ITEMID: 001-60737
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF DÖRY v. SWEDEN
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 8. By a provisional decision of 25 April 1990 the Social Insurance Office (försäkringskassan; hereinafter “the Office”) of the County of Stockholm decided that payments of industrial injury benefits to the applicant, who was born in 1954, should be discontinued as from 1 March 1990. This decision was confirmed by a final decision of 2 July 1990. The Office considered that the applicant’s ability to work was not reduced due to her back problems to such an extent that she was entitled to the benefits in question under the applicable rules of the Act on Industrial Injury Insurance (Lagen om arbetsskadeförsäkring, 1976:380; hereinafter “the 1976 Act”)
9. The applicant later requested the Office to review its decision, which it did on 20 November 1991. Save for the grant of benefits for the period 1 March – 27 April 1990, the Office upheld its previous decision and also found that the applicant was not entitled to a life annuity.
10. The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm, claiming that she was entitled to continued benefits after 27 April 1990. She maintained that the medical evidence, on which the Office’s decision was based, in fact showed that she was entitled to the benefits sought.
11. By a judgment of 8 April 1992 the County Administrative Court upheld the Office’s decision. The court’s assessment was based on medical certificates from three different physicians who all stated that the applicant was able to work and thus was not entitled to the benefits in question. It did not hold an oral hearing, nor did the applicant request one.
12. The applicant then appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm. In support of her appeal she invoked medical certificates issued by three other physicians. Furthermore, without stating any reasons for her request, she asked the court to hold an oral hearing.
13. On 5 November 1992 the appellate court rejected the request for an oral hearing. After having restated section 9 of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291; hereinafter “the 1971 Act”; see further paragraph 28 below), it gave the following reasons:
“Having regard to the subject-matter at issue and the information that has so far come to hand in the case, [the court] finds that an oral hearing is at present unnecessary. [The applicant] is invited to submit her final written observations in the case within two weeks after having been notified of this decision.
The case can be determined notwithstanding a failure to submit such written observations.”
14. On 25 February 1994 the Administrative Court of Appeal, relying on the medical evidence submitted in the case, rejected the applicant’s appeal. It also rejected her renewed request for an oral hearing.
15. The applicant appealed against the judgment to the Supreme Social Insurance Court (Försäkringsöverdomstolen). She complained about the lack of oral hearings in the lower courts. In that respect, she maintained that the case had not been adequately investigated and that an oral hearing had been necessary for her to explain matters of importance to the courts’ assessment.
16. By a letter of 9 February 1995 the Supreme Social Insurance Court informed the applicant that an oral hearing in the case appeared to be unnecessary. She was given the opportunity to submit further observations on the question of leave to appeal.
17. On 8 June 1995 the Supreme Social Insurance Court refused the applicant leave to appeal.
18. The applicant was on sick-leave between 1 May and 30 June 1991, during which period she received per diem sickness benefits under the Social Insurance Act (Lagen om allmän försäkring, 1962:381; hereinafter “the 1962 Act”). However, by a decision of 7 August 1991 the Office found that she was no longer entitled to such benefits. At the applicant’s request, the Office reviewed its decision on 10 June 1992 but did not change it.
19. On 15 September 1993 the County Administrative Court, upon the applicant’s appeal, found that the available medical evidence did not show that she was entitled to benefits as from 1 July 1991. The appeal was thus rejected. It does not appear that the applicant asked for an oral hearing before this instance.
20. The applicant appealed to the Administrative Court of Appeal. She requested also in this case that the appellate court hold an oral hearing and, moreover, asked it to obtain further medical evidence. On 2 December 1993 the court rejected the requests, giving the same reasons on the issue of an oral hearing as in its decision of 5 November 1992 (see paragraph 13 above).
21. On 25 February 1994 the Administrative Court of Appeal rejected the applicant’s appeal and her renewed request for an oral hearing.
22. The applicant appealed against the judgment to the Supreme Social Insurance Court. She requested again that an oral hearing be held in the case. She also complained about the lack of oral hearings in the lower courts.
23. By a letter of 9 February 1995 the Supreme Social Insurance Court informed the applicant that an oral hearing in the case appeared to be unnecessary. She was given the opportunity to submit further observations on the question of leave to appeal.
24. On 8 June 1995 the Supreme Social Insurance Court refused the applicant leave to appeal.
25. All gainfully employed persons working in Sweden are insured against industrial injuries in accordance with the 1976 Act. Anyone who is put on the sick-list as a result of an industrial injury and who is insured under the 1962 Act is entitled to the same per diem benefit from the ordinary sickness insurance (social insurance) during the first 90 days as if he or she had been sick for a reason other than an industrial injury. When 90 days have passed, the insured person is entitled to a per diem sickness benefit in accordance with the 1976 Act (industrial injury insurance), if his or her ability to carry on with gainful employment is reduced by at least 25% (50% prior to 1 July 1990). After the period of sickness has come to an end and the insured person is no longer on the sick-list, he or she is entitled to a life annuity if the capacity for gainful employment is reduced by at least one fifteenth.
26. All Swedish nationals and other residents in Sweden are insured in accordance with the 1962 Act. Anyone who is registered with the Social Insurance Office and has an annual income of at least 6,000 Swedish kronor (SEK) has the right to a per diem sickness benefit, if his or her sickness reduces the ability to work by at least 25%.
27. A decision by the Social Insurance Office under the 1962 and 1976 Acts may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and, at the relevant time, subject to leave to appeal being granted, to the Supreme Social Insurance Court. The latter court was the final instance in social insurance matters until 1 July 1995, when it was abolished and its tasks taken over by the Supreme Administrative Court (Regeringsrätten).
28. The procedure in the administrative courts is governed by the provisions of the 1971 Act. It also regulated the proceedings before the Supreme Social Insurance Court. Section 9 provides:
“The proceedings are in writing.
An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case.
In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”
The possibility for an individual party to obtain an oral hearing on request under those circumstances was not available in the proceedings before the Supreme Social Insurance Court.
29. According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535).
30. It was further stated, in respect of the third paragraph of section 9, that a party’s request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91722
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF LÖFFELMANN v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 14+9;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 7. The applicant was born in 1976 and lives in Maissau.
