ITEMID: 001-105275
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KANIA AND KITTEL v. POLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 10
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
TEXT: 5. On 23 August 1997 the daily newspaper Super Express published a number of articles written by the applicants.
On the cover page the newspaper published a title, covering nearly half of the page. It read “The Warsaw prosecuting authorities confirm: the Minister took” (“Warszawska prokuratura ustaliła: Minister wziął”), and underneath there was a photograph of a Mitsubishi Pajero with information that the price of the most expensive version was over 100,000 United States dollars (USD) and then a paragraph stating that Minister M.S., who was at that time the head of the National Security Office, had accepted such a car as a gift from the businessman W.W.
The paragraph read:
Minister M.S., the Head of the National Security Office, received from businessman W.W. a luxury car. The case came to light because the Mitsubishi Pajero, worth over 100,000 USD, was [subsequently] stolen. The head of the Mokotów prosecutor’s office, Z Ż., has confirmed that M.S. had been “using” that car. Minister [M.]S. did not want to talk to us about the car from the businessman.”
On the same front page the editor published a note, accompanied by a photograph of M.S.:
“Sir, as you have refused to give us an interview about the car which you received from W.W., you are requested, in accordance with the Press Act, to answer the following questions: 1. Why did you accept a gift from W.W. in the form of a luxury car? 2. For how long did you use it? 3. Do you think it is correct for a State agent to accept for use a car owned by a businessman? 4. Were you not afraid that accepting that gift amounted to contracting a debt towards him which you would be obliged to pay back in the future?”
On the third page an article signed by both applicants was published, entitled “S. used” (“S. używał”). Its leading paragraph read:
“The presidential minister and Head of the National Security Office does not want, at least for the time being, to explain why he has accepted an expensive car from a Polish businessman with a Swedish passport.
The article went on:
“W.W., a well-to-do businessman with a Swedish passport, is the official owner of a car which was stolen from S. ... He has extensive contacts with politicians. He emphasises his close relationship with the President, Aleksander Kwaśniewski. ...
On 4 February the Minister’s driver was driving the car to have it washed. When he stopped at traffic lights at Ursynowska Street in Warsaw, the car door was opened by a masked man who hit the driver in the face with a pistol he was holding and threw him out of the car onto the tarmac. Then he drove away, the tyres screeching.
The Warsaw prosecuting office started an investigation.
Witnesses have stated that M.S. had used the Mitsubishi – prosecutor Z. Z. has told us: ‘We discontinued the investigation in April as we could not identify the perpetrator.’
When Super Express spoke with him, W.W. lied. He tried to explain that he could not remember events which had taken place several months ago and told us that M. S. had never so much as sat in that car.
‘It was the driver who was my friend. And I did not know that he worked as [M.]S.’s driver’, he said. ‘[M.]S. himself never set foot in that car. ... ‘I don’t remember what the car’s documents stated’, he added, ‘I have no more time to talk’.
M.S. told us, via his secretary, that he did not have anything to say about the Mitsubishi.”
6. On 29 September 1997 M.S. brought a civil action in the Warsaw Regional Court requesting legal protection of his personal rights. He requested that the defendants be ordered to cease publishing allegations that the plaintiff had accepted an expensive car as a gift, that the newspaper publish an apology, and that damages of PLN 300.000 be awarded to him, which he undertook to pay to a charity.
7. On 23 February 2001 the Warsaw Regional Court partly allowed the plaintiff’s claim. It ordered the applicants and the editorinchief to publish an apology on the cover page of their newspaper for having published the untrue information that the plaintiff had accepted an expensive gift, which was to be worded as follows:
“The editors and authors of the articles entitled “[t]he Minister took” and “[M.]S. remains silent” apologise for publishing the untrue information that he had accepted an expensive car as a gift”.
It further determined the exact size of the apology. The court also ordered the applicants to pay, jointly with the newspaper’s publisher and the editor in chief, 10,000 Polish zlotys (PLN) as compensation for the nonpecuniary damage he had suffered. The defendants were also ordered to pay, jointly, PLN 1,600 in court fees.
8. During the proceedings the court questioned the applicants and the plaintiff. The court heard W.W. and D.Z., who had been driving the car on the day of the theft, as witnesses. The court had regard to the case file of the investigation into the theft of the car which had been conducted by the Warsaw-Mokotów District Prosecutor; to an authorisation to use the car from 15 January until 13 March 1997 which W.W. had drawn up for the plaintiff; and to a car insurance policy which he had had taken out in the plaintiff’s name for that period.
9. The court found that W.W. and the plaintiff had planned to go to Austria together for a skiing holiday. As W.W. had had to fly to the US for business purposes shortly before the holiday, it had been agreed that the plaintiff would take his car and drive it to Vienna where they would meet. W.W. had arranged for insurance for the plaintiff and prepared a document to the effect that he was authorised to use the car from 15 January to 15 March 1997. The plaintiff had taken the car from W.W. at the beginning of February. Subsequently, on 4 February 1997, when the plaintiff’s driver had been driving the car to have it washed, he had been attacked at traffic lights and the car had been stolen from him. An investigation concerning the theft was subsequently instituted by the District Prosecutor.
10. The court noted the steps which the applicants had taken when gathering the material for the article. The first applicant had become aware of the theft of the car in February 1997. On 6 February 1997 she had published a short article about it. Later on she had contacted the prosecuting authorities requesting information about the progress of the investigation. She had also contacted the President’s Chancellery, where the plaintiff was working at that time, and requested to be given an interview concerning the theft. She was informed that the plaintiff would not give an interview on that subject.
In July 1997 the second applicant had started working on the case. He had interviewed W.W. and D.Z. The court noted that W.W. had given very evasive answers to the questions.
11. Nonetheless, the court was of the view that the available evidence indicated that the car had indeed been given to the plaintiff for use for a limited period of time. There was no indication that the car had been accepted as a gift. The relevant evidence given by the plaintiff, W.W. and D.Z. was fully coherent.
12. The court therefore accepted that there was nothing to suggest that the circumstances in which the plaintiff had come into the possession of the car indicated corruption. The court emphasised that he should not have avoided the journalists as it was his responsibility as a public official to ensure that his acts were transparent. It also noted that the newspaper had published the articles only after he had refused to provide information concerning the car.
The court accepted the defendants’ assertion that they had been acting in the general interest and had wished to elucidate the circumstances surrounding the use of the car by the plaintiff. However, this motivation did not exempt them from the legal obligation to respect personal rights. They were obliged to act with diligence when gathering and publishing information.
The court accepted that the defendants had complied with this obligation when gathering material and information concerning the use of the car. They had had recourse to all the relevant sources.
13. However, the court could not endorse the defendants’ conduct, having regard, firstly, to the titles of the articles. The title on the cover page, taking up almost half of it, insinuated that the plaintiff had taken a bribe and that the Warsaw prosecuting authorities had conducted an investigation in this regard. The suggestion, obvious to any reader, was not borne out by the facts and was not compatible with the information which the newspaper had received from the prosecuting authorities or from any other source. Secondly, the same suggestion was made in the questions published on the first page. Neither the title nor the questions corresponded to the actual content of the article concerning the car published on the third page. This allegation, which had not been based on any facts, had breached the plaintiff’s personal rights.
14. The court further considered that the amount of damages sought by the plaintiff was clearly excessive. However, as his personal rights had been breached, it considered that an amount of PLN 10,000 was appropriate in the circumstances as it was more than merely symbolic.
15. The applicants appealed. They submitted that the court had wrongly found that the contested articles had suggested that M.S. had accepted a bribe and that the prosecuting authorities had conducted an investigation into the matter. They further argued that the first-instance judgment had breached Articles 54 and 61 of the Constitution and Article 10 of the Convention. They averred that the court had failed to take into consideration the standards set in the Court’s case-law. They referred to the judgments given in the cases of Jersild v. Denmark, 23 September 1994, Series A no. 298, and Prager and Oberschlick v. Austria, 26 April 1995, Series A no. 313. As to the scope of the protection afforded to the private lives of politicians, they invoked the Court’s judgment in the case of Lingens v. Austria, 8 July 1986, Series A no. 103.
