ITEMID: 001-58230
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF DEMİR AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed;Violation of Art. 5-3
TEXT: 7. The first applicant, Mr Demir, is a businessman who was born in 1950. The second applicant, Mr Süsin, a councillor for the Yenimahalle ward of İdil District Council, was born in 1958. They were respectively the chairman and former secretary of the İdil branch of the People’s Social Democratic Party (SHP).
Mr Kaplan, who was born in 1973, was a correspondent of the daily newspaper Hürriyet and a member of the executive committee of the İdil branch of the People’s Republican Party (CHP).
At the material time the applicants all lived and worked in İdil, a district in the province of Şırnak, which is one of those that since 1987 has been subject to the state of emergency regime proclaimed in south-eastern Anatolia.
8. In January and February 1993 about thirty people, including the applicants, were arrested in İdil on the orders of the public prosecutor attached to the Diyarbakır National Security Court (“the public prosecutor”, “the National Security Court”).
9. The facts concerning the applicants’ detention are disputed.
Mr Demir asserted that he had been arrested by the anti-terrorist branch of the İdil security police (“the security police”) and then placed in police custody on 22 January 1993; Mr Kaplan and Mr Süsin maintained that they had suffered the same fate, but on 28 January.
According to the Government, Mr Demir and Mr Süsin were placed in police custody on 26 January 1993 and Mr Kaplan on 30 January.
10. On 27 January 1993 the security police sent Mr Demir and Mr Süsin to the İdil forensic medicine centre to be examined in order to ascertain whether their bodies showed the marks of blows or violence. The medical reports drawn up on the same day concluded that there were no such marks.
On 30 January Mr Kaplan in turn was examined by doctors of the forensic medicine centre, who drew up a report in which they reached the same conclusion.
11. On 12 February 1993 the applicants’ lawyer lodged a complaint with the İdil prosecuting authorities against Mr N. Yılmaz, the head of the security police. Relying on Article 5 § 3 of the Convention and the Court’s relevant case-law, he complained of the length of time his clients had spent in police custody and asked for charges to be brought against those responsible.
12. Mr Kaplan, on 15 February 1993, and Mr Demir and Mr Süsin on 18 February were brought before the single judge of the İdil Criminal Court, who ordered them to be placed in pre-trial detention.
Before appearing in court, the applicants were re-examined by the forensic medicine centre at the request of the security police. The medical reports drawn up as a result did not mention any marks on their bodies which might have been caused by an assault.
13. The applicants’ lawyer was subsequently sent a copy of a decision of 2 April 1993 in which the Criminal Cases Department of the Ministry of Justice informed him that his complaint of 12 February had been dismissed.
14. On 11 June 1993 the public prosecutor filed submissions with the National Security Court against thirty-five defendants, including the applicants, whom he accused of being active members of an illegal organisation, the PKK (Workers’ Party of Kurdistan), seeking application of Article 168 § 2 of the Criminal Code (see paragraph 19 below) and section 5 of the Prevention of Terrorism Act (Law no. 3713) (see paragraph 20 below).
As set out by the public prosecutor, the offences of which the applicants were accused may be summarised as follows.
After joining the PKK in 1988 Mr Demir had maintained regular contacts and planned a number of operations with the PKK militant in charge of the İdil sector; in early 1990 he had been appointed head of the PKK’s Yenimahalle committee at a secret meeting held at his home; following the killing of a Mr Z. in the Midyat district he had invited several people to gather for the funeral, at which he had shouted slogans and urged the other mourners to do the same; he had also shouted separatist slogans at an illegal demonstration that had taken place after the death of a Mr A., a PKK militant; on 21 March 1992 he had incited the people to rebel; a few months later he had called on shopkeepers to close their shops in protest against the Turkish army; lastly, he had on numerous occasions harboured people who wished to join the PKK.
Mr Süsin had attended a number of illegal meetings and demonstrations; at the end of the meeting held at the home of Mr Demir he had been made a member of the above-mentioned PKK committee; in 1991 he had harboured six people at his home and installed seven more in neighbouring houses while they were waiting to join the PKK; in addition, he had collected money to finance that organisation’s activities.
Mr Kaplan had taken part – about a year before his arrest – in an unauthorised shop-closing demonstration; six months earlier he had made photocopies of two PKK leaflets; in addition, he had shouted separatist slogans at two illegal demonstrations that had been held in İdil on 4 and 19 March 1992.
15. On 7 July 1993 the applicants appeared before the National Security Court. Mr Demir and Mr Süsin retracted the confessions they had made at the security police offices, asserting that these had been extracted from them by duress. Mr Kaplan maintained that he had acted under the fear of reprisals by the PKK.
Mr Kaplan was granted conditional release on the same day and the other two applicants after the hearing on 3 February 1994.
16. The National Security Court gave judgment on 14 November 1996. Applying Article 168 § 2 of the Criminal Code, it sentenced Mr Demir and Mr Süsin to twelve years and six months’ imprisonment for membership of an armed gang; it sentenced Mr Kaplan, pursuant to Article 169 of the same Code (see paragraph 19 below), to three years and nine months’ imprisonment for lending assistance to an armed gang and harbouring known criminals.
17. The applicants appealed to the Court of Cassation, which, in a judgment of 2 March 1998, upheld the impugned judgment.
18. Article 19 of the Constitution provides:
“Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law:
…
The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days… These time-limits may be extended during a state of emergency…
…
A person deprived of his liberty, for whatever reason, shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.
Compensation must be paid by the State, as the law shall provide, for damage sustained by persons who have been victims of treatment contrary to the above provisions.”
19. The relevant provisions of the Criminal Code read as follows:
Article 168
“Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership … or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.
The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”
Article 169
“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment…”
20. Under section 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in Article 168 of the Criminal Code is classified as a “terrorist act”. Under section 4, the offence defined in Article 169 of the same Code is classified in the category of “acts committed to further the purposes of terrorism”.
Pursuant to section 5 of Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in sections 3 and 4 of the Act are increased by one half.
21. Under section 9 (a) of Law no. 2845 on procedure in the National Security Courts, only these courts can try cases involving the offences defined in Articles 168 and 169 of the Criminal Code.
22. At the material time, section 30 of Law no. 3842 of 18 November 1992 provided that, with regard to offences within the jurisdiction of the National Security Courts – including those mentioned in paragraph 20 above – any arrested person had to be brought before a judge within forty-eight hours at the latest, or, in the case of offences committed by more than one person, within fifteen days. In provinces where a state of emergency had been declared, these time-limits could be extended to four days and thirty days respectively.
23. Section 1 of Law no. 466 on the payment of compensation to persons arrested or detained provides:
“Compensation shall be paid by the State in respect of all damage sustained by persons
(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;
(2) who have not been immediately informed of the reasons for their arrest or detention;
(3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;
(4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;
(5) whose close family have not been immediately informed of their arrest or detention;
(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial …, or are acquitted or discharged after standing trial; or
(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only…”
24. On 6 August 1990 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe the following notice of derogation:
“1. The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to [amount] to a threat to the life of the nation in the meaning of Article 15 of the Convention.
During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces.
2. The threat to national security is predominantly [occurring] in provinces of South East Anatolia and partly also in adjacent provinces.
3. Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights.
4. To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10 1990 the decrees with force of law [nos.] 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention [on] Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13. A descriptive summary of the new measures is attached hereto...”
The descriptive summary of the content of Legislative Decrees nos. 424 and 425, annexed to this notice, reads as follows:
“A. By virtue of the decrees having force of law [nos.] 424 and 425 on the state of emergency region, the state of emergency region governorship has been empowered with the following additional powers.
1. The Ministry of Interior, upon the proposal of the Governor of the state of emergency region can temporarily or permanently ban the publication (regardless of the location of the printing press), which is prone to cause a serious disruption in the public order of the region or excitement of the local people or to handicap the security forces in performing their duties by misinterpreting the regional activities. This also includes, if necessary, the power to order the closure of the printing press concerned.
2. The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Ministry of Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency. At their request, the persons concerned may receive financial aid from the Development and Support Fund. The particulars for this assistance shall be determined by the Ministry of Interior.
3. The Governor of the state of emergency region (or the delegated provincial Governor) can suspend (up to 3 months) or require prior permission for certain labour disputes related activities like strike and lock-out.
4. The Governor can also ban, or take preventive measures against certain activities like destruction, looting, boycotting, slowing down of work, restricting the freedom of work and closing down of business.
5. The Governor of the state of emergency region can order the temporary or permanent evacuation, change of place, regrouping of villages, grazing fields and residential areas for reasons of public security.
6. The Governor of the state of emergency region can order the relevant public institutions in the state of emergency region to transfer permanently or temporarily to other positions their public officials who are deemed to be harmful to general security and public order, the concerned public official shall remain subject to the provisions of the special law on civil service applicable to him.
B. No legal claims of criminal, pecuniary or legal nature can be brought against, nor can any legal steps be taken with the judicial authority for this purpose in respect of any decision taken or any act performed by the Minister of Interior, the Governor of the emergency region and other governors, when exercising the power under the decree no. 424 having force of law.
