ITEMID: 001-109286
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: TABBAKH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Hassan Tabbakh, is a Syrian national who was born in Aleppo, Syria in 1969 and is currently detained in HMP Woodhill, Milton Keynes. His application was lodged on 21 July 2009. He was represented before the Court by Mr H. Miller of Birnberg Peirce Solicitors, a lawyer practising in London.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. After obtaining a degree in physics and mathematics from Aleppo University, Syria, the applicant became a mathematics teacher.
4. In 1999 the applicant was arrested by Syrian Military Intelligence. He was detained for approximately one month before being released without charge. During this period of detention he alleges that he was tortured. According to the applicant, he was repeatedly punched in the face and body while bound and blindfolded; he was knocked unconscious; he was attached to a wheel and beaten on his face, hands and feet with an electric cable; he was electrocuted with electrodes attached to his arms and legs; and he was hung from the ceiling and sexually tortured.
5. In 2000 the applicant fled Syria. In November 2001 he arrived in the United Kingdom and claimed political asylum. It was accepted that he had a well-founded fear of persecution if returned to Syria and in July 2005 he was granted Indefinite Leave to Remain in the United Kingdom as a refugee.
6. On 18 December 2007 the applicant was arrested at his home. Following a search of the applicant and his home, police officers found a plastic bag containing three plastic bottles, each containing a liquid and a solid mixture, a handwritten document in Arabic with diagrams, two bags of fertilizer pellets, two bags containing small pieces of aluminium foil, an MP3 audio player, a desktop computer and a USB memory stick. An analytical chemist confirmed that the contents of the bottles were flammable. Although incapable of causing an explosion, had the applicant used higher grade ingredients, he might have been able to construct a viable bomb. A translation of the Arabic document appeared to give instructions on the construction of an improvised explosive device. The audio player and computer devices were found to contain some Islamist material of an extremist nature.
7. The applicant was interviewed at length by police. He denied trying to make a bomb or that he had a terrorist purpose. He claimed that he was trying to make fireworks for the Eid festival at the end of Ramadan and that the Arabic instructions were for a friend who was going to test the fireworks.
8. Between 17 and 30 July 2008 the applicant stood trial before a judge and jury at Birmingham Crown Court. He was charged with one count of preparing a terrorist act contrary to section 5 of the Terrorism Act 2006. The prosecution case was that the applicant had been trying to make a bomb with the intention of committing an act of terrorism or assisting someone else to do so.
9. The applicant did not give evidence. He called a number of witnesses, including Dr Dene Robertson, a consultant psychiatrist who specialised in the treatment of torture victims. Dr Robertson concluded that the applicant was suffering from severe post-traumatic stress disorder and moderately severe depression. His symptoms included severe anxiety, loss of energy, loss of self-esteem, loss of appetite, feelings of guilt, recurrent thoughts of death, frequent angry outbursts, paranoia, difficulty concentrating, persistent flashbacks, vivid memories and recurrent nightmares of his torture. Furthermore, Dr Robertson noted that the applicant had been consistently self-harming whilst in custody at Belmarsh and Woodhill prisons and during his trial. He had made significant attempts to cut the arteries in his arms. He also had minor lacerations to his forearms and minor scratching to his throat.
10. Dr Robertson identified three reasons why he considered that it would be undesirable for the applicant to give evidence. First, he believed it likely that the applicant would become so hyper-aroused when being questioned by someone perceived to be hostile that he would lose selfcontrol. Frequent angry outburst during cross-examination by the prosecution could prejudice the jury against him. Secondly, the stress of giving evidence might lead to an inability to concentrate and remember which would impair his ability to answer questions appropriately. This could have a direct impact on the quality of his evidence. Thirdly, the stress of giving evidence would almost inevitably result in an increased risk of significant self-harm.
11. Although the applicant had refused to co-operate with Dr Cumming, the consultant psychiatrist instructed by the prosecution, Dr Cumming agreed that the applicant suffered from post-traumatic stress disorder. However, he was unable to form any opinion one way or another about the undesirability of the applicant giving evidence.
12. Following the close of evidence, the applicant made an application pursuant to sections 35(1)(b) and 35(3) of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) that the judge should rule that it was undesirable for the applicant to give evidence due to his medical condition and, consequently, that the judge should not direct the jury that they might draw such adverse inferences as appeared proper from the failure of the applicant to give evidence.
13. The judge accepted that the applicant suffered from post-traumatic stress disorder, largely as a result of being tortured in Syria, and that he would find it difficult to be questioned by anyone he perceived as hostile. He also accepted that the applicant had been self-harming for some time, and that the stress of giving evidence could well lead to an increased risk of self-harm. Nevertheless he refused the application and held that it was not undesirable for the applicant to give evidence. He did not accept that the applicant’s presentational problems would seriously prejudice the jury and he did not consider there to be a significant risk that the applicant would forget the basic chemistry or physics which the case involved. Moreover, the judge noted that in view of the importance of the applicant’s evidence to the case, he could not conclude that his psychiatric problems made it undesirable for him to give evidence, even if it resulted in an increased risk of self-harm.
14. The judge noted, however, that it was for the jury to reach a decision as to whether they should draw an adverse inference against the applicant or not. In his summing up, he directed the jury as follows:
“The second matter which arises from his silence is that it could count against him. It doesn’t have to but it could. This is because you could come to the conclusion that he has not given evidence because he has no answer to the prosecution’s case, or at least none that would stand up to being tested by cross-examination.
If you do draw that conclusion against him you must not convict him wholly or mainly on the strength of it. You must look for other evidence of guilt and use his failure to give evidence as some additional support for the prosecution case. It can’t stand alone, but it can support something else.
You should only draw this conclusion against him if you think it is a fair and proper conclusion to draw. If it is not a fair and proper conclusion to draw, then you should not hold his silence against him in any way at all. And before drawing that conclusion against him you must also be satisfied about two things. The first is that the prosecution’s case is so strong that it clearly calls for an answer from him. The reasoning is that if the prosecution’s case is nothing, if you add nothing to it you are still left with nothing, so there has to be a case against him on the prosecution evidence which calls for an answer. The second element is that the only sensible explanation for his silence is that he has no answer to give or at least not one which would stand up to cross-examination.
In this case the defence suggest that there is a different reason why he has not given evidence, namely, that he has a mental condition which would affect him as a witness if he gave evidence in three ways: firstly, that there is a real risk that he would lose his self-control and end up giving a bad impression of himself in the witness box; secondly, that the stress of giving evidence may mean that he can’t concentrate on what he’s saying, may forget things that he wanted to say. The third element is that the stress of giving evidence would result in an increased risk of him causing harm to himself: self-harming. So there are those three strands to the defence explanation, reason, why he has not gone into the witness box.
I will come back to the detailed evidence about those matters in just a moment or two, but if you accept the defence explanation for his not giving evidence and you think that this amounts to a reason why you should not draw any conclusion against him from his silence then do not do so. Otherwise, subject to what I have said, you are entitled to draw a conclusion against him from his silence if you think it is a fair and proper conclusion to draw.”
15. The judge then summarised the medical evidence in some detail for the jury. In the transcript of his summing up, this summary exceeded ten pages.
16. On 30 July 2008 the jury convicted the applicant and the judge sentenced him to seven years’ imprisonment. The judge reduced his original sentence of eight years to take account of the applicant’s serious mental health condition.
17. On 14 January 2009 the applicant was granted leave to appeal against his conviction. On 3 March 2009 the Court of Appeal dismissed the appeal. The court noted that:
, one can see that if the only issue to which his evidence could go was one of very peripheral significance the judge would be entitled to take that into account in concluding that it was undesirable for him to give evidence.
