ITEMID: 001-68884
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF PARSIL v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
TEXT: 9. The applicant was born in 1963 and lives in Kahramanmaraş. He was a civil servant at the time of the events giving rise to the application.
10. In 1990 the applicant was appointed to the Ölüdeniz Natural Park as a warden in charge of the sale of entry tickets.
11. On 29 July 1991 he was detained for selling tickets which had been fraudulently issued and crediting money to his account. In his police statement dated 29 July 1991 and in his statement to the public prosecutor on 30 July 1991, the applicant confessed that he had been involved in selling forged tickets together with two other persons.
12. On 30 July 1991 the Fethiye Magistrates’ Court ordered the applicant’s detention on remand.
13. On 20 August 1991 the Fethiye public prosecutor filed an indictment with the Fethiye Assize Court, charging the applicant with embezzlement under Article 202 of the Criminal Code.
14. On 18 September 1991 the Fethiye Assize Court held its first hearing. Subsequently, the public prosecutor maintained that, as the applicant’s acts might constitute a breach of Article 342 of the Criminal Code regulating the offence of forgery, permission to prosecute was required from the local authority, pursuant to the Act on the Procedure for the Prosecution of Civil Servants.
15. On 30 December 1991 the first-instance court transferred the case file to the Fethiye District Council for investigation and ordered the suspension of the proceedings pending the decision of the District Council. It further ordered the applicant’s release from detention.
16. On 16 December 1992 the Fethiye District Governor decided that the applicant could be tried before the Fethiye Assize Court on account of the nature of the charges against him.
17. On 22 May 1993 the case file was remitted to the Fethiye Assize Court.
18. On 22 December 1993 the court found the applicant guilty of forgery under Article 342 of the Criminal Code and sentenced him to one year, eleven months and ten days’ imprisonment.
19. On 6 December 1994 the Court of Cassation quashed the decision of the first-instance court on procedural grounds.
20. On 8 March 1995 the Fethiye Assize Court amended the procedural errors in its former judgment and handed down the same sentence against the applicant. The applicant appealed.
21. On 11 December 1995 the Court of Cassation, referring to the opinion of the principal public prosecutor dated 20 November 1995, which had not been communicated to the applicant, ruled that the first-instance court had failed to apply the legal provisions relevant to the crime in question. Consequently, it quashed the judgment of the Fethiye Assize Court and stated that the applicant’s acts, which amounted to embezzlement under Turkish law, should have been examined under Article 202 of the Criminal Code.
22. The case was subsequently remitted to the Fethiye Assize Court. In his defence submissions before the latter, the applicant denied that his acts constituted a breach of Article 202 of the Criminal Code and requested the court to abide by its judgment of 8 March 1995.
23. On 13 March 1996 the Fethiye Assize Court found the applicant guilty of embezzlement under Article 202 of the Criminal Code. It sentenced the applicant to seven years, nine months and ten days’ imprisonment and to a fine of 33,333,333 Turkish liras (TRL) (390 euros (EUR)). The applicant was also debarred from working in the civil service.
24. On 6 March 1997 the Court of Cassation upheld the judgment of the Fethiye Assize Court.
25. A description of the relevant domestic law at the material time can be found in Göç v. Turkey ([GC], no. 36590/97, § 34, ECHR 2002V).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107550
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ANDREYEV v. ESTONIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 7. The applicant was born in 1961 and lived in Narva until his arrest. He is currently serving a prison sentence.
8. The Viru County Court convicted the applicant of repeated rape, between 2001 and 2005, of his minor daughter, and sentenced him to nine years’ imprisonment. As summary proceedings had been applied, the sentence was reduced by one third. The operative part of the judgment was delivered at a hearing on 3 November 2006. After the applicant had informed the County Court of his intention to appeal, the court delivered the full text of the judgment, which was served on the applicant on 22 November 2006. The operative provisions of the full text had been amended – in addition to the originally delivered operative part, the expulsion of the applicant after his release from prison was ordered and a ten-year prohibition on entering the country was imposed.
9. The applicant lodged an appeal with the Viru Court of Appeal, requesting his acquittal or the mitigation of the sentence, including the overturning of the expulsion order. He asked that the case be heard in his absence but in the presence of his legal-aid lawyer, B., who had also participated in the first-instance hearing. He requested, inter alia, that his former wife, the victim’s mother, be re-examined at the appellate court hearing, and asked his lawyer to put certain questions to her.
10. The Court of Appeal scheduled its hearing for 26 February 2007 and informed the parties and the applicant’s lawyer, B. As B. already had another court hearing scheduled for that date, he asked the court to reschedule the hearing or appoint another lawyer for the applicant. The Court of Appeal appointed K. as counsel for the applicant. According to the record of the Court of Appeal’s hearing, K. challenged the assessment of the evidence and the applicant’s conviction by the first-instance court. In the event that the appellate court nevertheless found that the applicant was guilty, K. asked for a more lenient sentence for him. Lastly, he argued that no reasons had been given in the judgment for the applicant’s expulsion and that therefore the expulsion was unlawful.
11. By a judgment delivered on 5 March 2007 the Court of Appeal upheld the County Court’s judgment. Any intention to appeal to the Supreme Court had to be notified in writing to the Court of Appeal within seven days of the delivery of the judgment. An appeal to the Supreme Court, drawn up by a lawyer, had to be deposited with the Court of Appeal within thirty days of service of its judgment on the defendant.
12. On 7 March 2007 the applicant refused to accept the Court of Appeal’s judgment in Estonian. On 15 March 2007 he received a Russian translation. On the following day he submitted a notice indicating his intention to appeal.
13. On Friday, 13 April 2007 the applicant gave to a prison officer an appeal drawn up by himself addressed to the Supreme Court via the Court of Appeal. It was posted on the following working day, Monday, 16 April 2007.
14. Apparently the applicant had telephoned B. from the prison to ask him to draw up an appeal to the Supreme Court. B. had replied that an appeal to the Supreme Court had to be drawn up by K., the lawyer who had represented the applicant before the Court of Appeal. According to B., he telephoned K. immediately and informed him of the applicant’s wish to lodge an appeal with the Supreme Court. According to the applicant, he also telephoned K.
15. According to K., he did not become aware of the applicant’s wish to appeal to the Supreme Court until he was telephoned by the office of the Court of Appeal on 17 April 2007. He was informed that the applicant had submitted a notice of intention to appeal and that, accordingly, an actual appeal had to be drawn up by a lawyer. On 23 April 2007 K. lodged the appeal. He argued that the original operative part of the judgment was decisive, and the imposition of the additional sentence was unlawful and had to be quashed. He also asked for a reduction of the length of the prison sentence.
16. On 9 May 2007 the Supreme Court rejected the appeal drawn up by the applicant since such an appeal had to be drawn up by a lawyer. It also rejected the appeal drawn up by K. on the applicant’s behalf, noting that the last day for lodging it had been 16 April 2007 and the appeal had arrived at the Court of Appeal too late, on 24 April 2007.
17. On 15 May 2007 K. asked the Supreme Court to restore the time-limit for lodging an appeal. On 23 May 2007 the Supreme Court refused because no acceptable reasons had been put forward.
18. In a letter sent to the Supreme Court on 7 June 2007 the applicant insisted that he had done everything he could in the circumstances and asked the Supreme Court to examine his appeal. On 21 June 2007 the Supreme Court replied by a letter reiterating that the appeals drawn up by the applicant himself and K. had been rejected and K.’s request for the restoration of the time-limit dismissed.
19. Subsequently, the applicant made several complaints to courts, the Ministry of Justice and the Chancellor of Justice expressing his dissatisfaction with the actions of the courts and the conduct of K. in dealing with his case.
20. On 17 September 2007 the applicant made a complaint against K. to the Estonian Bar Association (Eesti Advokatuur). He argued that because of K.’s omissions he had been deprived of his right of defence.
21. On 13 November 2007 the Board of the Bar Association (Advokatuuri juhatus) found that there were indications that a disciplinary offence (distsiplinaarsüütegu) had been committed and proposed that the Court of Honour (aukohus) of the Bar Association initiate proceedings in respect of K. Proceedings commenced on 12 December 2007. The Court of Honour gave its decision on 6 March 2008. It considered that K. had had an obligation to take steps to find out whether the applicant wished to appeal against the Court of Appeal’s judgment. However, K. had taken no such steps between the delivery of the appellate court’s judgment (5 March 2007) and the expiry of the time-limit for lodging an appeal (16 April 2007). The Court of Honour found that K. had breached the requirements of the Code of Conduct (Eetikakoodeks) of the Estonian Bar Association and thus committed a disciplinary offence. He was given a reprimand (noomitus) as a disciplinary penalty.
22. In the meantime, the applicant also made a complaint against B. to the Bar Association. On 13 November 2007 the Board of the Bar Association found that B.’s behaviour showed no elements of a disciplinary offence and would not therefore recommend that the Court of Honour initiate proceedings against him.
