ITEMID: 001-59206
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF BENSAID v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 3;No violation of Art. 8;No violation of Art. 13
JUDGES: Nicolas Bratza;Simon Brown
TEXT: 7. The applicant is a schizophrenic suffering from a psychotic illness. He appears to have experienced the first symptoms in 1994-95. When he first came to the attention of the mental health services, his condition was so severe that consideration was given to detaining him compulsorily in a psychiatric hospital. However, this turned out to be unnecessary as he responded sufficiently to treatment and his illness has been successfully managed. At the end of 1997, he was admitted to hospital for a few days following a minor relapse which his psychiatrist attributed in part to side effects from his previous medication. His antipsychotic medication was changed from sulpiride to olanzapine.
Schizophrenia is an illness or group of illnesses affecting language, planning, emotion, perceptions and movement. “Positive symptoms” often accompany acute psychotic episodes (including delusions, hallucinations, disordered or fragmented thinking and catatonic movements). “Negative symptoms”, associated with long-term illness, include feelings of emotional numbness, difficulty in communicating with others, lack of motivation and inability to care about or cope with everyday tasks.
8. The applicant arrived in the United Kingdom as a visitor on 2 May 1989 and was granted six months' leave to remain, which was extended until 11 February 1992 because he was undertaking studies. In June 1992 an out-of-time application for a further extension was rejected and in October 1992 he was requested to leave.
9. On 8 April 1993 the applicant married J., a United Kingdom citizen. On 5 May 1993 he applied for leave to remain on account of his marriage. He was granted leave to remain on that basis until 29 June 1994. On 20 June 1994 he applied for indefinite leave to remain as a foreign spouse. This was refused on 9 January 1995. On 24 March 1995 the applicant made further representations and on 12 May 1995 he was granted indefinite leave to remain as a foreign spouse.
10. On 10 August 1996 the applicant left the United Kingdom to visit Algeria. As a result, his indefinite leave to remain lapsed. He returned to the United Kingdom on 17 September 1996 and sought leave to enter as a returning resident. The immigration officer, whose suspicions were aroused about the subsistence of the marriage on which leave to remain had been obtained, granted him temporary admission pending further enquiries. On 24 March 1997 the immigration authorities decided to refuse leave to enter on the ground that indefinite leave to remain had been obtained by deception, the marriage being one of convenience. He was given notice of intention to remove him from the United Kingdom. He was only entitled to appeal against the basis of that decision after leaving the United Kingdom. The applicant sought deferral of the removal directions on the basis of his medical condition. The Secretary of State refused to defer the directions.
11. On 7 April 1997 the applicant applied for judicial review of the proposed expulsion on the grounds that it would cause him a full relapse in his mental health problems and would amount to inhuman and degrading treatment, contrary to Article 3 of the Convention. By a letter of 7 May 1997, the Secretary of State gave detailed reasons for his decision.
12. On 8 May 1997 the High Court refused the applicant leave to apply for judicial review. The applicant renewed his application before the Court of Appeal.
13. The applicant made further representations about his medical condition, which were considered by the Secretary of State and rejected in letters dated 16 and 18 July 1997.
14. On 21 July 1997 the Court of Appeal adjourned the application to enable the Government to reconsider their position in the light of further material submitted by the applicant. It suggested that the Government might wish to obtain their own medical examination of the applicant.
15. Six months later the Government indicated that they did not wish to have the applicant medically examined. They submitted that there was a hospital in Algeria which provided treatment “not solely to those who have committed crimes” and which could admit the applicant and administer the medication which the Government understood the applicant to be receiving. The hospital was situated at Blida, 75 to 80 km from the applicant's village of Rouina. In a letter dated 15 July 1998, the immigration authorities stated, inter alia, that, as advised by the Foreign and Commonwealth Office, there was at that time no particular danger in travelling between Rouina and Blida. As regards the applicant's state of health, they stated that they would only remove the applicant if he was certified as fit to travel, and he would be accompanied by medical personnel during the journey. As medication and treatment would be available to him in Algeria, it was concluded that his circumstances were not so exceptional or compelling that he should be granted entry.
16. The applicant obtained opinions from his psychiatrist as to the likely effect of his removal to Algeria. In a letter dated 24 March 1998, Dr Johnson stated that there was a high risk that the applicant would suffer a relapse of psychotic symptoms on being returned to Algeria. The requirement to undertake regularly an arduous journey through a troubled region would make the risk still greater. She pointed out that when individuals with psychotic illnesses relapse, they commonly have great difficulty in being sufficiently organised to seek help for themselves or to travel. For this reason, it was necessary for the management of such illnesses to be local and readily accessible. It was therefore very unlikely in these circumstances that any relapse of the applicant would be effectively treated. In a supplementary report of 7 July 1998, Dr Johnson stated that any suffering which might accompany a relapse would be likely to be substantial. When the applicant's illness had been severe, he had lost all insight into the fact that he was ill and believed the persecutory delusions and abuse which he experienced, including voices telling him to harm other people. He had previously felt sufficiently depressed and hopeless to contemplate suicide.
17. The applicant also obtained opinions from Mr Joffé, Deputy Director of the Royal Institute of International Affairs as to conditions in Algeria. In a letter of 3 March 1998, Mr Joffé stated that the area in which Rouina and Blida were situated had been a focus of terrorist violence and terrorist action since 1994.
18. Following further adjournments requested by the Government, the matter came before the Court of Appeal on 17 July 1998. The court dismissed the applicant's appeal. In giving his judgment, with which the two other judges concurred, Lord Justice Hutchison referred to the evidence from the Government relating to the possibilities of treatment and to their view that there was no particular danger in travelling along the main road between Rouina and Blida by day. He referred also to the evidence from the applicant with respect to the risk of relapse, the inadequacy of the alleged facilities and the state of disorder and violence which was alleged severely to compromise his ability to travel for regular treatment. He concluded, however, that matters of that sort were for the judgment of the Secretary of State:
“It is not for this Court to take the decision as to whether the applicant should in all the circumstances be removed to Algeria. It is for this Court to review in appropriate cases the decision of the Secretary of State on well-known grounds and the limitations imposed on the Courts are well-established. [Counsel for the applicant], of course, is submitting that the facts as disclosed in the evidence filed on behalf of the applicant show that the decision is unreasonable in a Wednesbury sense and/or constitutes a breach of Article 3. However, it has to be said that the letters from the Chief Immigration Officer answer, it seems to me, with particularity each of the points which is made on behalf of the applicant. It is not for us to judge where the truth lies, for example, between the account of Mr Joffé [Deputy Director of the Royal Institute of International Affairs] on the one hand and the account on which the Secretary of State has based his view on the other as to the situation obtaining in the area between Rouina and Blida. What would have to be established if this application were to stand any chance of success would be that the decision of the Secretary of State in the light of the information available was so unreasonable that no reasonable Secretary of State could have come to it. For my part, I see no prospect of a Court being persuaded, if leave were granted, that that was the position. Moreover it is clear from the letter of 15 July that quite exceptional steps are intended to be taken by the Secretary of State to endeavour that the applicant is adequately cared for on the journey and on his arrival, and, finally, I observe that it has twice been reiterated that his case will be reviewed in respect of the situation in Algeria and also no doubt in respect of his current state of health before any removal directions are put into effect. ... while this is obviously a case which must have occasioned the Secretary of State considerable thought and which poses difficult decisions, he has taken decisions on the basis of information available to him and given a full and detailed explanation of his reasons. I see no prospect whatever of the Court being persuaded that his decision is in the circumstances so unreasonable that no reasonable Secretary of State could have reached it.”
19. Removal directions were set for 20 November 1998.
20. The applicant's home village is Rouina. His parents live there, as do five of his brothers and a sister. His father is retired and lives on his pension. He has a two-bedroom house. None of the family has a car. The nearest hospital with facilities for treating mental illness is the Frantz-Fanon Hospital in Blida, 75 to 80 km away. The Government have provided a letter dated 28 July 1999 from Professor Ridouh, a senior psychiatrist at that hospital, indicating that the hospital contains 160 beds catering for persons committed in the context of criminal acts and 80 beds for persons referred administratively. He stated that the drug olanzapine was available in Algeria and could be prescribed in hospital pharmacies. Medical treatment, including drugs, was provided free to persons treated at the hospital.
21. In a further opinion dated 20 May 1999 sought by the immigration authorities with the applicant's consent, Dr Johnson reported that, when seen in February 1999, the applicant showed some signs of deterioration, with his auditory hallucinations having become more intrusive and with thoughts about harming himself and voices telling him to harm himself (“positive symptoms”). He had been unable to sleep because of this. His olanzapine had been increased and he had responded to this. However, he continued to have considerable difficulty with motivation and social withdrawal (“negative symptoms”). The applicant's mental illness was likely to be a long-term one. She would expect that he would continue to have positive symptoms, which would persist and could worsen, although controlled to a substantial degree by olanzapine. At times, he might require urgent help with these symptoms. There had been a significant deterioration in his level of social functioning probably due to negative symptoms and which was likely to be significantly handicapping in the coming years. With continuing medication and support from the mental health services, however, he would be likely to remain at the same level and not require very long periods of institutionalisation. Nor was he at a very serious risk of suicide. She stated, however, that if the applicant were to be returned to Algeria she would be more uncertain of the prognosis. She thought it was
“highly likely that stressful life events such as deportation together with the more stressful environment he would be likely to encounter in Algeria would trigger exacerbation of his symptoms as occurred on his last visit to Algeria. ... his fearfulness when unwell and also the motivational difficulties and flatness of affect makes it very difficult for him to seek appropriate help when he does become unwell. ... If he were unable to obtain appropriate help, if he began to relapse I think that there would be a great risk that his deterioration would be very great and he would be at risk of acting in obedience to the hallucinations telling himself to harm himself or others ... Thus I do think that there is a substantial likelihood that forcible repatriation would result in significant and lasting adverse effect.”
