ITEMID: 001-94097
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MAGOMADOVA AND OTHERS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2;Pecuniary and non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicants are:
1) Ms Koku (also spelled as Koka) Magomadova, born in 1942,
2) Ms Ayshat Magomadova (also known as Taymuskhanova), born in 1976,
3) Ms Eset (also spelled as Aset) Magomadova, born in 1995,
4) Mr Baudin Magomadov, born in 1997,
5) Ms Ayzan Muradova, born in 1965.
The applicants live in Grozny, Chechnya. The first applicant is the mother of Ruslan Magomadov, who was born in 1966. The second applicant is his wife; the third and the fourth applicants are his daughter and son; the fifth applicant is his sister.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. At the material time Ruslan Magomadov was working as a senior officer at the investigations department in the Shatoy district department of the interior in Chechnya (the Shatoy ROVD). He had been doing this since 2000.
8. On the night of 9 February 2003 the applicants, with Ruslan Magomadov and other relatives, were at home at 179 Kluchevaya Street, in Grozny, Chechnya. The household consisted of three dwellings; one of them was occupied by the first applicant, another by Ruslan Magomadov and his family and the third by his brother and his family. The applicants' house was near a Russian military checkpoint.
9. At about 4.30 a.m. a group of about thirty armed men in camouflage uniform rushed into the applicants' yard. They broke into two groups. One group went into the first applicant's part of the house and the other one went into the part occupied by Ruslan Magomadov and his family.
10. Those intruders who were not wearing masks had a Slavic appearance. The men neither introduced themselves nor produced any documents. They spoke Russian without an accent. The applicants thought that they were Russian military servicemen.
11. The servicemen pointed their guns at the applicants and ordered them not to move. About ten of the intruders went into Ruslan Magomadov's part of the house. They shouted and swore at the applicants and ordered everyone not to move. When the second applicant asked them what was going on, she and her children were forced to go into another room, where some of the servicemen put their guns to the applicants' heads and ordered them to lie on the floor.
12. The rest of the servicemen threw Ruslan Magomadov on to the floor, bound his hands, placed a pillowcase over his head, bound it with adhesive tape and took him outside. Ruslan Magomadov was barefoot and in his underwear.
13. The servicemen did not ask for Ruslan Magomadov's identity documents. They searched the house and took his service gun, a hunting rifle and a folder with official papers which he had brought home from work.
14. After that the servicemen placed Ruslan Magomadov in one of the two APCs (armoured personnel carriers) which were parked next to the applicants' house and took him away.
15. According to the applicants, some time later the local military commander told them that representatives of the Main Intelligence Department of the Ministry of Defence, the Ministry of the Interior (the MVD) and the Federal Security Service (the FSB) had requested to be provided with unopposed passage through the checkpoint near the applicants' house on the night of 9 February 2003.
16. The applicants have had no news of Ruslan Magomadov since 9 February 2003.
17. In support of their statements the applicants submitted the following: an account by the second applicant given on 13 April 2005, an account by the applicants' neighbour Ms I. given on 15 April 2005, an account by the first applicant given on 16 April 2005, an account given by the applicants' neighbour Mr N. on 13 September 2005 and a character reference for Ruslan Magomadov by the Chechnya MVD, dated 19 February 2004.
18. The Government did not challenge most of the account given by the applicants. According to their submission, between 4 a.m. and 5 a.m. on 9 February 2003 a group of about thirty unidentified persons armed with automatic weapons and with the support of two APCs unlawfully broke into the household situated at 179 Kluchevaya Street, Grozny, Chechnya; there, using violent threats, they abducted R. Magomadov and departed to an unknown destination”.
19. On 9 February 2003 the applicants started their search for Ruslan Magomadov. They contacted, both in person and in writing, various official bodies, such as the President of the Russian Federation, the Chechen administration, military commanders' offices and prosecutors' offices at different levels, describing in detail the circumstances of their relative's abduction and asking for assistance in establishing his whereabouts. The applicants retained copies of a number of those letters and submitted them to the Court.
20. On 9 February 2003 the Grozny prosecutor's office instituted an investigation into the disappearance of Ruslan Magomadov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 50010. Some time later the investigation of the criminal case was transferred to the Staropromyslovskiy district prosecutor's office of Grozny (the district prosecutor's office).
21. On 4 February 2004 the district prosecutor's office informed the fifth applicant that they had not established the identity of the perpetrators of her brother's abduction.
22. On 11 February, 27 March 2004 and 19 April 2005 the military prosecutor's office of the United Group Alignment (the prosecutor's office of the UGA) forwarded the first applicant's requests for assistance in the search for her son to the military prosecutor's office of military unit no. 20102.
23. On 19 February 2004 the military prosecutor's office of military unit no. 20102 forwarded the first applicant's request to the military prosecutor's office of military unit no. 20116.
24. On 25 February 2004 the information centre of the Chechnya Ministry of the Interior informed the first applicant that no information was available about her son's detention.
25. On 3 March 2004 the district prosecutor's office informed the first applicant that her request for assistance in establishing the whereabouts of Ruslan Magomadov had been included in the criminal case file.
26. On 4 March and 12 April 2004 the Main Department of the Ministry of the Interior in the Southern Federal Circuit forwarded the first applicant's requests to its operational search division in Grozny and the Chechnya prosecutor's office respectively.
27. On 5 March, 22 April and 1 June 2004 and 9 June 2005 the Chechnya prosecutor's office forwarded the first applicant's requests to the district prosecutor's office.
28. On 31 March 2004 the military prosecutor's office of military unit no. 20116 informed the first applicant that at her request they had examined the theory of the possible involvement of Russian military servicemen in the abduction of her son and that this theory had not been confirmed.
29. On 23 April 2004 detention centre no. 2 of the Department of Corrections of the Ministry of Justice in the Stavropol region informed the fifth applicant that Ruslan Magomadov was not listed among their detainees.
30. On 26 April 2004 the military prosecutor's office of military unit no. 20116 informed a number of State authorities, including the Chechnya prosecutor's office, that the involvement of Russian military forces in the disappearance of Ruslan Magomadov had not been confirmed.
31. On 26 April 2004 the district prosecutor's office informed the first applicant that the investigation in the criminal case had been resumed on 29 March 2003 and that it had been suspended on 9 April 2003 for failure to establish the identities of the perpetrators.
32. On 7 May 2004 the Chechnya military commander forwarded the first applicant's request for assistance in the search for her son to the Chechnya prosecutor's office. According to the letter, the first applicant complained about the abduction and stated that the abductors had arrived in APCs and that they had taken away Ruslan Magomadov's service weapon and hunting rifle.
33. On 4 June 2004 the Chechnya prosecutor's office informed the first applicant that on 9 February 2003 the district prosecutor's office had instituted an investigation into the abduction of Ruslan Magomadov.
34. On 5 June 2004 the Main Department of the Ministry of the Interior in the Southern Federal Circuit informed the first applicant that its Department of Counterterrorist Operations had not abducted Ruslan Magomadov.
35. On 17 June 2004 the military prosecutor's office of the UGA informed the first applicant that information concerning the investigation into the abduction of Ruslan Magomadov was available at the Chechnya prosecutor's office.
36. On 2 July 2004 the district prosecutor's office informed the first applicant that on an unspecified date they had resumed the investigation in the criminal case.
37. On 5 July 2004 the Chechnya prosecutor's office informed the first applicant that information about the criminal investigation was available at the district prosecutor's office.
38. In July 2004 the district prosecutor's office informed the first applicant that on an unspecified date they had suspended the investigation in the criminal case.
39. On 10 August 2004 the military prosecutor's office of military unit no. 20102 informed a number of State authorities, including the Chechnya prosecutor's office, that the theory of the involvement of Russian military forces in the abduction of Ruslan Magomadov had not been confirmed.
40. On 31 August 2004 the Chechnya prosecutor's office forwarded the first applicant's request for assistance in the search for her son to the district prosecutor's office.