In the present case reading the judge’s ruling as a whole, it is perfectly clear to us that the judge ruled that the risk of self-harm was not such in his judgment to make the giving of evidence undesirable and he went on to add that it did not become undesirable because any evidence that the defendant might give would be of insignificant relevance. That approach was, we are satisfied, one which the judge was quite entitled to take.
We agree with the broad conclusion of Stanley Burnton J (as he then was) in R (on the application of Director of Public Prosecutions) v Kavanagh. The question posed by section 35 is a wide question for the judgment of the judge. It is plainly not sufficient that the defendant suffers from some (his and our emphasis) physical or mental condition; it must be a mental condition which is such to make it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence is insufficient to justify the conclusion that it is undesirable that he should do so. Many, if not most, difficulties that a defendant or for that matter any other witness may have in giving evidence are things which have to be assessed by the judge of the tribunal of fact - in a Crown Court trial by the jury. The purpose of section 35(1)(b) is clearly to enable the judge to remove the possibility of adverse inference from the jury if it is undesirable for the defendant to give evidence. In this case the evidence was by no means all one way, even though the factual background abroad was accepted. The judge had ample material on which to reach the conclusion that he did.
Having reached that conclusion, it remained of course for the jury to decide whether in its judgment it was right to draw any adverse inference against the defendant. No one here can know whether the jury did draw such an inference or not. But what is clear is that the judge left the whole history and all the medical evidence to the jury with punctilious care over ten pages of summing-up, as he did the possible contra-indications for which the Crown had argued. In other words the question was properly left to the jury. There is not and could not be any criticism of the terms of the summing-up. The question which matters in this appeal, as Mr Menon has helpfully put it, depends upon whether the judge’s original ruling was flawed. It was not, we are satisfied, and in those circumstances the appeal against conviction must be dismissed.”
18. The Court of Appeal held that here was no point of law of general public importance to certify. Consequently, the applicant was refused leave to appeal to the House of Lords.
19. Section 35(1) – (3) of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) provides that:
“(1) At the trial of any person ... for an offence, subsections (2) and (3) below apply unless—
(a) the accused’s guilt is not in issue; or
(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;
but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.
(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.
(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.”
20. In R (Director of Public Prosecutions) v. Kavanagh [2005] EWHC 820 (Admin) the Administrative Court gave guidance as to the test to be applied when considering section 35(1)(b) of the 1994 Act. Stanley Burnton J (as he then was) held that:
“The court before whom a criminal trial takes place undoubtedly has a wide discretion in deciding on the issue to which subsection (1)(b) refers; that is to say, whether the physical or mental condition of the accused makes it undesirable for him to give evidence.
Two things, however, are to be noted. The first is that there must be an evidential basis for any determination by the court that it is undesirable for the defendant to give evidence (see R v Cowan). A statement or a submission by an advocate does not constitute evidence at all, let alone the kind of evidence on which a court can properly conclude that it is undesirable for a defendant to give evidence.
The second point is that it is not sufficient that the defendant suffers from some physical or mental condition. The mental condition must be such that makes it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence, for example, is insufficient to justify a conclusion that it is undesirable for the defendant to give evidence. Many, if not most, difficulties that a defendant, or indeed any other witness, may have in giving evidence, are matters to be taken into account by the judge of fact, be it magistrates or a jury, in assessing the reliability of his evidence. It does not justify a comprehensive failure to give evidence. It may go as to the weight of evidence, not as to the decision whether or not it is undesirable for him to give evidence.
Secondly, the court will draw an inference against a defendant in circumstances where, to use the language of the standard direction, (a) the prosecution’s case is so strong that it clearly calls for an answer by him, and (b), that the only sensible explanation for his silence is that he has no answer or none that would bear examination.”


ITEMID: 001-71481
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KOMAN v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Mr Arjen Mathijs Koman, is a Netherlands national who was born in 1966 and lives in The Hague. He is represented before the Court by Mr J.A.W. Knoester, a lawyer practising in The Hague.
The Government are represented by their Agent, Mrs J. Schukking of the Netherlands Ministry for Foreign Affairs.
On 24 October 1999 the applicant entered a snackbar at Gouda Central Station wearing a balaclava and forced the staff at knife-point to hand him money from the till. He was stopped by railway police as he tried to leave the station. It was later reported that his breath smelt of drink.
The applicant was arrested and detained for questioning (ophouden voor verhoor) at 3.59 p.m.
At 4.30 p.m. the applicant was seen by an assistant public prosecutor (hulpofficier van justitie), a senior police officer competent to give certain orders in criminal cases. At 7 p.m. the applicant was seen by a doctor. Both found that the applicant was not in a fit state to be questioned. It appeared that he was much the worse for drink and drugs.
The six-hour time-limit within which the applicant should have been either released or ordered taken into police custody (inverzekeringstelling) ended at 9.59 p.m.
The applicant was brought before an assistant public prosecutor the following morning, 25 October 1999, at 9.45 a.m. He was questioned by police officers at 10.02 a.m. and 10.51 a.m. At 11.50 a.m. the applicant was again brought before the assistant public prosecutor, who ordered him to be placed in police custody at noon.
On 27 October 1999, the applicant, assisted by counsel, was heard by an investigating judge (rechter-commissaris). He asked to be released immediately. This the investigating judge refused to do. She found the police custody to be unlawful as a matter of domestic law but ordered that the applicant be taken into detention on remand. The official record drawn up by the investigating judge contains her decision, which is in the following terms:
“The suspect [verdachte; i.e. the applicant] was arrested on 24 October at 3.59 p.m., but was unresponsive (niet aanspreekbaar). He was then locked in a cell to sober up and brought before the assistant public prosecutor on 25 October 1999 at 9.45 a.m.
The suspect was questioned at 10.02 a.m. and 10.51 a.m., after which he was again brought before the assistant public prosecutor at 11.50 a.m. and taken into police custody at 12 noon, that is, 20 hours after his arrest. Since it appears that the applicant was responsive (aanspreekbaar) by 9.45 a.m., he ought not to have been taken into police custody only at 12 noon. In view of the seriousness of the crime of which the suspect is suspected and the serious indications (ernstige bezwaren) that have arisen in his regard, the request for immediate release must be refused, the applicant having been taken into detention on remand without preliminaries (nu de verdachte rauwelijks in bewaring is gesteld).”
The applicant was tried by the Regional Court (arrondissementsrechtbank) of The Hague on 2 February 2000. The judgment notes that he was taken into police custody on 25 October 1999.
On 16 February 1999 the Regional Court gave judgment finding the applicant guilty of extortion (Article 317 of the Criminal Code – Wetboek van Strafrecht). It sentenced him to twenty-four months’ imprisonment, six months of which was suspended on condition that he undergo treatment for his addiction problems, as an in-patient if need be, under appropriate supervision. Its reasoning included the following:
“The suspect’s counsel has stated at the hearing that the order for the applicant to be taken into police custody was given too late, i.e. after the expiry of the time-limit prescribed by law. Counsel has invoked Article 359a § 1 a of the Code of Criminal Procedure (Wetboek van Strafvordering) and argued that in the event of a conviction this procedural violation (vormverzuim) should lead to a reduction of sentence. On this point, the Regional Court holds, considering also the seriousness of the crime committed by the suspect, that the procedural violation mentioned is not of such a nature that it should lead to a reduction of sentence. In so holding the Court of Appeal has had regard to the fact that it is not apparent that the said violation caused the suspect any substantial prejudice.”
The applicant appealed to the Court of Appeal (gerechtshof) of The Hague.
A hearing was held on 13 September 2000, at which the applicant stated that he had drunk a bottle of port wine and taken cocaine on 24 October 1999. The applicant’s counsel again argued that the applicant’s sentence should be reduced in view of the unlawfulness of the order placing him in police custody.