She further advised that any change in medication from olanzapine to sulpiride would create a risk of deterioration in his negative symptoms and diminish the control of the positive symptoms.
22. Subject to exceptions, persons who are not United Kingdom citizens may not enter or remain in the United Kingdom unless given leave to do so. The grant of leave may be for a limited or indefinite period. Leave to enter is granted by immigration officers. Leave to remain is granted by the Secretary of State.
23. The Secretary of State makes rules concerning the practice to be followed in applying the Immigration Act 1971. The rules concerning the admission and residence of spouses provide that indefinite leave to remain as a foreign spouse requires, inter alia, that the marriage be still subsisting.
24. Where there has been a refusal of leave to enter, there is a right of appeal under section 13 of the Immigration Act 1971 to an adjudicator. However, this appeal cannot be exercised until the applicant has left the United Kingdom.
25. Persons seeking to enter the United Kingdom for medical treatment must show that they can maintain and accommodate themselves without recourse to public funds. The Secretary of State retains a power to grant leave to enter outside the Immigration Rules, known as “exceptional leave”. The policy statement entitled “Exceptional Leave” (July 1998), although it applied to asylum-seekers, reflects the approach taken by the Secretary of State in this case:
“2.1. Eligibility criteria
ELE/R [exceptional leave to enter or remain] must be granted to asylum applicants if they fall under the following criteria
– where the 1951 UN Convention requirements are not met in the individual case but return to the country of origin would result in the applicant being subjected to torture or other cruel, inhuman or degrading treatment or where the removal would result in an unjustifiable break up of family life. For example ...
– where there is credible medical evidence that return, due to the medical facilities in the country concerned, would reduce the applicant's life expectancy and subject him to acute physical and mental suffering, in circumstances where the UK can be regarded as having assumed responsibility for his care. In cases of doubt, a second opinion should be sought from a credible source. ...
2.2. Disqualifying criteria
A person should never be disqualified from ELE/R if there are substantial reasons for believing that he or she would be tortured or otherwise subjected to inhuman or degrading treatment if they were to be returned to their country of origin ...”
26. Decisions of the Home Secretary to refuse asylum, to make a deportation order or to detain pending deportation are liable to challenge by way of judicial review and may be quashed by reference to the ordinary principles of English public law.
27. These principles do not permit the courts to make findings of fact on matters within the jurisdiction of the Secretary of State or to substitute their discretion for the minister's. The courts may quash his decision only if he has failed to interpret or apply English law correctly, if he failed to take account of issues which he was required by law to address, or if his decision was so irrational or perverse that no reasonable Secretary of State could have made it (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 King's Bench Reports 223).
28. In the recent case of R. v. Home Secretary, ex parte Turgut (28 January 2000) concerning the Secretary of State's refusal of asylum to a young male Turkish Kurd draft evader, Lord Justice Simon Brown, in the Court of Appeal's judgment, stated as follows:
“I therefore conclude that the domestic court's obligation on an irrationality challenge in an Article 3 case is to subject the Secretary of State's decision to rigorous examination and this it does by considering the underlying factual material for itself to see whether it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed.
All that said, however, this is not an area in which the Court will pay any especial deference to the Secretary of State's conclusion on the facts. In the first place, the human right involved here – the right not to be exposed to a real risk of Article 3 treatment – is both absolute and fundamental: it is not a qualified right requiring a balance to be struck with some competing social need. Secondly, the Court here is hardly less well placed than the Secretary of State himself to evaluate the risk once the relevant material is before it. Thirdly, whilst I would reject the applicant's contention that the Secretary of State has knowingly misrepresented the evidence or shut his eyes to the true position, we must, I think, recognise at least the possibility that he has (even if unconsciously) tended to depreciate the evidence of risk and, throughout the protracted decision-making process, may have tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather than reassess the position with an open mind. In circumstances such as these, what has been called the 'discretionary area of judgment' – the area of judgment within which the Court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant's removal ... – is decidedly a narrow one.”
NON_VIOLATED_ARTICLES: 13
3
8


ITEMID: 001-90295
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GROGER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Christian Gröger, is an Austrian national who lives in Vienna (Austria). He is represented before the Court by Mr K. Bernhauser, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 March 2001 the applicant was questioned by the Vienna Police authority on suspicion of cigarette smuggling. Further examinations by the Vienna Customs Office (Zollamt Wien) took place on 9 March 2001 and 17 November 2005.
On 5 April 2006 the Vienna Customs Office formally decided to institute proceedings for smuggling under the Tax Offences Act.
On 27 April 2006 the applicant appealed against the decision to institute proceedings against him. In his appeal he submitted, inter alia, that the proceedings had already lasted an unreasonably long time and requested that they be discontinued.
The proceedings against the applicant are still pending.
Article 132 of the Federal Constitution Act, in its relevant part, reads as follows:
“An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty. An action for breach of the duty to decide is inadmissible in administrative criminal proceedings, except as regards private prosecutions and prosecutions in respect of tax offences.”
Section 57 (6) of the Code of Tax Offences (Finanzstrafgesetz) as amended by the Code of Tax Offences Amendment Act 2007 (Finanzstrafgesetz-Novelle 2007), Federal Law Gazette 2007 Part I No. 44 (BGBl. Nr. I 2007/44) as in force since 1 January 2008, reads as follows:
“Financial criminal proceedings shall always be conducted expeditiously and without unnecessary delay and shall be terminated within adequate time. Proceedings during which an accused is detained shall be conducted with particular expedience. If a finance prosecution authority is dilatory in taking procedural action, the accused may file a request with the finance prosecution authority directed at the head of the Appeal Senate of the Independent Financial Senate (Berufungssenat des unabhängigen Finanzsenates) referred to in Section 62 (4) to set an adequate time-limit for the finance prosecution authority to take the procedural action. If the finance prosecution authority has taken the procedural action prior to the decision on the request, the request shall be deemed withdrawn.”


ITEMID: 001-23159
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: PORTER v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Lord Justice Schiemann;Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Ms Shirley Porter, is a United Kingdom national, who was born in 1930 and lives in Israel. She is represented before the Court by Mr M. Spragg, a lawyer practising in London.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, a Conservative politician, was first elected to Westminster City Council in 1974. This inner London Borough covers a large part of central London, including Mayfair, Belgravia and Regent’s Park as well as some less affluent areas to the north and north-west. During the 1980’s, she was leader of the Council as well as of the majority party.
As a result of the local government elections in May 1986, the overall Conservative party majority was reduced from 26 to 4. The applicant was determined that the Conservative Party would have a greater majority at the 1990 elections. With this end in view, she re-organised the party’s administrative and decision making structure and chaired the Chairmen’s Group which was to develop and promote policy. In mid-February 1987, the applicant and others in the majority identified key wards, namely eight districts which were marginal. Their intention was to develop council policies which would target marginal wards, including such housing policies as could affect the make up of the electorate of those wards. References were made inter alia to “an immediate need to socially engineer the population in marginal wards” and to an aim “to preserve local communities – but boot out certain categories”.
The Council held a stock of 24,000 dwellings used for the provision of social housing. The plan which was developed involved selling Council property in strategically important areas at reduced prices to approved applicants who, it was hoped, would be more likely to vote Conservative – “designated sales”. Properties to be sold in this way were designated, then kept empty as they became available until suitable purchasers were approved.
On 14 March 1987, at a meeting of the Chairmen’s Group, it was proposed to designate all Council properties in the eight marginal wards. A memorandum on 17 March 1987 from the Director of Housing advised that this would render it impossible to meet statutory obligations to the homeless and they should seek legal advice. On 24 March 1987, the City Solicitor advised the applicant that “it was fundamental that the arguments in favour of selling be soundly based and properly argued. Anything which smacks of political machinations will be viewed with great suspicion by the courts.” He also stated that “the possibility of surcharge [legal requirement to pay any financial loss to the City] exists but it will be necessary for those challenging to show wilful misconduct. This re-emphasises the need for a good argument to be constructed in favour of sale”.
The same day the Chairmen’s group decided to adopt a target of 250 sales per annum in the marginal wards. On about 10 April 1987, the report commissioned by PACEC (economic consultants) however failed to provide support or professional justification for the identification of the eight key wards or for any increase in designated sales. A further paper on designated sales produced by the divisional director of housing adverted to a number of difficulties about the sales target and gave the view that it was imperative to obtain counsel’s advice.