41. On 30 September 2004 the district prosecutor's office informed the first applicant that her request had been included in the criminal case file materials and that they were taking operational search measures to establish the identity of the perpetrators.
42. On 1 February 2005 the first applicant wrote to the Chechnya military commander. She complained about her son's abduction and stated that the intruders had taken his service weapon, a hunting rifle and a folder of official papers. She also pointed out that although the criminal investigation into the abduction had been instituted on 9 February 2003, for two years the authorities had failed to establish the whereabouts of Ruslan Magomadov.
43. On 16 February 2005 the fifth applicant requested the district prosecutor's office to inform her about the progress in the investigation of criminal case no. 50010.
44. On 18 February 2005 the fifth applicant requested the district prosecutor's office to resume the investigation in the criminal case.
45. On 24 February 2005 the district prosecutor's office informed the fifth applicant that the investigation in the criminal case had been resumed on 22 February 2005.
46. On 22 April 2005 the military prosecutor's office of military unit no. 20102 informed the first applicant that the theory of the involvement of Russian military forces in the abduction of Ruslan Magomadov had not been confirmed.
47. On 18 May 2005 the Chechnya prosecutor's office informed the first applicant that the district prosecutor's office was conducting an investigation into her son's disappearance.
48. On 20 May 2005 the district prosecutor's office informed the fifth applicant that the investigation in criminal case no. 50010 had been resumed on 22 February 2005.
49. On an unspecified date the second applicant was granted victim status in criminal case no. 50010.
50. The Government submitted that on 9 February 2003, upon a complaint by the second applicant about the abduction of Ruslan Magomadov, the Grozny prosecutor's office had instituted a criminal investigation into the abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file had been given number 50010. On the same day the authorities also opened criminal case no. 42019 in connection with the theft of Ruslan Magomadov's service weapon. Some time later the investigation of these two cases was joined into one investigation in criminal case no. 50010.
51. On 9 February and 31 March 2003 the investigators questioned the second applicant and granted her victim status on the latter date. She stated that since 2001 her husband had been working in the investigations department of the Shatoy ROVD. At about 4.30 a.m. on 9 February 2003 the family was sleeping in their house at 179 Kluchevaya Street. She was woken by a noise in the yard and saw about ten or twelve armed men in multicoloured military uniform, high boots and black masks. All these men were armed with typical submachine guns. They ordered her to stay in bed. The men acted in silence; only one of them was swearing and speaking unaccented Russian. The intruders threw her husband on to the floor and tied his hands behind his back with adhesive tape. After that they asked the applicant whether there was a balaclava mask in the house. When she replied in the negative, they took a pillowcase, put it over her husband's head and wrapped adhesive tape around it. After that they took Ruslan Magomadov outside; he was barefoot and in his underwear. They ordered the second applicant to stay inside. However, after the intruders had gone outside, she ran out into the street and saw two APCs driving away in different directions. One of the APCs drove into Kluchevaya Street, the other one went off in the direction of the Staropromyslovskiy autoroute. At least fifteen armed men in camouflage uniform and masks were sitting on each of the APCs. As it was dark, the witness could not see whether there were any identifying marks on the vehicles. According to the second applicant, her relatives, who had been made to stay indoors, also saw the abductors driving away. The intruders had also taken away Ruslan Magomadov's service weapon, his double-barrelled hunting rifle, a black leather folder with documents from his work, prayer beads, a skullcap and 1,500 roubles. On 29 March 2004 the second applicant was questioned again. Her statement was similar to the ones given on 9 February and 31 March 2003.
52. On 9 February and 31 March 2003 the investigators questioned Ruslan Magomadov's brother, Mr Kh.M., who stated that their family household consisted of two houses in one yard. Ruslan Magomadov and his family lived in one house and the witness and his mother (the first applicant) in the other. At about 4.30 a.m. on 9 February 2003 the witness was woken up by his mother's screaming. When he walked out of the room, several men in camouflage uniform and masks pointed their guns at him. They told him that it was a regular identity check. After that they checked his passport and went outside. He followed them and saw two APCs driving away from the house in different directions. One of them drove away along Kluchevaya Street and the other departed in the direction of a local store. According to the witness, after he had returned home his sister-in-law (the second applicant) informed him that his brother Ruslan Magomadov had been taken away and that the abductors had also taken away his brother's service weapon, a hunting rifle and a folder with documents.
53. On 9 February 2003 the investigators also questioned the applicants' neighbour, Mr A.N., who stated that at about 4.30 a.m. on 9 February 2003 he had woken up and heard the noise of engines. Across the street from his house he saw an APC and men standing next to it. The men were speaking rudely in Russian. The next morning he found out from his neighbours about Ruslan Magomadov's abduction.
54. On 20 February 2003 the Chechnya Ministry of the Interior conducted an inquiry into the abduction of Ruslan Magomadov. As a result it was established that he had indeed been abducted by unidentified persons.
55. On 29 March 2004 the investigators questioned the fifth applicant, who stated that on 9 February 2003 she had been at home when her daughter, who had stayed that night at the house of the first applicant, informed her about the abduction of Ruslan Magomadov. After that the witness had gone to her mother's house in Kluchevaya Street. There the first applicant and Mr Kh.M. told her that at about 4.30 a.m. armed men in two APCs had arrived at the house. The men were wearing masks and camouflage uniform without any insignia or attributes. The intruders had proceeded into Ruslan Magomadov's bedroom, and without introducing themselves dragged him out of bed. Then they asked the second applicant whether there was a balaclava mask in the house. When the second applicant told them that there was none, they took a pillowcase, put it over Ruslan Magomadov's head and tied his hands with adhesive tape. According to the witness, her brother had no unpaid debts.
56. On 20 April 2005 (in the submitted documents the date was also referred to as 31 March 2003) the first applicant was granted victim status in the criminal case and questioned. According to the witness, on 9 February 2003 she, her son Ruslan Magomadov and other relatives had been sleeping at home. At about 4.30 a.m. she had heard a noise in the yard. When the applicant had tried to open the entrance door, a man had pointed his gun at her and ordered her to stay in the house. From the window she saw armed men entering her son's house, which was situated across from her house in the same yard. According to the applicant, the intruders, a group of ten to fifteen military servicemen in masks, spoke Russian among themselves. They had spent about ten to fifteen minutes in Ruslan Magomadov's house. After they had left, the first applicant found out from the second applicant that the men had taken away Ruslan Magomadov. The next morning the applicant had learnt that these men had arrived in two APCs and entered their yard by getting over the fence between the applicants' and one of their neighbours' yards.
57. On 29 May and in July 2004 the investigation in the criminal case was suspended for failure to establish the identity of the perpetrators. The applicants were informed about these decisions.
58. On 2 July 2004 the investigation in the criminal case was resumed. The applicants were informed about it on the same date.
59. On 19 and 21 November 2005 the investigators questioned the applicants' neighbours, Mrs M.B. and Mr Kh.E., who provided similar statements. According to the witnesses, they had not witnessed the events, but on the morning of 9 February 2003 they had found out from their neighbours that at about 4 a.m. on 9 February 2003 unidentified armed men, arriving in a Ural vehicle, had abducted their neighbour Ruslan Magomadov.
60. On 7 December 2005, 6 April and 2 July 2007 the investigators informed the applicants that the investigation in the criminal case had been suspended.
61. On 6 September 2007 the investigation of criminal case no. 50010 was transferred to the Leninskiy inter-district investigations department of Grozny.
62. On 27 September 2007 the investigators questioned the applicants' neighbour, Mr S.I., who stated that he had learnt from his acquaintances that at about 4 a.m. on 9 February 2003 his neighbour Ruslan had been abducted from his house by unidentified armed men in camouflage uniform who had arrived in APCs.
63. On 29 September 2007 the investigators questioned the applicants' neighbour, Mrs Kh.M., who stated that at about 5 a.m. on 9 February 2003 she had been woken by screaming and crying outside. She had gone out into the street and next to the Magomadovs' house she had been told that a group of unidentified armed men in camouflage uniform had broken into the house and taken away Ruslan Magomadov.