They were further of the view that the court had erred in finding that they had failed to act with diligence when formulating the title for the article. It had clearly been formulated in a manner compatible with journalistic freedom.
16. On 13 November 2002 the Warsaw Court of Appeal dismissed the appeal. It agreed with the first-instance court that the text published on the cover page, including its title, had clearly suggested that the plaintiff had been suspected of corruption, that the prosecuting authorities had conducted an investigation concerning charges of corruption, and that the charges had proved well-founded. The court’s findings in this respect were correct: this was indeed an impression which any reasonable reader might form, while it was clearly not borne out by the facts as established by the applicants. Likewise, the lower court’s conclusion that the text on the third page did not balance the impact of the text on the front page was correct.
17. The appellate court accepted the applicants’ argument that they had been motivated by the protection of the general interest and by their obligation to inform the public of issues of such interest. It held that they had exercised their freedom of expression protected by Article 10 of the Convention. Under this provision, politicians had to take into account that the limits of acceptable criticism were wider in respect of their acts. However, this freedom was not unlimited; it went hand-in-hand with certain obligations and restrictions. It was for the purpose of the effective protection of such rights that journalists were obliged to act with particular diligence; journalistic freedom could not be seen as conferring on journalists a right to act recklessly or arbitrarily. They had to check the veracity of the information which they intended to publish.
18. In the present case the information on the front page insinuated not only that the plaintiff had accepted the expensive car as a gift from W.W., but also that the plaintiff had been suspected of taking bribes, and that the prosecuting authorities had conducted an investigation into the matter and found that suspicion well-founded. That was not true. The conclusions of the lower court concerning the possible assessment of the information published on the cover page and the text on the third page by the readers were well-founded and logical and had to be upheld.
19. The applicants appealed, essentially reiterating their arguments and indicating that Article 10 of the Convention and the Court’s case-law should be used as the frame of reference for the legal assessment of the case.
20. On 20 February 2004 the Supreme Court dismissed their cassation appeal, essentially sharing the conclusions of the appellate court.
In so far as the applicants complained that the appellate court had failed to address their arguments based on the Court’s case-law concerning Article 10 of the Convention, the Supreme Court acknowledged that they were right to emphasise the importance of the right to the freedom of expression in a democratic society as interpreted by the Court. Any restrictions imposed on the exercise of that right had to be closely scrutinised. It referred to the case-law of the Court and reiterated that criticism in respect of politicians and their views and actions was acceptable in the context of a democratic society, even where it took the form of violent attacks, exaggeration or even provocation. However, these principles had always to be applied and fine-tuned in the context of concrete factual circumstances. In the present case, the applicants’ interest the public character of the plaintiff’s function, was fully justified. Their diligence in gathering relevant information was not open to any criticism. It was only at the stage where they wrote and published the articles concerned that they had demonstrated negligence. Nothing in the material which they had gathered justified a conclusion that the plaintiff had received the car as a gift. This insinuation, placed on the first page of the newspaper, had clearly overstepped the limits of acceptable journalistic exaggeration.
21. The Supreme Court further held that the newspaper’s editor-in-chief could not be held responsible as at the time when the articles had been published she had not been carrying out this function, and it dismissed the claim in so far as it had been directed against her.
22. Article 14 of the Constitution, adopted in 1997, provides as follows:
“The Republic of Poland shall ensure freedom of the press and other means of social communication.”
23. Article 54 of the Constitution reads:
“1. The freedom to express opinions and to acquire and disseminate information shall be secured to everyone.
2. Preventive censorship of the means of social communication and licensing of the press shall be forbidden. Statutes may require that permits be sought and obtained for the operation of a radio or television station.”
24. Article 61 of the Constitution, in so far as relevant, provides:
“1. Each citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include the obtaining of information on the activities of self-governing economic or professional organs, and other persons or organisational units, relating to the field in which they perform the duties of public authorities and manage municipal assets or property of the State Treasury.
2. The right to obtain information shall encompass the right of access to documents and entry to sittings of collective organs of public authority formed by universal suffrage, with the opportunity to make sound and visual recordings.
3. Limitations upon the rights referred to in paragraphs 1 and 2 above may be imposed by statute solely to protect the freedoms and rights of other persons ... public order, security, or important economic interests of the State.”
25. Article 23 of the Civil Code contains a list of the rights referred to as “personal” (dobra osobiste). It reads:
“The personal rights of an individual, such as, in particular, the rights concerning health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by civil law regardless of the protection enshrined in other legal provisions.”
26. Article 24 of the Code provides for ways of redressing infringements of personal rights. A person facing the threat of an infringement may demand that the perpetrator desist from the wrongful activity, unless it is lawful. Where an infringement has taken place the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him/her. If the infringement of a personal right causes financial loss, damages may be sought before a civil court.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-61144
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF KLIMEK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1944 and lives in Bratislava.
5. On 5 January 1994 the applicant challenged the lawfulness of his dismissal from a job before the Bratislava III District Court.
6. On 2 September 1999 the Constitutional Court found that the Bratislava III District Court had violated the applicant’s constitutional right to have his case examined without undue delays. In its finding the Constitutional Court noted, in particular, that the case had to be adjourned on twelve occasions as the chamber dealing with it was incomplete.
7. On 6 October 1999 the District Court declared the applicant’s dismissal unlawful. The judgment was served on the applicant on 14 March 2000 and the defendant company appealed on 17 March 2000.
8. On 4 October 2000 the Bratislava Regional Court quashed the first instance judgment to the extent that it concerned the compensation awarded to the applicant and the decision on court fee. The Regional Court upheld the remainder of the District Court’s judgment.
9. In the proceedings concerning the outstanding part of the applicant’s claims the Bratislava III District Court scheduled hearings for 23 November 2001 and 15 February 2002. The proceedings are pending.
10. Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
11. Pursuant to Article 130 (3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon the petition (“podnet”) presented by any individual or a corporation claiming that their rights have been violated.
12. According to its case-law under the former Article 130 (3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights under Article 48 (2) of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.
13. As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision the Constitutional Court has the power, in case that it found a violation of Article 48 (2) of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional right was violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).
14. According to an explanatory letter by the President of the Constitutional Court of 6 June 2002, nothing has prevented the Constitutional Court from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed. The letter further states that where the Constitutional Court earlier found a violation of Article 48 (2) of the Constitution, a further complaint about delays in the same proceedings can be entertained only to the extent that it relates to the period after the delivery of the first finding of the Constitutional Court. However, when deciding on such cases the Constitutional Court will, as a rule, take into account that the ordinary courts have failed to proceed with the case without undue delays following its finding of a violation of Article 48 (2) of the Constitution.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111666
LANGUAGEISOCODE: ENG
RESPONDENT: ITA;SMR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF TONIOLO v. SAN MARINO AND ITALY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-f - Extradition) (San Marino)
JUDGES: Corneliu Bîrsan;Guido Raimondi;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 6. The applicant, an Italian national, was born in 1949 and lives in San Marino.
7. On 10 August 2009, the Prosecutor of the Rome Tribunal informed the Italian Ministry of Justice and the San Marino Tribunal, that criminal proceedings had been instituted against the applicant (an Italian citizen resident in San Marino) for, inter alia, money laundering. He further informed them that by a decision of 3 July 2009 the Rome Tribunal had ordered his preventive detention. The prosecutor therefore requested the San Marino judicial authorities to extradite the applicant and place him in preventive detention on the basis of the bilateral Convention on Friendship and Good Neighbourhood between Italy and San Marino of 1939 (the 1939 Convention). At the same time he requested the Italian Ministry to authorise the extradition request.
