ITEMID: 001-61700
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF HAMANOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 10. The applicant was born in 1963 and lives in Plovdiv.
11. On 11 March 1996 the Plovdiv District Prosecutor's Office opened an investigation against the applicant, who was a bank branch manager, and several others, in connection with a number of financial transactions effected by them allegedly in breach of the law (see Yankov v. Bulgaria, no. 39084/97, § 11, 11 December 2003, and Belchev v. Bulgaria, no. 39270/98, § 11, 8 April 2004).
12. On 12 March 1996 the applicant was charged with having authorised thirty-five wire transfers abroad in breach of his professional duties and with a view to an unlawful gain for others.
13. In the course of the investigation the applicant was also accused of having guaranteed on behalf of the bank nine promissory notes issued by companies related to a Mr Belchev, and of unlawfully possessing firearm ammunition.
14. Eight persons were charged in all. The charges were modified several times in the course of the investigation.
15. During the investigation, which lasted about fourteen months, the investigator heard forty-seven witnesses, examined numerous financial and banking documents, commissioned expert reports, and undertook searches.
16. On 5 May 1997 the investigation was completed and the case file was sent to the prosecutor.
17. On 1 July 1997 the prosecutor submitted to the Plovdiv District Court a thirty-two-page indictment accompanied by twenty binders of documentary evidence.
18. The first hearing took place from 17 to 30 September 1997. The District Court heard the accused as well as several witnesses and experts. Some witnesses did not appear. Both the prosecution and the defence requested an adjournment.
19. The trial resumed on 25 November 1997. The District Court heard several witnesses. Ten other witnesses were absent as they had not been subpoenaed properly and others, albeit subpoenaed, did not show up. The trial was adjourned until 7 January 1998.
20. The trial resumed on 7 and 8 January 1998. The court adjourned it to 9 April, as some witnesses did not appear, and ordered an additional financial report.
21. The hearing listed for 9 April 1998 was adjourned to 6 July and then again to 19 October by reason of the ill health of one of the applicant's coaccused.
22. On 19 October 1998 the District Court held its last hearing. It heard the closing argument of the parties.
23. On 30 October 1998 the District Court found the applicant guilty. It sentenced him to nine years' imprisonment and banned him from holding the post of a director of a bank's branch for a period of twelve years.
24. The reasoning of the District Court's judgment was deposited in the registry of that court on an unspecified date in late January 1999.
25. Several times during the proceedings the case file was unavailable as it would be transmitted to the competent court for the examination of appeals submitted by the applicant's coaccused against their detention. In practice, upon such an appeal, the entire case file would be transmitted together with the appeal.
26. Throughout the proceedings the District Court and later the Regional Court sought police assistance to establish the addresses of witnesses and ensure their attendance.
27. On an unspecified date in November 1998 the applicant appealed against his conviction and sentence.
28. More than a year later, on 6 December 1999, the Plovdiv Regional Court held its first hearing, which was adjourned to 13 March 2000 because of health problems of one of the applicant's coaccused.
29. On 13 and 14 March 2000 the Regional Court resumed its hearing in the case.
30. On 5 June 2000 the Regional Court quashed the lower court's judgment and remitted the case to the preliminary investigation stage.
31. The Regional Prosecutor's Office, considering that the Regional Court's judgment was unclear or erroneous, sought to appeal against it or request its interpretation. There ensued a dispute about the time-limit for such an appeal, which was brought by the prosecution authorities to the Supreme Court of Cassation. On 27 November 2000 that court dismissed the prosecution's request.
32. Nothing was done in the case thereafter, at least until April 2003, date of latest information from the parties. At that time the investigation in the applicant's case was pending before the prosecution authorities.
33. On 12 March 1996 the applicant was arrested and brought before an investigator who decided to detain him. The decision was later confirmed by a prosecutor.
34. On 26 September 1997, during the first trial hearing, the applicant applied to the District Court for release. He submitted that he could not abscond because he had a wife and a child of whom he had to take care. He could not interfere with the investigation either, because all evidence had already been gathered. Finally, there was no risk of him committing an offence, because he had been dismissed from the bank where he had worked. The application was rejected by the District Court with the following reasoning:
“[The applicant] has been charged with a serious intentional crime. There is still evidence to be gathered. [T]he court therefore considers that there is a real risk that the [applicant] will hinder the investigation.”
35. On 7 October 1997 the applicant appealed. On 9 October the District Court, finding no reasons to alter its decision, transmitted the appeal to the Regional Court. On 20 October the Regional Court upheld the impugned decision, finding that that applicant had been charged with a serious intentional crime and hence had to be detained.
36. On 25 November 1997, during the second trial hearing, the applicant made a fresh request for release. He argued that the facts of the case had been elucidated: there were only two more witnesses to be questioned. There was hence no risk of him obstructing the investigation. There was no risk of him re-offending either. The District Court refused, reasoning succinctly that the applicant had been charged with a serious intentional crime, that there were no new circumstances, and that he should hence remain in detention. On 4 December the applicant appealed, arguing that there was no indication that he would flee, obstruct the investigation – especially in view of the fact that the case had progressed to trial –, or try to suborn witnesses or experts. On 5 December the District Court, finding no reasons to alter its decision, transmitted the appeal to the Regional Court. On 15 December the Regional Court dismissed the appeal, finding that the applicant had been charged with a serious intentional crime and that hence his remaining in detention was justified, especially in view of the gravity of the alleged offence.
37. On 8 January 1998, during the third trial hearing, the applicant again requested release. He averred that in view of the adjournment of the case his detention should not be prolonged any further. There was no risk of him obstructing the investigation or fleeing. The obduracy of the court to refuse his release made pretrial detention a form of punishment. Indeed, the other accused persons were on bail. The District Court refused in the following terms:
“The court finds the [applicant's] request for release ill-founded. [He] has been charged with a serious intentional crime and thus has to be kept in detention. ... The fact that the other accused are not detained has nothing to do with the [applicant's] detention.”
38. On 16 January 1998 the applicant appealed, averring that the facts of the case had already been clarified, that he had a permanent address and that his family seriously suffered from his continuing detention. On 22 January the District Court confirmed its decision and transmitted the appeal to the Regional Court. On 23 January that court dismissed the appeal, holding that the applicant had been charged with a serious intentional crime. Detention was therefore lawful under Article 152 of the Code of Criminal Procedure (“CCP”), under which persons charged with serious intentional crimes had to be detained, barring special circumstances. There had to be real facts establishing that there was no risk of the applicant absconding, re-offending or hindering the investigation for the exception of Article 152 § 2 to apply. The applicant's arguments relating to his lack of criminal record, permanent address etc. were not of a nature to prove the lack of such a risk.
39. On 17 April 1998 the applicant filed an application for release, arguing that he had a permanent address and that he had no intention of absconding or interfering with the investigation. On 23 April the District Court held a hearing on the application and denied it in the following terms:
“The court finds that the [applicant's] request for release is ill-founded. The charges against [him] concern a serious intentional crime and there is a risk that he may interfere with the investigation or commit another crime[.]”
40. On 29 April 1998 the applicant appealed, arguing that his lengthy detention – more than two years – was not warranted. The following day the District Court confirmed its decision and forwarded the appeal to the Regional Court, which in turn dismissed it on 11 May, holding that there were no objective circumstances which could lead to the conclusion that the applicant would not interfere with the investigation. The length of detention was no reason to deviate from the strict requirements of Article 152 of the CCP.
41. During the trial hearing which took place on 6 July 1998 the applicant again applied for release. He argued that there was no risk of him absconding, re-offending or fleeing. Moreover, given the adjournment of the case, his detention would exceed two and a half years, thus becoming a sort of punishment. The District Court rejected the request, finding briefly that the applicant had been accused of a serious intentional crime and that there had been no change of circumstances. On 15 July the applicant appealed, asserting that the facts of the case had been established and that he had no criminal record. On 22 July the District Court declined to alter its decision and forwarded the appeal to the Regional Court. On 27 July the Regional Court dismissed the appeal in the following terms:
“[The applicant is charged with] a serious intentional crime. Under Article 152 [of the CCP] this is sufficient for the imposition of detention. The exceptions of Article 152 § 2 are not present, as [the applicant] may flee or obstruct the investigation.”
42. On 12 August 1998 the applicant filed an application for release. He maintained that there were no facts indicating that he could abscond, reoffend or hinder the investigation. On 10 September the District Court held a hearing on the application and rejected it. It held that the applicant had been accused of a serious intentional crime and that there was a risk of him impeding the investigation or re-offending. Moreover, the trial was about to finish. The applicant did not appeal to the Regional Court.
43. All appeals filed by the applicant against the refusals of the District Court to release him were examined by the Regional Court in private, without the participation of the parties.
44. The applicant has not alleged that his detention continued after the Regional Court quashed his conviction by a judgment of 5 June 2000.
