ITEMID: 001-23438
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: KEPA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Stanisław Kępa, is a Polish national, who was born in 1931 and lives in Nowogard, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1972 the applicant sustained injuries in a car accident caused by an employee of a certain company. The applicant sued the company in the Goleniów District Court (Sąd Rejonowy). In 1974 the court granted the applicant a monthly allowance compensating him for loss of his ability to work (renta uzupełniająca).
On 26 August 1993 the applicant filed an action with the Goleniów District Court. He asked the court to increase his allowance but he did not specify the value of the claim.
On 8 September 1993 the court ordered the applicant to specify, within seven days, the value of the claim. The applicant submitted the required information on 20 September 1993.
The first hearing was held on 6 April 1994 but the applicant failed to appear.
On 12 December 1994 the court held a hearing and again ordered the applicant to specify the value of his claim.
On 4 January 1995 the case was transferred to the Szczecin Regional Court (Sąd Wojewódzki), since, given the value of the claim, the District Court was no longer competent to deal with the subject matter.
Subsequently, the applicant withdrew the power of attorney granted to his lawyer and the Szczecin Regional Bar (Okręgowa Rada Adwokacka) appointed another counsel for him.
Between 20 February 1995 and 25 January 1996 the Szczecin Regional Court held five hearings.
On 7 February 1996 the Szczecin Regional Court gave judgment and granted the applicant’s claim.
On 3 June 1996 the applicant challenged the impartiality of all the judges sitting in the Szczecin Regional Court. He also asked for his officially appointed lawyer to be replaced.
On 8 July 1996 the applicant made a second challenge to the impartiality of the judges.
On 29 October 1996, upon the applicant’s appeal, the Poznań Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and remitted the case.
On 28 July, 28 November, 10 December 1997 and 30 December 1998 the Szczecin Regional Court held hearings.
Meanwhile, the applicant made three more challenges to the impartiality of the Szczecin Regional Court and asked that the judges be disqualified from dealing with his case.
On 20 December 1998 the applicant modified his claim.
On 21 April 1999 the Szczecin Regional Court delivered judgment. On 4 November 1999, ruling on the applicant’s appeal, the Poznań Court of Appeal upheld the first-instance judgment.
On 10 January 2000 the applicant lodged a cassation appeal. On 14 June 2000 the Court of Appeal transferred the case to the Supreme Court. On 19 December 2001 a single judge sitting in camera as the Supreme Court dismissed the applicant’s appeal as being manifestly ill-founded.
A cassation appeal was introduced to the Polish Code of Civil Procedure in 1996. Under the provisions applicable until 24 May 2000, a party to civil proceedings could lodge a cassation appeal with the Supreme Court against a final judicial decision of a second-instance court. Such an appeal had to be examined at a public hearing. This had created inevitable organisational problems, as the judges of the Supreme Court were overburdened by the number of cassation appeals which they had to deal with.
On 24 May 2000 the Code of Civil Procedure was amended. The amendment provides for a preliminary examination of cassation appeals. A single judge sitting in camera as the Supreme Court may refuse to entertain a cassation appeal if that appeal is manifestly ill-founded. Where a cassation appeal has been admitted, it is further examined by a panel of three judges at a public hearing. However, the relevant transitional rules did not explain clearly whether the new procedure should also apply to cassation appeals lodged before 24 May 2000. On 17 January 2001 the Supreme Court adopted a resolution (no. III CZP 49/00) and answered this question in affirmative. The court stressed, inter alia, that the amendments to the Code of Civil Procedure made it possible to deal with enormous backlog of trivial or manifestly ill-founded cassation appeals.
Under Section 3935 of the Code of Civil Procedure, a court which has given the contested decision is competent to decide whether all formal requirements for a cassation appeal have been complied with. If an appeal has complied with the formal requirements, the case shall be transferred to the Supreme Court.


ITEMID: 001-92233
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MARTTINEN v. FINLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objections joined to merits and dismissed (ratione personae);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1945 and lives in Helsinki.
6. In 2000 the applicant became suspected of debtor’s fraud for allegedly not having provided correct information about his assets and possessions, including real estate, shares in two housing companies and cars, in debt recovery procedures on 14 January or 16 December 1994 and 5 December 1997 as well as in his bankruptcy proceedings on 13 November 1995 or 5 January 1996. His creditors, the Tax Office of Uusimaa and Osuuspankki Realum, a bank, were complainants in that pre-trial investigation, which was carried out by the Espoo police. The applicant was in detention from 26 January to 22 March 2000.
7. In their observations of 12 July 2006 the Government submitted that the pre-trial investigation had been terminated in 2005 and that the matter was pending before the public prosecutor for the consideration of the charges. It is not known whether charges have been preferred against the applicant.
8. While the pre-trial investigation was pending the indebted applicant was, in another enforcement inquiry (ulosottoselvitys, utsökningsutredning) on 9 June 2000, ordered to provide information about his assets in order to enable the Helsinki Bailiff to seize those assets to secure payment of the applicant’s debts. The enforcement inquiry is a formal procedure in which the debtor must, under threat of certain sanctions, give an overall account of his assets and other financial means for the purposes of enforcement. In order for the Bailiff to be able to decide whether there are assets which can be used to satisfy the creditor, the debtor must also provide information on assets handed over to others and about transactions carried out by him. An enforcement inquiry is resorted to if it has not been possible otherwise to establish the debtor’s financial situation in a reliable manner.
9. On 19 June 2000 at the Helsinki enforcement office the applicant however refused, arguing that the enforcement inquiry concerned the same facts as were in issue in the pending pre-trial investigation into alleged debtor’s frauds. He claimed that it would be contradictory if he were ordered to reveal information in the enforcement inquiry as he had a privilege to remain silent as regards these matters in the pre-trial investigation.
10. On the same day the Bailiff issued a decision ordering the applicant to provide this information on 28 June 2000 on pain of an administrative fine (uhkasakko, vite) in the amount of 200,000 Finnish marks (FIM; about 33,638 euros (EUR)). According to the decision, the enforcement inquiry was necessary because the applicant had debts amounting to FIM 9.7 million subject to debt recovery. The applicant had to provide information about his assets and debts and about property disposed of and related transactions so that it could be ascertained whether or not assets were recoverable for the purposes of enforcement. The requested information was considered decisive in the search for the applicant’s assets.
11. On 28 June 2000 the applicant failed to arrive at the enforcement inquiry at the Bailiff’s office. Instead he submitted a letter, informing the Bailiff that he was not going to provide the information requested. He referred to Article 6 of the Convention and his rights to remain silent and not to incriminate himself. The pending pre-trial investigation concerned, inter alia, two earlier enforcement inquiries and also the current enforcement inquiry concerned these matters. It would be inconsistent if he had to give information in the enforcement inquiry when he had the right to remain silent about the same matters in the pre-trial investigation.
12. On 6 July 2000 the Bailiff requested the Helsinki District Court (käräjäoikeus, tingsrätten) to order the applicant to pay the administrative fine. The applicant objected, maintaining that he had a right under the Convention to remain silent. As the Bailiff aimed to find out the applicant’s existing assets, the matter concerned precisely the same matter as was under investigation in the criminal case if he were now to own something that he had owned already at the time of the earlier enforcement inquiries and the bankruptcy procedure and which he had not accounted for. Also, the fact that the Bailiff aimed to find assets which could be returned meant that the applicant would be required to give information about all assets previously owned by him and assets that had possibly replaced his previous assets, that is, facts which were at issue in the criminal investigation. Lastly, the Bailiff wished to find out the origin of assets already seized from the applicant which, too, was a fact to be examined in the criminal investigation.
13. On 10 November 2000 the District Court ordered payment of the fine albeit reducing its amount to FIM 50,000 (about 8,409.40 EUR).
14. The court noted the applicant’s arguments under the Convention in which he relied, inter alia, upon the cases of Saunders v. the United Kingdom (judgment of 17 December 1996, Reports of Judgments and Decisions 1996VI), Funke v. France ( judgment of 25 February 1993, Series A no. 256A), and John Murray v. the United Kingdom (judgment of 8 February 1996, Reports 1996I), to the effect that the enforcement inquiry breached his right to a fair trial as he had been put under threat of a fine to compel him to incriminate himself by providing information about his assets, although a criminal investigation into alleged debtor’s fraud concerning the same assets was pending.
15. The court referred to the counter arguments presented by the Bailiff that the purpose of the enforcement inquiry was to obtain information on the applicant’s assets in order to fulfil his obligations as a debtor, and concluded that in the present case the enforcement inquiry sought to protect the rights of the creditors. The court concluded that if facts indicating the guilt of the applicant in the pending criminal investigation were to be revealed during the enforcement inquiry, the authorities would be bound by professional secrecy.
16. The applicant requested the Helsinki Court of Appeal (hovioikeus, hovrätten) to issue interim measures, which were refused on 23 November 2000. He also filed an appeal.
17. On 22 February 2001 the Court of Appeal rejected his appeal. At the outset, it noted that in the spring of 2001 the applicant and his debtors had reached a friendly settlement and that [on 1 June 2001] having paid about 6.1 million Finnish marks to the Bailiff the applicant had been exempted from the remainder of his debts subject to debt recovery. However, as the friendly settlement had been reached only after the District Court had ordered payment of the administrative fine, the friendly settlement lacked relevance to the present case.