C. No interim decision to suspend the execution of an administrative act can be taken during proceedings of an administrative suit which has been filed against the act(s) performed when exercising the power given by the law of emergency no. 2935 to the Minister of Interior, the Governor of the state of emergency region and the provincial governors.
D. The suit of nullity can not be filed against administrative acts performed by the Governor of the emergency region when exercising the power given to him under the decree having force of law no. 285.”
According to a note in the notice of derogation, “the threat to national security [was] predominantly occurring” in the provinces of Elazığ, Bingöl, Tunceli, Van, Diyarbakır, Mardin, Siirt, Hakkâri, Batman and Şırnak.
25. In a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Legislative Decree no. 424 had been replaced by Legislative Decree no. 430, promulgated on 16 December 1990. An appendix to the above letter, containing a descriptive summary of the decree, reads as follows:
“1. The powers of the Governor of the state of emergency under Decree with Force of Law no. 425 have been limited to the region where a state of emergency is in force. Thus, the adjacent provinces have been excluded from the competence of the Governor.
2. The special powers given to the Governor of the state of emergency by virtue of Decree with Force of Law no. 425 have been restricted to measures dealing with terrorist activities aiming at the destruction of fundamental rights and freedoms.
3. The powers of the Minister of Interior [to] ban any publication or order the closure of the printing press (regardless of the location) is restricted. According to the new provision, the Minister of Interior has at first to issue a warning to the owner or the publisher of the publication. If the owner or the publisher continues to print or distribute the controversial issue, then the Minister concerned may temporarily or permanently ban the publication and, if necessary, may also order the closure of the printing press for a maximum period of 10 days, which may, however, be extended to one month in case of repetition. No maximum period for closure of the printing press has been stipulated by the (abrogated) Decree no. 424 (Compare § A (1) of the Descriptive Summary attached to the Notice of Derogation of August 6, 1990).
4. The authority of the Governor of the state of emergency to order persons to settle at a specified place outside the state of emergency region has been restricted by virtue of the new Decree. The persons who are expelled from the state of emergency region are not obliged to settle in a specified place. Hence, they will be free to choose their residence out of the region except when they request financial aid. In this case they have to settle at a specified place (See § A (2) of previous Descriptive Summary).
5. Referring to the paragraphs A (3, 4, 5 and 6) of the Descriptive Summary of August 6, 1990 (which are related to strikes, lock-out and some other activities of labour unions, evacuation and regrouping of villages, transfer of public officials to other posts or positions), it should be noted that the adjacent provinces have been excluded by virtue of the new decree.
6. As to paragraph 8 of the previous Descriptive Summary, a new clause has been included in the new Decree safeguarding the right to file an action against the administration (State) for loss or damages arising out of the performance of the acts taken under the emergency measures.”
26. On 12 May 1992 the Permanent Representative of Turkey wrote to the Secretary General in the following terms:
“As most of the measures described in the decrees which have the force of law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention, are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention only. The derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention is no longer in effect; consequently, the corresponding reference to these Articles is hereby deleted from the said Notice of Derogation.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-73025
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MAGYAR v. HUNGARY (No. 2)
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1937 and lives in Budapest.
5. On 11 March 1996 the applicant brought an action before the Pest Central District Court seeking the termination of the common ownership of real estate belonging to him and his divorced wife.
6. At the subsequent hearings on 27 March, 12 June, 29 June and 21 October 1997 and 26 May 1998, the applicant extended his claims to include the allocation of other items of the matrimonial property. He was repeatedly invited to give better particulars of his claims.
7. At the hearing on 22 October 1998 the District Court suspended the proceedings pending the outcome of expropriation proceedings concerning one of the real properties at issue.
8. On the applicant’s procedural appeal, on 14 January 1999 the Budapest Regional Court ordered that the proceedings be resumed. Subsequently, hearings were held on 9 September 1999, 6 January and 11 April 2000. On the latter date the District Court appointed a valuation expert. The expert filed his report on 1 August 2000.
9. Further hearings took place on 12 September 2000, 9 January and 4 October 2001. On 25 January 2002 another valuation expert was appointed.
10. The court held additional hearings on 12 February, 26 November 2002, 20 March, 10 July 2003, 9 March, 24 July, 4 November 2004, 4 January and 14 April 2005. On the latter date it again invited the applicant to give better particulars of his claims.
11. The proceedings are still pending.
12. On 23 May 1997 the Budapest and Pest County Health Insurance Fund issued a payment order against the applicant concerning unpaid social-security contributions. Subsequently the applicant brought an action in the Pest Central District Court challenging the lawfulness of the administrative decision.
13. On 3 May 1999 the court observed that, due to a change of legislation, the respondent was replaced by the Tax Authority. On 11 January 2000 the Budapest Regional Court dismissed the applicant’s procedural appeal. He filed a petition for review with the Supreme Court which he withdrew on 27 September 2000.
14. The court held hearings on 28 March and 5 December 2001. On 5 April 2002 an expert accountant was appointed. The expert presented his opinion on 28 August 2002.
15. Further hearings took place on 2 October and 28 November 2002.
16. On 22 January 2003 the District Court dismissed the applicant’s action, holding that the payment order had been issued lawfully.
17. On 11 April 2003 the applicant appealed.
18. On 26 January 2004 the Budapest Regional Court dismissed the applicant’s appeal.
19. On 14 April 2005 the Supreme Court dismissed the applicant’s petition for review.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5067
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: FONTANESI v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1947 and living in Vienna. He is a practising lawyer by profession and presents his own case to the Court.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.

In August 1992 criminal proceedings were instituted before the Vienna Regional Criminal Court (Landesgericht für Strafsachen Wien) against the applicant under the Tax Offences Act (Finanzstrafgesetz). He was suspected of having evaded taxes exceeding 1 million Austrian schillings (ATS) between 1985 and 1989.
On 8 October 1992, upon a warrant issued by the Regional Court, a search of the applicant’s law office was carried out, at which two representatives of the Bar (Rechtsanwaltskammer) were present.
In April 1993 the Bar Disciplinary Council (Kammeranwalt) was informed about the criminal proceedings pending against the applicant.
On 4 June 1993 the Disciplinary Council (Disziplinarrat) of the Vienna Bar appointed an Investigating Commissioner (Untersuchungskommissär), to whom the applicant submitted observations on 29 June 1993.
On 26 January 1994 the Disciplinary Council requested the applicant to file observations as regards a possible interlocutory measure (einstweilige Maßnahme) against him.
On 30 March 1994 the Disciplinary Council imposed an interlocutory measure under section 19 § 3 subparagraph 1 (b) of the Disciplinary Act 1990 (Disziplinarstatut 1990) upon the applicant, withdrawing his right to represent people before the Vienna Regional Criminal Court, its subordinate courts, the corresponding prosecution authorities, and the Tax Office of the First District of Vienna. The Disciplinary Council held that there was cause to fear that the observance of the applicant’s professional duties would not be sufficiently safeguarded if the applicant represented his clients before a court or authority where criminal proceedings were pending against him. In addition, such representation would prejudice the reputation of the profession. It stated that the measure would be in force at the most until the termination of the disciplinary proceedings against the applicant. Further, he was informed that the measure had immediate effect.
On 27 April 1994 the applicant filed an appeal with the Appeals Board (Oberste Berufungs- und Disziplinarkommission). Alleging that the contested decision was unlawful, unconstitutional and in breach of the European Convention of Human Rights, he particularly complained that the imposition of the interlocutory measure was not justified since it had not been taken immediately, but only nineteen and a half months after the introduction of criminal proceedings against him. In this respect, he pointed out that two Bar representatives had been present during the search of his law office on 8 October 1992, and that the Disciplinary Council should, therefore, have been aware of the charges against him. The applicant further claimed that the Disciplinary Council had failed to indicate that he had, during these nineteen and a half months, actually prejudiced his clients or the reputation of the profession.
On 24 October 1994 the Appeals Board dismissed the applicant’s appeal. It noted that the Vienna Regional Criminal Court had apparently failed to inform the Bar about the institution of criminal proceedings against the applicant. The latter had only learned about these proceedings in April 1993. The Appeals Board found that the requirements laid down in section 19 § 1 of the Disciplinary Act 1990 for imposing an interlocutory measure were met: Criminal proceedings concerning charges of tax evasion of more than ATS 1 million were pending against the applicant and, in view of the serious nature of these accusations and the ensuing disciplinary offence, the measure was necessary in order to protect the interests of potential litigants and the reputation of the profession. It was quite obvious that the applicant could not, in full independence, discharge his professional duties before the Vienna Regional Criminal Court, which was conducting preliminary investigations against him, or its subordinate courts, the respective prosecution authorities, or the Tax Office for the First District of Vienna which was carrying out the underlying tax assessment proceedings. Moreover, it was harmful to the reputation of the profession if a lawyer appeared before the same court once as an accused and then as counsel.