The Court of Appeal gave judgment on 27 September confirming the applicant’s conviction. Echoing the reasoning of the Regional Court, it rejected the plea for a reduction of sentence in the following terms:
“The suspect’s counsel has stated at the appeal hearing that the order for the applicant to be taken into police custody was given too late, i.e. after the end of the time-limit prescribed by law. Counsel has invoked Article 359a § 1 a of the Code of Criminal Procedure and argued that in the event of a conviction this procedural violation should lead to a reduction of sentence. On this point, the Court of Appeal holds, considering also the seriousness of the crime committed by the suspect, that the procedural violation mentioned is not of such a nature that it should lead to a reduction of sentence. In so holding the Court of Appeal has had regard to the fact that it is not apparent that the said violation caused the suspect any substantial prejudice.”
Noting that the applicant had evaded treatment of his addiction in an institution, it imposed an unconditional sentence of sixteen months’ imprisonment and ordered the execution of an earlier suspended 256-day prison sentence not relevant to the present case.
The applicant lodged an appeal on points of law (cassatie) to the Supreme Court (Hoge Raad), which gave judgment dismissing the appeal on 5 February 2002.
The following provisions of the Code of Criminal Procedure (Wetboek van Strafvordering), as in force at the time, are relevant to the case before the Court:
“1. The public prosecutor or the assistant public prosecutor before whom the suspect is brought, or who has himself arrested the suspect, may, after having questioned him, order in the interests of the investigation that he shall remain at the disposal of the authorities responsible for the administration of justice (de justitie) and shall be placed in police custody for that purpose in a place indicated in the order. ...”
“1. A police custody order shall only be given in the case of a punishable act (strafbaar feit) for which detention on remand is permitted.
2. The police custody order shall be valid for no more than three days. In cases of urgent necessity the order can be prolonged once for a further period of no more than three days.
3. As soon as the interests of the investigation so allow, the assistant public prosecutor shall order the suspect released. Otherwise, he shall propose to the public prosecutor that police custody be prolonged. The public prosecutor may order the suspect to be brought before him to be heard.”
“1. The suspect shall be brought before the investigating judge for interrogation no later than three days and fifteen hours from the moment of his arrest.
...
4. At the time of his interrogation [by the investigating judge], the accused may request the investigating judge to release him [from police custody].
5. If the investigating judge considers the police custody unlawful (onrechtmatig), he shall order the accused’s immediate release. Otherwise, the investigating judge shall make a note of his decision in the official record of the interrogation or, if the suspect has made a request for his release, the investigating judge shall reject it. ...”
“1. If the suspect is not taken into police custody ... nor ... brought before the investigating judge, he shall be released promptly (dadelijk) after questioning.
2. Under no circumstances (in geen geval) shall the applicant be detained for questioning for longer than six hours, not counting the time between midnight and nine a.m.”
“1. The investigating judge may, upon an application (vordering) by the public prosecutor, order the suspect’s initial detention on remand. ...”
“1. The [trial court] may, if it appears that there have been procedural violations during the preliminary investigation which can no longer be redressed and the legal consequences thereof are not apparent from the law, decide that:
a. the sentence shall be reduced in proportion to the seriousness of the procedural violation, if the harm done by the violation in question can be thus compensated; ...
2. In applying the first paragraph, the [trial court] shall consider the interest that is intended to be served by the procedural rule that has been violated, the seriousness of the violation and the harm thereby caused.”
In a decision in camera of 7 October 1988, Nederlandse Jurisprudentie (Netherlands Law Reports) 1989, no. 510, the Supreme Court held that a failure to observe legal requirements in relation to police custody might affect the lawfulness of the police custody but did not of itself prevent the investigating judge from subsequently ordering the suspect’s initial detention in remand.
Section 2 of the 1993 Police Act (Politiewet) provides as follows:
“The duty of the police shall be to ensure, in subordination to competent authority and in conformity with the law in force, the actual maintenance of the legal order and to provide help to those who need it.”
In a judgment of 11 March 1929, Nederlandse Jurisprudentie 1929, page 895, the Supreme Court held under the predecessor provision (which was identical to section 2 of the modern Police Act, save for its more archaic grammar) that the task of the police comprised securing public order, safety and peace; that this preventive task included removing an inebriated person from the public highway; and that a patrolling police officer made reasonable use of this authority by detaining such a person for as long as it took them to sober up.


ITEMID: 001-139325
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: TRIF v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicants, Mr Aurel Trif and Mrs Viorica Trif, are Romanian nationals who were born in 1950 and 1924 respectively and live in Chețani. They were represented before the Court by Mr V. F. Chirilă, a lawyer practicing in Târgu-Mureş.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 16 October 2003, following their divorce, the ex-wife (“the third party”) brought proceedings against Mr Aurel Trif (“the first applicant”) seeking the division of joint movable and immovable property.
5. On 18 November 2003 the first applicant, assisted by a legal representative of his choosing, lodged a counterclaim against the third party, and argued, inter alia, that the collective value of the movable and immovable property in dispute was 689,800,000 Romanian lei (ROL) (approximately 19,000 euros (EUR)) out of which the value of the main immovable property in dispute, in particular an apartment, was ROL 480,000,000 (approximately EUR 13,500).
6. On 16 December 2003 the third party asked the first-instance court for the first applicant’s mother Mrs Viorica Trif (“the second applicant”) to join the proceedings. The third party argued, inter alia, that the ROL 60,000,000 spent by her and the first applicant at the start of their marriage to extend the second applicant’s home, where they lived for a while, should also be considered joint property. The Luduş District Court allowed the third party’s request by an interlocutory judgment on the same day.
7. The Luduş District Court, in an interlocutory judgment of 4 May 2004, granted a request by the parties and their chosen legal representatives for a building expert report concerning the market value of the apartment and the extension work carried out on the second applicant’s home to be produced in the case.
8. On an unspecified date the expert report was submitted to the first-instance court. The applicants objected to the report. They argued that the said report on the one hand undervalued the apartment because it did not take into account the improvement work carried out after the apartment had been purchased by the first applicant and his former wife, and on the other hand overvalued the extension work carried out on the second applicant’s home.
9. By an interlocutory judgment of 7 December 2004 the Luduş District Court allowed in part the applicants’ objection concerning the apartment, and ordered the building expert to supplement the report.
10. On 1 February 2005 the building expert produced a second expert report and concluded that the market value of the disputed apartment, taking into account the improvement work carried out after it had been bought, was ROL 502,050,000. The applicants objected to the new expert report and argued that the improvement work had been undervalued by the building expert. Consequently, they requested the court to order a third expert report.
11. By an interlocutory judgment of 23 February 2005 the Luduş District Court dismissed the applicants’ request for a new expert report and held that it was unnecessary.
12. On 24 February 2005 the first applicant submitted written observations to the first-instance court and argued, without providing a total estimated value of the disputed properties, that the market value of the apartment in dispute was in his opinion between ROL 700,000,000 and 750,000,000. In addition, he argued that the extension work carried out on the second applicant’s house had been paid for by her, and that with some exceptions the value of the remaining properties to be divided had been overestimated.
13. By a judgment of 2 March 2005 the Luduş District Court, on the basis of witness statements, documents, the statements of the parties and the building expert report available to the file, allowed the third party’s action. It decided that the total value of the movable and immovable property disputed by the parties was ROL 791,288,000 (approximately EUR 22,000). It awarded the apartment to the third party, together with part of the movable assets, and ordered her to pay the first applicant a sum of ROL 192,006,000 (approximately EUR 5,000) in compensation. The operative part of the judgment expressly stated that it was subject to appeal within fifteen days following notification.