8. Upon his baptism on 9 July 1994 he became a member of the Jehovah’s Witnesses in Austria, within which he assumed the function of a preacher or “regular pioneer” (Prediger, allgemeiner Pionier) and, since 27 November 1996, a deacon or “ministerial servant” (Diakon, Dienstamtgehilfe). In this function he assisted the clerical work of elders of the Jehovah’s Witnesses.
9. On 17 November 1994 the Lower Austrian Military Authority (Militärkommando) found that the applicant was fit to perform military service. On 3 July 1995 the applicant started his military service; however, on 1 August 1995 he was discharged following a military medical expert opinion that had found him unfit for service.
10. On 28 September 1995 the Lower Austrian Military Authority issued a conscription order (Stellungsbescheid) in respect of the applicant, ordering him to undergo another examination as to his ability to perform military service pursuant to section 24(8) of the Military Service Act (Wehrgesetz), as in force at the relevant time. As to the applicant’s argument that he should be exempted from military service under section 24(3) of the Military Service Act, it noted that the applicant was not a member of a recognised religious society.
11. The applicant appealed against that order, claiming in particular that he should be dispensed from military service since he performed a function within the Jehovah’s Witnesses which was equivalent to that of members of a recognised religious society who were exempted from military service under section 24(3) of the Military Service Act. To restrict such a privilege to members of recognised religious societies was not objectively justified and was therefore in breach of the Federal Constitution.
12. On 16 November 1995 the Federal Minister for Defence (Bundesminister für Landesverteidigung) dismissed the applicant’s appeal and confirmed the lower authority’s decision.
13. On 8 January 1996 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof), requesting it to repeal the wording “recognised religious societies” in section 24(3) of the Military Service Act.
14. On 1 December 1997 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. It referred to an earlier decision by which it had found that the obligation to perform military or civilian service raised no concerns as regards compliance with Article 9 of the Convention.
15. On 26 March 1998 the Administrative Court (Verwaltungs-gerichtshof) dismissed the applicant’s complaint. It noted that the applicant had solely complained about section 24(3) of the Military Service Act in conjunction with the 1998 Act on the Legal Status of Registered Religious Communities (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften – hereafter referred to as the “1998 Act”), which had entered into force on 10 January 1998. However, the Administrative Court had to limit its examination of the legality of the drafting order to the legal situation at the time when the order had been issued. Referring to the case-law quoted by the Constitutional Court, it found no concerns as regards the legality of the drafting order and therefore also no indication to institute proceedings to review constitutionality (Gesetzesprüfungsverfahren) as proposed by the applicant.
16. On 14 May 1998 the Lower Austrian Military Authority issued another conscription order for an examination of the applicant’s fitness to perform military service.
17. On 19 May 1998 the applicant lodged a complaint with the Constitutional Court against the order. He submitted in particular that by virtue of the 1998 Act, the Jehovah’s Witnesses had been granted the status of a “registered religious community”. However, the ten-year period for a successful application for recognition under the Recognition Act (Anerkennungsgesetz), newly introduced by section 11 of the 1998 Act, lacked objective justification. Furthermore, it precluded any recognition for the following ten years. Since section 24(3) of the Military Service Act referred to “recognised religious societies” and restricted exemption from military service to members of recognised religious societies, the applicant again requested the Constitutional Court to revoke this limitation and also to revoke the ten-year period prescribed in section 11 of the 1998 Act.
18. On 8 June 1998 the Constitutional Court refused to deal with the complaint for lack of prospects of success. It further held that the provision of the 1998 Act referred to was not directly applicable to the case at issue.
19. Subsequently, the applicant filed a request for recognition as a conscientious objector (Zivildiensterklärung), which was granted.
20. Between 1 February 1999 and 31 January 2000 he performed his civilian service in a social institution.
21. On 1 February 2000 the applicant joined the “Religious Order of the Jehovah’s Witnesses” (Orden der Sondervollzeitdiener der Zeugen Jehovas), where he lived and worked as a preacher (Bethelmitarbeiter).
22. In February 2001 he left the order and continued to work as a preacher and deacon.
23. Article 9a § 3 of the Federal Constitution reads as follows:
“Every male Austrian citizen is liable for military service. Conscientious objectors who refuse to perform compulsory military service and who are dispensed from this requirement must perform alternative service. The details shall be regulated by ordinary law.”
24. Section 24(3) of the Military Service Act, as in force at the relevant time, read as follows:
“An exemption from the obligation to perform military service shall apply to the following members of recognised religious societies:
1. ordained priests,
2. persons involved in spiritual welfare or in clerical teaching after graduating in theological studies,
3. members of a religious order who have made a solemn vow, and
4. students of theology who are preparing to assume a clerical function.”
25. Section 24(8) of the Military Service Act provided, inter alia, that persons whose fitness for military service, having initially been established, became questionable had to undergo another examination. However, the latest decision on fitness for performance of military service remained valid until the final conclusion of the fresh examination.
26. Section 1 of the Act provides that all religious faiths which have not yet been recognised in the legal order may be recognised as a religious society if they fulfil the conditions set out in the Act, namely that their teaching, services and internal organisation, as well as the name they choose, do not contain anything unlawful or morally offensive and that the setting up and existence of at least one community of worship (Cultusgemeinde) satisfying the statutory criteria is ensured.
27. Section 2 provides that if the above conditions are met, recognition is granted by the Minister for Religious Affairs (Cultusminister). Recognition has the effect that a religious society obtains legal personality under public law (juristische Person öffentlichen Rechts) and enjoys all rights which are granted under the legal order to such societies. Sections 4 et seq. regulate the setting up of communities of worship, membership of them, delimitation of their territory, and their bodies and statutes. Sections 10 to 12 deal with the nomination of religious ministers (Seelsorger) of religious societies, the qualifications such persons must have and how their nomination must be communicated to the authorities. Section 15 provides that the public authorities responsible for religious matters have a duty to monitor whether religious societies comply with the provisions of the Act.
28. The legal personality of the Roman Catholic Church is, on the one hand, regarded as historically recognised, and, on the other hand, explicitly recognised in an international treaty, the Concordat between the Holy See and the Republic of Austria, Federal Law Gazette II, No. 2/1934 (Konkordat zwischen dem Heiligen Stuhle und der Republik Österreich, BGBl. II Nr. 2/1934).