23. Subsequently, the applicant applied for legal aid to fund the lodging of a request with the Supreme Court for the criminal proceedings to be reopened (teistmine). Such a request had to be drawn up by a lawyer. On 10 March 2008 the Harju County Court granted the applicant legal aid to obtain a lawyer’s opinion on the prospects of success of a request to the Supreme Court for the reopening of the proceedings and of an application to the European Court of Human Rights. On 8 May 2008 the lawyer appointed gave her opinion, according to which the request and application in question had no reasonable prospects of success. On the following day an assistant judge at the Harju County Court endorsed the lawyer’s opinion and terminated the legal aid granted to the applicant, without extending it to the drawing-up of the request and application referred to above. On 19 September 2008 the Tallinn Court of Appeal dismissed an appeal by the applicant against the County Court’s decision to terminate legal aid.
24. Shortly thereafter the applicant applied for legal aid for the second time. On 19 January 2009 the Viru County Court granted his request.
25. On 29 June 2009 L., a lawyer appointed under the legal-aid scheme lodged a request for the reopening of the criminal proceedings (teistmisavaldus) with the Supreme Court, together with a request for the restoration of the pertinent time-limit. In the request the severity of the prison sentence and the later amendment of the operative provisions of the convicting judgment were complained about. It was argued that such subsequent amendment of the operative provisions had been unlawful. It was submitted that the applicant wished to use his right to challenge the Court of Appeal’s judgment in the procedure for the reopening of the criminal proceedings because he had been unable to exercise his ordinary right to appeal against the said judgment.
26. On 22 July 2009 the Supreme Court declined to accept the request.
27. In the meantime, on 24 October 2007 the Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet) revoked the applicant’s long-term residence permit in Estonia. The applicant challenged the decision before the Tallinn Administrative Court, which on 11 April 2008 dismissed his complaint. On 30 January 2009 the Tallinn Court of Appeal upheld that judgment. On 2 April 2009 the Supreme Court declined to accept the applicant’s appeal.
28. Article 45 § 4 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) stipulates that the participation of counsel in court proceedings is mandatory.
29. Pursuant to Article 344 § 3, an appeal in cassation may be filed by an advocate acting as criminal defence counsel.
30. Article 345 § 2 provides that an appeal in cassation must be lodged within thirty days of the date when a party to the proceedings had the opportunity to examine the judgment of the court of appeal. Paragraph 5 provides that, at the request of the appellant, the Supreme Court may restore the time-limit for an appeal in cassation if it was allowed to expire for good reason.
31. Article 347 sets forth the requirements for an appeal in cassation. These requirements include formal ones, such as the personal details of the appellant and details of the judgment appealed against, as well as substantial ones, such as an indication of the appellant’s request and reasoning setting out why he or she considers that the substantive law was incorrectly applied or the criminal procedural law was violated. Pursuant to Article 350, if an appeal in cassation does not meet the requirements set out in Article 347, the Supreme Court gives the appellant a time-limit for amending the appeal; in case of a failure to amend the appeal, or if the appeal has been submitted too late, the Supreme Court rejects the appeal.
32. Article 346 provides that the incorrect application of substantive law and the material violation of criminal procedural law are grounds for appeal in cassation. The latter ground is defined in Article 339 of the Code, which at the material time read as follows:
“(1) A violation of criminal procedural law is material if:
1) a decision is made in a criminal matter by an unlawful court panel;
2) a criminal matter is heard in the absence of the accused, except in the cases provided for in Articles 267 § 1 and 334 § 1 of this Code;
3) court proceedings are conducted without the participation of counsel;
4) court proceedings are conducted without the participation of the prosecutor;
5) the confidentiality of deliberations is breached in the making of a judgment;
6) a judgment is not signed by all members of the court panel;
7) a judgment does not contain reasons;
8) the conclusions presented in the conclusion of a judgment do not correspond to the facts established with regard to the subject of proof;
9) a criminal matter is heard in a language in which the accused is not proficient without the participation of a translator or interpreter;
10) a record is not made of a court session, with the exception of matters heard by way of summary proceedings.
(2) A court may declare any other violation of criminal procedural law to be material if such violation results or may result in an unlawful or unfounded judgment.”
33. Article 349 of the Code of Criminal Procedure provides as follows:
“(1) A panel of three justices of the Supreme Court shall decide on the acceptance of an appeal in cassation on the basis of the material in the criminal file ... .
...
(4) An appeal in cassation shall be accepted if at least one justice of the Supreme Court finds that:
1) the allegations made in the appeal in cassation give reason to believe that the appeal court has applied substantive law incorrectly or has materially violated criminal procedural law;
2) the appeal in cassation contests the correctness of the application of substantive law or requests the annulment of the judgment of an appeal court on account of a material violation of criminal procedural law, and a judgment of the Supreme Court is essential for the uniform application of the law.
...
(5) Acceptance of an appeal in cassation or refusal to accept an appeal in cassation shall be in the form of a decision of the Supreme Court without any reasons being given.”
34. Chapter 13 of the Code of Criminal Procedure sets out the rules concerning a request for the reopening of criminal proceedings. The relevant parts read as follows:
“(1) The grounds for the reopening of proceedings (teistmine) are:
1) the unlawfulness or unfoundedness of a judgment or decision arising from the false testimony of a witness, knowingly wrong opinion of an expert, knowingly false interpretation or translation, or falsification of documents, or fabrication of evidence, which is established by another judgment which has taken effect;
2) a criminal offence committed by a judge in the hearing of the criminal matter under review and which is established by a judgment;
3) a criminal offence committed by an official of the body that conducted the pre-trial proceedings, or a prosecutor in the pre-trial proceedings of a criminal matter, and which is established by a judgment, if the criminal offence could have had an effect on the judgment made in the criminal matter under review;
4) the annulment of a judgment or decision which was one of the bases for the judgment or decision in the criminal matter under review, if this may result in the making of a judgment of acquittal in the criminal matter under review, or in the mitigation of the situation of the convicted offender;
5) any other facts which are relevant to the just adjudication of the criminal matter but which the court was not aware of when making the judgment or a decision in the criminal matter under review and which independently or together with the facts previously established may result in a judgment of acquittal or in mitigation of the situation of the convicted offender or in mitigation of the situation of a third party whose property has been confiscated on the basis of a judgment or decision;
6) the Supreme Court declares, by way of constitutional review proceedings, that the legislation of general application or provision thereof on which the judgment or decision in the criminal matter under review was based is in conflict with the Constitution;
7) the satisfaction of an individual application filed with the European Court of Human Rights against a judgment or decision in the criminal matter under review on account of a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms or a Protocol thereto, if the violation may have affected the resolution of the matter and it cannot be eliminated or damage caused thereby cannot be compensated for in a manner other than by review.”
“...
(2) A request for the reopening of proceedings shall be accepted if at least one justice of the Supreme Court finds that the allegations made in the petition give reason to presume the existence of grounds for review. ...”
35. Article 369 of the Code of Criminal Procedure sets forth the requirements for a request for the reopening of proceedings. This provision is in substance similar to Article 347, which concerns appeal proceedings. Article 371 provides that Article 350 also applies to requests for the reopening of proceedings (see paragraph 31 above).
36. Article 431 of the Code of Criminal Procedure provides for issues arising in the implementation of judgments for which there is no specific regulation in the preceding provisions of the Code, and other doubts and ambiguities, to be settled by a decision of the court which gave the judgment or the judge in charge of execution of judgments at the county court responsible for enforcing the judgment.
37. Section 19 § 1 of the State Legal Aid Act (Riigi õigusabi seadus), as in force at the material time, provided that an advocate was not allowed to refuse to provide State legal aid to a person or terminate the provision of legal services to a person before the final adjudication of the matter.
38. In a judgment of 17 March 2003 (case no. 3-1-3-10-02) the Supreme Court, sitting in plenary session, dealt with an application from a person convicted under the Criminal Code (Kriminaalkoodeks) who sought to be released from serving his remaining sentence after a new Penal Code (Karistusseadustik) had entered into force because the new Penal Code provided for a shorter maximum prison term for a similar offence. The Supreme Court considered that the applicant’s petition could not be considered a request for the reopening of the criminal proceedings (teistmine) or a petition for the correction of court errors (kohtuvigade parandamine). The Supreme Court held:
“17. ... [T]he fact that Article 15 of the Constitution recognises everyone’s right of recourse to the courts, if his or her rights and freedoms are violated, must not be ignored. [The applicant’s] petition concerns the rights referred to in the Constitution ... . Proceeding from Article 15 of the Constitution, the Supreme Court may refuse to hear [the applicant’s] petition only if [the applicant] has other effective ways to obtain judicial protection of the right of recourse to the courts established in the [above] provision of the Constitution.”