Further, as regards the applicant’s complaint that the interlocutory measure had been taken belatedly, the Appeals Board observed that section 19 of the Disciplinary Act 1990 did not specify any time-limits. The Disciplinary Council could, therefore, impose such measures as long as the criminal proceedings were pending and the above conditions were satisfied. The applicant had failed to show any new circumstances indicating that a considerable prejudice was no longer to be feared. It was irrelevant whether any clients or the profession had actually suffered any prejudice, since the imposition of the interlocutory measure only required that there was reason to fear that such prejudice would occur if the applicant continued to act before the respective courts or authorities.
On 31 January 1995 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He claimed, in particular, that the disciplinary authorities had failed properly to investigate the facts as regards the institution of criminal proceedings against him. He submitted that the Bar had, at the latest on 8 October 1992, become aware that criminal proceedings had been instituted against him. The interlocutory measure, since it had only been imposed in March 1994, was therefore arbitrary and infringed the principle of non-discrimination (Gleichheitsgrundsatz), as well as Article 8 of the European Convention of Human Rights.
On 19 June 1995 the Constitutional Court dismissed the applicant’s complaint. It confirmed the finding of the Appeals Board that section 19 of the Disciplinary Act 1990 allowed the Disciplinary Council to take interlocutory measures as long as criminal proceedings were pending. To ensure the principle of non-discrimination, the Appeals Board was not free to decide, without giving objective reasons, whether or not and when it imposed an interlocutory measure. However, the applicant had failed to substantiate that the Appeals Board had acted arbitrarily in the present case. The sole fact that a measure could have been taken earlier did not render the decision arbitrary. Further, the applicant had failed to show that the proceedings, as such, had lasted unreasonably long.
On 21 February 1996 the Disciplinary Council of the Vienna Bar decided to open disciplinary proceedings against the applicant on the ground that there were reasons to suspect him of having evaded income tax between 1985 and 1989, in an amount to be specified in the further proceedings.
On 15 May 1996 the Review Chamber (Ratskammer) at the Vienna Regional Criminal Court, referring to a report of the Tax Office of the First District of Vienna, found that the amount of taxes allegedly evaded by the applicant was below ATS 1 million. Therefore, the prosecution of the tax offences did not fall within the competence of the courts.
On 1 July 1996 the Vienna Regional Criminal Court discontinued the criminal proceedings against the applicant and informed the Bar accordingly.
On 5 July 1996 the Bar lifted the interim measure of 30 March 1994, finding that the conditions for upholding it were no longer met, given that the criminal proceedings against the applicant had been discontinued.
B. Relevant domestic law
Section 19 of the Disciplinary Act 1990 (Disziplinarstatut 1990) deals with interlocutory measures.

Paragraph 1 provides that the Disciplinary Council may impose an interlocutory measure on a lawyer, inter alia, if criminal proceedings are pending against him and if the measure, having regard to the nature and severity of the disciplinary offence at issue, is necessary on the ground that there are reasons to fear considerable prejudice either to the interests of potential litigants or to the reputation of the profession.
Paragraph 3 enumerates the interlocutory measures. In the case of a practising lawyer, they include the withdrawal of the right to represent people before specified courts or administrative authorities, or before courts and administrative authorities in general (subparagraph 1 (b)).


ITEMID: 001-112546
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: CYTACKA AND OTHERS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: The first applicant, Ms Renata Cytacka, is a Lithuanian national and lives in Jašiūnai, situated in Šalčininkai Region. Six other applicants, whose names appear in the annex, are members of the school council of the “Vilnius Region Lavoriškės Secondary School”.
On 9 February 2007 the Council of Vilnius District Municipality (a territorial public law entity, hereinafter “the municipality”) allowed a public school that was mostly attended by members of a Polish minority to be named after a famous historical figure and named it “Vilnius Region Lavoriškės Emilii Plater Secondary School”.
Subsequently the Government’s Representative in the Vilnius Region brought an action against the municipality for the annulment of the decision, maintaining that the Polish spelling of the name as “Emilii Plater” contravened the Law on State Language and grammar rules of Lithuanian language, which is the only official language in the country. For official names the Lithuanian spelling “Emilijos Pliaterytės” should have been used instead.
On 22 June 2007 the Vilnius Regional Administrative Court allowed the Government’s Representative’s action. Even if the spelling “Emilii Plater” was preferred by the Polish minorities living in the area, this did not remove the municipality’s obligation to comply with the legal requirements for the official naming of the public school.
On 15 April 2008, by a final decision, the Supreme Administrative Court dismissed the municipality’s appeal. The court concluded that in a case where the name of a historical figure was being used in the official name of a school (organisation/company), the rules of Lithuanian grammar applied.
Ms Cytacka, who was a staff member of the municipality, participated in the court hearing as a representative of this public institution before the courts.
As for the remaining six applicants, they have not brought any claims at the domestic level. Besides, no application signed by these applicants in their own name has been lodged with the Court, nor has any authority empowering Ms Cytacka to represent them before the Court been submitted. Their names were notified to the Court in a letter of 28 August 2009.
Article 22 of the Law on Administrative Proceedings (LAP) provides that persons who consider that their rights or interests protected by law have been infringed have a right to lodge a complaint with the administrative court.
Under Article 48 of the LAP, parties to the administrative proceedings shall also be the interested third parties, that is, those persons whose rights and obligations may be affected by a court’s decision in the case.
According to Articles 53 and 82 of the LAP, the parties to the proceedings (including the interested third parties) have a right, inter alia, to submit their observations, to oppose to the observations of the other parties, to submit requests, to present their statements at the hearing without a timelimit as to the length of their speeches.


ITEMID: 001-57983
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF REMLI v. FRANCE
IMPORTANCE: 3
CONCLUSION: Preliminary objection allowed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Six month period);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Non-pecuniary damage - finding of violation sufficient
JUDGES: R. Pekkanen
TEXT: 6. Mr Saïd André Remli, a French national of Algerian origin, is currently in custody at Les Baumettes Prison in Marseilles.
7. On 16 April 1985, while attempting to escape from Lyons-Montluc Prison, the applicant and a fellow prisoner of Algerian nationality, Mr Boumédienne Merdji, knocked out a warder, who died four months later as a result of the blows he had received.
8. The two prisoners were charged with intentional homicide for the purpose of facilitating, preparing or executing the offences of escape and attempted escape. In a judgment of 12 August 1988 the Indictment Division of the Lyons Court of Appeal committed them for trial at the Rhône Assize Court. On 5 December 1988 the Court of Cassation dismissed an appeal on points of law that Mr Remli had lodged against the decision to commit him for trial.
9. The trial at the Assize Court took place on 12, 13 and 14 April 1989. On the first day, when the sitting began, the members of the jury and two additional jurors were drawn by lot. The defendants challenged five of them, the legal maximum, and the prosecution two of them. The jury was subsequently finally empanelled and the hearing of witnesses began.
10. On 13 April 1989, at about 1.50 p.m., as the sitting resumed, counsel for the applicant filed submissions in which they requested the court to take formal note of a remark made by one of the jurors on 12 April, before the hearing began, which had been overheard by a third person, Mrs M., and to append her written statement, together with their submissions, to the record of the trial.
11. Mrs M.’s statement of 13 April read as follows:
"I, the undersigned Mrs [M.], declare on my honour that I witnessed the following facts:
I was at the door of the court at about 1 p.m., next to a group of people. From their conversation, I chanced to overhear that they were members of the jury drawn by lot in the Merdji [and] Remli against Pahon case.
One of them then let slip the following remark: ‘What’s more, I’m a racist.’
I do not know that person’s name, but I can state that he was on the left of the juror sitting immediately to the left of the judge on the presiding judge’s left.
Being unable to attend the hearing to confirm the facts as my daughter has recently gone into hospital, but being at the court’s disposal if it proves essential to call me as a witness, I have drawn up this statement to be used for the appropriate legal purposes."
12. The court, composed in this instance solely of the judges, withdrew to deliberate and then delivered the following judgment:
"...
According to the handwritten statement of a Mrs [M.] of 13 April 1989, one of the members of the jury in the present case said ‘What’s more, I’m a racist’ at the door of the court at about 1 p.m.
According to this statement and the written submissions, these words were spoken before the beginning of the first hearing in the instant case and not in the presence of the judges of the Court.
The Court is thus not able to take formal note of events alleged to have occurred out of its presence.
For these reasons,
it Refuses the application made to it for formal note to be taken;
Holds that the applicants’ written submissions and the statement of Mrs [M.] are to be appended to the record of the trial;
..."
13. On 14 April 1989 the Assize Court sentenced Mr Remli to life imprisonment and Mr Merdji to a twenty-year term, for two-thirds of which he would not be liable to any form of release.
14. Mr Remli appealed on points of law. He argued mainly that the Assize Court had made a mistake of law and had disregarded Article 6 para. 1 (art. 6-1) of the Convention in holding that it was "not able to take formal note of events alleged to have occurred out of its presence" when it had power to do so.
15. In a judgment of 22 November 1989 the Court of Cassation dismissed the appeal. It gave the following reason in particular:
"The Assize Court rightly refused to take formal note of events which, assuming they were established, had taken place outside the hearing, such that it could not have been in a position to note them."