8. By a decision of 12 August 2009 the Commissario della Legge (CL) accepted the request and ordered the applicant’s arrest and preventive detention pending his extradition, on the basis of the 1939 Convention, noting, moreover, that San Marino had also ratified the European Convention on Extradition of 1957 (the 1957 Convention).
9. On the same day the applicant was notified of the order and arrested.
10. On 14 August 2009, pending the official request by the Italian Ministry of Justice according to Article 22 of the 1939 Convention, the CL requested the Capitani Reggenti (CR) to authorise the extradition, noting that the relevant requirements were fulfilled. No reply was received.
11. On 20 August 2009 the applicant and his lawyer were heard in relation to his extradition. On the same day, the CL rejected a request by the applicant for house arrest on the basis of the 1939 Convention.
12. On 26 August 2009 the Secretary of State informed the CL about a note verbal from the Italian embassy of 20 August 2009 which noted that San Marino had become a party to the 1957 Convention on 16 June 2009 and that therefore the Italian request would be submitted within the 40 days stipulated in the 1957 Convention. Moreover, the note verbal requested the extension available under the said Convention, in the event that it became necessary.
13. On 24 August 2009 the applicant complained against the decision of 12 August 2009 (paragraph 8 above) in so far as there had been no urgent reasons under the 1939 Convention, which in his view was applicable to the present extradition, justifying preventive detention.
14. On 7 September 2009 the appeal judge dismissed this complaint. The court considered that the preventive measure was to facilitate extradition. It considered the element of urgency to be linked to the risk of absconding and that one had to take account of the geographical situation of San Marino. The court held that the basis of the detention was the arrest warrant of 12 August 2009 which it was thereby confirming, however, modifying the applicable rules in that such orders were to be governed by the 1957 Convention which had to apply to the present extradition. While it was true that the first steps of the extradition process had been in accordance with the 1939 Convention and the subsequent ones with the 1957 Convention; it was also true that San Marino had made a reservation, when ratifying the 1957 Convention, to the effect that its bilateral agreement would prevail. However, Italy had not made such a reservation or acknowledged the San Marino one.
15. On the same day, 7 September 2009, the applicant requested, under the 1939 Convention, to be released on the expiry of 30 days from his arrest, if the extradition request and relevant documents were not submitted.
16. On 11 September 2009 this request was rejected by the CL, holding that the 1957 Convention, which prevailed over the 1939 Convention, stipulated a maximum of 40 days.
17. On 18 September 2009 the CL informed the CR of the extradition request and relevant documents submitted by the Italian Ministry of Justice on the same day. He confirmed that the conditions of the 1957 Convention were fulfilled and therefore requested the authorisation of the extradition. On the same day the CR gave its authorisation on the basis of the 1957 Convention and the CL ordered the applicant’s extradition, which took place the following day.
18. On 19 September 2009 at 12.50 a.m. the applicant was picked up and ten minutes later notified of the extradition order which he refused to sign claiming it should be submitted to his lawyer. He was transferred to the Italian police at 2.45 p.m. and at 4.15 p.m. the extradition order was notified to one of his lawyers.
19. On 5 October 2009 the applicant lodged an application (ex art 56 c.p.p.) with the Terza Istanza Penale against the appeal judge’s order of 7 September 2009 (confirming the order of 12 August 2009 concerning preventive detention – paragraph 14 above) and the extradition order of 18 September 2009. In relation to the former he argued that he was not a dangerous individual, there was no risk of absconding or altering evidence, no need to protect the community, that the charges brought forward by the Italian Government were unfounded and that the extradition request had not been properly submitted. In respect of the extradition, he claimed, inter alia, that it had been vitiated since it had been requested on the basis of the 1939 Convention and not the 1957 Convention, which could not apply in view of the reservation by San Marino to the effect that its bilateral agreements would prevail. Moreover, the entire procedure had been tainted by illegality, the rights of the defence had been breached in that the applicant had not been heard nor were his lawyers notified or allowed access to the applicant at the time of the extradition. He also referred back to the submissions made on 24 August 2009.
20. By a judgment of 20 November 2009 (notified on 1 December 2009) the Terza Istanza Penale held that it could not take cognisance of the complaint against the extradition order as this was still pending before the appeal judge at second instance (see below). As to the rest, it reiterated that while it was true that the first steps of the extradition process had been in accordance with the 1939 Convention and the subsequent ones with the 1957 Convention; it was also true that San Marino had made a reservation, when ratifying the 1957 Convention, to the effect that its bilateral agreement would prevail. However, Italy had not made such a reservation or acknowledged the San Marino one. This, thus, led to a situation where for San Marino the 1939 Convention applied and for Italy the 1957 Convention applied. This was clearly unworkable. Thus, it was obvious that the reservation could only apply if both States had coinciding declarations. As to the decision to keep the applicant in preventive detention the court found that the CL’s decision had been a legitimate exercise of discretion in which the CL had considered the seriousness of the offences, the evidence presented and any other conditions relevant to the aim of successfully extraditing the applicant. Therefore, the conditions for the application of such a measure were fulfilled under both Conventions. Moreover, it could not be said that the extradition process had caused the applicant prejudice at any time. The process had been in conformity with the Italian request and the relevant Conventions at different stages. This constituted a legitimate basis for the entire extradition proceedings including the duration of the detention. Thus, it further confirmed the order of arrest of 12 August 2009 and the decision of the appeal judge of 7 September 2009, which were thereby definitive.
21. On 29 September 2009 (a few days before the start of the first set of proceedings mentioned above), the applicant had lodged an application (ex art 56 c.p.p. and art 30 of Law 30/07/2009 no.104) before the appeal judge against the extradition order of 18 September 2009. His application started by reiterating the arguments made in his submissions of 24 August 2009 (regarding preventive detention). He further argued, inter alia, that he had been extradited without being heard and without being notified of the authorisations relevant to such procedure except for the order of 18 September 2009, and pointed to other irregularities which vitiated the request such as the application of two Conventions which had different formal requirements. He also reiterated other issues raised in his submissions of 24 August 2009.
22. The application was rejected on 23 November 2009 (a few days after the above mentioned final judgment of 20 November 2009). The court noted that the object of the application was the same as that made in another application. The objection to the execution of the applicant’s extradition order of 18 September 2009 was identical in both proceedings. The objection against the decision of 12 August 2009 was inadmissible not quite on the basis that it was being contested in another forum, but particularly because the arguments brought forward were the same in both fora.
23. On 17 December 2009 the applicant appealed to the Terza Istanza Penale against this decision. The applicant stated that he was appealing the decision of 23 November 2009 which had rejected his appeal of “5 October 2009”. He argued, inter alia, that he had been extradited without being heard and without being notified of the authorisations relevant to such procedure except for the order of 18 September 2009, and pointed to other irregularities which vitiated the request such as the application of two Conventions which had different formal requirements, and the issues raised in his submissions of 24 August 2009. In consequence he considered that the extradition had to be considered invalid.
24. By a judgment of 8 February 2010 the Terza Istanza Penale considered this application to refer to all the steps of the extradition proceedings, as it reiterated the same grounds aired previously in different phases of the proceedings, including those before the same judge in the Terza Istanza Penale. The court held that, as to the notification, both the applicant and his lawyers had been informed of the arrest order dated 12 August 2009 on the same day, and the Italian ordinance on which the arrest order was based had been notified the subsequent day. Following that, the applicant’s lawyers had had full access to him while in detention and to all the relevant documents in the proceedings. The applicant had been heard in a hearing and had made use of multiple remedies in respect of every step of the proceedings. The court reiterated that all these proceedings had been governed by the 1957 Convention, as the prevailing instrument and that any order based on the 1939 Convention had not prejudiced the applicant in his right to liberty. On the substance it considered that there had been sufficient logical and juridical justification to accept the Italian request for extradition which had been submitted including all the relevant and necessary elements according to the relevant international legal texts. Lastly, the Terza Istanza Penale noted that the appeal judge had upheld the prosecutor’s objections that there had been nothing new in this application which was therefore inadmissible. Bearing in mind all the above, it considered the appeal manifestly ill-founded and confirmed the order of 18 September 2009 for the applicant’s extradition.