The Supreme Court proceeded to analyse whether other possible procedures were available to the applicant and concluded:
“18. ... [The Supreme Court] is of the opinion that there is no effective remedy for [the applicant] for the protection of his fundamental right. Taking into account this fact, the fundamental rights at stake, and the duration of the sentence served, the [Supreme Court] can find no justification for refusing to hear [the applicant’s] petition on the merits. [The Supreme Court] also bears in mind the need to give the courts clear guidelines on how to resolve similar cases.”
39. Subsequently, dealing with requests lodged in accordance with the procedure for the reopening of criminal proceedings (teistmine), the Supreme Court has in several cases referred to the judgment referred to in the previous paragraph, for example, in the judgments of its Criminal Chamber of 19 October 2009 (case no. 3-1-2-4-09) and 7 April 2010 (case no. 3-1-2-1-10). In the former case, the Supreme Court noted that the grounds invoked by the prosecutor were not included in the exhaustive list given in Article 366 of the Code of Criminal Procedure. Nevertheless, the Supreme Court found that in that case there was no other effective procedure for verifying whether the applicant’s right to liberty had been infringed; it heard the case and ordered the applicant’s immediate release.
40. In the latter case, the Supreme Court, having also established that there were no grounds for reopening the criminal proceedings, nevertheless analysed whether the applicant’s rights had been violated. Finding that this was not the case, it refused to reopen the proceedings.
41. In a judgment of 2 October 2009 (case no. 3-1-2-3-09) the Criminal Chamber of the Supreme Court dealt with a request for the reopening of proceedings (teistmine), filed on 25 May 2009, in a case where two different versions of the operative provisions of a judgment of a first-instance court existed. According to the operative part of the judgment originally delivered by the first-instance court, seven months of the ten-month prison sentence imposed on the defendant were to be suspended. However, according to the operative provisions of the full text of the judgment, delivered at a later date, the defendant had to serve two months’ imprisonment immediately and the remaining eight months were suspended.
42. The Supreme Court declined to reopen the proceedings, finding that there were no grounds for that under Article 366 of the Code of Criminal Procedure. Nevertheless, in order to secure the uniform application of the law and consistency in the case-law, the Supreme Court made it clear that the original operative part of the judgment was to be considered decisive and reiterated that pursuant to Article 431 of the Code doubts and ambiguities arising in the execution of a judgment were to be settled by a decision (määrus) made by the judge in charge of the execution of judgments (täitmiskohtunik).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102302
LANGUAGEISOCODE: ENG
RESPONDENT: LUX
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BOULOIS v. LUXEMBOURG
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;Dean Spielmann;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto
TEXT: 10. The applicant was born in 1972. When the application was lodged he was being held in Schrassig Prison. He is currently being held under a semicustodial regime in Givenich Prison.
11. On 15 December 1998 the applicant was remanded in custody.
12. In a judgment of 22 October 2001 the Criminal Division of the Court of Appeal sentenced him to fifteen years’ imprisonment, of which three years were suspended, for assault occasioning actual bodily harm, rape and false imprisonment accompanied by acts of torture, committed on 10 December 1998.
13. The applicant was granted a divorce on 19 October 2000. He provided the Court with various judicial decisions given between 14 June 2001 and 13 April 2005 concerning his right of contact with his three minor children.
14. While in prison the applicant submitted several requests for temporary leave of absence (“prison leave”), which are the subject of the present case.
15. The applicant stated that he had submitted a request for prison leave to the Attorney General in October 2003.
16. At the request of the counselling service’s psychologist the applicant explained on 16 October 2003 that he was requesting prison leave for one day and had no objection to being escorted while on leave. He stated that the reason for the request was to complete certain administrative formalities, which he detailed as follows:
“- go to a photographer or photo booth to obtain passport photos;
- go to the Transport Ministry to renew my driving licence (medical certificate already obtained);
- go to the Embassy to renew my consular registration card;
- go to see Mr [B.] at Luxembourg police station, Investigations Division, to pick up an envelope containing documents needed by a former client;
- go to see the manager of [B.] bank in Esch/Alzette;
- go to the taxation office in Esch/Alzette;
- meet a group of friends in a restaurant near Esch/Alzette;
- go to my flat in Differdange to collect the remaining documents for the same client;
- take some measurements for items I might make in the [prison] workshop;
- go to Differdange town hall for a personal interview with the mayor;
- go to the home of Mrs [S.] in Luxembourg to meet her husband;
- go to my lawyer’s office to hand over the missing documents for my former client;
- if possible, go to the bookshop near [S.]’s house.”
In his letter, the applicant stated further:
“... Unfortunately, the civil damages are still far from being paid, as I have not even had enough funds to make a down-payment. At the moment I am still engaged in repaying my loans and other debts to the various authorities under the arrangements entered into with the legal service in order to avoid an unending series of seizures of my property. ...”
17. On 29 October 2003 a psychologist issued a certificate (confirmed on 25 November 2003 by a second psychologist) stating that the applicant had begun a course of psychotherapy on 19 May 1999 which had been discontinued on 30 September 2002 for reasons beyond his control. The psychologist stressed that the applicant had been anxious to understand what had driven him to commit the offences and to do everything possible to avoid reoffending.
18. On 5 November 2003 the Attorney General’s representative sent a memorandum to the prison governor worded as follows:
“...please inform the prisoner Thomas Boulois
that by decision of the Prison Board
[the] request for prison leave ... [is] refused in view of the risk of deportation (an application was made to the Ministry of Justice on 25 June 2003, but no decision has yet been taken). There is also a risk that the prisoner might abscond, given that he has failed to reflect on his crime. Before being allowed any privileges he must begin to pay the civil party.”
19. On 17 January 2004 the applicant reiterated his request, stating that the reasons and the itinerary for the day’s prison leave remained the same. On 27 January 2004 his lawyer submitted arguments in support of the applicant’s request and concluded as follows:
“... granting [the applicant] a day’s prison leave during which he could begin to put his affairs in order with a view to leading an independent life [outside] prison, [would] not only aid [the applicant’s] rehabilitation and reintegration into society, but [would] also enable him to start paying compensation to the civil party as quickly as possible. ...”
20. On 17 March 2004 the Attorney General’s representative sent a memorandum to the prison governor containing the following passages:
“... please inform the prisoner Thomas Boulois
that by decision of the Prison Board
the decision of 5 November 2003 refusing his request for prison leave ... remains valid.”
21. On 25 May 2004 the applicant lodged an application with the Administrative Court (tribunal administratif) for judicial review of the decisions of the Prison Board of 5 November 2003 and 17 March 2004.
22. At a hearing held on 6 December 2004 the Administrative Court raised of its own motion the question whether it had jurisdiction to examine the application for judicial review. The Government, which had not raised an objection alleging lack of jurisdiction, left the matter to the discretion of the court.
23. On 23 December 2004 the Administrative Court ruled that it did not have jurisdiction to examine the application for judicial review, for the following reasons:
“... A distinction must be made between administrative measures relating to the treatment of prisoners in prison (such as a decision to place them in a more secure part of the prison, and in particular imposing a strict confinement regime – see Administrative Court ruling no. 14568 of 10 July 2002), which are taken in the context of enforcement by the prison service, and decisions which may alter the nature or scope of a sentence handed down by the ordinary courts, which are to be classified as judicial rather than administrative decisions.
In the instant case it must be acknowledged that the granting or refusal of the privilege of prison leave constitutes a measure which alters the ‘scope’ of the sentence imposed on the applicant by the ordinary court.
Hence, the two decisions in question are judicial in nature.
Accordingly, bearing in mind their nature as identified above, the impugned decisions cannot be the subject of an application to the administrative courts... .”
24. On 14 April 2005 the Higher Administrative Court (cour administrative) upheld this ruling, as follows:
“The [applicant] submitted that the court erred in finding that it did not have jurisdiction to examine his application for judicial review, arguing that: no other remedy existed in respect of such refusal, with the result that section 2(1) of the Law of 7 November 1996 on the organisation of the administrative courts should be applied; the impugned decisions did not alter the scope of the sentence; the court had denied him justice in breach of Article [6 § 1] of the [Convention] by depriving him of a fair hearing.
... The [applicant]’s case concerns a request for prison leave, in other words, a decision which alters the nature of the execution of the sentence handed down by the ordinary courts and which should therefore be classified as a judicial rather than an administrative decision.
The expression ‘the scope of the sentence imposed’, used by the court, is not to be understood in the present case as the length of the sentence but as the manner of its execution in a broad sense.
The administrative court was therefore correct in ruling that it did not have jurisdiction to examine the application.
A finding by the administrative courts that they lack jurisdiction cannot be construed as a declaration of unwillingness on their part to rule on the issue; the allegation of a denial of justice should therefore be dismissed as unfounded.
Article [6 § 1] of the [Convention] is not applicable in relation to a body which has no power to rule on the merits. ...”
25. On 11 August 2004 the applicant submitted a third request for prison leave, in the following terms:
“... I have successfully attended several courses run by the CEP-L [Chamber of Commerce] and would like to continue with a view to obtaining the corresponding diplomas.