45. Article 282 § 1 of the Criminal Code (“CC”) provides:
“A person [exercising a function of managing another's property or an official function], who acts in breach or dereliction of his professional duties or exceeds his power or rights with a view to a pecuniary gain for himself or another or damage to another, and thus causes significant harm, shall be punished by up to five years' imprisonment...”
46. Article 282 § 3, read in conjunction with the first and the second paragraphs of the same provision, provides for three to ten years' imprisonment in very grave cases when the resulting damage is substantial or the offender holds a high ranking post.
47. Article 339 § 1 provides that whoever possesses firearm ammunition without a permit is punishable by up to six years' imprisonment.
48. Pretrial detention was governed by Article 152 of the CCP, which read in relevant part:
“1. Pretrial detention shall be imposed [in cases where the charges concern] a serious intentional crime.
2. In the cases falling under paragraph 1 [detention] may be dispensed with if there is no risk of the accused evading justice, obstructing the investigation, or committing further crimes. ...”
49. A “serious” crime is defined by Article 93 § 7 of the CC as one punishable by more than five years' imprisonment.
50. The Supreme Court has held that it was not open to the courts, when examining an appeal against pretrial detention, to inquire whether there existed sufficient evidence to support the charges against the detainee. The courts had to examine only the formal validity of the detention order (опред. № 24 от 23 май 1995 г. по н.д. № 268/95 г. на ВС І н.о.).
51. According to the Supreme Court's practice at the relevant time (it has now become at least partly obsolete as a result of amendments in force since 1 January 2000), Article 152 § 1 required that a person charged with a serious intentional crime be detained. An exception was only possible, in accordance with Article 152 § 2, where it was clear beyond doubt that any risk of absconding or re-offending was objectively excluded as, for example, in the case of a detainee who was seriously ill, elderly, or already in custody on other grounds, such as serving a sentence (опред. № 1 от 4 май 1992 г. по н.д. № 1/92 г. на ВС І н.о.; опред. № 48 от 2 октомври 1995 г. по н.д. № 583/95 г. на ВС І н.о.; опред. № 78 от 6 ноември 1995 г. по н.д. 768/95 г.).
52. The detainee's appeals against detention at the trial stage are examined by the trial court. Such appeals may be examined in private, without the participation of the parties, or at an oral hearing. The law does not require the court to decide within a particular time-limit.
53. The trial court's decision is subject to appeal to the higher court (Article 344 § 3 of the CCP). The appeal must be filed within seven days (Article 345) with the trial court (Article 318 § 2 in conjunction with Article 348 § 4). After receiving the appeal, the trial court, sitting in private, decides whether there exist grounds to annul or vary its decision. If it does not find this to be the case, it forwards the appeal to the higher court (Article 347).
54. Before doing so, the trial court must communicate the appeal to the other party (the prosecutor) and receive its written observations (Articles 320 and 321 in conjunction with Article 348 § 4). The law does not provide for the prosecutor's observations to be communicated to the appellant.
55. The higher court may examine the appeal in private without the parties being present or, if it deems necessary, at an oral hearing (Article 348 § 1). The law does not require the court to decide within a particular timelimit.
56. Section 2 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“) provides, as relevant:
“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for:
1. unlawful pretrial detention ..., if [the detention order] has been set aside for lack of lawful grounds[.]”
57. The reported case-law under section 2(1) of the Act is scant. In two recent judgments the Supreme Court of Cassation held that pretrial detention orders must be considered as being “set aside for lack of lawful grounds” – and that State liability arises – where the criminal proceedings have been terminated on grounds that the charges have not been proven (реш. № 859/ 2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС) or where the accused has been acquitted (реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС). The view taken appears to be that in such cases the pretrial detention order is retrospectively deprived of its lawful grounds as the charges were unfounded.
58. On the other hand, the Government have not informed the Court of any successful claim under section 2(1) of the Act in respect of unlawful pretrial detention orders in connection with pending criminal proceedings or proceedings which have ended with final convictions. It appears that rulings putting an end to pretrial detention in pending criminal proceedings have never been considered as decisions to “set aside for lack of lawful grounds” within the meaning of section 2(1) of the Act. Also, the terms “unlawful” and “lack of lawful grounds” apparently refer to unlawfulness under domestic law.
59. By section 2(2) of the Act, in certain circumstances a claim may be brought for damage occasioned by the “unlawful bringing of criminal charges”. Such a claim may be brought only where the accused person has been acquitted by a court or the criminal proceedings have been discontinued by a court or by the prosecution authorities on the ground that the accused person was not the perpetrator, that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty. In contrast with the solution adopted under section 2(1) (see paragraph 57 above), the Supreme Court of Cassation has held that no liability arises under section 2(2) where the criminal proceedings were discontinued at the pretrial stage on the ground that the accusation was not proven (реш. № 1085/2001 г. от 26 юли 2001 г. по г.д. № 2263/2000 г. на ВКС ІV г.о.).
60. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the State Responsibility for Damage Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.). The Government have not referred to any successful claim under general tort law in connection with unlawful pretrial detention.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
5-5
6-1


ITEMID: 001-99867
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF NIKITINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of Art. 13;Violation of P1-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1949 and lives in Kovarditsy, the Vladimir Region.
5. In 1998 the applicant's father died in a fire. The applicant alleged that the death had been caused by the firemen's manifest failure to comply with the fire-fighting instructions. In 2001 K., an investigator of the Murom Division of the State Fire Department, reported to a local prosecutor about the incident. In his official explanatory note issued in reply to the prosecutor's inquiry K. stated that the applicant's repeated unfounded complaints demonstrated that she must have been suffering from some mental disorder and that he strongly recommended subjecting her to a psychiatric examination.
6. The applicant sued K. and the State Fire Department of the Vladimir Region for defamation.
7. On 22 July 2004 the Murom Town Court found in the applicant's favour. The court held, in particular, that K. had acted in his official capacity of an investigator when making the defamatory statements about the applicant. The court awarded her 3,030 Russian roubles (RUB) in nonpecuniary damages against the State Fire Department of the Vladimir Region and ordered K. to retract the false information about the applicant. On 21 September 2004 the Vladimir Regional Court upheld the judgment in substance, and it entered into force. The judgment has not been executed to date.
8. On 1 April 2005 pursuant to order no. 487 of 26 October 2004 issued by the Ministry of the Emergency Response of Russia, the State Fire Department of the Vladimir Region was liquidated by way of removal from the State tax register. The functions of the State Fire Department have since been executed by the previously existing Vladimir Region Office of the Ministry of the Emergency Response of Russia.
9. On 27 March 2006 two writs of execution issued by the Murom Town Court on 22 July 2004 were received by the bailiff service of the Vladimir Region, which initiated the enforcement proceedings on the same day. In the course of the proceedings the bailiff service established that the judgment could not be enforced due to the debtor's liquidation. On 21 June 2007 the Oktyabrskiy District Court of Vladimir terminated the enforcement proceedings.
10. On 29 December 2006 the Murom Town Court refused to replace the respondent authority by the Ministry of the Emergency Response of Russia on the ground that the latter was not a legal successor to the defunct State Fire Department. The judgment was upheld by the Vladimir Regional Court on 19 April 2007.
11. The applicant further sued the Ministry of Finance for damages resulting from the firemen's negligence. On 17 April 2007 the Vladimir Regional Court in the final instance rejected her complaints as unfounded.
12. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment in two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment in three months.
VIOLATED_ARTICLES: 13
6


ITEMID: 001-84756
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF POPLAWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 6-1
JUDGES: Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 5. The applicant was born in 1957 and lives in Zielona Góra.
6. In 1994 the applicant was charged with assault and battery. On 21 December 1999 the Zielona Góra Regional Court (Sąd Okręgowy) convicted the applicant as charged. The conviction was upheld by the Poznań Court of Appeal (Sąd Apelacyjny) on 30 January 2001. On 12 February 2002 the Supreme Court (Sąd Najwyższy) dismissed the applicant's further cassation appeal.
7. On 1 September 1998 the applicant was arrested on suspicion of homicide. On 3 September 1998 the Zielona Góra District Court (Sąd Rejonowy) ordered the applicant's detention on remand on a charge of murder.
8. During the investigation, the applicant's detention was prolonged on two occasions.
9. On 20 May 1999 the applicant was indicted before the Zielona Góra Regional Court. The Regional Court extended his detention on remand on several occasions. The court referred to the reasonable suspicion that the applicant had committed the offence with which he had been charged. It further stressed that holding the applicant in detention was necessary to secure the proper conduct of the proceedings. These decisions were upheld on appeal. The applicant made several unsuccessful applications for release.
10. On 20 March 2001 the Poznan Court of Appeal prolonged the applicant's detention. The court relied on the existence of a reasonable suspicion against the applicant and on the likelihood that a heavy sentence of imprisonment might be imposed on him. The Court of Appeal also examined the course of the proceedings and established that they had been lengthy. It instructed the trial court to concentrate on scheduling more hearings and on taking other procedural measures to terminate the trial promptly. The court, nevertheless, stated that the applicant had been solely responsible for the duration of the trial as the Regional Court had to examine his allegation that he had acted in self-defence.