16. Procedure in the Assize Court is governed by Articles 231 to 380 of the Code of Criminal Procedure ("CCP").
The Assize Court consists of the court properly speaking - the presiding judge and, normally, two other judges - and the jury, composed of citizens who satisfy the conditions of eligibility laid down by law. It tries mainly serious criminal cases sent to it by the Indictment Division and related or inseparable lesser offences. No reasons are given in its judgments, which are appealable only on points of law.
17. For each case on the Assize Court’s list a jury is empanelled at the beginning of the trial. It contains nine jurors, drawn by lot from a session list. This list contains thirty-five names drawn by lot every three months from an annual list, itself consisting of a variable number of names drawn by lot from preparatory lists that are compiled in each municipality after an initial drawing of names by lot from the electoral register.
One or more additional jurors are also drawn by lot and attend the trial in order that they may, if necessary, replace any juror who is unable to sit.
The jury is constituted at the point when the names of nine jurors who have not been challenged and the names of the additional jurors have all been drawn by lot.
18. As the names of the jurors are being drawn, the defendant or defendants are entitled to challenge up to five of them and the prosecution up to four. Their grounds for doing so cannot be given.
19. Article 668 CCP provides:
"Any judge may be challenged on any of the following grounds:
1. Where the judge or his spouse is a blood relative or a relative by marriage of one of the parties or of a party’s spouse, up to the degree of second cousin inclusive. The challenge may be made against the judge even in the event of divorce from his spouse or the latter’s death where the spouse was a relative by marriage of one of the parties, up to the second degree inclusive;
2. Where the judge or his spouse, or a person in respect of whom either acts as guardian (tuteur), supervisory guardian (subrogé tuteur) or court-appointed administrator, or a company or association in whose management or supervision either takes part has an interest in the dispute;
3. Where the judge or his spouse is a blood relative or relative by marriage, to the degree indicated above, of the guardian, supervisory guardian or court-appointed administrator of one of the parties or of a director or manager of a company that is a party to the proceedings;
4. Where the judge or his spouse is dependent on one of the parties;
5. Where the judge has dealt with the case as a judge, arbitrator or legal adviser, or where he has given evidence as a witness relating to the facts of the case;
6. Where there has been litigation between the judge, his spouse or their lineal blood relatives or relatives by marriage and one of the parties, his spouse or his lineal blood relatives or relatives by marriage;
7. Where the judge or his spouse is litigating in a court of which one of the parties is a judge;
8. Where the judge or his spouse or their lineal blood relatives or relatives by marriage are in dispute over an issue similar to that between the parties;
9. Where there have been any disagreements between the judge or his spouse and one of the parties sufficiently serious to cast doubt on his impartiality."
Article 669 CCP provides:
"A charged person, accused or any party to the proceedings who wishes to challenge an investigating judge, a judge of the police court or one or more or all of the judges of the Criminal Court, the Court of Appeal or the Assize Court must, if the challenge is to be valid, make an application to the President of the Court of Appeal.
Members of State Counsel’s Office cannot be challenged.
The application must mention by name the judge or judges being challenged and set out the grounds relied on, together with all the supporting evidence.
A party who has willingly proceeded in a court or before an investigating judge shall be entitled to make a challenge only on grounds of circumstances that have arisen since, where they are such as to constitute a ground for challenge."
In the case of the Assize Court these provisions apply only to the judges and not to the jurors.
20. The members of the jury, standing bareheaded, are addressed by the presiding judge as follows:
"You swear and promise to consider the charges that will be brought against X ... with the greatest care; not to betray either the interests of the accused or those of society, which is accusing him/her; not to communicate with anyone until you have returned your verdict; not to be swayed by hatred or spitefulness or by fear or affection; to reach your verdict in the light of the charges and the defence, according to your conscience and your innermost conviction, with the impartiality and firmness that befit a free man of integrity; and to preserve the secrecy of the deliberations, even after you have discharged your office."
Each of the jurors is individually called upon by the presiding judge and replies, raising his hand: "I swear."
21. Where an event likely to infringe the rights of one of the parties occurs during the trial, the party concerned may ask the Assize Court - composed in this instance of only the judges - to "take formal note" of it. This is the party’s only means of having it recorded. The Court of Cassation cannot entertain complaints that have been raised if no application was made to the Assize Court to take formal note of them and they were not entered in the record of the trial (Court of Cassation, Criminal Division, 23 December 1899, Bulletin criminel (Bull. crim.) no. 380; 24 July 1913, Bull. crim. no. 365; 12 May 1921, Bull. crim. no. 211; 31 January 1946, Bull. crim. no. 40; 5 May 1955, Bull. crim. no. 28; 21 November 1973, Bull. crim. no. 427; 22 April 1977, Dalloz-Sirey 1978, p. 28)
The Assize Court may refuse to take formal note of events that are alleged to have occurred outside the hearing. It also has an unfettered discretion to decide whether evidence should be taken to verify them (Court of Cassation, Criminal Division, 16 March 1901, Bull. crim. no. 85; 16 January 1903, Bull. crim. no. 23; 5 August 1909, Bull. crim. no. 422; 29 February 1984, Albarracin; 8 July 1985, Garbidjian).
22. Interlocutory decisions on such matters can be challenged by means of an appeal on points of law, but only at the same time as the judgment on the merits (Article 316 CCP).
23. Article 662 CCP provides:
"In matters within the jurisdiction of the Assize Court, the Criminal Court or the police court, the Criminal Division of the Court of Cassation may remove a case from any investigating court or judge or any court of trial and transfer it to another court or judge of the same rank, either where the court that would normally have jurisdiction cannot be composed as required by law or where justice is otherwise prevented from taking its course or on the ground of reasonable suspicion of bias.
An application for transfer may be made either by Principal State Counsel attached to the Court of Cassation or by the prosecutor attached to the court dealing with the case, or by the person charged, or by a civil party to the proceedings.
...
The lodging of an application shall not have any suspensive effect unless the Court of Cassation orders otherwise.
..."
The Criminal Division has unfettered discretion to determine whether such a ground is made out on the alleged facts (Court of Cassation, Criminal Division, 26 November 1931, Bull. crim. no. 272; 9 May 1932, Bull. crim. no. 126; 22 March 1933, Bull. crim. no. 61; 17 November 1964, Bull. crim. no. 301). An applicant is required to establish the existence of circumstances sufficiently weighty to justify serious doubts as to the impartiality of the court in question.
This procedure can be used only in respect of a whole court and not against one or more members of a collegiate court (Court of Cassation, Criminal Division, 25 November 1976, Bull. crim. no. 343; Revue de science criminelle et de droit pénal comparé 1977, p. 603, comments by J. Robert).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59564
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF LAMANNA v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits (victim);No violation of Art. 6-1;Violation of Art. 6-2;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. On 11 March 1993 the applicant was arrested by the Belgian police in Brussels on the basis of an international arrest warrant issued by the Salzburg Regional Court (Landesgericht) on 14 May 1992. The applicant was suspected of attempted murder. Following his extradition by the Belgian authorities, he was placed in Salzburg Prison on 2 July 1993 and remanded in custody.
9. On 13 January 1994 the Salzburg Public Prosecutor’s Office referred the applicant’s case to the Salzburg Regional Court, charging him with attempted murder, aggravated robbery and the unlawful possession of a weapon.
10. On 10 October 1994 an assize court (Geschwornengericht) sitting at the Salzburg Regional Court acquitted the applicant of all the charges against him.
The operative provisions and grounds of the judgment read as follows:
“Salvatore Lamanna is acquitted of the charges brought against him, namely that, on 2 May 1992 in Wagrain, acting as an accomplice to his brother A.Lamanna, who was prosecuted in separate proceedings,
1. he had attempted to murder Dani and Pedro N. by stabbing Dani N.’s left thigh, left hand, upper part of the body and throat and by shooting at his head which had been grazed by a bullet, ...
2. he had taken unlawfully by force, as described under point 1.), and with a weapon the luggage of Dani and Pedro N. which contained about ATS 250,000 in different currencies;
3. he had unlawfully possessed and carried a revolver; ...
in accordance with section 336 of the Code of Criminal Procedure (Strafprozessordnung).
Grounds
The acquittal is founded on the jury’s verdict.”
11. According to the record of the jury’s deliberations (Niederschrift), as regards the attempted murder charge, the jury found, in dubio pro reo, that the applicant’s defence could not be refuted. In this respect, they noted that the applicant had been alone and the weapon had been in the possession of Dani and Pedro N. who had not testified at the trial. As regards the second charge of taking property by force, the jury considered that the applicant had had no intention to commit a robbery. Finally, concerning the unlawful possession of a revolver, they noted that the weapon had been in the possession of Dani and Pedro N. and that the applicant had only taken it in the course of the fight.