14. On an unspecified date in May 2005 the applicants, assisted by a legal representative of their choosing, appealed against the judgment of 2 March 2005 before the Târgu-Mureş County Court. They argued that the first-instance court should have divided the apartment in dispute and awarded one half to each of the parties. In addition, without providing a total estimated valuation of the disputed properties, they contended that the extension work carried out on the second applicant’s home and valued by the first-instance court at ROL 58,638,000 had been paid for exclusively by the second applicant, and should not have been included in the common property to be divided between the first applicant and his former wife. Moreover, other properties had been overvalued or undervalued or should also not have been considered joint property. Lastly, they asked the secondinstance court to order a new expert report to determine the value of the apartment in dispute.
15. At a hearing on 9 June 2005 the third party’s lawyer argued before the second-instance court sitting in a bench of two judges that the disputed property was worth no more than ROL 1,000,000,000 (approximately EUR 27,000). Consequently, according to Article 2821 (1) of the Romanian Code of Civil Procedure the applicants’ appeal needed to be re-qualified by the court from appeal to appeal on points of law (recurs).
16. The applicants’ legal representatives argued that the provisions of the Romanian Code of Civil Procedure cited by the third party did not apply in respect of proceedings concerning division of the property.
17. By an interlocutory judgment of 9 June 2005, after hearing submissions from both parties, the Târgu-Mureş County Court re-qualified the applicants’ appeal as an appeal on points of law and referred the case to a bench of three judges competent to examine an appeal on points of law.
18. On 21 June 2005 the applicants raised a constitutional objection against the provisions of Article 2821 (1) of the Romanian Code of Civil Procedure. They argued that the limitation of their right to lodge an appeal against the judgment of the first-instance court on account of the value of the disputed property amounted to a discriminatory limitation of their right of access to court.
19. By an interlocutory judgment of 27 September 2005 the TârguMureş County Court suspended the proceedings and referred the applicants’ constitutional objection to the Constitutional Court.
20. By a final judgment of 26 January 2006 the Constitutional Court dismissed the applicants’ constitutional objection. It held that the distinction between the types of proceedings that could or could not be subjected to appeal was made on the basis of the value of the object in dispute and not on the basis of the applicants’ social status or wealth. The legal regime in question was required by the particular circumstances, which needed different legal solutions in order to ensure the speediness of the proceedings. In addition, neither the Romanian Constitution nor the international legal instruments required access to three levels of jurisdiction.
21. On 14 March 2006 the applicants argued, inter alia, before the Târgu-Mureş County Court that reasons of public order, in particular contradictions between the operative and the reasoning part of the lower court’s judgment in respect of the total value of the disputed properties and the wrongful indication of the type of appeal that could be exercised by the applicants, justified the quashing of the said judgment. Alternatively, the applicants asked the second-instance court for the time-limit for an appeal on points of law to be reinstated.
22. By a final judgment of 28 March 2006 the Târgu-Mureş County Court, sitting in a bench of three judges, declared null the applicants’ appeal on points of law. It held that the applicants had not submitted their reasons for appeal on points of law within the allowed time-limit. Moreover, none of the arguments raised by them amounted to reasons of public order, and the contradiction referred to by them could be corrected by proceedings seeking the elimination of material errors. Furthermore, it dismissed the applicants’ request for the time-limit for an appeal on points of law to be reinstated, on the ground that the first-instance court had re-qualified their appeal in accordance with the requirements set out by the legislation in force, and by observing the principle of lawfulness. Consequently, it considered that there was no circumstance of public order or unlawfulness justifying the said request.
23. On 22 June 2006 the applicants informed the Court that although they had repeatedly requested the first-instance court to allow them to prove that the value of the disputed property was greater than EUR 27,000, their requests had been refused.
24. Article 103(1) and (2) of the former Romanian Code of Civil Procedure provides that failure to lodge any form of appeal within the lawfully allowed time-limit results in deprivation of the said right, except when the law provides otherwise or the party proves that it has been impeded from doing so by an unforeseen circumstance. In the latter case the right can be exercised within fifteen days of the date the impediment ceased to exist.
25. Articles 282, 287 and 292 of the former Romanian Code of Civil Procedure provide that judgments of a first-instance court are subject to appeal within fifteen days of the date of notification. The reasons for appeal must be submitted by the parties at the latest at the time of the first hearing before the court. The failure to submit the reasons for appeal within the allowed time-limit does not lead to annulment of the appeal, but removes the opportunity to raise additional issues of fact and law that had not been raised before the first-instance court.
26. Articles 2821 (1) (amended by Law no. 195/2004 which entered into force on 29 May 2004), 299, 301 and 3021 of the former Romanian Code of Civil Procedure provide that judgments delivered in respect of disputes where the object of the dispute is valued at less than one billion Romanian lei (approximately EUR 27,000) are not subject to appeal. Judgments not subject to appeal are subject to appeal on points of law (recurs). An appeal on points of law may be lodged within fifteen days of the date the judgment was notified to the parties. The reasons for the appeal on points of law must be submitted within the same fifteen-day period, or the appeal on points of law will be declared null.
27. Article 303(5) of the former Romanian Code of Civil Procedure provides that the president of the court which receives the request for an appeal on points of law can return it for changes to the party presenting it if it does not meet the lawful requirements extending the time-limit for the appeal on points of law by five days.


ITEMID: 001-93312
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MARUSZAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1982 and is currently detained in Gdańsk Remand Centre.
6. On 24 November 2002 the applicant, who since 28 August 2002 had been sought under a wanted notice, was arrested and remanded in custody on suspicion that he had committed murder with three accomplices.
7. The applicant’s pre-trial detention was subsequently extended by decisions of the Gdańsk Regional Court (Sąd Okręgowy) of 26 November 2002 and 6 February, 8 May, 29 July, and 18 November 2003.
8. The domestic court justified the applicant’s pretrial detention by the existence of strong evidence against him and the likelihood that a severe penalty would be imposed in the case. The court also noted that it was necessary to carry out further investigations, such as obtaining evidence from new witnesses, psychiatric reports on the suspects and various forensic reports.
9. Meanwhile, on 14 July 2003 the applicant was indicted on charges of robbery, manslaughter, distribution of drugs, assault and battery. There were three other defendants in the applicant’s case. The prosecutor asked the trial court to examine sixty-four witnesses and to read out the testimonies of another five witnesses.
10. On 15 October 2003 the trial court decided that certain procedural shortcomings had occurred in the proceedings and returned the bill of indictment to the prosecutor. On 27 October 2003 a rectified bill of indictment was filed with the court.
11. The first hearing in the applicant’s case took place on 28 November 2003. Subsequently, seventeen hearings were held by the trial court. One hearing was adjourned due to the absence of defendants.
12. Between 2 and 12 June 2004 the applicant was serving a prison sentence imposed by the Gdańsk District Court in a separate case.
13. On 8 October 2004 the Gdańsk Regional Court convicted the applicant on several counts and sentenced him to fifteen years’ imprisonment.
14. Pending appeal, the applicant’s detention was extended by decisions of the Gdańsk Regional Court of 23 November 2004 and of the Gdańsk Court of Appeal (Sąd Apelacyjny) of 19 April and 20 July 2005.
15. The courts reiterated that there was strong evidence against the applicant and the likelihood that a severe penalty would be imposed in the case. In addition, the authorities noted that for the above reasons the applicable law allowed for a presumption of risk that the applicant would obstruct the proper course of the proceedings and the latter could only be ensured by applying the preventive measure in question.
16. Meanwhile, on 22 June 2005 the Gdańsk Court of Appeal partly quashed the judgment and remitted the case to the Regional Court in that part. The first-instance judgment was upheld, however, with respect to a few offences and in that connection the applicant was sentenced to three years’ imprisonment. The court deducted from the imposed sentence the term of the applicant’s detention preceding the conviction, namely two years, six months and eighteen days comprising two periods: from 24 November 2002 to 2 June 2004 and from 12 June 2004 to 22 June 2005.