29. The following are examples of special laws recognising religious societies:
(a) Act on the External Legal Status of the Israelite Religious Society, Official Gazette of the Austrian Empire, No. 57/1890 (Gesetz über die äußeren Rechtsverhältnisse der Israelitischen Religionsgesellschaft, RGBl. Nr. 57/1890);
(b) Act of 15 July 1912 on the recognition of followers of Islam [according to the Hanafi rite] as a religious society, Official Gazette of the Austrian Empire No. 159/1912 (Gesetz vom 15. Juli 1912, betreffend die Anerkennung der Anhänger des Islam [nach hanefitischen Ritus] als Religionsgesellschaft, RGBl. Nr. 159/1912);
(c) Federal Act on the External Legal Status of the Evangelical Church, Federal Law Gazette No. 182/1961 (Bundesgesetz vom 6. Juli 1961 über die äußeren Rechtsverhältnisse der Evangelischen Kirche, BGBl. Nr. 182/1961);
(d) Federal Act on the External Legal Status of the Greek Orthodox Church in Austria, Federal Law Gazette No. 229/1967 (Bundesgesetz über die äußeren Rechtsverhältnisse der Griechisch-Orientalischen Kirche in Österreich, BGBl. Nr. 182/1961);
(e) Federal Act on the External Legal Status of the Oriental Orthodox Churches in Austria, Federal Law Gazette No. 20/2003 (Bundesgesetz über äußere Rechtsverhältnisse der Orientalisch-Orthodoxen Kirchen in Österreich, BGBl. Nr. 20/2003).
30. Between 1877 and 1982 the competent ministers recognised a further six religious societies.
31. The Religious Communities Act entered into force on 10 January 1998. Pursuant to section 2(3) of the Act, the Federal Minister for Education and Culture has to rule in a formal written decision (Bescheid) on the acquisition of legal personality by the religious community. In the same decision the Minister has to dissolve any association whose purpose was to disseminate the religious teachings of the religious community concerned (section 2(4)). The religious community has the right to call itself a “publicly registered religious community”.
32. Section 4 specifies the necessary contents of the statutes of the religious community. Among other things, they must specify the community’s name, which must be clearly distinguishable from the name of any existing religious community or society. They must further set out the main principles of the religious community’s faith, the aims and duties deriving from it, the rights and duties of the community’s adherents, including the conditions for terminating membership (it is further specified that no fee for leaving the religious community may be charged), how its bodies are appointed, who represents the religious community externally and how the community’s financial resources are raised. Lastly, the statutes must contain provisions on the liquidation of the religious community, ensuring that the assets acquired are not used for ends contrary to religious purposes.
33. Under section 5, the Federal Minister must refuse to grant legal personality to a religious community if, in view of its teachings or practice, this is necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedom of others; this is in particular the case if its activities involve incitement to commit criminal offences, obstruction of the psychological development of adolescents or undermining of people’s mental integrity, or if the statutes do not comply with section 4.
34. Under section 7, the religious community must inform the Federal Minister for Education and Cultural Affairs of the name and address of the persons belonging to its official bodies and of any change of its statutes without delay. The Minister must refuse to accept the notification if the appointment of the official bodies contravened the statutes or if the change of the statutes would constitute a reason for refusal of registration under section 5.
35. Section 9 specifies the reasons for termination of a community’s legal personality. Legal personality ceases to exist if the religious community dissolves itself or if the acknowledgment of its legal personality is revoked. Reasons for revoking legal personality are set out in subsection (2): for example, if the reasons for granting legal personality no longer subsist or if for more than one year no bodies representing the religious community externally have been appointed.
36. The Act only regulates the granting of legal personality. Once legal personality has been granted to a religious community, it may pursue the activities referred to in its statutes. There are no specific laws in Austria regulating the acquisition of assets by religious societies or communities, the establishment of places of worship or assembly, or the publication of religious material. However, provisions which contain explicit references to religious societies are spread over various statutory instruments (see below).
37. Since the entry into force of the Religious Communities Act on 10 January 1998, non-recognised religious associations may be granted legal personality upon application. A previous application for recognition under the Recognition Act is to be dealt with as an application under the Religious Communities Act pursuant to section 11(2).
38. Section 11(1) of the Religious Communities Act establishes additional criteria for a successful application under the Recognition Act, such as the existence of the religious association for at least twenty years in Austria and for at least ten years as a registered religious community; a minimum number of two adherents per thousand members of the Austrian population (at the moment, this means about 16,000 persons); the use of income and other assets for religious purposes, including charity activities; a positive attitude towards society and the State; and no illegal interference as regards the community’s relationship with recognised or other religious societies.
39. In various Austrian laws specific reference is made to recognised religious societies. The following list, which is not exhaustive, sets out the main instances.
Under section 8 of the Federal School Supervision Act (Bundes-Schulaufsichtsgesetz), representatives of recognised religious societies may sit (without the right to vote) on regional education boards.
Under the Private Schools Act (Privatschulgesetz), recognised religious societies, like public territorial entities, are presumed to possess the necessary qualifications to operate private schools, whereas other persons have to prove that they are qualified.
Under section 24(3) of the Military Service Act, ordained priests, persons involved in spiritual welfare or in religious teaching after graduating in theological studies, members of a religious order who have made a solemn vow and students of theology who are preparing to assume a pastoral function and who belong to a recognised religious society are exempt from military service and, under section 13 of the Civilian Service Act, are also exempt from alternative civilian service.
Under sections 192 and 195 of the Civil Code (ABGB), ministers of recognised religious societies are exempt from the obligation to submit an application to be appointed as guardians, and under section 3(4) of the 1990 Act on Juries of Assizes and Lay Judges (Geschworenen- und Schöffengesetz) they are exempt from acting as members of a jury of an assize court or as lay judges of a criminal court.
Section 18(1)(5) of the Income Tax Act provides that contributions to recognised religious societies are deductible from income tax up to an amount of 100 Euros (EUR) per year.