On 5 May 1987, a number of Council officers met with Queen’s Counsel. There was no contemporaneous record of his advice. A report was made to the applicant and the Chairmen’s group that evening. The independent counsel was informed that the majority group wished to target sales in marginal wards for electoral advantage. He advised that they could not lawfully sell 250 properties per annum in the marginal wards alone. He also advised that properties had to be designated for proper reasons, across the whole of the City and not in particular wards and that, in identifying properties to be designated, the same criteria had to be applied across the whole City and, ultimately, choice made without reference to anything other than those proper criteria. The Chairmen’s group agreed to target sales city-wide in order to produce the number of designated sales in marginal wards.
At a meeting on 13-14 June 1987, the Chairmen’s group endorsed the target of 500 sales across the City which was intended to produce the desired number of sales. During June, an analysis was conducted in order to identify the properties that could be designated. The legal adviser to the Housing Committee repeated that it was vital that the Committee choose estates on the basis of housing and planning issues and that it would be necessary to be able to show that the list was neither arbitrary nor drawn up with reference to “improper factors”.
A joint report on Home Ownership in the names of various Council officials was circulated on 26 June 1987, outlining three options on designated sales but recommending none. The third option was to designate sufficient properties to produce 500 sales per annum. 20,697 properties had been identified in the report as eligible for designation – 29% were in the eight marginal wards. Evidence was given later that the joint report had been shown to counsel who had considered that it was “judge proof”. The list of properties to be designated was not recommended by officers – it was presented by the Chairman of the Housing Committee – 74% of all eligible dwellings in the eight key wards were to be designated while only 28% of all eligible properties in other wards were designated.
At the meeting of the Housing Committee on 8 July 1987, the Chairman of the Housing Committee presented Option 3 as the majority party’s preferred option. By seven votes to five, Option 3 was adopted.
Following this decision, on instructions from the Chairmen’s group, monitoring reports were issued concerning the progress to achieving “sales targets” in the eight key wards. Labour members of the Opposition were questioning the sales policy with increasing vigour however, repeatedly pressing for information on the selection of wards.
Between July 1987 and October 1989, some 618 dwellings were disposed of with vacant possession, sold to an approved list of purchasers, all first-time buyers, at discounts varying from 30% to 70% of the market value according to the circumstances of the purchaser.
In July 1989, complaints were made by local government electors to Mr John Magill, the Council’s Auditor about the legality of the designated sales policy, inviting the Auditor to take action under sections 19 and 20 of the Local Government Act 1982. Some 28 persons were named or referred to in the objection, including the applicant, her deputy Mr Weeks, the Director of the Housing Committee and others on that Committee.
In October 1989, the Auditor requested a formal response to the objections from the Council. The Council produced its response on 27 November 1989.
On 5 December 1989, the Auditor asked the Council if it wished to supplement its reply in light of further objections received during November. He also asked the Managing Director of the Council to provide him with a comprehensive set of reports to the Council, its committees etc. relating to key wards strategy and designated sales and relevant correspondence on those subjects.
On 20 March 1990, the Managing Director informed the Auditor that the City Council did not have a key wards strategy and that there were no Council documents under that heading.
On 1 May 1990, the Council’s supplementary response was sent to the Auditor.
By letter of 22 May 1990, the Managing Director informed the Auditor that the files containing papers relevant to the objections were available for inspection at City Hall. The documentation assembled was however far from complete.
From June to December 1990, the Auditor carried out a review of the extensive documentation at City Hall and obtained preliminary legal advice. He requested further documentation from the Council.
In December 1990, the Auditor commenced his interviews of persons involved. He was to carry out a total of 135 interviews, involving 50 individuals.
From January to April 1991, the Auditor made visits to Council offices to inspect further documents and made further requests for documents.
He completed his initial round of interviews in November 1992. He interviewed the applicant on 23 August 1992. Having regard to his wish to arrange interviews in a particular order, the progress of interviews was hampered by a delay on the part of some prospective interviewees in responding to requests for interviews and by the apparent reluctance of some interviewees to attend for interview. The Auditor exercised his powers under section 16 of the 1982 Act to require six individuals, including the applicant, to attend before him.
The Auditor reviewed the evidence and took further legal advice. In January 1993, he began a second round of interviews, which lasted from January to July 1993. He interviewed the applicant for the last time on 23 July 1993 (a total of 12 occasions at which the applicant was represented by counsel). Having regard to information already received and in consequence of further interviews, the Auditor decided to visit a number of Council offices and to search for documents. He inspected a large number of files, locating files in a storeroom and reviewing the entire underground filing area. New documentation, previously undisclosed, was obtained.
In April 1993, the Auditor became aware for the first time of handwritten notes made by the Director of Housing during meetings in the period May 1986 to October 1989.
The Auditor conducted a further seven interviews in September-October 1993. The applicant and others made written submissions to the Auditor during October.
On 13 January 1994, the Auditor issued “Notices to Show Cause” to ten named individuals, including the applicant. These stated that he had to consider whether to certify the sum of 21 million pounds sterling (GBP) or any other sum as due from them as being a loss or deficiency incurred by their wilful misconduct and were accompanied by a Note of his provisional findings and views (236 pages) a history of events (350 pages) and 12 other appendices (a total of over 10,000 pages) and a copy of the public statement issued by the Auditor that day to the press. In his Note, the Auditor concluded in respect of the applicant that he was provisionally minded to find her guilty of wilful misconduct. The purpose of the issuing of provisional views was to inform those at risk, the Council and the objectors of those views so that they could address such representations to the Auditor as they wished before he reached a final conclusion. He invited those concerned to indicate whether they wished an oral hearing.
On the same day, the Auditor held a press conference to read out his public statement, sitting at a table on which there was a bundle of material documents. This press conference and the ensuing publicity formed the basis of later complaints that there was an appearance of bias tainting the whole inquiry.
One of the persons named in the provisional findings, the Joint Vice-Chairman of the Housing Committee, Councillor Dutt, committed suicide shortly afterwards.
Solicitors for the applicant applied to the Audit Commission on 19 April 1994 to replace John Magill with a new auditor. The Audit Commission refused to do so.
As three parties and the Council requested an oral hearing (not the applicant), the Auditor fixed proceedings to begin on 17 October 1994. In a preliminary meeting in June 1994, the applicant applied for the Auditor to disqualify himself. Oral submissions were made on the point on 7 and 17 October 1994. On 18 October 1994, the Auditor gave written reasons for not disqualifying himself.
An audit hearing took place between 19 October 1994 and 7 February 1995, involving 32 days of hearings. The applicant was represented at the hearing by leading counsel who made extensive submissions on her behalf. She did not give evidence, having no confidence in the impartiality of the Auditor. Three accountants were called on her behalf.
The Auditor received further representations and evidence after the hearing. On 18 August 1995, the applicant made submissions in light of a recent House of Lords judgment on duties of local authorities to the homeless.
On 17 August 1995, the Auditor circulated a revised provisional calculation of net loss and invited representations by 5 October 1995. He received representations from the objectors. The parties were informed that notification of arrangements for the issuing of his decision would be given on 21 March 1996. On 19 March 1996, the applicant requested the Audit Commission to investigate his conduct. The Auditor delayed his decision pending this complaint. On 16 April 1996, the Audit Commission refused the applicant’s request. She did not seek judicial review of this decision.
On 9 May 1996, the Auditor notified his decision and issued certificates of surcharge under section 20 of the 1982 Act in respect of six individuals, the applicant, Mr Weeks (deputy leader of the Council), Councillor Hartley (Chairman of the Housing Committee), Mr Phillips (Managing Director from February 1987), Mr England (Director of Housing) and Mr Hayler (divisional Director of Housing). Each was found jointly and severally liable in the sum of GBP 31,677,064 being the amount of a loss incurred or deficiency caused by their wilful misconduct. The decision and statement of reasons ran to more than 1,100 pages.
The six respondents appealed to the Divisional Court under section 20(3) of the 1982 Act. The appeal of Mr Hayler was later allowed on grounds of his ill-health.
Between 29 April and 1 May 1997, the Divisional Court held a preliminary hearing on procedure. It directed inter alia:
“The nature of the present hearing will be to go beyond a mere judicial review on Wednesbury grounds and look at the merits (...). The Auditor’s report and evidence will stand before us, but is open to challenge (...) ... it is for the appellants to open the appeal and to establish prima facie that there was something amiss with the Auditor’s report or certificate ...
The next question is on whom ultimately the burden lies at the appeal. As we have said, initially it is for the appellants to show that something was wrong with the Auditor’s report or certificate. If this hurdle is surmounted by the particular appellant, it is, in our view, for the respondents to prove, on the material before this Court, wilful misconduct by that appellant causing identified loss. ... It should also be borne in mind that this Court will have to be satisfied to the high degree of proof on the balance of probability, which is necessary for a finding of wilful misconduct. We rule that the ultimate burden of proof on appeal will be on the respondent.
... we shall receive such evidence as we have indicated on affidavit, but we shall direct that the deponents be available to be cross-examined ...”
The appeals were heard between 1 October and 4 November 1997.