64. On 4 October and 24 November 2007 the investigators informed the applicants that the investigation in the criminal case had been suspended for failure to establish the identity of the perpetrators.
65. On 4 February 2008 the investigators informed the applicants that the investigation in the criminal case had been resumed.
66. On 7 February 2008 the investigators questioned Ruslan Magomadov's former colleague, Mr U.A., who stated that between 1996 and 1999 Ruslan Magomadov had worked as the head of the operational division in the Staropromyslovskiy ROVD and after that he had worked as a senior investigator at the Shatoy ROVD. At the beginning of February 2003 the Staropromyslovskiy ROVD had received a complaint from Ruslan Magomadov's relatives that he had been abducted from his own house.
67. On 4 March 2008 the investigators informed the applicants that the investigation in the criminal case had been suspended for failure to establish the identity of the perpetrators.
68. On 9 April 2008 the investigators informed the applicants that the investigation in the criminal case had been resumed.
69. On an unspecified date the investigators conducted a crime scene examination at the applicants' house. No evidence was found or collected.
70. On an unspecified date the investigators requested no. 2 Operational Search Bureau of the Chechnya Ministry of the Interior to conduct operational search measures aimed, inter alia, at establishing the identity of eyewitnesses to the abduction who had seen the abductors' armoured vehicles.
71. According to the Government, the investigators also requested information from various State authorities about the disappearance. On various dates these authorities, including the district offices of the FSB and the military prosecutors' office, stated that they had not detained Ruslan Magomadov or carried out a criminal investigation into his activities. Also on unspecified dates a number of the district departments of the interior in Chechnya informed the investigation that they had never detained or delivered Ruslan Magomadov to a temporary detention facility. On unspecified dates the remand centres in Chechnya and the neighbouring regions informed the investigation that the missing man had never been detained on their premises. According to the responses from the Chechnya military commanders' office and a number of the district military commanders' offices located in the Republic, the previously acting military commanders' offices had been disbanded in July 2003 and no information was available about special operations conducted by these offices prior to July 2003.
72. The Government submitted that the investigation was checking several theories concerning the abduction of Ruslan Magomadov: firstly that his abduction had been committed by Russian military servicemen; secondly that it had been perpetrated by persons to whom Ruslan Magomadov owed money; thirdly that his abductors were members of illegal armed groups; and fourthly that his abduction had been carried out for a ransom.
73. The investigation failed to establish the whereabouts of Ruslan Magomadov. The investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime resolved. The investigation found no evidence to support the involvement of federal forces in the crime. The law enforcement authorities of Chechnya had never arrested or detained Ruslan Magomadov on criminal or administrative charges and had not carried out a criminal investigation in his respect.
74. In response to the Court's request, the Government submitted several documents from the investigation file, running to fifty-seven pages. The Government requested the Court to apply Rule 33 § 3 of the Rules of Court concerning confidentiality of the submitted documents and to restrict public access to the submitted documentation. In their request the Government stated that the criminal investigation was still in progress and that public disclosure of the documents could be detrimental to the interests of participants in the criminal proceedings.
75. The Government further stated that a copy of the entire investigation file could not be submitted to the Court owing to the absence of any guarantees on the part of the Court of non-disclosure of the secret data contained in the investigation file. In this respect the Government referred to Article 161 of the Criminal Procedure Code, since the file contained information concerning participants in criminal proceedings. They also cited, by way of comparison, the Rome Statute of the International Criminal Court of 17 July 1998 (Articles 70 and 72) and the Statute of the International Criminal Tribunal for the former Yugoslavia (Articles 15 and 22) and argued that these instruments provided for personal responsibility for a breach of the rules of confidentiality.
76. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-120544
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: BRADEŠKO AND RUTAR MARKETING D.O.O. v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
TEXT: 1. The applicant, Mr Boštjan Bradeško, is a Slovenian national, who was born in 1965 and lives in Domžale. The applicant company, Rutar Marketing, is a limited liability company registered in Slovenia. They were represented before the Court by M. Grilc, R. Grilc and R. Vouk, lawyers practising in Klagenfurt.
2. The Slovenian Government (“the Government”) were represented by their Agent, Ms A. Vran, State Attorney.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is the director of Rutar Center, which is a furniture store owned by the applicant company.
5. On 21 September 2005 and 8 March 2006 the Market Inspectorate of the Republic of Slovenia (hereinafter referred to as “the Inspectorate”) carried out inspections at Rutar Center.
6. On 28 April 2006 the Inspectorate issued a decision stating that the applicant company had failed to pay interest to customers who had put down an advance deposit to reserve their orders with the store. The decision illustrated the applicant company’s practice by listing three examples which concerned in total approximately 30 euros (EUR). It was found guilty of violating section 41 of the Consumer Protection Act. In addition, the applicant was found guilty of failing to fulfil his supervisory role so as to prevent the above violation from occurring. The applicant company was fined approximately EUR 12,500 and the applicant approximately EUR 1,250.
7. On 15 May 2006 the applicants made an application for judicial review in which they alleged that the Inspectorate had wrongly established the facts; in particular, they argued that by signing a contract which included the general terms and conditions of purchase, the customers had waived their statutory right to the payment of interest. The applicants contended that the Inspectorate should have checked with each individual customer whether they had waived the right to the payment of such interest before imposing the fines. Consequently, they alleged that the relevant law had been wrongly applied and requested that ordinary court proceedings be opened.
8. On 9 July 2008 the Ljubljana Local Court, in summary proceedings (see paragraph 13 below), delivered a judgment rejecting the application for judicial review as unfounded. Referring to the Inspectorate’s decision, reports of the Inspectorate concerning the aforementioned inspections, a written statement by the applicant company of 28 September 2005 relating to one of those reports (dated 21 September 2005), and a report the Inspectorate had drawn up after the application for judicial review had been made, the court found that the facts had been properly established by the Inspectorate and that the application was unfounded. In particular, the court observed that the rights enjoyed by the consumers by virtue of the Consumer Protection Act could not be excluded or limited by contract. Moreover, it found that the customers had not been given the option to pay for the goods in full on delivery. The applicant company was ordered to pay EUR 450 and the applicant EUR 200 in court fees. The judgment, which included an instruction that there would be no right of appeal, was served on them on 4 August 2008.
9. On 25 September 2008 the applicants requested to the Supreme Public Prosecutor to lodge a request for the protection of legality (extraordinary appeal) before the Supreme Court. They argued, in particular, that the sanction had been disproportionate and unlawful. As regards the latter, they argued that the minimum fines prescribed for the offence in question had been reduced to EUR 3,000 for a company and EUR 1,200 for an individual by the Amendment to the Consumer Protection Act, which had entered into force on 15 January 2008. The court, in their submission, had failed to take that into account and to impose a lower fine in accordance with the legislation or, alternatively, give the applicants a right of appeal against the judgment which, under the Minor Offences Act, was permitted in cases where the fine imposed was higher than the minimum fine prescribed. The applicants made no complaints with regard to the lack of an oral hearing before the local court.
10. On 27 October 2008 the Supreme Public Prosecutor replied to the applicants, informing them that he had no intention of lodging a request for the protection of legality in their case. He explained that although they were correct in arguing that a lower fine should have been imposed on them in line with the amended Consumer Protection Act, their case was not important enough for the development of jurisprudence, nor had they argued that it had had any serious consequences for them.
11. Section 41 of the Consumer Protection Act reads, in its relevant part, as follows:
“(1) If the company expressly or implicitly provides for the purchase of goods or services subject to a full or partial deposit and delivers the goods or service after the receipt of that deposit, it is obliged to pay ... interest to the customer ...”
Section 77 provides, in so far as relevant:
“(1) ... a company shall be issued with a fine of between 3,000,000 [approximately EUR 12,500] and 10,000,000 Slovenian tolars if:
...
