ITEMID: 001-59480
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF K.S. v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 8. In May 1991 the applicant was dismissed, with six months’ notice, from his post as tax inspector, and immediately suspended from office. He was deemed unable to perform his duties adequately and found to have continuously failed to comply with, or to have neglected, his obligations as a civil servant. His appeals were rejected, in the last resort by the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen).
9. In February 1992 the Unemployment Fund (työttömyyskassa, arbetslöshetskassan) for Lawyers and Legal Associates refused to pay the applicant a salary-related unemployment benefit for the period 28 November 1991 - 8 January 1992. The Fund had regard to an opinion from the Employment Commission (työvoimatoimikunta, arbetskrafts-kommissionen) of Vaasa which concluded that the applicant had himself caused his dismissal. Under domestic law the Unemployment Fund was bound by the Employment Commission’s opinion. The applicant had received a copy thereof in the beginning of December 1991.
10. The applicant appealed to the Board for Unemployment Benefits (työttömyysturvalautakunta, arbetslöshetsnämnden), essentially contesting the Employment Commission’s opinion, as adhered to by the Unemployment Fund in an unsigned computer-printed decision. The appeal was first processed by the Unemployment Fund which requested the Employment Commission to comment on it. Having received the Employment Commission’s opinion, the Unemployment Fund forwarded it to the Board for Unemployment Benefits together with the appeal itself and the Unemployment Fund’s own opinion.
11. The Employment Commission’s opinion referred to the Supreme Administrative Court’s decision upholding the applicant’s dismissal. The opinion further stated that no such evidence had been presented which would have warranted a change of the Employment Commission’s earlier opinion. The Unemployment Fund’s opinion referred to the earlier stages of the proceedings and noted that unemployment funds were authorised to dispatch electronically signed decisions. The opinion further stated that no evidence had been presented which could be considered by the Unemployment Fund and that, accordingly, its decision should stand.
12. None of the above opinions were communicated to the applicant in the proceedings before the Board for Unemployment Benefits. In its decision of 31 January 1994 the Board summarised the facts, the applicant’s appeal and the opinions of the Employment Commission and the Unemployment Fund. The Board then dismissed the appeal, considering that a person who had himself caused the termination of his employment was not entitled to unemployment benefits for a period of six weeks. As the applicant’s suspension from office had resulted in his dismissal, he was deemed to have caused the termination of his employment himself. He was therefore not entitled to unemployment benefits for the period in question. The Board relied on section 9 of the Act on Unemployment Benefits (työttömyysturvalaki, lagen om utkomstskydd för arbetslösa 602/1984).
13. The applicant appealed further to the Insurance Court (vakuutusoikeus, försäkringsdomstolen). In an opinion requested by the Insurance Court the Unemployment Fund considered that no such evidence had been presented which it had been unaware of when making its decision of 1992. Accordingly, that decision should be upheld. The Unemployment Fund’s opinion was not communicated to the applicant in the course of the proceedings. The Insurance Court also obtained from the Supreme Administrative Court its decision regarding the applicant’s dismissal.
14. In its decision of 9 March 1995 the Insurance Court upheld the decision of the Board for Unemployment Benefits, referring to the reasons stated therein.
15. Section 9, subsection 1, of the Act on Unemployment Benefits stipulates that a person who causes the termination of his or her employment shall not be entitled to an unemployment benefit for a period of eight weeks. According to established practice, the period is shortened to six weeks in certain circumstances. If a dismissal has been challenged the withdrawal of unemployment benefits should normally be based on a decision which has acquired legal force (section 9, subsection 2). The competent employment commission shall issue an opinion in respect of someone’s entitlement to unemployment benefits. Such an opinion is binding on the competent unemployment fund (section 3, subsection 2).
16. According to section 39, subsection 4, and section 42, subsection 4, an appellant shall be given an opportunity to be heard in a matter before the Board for Unemployment Benefits or the Insurance Court, if such new evidence is presented of which the appellant is not aware.
17. At the relevant time the Insurance Court applied mainly the principles derived from the rules of procedure of the courts of appeal. Insofar as relevant, the Code of Judicial Procedure provided as follows. According to Chapter 25, sections 17 to 20, the opposing party was to be heard in proceedings before appellate courts. According to Chapter 25, section 19, subsection 1, a copy of the observations of the opposing party was to be forwarded to the appellant on request. According to Chapter 26, section 6, the court of appeal was to request written observations from the parties when it obtained evidence on its own initiative and such evidence could affect the decision in the case, unless such hearing of the parties was manifestly unnecessary.
18. From 1 April 1999 onwards the Insurance Court has been applying the Act on Administrative Judicial Procedure (hallintolainkäyttölaki, förvaltningsprocesslagen 586/1996) except with regard to extraordinary proceedings, in respect of which special rules apply (section 9 of the Act on the Insurance Court, as amended by Act no. 278/1999).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57867
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF FREDIN v. SWEDEN (No. 2)
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland
TEXT: 6. Mr Anders Fredin, an agricultural engineer, is a Swedish citizen. He lives at Grödinge, Sweden.
The applicant and his wife own land in the municipality of Botkyrka, on which there is a gravel pit. They held a permit to extract gravel from the pit from 14 April 1983 until 1 December 1988, when the permit was revoked; it had previously been extended on the understanding that the activities in question would be terminated and restoration work carried out on the land by the latter date.
The revocation of the permit, and the lack of a court remedy against this and a related measure, gave rise to an earlier case before the Court, which held in a judgment of 18 February 1991 (Series A no. 192) that there had been a violation of Article 6 para. 1 (art. 6-1) of the Convention, but not of Article 1 of Protocol No. 1 (P1-1) taken either alone or in conjunction with Article 14 (art. 14+P1-1) of the Convention.
7. Following the revocation on 1 December 1988, the applicant applied to the County Administrative Board (länsstyrelsen) for a special extraction permit, so that he could comply with a plan adopted by the Board on 9 March 1987 for the restoration of the pit. The application was dismissed by the Board on 14 March 1989 and an appeal by the applicant against this decision was rejected by the Government (the Ministry of Environment and Energy) on 21 June 1989.
8. The applicant, seeking the annulment of the Government’s decision of 21 June 1989, applied to the Supreme Administrative Court (regeringsrätten) for review under the 1988 Act on Judicial Review of Certain Administrative Decisions (lagen om rättsprövning av vissa förvaltningsbeslut 1988:205 - "the 1988 Act"). He alleged that, by denying him a special extraction permit, the competent authorities had prevented him from taking measures to comply with the restoration plan; the refusal contravened the principle of objectivity enshrined in Chapter 1, section 9, of the Instrument of Government (regeringsformen, which forms part of the Constitution). Moreover, contrary to the principle of proportionality and section 3 of the 1964 Nature Conservation Act (naturvårdslagen 1964:822), the authorities had gone beyond what was necessary in the interests of nature conservation, as well as other public and private interests. Their decision was also incompatible with the aim of nature conservation laid down in section 1(3) of the Act. Finally, the only reply given by the County Administrative Board to his question as to what steps he should take had been that the time-limit for restoration of the pit had expired; he had thus been the victim of a denial of justice.
In addition, the applicant asked the Supreme Administrative Court to hold an oral hearing in his case.
9. In a decision (beslut) of 13 December 1990, the Supreme Administrative Court, sitting with five judges, dismissed the latter request by three votes to two, finding that there were no grounds under section 9 of the Administrative Procedure Act 1971 (förvaltningsprocesslagen 1971:291; see paragraph 14 below) for holding a hearing. As to the merits, on the basis of written observations submitted by the applicant and the County Administrative Board, it concluded unanimously that the Government’s decision was not unlawful and confirmed it.
According to the minutes of deliberations on 30 October 1990, the two judges who were in favour of a hearing had regard in particular to the fact that the 1988 Act had been enacted in order to ensure that Swedish law complied with the Convention standards and also with the Strasbourg Court’s case-law in this area (see paragraph 11 below). They noted moreover that certain essential points of Mr Fredin’s case remained unclear, since there was disagreement between him and the County Administrative Board as to whether the above-mentioned restoration plan (see paragraphs 7 and 8 above) required the further extraction of gravel from the pit or simply the moving of gravel within it. In addition they drew attention to the lack of clarity in Mr Fredin’s plea against the Government.
The same two judges considered that the Government, like the applicant and the County Administrative Board, should have submitted written observations on the case; apart from their reasons for rejecting the applicant’s appeal, they should have given their views on the above-mentioned issue of the need for further extraction of gravel and on whether their decision meant that Mr Fredin had been prevented from restoring the pit in the prescribed manner after 1 December 1988.
10. It was not possible under Swedish law for the applicant to appeal from the Supreme Administrative Court’s decision of 13 December 1990.
11. The 1988 Act was introduced as a result of the European Court’s findings in several cases, notably against Sweden, that lack of judicial review of certain administrative decisions infringed Article 6 para. 1 (art. 6-1) of the Convention (see, for instance, the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, pp. 29-31, paras. 78-87; the Pudas v. Sweden and the Bodén v. Sweden judgments of 27 October 1987, respectively Series A no. 125-A, pp. 13-17, paras. 28-42, and Series A no. 125-B, pp. 39-42, paras. 26-37). It was enacted as a temporary law to remain in force until 1991; its validity was subsequently extended to the end of 1994.