12. Upon pronouncement of the judgment, at the same hearing, defence counsel applied for the applicant’s release and for compensation for pecuniary damage caused by his detention on remand. The prosecutor opposed the claim. The hearing was interrupted for the court to deliberate, but the compensation decision was not announced there and then as the judgment was not yet final. On resumption, the applicant’s release was ordered and the trial closed.
13. The decision of the assize court of 10 October 1994, dismissing the applicant’s request for compensation, was served upon the applicant’s counsel on 4 November 1994. In that decision, the assize court found that the conditions laid down by section2(1)(b) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz – “the 1969 Act”) were not satisfied. In its opinion,
“A claim to compensation under section 2(1)(b) of the Compensation (Criminal Proceedings) Act ... is conditional on the applicant being cleared of the suspicion of which he was the object in the proceedings. A person who has been detained is so cleared only if all the suspicious circumstances telling against him have been satisfactorily explained, so that they cease to constitute an argument for the suspect’s guilt.
Having regard to the record of the jury’s deliberations, who expressly referred to the principle of ‘in dubio pro reo’ when answering the first main question, it had to be assumed that the suspicion against the applicant had not been dispelled. This circumstance was decisive for the decision of the assize court to refuse the request for compensation.”
14. On 18 November 1994 the applicant appealed to the Linz Court of Appeal (Oberlandesgericht), arguing that the reasoning of the assize court was wrong. Reference was also made to Article 6 § 2 of the Convention and the judgment of 25 August 1993 of the European Court of Human Rights in the case of Sekanina v. Austria (Series A no. 266-A).
15. On 1 February 1995 the Linz Court of Appeal, sitting in private, dismissed the appeal as being unfounded. The reasons for its decision started with a summary of the Regional Court’s decision. They went on to refute the applicant’s objections as to the Regional Court’s interpretation of the record of the jury’s deliberations, confirming that the conditions of section 2 § 1 (b) of the 1969 Act were not met. Further, it was stated that the applicant’s reference to the judgment of the European Court of Human Rights in the Sekanina case was not relevant as there was no new and independent assessment of guilt in the present case. Finally, it was held that the Regional Court had correctly refused to take further evidence.
16. Following the Court’s admissibility decision of 29 February 2000, the Supreme Court (Oberster Gerichtshof), upon the Attorney General’s plea of nullity for the preservation of the law as regards the lack of publicity (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes), found on 9 November 2000 that there had been a violation of section 6 § 4 of the 1969 Act, taken in conjunction with Article 6 § 1of the Convention, in that the Salzburg Regional Court’s decision of 10 October 1994 had not been pronounced publicly, a deficiency which had not been remedied by the Linz Court of Appeal when taking its decision of 1 February 1995. Therefore, the Supreme Court ordered the Linz Court of Appeal to pronounce its decision of 1 February 1995 in public.
17. On 9 February 2001 the Linz Court of Appeal complied with this order, pronouncing its decision of 1 February 1995 at a public hearing.
18. Under section 336 of the Code of Criminal Procedure, the assize court must acquit the accused as soon as the jury has answered the question of guilt in the negative.
19. The relevant provisions of the Compensation (Criminal Proceedings) Act 1969 read as follows:
“(1) A right to compensation arises: ...
(b) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in Austria ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or the prosecution is excluded on other grounds, in so far as these grounds existed when he was arrested; ...”
Section 6
“(2) A court which acquits a person or otherwise frees him from prosecution ... (section 2 (1) (b) or (c)) must decide either of its own motion or at the request of the individual in question or the public prosecutor’s office whether the conditions for compensation under section 2 (1) (b) or (c), (2) and (3) have been satisfied or whether there is a ground for refusal under section 3. If the judgment was based on the verdict of a jury, the bench shall decide together with the jury. ...
(4) Once the judgment rendered in the criminal proceedings has become final, the decision, which need not be made public, must, as part of the proceedings provided for in paragraph 2, be served on the detained or convicted person personally and on the public prosecutor ...
(5) The detained or convicted person and the public prosecutor may appeal against the decision to a higher court within two weeks. ...”
20. As a general rule, there is no public hearing in the Court of Appeal. The Court of Appeal rules after sitting in private.
21. In its judgment of 29 September 1994 the Constitutional Court ruled on the constitutionality of section 2 (1)(b) of the 1969 Act. It found that this provision in itself did not violate Article 6 § 2 of the Convention which, under Austrian law, has the force of constitutional law. In the light of the Sekanina v. Austria case (judgment of 25 August 1993, Series A no. 266A), it held that it was not the refusal of a claim for compensation which was contrary to the Convention, but the re-examination of the question of guilt after a final acquittal. In the Constitutional Court’s view only the separate re-assessment of evidence on the basis of the contents of the whole court file was likely to infringe the presumption of innocence. Nevertheless, the Constitutional Court observed that it would be desirable to amend section 2 (1)(b) of the 1969 Act in order to clarify the law.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-89386
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GAVRIL YOSIFOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 5. On 19 November 1996 the applicant was arrested and detained on suspicion of committing an offence. On 22 November 1996 he was charged with seven counts of theft, one count of attempted theft and one count of robbery. Most of the charges concerned offences committed jointly with others. He remained in custody until 30 September 1997, when he was released on bail.
6. In June 1998 the Sofia District Prosecutor’s Office indicted the applicant, Mr V.S. and Mr D.D. in relation to four thefts and one robbery. On an unspecified date one of the victims of the offences joined the proceedings as a civil claimant.
7. After a trial, in a judgment of 7 December 1998 the Sofia District Court found the applicant guilty as charged, sentenced him to three years’ imprisonment, and ordered him to pay damages to the civil claimant. The court did not make an order for the applicant’s detention pending appeal. It did not immediately give the reasons for its judgment; they were made available in October 1999.
8. On 5 January 1999 the applicant’s counsel appealed to the Sofia City Court. Since at that point she did not yet have the reasons for the Sofia District Court’s judgment, she submitted in general that the applicant’s conviction was unlawful and unfounded and asked it to be quashed. She also argued that his sentence was excessive and requested that it be revoked or suspended. She said that she would provide further particulars and indicate the evidence to be gathered as soon as the reasons for the Sofia District Court’s judgment became available. As required under Article 318 § 2 of the 1974 Code of Criminal Procedure, the appeal was lodged through the Sofia District Court.
9. On 17 February 1999 the Sofia District Court briefly noted that the appeal did not meet the requirements of Article 319 of the Code and, without indicating the specific deficiencies, directed the applicant to submit a rectified appeal within seven days. The applicant was notified of the court’s ruling on 20 April 1999, but did not react. Accordingly, in a decision of 10 May 1999 the Sofia District Court dismissed the appeal. Neither the applicant, nor his counsel was notified of this and did not seek to appeal against this decision.
10. In line with Article 371 §§ 1 and 2 (3) of the Code (see paragraph 24 below), upon the expiry of the fifteen-day time-limit for appealing against the decision of 10 May 1999 the applicant’s conviction and sentence were considered final and therefore enforceable. On 30 November 1999 he was detained in Sofia Prison for the purpose of serving his sentence.
11. On 20 December 1999 the applicant’s counsel appealed to the Sofia City Court against the Sofia District Court’s decision of 10 May 1999. She argued that the appeal against the applicant’s conviction and sentence had been in line with all legal requirements. She stressed that the applicant had not been required to give detailed grounds of appeal, as the Sofia District Court had not made available the reasons for its judgment within the timelimit for lodging an appeal. Finally, she asked the court to rule rapidly, as the applicant was in custody serving his sentence.
12. On 2 February 2000 the Sofia District Court sent this appeal to the Sofia City Court.
13. Two hearings listed by the Sofia City Court on 20 March and 22 May 2000 respectively were adjourned: the first because the applicant had not been properly summoned and, although legally represented, did not appear in person, and the second because his co-accused and the civil claimant, despite being duly summoned, failed to attend.
14. At a hearing which took place on 17 July 2000 the Sofia City Court found that there was no need to involve the applicant’s coaccused and the civil claimant in the proceedings relating to the propriety of the Sofia District Court’s decision to dismiss his appeal against conviction and sentence. It further held that this appeal had been in line with legal requirements and that the Sofia District Court had erred by dismissing it. Moreover, its decision to do so did not indicate in what respects the appeal had been deficient. The court therefore quashed this decision and referred the case back to the Sofia District Court for further consideration of the appeal against the conviction and sentence. With that the criminal proceedings against the applicant were restored and his conviction and sentence were no longer considered final.
15. According to the applicant, at the same hearing his counsel asked the Sofia City Court to consider whether he should remain in custody or be released. The court declined to do so, saying that it was for the Sofia District Court to decide on this matter.
16. After 17 July 2000 the applicant’s counsel filed with the Sofia District Court and the Sofia District Prosecutor’s Office several requests for release, none of which was examined.
17. The applicant’s counsel also met three times with the president of the Sofia District Court, who explained that the judge to whom the case had been assigned was absent. On 5 October 2000 the applicant’s counsel filed a complaint with the Supreme Judicial Council, but received no reply.
