ITEMID: 001-112570
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SHAPOVALOV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations;Determination (civil));No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1981 and lives in Kherson, Ukraine.
6. The applicant is a journalist and human rights activist. Since April 2003 he has been a member of the Kherson Regional Branch of the Ukrainian NGO “The Committee of Voters of Ukraine” (hereinafter “CVU”) (Херсонська обласна організація всеукраїнської громадської організації «Комітет виборців України») and a reporter for the regional newspaper “Vilnyy vybir” («Вільний вибір»), which was founded by the Kherson Regional Branch of the CVU. Between 26 October 2004 and 10 January 2005 he was also a reporter for the CVU’s newspaper “Tochka zoru” («Точка зору»). The CVU’s main activities include, inter alia, election monitoring and raising voters’ legal awareness during election campaigns.
7. The Ukrainian presidential elections in 2004 were held on two rounds, on 31 October and 21 November 2004.
8. After the end of the second-round voting of 21 November 2004 mass protests were carried out. The elections were claimed to be marked by massive corruption, voter intimidation and electoral fraud. The protests succeeded in that the results of the original run-off were annulled, and a revote was organised on 26 December 2004.
9. The protests and other political events that took place in Ukraine from late November 2004 to January 2005 were called the Orange Revolution.
10. During the Ukrainian presidential elections in 2004 the applicant covered meetings and decisions of Territorial Election Commission no. 186 (hereinafter “the TEC”) (територіальна виборча комісія).
11. According to the applicant, at 2 p.m. on 31 October 2004, the day of first-round voting in the presidential elections, he requested R., the TEC’s secretary, and B., the TEC’s Head, to provide him with a copy of the TEC’s decision no. P-12-4, adopted earlier on the same day, concerning the possibility for district electoral commissions to make changes to the lists of voters without the approval of the TEC. According to the applicant, such a decision was unlawful. Later, the applicant asked for the voting results for each polling station and for copies of the minutes of the TEC’s meetings of 31 October 2004.
12. As the applicant was not provided with the information requested, on the same day at 5 p.m. he submitted a written request to the Head of the TEC. In reply, he was informed that decision no. P-12-4 had been posted on the information stand and that by 4 p.m. 39.1% of voters had voted. According to the applicant, his request for the TEC meeting minutes was ignored. However, according to explanations given by R. to a prosecutor (see paragraph 20), the minutes of the TEC meetings of 31 October and 1 November 2004 had also been displayed on the information stand.
13. That same evening, at around 8 p.m., the applicant was prevented from entering the TEC building to attend its meeting. According to the applicant, he entered the TEC premises half an hour later. It is unclear whether a TEC meeting was actually held at that time and, if so, whether the applicant was finally able to attend.
14. On 5 November 2004 the applicant complained to the Head of the TEC, inter alia, about not letting him into the TEC’s premises, and requested copies of the TEC meeting minutes of 31 October and 1 November 2004.
15. On 10 November 2004 the TEC adopted a decision to disregard the applicant’s complaint.
16. On 21 November 2004, the day of second-round voting, the applicant requested to be provided with the TEC’s decision no. 1-116 of 17 November 2004 allowing the police to be present in polling stations. The applicant stated that he had been shown this decision by the police at one of the polling stations. According to the applicant, his request was ignored. No copy of such a request has been submitted by the applicant.
17. That same evening the TEC decided not to allow the applicant to attend its meetings as he interfered with its work. According to the applicant, that decision was adopted after he had asked the Head of the TEC what the legal basis for one of her decisions adopted at the meeting was. The applicant later tried to enter the TEC premises but was stopped by Z., a TEC member. This was witnessed by Bi., a journalist.
18. The applicant later requested a copy of the minutes of the TEC meeting. In reply he was told that the minutes were posted on the TEC’s information stand.
19. On 15 May 2006 the Komsomolskyy District Prosecutor’s Office rejected the applicant’s complaint to institute criminal proceedings against TEC members for obstructing the lawful professional activities of journalists (Article 171 of the Criminal Code of Ukraine).
20. The prosecutor questioned R., the secretary of the TEC, who explained that all the material requested by the applicant on 31 October 2004 had been posted on the information stand on the TEC’s premises on the same day or the next day. It was also noted that the Presidential Elections Act did not provide for the possibility of receiving information about detailed voting results for each polling station. R. also submitted that the applicant “had shouted out loud remarks about ‘wrong decisions’ of the TEC and had wandered round the TEC’s premises, hindering its work”.
21. The Head of the TEC, B., explained that on 21 November 2004 the applicant “had behaved inappropriately and hindered the TEC in its work”.
22. K., another TEC member, submitted that the applicant “had behaved inappropriately and physically hindered the TEC’s work”. This was also confirmed by Z., another TEC member. K. also stated that the applicant had threatened her and R. with physical reprisals and this fact had been documented.
23. Bi., a journalist, testified that she had seen the applicant being prevented from entering the TEC’s premises on 22 November 2004 between 1 and 2 a.m.
24. Ko., an election observer, submitted that the applicant was requested to leave the TEC meeting after he had asked what the documents on and under the table and in the drawers in the meeting room were. It was decided to exclude him from the meeting for “making remarks from the floor”.
25. On 20 December 2004 the applicant instituted proceedings in the Suvorovskiy District Court of Kherson, challenging the TEC’s refusals to give him copies of its decisions and to allow him to attend its meetings. He also complained about the failure to provide him with accurate information in a timely manner. In particular, the applicant complained that on 31 October 2004 he had not been provided with a copy of decision no. P124, with written information “about voting results for each polling station in the constituency”, or with the minutes of the TEC’s meetings of 31 October 2004, and that he had been prevented from entering the premises of the TEC on 31 October 2004. Further, on 21 November 2004 he was not provided with the TEC’s decision no. 1-116 of 17 November 2004, was not allowed to attend the TEC’s meeting of 21 November 2004 and was not provided with the minutes of that meeting.
26. The applicant lodged his complaint under Chapter 31-A of the Code of Civil Procedure of Ukraine (“the CCP”), which sets out the rules for lodging complaints against decisions, acts or omissions of State bodies.
27. On 3 March 2005 the court held that the applicant’s complaint should have been lodged under Chapter 30-B of the CCP and under the Presidential Elections Act 1999 (“the Act”). The court further considered that because (i) the elections had already ended, (ii) the applicant had lodged his complaint about the events of 30 October – 2 December 2004 only on 20 December 2004, and (iii) the applicant had sought the consideration of his complaint under Chapter 31-A, the proceedings should be terminated.
28. On 17 May 2005 the Kherson Regional Court of Appeal upheld the above-mentioned decision. It stated in particular that:
“... the subject of the complaint in the present case is limited to decisions and actions of the TEC and officials during the elections between 30 October and 2 December 2004. The examination of election-related complaints is regulated by the provisions of the Presidential Elections Act, according to which a journalist cannot lodge such complaints. By the date of the court decision the elections were already over. As it was not possible to examine the applicant’s complaint under Chapter 31-A of the Civil Procedure Code, the first-instance court lawfully terminated the proceedings in the case”.
29. According to the applicant, he received a copy of this decision on 30 May 2005.
30. On 25 September 2006 the Higher Administrative Court of Ukraine rejected the applicant’s appeal, as neither the Act nor Chapter 30-B of the CCP provided for a cassation appeal against a court decision concerning electoral matters.