17. Subsequently, the applicant’s detention was extended by the decision of the Gdańsk Court of Appeal of 20 July 2005 and then, by decisions of the Gdańsk Regional Court of 25 October 2005, 21 February and 21 September 2006 (upheld on 11 October 2006 by the Gdańsk Court of Appeal), 30 November 2006, 22 February 2007 (upheld on 6 March 2007), 22 May 2007 (upheld on 5 June 2007), 24 August and 30 October 2007.
18. The authorities continued to briefly reiterate the reasons previously given to justify the applicant’vis-à-vis the position of each individual defendant. Thus, the fact that, in the instant case, a few of the applicant’s co-defendants had been released pending trial did not have any bearing on the applicant’s situation. Similarly, the court observed that the argument that there was strong evidence against the applicant, which had been relied on to justify the preventive measure, did not undermine the principle of the presumption of innocence in criminal proceedings. Finally, the court admitted that the applicant’s detention had been lengthy; however, its length was considered proportionate to the penalty envisaged under domestic law for the offences with which he had been charged.
19. Meanwhile, on 1 August 2006 and 12 April 2007 the Gdańsk Regional Court refused the applicant’s request to have his detention lifted in view of his allegedly difficult family situation.
20. The first hearing at the re-trial was held on 18 April 2006. Subsequently, the first-instance court held twenty and adjourned two hearings.
21. In the meantime, namely from 16 June 2006 to 29 May 2007 the applicant was serving a prison sentence imposed by the Ostrów Wielkopolski District Court in a separate case.
22. On 30 November 2007 the Gdańsk Regional Court convicted the applicant of three offences and sentenced him to thirteen years’ imprisonment. The court deducted from the imposed sentence the term of the applicant’s detention from 3 December 2005 and 26 June 2006, which added up to six months and twenty-two days.
23. On 19 June 2008 the Gdańsk Court of Appeal quashed the above judgment, inter alia, in the part concerning two charges against the applicant and remitted the case to the Regional Court in that part. The firstinstance judgment was upheld, however, with respect to one offence and in that connection the applicant was sentenced to two years’ imprisonment. The appellate court deducted from the imposed sentence the term of the applicant’s detention preceding the conviction, namely one year, seven months and two days comprising two periods: from 3 December 2005 until 16 June 2006 and from 29 May 2007 until 19 June 2008. It is unclear on which date the applicant finished serving the remainder of his prison sentence.
The applicant’s criminal case is currently pending before the firstinstance court and he remains in detention by virtue of subsequent court decisions.
24. On 1 August 2007 the applicant lodged a complaint about the unreasonable length of proceedings under the Act of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). The applicant submitted that his criminal case had been pending before the Gdańsk Regional Court for too long.
25.
26. The relevant domestic law and practice concerning the imposition of pre-trial detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
27. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII, and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
28. In the framework of the procedure before the Committee of Ministers (see paragraphs 30 and 32 below) the Polish Government supplied statistical data concerning the number and the length of pre-trial detentions ordered in the years 2005-2006 by the domestic courts. A more detailed rendition of the relevant statistical data can be found in the Court’s judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, § 28, 3 February 2009).
29. A number of amendments to the Code of Criminal Procedure (Kodeks postępowania karnego), designed to streamline criminal proceedings, entered into force on 20 June 2007 (Law of 9 May 2007 on amendments to the Code of Criminal Procedure; Journal of Laws of 2007, No. 99, item 664; Ustawa o zmianie ustawy - Kodeks postępowania karnego oraz niektórych innych ustaw). Those amendments strengthened the powers of the authorities to discipline the participants. A more detailed rendition of the recent amendments to the legislation can be found in the Court’s judgment given in the case of Kauczor v. Poland (see Kauczor v. Poland, cited above, §§ 27 and 30-31).
30. According to the information supplied by the Polish Government to the Committee of Ministers, in addition the Polish trial courts and prosecution authorities have undertaken a series of practical measures in order to organise criminal proceedings in a more efficient manner, i.e. by scheduling time-limits for hearings well in advance, holding hearings on Saturdays or severing charges against co-accused to separate proceedings under Article 34 § 3 of the Code of Criminal Procedure if the joint examination proves difficult and time-consuming.
31. On 17 May 2007 the Cabinet (Rada Ministrów) adopted the “Plan of Actions of the Government for the execution of judgments of the European Court of Human Rights in respect of Poland” (Program Działań Rzqdu w sprawie wykonywania wyroków Europejskiego Trybunału Praw Człowieka). By virtue of that document the Minister of Justice was obliged to disseminate among judges and prosecutors on a regular basis information on the standards concerning the length of pre-trial detention stemming from the Convention and the case-law of the Court in Polish cases and to include this topic in the programmes of workshops and seminars for judges.
32. On 6 June 2007 the Committee of Ministers adopted an Interim Resolution concerning the judgments of the European Court of Human Rights in 44 cases against Poland relating to the excessive length of detention on remand (“the 2007 Resolution”). It concluded that the number of the Court’s judgments finding Poland in violation of Article 5 § 3 of the Convention on account of the length of pre-trial detention revealed a structural problem. A more detailed rendition of the 2007 Resolution can be found in the Court’s judgment given in the case of Kauczor v. Poland (see Kauczor, cited above, § 34)
33. On 20 June 2007 the Council of Europe’s Commissioner for Human Rights released the Memorandum to the Polish Government concerning, among other issues, the use of the pre-trial detention in Poland. The Commissioner referred to the fact that the Court had repeatedly found violations of Article 5 § 3 in respect of Poland and stressed that examples of cases brought to the Court where pre-trial detention had lasted between 4 to 6 years were not uncommon. The Commissioner urged the Polish authorities to review the application and functioning of pre-trial detention in Polish law. A more detailed rendition of the relevant parts of the memorandum can be found in the above-mentioned Kauczor judgment (see Kauczor v. Poland, cited above, § 35).
VIOLATED_ARTICLES: 5


ITEMID: 001-76714
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF LYASHKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10;Damage - partial award;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 5. The applicant was born in 1972 and lives in Kyiv.
6. The applicant was an editor-in-chief of the Ukrainian daily newspaper Polityka. The periodical has ceased publication.
7. On 2 July 1997 the applicant published an article about Mr V. Durdynets, who at that time was the acting Prime Minister of Ukraine. The article was entitled “Durdintsovshchina” (the first article) and described the dismissal of Mr A. Stoginenko, the President of the Black Sea Shipping Company (Чорноморське морське пароплавство, hereinafter the “BSSC”), a State-owned enterprise. The applicant alleged that Mr Durdynets dismissed Mr Stoginenko because of his involvement in financing the Polityka. The relevant extracts from the article were as follows:
“Who could imagine that a former Komsomol bureaucrat, police pen-pusher and near-political schemer would occupy today one of the highest posts in the Government? The press is what the sinister Premier hates the most, as he fears public opinion. He did not forget that in March this year our newspaper accused him of plotting against Prime Minister Lazarenko. And as soon as he got the chance, he triggered the punitive mechanisms to suppress the independent media. For instance, he accused Alekzandr Stroginenko, the President of the Black Sea Shipping Company, of financing Polityka. Stroginenko’s “error” was that he had concluded a contract with us to issue promotional materials for the BSSC. The newspaper spent tens of thousand dollars from its own pocket, but has not yet received full payment for the published materials.
Without waiting for the results of a ministerial inquiry, on Monday before last, the acting Prime Minister, in the absence of both the President, who was in New York, and the Prime Minister, who was hospitalised, summoned the Cabinet of Ministers and forced a decision to dismiss the president of the BSSC.”