11. Between 12 April 2001 and 12 February 2004 the applicant was serving a prison sentence following his conviction in another set of criminal proceedings.
12. On 27 April 2001 the Zielona Góra Regional Court convicted the applicant as charged and sentenced him to 25 years' imprisonment.
13. On 27 August 2001, 23 November 2001 and 22 February 2002 the Zielona Góra Regional Court prolonged the applicant's detention. All of these decisions were upheld on appeal.
14. On 20 December 2001 the prosecutor filed an appeal against the firstinstance conviction.
15. On 16 May 2002 the Poznań Court of Appeal quashed the firstinstance conviction and remitted the case to the Regional Court.
16. On 19 August 2002, 20 May 2003 and 7 September 2004 the Regional Court prolonged the applicant's detention. In its identically reasoned decisions the court referred to the likelihood that the applicant would receive a lengthy sentence. It also pointed out that there were no particular circumstances militating in favour of his release, as defined in Article 259 § 1 of the Code of Criminal Procedure.
17. Between 23 November 2004 and 17 December 2004 the applicant was serving a prison sentence as a result of his conviction in another set of criminal proceedings against him.
18. On 10 December 2004 the Regional Court prolonged the applicant's detention. It considered that the need to ensure the proper course of the proceedings and the likelihood that the applicant would receive a lengthy sentence justified the prolongation of his detention. The court further stressed that the trial would end soon since most of the witnesses had already been heard.
19. On 27 October 2004 the applicant filed a complaint alleging that the proceedings against him had exceeded a reasonable time and requesting compensation for the prolongation of the proceedings. He relied on the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). On 3 March 2005 the Poznań Court of Appeal gave a decision and confirmed that the proceedings before the Regional Court had been lengthy. However, it refused to award any compensation to the applicant.
20. On 14 October 2005 the Zielona Góra Regional Court convicted the applicant of murder and sentenced him to 25 years' imprisonment.
21. On 9 December 2005 the Regional Court prolonged the applicant's detention.
22. On 23 March 2006 the Poznań Court of Appeal quashed the firstinstance conviction and again remitted the case.
23. On 28 February 2006 the Court of Appeal refused to release the applicant on bail.
24. The applicant again asked to be released on bail.
25. On 6 April 2006 the Poznań Court of Appeal refused to release the applicant on bail and further prolonged his detention until 30 June 2006. It considered that there was a risk that the applicant, if released, would interfere with the proper course of the proceedings. It also held that between 1989 and 1998 the applicant had been convicted five times and that the charges against him had included unlawful possession of a firearm. This decision was upheld on appeal on 18 May 2006.
26. On 1 June 2006 the Court of Appeal dismissed the applicant's complaint under the 2004 Act about the alleged inactivity of the Regional Court. The court examined only the period after 18 February 2005 as the period before that date had already been examined. The court concluded that there had been no delays in the proceedings after that date.
27. On 28 June 2006 the Regional Court again prolonged the applicant's detention. The court stressed that there were no particular circumstances militating in favour of his release, as defined in Article 259 § 1 of the Code of Criminal Procedure. This decision was upheld by the Poznań Court of Appeal on 6 July 2006.
28. On 2 October 2006 the applicant was released from pre-trial detention. It appears from the parties' submissions that the criminal proceedings before the Zielona Góra Regional Court are pending.
29. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
30. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-108203
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MINSHALL v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1943 and lives in Newmarket.
5. , may be summarised as follows.
6. On 3 February 2000, at Wood Green Crown Court, the applicant pleaded guilty to conspiracy fraudulently to evade excise duty on alcoholic liquor in contravention of section 170 of the Customs and Excise Act 1979. On 28 February 2000 Newman J made a restraint order prohibiting disposal by the claimant of his assets and on 5 May 2000 he was sentenced to 30 months’ imprisonment.
7. Pursuant to section 72A of the Criminal Justice Act 1988 (“the CJA 1988”), save in exceptional circumstances confiscation proceedings should be concluded no later than six months after conviction. At a directions hearing on 5 June 2000 the judge was told that the six-month statutory time limit for making a confiscation order would expire on 3 August 2000. He noted that “we may have to extend the period”. A date was agreed for service of the applicant’s responses to the Crown’s statements and it was ordered that a further directions hearing should be listed within the sixmonth period. This further hearing took place on 3 August 2000. The judge noted the court’s power to extend the six-month time limit and no objection was raised by counsel for the applicant. The confiscation proceedings took place on 13 October 2000. The judge made an order against the applicant in the sum of GBP 80,000 to be paid by 30 April 2001, with 18 months’ imprisonment in default.
8. The applicant sought leave to appeal against the confiscation order. He submitted that the court had no jurisdiction to make the order because it was imposed more than six months after his conviction in breach of the statutory time limit under section 72A of the CJA 1988. At the time there was judicial uncertainty about whether failure to comply with the six-month time limit would deprive the court of jurisdiction to make a confiscation order. Permission to appeal was granted on 19 July 2001 and enforcement of the confiscation order was suspended pending the outcome of the appeal.
9. On 16 December 2002 the Court of Appeal considered a group of appeals lodged on the same ground as that of the applicant, namely that the Crown Court did not have jurisdiction to make a confiscation order outside the six-month time limit. The Court of Appeal held that a procedural irregularity did not necessarily deprive the court of jurisdiction to make a confiscation order. One of the appellants (Soneji) obtained leave to appeal to the House of Lords. His appeal was joined to that of another appellant (Knights).
10. On 15 April 2003 the applicant issued an out-of-time notice of appeal against conviction on the ground that his conviction had been tainted by non-disclosure.
11. On 2 March 2004 the Court of Appeal stayed the applicant’s appeal against the confiscation order pending the House of Lords’ decisions in R v. Knights and R v. Soneji.
12. On 24 June 2004 the Court of Appeal refused the applicant leave to appeal out of time against his conviction.
13. The decisions in R v. Knights [2005] UKHL 50 and R v. Soneji [2005] UKHL 49 were handed down by the House of Lords on 21 July 2005. In those decisions the House of Lords affirmed the Court of Appeal’s conclusion that a procedural irregularity would not necessarily deprive the court of jurisdiction to make a confiscation order. Following publication of the decisions, counsel advised the applicant against continuing his appeal and withdrew from the case. However, with the assistance of his solicitors the applicant did continue the appeal. His solicitors sought leave to amend the grounds of appeal to include two further grounds: first, that the confiscation order was unlawful because it had been made in respect of facts constituting a substantive offence when the applicant had only pleaded guilty to the prior and distinct offence of conspiracy; and secondly, that the duration of the proceedings up to the date of the appeal had been unreasonably long, in breach of Article 6 § 1 of the Convention.
14. On 14 February 2006 the application to amend the grounds of appeal was considered together with the substantive merits of the appeal. Permission to amend the grounds was refused, the substantive appeal was dismissed, and the court declined to certify that points of law of general public importance were involved in the decision. Mrs Justice Rafferty found that the Crown Court judge’s reasons for extending the six-month time limit “were the proper administration of justice, based upon judicial availability. They explicitly were not for the purpose of allowing the Crown to secure more information”. Applying R v. Knights and R v. Soneji, she held that artificial adherence to statutory time limits was outwith the intentions of Parliament and that the appeal should therefore be dismissed.
15. On 15 February 2006 the applicant sought leave to appeal to the House of Lords. On 16 February 2006 leave was refused. On the same day, the applicant submitted his application to this Court.
16. On 20 February 2006 the Revenue & Customs Prosecutions Office (“RCPO”) wrote to the applicant seeking his proposals for payment of the outstanding confiscation order. On 27 April 2006 the applicant’s solicitor asked the RCPO to delay enforcement proceedings pending consideration of his application to the Court. The RCPO declined and confiscation enforcement proceedings against the applicant took place on 23 August 2006. The Magistrates’ Court rejected the applicant’s submission that to continue the enforcement proceedings would be an abuse of process and a breach of Article 6 of the Convention. The applicant applied for permission to judicially review this decision. In the meantime the enforcement proceedings were adjourned to 31 October 2006 for a means’ enquiry to take place.
17. On 31 October 2006 the District Judge refused to stay the enforcement proceedings pending determination of the application for permission to apply for judicial review. However, he adjourned the means’ enquiry to 19 December 2006.
18. On 14 December 2006 the applicant made a further application to the High Court for a stay of the enforcement proceedings. On 18 December 2006 the High Court refused the application for permission to apply for judicial review and the application for urgent interim relief. However, the application for interim relief was subsequently granted at an oral hearing on 19 December 2006 and at a further oral hearing on 23 January 2007 the applicant was granted permission to apply for judicial review.
19. On 25 January 2007 the applicant was found to be in contempt of court in relation to numerous breaches of the restraint order and was ordered to pay GBP 75,000 within 28 days. The applicant satisfied this judgment on 21 February 2007.