31. According to the applicant, he received threats from unknown persons. He requested that the police protect him. On 10 January, 15 April and 16 September 2005 the Suvorovskyy District Prosecutor’s Office refused to institute criminal proceedings following the applicant’s allegations that he had been persecuted.
32. The applicant further complained of alleged violations of his rights to various state authorities, including the Ukrainian Parliamentary Commissioner for Human Rights. He subsequently instituted court proceedings against the Commissioner and several members of her Secretariat for failure to answer his complaints, but was unsuccessful in those proceedings.
33. According to Chapter 31-A of the Code of Civil Procedure of Ukraine, it is possible to challenge the decisions, actions or omissions of any State agency or local self-government body in court, as well as those of any enterprise, establishment, association of citizens or other legal entity, or their officials or administrators.
34. According to Chapter 30-B of the Code, complaints against decisions, acts or omissions of a territorial election commission are examined by the Supreme Court of the Autonomous Republic of Crimea, by the relevant regional court, or by the Kyiv and Sevastopol City Courts, as appropriate. Such complaints may be lodged by the candidates, their proxies, representatives of political parties or blocs, or by at least twenty voters.
35. Section 12 of the Act establishes that the subjects of elections are: (i) the voters; (ii) the election commissions formed according to the Act and the Central Election Commission Act; (iii) candidates for the post of the President of Ukraine registered in accordance with the procedure established by the Act; (iv) the parties or blocs who have nominated candidates for the post of President of Ukraine; and (v) the authorised representatives, proxies and official observers of any of the parties or blocs involved in the election process, or candidates for the post of President of Ukraine.
36. Section 104 of the Act provides that a subject of the election process shall have the right to file a complaint against the decisions, actions or inaction of an election commission or an individual member of an election commission. Complaints against the decisions, actions or inaction of territorial election commissions or their members must be filed with the Central Election Commission or with a court of appeal situated in the area covered by the relevant territorial election commission.
37. The relevant Articles of the Information Act provide as follows:
Participants in informational relationship are citizens, legal persons or the state who obtain the rights and obligations stipulated by law in process of information activity.
Principal participants in this relationship are authors, consumers, promoters, keepers (guardians) of information
Participants of informational relationship have the right to receive (produce, obtain), use, disseminate and store information in any form with the use of any means, except for the cases, stipulated by the law.
Every participant of informational relationship to secure his rights, freedoms and legal interests has the right to obtain information on:
activity of governmental authorities;
activity of people’s deputies;
activity of local and regional governmental authorities and local administration...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-96415
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MP KINESKOP v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. On 31 July 1998 the applicant company, together with three other plaintiffs, Mr Kesyan, Ms Gorovaya and Ms Makarova, all represented by the same lawyer, filed an action against the Rostov Regional Department of the Federal Treasury and Mrs O. seeking compensation for pecuniary and non-pecuniary damage on account of the unlawful seizure of goods.
VIOLATED_ARTICLES: 6


ITEMID: 001-103731
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: SOURLAS v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Flogaitis;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen;Spyridon Flogaitis
TEXT: The applicant, Mr Pavlos Sourlas, is a Greek national who was born in 1945 and lives in Athens. He is a professor of law at the University of Athens and is represented before the Court by Mr N. Alivizatos and Mr E. Malios, lawyers practising in Athens. The Greek Government (“the Government”) are represented by their deputy Agents, Mr G. Kanellopoulos, Adviser, State Legal Council, and Mr I. Bakopoulos, Legal Assistant, State Legal Council.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1989 the applicant bought an apartment of a total surface area of 168.37 square metres, situated on the fifth floor of a block of flats on Mitsaion Street, in the centre of Athens. Mitsaion Street is just off the pedestrian precinct that surrounds the Acropolis and serves as the main access to the broader archaeological site.
On 28 January 1997 the block of flats, including the applicant’s apartment, was expropriated by a joint ministerial decision, for the purpose of building the new Acropolis Museum.
On 23 February 2001 the Minister of Finance issued a decision revaluing the “objective value” of the properties in the zone where the applicant’s flat was situated, setting it at 360,000 drachmas (around 1,056 euros) per square metre (decision no. 1015544/770/00/ΤΥΔ/23-2-2001).
On 16 May 2001 the applicant applied to the Supreme Administrative Court for judicial review of the above-mentioned ministerial decision, claiming that the amount of the objective value was extremely low.
On 29 May 2002 the Supreme Administrative Court annulled the ministerial decision on the grounds that it had not taken into consideration the specific features of the area and that it was not clear from the case file that the decision had a solid basis and sufficient justification (judgment no. 1585/2002).
On 28 February 2002 the Greek State and the Archaeological Receipts Fund (Ταμείο Αρχαιολογικών Πόρων και Απαλλοτριώσεων) lodged an action with the Athens Court of First Instance for the assessment of a provisional unit amount for compensation per cubic metre. They submitted that the figure of 1,320.62 euros (EUR) per cubic metre corresponded to the value of the applicant’s apartment. In his submissions, the applicant proposed the sum of EUR 2,050 per cubic metre.
On 7 June 2002 the case was heard before the Athens Court of First Instance. On 19 September 2002 the court delivered its judgment, assessing the provisional unit amount for compensation at EUR 1,400 per cubic metre (judgment no. 1885/2002). After taking into consideration a technical report drawn up by an architect, K.C., and two valuations, drafted by B.P and P.K. and submitted by the parties, the court stated that
“... The building is situated in a privileged location near the centre of Athens and has an excellent view of the Acropolis ... It is a fact that the building in issue, like all the buildings that have been expropriated for the construction of the new Acropolis Museum, is in a prime location on account of its proximity to the historical centre of the city of Athens, [where] real estate demand exceeds existing supply.”
The court also relied on comparative data, such as the compensation awarded for the expropriation of two adjacent and three neighbouring buildings and the price obtained from the sale of three neighbouring buildings.
On 26 February 2003 the Greek State and the Archaeological Receipts Fund lodged an action with the Athens Court of Appeal for the assessment of the final unit amount for compensation, claiming that the amounts awarded by judgment no. 1885/2002 were excessive. With regard to the applicant’s apartment, they claimed that its real value was estimated at EUR 1,320.62 per square metre (corresponding approximately to EUR 412.7 per cubic metre).
In reply, the applicant alleged abuse of process by the State since it was proposing an amount considerably lower than the one it had proposed before the Court of First Instance. He maintained, further, that all the relevant reports had been drawn up by the administrative authorities using cubic metres as the unit of measurement of the expropriated apartments, so the calculation ought to have been made in cubic metres. Lastly, the applicant contended that the cadastral plan showing the apartments that were to be expropriated expressed the volume in cubic metres and not the surface area in square metres. Accordingly, the applicant argued that were the Court of Appeal to estimate the value of his apartment in square metres, the administrative authority concerned would be unable to calculate and pay adequate compensation.
On 27 May 2003 the case was heard before the Athens Court of Appeal. On 10 September 2003 that court delivered its judgment. After having referred to the testimonies of the witnesses who gave evidence before the court and those of the witnesses who had appeared before the Athens Court of First Instance, to three reports drawn up by qualified surveyors, to the technical report drawn up by the architect K.C. and to two valuations submitted by B.P and P.K., the court considered that the following was proven:
“... Mitsaion Street is part of the historical centre of Athens and is included in the “Unification of Archaelogical Sites of Athens” programme. It is tree-lined, with zero traffic and no noise ... The wider area, defined as a traditional zone of the city of Athens, is characterised by the co-existence of older, protected buildings and more modern dwellings with a view of the Acropolis, such as the fifth and sixth floors of the building in issue. In the technical report, dated 3 July 2002, K.C. certified that the interiors of the apartments are luxurious and in very good condition ...