Section 2 of the Land Tax Act (Grundsteuergesetz) provides that real property owned by recognised religious societies and used for religious purposes is exempt from real-estate tax.
Under section 8(3)(a) of the 1955 Inheritance and Gift Act (Erbschafts- und Schenkungsteuergesetz), which was still in force at the relevant time, donations to domestic institutions of recognised churches or religious societies were subject to a reduced tax rate of 2.5%.
VIOLATED_ARTICLES: 14
9


ITEMID: 001-80133
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TURGAY v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1959 and lives in Adana.
5. Criminal proceedings were brought against the applicant by the public prosecutor at the Adana State Security Court under Article 168 § 2 of the Criminal Code. The applicant was accused of membership of an illegal organisation.
6. In the course of the criminal proceedings the applicant was remanded in custody. On 20 March 2001 Adana State Security Court convicted the applicant as charged and sentenced him to twelve years and six months' imprisonment. The applicant appealed.
7. On 28 August 2001 the principal public prosecutor at the Court of Cassation submitted his written opinion to the latter. This opinion was not communicated to the applicant.
8. On 20 November 2001 the Court of Cassation upheld the judgment of the first-instance court.
9. In March 2006 the applicant was released from prison following the reduction of his sentence in accordance with the provisions of the new Criminal Code.
10. The relevant domestic law and practice in force at the material time are outlined in the Göç v. Turkey judgment ([GC], no. 36590/97, § 34, ECHR 2002V).
11. On 2 January 2003 Article 316 of the Code of Criminal Procedure Law was amended to provide that the written opinion of the principal public prosecutor at the Court of Cassation be notified to the parties.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103287
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: SHUBIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The application was lodged by Mr Fedor Ivanovich Shubin, a Russian national who was born in 1960 and lives in the town of Beloretsk, the Republic of Bashkortostan. He acts pro se before the Court. The Russian Government (“the Government”) were represented by Ms V. Milinchuk and Mr G. Matyushkin, the successive Representatives of the Russian Federation at the European Court of Human Rights.
The facts, as submitted by the parties, may be summarised as follows.
The applicant, who participated in the Chernobyl nuclear disaster relief operation, brought proceedings before the Beloretsk Town Court (“the Town Court”) against the local social security office seeking increase of his monthly monetary allowance. He also sought to recover the unpaid sum.
On 30 October 1997 the Town Court awarded the applicant a lump sum in arrears and ordered that his monthly allowance be increased starting from November 1997. The Town Court also granted the applicant’s claim for non-pecuniary damage and costs. The judgment of 30 October 1997 was not appealed against and became final and enforceable.
The lump sum awarded was paid to the applicant shortly after the judgment of 30 October 1997 had entered into force.
Increased monthly allowance was being paid to the applicant until March 2002. Payment was then discontinued. For that reason the applicant lodged a claim with the Town Court complaining about non-enforcement of the judgment of 30 October 1997. On 4 August 2005 the Town Court held in the applicant’s favour and in addition awarded him a sum corresponding to the missing payments between 2002 and 2005. That judgment became final and was swiftly enforced.
Subsequently, the applicant lodged a claim for compensation due to the failure to pay the monthly allowances between 2002 and 2005 in line with the judgment of 30 October 1997. On 28 March 2008 the Town Court allowed the applicant’s claim. With reference to the direct applicability of the Convention pursuant to the Russian Constitution and the reasonabletime requirement contained in Article 6 § 1 thereof, the Town Court acknowledged the lengthy non-enforcement of the judgment of 30 October 1997 in the applicant’s favour. It concluded that he had suffered nonpecuniary damage. The Town Court granted the applicant 200,000 Russian roubles (approximately 5,000 euros) in compensation. That judgment was upheld on appeal by the Supreme Court of the Republic of Bashkortostan on 24 April 2008. It was enforced on 22 August 2008.


ITEMID: 001-57500
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 1989
DOCNAME: CASE OF HAUSCHILDT v. DENMARK
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 8. The applicant, Mr Mogens Hauschildt, who is a Danish citizen born in 1941, currently resides in Switzerland.
In 1974, he established a company, Scandinavian Capital Exchange PLC ("SCE"), which traded as a bullion dealer and also provided financial services. SCE became the largest bullion dealer in Scandinavia, with associated companies in Sweden, Norway, the Netherlands, the United Kingdom and Switzerland. The applicant was appointed its managing director.
9. Over the years and until the end of 1979, difficulties arose between SCE and the Danish National Bank, the Internal Revenue Service and the Ministry of Trade. They concerned the flow of money to and from SCE and its associated companies abroad.
10. On 30 January 1980 the Internal Revenue Service forwarded a complaint to the police in which it stated that the activities of the applicant and SCE seemed to involve violations of the Danish tax laws and the Penal Code.
After obtaining a warrant from a court, the police arrested the applicant, seized all available documents at the seat of the company and closed its business on 31 January 1980.
11. The applicant was brought before the Copenhagen City Court (Københavns byret) the following day and charged with fraud and tax evasion. The court directed that he should be kept under arrest for three consecutive periods of twenty-four hours; no objection was raised.
On 2 February 1980, after hearing the prosecution and the defence, the City Court held that the charges were not ill-founded and remanded the applicant in custody in solitary confinement under sections 762 and 770(3) of the Administration of Justice Act (Retsplejeloven - "the Act"; see paragraphs 33 and 36 below).
As a result of successive decisions, a number of which were taken by Judge Claus Larsen, Mr Hauschildt was held in detention on remand until the public trial began before the City Court on 27 April 1981 (see paragraphs 19-21 below). He also spent some time in solitary confinement (31 January to 27 August 1980).
12. During the investigation stage, the police seized further documents and property. Inquiries were also carried out in the United Kingdom, the Netherlands, Belgium, Switzerland, Liechtenstein and the United States of America. In accordance with the European Convention of 20 April 1959 on Mutual Assistance in Criminal Matters, the judge of the City Court on several occasions authorised the prosecution to seek co-operation from other European countries in securing documents as well as in other matters (see paragraph 22 below).
On 4 February 1981 the indictment, which ran to 86 pages, was served on Mr Hauschildt. He was charged with fraud and embezzlement on eight counts involving approximately 45 million Danish crowns.