16. it does not specify in the final invoice, and pay the customer, the interest due on the deposit paid at the interest rate ... (section 41);
(2) As punishment for the offence mentioned in the preceding paragraph, the director of the company ... shall be issued with a fine of between 300,000 [approximately EUR 1,250] and 1,000,000 Slovenian tolars.”
12. Section 22 of the Amendment to the Customer Protection Act, which entered into force on 15 January 2008, amended section 77 as follows:
“(1) ... a company shall be issued with a fine of between EUR 3,000 and EUR 40,000 if:
...
(2) As punishment for the offence mentioned in the preceding paragraph, the director of the company ... shall be issued with a fine of between EUR 1,200 and EUR 4,000.”
13. For details of the relevant provisions of the Minor Offences Act, in particular those concerning “summary proceedings”, see Suhadolc v. Slovenia ((dec.), no. 57655/08, 17 May 2011). As regards the right of appeal in such proceedings ‒ an issue of particular relevance to the present case ‒ section 66(2) reads, in so far as relevant, as follows:
“An appeal may be lodged against ... decisions of the court of first instance ... in cases where the fine imposed was higher than the minimum fine prescribed for that offence ...”
Such an appeal may be lodged on any grounds, except points of fact.
14. A request for the protection of legality is an extraordinary appeal that may be lodged by the Supreme Public Prosecutor, either proprio motu or on the initiative of a party to the proceedings or another person entitled to do so under the Minor Offences Act, against any final judicial decision issued in the minor offences proceedings. It can be used to complain about a violation of the rules of substantive or procedural law. These requests are dealt with by a three-member panel of the Supreme Court.
15. The 2007 Amendment to the Constitutional Court Act, which entered into force on 15 July 2007, limits the availability of constitutional appeals by, inter alia, excluding in principle the possibility to challenge decisions issued in proceedings concerning minor offences. However, in exceptional circumstances such cases can be examined if they raise an important constitutional question extending beyond that particular case. The relevant provisions of the Act read as follows:
“(1) A constitutional appeal shall not be admissible if the violation of human rights or fundamental freedoms [alleged] did not have significant consequences for the complainant.
(2) It is deemed that there has been no violation of human rights or fundamental freedoms having significant consequences for the complainant with regard to individual decisions:
- issued in small-claims disputes ...;
- concerning costs of proceedings, where such decision alone is challenged in the constitutional appeal;
- issued in trespass to property disputes;
- issued in minor offence cases.
(3) Irrespective of the preceding paragraph, the Constitutional Court may in particularly justified cases decide exceptionally on a constitutional appeal against the individual decisions referred to in the preceding paragraph, notably where the decision appealed against concerns an important constitutional question which goes beyond the importance of the actual case.”
“(1) A constitutional appeal shall be rejected:
- if it does not concern an individual act by which a state authority, local authority, or a holder of public power decided on the rights, obligations or legal interest of the complainant;
- if the complainant does not have a legal interest in a decision on the constitutional appeal;
- if it is not admissible, except in the instance referred to in the third paragraph of the preceding section;
- if it was not lodged in due time;
...
(2) A constitutional appeal shall be accepted for consideration:
- if there has been a violation of human rights or fundamental freedoms which has had significant consequences for the complainant; or
- if it concerns an important constitutional question which goes beyond the importance of the actual case.
...”
16. The Constitutional Court held in its decision no. 120/97 of 21 May 1997 that the guarantees of a fair trial applicable to criminal proceedings should, in principle, also apply to minor offences proceedings, in particular as regards the right of the accused to participate in the proceedings and express their views on all relevant factual and legal issues. The court’s views were confirmed on a number of occasions in its subsequent case-law, notably in decision no. Up-3663/07 of 10 September 2009, in which it found that the applicant should have been given the opportunity to exonerate himself from the charges by producing a witness who could confirm that he had not been present at the scene of the minor offence at the time it had been committed.
17. In that decision the Constitutional Court explicitly stated:
“Regardless of the fact that the court is not obliged to accept all the evidence submitted by the defence, it must accept the evidence which is relevant from the perspective of substantive law and for which the defence has shown with a sufficient degree of probability that it exists and is legally relevant. The court may dismiss evidence submitted if taking further evidence is redundant because the case is clear, if the fact to be proved by the evidence submitted has already been proved or has no influence on the case, or if the means of evidence are unsuitable or unattainable.”
18. Moreover, in decision no. Up-1293/10 of 21 June 2012 the court found a violation of the Constitution on the grounds that the local court had refused to hold an oral hearing, which had deprived the applicant of an opportunity to have examined the incriminating witnesses on whose statements the decision had been based. Similar issues were also examined in another recent decision, no. Up-1544/10 of 21 June 2012. Finally, decision no. Up-953/07 of 9 April 2009, also adopted under the new admissibility criteria, included, inter alia, an examination of the penalty imposed for the minor offence in question.


ITEMID: 001-108891
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF GERZHIK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: André Potocki;Ganna Yudkivska;Mark Villiger
TEXT: 4. The applicant was born in 1931 and lives in the village of Petrivka in the Odessa region.
5. In the early 1990s the local authorities undertook to connect the village to a gas pipeline. Starting from July 1994 the applicant was entrusted with directing the works. According to him, at that point the public funding was interrupted and the construction was continued at the expense of certain villagers. After the works’ completion in 1997 the village council and some of the villagers publicly accused the applicant of embezzling public funds, which, as they claimed, had been allocated to him for the construction works in question.
6. On 17 August 1999 the applicant instituted proceedings against the village council, as well as against Mr S. and Ms K., seeking compensation for damages in respect of the aforementioned embezzlement accusations considered by him to be defamatory.
7. On 18 April 2000 the Ivanivka District Court (“the Ivanivka Court”) allowed the applicant’s claim in part.
8. On 4 July 2000 the Odessa Regional Court of Appeal (“the Odessa Regional Court”) quashed the aforementioned judgment and remitted the case back to the Ivanivka Court for fresh consideration.
9. On 22 August 2000 the case was transferred to the Kominternivskyy Town Court (“the Kominternivskyy Court”).
10. The examination of the case was adjourned several times for the followings reasons: the applicant’s absence or at his lawyer’s request (for about four months in total); the adversary party’s absence (for about ten months); and the judge’s leave (for two months).
11. On 20 January 2003 the Kominternivskyy Court rejected the applicant’s claim, as well as the counterclaim of Ms K. which she had lodged in the meantime, as unsubstantiated.
12. On 20 February 2003 the applicant appealed.
13. On 26 June 2003 the Odessa Regional Court dismissed that appeal following a hearing, in which the applicant had participated. It was noted in the ruling that it could be appealed in cassation within a month after its pronouncement.
14. On 27 August 2003 the applicant lodged a cassation appeal, together with a request for renewal of the time-limit. He contended, in particular, that the ruling in question had been served on him with a delay and that he had required additional time for preparing his appeal in cassation given his advanced age and poor health.
15. On 31 October 2003 the Kominternivskyy Court, following a hearing with the applicant’s participation, refused to renew the time-limit for his appeal in cassation, having found that the reasons advanced by him were not sufficiently serious for that.
16. On 13 November 2003 the applicant challenged that ruling on appeal.
17. On 11 December 2003 the president of the Odessa Regional Court admitted, in his reply to the applicant’s complaint about the length of the proceedings, that there had indeed been some delays in dealing with his case by the first-instance court and that the judge in charge had been reprimanded in that regard.
18. On 24 February 2004 the Odessa Regional Court found against the applicant, having upheld the decision of the first-instance court.
19. On 20 March 2004 the applicant appealed in cassation. He submitted, inter alia, that the adversary party had obtained, without his knowledge, a medical certificate regarding his health which had wrongly been adduced to the case file.
20. On 22 March 2007 the Supreme Court transferred the applicant’s appeal in cassation to the Kharkiv Regional Court of Appeal (“the Kharkiv Regional Court”), in compliance with the legislative amendments.