The objective value of the building amounts to 360,000 drachmas (around EUR 1,056) per square metre according to ministerial decision no. 1015544/770/00/ΤΥΔ/23-2-2001 revaluing the “objective value” of the properties in the zone where the applicant’s flat is situated [decision of 23 February 2001]. However, following an application for judicial review submitted before the Supreme Administrative Court, the latter annulled the above ministerial decision on the grounds that it did not state that the specificities of the zone had been taken into consideration (...)
As far as the market value is concerned, according to the experts appointed by the expropriated party ... it varies between EUR 4,500 and 7,000 per square metre. According to their technical expertise the value of the ground floor amounted to EUR 1,050 per cubic metre, to EUR 1,700 per cubic metre as regards the first floor, to EUR 1,870 per cubic metre as regards the second floor and to EUR 1,050 per cubic metre as regards the third floor. The witness called by the expropriating party referred only to the objective value of the building, which amounted to EUR 1,050 per square metre; as far as the market value was concerned he merely noted that the buildings situated in D.Areopagitou Street were in a more privileged location than the ones in Mitsaion Street ... whereas another witness called by [the expropriating party] declared during the proceedings for the assessment of the provisional unit amount for compensation that he agreed with the market value proposed by the State ... The Athens Court of First Instance assessed the provisional unit amount for compensation ... for the fifth floor at EUR 1,400 per cubic metre ...
As far as the market value of the apartments is concerned, it should be noted, however, that the fact that the amounts assessed by the Athens Court of First Instance were only 5% higher than the amounts proposed by the State and the Archaeological Receipts Fund was obviously because they [the State and the Archaeological Receipts Fund] had requested, clearly in error (από προφανή παραδρομή), the assessment in cubic metres, influenced by the measurements used in the cadastral report, which gives the volume [of the apartments] in cubic metres ...
In support of their arguments the parties referred to and submitted the following evidence and comparative information.
The State submitted judgment no. 3195/2001 of the Athens Court of Appeal determining the final unit amount at ... 50,000 drachmas [approximately EUR 146] per square metre for the building situated at 7γδ Hatzihristou Street; judgment no. 2558/2001 of the same court determining the final unit amount of the building situated at 5 Hatzihristou Street at 400,000 drachmas [approximately EUR 1,173] for the third floor; judgments nos. 861/2000 and 1130/2000 of Athens First Instance Court ... determining the unit amount of two buildings situated at 55 and 76 Hatzihristou Street respectively at ... 85,000 drachmas [approximately EUR 248] for the ground floor and 60,000 drachmas [approximately EUR 176] per square metre ... All the foregoing comparative data concern less privileged properties than the building in issue, because Hatzihristou Street is noisier than Mitsaion Street and, moreover, does not have a direct view of the Acropolis. [The State also submitted] judgment no. 3170/2001 of the Athens Court of Appeal determining the final unit price for a building situated in Mitsaion Street at 80,000 drachmas [approximately EUR 234] per square metre. This comparative data concerns a less privileged dwelling than the building in issue ... [The State also submitted] judgment no. 1582/2002 of the Athens Court of Appeal which had determined the final unit price of a building situated in 14 Mitsaion Street at EUR 587 per square metre. This comparative element concerns a less privileged building than the one in issue because it does not have a direct view of the Acropolis and Lycabettus hill ... [The State also produced] judgment no. 3963/2002 of the Athens Court of Appeal determining the final unit amount for a building situated at 15 Dionysiou Areopagitou Street at ... 650,000 drachmas [approximately EUR 1,907] per square metre for the third floor. This comparative data concerns a more privileged building than the one in issue as it is related to one of the most expensive, if not the most expensive, streets in Athens with an “objective value” of 800,000 drachmas [approximately EUR 2,347] per square metre, whereas the objective value of Mitsaion Street amounts to approximately 360,000 drachmas [EUR 1,056] per square metre ... [The State also submitted] judgments nos. 1633/2001 and 1113/2002 of the First Instance Court of Athens which had determined the provisional unit price of buildings situated in 15 and 5-5 α Hatzihristou Street at (...) EUR 733 per cubic metre as regards the ground floor, EUR 880 per cubic metre as regards the first floor and EUR 1 027 per cubic metre as regards the second floor. These judgments do not constitute solid evidence as the prices included are not definitive.
[The expropriated party] submitted judgment no. 8747/2001 of the Athens Court of Appeal determining the final unit amount of a building situated in 12 Mitsaion Street at ... EUR 1,526 per square metre. This comparative data concerns a less privileged building than the one in issue ... [The expropriated party also produced] a sale contract ... of a building ... located at the junction of Dionysiou Areopagitou Street and Mitsaion Street, ... for the price of 1,130,000 drachmas [approximately EUR 3,316] per square metre, namely, 4.5 times higher than the “objective value...”. Finally, [the expropriated party] submitted price values taken from small ads published in the newspaper “I Kathimerini”, namely (...) 440,200 drachmas (EUR 1,334) per cubic metre for an apartment of 110 square metres located in Mitsaion Street. These prices may only be indicative of the real value of the properties concerned as it is not certain that they will constitute the final price agreed upon by the contracting parties”.
The Court of Appeal concluded, having regard to the aforementioned evidence that the real value of the applicant’s apartment amounted to EUR 600 per cubic metre (judgment no. 6821/2003).
On 7 September 2004 the applicant appealed to the Court of Cassation on points of law. The applicant alleged, inter alia, that the Athens Court of Appeal had taken into consideration the ministerial decision revaluing the “objective value” of the properties in the zone where his flat was situated even though that decision had been annulled by the Supreme Administrative Court’s judgment no. 1585/2002. He claimed, further, that the Court of Appeal had distorted the content of judgment no. 1885/2002 of the Court of First Instance, considering that the assessment in cubic metres had been made in error. According to the applicant, that consideration allowed the Court of Appeal to attach less importance to the assessment made by the Court of First Instance and to avoid giving sufficient and solid reasons for the large divergence from its findings.
On 25 April 2007 the Court of Cassation delivered its judgment, dismissing the applicant’s appeal (judgment no. 877/2007). It stated, inter alia, that
“In the present case the Court of Appeal considered that ... a report drawn up by the evaluation committee under section 15 of Law no. 2882/2001 did not need to be submitted since the expropriated property was included in the “objective value determination” system; furthermore, it took into consideration the objective value of the expropriated building, which amounted to 360,000 drachmas per square metre, as had been determined by ministerial decision no. 1015544/770/00/ΤΥΔ/23-2-2001, even though that decision had been annulled by judgment no. 1585/2002 of the Supreme Administrative Court. These considerations were sufficiently and clearly reasoned and contained no contradictions ... [the judgment in issue] did not infringe Article 17 of the Constitution or Article 6 para. 1 of the Convention, and did not deal with the latter at all.
...