20. On 4 November 2008 the application for judicial review was heard by the Administrative Court. The applicant sought to argue that the delay between his arrest and conviction and the confiscation proceedings was unreasonable in its length of time and that the proceedings should be stayed as an abuse of process or a breach of Article 6 of the Convention. On 21 November 2008 a High Court Judge dismissed the applicant’s judicial review application. In particular, he noted that the slow progress of the appeal against the confiscation order was interrupted by the supervening decision of the applicant to seek leave to appeal out of time against conviction. As the application for leave took place within a reasonable time, the only period of delay which was both material and unexplained was the period between 24 June 2004 (the hearing of the application for leave to appeal against conviction out of time) and 21 July 2005 (publication of opinions of the House of Lords in R v. Knights and R v. Soneji). However, the judge accepted that the decision to await the outcome of the proceedings before the House of Lords was eminently sensible even if it did prolong the period before the applicant’s appeal could be heard by the Court of Appeal.
21. On 21 January 2009 the judge refused to certify a point of law of public importance and refused permission to appeal to the Court of Appeal.
22. On 22 September 2009 the applicant was imprisoned until the outstanding confiscation figure was paid. Following large contributions from family and friends, the outstanding balance was paid in its entirety on 23 September 2009 and the applicant was released from prison.
23. Section 71 of the Criminal Justice Act 1988, in force at the time the confiscation order was made, states:
“(1) Where an offender is convicted, in any proceedings before the Crown Court or a magistrates’ court, of an offence of a relevant description, it shall be the duty of the court—
(a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or
(b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed,
to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.
(1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct.
(1B) Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then—
(a) determine in accordance with subsection (6) below the amount to be recovered in his case by virtue of this section, and
(b) make an order under this section ordering the offender to pay that amount.”
24. Section 72A of the Criminal Justice Act 1998, in force at the time the confiscation order was made, states:
“(1) Where a court is acting under section 71 above but considers that it requires further information before—
(a) determining whether the defendant has benefited as mentioned in section 71(2)(b)(i) above;
(b) determining whether his benefit is at least the minimum amount; or
(c) determining the amount to be recovered in his case by virtue of section 72 above,
it may, for the purpose of enabling that information to be obtained, postpone making that determination for such period as it may specify.
(2) More than one postponement may be made under subsection (1) above in relation to the same case.
(3) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (1) above which—
(a) by itself; or
(b) where there have been one or more previous postponements under subsection (1) above or (4) below, when taken together with the earlier specified period or periods,
exceeds six months beginning with the date of conviction.
(4) Where the defendant appeals against his conviction, the court may, on that account -
(a) postpone making any of the determinations mentioned in subsection (1) above for such period as it may specify; or
(b) where it has already exercised its powers under this section to postpone, extend the specified period.
(5) A postponement or extension under subsection (1) or (4) above may be made -
(a) on application by the defendant or the prosecutor; or
(b) by the court of its own motion.
(6) Unless the court is satisfied that there are exceptional circumstances, any postponement or extension under subsection (4) above shall not exceed the period ending three months after the date on which the appeal is determined or otherwise disposed of.”
25. In R v. Knights [2005] UKHL 50 and R v. Soneji [2005] UKHL 49, the House of Lords considered the consequences of failure to comply with section 72A, and in particular the time limits under section 72A(3). The court held that, although there existed no common law power to adjourn, Parliament had not intended to disable the courts from making confiscation orders after sentence merely because the time-limits were not strictly adhered to. It further held that the requirement for “exceptional circumstances” under section 72A(3) should not be strictly construed.
26. By virtue of section 75 of the Criminal Justice Act 1998 and sections 139 and 140 of the Powers of the Criminal Courts (Sentencing) Act 2000 Crown Court confiscation orders are enforceable in the Magistrates’ Court as fines. Section 76 of the Magistrates’ Court Act 1980 confers on the Magistrates’ Court several powers for enforcing fines, including the issue of a warrant for commitment for service of the default term of imprisonment for non-payment or the issue of a warrant of distress. By virtue of section 79 of the Magistrates’ Court Act, payment of the total sum due will result in a person’s release from the default term of imprisonment and any partial payment will result in a pro rata reduction of the term of imprisonment.
27. In the case of Lloyd v. Bow Street Magistrates’ Court (2004) 1 Cr App R 11 the Divisional Court found that Article 6 § 1 of the Convention applied to all stages of the confiscation order and enforcement process and that a defendant had a right to have enforcement proceedings brought against him within a reasonable time.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23089
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: PATRICNY and PATRICNA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Jaroslav Patřičný and Mrs Eliška Patřičná, are Czech nationals, who were born in 1928 and 1934 respectively and live in Dortmund, Germany.
From 8 April to 22 April 1989 the first applicant was permitted by the Czechoslovak authorities to spend his holiday in Germany. The second applicant obtained the same permission for the period from 13 March to 11 April 1989. As the first applicant had to undergo surgery in Germany, the applicants did not return before the end of the authorised period. On 3 May 1989 the first applicant asked the Czechoslovak Embassy in Bonn whether his permission to stay in Germany could be extended. He was served with a reply stating that his stay in Germany was illegal and was notified that his property would be immediately confiscated as a consequence. He was also notified that he had to file a request for permission to return to Czechoslovakia. The applicants did not file a request.
On 5 September 1989 the Czechoslovak authorities made an inventory of the applicants’ property. They subsequently sold all the movable items and transferred their flat owned by a co-operative, and in respect of which the applicants had a right of beneficial use, back to the co-operative. The co-operative then allocated their flat to a third person.
On 16 March 1992 the applicants brought proceedings before the Jablonec nad Nisou District Court seeking damages of CZK 100,000 from the State for having deprived them of their property and for having prevented them from returning to Czechoslovakia in 1989. They relied on Act No. 58/1969. They claimed that their property, which they assessed at CZK 100,000, had been confiscated contrary to the law in force at the material time.
On 18 August 1994 the Jablonec nad Nisou District Court rejected the applicants’ claim. The court held that the applicants had lodged neither a request for an extension of their permit to stay abroad nor a request for permission to return to Czechoslovakia. In its view, the Czechoslovak authorities had not proceeded contrary to the relevant law. The court concluded that there was nothing to indicate that the State was liable for any illegal measure.
In September 1994 the applicants appealed, challenging the District Court’s material and legal consideration of their case. On 2 January 1995 the Ústí nad Labem Regional Court quashed the District Court’s judgment and remitted the case to it. The court stated that the applicants, who had stayed abroad after the expiry of their permits, had not acted illegally and that there was no causal link between their stay abroad and the fact that they had no possibility of using their property. It held that the obligation to request permission to return to Czechoslovakia had prevented them from exercising their property rights. The court concluded that the national authorities had seized and disposed of the applicants’ property illegally.
On 13 and 24 February 1995 the applicants extended their original claim for damages to CZK 200,000, claiming that the inventory of their movable property had not been complete and that the value of many objects had been underestimated. On 13 August 1996 the District Court, after having assessed additional evidence including several expert reports concerning the damage incurred by the applicants, and being bound by the Regional Court’s legal opinion, held that the State was to pay damages in the sum of CZK150,000 to the applicants. The court rejected the remainder of their claim. It stated that there was nothing to prove that there had been any movable assets other than those which had been included in the inventory.
On 3 December 1996 the Regional Court, upon the defendant’s appeal, upheld this judgment, slightly modifying the rate of the default interest.
On 23 April 1998 the Supreme Court, upon the defendant’s appeal on points of law, quashed the lower courts’ judgments and remitted the case to the District Court for further consideration. The Supreme Court held that the applicants’ claim fell within the scope of the Extra-Judicial Rehabilitation Act which was a lex specialis compared to Act No. 58/1969 and to the Civil Code provisions on liability.
On 10 December 1998 the District Court, being bound by the Supreme Court’s judgment, rejected the applicants’ action for damages in the amount of CZK 200,000. The court stated that the applicants should have lodged their claim under the Extra-Judicial Rehabilitation Act.
The applicants appealed, claiming that their flat had been allocated to a third person after the expiry of the relevant period set out in the Extra-Judicial Rehabilitation Act (i.e. after 1 January 1990) and that many objects had not been included in the inventory.
On 20 April 1999 the Regional Court upheld the first instance judgment. The court added that the applicants had wrongly lodged their claim under Act No. 58/1969. It ruled that the State could not be held liable under the Extra-Judicial Rehabilitation Act as it had transferred the property to third persons.
The applicants filed a request for the re-opening of the proceedings prior to the delivery of the Regional Court’s judgment of 20 April 1999. They claimed that the courts, being bound by the Supreme Court’s decision of 23 April 1998, had failed to consider assets which had not been recorded in the inventory. On 5 February 2002 the District Court rejected their request as there were no facts, decisions or evidence which could not have been assessed and used in the previous proceedings in the applicants’ favour.