21. On 2 July 2007 the Kharkiv Regional Court held that the lower courts had correctly rejected the applicant’s request for the renewal of the procedural time-limits.
22. According to the applicant, the aforementioned ruling was served on him on 22 July 2008, following his enquiry with the Supreme Court about the case progress of 7 April 2008.
23. On 28 May 2003 the applicant lodged a separate compensation claim with the Ivanivka Court against a certain Ms P. alleging that she had disseminated defamatory information about him, including in the framework of the above proceedings.
24. On 22 September 2003 the applicant challenged the judge dealing with his case.
25. On the following day his motion was granted, and the case was assigned to another judge.
26. On 4 February 2004 the Ivanivka Court stayed the proceedings at the applicant’s request, pending the receipt of the case file materials in respect of the first set of the defamation proceedings (see above), which the applicant considered to be of relevance for this case.
27. On 17 November 2006 the case was transferred to another judge following an increase of the court’s staff.
28. In early December 2006 the court resumed the examination of the case. It adjourned its hearing in December 2006 for about two months because of the defendant’s failure to attend.
29. On 11 June 2007 the Ivanivka Court found against the applicant.
30. On 20 November 2007 and 5 March 2008 the Odessa Regional Court and the Supreme Court, respectively, upheld that judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61868
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF VITO SANTE SANTORO v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of P4-2;Violation of P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 9. The applicant was born in 1957 and lives in Ostuni (province of Brindisi).
10. In an order of 24 March 1994, filed with the registry on 30 March 1994, the Brindisi District Court imposed a preventive measure on the applicant, who was placed under special police supervision for one year.
11. The Brindisi District Court found that numerous criminal complaints had been made against the applicant. In particular, it found that in 1991 and 1992 a series of criminal complaints had been lodged alleging that he had received stolen goods under cover of his vehicle dismantling and spare parts business. On 13 May 1992 a preventive measure in the form of a warning (avviso sociale) was imposed on the applicant for one year. On 13 June 1992 a criminal complaint was lodged against him for aiding and abetting theft and trading in stolen goods; he was acquitted by a judgment of 2 July 1993. On 5 May 1993 the applicant was arrested with two others in connection with another complaint for receiving stolen goods which had been lodged against him. In the light of the foregoing, the District Court considered that there were reasonable grounds for believing that, in spite of his clean record, the applicant was a habitual offender and thus “socially dangerous”, within the meaning of section 1 of Law no. 1423/56 of 27 December 1956. It refused, however, to make a compulsory residence order (obbligo di soggiorno) against him.
12. The order imposing the preventive measure was forwarded for enforcement to the Brindisi prefect on 7 April 1994 and served on the applicant on 3 May 1994.
13. The applicant appealed, but his appeal was dismissed by the Lecce Court of Appeal on 29 July 1994. The order became final on 24 September 1994 and was subsequently served on the Ostuni municipality on 27 September 1994.
14. On 25 July 1995 the Ostuni police drafted, in the applicant’s presence, a document setting out the obligations imposed on him (verbale di sottoposizione agli obblighi).
15. The applicant was required:
(a) to look for a suitable job within two months from the date of service of the order;
(b) not to change his place of residence;
(c) not to leave his home without informing the authorities responsible for supervising him;
(d) to live an honest life and not to arouse suspicion;
(e) not to associate with persons who had a criminal record or who were subject to preventive or security measures;
(f) not to return home later than 8 p.m. in summer and 6 p.m. in winter or to leave home before 7 a.m., unless due cause could be shown and in all cases only after informing the authorities responsible for supervising him;
(g) not to keep or carry weapons;
(h) not to go to bars or attend public meetings;
(i) to report to the relevant police station on Sundays between 9 a.m. and 12 noon;
(j) to have on him at all times the card setting out his precise obligations under the preventive measure and a copy of the court order.
16. On 31 July 1995 the applicant applied to the Brindisi District Court for a declaration that the preventive measure had expired on 2 May 1995, that is, one year after the date on which the order of 24 March 1994 was served on him.
17. In an order of 7 October 1995, the Brindisi District Court found that, even if pursuant to section 11 of Law no. 1423/56 the special supervision period began on the day on which the person on whom the preventive measure was imposed was served with the relevant order, compliance with that formality was necessary but not sufficient to constitute an initial step in the implementation of the measure. For there to be such an initial step, it was also necessary under section 7 of Law no. 1423/56 for the relevant order to be forwarded for enforcement to the competent police authority. The District Court observed that, under the Court of Cassation’s case-law, special supervision did not lapse at the end of the period for which it had been imposed, independently of when it was implemented. In the case before it, the initial step in the implementation of the measure had been taken on 25 July 1995, the day on which the Ostuni police had drafted the document setting out the obligations imposed on the applicant. Consequently, it held that the preventive measure had not ceased to apply.
18. The applicant appealed to the Lecce Court of Appeal. He maintained that the preventive measure had automatically ceased to apply on 2 May 1995 or, at the latest, on 28 September 1995, which was one year after the date on which the order had been served on the Brindisi police and the Ostuni municipality. In any event, the applicant sought an order discharging the measure, arguing that there were no grounds for it to remain in force.
19. In a judgment of 29 April 1996, the Court of Appeal upheld the order of 7 October 1995, observing that the case fell outside those for which statute provided the automatic lapse of special supervision. It considered that the preventive measure could not automatically cease to apply on the date stated in the order of 24 March 1994 independently of when it was implemented. Consequently, it concluded that the starting-point for the application of the preventive measure was the day on which the first steps had been taken to implement it. In this case that had been 25 July 1995, when the police had drafted the document setting out the applicant’s obligations under the order.
20. The applicant appealed on points of law to the Court of Cassation.
21. In a judgment of 16 December 1996, which was filed with the registry on 6 February 1997, the Court of Cassation ruled that the order for special supervision of the applicant had ceased to apply on 2 May 1995. It observed that section 11 of Law no. 1423/56 expressly provided that the period of special supervision started to run on the day the person to be supervised was served with the relevant order. Consequently, contrary to the opinion of the Court of Appeal, it found that the date on which the document setting out the obligations imposed on the applicant was drafted was not relevant for the purposes of identifying the date on which the preventive measure first took effect. It concluded that the period of special supervision had started to run on the day on which the relevant order was served on the applicant (3 May 1994).
22. In the meantime, on 20 September 1996 the Ostuni police had informed the Brindisi District Court that the order for special supervision of the applicant had ceased to apply on 24 July 1996.
23. As a result of the special supervision measure imposed on the applicant, the Ostuni Municipal Electoral Committee decided on 10 January 1995 to strike the applicant off the electoral register on the ground that his civic rights had been suspended pursuant to Presidential Decree no. 223 of 20 March 1967.
24. The applicant was subsequently prevented from taking part in the regional council (Consiglio Regionale) election of 23 April 1995.
25. On 28 July 1995 the applicant’s name was restored to the electoral register.
26. In a certificate issued on 22 November 1995, however, the mayor of Ostuni stated that the applicant had been subject to a further year’s special supervision by a decision of the Brindisi police of 25 July 1995. On 15 December 1995 the mayor declared that the applicant would be struck off the electoral register for another year.
27. On 12 April 1996 the Ostuni Municipal Electoral Committee refused the applicant’s request to be allowed to take part in the national parliamentary election on 21 April 1996.
28. The applicant lodged an appeal with the Lecce Court of Appeal in which he contended that the preventive measure had ceased to apply on 2 May 1995 and that, accordingly, there were no grounds for excluding him from the election.
29. In a judgment of 18 April 1996, the Lecce Court of Appeal dismissed the appeal on the ground that the disenfranchisement could be challenged only after the preventive measure had actually been implemented.
30. The power to impose preventive measures was introduced by Law no. 1423 of 27 December 1956. Such measures are intended to prevent individuals who are considered “socially dangerous” from committing offences. The statute indicates three groups of socially dangerous persons: (a) anyone who, on the basis of factual evidence, must be regarded as a habitual offender; (b) anyone who, on account of his conduct or lifestyle and on the basis of factual evidence, must be regarded as habitually deriving his income from the proceeds of crime; and (c) anyone who, on account of his conduct and on the basis of factual evidence, must be regarded as having committed offences endangering the physical or mental integrity of minors or posing a threat to society, security or public order.