The diplomas concerned are in accounting and computer (PC) use. I completed the previous courses successfully, but for the sake of feasibility it is now essential for me to be able to attend the courses of the autumn session at the CEP-L itself. ...”
26. In a decision of 21 September 2004 the request was refused on the ground that the applicant could attend courses in prison and that he had made no substantial efforts to date towards paying compensation to the victim. The decision also referred to the reasoning of the decision of 5 November 2003.
27. In a fourth request, submitted on 24 February 2005, the applicant observed, among other things, that he could not understand why, in view of the need for him to reintegrate into society, he had been refused permission to attend the final classes required in order to obtain the diplomas in accounting and computing. He added that the reason he had requested prison leave was to renew his identity papers and driving licence and make arrangements for the repayment of his debts to the various institutions and the civil party.
28. On 23 March 2005 his request was refused for failure to give reasons.
29. On 12 July 2005 a fifth request for prison leave (not provided to the Court) was refused on the ground that there was a risk that the applicant would not return to prison.
30. On 4 May 2006 a sixth request for prison leave (not provided to the Court) was refused on the ground that the applicant had been making no efforts, in particular with regard to paying the civil damages, and was refusing to abide by the conditions imposed on him.
31. Following the refusal of this request, the applicant applied to the Attorney General’s Department on five occasions between 10 May and 29 October 2006. He requested assistance in putting in place a repayment plan appropriate to his circumstances and the demands of the civil party, and sought an explanation of the requirements he was expected to meet with a view to his reintegration in society, so that he could take steps to comply with them. On 6 November 2006 the Attorney General’s representative decided that he would not, as matters stood, reply to the various letters, which did not call for any comment.
32. On 20 November 2006 the Attorney General acknowledged receipt of a request from the applicant for an interview and said that he would meet him during one of his forthcoming visits to the prison. The applicant claimed that the meeting had never taken place.
33. According to the case file, in April 2009 the applicant was transferred to a semi-custodial regime in Givenich Prison, where he carried on paid work as a cook. On 10 February 2010 he started up a business as a sole trader.
34. Section 1 of the Law of 26 July 1986 on certain methods of execution of custodial sentences (hereafter “the 1986 Law”) lists the various arrangements which execution of a custodial sentence may entail:
“The execution of a custodial sentence may entail one of the following: execution in instalments, semi-custodial regime, prison leave, suspension of sentence, early release.”
35. In the explanatory memorandum to the draft of the 1986 Law, the purpose of the legislation is explained as follows:
“... the time seems right to provide a sound legal basis for arrangements for the execution of custodial sentences which, within certain limits, allow convicted prisoners to make trips outside prison or to serve their sentence in instalments, so that they can maintain or resume social and professional contacts. Since sentencing lost its expiatory character and took on an essentially sociological role with a neartherapeutic aspect, the efforts of the authorities responsible for the execution of sentences have been directed mainly at the social rehabilitation of prisoners and at helping them settle or resettle in a stable social environment. In striving to achieve this, it is important in particular to ensure that prisoners can maintain their family and social ties, where such exist, and to prepare them for release by enabling them, possibly by means of preparations for an occupation or profession, to find work and adapt to responsible life outside prison. ...”
36. Section 6 of the 1986 Law defines prison leave as follows:
“Prison leave shall consist of permission to leave prison either for part of the day or for periods of twenty-four hours. The time shall count towards the length of the sentence.”
37. Section 7 of the 1986 Law provides:
“This privilege may be granted to prisoners who are domiciled or resident in the country, either for family reasons or to make preparations for their rehabilitation and reintegration into professional life, or on a trial basis with a view to their release on licence.”
38. Section 8 of the 1986 Law provides that prison leave may be granted to prisoners convicted of a first offence once a third of their sentence has been served.
39. Under Section 13, consideration must be given to the personality of the prisoner, his or her progress and the risk of a repeat offence.
40. Under the terms of the Grand-Ducal Regulation of 19 January 1989 laying down the arrangements for the granting of prison leave, such leave may be granted at the request of the prisoner concerned or his or her representative (Article 4); the request must be made in writing, unless the prisoner is incapacitated or unable to write. The interval between periods of leave must be at least one month, except in special circumstances (Article 5). Where a request for prison leave is refused, no new request may be made within two months, unless new evidence comes to light (Article 6).
41. Section 12 of the 1986 Law states:
“In the case of custodial sentences of over two years ... the measures provided for by this Law ... shall be taken by the Attorney General or his or her representative in accordance with a majority decision of a board comprising, in addition to the Attorney General or his or her representative, a judge and a public prosecutor. ...
The board shall be convened by the Attorney General or his or her representative and shall be chaired by the judge.
With the exception of the Attorney General or his or her representative, the full members and their substitutes shall be appointed by ministerial order for a renewable three-year term.”
42. Section 2 of the Law of 7 November 1996 on the organisation of the administrative courts provides as follows:
“(1) The Administrative Court shall rule on applications alleging incompetence, excess or misuse of authority and breaches of the law or procedures designed to protect private interests, lodged in respect of any administrative decision for which no other remedy exists under the laws and regulations.
...
(3) Unless otherwise provided by law, an appeal may be lodged with the Higher Administrative Court against the decisions of the Administrative Court referred to above.”
43. In his activity report on the year from 1 October 2007 to 30 September 2008 the Ombudsman outlined the terms of Recommendation No. 30, the relevant parts of which read as follows:
“... the decision-making procedures regarding the execution of sentences, which are currently the sole responsibility of the Attorney General’s representative or the Prison Board ..., are no longer compatible with the adversarial principle and the right of appeal before an independent and impartial body;
... along the lines of what has been done in other countries, and in particular in France, a thorough overhaul of the system of execution of sentences is called for.
... [it is necessary] to review the organisation of the prison service as a whole and to consider creating the office of post-sentencing judge and an autonomous DirectorateGeneral of Prisons which is separate from the Attorney General’s Department.
... Each District Court would have a post-sentencing judge; for appeal cases before the Supreme Court of Justice there would be a post-sentencing adviser.
These judicial officers would be responsible for ruling on all applications submitted to them under Article 100 of the Criminal Code, applications for transfer from [the closed prison] to the [semi-open prison], requests for prison leave...
... The adversarial procedure would be triggered by an application to be lodged by the prisoner or his or her lawyer. After hearing the public prosecutor’s address and the submissions of the prisoner, assisted by his or her representative if appropriate, the post-sentencing judge would give a decision against which the prisoner and the public prosecutor could appeal within a period to be specified. ...”
44. In his activity report on the year from 1 October 2009 to 30 September 2010 the Ombudsman described the following developments:
“... On 20 September 2009 the new Minister of Justice proposed a meeting with the Ombudsman with a view to discussing the action to be taken in response to the latter’s recommendation. This invitation followed the undertaking given by the Government to examine in detail the various recommendations made by the Ombudsman concerning the functioning of the judicial system and in particular the introduction of a post-sentencing judge. ...
On 17 March 2010 the Minister of Justice outlined to the press the planned reform of the prison system.
The Ombudsman welcomes the initiative taken by the Minister towards a thorough reform of the prison system aimed at creating a prison environment conducive to the social rehabilitation of prisoners with a view to their future reintegration into society.
The Ombudsman welcomes the Minister’s intention to act upon his recommendation...
As regards the execution of sentences and more specifically the decisions falling within the remit of the representative responsible for the execution of sentences or the Prison Board, the Ombudsman intends to pursue the idea of instituting a post-sentencing judge.
The Ombudsman notes that in a recent statement in a Luxembourg daily newspaper, the Minister spoke in favour of handing over to a judicial body some of the powers currently exercised by the Attorney General’s representative responsible for the execution of sentences or by the Prison Board.”
45. The relevant parts of the Recommendation read as follows:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
...
Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety, security and discipline while also ... offer[ing] ... treatment programmes to inmates, thus preparing them for their reintegration into society;
...
Endorsing once again the standards contained in the recommendations of the Committee of Ministers of the Council of Europe, ... and in particular ... Rec(2003)23 on the management by prison administrations of life sentence and other long-term prisoners;
...
103.2 As soon as possible after such admission, reports shall be drawn up for sentenced prisoners about their personal situations, the proposed sentence plans for each of them and the strategy for preparation for their release.
103.3 Sentenced prisoners shall be encouraged to participate in drawing up their individual sentence plans.
103.4 Such plans shall as far as is practicable include:
...
d. preparation for release.
...
103.6 There shall be a system of prison leave as an integral part of the overall regime for sentenced prisoners.
...
107.1 Sentenced prisoners shall be assisted in good time prior to release by procedures and special programmes enabling them to make the transition from life in prison to a law-abiding life in the community.
107.2 In the case of those prisoners with longer sentences in particular, steps shall be taken to ensure a gradual return to life in free society.
...”
46. The relevant parts of the Recommendation read as follows:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Bearing in mind the relevance of the principles contained ... in particular [in]:
– Recommendation No. R (82) 16 on prison leave; ...