8. On 16 July 1997 the applicant published an article entitled “Save the barbed wire, citizen Durdinets” (Экономьте колючую проволку, гражданин Дурдинец – the second article), where he stated that Mr Durdinets had personally instructed the General Prosecutor to institute criminal proceedings against him. The relevant extracts from the article read as follows:
“...As we have learned, immediately after the release of the article [Durdintsovshchina], Durdinets summoned the General Prosecutor, Grigory Vorsinov, to his office and, showing him the newspaper, demanded that criminal proceedings for defamation be instituted against the author... Any other person, who considers himself to be defamed or insulted, would go to a court of law to make his case publicly. But Durdinets has no regard for civil rights as he attempts to use his powers as a high ranking governmental official. So it is worth mentioning here the abuse of power, as neither I nor any of our readers can summon Vorsinov to his office, the less so to demand the institution of criminal proceedings against one’s opponent. The acting Prime Minister considers that he can give orders to the General Prosecutor (although the law provides for the independence of the latter), and he does so.”
9. On 5 November 1997 the applicant wrote an article under the headline “The Rogue and the General” (“Аферист и генерал” – the third article), which concerned the alleged relationship between General G., at that time the Chief of the Odessa Regional Police Department, and a certain Mr S., who was reported to have been involved in criminal activity. The applicant’s newspaper also published several photographs in which the police chief and Mr S. were pictured together. It appears that these pictures were made during a private occasion and were subsequently published by the paper and TV media (see paragraph 15 below).
The article stated, inter alia, that:
“An ... inquiry revealed that ... S. was never employed by the Tax Police. The person who had blackmailed [local businessmen] was a former police officer, S., and the photographs [which he had showed to prove his authority] contained images of high officials of the Odessa Regional Police Department.
But where did the ex-policeman ... get the photographs of G. and his deputies drinking with him and hugging him? Now he is showing these photographs to [businessmen] and thereby collects money for ... life.
The examination of this relationship clarifies the statements of S. ... that ‘they will stand for me ...’.
This story seems to prove the corruption in the Odessa Regional Police Department we were writing about.”
10. On 19 November 1997 the applicant published an article entitled “The Rogue and the General turn out to be relatives” (“Аферист и генерал оказались родственниками” – the fourth article), in which he recited the interview of certain Ms K. to a local TV station to the effect that the Chief of Police and Mr S. were distant relatives:
“The scandal surrounding the head of the Odessa Regional Police Department, General G., continues. Condemned by the press for having patronised criminals, the General stands on firm ground so far.
When we published ‘The Rogue and the General’, we did not know that S. and Grigorenko were brothers-in-law. ... The unlawful activity of S. is blessed by the figure of General G....”
11. On 7 July 1997 the Head of the Parliamentary Committee for Law and Order tabled a written question to the General Prosecutor raising concern as to the publications defaming the acting Prime Minister Durdynets. In July 1997 the General Prosecutor’s Office (hereinafter “the GPO”), referring to the extracts from his articles quoted above, charged the applicant with intentional defamation in print (Article 125 § 2 of the Criminal Code of 1961), an unfounded accusation of committing a serious crime (Article 125 § 3) and abuse of power (Article 165).
12. On 9 December 1999 the Pechersky District Court of Kyiv acquitted the applicant for lack of corpus delicti. However, in November 2000 the Kyiv City Court, on the prosecutor’s appeal, quashed this decision and remitted the case for fresh consideration.
13. On 7 June 2001 the Minsky District Court of Kyiv (hereinafter “the Minsky Court”) found the applicant guilty as charged. In the introductory part of the judgment the court noted the personal data of the applicant and, inter alia, stated that he was “previously unconvicted” (раніше не судимий).
14. With respect to the first and second articles, the court indicated that the applicant, having abused his office, published intentionally false and malicious statements to the effect that Mr Durdynets had persecuted the Polityka, had unlawfully dismissed Mr Stoginenko for his financing the newspaper and had summoned the General Prosecutor to his office with a view of giving him an order to institute criminal proceedings against the applicant.
15. As regards the third and fourth articles, the Minsky Court stated that the applicant, again abusing his office, had intentionally defamed the law enforcement agencies of Ukraine by publishing libellous and false information regarding General G., namely that Mr S. was involved in criminal activity and that Mr G. had had illegal links with this person. The court found that the statements that Mr S., aided and abetted by General G., had extorted money from local businessmen and that they were family related were false and offensive. This conclusion was made on the basis of, inter alia, testimonies of S. and a witness Z. who stated that the photographs, published by the Polityka, were taken at a private party, but somehow made their way to the paper and TV media. The police officers, who had investigated the complaints of the businessmen about the alleged extortions, also gave oral evidence, stating that the proceedings in the case were terminated on the early stage of the pre-trial investigation due to the lack of any corpus delicti.
16. The Minsky Court concluded that the applicant, as an editor-in-chief, was directly liable for any abusive material published in the newspaper. Using his office, the applicant had intentionally published false statements aimed at defaming the police in revenge for a certain unspecified previous conviction.
17. The applicant was convicted of abuse of power, intentional defamation in print and an unfounded accusation of committing a grave offence and sentenced to two years’ imprisonment on probation and a two years prohibition on occupying posts involving media management.
18. On 18 October 2001 the Kyiv City Court of Appeal upheld the applicant’s conviction in substance, indicating that the fact that the imputed offences had been committed was proved by a wide range of evidence, collected by the prosecution. In particular, the court came to the conclusion that the applicant had made intentionally false and offensive statements concerning the unlawful dismissal of Mr Stoginenko and Mr Durdynets’ summons of the General Prosecutor to his office, the criminal activity of S. and his liaisons with General G., thus committing offences under Articles 125 and 165 of the Criminal Code, 1961. However, the appellate instance quashed the applicant’s sentence for intentional defamation in print and an unfounded accusation of committing a grave offence as these offences had been decriminalised by the new Criminal Code adopted in 2001. As regards the third offence imputed to the applicant – abuse of office – the applicant was exempted from punishment on account of expiry of the statutory limitation period.
19. On 23 July 2002 the Supreme Court upheld the decision of the Kyiv City Court of Appeal.
20. Relevant extracts from the Constitution read as follows:
“... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for material and moral damage inflicted by the collection, storage, use and dissemination of such incorrect information.”
“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.
Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.
The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.”
21. The text of Article 125 of the Code was as follows:
Defamation [Наклеп], namely the intentional dissemination of falsehoods aimed at damaging the reputation of another shall be punishable by ...
Defamation in print ... shall be punishable by up to three years’ imprisonment or a fine from 50 to 100 minimal monthly salaries.
Defamation linked with an unfounded accusation of committing a grave offence shall be punishable by up to five years’ imprisonment.
Article 165 of the Code provided as follows:
Abuse of power or office, namely intentional, lucrative or with other personal interest or the interest of third persons, use by official of his/her power or office against the interest of service, if it caused serious damage to the State or public interests or to lawful interests of natural or legal persons shall be publishable by between two and five years’ imprisonment or by up to two years’ correctional labour with up to three years’ prohibition of employment in certain occupations.”
22. Article 364 of the Code provides that:
Abuse of power or office, namely intentional, lucrative or with other personal interest or the interest of third persons, use by official of his/her power or office against the interest of service, if it caused serious damage to the State or public interests or to lawful interests of natural or legal persons shall be publishable by up to two years’ correctional labour or by up to six months’ arrest or by up to three years’ limitation of freedom with up to three years’ prohibition of employment in certain occupations.”
23. The text of Article 27 of the Code (hereafter “the CCP”), as worded until 21 June 2001, was as follows:
“The cases concerning crimes stipulated in Articles 125 ... of the Criminal Code of Ukraine, if the damage is caused to the rights and interests of citizens are instituted only upon the complaint of the victim, who conducts the prosecution in court. In such cases there is no pre-trial investigation.