[T]he Court of Appeal did not alter the content of that document, since it copied into its judgment in issue ... the operative part of the Athens Court of First Instance’s judgment no. 1885/2002. Furthermore, it is true that it provides some explanation (which was not necessary) and notes that: “As far as the market value of the apartments is concerned, it should be noted, however, that the fact that the amounts assessed by the Athens Court of First Instance were only 5% higher than the amounts proposed by the State and the Archaeological Receipts Fund was obviously due to the fact that they [the State and the Archaeological Receipts Fund] had requested, clearly in error (από προφανή παραδρομή), the assessment in cubic metres”; however, this does not mean that the Court of Appeal misinterpreted the operative part of the aforementioned judgment or distorted its content by replacing the unit for measuring volume (cubic metres) with the unit for measuring surface area (square metres).
...
The request before the Court of Appeal is autonomous and is not a remedy against the judgment delivered by the Court of First Instance. Furthermore, in the above-mentioned explanatory note, the Court of Appeal considered that it had been “clearly in error” that the State had requested, before the Court of First Instance, the assessment of a provisional unit amount for compensation per cubic metre, thus Article 116 [abuse of process by the parties] of the Code of Penal Procedure was not infringed.”
The relevant parts of the Greek Constitution provide as follows:
“1. Property shall be protected by the State; rights deriving therefrom, however, may not be exercised contrary to the public interest.
2. No one may be deprived of his property unless it is for the public benefit, which must be duly proven in the circumstances and manner laid down by law and only after full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional determination of compensation. In cases in which an application is made for the immediate final determination of compensation, regard shall be had to the value of the expropriated property at the time of the court hearing of the application.
3. Any change in the value of the expropriated property occurring after and solely as a result of publication of the decision to expropriate shall not be taken into account.
4. Compensation shall in all cases be determined by the civil courts. A court may even make a provisional assessment of compensation after the person entitled has been heard or his attendance requested and, at its discretion, require such person to furnish an appropriate guarantee before receiving the compensation, in accordance with the law...
...”
Article 3 § 1 (b) of Law no. 2882/2001 provides that the cadastral plan shall contain the surface area of each expropriated property, as well as all the main features of the constructions and other components. Moreover, Law no. 2882/2001 provides that after an expropriation order has been issued, a three-member committee composed of civil servants shall estimate the value of the expropriated properties and the amounts of compensation due. The report drawn up by the committee must be submitted to the courts having jurisdiction and taken into consideration as an advisory opinion. However, such a report is not submitted in cases where an “objective value determination” system (σύστημα αντικειμενικού προσδιορισμού) is in force. According to that system, taxable values for the purpose of, inter alia, calculating the compensation to be paid in the event of an expropriation, are calculated on the basis of a unit amount fixed by ministerial decision.
In particular, Law no. 2882/2001 provides in so far as relevant:
“1. Compensation must be made in full and correspond to the value of the expropriated property on the date of the hearing on the provisional assessment of the compensation, or, in case of an application for final assessment, on the date of the relevant hearing.
...
When determining the value of the expropriated property, the criterion to be taken into consideration is the value of properties adjacent and similar to the expropriated one at the relevant time. That value is determined mainly on the basis of the “objective value”, the prices stipulated in ownership transfer deeds concluded at the time of the expropriation order and the income from the expropriated property.”
“1. After an expropriation order is issued, a committee shall assess the value of the expropriated property and the amount of any special compensation due under section 13(4).
...
3. The committee shall be convened by its chairman and, after verifying the data submitted, shall draw up within thirty days of notification of the order appointing an expert, a report describing in detail the situation of the expropriated property and its components, as well as any special features, and assessing in detail its value according to section 13(1) and (2), as well as the amount of any special compensation due under section 13(4). ... The report shall then be submitted ... to the court as part of the proceedings for the assessment of the compensation and shall be taken into consideration as an advisory opinion.
...
6. The foregoing assessment shall not take place with regard to properties which are included in the system of objective assessment of their value under the provisions in force. In this case, the relevant service within the Ministry of Finance shall draw up a report determining the objective value of the expropriated property.”
“1. The Court of First Instance in the area where the expropriated property, or the largest part of it is situated, shall have jurisdiction to assess provisionally the amount of compensation due.
...”
“1. The court which shall carry out the final assessment of the compensation is the Court of Appeal in the area of jurisdiction where the expropriated property or the largest part of it is situated.
...
8. The Court of Appeal shall, after freely examining the evidence produced by the parties, deliver a final judgment within thirty days of the final hearing of the application.
...”
Article 24 of Legislative Decree no. 797/1971 provides in so far as relevant:
“...
3. The verification, correction, completion or reconstruction of the cadastre and the cadastral plan shall be made on the basis of the title deeds and ownership records or on the basis of the boundaries or boundary marks indicated by the municipal authority or the rural police.
The land surveyor, having regard to the decision ordering the compulsory expropriation, the cadastral plan, the cadastral register and all the data produced by the parties, shall proceed, after inviting the parties to attend if necessary, to an inspection of the title deeds and shall draw up in three copies and within the set deadline:
a) the cadastral plan of the expropriated land comprising the separate properties and their special features as well as any contestation of rights over these properties, b) the relevant cadastral register including the serial number of the property, the name of each owner, the total surface area of the property, the volume of the main buildings, listed according to the nature of construction and their quality, any other building, listed according to type and category, and any other information that may be useful in assessing the price per unit of the expropriated properties.
...”


ITEMID: 001-91780
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: RANINEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Janne Raninen, is a Finnish national who was born in 1977 and lives in Helsinki. He was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
An acquaintance of the applicant disappeared in October 2003 while visiting the applicant in Helsinki. On 21 November 2003 the police questioned the applicant, as a witness, about this disappearance.
On 21 January 2004 the applicant was apprehended and arrested on suspicion of murdering his acquaintance. On 21 and 22 January 2004 he was interrogated by the police. At the latter interrogation the applicant's counsel was present for the first time.
On 24 January 2004 the District Court (käräjäoikeus, tingsrätten) ordered in camera that the applicant be detained and that the deadline for bringing the charges was 17 June 2004. This decision was not subject to appeal.
On 29 January 2004, opposing the detention, the applicant lodged, in accordance with Chapter 1, section 27, subsection 2, of the Coercive Measures Act, a complaint (kantelu, klagan) with the Appeal Court (hovioikeus, hovrätten). He claimed that there was no probable cause to believe that his acquaintance was dead, that he had been killed or that the applicant had killed him either acting alone or in concert with others. He also referred to Article 5 § 4 of the Convention. On 5 February 2004 the Appeal Court found that the complaint did not give cause to lift the applicant's detention.
By application dated 26 February 2004 the applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen), repeating the arguments already put forward before the Appeal Court. On 20 April 2004 the court refused leave to appeal.
On 3 June 2004, having heard that the public prosecutor was planning to request an extension of the time-limit for bringing the charges, the applicant's counsel informed the police that the applicant would oppose this and that he would also request a re-examination of his detention. For this reason, the counsel requested, on the basis of the Openness of Government Activities Act (laki viranomaisten toiminnan julkisuudesta, lag om offentlighet i myndigheternas verksamhet; Act no. 621/1999), that the following documents be submitted to him by the police in good time before the re-examination of the applicant's detention:
In general, the applicant's counsel wished to obtain clarification concerning the matters which had arisen in the course of the investigation, as referred to in the Criminal Investigations Act (esitutkintalaki, förundersökningslag; Act no. 449/1987). He wished to obtain for example the preliminary introduction to the forthcoming investigation records, if such an introduction had been drafted.
On 11 June 2004 the applicant's counsel received from the police the investigation records and the records drawn up of the investigation conducted by the police dogs. He was told that the transcriptions of the wiretapping and of the monitoring of telecommunications were included in the investigation records.