...
1. For the purposes of this recommendation, a ... long-term prisoner is one serving a prison sentence or sentences totalling five years or more.
...
2. The aims of the management of ... long-term prisoners should be:
...
– to increase and improve the possibilities for these prisoners to be successfully resettled in society and to lead a law-abiding life following their release.
...
23 b. Particular efforts should be made to allow for the granting of various forms of prison leave, if necessary under escort, taking into account the principles set out in Recommendation No. R (82) 16 on prison leave.
...”
47. The relevant parts of the Recommendation are worded as follows:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
...
Considering that prison leave is one of the means of facilitating the social reintegration of the prisoner;
Having regard to experience in this field,
Recommends the governments of member states:
1. to grant prison leave to the greatest extent possible on medical, educational, occupational, family and other social grounds;
2. to take into consideration for the granting of leave:
- the nature and seriousness of the offence, the length of the sentence passed and the period of detention already completed,
- the personality and behaviour of the prisoner and the risk, if any, he may present to society,
- the prisoner’s family and social situation, which may have changed during his detention,
- the purpose of leave, its duration and its terms and conditions;
3. to grant prison leave as soon and as frequently as possible having regard to the aforementioned factors;
4. to grant prison leave not only to prisoners in open prisons but also to prisoners in closed prisons, provided that it is not incompatible with public safety;
...
9. to inform the prisoner, to the greatest extent possible, of the reasons for a refusal of prison leave;
10. to provide the means by which a refusal can be reviewed;
...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83065
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BUGAJNY AND OTHERS v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings
JUDGES: Josep Casadevall
TEXT: 5. The first applicant was born in 1963. The second and third applicants were born in 1964. They live in Poznań.
6. The company “Trust” Ltd. in which the applicants own all of the shares owned an estate of 6 hectares situated in Poznań. In 1995 the company requested the local administration to give a decision on the division of the estate, a decision necessary to proceed with construction on the land.
7. Eventually, on 15 November 1999 the Municipal Office gave a decision by which the division of the estate was approved. Certain plots of land were designated for construction purposes and others for open space and garages. A number of plots were designated for construction of “internal estate roads”. This decision became final on 30 November 1999.
8. Subsequently, the applicant company, relying on the provisions of the Land Administration Act 1997, requested the Mayor of Poznań to determine the compensation due for the plots designated for road construction. It submitted that under the relevant provisions of that Act plots designated, by virtue of decisions on the division of properties into smaller plots, were expropriated ex lege on the date on which such decisions became final.
9. By a decision of 15 March 2000 the President of the Poznań City dismissed the application to have the compensation determined, holding that the roads to be built on the estate concerned had not been provided for in the local land development plan. Hence, in the November 1999 decision they had been designated as “internal roads” which would serve the inhabitants of a housing estate the construction of which the company had been planning. Not having been provided for in the local land development plan, these roads did not belong to the category of public roads. Under the provisions of the Land Administration Act 1997, as amended in January 2000, only plots designated for the construction of “public roads” were to be expropriated ex lege, and only in respect of such expropriated plots could compensation be sought. In the applicants' case, the plots in question were designated for internal roads; they had therefore not been expropriated and, consequently, no compensation could be determined.
10. The applicants appealed. They argued that the roads to be constructed on the housing estate were to be public, for all practical purposes. They were to be open to all roads users, including all means of public and private transport. The term “internal roads” used in the contested decision did not exist in the Land Administration Act 1997 as applicable in November 1999. This Act had been amended after this decision had been given and it was only in its amended text that it was clearly stated that compensation was due only for “public” roads (see paragraphs 3031 below).
11. The fact that the plots concerned were referred to in the decision of November 1999 as designated for the construction of “internal” roads was an unlawful attempt to deprive them of a public character and to exempt them thereby from the operation of that Act insofar as it provided for ex lege expropriation of plots designated for road construction. Most importantly, it was an attempt to evade the obligation to pay compensation for such plots.
12. The applicants further argued that the fact that these roads had not been provided for in the local land development plan was immaterial, given that the decision of 15 November 1999 had obviously been given in such a way as to be consistent with the local land development plan. Otherwise, the division of the estate could not have been approved.
13. They lastly argued that the decision complained of breached the constitutional guarantees of ownership.
14. On 31 May 2000 the Wielkopolski Governor upheld the decision. The Governor's decision referred to section 98 of the 1997 Act as applicable when the November 1999 decision had been given. It provided that plots designated for road construction under a decision on the division of property for the construction purposes were expropriated ex lege on the date on which such a decision became final. However, the essential purpose of the decisions on the division of property was to serve the implementation of local land development plans. In the absence of the inclusion in such a plan of roads on the land subject to the division decision given in the applicants' case in November 1999, the plots designated for road construction could not be regarded as designated for the construction of “public roads”. Hence, there were no grounds on which to expropriate them and to grant compensation to the owners.
15. The applicants appealed, essentially reiterating their arguments submitted in their appeal against the first-instance decision.
16. On 16 October 2001 the Supreme Administrative Court dismissed the appeal. It referred to section 93 (1) and (3) of the Land Administration Act 1997. It noted that under these provisions a decision on the division of property into smaller plots could be given only if the division proposal was compatible with the local land development plan and if the newly created plots had access to a public road.
17. In the present case the local development plan did not provide for any public roads on the land owned by the company. Hence, the fact that certain parts of the land as divided under the November 1999 decision had been designated for construction of roads could not entail their automatic expropriation under section 98 of the same Act. These roads remained in the ownership of the company and there were therefore no grounds on which to determine compensation.
18. In so far as the applicants relied on decisions of the Supreme Administrative Court in which it had expressed the view that under section 98 of the 1997 Act all land designated for roads in the division decisions was subject to expropriation ex lege, the court noted that judgments given in other cases were not binding on it.
19. It further noted that the February 2000 amendment to section 98 of the Land Administration Act 1997 (see paragraph 31 below) which provided that land designated for the construction of public roads only was subject to expropriation:
“did not so much limit the scope of roads to which that provision was applicable, but was only intended to make more precise the intentions of the lawmaker regarding [the application ] of this Act”.
It concluded that that the contested decision was in conformity with the law.
20. Later on, the applicants' lodged a claim in a civil court seeking a declaration under Article 189 of the Civil Code as to who was the owner of the plot of land concerned, listed in the land register as plot No. 6/25 and covering a surface area of 5,843 square metres.
21. By a judgment of 25 June 2003 the Poznań Regional Court established that the owner of the plots was Poznań City.
22. The court considered, inter alia, that the plan for the division of the land as adopted in the November 1999 decision was concordant with the local land development plan. It further observed that such compliance was an essential condition for the decision on division to be given in the first place. The court further noted that the local zoning plan was of a very general character and contained practically no details as to the planning of roads, apart from major thoroughfares, and that it did not determine which roads were to be regarded as public. In these circumstances, the court was of the view, having regard to the public use of the roads on the property concerned, that they had been expropriated by the city.
23. Poznań City appealed.
24. By a judgment of 9 December 2003 the Poznań Court of Appeal dismissed the claim for a declaration. It considered that the company had no legal interest in seeking clarification of the legal situation of the plots concerned by way of a declaratory judgment under Article 189 of the Code of Civil Procedure. The legal situation of the land had already been determined by the judgment of the Supreme Administrative Court which was binding on the civil court. Pursuant to this decision, the claimant remained the owners of the plots in question.
25. The court further observed:
“Obviously, there was also another legal problem in the case. The conduct of the city in the present case had caused a situation in which the owner could not use his land freely, as provided for in Article 140 of the Civil Code. At the same time, the property serves one of the purposes [road construction] which normally should be ensured by the local municipality; what is more, it is the owner who bears the costs of achieving of this purpose.
It can be argued that a situation worse even than a so-called de facto expropriation obtains in the present case. This is so because under Article 1 of Protocol No. 1 to the Convention the term “expropriation” covers not only formal expropriation or restriction of ownership carried out in proper expropriation proceedings. The caselaw of the Strasbourg Court also distinguishes a category of de facto expropriation, namely such acts by the public authorities which lead to a practical deprivation of possessions or to restrictions on their use (Papamichalopoulos and Others v. Greece, 1993).”
26. The applicants lodged a cassation appeal with the Supreme Court. By a decision of 5 November 2004, served on the applicants on 1 December 2004, it refused to examine it.
“1. The Republic of Poland shall protect property and a right to inherit.
2. Expropriation is allowed only in the public interest and against payment of just compensation.”
28. Article 31of the Constitution reads:
“Freedom of the person shall be legally protected.
Everyone shall respect the freedoms and rights of others. No one shall be compelled to do anything which is not required by law.
Any limitation upon the exercise of constitutional freedoms and rights may by imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”
29. Article 79 § 1 of the Constitution provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
30. Under its settled case-law, the Constitutional Court has jurisdiction only to examine the compatibility of legal provisions with the Constitution and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases (e.g. SK 4/99, 19 October 1999; Ts 9/98, 6 April 1998; Ts 56/99, 21 June 1999).