13. The trial at first instance began before the City Court, sitting with one professional judge, Judge Larsen, and two lay judges, on 27 April 1981. According to the applicant, he had complained about the presiding judge before the trial, but no formal request was made on the matter. At the trial he was advised by his lawyers that section 60(2) of the Act debarred any challenge of the judge on the basis of the pre-trial decisions that he had made (see paragraphs 20-22 and 28 below).
14. In the course of over 130 court sittings at the trial the City Court heard some 150 witnesses as well as the applicant and examined a substantial number of documents. Furthermore, opinions from appointed experts, in particular accountants, were taken into consideration. The court also issued numerous orders concerning the remand in custody and solitary confinement of the applicant, the sending of commissions rogatory and other procedural matters (see paragraph 24 below).
15. The City Court, with Judge Larsen presiding, gave judgment on 1 November 1982. It found Mr Hauschildt guilty on all counts and sentenced him to seven years’ imprisonment.
16. The applicant appealed to the High Court of Eastern Denmark (Østre Landsret). This court sat with three professional judges and three lay judges. Its jurisdiction extended to both the law and the facts, and involved a trial de novo.
The hearing of the appeal began on 15 August 1983. Before the appeal hearing, the applicant had raised with the presiding judge an objection against one of the judges on the ground of his involvement in a City Court decision to seize the applicant’s correspondence and assets. However, counsel for the defence refused to argue this point on the basis of section 60(2) of the Act, and Mr Hauschildt withdrew the objection.
17. On 2 March 1984 the High Court found the applicant guilty on six of the eight counts and sentenced him to five years’ imprisonment. The extensive character of the fraud was treated as an aggravating factor. On the other hand, the court took into account the fact that the applicant had been held in custody on remand since 31 January 1980, and considered this detention harsher than regular imprisonment. Mr Hauschildt was released on the same day.
18. The applicant’s subsequent application for leave to appeal to the Supreme Court (Højesteret) was rejected by the Ministry of Justice on 4 May 1984.
19. As already mentioned (see paragraph 11 above), the City Court judge had decided on 2 February 1980 to remand Mr Hauschildt in custody in solitary confinement. In the judge’s opinion, there were reasons to believe that the applicant, if at large, would abscond or impede the investigation (section 762(1) nos. 1 and 3 and section 770(3) of the Act; see paragraphs 33 and 36 below). As justification for the detention he listed the following elements:
(1) the circumstance that the applicant had lived outside Denmark until 1976 and at the time of his arrest was planning to move to Sweden;
(2) his economic interests abroad;
(3) the importance of the case;
(4) the risk of his obstructing the investigation by exerting influence on persons in Denmark and abroad.
20. In accordance with section 767 of the Act, the applicant’s continued detention on remand was subject to regular judicial control carried out at maximum intervals of four weeks. The elements set out in the initial decision of 2 February 1980, which had been taken by Judge Rasmussen, were the basis for the applicant’s detention until 10 April 1980.
On 10 April the City Court judge, Mr Larsen, who was subsequently to preside over the trial court that heard the applicant’s case (see paragraph 13 above), also relied on section 762(1) no. 2 as a ground for his remand in custody (danger of his committing new crimes; see paragraph 33 below). The reason prompting that decision was the fact that the applicant had, whilst in custody, secretly communicated with his wife and asked her to remove money from certain bank accounts as well as certain personal property. Subsequently, on 30 April, the same judge ordered her detention on remand and the stopping of a letter written by the applicant.
At a later stage, when ruling on 5 September 1980 on an appeal against an order of further remand in custody, the High Court referred in addition to sub-section 2 of section 762 (see paragraph 33 below), since the investigations carried out by the police at that time indicated a possible loss by the injured parties of approximately 19,5 million Danish crowns. From 24 September on, Judge Larsen also relied additionally on this sub-section.
The applicant’s detention on remand continued to be based on each of the three paragraphs of sub-section (1) and on sub-section (2) of section 762 (see paragraph 33 below) until 17 August 1982 when paragraph 3 of sub-section (1) was no longer relied on.
21. As from the applicant’s arrest on 31 January 1980 and until the trial started on 27 April 1981, police investigations and his continuing detention on remand necessitated decisions to be taken by the City Court sitting with one professional judge. A total of approximately forty court sittings were held in connection with the case during this period, twenty of which were concerned with remand in custody and, from 31 January to 27 August 1980, also with the question of solitary confinement. Fifteen of these decisions were taken by Judge Larsen (10 April, 30 April, 28 May, 25 June, 20 August, 27 August, 24 September, 15 October, 12 November, 3 December and 10 December 1980 and 4 February, 25 February, 11 March and 8 April 1981). On five of these occasions he ordered prolongation of the applicant’s solitary confinement (10 April, 30 April, 28 May, 25 June and 20 August 1980). On 27 August 1980, however, he terminated the solitary confinement.
22. During this period, the City Court decided on three occasions (5 March, 16 June and 13 August), on application by the police, to request the co-operation of other countries in securing documents and in other matters (see paragraph 12 above). Two of these decisions were taken by Judge Larsen (16 June and 13 August 1980).
The City Court judge was furthermore called on to rule on a number of other procedural matters such as the seizure of the applicant’s property and documents, his contacts with the press, access to police reports, visits in prison, payment of defence counsel fees and correspondence. Besides the order of 30 April 1980 to detain Mr Hauschildt’s wife on remand (see paragraph 20 above), Judge Larsen gave directions on 28 May 1980 as to the stopping of another of the applicant’s letters, on 12 November 1980 as to the seizure of a certain amount of money which allegedly belonged to the applicant, on 4 February 1981 as to a change of defence counsel, and finally on 11 March 1981 as to the applicant’s access to certain parts of the police files. These rulings were delivered at the request either of the prosecutor or of the defence counsel.
23. Mr Hauschildt brought various decisions taken by the City Court judge before the High Court sitting on appeal with three professional judges. On five occasions the High Court was called upon to inquire into the applicant’s continued remand in custody. Altogether thirteen different judges participated in these decisions, none of whom was subsequently involved in the appeal proceedings regarding conviction and sentence. The same applied to the six judges who heard appeals on other procedural matters.