18. On 3 October 2000 the Sofia District Court sent the case file to the Sofia City Court.
19. On 24 October 2000 the Sofia City Court set the applicant’s appeal down for examination. Apparently, at this point the president of the panel to which the case had been assigned noticed that the applicant was still in custody. For this reason, on the next day, 25 October 2000, she alerted the Sofia District Prosecutor’s Office that, following the decision of 17 July 2000 (see paragraph 14 above), the applicant’s conviction and sentence were no longer considered final, and that he could not be kept in custody pursuant to them. On the same day the Sofia District Prosecutor’s Office ordered the applicant’s release, citing the same reasons.
20. On 26 October 2000 this order was received by the Sofia Prison and the applicant was set free. It appears that until the end of the criminal proceedings against him the applicant was not further remanded in custody.
21. In a judgment of 27 March 2001 the Sofia City Court acquitted the applicant of the charges concerning two of the thefts and upheld the remainder of the Sofia District Court’s judgment. It imposed a global sentence of one and a half years’ imprisonment. In determining the length of the applicant’s period of imprisonment in pursuance of this sentence it deducted, by reference to Article 59 of the 1968 Criminal Code (see paragraph 30 below), the time he had already spent in custody between 30 November 1999 and 26 October 2000, saying that during this period the applicant had been serving a sentence which had not yet been made final.
22. The applicant lodged an appeal on points of law.
23. After holding a hearing on 19 November 2001, in a final judgment of 26 November 2001 the Supreme Court of Cassation upheld the Sofia City Court’s judgment.
24. Article 371 § 1 of the 1974 Code of Criminal Procedure (presently superseded by Article 412 § 1 of the 2005 Code of Criminal Procedure), as in force at the material time, provided that criminal convictions and sentences became enforceable after they had been made final. This occurred when, inter alia, no (valid) appeal had been lodged against them (Article 371 § 2 (3), read in conjunction with Article 322 §§ 1 (1) and 2 of the 1974 Code, presently superseded by Article 412 § 2 (3), read in conjunction with Article 323 § 1 of the 2005 Code).
25. The authorities supervising the lawful execution of criminal sentences are the competent public prosecutors (Article 375 § 2 of the 1974 Code (presently superseded by Article 416 § 2 of the 2005 Code), section 118(2) (between 2006 and 2007 section 118(4)) of the 1994 Judicial Power Act (presently superseded by section 146(1) of the 2007 Judicial Power Act) and section 4(1) of the 1969 Execution of Sentences Act). They are under a duty to order the release of any detainee who has been unlawfully deprived of his or her liberty (section 119(7)(1) of the 1994 Judicial Power Act, presently superseded by section 146(2)(1) of the 2007 Judicial Power Act).
26. Section 2 of the Act originally called the 1988 State Responsibility for Damage Caused to Citizens Act (Закон за отговорността на държавата за вреди, причинени на граждани – “the SRDA”), renamed on 12 July 2006 the 1988 State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди), as in force at the material time, read, in so far as relevant:
“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful:
1. pretrial detention, including when imposed as a preventive measure, when it has been set aside for lack of lawful grounds;
2. criminal charges, if the person concerned has been acquitted, or if the criminal proceedings have been discontinued because the act has not been committed by the person concerned or did not constitute a criminal offence...”
27. According to the Bulgarian courts’ caselaw, the State is liable for all damage caused by pre-trial detention where the accused has been acquitted (реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС) or the criminal proceedings discontinued on grounds that the charges have not been proven, or where the perpetrated act is not an offence (реш. № 859/ 2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС).
28. In a binding interpretative decision (тълк. реш. № 3 от 22 април 2004 г. на ВКС по тълк.д. № 3/2004 г., ОСГК), made on 22 April 2004 pursuant to the proposal of the President of the Supreme Court of Cassation, the Plenary Meeting of the Civil Chambers of that court resolved a number of contentious issues relating to the construction of various provisions of the SRDA. In point 13 of the decision it held that the compensation awarded in respect of the nonpecuniary damage arising under section 2(1) or (2) of the Act should cover also the nonpecuniary damage stemming from unlawful pre-trial detention imposed during the proceedings, whereas compensation for the pecuniary damage flowing from such detention should be awarded separately. The reasons it gave for this decision were as follows:
“Pretrial detention is unlawful when it does not comply with the requirements of [the CCP].
The State is liable under section 2(1) [of the] SRDA when the pretrial detention has been set aside as unlawful, irrespective of how [the criminal] proceedings unfold later. In such cases compensation is determined separately.
If the person has been acquitted or the criminal proceedings have been discontinued, the State is liable under section 2(2) [of the] SRDA. In that case, the compensation for non-pecuniary damage has to cover the damage flowing from the unlawful pretrial detention. If pecuniary damage has arisen, compensation for it is not included but has to be awarded separately, taking into account the particular circumstances of each case.”
29. In point 11 of its decision the court dealt with the question whether the accused should be entitled to compensation under section 2(2) of the SRDA when they have been convicted of some charges and acquitted of others. It held that compensation was due even in cases of partial acquittals, provided there was a proven causal link between the unlawful bringing of charges and the damage suffered. Nonpecuniary damages were to be assessed globally and in equity, taking into account the number of acts in respect of which an accused has been found not guilty and the respective gravity of the offences of which they have been convicted and those of which they have been acquitted. Pecuniary damages were to be awarded by taking into consideration the particular circumstances of each case and whether or not they flowed from the unlawful acts of the law enforcement authorities.
30. Under Article 59 § 1 of the 1968 Criminal Code, the sentencing court has to deduct from any sentence of imprisonment the time already spent by the offender pending the final outcome of the case.
31. Section 37(1) of the 1969 Execution of Punishments Act provides that inmates have the right to file applications and complaints, and to appear in person before the prison governor. By section 37(2) of the Act, these applications and complaints have to be sent immediately to the competent authorities.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-4676
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: W.S. v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish national, born in 1941 and living in Nysa. .
A.
By a decision of 14 June 1996 the Treasury Office (Urząd Skarbowy) in Nysa found the applicant guilty of a tax offence punishable under Article 104 of the Fiscal Criminal Act committed in that she had made bookkeeping errors in the bookkeeping of a shop owned and run by her client, and imposed on her a pecuniary penalty of 300 PLZ, or thirty days of imprisonment in default. She was also found guilty of another offence punishable under Article 94 § 4 of the said Act, committed in that she had incorrectly calculated value of a certain tax subject to deduction from Value Added Tax (VAT), which resulted in a reduction of the taxes paid to the Treasury by a sum of 65.24 PLZ For this offence, the Office imposed on her a pecuniary penalty of 100 PLZ, with ten days’ imprisonment in default.
The applicant lodged an appeal against this decision with the Opole Treasury Chamber (Izba Skarbowa), arguing that the first-instance authority had breached a fundamental principle of tax law which provided that only the taxpayer, and not persons keeping books for him or her, was liable under the provisions of the Fiscal Offences Act. She further submitted that in fact her calculation of the taxes had been correct.
On 29 August 1996 the Opole Treasury Chamber amended in part the decision under appeal by changing the legal qualification of the offence qualified by the lower administrative authority under Article 94 § 3 into an offence against Article 99 § 3, and upheld the decision in its remainder. The Chamber considered that the principle referred to by the applicant in her appeal, i.e. the principle of an exclusive responsibility of a taxpayer towards the State for his or her taxes, was applicable only on the ground of tax law. However, this principle did not apply to the criminal liability as laid down in the Fiscal Criminal Act. Consequently, it was not excluded that an offence punishable under that Act could be committed not only by a taxpayer himself, but also by any person keeping books for the taxpayer on the basis of a contract.
On 19 September 1996 the applicant complained to the Minister of Finance about the decisions in her case, contending that they were unlawful. This complaint remained unanswered.
B. Relevant domestic law
Book One of the Fiscal Criminal Act (Ustawa karna skarbowa) is entitled “Fiscal Crimes and Offences”. Book One is divided into two Parts, General Provisions and Specific Provisions, the latter specifying acts punishable under the Act and setting out penalties imposable on perpetrators. Part One is divided in two Chapters, the first Chapter pertaining to fiscal crimes and the second one to fiscal offences.
Under Article 1 of the Fiscal Criminal Act, a wrongful act punishable under the provisions of the said Act by imprisonment, limitation of liberty or a fine constitutes a fiscal crime. A fine cannot be lower than 200 PLZ and cannot exceed 5,000,000 PLZ. Article 13 provides for additional sanctions for fiscal crimes such as: deprivation of civil rights, prohibition to exercise certain activities, confiscation of an object, and publication of the court judgment by which the offender was convicted.
Under Article 35 of the Fiscal Criminal Act, a wrongful act punishable under the provisions of the said Act by the imposition of a pecuniary penalty constitutes a fiscal offence. According to Article 41 of the Act, a pecuniary penalty can reach from 20 PLZ to 1,000 PLZ. Under Article 43, the additional sanction of confiscation of an object can be imposed if the Act expressly provides therefor.