12. Pursuant to section 1 of this Act, a person who has been a party to administrative proceedings before the Government or another public authority may, in the absence of any other remedy, apply to the Supreme Administrative Court, as the first and only judicial instance, for review of any decisions in the case which involve the exercise of public authority vis-à-vis a private individual. The kind of administrative decision covered by the Act is further defined in Chapter 8, sections 2 and 3 of the Instrument of Government, to which section 1 of the 1988 Act refers. Section 2 of the Act specifies several types of decisions which fall outside its scope, none of which is relevant in the instant case.
In proceedings brought under the 1988 Act, the Supreme Administrative Court examines whether the contested decision "conflicts with any legal rule" (section 1 of the 1988 Act). According to the preparatory work to the Act, as reproduced in Government Bill 1987/88:69 (pp. 23-24), its review of the merits of cases concerns essentially questions of law but may, in so far as is relevant for the application of the law, extend also to factual issues; it must also consider whether there are any procedural errors which may have affected the outcome of the case.
13. If the Supreme Administrative Court finds that the impugned decision is unlawful, it must quash it and, where necessary, refer the case back to the relevant administrative authority (section 5 of the 1988 Act, as applicable at the relevant time).
14. The procedure before the Supreme Administrative Court is governed by the Administrative Procedure Act 1971. It is in principle a written procedure, but the Supreme Administrative Court may decide to hold an oral hearing on specific matters if this is likely to assist it in its examination of the case or to expedite the proceedings (section 9).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90413
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BARABANSHCHIKOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1961 and lives in the village of Terbuny, Lipetsk Region.
7. On 7 August 2001 the applicant bought sugar from Ms D. He paid with a hundred-dollar note. When Ms D. attempted to exchange the note for Russian roubles, she was told that the note was counterfeit. Ms D. lodged a complaint with the Lipetsk Town Police Department alleging that the applicant had given her a counterfeit note.
8. On the same day police officers stopped the applicant’s car and arrested him on suspicion of fraud and use of counterfeit currency. During his arrest the applicant attempted to pass several dollar notes to his friend, who returned the notes to the applicant following an order from a police officer.
9. The applicant was taken to the Oktyabrskiy District police station.
10. According to the applicant, he refused to answer the investigator’s questions and police officers hit him several times with rubber truncheons on the head, back and legs. The beatings alternated with admonitions to confess his guilt. A police officer twice punched the applicant on the ear and once hit him on both ears with both hands at the same time. The police officers continued hitting the applicant’s legs and head with rubber truncheons. The applicant tried to shy away from the punches, but once he bent forward on the chair, he received a series of truncheon blows to his chest and back. The applicant fell on the floor. The policemen continued hitting and kicking him on the back and legs. They forced the applicant to confess to the use of counterfeit currency.
11. The Government submitted that after the applicant had been taken to the police station, an investigator of the Lipetsk Town Police Department, Ms Z., had questioned him. The applicant confessed that he had been involved in the distribution of the counterfeit bills. In particular, he stated that he had bought three counterfeit hundred-dollar notes from an unidentified man and had asked his friend, Mr Ma., to exchange those notes for Russian roubles. Mr Ma. had told him that the notes were counterfeit and had refused to take them. On 7 August 2001 the applicant had bought sugar from Ms D. and had paid with one of those notes. The Government enclosed a copy of the applicant’s confession and the record of his questioning. At the bottom of his confession statement the applicant noted as follows:
“The confession statement is handwritten by me; no moral or physical pressure [was] applied”.
The Government noted that the applicant had been advised of his right to the services of counsel prior to the entry of his guilty plea. However, he had expressly waived that right, making a handwritten entry to that effect in the interrogation record.
12. On 8 August 2001 the applicant was placed in the temporary detention facility of the Oktyabrskiy District police station. According to the Government, on his admission to the facility the applicant signed an entry in a registration log that he had “a slash wound on his left forearm and a bruise on the left side of the body which he had inflicted on himself on 8 August 2001 in the Oktyabrskiy District police station” and that he had no complaints about the state of his health. The Government submitted an extract from the registration log copied by hand by a warder and certified by the head of the detention facility. According to the extract, submitted by the Government, on the same day the applicant was also examined by a prison otolaryngologist, who did not establish any signs of an ear trauma.
13. On 9 August 2001 the applicant was brought to the Oktyabrskiy District Prosecutor who authorised his placement in custody due to the gravity of the charges against him. The applicant complained to the prosecutor that the police officers had severely beaten him up after his arrest. On the same day, upon a prosecutor’s request, the police investigator, Ms Z., ordered a medical expert examination of the applicant. The relevant part of the investigator’s decision read as follows:
“On 9 August 2001, when [the applicant] was brought to the Lipetsk Town Prosecutor for an authorisation of his placement in custody, [he] complained that he had been beaten up by police officers. The police officers, who had arrested [the applicant], stated that during the arrest [the applicant] had lost consciousness twice.”
The investigator put several questions to an expert concerning possible injuries on the applicant’s body, their severity and nature.
14. Several hours later, at approximately 6.00 p.m., the medical expert examined the applicant. The relevant part of his report, issued on 13 August 2001, read as follows:
“2.1 When examined: [there is] a bruise of a crimson and bluish colour in the projection of the 9-11 ribs on the left side, along the scapular line; [it is] moderately saturated, has a shape of a stripe [and] measures 4 centimetres in width and 7.5 centimetres in length. In the projection of the right edge of the right shoulder-blade [and] on the right side of the parietal region of the head [there are] abrasions having an elongated form, [which are] covered with dry and somewhat raising crusts and [which] measure 0.3 centimetres in width and 3.5 centimetres in length and 0.2 centimetres in width and 0.8 centimetres in length, respectively. No other injuries were discovered.
Conclusions.
3.1. During the medical expert examination of [the applicant] the following injuries were discovered: a bruise on the left side of the lumbar region, abrasions on the right shoulder-blade and the right side of the parietal region of the head.
3.2. These injuries were caused as a result of traumas to the indicated body parts by a blunt firm object having a narrow, possibly elongated surface: cannot be considered as causing damage to health.
3.3. The type, character and intensity of those injuries allow the conclusion that they were caused within three to five days before the expert examination, thus not excluding the possibility that they were caused ... on 7 August 2001.
3.4. It is impossible to assess those injuries with a view to determining whether they were caused as a result of a fall or an impact (impacts) with a certain object, as the circumstances of the alleged “fall” are unknown.”
15. On 11 August 2001 a medical emergency team was twice called to the applicant following his complaints of severe heart pain and dizziness.
16. On the following day the applicant complained to warders of severe pain in the right side of the chest and back. An emergency team was called and he was taken to the Lipetsk Regional hospital. The applicant, without providing any further explanation, complained to the hospital doctors that he had been beaten up on 7 August 2001. The hospital report on the applicant’s medical examination stated the following:
“1. Consultation of a urologist. Diagnosis: an injury to the right kidney. Treatment of this injury in the urological department for ten days. Subsequent supervision by a surgeon at the place of residence.
2. Consultation of an otolaryngologist. Diagnosis: two-sided adhesive otitis media, posttraumatic, deformation of the external nose and nasal septum deviation. The patient has suffered from those two conditions for a long time and [they] were not caused by a head injury received approximately a week ago.
3. Consultation of a neurosurgeon. Diagnosis: Posttraumatic asthenic syndrome. [The applicant] needs supervision by a neurologist at the place of residence...”
The report also indicated that the applicant had bruises to the ribs and the right side of the back.
17. The applicant remained in the hospital until 22 August 2001.
18. On 19 October 2001 an assistant prosecutor of the Oktyabrskiy District of Lipetsk, Ms F., dismissed the applicant’s complaint about the beatings. The one-page decision read as follows:
“On 8 October 2001 the prosecutor’s office of the Oktyabrskiy District of Lipetsk received documents... pertaining to the inquiry into [the applicant’s] complaints about the beatings by police officers on 7 August 2001.
During the interview [the applicant] refused to give explanations about the beatings in the lawyer’s absence. After [he] was told that the lawyer’s presence was not necessary in this case, [the applicant] again refused to provide any explanations and did not substantiate his refusal.
Therefore, it is impossible to establish the circumstances of the event.
On the basis of the abovementioned.... [the applicant’s] request for institution of criminal proceedings against the police officers is dismissed because there is no indication of a criminal offence.”
19. On 19 November 2001 the Oktyabrskiy District Prosecutor ordered an additional inquiry into the applicant’s ill-treatment complaints.
20. Three days later the applicant unsuccessfully requested the investigator to authorise an additional medical expert examination and complained again about the beatings.