On 19 December 1997, the Divisional Court delivered its judgment (Porter v. Magill, 96 Knight’s Local Government Reports, p. 157). In its judgment, it commented as follows on the complexity of the proceedings:
“On any view the auditor’s investigation was vast. It cost over £ 3 million. Whether Parliament contemplated so gigantic an investigation by an auditor into an objection to local authority accounts we very much doubt. In our judgment, in any future investigation of this kind it will be essential for the auditor to exercise a sense of proportion and to balance, on the one hand, the need for adequate scrutiny of the accounts and the objections to them and, on the other, the need to avoid prolonged and inordinately expensive inquiry...
The auditor in this case conducted over 130 interviews with 44 people, including the appellants, each of whom he interviewed many times. The history of events is set out in detail in over 400 pages... His investigations started at the behest of electors who were members of the minority party and who on 18 July 1989 gave him written notice, under section 17(4) of the 1982 Act, of objection to the lawfulness of the council’s accounts. He gave his final decision on 9 May 1996. Including appendices, it extends to almost 2,000 pages. He examined over 6,000 pages of documents. Many thousands of pages of transcript of his interviews, the proceedings before him and the submissions made to him were generated. We rule, prior to the hearing of the appeal that the auditor’s interviews of persons other that the appellants should be treated as evidence before us.
Before this court, with the assistance of all counsel to whom we are indebted, it has been possible, with the aid of comprehensive and detailed written submissions, amplified in oral argument, on behalf of all parties, to focus on the issues raised in this appeal with recourse to comparatively few of these voluminous papers. It has also been a significant feature of this appeal that, although none of the appellants chose to give evidence before the auditor, each of them has sworn a substantial affidavit for the purpose of the appeal, on which each was orally cross-examined. We have also received the written reports of expert valuers and accountants in relation to what, if any, loss the council suffered and these experts have also been orally cross-examined ...
It follows that we have conducted this appeal by way of re-hearing in accordance with RSC, Ord 55, r.3. In doing so we have kept in the forefront of our minds the impairment of recollection which is the inevitable consequence of the passage of up to 11 years between the occurrence of the material events and the evidence before us. In such circumstances, the contemporaneous documents are of obvious importance. We have approached the matter by considering, in relation to each appellant, whether the auditor appears to have gone wrong in any respect and whether, having regard to the high standard of proof appropriate to the seriousness of the allegation... wilful misconduct causing loss has been shown...”
Concerning the appellants’ assertions about alleged breaches of Article 6 § 1 by the procedures before the Auditor, it stated:
“In our judgment, English law treats that matter as one of civil not criminal liability. The ‘penalty’ as it is described by the Third Report of the Nolan Committee on Standards in Public Life is in fact calculated by reference to the loss sustained by the council taxpayer by reason of the wilful misconduct alleged. It follows that the nature of the proceedings is compensatory and based upon the principle that those who misbehave in public office should be required to make good to the taxpayer any resulting loss. That is no different from the principle that a trustee should make good to the trust fund any loss which may result from his misconduct. If the penalty imposed were greater than the loss incurred, then different considerations might apply. But the only potential additional consequence is disqualification from office...”
It took the view that the jurisdiction of the domestic courts gave the appellants the required control by a judicial body that had full jurisdiction and provided the guarantees of Article 6 § 1 and that even if what happened before the Auditor was capable of amounting to a breach of the Convention the proceedings before the courts remedied any possible unfairness. It went on to find no problems arising from the role imposed on the Auditor by legislation and that no right to cross-examine the Auditor arose outside criminal proceedings. It noted that the delay had been extreme but that having regard to the proceedings as the whole which involved an expensive and time consuming investigation and to its finding that no prejudice or resulting injustice had been shown as suffered by the appellants, there was no breach of any reasonable time requirement either. It stated as regarded the Auditor’s press conference:
“We are prepared to accept that, in the light of the great public interest in this matter and the lengthy period taken by the initial investigation culminating in the provisional findings, it was appropriate for the public to be given some explanation for the time spent and some indication of the auditor’s provisional views. But, in our judgment, the press conference which took place was ill-conceived and unfortunately executed. It would have been sufficient for a press statement to have been issued, preferably by the auditor’s solicitor, saying that the complexity of the investigation accounted for its length and that, at that stage, the auditor was provisionally minded to make findings of wilful misconduct causing loss against the individuals named but that, before he reached any final decision, the individuals would have the opportunity to give evidence and make submissions to him.
Instead, a televised announcement was arranged at which the auditor himself appeared and, although he said that his views were provisional, he expressed them in florid language and supported them by reference to the thoroughness of the investigation which he claimed to have carried out. There was a further feature of the event which should have had no place in the middle of a quasi-judicial inquiry. A stack of ringbinders on the desk at which the auditor sat bearing the name of his firm for the benefit of the cameras was, ostensibly, under the protection of a security guard: unless it was being implied that the persons under investigation might wish to steal the documents, it is not clear what was the purpose of this posturing.
We express the hope that, in any future, the statutory investigation of this kind, no auditor will stage any similar event, which may undermine the perception, whatever may be the reality, of the auditor’s open-mindedness. In the light of the material before us, including, in particular, the auditor’s reasons for declining to recuse himself, we accept that despite such inferences to the contrary as might have been drawn from the press conference, the auditor did have an open mind and was justified in continuing with the subsequent hearings. ...The error of judgment which we find he made, in holding the press conference as he did, did not, in our view, demonstrate bias on his part. He was at pains to stress the provisional nature of his findings and it is pertinent that in his final decision he made no finding of wilful misconduct against three persons in relation to whom he had, provisionally, been minded so to find. In any event, as with the investigation, any possible unfairness to the appellants has been cured by the hearing before us...”
On the substance of the appeal, the Divisional Court found that the Auditor’s decision lacked a “sufficient analysis of the possible impact on the state of mind of the appellants, which is crucial in relation to wilful misconduct, of the legal advice received, or reported to have been received, on 5 May 1987”. It concluded itself that the decision of 8 July 1987 was substantially influenced by a wish to alter the composition of the electorate by increasing the Conservative vote in marginal wards by the sale of council properties and was therefore unlawful. It found untrue the applicant and W.’s claim that following counsel’s advice on 5 May 1987 that the designation of sales for electoral purposes was abandoned:
“... in our judgment [the applicant] and W. lied to us, as they had done to the auditor, because they had the ulterior purpose of altering the electorate which they knew rendered targeting sales in marginal wards unlawful... Because [the applicant] and W. knew the targeting policy was unlawful they were content, without further enquiry... to adopt the suggestion... that it be dressed up in city-wide clothes: neither claims that this was a proper course. Their purpose throughout was to achieve unlawful electoral advantage. Knowledge of the unlawfulness and such deliberate dressing-up both inevitably point to, and we find, wilful misconduct on behalf of each of them.”
The appeals of Mr England, Councillor Hartley and Mr Phillips were allowed, largely, on the basis that it was not established to the necessary standard of proof that what they said or did during the relevant time was, to their knowledge, unlawful or improper. The appeals of the applicant and Mr Weeks were dismissed and they were found to have caused loss by wilful misconduct in the reduced sum of GBP 26,462,621. Permission to appeal was refused. They renewed their applications to appeal on 2 and 30 January 1998 respectively.
On 20 February and 18 June 1998 respectively, Mr Weeks and the applicant were granted leave to appeal to the Court of Appeal.
The appeals were heard before the Court of Appeal between 22 and 26 March 1999. In its judgment of 30 April 1999, by a majority, it allowed the appeals. The majority held that, since the applicant had acted on what she believed to be correct legal advice, it was inconsistent of the Divisional Court to find that she and Mr Weeks had committed wilful misconduct while finding that the other appellants who believed that Option 3 was lawful had not shown wilful misconduct. The majority found the decision of the Housing Committee to have been lawful and any improper purpose attributable to the applicant did not render the committee’s decision unlawful and was not causative of any loss. It quashed the Auditor’s certificate.
On the allegations of bias, Lord Justice Schiemann noted that the applicant’s counsel accepted that he had not shown that the Auditor was actually biased and found that the expression of provisional views was part of the procedure sanctioned by Parliament and that there was nothing to lead him to suppose that the Auditor was unfairly biased against the appellants. As regarded delay, he considered that a fair hearing was still possible notwithstanding the lapse of time which had had no effect on the reliability of the conclusions reached or the appellants’ ability to present evidence. He also noted that as regarded any implied damage, psychological or otherwise, purported to flow from the delay no claim for damages had been put forward. He was satisfied that the appellants had not been required to prove a lack of wilful misconduct but that the Auditor and Divisional Court were persuaded that the appellants had committed wilful misconduct. In respect of the argument that the appellants were unable to cross-examine the Auditor before the Divisional Court, he considered that though a tribunal’s judgment may be reversed on grounds of actual bias, there was no requirement that the tribunal submit itself to cross-examination in order to see whether an admission of actual bias could be procured. Nor was he impressed by the argument that the appellants were unfairly prevented from cross-examining the Auditor as regarded quantum.
The Court of Appeal granted the Auditor permission to appeal to the House of Lords. His appeal was heard between 5 and 13 November 2001. In the House of Lords’ judgment of 13 December 2001, the Auditors appeal was allowed and the orders of the Divisional Court and the certificate of GBP 26,464,621 restored.