31. On 8 May 1990 the Constitutional Court gave a judgment (K 1/90), following a request of the President of the Supreme Administrative Court to examine the compatibility of certain provisions of the 1985 Land Expropriation and Administration Act with the constitutional protection of the right to the peaceful enjoyment of possessions. The court noted that the impugned provisions of the 1985 Act provided, in respect of properties of an agricultural character, for a reduction of compensation to be paid to owners who had requested that they be divided, by way of an administrative decision, into smaller plots and to have certain plots of land expropriated for road construction purposes. This reduction was based on the premise that the land to be expropriated ceased to be used for agricultural purposes and that the negative results of such a change had to be offset by the owners.
The Constitutional Court observed that the nature of expropriations carried out in this context did not differ from expropriations effected for the purposes of public use, regardless of the fact that an expropriation was effected in proceedings different from ordinary expropriation proceedings. Hence, the provisions of the Constitution as they stood at that time and insofar as they provided for the protection of the right to the peaceful enjoyment of possessions were applicable to such expropriations. The Constitution allowed for the expropriation of private properties only for the purposes of public use and only against compensation. Compensation, in order to comply with constitutional requirements, had to be just and fair. The notion of fair compensation, including for expropriation carried out at the request of the owner and in his or her interest, had to be in the amount corresponding to the value of the expropriated property. Only compensation satisfying these conditions was in compliance with the nature and purpose of the obligation of the public authorities to compensate an owner whose property was expropriated. Any restrictions on the right to a fair compensation, including by way of reductions of its amount, was in breach of constitutional principles.
32. On 1 January 1998 the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the 1997 Land Administration Act”) entered into force. Pursuant to section 112 of that Act, expropriation consists in taking away, by way of an administrative decision, of ownership or of other rights in rem. Expropriation can be carried out where public interest aims cannot be achieved without restriction of these rights and where it is impossible to acquire these rights by way of a civil law contract.
33. Under section 113 an expropriation can only be carried out for the benefit of the State Treasury or of the local municipality.
34. In accordance with section 128 § 1 of the Act, expropriation can be carried out against payment of compensation corresponding to the value of the property right concerned. Under section 130 § 1 of the Act, the amount of compensation shall be fixed, regard being had to the status and value of the property on the day on which the expropriation decision was given. The value of property shall be estimated on the basis of an opinion prepared by a certified expert.
35. Section 131 provides that a replacement property can be awarded to the expropriated owner, if he or she so agrees.
36. Pursuant to section 132, compensation shall be paid within fourteen days from the date on which the expropriation decision becomes subject to enforcement.
37. The question of expropriation of land for the purposes of road construction is regulated in that Act. Section 93 § 1 of the Act provides that the division of an estate into smaller plots is possible only when the division proposed by the owner is compatible with the local land development plan. Under § 3 of this section, a decision on the division can not be given if the plots resulting from the division would have no access to a public road. Access to a public road is also deemed to be available if a plot has access to an internal road.
38. Until 15 February 2000 section 98 of the Act read as follows:
1. Plots of land designated for the construction of roads in an administrative decision on the division of property shall be expropriated ex lege on the date on which such a division decision becomes final. (...)
3. The compensation due for such plots shall be established by way of negotiation between the expropriated owner and the relevant public authority; if negotiations fail, compensation shall be determined according to the principles applicable in respect of land expropriation.
39. On 15 February 2000 amendments to this Act came in force. Following these amendments, the text of subsection (1) read as follows:
“1. Plots of land designated in a decision on the division of property for the construction of public roads, such as municipal, county, regional and national roads shall be expropriated ex lege on the date on which such a division decision becomes final. (...) “
40. In a legal opinion of 29 May 2003, prepared for a different case from that of the applicants', the Central Urban Development Office stated that section 78 of the Land Administration Act in its version applicable until 15 February 2000 was a legal basis for the expropriation ex lege of all land designated for road construction purposes under decisions on the division of properties, regardless of whether these roads were of a public character or were to be considered internal roads, on the date when such decisions became final.


ITEMID: 001-57447
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1987
DOCNAME: CASE OF BOZANO v. FRANCE (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: C. Russo
TEXT: 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 14 March 1985. It originated in an application (no. 9990/82) against the Republic of France lodged with the Commission on 30 March 1982 by Mr. Lorenzo Bozano, an Italian national.
2. In its judgment of 18 December 1986, the Court held that there had been a violation of Article 5 § 1 (art. 5-1) of the Convention. The applicant's deprivation of liberty in the night of 26-27 October 1979, while the police were forcibly conveying him by car from Limoges to the Swiss border, had been neither "lawful" nor compatible with the "right to security of person"; it "amounted in fact to a disguised form of extradition designed to circumvent the negative ruling of 15 May 1979" by the appropriate court "and not to 'detention' necessary in the ordinary course of 'action ... taken with a view to deportation'" (Series A no. 111, pp. 22-27 and 29, §§ 53-60 of the reasons and point 4 of the operative provisions).
There remains only to be settled, in part, the question of the application of Article 50 (art. 50) in the present case. As regards the facts, reference should be made to the judgment previously cited (pp. 8-16, §§ 11-37), and the Court will confine itself here to giving a few essential particulars.
3. The applicant was extradited to Italy from Switzerland on 18 June 1980 and is now on the island of Elba serving a sentence of life imprisonment passed on him in absentia by the Genoa Assize Court of Appeal on 22 May 1975 (ibid., pp. 9 and 12, §§ 14 and 27).
Through his counsel, Mr. Bozano asked the Court, in his main submission, to recommend the French Government ("the Government") to approach the Italian authorities through diplomatic channels, with a view to securing either a presidential pardon or a reopening of the criminal proceedings taken against him; he also sought, for his wife and himself, compensation for material and non-material damage - assessed at more than 3,300,000 French francs (FF) - allegedly sustained by them as a result of the detention already undergone and, "if the Court disallowed their main claim ..., compensation - in excess of 17,000,000 FF - for future material and non-material damage in respect of the years still to be spent in prison by him", and "144,000 FF in respect of the costs of the proceedings, less the sums paid in legal aid by the Commission and the Court" (ibid., p. 28, §§ 65-66).
In the judgment of 18 December the Court rejected, firstly, the applicant's main claim, as being unconnected with the subject-matter of the dispute, and, secondly, the claims made on Mrs. Bozano's behalf, as she did not have the standing of an applicant (ibid., pp. 28-30, §§ 65-66 of the reasons and point 7 of the operative provisions). The Court reserved the remainder of the question of awarding just satisfaction, ruling that it was not ready for decision, and it invited the Government to submit their observations in writing within two months and, in particular, to notify the Court of any agreement they might reach with the applicant (ibid., pp. 29-30, § 66 in fine of the reasons and point 8 of the operative provisions).
4. All attempts at reaching such an agreement having failed, the Registrar received pleadings from the Government, the lawyers for the applicant and the Delegate of the Commission on 23 February, 23 March and 11 May 1987 respectively.
5. At the final deliberations on 27 November 1987, Mrs. D. Bindschedler-Robert and Mr. F. Gölcüklü, substitute judges, replaced Mr. Cremona and Mr. Gersing, who were unable to attend (Rules 22 § 1 and 24 § 1 of the Rules of Court). The Court decided that in the circumstances there was no need to hold a hearing.


ITEMID: 001-61826
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF S.C. v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: 7. The applicant was born in 1988 and lives in Merseyside.
8. The facts of the case, as submitted by the parties, may be summarised as follows.
9. In June 1999 the applicant, who had just turned 11, and a 14-year-old boy called “L.A.”, approached an 87-year-old woman in the street. The applicant attempted to take the woman's bag, causing her to fall to the ground and fracture her left arm. The applicant ran away and L.A. stayed with the victim. The applicant was charged with attempted robbery. His defence was that he had acted under duress, having been threatened by L.A.
10. In July 1999, in connection with other offences, he was given a two-year supervision order and was remanded to the care of the local authority and placed with foster parents.
11. In August 1999 the Youth Court, looking at the applicant's offending history, which included offences of robbery, burglary, theft and arson, considered that it might be appropriate to impose a custodial sentence if he were convicted of the attempted robbery, and committed him for trial in the Crown Court. After committal, the applicant's legal representatives obtained two expert reports. The first report was prepared by Dr Ronan Brennan, an adolescent forensic psychiatrist, who was able to talk to the applicant for twenty minutes in September 1999 before the latter terminated the interview. The applicant was also seen by Diane Baines, a consultant clinical psychologist, on 11 October 1999.
12. In his report Dr Brennan observed, inter alia:
“Mental state examination
[The applicant] sat motionless in the chair throughout my brief interview. He appeared distracted and frequently asked me to repeat my questioning claiming that he could not understand me. He appeared defensive when questioned regarding family circumstances and was vague about his past schooling. He appeared reluctant to discuss his offending behaviour, asking me what point was there discussing it with me.