21. On 7 December 2001 the assistant prosecutor, Ms F., issued a report confirming the lawfulness of her decision of 19 October 2001. The assistant found as follows:
“While being questioned, [the applicant] explained that on 7 August 2001 he had been arrested... and brought to the Oktyabrskiy District police station in Lipetsk. At the police station he had been questioned by police officers, Mr S., Mr M. and Mr Ye. During the interrogation the police officers, Mr S. and Mr Ye., had beaten [the applicant], hitting him on the head, in particular on the ears and the back of the head, and on the right side of the back and kicking him in the groin. Mr M. had not taken part in the beatings. Following the beatings, [the applicant] had written a confession statement.
Mr S., who was questioned on the facts, stated that on 7 August 2001 he, together with Mr Ye. and Mr M., had talked to [the applicant] in an investigation room of the Oktyabrskiy District police station; [the applicant] had been arrested on suspicion of use of counterfeit notes. [The applicant] had voluntarily provided an explanation of the circumstances leading to his arrest. No moral or physical pressure had been applied to [the applicant]. After having talked to [the applicant], Mr S. and Mr Ye. had left, and Mr M. had stayed with [the applicant].
Mr Ye. gave identical statements.
Mr M. gave statements similar to those of Mr S. and Mr Ye., adding that after Mr S. and Mr Ye. had left the room, [the applicant] had been apprised of his [rights] guaranteed by Article 51 of the Russian Constitution and the circumstances mitigating the punishment had been explained to him. [The applicant] had expressed a wish to write a confession statement... pertaining to his crime: a sale of counterfeit US dollars.
During confrontation interviews in which [the applicant] participated... Mr S., Mr M. and Mr Ye. confirmed their statements.
As follows from expert report no. 785 issued on 13 August 2001, [the applicant] had a bruise to the left side of the back, abrasions to the right shoulder-blade and the right side of the head, which could not be considered as causing damage to [his] health.
As follows from statements by Mr P. and Mr A., police officers... from the Lipetsk Town Police Department, who had taken part in [the applicant’s] arrest on 7 August 2001, when [the applicant] had been brought to the Oktyabrskiy District police station, he had lost consciousness in the duty unit and had fallen from his own height on to the concrete floor. After he had regained consciousness, [the applicant] had explained that he had had a heart attack and had asked for medicines. They think that [the applicant] faked the fainting.
Mr Za., a police officer...from the Lipetsk Town Police Department, who had also taken part in [the applicant’s] arrest, gave identical statements.
During an examination of [the applicant] by an otolaryngologist... on 9 August 2001, no signs of an ear trauma were discovered.
There is entry no. 1110 made on 9 August 2001 in the registration log... of the temporary detention facility of the Lipetsk Town Police Department concerning [the applicant] in which he noted that “he had inflicted a slash wound to his own right forearm and a bruise to the left side of the body on 8 August 2001 in the Oktyabrskiy District police station. He had had no complaints about the state of his health.” That entry had been made by [the applicant]; [the fact] is corroborated by his signature.
In his statement made to the Oktyabrskiy District Prosecutor [the applicant] asked for an additional medical examination because he had sustained a kidney injury and had spent ten days – from 12 to 22 August 2001 – in the Lipetsk Regional Hospital undergoing treatment. Taking into account those circumstances, a forensic medical examination was performed with a view to determining the severity of the injuries sustained by [the applicant] and establishing a causal link between the sustained injuries and [the applicant’s] stay in the Lipetsk Regional Hospital where he had been diagnosed with “a kidney injury”.
As follows from report no. 7320 of the forensic medical examination issued on 7 December 2001, [the applicant’s] stay in the hospital for the treatment of an injury to the right kidney was not connected to [his] injury sustained on 7 August 2001, as the initial examination had not established bruises on the chest and back, although they had been recorded on admission to the Lipetsk Regional Hospital. Thus, it can be concluded that those injuries could have been sustained by [the applicant] after his examination by the medical expert on 9 August 2001.
Taking into account the above-mentioned, it should be concluded that during the inquiry [the investigator] did not obtain any objective data showing that the actions of the police officers contained elements of a criminal offence, and thus there are no grounds for quashing the decision of 19 October 2001 by which an institution of criminal proceedings was refused.”
22. The applicant learned about the decision of 7 December 2001 at the trial.
23. The applicant was additionally charged with theft and forgery of documents. On 7 December 2001 the authorised period of his detention expired. Five days later he was committed to stand trial before the Oktyabrskiy District Court of Lipetsk. The applicant lodged a complaint with the District Court, alleging that he had been ill-treated by the police officers after his arrest.
24. At the trial the applicant repeated his statements given on 7 August 2001, save for the fact that prior to his arrest he had known that the hundred-dollar notes were counterfeit.
25. On 10 January 2002 the Oktyabrskiy District Court found the applicant guilty of theft of documents and use of counterfeit currency, acquitted him of the remaining charges and sentenced him to five years and six months’ imprisonment. The District Court based its judgment, in particular, on the applicant’s testimony, statements by witnesses, a record of the search on the applicant’s person and seizure of the hundred-dollar notes, and an expert opinion indicating that the notes were counterfeit. Having examined the expert report of 13 August 2001, the hospital report of 12 August 2001, extracts from the detention facility’s registration logs pertaining to the applicant’s admission on 8 August 2001 and the prosecutor’s decisions of 19 October and 7 December 2001, the District Court dismissed the applicant’s ill-treatment complaint as unsubstantiated.
26. The applicant’s lawyer lodged an appeal statement, complaining, in particular, that the applicant had been beaten up by the police officers after the arrest.
27. On 7 February 2002 the Lipetsk Regional Court upheld the judgment. The Regional Court found that the District Court had lawfully concluded that the fact of the ill-treatment had not been proven. Several police officers testified that the applicant had fallen in the police station and had hit his head.
28. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect, which had to be notified to the interested party.
VIOLATED_ARTICLES: 3


ITEMID: 001-89632
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF M. TOSUN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1974 and lives in Istanbul.
5. On 10 November 1995 the applicant was arrested on suspicion of attempting to undermine the constitutional order, an offence under Article 146 of the Criminal Code then in force. He was subsequently transferred to a prison where he was detained pending the introduction of criminal proceedings against him.
6. On 4 December 1995 the prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicant and a number of other persons with the above-mentioned offence.
7. On 24 December 2002 the Istanbul State Security Court (hereafter “the trial court”) found the applicant guilty as charged and sentenced him to life imprisonment. The applicant appealed.
8. On 8 December 2003 the Court of Cassation quashed the judgment and criminal proceedings against the applicant recommenced before the trial court.
9. Following the abolition of the State Security Courts, the Istanbul Court of Assize took over the case. On 18 May 2006 the applicant was released on bail from prison where he had been detained since November 1995. The retrial is still pending before the Istanbul Court of Assize. According to the information provided by the applicant, the most recent hearing was held on 1 May 2008.
VIOLATED_ARTICLES: 6


ITEMID: 001-110866
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ÖZGÜRLÜK VE DAYANIŞMA PARTİSİ (ÖDP) v. TURKEY
IMPORTANCE: 1
CONCLUSION: No violation of Article 14+P1-3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 of Protocol No. 1 - Free expression of opinion of people;Right to free elections-{general})
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 5. The applicant party, Özgürlük ve Dayanışma Partisi (“the ÖDP”), is a Turkish political party based in Ankara.
6. By a decree of 28 November 1998, the Higher Electoral Commission published a list of the eighteen political parties authorised to participate in the parliamentary and municipal elections to be held on 18 April 1999. The ÖDP featured on the list. In order to be able to participate in the elections in question, the political parties had to have had, for at least six months prior to the elections, branches in no fewer than half the country’s provinces and to have already organised their party conference.
7. On 23 September 1998 the ÖDP applied to the Ministry of Finance for the financial assistance available to political parties under Article 68 of the Constitution.
8. By a decision of 23 November 1998, the Ministry of Finance refused the application on the ground that only political parties meeting the criteria laid down by Law no. 2820 on political parties were eligible for public funding.
9. On 29 December 1998 the ÖDP brought proceedings in the Ankara Administrative Court seeking the setting-aside of the decision of 23 November 1998. The ÖDP began by pointing out that the Constitution itself provided that “the State shall grant political parties sufficient and equitable funding” and that “the law shall define the principles applicable to party funding, members’ subscriptions and donations”. The applicant party observed in particular that the criteria laid down by the Law on political parties excluded parties which were not represented in Parliament from entitlement to State subsidies. Pointing to the difficulty of carrying out political activities and campaigning without the necessary financial resources, it contended that the statutory exclusion was unconstitutional and contrary to the principles of a democratic State, to the State’s duty to promote democratic rights and freedoms, and to the principle of nondiscrimination. Furthermore, the provisions in question were in breach of international human rights protection instruments.
10. In a judgment of 29 September 1999, the Ankara Administrative Court rejected the application lodged by the ÖDP, on the ground that the latter did not satisfy the criteria laid down by Law no. 2820 on political parties. The court did not rule on the plea of unconstitutionality raised by the ÖDP.
11. The ÖDP lodged an appeal on points of law against the judgment of 29 September 1999, reiterating the arguments it had submitted at first instance.
12. In a judgment delivered on 25 April 2002 and served on the applicant party on 10 July 2002, the Supreme Administrative Court upheld the impugned judgment, which it found to be in accordance with the rules of procedure and law.