The House of Lords concurred generally with the findings of the Divisional Court and the approach of the dissenting judge in the Court of Appeal.
In his judgment, Lord Bingham found that the applicant and Mr Weeks accepted that they knew that they could not use the council’s powers for electoral advantage and that in adopting and implementing the designated sales policy both acted in a way which they knew to be unlawful. While the applicant’s counsel had argued that the applicant had acted in accordance with what they believed to be legal advice given to the council and were accordingly not guilty of wilful misconduct, he relied on the clear findings of the Auditor and the Divisional Court, who had heard the evidence, that the applicant and W. had not pursued the designated sales policy on legal advice. He noted that:
“First, it is simply not true that [Mr S, the Queen’s counsel who gave the advice] was given access to all relevant information or that [the applicant] laid bare her hopes to her legal advisers. Mr S. received no written instructions and gave no written advice. There were two questions which the council should have put to him. The first was whether it was lawful to promote a policy of designating council properties for sale in marginal wards for the purpose of securing an electoral advantage for the majority party at the forthcoming council elections. That question was put to Mr S. and he answered it in the negative as he was bound to do. The second, follow-up question should have been whether, if that policy would be unlawful, the policy would become lawful, if, with the same objective, and in order to conceal the targeting of sales in marginal wards, the designated sales policy were extended across the City of Westminster. That question was never put. No-one, including [the applicant] and Mr Weeks, could have had any doubt at all what the answer would have been if it had. Mr S. was never told of the course on which the council proposed to embark or had embarked. The second weakness is found in the history of pretence, obfuscation and prevarication which surrounded the policy from May 1987 onwards. If the policy was genuinely believed to be lawful, albeit controversial, there was no need for such intensive camouflage.”
As regarded the alleged inconsistency in allowing the appeal of Messrs Hartley, England and Phillips while rejecting the appeal of the applicant and Mr Weeks, Lord Bingham concurred with the unease felt by Lord Justice Robert Walker in the Court of Appeal:
“It is understandable that the Divisional Court was reluctant to be excessively critical of officers, who were subject to considerable pressure from elected members... Mr Hartley’s conduct does not earn that measure of indulgence. But the Divisional Court had the advantage of hearing these three witnesses. It was rightly alert to the high standard required before a finding of this gravity could be sustained. It may very well be that Messrs Hartley, England and Phillips were fortunate to be exonerated, to the limited extent that they were exonerated. But the findings made against [the applicant] and Mr Weeks were, in truth, very strong. They were the leader and deputy leader of the council, and were respectively the prime architect and midwife of this policy. I am satisfied that no injustice was done to either of them by upholding the findings of the auditor and the Divisional Court.”
Concerning the grounds of appeal raised under the Convention, Lord Hope rejected the argument that the proceedings fell under Article 6 § 1 in the criminal aspect:
“I consider that the nature of the proceedings under section 20 of the 1982 Act is compensatory and regulatory, not punitive. Section 20(1) provides that the amount certifiable by the auditor, where it appears to him that a loss has been incurred or deficiency caused by wilful misconduct, is the amount of the loss or deficiency and that both he and the body in question may recover that amount for the benefit of that body. The object of the procedure is to compensate the body concerned, and the measure of the compensation is the amount of the loss suffered. In the present case the amount certified was very large, but the nature of the proceedings does not alter depending on the amount certified. No fine is involved, nor does the section provide for a penalty by way of imprisonment. Section 20(4) provides for the respondents’ disqualification from being members of a local authority. But this outcome is similar to where a trustee is removed after being found to have been in serious breach of trust, or a person is disqualified from acting as a director of a company. In my opinion measures of the kind provided for by section 20, which apply to persons having a special status or responsibility and are compensatory and regulatory rather than penal in character, lie outside the criminal sphere for the purposes of Article 6 of the Convention.”
He went on to find that the applicant was nonetheless entitled to the protection offered by Article 6 § 1 concerning civil rights. To the extent that the Auditor was required by statute to act as investigator, prosecutor and judge, this problem was solved in his view by the provision of a complete rehearing by the Divisional Court which could exercise afresh all the powers of decision given to the Auditor. He agreed with the Divisional Court that the Auditor had made an error of judgment in making a statement at a public press conference. However while this created the risk of unfair reporting there was nothing in the words the Auditor used to indicate that there was a real possibility that he was biased. He noted the Auditor was at pains to point out that his findings were provisional and there was no reason to doubt this as his subsequent conduct demonstrated. Looking at the matter objectively, he did not find that it had been demonstrated that there was a real possibility of bias.
As regards the complaint of unreasonable delay in the proceedings, Lord Hope (with whose judgment on the issue all the members of the House of Lords agreed) observed that the period of which complaint was made could be divided into four distinct periods: (a) that from the receipt of the original objection on 18 July 1989 to the issuing by the Auditor of his provisional views on 13 January 1994; (b) that from 13 January 1994 to the end of the audit hearing on 7 February 1995; (c) that from 7 February 1995 to the issuing by the Auditor of his decision and the certificates of surcharge on 9 May 1996; and (d) that from 9 May 1996 to the decision of the Divisional Court which was given on 19 December 1997. Lord Hope noted that no complaint had been made about any delay after that date.
As to the proceedings before the Divisional Court, Lord Hope held that there was no basis whatever for the suggestion that there had been unreasonable delay at that stage. The Auditor had issued his certificate in May 1996. It was not until December 1996 that the respondents filed their evidence on the main issues. The accounting evidence was not filed until April 1997. A procedural hearing was held shortly afterwards in May 1997. The case proceeded to a hearing in the Divisional Court in October 1997, which lasted for 23 days and judgment was given on 19 December 1997. Having regard to the complexity of the issues and the volume of evidence that had to be prepared and presented, the proceedings in the Divisional Court had been concluded within a reasonable time.
As to the proceedings before the Auditor, Lord Hope stated:
“In my opinion the most striking feature which emerges from all the facts relating to the conduct of the investigation by the auditor is that, far from causing delay by inaction, he was constantly in action. He was seeking out information wherever it could be found, often with considerable difficulty. He was interviewing and re-interviewing many witnesses, recovering and perusing thousands of documents, calculating amounts of loss and expenditure and then gathering all this information together into a decision which eventually extended to over 2,000 pages... It has been suggested that his investigation was over-elaborate. There are comments to that effect in the Divisional Court’s judgment... But the auditor had to form his own judgment on this matter. He had to take account of the importance of the exercise to all parties, including those who were at risk of being surcharged, and he was entitled to have regard to its obvious political sensitivity. I would attach particular significance to these factors and to the fact that it has not been suggested at any stage that the auditor caused delay at any stage by inactivity.
Applying the test described in Konig v. Germany ... which directs attention to the complexity of the case, the applicant’s conduct and the manner in which the matter was dealt with by the authorities, and leaving aside the question whether the [applicant and W.] can show that they were prejudiced, I would hold that the proceedings did not exceed the reasonable time requirement which Article 6 § 1 lays down. ...”
On 13 December 2001, the Council made a formal demand for the applicant to pay the certified sum by 27 December 2001.
On 28 December 2001, the Council issued proceedings in the High Court for the certified sum, damages and the audit fees. On the same date, the Council obtained an ex parte order freezing the applicant’s assets up to a value of GBP 33 million. She was required to file an affidavit listing her assets by 14 January 2002. The freezing order was renewed on 18 January 2002, including limited exceptions for living expenses and a reasonable sum (not exceeding GBP 20,000) for legal representation.
The applicant filed a defence, denying liability to pay additional damages or audit fees.
On 18 April 2002, the Council issued an application for summary judgment against the applicant. The applicant opposed the application at a hearing on 15, 16 and 30 July 2002. On 31 July 2002, the High Court issued summary judgment for payment of the certified sum and damages for breach of trust (a total sum not exceeding GBP 36,966,542). The applicant’s application for a stay pending proceedings in Strasbourg was refused.
The applicant was granted leave to appeal. On 23 October 2002, the applicant was granted an extension of time in which to lodge her appeal, subject to her compliance with orders requiring her to inform the Council of the source of her current funding, to discharge outstanding sums due to the Council in respect of their costs and to provide security for costs of the appeal in the sum of GBP 20,000 by 20 November 2002. To date, the orders have not been complied with and her appeal is liable to be dismissed.
Section 20 of the Local Government Finance Act 1982 provides as relevant:
“(1) Where it appears to the auditor carrying out the audit of any accounts under this Part of this Act...
(b) that a loss has been incurred or deficiency caused by the wilful misconduct of any person, he shall certify that... the amount of the loss or the deficiency is due from that person and ... both he and the body in question... may recover that ... amount for the benefit of that body; and if the auditor certifies under this section that any ... amount is due from two or more persons, they shall be jointly and severally liable for that sum or amount.
(2) Any person who ...
(b) is aggrieved by a decision of the auditor to certify under this section that a sum or amount is due from him, may ... require the auditor to state in writing the reasons for his decision
(3) Any such person who is aggrieved by such a decision may appeal against the decision to the court and –
(a) in the case of a decision to certify that any amount is due from any person, the court may confirm, vary or quash the decision and give any certificate which the auditor could have given ...”