The applicants lodged an appeal on points of law, requesting the Supreme Court to adjudicate on whether the Extra-Judicial Rehabilitation Act was applicable to events which had occurred after 1 January 1990. They claimed that State officials had acted contrary to the relevant law, and that the State was liable to pay damages under Act No. 58/1969 which, they claimed, was a lex specialis compared to the Extra-Judicial Rehabilitation Act.
On 15 November 2000 the Supreme Court rejected the applicants’ appeal on points of law, quashed the District Court’s judgment of 10 December 1998 and the Regional Court’s judgment of 20 April 1999 to the extent that they concerned the extended claim of CZK 50,000 filed by the applicants in February 1995, and discontinued the proceedings in this respect. It stated that the District Court in its judgment of 10 December 1998 had repeatedly adjudicated on their extended claim despite the fact that the former decision had become res iudicata. The court further examined the lower courts’ legal consideration of the applicants’ case and concluded that there had been no shortcomings. It added that the legal question of the application of the Extra-Judicial Rehabilitation Act to the applicants’ property, which had been disposed of by the State after the relevant period (i.e. after 1 January 1990), had not been the subject-matter of the proceedings. It referred in this connection to the District Court’s judgment of 13 August 1996.
On 17 January 2001 the applicants lodged a constitutional appeal, requesting the Constitutional Court to hold that they were entitled to damages in the amount of CZK 200,000. On 20 February 2001 the Constitutional Court rejected their appeal on the ground that it did not satisfy the formal requirements of the Constitutional Court Act. It stated that the applicants had submitted a claim for damages, a matter which was outside the Constitutional Court’s jurisdiction.


ITEMID: 001-90345
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF UKHAN v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
TEXT: 5. The applicant was born in 1961 and lives in Nekhvoroshch, in the Cherkasy Region.
6. By decision of the Gorodyshche District Court of 21 May 1997, upheld on appeal by the Cherkasy Regional Court on 12 August 1997, the applicant was convicted of inflicting grievous bodily harm and sentenced to ten years’ imprisonment.
7. Between 18 August 1997 and 3 December 2002 the applicant was detained in Vinnytsia penitentiary no. 86.
8. According to the applicant, the sanitary conditions in this prison were poor in that dishes used by inmates were not properly washed after use, thus entailing an increased risk for detainees of contracting tuberculosis. Furthermore, the detainees were woken up very early and assembled for morning exercises in the prison yard without due regard being had to weather conditions.
9. In December 2002 the applicant was moved to penitentiary no. 113, with a less strict regime, where detainees could enjoy relative freedom of movement. In that penitentiary, according to the applicant, the food and the living conditions were inadequate and the detainees were used as a source of cheap labour for the administration’s benefit.
10. In neither of the penitentiaries, allegedly, did the applicant receive adequate medical treatment for unspecified medical conditions.
11. According to the Government, the conditions of the applicant’s detention in these penitentiaries, including the quality of medical care, were adequate.
12. In June 2003 the applicant was released on probation and returned to his home in Nekhvoroshch.
13. On 28 October 2003 the applicant was arrested on suspicion of hooliganism and theft and detained in the Korsun-Shevchenkivsky town police station.
14. On 31 October 2003 the Korsun-Shevchenkivsky District Court remanded the applicant in custody.
15. On the same date the applicant requested the Korsun-Shevchenkivsky Prosecutor’s Office to institute criminal proceedings against several police officers, who had allegedly inflicted bodily injuries on him in order to force him to confess.
16. On 11 November 2003 the applicant underwent a medical examination and was found to be fit for detention, although he had a fractured rib. According to the applicant, he also suffered other injuries at the hands of the police, including a major head injury, which was not recorded. He did not, however, lodge any complaints concerning the adequacy of the medical examination at the relevant time.
17. On 30 January 2004 the prosecutor’s office refused to institute criminal proceedings to investigate the applicant’s ill-treatment complaint, having found it groundless. It referred to the findings of the medical commission that the applicant had been fit for detention and to the testimonies of the investigator and police officers who had participated in his arrest. All officers denied the applicant’s allegations concerning ill-treatment. The four police officers who had taken part in the arrest operation, however, admitted that they could have inflicted minor injuries on the applicant when arresting him. In their opinion the application of force had, however, been proportionate, since the applicant, who had gone into hiding after his disorderly conduct on 25 October 2003, had vigorously resisted his arrest and threatened the officers with a loaded rifle. The applicant did not appeal against that decision in court.
18. On 20 December 2004 the Korsun-Shevchenkivsky District Court convicted the applicant of hooliganism, acquitted him of theft, and sentenced him to six and a half years’ imprisonment. The court found, in particular, that on 25 October 2003 the applicant had killed two dogs, belonging to his neighbour, with an unregistered rifle, had sworn at and beaten two ladies and had fired the rifle in the direction of police officers.
19. The applicant appealed, alleging, in particular, that the police officers had beaten him, to force him to confess to the above offences.
20. On 29 March 2005 the Cherkasy Regional Court of Appeal dismissed the applicant’s appeal. It refused to consider his ill-treatment argument, referring to the decision of the prosecutor’s office of 30 January 2004 not to institute criminal proceedings and to the fact that the applicant had failed to appeal against it through the applicable appeal procedure.
21. On 4 October 2005 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law.
22. Between November 2003 and May 2005 the applicant was detained in the Cherkasy Regional Investigative Isolation Unit SIZO no. 30.
23. According to the applicant, during that period he started suffering from severe headaches and pain in the left eye as a result of his purported head injury. Gradually he began losing mobility in his left side. In addition, the applicant suffered aggravation of his chronic bronchitis and digestive tract conditions. The administration of the Cherkasy SIZO did not provide him with prompt and adequate medical examination and treatment, purportedly to conceal the fact that a number of his health problems resulted from his having been ill-treated in police custody.
24. According to the Government, the applicant was examined by medical professionals on a number of occasions. Although they have not provided a comprehensive medical file recording all those consultations, the case-file contains a number of handwritten medical notes which, in so far as they are legible, prove that the applicant was frequently attended by doctors.
25. The first records of such medical care relate to the applicant’s examination in the Korsun-Shevchenkivsky district hospital on 18 December 2003, during which it was established that he suffered from haemorrhoids, chronic bronchitis and a fractured rib. The next records relate to 6 and 27 April 2004, when the applicant was examined in the Korsun-Shevchenkivsky district hospital for chronic bronchitis and unspecified “neurological symptoms”. At this point in time the complaint concerning neurological symptoms was considered unfounded. No details concerning treatment recommendations have been provided.
26. On 21 May 2004 the applicant was seen by a SIZO doctor on account of headaches, dizziness and an irregular heartbeat. He was diagnosed as suffering from the after-effects of a head injury sustained in 2003, in particular, hypertension and neurasthenia, and prescribed nootropic and anti-hypertensive medication (dibazolum and cerebrolisin). There is no indication as to the duration of the prescribed treatment or whether the applicant actually received it.
27. Subsequently the applicant was seen by the SIZO medical staff on a number of occasions, in particular on 27 and 28 May 2004 (complaints about headache, dizziness, noise in the ears and aggravation of chronic bronchitis); 21 and 30 June 2004 (same symptoms); 4 August 2004 (a knee injury); 21 September 2004 (headache, dizziness and chills); 12 and 13 October and 3 November 2004 (stomach-ache, bronchitis, headache); 13, 17 and 28 December 2004 (leg pain, headache, bronchitis); 11 and 14 January 2005 (headache); 18 January 2005 (headache and itching); 21 January 2005 (insomnia, headache); 3, 9 and 13 February 2005 (dizziness, insomnia, headache); 18, 25 and 27 February and 3, 7, 9 and 18 March 2005 (headache, dizziness, insomnia and itching).
28. In the course of the above visits the applicant was primarily recommended to take painkillers (analgin, tempalgin) and other conservative medication, including sedatives (valeriana and dimedrol), mild bronchial and cough medicine (aminophylline, bromgecsine and mucaltine); stomach medicine (platifillin); brain stimulators (fezam, cerebrolisin, piracetam) and over-the-counter anti-allergy medication (diasolin).
29. On 8 July 2004 the applicant was additionally consulted by a neurologist in the hospital of another (Bucha) penitentiary, who found that he was suffering from cerebral dystonia, chronic vascular insufficiency, neck osteochondrosis, chronic rhinitis and partial loss of sight in the left eye. The neurologist recorded that the applicant’s ailments were associated with his head injury sustained in 2003.
30. On 21 July 2004 the applicant underwent a head scan, which revealed no skull injuries at the time of the test.
31. On 15 December 2004 and 30 March 2005 the applicant consulted a neurologist and an eye doctor, who concluded that he suffered from partial atrophy of the left eye nerve of traumatic origin, an astheno-neurotic syndrome and insomnia. According to the available materials, he received full treatment for these ailments, without any details as to the nature and duration of this treatment being recorded.