13. The final paragraph of Article 68 of the Constitution states that “the State shall grant political parties sufficient and equitable funding” and that “the law shall define the principles applicable to party funding, members’ subscriptions and donations”.
14. Under additional section 1 of Law no. 2820 on political parties, the State provides financial assistance (the overall amount of which represents 2/5000ths of its budget) to the political parties represented in Parliament, in proportion to the number of votes they obtained in the preceding parliamentary elections. Political parties that are not represented in Parliament are also entitled to this assistance, provided that they obtained at least 7% of the votes cast in the preceding election. Parties with at least three members of Parliament are also eligible, even if they did not participate in the last election.
15. The funding provided to political parties is tripled in a parliamentary election year and doubled in a municipal election year.
16. By a judgment of 20 November 2008, the Turkish Constitutional Court dismissed by a majority a plea of unconstitutionality raised by the Ankara Administrative Court, which alleged that the statutory 7% threshold imposed on political parties in order to obtain State funding was discriminatory and therefore unconstitutional. In making its ruling, the Constitutional Court considered that one of the aims of political parties was to obtain electoral support with a view to participating in government and hence contributing to the expression of the opinion of the people. It concluded from this that parties which had not obtained a sufficient level of electoral support did not contribute to the expression of the opinion of the people to the same extent as political parties with broader popular support. It dismissed the argument that using the extent of parties’ contribution to democratic political life as the criterion for allocating State funding was not objective, equitable or proportionate.
17. A minority of the judges of the Constitutional Court took the view that the 7% threshold was too high (corresponding to almost three million votes in the 2007 referendum), that it gave an unfair advantage to political parties which exceeded it and that the criterion based on the “contribution to the expression of the opinion of the people” was subjective and in breach of the principle of the rule of law.
18. The ÖDP obtained 0.8 % of the valid votes cast in the parliamentary elections of 18 April 1999, 0.34 % of the vote in the elections of 3 November 2002 and 0.15 % of the vote in the 2007 elections.
19. The parties that received funding prior to the elections in question had either won seats in the National Assembly in the preceding parliamentary elections or had obtained more than 7% of the valid votes cast in those elections.
Ahead of the 1999 general election, six political parties (including one that was not represented in Parliament) of the twenty-one parties fielding candidates received State financial assistance. Before the 2002 general election, six parties (including one not represented in Parliament) of the fifteen parties contesting the election received State funding. Prior to the 2007 election, funding was given to five of the fifteen parties fielding candidates; of the five parties concerned, three were not represented in Parliament. The ÖDP has never received State funding.
20. The relevant passages of the Guidelines on political party regulation drawn up by the OSCE/ODIHR and the Venice Commission, and adopted by the Venice Commission at its 84th Plenary Session (Venice, 1516 October 2010, CDL-AD(2010)024), read as follows.
“3. Public funding
(a) Importance of public funding
176. Public funding and its requisite regulations (including spending limits, disclosure, and impartial enforcement) has been designed and adopted throughout the globe as a potential means of preventing corruption, to support the important role played by political parties and to remove undue reliance on private donors. Such systems of funding are aimed at ensuring that all parties are able to compete for elections in accordance with the principle of equal opportunity, thus strengthening political pluralism and helping to ensure the proper functioning of democratic institutions. Generally, legislation should attempt to create a balance between public and private contributions as the source for political party funding. In no case should the allocation of public funding limit or interfere with the independence of a political party.
177. The amount of public funding awarded to parties must be carefully designed to ensure the utility of such funding while not eradicating the need for private contributions or nullifying the impact of individual donations. While the nature of elections and campaigning in different States makes it impossible to identify a universally applicable amount of funding, legislation should put in place review mechanisms aimed at periodically determining the impact of public-finance systems and the need (as such exists) to alter financial-allocation amounts. Generally, subsidies should be set at a meaningful level to fulfil the objective of support, but should not be the only source of income and should not create conditions for over-dependency on State support.
(b) Financial support
178. Legislation should explicitly allow that State support for political parties may be financial. The allocation of public money to political parties is often considered integral to respect the principle of equal opportunity for all candidates, in particular where the State’s funding mechanism includes special provisions for women and minorities. Where financial support is awarded to parties, relevant legislation should develop clear guidelines to determine the amount of such funding, which should be allocated to recipients in an objective and unbiased manner.
(c) Other forms of public support
179. In addition to direct funding, the State may offer support to parties in a variety of other ways, including tax exemptions for party activities, the allocation of free media time, or the free use of public meeting halls for the purposes of campaign activities. In all such cases, both financial and in-kind support must be given on the basis of equality of opportunity to all parties and candidates (including women and minorities). While ‘equality’ may not be absolute in nature, a system for determining the proportional (or equitable) distribution of State support (whether financial or in-kind) must be objective, fair and reasonable.
...
(d) Allocation of funding
183. The system for allocating public support to political parties should be determined by relevant legislation. Some systems allocate money prior to an election based on the results of the previous election or proof of minimum levels of support. [Other] systems provide payment after an election based on the final results. Generally, a pre-election disbursement of funds, or a percentage of funding, best ensures the ability of parties to compete on the basis of equal opportunity.
...
185. The allocation of funding may either be fully equal (‘absolute equality’) or proportionate in nature based on a party’s election results or proven level of support (‘equitable’). There is no universally prescribed system for determining the distribution of public funding. Some have argued that legislation for public funding is generally most effective at achieving political pluralism and equal opportunity by providing a combination of both absolute and equitable equality. Where minimum thresholds of support are required for funding, it should be considered that an unreasonably high threshold may be detrimental to political pluralism and small political parties. Further, it is in the interest of political pluralism to have a lower threshold for public funding than the electoral threshold for the allocation of a mandate in Parliament.
...
187. Legislation should ensure that the formula for the allocation of funding does not provide a monopoly or disproportionate amount of funding to one political party. Nor should the formula for allocation of funding allow the two largest political parties to monopolise the receipt of public funding.
(e) Requirements to receive public funding
188. At a minimum, some degree of public funding should be available to all parties represented in Parliament. However, to promote political pluralism, some funding should ideally be extended beyond parties represented in Parliament to all parties representative of a minimum level of the citizenry’s support and presenting candidates in an election. This is particularly important in the case of new parties, which must be given a fair opportunity to compete with existing parties.
...
190. Public funding, by providing increased resources to political parties, can increase political pluralism. As such, it is reasonable for legislation to require a party to be representative of a minimum level of the electorate prior to receipt of funding. However, as the denial of public funding can lead to a decrease in pluralism and political alternatives, it is ... accepted good practice to enact clear guidelines for how new parties may become eligible for funding and to extend public funding beyond parties represented in Parliament. A generous system for the determination of eligibility should be considered to ensure that voters are given the political alternatives necessary for a real choice.”
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-81202
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VEYİSOĞLU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: 5. The applicant was born in 1978 and lives in Istanbul.
6. At the time of the events, the applicant was a corporal in the Hakkari Mountain Commando Brigade of the Turkish Land Forces.
7. On 29 January 2002 the brigadier general (tuğgeneral) filed an indictment against the applicant with the Hakkari Military Disciplinary Court which was attached to the Hakkari Mountain and Commando Brigade. He accused the applicant of insulting his subordinates, of deliberately hiding the truth from his superiors and of giving abusive commands to his subordinates which did not concern military service. In particular, the applicant was accused of forcing his subordinates to make his bed, or do his personal shopping and laundry. On 6 February 2002, the Hakkari Military Disciplinary Court, which was composed of a major (binbaşı), a captain (yüzbaşı) and a sergeant major (başçavuş), found the applicant guilty as charged and sentenced him to “room arrest” for 110 days.
8. On 19 February 2002 the applicant appealed.
9. On 5 March 2002 the Van Supreme Disciplinary Court attached to the General Command of the Gendarmerie gave a decision of non-jurisdiction regarding the first charge and sent the case file to the Military Court attached to the General Command of the Gendarmerie for reconsideration. It acquitted the applicant of the second charge. However, it established that he had given abusive orders to his subordinates. It therefore upheld the decision of 6 February 2002 in respect of the third charge. As a result, the applicant was ordered to serve 40 days' “room arrest”.
10. On 16 April 2002 the applicant petitioned the Minister of Defence for a referral of his case to the office of the public prosecutor at the Military Court of Cassation, by means of an appeal against the decision of the Van Supreme Disciplinary Court. He complained, in particular, of a breach of Articles 5 § 1 and 6 §1 of the Convention.
11. On 7 June 2002 the Chief Magistrate of Military Justice, acting on behalf of the Ministry of Defence, dismissed the applicant's petition.
12. The relevant provisions in force at the material time provided as follows:
“...The Administration shall not impose any sanction resulting in a restriction of personal liberty. Exceptions to this provision may be introduced by law regarding the internal order of the Armed Forces. ...”
“Military justice shall be dispensed by military courts and military disciplinary organs. These courts and tribunals shall be responsible for conducting proceedings concerning offences committed by military personnel in violation of military law or are committed against other military personnel, on military premises or in connection with military service and related duties.