In the House of Lords in the present case, Lord Hope examined the jurisdiction of the courts on an appeal under section 20(3) of the 1982 Act. It was his view that any problem which may be seen to result from the fact that, where accusations of wilful misconduct were involved, the Auditor was required to act not only as an investigator but also as prosecutor and judge was resolved by the appeal provisions in section 20(3):
“The court can exercise afresh all the powers of decision given to the auditor... The powers which the Divisional Court has been given by section 20(3) fully satisfy [the requirements of Article 6 (1) of the Convention]. Not only does it have the power to quash the decision taken by the auditor. It has the power to rehear the case, and to take a fresh decision itself in the exercise of the powers given to the auditor... In the case of the procedure governed by section 20(3) however a rehearing on the merits can be conducted, and this is what was done in this case.”
In July 1997, Lord Nolan’s Committee on Standards in Public Life published its report “Standards of Conduct in Local Government in England, Scotland and Wales”. It recommended that the surcharge should be abolished. It took the view that it was unsatisfactory to have a procedure in which the Auditor formulated and prosecuted a case against individual councillors, judged guilt or innocence and determined the penalty. It considered that the concept of surcharge was outdated, that in practice it was in the nature of a penalty and that the procedure should be replaced by the direct involvement of the courts. It also noted the anomaly, regarded as inequitable by some, that the regime of surcharge applied only to local government and not to others in public service, finding it illogical that only those in local government should be subject to a regime for punishing misconduct which was serious but which did not involve corruption.
While section 20 of the 1982 Act was re-enacted by section 18 of the Audit Commission Act 1998, this was amended in turn by section 90 of the Local Government Act 2000, which removed the power of surcharge.


ITEMID: 001-107026
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF PENIAS AND ORTMAIR v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The first applicant was born in 1979 and lives in St Peter am Hart. The second applicant was born in 1955 and lives in Maria Schmolln.
6. On 14 February 2002 the Braunau District Administrative Authority (Bezirkshauptmannschaft) informed the applicant that he was suspected of having driven a motor vehicle under the influence of alcohol contrary to sections 5(1) and 99(1)(a) of the Road Traffic Act (Strassenverkehrsordnung) on 10 February 2002. The breathalyser test had shown an alcohol level of 0.63 mg/l in his breath.
7. In his submissions of 1 March 2002 the applicant argued that allowance should be made for 5% inaccuracy in the result of the breathalyser test. This would lead to an established alcohol level of less than 0.60 mg/l and his conduct would therefore constitute a less serious offence under Sections 5(1) and 99(1)(b) of the Road Traffic Act.
8. On 8 April 2002 the Braunau District Administrative Authority found the applicant guilty of the offence of drunk driving under sections 5(1) and 99(1)(a) of the Road Traffic Act, which provides for a fine of between 872 and 4,360 euros (EUR). It imposed a fine of EUR 1,162 on him with seventeen days’ imprisonment in the event of default. Having regard to the evidence before it, the District Authority noted that the breathalyser at issue had been duly checked by the Office of Weights and Measurements (Bundesamt für Eich-und Vermessungswesen) and the test had been carried out correctly. Referring to the Administrative Court’s case-law, it noted that in such circumstances there was no need to make any allowance for inaccuracy.
9. The applicant appealed, repeating his argument as regards the alleged imprecision of the breathalyser test.
10. After holding a hearing, the Upper Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat) allowed the applicant’s appeal in part. In its decision of 17 June 2002 it found that an alcohol level in the applicant’s breath of 0.59 mg/l could be considered to have been confirmed, since allowance had to be made for a possible inaccuracy in the result of the breathalyser test. Consequently, it convicted the applicant under sections 5(1) and 99(1)(b) of the Road Traffic Act, which provides for a fine of between EUR 581 and EUR 3,633, and reduced the fine to EUR 1,000 with fourteen days’ imprisonment in the event of default.
11. The Independent Administrative Panel considered that the question about possible inaccuracy of the breathalyser test was not a matter of law but a matter of fact. There was documentary evidence, and also evidence from an expert on weights and measurements, that for this particular type of breathalyser 5% inaccuracy could not be ruled out.
12. The decision was served on the applicant on 24 July 2002. He did not lodge a complaint with the Constitutional Court (Verfassungsgerichtshof) or the Administrative Court (Verwaltungsgerichtshof) within the statutory six-week time-limit. There was no other party to the proceedings who could lodge a complaint.
13. On 7 August 2002 the Independent Administrative Panel’s decision of 17 June 2002 was served on the Federal Minister for Traffic, Innovation and Technology.
14. On 18 September 2002 the Federal Minister for Traffic, Innovation and Technology lodged an official complaint (Amtsbeschwerde) under Article 131 (1) subparagraph (2) of the Federal Constitution (BundesVerfassungsgesetz) against that decision, on the ground that it contained an error of law. According to the Administrative Court’s case-law the authority was obliged to base its finding in respect of the blood alcohol level of the accused on the result of the breathalyser test. In the present case, the breathalyser had been duly examined by the Office for Weights and Measurements and no doubts had been raised as to its correct functioning.
15. On 18 February 2005 the Administrative Court, following the official complaint, quashed the Independent Administrative Panel’s decision of 17 June 2002 and referred the case back to it. It found that the decision had applied the law incorrectly, since there was no ground to make allowance for inaccuracy in the breathalyser test.
16. In his submissions of 15 March 2005 the applicant asserted that it would violate the requirements of a fair trial if the quashing of the Independent Administrative Panel’s decision following the Federal Minister’s official complaint had any negative consequences for him.
17. On 21 March 2005 the Independent Administrative Panel, noting that it was bound by the Administrative Court’s legal view, dismissed the applicant’s appeal against the Braunau District Authority’s decision of 8 April 2002. Consequently, his conviction under section 99(1)(a) of the Road Traffic Act was upheld.
18. As regards the sentence, the Independent Administrative Panel noted that section 99(1)(a) provided for a fine of between EUR 872 and EUR 4,360. It found that the minimum fine of EUR 872 with ten days’ imprisonment in the event of default was appropriate. It noted that the applicant had no prior convictions, and also had regard to the Constitutional Court’s case-law, according to which unreasonably lengthy proceedings could lead to a reduction of the sentence.
19. The applicant lodged a complaint with the Constitutional Court, claiming several violations of Article 6 of the Convention. He submitted, in particular, that the proceedings had been unreasonably lengthy and that he had no remedy in this respect; that the Administrative Court and subsequently the Independent Administrative Panel had disregarded the expert opinion and documentary evidence on the reliability of the breathalyser test and that his conviction had thus been based on a mere presumption.
20. Moreover, the applicant alleged that the proceedings were unfair, and violated the ne bis in idem principle, since the proceedings had been reopened following the Federal Minister’s official complaint, although the Independent Administrative Panel’s decision had already become final. However the reopening was not justified by any of the reasons mentioned in Article 4 § 2 of Protocol No. 7, and the new proceedings had produced a result which was unfavourable to him.
21. The applicant also complained that he did not have a review by a higher tribunal as required by Article 2 of Protocol No. 7, since the scope of the Administrative Court review was limited. Finally, relying on Article 1 of Protocol No. 1, he complained that the fixing of sentences in administrative criminal law did not take offenders’ financial situations into account.
22. On 13 June 2005 the Constitutional Court dismissed the applicant’s complaint for lack of prospects of success. On a request by the applicant on 21 July 2005 it transferred the case to the Administrative Court.
23. On 23 May 2006 the Administrative Court dismissed the applicant’s complaint as being unfounded. This decision was served on the applicant’s counsel on 21 June 2006.
24. On 1 December 2001 the applicant was stopped by a traffic patrol and asked to undergo a breathalyser test. The test showed an alcohol level of 0.60 mg/l in his breath.
25. On 5 December 2001 the Braunau District Administrative Authority informed the applicant that he was suspected of the offence of driving under the influence of alcohol under sections 5(1) and 99(1)(a) of the Road Traffic Act, with a breath alcohol level of 0.60 mg/l. The authority requested the applicant to submit his defence.
26. By a penal order of 17 January 2002 the District Administrative Authority found the applicant guilty of drunk driving under sections 5(1) and 99(1)(a) of the Road Traffic Act and sentenced him to a fine of EUR 872.07 with 13 days’ imprisonment in the event of default. Noting that the breathalyser used had been correctly calibrated, it dismissed the applicant’s argument that the result of the breathalyser test could not be deemed to be completely accurate and that allowance had to be made for possible calibration and measurement errors. As to the fixing of the sentence, the authority noted that despite its request the applicant had not submitted evidence of his income. Thus, it based itself on his unsupported submission that he had a net income of EUR 1,100 per month and no maintenance obligations.
27. The applicant appealed on 24 January 2002.
28. On 12 March 2002 the Upper Austria Independent Administrative Panel held a hearing. It questioned the applicant and an expert on weights and measurements. In addition it took documentary evidence, including submissions from the Federal Office of Weights and Measurements relating to the calibration of the breathalyser at issue, and an expert opinion which had been published in a professional journal.