32. Between 5 April and 3 May 2005 the applicant was treated as an in-patient in the Bucha penitentiary hospital for the after-effects of the head injury, with moderate left-side hemiparesis, asthenia, “mnestic personality impairment” (мнестичне зниження особистості), chronic bronchitis and chronic gastro-duodenitis. The case-file contains no details concerning the nature of the treatment.
33. On an unspecified date the applicant complained to the Cherkasy prosecutor’s office that the medical treatment he was receiving was insufficient, regard being had to the seriousness of his medical conditions. On 8 April 2005 the prosecutor’s office informed the applicant that it did not find any grounds to pursue his complaint.
34. On 26 April 2005 the applicant was examined by a disability commission in Bucha penitentiary and recognised as falling into the “third category” (the mildest category) of invalidity (третя група інвалідності) for one-year period on account of secondary neuritis of the left eye nerve, moderate left-side hemiparesis without movement disorders, cerebral asthenia, mnestic personality impairment, chronic bronchitis and chronic gastro-duodenitis. He was found unfit for work in the cold, activities involving high noise levels or lifting heavy objects.
35. On 11 May 2005 the applicant was transferred to Stryzhavska penitentiary no. 81 in the Vinnytsya Region.
36. In the applicant’s opinion, the conditions of detention there were unsatisfactory in that the prison authorities failed to ensure his adequate medical supervision and treatment and to provide him with facilities to attend to his progressively deteriorating mobility. In particular, the applicant was no longer able to walk to the cafeteria without assistance, and even being supported by other inmates caused him unbearable pain. Moreover, on many occasions the administration did not let the inmates assist the applicant, maintaining that he was pretending to be in pain, and he was left in his cell without food for days.
37. According to the Government and as confirmed by the handwritten medical notes in so far as they are legible, the applicant was seen by medical professionals and treated as an in-patient on a number of occasions.
38. Between 1 and 22 June and 25 June and 15 July 2005 the applicant was treated in the penitentiary hospital. His diagnosis included posttraumatic osteochondrosis, chronic obstructive bronchitis, gastro-duodenitis, hyper-metropy of the left eye and chronic haemorrhoids. The prescribed treatment consisted primarily of conservative medication such as sedatives (dimedrol) painkillers (analgin, citramon), brain-stimulators (cinarisin, piracetam), vitamins (nicotine acid), metabolism stimulators (inosine, asparcam), other stomach medicines (almagel and vikalin) and spasmolytics (no-spa, papaverin). There is no information as to the doses and duration of the medication prescribed or whether the applicant actually received the treatment. Upon his releases from the hospital, the applicant was recommended further therapeutic supervision, an unspecified diet and prophylactic in-patient treatment twice a year.
39. On 13 June 2005 the applicant was additionally examined by a neurology professor, who concluded that the “vague limitations of mobility in the applicant’s left limbs” did not meet the criteria for organic hemiparesis of traumatic of vascular origin, as indicated in the applicant’s invalidity report. It appears that apart from this finding the professor made no further comments concerning the nature of the applicant’s ailments or recommendations as to his subsequent supervision and treatment.
40. On 3 August 2005 the applicant refused to walk to the cafeteria for lunch, referring to unbearable pain in the spinal cord, and demanded that his lunch be brought to his cell or that he be carried to the cafeteria on a chair. Eventually, on the instructions of the administration, two other inmates dragged the applicant to the cafeteria by his hands. On the same day the applicant saw the governor of the penitentiary about his walking problem, and was referred to the penitentiary doctor.
41. On 4 August 2005 the doctor concluded, referring in particular to the report by the neurology professor, that the applicant was exaggerating the gravity of his state, which was stable, and that he was able to move on his own with the help of a stick or a crutch.
42. On 11 August 2005 the penitentiary administration concluded that the applicant’s refusal to walk to the cafeteria was prompted by his low moral fibre and the desire to receive undeserved privileges. Accordingly, on 19 August 2005 the applicant was reprimanded for his conduct by way of a disciplinary sanction.
43. On 31 August 2005 the applicant demanded his urgent hospitalisation on account of severe pain in the spinal cord and the general aggravation of his state of health. According to the applicant, between 25 August 2005 and 13 September 2005 he was on hunger-strike to protest against his situation and was force-fed twice a day during that period. Between 1 and 13 September 2005 the applicant was placed in a disciplinary cell which, according to him, had none of the necessary facilities, including furniture.
44. According to the Government, the applicant was held in the disciplinary cell during the period in question as punishment for offending an inmate’s dignity. However, he did not refuse food, or at least did not inform the administration about his hunger-strike and was therefore not force-fed. The conditions in which the applicant was kept in the disciplinary cell were not incompatible with human dignity.
45. Between 14 September and 21 October 2005 the applicant was treated as an in-patient in the penitentiary hospital for the same conditions and under the same conservative treatment scheme as in June and July 2005, and was subsequently transferred to penitentiary no. 6.
46. Between 8 November and 18 December 2005 the applicant was placed in the Dnipropetrovsk penitentiary hospital suffering from organic injury of the central nervous system of complex origin (traumatic and vascular), left-side hemiparesis and psycho-organic syndrome. The treatment prescribed to the applicant during this period included glucose, aminophylline, inosine, piracetam, cinnarisin and the Pavlov mixture (a sedative). The applicant’s further supervision was recommended.
47. On several occasions the applicant complained to various authorities, including the prosecutor’s office and the ombudsman, that his treatment in penitentiary hospitals was far from sufficient. Inter alia, the medical personnel refused to examine and even record a number of his complaints, in particular about severe abdominal pain, heartache and pain in the right arm. Furthermore, he had an opportunity to go to toilet only three times a day at a designated hour, which was unbearable in his condition. Moreover, the patients were held in anti-sanitary conditions; the hospital premises smelled foul, disposable syringes were used several times, the supply of drugs was short and outdated drugs were sometimes administered. Medical personnel rarely checked on the patients, including those who were seriously ill, and administered medication irregularly. As a result, each day somebody died. On several occasions the applicant received responses from the authorities advising him that, as far as they could determine, his condition was satisfactory and did not call for any intervention on their part.
48. On 9 December 2005 the applicant was examined by a disability commission, which placed him in the second (more advanced) category of invalidity. In the same month the applicant was transferred to Sofiyivska penitentiary no. 45, designed for inmates with disabilities.
49. The relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Kozinets v. Ukraine, (no. 75520/01, §§ 39-42, 6 December 2007).
50. The relevant extracts from the 3rd General Report [CPT/Inf (93) 12] by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
35. A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ...
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ...
37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health.”
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).
39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.”
VIOLATED_ARTICLES: 13
3


ITEMID: 001-75743
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: ANTONENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Yevgeniy Romanovich Antonenko, is a Russian national who was born in 1950 and lives in Moscow. He is represented before the Court by Mr R. Khromchenko. The Russian Government (“the Government”) are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
At the material time the applicant was the head councillor of the Dmitrovskiy administrative district in Moscow.
On 20 July 2001 the Moscow Mayor, by decision no. 714-RM, fixed the election to the Moscow City Duma for 16 December 2001. The Moscow City Duma is the permanent representative and legislative body of the city of Moscow that has 35 members elected for a term of four years.
On 15 November 2001 district electoral commission no. 5 registered the applicant as a candidate in the election.
On 14 December 2001 a private person K. lodged a complaint with a court, asking it to cancel the registration of Mr Antonenko because he had allegedly omitted to report a part of his income on his property declaration and because he had used his official position for electoral campaigning.
At 10.40 p.m. on 15 December 2001 the Moscow City Court delivered judgment. The court found that the applicant’s property declaration had only listed his taxable earnings without mentioning his tax-exempt revenue, that he had organised a meeting with the local residents at the expense of the council budget, and that he had used his acquaintance with a Government minister in order to create the impression that his bid for elections had been supported by the federal executive power. By law, these grounds were sufficient to cancel the registration of the applicant as a candidate in the election. Pursuant to Article 208 of the RSFSR Code of Civil Proceedings, the judgment was final and enforceable with immediate effect.
At 7.45 a.m. on the following day which was the voting day, the district electoral commission no. 5 ordered Mr Antonenko’s name to be struck out of the list of candidates. Whilst his name on the information stand had been crossed out without delay, the manual correction of the voting ballot papers was only completed one hour later.
The applicant did not take part in the election, in which four of his competitors participated.
On 25 December 2001 the Constitutional Court of the Russian Federation, in the proceedings initiated by five private complainants, determined that that Article 208 of the RSFSR Code of Civil Procedure was incompatible with a constitutional right to the effective judicial protection in so far as it provided for finality and immediate effect of judgments concerning violations of electoral rights, without affording the aggrieved party a possibility to lodge an appeal against them (Ruling no. 17-P).