Military courts shall also be responsible for dealing with offences committed by civilians where these are designated by special laws as breaches of military law, or have been committed against military personnel, either during their performance of duties designated by law or on military premises so designated.
The jurisdiction of the military courts as regards persons and offences in time of war or a state of emergency, the composition of such courts and the secondment of civilian judges and prosecutors to them where necessary, shall be regulated by law.
The organisation and functions of military judicial organs, the personal status of military judges and the relations between judges acting as military prosecutors and the commanders under whom they serve, shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of the judiciary, and with the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law in accordance with the requirements of military service.”
13. The pertinent provisions of Law no. 477, applicable at the material time, provided as follows:
“The Disciplinary Courts shall be composed of three commissioned officers. When prosecuting a non-commissioned officer or a private soldier, one of the members of the court shall be selected amongst the non-commissioned officers.”
“The members are appointed for one year by the commanding officer of the military unit. They cannot be removed from office during this period. Moreover, the members of the court cannot be subordinate to the accused.”
“The president and the members are obliged to have served in the military sections or military institutions for at least one year, not to have been convicted of an offence except for crimes committed by imprudence, not to be of an inferior rank to the suspect and the president must be, at least, a captain in military rank.”
“...there must be one officer who is a member of the military legal service or is a military prosecutor ...”
“The members of the court are prevented from carrying out this duty in the following conditions:
a) if he [or she] is a victim of the alleged crime;
b) if he[or she] has any sort of hereditary or marital relation to the accused;
c) if he [or she] is a relative of the accused;
d) if he [or she] has defended the accused or carried out an executive duty in the course of the proceedings;
e) if he [or she] has acted as an expert or a witness during the proceedings;
f) if there are reasonable doubts regarding his [or her] impartiality.”
“The commanding officer of the relevant military unit, the executive officer of the military institution, or the accused, has the right to appeal against the decision of the Military Disciplinary Court.”
“Room arrest or surveillance sentences given by the Military Disciplinary Courts:
A) Concerning commissioned and non-commissioned officers, civilian staff members, gendarmerie, corporals and sergeants who are military specialists:
...
II. the sentence of room arrest:
a) In case of availability, the sentence is served alone in a cell.
b) The arrestees cannot give any orders.
c) They cannot continue with their general duties.
...
C) Concerning privates, sergeants and corporals:
a) They serve their room arrest, together with other convicts, in a cell.
b) The cell is guarded.
c) During their sentence, sergeants and corporals cannot continue with their general duties. Privates may be employed for austere military services.”
“The room arrests ordered by the Military Disciplinary Courts, and served by reserve officers, sergeants and corporals (except those who are military specialists) are not considered to be part of military service. Therefore, these officers are discharged from military service after serving the additional time which they have spent in room arrest.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23730
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: NUNES DIAS v. PORTUGAL
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr José Daniel Nunes Dias, is a Portuguese national, who was born in 1947 and lives in Carnaxide (Portugal). He was represented before the Court by Mr M. Reis Cunha, a lawyer practising in Algés.
In 1984 two individuals brought an action for damages against the applicant in the Oeiras District Court. They claimed compensation for the loss resulting from a road traffic accident which had led to the death of a member of their family.
The judge summoned the applicant to appear before him. However, the applicant, who in the meantime had moved house, could not be traced at the address given by the plaintiffs. On 13 February 1985 the police informed the court that the applicant’s address was unknown.
By an order of 25 February 1985, the judge ordered that the applicant be summoned to appear by public notice (citação edital). Notices were accordingly published in a national newspaper on 29 and 30 April 1985, informing the applicant that an action for damages against him was pending before the Oeiras District Court.
In the absence of any intervention by the applicant in the proceedings, the judge appointed State Counsel’s Office as the applicant’s representative by an order of 14 October 1985, in accordance with the legislation.
A hearing took place on 28 October 1986 at which the applicant was not present.
By a judgment of 12 July 1989, the court granted the claim and ordered the applicant to pay the plaintiffs a sum equivalent to 26,186 euros, plus interest. As State Counsel’s Office did not appeal against this judgment, the decision became final.
The applicant claimed not to have learnt of this judgment and the existence of these proceedings until 2 February 2000. He submitted that he had been served, at his current residence, with notice of proceedings against him in 1999 in the Oeiras District Court to enforce the judgment concerned. He then instructed a lawyer, who consulted the case file of the proceedings on the above-mentioned date.
On 11 February 2000 the applicant appealed against the judgment delivered by the Oeiras District Court on 12 July 1989. In particular, he alleged that he had never been aware of the existence of the proceedings complained of; furthermore, the summons by public notice was null and void, the judge having neglected to ask the administrative authorities and the police beforehand for information regarding his address.
By an order of 29 February 2000, the judge at the Oeiras District Court declared the appeal inadmissible on the ground that the judgment in question was undoubtedly final and that, consequently, no appeal could lie against it. He emphasised that the applicant should lodge an application to reopen the proceedings under Article 771 of the Code of Civil Procedure.
The applicant lodged a complaint against this decision with the President of the Lisbon Court of Appeal, arguing that the appeal ought to have been declared admissible and examined on the merits.
By a decision of 19 October 2000, the President of the Court of Appeal dismissed the complaint, referring to the reasons given in the order appealed against.
The applicant also lodged an application for interpretation of this decision, which was rejected by the President of the Court of Appeal on 20 December 2000.
On 14 February 2000 the applicant lodged an objection (embargos) to the application for enforcement submitted by the plaintiffs to the Oeiras District Court. In particular, he relied on the nullity of the summons in the main proceedings. The applicant argued that the Oeiras District Court ought to have contacted the administrative authorities, as had been the case regarding the enforcement proceedings, in which he had been lawfully summoned to appear. In this connection, he emphasised that, as early as 1984, he had communicated his new address to the national tax authorities, the road traffic authorities and the Lisbon centre for civil and criminal identification. Finally, the notice had been published in a daily newspaper with a limited circulation, which had, moreover, been declared bankrupt soon after 1985. The applicant also contested the amount of interest claimed by the opposing party.
By a decision of 6 June 2000, the court allowed the applicant’s objection with regard to the interest sought by the plaintiffs but rejected the rest of the objection.
The applicant appealed to the Lisbon Court of Appeal which, by a judgment of 2 October 2001, dismissed the appeal.
The applicant appealed on points of law to the Supreme Court, alleging, in addition to the nullity of the summons, a breach of Article 20 of the Constitution concerning access to the courts and the principle of a fair trial.
By a judgment of 19 March 2002, the Supreme Court dismissed the appeal.
The applicant then lodged a constitutional appeal with the Constitutional Court.
By a judgment of 2 December 2002, the Constitutional Court dismissed the appeal. It held in particular:
“... The legislation concerning civil proceedings contains detailed provisions regarding the summons of a defendant to appear before a court. It seeks to guarantee that recourse is had to a summons by public notice only when the court is satisfied that it is impossible to trace the person who is to be summoned. For the most part, there have been no substantial changes to the provisions. At the material time, the provisions stated that the court had power to seek information from the administrative authorities ... Nothing was stated regarding an alleged duty [in bold in the original] which would oblige the court to request such information from specific bodies, in particular those indicated by the [applicant].
...
[Article 239 § 3 of the Code of Civil Procedure] required the court to be satisfied of the impossibility of tracing the defendant before ordering that he be summoned to appear by public notice; the court had to be certain[1] of this impossibility and could to this end use those methods that it deemed necessary or appropriate. There was in this no gratuitous act of free will or unfettered discretion; if a discretionary power was involved, it was limited to the court’s choice of methods to be used or, more particularly, the choice of authorities to be contacted. However, once the court was certain that it was impossible to trace the defendant, the relevant provision obliged it – and indeed continues to oblige it – to pursue the proceedings by means of summons by public notice.
...
It is necessary to strike a balance between the various principles and interests at stake, particularly those relating to the adversarial principle and the obligatory presence of the defence and those of promptness and legal certainty, which are also protected by the Constitution.
...
Once the court has used all methods, in particular those that are found to be the most appropriate, in order to trace the defendant, and is satisfied [that it is impossible to trace the defendant], it must pursue the proceedings but without allowing them to be prolonged indefinitely on account of long and exhaustive searches or allowing such searches to be repeated at any stage of the proceedings, which would have untoward consequences and might prevent justice being done.
...”
Under Article 239 of the Code of Civil Procedure, in the wording in force at the material time, summons by public notice was ordered when the defendant could not be traced at the address indicated by the plaintiff. Under paragraph 3 of this provision, the court had to be certain of the impossibility of locating the defendant and could, to this end, gather information from the administrative authorities and the police.
Notices containing basic information about the proceedings in question were to be published in a newspaper. In addition, three other notices were to be posted, one at the court dealing with the case, one on the door of the defendant’s last known residence, and one at the town hall of the municipality in which this residence was located. From the expiry of a given period (thirty days in the present case), the defendant had ten days in which to file his submissions in reply. Failing this, the proceedings would continue and the defendant would be represented by State Counsel’s Office.