25. On 12 February 2010 the Italian courts released the applicant following the expiration of the time-limits of detention prescribed by law.
26. Article 8 of the Criminal Code of San Marino, in so far as relevant, reads as follows:
“Extradition is regulated by means of international conventions, and in the event that they do not so provide, by San Marino law. Extradition of persons found in the territory of San Marino is allowed on the fulfilment of the following conditions:
1. That the fact constitutes an offence under both the law of San Marino and the law of the requesting State.
2. That the crime, the penalty or the relevant measures are not extinct in the law of any of the two States.
3. That the criminal proceedings can be brought in the courts of both States.
4. That the request does not relate to a citizen of San Marino, unless it was so expressly allowed by international conventions.
5. That it does not concern political crimes or crimes related to the latter, or to military crimes exclusively, or that it appears that the extradition is wanted solely for political grounds (...).”
27. Article 22 of the 1939 Convention, in so far as relevant, reads as follows:
“The extradition request shall be directly submitted by the competent judicial authority of the requesting state to the requested state. (...) The extradition request and extradition order must be authorized in Italy by the Justice Ministry and in San Marino by the Reggenza (RC).” (Summary unofficial translation).
28. Article 23 of the 1939 Convention, in so far as relevant, reads as follows:
“When a request for extradition is submitted all the necessary measures must be taken to ensure its execution. An arrested person will be detained until a decision on the extradition is taken and if this is decided until the extradition. Provisional arrest may be ordered on the basis of a declaration (referring to certain conditions, such as existence of an arrest warrant) or on the basis of a published wanted criminals list, in cases of urgency. The provisional detainee will be set free within one month from his arrest if by then the extradition request and the relevant documents have not reached the requested party. This term may be prolonged to two months if the person to be extradited is identified as a dangerous criminal or if the arrest was based exclusively on a published wanted criminals list. The individual’s release does not prejudice his or her extradition once the relevant request and documents have been received.” (Summary unofficial translation).
29. The relevant articles read as follows:
Article 12 – The request and supporting documents
“(1) The request shall be in writing and shall be communicated through the diplomatic channel. Other means of communication may be arranged by direct agreement between two or more Parties.
(2) The request shall be supported by:
a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party;
b) statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and
c) copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality. ”
Article 16 – Provisional arrest
“In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.
The request for provisional arrest shall state that one of the documents mentioned in Article 12, paragraph 2.a, exists and that it is intended to send a request for extradition. It shall also state for what offence extradition will be requested and when and where such offence was committed and shall so far as possible give a description of the person sought.
A request for provisional arrest shall be sent to the competent authorities of the requested Party either through the diplomatic channel or direct by post or telegraph or through the International Criminal Police Organisation (Interpol) or by any other means affording evidence in writing or accepted by the requested Party. The requesting authority shall be informed without delay of the result of its request.
Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.
Release shall not prejudice re-arrest and extradition if a request for extradition is received subsequently.”
Article 18 – Surrender of the person to be extradited
“The requested Party shall inform the requesting Party by the means mentioned in Article 12, paragraph 1, of its decision with regard to the extradition.
Reasons shall be given for any complete or partial rejection.
If the request is agreed to, the requesting Party shall be informed of the place and date of surrender and of the length of time for which the person claimed was detained with a view to surrender.
Subject to the provisions of paragraph 5 of this article, if the person claimed has not been taken over on the appointed date, he may be released after the expiry of 15 days and shall in any case be released after the expiry of 30 days. The requested Party may refuse to extradite him for the same offence.
If circumstances beyond its control prevent a Party from surrendering or taking over the person to be extradited, it shall notify the other Party. The two Parties shall agree a new date for surrender and the provisions of paragraph 4 of this article shall apply.”
Article 22 – Procedure
“Except where this Convention otherwise provides, the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested Party.”
Article 26 – Reservations
“Any Contracting Party may, when signing this Convention or when depositing its instrument of ratification or accession, make a reservation in respect of any provision or provisions of the Convention.
Any Contracting Party which has made a reservation shall withdraw it as soon as circumstances permit. Such withdrawal shall be made by notification to the Secretary General of the Council of Europe.
A Contracting Party which has made a reservation in respect of a provision of the Convention may not claim application of the said provision by another Party save in so far as it has itself accepted the provision.”
Article 28 – Relations between this Convention and bilateral Agreements
“This Convention shall, in respect of those countries to which it applies, supersede the provisions of any bilateral treaties, conventions or agreements governing extradition between any two Contracting Parties.
The Contracting Parties may conclude between themselves bilateral or multilateral agreements only in order to supplement the provisions of this Convention or to facilitate the application of the principles contained therein.
Where, as between two or more Contracting Parties, extradition takes place on the basis of a uniform law, the Parties shall be free to regulate their mutual relations in respect of extradition exclusively in accordance with such a system notwithstanding the provisions of this Convention. The same principle shall apply as between two or more Contracting Parties each of which has in force a law providing for the execution in its territory of warrants of arrest issued in the territory of the other Party or Parties. Contracting Parties which exclude or may in the future exclude the application of this Convention as between themselves in accordance with this paragraph shall notify the Secretary General of the Council of Europe accordingly. The Secretary General shall inform the other Contracting Parties of any notification received in accordance with this paragraph.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-108017
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF OLEYNIKOVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2 (procedural aspect)
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1956 and lives in Kharkiv.
6. On 30 June 2002 the applicant’s son, D., who was then nineteen years old, had a picnic with his friends (Mr) L., (Ms) N. and (Ms) G. on the bank of a lake not far from the village of Staryy Saltiv in the Kharkiv region. They drank some alcohol and took a swim. According to D.’s friends, D. could not swim and stayed in the shallow part of the lake. As submitted by the applicant, he had aquaphobia.
7. That evening D. and L. had a fight with a group of about ten young people picnicking nearby, which left D. with a bleeding nose and an injured lip.
8. According to L., N. and G., after the fight was over and the other group left for their camp, D. washed his face in the lake. Shortly afterwards, at about 11 p.m., he took a towel and went towards some bushes in the opposite direction to the lake.
9. Some minutes later, worried by his absence, L. and the girls started looking for him. They continued the search for about three hours, but to no avail. At some point N. thought she had heard D.’s voice, saying that he was there and that he was unwell, after which it had been interrupted abruptly as if forcibly stifled. The others did not hear anything. The friends asked two fishermen fishing nearby whether they had seen D., but were told in reply that there had been many young men passing by. Having met three persons from the “rival” group, L. asked whether they had seen D., but they replied that they had not. Shortly after that four teenagers, including one of the three mentioned above, approached L., N. and G. and asked whether they had found D. On hearing that they had not, they wished them “good luck with the search” with what D.’s friends perceived as ironic smiles.
10. L., N. and G. decided to wait until dawn to continue the search. While L. and N. were asleep, G. heard some muffled noises not far from their camp, followed by a splash.
11. Having resumed the search at 5 a.m. on the following day, 1 July 2002, L. and the girls found D.’s towel on a tree some fifty metres from their campsite. D.’s dead body was floating in the lake about twenty metres from the bank. L. brought it back to the shore. He noticed a bruise on D.’s head, which he did not remember having been there after the fight.
12. L., N. and G. went to call the police.
13. The youths from the other group left their camp at dawn and took the first morning bus to Kharkiv.
14. On the morning of 1 July 2002 the police, having been informed of D.’s death by his friends, intercepted the aforementioned bus and apprehended some of the young people in question.