...If the case concerning any crime referred to in paragraph 1 of this Article has special public interest ...the prosecutor may institute the case in absence of the victim’s complaint. The case instituted by the prosecutor should be sent to the pre-trial investigation and, thereafter, is tried under the general rules.”
24. Article 17 of the Law provides that the General Prosecutor’s Office is staffed with “senior investigators for particularly serious cases” and “investigators for particularly serious cases”.
25. Further relevant material regarding the state of freedom of press in Ukraine at the material time may be found in the judgment of 29 March 2005 in the case of Ukrainian Media Group v. Ukraine (no. 72713/01, §§ 18-22 and 25-26).
VIOLATED_ARTICLES: 10


ITEMID: 001-82153
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: POKIS v. LATVIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Valters Poķis, is a Latvian national who was born in 1970 and lives in Riga (Latvia). He was represented before the Court by Mrs I. Jansone, a lawyer practising in Riga.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In November 1996 the applicant, together with three other individuals and a legal entity, set up a limited-liability company named SIA LatelektroGulbene (“the company”), which was entered immediately in the companies register (Uzņēmumu reģistrs). The new company’s base capital amounted to 2,000 lati (LVL), comprising 2,000 shares worth LVL 1 each. The applicant held 756 shares, making him the majority shareholder. In May 1998 the applicant used his shares as security for a loan from a commercial bank in Riga, but continued to own them.
On 27 September 1999 a general meeting of company members decided to wind up the company. On 14 January 2000 a winding-up petition was lodged with the Vidzeme Regional Court, which examined it at a hearing on 7 March 2000. Despite the explanations of the company’s representatives to the effect that the company’s financial situation had improved in the meantime, with the result that it was now able to honour its debts, the court declared the company insolvent, placed it in compulsory liquidation and appointed a liquidator (administrators), N.P. In addition, the court appointed the company’s Chairman, Z.J., its Chief Executive, D.G., and its accountant, M.R., as the debtor’s representatives (parādnieka pārstāvji). The Regional Court’s judgment of 7 March 2000 was final.
In September 2000 a creditors’ meeting adopted a recovery plan (sanācijas plāns) for the company, based in particular on a very substantial increase in its share capital. However, by an order of 6 October 2000, the Vidzeme Regional Court refused to ratify the plan.
Notwithstanding this refusal, N.P. forwarded amendments to the company’s memorandum and articles of association for entry in the companies register. The amendments were entered straight away. On an application by the applicant dated 29 October 2000, the Chief Registrar of Companies (galvenais valsts notārs) cancelled the registration of the amendments in question. According to the Chief Registrar, the liquidator had acted in bad faith, as he had had no right to amend the company’s memorandum and articles of association when the recovery plan had not been ratified by the courts. The Chief Registrar also observed that the increase in the company’s share capital envisaged by N.P. would interfere with the applicant’s right of pre-emption over the new shares.
On 30 October 2000 a creditors’ meeting again approved the increase in the company’s share capital and the amendments to its memorandum and articles of association.
In November 2000 the applicant’s three individual associates concluded a deed of gift with a third party, V.M., under which they transferred all their shares to him. V.M. thus became the majority shareholder, with 1,044 shares. The applicant continued to own 756 shares and the remaining 200 shares were held by the legal entity which had been one of the company’s founders.
On 24 November and 5 December 2000 the company’s creditors met and adopted a new recovery plan. Under the terms of the plan, V.M. was to increase the company’s share capital to LVL 100,000 within fifteen days. The funds required for the purpose were to come from the public limited company B.H., of which V.M. was Chairman and Chief Executive. By a final order of 3 January 2001, the Vidzeme Regional Court ratified the new plan.
In the meantime, on 28 December 2000, the applicant, represented by the bank to which he had pledged his shares as security, lodged an application with the Vidzeme Regional Court challenging the decisions of the company’s creditors and the actions of the liquidator. In his memorial he submitted a series of complaints concerning the conduct of the insolvency procedure. Firstly, he contended that N.P. did not have the right to increase the company’s share capital and that the creditors had no right to approve the unlawful decisions taken by the liquidator. Secondly, he criticised the final version of the recovery plan. In his view, the text contained a number of shortcomings and irregularities which made it incompatible with the legislation on company insolvency. He argued, for instance, that the plan did not set out in sufficient detail the recovery measures and the deadlines for their implementation; the debt repayment schedule was unfair as it gave small creditors an advantage; the overall recovery period exceeded the statutory maximum period of two years; and the creditors’ meeting had not had all the documents it needed in order to take an equitable decision. Thirdly, in the applicant’s view, N.P.’s conduct demonstrated that he was incompetent and had acted in bad faith, and he should be dismissed as liquidator. Accordingly, the applicant requested the court to declare all the decisions taken by N.P. and the creditors null and void, to refuse to ratify the recovery plan and to dismiss N.P.
By an order of 9 January 2001, the relevant judge of the Vidzeme Regional Court declared the applicant’s application inadmissible. The order stated that no legislation conferred on ordinary shareholders a right of appeal against decisions taken by the liquidator or by meetings of the creditors of a company in liquidation. In that connection the judge pointed out that only the official representatives of the debtor company could participate in the insolvency proceedings and that the applicant was not one of the three representatives appointed under the judgment of 7 March 2000. Finally, the judge found that the applicant was not entitled to request the dismissal of the liquidator; such a request could be made only by a meeting of the creditors.
This order was served on the bank, as the applicant’s representative, but not on the applicant himself. Consequently, he did not receive a copy until 19 January 2001. On 23 January 2001 he challenged the order by means of an appeal to the Civil Division of the Supreme Court. At the same time he requested the Vidzeme Regional Court to extend the time allowed for lodging an appeal against the order in question, explaining that he had received a copy of the order on the last day of the ten-day period laid down in section 442 of the Civil Procedure Act and had therefore been unable to lodge his appeal within the time allowed.
On 5 February 2001 the relevant judge of the Regional Court transmitted the appeal to the Supreme Court without giving a formal ruling on the extension of the time allowed. The judge simply noted that “the appeal [had been] lodged within the period set down by section 133 of the Civil Procedure Act and [was] to be forwarded” to the recipient.
By a final order of 19 March 2001, the relevant judge of the Civil Division declared the appeal inadmissible on the ground that it had been lodged out of time and that the first-instance judge had not extended the period specified in section 442 of the Civil Procedure Act.
The applicant then lodged an appeal on points of law with the Senate of the Supreme Court, which dismissed it by a final order of 9 May 2001. In the Senate’s view, the fact that the first-instance judge had omitted to rule on the extension of the time allowed for lodging an appeal did not alter the finding that the appeal had been lodged out of time; the appeal court had therefore been right not to examine it.
Insolvency proceedings are governed by the Companies Insolvency Act of 12 September 1996 (Likums “Par uzņēmumu un uzņēmējsabiedrību maksātnespēju”). In accordance with the Act, the chief players in insolvency proceedings are the liquidator, the company’s representatives, the creditors’ meetings and, where appropriate, the creditors’ committee. As a rule, a meeting of creditors includes all the creditors of the company in liquidation; any person with a claim against the company has the right to attend (section 6(1)). The liquidator is appointed by the relevant court (section 16(1)). At the material time the debtor company’s representatives were usually appointed by the liquidator (section 33), but could also be appointed or approved by the court. They are now appointed by the court in all cases.
Once a company has been declared insolvent, it loses the right to dispose of its assets, that right being transferred to the liquidator. Similarly, the bodies responsible for administering and managing the company are suspended and their powers transferred to the liquidator (section 19(2) and (3) and section 50(1)). The latter must report to a meeting of creditors, which can request his dismissal (section 7(1)). The procedure for dismissal is laid down in section 28: if the creditors’ meeting considers that the liquidator no longer fulfils the statutory requirements, is incompetent or is acting in bad faith, it must pass a vote of no confidence in him. It must then request the relevant court to dismiss the liquidator and replace him.