18. It referred to the cases of I.J.L. and Others. v. the United Kingdom (nos. 29522/95, 30056/96 and 30574/96, ECHR 2000IX) and Fayed v. the United Kingdom (judgment of 21 September 1994, Series A no. 294B) and found that:
“...the application of the right not to incriminate oneself [as provided for in the Convention] to the debt recovery procedure might hinder effective enforcement without cause. Given this and the above mentioned judgments of the Court, the Court of Appeal finds that the rights of a person charged guaranteed by Article 6 do not, as a starting point, apply to the debt recovery procedure, and the right of the person “charged” not to incriminate himself cannot be held as a valid reason not to be present in the enforcement inquiry or to refuse to answer the questions put to him in the inquiry. Furthermore, the Court of Appeal considers that nor can the Bailiff’s right under Chapter 3, section 34(g), of the Enforcement Act (ulosottolaki, utsökningslagen) to give, under certain conditions, necessary information to other authorities as such be considered a valid reason for the refusal.
Therefore, the Court of Appeal finds that [the applicant] has not presented a valid reason, within the meaning of Chapter 3, section 40, of the Enforcement Act, not to fulfil his obligation, laid down by the same Chapter, section 33, to give information in the enforcement inquiry ....”
19. The applicant sought leave to appeal. On 3 October 2001 the Supreme Court (korkein oikeus, högsta domstolen) granted such leave. On 9 October 2001 it ordered interim measures.
20. On 19 December 2002 the Supreme Court issued its decision on the merits (precedent no. KKO 2002:116), rejecting the appeal by four votes to one. Even though the applicant alleged the contrary, the Supreme Court was not convinced that the purpose of the impugned enforcement inquiry in the present case was other than that provided for in the Enforcement Act.
21. At the outset, it noted the contents of the relevant domestic law provisions (sections 33, 34, 34(d) and 40(2) of the Enforcement Act; see paragraph 27 below). It also had regard to Article 14 § 3 of the United Nations Covenant on Civil and Political Rights and case-law concerning Article 6 § 1 of the Convention. The right of the accused not to be compelled to incriminate himself or to confess did not however mean that the accused would also have a right not to comply with an invitation to be present in interrogations or court hearings. The court noted that the applicant had the right not to contribute to the investigation of his possible guilt in the pending pre-trial investigation in which he was suspected of having committed debtor’s frauds in connection with earlier debt recovery and bankruptcy procedures. It went on:
“Effective enforcement of decisions is part of a fair trial. In connection with the enforcement of financial claims, the debtor’s obligation to contribute to the establishment of facts of relevance to the enforcement is of great importance. The concealing of property, the reporting of liabilities that are false [or based on a sham transaction], and the giving of other false or misleading information are established as criminal offences in Chapter 39, Articles 2-5, of the Penal Code. The purpose of the powers of enforcement authorities to oblige the debtor to provide an account of his property, and of the coercive means available to ensure compliance with this obligation, is to make enforcement more efficient. Although it is possible to impose a threat of a fine to secure compliance with the obligation to give the information requested in connection with the enforcement inquiry, and a sentence may be ordered on a person concealing information or giving false information, the debtor is not, when complying with his or her obligation to give information on his or her property for the purposes of enforcement, a person charged with a criminal offence within the meaning of Article 6 of the Convention, to whom the rights of the accused would apply.
The right of an accused to remain silent may exceptionally also have relevance in connection with an enforcement inquiry. It has relevance at least where it is apparent that the enforcement inquiry is carried out, contrary to the purpose of the Enforcement Act, for the purposes of obtaining evidence in support of a suspicion of a prior criminal offence. Even in such a case, however, the obligation of the debtor to contribute to the enforcement inquiry results in that he must be present in the enforcement inquiry and give in that connection such information required by law as has no relevance with regard to the suspicion regarding crime.
[The applicant] has argued that the sole purpose of the enforcement inquiry was to find evidence for the pending criminal investigation. In any event, when the pre-trial investigation and the criminal investigation concerned the same matters, or at least essentially the same matters, and the complainants in the suspected crime were the debtors in the debt recovery procedure, the information provided in the enforcement inquiry would be used as evidence in the criminal case.
[The applicant] had a considerable amount of debts subject to debt recovery. According to the Bailiff, the purpose of the enforcement inquiry was to establish whether [the applicant] had such assets as could be used for the payment of debts, and not to obtain information for the purposes of the pending criminal investigation. It cannot be concluded on the basis of the facts stated by [the applicant] alone that the enforcement inquiry would have been requested for a purpose other than within the meaning of the Enforcement Act. As [the applicant] has refused completely to contribute to the enforcement inquiry, it is not possible to assess whether he would have had the right, on account of the said suspicion of a criminal offence, to refuse to provide some of the information. Nor is it possible to decide in this case to what extent the facts established in connection with the enforcement inquiry can be used as evidence in eventual court proceedings concerning a prior criminal offence.
[The applicant] has refused completely to contribute to the enforcement inquiry and has failed to be present. In doing so, he has not complied with his obligation imposed under the threat of a fine. He has not shown the existence of a valid reason for his refusal. He may thus be ordered to pay a fine. No reasons have emerged to reduce the fine imposed by the Court of Appeal.”
22. Dissenting from the majority, Justice M.A. was of the opinion that the applicant, whom he considered a person “charged”, had a valid reason not to fulfil the debt recovery obligations in the light of the Constitution and Article 6 of the Convention. He stressed that although the Bailiff was bound by professional secrecy in the proceedings, the creditors who also had standing as complainants in the criminal proceedings would become aware of the content of the enforcement inquiry. The pre-trial investigation and the enforcement inquiry concerned the same facts, that is, they aimed to find out the applicant’s economic situation and the origin of his assets. It was likely that information received in the enforcement inquiry would be used as evidence as regards the applicant’s guilt in the criminal proceedings. Section 23(3) of the Openness of Government Activities Act (laki viranomaisten toiminnan julkisuudesta, lagen om offentlighet i myndigheternas verksamhet; Act no. 621/1999) did not, to his mind, prohibit the complainants from using this information in the pending criminal proceedings. Justice M.A. concluded that the applicant’s right not to incriminate himself was violated.
23. Meanwhile, on 16 January 2001 in another enforcement inquiry, the Bailiff ordered the applicant to provide information about his assets. The applicant refused, repeating his stance taken in the pending court proceedings, whereupon the Bailiff issued a decision ordering the applicant to provide this information on pain of an administrative fine. On 2 March 2001 the Bailiff requested the Helsinki District Court to order the applicant to pay the administrative fine. On 27 March 2001 the applicant was again required to be present at an enforcement inquiry.
24. It appears that the Bailiff subsequently waived these measures.
25. Section 21 of the Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 1/1999) provides:
“Protection under the law - Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice. Provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the right of appeal, as well as the other guarantees of a fair trial and good governance shall be laid down by an Act.”
26. There are no explicit provisions of law concerning the right to silence and the right not to incriminate oneself. It has been left to the authorities applying the law to respect those rights. The Government Bill for the enactment of the act amending the previous Constitution Act (HE 309/1993 vp) noted that the right to legal protection also included the right of the accused not to testify against himself under the United Nations Covenant on Civil and Political Rights and the Convention.
27. At the material time, the provisions on enforcement inquiry were included in Chapter 3 of the Enforcement Act:
For the purpose of obtaining the necessary information for enforcement, the Bailiff may carry out an enforcement inquiry. In the enforcement inquiry, the debtor must provide information on his assets, debts and income, as well as his or her address and the name of his or her employer. He must also give information about the whereabouts of an object or a document regarding which he by a judgment has been ordered to give to another person or which by law has to be given to the enforcement authority.
In the enforcement inquiry, the debtor must provide such information as is necessary to establish whether property disposed of and related transactions can be recovered for the purposes of enforcement.
Where requested by the Bailiff the debtor shall in the enforcement inquiry prepare a list of assets, debts and income, or verify and confirm by signature such a list prepared by the Bailiff on the basis of information given by the debtor.
The debtor must, where invited by the Bailiff, appear in person in the office of the Bailiff of his or her place of residence or stay for the purpose of an enforcement inquiry. Where the debtor fails to appear and there is probable reason to believe that he or she intends to evade enforcement, the police shall on the Bailiff’s written request bring him or her to the enforcement inquiry.
If the debtor is under an obligation to keep accounts, he or she must produce the accounts and related materials to be audited on the Bailiff’s request for the purpose of obtaining the necessary information for enforcement.
...
Before the enforcement inquiry, the debtor or his or her representative referred to in section 34(b) must be informed of sanctions that may be imposed on him or her in the case of a failure to provide information or provision of incorrect information. ...
If the debtor or his or her representative referred to in section 34(b) fails to comply with his or her obligations under sections 33 or 34(a), the Bailiff may order the debtor to fulfil the obligations within a specified time-limit under threat of an administrative fine. The administrative fine is imposed and ordered to be paid in accordance with sections 39 to 41. ...
For the purpose of enforcement and in order to receive necessary information in an individual debt recovery case a third person must notwithstanding the provisions on secrecy on request by the Bailiff provide information on:
1. whether or not he has in his possession or otherwise in his control assets belonging to the debtor and the nature of the assets;
2. whether the debtor has an outstanding account from him, the basis for it and its amount;
3. whether he and the debtor have entered into an agreement or arrangement which may be of relevance in the search for recoverable assets of the debtor and the closer content of the agreement or arrangement; and
4. data concerning the debtor’s employment and salary as well as address and telephone number which he has in his capacity of the debtor’s employer.
Any legal provision in another act about the Bailiff’s right to receive information notwithstanding the secrecy obligation must be complied with.