Ultimately, after repeating the statement that he was bored and wanted to eat he informed me that he would not answer any more questions and wanted to leave. Since it was clear that he was resistant to further questioning or probing I consented to his wish.
Impression
It has been extremely difficult to form a detailed impression of this young man's problems and needs by virtue of his unwillingness to enter into the assessment process and a failure to obtain collateral information regarding his personal development and family background.
It is evident from the limited information available that [the applicant] has exhibited a behaviour disturbance from an early age which has resulted in restricted academic progress and alienation from his peers. ... [The applicant's] persistent pattern of disruptive and socially inappropriate behaviour would be consistent with a diagnosis of conduct disorder of the unsocialised type.
It would appear from Diane Baines's psychological report ... that [the applicant] has a significant degree of learning difficulties. He has a full scale IQ of 56 (0.2nd centile), a verbal IQ of 63 (1st centile) and a performance IQ of 55 (0.1st centile). These scores would be consistent with his academic underachievement and could be viewed as a consequence of his disrupted schooling. Diane Baines notes that with [the applicant's] cognitive abilities being more consistent with a child of 8 rather than 11, his 'ability to reason is noticeably restricted'. ...
It is clear that [the applicant] has complex needs which should ideally be addressed under the provisions of a care order for the foreseeable future. ...
It is conceivable that, if a coordinated package of care fails to meet [the applicant's] complex educational and emotional needs, he will potentially pose a high risk of reoffending. At this time however I believe that a long term care order, with a stable foster placement and an appropriate educational package should be considered if an alternative to a custodial sentence were felt viable.
Recommendations
1. It is difficult to assess issues concerning [the applicant's] fitness to plead since his discussion of the offence with me was limited. However, based on the information available to me and the findings of the psychological testing I would conclude that [the applicant] on balance was aware of his actions and that they were wrong. His understanding of their consequences however may have been adversely affected by his learning difficulties and impaired reasoning skills. Overall I would consider that [the applicant] is sufficiently capable of entering a plea though obviously the court process would have to be explained carefully in a manner commensurate with his learning difficulties.
2. [The applicant] should be placed on a Supervision Order for as long as possible with a plan to address his emotional and educational needs and reduce his offending behaviour.
3. Long-term foster care should in my opinion be considered in preference to a custodial sentence if this were deemed possible.
4. A copy of Diane Baines's report should be forwarded, with her consent, to [the applicant's] school in order to devise an appropriate educational package to meet his complex needs.”
13. Diane Baines's report, dated 18 October 1999, states as follows:
“[The applicant] was seen in the company of his Youth Justice Worker in the outpatient department. He was friendly and cooperative with a reasonable attention span in the individual setting. He generally understood what was required of him although some explanations required repetition and he occasionally needed encouragement to persevere. ...
[The applicant] was given the WISC-III [Wechsler Intelligence Scale for Children - 3rd edition), which looks at the development of reasoning skills as applied to both verbal and non verbal problem solving. ... [O]verall, [the applicant] is presenting with a significant degree of learning delay. His Verbal IQ is slightly higher than his Performance IQ, but both fall at or below the first percentile.
On the Verbal Scale, [the applicant] gained a score that was only just outside the average range on Digit Span, indicating reasonably good rote memory skills. Consistent with this was his ability to carry out the mental calculations for Arithmetic. His scores on the remaining subtests were more significantly below average, reflecting poorly developed verbal reasoning skills. He found it particularly difficult to define words for Vocabulary, which he did to the level expected of most children aged about 6 years old.
In general, [the applicant] experienced more difficulty with the Performance Scale subtests than with those that were language based. His age equivalents on this Scale ranged from below 6 years 2 months at the lowest to 6 years 6 months at the highest. His approach to tasks that were reliant on the appreciation of visuo-spatial relationships was noticeably immature and he did not always attend to the relevant features.
[The applicant's] attainments in literacy were looked at using the WORD [Wechsler Objective Reading Dimensions] and it was found that his ability to read and spell individual words out of context were both at levels that would be predicted from his general intelligence. He coped less well than expected with the Reading Comprehension section but this should be interpreted in the context of his disrupted educational career.
Summary
[The applicant] is currently presenting with a significant degree of learning difficulty that is most apparent in his ability to carry out visually based tasks. ... If looked at in terms of age equivalents, [the applicant's] cognitive abilities cover a range from below 6 years 2 months up to 8 years 2 months, which will mean that his ability to reason is noticeably restricted. ...”
14. There was a pre-trial hearing in December 1999. The applicant's counsel relied on Articles 3 and 6 of the Convention and argued that the trial should be stayed as an abuse of process because of the applicant's low attention span and educational age, which meant that he would be unable fully to understand and participate in the trial. This submission was rejected by the judge, who ruled, inter alia:
“I do not accept that placing [the applicant] on trial in the Crown Court amounts to inhuman or degrading treatment or will be unfair. Following the procedures now habitually adopted in Crown Courts when trying children, the trial before the jury will be conducted in as informal a manner as is consistent with the requirements of a fair trial. Legal wigs and robes will not be worn. The issue before the jury will be a simple one. There is no reason to think that [the applicant] will be any less able to give his evidence to the jury than to the Youth Court. On the material before me he appears to be a 'streetwise' child, whose intellectual impairment is largely the result of spending two of his critical formative years outside the education system.
I questioned whether there is felt to be a public interest in proceeding with the prosecution, having regard to the fact that [the applicant] is already subject to a two-year supervision order for offences including robberies. I was told that since that order was made on 1 July 1999 (at which time [the applicant] was also taken into local authority care), he has committed (and admitted) a number of other offences. He was placed with foster parents, who in September felt (according to Dr Brennan's report) that he was making some progress. Now, they are unwilling to keep him, finding him uncontrollable. In these circumstances it is entirely understandable that the Crown wish to proceed with the prosecution.
Mr Gow also wished to take the point at trial that [the applicant] is unfit to plead. This argument is not supported by Dr Brennan's written report, but I was told that in a subsequent conference with counsel Dr Brennan was equivocal on this point and his oral evidence might support it, although he has not seen [the applicant] since September (when the boy was uncooperative anyway). No supplementary written report has been served. Mr Gow has overlooked the fact that the evidence of two medical practitioners would be needed before a jury could be invited to find his client unfit to plead; also that Mrs Baines is not a medical practitioner. He asked me to vacate [the] trial date to give the defence time to engage a second doctor.
I refused this application also, inviting Mr Gow to reflect on whether this point can really be pursued in the light of Dr Brennan's conclusions. If the boy is unfit to plead, then he would presumably have been unfit to plead in the Youth Court, yet the point has apparently never been suggested on his various appearances there. Since this afternoon's hearing I understand from Mr Gow that he has duly reflected and discussed the matter with his instructing solicitors, and does not now intend to pursue the issue of fitness to plead. The trial will therefore proceed on the merits, the issue being duress. ...”
15. At the hearing in December 1999, which lasted one day, the applicant was accompanied by his social worker. He was not required to sit in the dock and the court took frequent breaks and dispensed with the formality of wearing wigs and gowns. The Crown case consisted of two written statements (by the victim of the alleged crime and the arresting police officer) and the oral testimony of two eyewitnesses. The applicant gave evidence that he had committed the offence under duress, and Diane Baines also gave evidence consistent with her report.
16. The applicant was convicted and sentenced to two and a half years' detention.
17. He appealed to the Court of Appeal, inter alia, on the grounds that he had been deprived of a fair trial in view of his age and impaired intellectual capacity. The applicant advanced new evidence before the Court of Appeal, including a statement by the applicant's supervising social worker, who had been with him in the Crown Court, and who said, inter alia:
“To address [the applicant's] first appearance [in the] Crown Court, the court was attired in full regalia and [the applicant] was totally perplexed at the rigid formality and surroundings of the Crown Court, and it is my opinion that he did not fully understand the situation.
... [A]t his trial I was pleased to see that the Court was dressed in mufti. Whilst the jury was being sworn in [the applicant] asked me who they all were. I explained in as simple language [sic] a boy of 11 years should understand, that they were members of the public who would have the duty of finding [the applicant] not guilty or guilty.
He then said if they were the public why could not his mother sit there to help him. [The applicant] did not have a member of his family in attendance despite efforts made by myself.
Whilst the trial was taking place [the applicant] kept turning around to talk to myself asking what was happening. [The applicant] has an extremely short attention span and it is my opinion that his lack of understanding of the formalities of the Crown Court led to the jury observing what could have been misinterpreted as bad behaviour and a 'could not care less' attitude.
I believe this also antagonised some jury members when [sic] I observed watching [the applicant] closely. Even when the sentence was passed [the applicant] again did not understand what had been passed or where he was being placed.