31. Section 3 of Law no. 1423/56 provides that persons who are socially dangerous may be placed under special police supervision. The competent court sits in camera and must give a reasoned decision after hearing the public prosecutor and the person concerned, who has the right to file memorials and to be represented by a lawyer. Both parties may lodge an appeal and/or an appeal on points of law, which have no suspensive effect.
32. When imposing a preventive measure, the court must fix its duration and specify the conditions with which the person concerned must comply. In accordance with paragraph 1 of section 11 of Law no. 1423/56, the special supervision period starts to run on the day on which its addressee is notified of the relevant order and automatically ends when the period of time fixed in the order has elapsed.
33. Article 2 of Presidential Decree no. 223 of 20 March 1967 provides that, inter alia, persons on whom preventive measures have been imposed by a court order or an administrative decision shall be disenfranchised.
34. Article 32 § 1 (3) of that decree provides that in such cases the prefect (questore) empowered to enforce such measures shall notify the municipality where the person concerned resides of any decision entailing the loss of civic rights. The Municipal Electoral Committee shall then remove the name of the person concerned from the electoral register, even outside one of the usual periods for updating the lists.
35. Article 117 of the Constitution confers legislative power on the regions. It sets out the competence of the regions, inter alia, for regional administrative planning, local policy, public health, education, local museums and libraries, town planning, tourism, traffic regulations, navigation, quarries and peat bogs, hunting, agriculture, forests and handicraft. Article 117 also states that the regions have legislative power in other matters established by constitutional laws. Regional laws are enacted by the regional councils (Article 121 § 2 of the Constitution).


ITEMID: 001-5114
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: EGAN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British citizen born in 1961 and resident in Strathkelvin.
He is represented before the Court by Matthew Brown, solicitors practising in Irvine, Scotland.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 3 February 1995, a complaint was issued by the Procurator Fiscal for Glasgow charging the applicant with two contraventions of section 5(3)(c) and section 5(5) of the Data Protection Act 1984 and two breaches of the peace in that he conducted himself in a disorderly manner persistently staring at five young girls.
On 24 February 1995 the applicant pleaded not guilty at a pleading diet at Glasgow Sheriff Court. He was represented by Messrs D. H. & Co, solicitors.
The trial took place at Glasgow Sheriff Court on 11 to 12 July 1995, 2 August 1995 and 10 October 1995. The applicant was represented at the trial by Mr G., Advocate, engaged by the applicant’s solicitors.
On 10 October 1995 the applicant was convicted in Glasgow Sheriff Court on all four charges, sentence being deferred for social inquiry and community service reports. On 20 May 1996, the applicant appeared before the Sheriff for sentence. He was now represented by Mr M. of L. & Co., Solicitors. The Sheriff fined the applicant £100 on each of the breaches of the peace and merely admonished the applicant on the statutory charges. The applicant, who claimed that his representation at the trial was so defective that he was not effectively represented, changed his representatives to appeal to the High Court of Justiciary against conviction and sentence.
On 24 May 1996 the applicant’s solicitor applied for an extension of the time in which to apply for a stated case to the High Court of Justiciary.
On 4 June 1996 the High Court of Justiciary granted the applicant an extension in time to apply for a stated case. On 7 June 1996, the application was submitted by the applicant's solicitor, appealing against both conviction and sentence.
In his application for the stated case, the applicant claimed that he suffered a miscarriage of justice under the Criminal Procedure (Scotland) Act 1995, section 175(2)(d) and section 175(5), in that he was denied a fair trial as a result of defective representation at the trial. He made several allegations against his defence counsel, inter alia, that he had not presented the defence, had acted contrary to his instructions, has failed to challenge Crown evidence properly in cross-examination and had pressured him into not giving evidence.
On 26 July 1996 a hearing took place before the Sheriff to agree the draft stated case. On 30 July 1996 the stated case, signed by the Sheriff, was sent to the parties to the appeal.
On 3 September 1996 the applicant was granted leave to appeal by a judge of the High Court of Justiciary. This decision was notified to the applicant’s solicitor on 6 September 1996.
On 17 December 1996 the applicant’s case was put down to appear on the appeal roll of 28 January 1997 and the applicant’s solicitor advised accordingly.
The applicant's solicitor contacted the applicant on 6 January 1997, informing him that the appeal hearing was fixed for 28 January 1997. On 24 January 1997 the applicant’s solicitor informed him that a consultation with counsel had been fixed for 27 January 1997. This consultation lasted twenty minutes. The applicant states that counsel informed him that she would ask for an adjournment as the views of the previous legal representatives had not yet been sought.
During the appeal hearing on 28 January 1997, the High Court upheld the appeal made by the applicant against the convictions under the Data Protection Act 1984. As regards the applicant's appeal against his convictions for breaches of the peace, counsel for the applicant sought an adjournment of the appeal on the basis that she had only very recently been instructed to represent the applicant and that she had advised him that certain information and various statements had to be obtained in the light of the requirements laid down by the court in Anderson v. HM Advocate (1996 J.C. 29, SCCR 114). This would have involved an affidavit from the applicant and any supporting witness setting out the full details of allegations and a response to complaints from the original agent (solicitor) and counsel. According to the High Court judgment, counsel stated that no necessary steps had been taken and that she could not offer the court an explanation as to why none of the investigation or preparation had been done.
The High Court refused to adjourn the appeal stating that it must have been obvious for many months to the applicant and his present advisers that steps had to be taken in order to prepare the appeal to be advanced on the chosen grounds. It noted that the signed stated case was dispatched to the parties on 30 July 1996, that leave to appeal against conviction was granted on 3 September 1996 and intimation thereof was sent to the applicant's solicitor on 6 September 1996. It was therefore entirely unacceptable for the applicant to come forward at this late stage and, without explanation as to why none of the preparations required by the Anderson precedent had been done other than to instruct counsel on the eve of the appeal and seek a postponement of the appeal hearing in order to allow the necessary steps to be taken. It commented that while postponements had to be granted when adequate cause was shown and the failure to act timeously was explained, no explanation had been made in this case.
Moreover, the High Court stressed that it was important to avoid any unnecessary delay in the proceedings given that the events giving rise to the charge occurred in September and October 1994, and the principal Crown witnesses were then young girls in their early teens. It noted that there had already been a delay in that the time had been extended to allow an application for a stated case to be lodged some eight months late after the conclusion of the applicant's trial. Further, had the appeal been successful, the court would have had to grant authority to bring a new prosecution and the trial resulting from the new prosecution would have been unlikely to take place before the lapse of two years since the commencement of the original trial in July 1995. The High Court concluded that it would sanction no further delay and dismissed the application.
In her note of 17 March 1997, the applicant’s counsel recalled that the court had refused an adjournment as there had been no affidavit from the applicant detailing the failures alleged and no statements or approach had been made to his previous representatives. She had informed the court that she had not consulted with the applicant and solicitor until the day before the appeal and the fault for the late consultation rested with her due to her court commitments. She could not offer any explanation for the absence of affidavits from the applicant and his relatives but informed the court that she had instructed that these be prepared. Once they had been obtained, the applicant’s solicitor or the Clerk could have proceeded to contact the prior agents for their response.
In her further note of 25 June 1998, the applicant’s counsel stated that no affidavits had been prepared when she met the applicant and his solicitor, Mr M, the day before the appeal hearing. She had therefore advised that she would have to seek an adjournment. She did not recall if any explanation had been given to her for the failure to produce the information other than seeking the opinion of counsel as to how to proceed with the appeal.