29. By a decision of 19 March 2002 the Independent Administrative Panel allowed the applicant’s appeal in part. Referring to the evidence before it, the Independent Administrative Panel held that a certain imprecision of the measurement could not be excluded. Even making allowance for possible inaccuracy a breath alcohol level of 0.57 mg/l could be established beyond all doubt. The offence therefore fell under section 99(1)(b) of the Road Traffic Act and the fine was to be reduced to EUR 700, with nine days’ imprisonment in the event of default.
30. The Independent Administrative Panel’s decision was served on the applicant’s counsel on 3 April 2002. The applicant did not lodge a complaint with the Administrative Court or the Constitutional Court within the statutory six-week time-limit. There was no other party to the proceedings who could lodge a complaint.
31. On 10 May 2002 the Independent Administrative Panel’s decision of 19 March 2002 was served on the Federal Minister for Traffic, Innovation and Technology.
32. On 19 June 2002 the Federal Minister for Traffic, Innovation and Technology lodged an official complaint under Article 131(1) subparagraph (2) of the Federal Constitution, arguing that the Independent Administrative Panel’s decision had applied the law incorrectly in that it had made allowance for a possible inaccuracy in the result of the breathalyser test.
33. The Administrative Court served the official complaint on the applicant, informing him that he could submit observations. The applicant did not make use of this possibility.
34. On 25 January 2005 the Administrative Court, following the official complaint, quashed the Independent Administrative Panel’s decision of 19 March 2002 and referred the case back to it. It observed that a driver who was required to undergo a breathalyser test had the right to request that a blood sample be taken to confirm the result, while the law and its own caselaw did not provide for a conclusion to be drawn from the result of the breathalyser test.
35. On 7 March 2005 the Independent Administrative Panel asked the applicant to submit his comments and to indicate whether he wished a further hearing to be held. On 8 March 2005 the applicant submitted comments and stated that a further hearing could be dispensed with.
36. On 14 March 2005 the Independent Administrative Panel dismissed an appeal by the applicant against the penal order of 17 January 2002. Applying the Administrative Court’s legal view, it held that an alcohol level of 0.60 mg/l in the applicant’s breath had been established by the breathalyser test. Therefore the conviction under section 99(1)(a) of the Road Traffic Act stood. However, the Independent Administrative Panel noted that it shared the applicant’s concerns as regards a possible violation of Article 6 and Article 4 of Protocol No. 7 by the use of the official complaint procedure. It also noted that it had to set a fine of EUR 872, as this was the minimum fine applicable for the offence at issue. Taking the duration of the proceedings into account the Independent Administrative Panel reduced the default term of imprisonment from thirteen to ten days.
37. The applicant lodged a complaint with the Constitutional Court on 19 May 2005. He raised complaints identical to the ones raised by the first applicant (see paragraphs 1921 above).
38. On 13 June 2005 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. In respect of the applicant’s complaint about the length of the proceedings, it noted that the Independent Administrative Panel had taken the lengthy duration of the proceedings into account. Upon the applicant’s request, the Constitutional Court referred the case to the Administrative Court by a decision of 29 July 2005.
39. The applicant made submissions on 5 September 2005 to supplement his complaint to the Administrative Court.
40. The Independent Administrative Panel submitted its observations in reply on 10 October 2005.
41. On 14 July 2006 the Administrative Court, referring to its previous decision, dismissed the applicant’s complaint as unfounded. The judgment was served on the applicant’s counsel on 14 August 2006.
42. By virtue of section 51(1) of the Administrative Offences Act (Verwaltungsstrafgesetz), the accused may lodge an appeal against a penal order with the Independent Administrative Panel.
43. The administrative authority which has issued the impugned decision is a party to the proceedings before the Independent Administrative Panel (section 51(d)).
44. Pursuant to Article 129 of the Federal Constitution (BundesVerfassungsgesetz) Independent Administrative Panels are set up in the Länder. The function of these panels includes determining both the factual and legal issues arising in cases concerning administrative offences.
45. By virtue of Article 130 of the Federal Constitution the Administrative Court has jurisdiction to examine complaints alleging that a decision by an administrative authority or by an Independent Administrative Panel is unlawful.
46. Article 131 (1) subparagraph (1) entitles a person who alleges that his or her rights have been violated by an administrative decision to lodge a complaint with the Administrative Court following exhaustion of appeals.
47. Article 131 (1) subparagraph (2) of the Federal Constitution entitles the competent Minister, inter alia, in matters pertaining to the enforcement of federal laws by the Länder, to lodge an official complaint with the Administrative Court against an allegedly unlawful decision of an administrative authority, following exhaustion of appeals by the parties.
48. Section 26 of the Administrative Court Act (Verwaltungsgerichts-hofgesetz) deals with time-limits for lodging complaints.
Pursuant to section 26(1) subparagraph (1), a complaint under Article 131(1) subparagraph (1) has to be brought within six weeks of the date of service of the decision or, if the decision was only pronounced orally, from the date of pronouncement.
Pursuant to section 26(1) subparagraph (2) an official complaint has to be brought within six weeks of the point when the decision at issue was served on the Federal Minister, or the Federal Minister becomes aware of the decision at issue.
49. Section 42(1) of the Administrative Court Act states that, except where otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision. Section 42(2) lists the grounds of unlawfulness of a decision. Section 42(3) provides that if the Administrative Court quashes the impugned decision the proceedings are resumed at the stage they were at before that decision was issued.
50. If the Administrative Court quashes the impugned decision, “the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court’s view of the law” (section 63(1)).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77704
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KLUSHINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Ms Anna Ivanovna Klushina, is a Russian national who was born in 1949 and lives in the village of Fastovetskaya, the Krasnodar Region. She was represented before the Court by Mr K. Ilyin, a lawyer practising in Tikhoretsk, the Krasnodar Region. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant suffers from cerebral paralysis and has a disability of the second category.
In 2002 she sued a local welfare authority in connection with the latter’s refusal to pay her annual compensation in respect of her transport expenses.
On 16 January 2003 the Tikhoretsk Town Court of the Krasnodar Region (“the Town Court”) granted the applicant’s claim and ordered the welfare authority to pay her a compensation. The court did not specify the amount of the compensation. This judgment was not appealed against and entered into force on 27 January 2003.
On 20 March 2003 enforcement proceedings commenced.
On 6 August 2004, in reply to the applicant’s query, the bailiffs informed her that they were unable to enforce the judgment of 16 January 2003, since the debtor had insufficient funds.
On 21 August 2004 the applicant lodged a court complaint against the bailiffs for their failure to enforce the judgment in her favour.
On 7 October 2004 the Town Court confirmed the applicant’s entitlement to the compensation of her transport expenses in the amount of 2,189 Russian roubles (RUR) per year and ordered the bailiffs to enforce the judgment of 16 January 2003 within 30 days from the date on which the present judgment would become final. It does not appear that any appeal was lodged against the judgment of 7 October 2004.
On 5 April 2005, upon the applicant’s request for clarification of the judgment of 16 January 2003, the Town Court ruled that the applicant was eligible for compensation of her transport expenses in the amount of RUR 2,189 per year for the period of six years, and therefore the defendant authority was under obligation to pay her a total sum of RUR 13,134. This decision was upheld on appeal by the Krasnodar Regional Court on 19 May 2005.
On 3 December 2005 the judgment of 16 January 2003, as interpreted by decision of 5 April 2005, was paid in full.
On an unspecified date the applicant instituted proceedings against the welfare authority, seeking RUR 5,083 as compensation for inflation losses sustained by her between 16 January 2003, when the judgment in her favour had been given, and 3 December 2005, when it had been enforced.
By decision of 16 March 2006 the Town Court granted the applicant’s claims in full and awarded her the requested amount as well as RUR 100 in respect of court expenses. The decision was not appealed against and became final ten days later.
On 16 May 2006 the sum of RUR 5,183 was transferred to the applicant’s bank account.
Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.
Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff.


ITEMID: 001-113435
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SERGEY SOLOVYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant was born in 1982 and lives in Volgograd.
6. On 10 March 2003 the applicant was arrested on suspicion of involuntary manslaughter. On an unspecified date he retained private counsel, A.B.
7. On 11 March 2003 the Krasnoarmeyskiy District Court of Volgograd (hereinafter “the District Court”) ordered the applicant’s detention on remand with reference to Articles 97-101 and 108 of the Russian Code of Criminal Procedure (hereinafter “the CCP”).
8. On 19 March 2004 the criminal case against the applicant was sent for trial to the District Court, following which that court extended his detention on several occasions.
9. By a decision of 21 December 2004 the District Court extended the applicant’s detention until 20 March 2005.
10. On an unspecified date in March 2005 the prosecution applied to the District Court seeking a further extension of the applicant’s detention on remand; the related hearing was fixed for 17 March 2005.
11. By a decision of 17 March 2005 the District Court adjourned the hearing on the extension of the applicant’s detention because his lawyer, although duly notified about the hearing, had failed to attend, without providing any reasons. The new hearing was scheduled for 22 March 2005. The applicant was present at the hearing of 17 March 2005.
12. At noon on 21 March 2005 the applicant’s lawyer was notified of the new hearing date, time and venue, against his signature.