[The applicant] was under the impression that he would be returning to his foster/remand placement with [his foster father], who was present at Crown Court. Despite my efforts to explain the situation to him [the applicant] did not comprehend the situation he was in. When he was taken to the holding cells awaiting escorts I took time to try again to explain the consequences of his trial and sentence but he was still confused.”
18. On 19 June 2000 the applicant's appeal was dismissed by the Court of Appeal, which refused leave to argue the abuse of process/unfair trial ground, holding that it was clear that the first-instance judge, in exercising his discretion to allow the trial to proceed, had taken account of the applicant's age, level of maturity and intellectual and emotional capacities, and that steps had been taken to promote the applicant's ability to understand and participate in the proceedings. The Court of Appeal also rejected the application for leave to appeal against the sentence imposed. It noted, from a comprehensive report prepared by the unit where the applicant was detained, that there had been great improvements in both the applicant's behaviour and his work and considered that, given the long period of instability in the applicant's life, a settled period of support and education of the kind he was now receiving must be in his best interests.
19. Under section 50 of the Children and Young Persons Act 1933 as amended by section 16(1) of the Children and Young Persons Act 1963 (“the 1933 Act”), the age of criminal responsibility in England and Wales is 10 years, below which no child can be found guilty of a criminal offence.
20. Pursuant to section 24 of the Magistrates' Courts Act 1980, children and young persons under 18 must be tried summarily in the Magistrates' Court, where the trial usually takes place in the specialist Youth Court, which has an informal procedure and from which the general public are excluded. The exceptions are children and young persons charged with murder, manslaughter or an offence punishable if committed by an adult with fourteen or more years' imprisonment, who are tried in the Crown Court before a judge and jury.
21. Under section 44 of the 1933 Act, every court dealing with a child (under 14) or young person (under 18), whether as an offender or otherwise, must have regard to his or her welfare.
22. On 16 February 2000, following the Court's judgments in T. v. the United Kingdom ([GC], no. 24724/94, 16 December 1999) and V. v. the United Kingdom ([GC], no. 24888/94, ECHR 1999-IX), the Lord Chief Justice issued a practice direction concerning the trial of children and young persons in the Crown Court. This practice direction, which was not, however, in force at the time of the applicant's trial, states as follows:
“1. This practice direction applies to trials of children and young persons in the Crown Court. Effect should be given to it forthwith. In it children and young persons are together called 'young defendants'. The singular includes the plural and the masculine includes the feminine.
2.
The overriding principle
3. Some young defendants accused of committing serious crimes may be very young and very immature when standing trial in the Crown Court. The purpose of such trial is to determine guilt (if that is an issue) and decide the appropriate sentence if the young defendant pleads guilty or is convicted. The trial process should not itself expose the young defendant to avoidable intimidation, humiliation or distress. All possible steps should be taken to assist the young defendant to understand and participate in the proceedings. The ordinary trial process should so far as necessary be adapted to meet those ends. Regard should be had to the welfare of the young defendant as required by section 44 of the Children and Young Persons Act 1933.
Before trial
4. If a young defendant is indicted jointly with an adult defendant, the court should consider at the plea and directions hearing whether the young defendant should be tried on his own and should ordinarily so order unless of the opinion that a joint trial would be in the interests of justice and would not be unduly prejudicial to the welfare of the young defendant. If a young defendant is tried jointly with an adult the ordinary procedures will apply subject to such modifications (if any) as the court may see fit to order.
5. At the plea and directions hearing before trial of a young defendant, the court should consider and so far as practicable give directions on the matters covered in paragraphs 9 to 15 below inclusive.
6. It may be appropriate to arrange that a young defendant should visit, out of court hours and before trial, the courtroom in which the trial is to be held so that he can familiarise himself with it.
7. If any case against a young defendant has attracted or may attract widespread public or media interest, the assistance of the police should be enlisted to try to ensure that a young defendant is not, when attending for the trial, exposed to intimidation, vilification or abuse.
8. The court should be ready at this stage (if it has not already done so) to give a direction under section 39 of the Children and Young Persons Act 1933 or, as the case may be, section 45 of the Youth Justice and Criminal Evidence Act 1999. Any such order, once made, should be reduced to writing and copies should on request be made available to anyone affected or potentially affected by it.
The trial
9. The trial should, if practicable, be held in a courtroom in which all the participants are on the same or almost the same level.
10. A young defendant should normally, if he wishes, be free to sit with members of his family or others in a like relationship and in a place which permits easy, informal communication with his legal representatives and others with whom he wants or needs communication.
11. The court should explain the course of proceedings to a young defendant in terms he can understand, should remind those representing a young defendant of their continuing duty to explain each step of the trial to him and should ensure, so far as practicable, that the trial is conducted in language which the young defendant can understand.
12. The trial should be conducted according to a timetable which takes full account of a young defendant's inability to concentrate for long periods. Frequent and regular breaks will often be appropriate.
13. Robes and wigs should not be worn unless the young defendant asks that they should or the court for good reason orders that they should. Any person responsible for the security of a young defendant who is in custody should not be in uniform. There should be no recognisable police presence in the courtroom save for good reason.
14. The court should be prepared to restrict attendance at the trial to a small number, perhaps limited to some of those with an immediate and direct interest in the outcome of the trial. The court should rule on any challenged claim to attend.
15. Facilities for reporting the trial (subject to any direction given under section 39 of the Act of 1933 or section 45 of the Act of 1999) must be provided. But the court may restrict the number of those attending in the courtroom to report the trial to such a number as is judged practicable and desirable. In ruling on any challenged claim to attend the courtroom for the purpose of reporting the trial the court should be mindful of the public's general right to be informed about the administration of justice in the Crown Court. Where access to the courtroom by reporters is restricted, arrangements should be made for the proceedings to be relayed, audibly and, if possible, visually, to another room in the same court complex to which the media have free access if it appears that there will be a need for such additional facilities.
16. Where the court is called upon to exercise its discretion in relation to any procedural matter falling within the scope of this practice direction but not the subject of any specific reference, such discretion should be exercised having regard to the principles in paragraph 3 above.
Appeal and committals for sentence
17. This practice direction does not in terms apply to appeals and committals for sentence, but regard should be paid to the effect of it if the arrangements for hearing any appeal or committal might otherwise be prejudicial to the welfare of a young defendant.”
23. An accused is “unfit to plead” if by reason of a disability, such as mental illness, he has “insufficient intellect to instruct his solicitors and counsel, to plead to the indictment, to challenge jurors, to understand the evidence, and to give evidence” (R. v. Robertson 52 Criminal Appeal Reports 690). The question whether or not a defendant is fit to plead must be decided by a jury upon the written or oral evidence of at least two medical experts. Where a jury has found the defendant unfit to plead, either the same or another jury may be required to proceed with the trial and decide whether the accused did the act or made the omission charged against him as the offence, in which case the court may make a hospital order against him (Criminal Procedure (Insanity) Act 1964, sections 4, 4A and 5). Alternatively, the trial may be postponed indefinitely until the accused is fit to plead.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22547
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: L'ALIK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Milan Ľalík, is a Slovakian national, who was born in 1953 and lives in Bratislava. He is represented before the Court by Mrs E. Ľalíková, a lawyer practising in Bratislava.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a Supreme Court judge. Pursuant to Section 19 of Act No. 420/1991 on Remuneration of Judges and Trainee Judges, judges’ pay is to be adjusted proportionally to the actual increase or decrease in the average salary of persons employed within the national economy where such an increase or decrease exceeded ten per cent in the course of the preceding calendar six months.
On 22 March 1999 the National Council of the Slovak Republic adopted Act No. 57/1999. It introduced an amendment to the Remuneration of Judges and Trainee Judges Act of 1991 in that the procedure of adjustment of the pay of judges provided for in Section 19 was not to be applied during the period from 1 April 1999 to 31 December 1999. As a result, the applicant’s pay was not adjusted, leading to an earning difference of approximately 15,000 Slovakian korunas.
By virtue of Act No. 57/1999, a similar adjustment of the remuneration of the President of Slovakia, of the members of the National Council and of the Government, of the constitutional judges as well as of other high ranking public officials was also suspended for the same period.
On 2 July 1999 a group of Members of Parliament filed a petition to the Constitutional Court in which they alleged that the above amendment was contrary to the Constitution and that it risked undermining the independence of judges. The representative of the National Council submitted written observations on the petition which stated, inter alia, that the suspension complained of was a part of comprehensive restrictive measures affecting the whole national budget which were adopted upon the proposal of the Government with a view to remedying the adverse economic situation. Furthermore, the suspension extended to all public officials whose remuneration was to be adjusted in accordance with the same principle.
The Constitutional Court dismissed the petition on 4 July 2000. The decision stated that the amendment in question did not jeopardise the independence of judges, and that the Constitution did not exclude that the remuneration of judges be linked to and reflect the developments in the domestic economy. The provision under which the procedure to adjust the remuneration of judges in accordance with the general economic indicators was suspended did not, therefore, infringe the Constitution.