The Bailiff has the right to receive the information mentioned in subsections 1 and 2 free of charge. This does not concern information provided by means of automatic data processing.
If the third party refuses to give information requested and mentioned in subsections 1 and 2, the Bailiff may order him to produce it within a given time on pain of an administrative fine. The fine is issued and payment of it is ordered in accordance with sections 39-41.
For the purpose of enforcement and in order to receive necessary information in an individual debt recovery case an authority, a corporation having a public function and a company attending to telecommunications or postal activity must notwithstanding the provisions on secrecy and in addition to the information mentioned in section 34(e) on request by the Bailiff provide information on:
1. the debtor’s income and property;
2. the debtor’s employment or service relationships and pensions;
3. the debtor’s address and telephone number as well as other contact information;
In the acquisition of the information mentioned in subsections 1 and 2, it must be seen to that sensitive personal information not relating to the handling of the debt recovery case is not delivered to the Bailiff.
Any legal provision in another act about the Bailiff’s right to receive information notwithstanding the secrecy obligation must be complied with.
The Bailiff has the right to receive the information mentioned in subsections 1 and 3 free of charge. This does not concern information provided by means of automatic data processing.
Notwithstanding the secrecy obligation provided for in the Openness of Government Activities Act, the Bailiff may disclose necessary information to another enforcement authority and, if there is reason to believe that a debtor may have committed an offence, to the prosecuting and investigative authorities. The Bailiff may also give information to the prosecuting authority for the purpose of consideration of conversion imprisonment for non-payment of fines. In addition, the Bailiff may give necessary information about the debtor’s observed malpractice to the tax authority, labour authority, bankruptcy ombudsman or other authority. However, information on misconduct by a debtor received from a person who, in court proceedings, would have the right or obligation to refuse to testify on the facts in question, as well as information received from a third person concerning his or her own misconduct may not be disclosed by the Bailiff.
...
... Payment of the administrative fine is ordered if the obligations have not been fulfilled or have been contravened without a valid reason. ...
Prior to issuing an administrative fine, the Bailiff must afford the debtor an opportunity to be heard in a proper manner, unless the enforcement is thereby substantially impeded. ...”
28. Chapter 2a, section 4 (Act no. 550/1999, in force at the relevant time), of the Penal Code (rikoslaki, strafflagen) provided that a conversion sentence be passed for an unpaid threat of a fine if the collection of it had failed.
29. Section 23(2-3) of the Openness of Government Activities Act reads:
“[...] A party, his/her representative or counsel must not disclose to third parties secret information obtained by virtue of party status and concerning other persons than the party himself.
A person referred to above in paragraph (1) or (2) must not use secret information for personal benefit or the benefit of another, nor to the detriment of another. However, a party, his/her representative and counsel may use information concerning a person other than the party himself/herself, where the matter concerns the right, interest or obligation on which the access of the party to the information is based.”
30. According to the Government Bill for the enactment of the Openness of Government Activities Act (HE 30/1998 vp, p. 85) there is an exception to the prohibition for a party to use secret information obtained in the framework of proceedings to which he is a party. That is the case when the party is attending to a matter concerning his right, benefit or obligation and on which his right to receive information has been based. This means that such information can be used in an appeal procedure concerning the same matter or in proceedings instituted before another authority if the matter concerns attending to the same right, obligation or benefit. Thus, a creditor applying for enforcement, for example, could use information obtained as a party to the enforcement procedure in recovery of assets or bankruptcy procedures relating to the same claims. In this connection, the Bill is silent on whether a creditor applying for enforcement may use such information in criminal proceedings relating to the same claims.
31. Section 35 of the Act states that a breach of the secrecy obligation and the prohibition of misuse of information based on section 23 is punishable.
32. Concealment of property and provision of incorrect information in an enforcement inquiry are punishable offences under the Penal Code (Act no. 769/1990).
33. Chapter 3 of the Enforcement Act was amended by Act no. 679/2003 with effect from 1 March 2004. The Bailiff is proscribed from transmitting to other authorities incriminating information under Chapter 3, section 73:
“The Bailiff must not disclose information which has to an essential extent been received from:
1) a person who as a witness in the proceedings has an obligation or a right to refuse to testify on the fact in question, unless this person gives his consent to the disclosure of the information;
2) the debtor, when asked about a fact referred to in paragraphs 6 to 8 of section 52, if the answer indicates that the debtor may have committed an offence in a context other than the enforcement procedure, and the disclosure of the information entails a risk of charges on the debtor; or
3) a third person, if the information concerns misconduct by this third person.
The right of the Bailiff to disclose information to a creditor is provided for in Chapter 3, section 91. The foregoing provisions apply irrespective of whether the information would otherwise be confidential.”
34. The right of the Bailiff to transmit information to the creditor applying for enforcement is regulated by Chapter 3, section 91:
“The Bailiff must without delay inform the creditor applying for enforcement, if they are evidently relevant having regard to the size of the claim, of circumstances perceived by him which may give rise to the need to institute recovery proceedings, to apply for bankruptcy or to another similar special measure in order to collect the claim. The creditor must also receive the minutes from a possible enforcement inquiry and other necessary documents. The Bailiff may also provide information mentioned in section 73(1), point 1 and 2. The creditor applying for enforcement must not use this information in order to circumvent the provisions on testimony in the Code of Judicial Procedure or in order to have the debtor charged with a criminal offence. The Bailiff must remind the creditor of the said restrictions.”
35. In its report the Law Committee (LaVM 34/2002) emphasised the importance of respecting the right not to incriminate oneself but also underlined that such protection should not be extended to the detriment of effective enforcement to situations where there was no risk of a breach of that principle.
36. The Enforcement Act was with effect from 1 January 2008 replaced by the Code of Enforcement (ulosottokaari, utsökningsbalken; Act no. 705/2007). The contents of the relevant provisions essentially remain the same.
37. The Government relied on a Supreme Court judgment of 23 December 2002 (precedent no. KKO 2002:122): A partner of a limited partnership company committed aggravated debtor’s dishonesty. A. received part of the moneys involved. In his personal bankruptcy proceedings A. concealed those assets which he had received through aiding and abetting in the said offence. The Supreme Court held that the obligation of debtors to provide information exclusively served the interests of the enforcement procedure and was necessary for the purposes of protecting the interests of creditors. The purpose was that the administrator of the bankruptcy estate and the creditors got, through the debtor’s cooperation, as reliable a picture as possible of the estate’s assets and debts. The provision of information was not as such related to any criminal case or to the search for evidence relating to a suspected offence, and nor was the debtor providing information in the capacity of a suspect of an offence. Accordingly, the debtor had no right to conceal assets of the bankruptcy estate in the bankruptcy proceedings on the ground that he believed that by declaring the assets, he would have revealed that he had committed an offence relating to the origin of the assets or some other offence. A. had not therefore had any right not to declare the said assets in the bankruptcy procedure and he was accordingly convicted of debtor’s fraud.
38. The applicant considered the precedent irrelevant to his case, as A. had not been “charged” within the meaning of Article 6 when he had given an account of his assets.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-105829
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF IWASZKIEWICZ v. POLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of P1-1
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicants were born in 1947 and 1987 respectively and live in Zapolice.
6. In 1990 the first applicant’s husband and the second applicant’s father, Mr Henryk Iwaszkiewicz, born in 1929, was granted a retirement pension under a regular retirement pension scheme and on the strength of premiums which he had been paying into the centralised social insurance fund. In 1997 he requested the Zduńska Wola Social Insurance Authority (Zakład Ubezpieczeń Społecznych) to grant him a disability pension, together with so-called “veteran status” (“uprawnienia kombatanckie” - see paragraphs 17 to 21 below) since from 1940 to 1946 he had been imprisoned, together with his parents, in a labour camp in Siberia in the Soviet Union. Subsequently, Mr Iwaszkiewicz underwent a medical examination.
7. On 17 December 1997 the Zduńska Wola Social Insurance Authority conferred veteran status on the applicant which entitled him to a veteran’s disability pension. It found, on the basis of the results of his medical examination, that his ill-health had been caused by his deportation and imprisonment by the Soviet authorities in the 1940s.
8. Apparently in 2001 and 2002 doubts arose as to the accuracy of certain medical examinations, on the basis of which social insurance benefits had been granted by the Zduńska Wola Social Insurance Authority. By a letter of 24 October 2002 the Sieradz Regional Prosecutor requested that Authority to review, under section 114 of the Law of 17 December 1998 on retirement and disability pensions (ustawa o emeryturach i rentach z systemu ubezpieczeń społecznych - see paragraph 22 below), the final decisions issued in 115 disability pension cases. The request referred to a pending investigation in the case of a certain J.S. and other doctors who had been assessing claimants’ health for the purposes of social insurance proceedings. The prosecutor submitted that it was highly likely that in those cases serious irregularities concerning the assessment of the claimants’ eligibility for social insurance benefits had occurred. The list of cases attached to that request included Mr Iwaszkiewicz’s case. No allegation was ever made that the 1997 decision had been obtained by Mr Iwaszkiewicz in a fraudulent manner.
9. In December 2002 Mr Iwaszkiewicz was invited to undergo a fresh medical examination. After that examination the Zduńska Wola Social Insurance Authority, by a decision of 5 March 2003, withdrew his veteran’s disability pension, referring to the doctors’ conclusions. They found that there had been no causal link between his deportation by the Soviet authorities and the health problems from which he suffered. From that date onwards his status was again covered by the regular social insurance scheme and he was entitled to an ordinary disability pension.
He appealed against that decision to the Łódź Regional Court.