In his letter of 11 August 1998, Mr M., the applicant’s solicitor at the appeal, stated that as soon as he had been notified of the date of the appeal he had instructed his Edinburgh agents to instruct counsel and sought a consultation. At the consultation he was told by counsel that further information was required and that she would seek an adjournment. She indicated to him and the applicant that they would not be required to attend the appeal hearing. He took the view that it was the role of the Clerk of the Court to seek the response of the applicant’s previous representatives and that there had been no explanation from the High Court as to the failure of the Clerk of the Court to do so in the applicant’s case.
The applicant received legal aid for his representation at trial and on appeal.
B. Relevant domestic law and practice
Defective representation as a ground of appeal
In the case of Anderson v. HM Advocate 1996 SCCR 114, decided on 1 December 1995, the High Court of Justiciary decided that, in certain circumstances, the conduct of the defence by the accused’s counsel or his solicitor could be a ground of appeal. The conduct must have been such as to have resulted in a miscarriage of justice in that it deprived the accused of his right to a fair trial by not presenting his defence to the court. The accused might have been deprived of the opportunity to present his defence because his counsel or solicitor acted contrary to his instructions for example.
The court noted that in such cases questions of fact might arise as to the nature and conduct of the defence and the court might require to hear evidence. Before it exercised this power, it had first to be satisfied that the complaint was of a kind likely to satisfy the test for a miscarriage of justice. It set out the preparation which it expected to be undertaken:
“difficult questions of professional practice may arise where allegations of this kind are made against counsel or a solicitor. It is essential therefore that those against whom the allegations are made are given a fair opportunity to respond in writing to these allegations before the court hears the appeal. The advocate or solicitor may, if he feels able to do so, provide a statement to the solicitor acting for the appellant to assist him and counsel in the drafting of the grounds of appeal. But he is under no obligation to provide any such statement. He may, if he prefers to do this, wait until the appeal is lodged and then lodge his statement with the Clerk of Justiciary. In all cases where a complaint is made against counsel or the solicitor who represented an appellant at his trial for which leave to appeal has been granted, the Clerk of Justiciary will advise counsel or solicitor of this fact, and will provide him with a copy of the ground of appeal so that he may respond to the allegations if he has not already done so. Once again we emphasise that he is under no obligation to respond at this stage to the allegation. But the court is likely to find it helpful to know whether the complaint is disputed and, if so, on what grounds, before it reaches a decision as to whether an inquiry into the facts will be necessary to decide the appeal.”
Courts’ power to adjourn cases
Unless otherwise expressly provided by statute, the courts have an inherent common law power to adjourn cases where it is considered necessary in the interests of justice and conversely to refuse to do so, also in the interests of justice.
In general the courts will grant an adjournment that is requested by the defence if it is necessary to allow the defence to prepare their case (MacKellar v. Dickson (1898) 2 Adam 504 and Ferguson v. McNab (1884) 5 Couper 471). The courts are less amenable to granting an adjournment on this basis if it is apparent that the accused or his agents had sufficient time and were in a position to carry out the necessary preparation for the trial but simply failed to do so (eg. Nash v. Normand 1996 SCCR 196).


ITEMID: 001-103674
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF TSARENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 13+3
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 4. The applicant was born in 1989 and lived in St Petersburg until the time of his arrest.
5. On 12 March 2007 the applicant was arrested on suspicion of killing and/or causing grievous bodily injuries to several individuals. On the following day the Pushkinskiy District Court of St Petersburg remanded him in custody.
6. On 10 May, 14 June, 29 August and 3 December 2007 and 18 January 2008 the Pushkinskiy District Court extended the authorised period of the applicant's detention for up to a total duration of one year.
7. On 26 February, 2 April and 3 June 2008 the St Petersburg City Court authorised further extensions of the applicant's pre-trial detention until 4 August 2008. No appeal was lodged against the extension orders.
8. On 21 July 2008 the pre-trial investigation was completed and the applicant was granted access to the case file.
9. On 30 July 2008 the St Petersburg City Court granted the prosecutor's application for a further extension of the applicant's detention until 12 September 2008, that is, for a total duration of eighteen months. The City Court referred to the gravity of the charges against the applicant, the existence of a reasonable suspicion of his involvement in the commission of the alleged offences and certain “objective circumstances”, in particular, the fact that the defendants had not yet finished studying the case file.
10. On 5 August 2008 counsel for the applicant lodged an appeal against the extension order. Counsel pointed out that the City Court had failed to identify any concrete facts to justify the risks of absconding, reoffending or obstructing justice. She alleged a violation of Article 5 § 3 of the Convention. On 22 September 2008 the Supreme Court of the Russian Federation rejected the appeal, finding that the gravity of the charges could be taken into account when deciding to extend the pre-trial detention.
11. In the meantime, the prosecution applied for a further extension of the applicant's detention. It was submitted that he stood accused of a serious criminal offence and had not yet finished reading the case file. The defence objected to the extension and emphasised that the applicant had a place of permanent residence, no criminal record and positive references.
12. On 10 September 2008 the City Court granted the extension sought by the prosecution, referring to the gravity of the charges against the applicant and the medical findings that he did not have any health issues which could have required his release. The extension was granted until 4 October 2008, by reference to Article 109 of the Code of Criminal Procedure.
13. On 17 September 2008 counsel for the applicant appealed against the extension order. She submitted that neither the gravity of the charges nor the fact that the applicant had not finished studying the file were relevant or sufficient grounds for extending his pre-trial detention. On 5 November 2008 the Supreme Court rejected the appeal. Neither the applicant nor his counsel were present at the appeal hearing.
14. On 1 October 2008 the City Court granted a further extension of the applicant's detention until 4 December 2008, finding in particular as follows:
“The gravity and public dangerousness of the crimes imputed to Mr Tsarenko are such that an undertaking to appear would not be sufficient to guarantee his appearance before the investigator or in court or to ensure his law-abiding conduct.”
15. In the statement of appeal, counsel for the applicant pointed out that on 10 September 2008 the City Court had already granted one extension for the purpose of studying the file and that Article 109 §§ 7 and 8 of the Code of Criminal Procedure did not provide for a possibility to grant repeated extensions for that same purpose. In her submission, a second extension of the detention period, such as the one authorised by the City Court on 1 October 2008, was contrary both to the letter of Article 109 and to its interpretation given in the Constitutional Court's judgments no. 167-O of 25 December 1998 and no. 352-O of 11 July 2006 (cited below), and was therefore arbitrary and incompatible with Article 5 of the Convention.
16. The applicant sought leave to appear in person before the appeal court. On 20 November 2008 the Supreme Court refused him leave on the ground that the applicant had not submitted a separate statement of appeal and his presence would not therefore be indispensable. In the same hearing, the Supreme Court rejected the appeal against the extension order in a summary fashion. On the issue of the alleged unlawfulness of repeated extensions, it found as follows:
“The argument to the effect that the judge was not authorised to grant a second extension of the detention period for studying the criminal case file on the same grounds may not be taken into account because it is not founded on law, which was given an incorrect interpretation [sic].”
17. On 3 December 2008 the St Petersburg City Court granted a further extension of the applicant's detention until 4 February 2009, noting that the preventive measure was lawful and justified, taking into account the gravity of the charges and “information on [the applicant's] character”. On 19 January 2009 the Supreme Court refused the applicant leave to appear and rejected the appeal lodged by his counsel. It expressed the view that Article 109 § 7 permitted repeated extensions of the detention period when it was necessary to allow the defendant to finish studying the case file.
18. On 3 February and 1 April 2009 the City Court examined further requests by the prosecution for extensions of the applicant's detention and granted the extensions requested. It held that the applicant could not be released on an undertaking to appear because of the gravity and “public importance” of the crimes imputed to him. It also expressed the view that further extensions were lawful within the meaning of Article 109 § 8 of the CCrP since the requests for extensions had been made within the seven-day time-limit mentioned in that provision.