13. By a decision of 22 March 2005 the District Court extended the applicant’s detention until 20 June 2005. The decision stated, among other things, that the term of the applicant’s detention authorised by the decision of 21 December 2004 had expired on 20 March 2005. According to the hearing record, the applicant’s lawyer did not attend and had not informed the court of the reasons for his absence. The applicant, when asked by the court whether he objected to the examination of the issue in the absence of his counsel, stated that he had no objections.
14. On an unspecified date the applicant complained to the Volgograd Regional Court (hereinafter “the Regional Court”) that his detention between 20 and 22 March 2005 had been unlawful because it had not been covered by a court decision. He also complained that on 22 March 2005 the District Court had examined the issue of his detention in the absence of his lawyer. There is no indication that the applicant also complained about the District Court’s alleged failure to appoint legal-aid counsel for him or to adjourn the hearing.
15. On 26 April 2005 the Regional Court dismissed the complaint. It held that the applicant’s arguments concerning the gap between the detention orders and the examination of the detention issue in the absence of his lawyer were “insignificant” (“не являются существенными”), and that the District Court had not breached the relevant provisions of the criminal procedure in extending his detention. As regards the lawyer’s absence, the court noted that A.B. had been duly notified of the hearing of 22 March 2005 against his signature and had not requested that it be postponed, and that, accordingly, the District Court had correctly decided to proceed with the examination of the case.
16. On 16 March 2006 the District Court acquitted the applicant of all charges and ordered his release. The judgment stated, among other things, that the applicant had a right to seek compensation for any pecuniary and non-pecuniary damage caused by his criminal prosecution.
17. On an unspecified date in 2007 the applicant brought proceedings seeking compensation for his criminal prosecution and for unlawful detention. He claimed, in particular, 736,000 Russian roubles (RUB) in respect of non-pecuniary damage, and RUB 177,355 in respect of pecuniary damage.
18. By a judgment of 6 March 2007 the District Court partly granted the applicant’s claims, awarding him RUB 137,377 in respect of pecuniary damage and RUB 400,000 in respect of non-pecuniary damage, to be recovered from the Federal Treasury. The court’s judgment, in so far as relevant, reads as follows:
“...
Bearing in mind that [the applicant] was acquitted, that is, found not guilty of the particularly serious crime of which he had been charged ... the court finds that [the applicant] was unlawfully prosecuted and unlawfully held in detention ... and ... sustained, as a result, pecuniary damage because of loss of salary, and non-pecuniary damage on account of mental suffering in the form of continuing stress because of being held in a detention facility, ... a special institution with a strict regime; [and because of] the restriction of his right to freedom of movement and anxiety about his future ...
...
Having regard to the fact that [the applicant’s] criminal prosecution resulted in an acquittal, the court considers it obvious and not requiring any additional proof that the plaintiff sustained non-pecuniary damage because, as a result of unlawful acts by State officials, he was deprived of his right to freedom of movement and his right to choose his place of residence was circumscribed.
In assessing the amount of the monetary compensation, the court takes into account the intensity of [the applicant’s] mental suffering related to [the fact of his] detention, including the unavoidable contact with the prison population, the restrictions connected to the particular regime of the detention facility [and] the length of [his] detention on remand (over 24 months)[, which took place] while [the applicant] was of a young age.
At the same time, the court takes account of the fact that the [applicant’s] arrest [and] placement in custody and the extension of [his] detention were carried out in accordance with the law of criminal procedure [в рамках, предусмотренных уголовно-процессуальным законом], there being sufficient grounds to suspect and charge [him] of having committed a particularly serious crime entailing the deprivation of life of the victim; during the criminal proceedings [the applicant’s] defence rights were secured; it has not been established that there were faulty unlawful acts on the part of the investigating authorities, the detention facility or the courts.”
19. On an unspecified date in 2007 the respondent appealed against the judgment of 6 March 2007 to the Regional Court.
20. By a judgment of 24 May 2007 the Regional Court granted the appeal in part. In particular, whilst endorsing the trial court’s reasoning, the Regional Court
21. On 27 August 2007 the Presidium of the Volgograd Regional Court examined the case by way of supervisory review, set aside the courts’ findings in respect of the award concerning pecuniary damage, and terminated the proceedings in that part. In that regard, the court held that, pursuant to Article 135 of the CCP, claims for compensation for pecuniary damage arising out of an unlawful prosecution fell within the competence of the criminal courts and were to be examined under the rules of criminal procedure.
22. It appears that the applicant was paid the compensation in respect of non-pecuniary damage without delay. There is no indication that he applied to the criminal courts with a view to obtaining compensation in respect of pecuniary damage, as directed by the Presidium of the Volgograd Regional Court.
23. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his detention extended (Article 22).
24. According to the Russian Code of Criminal Procedure (hereinafter “the CCP”), a decision ordering or extending detention on remand in respect of a suspect or an accused is taken by a district or town court on the basis of a reasoned request by a prosecutor, supported by appropriate evidence (Articles 108 §§ 1, 3-6 and 109 § 2).
25. Chapter 18 of the Code regulates the so-called “right to rehabilitation” (право на реабилитацию), which includes, among other things, the right for an individual to obtain from the State full compensation for pecuniary and non-pecuniary damage sustained as a result of criminal prosecution, irrespective of any fault of the investigating authorities, prosecutors or courts (Article 133 § 1).
26. The right to compensation arises in the case of acquittal and also a number of other situations where the criminal prosecution is terminated on so-called “rehabilitation” grounds (реабилитирующие основания), that is, for example, where the prosecution has dropped the charges or where criminal proceedings have been terminated owing to a lack of corpus delicti or because the person was not involved in the criminal act (Article 133 § 2). However, no right to compensation arises where the prosecution is terminated on “non-rehabilitation” grounds, such as in the case of an amnesty or where the prosecution has become time-barred (Article 133 § 4).
27. Article 133 § 3 specifically provides that any person on whom a measure of restraint has been unlawfully imposed in connection with a criminal prosecution has a right to compensation under the rules of Chapter 18.
28. In a judgment acquitting an individual a court has to mention explicitly that he has the right to “rehabilitation” (Article 134). A claim for compensation of pecuniary damage is to be lodged with the same authority which issued the decision to acquit or the decision to terminate the criminal prosecution (Article 135 § 2), whereas any claims for monetary compensation of non-pecuniary damage are to be lodged with civil courts and examined under the relevant provisions of the Code of Civil Procedure (Article 136 § 2).
29. The Civil Code of the Russian Federation provides as follows:
“1. Damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, ... [or] unlawful detention on remand ... shall be compensated at the expense of the Treasury of the Russian Federation, and in the instances provided for by law, at the expense of the Treasury of the subject of the Russian Federation ... in full, irrespective of the fault of the officials of the agencies ...”
“Compensation for non-pecuniary damage shall be made irrespective of the fault of the person having caused the damage when:
... the damage has been caused to a citizen as a result of his unlawful conviction, unlawful criminal prosecution, [or] unlawful detention on remand ...”
30. In its ruling (определение) no. 242-O of 21 April 2005 the Constitutional Court held, inter alia, as follows:
“ ... Article 133 of the [CCP] ... does not limit an individual’s right to obtain compensation in connection with a criminal prosecution only to situations of rehabilitation of a suspect or an accused ...
Accordingly, in providing that pecuniary and non-pecuniary damage sustained by a citizen as a result of, among other things, unlawful ... detention, is to be compensated for irrespective of the fault of the relevant officials, Articles 1070 § 1 and 1100 § 3 of the Civil Code of the Russian Federation do not make the issuing of such decisions conditional upon the existence of a judgment acquitting the citizen ...
Hence, the legislation in force ... does not exclude that a court can also issue a decision to compensate a citizen for pecuniary and non-pecuniary damage sustained as a result of unlawful prosecution and ... unlawful detention in cases where an investigating authority, a prosecutor or a court did not take a decision on the full rehabilitation [решение о полной реабилитации] of a suspect or an accused...”
31
32. The Constitutional Court specifically noted in its ruling no. 1583OO of 17 November 2011 that, pursuant to Article 133 § 3 of the CCP, any person who was unlawfully held in detention in connection with his criminal prosecution had a right, under the rules of Chapter 18 of the CCP, to compensation for the damage sustained.
33. In its resolution (постановление) no. 17 of 29 November 2011, the Plenary of the Supreme Court of Russia provided clarifications on the application by the courts of the provisions concerning compensation for pecuniary and non-pecuniary damage sustained as a result of unlawful criminal prosecution. It noted, among other things, that in assessing claims for compensation of non-pecuniary damage the domestic courts were to take into account the level and nature of the physical and mental suffering and the individual characteristics of the person who had sustained the damage, and other circumstances, such as the length of the proceedings against him, the length and conditions of his detention on remand, and the type of penitentiary institution where he had served his sentence, as well as considerations of justice and reasonableness. The courts were also directed to set out those circumstances in their decisions awarding damages.
34. On the notion of “unlawfulness” of criminal prosecution and detention, as interpreted by the Russian courts, see Trepashkin v. Russia (no. 36898/03, § 62, 19 July 2007).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-c