ITEMID: 001-58016
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF FINDLAY v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: John Freeland
TEXT: 6. The applicant, Alexander Findlay, is a British citizen who was born in 1961 in Kilmarnock, Scotland, and now lives in Windsor, England.
7. In 1980 he joined the British army and became a member of the Scots Guards. His service was due to terminate in October or November 1992 when he would have received a resettlement grant and, at the age of sixty, an army pension.
8. In 1982 Mr Findlay took part in the Falklands campaign. During the battle of Mount Tumbledown he witnessed the death and mutilation of several of his friends and was himself injured in the wrist by a mortar-shell blast. According to the medical evidence prepared for his court martial (see paragraphs 11-13 below), as a result of these experiences he suffered from post-traumatic stress disorder ("PTSD"), which manifested itself by flashbacks, nightmares, feelings of anxiety, insomnia and outbursts of anger. This disorder was not diagnosed until after the events of 29 July 1990 (see paragraph 10 below).
9. In 1987 he sustained an injury during training for service in Northern Ireland when a rope which he was climbing broke and he fell to the ground, severely damaging his back. This injury was extremely painful and affected his ability to perform his duties, which, again according to the medical evidence, led him to suffer from feelings of stress, guilt and depression.
10. In 1990 the applicant, who had become a lance-sergeant, was sent with his regiment to Northern Ireland. On 29 July 1990, after a heavy drinking session, he held members of his own unit at pistol point and threatened to kill himself and some of his colleagues. He fired two shots, which were not aimed at anyone and hit a television set, and subsequently surrendered the pistol. He was then arrested.
11. On 31 July 1990 an ex-naval psychiatrist, Dr McKinnon, examined Mr Findlay and found that he was responsible for his actions at the time of the incident. However, a combination of stresses (including his back injury and posting to Northern Ireland) together with his heavy drinking on the day, had led to an "almost inevitable" event. Dr McKinnon recommended "awarding the minimum appropriate punishment".
Following this report, the decision was taken to charge Mr Findlay with a number of offences arising out of the incident on 29 July (see paragraph 14 below).
12. In order to establish that he was fit to stand trial, at the request of the army he was examined on two occasions by Dr Blunden, a civilian consultant psychiatrist who had been employed by the Ministry of Defence since 1980.
In her report of January 1991, Dr Blunden confirmed that Mr Findlay was fit to plead and knew what he was doing at the time of the incident. However, his chronic back problem (which caused him to be frustrated and depressed at not being fit for duty in his Northern Ireland posting) together with "his previous combat stresses and a very high level of alcohol ... combined to produce this dangerous behaviour".
In her second report, of March 1991, she explained that the applicant had reacted to the stress caused by his back problems in the way he did on 29 July 1990 because of his experiences in the Falklands war. Whilst she did not clearly state that he suffered from PTSD, she confirmed that similar patterns of behaviour frequently occurred at a late stage in those who experienced this disorder. She confirmed that the consumption of alcohol on the relevant day was a result of his condition and not a cause of it.
13. Mr Findlay was also examined by Dr Reid, at the request of his (Mr Findlay’s) solicitor. Dr Reid diagnosed him as suffering from PTSD as a result of his service in the Falklands.
14. The position of "convening officer" (see paragraphs 36-41 below) for the applicant’s court martial was assumed by the General Officer Commanding London District, Major General Corbett. He remanded Mr Findlay for trial on eight charges arising out of the incident of 29 July 1990 and decided that he should be tried by general court martial.
15. By an order dated 31 October 1991, the convening officer convened the general court martial and appointed the military personnel who were to act as prosecuting officer, assistant prosecuting officer and assistant defending officer (to represent Mr Findlay in addition to his solicitor) and the members of the court martial (see paragraph 37 below).
16. The court martial consisted of a president and four other members:
(1) the president, Colonel Godbold, was a member of London District staff (under the command of the convening officer: see paragraph 14 above). He was appointed by name by the latter and was not a permanent president;
(2) Lieutenant-Colonel Swallow was a permanent president of courts martial, sitting in the capacity of an ordinary member. He had his office in the London District Headquarters. He was appointed by name by the convening officer;
(3) Captain Tubbs was from the Coldstream Guards, a unit stationed in London District. His reporting chain was to his officer commanding, his commanding officer and the Brigade Commander, after which his report could, in exceptional circumstances, go to the convening officer; he was a member of a footguard unit and the convening officer, as General Officer Commanding, was responsible for all footguard units. He was appointed to the court martial by his commanding officer;
(4) Major Bolitho was from the Grenadier Guards, also a footguard unit stationed in London District. The convening officer was his second superior reporting officer. He was appointed to the court martial by his commanding officer;
(5) Captain O’Connor was from the Postal and Courier Department, Royal Engineers (Women’s Royal Army Corps), which is under the direct command of the Ministry of Defence and is administered by the London District. She was appointed by her commanding officer.
In summary, all of the members of the court martial were subordinate in rank to the convening officer and served in units stationed within London District. None of them had legal training.
17. The assistant prosecuting and defending officers were both officers from the Second Scots Guards stationed in the London District and had the same reporting chain as Captain Tubbs (see paragraph 16 (3) above).
18. The judge advocate for the general court martial was appointed by the Judge Advocate General (see paragraphs 42-45 below). He was a barrister and assistant judge advocate with the Judge Advocate General’s Office.
19. On 11 November 1991, Mr Findlay appeared before the general court martial, at Regent’s Park Barracks in London. He was represented by a solicitor.
He pleaded guilty to three charges of common assault (a civilian offence), two charges of conduct to the prejudice of good order and military discipline (a military offence) and two charges of threatening to kill (a civilian offence).
20. On 2 November 1991, his solicitor had made a written request to the prosecuting authorities to ensure the appearance of Dr Blunden at the court martial and on 5 November 1991 the prosecuting officer had issued a witness summons requiring her attendance. However, the defence was informed on the morning of the hearing that Dr Blunden would not be attending. Mr Findlay claims that her absence persuaded him to plead guilty to the above charges. However, his solicitor did not request an adjournment or object to the hearing proceeding.
21. The defence put before the court martial the medical reports referred to above (paragraphs 11-13) and called Dr Reid to give evidence. The latter confirmed his view that the applicant suffered from PTSD, that this had been the principal cause of his behaviour, that he had not been responsible for his actions and that he was in need of counselling. During crossexamination, Dr Reid stated that this was the first time he had dealt with battle-related PTSD.
The prosecution did not call any medical evidence in rebuttal or adopt any of the evidence prepared by the army-instructed psychiatrists, Drs McKinnon and Blunden (see paragraphs 11-13 above).
22. In the course of his speech in mitigation, Mr Findlay’s solicitor urged the court martial that, in view of the fact that his client had been suffering from PTSD at the time of the incident and was extremely unlikely to reoffend, he should be allowed to complete the few remaining months of his service and leave the army with his pension intact and a minimal endorsement on his record.
23. Having heard the evidence and speeches, the court martial retired to consider their decision on sentence, accompanied by the judge advocate. On their return they sentenced the applicant to two years’ imprisonment, reduction to the rank of guardsman and dismissal from the army (which caused him to suffer a reduction in his pension entitlement). No reasons were given for the sentence (see paragraph 46 below).
24. Under the Army Act 1955, the decision of the court martial had no effect until it was confirmed by the "confirming officer" (see paragraph 48 below). In Mr Findlay’s case, as was usual practice, the confirming officer was the same person as the convening officer. Mr Findlay petitioned him for a reduction in sentence.
Having received advice from the Judge Advocate General’s Office, the confirming officer informed the applicant on 16 December 1991 that the sentence had been upheld.
25. The applicant, who had been under close arrest since the morning before the court martial hearing, was removed on 18 November 1991 to a military prison and thereafter to a civilian prison on 21 December 1991.
26. He appealed by way of petition to the first of the "reviewing authorities" (see paragraph 49 below), the Deputy Director General of Personal Services, as delegate of the Army Board, a non-legally qualified officer who obtained advice from the Judge Advocate General’s Office. By a letter dated 22 January 1992, Mr Findlay was informed that this petition had been rejected.
27. He then petitioned the second of the reviewing authorities, a member of the Defence Council who also was not legally qualified and who also received advice from the Judge Advocate General’s Office. This petition was rejected on 10 March 1992.
28. The advice given by the Judge Advocate General’s Office at each of these three stages of review was not disclosed to the applicant, nor was he given reasons for the decisions confirming his sentence and rejecting his petitions.
29. On 10 March 1992, the applicant applied to the Divisional Court for leave to challenge by judicial review the validity of the findings of the court martial. He claimed that the sentence imposed was excessive, the proceedings were contrary to the rules of natural justice and that the judge advocate had been hostile to him on two occasions during the hearing.