10. During the ensuing judicial proceedings, Mr Iwaszkiewicz was examined on 10 June 2003 by a cardiologist and on 24 June 2003 by a psychiatrist. According to their opinions, he suffered from numerous serious ailments and he was completely unable to work. However, they concurred that his ailments had been caused by his age and not by his earlier deportation and imprisonment.
11. On 27 November 2003 Mr Iwaszkiewicz died. The applicants joined the proceedings as his legal successors under the provisions of domestic law which expressly allowed them to seek payment of his pension covering the period from the date of the contested decision until the plaintiff’s death, and which gave them locus standi in the proceedings (see paragraph 26 below). The applicants sought payment of Mr Iwaszkiewicz’s veteran’s disability pension from 5 March 2003 until his death on 27 November 2003 and challenged the decision divesting him of his veteran’s status and of his veteran’s disability pension.
12. On 6 August 2004 the Łódź Regional Court dismissed their appeal against the decision of 5 March 2003. The court had regard to the medical experts’ opinions and findings. It held that in the absence of a causal link between Mr Iwaszkiewicz’s deportation in the 1940s and his medical condition in 2002, he did not meet the requirements for veteran’s status laid down in section 12 (3) of the Law of 24 January 1991 on Veterans and Victims of War and Post-War Persecutions (Ustawa o kombatantach oraz niektórych osobach będących ofiarami represji wojennych i okresu powojennego - the (“the 1991 Law,” see paragraph 18 below).
13. The applicants appealed. They submitted that the first-instance judgment was in breach of the applicable laws, in that the court had wrongly and illogically accepted that a medical assessment finding a causal link between the claimant’s health and his or her suffering in the past, on the strength of which veteran’s status and a veteran’s disability pension had been granted, could later be reversed. The existence of a causal link was not something that could reasonably change over time.
14. Furthermore, Mr Iwaszkiewicz had considerably aged between 1997 and 2002 and his health had seriously deteriorated throughout that time. The medical examination carried out in 2002 could not therefore assess the link between the deportation and his health at the time when he applied for veteran’s status, the existence of such a link being decisive for entitlement to that status to arise. The applicants argued that there was no legal basis on which to challenge the medical assessment made during the examination of Mr Iwaszkiewicz’s original request for a veteran’s pension in 1997, as this pension had been granted by way of a final decision of the Social Insurance Authority. The contested decision of 5 March 2003 had also violated the principle that acquired rights should not be taken away.
15. On 10 May 2005 the Łódź Court of Appeal dismissed the applicants’ appeal, sharing the conclusions of the lower court.
16. On 28 March 2006 the Supreme Court refused to entertain the applicants’ cassation appeal. On 10 April 2006 the applicants requested the court to serve on them the written grounds for that refusal, to no avail.
17. Article 2 of the Constitution of Poland, which entered into force on 17 October 1997, reads:
“The Republic of Poland shall be a democratic State ruled by law and implementing the principles of social justice.”
18. Under the provisions of the Law of 24 January 1991 on Veterans and Victims of War and Post-War Persecutions (Ustawa o kombatantach oraz niektórych osobach będących ofiarami represji wojennych i okresu powojennego - “the 1991 Law”), veterans are entitled to privileged status in comparison with other employees or retired persons. This status includes, for example, a lower age of retirement and various financial benefits paid in addition to the normal pension calculated in accordance with the rules of the general social insurance system. In particular, an especially favourable method for calculating periods of employment is used in respect of veterans.
19. At the time when the applicant was divested of his “veteran status”, a retired veteran was, inter alia, entitled to a “veteran’s benefit” equal to 10% of the average monthly salary in the public sector; a fare discount of 50% on travel by municipal transport, rail and public long-distance buses; a special allowance covering 50% of such household expenses as electricity, gas and heating; and a discount of 50% on motor-vehicle insurance.
20. Section 4 (3) (b) of the 1991 Law provides that its provisions also apply to persons who have been subjected to forced deportation to the Soviet Union during the Second World War and afterwards.
21. Under section 12 (1) of the 1991 Law, veterans who have acquired the status of war or military invalids (that is to say, who have been declared unfit for work and whose ailments have been caused by, inter alia, deportation in conditions provided for by section 4 (3) (b) of the 1991 Law) are entitled to receive benefits defined in the 1974 Law on War and Military Invalids (ustawa o zaopatrzeniu inwalidów wojennych lub wojskowych – “the 1974 Law”) including, in particular, veteran’s disability pension (renta inwalidy wojennego). Pursuant to section 12 (2) of the 1991 Law, certain family members, including widows and widowers aged over fifty, those who are invalids themselves and those who raise children under sixteen years of age, and also certain categories of children, are entitled to certain benefits provided for by the 1974 Law. In particular, the 1974 Law provides that they are entitled to family benefit (renta rodzinna). At the material time, if there were two family members eligible for that benefit, it was to be paid to them in the amount of 80% of a basic amount of 1,175 Polish złotys (PLN).
22. Under section 26 of the 1991 Law, a person divested of veteran’s status retains an entitlement to his or her pension calculated under the rules applicable to the general social insurance scheme.
23. Section 114 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (ustawa o emeryturach i rentach z systemu ubezpieczeń społecznych – “the 1998 Law”), applicable from 1 January 1999 until 1 July 2004, read:
“The right to benefits or the amount of benefits will be reassessed upon application by the person concerned, or ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.”
24. The Katowice Court of Appeal, in a judgment of 30 May 2001 (II AUa 2508/00), held that the provisions of the social insurance legislation, in particular section 114 of the 1998 Law, allowed for the reopening of proceedings terminated by a final decision awarding a benefit only where new evidence or circumstances pre-existing prior to that decision came to light after that decision had become final.
25. The same court, in a judgment of 10 July 2003 (III AUa 1512/03), held that the legal impossibility of applying section 114 in situations where benefits had been awarded, despite the eligibility conditions not having been satisfied, would have been tantamount to endorsing decisions issued in manifest breach of substantive law.
26. The Supreme Court held on 8 July 2005 (I UK 11/05) that in the context of social insurance proceedings the principle of res judicata operated differently than in the context of judicial decisions in civil cases, in a manner which limited its practical significance. Judicial decisions given in such proceedings established legal relationships between the insured person and the insurance system on the basis of the situation existing when such decisions were given. New developments, relevant to the question of compliance with the eligibility requirements, could justify changes in these legal relationships.
27. The Law of 13 October 1998 on the social insurance system (Ustawa o systemie ubezpieczeń społecznych), in its section 136, provides that if a person entitled to receive social insurance benefits provided for by that law dies, the benefits due until the date of his or her death are to be paid to his or her spouse and children living in the same household.
28. It further provides that the affected spouse and children have a right to participate in the proceedings concerning eligibility for social insurance benefits if the claimant died whilst they are pending.


ITEMID: 001-57779
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF HADJIANASTASSIOU v. GREECE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1+6-3-b;No violation of Art. 10;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: John Freeland;N. Valticos;R. Pekkanen
TEXT: 6. Mr Hadjianastassiou, a Greek national, is an aeronautical engineer. At the material time he was a captain in the air force.
As the officer in charge of a project for the design and production of a guided missile, he submitted, in 1982, a report to the Air Force Technological Research Centre ("K.E.T.A.") on the missile on which he had been working. In January 1983 he communicated to a private company ("ELFON Ltd") another technical study on guided missiles, which he had prepared himself.
7. On 4 July 1984 a chamber of the Permanent Air Force Court of Athens (Diarkes Stratodikeio Athinon) charged the applicant and another person with disclosing military secrets (Article 97 of the Military Criminal Code, see paragraph 21 below).
On 22 October 1984 the court found Mr Hadjianastassiou guilty of having transmitted to ELFON a series of ten items of information together with "all the technical and theoretical data" appearing in the K.E.T.A. report. It sentenced him to two years and six months’ imprisonment.
8. The applicant and the prosecutor at the Courts-Martial Appeal Court (Epitropos tou Anatheoritikou Dikastiriou) appealed from that judgment.
9. Following a hearing held on 28 February and 1 March 1985, the Courts-Martial Appeal Court appointed two experts - professors at the Athens Polytechnic School - who, with two other experts, designated by the applicant, compared the two studies.
In their report of 26 September 1985 the two professors concluded as follows:
"... in our opinion, the two studies, for the K.E.T.A. and ELFON, follow different methods, the two missiles are different and the second is not a copy of the first ... . Nevertheless, some transfer of technical knowledge inevitably occurred ... . It is not possible to determine the extent of such transfer beyond what is mentioned above under (b), (c) and (d), because the ELFON study and even more so the K.E.T.A. report were shoddily drafted and were full of imprecisions and omissions; it should be stressed that in both studies the aerodynamic data are erroneous ..."
They noted that Mr Hadjianastassiou had some technical knowledge, acquired during his studies in the United States. However, his participation in the K.E.T.A. project had enriched his experience. The components of the missile and some of the theoretical data contained in the two studies could be found in various manuals included in the file and regarded as "available literature". These manuals were not classified as "secret", but it was not established that they were accessible to private individuals.
10. At a new hearing held on 21 and 22 November 1985 the Courts-Martial Appeal Court took evidence from nineteen witnesses on whether the two studies contained common data, whether the information which had formed the basis of the studies was freely available in scientific literature and whether the K.E.T.A. study had been classified as a "military secret".