19. On 5 February 2009 counsel for the applicant and the applicant himself submitted statements of appeal against the extension order of 3 February 2009. The applicant also sought leave to appear before the appeal court. Counsel pointed out that on 3 February 2009 the City Court had already granted a fourth extension in excess of the maximum eighteenmonth detention period, which was incompatible with the requirements of Article 109 §§ 7 and 8 of the CCrP. By decision of 26 March 2009, the Supreme Court refused the applicant leave to appear, noting that his presence was not necessary because all the arguments were explained in sufficient detail in his counsel's submissions. In the same hearing, the Supreme Court rejected the appeals against the extension orders, holding that counsel had “incorrectly interpreted” the provisions of Article 109.
20. On 28 April 2009 the St Petersburg City Court extended the authorised period of the applicant's detention until 20 May 2009 for the purpose of allowing the prosecution sufficient time for complying with the legal requirement that a case be submitted for trial no later than fourteen days before the expiry of the detention period. As to the grounds for continued detention, the City Court noted that the grounds for preferring a custodial measure still obtained.
21. On 6 May 2009 the case against the applicant and other codefendants was referred for trial. On 14 May 2009 the City Court held a preliminary hearing, in the absence of the applicant and his counsel, and indicated that the custodial measure “should remain unchanged”. It did not set a time-limit for the measure or list any grounds for continuing its application.
22. On 28 May 2009 the City Court issued a decision by which it extended the detention period in respect of the applicant and six other co-defendants for a further six months. It referred to the gravity of the charges against them.
23. On 10 August 2009 the Supreme Court examined the appeals submitted by the applicant's counsel against the extension orders of 6 and 28 May 2009 and rejected them. Counsel and the applicant did not take part in the hearing.
24. On 5 November 2009 the City Court extended the period of detention in respect of all defendants for a further three months, noting the gravity of the charges and continuing examination of evidence.
25. On 6 April 2010 the St Petersburg City Court convicted the applicant and his co-defendants of various violent crimes committed for racial motives. The applicant was sentenced to three years and six months' imprisonment but relieved from serving the sentence owing to the expiry of the prescription period. The applicant was released from custody on the same day. He did not file an appeal, but two of his co-defendants did. On 21 October 2010 the Supreme Court upheld the judgment on appeal.
26. Before 24 November 2007, while the applicant was legally a minor, he was held in a special wing of remand prison no. IZ-47/1 of St Petersburg, popularly known as “Kresty”, and in remand prison no. IZ-47/2 of Tikhvin in the Leningrad Region. The applicant raised no complaints in respect of that period of detention.
27. After 24 November 2007, when he reached legal majority, the applicant was held together with adult detainees in various cells of remand prison no. IZ-47/1.
28. The Government produced, among other documents, two statements of 27 July 2009 from the director of remand prison no. IZ-47/1, according to which all the cells in which the applicant had been detained, had measured eight square metres and accommodated no more than three detainees, including the applicant. They also submitted disparate sheets from a certain register concerning transfers of detainees, all of which referred to a period prior to 24 November 2007.
29. According to the applicant, the cells measured eight square metres and were equipped with two three-tier bunk beds. The actual number of inmates ranged from four to six, including the applicant himself. The mandatory ventilation did not function and the toilet was not separated from the living area. Inmates used bed sheets to create a makeshift screen around it but warders considered it to be a violation of prison regulations and tore them down.
30. On 1 December 2008 the applicant complained about the conditions of detention to a supervising prosecutor. On 12 February 2009 the St Petersburg prosecutor sent a reply to his complaint, in which he acknowledged, in particular, that the personal space afforded to inmates in cell no. 47 was below the legal norm of four sq. m per person. On 20 February 2009 the prosecutor ordered the director of the remand prison to remedy a violation of the law and discipline those responsible.
31. According to the Government, on 31 March, 30 June and 30 July 2009 the St Petersburg prosecutor issued further warnings to the director of the remand prison, requiring him to improve the material conditions of the inmates' detention and bring them up to the applicable standards.
32. In August 2009 the applicant was transferred to a new cell of the same size which he shared with one detainee until he was released on 6 April 2010.
33. Pursuant to Article 109 § 1, the initial pre-trial detention of an accused must not exceed two months. It may be subsequently extended up to six months.
34. Further extensions to up to twelve months are possible only in relation to persons accused of serious or particularly serious criminal offences, in view of the complexity of the case and if there are grounds justifying detention. An investigator's request for extension must be approved by the regional prosecutor (§ 2).
35. An extension of detention beyond twelve months and up to eighteen months may be authorised only in exceptional circumstances in respect of persons accused of particularly serious offences, upon an investigator's request approved by the Prosecutor General or his deputy (§ 3).
36. Extension of detention beyond eighteen months is prohibited and the detainee must be immediately released, unless the prosecution's request for an extension for the purpose of studying the case has been granted by a court in accordance with Article 109 § 8 of the CCrP (§ 4).
37. Upon completion of the investigation, the detainee must be given access to the case file no later than thirty days preceding the expiry of the maximum period of detention indicated in paragraphs 2 and 3 (§ 5).
38. If access was granted on a later date, the detainee must be released after the expiry of the maximum period of detention (§ 6).
39. If access was granted thirty days before the expiry of the maximum period of detention but the thirty-day period proved to be insufficient to read the entire case file, the investigator may request the court to extend the period of detention. The request must be submitted no later than seven days before the expiry of the detention period (§ 7).
40. Within five days of receipt of the request for an extension, the judge must decide whether to grant it or reject it and release the detainee. If the extension is granted, the period of detention is extended until such time as would be sufficient for the detainee and counsel to finish reading the case file and for the prosecution to submit the case to the trial court (§ 8).
41. Examining the compatibility of Article 97 of the RSFSR CCrP (now replaced by Article 109 of the CCrP) with the Constitution, on 13 June 1996 the Constitutional Court ruled as follows:
“... affording the defendant a sufficient time for studying the file must not result in ... his detention for a period of an unlimited duration. In that case such detention would amount to a sanction for using by the defendant of his procedural rights and thereby induce him to waive these rights ...”
42. On 25 December 1998 the Constitutional Court issued a further clarification of its position (decision no. 167-O), finding as follows:
“3. ... the studying of the file [by the defendant and his counsel] is a necessary condition for extending the term of detention [beyond eighteen months] but it may not be, taken on its own, a sufficient ground for granting such an extension... For that reason, in each particular case the prosecutor's application for extending the period of detention beyond eighteen months (Article 97 §§ 4, 6 of the RSFSR CCrP) must refer not to the fact that the defendant and his counsel continue to study the file ... but rather to factual information demonstrating that this preventive measure cannot be revoked and the legal grounds for its continued application remain ...
6. ... Article 97 § 5 of the RSFSR CCrP expressly provides that, on an application by a prosecutor, the judge may extend the defendant's detention until such time as the defendant and his counsel have finished studying the file and the prosecutor has submitted it to the [trial] court, but by no longer than six months. Accordingly, the law does not provide for lodging of repeated applications for extension of the defendant's detention, even after an additional investigation [has been carried out] ... In the absence of an express legal provision for repeated extensions of detention on that ground, any other interpretation of [Article 97] would breach the prohibition on arbitrary detention within the meaning of the Constitutional Court's decision of 13 June 1996.”
43. By decision no. 352-O of 11 July 2006, the Constitutional Court confirmed its position, by reference to above-cited decision no. 167-O, that in the absence of an express provision to that effect, time-limits during the pre-trial investigation may not be repeatedly extended, particularly on the same grounds, in excess of the maximum time-limit set out in the CCrP.
44. In decision no. 271-O-O of 19 March 2009, the Constitutional Court expressed the view that Article 109 § 8 (1) of the CCrP was compatible with the Constitution. Even though this provision did not define the maximum period within which an extension could be granted for the purpose of studying the case file, it did not imply the possibility of excessive or unlimited detention because, in granting an extension, the court should not rely solely on a well-founded suspicion that the defendant committed the offence but mainly base its decision on specific circumstances justifying the continued detention, such as his potential to exert pressure on witnesses or an established risk of his absconding or reoffending.
VIOLATED_ARTICLES: 13
3
5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4