Article 771 (f) of the Code of Civil Procedure provides for the possibility of requesting that the proceedings be reopened where a party has taken no part in them whatsoever. The interested party must then demonstrate that the summons to appear was not served in accordance with the law. However, Article 772 § 2 states that any such request to reopen the proceedings must be submitted within five years of the date on which the decision in the proceedings in question becomes final.
Article 813 (d) of the Code of Civil Procedure also enables the interested party to file an objection to the enforcement proceedings based on the nullity of the summons to appear served in the main proceedings.


ITEMID: 001-75150
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF GOLEK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1972 and lives in Bielsko-Biała, Poland.
6. On 15 March 2000 the applicant was arrested by the police on suspicion of having committed homicide. On 16 March 2000 the Żywiec District Court (Sąd Rejonowy) ordered that he be detained on remand in view of the reasonable suspicion that he had committed the offence in question, the serious nature of that offence, the severity of the anticipated penalty and the need to secure the proper conduct of the investigation, in particular the process of obtaining evidence.
7. During the investigation the applicant’s detention was extended on several occasions. He filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. The applicant made repeated applications for release on personal grounds, submitting that he had to secure the care and wellbeing of his 3 year old son. He also contested the reasonableness of the charge against him, maintaining that it was solely based on evidence from his common-law wife who was his alleged accomplice.
8. On 7 June 2000 the Bielsko-Biała Regional Court (Sąd Okręgowy) prolonged his detention until 15 September 2000. On 8 September 2000 it ordered that he be kept in custody until 15 December 2000. On 6 December 2000 it extended that period until 15 March 2001. The court reiterated the grounds originally given for the applicant’s detention. It also considered that the need to take further evidence from experts justified the continuation of that measure.
9. On 1 March 2001 the applicant, together with his common-law wife, was indicted on charges of homicide, attempted homicide, assault occasioning actual bodily harm, uttering threats, theft, burglary, fraud and illegally possessing explosives and dangerous substances before the Bielsko-Biała Regional Court. In all, 24 charges were brought against the applicant. The prosecution asked the court to hear evidence from 95 witnesses.
10. The Regional Court continually prolonged the applicant’s detention pending trial. On 7 March 2001 it extended his detention until 30 June 2001.
11. On 7 June 2001 the trial court dismissed the applicant’s request of 5 June 2001 to sever his case and assign it to a separate set of proceedings. It adjourned the hearing due to the absence of the co-defendant’s counsel.
12. Subsequently, the applicant’s detention was prolonged on 25 June and 26 November 2001. The court held that the grounds originally given for his detention were still valid. It stressed the strong likelihood that the applicant had committed the offences in question.
13. In the meantime, on 6 July 2001, the applicant had unsuccessfully challenged the composition of the court.
14. On 18 July 2001 he requested the trial court to appoint him a new legal aid counsel.
15. On 1 and 23 August 2001 respectively he requested the trial court to assign his case to a separate set of proceedings. Subsequently, at the hearing held on 6 September 2001 the applicant withdrew his motion.
16. The hearings scheduled for 19 September and 8 October 2001 had to be adjourned due to the co-defendant’s absence. Two other hearings were adjourned due to the absence of the judge rapporteur.
17. The trial court held further hearings: on 6 November 2001, 5 and 22 February 2002. In the meantime, the hearings listed for 15 November and 12 December 2001 were cancelled due to the illness of the judge.
18. Subsequently, as the length of the applicant’s detention reached the statutory time-limit of 2 years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego), the Regional Court made 4 applications to the Katowice Court of Appeal (Sąd Apelacyjny), asking for the applicant’s detention to be prolonged beyond that term. The Court of Appeal granted those applications on 13 March 2002 (extending the applicant’s detention until 5 October 2002), on 2 October 2002 (extending his detention until 5 March 2003), on 26 February 2003 (prolonging that term until 31 May 2003) and on 21 May 2003 (ordering his continued detention until 31 August 2003). In all those decisions the Court of Appeal considered that the original grounds given for the applicant’s detention were still valid.
19. The applicant’s numerous applications for release and his appeals against the detention decisions were to no avail.
20. Between March and September 2002, the trial court listed 10 hearings. The applicant and his lawyer were present at all the hearings. During this period the applicant on several occasions refused to participate in the trial, on two occasions he challenged the composition of the court. He also requested the court to appoint him a new legal aid counsel and applied for his case to be assigned to a separate set of proceedings. All his motions were dismissed.
In the meantime, the hearing scheduled for 17 May 2002 had been cancelled. The hearings listed for 12 and 13 June 2002 had likewise been cancelled due to the illness of the judge.
21. Further hearings were held on 2, 15 and 30 October, 14 and 28 November 2002. On 12 December 2002 the applicant refused to participate in the hearing due to his illness. The trial court proceeded with taking evidence and ordered that an expert opinion on the applicant’s health be obtained.
22. Subsequently, hearings were held on the following dates: 16 January, 12 and 27 February 2003. On 12 February 2003 the trial court acknowledged the delay in the proceedings and stated that it was caused by the particular complexity of the case and other obstacles which could not have been removed by the relevant authorities.
23. The hearing scheduled for 13 March 2003 had to be adjourned due to the applicant’s absence. Further hearings were held on: 8 and 17 April, 6, 7 and 28 May, 3 and 10 June 2003. The applicant and his counsel were present at the hearings. As of April 2003 the court had heard evidence from 85 witnesses.
24. On 12 June 2003 the Regional Court convicted the applicant as charged and sentenced him to life imprisonment.
25. On 24 June 2004 the Katowice Court of Appeal upheld the firstinstance judgment.
26. On 12 October 2004 the applicant lodged a cassation appeal.
27. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju).
28. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.”
29. Article 258 lists grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
30. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
Article 259, in its relevant part, reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
31. The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.
32. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:
“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.
cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months.
3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.
4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”
33. On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-22822
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: WIRTSCHAFTS-TREND ZEITSCHRIFTEN-VERLAGSGES. M.B.H. v. AUSTRIA (No. 2)
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto
TEXT: The applicant company, “Wirtschafts-Trend” Zeitschriften-Verlagsgesellschaft mbH, is the owner and publisher of the weekly news magazine Profil with its seat in Vienna. It is represented before the Court by Giger, Ruggenthaler & Simon, lawyers practising in Perchtoldsdorf/Austria.
The facts of the case, as submitted by the applicant company, may be summarised as follows.
On 21 June 1999 the news magazine Profil published an article with excerpts of the minutes of preliminary investigations in criminal proceedings against three aliens’ police officers, who had, on 1 May 1999, accompanied a deportation flight on which the deportee had died under unclear circumstances. The incident, which received high press coverage in Austria, evoked a public debate on deportation practices, in particular as regards the use of handcuffs and adhesive tapes for breaking the resistance of the deportee. Under the heading “Lethal trick” (“Tödlicher Trick”) the article at issue dealt with extracts of conflicting statements the aliens’ police officers had made on the incident and their conduct during the deportation flight, in particular at the Austrian Embassy in Sofia, the Vienna Public Security Office (Sicherheitsdirektion) and the Korneuburg Regional Court (Landesgericht). The article finished with the quotation of one of the officers who stated that “we were surprised and assumed at first that it was a trick” that, after his handcuffs had been opened and the adhesive tapes, which had been place over his mouth and nose, had been taken away upon the landing, the deportee did not react to their request to follow them. “Twenty minutes later a Bulgarian doctor confirmed the death of the Nigerian deportee.” While throughout the article the police officers concerned were referred to with their first name and the initial of their last name, Mr K.’s job title and his full last name were disclosed in an eye-catching position directly above the headline.
On 20 August 1999 Mr K. filed a compensation claim under section 7a § 1 of the Austrian Media Act (Mediengesetz) against the applicant company.
On 24 August 1999 the Wiener Neustadt Regional Court (Landesgericht) dismissed the claim on the ground that Mr K. had failed to substantiate which legitimate interests had been violated in his case.
On 11 October 1999 the Vienna Court of Appeal (Oberlandesgericht), granting Mr K.’s appeal, quashed the lower court’s decision and referred the case back to it to establish whether or not any legitimate interests of Mr K. had been injured through the disclosure of his identity.
On 10 November 1999 the Regional Court, after having held a hearing, ordered the applicant company to pay ATS 25,000 (EUR 1,816) in compensation to Mr K. The court noted that at the time of the publication of the article, criminal investigation proceedings and disciplinary proceedings were pending against Mr K. and that he was suspended from office. Since the disclosure of Mr K.’s full name, he suffered social exclusion in his village and was exposed to debates with relatives and within his circle of acquaintances concerning the incident. As a consequence of the article, his quality of life had changed to the detriment. Therefore, the disclosure of Mr K.’s full name violated his legitimate private interests, which prevailed over the public interest in the publication of such details, pursuant to section 7a § 1 of the Media Act.
In its appeal of 1 February 2000 the applicant company complained that the Regional Court’s balancing of interests was not in line with this Court’s case law under Article 10, as there was no “pressing social need” to impose a fine.