On 14 December 1992 the Divisional Court refused leave on the basis that the court martial had been conducted fully in accordance with the Army Act 1955 and there was no evidence of improper conduct or hostility on the part of the judge advocate (R. v. General Court Martial (Regent’s Park Barracks), ex parte Alexander Findlay, CO/1092/92, unreported).
30. Mr Findlay commenced a civil claim in negligence against the military authorities, claiming damages in respect of his back injury and PTSD. In a report dated 16 January 1994 prepared for these purposes, Dr Blunden confirmed her previous opinion (see paragraph 12 above) and clearly diagnosed PTSD.
31. In March 1994 the civil action was settled by the Secretary of State for Defence, who paid the applicant £100,000 and legal costs, without any admission of liability. The settlement did not differentiate between the claims in respect of PTSD and the back injury.
32. The law and procedures which applied to the applicant’s court martial were contained in the Army Act 1955 ("the 1955 Act"), the Rules of Procedure (Army) 1972 ("the 1972 Rules") and the Queen’s Regulations (1975). Since the Commission’s consideration of the case, certain provisions in the 1955 Act have been amended by the Armed Forces Act 1996 ("the 1996 Act"), which comes into force on 1 April 1997 (see paragraphs 52-57 below).
33. Many civilian offences are also offences under the 1955 Act (section 70 (1)). Although the final decision on jurisdiction lies with the civilian authorities, army personnel who are accused of such offences are usually tried by the military authorities unless, for example, civilians are involved in some way.
Depending on their gravity, charges against army law can be tried by district, field or general court martial. A court martial is not a standing court: it comes into existence in order to try a single offence or group of offences.
34. At the time of the events in question, a general court martial consisted of a president (normally a brigadier or colonel in the army), appointed by name by the convening officer (see paragraphs 36-41 below), and at least four other army officers, either appointed by name by the convening officer or, at the latter’s request, by their commanding officer.
35. Each member of the court martial had to swear the following oath:
"I swear by almighty God that I will well and truly try the accused before the court according to the evidence, and that I will duly administer justice according to the Army Act 1955, without partiality, favour or affection, and I do further swear that I will not on any account at any time whatsoever disclose or discover the vote or opinion of the president or any member of this court martial, unless thereunto required in the due course of law."
36. Before the coming into force of the 1996 Act, a convening officer (who had to be a field officer or of corresponding or superior rank, in command of a body of the regular forces or of the command within which the person to be tried was serving) assumed responsibility for every case to be tried by court martial. He or she would decide upon the nature and detail of the charges to be brought and the type of court martial required, and was responsible for convening the court martial.
37. The convening officer would draw up a convening order, which would specify, inter alia, the date, place and time of the trial, the name of the president and the details of the other members, all of whom he could appoint (see paragraph 15 above). He ensured that a judge advocate (see paragraph 43 below) was appointed by the Judge Advocate General’s Office and, failing such appointment, could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer.
38. Prior to the hearing, the convening officer was responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate, and could indicate the passages which might be inadmissible. He procured the attendance at trial of all witnesses to be called for the prosecution. When charges were withdrawn, the convening officer’s consent was normally obtained, although it was not necessary in all cases, and a plea to a lesser charge could not be accepted from the accused without it.
39. He had also to ensure that the accused had a proper opportunity to prepare his defence, legal representation if required and the opportunity to contact the defence witnesses, and was responsible for ordering the attendance at the hearing of all witnesses "reasonably requested" by the defence.
40. The convening officer could dissolve the court martial either before or during the trial, when required in the interests of the administration of justice (section 95 of the 1955 Act). In addition, he could comment on the "proceedings of a court martial which require confirmation". Those remarks would not form part of the record of the proceedings and would normally be communicated in a separate minute to the members of the court, although in an exceptional case "where a more public instruction [was] required in the interests of discipline", they could be made known in the orders of the command (Queen’s Regulations, paragraph 6.129).
41. The convening officer usually acted as confirming officer also (see paragraph 48 below).
42. The current Judge Advocate General was appointed by the Queen in February 1991 for five years. He is answerable to the Queen and is removable from office by her for inability or misbehaviour.
At the time of the events in question, the Judge Advocate General had the role of adviser to the Secretary of State for Defence on all matters touching and concerning the office of Judge Advocate General, including advice on military law and the procedures and conduct of the court-martial system. He was also responsible for advising the confirming and reviewing authorities following a court martial (see paragraph 49 below).
43. Judge advocates are appointed to the Judge Advocate General’s Office by the Lord Chancellor. They must have at least seven and five years experience respectively as an advocate or barrister.
44. At the time of the events in question, a judge advocate was appointed to each court martial, either by the Judge Advocate General’s Office or by the convening officer. He or she was responsible for advising the court martial on all questions of law and procedure arising during the hearing and the court had to accept this advice unless there were weighty reasons for not doing so. In addition, in conjunction with the president, he was under a duty to ensure that the accused did not suffer any disadvantage during the hearing. For example, if the latter pleaded guilty, the judge advocate had to ensure that he or she fully understood the implications of the plea and admitted all the elements of the charge. At the close of the hearing, the judge advocate would sum up the relevant law and evidence.
45. Prior to the coming into force of the 1996 Act, the judge advocate did not take part in the court martial’s deliberations on conviction or acquittal, although he could advise it in private on general principles in relation to sentencing. He was not a member of the court martial and had no vote in the decision on conviction or sentence.
46. At the time of the events in question, on a plea of guilty, the prosecuting officer outlined the facts and put in evidence any circumstance which might have made the accused more susceptible to the commission of the offence. The defence made a plea in mitigation and could call witnesses (rules 71 (3) (a) and 71 (5) (a) of the 1972 Rules). The members of the court martial then retired with the judge advocate to consider the sentence, which was pronounced in open court. There was no provision for the giving of reasons by the court martial for its decision.
47. Certain types of sentence were not available to courts martial at the time of the applicant’s trial, even in respect of civilian offences. For example, a court martial could not suspend a prison sentence, issue a probation order or sentence to community service.
48. Until the amendments introduced by the 1996 Act, a court martial’s findings were not effective until confirmed by a "confirming officer". Prior to confirmation, the confirming officer used to seek the advice of the Judge Advocate General’s Office, where a judge advocate different to the one who acted at the hearing would be appointed. The confirming officer could withhold confirmation or substitute, postpone or remit in whole or in part any sentence.
49. Once the sentence had been confirmed, the defendant could petition the "reviewing authorities". These were the Queen, the Defence Council (who could delegate to the Army Board), or any officer superior in command to the confirming officer (section 113 of the 1955 Act). The reviewing authorities could seek the advice of the Judge Advocate General’s Office. They had the power to quash a finding and to exercise the same powers as the confirming officer in relation to substituting, remitting or commuting the sentence.
50. A petitioner was not informed of the identity of the confirming officer or of the reviewing authorities. No statutory or formalised procedures were laid down for the conduct of the post-hearing reviews and no reasons were given for decisions delivered subsequent to them. Neither the fact that advice had been received from the Judge Advocate General’s Office nor the nature of that advice was disclosed.
51. A courts martial appeal court (made up of civilian judges) could hear appeals against conviction from a court martial, but there was no provision for such an appeal against sentence when the accused pleaded guilty.
52. Under the 1996 Act, the role of the convening officer will cease to exist and his functions will be split among three different bodies: the "higher authorities", the prosecuting authority and court administration officers (see 1996 Act, Schedule I).
53. The higher authority, who will be a senior officer, will decide whether any case referred to him by the accused’s commanding officer should be dealt with summarily, referred to the new prosecuting authority, or dropped. Once the higher authority has taken this decision, he or she will have no further involvement in the case.
54. The prosecuting authority will be the Services’ legal branches. Following the higher authority’s decision to refer a case to them, the prosecuting authority will have absolute discretion, applying similar criteria as those applied in civilian cases by the Crown Prosecution Service to decide whether or not to prosecute, what type of court martial would be appropriate and precisely what charges should be brought. They will then conduct the prosecution (1996 Act, Schedule I, Part II).
55. Court administration officers will be appointed in each Service and will be independent of both the higher and the prosecuting authorities. They will be responsible for making the arrangements for courts martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required will be available, securing the attendance of witnesses and selection of members. Officers under the command of the higher authority will not be selected as members of the court martial (1996 Act, Schedule I, Part III, section 19).
56. Each court martial will in future include a judge advocate as a member. His advice on points of law will become rulings binding on the court and he will have a vote on sentence (but not on conviction). The casting vote, if needed, will rest with the president of the court martial, who will also give reasons for the sentence in open court. The Judge Advocate General will no longer provide general legal advice to the Secretary of State for Defence (1996 Act, Schedule I, Part III, sections 19, 25 and 27).