Under Article 36 of the Act, certain provisions of the Criminal Code, defining certain general notions of criminal responsibility, are applicable in the proceedings concerning fiscal offences. The provisions in question concern, inter alia, the definition of a punishable act, the prohibition of retroactivity, the definition of intentional and non-intentional offence, the age limit for liability, the attempted offence, the aiding and abetting, the circumstances justifying the exclusion of criminal liability, and the principles governing the determination of criminal sanctions.
Pursuant to Article 122, the courts are competent to entertain cases concerning responsibility for the commission of fiscal crimes punishable by imprisonment or limitation of liberty. Under Article 123 of the Act, cases concerning fiscal crimes in which only fines can be imposed, and cases concerning fiscal offences, are examined by fiscal administrative boards.
Article 206 of the Act states that decisions given in the proceedings concerning fiscal crimes and offences can be appealed against if the law so provides. The remedies are the following: an appeal, a demand that the case be examined by a court, and an appeal against interlocutory decisions.
Under Article 208 § 1 of the Act, in cases concerning fiscal crimes, a party to the proceedings is entitled either to lodge an appeal against a first-instance decision of an administrative authority with a higher administrative authority, or to demand that the case be examined by a court. An option to use one remedy bars the use of the other. In the proceedings concerning fiscal offences, only an appeal to a higher administrative authority can be lodged.


ITEMID: 001-105779
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MIHAL v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Mr Karol Mihal, is a Slovak national who was born in 1954 and lives in Malá Ida. He was represented before the Court by Ms I. Rajtáková, a lawyer practising in Košice.
2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant is a judicial enforcement officer (súdny exekútor). In this capacity, he acted on behalf of a number of creditors, with a view to enforcing their claims. The relevant details concerning the enforcement proceedings in question are set out in the Appendix to this decision.
4. In all instances the commencement of the enforcement proceedings was authorised by judicial decisions and the enforcement proceedings were eventually discontinued on the grounds specified below.
5. At the same time, for various reasons that are also specified below, the courts ruled that the applicant was wholly or partly not entitled to remuneration (odmena), refund of costs (náhrada hotových výdavkov) and compensation for lost time (náhrada za stratu času).
6. In the enforcement proceedings referred to under numbers 1 to 9 in the Appendix, the applicant acted on behalf of two individuals, the Social Security Administration (Sociálna poisťovňa) and other corporate creditors for the enforcement of their claims against corporate debtors and two individuals.
7. All of these enforcement proceedings were discontinued on the ground that, without legal successors, the corporate debtors had been struck out of the Commercial Register (Obchodný register), whereby they legally ceased to exist, and the individual debtors had died.
8. In the context of these enforcement proceedings, the applicant requested that, in the circumstances, his compensation be paid by the creditors.
In particular, the applicant claimed remuneration in amounts ranging from some 24 to 1,060 euros (EUR), plus VAT, and a refund of his costs ranging from some EUR 3 to 55, in the total net amount of some EUR 700.
9. When dealing with the applicant’s claims, the courts applied Article 203 of the Judicial Enforcement Code (Law no. 233/1995 Coll., as in force until 31 January 2002) (see paragraph 38 in “Relevant domestic law and practice” below), pursuant to which it was at the courts’ discretion to order a creditor to pay the enforcement costs in the event of a discontinuation of the enforcement proceedings, taking into account whether the creditor could have envisaged the discontinuation of the proceedings.
10. In all of the proceedings in issue the courts dismissed the applicant’s claims, finding that the creditors could not have envisaged the discontinuation of the proceedings. Furthermore, it was noted by the Constitutional Court in some of those proceedings that the applicant’s status as a judicial enforcement officer placed him in a privileged position as regards the power to enforce adjudicated claims and that this privilege outweighed expenses such as those he had incurred in the present case(s).
11. In the enforcement proceedings referred to under numbers 10 to 13 in the Appendix, the applicant acted on behalf of corporate creditors enforcing their claims against corporate debtors.
12. All of these enforcement proceedings were discontinued on the ground that both the creditors and the debtors had been struck out of the Commercial Register without a legal successor.
13. In the context of these enforcement proceedings, the applicant requested that his compensation be paid by the State.
In particular, the applicant claimed remuneration in amounts ranging from some EUR 40 to 230, plus VAT, and a refund of his costs ranging from some EUR 3 to 90.
In the proceedings referred to under number 10 in the Appendix, the applicant also claimed some EUR 25 by way of compensation for the time spent travelling in connection with the enforcement.
In total, the applicant made some EUR 475 worth of net claim.
14. The courts dismissed the applicant’s claims, finding that, as the parties no longer existed, they could not be ordered to pay the applicant’s costs. At the same time, there was no legislative basis for the applicant’s costs to be born by the State.
15. In the enforcement proceedings referred to under numbers 14 and 15 in the Appendix, the applicant acted on behalf of corporate creditors, enforcing their claims against a corporate debtor and an individual debtor.
16. These enforcement proceedings were discontinued on the ground that the corporate debtor had been struck out of the Commercial Register and the individual debtor had died, without legal successors.
17. In the circumstances, the applicant requested that his remuneration be paid by the creditors. As to its amount, the applicant applied a statutory hourly fee for each hour spent on the individual enforcement steps that he had taken, including the hours commenced but not completed.
18. The courts allowed the applicant’s claims as to the substance. However, as to the scope, the courts calculated the actual time spent on all the enforcement steps together, and applied the hourly rate to that total.
19. In the enforcement proceedings referred to under number 15 of the Appendix, the calculation method referred to in the precedent paragraph was applied by the Košice Regional Court on 31 January 2008 when, following an appeal by the creditor, it overturned the firstinstance decision of the Spišská Nová Ves District Court that had relied on the calculation method advocated by the applicant.
20. In the decision of 31 January 2008, the Regional Court relied, inter alia, on a previous judgment of the Supreme Court (Najvyšší súd)) dated 28 May 2007 (see paragraph 50 in “Relevant domestic law and practice” below).
21. The applicant challenged the decision of 31 January 2008 by way of a complaint under Article 127 of the Constitution arguing, among other things, that that decision was contrary to an even earlier decision of the Supreme Court of 28 April 2006 (see paragraph 49 in “Relevant domestic law and practice” below).
22. On 5 November 2008 the Constitutional Court declared the complaint inadmissible as manifestly ill-founded. It held that it was neither a court of appeal nor a court responsible for harmonising case-law of the ordinary courts, the latter task falling within the remit of the Supreme Court. The Constitutional Court also found that the interpretation of the relevant law by the Regional Court was one possible interpretation and that it was not vitiated by any unfairness, irregularity or constitutionally relevant arbitrariness.
23. In the enforcement proceedings referred to under number 16 of the Appendix, the applicant acted on behalf of an individual, enforcing his claim against a corporate debtor. The enforcement proceedings were discontinued on the ground that the debtor did not even have sufficient assets to cover the costs of the enforcement proceedings.
24. In the circumstances, the applicant claimed that his costs be covered by the creditor. In particular, the applicant claimed remuneration in the amount of some EUR 70, plus VAT, and a refund of his costs in the amount of some EUR 9.
25. Ordinary courts at two levels of jurisdiction examined the applicant’s claim under the law as applicable at that time (see paragraphs 9 above and 38 below) and concluded that the creditor could not have envisaged that the debtor would become destitute. There was therefore no basis for ordering him to cover the applicant’s costs and neither was there any legal basis for the applicant’s costs to be born by the State. Therefore, in the circumstances, the order for costs was made against the defendant.
26. Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) provides:
“1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.”
27. According to the established case-law of the Constitutional Court, neither Article 127 nor any other provision of the Constitution provides a basis for individuals to challenge legislation for being incompatible with the Constitution or international instruments, including the Convention (see, for example, decision of 7 November 2007, file no. IV. ÚS 287/07).
28. The statutory basis for enforcement of adjudicated claims is laid down in Articles 251 et seq. of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “CCP”).
29. Until 31 August 2005, if a judgment debtor failed to comply with his or her adjudicated obligation, the creditor had two essentially equipollent options of seeking enforcement, by a court under the CCP and by a judicial enforcement officer under the Judicial Enforcement Code.
30. With effect from 1 September 2005 Article 251 and other related provisions of the CCP were amended by Law no. 341/2005 Coll. in that, apart from some exceptions that are not relevant to the present case, enforcement of adjudicated claims is to take place under the Judicial Enforcement Code.
31. The status of judicial enforcement officers and the procedures for enforcement by judicial enforcement officers are governed by the Judicial Enforcement Code (Law no. 233/1995 Coll., as amended).
32. Under Article 10 § 1, in order to be appointed a judicial enforcement officer, an individual has to have (a) unrestricted legal capacity to act, (b) obtained a law degree, (c) a faultless criminal record, (d) completed at least three years of enforcement training, (e) passed a professional exam.
33. Judicial enforcement officers are appointed by the Minister of Justice (“the Minister”) (Article 11 § 1) upon their own request and further to recommendation of the Slovak Chamber of Judicial Enforcement Officers (Slovenská komora exekútorov – “the Chamber”) (Article 11 § 2).