At the relevant time a creditors’ meeting could challenge the decisions of the liquidator before the courts, on condition that it had first made an application to the liquidator himself. This option was also available to the debtor company and to individual creditors. The latter had first to apply to the liquidator; if their application was rejected, explicitly or implicitly, they had to propose legal action to a creditors’ meeting. If the meeting rejected the proposal, they could then institute legal proceedings themselves (section 61(1)).
A company recovery plan adopted by a creditors’ meeting may be challenged before the courts by the liquidator, a single creditor or a group of creditors (section 91).
Judicial insolvency proceedings are governed by Chapter 46 of the Civil Procedure Act (Civilprocesa likums). At the material time the relevant provisions of this Chapter were identical in substance to those of the Insolvency Act. Section 358(1) stated that the liquidator had the right to appeal against any decisions taken by a meeting of creditors.


ITEMID: 001-61481
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF TRENCIANSKY v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Matti Pellonpää
TEXT: 4. The applicant was born in 1928 and lives in Bratislava.
5. On 5 January 1983 the applicant and his wife purchased a house situated in Michalovce from the applicant's parents-in-law. The purchase contract was registered with the State Notary's Office in Michalovce.
6. On 5 March 1990 the applicant's mother-in-law filed an action with the Michalovce District Court claiming that the contract should be declared void. She alleged that the applicant and his wife had not paid the purchase price and that they had forced her and her late husband to conclude the contract.
7. On 21 November 1990 the Michalovce District Court declared the contract void. It found, with reference to witness statements and documentary evidence, that the vendors had concluded it under pressure.
8. On 14 January 1991 and on 8 May 1991 the applicant and his wife appealed. They challenged the conclusions of the District Court with reference to documentary evidence.
9. On 13 May 1991 the Košice Regional Court quashed the first instance judgment as it did not specify what kind of pressure the defendants had allegedly exercised on the vendors, and because it was not clear whether the contract corresponded to the genuine will of the parties. The Regional Court therefore instructed the District Court to hear the State Notary who had registered the contract and to establish whether the purchase price had been determined correctly.
10. On 6 December 1991 the Michalovce District Court again declared the contract void. After having taken further evidence, the District Court established that the applicant and his wife had exercised pressure on the vendors in that they had repeatedly pointed to their age and to their health problems, and that they had offered to take care of them subject to the transfer of the house. The court noted that there existed no evidence as to whether the applicant and his wife had paid the purchase price as alleged by them. It therefore relied on the argument of the applicant's mother-in-law according to which the purchase contract had been concluded formally with a view to reducing the costs of the transfer. The District Court concluded that the contract did not correspond to the genuine will of the parties and that it was therefore void within the meaning of Article 37 of the Civil Code.
11. On 19 December 1991 the applicant and his wife appealed. On 11 and 13 May 1992 they made further written submissions to the Regional Court.
12. On 31 June 1992 the Košice Regional Court quashed the District Court's judgment of 6 December 1991. The appellate court found that the evidence available did not suffice to conclude that the claimant and her late husband had been put under pressure by the defendants or that the contract in question was invalid. In its judgment the Regional Court instructed the District Court to hear the claimant thoroughly with a view to assessing the validity of the contract in the light of Article 37 of the Civil Code, that is whether the parties had concluded it of their own free will, with a serious intention to do so and in an unequivocal manner.
13. A hearing before the District Court was held on 17 November 1992. On 2 February 1992 the District Court appointed an expert in psychiatry. The latter submitted the opinion on 7 June 2003.
14. A hearing scheduled for 25 June 2003 was adjourned as the applicant's mother-in-law was ill. She died on 3 July 1993. On 31 August and on 3 September 1993 the defendants and the plaintiff's legal representative provided the court with the names of the plaintiff's heirs.
15. On 24 June 1994 the District Court decided on the expert's fees. On 27 December 1993 the defendants appealed against this decision.
16. On 3 May 1994 the District Court allowed two legal successors of the applicant's mother-in-law to join the proceedings as plaintiffs. On the same day it delivered its third judgment on the case concluding that the purchase contract was void. The judgment referred to detailed statements by the applicant's mother-in-law according to which the applicant's wife had insistently incited her parents to transfer the house to her and the applicant. The applicant's mother-in-law further stated before the court that she had accepted the proposal because she was an invalid and her health had deteriorated. She feared that she might not be properly looked after in the future. Her husband agreed to the transfer as he shared her anxiety.
17. The District Court had also regard to the opinion of a psychiatrist according to whom the applicant's mother-in-law had suffered from constant stress due to a lasting deterioration of her health. The expert expressed the view that, in 1983, her reaction to stress could have brought about a mental state which gave rise to great pressure on her to sign the contract. The District Court concluded that the vendors had not concluded the contract of their free will as required by Article 37 of the Civil Code.
18. On 3 August 1994 the applicant and his wife appealed. They also challenged the District Court judge on the ground that he had been the classmate of one of the claimants at the elementary school. One of the defendants submitted observations on the appeal on 2 September 1994.
19. The case-file was submitted to the Košice Regional Court on 13 October 1994. At the hearing held on 22 March 1995 the applicant and his wife reiterated that they considered the District Court judge to be biased. On 28 March 1995 the file was returned to the District Court and the judge was asked to comment on the applicant's objection to his person. On 8 May 1995 the Košice Regional Court dismissed the request for exclusion of the District Court judge.
20. On 28 November 1995 the Regional Court quashed the District Court's judgment of 3 May 1994. The decision was served on the applicant's lawyer on 12 March 1996. It stated that the District Court had repeatedly failed to establish the relevant facts of the case and that it had not followed the views expressed in the Regional Court's decision of 31 June 1992. The appellate court instructed the District Court to take further evidence.
21. On 17 April 1996 the applicant submitted further information at the District Court's request. On 1 August 1996 the District Court scheduled the next hearing for 3 September 1996. On the latter date it admitted a change of the plaintiffs. On 31 July 1997 the District Court scheduled the next hearing for 21 August 1997.
22. On 27 August 1997 the applicant challenged the District Court judge. On 29 October 1997 the Košice Regional Court found that the District Court judge was not biased.
23. On 18 December 1997 the Michalovce District Court delivered its fourth judgment declaring the contract void. The court held that the applicant's mother-in-law had agreed to transfer the property as she had feared not to be looked after in an appropriate manner in the future. The court also noted that the applicant's mother-in-law had alleged that the contract had been concluded formally and that she and her husband had not asked the applicant and his wife to pay the price.
24. On 23 February 1998 the applicant and his wife appealed. On 25 March 1998 the plaintiffs submitted their observations on the appeal. The file was transmitted to the Regional Court on 7 April 1998. On 4 May 1998 the applicant's lawyer submitted further reasons for the appeal.
25. On 8 December 1998 the Košice Regional Court upheld the first instance judgment. The judgment stated that the evidence available was not sufficient to conclude that the vendors had signed the contract under pressure. However, it indicated that the vendors had not expected the applicant and his wife to pay the price to them and that they had agreed to formally conclude a purchase contract with a view to reducing the transfer costs.
26. On 18 February 1999 the applicant and his wife filed an appeal on points of law. On 22 April 1999 they paid the court fees at the court's request of 7 April 1999.
27. In the meantime, on 24 February 1999 the District Court decided on expert's fees. On 15 March 1999 the defendants appealed. On 20 September 1999 the Regional Court quashed the decision on the expert's fees.
28. On 8 November 1999 the file was transferred to the Supreme Court. On 10 December 1999 it was returned to the District Court on the ground that the fees paid by the applicant and his wife had not been determined correctly. The supplementary fees were paid on 29 December 1999. On 10 March 2000 the Supreme Court dismissed the appeal on points of law.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1