11. After the hearing the Courts-Martial Appeal Court deliberated in private and considered the following questions formulated by its President:
"1. Is Constantinos Hadjianastassiou guilty of having, between October 1982 and March 1983, unlawfully and intentionally communicated and disclosed to third parties military plans and information classified as secret and which had to remain secret in the military interests of the Greek State? [In particular, is he guilty of having] ..., in October 1982, after having contacted the company ELFON Ltd ... with a view to preparing and drawing up for the latter’s benefit a study on guided missiles, for a financial consideration to be agreed with the said company when the work was in progress, unlawfully and intentionally, (a) communicated to the above-mentioned company general information concerning the guided missile which was being designed at the K.E.T.A. and its technical characteristics, although as project officer for the K.E.T.A. missile he knew that such information was secret and that the military interests of the Greek State required that it be kept secret; (b) transmitted to the same company several elements deriving from the study, relating to the project and on the same subject-matter, of the K.E.T.A. and from the whole production programme of the Greek guided missile ("laser kit") which existed at the centre and which concerned principally the dimensional diagram of the missile, its external geometry, its perimetric plan, its aerodynamic elements, its Nd-YAG laser type, its dynamic model, its dome, its schematic diagram, its seeker’s fairing, its basic electronics data, as well as any other theoretical or technical elements contained in the ELFON Ltd study ..., which was elaborated entirely on the basis of the information transmitted and disclosed by him to the company and derived from the corresponding K.E.T.A. project and study, although he knew, in his capacity as project officer ..., that the information was secret and that the military interests of the Greek State required that it be kept secret?
2. Has it been established ... that, when he disclosed these military secrets, the accused believed, erroneously, that he was entitled to proceed in such a way or [, on the other hand,] that he reasonably believed that, having drawn up the K.E.T.A. study and used his own knowledge, he was entitled to elaborate a new study and submit it through the intermediary of the company ELFON Ltd to the Weapons Industry Department? Was this belief justifiable?
3. Has it been established ... that the military secrets thus disclosed, namely the general information which [the accused] communicated to the ELFON company concerning the guided missile ... and its technical characteristics, were of minor importance?
4. Should certain factors be taken into account in mitigation, namely that, prior to committing the above- mentioned act, the accused had led an honest and well-ordered private, family and professional life?
... "
12. According to the record of the deliberations, the Courts- Martial Appeal Court replied in the affirmative to questions 1 (a) (four votes to one), 3 and 4 (unanimously) and in the negative to questions 1 (b) (four votes to one) and 2 (three votes to two).
13. Giving judgment in Mr Hadjianastassiou’s presence on 22 November 1985, it sentenced him for disclosure of military secrets of minor importance (Article 97 para. 2 of the Military Criminal Code, see paragraph 21 below) to a suspended term of five months’ imprisonment, from which it deducted the four months and fourteen days which he had spent in detention on remand.
14. The President of the Courts-Martial Appeal Court read out the judgment, which did not refer to the questions put to the members of the court.
15. In order to obtain the text of these questions and the replies given, the applicant asked, on 23 November 1985, to see the record of the hearing. The registrar allegedly told him that he would have to wait for the "finalised version" of the judgment.
16. On 26 November 1985 - within the five days prescribed in Article 425 para. 1 of the Military Criminal Code (see paragraph 24 below) - Mr Hadjianastassiou appealed to the Court of Cassation ; in his appeal, which was a page long, he alleged "the erroneous application and interpretation of the provisions under which he [had been] convicted, namely Article 97 para. 2 of the Military Criminal Code".
17. He received a copy of the appeal judgment on 16 December; it was very short and did not state the grounds on which it was based, merely referring to the fixing of sentence.
18. On 23 December 1985 the applicant again demanded that the record be communicated to him; he received it on 10 January 1986. This document, which was detailed and reproduced in full the six questions and the replies obtained, ended as follows:
"...
The Court, by four votes to one ..., finds the accused Hadjianastassiou guilty of disclosing military secrets, which offence was committed in Attica between October 1982 and March 1983.
By three votes to two ..., the Court dismisses the defence request that Article 31 para. 2 of the Criminal Code (not guilty in the event of mistake) be applied.
The Court unanimously accepts that the military secrets communicated are of minor importance.
The Court unanimously accepts the factors pleaded in mitigation (Article 84 para. 2 (a) of the Criminal Code).
Having regard to the following Articles: ... Article 97 para. 2 taken in conjunction with paragraph 1 and with Article 98 (e) ..., Articles 366, 368 ... of the Military Criminal Code, ...;
... having regard to the gravity of the acts carried out, to the accused’s personality, to the damage caused by the offence, to the specific nature of the offence, to the specific circumstances under which the offence was committed, to the degree of criminal intent on the part of the accused, to his character, to his personal and social situation, and to his conduct before and after the commission of the offence;
The Court sentences the accused to five months’ imprisonment and orders him to pay the costs ...
It deducts from the above-mentioned term ... the period of four months and fourteen days spent in detention on remand and sets at sixteen days the term still to be served.
In view of the fact that the accused has no previous convictions and has never been sentenced to prison, and having regard to the circumstances under which the offence was committed, the Court considers it appropriate to suspend the remainder of the sentence ...
For these reasons,
Having regard to Articles 99, 100 and 104 of the Criminal Code,
The Court orders that the outstanding term of imprisonment be suspended for a period of three years.
..."
19. The hearing in the Court of Cassation (Areios Pagos) took place on 11 April 1986.
On 14 April Mr Hadjianastassiou filed a memorial in support of his oral pleadings. In his submission the wording of his appeal was sufficient to rule out any danger of its being dismissed for lack of precision. He complained of the shortness of the time-limit for appealing against the decisions of the military courts and the fact that it was impossible for the persons concerned to gain access, in good time, to the contents of the contested judgments. He also challenged the ground on which his conviction rested: the communication of "general information" on the K.E.T.A. missile, the charge which the Courts-Martial Appeal Court found to be proved, did not justify the application of Article 98 of the Military Criminal Code as that provision concerned the disclosure of secret information of military importance, a charge of which the Courts-Martial Appeal Court had acquitted him by its reply to question 1 (b) (see paragraph 11 above). In his view, at the most his case might fall under Article 96 (see paragraph 21 below).
20. On 18 June 1986 the Court of Cassation declared the appeal inadmissible on the following grounds:
"By the appeal before the Court ..., in which it is sought to have judgment no. 616/1985 of the Athens Courts-Martial Appeal Court set aside, the [applicant] challenges the aforesaid judgment on the ground of erroneous application and interpretation of the provisions under which he was convicted, namely Article 97 para. 2 of the Military Criminal Code. However, this sole ground of appeal, as formulated above, is vague inasmuch as it does not identify any concrete and specific error in the contested judgment which could constitute the basis of the complaint alleging the erroneous application and interpretation of the above-mentioned provision; the appeal must therefore be declared inadmissible by virtue of Articles 476 para. 1 and 513 para. 1 of the Code of Criminal Procedure."
21. The Military Criminal Code provides as follows:
"Communication of military information
Any serviceman or any person employed by the armed forces who, without the consent of the military authorities, communicates or makes public by any means whatsoever information or assessments concerning the army shall be sentenced to a term of imprisonment not exceeding six months."
"Disclosure of military secrets
1. Any serviceman or any person employed by the armed forces who unlawfully and intentionally gives or communicates to others documents, plans, or other objects or secret information of military importance or allows such documents, plans, objects or information to be given or communicated to others, shall be sentenced to a term of imprisonment (katheirxi), or, where the above has been given or communicated to a foreign State or to an agent or a spy of a foreign State, to dishonourable discharge and death.
2. ... where the [information] communicated is of minor importance, the convicted person shall be sentenced to a term of imprisonment (filakisi) of not less than six months ..."
"Secret information
‘Secret information of military importance’ means information concerning the Greek State or its allies which relates to:
...
(e) any object officially classified as secret.
..."
22. The relevant provisions of the 1975 Constitution are worded as follows:
"All court judgments must be specifically and thoroughly reasoned and shall be pronounced in a public sitting ..."
"...
4. Special laws may provide for:
(a) Questions relating to the army, navy and air force tribunals, which shall have no jurisdiction over civilians.
(b) Questions relating to prize courts.
5. The courts specified under sub-paragraph (a) of the preceding paragraph shall be composed of a majority of members of the judicial branch of the armed forces, who enjoy the guarantees of independence, as regards their person and their office, provided for in Article 87 para. 1 of the present Constitution. The provisions of paragraphs 2 to 4 of Article 93 shall be applicable to the hearings and judgments of these courts. The detailed rules for the implementation of the provisions of the present paragraph and the date of their entry into force shall be specified by statute."
23. According to the consistent case-law of the Court of Cassation, the failure to give reasons in the decisions of the military courts does not render them void. The application to these courts of Article 93 para. 3 of the Constitution requires, under the terms of Article 96 para. 5, the adoption of special laws, and this has not yet happened (judgments nos. 470/1975, 483/1979, 18/1980, 647/1983, 531-535/1984 (Nomiko Vima 1984, p. 1070) and 1494/1986). It is sufficient that such a decision answers the questions put by the President; the questions must indicate accurately all the offences of which the defendant is accused so as to make it possible for a subsequent review by the Court of Cassation to ensure that the provisions of the criminal law have been properly applied to the facts in question as found by the military courts of first or second instance (judgments nos. 456/1986 and 1494/1986).
24. The following texts are relevant here:
"Formulation of questions. Principal question
1. The President shall put the questions concerning each accused.
2. The principal question shall be based on the operative part of the committal decision ... and shall include the question whether the accused is guilty ... as charged ..."