57. Findings by a court martial will no longer be subject to confirmation or revision by a confirming officer (whose role is to be abolished). A reviewing authority will be established in each Service to conduct a single review of each case. Reasons will be given for the decision of the reviewing authority. As part of this process, post-trial advice received by the reviewing authority from a judge advocate (who will be different from the one who officiated at the court-martial) will be disclosed to the accused. A right of appeal against sentence to the (civilian) courts martial appeal court will be added to the existing right of appeal against conviction (1996 Act, section 17 and Schedule V).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-113937
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF HENDRIN ALI SAID AND ARAS ALI SAID v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion)
JUDGES: András Sajó;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 6. The applicants, brothers, were born in 1992 and 1989 respectively. When introducing the application, they were staying at the Debrecen Reception Centre for Refugees, located in Hungary.
7. On 1 September 2010 the applicants were transferred from the Netherlands to Hungary under the Dublin II procedure. They were handed over to the Budapest Regional Directorate of the Office of Immigration and Nationality (“OIN”), the competent alien policing authority, and interviewed with the assistance of a Kurdish-Hungarian interpreter on the same day.
8. The applicants related that they had left Iraq illegally in early August 2009, travelled through Syria and Turkey and intended to reach the Netherlands. They had arrived in Hungary, also illegally, later in August 2009 and had immediately been intercepted by the police. They had applied for asylum on 1 September 2009. On 7 September 2009 the asylum procedure had however been terminated because they had absconded. They had travelled illegally, apparently assisted by traffickers, to the Netherlands, where they had joined their father and applied for asylum. The Netherlands had started the Dublin II procedure and Hungary had agreed to their readmission. On 1 September 2010 they had been transferred to Hungary under this scheme.
9. They alleged that they had been persecuted in Iraq because of their father’s former service in Saddam Hussein’s army and their Kurdish ethnicity. They also claimed that they had no family members living in Iraq.
10. After the interview, the alien policing authority ordered the applicants’ expulsion to Iraq, also imposing a five-year entry ban. According to the decision, the expulsion was necessary because they did not fulfil the requirements of legal residence in Hungary. The authority then requested OIN’s asylum directorate to assess whether the principle of “non-refoulement” was applicable. It replied in the negative.
11. In the expulsion decision it was mentioned that the applicants’ illegal entry and lack of residence permits constituted a threat to public order. Considering their age and family status, their expulsion would have no negative effect, since they had no connection to Hungary, did not speak Hungarian and had no skills and therefore their livelihood was not secured and the chances of finding employment were low. It was also established that they did not have Hungarian or EU national family members living in Hungary, and although their relatives lived in the Netherlands, they also had some in Iraq, so their social reintegration on return was possible. The applicants were entered into OIN’s asylum registry, but the ongoing asylum procedure was not referred to when the reasons for expulsion were addressed. OIN concluded that the enforcement of immigration rules had priority over the personal and family interests of the applicants, and that expulsion was a necessary and proportionate measure.
12. Simultaneously, the execution of the expulsion was suspended by the OIN’s alien policing authority because the means and conditions necessary for its enforcement were not secured, namely the applicants did not have any travel documents or tickets.
13. The alien policing authority ordered at the same time the applicants’ alien policing detention for 72 hours, purportedly in order to secure their expulsion. The detention was based on section 54(1)(b) of the Third Country Nationals Act (see below), according to which the immigration authority shall have the power to detain the person in question in order to secure the expulsion if “he/she has refused to leave the country, or, based on other substantiated reasons, is allegedly delaying or preventing the enforcement of expulsion”. However, no facts or personal circumstances were presented justifying such a conclusion. The applicants were committed to the Nyírbátor alien policing facility.
14. The asylum authority formally registered the applicants’ asylum claim only on 2 September 2010, despite the fact that they had been asylum seekers from their very arrival in Hungary, in that they had been transferred under the Dublin procedure from the Netherlands; they had explicitly mentioned at the interview with the alien policing authorities on 1 September 2010 that they had left Iraq because they had been persecuted and that they had already applied for asylum when they had first entered Hungary in September 2009.
15. A preliminary interview was conducted, and on 14 September 2010 the asylum applications were admitted to the in-merit procedure. Despite this fact, the applicants remained in alien policing detention although asylum seekers were entitled to accommodation in an open refugee reception centre. According to section 55(3) of the Asylum Act (see below), once the asylum application is admitted to the in-merit procedure, the alien policing authority shall, at the initiative of OIN’s asylum authority, terminate the asylum seeker’s detention. However, such an initiative was not taken.
16. On 3 September 2010 the Nyírbátor District Court prolonged the detention until the execution of expulsion was secured or 30 September 2010. Although the initial detention had been based (see above) on section 54(1) of the Third Country Nationals Act, the court found that it had been lawfully ordered under section 55 of the Act (see below) and that its prolongation was necessary. It held that sections 55, 54(1)(b) and 54(3) of that Act were applicable in the case. In the reasoning, reference was made to the fact that the applicants had arrived in Hungary illegally and applied for asylum in 2009 then again in September 2010, as well as to the contents of the expulsion order. No particulars relating to the ongoing asylum procedure were mentioned.
17. The detention was prolonged on 24 September, 26 October, 26 November and finally on 17 December 2010, until 28 January 2011. On each occasion, the District Court limited the reasoning to stating that the initial reasons for the detention given in the first court decision were still in place.
18. On an unspecified date, the applicants were transferred to the Debrecen Reception Centre for Refugees, an open facility.
“(2) Any third country national whose application for refugee status is pending may be turned back or expelled only if his or her application has been refused by a final and enforceable decision of the refugee authority.”
“(1) In order to secure the expulsion of a third-country national, the immigration authority is entitled to detain a person if: ...
b) he/she has refused to leave the country, or, based on other substantiated reasons, is allegedly delaying or preventing the enforcement of expulsion; ...
(3) Detention under the immigration laws may be ordered for a maximum duration of 72 hours and extended by the court of jurisdiction by reference to the place of detention until the third-country national’s departure, or for a maximum of 30 days.
(4) Detention ordered under the immigration laws shall be terminated immediately:
a) if the conditions for carrying out expulsion are secured;
b) if it becomes evident that expulsion cannot be executed; or
c) after six months from the date when the detention was ordered.”
“(1) The immigration authority may order the detention of a third-country national prior to expulsion in order to secure the conclusion of the immigration proceedings pending, if his/her identity or the legal grounds of his/her residence has not been conclusively established.”
“(1) Where the Dublin Regulations cannot be applied, the decision to determine as to whether an application is considered inadmissible lies with the refugee authority.
(2) An application shall be considered inadmissible if:
a) the applicant is a national of any Member State of the European Union;
b) the applicant was granted refugee status in another Member State;
c) the applicant was granted refugee status in a third country, where this protection also applies at the time of examination of the application, and the country in question is liable to re-admit the applicant;
d) the applicant has lodged an identical application after a final refusal.”
“(1) If the refugee authority finds an application admissible, it shall proceed to the substantive examination of the application ...
(3) If the refugee authority proceeds to the substantive examination of the application and the applicant is detained by order of the immigration authority, the immigration authority shall release the applicant at the initiative of the refugee authority.”
“(1) In the order admitting the request to the in-merit phase, the refugee authority shall assign the asylum seeker – upon the latter’s request – to a private accommodation or, in the absence of such, to a dedicated facility or another accommodation, unless the asylum seeker is subjected to a ... measure restraining personal liberty. ...
(2) During the in-merit examination and the eventual judicial review of the decision adopted therein, the asylum seeker is obliged to stay at the designated accommodation.
(3) The in-merit procedure shall be completed within two months from the adoption of the decision ordering it.”
“If the foreign national expresses his/her intention to file an application for recognition as a refugee during the alien policing procedure ... his/her statement shall be recorded by the proceeding authority, which shall then inform without delay the refugee authority and the reception centre responsible for accommodating those being in the preliminary asylum procedure, forwarding the minutes and the fingerprint recording sheet at the same time.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-67305
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: FALK v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Joost Falk, is a Netherlands national who was born in 1970 and lives in Noordwijk. The respondent Government are represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 February 1998, in accordance with Article 5 of the Respect for Traffic Regulations (Administrative Enforcement) Act (Wet Administratiefrechtelijke Handhaving Verkeersvoorschriften – “the Act”), an administrative fine of 240 Netherlands guilders (NLG) (108.91 euros) was imposed on the applicant for a traffic offence – namely having failed to give way to a pedestrian who wanted to cross the road at a pedestrian crossing – that had been committed on 20 January 1998 with a car registered in his name.
On 28 September 1998 the applicant filed an appeal against the fine with the public prosecutor of The Hague under Article 6 of the Act. He informed the public prosecutor of the name and address of Mr B., who had been driving his car on 20 January 1998. The applicant further explained that, after he had been declared bankrupt on 1 July 1998, he had become embroiled with Mr B. to such a degree that reclaiming the fine from him was bound to fail.
