicion which had not been dissipated by the evidence gathered during the main proceedings. The period of one year and four months which the applicant had so far spent in detention on remand had not eliminated the danger of the applicant’s absconding, nor had it made that detention disproportionate. Despite the considerable period since the crimes the applicant was charged with had been committed, the applicant’s probable sentence in view of their gravity and the fact that he had played a leading role in the terrorist organisation could justify the assumption that there was significant incentive to escape and that the continuation of the detention on remand was proportionate.
On 25 September 2001, the Berlin Regional Court dismissed the applicant’s motion to quash, or alternatively to set aside, the arrest warrant. The Berlin Regional Court took the view that there persisted a strong suspicion that the applicant and four other persons had committed the terrorist attacks, which was supported by evidence collected in the main proceedings. It further held that there was still the danger of him absconding and that it was proportionate to continue the detention on remand given the gravity of the charges and the likely prison sentence.
On 20 December 2001, the Federal Court of Justice dismissed the applicant’s appeal against the decision of the Berlin Regional Court of 25 September 2001. It referred to its earlier decision of 23 August 2001 and found that the applicant’s continued detention on remand was justified as the circumstances had not significantly changed since then. The Federal Court of Justice noted that it was not objectionable that the Berlin Regional Court had found that there persisted a strong suspicion of the applicant’s responsibility for the crimes. The Federal Court of Justice also held that the main proceedings had so far been conducted speedily which was appropriate in view of the applicant’s detention on remand. The complexity of the proceedings against several accused persons combined with the difficulty in establishing events planned with conspirative means by a terrorist group in the period between 1985 and 1994 had so far prevented the judgment from being delivered. The assessment of the reason for arrest and the proportionality of the detention on remand had not considerably changed since the Federal Court of Justice’s decision of 23 August 2001. The likely sentence of the applicant still exceeded the period of his detention on remand; hence there remained the danger of his absconding. Therefore, the continuation of the detention on remand was proportionate.
On 11 February 2002, the Berlin Regional Court suspended the arrest warrant of 17 March 2000 and ordered the applicant instead to participate in the main proceedings, to submit his passport and not to leave the territory of the Federal Republic of Germany without prior consent by the court. The Berlin Regional Court found that, in view of a serious accident of the applicant’s son-in-law who needed intensive care, the danger of the applicant absconding was reduced to such a degree that the less far-reaching measures which had been ordered instead would satisfy the purpose of the detention on remand. The applicant was released on 12 February 2002.
On 4 March 2002, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against the decisions of the Berlin Regional Court of 25 September 2001 and the decision of the Federal Court of Justice of 20 December 2001. The applicant’s lawyer received the decision on 11 March 2002.
On 18 March 2004, the Berlin Regional Court convicted the applicant of ringleadership of a terrorist organisation and of causing an explosion on two occasions and sentenced him to four years and three months’ imprisonment. In determining the sentence, the Berlin Regional Court took into account the length of the detention on remand and the length of the criminal proceedings as mitigating facts. The judgment has since become final.
Section 117 of the Code of Criminal Procedure provides, inter alia:
“As long as the accused is in detention on remand, he may at any time apply for a court hearing to determine whether the arrest warrant is to be revoked or whether its execution is to be suspended in accordance with Section 116.”
Section 230 of the Code of Criminal Procedure provides, inter alia:
“No trial shall be held in respect of a person who is absent.”


ITEMID: 001-80044
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KHVOROSTINA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 4. The applicants are Russian nationals who live in the town of Korenovsk in the Krasnodar Region. They are former employees of the Architecture and Town Planning Department of the Korenovskiy District Council (hereafter – the Council). The three applicants were employed as engineers, one as a technician and one as a land engineer.