15. According to a report drafted on the same date by the officer on duty at Staryy Saltiv police station, at 7 a.m. L. had informed the police of D.’s drowning. The following officials had gone to inspect the scene of the incident: the prosecutor, an investigator from the prosecutor’s office, a forensic medical expert, the deputy chief of the investigation unit of the local police station, and the neighbourhood police inspector.
16. According to an on-site inspection report of the same date, the scene where the body had been discovered was inspected from 8 to 9 a.m. It was stated in the report that the inspection group had discovered D.’s body floating in the lake three metres from the bank and had taken it to the shore. The report was signed by the prosecutor, the investigator, two medical experts, and two attested witnesses.
17. The applicant arrived at the scene at some point during the aforementioned inspection.
18. The case file also contains an “accident report” of 1 July 2002 signed by the head of the Staryy Saltiv rescue station and a nurse (apparently from the same rescue station). It is limited to outlining the following events and their timing: 8.30 a.m. – receipt of the information about the accident; 8.40 a.m. – arrival at the scene; and 8.45 a.m. – removal of the body from water.
19. Still on 1 July 2002, a post mortem was conducted. It gave drowning as the cause of D.’s death.
20. At some point in July 2002 the applicant complained to the Vovchansk Town Prosecutor’s Office (hereafter “the VTPO”) that the persons with whom her son had been fighting could have been involved in his death and sought the initiation of a criminal investigation into the matter.
21. Later in July 2002 she additionally brought to the prosecutor’s attention the fact that on the arrival of the police at the site on 1 July 2002 the body of her son had been found in the water several metres from the shore, while L. had clearly stated that he had already taken it out. It was unclear in what circumstances the body had been put back into the water.
22. On 16 July 2002 the applicant complained to the Kharkiv Regional Prosecutor that the VTPO had been refusing to accept her complaints under the pretext that the prosecutor’s personal authorisation was required for that. Having received some additional facts from L., N. and G., the applicant brought them to the attention of the prosecution. She had found out, in particular, that two of the persons who had fought with her son, nicknamed T. and U., had apparently had a previous conflict with D. During the fight on 30 June 2002 they had violently plunged L. into the water. Later, the young man nicknamed T. had been among those who had wished D.’s friends “good luck with the search”. Furthermore, the group who had attacked D. and L. had hastily left their own campsite at dawn on 1 July 2002. When being apprehended, some of them had referred to the connections and influence of their parents as a threat to the police. T. and U. had later gone into hiding.
23. On 19 July 2002 the VTPO investigator decided not to open criminal proceedings regarding the death of the applicant’s son, having concluded that it had been an accident. The decision was mainly based on the post mortem report, according to which D. had died by drowning. As to the fight which had taken place on the eve of the death, the investigator considered that its circumstances disclosed elements of hooliganism. The case was therefore referred to the Vovchansk police department for further verification in that regard.
24. As a result, on 21 July 2002 criminal proceedings were instituted in respect of the fight of 30 June 2002, which was classified as hooliganism.
25. On 22 July 2002 the VTPO investigator ordered a forensic medical examination with a view to clarifying the following issues: (a) whether there were any injuries on D.’s body and, if so, what their origin was and how serious they were; (b) what the cause of the death was; and (c) whether D. had consumed alcohol before his death.
26. On 10 August 2002 the forensic examination was completed. According to its report, D. died from “asphyxia caused by water blocking the airways as a result of drowning”. The expert noted that there was a bruise on D.’s head and a wound on his lower lip. He concluded that those injuries, which might have been caused by blunt objects, had been sustained shortly before D. had died, but had no relation to his death. It was also noted that D. had been moderately drunk at the time of his drowning.
27. On 25 October 2002 the Vovchansk Town Court (“the Vovchansk Court”) set aside the investigator’s decision of 19 July 2002 not to institute criminal proceedings regarding the death. Its criticism mainly concerned the absence of any conclusion as to the possible connection between the fight and the subsequent drowning of the applicant’s son. Furthermore, the court noted that the case file did not contain the post mortem report referred to.
28. On 21 November 2002 the VTPO again refused to open a criminal case, given that while D.’s death had indeed been preceded by the fight, there had been no causal link between those two events. The investigator relied, in particular, on the statements of the youths with whom D. and L. had had the fight, who claimed to have stayed in their camp all night and not have seen or heard anything suspicious. They explained their hasty departure from the campsite early in the morning on 1 July 2002 by having panicked following the discovery of D.’s body in the lake.
29. On 12 August 2003 another forensic medical examination regarding D.’s death was completed, this time undertaken as part of the criminal investigation into hooliganism. It concluded that D. had died as a result of drowning, some eight to twelve hours before the examination of his body (conducted at 8.50 a.m. on 1 July 2002). The following injuries to the body had been documented: a bruise on the left of the forehead, a bruise on the lower lip, and an abrasion on the chin. All these injuries were classified as light and estimated to have been inflicted by solid blunt objects shortly before D. died. However, no causal link was established between those injuries and the death. After D. had sustained them, he would have been able to act consciously and move. Lastly, the report noted that, at the time of his death, D. had been moderately drunk.
30. On 24 November 2003 the Vovchansk Court quashed the prosecutor’s decision of 21 November 2002, refusing to institute criminal proceedings concerning D.’s death as being premature and based on an incomplete and perfunctory investigation in disregard of the court’s earlier guidelines. It noted, in particular, the following:
“... [The applicant’s] complaints and submissions have not in fact been verified, additional explanations have not been taken from specific [witnesses], and the necessary documents, in particular, the forensic medical reports regarding the nature and location of D.’s injuries and the cause of his death, as well as the results of the operational enquiry measures, have not been studied. ... In the court’s opinion, the [decision] complained of is premature and not based on thoroughly verified data, while the arguments contained therein are unconvincing.”
31. On 24 December 2003 the VTPO once again refused to initiate criminal proceedings stating that there was no case to answer. This decision was based on the lack of any established connection between the fight and the resulting injuries on the one hand and the drowning of D. on the other. The investigator relied on the statements of the witnesses (the deceased’s friends and some of those with whom D. and L. had been fighting) and the findings of the forensic medical reports.
32. The applicant unsuccessfully challenged that refusal before the domestic courts at three levels of jurisdiction. On 12 March, 20 May 2004 and 10 February 2005 respectively, the Vovchansk Court, the Kharkiv Regional Court of Appeal (“the Court of Appeal”) and the Supreme Court, dismissed her complaint in that regard with succinct reasoning that it was overall unsubstantiated.
33. Meanwhile, on 6 February 2004, the VTPO prosecutor had disciplined the investigator in charge of the hooliganism case (see paragraph 24 above) for the latter’s failure to comply with his superiors’ guidelines and to duly report on the progress of the investigation since the institution of the proceedings on 21 June 2002.
34. On 25 August 2005 the General Prosecutor’s Office (“the GPO”) quashed the investigator’s decision of 24 December 2003 (see paragraph 31 above) as premature. The parties did not provide a copy of this decision of the GPO to the Court.
35. On 24 September 2005 the VTPO again refused to institute criminal proceedings in respect of D.’s death. The reasoning of this decision was identical to that of the earlier one of 24 December 2003, except that the investigator inserted a new paragraph with his critical assessment of the statements of D.’s friends about having heard some stifled cries. The investigator considered them to be too vague and not at variance with the version that the death had been an accident. He also noted that there appeared to have been no witnesses to the death.
36. The applicant challenged that decision before the Vovchansk Court. Following several dismissals of her complaint on procedural grounds, it was finally accepted for examination.
37. On 16 March 2006 the Moskovskyy District Police Department in the Kharkiv Region terminated the criminal proceedings regarding the hooliganism offence (instituted on 21 July 2002), having found that there was no indication of a crime. The investigator noted, in particular, that the fight in question had not breached public order, having taken place in a forest where it could not have disturbed anybody. Furthermore, it had resulted in light injuries found to have had no connection to D.’s death.
38. On 16 January 2008 the case regarding D.’s death was transferred to the Velykyy Burluk Town Court (hereafter “the Velykyy Burluk Court”), as all the judges of the Vovchansk Court had already sat in it.