On 17 November 1998 the public prosecutor of The Hague rejected the applicant's appeal, holding that the applicant, being the registered owner of the car, remained liable under Article 5 of the Act to pay the fine.
On 28 December 1998 the applicant filed an appeal against this decision with the Leiden District Court Judge (kantonrechter) under Article 9 of the Act. At a hearing held on 7 June 1999 before the Leiden District Court Judge, the applicant stated that he was the registered owner of the car, but that Mr B. was the actual driver who had committed the offence.
On 8 November 1999 the Leiden District Court Judge rejected the applicant's appeal, holding that the fact that the applicant was not the driver who had committed the traffic offence did not mean that a fine could not be imposed as, in accordance with the Act, the person in whose name the car was registered remained liable.
A subsequent cassation appeal by the applicant was rejected by the Supreme Court (Hoge Raad) on 28 November 2000. Referring to the findings in its judgment of 15 July 1993 (Nederlandse Jurisprudentie 1994, no. 177), the Supreme Court rejected the applicant's complaint that Article 5 of the Act was incompatible with Article 6 § 2 of the Convention.
The Respect for Traffic Regulations (Administrative Enforcement) Act provides for the possibility of imposing an administrative fine – at the relevant time up to a maximum of NLG 750 (340.34 euros) – for defined categories of minor offences against, inter alia, the 1994 Road Traffic Act (Wegenverkeerswet) where such an offence has not caused injury to persons or damage to goods (Article 2 of the Act).
Where the offence has been committed by a registered motor vehicle and the identity of the actual driver could not be established at the material time, the fine is imposed on the registered owner of the vehicle (Article 5 of the Act), unless the registered owner demonstrates that his or her vehicle was used by another person against his or her will and that he or she was unable to prevent this use, or that the vehicle was commercially hired out for a period not exceeding three months, or that at the material time he or she had already sold the vehicle to another person who had provided a written warranty against liability (Article 8 of the Act ).
A fine imposed under the Act for an offence under the 1994 Road Traffic Act is not recorded in the criminal records (strafregister) within the meaning of the Judicial Records and Certificates of Good Behaviour Act (Wet op de Justitiële Documentatie en op de Verklaringen omtrent het Gedrag), as it does not constitute a crime (misdrijf) or a minor offence (overtreding) for which a prison sentence not being an alternative to a fine has been imposed.
In a judgment given on 16 February 1993 the Supreme Court rejected the argument that Article 5 of the Act should not be applied in a situation where the identity of the actual driver had not been immediately established and where the registered owner of the car had informed the public prosecutor immediately after the imposition of the fine under Article 5 of the identity of the actual driver. It held in this respect:
“This conception of Article 5 [of the Act] cannot be accepted as correct. It rests on an unjust understanding [of this provision] ...The explanatory memorandum to the bill which gave rise to the [Act] contains in relation to Article 5 inter alia the following (p. 41):
'A large part of the detection of minor offences against traffic regulations takes place with the aid of technical equipment ...There is no direct confrontation between a police officer and an offender in such cases. The same applies to the majority of parking offences. In such cases, where it cannot be immediately established who was the driver of the vehicle with which ... the offence has been committed, the administrative sanction will be imposed on the registration-number holder, pursuant to [Article 5 of the Act].'
On this basis it must be assumed that the expression contained in Article 5 [of the Act] 'if it cannot be immediately established who ... is the driver' relates to those cases in which traffic offences are detected by technical means or otherwise in the absence of a realistic opportunity for the police – taking into account factors such as road and traffic safety and the factual impossibility of having recourse to continuous surveillance – to stop the driver.
The mere circumstance that the registration-number holder, immediately after having received the decision imposing the administrative sanction, has informed the public prosecution department who the driver was, does not therefore exclude the application of Article 5 [of the Act].”
In a judgment given on 15 July 1993 (Nederlandse Jurisprudentie 1994, no. 177), the Supreme Court concluded that Article 5 of the Act was not incompatible with Article 6 § 2 of the Convention. This judgment, insofar as relevant, reads:
“5.3.1. The explanatory memorandum to the bill which gave rise to the [Act] states, inter alia, ... 'The bill departs from the idea that the administrative sanction (which is to be understood as a payment to the State of a certain sum of money ...) is imposed, according to Article 5 [of the Act], on the person in whose name a [motor vehicle] licence (kenteken) is registered at the material time, if it has been established that the act [in violation of the 1994 Road Traffic Act] has taken place with ... a motor vehicle for which a licence has been issued and where it cannot be established immediately who the driver is. This rule, to which an exception is possible ... (Article 8) ... will have as its consequence that the above-mentioned time-consuming procedures entailing a hearing and the sending out and processing of response coupons, will become defunct.'
5.3.2. The memorandum of reply to the cited bill states, inter alia, ...: 'The question whether or how the registered owner wants to reclaim the amount due from the “minor” offender is governed by the rules of civil law.' and 'Our conclusion is that there is a possibility of limiting the strict liability rule for the registered owner, but we consider such a limitation in respect of minor traffic offences, to which this bill relates, neither necessary nor desirable. The person concerned has, after all, other ways of reclaiming the amount of the fine from the user of the car.'
5.3.3. During the oral debate on the bill in the Lower House, the Minister of Justice stated, inter alia, ...: 'In an administrative-law system, I consider it more correct to leave it to the registered owner himself to take the necessary action to collect the sum he has lost as a result of the commission of the minor offence. He ought not to be permitted to leave that risk to society.'
5.4 In view of the considerations under 5.3, Article 5 of the [Act] is thus to be understood as meaning that, when imposing an administrative sanction on the basis of this provision on a registered owner [of a motor vehicle], the latter is not reproached for his conduct ... [in violation of the 1994 Road Traffic Act] ... but is merely made liable to pay – for the driver who is guilty of the conduct at issue – the amount of the administrative sanction imposed, and subsequently to reclaim, if so desired, the sum from the [actual driver]. Should the registered owner fail to take the appropriate measures, he runs the risk of his claim being unsuccessful.
5.5. Further taking into account, on the one hand:
a. the extent of motorised traffic, often moving with great speed, and, as a result, the particular frequency of violations of traffic regulations;
b. the limited possibilities for stopping traffic offenders and investigating traffic offences;
c. the undesirability of leaving traffic offences unpunished as well as the interest of society in being able to take action against traffic offences;
and, on the other hand:
d. the circumstance that it may be assumed that in the vast majority of cases – certainly as regards the “private” part of road traffic – the driver of the motor vehicle is also the registered owner;
e. the possibilities given by Articles 8 and 9 of the [Act] to the registered owner to oppose the imposition of the administrative sanction;
f. the possibilities under civil law for the registered owner to reclaim, where he cannot oppose the administrative sanction under Article 8 or Article 9 of the [Act], the sum from the driver; and finally
g. the fact that the imposition of an administrative sanction only concerns a limited financial sanction,
the application of Article 5 of the [Act], understood as set out in 5.3 and 5.4, is not incompatible with the second paragraph of Article 6 of the Convention.”
In a judgment delivered on 1 February 2000, the Supreme Court held that, in cases concerning a fine imposed under Article 5 of the Act, courts may as a rule assume that there was no realistic opportunity for the police to stop the driver for the purposes of establishing his or her identity. However, if on this point a defence argument is put forward that there was such an opportunity at the material time, the court should give an explicit decision on that argument (Verkeersrecht 2000/104).
In a ruling given on 9 July 2003, the Leeuwarden Court of Appeal held that Article 5 of the Act was to be understood to mean that, if there had been a realistic opportunity of stopping the driver of the vehicle concerned, this provision should not be applied and that the sanction should be imposed on the driver. As, in that case, the case file contained no information from the reporting officer on the question whether there had been an opportunity to stop the driver, the Court of Appeal adjourned the proceedings and ordered the prosecution to submit that information within a period of two months (Verkeersrecht 2004/47).


ITEMID: 001-70839
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ASITO v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (one aspect);No violation of Art. 6-1 (other aspect);Violation of P1-1;Pecuniary damage - reserved;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicant is a Moldovan incorporated insurance company, with its seat in Chişinău.
10. On 12 June 1991, a governmental order allowed the applicant company to enter “banking and investments operations”, apart from its main insurance activity.
11. On 28 November 1991, the applicant company obtained from the National Bank of Moldova a licence to engage in banking operations. During a routine audit procedure, the company refused to disclose its books, claiming it did not perform any banking activities. On 13 October 1992, the applicant company’s licence was withdrawn. The applicant company did not challenge this decision.
12. On 25 November 1994, the applicant company concluded a one-year contract (“the contract”), with company F., entitled “Joint Commercial Transaction”. The applicant company made a capital contribution of 330,000 Moldovan lei (MDL) to company F., and in exchange it was to receive the sum of MDL 269,500, payable in monthly instalments. Company F. was also to reimburse the capital contribution in a lump sum by 25 November 1995. Non compliance with the terms of the contract gave rise to a penalty of 0,50% of the unpaid sum for each overdue day. By a collateral contract, company F. mortgaged its plant and equipment, as security.