"Supplementary questions (Parepomena zitimata)
In order to supplement the principal question or the alternative question, supplementary questions may be put concerning the accusation and factors aggravating, mitigating or expunging (exalipsin) the offence."
"Time-limit
Any appeal to the Court of Cassation (anairesi) must be filed within five days of the delivery of the judgment or, where the judgment has been delivered in the absence of the person convicted or his representative, of its notification ..."
"Grounds for appeal to the Court of Cassation
Only the following grounds of appeal may be relied upon:
...
(B) The erroneous application or interpretation of the substantive provisions of the criminal law."
25. The Code of Criminal Procedure provides, inter alia, as follows:
"Time-limit for appealing
The time-limit for filing an appeal with the Court of Cassation begins to run on the date on which the final text of the judgment is entered into the register of the criminal court in question. It shall be so entered within fifteen days, failing which the President of the criminal court shall be liable to disciplinary sanctions."
"Memorial for an appeal to the Court of Cassation
In addition to the grounds invoked in the appeal ..., further submissions may be made in a supplementary memorial, which must be lodged with the office of the principal public prosecutor at the Court of Cassation not later than fifteen days before the hearing ...; once this time-limit has expired such memorials shall be inadmissible ..."
26. According to the case-law of the Court of Cassation (judgments nos. 656/1985 (Nomiko Vima 1985, p. 891), 1768/1986, 205/1988 (Nomiko Vima 1988, p. 588) and 565/1988), Article 473 para. 3 of the Code of Criminal Procedure does not apply to appeals on points of law from the decisions of the military courts, as the time-limit for such appeals is fixed by Article 425 of the Military Criminal Code (see paragraph 24 above).
The grounds of appeal to the Court of Cassation must be set out in the initial appeal memorial. As regards "the erroneous application and interpretation of the substantive provisions of the criminal law", the appeal must specify clearly the errors which are alleged to have been made in the contested judgment (judgments nos. 234/1968, 459/1987, 1366/1987 (Nomiko Vima 1987, p. 1659) and 1454/1987, as well as the judgment given by the Court of Cassation in the present case).
Finally, supplementary submissions may be taken into account only if the initial appeal memorial sets out at least one ground which is found to be admissible and sufficiently substantiated (judgments nos. 242/1951, 341/1952, 248/1958, 472/1970, 892/1974, 758/1979 (Nomiko Vima 1980, p. 56), 647/1983, 1438/1986 and 1453/1987).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-112315
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: K.S. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant is a British national who lives in Oldham, Greater Manchester. She was represented before the court by Ms F. Swaine of Leigh, Day and Co., a firm of solicitors based in London. The respondent Government were represented by Ms J. Neenan, Foreign and Commonwealth Office.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant was born in 1988. Her mother had been in local authority care. As a child, the applicant suffered physical violence and emotional neglect and in 1995 both she and her older sister D were taken into care and placed, separately, in a number of different foster homes. In 2004 the applicant left foster care. She was provided with independent living accommodation by the local authority. However, she found it hard to live on her own, gave up the flat and moved between friends and relatives. She continued to be supervised through the local authority’s after-care programme.
4. In 2008, aged 19, she became pregnant following a single sexual liaison with the partner (P) of her sister (D). A first scan was completed on 16 May and showed that the applicant was 12 weeks pregnant. On 21 May 2008 she was referred by her after-care worker for a pre-birth assessment because of concerns about the applicant’s ability to live in a settled environment and provide the baby with the care he or she would need. The assessment noted that the applicant had moved into a new house and had an understanding of basic childcare. It concluded that she should continue to be monitored by an outreach worker to support her with parenting skills. The applicant asked for it to be recorded in the report that she felt her ability to be a good mother had been pre-judged because she had grown up in care.
5. The applicant’s daughter, M, was born on 14 November 2008 and discharged with the applicant to stay with the applicant’s mother. On 19 November the applicant was readmitted to hospital complaining of bleeding. Hospital staff were concerned that her mother might have given her drugs. She was discharged again on 26 November. The following day the health visitor who visited the applicant at home became concerned that the applicant was tearful and was not properly bonding with her daughter. The applicant went to stay with her aunt for a few weeks. She was diagnosed by her general practitioner as suffering from post-natal depression and was prescribed anti-depressant medication, which she continued to take until the end of March. On 15 December 2008 the applicant moved in with her sister and her partner (D and P). The arrangement broke down after a month. D reported to the local authority that she was concerned about the applicant’s poor hygiene and lack of interaction with and occasional rough handling of her daughter. The applicant denied these accusations and claimed that her sister was acting out of malice.
6. A further assessment by a local authority social worker at this stage found that the care given to M during the first three months of her life had been inconsistent and that the applicant required continuous input from family members and professionals to prompt her to meet the baby’s basic needs. On 12 February 2009 the applicant received a letter warning her that the local authority were considering bringing care proceedings. The applicant agreed to undertake a placement and assessment within a mother and baby unit.
7. On 27 February 2009 the applicant moved to the Abbeyfield Residential Family Centre for a 12 week assessment and intensive support package. The applicant had her own flat within the centre but was given intensive support and regularly monitored throughout the day and night.
8. The midway assessment noted that the applicant had to be prompted to feed M, left her waiting for food for as long as possible and had expressed concerns that M would become fat (whereas in fact M was failing to gain weight properly). It also noted that she appeared reluctant to spend time playing and interacting with M. Nonetheless, the report concluded that the applicant had demonstrated an understanding of the child’s basic care needs and a willingness to accept support and instruction from staff. On 9 March 2009 a Child Protection Case Conference was held and M was made subject to a Child Protection Plan under the category of neglect.
9. The final report from the Abbeyfield Centre found that the applicant had profoundly low self esteem as a result of her childhood experiences. She was deeply needy, found caring for the child stressful and was unable to establish secure attachments with her daughter, putting the child at risk of emotional harm. The assessment concluded that the applicant was unable to safeguard the child or provide for her welfare. Despite repeated advice, the applicant did not feed the child at regular intervals, causing her to become dehydrated and to lose weight. She was also found to be unable to recognise and respond to cues in the baby’s behaviour. Overall, the report concluded that, despite intensive input, the applicant was unable to demonstrate that she would consistently be able to meet her daughter’s needs. M would be exposed to significant harm if she were returned to the applicant’s care for a further period of assessment in the community.
10. In the light of this assessment, on 15 May 2009 the applicant was informed that the local authority intended to apply for an interim care order. The local authority intended to place M with foster carers from the Goodman Team in Manchester. The Goodman Team operated a system of concurrent planning, whereby during the assessment period of an interim care order, children were placed with foster parents who had been approved as potential adopters. The local authority considered that this would be beneficial to M, since if it proved necessary to place her for adoption she would not have to move to another family. An interim care order was granted on 27 May 2009 and on 6 June 2009, when M was seven months old, she was placed with foster carers.
11. The applicant had three three-hour contact sessions a week with her daughter, at the Goodman Contact Centre, during which her parenting skills were assessed. The applicant attended every session. In the Goodman Project’s first report, dated 25 August 2009, the applicant’s commitment to her daughter was described as impressive. She was found to have recognised the need for change and to be more accepting of help and advice from professionals. Within the confines of the contact sessions she had demonstrated that she could physically care for M and the bond between them appeared to be strengthening. It was recommended that the contact should become less supervised in order to assess whether the applicant could sustain her progress with less support.
12. During this period, various members of the applicant’s family were assessed by the Goodman Project as possible carers for M, but no-one suitable was found.
13. In subsequent contact sessions, staff remained outside the room and listened to the contact via a baby monitor. In total, the Goodman team supervised 246 hours of contact between the applicant and her daughter. The Team’s final report, dated 27 October 2009, concluded that the applicant had been unable to sustain the initial promise. She still had difficulty in recognising and responding to M’s cues for food or sleep. M appeared distressed after extended contact sessions. The applicant did not eat regularly herself and there was concern that she would not feed M appropriately. She was reluctant to recognise or address the impact of her childhood experiences on her capacity to care for M. Despite an intensive level of professional input, the applicant had been unable to demonstrate that she could consistently meet her daughter’s needs and M would be exposed to significant risk of harm if returned to her mother’s care. There being no viable placement for M within the applicant’s family, it was recommended that she be placed for adoption with her Goodman Team carers.
14. On 23 September 2009 a Guardian ad litem was appointed to represent the child and to advise on her best interests. The Guardian attended some of the applicant’s contact sessions with M, to a total of ten hours, and also visited the applicant at her home on several occasions.
15. The local authority applied for a final care order and an order placing M for adoption with her foster carers. Upon the making of these orders, the applicant’s contact with M would be reduced, with the ultimate aim of stopping direct contact and establishing indirect contact via a letterbox scheme.
16. In a report dated 18 October 2009 a forensic clinical psychologist, who was fully independent and acted on behalf of all the parties, including the applicant, found inter alia:
“It is clear that [K.S.] loves [M] a great deal. In my view she has fairly profound psychological difficulties which are both subtle and central to her functioning. In my view such problems are masked by [K.S]’s obvious intelligence. That is, she appears to function at a higher level because she is bright and, in many ways, a resourceful survivor.
If [K.S.] is to care for [M] on a full time basis, she will require a great deal of support, assistance and guidance. She has the intellectual capacity to make use of services and to understand what it is to be a good parent. However, [K.S.] is a very vulnerable young woman who is at risk of episodes of depression, an unstable lifestyle and possibly abusive intimate relationships.