34. Under Article 13, upon appointment, a judicial enforcement officer makes the following solemn declaration in front of the Minister:
“I promise on my conscience and civic honour that I shall follow the Constitution of the Slovak Republic and other Acts of Parliament, as well as other generally binding statues and I shall apply them as a judicial enforcement officer according to my best knowledge and conscience, in carrying out enforcements I shall proceed independently, impartially and fairly and I shall respect confidentiality in respect of all facts that I learn in connection with carrying out activities under the Judicial Enforcement Code”.
35. Under Article 57 § 1 (g), the enforcement court is to discontinue enforcement proceedings if it has declared the enforcement improper (neprípustná) on other grounds for which it cannot be carried out.
36. In respect of enforcement carried out under the Code, the judicial enforcement officer is entitled to remuneration, a refund of costs and compensation for lost time. Should the judicial enforcement officer be liable to pay value-added tax, the compensation should be increased by the amount of that tax (Article 196).
37. The expenses listed in Article 196 are to be born by the debtor (Article 197 § 1). The judicial enforcement officer can, however, request the creditor to make an appropriate advance payment for remuneration and costs (Article 197 § 2). As a general rule, should the creditor fail to make the advance payment within the time-limit specified by the enforcement officer, on the latter’s request the enforcement court may discontinue the proceedings (Article 31 § 1).
38. Under Article 203, as in force until 31 January 2002, in the event of discontinuation of enforcement proceedings, the court could order that the costs of the enforcement be paid by the creditor. In resolving that matter, the court was to take into account which costs had been necessary for ensuring efficient enforcement as well as whether the creditor could have envisaged the ground for the discontinuation, if exercising due diligence.
39. On 1 February 2002 an amendment (Law no. 32/2002 Coll.) entered into force, pursuant to which, if the creditor causes the discontinuation of the enforcement proceedings, the court can order him or her to cover the necessary costs of the enforcement (amended Article 203 § 1).
40. The amended Article 203 § 1 implies a possibility, not a duty, for the court to make an order for costs against the creditor. Such an order presupposes an analysis of procedural responsibility (zavinenie) for the discontinuation. The provision confers discretion on the part of the court based on an assessment of the actions of the creditor and the degree and seriousness of the creditor’s responsibility should it be established (a decision by the Constitutional Court of 23 March 2005 in a case no. I. ÚS 48/05).
41. Should the enforcement be discontinued on the ground that the debtor does not have sufficient property to cover the costs of the enforcement, such costs are to be born by the creditor (amended Article 203 § 2).
42. In a decision of 5 November 2008, in an unrelated but similar case brought by the applicant under no. I. ÚS 377/08, the Constitutional Court held that the mere fact that both the creditor and the debtor had ceased legally to exist and that they could accordingly no longer be ordered to pay the enforcement costs could not have the consequence of the costs being born by the State. This was so because in none of its provisions did the Judicial Enforcement Code provide for a possibility or statutory modalities from which one could infer a transfer of the duty to pay the enforcement costs to the State.
43. Articles 219 et seq. govern the disciplinary liability of judicial enforcement officers.
This liability pertains to disciplinary offences (disciplinárne previnenie) and serious disciplinary offences (závažné disciplinárne previnenie).
44. The former consists of culpable breach of duties in the course of carrying out a judicial enforcement officer’s activities, breach of the solemn declaration, acting in a way which compromises the dignity of the officer’s role and carrying on an activity that is incompatible with the role of a judicial enforcement officer despite a previous request not to do so (Article 220 § 1).
45. An action envisaged in Article 220 § 2 becomes a serious disciplinary offence if its harmfulness is increased on account of the nature of the breached duty, the manner in which it has been breached, the degree of culpability, repetition of the breach or other aggravating circumstances.
46. Pursuant to Article 221, disciplinary offences are punishable by reprimand (paragraph 1 (a)), written reprimand (paragraphs 1 (b) and 2 (a), a fine of up to EUR 3,310 (paragraphs 1 (c) and 2 (b)) and stripping of office (paragraph 2 (c)).
47. Details concerning compensation of judicial enforcement officers are laid down in Decree of the Ministry of Justice no. 288/1995 Coll., as amended, on Remuneration and Compensation of Judicial Enforcement Officers.
48. In the event of discontinuation of enforcement proceedings, the remuneration of the judicial enforcement officer for carrying out the enforcement was to be determined on the basis of the number of hours purposefully spent on the enforcement. The basic rate was SKK 200 per each commenced hour (section 14(1)(a) and (2), as in force at the relevant time).
49. In a judgment of 28 April 2006, following an extraordinary appeal on points of law (mimoriadne dovolanie) by the Prosecutor General in an unrelated case, no. 2MCdo 16/2005, the Supreme Court held that the remuneration under section 14(1)(a) and (2) of the Decree should be calculated on the basis of the enforcement steps taken and the time spent on such individual steps, including any hour commenced. The adding up of the exact time spent on individual enforcement steps, taken together, was contrary to the applicable rules.
A similar interpretation was adopted by the Košice Regional Court in decisions of 23 and 30 March 2007 on the applicant’s appeals in unrelated cases nos. 2CoE 113/2006 and 5CoE 74/2006.
50. In a judgment of 28 May 2007, following an extraordinary appeal on points of law by the Prosecutor General in an unrelated case, no. 1MCdo 7/2006, the Supreme Court held that the remuneration of a judicial enforcement officer under section 14(1)(a) and (2) of the Decree should be calculated on the basis of the real time spent on the enforcement steps taken, added up. This interpretation was upheld by the Supreme Court in a decision of 4 March 2009 on an extraordinary appeal on points of law by the Prosecutor General in an unrelated case no. 5MCdo 6/2008.


ITEMID: 001-97232
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF CIOBANIUC v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1936 and lives in Iaşi.
5. In 1985, Apartment 8 situated in Constanţa at 17 Aleea Hortensiei, the property of the applicant and of her husband, was seized by the State under Decree no. 223/1974, following their decision to leave the country. No compensation was paid and no copy of the decision to seize the property was sent to them. The applicant's husband later died in 1998, the applicant being his only heir.
6. On 2 October 1991 and 15 September 1995 the applicant and her husband informed the Constanţa Town Council that they intended to recover their property, requesting the eviction of the tenants.
7. On 29 October 1996 the State sold that apartment to the then tenants under Law no. 112/1995.
8. On 18 August 1997 the applicant and her husband sought to have the seizure declared null and void, to recover ownership of Apartment 8 and to have the former tenants evicted; they also sought damages in respect of the furniture which had been in the apartment and which had allegedly been destroyed.
9. On 17 November 1997 the Constanţa Court of First Instance allowed the action in part and annulled the seizure as unlawful, but dismissed the claim for restitutio in integrum on the grounds that the apartment was in the possession of third parties who were not party to those proceedings. It also dismissed the claim for damages in respect to the furniture for lack of payment of stamp duty.
Eventually, on 20 March 2000, the Constanţa Court of Appeal upheld that ruling in a final decision.
10. On 17 October 2001 the Constanţa Court of Appeal, by a final decision, dismissed an action by the applicant for recovery of possession of immovable property lodged against those who had bought the apartment. The court considered that when proceedings are brought by a former owner against those who have acquired ownership under Law no. 112/1995, preference is given to the protection of the good faith principle. Thus, the former tenants had made the purchase in good faith and had complied with the provisions of Law no. 112/1995.
On 11 October 2002 the Prosecutor's Office attached to the Supreme Court of Justice informed the applicant that there were no reasons to lodge an application for review (recurs în anulare) against that final decision.
11. On 19 October 2001 the applicant sought to recover Apartment 8 under Law no. 10/2001 governing immovable property wrongfully seized by the State.
On 16 May 2005 the Constanţa Town Council dismissed her request, since that apartment had been sold in accordance with Law no. 112/1995, but proposed compensation in the equivalent of 11,074 euros (EUR). Then the file was sent to the Constanţa Prefecture and subsequently to the Secretariat of the Central Commission for Compensation.
On 28 May 2008 the Central Commission for Compensation decided to award the applicant 235,076.09 Romanian lei, the equivalent of EUR 64,025 according to the rate of exchange displayed on that day by the National Bank of Romania.
According to the documents in the file, the applicant has neither contested that decision nor has she followed the administrative procedure provided under Law 247/2005, as amended by Government Emergency Ordinance no. 81/2007, for opting between cash compensation or shares in the fund Proprietatea.
12. On 14 February 2005 the Constanţa Court of Appeal, by a final decision, dismissed a request by the applicant to have the sale declared null and void, considering that the former tenants had made the purchase in good faith.
13. The relevant legal provisions and jurisprudence are described in the following judgments: Brumărescu v. Romania ([GC], no. 28342/95, §§ 31-33, ECHR 1999VII); Străin and Others v. Romania (no. 57001/00, §§ 19-26, ECHR 2005VII); Păduraru v. Romania (no. 63252/00, §§ 38-53, 1 December 2005); Tudor v. Romania (no. 29035/05, §§ 15-20, 17 January 2008); and Viaşu v. Romania (no. 75951/01, §§ 38-46, 9 December 2008).