13. By 23 April 1996, company F. had paid the applicant company MDL 420,750. Due to a slowdown in the national economy, company F. was, as of that date, unable to pay the balance in full and had no reasonable prospect of complying with the terms of the contract.
14. On 24 May 1996 the applicant company filed an application with the Arbitration Court of the Republic of Moldova for breach of contract and requested that company F. be ordered to pay MDL 468,472, constituting the capital contribution and contractual penalties.
15. Company F. argued that the contract contained an implied obligation, arising from the nature and purpose of the contract, that the applicant company was to contribute to the expenses and losses of the joint venture. As the company had experienced losses, in spite of its good faith in performance, it asked for an adjustment or cancellation of the MDL 468,472 debt, invoking the Civil Code provisions on risk-sharing in joint ventures. As a subsidiary argument, it submitted that, in the absence of this implied obligation, the contract became a regular loan, for which the applicant company did not possess a licence.
16. On 1 August 1996 the Arbitration Court partially allowed the applicant company’s application, but it reduced the contractual penalties by 50%, considering the claim to be disproportionate in relation to the actual damage experienced by the applicant company, and issued an order of payment for an amount of MDL 327,474.75 (the equivalent of 62,780.00 euros (EUR) at the time)).
17. On 20 August 1996, the Prosecutor General, who was not a party to the proceedings, lodged an ordinary appeal against the judgment of 1 August 1996.
18. On 28 November 1996 the “Law on Economic Courts” entered into force. It provided for the re-organisation of the part of the judiciary system dealing with economic disputes. The re-organisation process resulted in a suspension of the hearings for several months.
19. On 14 April 1997 the Prosecutor General withdrew his appeal against the judgment of 1 August 1996. The judgment of the Arbitration Court thus became final.
20. On 16 June 1997 the Prosecutor General lodged a request for annulment (recurs în anulare) under Article 38 § 3 of the Law on Economic Courts against the judgment of 1 August 1996, asking that the contract be declared null and void for non-compliance with the Law on Banks and Banking Activities.
21. On 23 September 1997 the Appeal on Points of Law Chamber of the Economic Court allowed the Prosecutor’s request, quashed the judgment of 1 August 1996, and dismissed the applicant company’s action.
22. On 24 December 1997, the Supreme Court of Justice rejected the applicant company’s appeal against the above judgment. It found that the contract was a disguised credit operation and since the applicant company no longer possessed a banking licence, such a contract was illegal.
23. On 21 January 1998 the Supreme Court of Justice dismissed the applicant’s extraordinary appeal (contestaţie în anulare) on the ground that the conditions for the re-opening of the case had not been fulfilled.
24. On 17 July 1996, pursuant to Article 5 (2) of the Code of Civil Procedure, the Prosecutor General filed an application with the Arbitration Court of Moldova, seeking the annulment of the contract concluded between the applicant company and company F. on 25 November 1994. According to the Prosecutor General, the contract was a disguised credit operation subject to a very high interest rate and the applicant company was not entitled to perform credit operations without a licence.
25. On 26 July 1996 the Arbitration Court dismissed the Prosecutor General’s application. The court found, inter alia, that according to the Law on Insurance, insurance companies were allowed to provide commercial and financial services and that the provision of credit was also permitted under the Civil Code. The Arbitration Court did not examine the question of the need for a licence. Since no party appealed, the judgment became final.
26. On 16 June 1997 the Prosecutor General lodged under Article 38 § 3 of the Law on Economic Courts a request for annulment (recurs în anulare) of the judgment of 26 July 1996.
27. On 23 September 1997 the Appeal on Points of Law Chamber of the Economic Court of Moldova dismissed the request.
28. On 17 November 1997 the Prosecutor General lodged under Article 278/60 of the Code of Civil Procedure an appeal on points of law (recurs) against this decision.
29. On 24 December 1997, the Supreme Court of Justice quashed the judgments of 26 July 1996 and of 23 September 1997. It found in favour of the Prosecutor General and declared the contract between the applicant company and company F. null and void on the ground that it was a disguised credit operation for which the applicant company had no licence.
30. On 25 December 1997 the applicant company lodged an extraordinary appeal (contestaţie în anulare) against the decision of 24 December 1997.
31. On 21 January 1998 the Supreme Court dismissed the extraordinary appeal.
32. On 2 February 1998 the Prosecutor General and the Ministry of Finance filed an application with the Economic Court of the Republic of Moldova for the confiscation of MDL 420,750 from the applicant company. The amount represented the profit obtained by ASITO as a result of the contract with company F., which had been declared null and void by the Supreme Court’s judgment of 24 December 1997. In his application, the Prosecutor General referred, inter alia, to the judgment of 23 September 1997 of the Appeal on Points of Law Chamber of the Economic Court and to the judgment of 24 December 1997 of the Supreme Court of Justice.
33. On 20 May 1998 the Prosecutor General requested that the amount to be confiscated be reduced. In this respect, the Prosecutor General pointed out that, according to the Law on Enterprises and Business Professions, an enterprise having exercised an illegal activity was accountable for the profit obtained and for a penalty equal to the profit. Since ASITO’s profit amounted to MDL 90,750, the Prosecutor General requested that MDL 181,500 be confiscated.
34. On 2 February 1999, the Economic Court of the Republic of Moldova found in favour of the Prosecutor General and the Ministry of Finance and ordered ASITO to pay the State MDL 186,945.00 (the equivalent of EUR 18,765.00 at the time).
35. On 25 October 2000 the applicant’s appeal was dismissed by a final judgment of the Appeal on Points of Law Chamber of the Economic Court of the Republic of Moldova.
36. On 16 July 2003 the applicant applied to the Supreme Court of Justice for revision of the judgments of 24 December 1997 and 21 January 1998. On 4 September 2004 the Supreme Court of Justice dismissed the applicant’s request.
37. On 13 November 2003 the Prosecutor General’s Office applied to the Supreme Court of Justice for revision of the judgments of 24 December 1997. On 16 September 2004 the Supreme Court of Justice dismissed the request.
38. Law No. 970 of 24 July 1996 on Economic Courts, in so far as relevant, reads as follows:
“The Prosecutor General and his deputies may lodge, within one year, with the Appeal on Points of Law Chamber of the Economic Court of the Republic of Moldova, a request for annulment (recurs în anulare) of any final decision of the Arbitration Court ... on the ground that the substantive or procedural law was violated ... They may also request a stay of execution of the decision of the Arbitration Court.”
39. The relevant provision of Law No. 1550 of 25 February 1998 reads as follows:
“In Article 38 § 3 of the Law No. 970 of 24 July 1996 on Economic Courts the words ‘within one year’ shall be deleted.”
40. The relevant provisions of the Code of Civil Procedure in force until 12 June 2003, state:
“Courts may commence to examine a civil action ... at the prosecutor’s request, in cases relating to ... the State’s and the society’s interest regarding ...
...
e) ... the nullity of contracts infringing the State’s interest ...;
f) ... and for the annulment of acts and activities of corruption and protectionism.”
“The parties, ... [and] the Prosecutor General ... may, either on their own motion or on an application by one of the parties, lodge with the Supreme Court an extraordinary appeal (recurs) against any final judicial decision of the Economic Court of the Republic, on the following grounds:
(1) where the judgment has no legal basis or is contrary to the law or the law was wrongly applied ...”.
41. Between 1989 and 1999, the Prosecutor General made little use of Article 5(2), and the courts interpreted it in a restrictive manner. An application for termination of a contract was rejected, as relating neither to the categories of persons protected under the provision, nor to the State’s interest (Court of Appeal of Moldova, judgment Nr. 2r-523 of 15 January 1998). In a demand for the annulment of an apartment sale for non-compliance with the residence permit, the Supreme Court acknowledged the State’s interest, but rejected the case on the merits (The Supreme Court of Justice, plenary judgment Nr. 4r/a-17/99 of 8 November 1999).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107077
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF KURCZVEIL v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Angelika Nußberger;Ganna Yudkivska
TEXT: 4. The applicant was born in 1946 and lives in Lübbenau.
5. On 27 August 2003 the Wood Professional Association (HBG HolzBerufsgenossenschaft) refused to recognise the applicant’s respiratory diseases as an occupational disease (Berufskrankheit).
6. On 26 September 2003 the applicant, represented by lawyer, filed an objection against the aforementioned decision. The objection was rejected on 23 December 2003.