5. In January 2001 the applicants were dismissed from their positions.
6. The applicants sued the Council for reinstatement and wage arrears for the period from October 2000 to January 2001.
7. On 28 March 2001 the Korenovskiy District Court dismissed the applicants' claims for reinstatement but awarded them the amounts listed in the schedule. The judgment became final on 22 May 2001 when the Krasnodar Regional Court upheld it on appeal. The judgment remains unenforced because the Council does not have necessary funds.
8. The applicants asked the Justice of the Peace of the 153rd Court Circuit of the Korenovskiy District to award them wage arrears for the period from February to April 2001.
9. On 20 June 2001 the Justice of the Peace accepted their action against the Council and awarded them the amounts listed in the schedule. The judgment was not appealed against and became final.
10. Enforcement proceedings were instituted, but the judgment was not enforced because the Council did not have funds.
11. On 8 August 2002 the sums awarded by the judgment of 20 June 2001 were credited to the applicants' accounts.
12. The applicants lodged an action against the Council, complaining that the Council failed to enforce the judgments of 28 March and 20 June 2001. They sought payment of the amounts awarded under those judgments.
13. On 20 November 2002 the Justice of the Peace held that the Council should pay the applicants compensation for the delay in enforcement of the judgment of 28 March 2001 for the period from 22 May 2001 to 20 November 2002 (the amounts awarded are listed in the schedule). The judgment of 20 November 2002 was upheld on appeal on 24 December 2002.
14. Enforcement proceedings were instituted but the judgment of 20 November 2002, as upheld on appeal on 24 December 2002, remains unenforced because the Council does not have funds.
VIOLATED_ARTICLES: 6


ITEMID: 001-58296
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF FERRARI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: András Baka;Paul Mahoney
TEXT: 9. The applicant, who was born in 1911, lives in Rome.
10. On 31 January 1990 she instituted proceedings in the Rome District Court against a local health clinic in Rome for payment of an adjustment for inflation and of statutory interest in respect of arrears of her widow’s pension which had been paid six years late.
11. At the first hearing, on 9 March 1990, the court noted that the defendant had failed to appear and the judge preparing the case for trial directed that the final submissions be made on 24 March 1990. That hearing was adjourned of the court’s own motion to 24 January 1991 because the judge had been transferred. The trial before the relevant division was held on 14 October 1991. In a judgment of 24 October 1991, the text of which was deposited with the registry on 9 December 1991, the court declined jurisdiction on account of the subject-matter of the case and indicated that the Rome magistrate (pretore), sitting as an employment judge, had jurisdiction to hear it.
12. On 13 February 1992 the applicant resumed the proceedings before the Rome magistrate. At the first hearing, on 25 November 1992, the court noted that the defendant had failed to appear and the magistrate appointed an expert, who took the oath on 15 February 1993. On 23 June 1993 the magistrate withdrew to consider the case. In a judgment of the same date, the text of which was deposited with the registry on 22 July 1993, the magistrate allowed the applicant’s claim in part.
13. On 20 July 1994 the applicant appealed to the Rome District Court. On 18 October 1994 the first hearing was set down for 4 December 1996. It was subsequently brought forward, at the applicant’s request, to 1 December 1995. It was then adjourned to 13 December 1995 because the judge preparing the case for trial was unable to attend, and then to 2 February 1996 because the registry had not sent the file relating to the first-instance proceedings. On 2 February 1996 the court appointed an expert and directed that he take the oath on 19 April 1996. That hearing was adjourned to 12 July 1996 because it had not been possible to summon the expert. On that date the court appointed a new expert because the first one had moved house and it had not been possible to summon him. The expert took the oath on 4 October 1996 and the case was adjourned to 11 June 1997. On that date the court listed the deliberations in the case for 17 September 1997. In an order of 17 September 1997 the court re-opened the investigation and ordered the expert to appear at a hearing on 12 November 1997 in order to clarify certain points in his report.
14. The court deliberated on 13 March 1998 and in a judgment of the same date, the text of which was deposited with the registry on 6 August 1998, allowed the applicant’s appeal in part.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1