On 26 April 2000 the Court of Appeal, after having held a hearing, dismissed the appeal and confirmed the lower court’s judgment. It noted that topics such as performance of police officers, treatment of asylum seekers and potential abuse of the exercise of authority are of predominant public interest. However, modalities of deportation practices, as reported in the article, could also be criticised without disclosing the identity of the involved police officer. The public interest in the disclosure of the identity of the person concerned could be outweighed by that person’s legitimate interests. Moreover, in the light of the early stage of the criminal proceedings against Mr K., the lower court had correctly given priority to his legitimate interests.
Section 7a § 1 of the Media Act reads as follows:
“(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who
1. has been the victim of an offence punishable by the courts or
2. is suspected of having committed, or has been convicted of, a punishable offence,
and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person’s position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 14,535 euros; additionally, section 6 (1), second sentence, shall apply.
(2) Legitimate interests of the victim shall in any event be injured if the publication
1. in the case of subsection (1)1 is such as to give rise to an interference with the victim’s strictly private life or to his or her exposure,
2. in the case of subsection (1)2 relates to a juvenile or merely to a lesser indictable offence or may substantially prejudice the victim’s advancement.”


ITEMID: 001-80805
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SCHENK v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Jürgen Schenk, is a German national, who was born in 1954 and lives in Tübingen. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was the chairman of several limited liability companies registered under German law. In November 1990 the Tübingen Public Prosecutor’s Office commenced, without the applicant’s knowledge at that time, a preliminary investigation against him on suspicion of fraud and breach of trust (Untreue) in connection with the establishment of a closed property fund (geschlossener Immobilienfonds). On 14 May 1991 the Tübingen Public Prosecutor’s Office requested the Tübingen District Court to authorise the search of the companies’ premises and the seizure of all relevant documents. On 22 May 1991 the court issued an according order.
On 10 June 1991 the police searched the premises of the above-mentioned companies and seized computers and numerous documents.
On 3 September, 3 December 1991 and 8 January 1992 the applicant’s defence counsel asked the Public Prosecutor’s Office for a progress report.
On 5 August 1991 the Reutlingen District Court also authorised the search of the local branch of a bank.
On 27 September 1991 the police department issued an intermediary report on the search of the branch of the bank and the questioning of numerous witnesses.
On 15 January 1992 the police rendered its final report on its investigation. Subsequently the investigating prosecutor changed.
On 20 January 1992 the applicant’s defence counsel consulted the Public Prosecutor’s Office’s file.
On 4 June 1992 the applicant’s defence counsel submitted his first observations. Until 30 November 1992 the representatives of several affected investors of the closed property fund consulted the Public Prosecutor’s file.
On 8 February 1993 the applicant’s defence counsel submitted his further observations.
On 13 April 1993 the defence counsel met with the investigating prosecutor and announced that he would submit further observations until 30 April 1993. Until 26 May 1993 representatives of further affected investors consulted the file.
On 17 August 1993 the applicant’s defence counsel asked for a progress report.
On 25 August 1993 a further charge was brought against the applicant.
On 13 September 1993 the defence counsel again asked for a progress report. The investigating prosecutor then changed. The new investigating prosecutor informed the applicant’s defence counsel that he would have to familiarise himself with the files first.
On 30 November 1993 further charges were brought against the applicant.
On 13 December 1993 the applicant inquired as to which information was needed by the Public Prosecutor’s Office.
On 7 January 1994 the Public Prosecutor’s Office requested information as to the flow of certain funds from another bank.
On 24 January 1994 the Public Prosecutor’s Office requested the police department to examine the information provided by the bank.
On 11 January 1994 the applicant’s defence counsel announced further observations, which were submitted on 3 February 1994.
On 2 February 1994 the applicant’s defence counsel asked for another progress report.
On 4 February 1994 the Public Prosecutor’s Office requested the police department to assess the applicant’s submissions.
On 10 May 1994 the police department issued its final report on its further investigation.
On 30 August 1994 the applicant’s defence counsel asked for a progress report.
On 13 September 1994 the applicant’s defence counsel submitted further observations.
On 2 November 1994 the applicant’s defence counsel again asked for a progress report.
On 9 December 1994 the Public Prosecutor’s Office sent a request for mutual assistance (Rechtshilfeersuchen) to the Vaduz Regional Court in Liechtenstein asking for the questioning of an employee of a company that was suspected to be involved in the case. Subsequently the investigating prosecutor changed.
On 1 March 1995 the Government of Liechtenstein replied to the request stating that the afore-mentioned company had objected to the questioning. It invited the Tübingen Public Prosecutor’s Office to comment on this issue.
On 31 March 1995 the Public Prosecutor’s Office submitted its observations.
On 14 June 1995 the applicant’s legal counsel addressed letters to the Public Prosecutor’s Office asking for a progress report and requesting the discontinuation of the proceedings for lack of evidence.
On 3 July and 18 December 1995 the Government of Liechtenstein reminded the Vaduz Regional Court of the request of mutual assistance.
On 5 January 1996 the Government of Liechtenstein informed the Tübingen Public Prosecutor’s Office that the Vaduz Regional Court would now examine the request for mutual assistance, but that it was impossible to foresee when the proceedings would be terminated. Subsequently the investigating prosecutor changed.
On 14 May 1996 the Tübingen Public Prosecutor’s Office issued the bill of indictment. The applicant was accused of 43 counts of fraud, seven counts of fraudulent breach of trust and one count of incitement to fraudulent breach of trust. The applicant was suspected of having caused financial damage amounting to about 2.6 million Deutschmarks (DEM).
On 29 November 1996 the Reutlingen District Court convicted the applicant of nine counts of fraudulent breach of trust and sentenced him to eight months’ imprisonment. In respect of the remaining charges the proceedings were discontinued, because the prosecution had become time-barred (Verfolgungsverjährung).
On 6 December 1996 the applicant appealed against that decision. He did not contest the length of proceedings in his appeal.
On 12 December 1996 the applicant’s defence counsel requested reinstatement of the proceedings insofar as he had failed to observe the time-limit for lodging the appeal.
On 22 January 1997 the Reutlingen District Court rejected the appeal as inadmissible.
On 27 January 1997 the defence counsel requested the Court of Appeal to render a decision on the applicant’s appeal and again requested reinstatement of the proceedings.
On 4 February 1997 the defence counsel lodged a complaint against the decision of the District Court of 22 January 1997.
On 28 February 1998 the Tübingen Regional Court quashed the decision of the Reutlingen District Court of 22 January 1998 and granted the applicant reinstatement of the proceedings.
On 24 April 1998 the Public Prosecutor’s Office inquired as to when the hearing would take place.
On 17 June 1998 the Reutlingen District Court convicted the applicant in a different set of proceedings (reference no. 12 Js 6696/95) of fraudulent preference of creditors (Gläubigerbegünstigung) and sentenced him to a prison sentence of five months.
On 27 August 1998 the Tübingen Regional Court scheduled the hearing for 22 and 23 October 1998.
On 22 October 1998 the applicant challenged the sitting judge for bias and the hearing was suspended.
On 18 December 1998 the Regional Court rejected the applicant’s motion for bias as ill-founded.
On 20 January 1999 the applicant’s defence counsel lodged a complaint against that decision.
On 28 January 1999 the Stuttgart Court of Appeal rejected the applicant’s complaint as inadmissible.
On 6 October 1999 the presiding judge at the Regional Court suggested vis-à-vis the Public Prosecutor’s Office examining whether the proceedings might be discontinued in accordance with sections 154 § 2 or 153 a § 2 of the Criminal Procedure Code.
On 27 October 1999 the Public Prosecutor’s Office refused to consent to the discontinuation in view of the sentence imposed by the court of first instance.
On 8 December 2000 the Public Prosecutor’s Office asked the Regional Court for a progress report.
On 13 December 2000 the applicant’s defence counsel submitted further observations to the Public Prosecutor’s Office concluding by suggesting that the proceedings should be discontinued in view of the length of proceedings.
On 14 February 2001 the Regional Court scheduled the next hearing for 5 April 2001. During the hearing on 5 April 2001 the Public Prosecutor’s Office announced that it would submit a new offer of proof (Beweisantrag). The hearing was then suspended.
On 6 April 2001 the Public Prosecutor’s Office requested an expert opinion on the question whether the applicant’s actions had actually caused any damage and furthermore requested the summons of the affected investors as witnesses.
On 22 May 2001 the applicant’s defence counsel announced that he would submit observations on the Public Prosecutor’s Office’s motions.
On 11 July 2001 the presiding judge inquired as to when the defence counsel would render his observations.
On 4 September 2001 he repeated his request.
On 21 September 2001 the Regional court received the observations.
On 30 April 2002 the presiding judge asked the Public Prosecutor’s Office again to consent to the discontinuation of the proceedings.
On 3 September 2002 the Public Prosecutor’s Office again refused to consent to it.
On 7 December 2002 the applicant lodged a hierarchical complaint (Dienstaufsichtsbeschwerde) with the Chief Public Prosecutor (Genral-staatsanwalt) complaining inter alia about the length of the preliminary investigations.
On 30 December 2002 the sitting judge in the parallel proceedings (reference no. 4 DsF 19 Js 18822/96 see below under 2) proposed a deal with the view of terminating all pending proceedings, but the negotiations broke down.