On 14 March 2002 the applicant, relying on the Constitutional Court’s decision, lodged a notice of appeal against the judgment of 15 December 2001. He challenged the factual findings and alleged a number of procedural defects. He claimed, in particular, that he had not been duly notified of the complaint lodged by K., that a copy of the complaint had not been communicated to him and that the court had delivered its judgment at 10.40 p.m., that is in the “night time”, according to the definitions in the Code of Criminal Procedure and the Labour Code.
On 26 March 2002 the Supreme Court of the Russian Federation upheld on appeal the judgment of 15 December 2001, endorsing the reasons exposed by the City Court.
The Constitution of the Russian Federation guarantees to the citizens of the Russian Federation the right to elect and to stand for election to State and municipal bodies (Article 32 § 2).
The Elections Act (Federal Law on the Fundamental Guarantees of Russian Citizens’ Electoral Rights and of their Right to Participate in a Referendum, no. 124-FZ of 19 September 1997) provided that registration of a candidate could be cancelled at the latest on the day preceding the voting day (section 64 § 1). A similar provision was contained in section 59 § 1 of the Moscow Law on the Election of Members of the Moscow City Duma, Mayor, Vice-Mayor and District Councillors, no. 22 of 7 July 1999.
After the candidate had been registered, if the information he had submitted about himself, including his financial statement, was found to have been substantially untrue, his registration could be cancelled by the electoral commission (no later than sixteen days before the voting day) or by a court of general jurisdiction (from the fifteenth to the last day before the voting day) (section 32 § 10).
A procedural step may be performed until midnight on the last day of the time period within which it must be performed (Article 101).
Judgments concerning complaints about the actions or failures to act of State or municipal authorities, electoral commissions and their officials which violated citizens’ electoral rights, come into force immediately after their delivery, with exception of judgments concerning contestation of the election results (Article 208 § 2). An appeal may only be lodged against the judgments that have not come into force (Article 283).
On 11 June 2002 the Constitutional Court issued a ruling on compatibility of certain provisions of the Elections Act with the Constitution (no. 10-P). It determined, in particular, that whereas cancellation of a candidate’s registration was permitted until and including the day preceding the voting day, a judicial decision ordering cancellation should have become final by that day. The Constitutional Court confirmed this position in its decision no. 185-O of 6 June 2003.


ITEMID: 001-23123
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: JURIK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant, Mr Tibor Jurík, is a Slovakian national, who was born in 1966 and lives in Bánov. The respondent Government were represented by Mr P. Vršanský, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 August 1999 the Nitra Regional Court convicted the applicant of extortion. The applicant appealed.
The Supreme Court scheduled a hearing for 25 November 1999. On the latter date the case was adjourned due to the absence of the applicant’s lawyer.
After the decision to adjourn the case had been announced, the presiding judge imposed a procedural fine of 10,000 Slovakian korunas (SKK) on the applicant pursuant to Article 66 (1) of the Code of Criminal Procedure. The decision with reasons was served on the applicant at a later date. It stated that, despite previous warnings, he had unduly interrupted the presiding judge, had disrespected the latter’s instructions and that he had disturbed the conduct of the hearing.
Under Article 66 (1), a person who, despite previous warnings, disturbs proceedings or behaves in an offensive manner in relation to a court, a public prosecutor, an investigator or a police authority or, without sufficient excuse, does not obey an order or does not comply with an instruction addressed to him or her under the Code of Criminal Procedure, can be punished with a procedural fine amounting up to SKK 50,000.
Pursuant to Article 66 (4), the decision on such a procedural fine may be challenged by a complaint which has suspensive effect.
Under Article 169b, a person who seriously and repeatedly disturbs a court hearing or who repeatedly behaves in an offensive manner or disparages the court shall be punished by a prison sentence of up to two years or by a fine.
Article 53 (1) provides that a court may impose a fine between SKK 5,000 and 5,000,000 in cases when the perpetrator obtained material benefit from a premeditated offence.
Pursuant to Article 53 (2) (a) courts may otherwise impose a fine when such a punishment is foreseen in the special provisions of the Criminal Code.


ITEMID: 001-78171
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: DZHARAGETI v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Ms Zhanna Mikhaylovna Dzharageti, is a Russian national who was born in 1965 and lives in Moscow. She was represented before the Court by Ms M. Kuznetsova, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
Before 1992 the applicant, a Russian national, lived in Abkhazia, Georgia. On 17 August 1992 the applicant together with her husband and two children (born in 1984 and 1986) left Abkhazia for Russia due to the outbreak of an armed conflict in the region.
At first they stayed with the applicant’s mother in the Krasnodar Region, but shortly after that moved to Moscow. They remained registered at her mother’s address. In February 1993 the applicant started to work as a school teacher. The school director requested the municipal authorities to provide the applicant with accommodation.
On 11 March 1993 the Chief of the Housing Department of the West Circuit Prefecture of Moscow decided that the applicant should be provided with housing as soon as it would become available.
On 7 June 1995 the applicant was temporarily allotted a two-room apartment. The municipal housing service opened a personal account on the applicant’s name for the purpose of billing the communal charges. The applicant moved in with her family, lived there and regularly paid all charges. She applied to the housing authorities to have a social tenancy established in respect of this apartment, but this was refused.
In 1997 the residence block, including the applicant’s flat, was placed at the disposal of the Moscow Migration Centre to be converted into dwellings for forced migrants.
On 30 May 1997 the Solntsevo District Prosecutor’s Office brought eviction proceedings against the applicant on the grounds that her occupancy was not lawful.
On 24 June 1997 the West Circuit Prefecture of Moscow ordered that temporary occupants, including the applicant, vacate the flats. The applicant was advised to apply to the Moscow Migration Service to be provided with free housing. The school administration was also informed that the employment of staff members who were not registered in Moscow was unlawful.
In 1997 the applicant was dismissed from her job as a school teacher on the grounds that she had no officially registered address in Moscow.
On 9 July 1997 the applicant applied to the migration authorities of the Krasnodar Region to be granted the status of a forced migrant. She indicated that her permanent address was at her mother’s house in the Krasnodar Region. On 17 July 1997 the applicant was granted the status of a forced migrant for the period until 17 July 2002.
On 8 April 1998 the applicant applied to the Moscow Migration Service to be registered as a forced migrant. She also applied to the Passport Office of the Interior to be registered at the flat in Moscow as her official address.
On 26 May 1998 the Solntsevo District Court of Moscow examined the prosecutor’s eviction claim and rejected it having found that the applicant had had a de facto tenancy contract. This judgment entered into force on 6 June 1998 but was subsequently reversed in supervisory review proceedings. The case was re-examined in two sets of civil proceedings before the final decision was taken on 26 September 2002 (see below).
On 22 September 1998 the Passport Office of the Interior authorised the applicant and her children to be temporarily registered at the disputed flat for a period of six months.
On 2 November 1998 the Moscow Migration Service advised the applicant that she could not be registered with them as a forced migrant until she cancels her registration with the migration authorities of the Krasnodar Region.
On 22 March 1999 the applicant applied to the migration authorities of the Krasnodar Region to have her registration with them annulled and her file to be transferred to the Moscow migration authorities. On 24 March 1999 her request was granted.
On 14 May 1999 the applicant was informed that she could not be registered with the Moscow migration authorities because her official address remained in the Krasnodar Region. On 25 April 2000 the applicant reiterated her request for registration as a forced migrant in Moscow, which was refused on 5 May 2000 because the applicant had provided no proof of her of official address in Moscow. The applicant did not challenge the refusal.
On 26 September 2002 the Moscow City Court gave the final decision authorising the applicant’s eviction without providing her with substitute housing. It was established in the proceedings that the applicant’s occupancy was not based on social tenancy, as she had never been issued a “residence order” or offered to sign a tenancy contract. The courts also found that the applicant had no status of a forced migrant on the basis of which she could claim social housing.
On 18 November 2002 the applicant was served with an eviction order, but she did not comply with it.
On 30 April 2004 the municipal service required the applicant to vacate the flat, but she did not do so.
In December 2004 the applicant was served with another eviction order, which she again did not comply with. Her eviction has not been enforced and, according to the latest updates, she continues to occupy the flat.
On 6 April 2005 the Housing Commission of the Moscow Government decided that the disputed flat should be rented out to the applicant under a common tenancy contract. The applicant was invited to sign the contract and to complete the formalities.
The applicant refused to sign the common tenancy contract as it required her to pay rent, supposedly at the market rate which she thought would be too expensive for her. She believed to have been entitled to social housing by virtue of her previous occupancy, due to being a “de facto refugee” and a teacher, and being in need of state support.
The parties provided no details of the common tenancy contract offered to the applicant.
On 13 January 2006 the applicant received a reminder to settle the tenancy rent, which she refuses to comply with.
Article 49 of the Housing Code in force at the material time provided that tenancy in the publicly owned premises could only be validated by a documentary residence order issued by the local executive council. The form of the residence order was adopted by a governmental decree. Article 99 of the same Code provided for eviction of persons occupying premises without due permission.