On 17 June 2004 the chief of police confirmed this by a decision which was subject to appeal. According to the said decision, the applicant was denied access to the other documents on the basis of sections 11 and 24, subsection 3, of the Openness of Government Activities Act as the investigation was pending and access to such documents would have compromised the investigation of the matter. In addition, the applicant was denied access, on the basis of section 11 of the Criminal Investigations Act, to an overall report on the state of the criminal investigation on the same grounds. Finally, according to the decision, there were no documents speaking against the applicant's guilt.
On 15 June 2004 the public prosecutor requested an extension of the time-limit for bringing the charges. In this connection the applicant's counsel found out that another person who was under suspicion for the same crime had been detained by the same District Court on 13 June 2004. The applicant's counsel requested copies of the detention order and the application for it.
On 16 June 2004 the public prosecutor denied access to these documents by referring to the fact that the District Court had examined the matter in camera. Moreover, the District Court had declared the application for detention and its appendices, and most parts of the detention order confidential. Due to the denial, these documents were consequently withdrawn, in the applicant's case, from the documents submitted to the court by the public prosecutor. Moreover, the prosecutor stated that the police investigation of the matter was still pending and the matter had not yet been referred to the prosecutor for the consideration of charges. Consequently, any information concerning the investigation was to be given by the police, not by the prosecutor. The applicant's counsel was given directions on how to appeal, should the public prosecutor's refusal be considered as a decision against which an appeal lay.
On 16 June 2004 the applicant requested the District Court, when examining the request for extension of the time-limit, also to re-examine the matter of his detention.
On 17 June 2004 the matter was examined before the District Court. The applicant opposed the extension of the time-limit and claimed that the public prosecutor and the court had had greater access to the files than he. He denied the existence of a probable cause. The District Court decided to extend the time-limit for bringing the charges until 30 September 2004 and to hold the applicant in pre-trial detention. By way of reasoning, it stated that, according to the information received from the police and the public prosecutor, nothing in the criminal investigation had lessened the degree of probable cause which had formed the basis of the applicant's initial detention. This decision was not subject to appeal.
The applicant was subsequently convicted of murder.
According to Chapter 1, section 22, subsections 1 and 3, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslag; Act no. 450/1987, as amended by Act no. 646/2003 entering into force on 1 January 2004), if a suspect of a crime has been detained, the court deciding on the charges as the first instance must re-examine the detention matter promptly, and at the latest within four days from the request, if a detainee makes such a request. The issue of detention does not need to be re-examined earlier than two weeks after the previous examination. Moreover, when re-examining the detention matter, the detainee or his or her counsel must be provided with an opportunity to be heard, unless it is deemed unnecessary. A detainee must be heard in person if he or she so requests or if the court deems it necessary.
Chapter 1, section 24, of the same Act provides that a court must release a detainee immediately if it considers that the conditions for the detention no longer exist.
Under Chapter 1, section 27, subsections 1 and 2, of the same Act, there is no ordinary appeal against a decision given in a detention matter but it is nevertheless possible for a detainee to challenge the detention by lodging a complaint (kantelu, klagan) with the competent court.
The Turku Appeal Court released, for example, in the case KKO 2000:115, a detainee who had lodged a complaint, as the conditions for the detention no longer existed.


ITEMID: 001-22159
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: EINHORN v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: 1. The applicant is an American national born in 1940. He is represented before the Court by Ms C. Waquet, of the Conseil d’Etat and Court of Cassation Bar.
2. The applicant formerly lived in Pennsylvania (United States of America), a State in which the death penalty was reintroduced by a statute of 13 September 1978.
He was arrested there on 28 March 1979 after the mummified body of his girlfriend, who had disappeared in 1977, was discovered at his home. On 3 April 1979 he was released on bail, and on 17 April 1979 an information was filed against him. In 1981, while the proceedings were taking their course, the applicant left the United States.
A trial was held in absentia, and on 29 September 1993 the Philadelphia Court of Common Pleas found the applicant guilty of first-degree murder and sentenced him to life imprisonment. The applicant’s lawyer applied to have the conviction reviewed but without success. He subsequently appealed to the Pennsylvania Superior Court, which declared the appeal inadmissible on the ground that the applicant had not appeared in court; a petition to the Pennsylvania Supreme Court for review of that decision was dismissed on the same ground.
3. The applicant was placed on Interpol’s wanted list and was tracked down in France, where he was arrested in June 1997. On 12 June 1997 the United States Government requested the French Government to extradite him so that he could serve the sentence imposed on him in absentia. He was taken into custody pending a ruling on his extradition.
4. In a judgment of 4 December 1997 the Indictment Division of the Bordeaux Court of Appeal ruled against extradition and ordered the applicant’s release. Basing its judgment on Article 6 §§ 1 and 3 (c), the Indictment Division held, in particular, that the applicant had not unequivocally waived the right to defend himself in person or through legal assistance of his own choosing, that he had been tried and convicted in absentia without being able to obtain from a court which had heard him a fresh determination of the merits of the charge in respect of both law and fact, and that the extradition treaty between France and the United States did not entail any obligation to extradite where the proceedings in issue contravened French public policy or the requirements of the European Convention on Human Rights. The French authorities did not proceed with the extradition.
5. By a statute which came into force on 27 January 1998 the Pennsylvania legislature made a change to the relevant procedure so that persons convicted in absentia could, in certain cases, be granted a retrial.
In a diplomatic note of 2 July 1998 the United States Government submitted a further request for the applicant’s extradition, stating that he would be granted a new trial if he so requested and that the death penalty would not be sought, imposed or executed. The applicant was taken into custody pending a ruling on his extradition.
6. On 18 February 1999 the Indictment Division of the Bordeaux Court of Appeal ruled in favour of the applicant’s extradition and ordered him to be released and placed under court supervision. The following conditions were attached to the Indictment Division’s ruling: the applicant was to be granted a new and fair trial, if he so requested, on returning to Pennsylvania, and to be able to avail himself of the remedies provided by the requesting State, and the death penalty was not to be sought and, if imposed, was not to be carried out. On 27 May 1999 the Court of Cassation dismissed an appeal on points of law against that ruling.
7. In a decree of 24 July 2000 the French Prime Minister granted the extradition on condition that, pursuant to the statute of 27 January 1998, the applicant was given a new and fair trial if he so requested on returning to Pennsylvania, and that the death penalty was not sought, imposed or carried out. The decree stated, inter alia:
“According to the assurances given by the District Attorney of Philadelphia County on behalf of the Commonwealth of Pennsylvania, Ira Samuel Einhorn will be retried, if he so requests, and will be able to avail himself of the remedies provided by the requesting State.
The death penalty may not be sought, imposed or executed in respect of Ira Samuel Einhorn.”
8. The applicant applied to the Prime Minister to reconsider his decision; that application was dismissed on 4 October 2000. On the same day he applied to the Conseil d’Etat to quash both decisions.