24. During Mr Hauschildt’s trial, from 27 April 1981 to 1 November 1982 (see paragraphs 13-15 above), the City Court, sitting with Judge Larsen as presiding judge and two lay judges, was also required to give rulings on a number of procedural matters. In particular, the court prolonged the applicant’s detention on remand twenty-three times on the basis of section 762(1) and (2). Except on two occasions, these orders were made by Judge Larsen and, on four, he was joined by the two lay judges. Furthermore, from 2 July to 7 October 1981, the applicant was kept in solitary confinement at the request of the prosecuting authorities. Although the first order to this effect was made by another judge, Judge Larsen on two occasions prolonged the solitary confinement. In addition, on five occasions, he authorised the seeking of the co-operation of other countries.
25. The applicant entered nineteen appeals against these various rulings to the High Court. On twelve occasions, the High Court upheld the decision of the City Court concerning remand in custody. Fourteen judges participated in these judgments, none of whom was subsequently involved in the hearing of the applicant’s appeal against conviction and sentence. The applicant’s other appeals related to matters such as the appointment of defence counsel, the hearing of further witnesses, the issue of search warrants, custody in solitary confinement and travel expenses for defence counsel. Twelve different judges took part in these decisions. On 14 July 1981 three High Court judges upheld the order continuing the applicant’s solitary confinement, one of whom also sat on the court for the hearing of the applicant’s appeal against judgment.
26. According to Danish law, the applicant was still considered as being in custody on remand during the appeal proceedings (see paragraphs 16-17 above). The High Court had accordingly to review the detention at least every four weeks. Out of the nineteen renewals ordered, ten were ordered before the hearing opened, whereas the remaining nine were ordered during the sittings. With a few exceptions all decisions concerning detention on remand were adopted by the same judges as took part in the proceedings on appeal. During the hearing (15 August 1983 to 2 March 1984), the professional judges were joined by three lay judges.
The above-mentioned rulings of the High Court were based on section 762(1) no. 1 and 762(2) of the Act (see paragraph 33 below). The court attached particular importance to the gravity of the charges and to the fact that the applicant had lived abroad and still had substantial economic interests abroad.
27. The applicant twice obtained leave from the Ministry of Justice to bring the issue of his continued detention on remand before the Supreme Court. On 26 January 1983 the Supreme Court upheld the decision of the High Court, while considering that the detention should also be based on section 762(1) no. 2 (see paragraph 33 below). In fact, some of the offences for which the applicant had been convicted by the City Court had been committed whilst he had been in custody on remand. On 9 December 1983 the Supreme Court directed that the detention should continue but be based solely on section 762(1) nos. 1 and 2 (see paragraph 33 below). The majority of the court found that the public interest no longer required the applicant to be kept in custody under section 762(2).
28. The challenge of a judge is governed by sections 60 to 63 of the Act:
"(1) No one may act as a judge in a case where he,
1. is himself a party to the case, or has an interest in its outcome, or, if it is a criminal case, has suffered injury as a result of the criminal offence;
2. is related by blood or marriage to one of the parties in a civil case or with the accused in a criminal case, whether in lineal ascent or descent or collaterally up to and including first cousins, or is the spouse, guardian, adoptive or foster parent or adoptive or foster child of one of the parties or of the accused;
3. is married, or related by blood or marriage in lineal ascent or descent or collaterally up to and including first cousins, to a lawyer or other person representing one of the parties in a civil case or, in a criminal case, to the injured party or his representative or to any public prosecutor or police officer appearing in such a case or to the accused’s defence counsel;
4. has appeared as a witness or as an expert (syn- og skønsmand) in the case, or, if the case is a civil one, has acted in it as a lawyer or otherwise as representative of one of the parties, or, if the case is a criminal one, as a police officer, public prosecutor, defence counsel or other representative of the injured party;
5. has dealt with the case as a judge in the lower instance, or, if it is a criminal case, as member of the jury or as lay judge.
(2)
"In the situations mentioned in the preceding section, the judge shall, if he sits as a single judge, withdraw from sitting on the court by a decision pronounced by himself. If he sits on the court together with other judges, he shall inform the court of the circumstances which according to the preceding section may disqualify him. Likewise, the other judges on the court, whenever aware of such circumstances, are entitled and have the duty to raise the question of disqualification, whereafter the question is decided by the court, without the judge in question being excluded from taking part in the decision."
"(1) The parties can not only demand that a judge withdraw from sitting in the instances referred to in section 60 but may also object to a judge hearing a case when other circumstances are capable of raising doubt about his complete impartiality. In such instances the judge, too, if he fears that the parties cannot trust him fully, may withdraw from sitting even when no objection is lodged against him. Where a case is heard by several judges, any one of them may raise the question whether any of the judges on the bench should step down on account of the circumstances described above.
(2) The questions which might arise under this section shall be decided in the same manner as is laid down in section 61 in regard to the situations enumerated in section 60."
"The question whether or not a judge should remain on the bench, which when raised by one of the parties in civil matters is treated as other procedural objections, should as far as possible be raised before the beginning of the oral hearing. This question may be decided without the parties having been given the opportunity to submit comments."
29. According to the Government, no case-law on section 60(2) had been established by the Supreme Court at the time when the applicant’s case was pending before the Danish courts. However, by a ruling of 12 March 1987, the Supreme Court held that if a judge has directed the remand in custody of a person charged with a criminal offence, this shall not in itself be deemed to disqualify the judge from taking part in the subsequent trial and delivery of judgment.
30. In connection with an amendment extending the application of section 762(2) (see paragraph 35 below), section 60 was amended on 10 June 1987 by the Danish Parliament. Sub-section (2) as amended now provides that "no one shall act as a judge in the trial if, at an earlier stage of the proceedings, he has ordered the person concerned to be remanded into custody solely under section 762(2), unless the case is tried as a case in which the accused pleads guilty."
This amendment came into force on 1 July 1987.
31. In Denmark, the investigation is carried out by the prosecuting authorities, with the assistance of the police, and not by a judge. The functions of the police at the investigation stage are regulated by sections 742 and 743 of the Act, which provide:
"(1) Information about criminal offences shall be submitted to the police.