According to Article 6 of the Law on Forced Migrants, dated 19 February 1993, No. 4530-1, persons registered as forced migrants may be provided with temporary accommodation in the specially allocated residence.


ITEMID: 001-59102
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF WETTSTEIN v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant, born in 1930, is a businessman living in Pfäffikon (Switzerland).
9. The applicant is the owner of two properties, of 115 sq. m. and 51 sq. m. respectively,in the municipality of Kloten. Half of the second property is tied up with a joint ownership of part of a path. In the 1950s an area zoning plan was prepared, although no general settlement regarding the applicant's properties was achieved. The applicant also unsuccessfully requested the Kloten municipality on a number of occasions to take over the two properties and to compensate him accordingly.
10. The applicant was also involved in other building proceedings in the Kloten municipality in which the opposing party, a cantonal insurance pension office, was represented by a lawyer, Mr W.
11. The applicant was furthermore involved in building proceedings against the Küsnacht municipality in which that municipality was represented by a lawyer, Mrs R. These proceedings were conducted before the Administrative Court of the Canton of Zürich and in last resort before the Federal Court, its decision having been given on 24 October 1995.
12. Mrs R. and Mr W. are practising lawyers (Rechtsanwälte) who at that time shared office premises in Zürich together with Mr L. Lawyers R. and L. also acted as part-time administrative court judges at the Administrative Court of the Canton of Zürich.
13. In the proceedings concerning the applicant's properties in Kloten (see paragraph 9 above), the applicant filed on 15 February 1995 an action with the Administrative Court of the Canton of Zürich, requesting an order that the Kloten municipality take over the two properties, including the joint ownership, for the sum of 368,200 Swiss francs.
14. In the applicant's case, the bench of the Administrative Court was then composed of five judges, namely the Vice-President, three administrative court judges and one substitute judge. Among the administrative court judges were R. and L., who were part-time judges.
15. On 15 December 1995 the court rejected the applicant's action. The Court found that it was not competent to deal with the matter which appertained to the jurisdiction of the Assessment Commission (Schätzungskommission). However, the court declined to transmit the case to the Assessment Commission as the applicant had forfeited his right to claim compensation. Thus, if he had disagreed with the area zoning plan, in particular with the settlement of accounts of 1957, he should have requested the institution of assessment proceedings at the relevant time. The Court found that the claim for compensation would in any event be unfounded as it had to be directed against other proprietors in the area covered by the zoning plan, rather than the municipality.
16. The applicant filed a public-law appeal with the Federal Court in which he complained, on the one hand, about the outcome of the proceedings, on the other, that judge R. had shortly before acted in separate appeal proceedings, instituted by the applicant, as the legal representative of the opposing party, namely the Küsnacht municipality. Moreover, judge R. shared office premises with judge L., and also with W. who, in separate proceedings instituted by the applicant, had represented the opposing party.
17. The public-law appeal was dismissed by the Federal Court on 29 April 1996, the decision being served on 9 May 1996. In its decision, the court dealt with the applicant's complaint that certain judges of the Administrative Court had not been impartial as follows:
“The interrelations mentioned may raise certain doubts in view of Article 58 § 1 of the Federal Constitution which requires the impartiality of judges. However, the applicant does not claim that R. or another member of the Administrative Court was in fact biased when giving the contested decision. The Federal Court has already previously held that the fact that legal representatives in the Canton of Zürich also acted as part-time administrative court judges could under certain circumstances result in an interrelation of interests. The Court found, however, that it could be expected from a part-time judge that he could distinguish between his official function and his private professional activities. A part-time judge was not, therefore, obliged to stand down merely because he had represented legal interests in other proceedings which were opposed to those of the applicant ... In view of these principles it can equally not be assumed in the present case that the Administrative Court was composed of judges who could be regarded as biased when giving the contested decision.”
18. The Federal Court furthermore did not consider it arbitrary that the Administrative Court had found that the applicant's claims were forfeited as he had failed duly to raise them.
19. On 20 August 1996 the Federal Court dismissed the applicant's request to reopen the proceedings.
20. The Administrative Court of the Canton of Zürich consists of both full-time and part-time judges, the latter also acting as practising lawyers on a part-time basis.
21. Section 34 of the Administrative Judiciary Procedure Act (Verwaltungsrechtspflegegesetz) of the Canton of Zürich of 1959 concerns “incompatibility” (Unvereinbarkeit) and stated in the version in force at the relevant time:
“1. The office of a full-time judge of the Administrative Court is incompatible with any other full-time professional activity [hauptberufliche Tätigkeit]. Full-time judges may not be members of the Federal Assembly nor members or registrars of a municipal or district council. They are not allowed legally to represent third persons before courts and administrative bodies. An authorisation of the cantonal parliament is required if they wish to belong to the administration or management of a commercial company or cooperative acting for commercial purposes.
2. Part-time judges may not be employed full-time by an administrative authority or a court, and may not be members or registrars of a municipal or district council.”
22. The Administrative Judiciary Procedure Act was revised in 1997 and section 34 now states:
“1. The office of a full-time member of the Administrative Court is incompatible both with any other full-time professional activity and with the professional representation of third persons before courts or administrative authorities.
2. The office of a part-time member of the Administrative Court is incompatible with the professional representation of third persons before the Administrative Court ...”
23. In Switzerland no particular magistrate's training is required to enter the judicial profession. This explains, inter alia, the comparatively high number of practising lawyers (legal representatives) acting as part-time or substitute judges.
24. The Federal Court consists of thirty full-time and fifteen part-time judges, and the Federal Insurance Court consists of nine full-time and nine part-time judges. Part-time judges may exercise the profession of practising lawyer. According to section 22 of the Federal Judiciary Act (Organisationsgesetz), judges shall stand down if, in a particular case, they have participated in another capacity, inter alia as legal adviser or as practising lawyer. The First Public Law Division of the Federal Court furthermore avoids appointing as part-time judges persons resident in the canton in which the case originates.
25. In various federal appeals commissions (Rekurskommissionen) provision is made for full-time and part-time judges. Whatever other functions the latter exercise, these functions may not compromise the accomplishment of their tasks or the independence and reputation of the appeals commission.
26. In various cantons, no particular regulations exist as to part-time judges acting as practising lawyers, for example for certain judges of the Cantons of Appenzell Inner Rhodes, Graubünden and Valais. Other cantons have specific legislation on the matter.
27. For instance, certain cantonal courts are composed exclusively of full-time judges who exercise no other legal profession, for instance the Cantonal and Administrative Courts of the Cantons of Berne and of Lucerne; the Administrative Court of the Cantons of Fribourg and Ticino; the Cantonal Court of the Canton of Thurgau; and the Cantonal Court and the Court of Appeal of the Canton of Schaffhausen. In the Canton of Graubünden, as from 2001, eight of the eleven presidents of the first-instance courts will act as full-time judges.
28. In some cantons, certain part-time judges are prohibited from acting as practising lawyers, for instance in the Canton of Basle Rural (part-time judges of the Court of Appeal in criminal cases) and in the Canton of Aargau (part-time judges of the Cantonal Court and the specialised administrative courts and the presidents of the district courts). In the Canton of Berne a new law has been proposed which, as from 2001, intends to prohibit part-time judges from acting as practising lawyers, although this function will continue to be possible for substitute judges. In the Canton of St Gall, part-time district court judges may not act as practising lawyers in the district in question.
29. In various cantons part-time judges of a court may not appear before that court as practising lawyers, for instance in the Cantons of Schwyz, Obwalden, Zug, Aargau (in respect of the Administrative Tribunal), Basle Urban (in respect of the regular judge at the Court of Appeal in administrative matters), St Gall (in respect of part-time judges who are otherwise employed for more than 40% of their time), Graubünden (in respect of judges of the administrative courts and their respective divisions and, as from 2001, in respect of district and regional court presidents and their deputies). The Canton of Basle Rural is currently revising its relevant legal norms along these lines.
30. Certain cantonal courts envisage the possibility for substitute judges to act as practising lawyers, for instance in the Cantons of Aargau (labour courts), Berne (Cantonal and Administrative Court), Basle Urban, Geneva, Fribourg (Administrative Court), Ticino, Solothurn and Schaffhausen (Court of Appeal and Cantonal Court).
31. The Federal Court has pronounced on various occasions on the question of the impartiality of lawyers acting as judges, in particular the danger of a link of dependency between the judge and one of the parties. For instance, a lawyer may not act as judge in a case where he or she is representing one of the parties to the case, or where in separate pending proceedings he or she is representing the opposing party. On the other hand, as a rule no issue will arise where the lawyer once represented a party and the mandate has been completed. The mere fact that the lawyer generally advises in building matters does not imply that as a judge he will necessarily favour a plaintiff who is involved in the construction of a house (see judgment of 15 May 1992, Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht 94, 1993, 87; and the judgment of 20 December 1990, Arrêts du Tribunal fédéral suisse (ATF), vol. 116 Ia, p. 485).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1