7. On 14 January 2004 the applicant brought an action in the Cottbus Social Court.
8. On 11 March 2004 the respondent party submitted the statement of defence and the applicant’s files.
9. On 14 June 2004 the Social Court requested inter alia reports of 19 doctors the applicant had consulted prior to the proceedings as well as medical documentation regarding the applicant’s five prior stays in hospital. Three months later these documents had been obtained in their entirety and the Social Court submitted the documents to the parties.
10. On 8 November 2004 and on 13 January 2005 the Social Court asked the applicant to concretise the claim. On 7 February 2005 the applicant submitted that the aim of the action was to determine that he was suffering from an occupational disease.
11. On 2 May 2005 the Social Court decided to obtain a first expert opinion concerning 12 specific questions and named an expert (Mr W.M.). The applicant cancelled the first examination fixed for 29 June 2005 due to illness. On 10 August 2005 the expert examined the applicant. On 13 October 2005 the expert submitted his report of 19 pages, in which he found inter alia that a further expert opinion was necessary.
12. On 23 March 2006 the Social Court decided to obtain another expert opinion on different aspects of the 12 questions and named an expert (Ms P.H.). The expert indicated her willingness to render the expert opinion.
13. In April 2006 the applicant changed lawyer.
14. On 24 May 2006 the expert Ms P.H. informed the Social Court that the applicant should first be examined by another expert (Ms U.R.). On 4 July 2006 the applicant challenged the latter expert on grounds of bias. By letter of 7 July 2006 the Social Court rejected this challenge and informed the applicant that it considered the examination necessary. On 19 October 2006 the applicant informed the Social Court that he was willing to cooperate.
15. On 7 February 2007 the expert Ms U.R. submitted her report of 11 pages. On 29 March 2007 the Social Court submitted the files to the expert Ms P.H. in order for her to render the requested expert opinion. On 17 April 2007 Ms P.H. informed the Social Court that she was unable to give the expert opinion.
16. On 17 August 2007 the Social Court amended its decision of 23 March 2006 and named another expert (Mr D.A.). On 31 August 2007 Mr D.A. informed the Social Court that he was unable to give the expert opinion in a timely manner.
17. On 26 September 2007 the Social Court again amended its decision of 23 March 2006 and named another expert (Mr Sch.). On 10 October 2007 the Social Court was informed that Mr Sch. had retired.
18. On 10 October 2007 the Social Court again amended its decision of 23 March 2006 and named another expert (Mr V.Z.). On 5 December 2007 Mr V.Z. informed the Social Court that he was unable to give the expert opinion in a timely manner.
19. On 11 December 2007 the Social Court again amended its decision of 23 March 2006 and named another expert (Mr E.M.). On 29 January 2008 the latter informed the Social Court that he was unable to give the expert opinion.
20. On 12 November 2008 the Social Court made a new decision to obtain an expert opinion and named an expert (Mr H.L.). On 2 December 2008 the Social Court was informed that Mr H.L. had retired.
21. On 11 February 2009 the Social Court amended its decision of 12 November 2008 and named another expert (Mr C.S.). On 20 February 2009 Mr C.S. informed the Social Court that he was unable to give the expert opinion.
22. In February 2009 the applicant changed lawyer. In April 2009 the new lawyer withdrew from the case. In June 2009 one of the applicant’s previous lawyers reappointed herself.
23. On 28 May 2009 the Social Court again amended its decision of 12 November 2008 and named another expert (Mr H.S.). On 11 June 2008 the Social Court was informed that the expert had retired.
24. On 18 June 2009 the Social Court anew amended its decision of 12 November 2008 and named another expert (Mr H.E.). On 11 November 2009 the expert submitted his report of 13 pages. On 18 January 2010 the expert supplemented his report.
25. On 21 January 2010 the report was submitted to the parties in order to obtain their comments.
26. On 25 March 2010 the Social Court scheduled a hearing for 14 April 2010.
27. On 14 April 2010 the Social Court held an oral hearing and rejected the applicant’s claim. The written judgment was served on the applicant’s lawyer on 7 June 2010.
28. On 7 July 2010 the applicant appealed against the judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108382
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ULLENS DE SCHOOTEN AND REZABEK v. BELGIUM [Extracts]
IMPORTANCE: 2
CONCLUSION: Partiellement irrecevable;Non-violation de l'art. 6-1
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
TEXT: 4. Mr Fernand Ullens de Schooten and Mr Ivan Rezabek live in Bonlez and Brussels respectively. They were directors of an accredited clinical biology laboratory called Biorim, whose services were eligible for reimbursement through the National Institute for Sickness and Invalidity Insurance (Institut national d’assurance maladie invalidité – the “INAMI”).
5. The Biorim laboratory was searched on 21 November 1989 following a complaint from the Special Tax Inspectorate. The applicants were arrested and remanded in custody. Proceedings were brought against them and eleven other individuals for offences related to the management of the laboratory, including forgery and failure to comply with Article 3 of Royal Decree no. 143 of 30 December 1982.
The Article in question laid down, in respect of clinical biology services, the conditions to be met by medical laboratories so that the cost of their services could be reimbursed to users through the sickness insurance scheme. In the version of the text that was in force until 24 May 2005, it stipulated in particular that only laboratories that were run by doctors, pharmacists or persons qualified in chemical sciences were entitled to carry out clinical tests that were eligible for reimbursement.
6. On 29 June 1993 the investigating judge concluded the preparation of the case. On 3 April 1995 the Crown Prosecutor finalised his written submissions and, on 29 May 1996, the Committals Division made an order committing the applicants (and eleven other defendants) to stand trial before the Brussels Court of First Instance, sitting as a criminal court.
The fraudulent intent referred to in the committal submissions for offences classified as acts of “forgery” consisted in the fact of deceiving the authorities “responsible for monitoring implementation of the legislation on the operation of medical laboratories, in particular the provisions of Royal Decree no. 143”.
7. The oral proceedings began on 20 June 1997 and were spread over forty hearings.
8. A number of mutual insurance companies applied to join the proceedings as civil parties. They sought compensation for damage stemming from two causes. They claimed that the applicants had, firstly, engaged in a practice of fee sharing and, secondly, had run a clinical biology laboratory in breach of the provisions of Article 3 of Royal Decree no. 143. Under the second head they claimed 19,908,531 euros, corresponding to the total amount paid to the Biorim laboratory between 1 January 1990 (date on which Royal Decree no. 143 entered into force) and 16 April 1992 (last day of the period in which the offences were committed).
9. On 30 October 1998 the criminal court convicted the applicants, imposing prison sentences and fines, for various offences that had been committed in connection with the management of Biorim. It found in particular that between 1 January 1990 and 10 June 1997 the laboratory had been run by the first applicant at a time when he did not fulfil the conditions of Article 3 of Royal Decree no. 143, and that he had devised various means of circumventing the legislation.
The court declared the civil parties’ claims admissible, but awarded them only a token amount of one euro on the ground that the damage had not been sufficiently substantiated.
10. Before the Brussels Court of Appeal, the applicants argued in particular that Article 3 of Royal Decree no. 143 was incompatible with Article 86 of the Treaty establishing the European Community, taken together with Articles 82 (prohibition of the abuse of a dominant position) and 43 (freedom of establishment) of the Treaty and that it should be declared inapplicable on account of the direct effect and primacy of Community law. They requested in this connection that the question be referred to the Court of Justice of the European Communities for a preliminary ruling.
11. In a judgment of 7 September 2000 the Brussels Court of Appeal, after examining the above-mentioned argument on the merits, found that Article 3 of Royal Decree no. 143 was compatible with Community law. It emphasised, in particular, that “national measures capable of hindering or rendering less attractive the exercise of the fundamental freedoms guaranteed by the Treaty” had to fulfil four conditions and that the measure in question did so, being non-discriminatory, justified by compelling reasons in the general interest, appropriate to ensure the fulfilment of the aim pursued, and not going beyond what was necessary to that end.
The Court of Appeal then decided “that there [was] no need to refer questions for a preliminary ruling”.
12. ...
The Court of Appeal thus handed down convictions – mainly for tax fraud – sentencing the first applicant to five years’ imprisonment, with a five-year suspension for the part of the main prison sentence in excess of four years, and to a fine of 500,000 Belgian francs (about EUR 12,395), and the second applicant to three years’ imprisonment, with a five-year suspension for the part of the main prison sentence in excess of two years, and to a fine of 300,000 Belgian francs (about EUR 7,437). As to the requests of the civil parties, the Court of Appeal declared them inadmissible.
13. Ruling on appeals by the applicants and the civil parties, the Court of Cassation, in a judgment of 14 February 2001, dismissed the appeals in so far as they were directed against the criminal provisions of the judgment of 7 September 2000, finding in particular that there was no need to refer questions to the Court of Justice of the European Communities. It quashed the judgment, however, in respect of its findings on the civil actions and, within that limit, referred the case back to the Mons Court of Appeal.