39. On 26 February 2008 the Velykyy Burluk Court quashed the VTPO’s decision of 24 September 2005 (see paragraph 35 above), having found that the additional investigation undertaken pursuant to the GPO’s ruling of 25 August 2005 had failed to comply with the latter’s instructions despite their binding nature. The court also reiterated, in substance, the criticism which had earlier been expressed by the Vovchansk Court in its ruling of 24 November 2003 (see paragraph 30 above).
40. The Velykyy Burluk Court also specified the measures to be undertaken in the course of the additional investigation, such as the further questioning of N. and G. on account of the noises and cries they claimed to have heard after D.’s departure, as well as the questioning of L., who had not been examined at all in that regard. Furthermore, the investigation had to identify three persons who had been present during the on-site inspection on 1 July 2002 by the operational enquiry group without disclosing their identities and without their presence having been recorded in the police report. Referring to the confirmed threats the teenagers had made about their influential relatives to the police officers during their apprehension, the court noted that the applicant had in fact reasons to fear that those persons could have been relatives in high-ranking posts in law-enforcement authorities. Her allegation that the body of her son had been put back into the water after L. had already brought it out to the shore had to be verified as well. Moreover, the origin of all the injuries on D.’s body remained to be clarified, given the witnesses’ statements that not all of them had resulted from the fight of 30 June 2002. It was also necessary to identify and question the two fishermen who had been near the camp of D. and his friends during the night of 30 June 2002, the teenagers who had allegedly enquired in a sarcastic tone about the search for D., as well as the police officer who had arrived at the site first, who had waited there alone for his colleagues to arrive and might therefore have been able to offer an explanation as to how the body had ended up back in the lake. The court also instructed the investigation to find out whether there had been any plankton from the lake in issue in D.’s lungs. Lastly, it was necessary to clarify the outcome of the investigation initiated on 21 July 2002 in respect of the fight (the court was apparently not aware that the investigation in question had been terminated on 16 March 2006 – see paragraphs 24 and 37 above).
41. The Velykyy Burluk Court underlined that all the aforementioned instructions had already been given by the GPO in the ruling of 25 August 2005, but had remained unlawfully ignored.
42. On 23 July 2008 the Vovchansk police department, to which the VTPO had apparently forwarded the case, issued a decision refusing to institute criminal proceedings regarding D.’s death. In addition to the reasoning, which had already been given in the VTPO’s decision of 24 September 2005 (see paragraph 35 above), the investigator stated the following. He had interviewed one of the police officers and one of the attested witnesses who had arrived at the scene together with the other officials for the on-site inspection on the morning of 1 July 2002 (see paragraphs 15-16 above). The officer had confirmed what had already been stated in the report (ibid.). The attested witness had submitted that the body had indeed been found floating in the water and that he had personally taken it to the shore in the presence of the other participants of the inspection. Lastly, the investigator referred to the accident report issued by the rescue station staff (see paragraph 18 above), without commenting on it. A general conclusion was reached that D.’s drowning had been an accident.
43. On 22 June 2010 the Vovchansk Court upheld the above decision.
44. On 22 November 2010 the Court of Appeal quashed the aforementioned ruling in allowing the applicant’s appeal and remitted the case to the Vovchansk Court for fresh examination. It noted that the first-instance court had incorrectly adjudicated the case in the applicant’s absence. Furthermore, it had failed to duly assess the lawfulness of the impugned decision of 23 July 2008. The Court of Appeal noted, in particular, that the Vovchansk Court had left the incompleteness of the investigation into D.’s death without any legal assessment, having ignored the applicant’s argument in that regard.
45. On 28 February 2011 the Vovchansk Court quashed the investigator’s decision of 23 July 2008 (see paragraph 42 above) and ordered an additional investigation. It reasoned its ruling as follows:
“... The pre-trial investigation authority implemented the guidelines of the ... General Prosecutor’s Office of 25 August 2005 ... and ... the Velykyy Burluk Court ... of 26 February 2008 in an incomplete and perfunctory manner.
As can be seen from the submitted materials, the pre-trial investigation authority failed to verify the arguments about the possible connection between the hooliganism-driven beating of [D.] on the night of 30 June 2002 and his subsequent death. Thus, while on 21 July 2002 a criminal investigation ... was instituted into the fact of hooliganism, the case file regarding the investigation [into the death] does not contain any information about its outcome.
Furthermore, the pre-trial investigation authority did not verify [the applicant’s] argument that her son could not have died swimming given that he had been afraid of water and could not swim and that the depth of the lake at the place where the body had been found was 0.6 metres.
Moreover, not all the participants of the fight have been identified or questioned. This concerns, in particular, those nicknamed U. and T., who might have been involved in the events that took place on 30 June 2002 ...
Following the study of the materials on the basis of which the impugned decision was taken [not to institute criminal proceedings], it has been established that the investigator did not fully implement the guidelines of the judge and the prosecutor and that the additional investigation was incomplete...”
46. On 25 March 2011 the Vovchansk police department issued another decision refusing to institute criminal proceedings regarding D.’s death with concise reasoning that it had been an accident. On 2 September 2011 the Kharkiv Regional Prosecutor quashed this decision as unlawful and remitted the case to the VTPO for additional investigation which is apparently still ongoing.
47. The relevant legal provisions can be found in Myronenko v. Ukraine, no. 15938/02, §§ 28 and 29, 18 February 2010.
VIOLATED_ARTICLES: 2


ITEMID: 001-95353
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KAMBERI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 4. The applicant was born in 1949 and lives in Gostivar.
5. In 1968 the then Assembly of the Municipality of Gostivar expropriated, inter alia, a plot of a construction land (“the property”) from the applicant's late father with the stated aim of building a nursery school. Compensation was to be determined by a separate decision.
6. On 7 January 1996 the applicant requested the then Gostivar Municipal Court, in non-contentious proceedings, to award him compensation according to the market value of the property. Three other persons joined these proceedings.
7. On 22 September 1999 the Gostivar Court of First Instance (“the first-instance court”) upheld the applicant's request and ordered the Municipality of Gostivar to compensate him for the expropriated property. It further dismissed his request against the State for lack of standing. On 24 February 2000 the Skopje Court of Appeal quashed that decision arguing, inter alia, that the lower court had incorrectly specified the award.
8. Between 25 January 2001 and 19 November 2003 the Skopje Court of Appeal ordered retrial on three occasions.
9. On 20 June 2005 the first-instance court awarded the applicant compensation in the amount specified by an expert and ordered its joint payment by the State and the nursery school. It also ordered that the latter reimburse the applicant for his legal costs.
10. On 30 November 2005 the Court of Appeal upheld the lower court's decision in respect of the awarded compensation and remitted the remainder for a fresh consideration.
11. On 26 January 2006 the Solicitor General submitted an appeal on points of law before the Supreme Court. On 14 February 2006 the applicant submitted his observations in reply.
12. On 10 February 2006 the applicant sought enforcement of the Appeal Court's decision of 30 November 2005. He proposed that the award be transferred to his bank account. On 24 February 2006 the first-instance court requested the applicant to pay the court fees.
13. On 21 March 2006 the public prosecutor lodged a request for protection of legality with the Supreme Court.
14. On 14 April 2006 the applicant again requested enforcement of his claim established by the court decision of 30 November 2005. His request was granted on 19 April 2006.
15. On 22 June 2006 the applicant and the State concluded an out-of-court settlement (вонсудска спогодба) (“the settlement”) under which the State undertook to recognise the applicant's title to the property (право на сопственост); to register him as a co-owner in the land registry; and to withdraw extraordinary remedies submitted on its part. The applicant agreed to withdraw his request for enforcement and to refrain from claiming any payment in respect of the above decisions.
16. The enforcement proceedings were terminated by a decision of the Skopje Court of First Instance of 13 September 2006.