... [If M] is returned to [K.S.]’s care, I am of the view that such an approach would have significant risks attached. [S.K.] may regress and her functioning may deteriorate as she becomes more in touch with the damage that has been caused to her.”
17. On 8 December 2009 the applicant applied for an adjournment of the care proceedings to allow for an independent social worker to be instructed. The applicant did not have legal representation at that hearing, so Allweis H.H. Judge adjourned the matter until 16 December to allow her to find a representative. At the hearing on 16 December, the applicant, who was represented by a solicitor, submitted that she recognised that she needed help and had applied for counselling. She had an extensive support network of family members, friends and professionals. All the professional assessments so far had reported that she was making progress in her ability to care for M. The applicant accepted that M could not be returned directly to her care but considered that, long-term, M would be better off with her birth mother, and that it was justifiable to allow time for an independent assessment before placing the child for adoption. The judge, however, decided that he could not rule on this application until he had heard all the evidence in the case at the full hearing, which would take place on 25 January 2010.
18. Initially, the applicant had the support of the Guardian ad litem. In an initial position statement made in January 2010 the Guardian found, inter alia, that “[K.S.] is consistently able to demonstrate that she is able to meet [M]’s emotional needs for love, comfort, acceptance, reassurance and affection”. Although she did not consider that M should immediately be returned to her mother, she considered that an independent report might be justified.
19. The final hearing took place between 25-29 January 2010. The applicant had legal aid and was represented by experienced counsel. After hearing evidence from the applicant and professionals over three days, the Guardian changed her position. She informed the court that she considered that the work that had been undertaken established that the applicant was able to offer, at best, only an inconsistent standard of care for M. She believed that it would be in M’s best interests for the court to approve the plan for adoption and she no longer thought that an adjournment for any further assessment would serve a useful purpose.
20. In his judgment, dated 3 February 2010, Judge Allweis rejected the applicant’s request for an adjournment to allow for further attachment work and assessment. He considered that it was necessary to balance the likelihood that further work or assessment would achieve “the wonderful prize of rehabilitation of mother and daughter” against the child’s need for stability and a final decision. Having heard evidence from the applicant and the various professionals involved in the case, he concluded that rehabilitation was not a viable option. For many months, professionals had worked sympathetically and intensively with the applicant to help her improve the bond with her daughter. The applicant had not been able to develop a consistent level of care and to show that she would be able to cope with the inevitable stresses and difficulties involved in raising a child. Unless the applicant’s underlying problems were properly addressed, any further attachment work would be “putting a sticking plaster on a huge wound” and would achieve nothing of real substance. The judge accepted that it was a draconian step to remove the child from her mother, who was entitled to respect for her right to family life. However, the child was also entitled to a family life in which all her needs would be met and the applicant would not be able to meet those needs within the child’s timescale. The judge therefore accepted the local authority’s analysis of the welfare checklist. The child’s interests were overwhelmingly in favour of adoption. He made a care order and dispensed with the applicant’s consent to a placement order, on the ground that the welfare of the child so required. He declined to make any order regarding post-adoption contact, because he considered that the applicant’s reaction to his judgment and ability to work with the adoptive parents and professionals would be important factors to be taken into account.
21. On 16 March 2010 the Court of Appeal dismissed the applicant’s appeal. The applicant did not apply for legal aid for the hearing and was represented by a “McKenzie friend”, who was not legally qualified. She had lodged the appeal following the refusal of Judge Allweis on 16 December 2009 to decide on her application for an adjournment. Wall LJ, in the Court of Appeal, decided instead to consider the refusal of an adjournment in judgment of Judge Allweis of 3 February 2010. He held that Judge Allweis had not made any error of law. In the light of the evidence, which he had analysed carefully in his long judgment, Judge Allweis had been entitled to make the care and placement orders.
22. A second appeal, this time formally against the 3 February 2010 judgment, was heard and dismissed without a hearing on 29 April 2010. Wilson LJ considered that the matter had already been dealt with by Wall LJ on 16 March 2010, and said “it would for practical purposes not be open to this court to reverse that decision”, but added, “for the record”, that independently of Wall LJ he had reached the same conclusion that, in accordance with the unanimous opinion of the professionals involved in the case, an order for further assessment and delay in making the final order would run counter to M’s interests. He also made an order that, since the appeal was totally without merit, it could not be renewed at an oral hearing. The refusal of the appeal was, therefore, final.
23. On 7 May 2010 Judge Allweis made an adoption order in favour of the couple who had been caring for M since June 2009. The applicant did not attend the hearing. She had been sent notice of it on 30 March 2010, and had sent a number of emails asking for it to be adjourned. The court clerks had telephoned the solicitors who had previously acted for the applicant, but had been informed that they were no longer instructed and that the applicant had issued a claim in negligence against them following the making of the placement order. The judge decided to go ahead in the applicant’s absence because she had not explained why she could not be present. Moreover, she had no valid appeals or applications outstanding in other courts and, given the recent judgments in her case, there was no possible basis for her to challenge the making of an adoption order. The evidence showed that M was thriving and happy and that it would be detrimental to her to upset the placement. The applicant’s behaviour since the making of the placement order showed that she had not accepted it and the judge therefore considered that it would be unsettling and contrary to the child’s interests to allow her direct contact. However, all the professionals in the case recommended that the applicant maintain indirect contact with her daughter, through letters which would be passed on through the local authority.
24. On 14 May 2010, the applicant’s legal aid certificate in respect of the care and placement proceedings was discharged. On 17 May 2010 the applicant appeared before Judge Allweis and unsuccessfully applied to set aside the adoption order and for Judge Allweis to recuse himself. On 21 May 2010 Judge Wilson LJ refused the applicant’s request for leave to appeal against the adoption order, as totally without merit. He held that even if the applicant had attended the hearing on 7 May, it would not have been possible to oppose or delay the adoption. On 26 August 2010 Judge Allweis refused two further applications by the applicant: for him to recuse himself and for her to have direct contact with her daughter pending the resolution of her application to this Court.
25. A summary of the relevant domestic law and practice can be found in Y.C. v. the United Kingdom, no. 4547/10, §§ 92-113, 13 March 2012 (not yet final).


ITEMID: 001-66927
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF POLESHCHUK v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 34 with regard to transmission of letters;Inadmissible under Art. 34 with regard to alleged pressure on applicant;Inadmissible under Art. 6-1
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1963 and lives in Yaroslavl.
8. The facts of the case, as submitted by the parties, may be summarised as follows.
9. On 26 October 1998 the applicant was convicted by the Yaroslavl Regional Court and sentenced to 13 years’ imprisonment for participation in an organised armed gang. On 22 February 1999 the conviction was upheld on appeal by the Supreme Court of the Russian Federation. The applicant serves his sentence in a correctional colony (the prison).
10. On 25 May 1999 and 14 December 1999 the applicant submitted letters addressed to the European Court of Human Rights, in which he complained under Article 6 of the Convention that he had not had a fair trial in the above domestic proceedings, to the prison’s Special Department, the office exercising censorship and general supervision over all inmates’ correspondence. On 8 June 1999 and 30 December 1999 the prison administration refused to dispatch the letters. The competent officials, the head of the Special Department major K. and the deputy warden of the prison major O., pointed out that the application to the Court would not be accepted for dispatch unless and until the applicant applied to the Chairman of the Supreme Court and to the Prosecutor General with requests for a supervisory review of his conviction, or filed an application with the Constitutional Court of the Russian Federation. The applicant complied, as he had no other means to have his mail sent outside prison. However, his applications were unsuccessful.
11. On 1 February 2000 the applicant sent an application to the Court, in which he complained of an unfair trial. He also explained that he had exceeded the six months time-limit set out in Article 35 § 1 of the Convention, as he had been prevented by the prison administration from dispatching his application earlier.
12. After the questions were put by the Rapporteur to the respondent Government under Rule 49 § 2 (a) of the Rules of Court, on 23 October 2001 the Chief Penitentiary Directorate of the Ministry of Justice of the Russian Federation (Главное управление исполнения наказаний Министерства юстиции Российской Федерации) issued a circular letter to its subordinate departments and bodies prohibiting hindering the dispatch of applications addressed to the Court.
13. On 22 February 2002 the Chief Penitentiary Directorate of the Ministry of Justice of the Russian Federation designated officials authorised to monitor the unhindered dispatch of applications to the Court from penitentiary institutions.
14. On 29 March 2002 the Deputy Prosecutor General issued a circular letter calling upon the regional prosecutors to take measures to secure unhindered exercise of the right of individual petition by detainees. It mentioned in particular that any pressure, including intimidation, discouragement or dissuasion, was unacceptable.
15. On 14 June 2002 a commission of the Yaroslavl Regional Prosecutor’s office visited the prison to conduct an inquiry into the refusal of the prison administration to post the applicant’s letters to the Court. The result of this inquiry, if any, remains unknown to the Court.
16. On 13 February 2003 the prison director classified the applicant as a persistent contravener of prison discipline, and on 26 February 2003 transferred him to a stricter security level.
17. On 4 March 2003 the applicant was transferred to another penitentiary institution, following his request based on allegations of a conflict with the prison administration.
18. At present the applicant continues to serve his sentence.
VIOLATED_ARTICLES: 34


ITEMID: 001-22229
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: FRANQUESA FREIXAS v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant [Ramón Franquesa Freixas] is a Spanish national who was born in 1943 and lives in Tarragona. He is a lawyer.
In connection with criminal proceedings for misappropriation of assets, brought against the applicant by Barcelona investigating judge no. 18, the applicant was awarded legal aid and a lawyer was assigned by the court to assist him.