14. On 7 December 1999 the first applicant had lodged a complaint against Belgium with the European Commission, arguing that Article 3 of Royal Decree no. 143 was incompatible with the Treaty establishing the European Community.
In May 2001 the European Commission initiated the infringement procedure provided for in Article 226 of the Treaty establishing the European Community and requested the Belgian authorities to submit their observations on the compatibility of Article 3 of Royal Decree no. 143 with Article 43 of that Treaty, concerning freedom of establishment.
15. On 17 July 2002 the European Commission adopted a reasoned opinion finding that Article 3 of the Royal Decree was incompatible with Article 43 of the Treaty. It requested Belgium to amend that provision, which had the effect of placing non-Belgian operators wishing to run clinical biology laboratories in Belgium and establish themselves there at a disadvantage in relation to certain Belgian professionals (in particular doctors, pharmacists or persons qualified in chemical sciences). In the Commission’s opinion, the fact that only those laboratories which fulfilled the prescribed conditions could provide services eligible for reimbursement through the health insurance system discouraged beneficiaries of that insurance from going to other laboratories and thus restricted the effectiveness of the freedom of establishment, in breach of Article 43 of the Treaty establishing the European Community.
16. On 24 May 2005 Belgium enacted a law amending Article 3 of Royal Decree no. 143, abolishing the requirement to have particular qualifications to operate a laboratory carrying out clinical tests eligible for reimbursement under the sickness and invalidity insurance scheme.
17. On 22 September 2003 the parties wrote to the office of the public prosecutor at the Mons Court of Appeal seeking the organisation of a preparatory hearing. It took place between 13 February 2004 and 4 April 2005.
18. The debate concerning the reimbursement of clinical tests focussed on the question of the compatibility with Community law of Article 3 of Royal Decree no. 143. In the applicants’ submission, that provision was in breach of certain rules of the Treaty establishing the European Community, in particular those concerning freedom of establishment (Article 43 of the Treaty), the free movement of capital (Article 56), the free provision of services (Article 49) and the rules on free competition (Articles 82 and 86). Referring in particular to the European Commission’s opinion of 17 July 2002 (see above), they concluded that Article 3 of Royal Decree no. 143 could not have produced ab initio any legal effect and that, being bound by the primacy of Community law, the Court of Appeal could not take account of the convictions handed down, not even considering the offences as mere torts. In the alternative, the second applicant requested that a question be referred to the Court of Justice of the European Communities for a preliminary ruling on the conformity of Article 3 of Royal Decree no. 143 with the provisions of Articles 43, 49, 56, 82 and 86 of the Treaty establishing the European Community.
19. In a judgment of 23 November 2005 the Court of Appeal dismissed the applicants’ arguments. It emphasised that the European Commission’s reasoned opinion of 17 July 2002 was not binding and that the Brussels Court of Appeal’s judgment of 7 September 2000, of which the criminal provisions had the authority of res judicata, had found Article 3 of Royal Decree no. 143 to be compatible with Community law. Further noting that the Court of Cassation, in its decision of 14 February 2001, had decided that there was no need to refer preliminary questions to the Court of Justice of the European Communities, it reached the same conclusion, on the ground that such questions were not “indispensable for adjudication”.
20. Upholding the civil claims, the Mons Court of Appeal ordered the applicants to pay various amounts to the civil parties, including six mutual insurance companies jointly, for a total of EUR 1,859,200.
21. On 1 December 2005 the applicants appealed on points of law against the judgment of 23 November 2005. They reiterated in particular the argument that Article 3 of Royal Decree no. 143 was incompatible with the Treaty establishing the European Community, a higher source of law. They further submitted that, whilst the Court of Cassation itself had not found the provisions incompatible, it had a duty, under Article 234 of the Treaty establishing the European Community, to refer the matter to the Court of Justice of the European Communities for a preliminary ruling on the issue ofprinciple of the authority of res judicata and the primacy of Community law. In their submission, the fact that the Mons Court of Appeal had upheld the authority of res judicata in the Brussels Court of Appeal’s judgment, whereas developments following that decision had revealed it to be erroneous, constituted a breach of the right to a fair hearing under Article 6 of the Convention and more specifically the entitlement to a hearing by an impartial tribunal.
22. On 14 June 2006 the Court of Cassation dismissed the applicants’ appeals. It reiterated among other things the principle that the authority of res judicata in criminal matters precluded the court hearing any subsequent civil claims from calling into question what had been adjudicated with final effect, certainty and necessity as to the existence of a fact forming the common basis of the criminal proceedings and the civil suit. It concluded that the Mons Court of Appeal had rightly held that the finding of the Brussels Court of Appeal of 7 September 2000 concerning the conformity of Article 43 of Royal Decree no. 143 with Community law had been correct, being in line with that principle.
The Court of Cassation, moreover, considered that the question whether the principle of the primacy of Community law should take precedence over that of the authority of res judicata had already been settled by the Court of Justice of the European Communities in its judgments in Eco Swiss China Time Ltd and Benetton International NV (C-126/97) of 1 June 1999 and Rosemarie Kapferer v. Schlank & Schlick GmbH (C-234/04) of 16 March 2006. It noted in this connection that the Luxembourg Court had concluded in those judgments that the second principle prevailed, finding that “Community law [did] not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would enable it to remedy an infringement of Community law by the decision at issue”, and had explained in the Kapferer judgment that “the obligation of the body concerned to review a final decision, which would appear to have been adopted in breach of Community law [was] subject, in accordance with Article 10 EC, to the condition, inter alia, that that body should be empowered under national law to reopen that decision”. The Court of Cassation concluded that “there [was] no need to submit once again to the Court of Justice of the European Communities the point of law that it [had] thus resolved, regardless of the nature of the proceedings which [had given] rise to its case-law and despite the questions at issue not strictly being the same”.
23. On 18 March 1999 the Minister for Public Health issued a decision suspending the laboratory’s accreditation for a twelve-month period. Referring to the Brussels Criminal Court’s judgment of 30 October 1998 (see paragraph 9 above), the decision was based on a failure to comply with Royal Decree no. 143.
The company Biorim unsuccessfully lodged an administrative appeal: the suspension was confirmed by a ministerial decision of 9 July 1999.
24. In the meantime, on 8 June 2000, a fresh ministerial decision had extended the suspension of accreditation for a twelve-month period “on account of the continuing infringements of Article 3 of Royal Decree no. 143”.
In a decision of 24 July 2000 the Minister dismissed the administrative appeal lodged by Biorim and confirmed the suspension, on the ground that the company had not put an end to the situation which had justified the first suspension of accreditation, the applicant having continued to run the laboratory.
25. On 13 September 1999 and 21 September 2000 Biorim applied to the Conseil d’Etat for the annulment of the ministerial decisions of 9 July 1999 (G/A 85.522/VI-15.170; the “first set of proceedings”) and of 24 July 2000 (G/A 94.649/VI-15.635; the “second set of proceedings”).
26. The applicant was a third-party intervener in the proceedings.
27. The company Biorim and the applicant claimed in particular that Article 3 of Royal Decree no. 143, on which the impugned decisions had been based, was in breach of Articles 43 (freedom of establishment), 49 (free provision of services) and 56 (free movement of capital) of the Treaty establishing the European Community, and of Article 86 taken together with Articles 82 (prohibition of abuse of dominant position), 43, 49 or 56. They concluded that those decisions were devoid of admissible basis and should therefore be annulled.
In the alternative, the applicant requested the Conseil d’Etat to refer questions to the Court of Justice of the European Communities for a preliminary ruling to determine whether the above-mentioned Articles of the Treaty establishing the European Community were to be interpreted as precluding the application of legislation imposing the various restrictions provided for in Article 3 of Royal Decree no. 143.
28. In his report of 22 September 2005, the Auditeur (legal assistant at the Conseil d’Etat) declared the argument well-founded and took the view that the impugned decisions should be annulled on the ground that Article 3 of Royal Decree no. 143 was not in conformity with Community law.
The Auditeur observed first of all that the Belgian courts had to refuse to give effect to any provisions of domestic law that ran counter to provisions of international law having direct effect. This was the case for national legislation concerning the services of medical laboratories, which had to be compatible with the rules of Community law on freedom of establishment and the free provision of services, since the Court of Justice of the European Communities had held that those rules applied to such services (CJEC, 11 March 2004, C-496/01). He added that it was invalid in the present case to argue that the legislation bore no relation to trade between two EC member States – especially as, in his opinion, factors of such nature were present – as justification for finding the provisions inapplicable, referring in this connection to the case-law of the Luxembourg court to the effect that since the fundamental freedoms enshrined in Community law extended in their application to the potential effects of legislation, they could not be considered inapplicable simply because the facts of the specific case were confined to a single member State (CJEC, C-321/94 to C-324/94). He went on to observe that “national measures capable of hindering or rendering less attractive the exercise of such fundamental freedoms” were admissible only under certain conditions, in particular where they did not go beyond what was necessary to achieve the aim pursued. In the present case, firstly, Article 3 of Royal Decree no. 143 hindered and rendered less attractive the freedom of establishment, the free provision of services and the free movement of capital as regards the operation of clinical biology laboratories; secondly, the measure implemented was disproportionate to the aim pursued – to avoid over-consumption of clinical biology services – as that aim could be achieved by means that were less restrictive of freedoms.