In support of his application, he argued in particular that the Commonwealth of Pennsylvania’s statute of 27 January 1998 contravened the principle of separation of powers enshrined in the Pennsylvania Constitution and that its constitutionality should normally be raised by the courts of their own motion or might be raised by the civil parties to the proceedings or by any citizen. That would be an obstacle to his being granted a new trial in conditions complying with Article 6 of the Convention. He further submitted that his extradition had been granted by the French Government on the basis of a specially passed law with retrospective effect (the statute of 27 January 1998), which had been enacted with the sole aim of influencing the judicial outcome of the extradition proceedings against him, thereby breaching his right to a fair trial. He added that in any event, in view of the “pressure of legal and media attention” which the case had generated in the United States and which a jury would be not have been able to avoid, he would not be retried in Pennsylvania in conditions satisfying the requirements of Article 6 of the Convention. He further maintained that his extradition would contravene Article 3 of the Convention in that he would, in any event, be likely to have to serve a full life sentence without any genuine prospect of remission or parole. In addition, he alleged that, in view of the fact that the victim’s body had been found after the death penalty had been restored in Pennsylvania, it was not to be excluded that he would be sentenced to death, especially as it had not been established that the death penalty could not be imposed by a court where it had not been sought by the prosecution; there were therefore substantial grounds for believing that he faced a real risk of being sentenced to death and hence of being exposed to the “death-row phenomenon”, so that his extradition would breach Article 3 of the Convention.
9. In a judgment of 12 July 2001 the Conseil d’Etat dismissed Mr Einhorn’s applications. With regard to the first of the above-mentioned grounds, the Conseil d’Etat held that it was not for it to rule whether enactments applicable within the territory of the requesting State were in conformity with that State’s Constitution; matters could only be otherwise if the impugned enactment had already been declared unconstitutional by means of a final decision in that State or if there had been “such serious irregularities [in its adoption] that it must be regarded as invalid”. With regard to the second ground, the Conseil d’Etat held that the statute of 27 January 1998 was “applicable in exactly the same manner to all persons tried and convicted in absentia who have fled to a foreign country which refuses to extradite them because they were convicted in absentia” and that the applicant had not furnished any information enabling it to assess whether there was any foundation for his statement that a retrial would not be fair on account of the circumstances in which the statute in issue had been enacted. With regard to the third ground, the Conseil d’Etat held that in any event, “the extradition of a person who faces a sentence of life imprisonment without any possibility of early release is not contrary to French public policy or Article 3 of the Convention”. The fourth ground was dismissed for the following reason:
“The extradition request ... relates to acts committed in September 1977, before the enactment ... of the statute of the Commonwealth of Pennsylvania in which the death penalty was introduced; the evidence shows that that statute cannot be applied to offences committed before it came into force.
Even supposing that ... the offence of which [the applicant] is accused might be regarded at a new trial as having been committed after the statute of 13 September 1978 came into force in view of the fact that the victim’s body was not discovered until 28 March 1979, the Government of the United States of America gave an assurance in its request of 2 July 1998 that if [the applicant’s] extradition was agreed to, the death penalty would not be sought, imposed or carried out. The District Attorney of Philadelphia County has twice given an undertaking that the death penalty will not be sought in respect of [the applicant]. In an affidavit of 23 June 1997 she gave a formal assurance that in the Commonwealth of Pennsylvania the death penalty could not be imposed if it had not been sought. Consequently, there is no basis for [the applicant’s] submission that, despite the conditions attached to the impugned order, his extradition had been granted without sufficient guarantees being offered and was therefore contrary to French public policy.”
On the same day, after the judgment had been delivered, the applicant cut his throat and slashed his left wrist.
On 17 July 2001 the Government produced to the Court a medical certificate dated 12 July 2001, which attested that the applicant’s state of health was compatible with his transfer to the United States.
10. On 19 July 2001 the Court lifted the interim measure it had indicated to the respondent Government under Rule 39 on 12 July 2001. The applicant was extradited to the United States on the same day.
11. The statute which came into force on 27 January 1998 (42 Pennsylvania Criminal Statutes (PaCS), section 9543(c)), provides:
“Extradition. – If the petitioner’s conviction and sentence resulted from a trial conducted in his absence, and if the petitioner has fled to a foreign country that refuses to extradite him because a trial in absentia was employed, the petitioner shall be entitled to the grant of a new trial if the refusing country agrees by virtue of this provision to return him, and if the petitioner upon such return to this jurisdiction so requests. This subsection shall apply notwithstanding any other law or judgment to the contrary.”
12. In an affidavit dated 23 June 1997 the District Attorney, Ms Abraham, gave the following undertaking:
“I, Lynne Abraham, District Attorney for the City and County of Philadelphia, Commonwealth of Pennsylvania, do hereby state that the death penalty has not been sought in this case at any time, nor can it be legally imposed in this case. The District Attorney’s Office will not seek the death penalty in any future action regarding this case, nor can it legally do so. Further, the Court cannot pronounce the death penalty in this case on its own motion under Pennsylvania law.”
Following the entry into force of the statute of 27 January 1998, Ms Abraham swore a further affidavit, on 10 June 1998, “in support of request for extradition from France”. The affidavit stated that it was “binding on the Commonwealth and [the District Attorney’s] Office” and that “the District Attorney’s Office now can, and does, give full assurances that Einhorn will receive a new trial at his request upon his return to Pennsylvania”. The District Attorney further stated: “The Philadelphia District Attorney’s Office will fully support Einhorn’s right to a new trial under this statute. Under United States law, which applies to the Commonwealth of Pennsylvania, this promise binds not only the present District Attorney, but all future District Attorneys and every prosecutor who may be responsible for the prosecution.”
The District Attorney added: “... under Pennsylvania law, it is impossible for a court to impose the death penalty for murders committed prior to the enactment of the death penalty statute on September 13, 1978. Because Einhorn murdered [the victim] in 1977, he is not subject to the death penalty as a matter of law”. She also stated the following:
“The United States Constitution prohibition against ex post facto laws in Article 1, Section 9, protects a person from the imposition of a penalty that was increased after he committed his criminal acts. The Supreme Court of the United States has explained that the ex post facto clause bars a legislature from retroactively altering the definition of crimes or increasing the punishment for criminal acts. Consequently, Pennsylvania cannot change its law to impose the death penalty for any murder prior to the enactment of the statute. Therefore, the statute applies only to murders committed after its enactment. The case of Commonwealth v. Truesdale, decided by the Pennsylvania Supreme Court on September 15, 1983, unequivocally prohibits imposition of the death penalty for murders which were committed before the passage of the death penalty statute on September 13, 1978. The opinion binds all Pennsylvania courts, District Attorneys and prosecutors regarding the imposition of the death penalty. ...
The death penalty has never been sought or imposed by the Commonwealth of Pennsylvania in this case. The District Attorney has submitted an affidavit that no death penalty can be imposed, nor will the death penalty be sought... Any representation that the death penalty is a possibility is false. Under United States law, which binds the Commonwealth of Pennsylvania, the District Attorney’s promise binds not only the present District Attorney, but all future District Attorneys and every prosecutor who may be responsible for the prosecution.”
13. In a diplomatic note of 2 July 1998 to the French Government, the United States embassy stated: “The new statute, 42 Pennsylvania Criminal Statutes (PACS) Section 9543 (c), enacted January 27, 1998, guarantees Ira Einhorn the right to a new trial for the murder of [the victim]”. It provided the following clarifications:
“Under the new statute, the Commonwealth of Pennsylvania, through its District Attorney, is now able to and does guarantee that Ira Einhorn will receive a second trial, with all attendant rights, if he were extradited from France and if he requested a new trial. Consequently, the U.S. Government provides its assurances that, if the Government of France extradites Ira Einhorn to the United States [in connection with the murder of the victim in 1977 in the] Commonwealth of Pennsylvania, Ira Einhorn will receive a new trial on the merits with all attendant rights.