(2) The police shall set in motion an investigation either on the basis of such information or on their own initiative where there is a reasonable ground for believing that a criminal offence which is subject to public prosecution has been committed."
"The aim of the investigation is to clarify whether the requirements for establishing criminal responsibility or for imposing any other sanction under criminal law are fulfilled and to produce information to be used in the determination of the case as well as to prepare the case for trial."
32. Section 746 of the Act governs the role of the court:
"The court shall settle disputes concerning the lawfulness of measures of investigation taken by the police as well as those concerning the rights of the suspect and the defence counsel, including requests from the defence counsel or the suspect concerning the carrying out of further investigation measures. The decision shall be taken on request by order of the court."
33. Arrest and detention on remand are dealt with in sections 760 and 762 of the Act:
"(1) Any person who is taken into custody shall be released as soon as the reason for the arrest is no longer present. The time of his release shall appear in the report.
(2) Where the person taken into custody has not been released at an earlier stage he shall be brought before a judge within 24 hours after his arrest. The time of his arrest and of his appearance in court shall appear in the court transcript."
"(1) A suspect may be detained on remand when there is a justified reason to believe that he has committed an offence which is subject to public prosecution, provided the offence may under the law result in imprisonment for one year and six months or more and if
1. according to information received concerning the suspect’s situation there is specific reason to believe that he will evade prosecution or execution of judgment, or
2. according to information received concerning the suspect’s situation there is specific reason to fear that, if at large, he will commit a new offence of the nature described above, or
3.
(2) A suspect may furthermore be detained on remand when there is a ‘particularly confirmed suspicion’ [translation supplied by the Government of the Danish phrase saerlig bestyrket mistanke] that he has committed an offence which is subject to public prosecution and which may under the law result in imprisonment for six years or more and when respect for the public interest according to the information received about the gravity of the case is judged to require that the suspect should not be at liberty.
(3) Detention on remand may not be imposed if the offence can be expected to result in a fine or in light imprisonment (haefte) or if the deprivation of liberty will be disproportionate to the interference with the suspect’s situation, the importance of the case and the outcome expected if the suspect is found guilty."
34. Sub-section 2 of section 762 is applicable even in the absence of any of the conditions set out in sub-section 1. Section 762(2) was first inserted in the Act in 1935, following an aggravated rape case. In the Parliamentary record concerning this amendment (Rigsdagstidende, 1934-35 Part B, col. 2159), it is stated:
"When everyone assumes that the accused is guilty and therefore anticipates serious criminal prosecution against him, it may in the circumstances be highly objectionable that people, in their business and social lives, still have to observe and endure his moving around freely. Even though his guilt and its consequences have not yet been established by final judgment, the impression may be given of a lack of seriousness and consistency in the enforcement of the law, which may be likely to confuse the concept of justice."
35. Section 762(2) was amended in 1987 in order to extend its application to certain crimes of violence which were expected to entail a minimum of sixty days’ imprisonment. In reply to a criticism in an editorial in the newspaper Politiken, the Danish Minister of Justice wrote on 30 December 1986:
"In so far as it ... has been suggested that the Bill opens possibilities for the imprisonment of innocent persons, I find reason to stress that my proposed Bill makes it a condition that there is a particularly confirmed suspicion [the Minister’s emphasis] that the accused has committed the crime before he can be remanded in custody. Thus there has to be a very high degree of clarity with regard to the question of guilt before the provision can be applied and this is the very means of ensuring that innocent persons are not imprisoned."
36. Solitary confinement is governed by section 770(3) of the Act, which at the relevant time read as follows:
"On application by the police the court may decide that the detainee shall be totally or partially isolated if the purpose of the detention on remand so requires."
This provision was amended on 6 June 1984.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61961
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF McMULLEN v. IRELAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 9. The applicant was born in 1942 and lives in Dublin.
10. In 1982 he issued nuisance proceedings against his landlord. Those proceedings were settled in July 1985. Subsequently, and as a result of alleged further nuisance problems and new evidence, he unsuccessfully attempted to re-enter the nuisance proceedings in 1987.
11. On 29 June 1988 he issued negligence proceedings in the High Court against the firm of solicitors (“KC”) who had acted for him in the above-described nuisance action. He took issue with the advice given to him by KC during the settlement and, in particular, in relation to the possibility of re-entering his nuisance action. KC filed an appearance dated 26 October 1988. The applicant’s statement of claim was filed on 21 December 1988 and on 9 March 1989 he filed an application seeking judgment in default of defence which he obtained from the High Court on 10 April 1989. However, KC filed its defence on 18 April 1989 and sought an order to set aside the default judgment. On 1 May 1989 the default judgment was set aside. Further particulars of the applicant’s claim were requested by KC on 10 May 1989 and the applicant responded on 30 June 1989. On 15 May 1989 KC applied for discovery and on 2 June 1989 the High Court refused that application.
12. On 18 July 1989 the applicant applied for discovery by KC. On 5 October 1989 the High Court ordered discovery to be made by KC within six weeks. On 28 November 1989 he applied to strike out the defence of KC as they had not made discovery as ordered. That application was adjourned on 11 December 1989 and on 15 January 1990 his strike out application was refused. On 22 February 1990 he applied for further discovery from KC and on 5 March 1990 the High Court ordered KC to make further discovery within four weeks. KC filed affidavits of discovery on 26 February and 23 April 1990. On 21 November 1990 the applicant applied for further discovery to be made by KC. The hearing of this application was adjourned on 4 and 10 December 1990 and was considered on 14 January 1991. While the specific directions of the High Court after that hearing are not known, costs were awarded against KC.
13. On 28 June 1991 a notice of trial was filed by the applicant. On 21 August 1991 KC filed a motion for discovery by the applicant. On 24 October 1991 the High Court struck out this motion and costs were awarded against KC. The applicant then lodged a notice to amend his statement of claim on 5 May 1992. The action was put in a list to fix a hearing date three times (between July and December 1991). On the latter occasion the hearing date was fixed for 20 February 1992. However, on that date the High Court was informed of settlement negotiations and in March or April 1992 the case was accorded a further hearing date in May 1992.