17. Notwithstanding the settlement, the request for the protection of legality was not withdrawn. On 18 April 2007 the Supreme Court granted this request and quashed the lower courts' judgments in respect of the awarded compensation. The court dismissed the applicant's objection that the above request should be rejected as the parties have concluded the settlement. It held that the lower courts did not give sufficient reasons in their judgments and that it was not clear who was required to pay the compensation. The court, however, rejected the appeal on points of law lodged by the Deputy Solicitor General as it found that both parties withdrew their submissions stating that they have settled.
18. The proceedings resumed before the first-instance court. On a hearing held on 13 July 2007, the applicant confirmed that the property had been restored to him and withdrew his compensation claim. The first-instance court acknowledged the withdrawal.
VIOLATED_ARTICLES: 6


ITEMID: 001-104937
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF JUHAS ĐURIĆ v. SERBIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;No violation of Art. 34;Remainder inadmissible
JUDGES: Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1966. He is a practising lawyer and lives in Subotica, Serbia.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 19 May 2004 the Police Department in Subotica appointed the applicant to represent D.G., a suspect in a preliminary criminal investigation, during his questioning by the police. The applicant provided no legal assistance to the suspect beyond this hearing.
8. On the same day the applicant filed a request with the police, seeking payment of his fees in accordance with the Tariff issued by the Bar Association.
9. Having received no response, on 13 September 2004 the applicant lodged a civil claim with the Municipal Court in Subotica, requesting that his fees be covered (7,800 Serbian Dinars, “RSD”, approximately 105 Euros, “EUR”, at the time, according to the exchange rate of the National Bank of Serbia).
10. On 21 April 2005, the Municipal Court rendered a judgment in default (presuda zbog izostanka) in favour of the applicant. It thereby ordered the Police Department to pay him a total of RSD 18,800 (approximately EUR 230 at the time), on account of his fees and litigation costs, plus statutory interest.
11. On 15 August 2005 the District Court in Subotica quashed this judgment on appeal.
12. On 23 January 2006 the Municipal Court declared itself as lacking jurisdiction ratione materiae to consider the applicant’s claim on its merit (oglasio se stvarno nenadležnim za postupanje) and ordered the applicant to pay RSD 10,500 for litigation costs (approximately EUR 120 at the time).
13. On 29 September 2006 the District Court confirmed this decision on appeal and it thus became final.
14. Both the Municipal Court and the District Court reasoned, inter alia, that the fees in question were related to a preliminary criminal investigation, which was a specific kind of administrative proceedings, not a formal criminal procedure, and concluded that his claim was therefore not for the civil courts to determine. The police themselves, however, had had an obligation to decide upon the applicant’s request.
15. On 13 November 2006 the applicant paid the litigation costs imposed against him.
16. On 23 January 2008, on the grounds that he had misdirected his payment of 13 November 2006, the applicant was ordered once again to pay the litigation costs at issue plus statutory interest. By March 2009 the applicant therefore paid another RSD 18,068 (approximately EUR 190 at the time).
17. On 31 July 2006 the Police Department in Subotica appointed the applicant to represent G.I., D.Č., V.Đ., B.Đ. and D.Đ., all suspects in a preliminary criminal investigation, during their questioning by the police.
18. On the same day the applicant filed a request with the police, seeking payment of his fees in accordance with the Tariff issued by the Bar Association (in total RSD 12,960, approximately EUR 155 at the time).
19. On 6 August 2008, 24 April 2009, 19 May 2009 and 1 June 2009 the Police Department in Subotica appointed the applicant to represent S.S., B.B., A.S., and D.J., all suspects in a preliminary criminal investigation, during their questioning by the police.
20. On 11 August 2008, 11 May 2009, 21 May 2009 respectively the applicant filed a request with the police, seeking payment of his fees in accordance with the Tariff issued by the Bar Association (in total RSD 48,000, approximately EUR 500 at the time).
21. Article 193 § 1 provides, inter alia, that “criminal procedure costs” (troškovi krivičnog postupka) shall include all expenses incurred in connection with criminal proceedings, “from their commencement until their conclusion”.
22. Article 193 § 6 provides that the costs incurred in the course of a preliminary criminal investigation (pretkrivični postupak), which concern fees to be paid to a police-appointed lawyer, shall be covered by the police themselves.
23. Article 196 provides, inter alia, that a defendant who has been convicted shall bear the costs of the criminal proceedings.
24. Article 197 § 1 provides, inter alia, that should criminal proceedings (krivični postupak) against a defendant be discontinued, the indictment be rejected, or the defendant be acquitted, the defence lawyer’s fees shall be covered from the court’s budget.
25. Article 197 § 6 provides, inter alia, that should the criminal court reject a claim for costs made under Article 197 § 1, or fail to rule thereupon within a period of three months, the defendant and his or her lawyer shall have the right to file a separate claim before the civil courts.
26. Article 225, inter alia, sets out the general duties of the police during a preliminary criminal investigation.
27. Article 226 §§ 7-9, inter alia, regulates the questioning by the police of persons suspected of having committed a crime, whose statements may, under certain conditions, be used as evidence in the subsequent criminal proceedings.
28. Article 243 provides, inter alia, that a formal judicial investigation shall commence upon the adoption of a specific judicial decision to this effect.
29. Costs covered by the police in connection with Article 225 of the Criminal Procedure Code cannot be considered as criminal procedure costs within the meaning of Article 193 thereof (see Komentar Zakonika o krivičnom postupku, Prof. dr Tihomir Vasiljević and Prof. dr Momčilo Grubač, IDP Justinijan, Belgrade, 2005, p. 338, paragraph 2).
30. General duties of the police during a preliminary criminal investigation are not formally regulated by the Criminal Procedure Code, the exception to this rule being those activities referred to in Article 226 §§ 7-9 (ibid., p. 397, paragraph 8).
31. The investigating judge held, inter alia, that the defendant against whom the charges had been dropped was not entitled to the full recovery of his lawyer’s fees from the budget of the District Court in Subotica. Specifically, he noted that since a part of these fees concerned legal services rendered during a preliminary criminal investigation it was up to the police themselves to cover any such costs (the defendant’s lawyer in the domestic proceedings being the applicant in the present case before the Court).
32. Article 1 provides, inter alia, that the Civil Procedure Act shall be applied to all property-related/pecuniary matters (imovinskopravni sporovi), except those where the law specifically provides for another procedure.
33. Article 16 provides, inter alia, that should a court establish its lack of jurisdiction ratione materiae it shall, ex officio, reject the claim in question regardless of the stage of the proceedings.
34. Article 12 § 2 (a) provides that Municipal Courts shall have jurisdiction to rule in respect of all property-related/pecuniary claims (imovinskopravnim zahtevima) unless they fall within the competence of the Commercial Courts.
35. Article 17 § 1 (z) provides that the Supreme Court shall be competent to assess the lawfulness of all final administrative decisions adopted by the State, unless specifically provided otherwise by law.
36. Article 17 § 2 (v) provides that the Supreme Court shall resolve any conflicts of jurisdiction (rešava sukobe nadležnosti) between the lower courts.
37. Article 4 provides that a court of law cannot refuse to consider a claim in respect of which its jurisdiction has been established by law or the Constitution.
38. Article 208 § 1 provides, inter alia, that in simple matters an administrative body shall be obliged to issue a decision within one month as of when the claimant had lodged his or her request. In all other cases, the administrative body shall render a decision within two months thereof.
39. Article 208 § 2 enables the claimant whose request has not been decided within the periods established in the previous paragraph to lodge an appeal as if his or her request has been denied. Where an appeal is not allowed, the claimant shall have the right to directly initiate an administrative dispute before the competent court of law.
40. Article 6 provides that an administrative dispute may only be instituted against an “administrative act”, which is, inter alia, an act/decision adopted by a State body in the determination of one’s rights and obligations concerning “an administrative matter”.