29. In two judgments of 21 February 2007, the Conseil d’Etat dismissed the submission that there had been a violation of the above-mentioned Articles of the Treaty establishing the European Community.
It first observed that, under Article 86 § 1 of the Treaty, “[i]n the case of public undertakings and undertakings to which member States grant[ed] special or exclusive rights, member States [could] neither enact nor maintain in force any measure contrary to the rules contained in that Treaty, in particular to the rules provided for in Article 12 and Articles 81 to 89”. Finding that the laboratories referred to in Article 3 of Royal Decree no. 143 did not fall within those categories, it declared Article 86 of the Treaty inapplicable in the present case.
As to the other provisions of the Treaty relied upon in the submission, the Conseil d’Etat referred to the case-law of the Court of Justice of the European Communities to the effect that the Treaty’s rules in matters of free circulation of persons and services did not affect any restrictions applying to nationals of a member State on the territory of that State where the situation in which they found themselves had no link to any of the situations envisaged by Community law. According to the Conseil d’Etat, the dispute did not, in the present case, contain any extraneous elements capable of justifying the application of Community law. In that connection it explained as follows:
“... [Biorim] is a company incorporated under Belgian law and operating in Belgium. As it operates within the Belgian market, it has not availed itself of the freedom of establishment or the free provision of services provided for respectively by Articles 43 and 49 of the Treaty establishing the European Community. The alleged circumstance ... that Community nationals established in other member States could make use of the services of [Biorim] does not constitute, in respect of the company, a link to Community law within the meaning of the above-cited case-law of the Court of Justice of the European Communities.
[The applicant] is Belgian and in order to run the laboratory of [Biorim] he did not make use of freedom of movement within the European Community. Although it has been shown in the criminal-court decisions that he used “financing packages”, in particular through the intermediary of the Luxembourg company [T.], this factor has no bearing on the grounds for the impugned decision. The case against [Biorim] is not that it was operated by that company, or that it was financed by foreign capital, but precisely that it was run by [the applicant], whereas he did not have one of the qualifications required to do so, as shown by the criminal-court decisions. The [applicant’s] situation in this connection is confined exclusively to the national sphere ...”
The Conseil d’Etat further refused to refer the applicant’s questions to the Court of Justice of the European Communities for a preliminary ruling, observing as follows:
“... Article 234 of the Treaty establishing the European Community does not oblige courts or tribunals against whose decisions there is no judicial remedy under national law to refer a question concerning the interpretation of Community law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case. The same applies when the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case, where previous decisions of the Court have already dealt with the point of law in question, even though the questions at issue are not strictly identical, or where the correct application of Community law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved ... In the present case, there is no reasonable doubt as to the inapplicability of Article 86 § 1 of the Treaty establishing the European Community to the laboratories referred to in Article 3 ... of Royal Decree no. 143 .... In addition, for the reasons given, an answer by the Court as to the interpretation of Articles 43, 49 and 56 of the Treaty establishing the European Community could not affect the outcome of the present dispute ...”
30. The company Biorim additionally argued, inter alia, that there had been a breach of Articles 10 and 11 of the Constitution concerning equality before the law and the prohibition of discrimination.
The Conseil d’Etat held that, in so far as Biorim was complaining of a difference in treatment between Belgian nationals established in Belgium and those established in other member States or nationals of other member States, on the ground that the latter categories enjoyed more rights and guarantees in the context of the application of Article 3 of Royal Decree no. 143, this was a new submission raised only in its rejoinder and was thus belated and inadmissible.
In response to Biorim’s argument that, by reserving the intervention of the sickness insurance scheme to laboratories run by doctors, pharmacists or persons qualified in chemical sciences, Article 3 of Royal Decree no. 143 introduced, between those persons and other business operators, a prohibited difference in treatment, the Conseil d’Etat found that its decision should be reserved in order to submit a question on that subject to the Constitutional Court for a preliminary ruling. The Constitutional Court responded by a judgment of 19 December 2007 that the said provision did not breach Articles 10 and 11 of the Constitution.
31. In addition, in the context of the second set of proceedings, the Conseil d’Etat partly re-opened the case, requesting the Auditeur to pursue the investigation and produce a supplementary report on arguments other than those alleging a breach of Community law.
The Auditeur found that the ministerial decision of 24 July 2000 should be annulled on grounds related to the reasoning of the impugned decision, being unconnected to the complaints submitted by the applicant to the Court.
32. The Conseil d’Etat dismissed the applications by two judgments of 10 September and 22 December 2008.
33. Article 234 of the Treaty establishing the European Community (former Article 177 and, since 1 December 2009, Article 267 of the Treaty on the Functioning of the European Union) provides for preliminary rulings of the Court of Justice of the European Communities as follows:
“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community ...;
...
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”
34. In the case of S.r.l. CILFIT and Lanificio di Gavardo S.p.a. v. Ministry of Health (283/81, Rec. 1982, p. 3415) the Court of Justice of the European Communities had received a request from the Italian Court of Cassation for a ruling as to whether the third paragraph of Article 234 of the Treaty establishing the European Community (former Article 177) laid down an obligation to refer a matter which precluded the national court from determining whether the question raised was justified or whether it made that obligation conditional on the prior finding of a reasonable interpretative doubt.
In its judgment the Court of Justice explained, firstly, as follows:
“... 6. The second paragraph of that article [Article 234] provides that any court or tribunal of a Member State may, if it considers that a decision on a question of interpretation is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. The third paragraph of that article provides that, where a question of interpretation is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, bring the matter before the Court of Justice.
7. That obligation to refer a matter to the Court of Justice is based on cooperation, established with a view to ensuring the proper application and uniform interpretation of Community law in all the Member States, between national courts, in their capacity as courts responsible for the application of Community law, and the Court of Justice. More particularly, the third paragraph of Article [234] seeks to prevent the occurrence within the Community of divergences in judicial decisions on questions of Community law. The scope of that obligation must therefore be assessed, in view of those objectives, by reference to the powers of the national courts, on the one hand, and those of the Court of Justice, on the other, where such a question of interpretation is raised within the meaning of Article [234].
8. In this connection, it is necessary to define the meaning for the purposes of Community law of the expression “where any such question is raised” in order to determine the circumstances in which a national court or tribunal against whose decisions there is no judicial remedy under national law is obliged to bring a matter before the Court of Justice.
9. In this regard, it must in the first place be pointed out that Article [234] does not constitute a means of redress available to the parties to a case pending before a national court or tribunal. Therefore the mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of Community law does not mean that the court or tribunal concerned is compelled to consider that a question has been raised within the meaning of Article 177. ...”
The Court of Justice went on to observe that courts or tribunals against whose decisions there was no judicial remedy had the same discretion as any other national court or tribunal to ascertain “whether a decision on a question of Community law [was] necessary to enable them to give judgment”. It concluded that they were not obliged to refer a question of interpretation of Community law raised before them in the following situations: (1) where the question was not relevant, in the sense that the answer to the question, regardless of what it might be, could in no way affect the outcome of the case; (2) where the question was materially identical with question which had already been the subject of a preliminary ruling in a similar case, or where previous decisions of the Court had already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue were not strictly identical; or (3) where the correct application of Community law was so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised was to be resolved (bearing in mind that before it came to this conclusion the national court or tribunal had to be convinced that the matter was equally obvious to the courts of the other member States and to the Court of Justice, and only if those conditions were satisfied could the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it).
The judgment then concluded as follows (point 21):
“... the third paragraph of Article [234] of the EEC treaty is to be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.”
35. Articles 43, 49, 56, 82 and 86 of the Treaty establishing the European Community (Title III “Free Movement of Persons, Services and Capital”) read as follows:
“Within the framework of the provisions set out below [on the right of establishment], restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the chapter relating to capital.”
“Within the framework of the provisions set out below [on services], restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.
The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community.”
“1. Within the framework of the provisions set out in this chapter [on capital and payments], all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.
2. Within the framework of the provisions set out in this chapter, all restrictions on payments between Member States and between Member States and third countries shall be prohibited.”
“Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States.
...”
“1. In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those rules provided for in Article 12 and Articles 81 to 89.
...”
36. Article 21ter of the Preliminary Title of the Code of Criminal Procedure reads as follows:
“Should the length of criminal proceedings exceed a reasonable time, the court may convict by a mere declaration of guilt or hand down a lesser sentence than that provided for by law ...”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1