In addition, the U.S. Government provides its assurances that if the Government of France extradites Ira Einhorn to the United States to stand trial for murder in the Commonwealth of Pennsylvania, the death penalty will not be sought, imposed or executed against Ira Einhorn for this offense. The sworn affidavit of District Attorney Lynne Abraham, dated June 10, 1998, and an earlier assurance by Abraham sworn June 23, 1997, affirms that under Pennsylvania law it is legally impossible for a prosecutor to seek or a court on its own motion to impose [the] death penalty for murders committed in Pennsylvania prior to September 13, 1978. The Pennsylvania Supreme Court decision, Commonwealth v. Truesdale, dated September 15, 1983, unequivocally prohibits the imposition of the death penalty for murders committed prior to the enactment of the Pennsylvania Death Penalty Statute on September 13, 1978. This decision binds all Pennsylvania courts, district attorneys and prosecutors regarding the imposition of the death penalty. ...”
Those assurances were reiterated in a diplomatic note of 24 September 1999, in which it was also stated that the Supreme Court had held that laws enacted after a criminal judgment had been delivered, particularly where they might benefit the accused, were not inconsistent with the prohibition on ex post facto laws (see Collins v. Youngblood, 497 U.S. 37-1990), a fact which served to confirm the constitutionality of the 1998 Pennsylvania statute guaranteeing the applicant a new trial on his return to the United States.
14. In an affidavit of 22 May 2001, however, Norris E. Gelman, the lawyer who had represented the applicant at his trial in absentia in the Philadelphia Court of Common Pleas, affirmed that in the Charles Diggs case in 1992 the District Attorney of Philadelphia County had sought the death penalty for offences committed before the statute of 13 September 1978 restoring the death penalty in Pennsylvania had been enacted. Mr Gelman stated:
“In spite of all the governing authority being against retroactive application of the 1979 death penalty, Judge O’Keefe, who presided over Diggs’ trial, ruled that the Commonwealth of Pennsylvania could seek the death penalty and question potential jurors about their views on the death penalty.
The prosecutor never retreated from his position that he was entitled to seek the death penalty. The judge never reconsidered his ruling. ... Diggs was found not guilty, and that was the end of the case. The penalty portion of the case was never reached because of the acquittals.
I never understood how the Commonwealth of Pennsylvania as represented by the District Attorney’s Office in Philadelphia successfully argued the right of the State to use the death penalty retroactively as to Diggs, and still do not understand how that happened.”
15. In an affidavit of 20 April 1998 Leonard Sosnov, a member of the Bars of Pennsylvania, the Federal District Court, the Third Circuit Court of Appeals and the United States Supreme Court and an associate professor at Widener University School of Law, argued that the statute of 27 January 1998 was unconstitutional. He stated, inter alia:
“In my professional opinion, the provision is clearly, without a doubt, unconstitutional. As a matter of separation of powers under the Pennsylvania Constitution, it has been well established for almost one hundred and fifty years in Pennsylvania that the legislature has no power to disturb final judgments of conviction and sentence. In De Chastellux v. Fairchild, 15 Pa. 18 (1850), the Pennsylvania Supreme Court held that a statute purporting to grant a new trial to a litigant was unconstitutional. Likewise, in Commonwealth v. Sutley, 378 A.2d 789 (1977), the Pennsylvania Supreme Court held unconstitutional a statute which purported to reduce penalties for defendants who had already been sentenced for marijuana possession. ...
The statute is also clearly unconstitutional because it violates Article V, § 10 (c) of the Pennsylvania Constitution which gives the Pennsylvania Supreme Court exclusive power to control matters of practice and procedure in the courts, while providing no power for the legislature. ...
There are other potential constitutional problems with the statute. For example, the provision does not grant a new trial to all defendants convicted in absentia, but only to those who have been refused extradition, notably only Mr Einhorn. The courts may view this statute as an arbitrary and capricious legislative enactment which is a violation of due process or a prohibited legislative bill of attainder directed to a particular individual. However, it should be unnecessary for a court to reach these issues because of its palpable unconstitutionality on separation of powers and Article V, § 10 (c) grounds.”
He reiterated that conclusion in affidavits of 10 September and 10 November 1998, stating, inter alia (extract from the affidavit of 10 September):
“... The legislature is without authority to change final judgments of the courts. ...
In my expert opinion, the Commonwealth of Pennsylvania and Philadelphia District Attorney’s Office have no power at all to insulate this law from judicial review. Because ... the legislative attempt to overturn a court’s judgment of conviction on a murder case and life sentence is obviously violative of Article V, § 10 (c) and separation of powers under the Pennsylvania Constitution, a court will ultimately invalidate [the impugned statute] and hold that it is void. If France extradites Mr Einhorn to Pennsylvania it is extremely likely, despite the new Pennsylvania law, that he will be ordered to serve his life sentence without parole, received after his trial in absentia, without ever receiving a new trial.
... even when the parties in a criminal case agree to a result, judicial review and acceptance is always a prerequisite. ...
If Mr Einhorn is returned to Pennsylvania and neither party challenges [the impugned statute], purportedly granting him a new trial, it is very likely that the family of the murder victim, or even any taxpayer in Pennsylvania, could successfully bring a challenge to this clearly unconstitutional law. ...
If Mr Einhorn is ordered extradited to the United States, it is very likely that there will be a challenge to the constitutionality of [the impugned statute] which will be heard by the courts, which in turn will then declare the statute unconstitutional null and void. The original conviction and sentence, life without parole for Mr Einhorn, will be held to be valid and enforceable under Pennsylvania law.”
16. In an affidavit of 24 September 1998 John W. Packel, of the Philadelphia Bar and Chief of the Appeals Division of the Philadelphia Public Defender Office, reached the same conclusion. He stated, inter alia:
“... if Mr. Einhorn returns to Pennsylvania and asserts the right granted to him – and him alone – the Pennsylvania Supreme Court will invalidate the statute and Mr. Einhorn will be recommitted, without a new trial, to serve the life sentence imposed after a trial at which he was not present, a sentencing at which he was not present, and an appeal he was not permitted to litigate.”
In an affidavit of 27 November 1998 he declared:
“... Frankly, I am appalled, but not surprised, by the District Attorney’s ‘guarantee’ which refers to the statute granting a new trial but makes no reference whatsoever to controlling decisions of the Pennsylvania Supreme Court unequivocally holding that any such statute is invalid. Furthermore, I am surprised and disappointed by the State Department’s blind endorsement of this deliberately misleading document.
Although including citations to legal authority addressing issues that are not germane to the principal issues the District Attorney ignores, making absolutely no reference to, clear and compelling authority establishing that the statute it drafted is unconstitutional, unenforceable and invalid. ...
Given 150 years of contrary unbroken precedent it is impossible to see how the District Attorney can ‘guarantee’ that the Pennsylvania Supreme Court will allow the statute in question to stand and allow or order a retrial. In the light of any real consideration the District Attorney’s ‘guarantee’ must be dismissed as, at the least, misleading. ...”
17. In an affidavit of 10 November 1998 Richard S. Wasserbly, an attorney admitted to practise law in the Commonwealth of Pennsylvania and before the Federal District Court, the Federal Third Circuit Court of Appeals and the United States Supreme Court and the author of the reference work entitled Pennsylvania Criminal Practice, stated:
“... I have reached the same inexorable conclusions as were reached by Professor Sosnov and Mr Packel, to wit: that this legislation runs afoul of the Pennsylvania Constitution as a violation of the separation of powers. In addition, this legislation violates Article V, section 10(c), and it may also be a violation of due process and a prohibited legislative bill of attainder since it is directed apparently exclusively to the extradition matter involving Mr Einhorn.