The High Court heard the case on 5-7 May 1992, legal submissions were heard on 23 June 1992 and the court reserved its judgment. Judgment was delivered on 13 July 1993 dismissing the applicant’s case. The High Court judge found the evidence of a senior counsel (who had acted for the applicant in the nuisance proceedings – “SC”) more convincing than that of the applicant and found that KC had simply relied on the SC’s advice during the nuisance proceedings. Accordingly, it was found that no negligence could be attributed to KC. Costs were awarded to KC “when taxed and ascertained”.
14. On 30 August 1993 the applicant lodged his appeal to the Supreme Court: he argued that the High Court should not have relied on evidence of SC which was given in breach of SC’s privilege of confidentiality to the applicant.
15. SC was the subject of a complaint by the applicant to the Barristers Professional Conduct Tribunal of the Bar Council of Ireland. On 24 April 1995 the tribunal found that SC had been in breach of the Code of Conduct and by decision of 24 June 1995 he was formally admonished by the tribunal for dealing directly with the applicant and for giving evidence in court as to the advice he had given to the applicant without any protest as to confidentiality or privilege. On 21 November 1995 the Barristers’ Professional Conduct Appeals Board rejected an appeal and upheld the tribunal’s decisions.
16. On 12 July 1995 his representatives confirmed that all documents for the appeal had been filed. A letter of 20 November 1996 confirmed to the applicant that his appeal had been listed for hearing on 3 March 1997.
17. However, it was then listed for mention on 21 March 1997 when the applicant’s solicitors applied and were allowed to come off record. On that date the appeal hearing was adjourned (to 11 June 1997) and final submissions were ordered to be lodged by 14 May 1997. The applicant was not represented for the remainder of the proceedings. On 10 April 1997 the applicant applied for leave to amend his appeal and on 18 April 1997 the Supreme Court granted him leave.
18. The appeal came on for hearing on 11 June 1997. Since one of the judges had previously participated in a High Court action brought by the applicant, the applicant was given the opportunity of having the appeal heard by a differently constituted Supreme Court, the applicant accepted and the hearing was adjourned for mention on 20 June 1997. On that latter date, the appeal was listed for hearing on 17 October 1997.
19. On 18 July 1997 the Supreme Court adjourned the applicant’s request for leave to introduce fresh evidence until the date fixed for the hearing of the action. Due to the illness of one of the Supreme Court judges, that hearing date was vacated. A further hearing date was set for 16 December 1997. The hearing took place on 16 December 1997 and judgment was reserved. Judgment was delivered on 27 January 1998 rejecting the applicant’s appeal. The Court found that the applicant had impliedly waived his privilege by instituting the proceedings. The court noted that, even if the alleged negligence had been established, it was questionable whether he had suffered loss as the original nuisance action on which KC had advised him was more likely to fail than to succeed. The costs of the appeal were also awarded to KC “when taxed and ascertained”.
20. On 20 December 1998 KC filed a note of their High and Supreme Court costs. In the absence of the applicant’s agreement on the level of the costs, on 12 January 1999 KC issued a summons to taxation, returnable for 11 February 1999. On 29 January 1999 the parties consented to the matter being adjourned until 9 March 1999. On 24 February 1999 the applicant issued a motion for an order staying the taxation of costs. On 5 March 1999 the Supreme Court dismissed his application for a stay. On 9 March 1999 the taxation matter was adjourned on a consent basis until 28 April 1999. On that date taxation of the High Court costs commenced and concluded with a stay agreed on the issuance of the taxation certificate for fourteen days on the applicant’s request. On that date also (28 April 1999) the taxation of the Supreme Court costs also commenced, but was not finalised as some information was outstanding. On 14 May 1999 the taxation of the Supreme Court costs was concluded and, on the applicant’s request, a stay was put on the issuance of the relevant certificate until 21 June 1999.
21. On 21 June 1999 the applicant requested and obtained a further stay until 6 July 1999. On that date leave was granted by the taxing master to KC to take up both certificates of taxation. On 30 September 1999 those certificates were taken up by KC and were served on the applicant with a demand for payment by 4 October 1999. The costs payable by the applicant amounted to almost 70,000.00 pounds sterling inclusive of value added taxation. Further demands were sent to the applicant on 15 October and 1 November 1999 indicating that KC would apply for his bankruptcy should he not discharge the sums due.
22. On 28 January 2000 KC issued and served a “notice of the particulars of demand and requiring payment prior to the issue of a bankruptcy summons”, a notice which was updated with the interest accrued and served on the applicant on 12 September 2000. KC then filed affidavits dated 16 October and 3 November 2000 and on 20 October 2000 the High Court issued a bankruptcy summons on the application of KC.
23. The applicant applied on 6 December 2000 to dismiss the summons. KC filed an affidavit in response on 27 February 2001 to which the applicant replied by affidavits filed on 13 March and 10 December 2001. KC therefore filed an affidavit in response on 21 December 2001. On 22 January 2002 the High Court gave the applicant time to submit a further replying affidavit. The applicant submitted this affidavit on 4 February 2002. The matter was heard by the High Court on 19 and 20 March 2002 (by a judge different from the judge sitting 22 January 2002). The detailed judgment delivered on the latter date acceded to the request for the applicant’s bankruptcy and refused his application to dismiss the summons. Noting that KC had undertaken not to take steps to enforce the bankruptcy summons for six weeks, the High Court put no stay on its order.
24. On 29 April 2002 the applicant appealed, requesting the Supreme Court to dismiss and stay indefinitely the bankruptcy summons. On 8 May 2002 he also issued a notice of motion before the Supreme Court requesting a stay on the order of the High Court of 20 March 2002 pending the finalisation of his appeal. On 7 June 2002 the Supreme Court rejected that motion, finding that it was not possible to stay a summons and that an injunction restraining KC from taking any action on foot of the bankruptcy summons would not be justified. In any event, it was extremely unlikely that KC could take any further action based on the existing bankruptcy summons since there was a three-month time-limit from the date of issue of the summons, within which KC should have applied for adjudication against the applicant. On 30 June 2003 KC issued and served a further “notice of the particulars of demand and requiring payment” of the costs award plus relevant interest, amounting to the sum of 104,185.48 euros (EUR).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1