At the public hearing of the case the applicant’s officially assigned lawyer raised an objection, as a preliminary issue, on the ground that the applicant had informed her that he no longer had confidence in her ability to represent him because she was specialised in labour law and not criminal law. She requested the judge to suspend the hearing In a judgment of 22 December 1997 Barcelona criminal-court judge no. 1 dismissed that objection on the ground that criminal law, as such, did not constitute a specialisation. He added that the applicant, who had not appointed a lawyer of his choice, had not expressed any intention to defend himself either. He also referred to the lawyer’s professional experience. On the merits, the court found the applicant guilty of the offence of misappropriation, sentenced him to four months’ imprisonment and ordered him to pay damages to the victim of the offence.
The applicant appealed against that judgment to the Barcelona Audiencia Provincial. He disputed the judge’s legal classification of the offence with which he had been charged. A new lawyer – this time one matching his requirements – was appointed by that court to assist him. In a judgment of 9 July 1998, delivered after proceedings deemed to be inter partes, the Barcelona Audiencia Provincial dismissed the appeal and upheld the lower court’s judgment. That judgment was served on the applicant’s officially assigned lawyer on 2 September 1998. According to the applicant, the officially assigned lawyer did not send him a copy of the judgment upholding his conviction. The applicant therefore personally contacted the Audiencia Provincial asking it to serve the judgment of 9 July 1998 on him directly, which was done on 9 September 1998.
On 23 October 1998 the applicant lodged an amparo appeal with the Constitutional Court. He relied on Article 24 of the Constitution (right to a fair trial). In his grounds in support of his amparo appeal, the applicant’s representative stated that the judgment of the Audiencia Provincial had been served personally on his client on 9 September 1998.
In a decision of 6 May 1999 the Constitutional Court held the amparo appeal to be inadmissible on the ground that it had been lodged out of time. The court gave the following reasons for its decision:
“As this court has stated on many occasions (see, among others, the decisions of the Constitutional Court 559/1984, 705/1986, 160/1987, 194/1989 and 223/1089), service of documents on the representative of a party to a trial shall produce the same effects as service on the represented party where section 44(2) of the Constitutional Court Act (CCA) does not require personal service for the purpose of calculating the relevant time-period. That is so irrespective of the fact that the rules of ordinary law can impose an additional requirement of serving judgments personally. Consequently, if account is taken of the fact, as can be seen from the file, that the appellate court’s judgment was served on the applicant’s lawyer on 2 September 1998, the amparo appeal of 23 October 1998 was lodged out of time because it was lodged long after the twenty-day time-limit provided for by section 44(2) of the CCA for lodging a constitutional appeal.”
Constitutional Court Act
“The time-limit for lodging an amparo appeal shall be twenty days from service of the decision delivered in the judicial proceedings.”
Code of Criminal Procedure
“Final judgments shall be delivered and served on the parties and their lawyers...”


ITEMID: 001-4926
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: IMMOBILIARE LIBECCIO
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a company based in Milan. It is represented before the Court by Vito De Honestis, a lawyer practising in Milan.
A.
The applicant is the owner of an apartment in Milan, which it had let to a company, M.D. Ltd.
In a writ served on the tenant on 12 November 1994, the applicant company summoned the tenant to appear before the Milan Magistrate with a view to recovering possession of its apartment on the ground of rent arrears.
At the hearing of 28 November 1994, Ms. J.B. appeared before the Magistrate and declared that she was the user of the apartment and the de facto tenant. She thus opposed the termination of the contract and requested a delay in order to pay up the arrears. The Magistrate granted her a delay of 90 days.
Ms. J.B. having failed to fulfil this obligation, by a decision of 31 March 1995, which was made enforceable on the same day, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 30 June 1995.
On 14 June 1995 the applicant company served notice on the tenant requiring her to vacate the premises.
On 11 July 1995 the applicant company served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 28 July 1995.
Police assistance was granted twice, and twice revoked on the grounds of the tenant's low income and her committal to find alternative premises, and this despite the complaints which the applicant company addressed to the competent committee of tenants and landlords set up by Law no. 899, on 24 November 1995 and 19 January 1996. The bailiff's attempts to recover possession, on 27 July 1995, 23 October 1995 and 19 January 1996 were unsuccessful.
The eviction was enforced by the bailiff on 18 April 1996 with the assistance of the police.
B. Relevant domestic law
The relevant domestic law is described in the Immobiliare Saffi v. Italy judgment of 28 July 1999, to be published in the Court's official reports, §§ 18-35.


ITEMID: 001-5423
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: NIKISHINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Russian citizen, born in 1967 and residing in Lyubertsy. She is represented before the Court by Mr Richard Daniel, Mr Alain Garay and Mr Arthur Leontyev, lawyers practising respectively in Norfolk, Paris and St. Petersburg.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 July 1991 the applicant gave birth to a son Yevgeniy. The applicant and the father of the son lived together from July 1991 to May 1992 but were never married. The applicant suffered physical abuse by her partner which led to their separation in May 1992. It was agreed that the applicant would have custody of the child and that the child would visit his father at weekends.
In the summer of 1997 the applicant began to associate with the religious minority known as the Jehovah’s Witnesses and involved her son in its religious activities. Her former partner, being an Orthodox believer, turned to a public organisation called the Committee for Rescuing Youth from Totalitarian Sects and the Lyubertsy Custody Council, a State agency, with a view to obtaining custody of the child for himself.
On 9 March 1998 the father refused to return the child to the applicant following a weekend visit. The applicant complained to the police and on 16 March 1998 filed an application for legal custody with the Lyubertsy City Court (Люберецкий городской суд). On 19 March 1998 the applicant was notified that her former partner had already applied for custody and that the hearing of the case was scheduled to begin on 24 March 1998.
By judgment of 14 April 1998 the Lyubertsy City Court granted custody of the child to the father, ordered him not to prevent the applicant’s contacts with the child and dismissed the applicant’s counterclaim. In reaching its decision the City Court took into account, inter alia, a report submitted by the Committee for Rescuing Youth from Totalitarian Sects and prepared by the researchers of the Russian Academy of Education, which described the Jehovah’s Witnesses organisation as a destructive and totalitarian sect whose activity presents a serious danger for society. It found that the applicant’s affiliation with the organisation had a harmful effect on the health and development of the child.

On 12 July 1998 the Judicial Chamber for Civil Cases of the Moscow Regional Court (судебная коллегия по гражданским делам Московского областного суда) upheld the judgment of the first instance court and dismissed the applicant’s appeal in cassation. On 17 November 1998 the applicant requested the Chairman of the Moscow Regional Court to order a review of her case. By letter of 8 February 1999 the Regional Court rejected the applicant’s request.
On 23 February 1999 the applicant filed an application with the Lyublino District Court of Moscow (Люблинский районный суд г. Москвы) - a court with jurisdiction over the father’s area of residence - to define and extend the contacts with her son, whom she saw 2 hours a week in the presence of the father. On 31 March 1999 the Moscow Regional Public Prosecutor refused the applicant’s request to reconsider her case.
On 17 May 1999 the applicant filed a petition with the Supreme Court of Russia requesting its officials to lodge a protest against the lower courts’ judgments. The request was granted by the Deputy Chairman of the Supreme Court, whose protest was then put before the Moscow Regional Court for consideration. By decision of 29 June 1999 the Presidium of the Moscow Regional Court rejected the protest brought by the Deputy Chairman of the Supreme Court and upheld the validity of the impugned judgments. The applicant was not present at the hearing before the Regional Court as she was only notified of it on 4 July 1999 by a letter postmarked 28 June 1999.
By decision of 22 July 1999 the Judicial Chamber for Civil Cases of the Supreme Court of Russia revoked, upon a protest by the Deputy Chairman of the Supreme Court, the judgments of the Lyubertsy City Court and the Moscow Regional Court, as well as the decision of the Presidium of the Moscow Regional Court. It sent the case back to the first instance court for new consideration. It found that in examining the applicant’s case the courts had infringed norms of substantive and procedural law. In particular, they had wrongly entered into a discussion of the nature of the Jehovah’s Witnesses organisation and failed adequately to examine all the relevant individual circumstances of the applicant’s case.
On 23 August 1999, following the re-opening of the custody proceedings, the case went back to the Lyubertsy City Court, which adjourned it until 20 September 1999. As the father failed to appear before the court on that date, the hearing was further postponed until 22 November 1999. On 5 October 1999 the Lyublino District Court, where the applicant’s request for defined and extended contact stood adjourned, ordered the case to be remitted to the Lyubertsy City Court for examination jointly with the custody issue.
On 22 November 1999 the Lyubertsy City Court held a hearing in which it refused the applicant’s request for the return of the child pending determination of the long term future as well as for an independent psychological report on his current condition. The hearing scheduled for 24 January 2000 was adjourned due to the absence of the father. On 14 February 2000 the City Court held a further hearing.
On 13 March 2000 the applicant and the father concluded a friendly settlement, renouncing fully their reciprocal claims before the Lyubertsy City Court concerning the custody of their child. The applicant also withdrew her claims previously presented to the Lyublino District Court regarding the definition and extension of contacts with her son.
According to the settlement, the child would reside with his father and the mother would have the child at weekends. In agreement with the father, the mother can meet with the child in the evening on weekdays and take him with her on school holidays. It was further agreed that the child could not be drawn into religious associations against his will and without the consent of his parents.
By an order issued on the same day, the Lyubertsy City Court approved the settlement and terminated the proceedings.