Should an extradition be granted and Mr Einhorn is returned to the Commonwealth of Pennsylvania, if Mr Einhorn requests the grant of a new trial pursuant to 42 Pa.C.S. § 9543(c), the court must act constitutionally and the court has the power and authority to raise the constitutionality of the statute sua sponte (of its own will; without prompting or suggestion) and rule it unconstitutional, refuse to apply that statute, and refuse Mr Einhorn a new trial, irregardless of any position, motion, request or assent by the Commonwealth. In other words, the District Attorney of Philadelphia does not have the ability to authorize or promise the grant of a new trial pursuant to 42 Pa.C.S. § 9543(c).
It is my opinion that if extradition is granted pursuant to 42 Pa.C.S. § 9543(c), there can be no guarantee of a new trial. Instead if viewed in the light of its clear unconstitutionality, 42 Pa.C.S. § 9543(c) will not be upheld and Mr Einhorn will not be given a new trial requiring him to serve the sentence already imposed.”
18. In an affidavit of 25 November 1998 Theodore Simon, a member of the Board of Directors of the National Association of Criminal Defense Lawyers and counsel for the applicant in the extradition proceedings, affirmed, inter alia:
“... it becomes apparent and a distinct possibility that even if the District Attorney should fulfill her promise, and thereafter, even if a trial court should act or be about to act in a manner inconsistent with its ability to assume jurisdiction (i.e. by seeking to grant Einhorn a new trial) then the Supreme Court could, sua sponte (on its own motion), reach out and take jurisdiction to demonstrate that the Einhorn law is unconstitutional, and a lower court is not authorized to accept jurisdiction and vacate a final judgment pursuant to this ‘Einhorn law’.”
19. In an affidavit of 21 November 1998 Norris E. Gelman likewise argued that the statute of 27 January 1998 was “clearly unconstitutional” and that consequently, notwithstanding the pledge given by the District Attorney, Ms Abraham, no court had jurisdiction to apply the statute and the applicant could not be granted a new trial. In a further affidavit of 16 July 2001 he affirmed, inter alia:
“The Commonwealth of Pennsylvania is relying exclusively on the ‘Einhorn law’, passed on January 21, 1998 to assure France that Einhorn will be granted a new trial by a Pennsylvania court. It is my opinion, and the opinion of many other scholars, that a court will not, and indeed, cannot grant Einhorn a new trial pursuant to this statute or for any other reason. ...
Merely because the law is not an ex post facto law does not make it constitutional. The constitutional defects in the Einhorn law render it unenforceable. It is unenforceable because it violates the constitutional separation of powers principles long established by both the United States Supreme Court and the Pennsylvania Supreme Court. See Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780 (1977) and Plaut v. Spendthrift Farm, 514 U.S. 211, 131 L.Ed.2d 328, 115 S.Ct. 1447 (1995).
The legislature cannot grant a new trial. It is as simple as that. The legislature cannot impair, alter, amend or vacate the final judgement of a court of law. The legislature can no more grant a new trial for Einhorn than it can for Timothy McVeigh, or the Watergate defendants.
Should Einhorn be brought to the United States and the District Attorney, as promised, asked the court to grant him a new trial, the court would have to refuse to do so. The court would have to state that it could not act unconstitutionally and to grant a new trial pursuant to this statute, or for any other reason, would be to act in violation of the separation of powers concept and therefore unconstitutionally. ...
... [E]qually well settled ... is the rule that a law repugnant to the Constitution is void and that it is not only the right but the duty of a court so to declare when the violation unequivocably appears: see Respublica v. Duquest, 2 Yeats (Pa.) 429, 501 (1799)..., Hertz Drivurself Stations, Inc. v. Siggins, 359 Pa. 25, 33, 58 A.2d 464, 469 (1948).
... Wherefore, the above accurately states my position and the position of several of the most respected constitutional scholars in Pennsylvania, amongst whose number are Len Sosnov, Esquire (Professor of Law, University of Delaware Law School); John Packel, Esquire (Head of the Appeals Division of the Philadelphia Public Defender’s Office) and Emmett Fitzpatrick, Esquire (former District Attorney of Philadelphia).”
20. In an affidavit dated 1997 Joel Rosen, Chief of the Major Trials Unit, Philadelphia District Attorney’s Office, affirmed in particular that if the applicant was sentenced to life imprisonment, he would have the possibility of applying for release or for commutation of his sentence. Power to release prisoners or to commute their sentences was vested in the Governor of Pennsylvania (see Article IV, section 9, of the Pennsylvania Constitution, and section 299 of the Administrative Code). Any applications for release or for commutation of sentences were first examined by a Board of Pardons, comprising the Lieutenant Governor of Pennsylvania, the Attorney General of Pennsylvania and three members appointed by the Governor and approved by vote of the Pennsylvania Senate (one of the three being a member of the Bar, one a penologist, and one a doctor of medicine, a psychiatrist or a psychologist). When the Board examined an application from a prisoner serving a life sentence, it was required to interview the prisoner. If the Board recommended commutation of a sentence and the Governor agreed, the decision was not subject to appeal. Mr Rosen pointed out, in particular, that between 1987 and 1994 the procedure had resulted in “302 releases, and 26 commutations of life-sentenced prisoners”. He concluded: “These statistics suggest that, although Einhorn may have little chance in the short run for gubernatorial relief, his longer term prospects are of a different nature. ... Were he to apply for release or commutation in the years immediately after his return, relief would be unlikely and, indeed, unjust. History indicates, however, that, by the time Einhorn has spent some considerable period in prison, the climate will have changed, and an application will be received in a different light.”
21. In an affidavit of 7 October 1997 Professor Leonard Sosnov gave his opinion on the likelihood of a life sentence being commuted. He stated that it would be virtually impossible for the applicant ever to be released from prison after being given a life sentence in Pennsylvania. In that connection, he explained that prisoners serving a life sentence were not eligible for parole unless the State Governor first commuted the sentence to another one of a duration which afforded that possibility. Under Article IV, section 9, of the Pennsylvania Constitution, the Governor could only consider commutation if the Board of Pardons had recommended it. Prisoners serving life sentences had to apply to the Board for permission to be interviewed by it; the decision whether or not to grant a hearing was taken by a majority. If a hearing was granted, the Board made a recommendation, again by a majority. Even supposing a prisoner serving a life sentence managed to overcome those obstacles and received an order from the Governor granting commutation, he would still have to serve at least one year in a pre-release centre before an application for parole could be considered. Decisions on admitting inmates to a pre-release centre were taken by the prison authorities, who had complete discretion in the matter. Even if an inmate was admitted to a pre-release centre, the Parole Board could refuse parole on any ground; that decision was not subject to review. Professor Sosnov added, among other things, that between 1979 and 1995 “there was an average of approximately three inmates a year whose life sentences were commuted”, whereas 2,400 inmates were currently serving life sentences in Pennsylvania. He concluded by stating:
“Because Mr Einhorn has been a fugitive and has not as yet served any time on his Pennsylvania life sentence, there is no doubt, given the governing laws and the practical application of those laws, that a life sentence for Mr Einhorn in Pennsylvania would mean that he would eventually die in prison.”