On 1 April 2003 the Chief Public Prosecutor rejected the applicant’s complaint stating that the preliminary investigations had already been terminated on 14 May 1996 with issuing the bill of indictment. The Chief Public Prosecutor found that in any event there was no indication that the preliminary investigations had been avoidably delayed.
On 12 December 2003 the Regional Court scheduled the next hearing for 15 January 2004.
On 8 January 2004 the applicant’s defence counsel informed the court that the applicant had had a heart attack. He suggested that the proceedings be discontinued according to section 154 of the Criminal Procedure Code and requested the cancellation of the hearing.
On 12 January 2004 the Regional Court cancelled the hearing.
On 13 February 2004 the Public Prosecutor’s Office again refused to consent to the discontinuation of the proceedings.
On 8 October 2004 the Public Prosecutor’s Office telephoned the presiding judge and announced that the Public Prosecutor’s Office would file a motion for discontinuation of the proceedings according to section 154 § 2 of the Criminal Procedure Code in view of the length of the proceedings.
On 11 October 2004 the Public Prosecutor’s Office filed a motion for the discontinuation of the proceedings in view of the applicant’s conviction of 17 June 1998 in the parallel set of proceedings.
Following the applicant’s consent the Tübingen Regional Court closed the proceedings preliminarily according to section 154 § 2 of the Criminal Procedure Code on 18 October 2004. The court held that the expected possible sentence would not carry weight compared to the applicant’s afore-mentioned conviction of 17 June 1998 in a parallel set of proceedings.
On 16 August 1995 the Tübingen Public Prosecutor’s Office opened a preliminary investigation against the applicant on suspicion of inter alia tax evasion in respect of a tax amount of more than 1 million DEM.
On 27 September 1995 the applicant’s home was searched by agents of the Reutlingen Tax Office and documents were seized.
On 27 October 1995 the Tübingen District Court confirmed the legality of the seizure.
Upon the applicant’s complaint the Tübingen Regional Court ordered that two of the seized items had to be returned to the applicant.
Between 11 December 1995 and 9 September 1996 the tax fraud office (Steuerfahndung) heard numerous witnesses.
On 12 December 1995 the applicant’s defence counsel filed a remonstrance (Gegenvorstellung) with the Regional Court.
Between 9 February 1996 and 17 June 1996 the applicant and the tax fraud office were involved in a dispute as to whether certain seized items had already been returned to him.
On 19 August 1998 the tax fraud office addressed a request for mutual assistance to the Innsbruck Finance Office.
On 23 September 1996 the preliminary investigation was extended to several other tax offences.
On 30 September the tax fraud office submitted its files to the Public Prosecutor’s Office.
On 11 August 1997 the Public Prosecutor’s Office addressed a request for mutual assistance to the Austrian authorities requesting the search of a branch of a bank.
Between 26 June 1998 and 4 February 1999 several witness were questioned by the Public Prosecutor’s Office.
On 3 September 1998 several banks were asked to provide information as to the flow of certain funds.
On 26 October 1998 the Austrian authorities supplied the requested information.
On 3 November 1999 the files were submitted to the Public Prosecutor’s Office.
On 9 November 1999 the applicant’s defence counsel consulted the Public Prosecutor’s Office’s file.
On 14 June 2000 the Tübingen Public Prosecutor’s Office issued the bill of indictment accusing the applicant of tax evasion.
On 5 July 2000 the applicant’s defence counsel withdrew from the case.
On 3 August 2000 the applicant himself announced that he would name additional witnesses and would submit further offers of proof.
On 8 August 2000 the Tübingen District Court set a time-limit for the applicant’s submissions until 10 September 2000. On the same day the applicant’s new defence counsel informed the District Court that he would represent the applicant and requested an extension of the time-limit to 31 October 2000.
On 11 December 2000 the District Court scheduled a hearing for 23 January 2001.
On 23 January 2001 the court scheduled the next hearings for 1 and 8 February 2001.
On 8 February 2001 the Public Prosecutor’s Office requested to postpone the hearing.
On 27 August 2001 and 23 January 2002 the Public Prosecutor’s Office asked the court for a progress report.
On 30 December 2002 the sitting judge proposed a deal to the Public Prosecutor’s Office with the view of terminating all pending proceedings, but the negotiations broke down (see above).
On 26 March 2004 the next hearing was scheduled for 20 April 2004.
On 15 April 2004 the applicant’s defence counsel informed the court that the applicant had had a heart attack and requested to cancel the hearing.
Upon the suggestion by the District Court the Public Prosecutor’s Office consented to the discontinuation of the proceedings. Following the applicant’s consent the District Court then closed the proceedings preliminarily according to section 154 § 2 of the German Criminal Procedure Code (see “Relevant domestic law” below) on 7 May 2004. It referred to the aforementioned previous conviction by the Reutlingen District Court of 17 June 1998.
Article 2 § 1 of the German Basic Law (Grundgesetz) in conjunction with the principle of the rule of law (Rechtsstaatsprinzip) guarantees the right to expeditious proceedings. According to the settled case-law of the Federal Constitutional Court the courts and the prosecuting authorities (Anklagebehörden) are called upon to draw the consequences of the length of proceedings at any stage of the proceedings. Their possibilities include inter alia the discontinuation of the proceedings pursuant to sections 153 and 153a of the Criminal Procedure Code, the limitation of the proceedings according to sections 154 and 154a of the Criminal Procedure Code or a reduction of the sentence (see, among others, the decision of 24 December 1983 (no. 2 BvR 121/83); the decision of 19 April 1993 (no. 2 BvR 1487/90); the decision of 21 January 2004, no. 2 BvR 1471/03, Reports of Chamber Decisions (BVerfGK) no. 2, pp. 239 et seq.; the decision of 21 June 2006, nos. 2 BvR 750/06, 752/06 and 761/06). In cases of an exceptional length of proceedings creating particular hardship in respect of which the possibilities under the German Criminal Procedure Code do not suffice, the courts may discontinue the proceedings on account of a procedural bar to the proceedings (Verfahrenshindernis) derived from the German Basic Law (see the decision of 25 July 2003, no. 2 BvR 153/03, Reports of Chamber Decisions (BVerfGK) no. 1, pp. 269 et seq.
“(1) If a misdemeanour (Vergehen) is the subject of the proceedings, the Public Prosecutor’s Office may dispense with the prosecution upon the consent by the criminal court competent for the opening of the main proceedings, if the perpetrator’s guilt is considered to be minor and if there is no public interest in the prosecution. ...
(2) Has the bill of indictment already been issued, the court may discontinue the proceedings at any stage upon the consent of the Public Prosecutor’s Office and the accused. ...”
“Upon the consent by the criminal court competent for the opening of the main proceedings and the accused, the Public Prosecutor may dispense with issuing a bill of indictment and impose conditions and instructions upon the accused, if those are adequate for resolving the public interest of prosecution and are not in conflict with the severity of the guilt. ...”
“(1) The Public Prosecutor’s Office may dispense with the prosecution,
1. if the sentence or the measure of reform and prevention (Maβregel der Sicherung und Besserung) to which the prosecution might lead would not carry weight compared to another sentence or measure of reform and prevention already imposed or expected to be imposed,
2. if a judgment cannot be expected in reasonable time and if another sentence or the measure of reform and prevention already imposed or expected seems sufficient to impress the accused and protect the legal order.
(2) Has the bill of indictment already been issued, the court may discontinue the proceedings preliminarily at any stage upon a motion by the Public Prosecutor’s Office. ...”
“(1) If certain parts of one act (Tat) or several of multiple infractions committed though the same act, do not carry weight
1. compared to the expected sentence or measure of reform and prevention, or
2. next to a sentence or measure of reform and prevention already imposed upon the accused or to be expected for another act,
The prosecution may be limited to the remaining parts of the act or infractions. Section 154 § 1 no. 2 applies accordingly. ...
(2) Has the bill of indictment already been issued, the court may at any stage and upon the consent by the Public Prosecutor’s Office undertake the limitation. ...”


ITEMID: 001-100470
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF DAVLETKHANOV AND OTHER “CHERNOBYL PENSIONERS” CASES v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicants, whose names and years of birth are tabulated below, took part in the cleaning-up operation at the Chernobyl nuclear disaster site. They were subsequently registered disabled, becoming entitled to various social benefits.
6. On various dates the applicants successfully sued authorities for inflation adjustment of these benefits. The judgments became final.
7. On various dates the Presidiums of higher courts allowed the defendant authorities' applications for supervisory review (in the case of Spivak it was the applicant who initiated supervisory review of the judgment of 30 October 2003, asking reversal of its part unfavourable to him) and quashed the judgments, considering that the lower courts misapplied the material law (see details of the judgments in the table below).
8. The relevant domestic law governing the supervisory review procedure before 2003 is summed up in the Court's judgment in the case of Ryabykh v. Russia (no. 52854/99, §§ 31-42, ECHR 2003IX), from 2003 – in the Court's judgment in the case of Kot v. Russia (no. 20887/03, § 17, 18 January 2007).
VIOLATED_ARTICLES: 6