41. Article 9 § 1 (1) provides that an administrative dispute may not be instituted against an “act”/decision rendered in matters where judicial redress has been secured outside of the administrative disputes procedure.
42. Articles 8 and 24 provide, inter alia, that a claimant who lodged a request with an administrative body shall have the right to institute an administrative dispute before a court in the following situations:
(i) Should an appellate body fail to issue a decision upon his or her appeal within sixty days the claimant may repeat the request, and if the appellate body declines to rule within an additional period of seven days the claimant may institute an administrative dispute.
(ii) In accordance with the conditions set out under (i) above, should a first instance administrative body fail to issue a decision and there is no right to an appeal, the claimant may directly institute an administrative dispute.
(iii) Should a first instance administrative body fail to issue a decision upon the claimant’s request within sixty days, in matters where an appeal has not been excluded, the claimant shall have the right to lodge the said request with the appellate administrative body. Should that body render a decision, the claimant shall have the right to institute an administrative dispute against it, and should it fail to rule the claimant shall be entitled to institute an administrative dispute in accordance with the conditions set out under (i) above.
43. Article 41 § 5 provides that where an administrative dispute has been brought under Article 24 the court shall, should it rule in favour of the claimant, order the administrative body in question to decide upon the claimant’s original request.
44. Articles 63 provides, inter alia, that should the said administrative body fail to comply with this instruction within a period of thirty days, the claimant shall be entitled to request the enforcement of the court’s decision. Should the administrative body fail to respond to this request within a period of seven days, the claimant may petition the court to decide his case on the merits, i.e. to adopt the necessary decision in the administrative body’s stead. The court shall then request information from the administrative body as to the reasons for its failure to comply with the court’s order. Should the administrative body fail to respond within a period of seven days or should its explanation fail to satisfy the court, the court itself shall decide on the claimant’s original request.
45. Articles 41 §§ 1-4, 61 and 62 provide details as regards other situations in which a claimant’s request may be decided on its merits.
46. There is no deadline for the institution of an administrative dispute in accordance with Article 24 of the Administrative Disputes Act (see Komentar Zakona o opštem upravnom postupku i Zakona o upravnim sporovima, Svetislav Vuković, Poslovni biro, Belgrade, 2006, p. 219).
47. In six judgments rendered between 8 December 1999 and 9 April 2009 the Supreme Military Court and the Supreme Court of Serbia, respectively, ruled on the merits of administrative disputes concerning pension entitlements, the right to stand for elections, property-related municipal decisions, disability benefits and the proposed change in the registration of persons authorised to represent political parties (see Up. br. 2530/03, Už. 133/92, Už. 11/08, U.br. 1739/08, U.br. 48/08 and U.br. 1093/02).
NON_VIOLATED_ARTICLES: 34
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4680
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: GONTARSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish national, born in 1954 and living in Włocławek.
A.
1. Background of the case
Since 1985 the applicant has been suffering from a schizo-affective psychosis. The condition of her health worsened at the end of 1991, when she became pregnant.
During her pregnancy the applicant suffered from deep depression. After the birth of her child, on 20 July 1992, the applicant was placed in a psychiatric hospital for seven days. Her infant daughter was temporarily taken into public care.
Later, the applicant consented to placing her daughter in a foster home. On 12 November 1992 the Włocławek District Court (Sąd Rejonowy) made an order restricting the applicant's parental rights and placing her daughter with the foster family S. The S. family was awarded custody of the child.
From November 1992 to April 1993 the applicant received psychiatric treatment. In February 1993 she decided that she should re-assume responsibility for the care of her daughter. She submits that after she had mentioned it to the S. family, they started to hinder her in maintaining contact with her daughter.
2. Proceedings relating to the applicant’s request for her parental authority to be restored
On 22 April 1993 the applicant requested the Lipno District Court to restore her full parental authority. Since then, according to her submissions, her contacts with her daughter became even more difficult. The applicant submits that from this time on, the foster family started to express hostility towards her. For instance, during one of her visits in their home, the police had to intervene.
On 22 July 1993 the applicant requested the Lipno District Court to make an interim order ruling on the terms of her access to her daughter. Apparently, the court did not address the issue at that time.
On 19 October 1993, the Lipno District Court dismissed the applicant's request to restore her full parental authority. The court relied on an expert report according to which the applicant's mental state was still unstable and constituted an obstacle to restoring her parental rights. The expert had not, however, seen any obstacles to the applicant maintaining personal contact with her daughter.
On 24 March 1994, upon the applicant's appeal, the Włocławek Regional Court (Sąd Wojewódzki) quashed the first-instance decision and remitted the case to the Lipno District Court.
On 8 June 1994 the applicant again requested the court to give an interim order ruling on the terms of her access to her daughter. On 11 June 1994, during a hearing, she upheld her request and specified that she wished to see her daughter twice a month in her own or her mother’s residence.
On 11 July 1994 the Lipno District Court issued an interim order stipulating that the applicant should be allowed to take her daughter to her place of residence, twice a month for two hours.
Apparently, in the meantime, the Lipno District Court had ordered that fresh expert evidence be obtained, in particular from experts in psychiatry and psychology. On 18 August 1994 a psychiatrist prepared a report. On 23 February 1995 experts in psychology and pedagogy from the Family Diagnostics Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny) prepared another report.
On 26 April 1995 the Lipno District Court dismissed the applicant's request for her parental authority to be restored. It did, however, alter the manner in which the applicant's parental rights were restricted. Relying on the expert reports and the parties’ submissions, the court found that the applicant's state had improved and that it was desirable to unite the family. Therefore, it ordered the termination of the foster family’s care, returned the child to the applicant and appointed a court guardian to supervise the applicant in her exercise of custody rights. At the same time, taking into account the interests of the child who had developed certain emotional ties with the foster family, the court fixed a schedule of visits and access between the S. family and the child. The former foster family was allowed to have access to the child on weekends, with the option that the child could stay with them overnight. The applicant did not appeal against this decision.
On 16 November 1995, upon the foster family’s appeal, the Włocławek Regional Court partly amended the first-instance decision, ruling that the child’s domicile should coincide with her mother’s domicile, and upheld the remainder of the decision.
3. Proceedings concerning the former foster family’s contact with the child
On an unspecified date in November 1996, the applicant requested the Włocławek District Court to alter the arrangements in respect of the S. family's contact with her daughter, as she considered this contact to have a detrimental influence on her child. In particular, she argued that the possibility of spending weekends with her daughter constituted an essential element of her family life.
A first hearing was held on 25 November 1996.
On 28 November 1996 the court decided that evidence from experts at the Family Diagnostics Centre be obtained in order to determine the scope of the emotional ties between the former foster family and the child, and whether there was a need to maintain that contact.
On 12 March 1997 the experts submitted their report to the court.
On 2 June 1997 the court held a hearing.
On 9 June 1997 the Włocławek District Court decided that contact between the former foster family and the child should be maintained; however, it placed further restrictions on S.’s access to her. Consequently, the former foster family was allowed to see the child twice a month in the presence of the applicant and a court custody guardian, in the child’s residence. The court relied on the expert report and the parties’ submissions.
On an unspecified date the applicant filed an appeal against this decision but did not state whether she sought to have it altered or quashed and remitted to the court of first instance.
On 9 September 1997 the Włocławek District Court ordered the applicant to indicate the relief she sought, on pain of her appeal being rejected.
In her reply of 23 September 1997 the applicant informed the court that “she was indifferent about the way the appellate court would alter the contested decision”.
On 6 November 1997 the Włocławek Regional Court rejected the applicant's appeal for her failure to comply with the procedural requirements laid down by the Code of Civil Procedure in respect of such appeals.
B. Relevant domestic law
Section 109 of the Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) provides as follows:
"1. If the interests of a child are endangered, the court shall give an appropriate order.
2. The court may, in particular: …
…
5) make an order placing a minor in a foster home or in a public care centre."