ITEMID: 001-96705
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF VANJAK v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1965 and lives in Karlovac.
5. From 5 August 1990 the applicant served as a police officer in the Karlovac Police Department (Policijska uprava karlovačka), namely as the Assistant Chief of the Ribnik sector for State border security. On 28 May 1996 he was called in to a police station by his colleagues and then questioned in connection with a suspicion that he had acted as an intermediary in procuring a forged certificate on citizenship for a certain H.Ć. In a written statement of 28 May 1996 made by the police the applicant confessed to having acted as an intermediary in procuring an illegal certificate of Croatian citizenship for H.Ć. The police also took written statements from two other persons, H.Ć. and B.J., without the applicant being present. These statements were not communicated to the applicant.
6. On 29 May 1996 the Chief Officer of the Karlovac Police Department asked that disciplinary proceedings be instituted against the applicant on suspicion that he had committed a serious breach of work discipline. This suspicion was based on a criminal complaint meanwhile lodged against the applicant, his own written confession and statements of several other individuals given before the police.
7. On 26 June 1996 disciplinary proceedings were instituted against the applicant before the Karlovac Police Department Disciplinary Court. A hearing was held on 10 October 1996 in the presence of the applicant and his counsel. At the hearing the applicant's confession of 28 May 1996 was read out. The applicant stated that he had been questioned by his colleagues in a police station about the case of H.Ć. The questioning had lasted the whole night, and at the end he had signed the statement because he had not wanted to be questioned any longer. The applicant further stated that he knew H.Ć. but that he had not participated in any dealings concerning his certificate of citizenship. He also explained that immediately afterwards he had lodged an objection on his questioning with the officer on duty. In his closing arguments the applicant's defence counsel, inter alia, objected that the statements of B.J. and H.Ć. had not been read out and that therefore the defence had no opportunity to analyse these statements because they did not know their content.
8. In a judgment of 10 October 1996 the Disciplinary Court found it established that the applicant had acted as an intermediary between H.Ć. and two other persons in order to obtain a forged certificate of Croatian citizenship for H.Ć. and that he had passed on a sum of 3,000 German Marks (DEM) from H.Ć. to a certain B.P. who had passed it on to a certain L.P., a clerk in the citizenship registry, asking the latter to make a forged certificate. The operative part of the judgment reads:
“Zdravko Vanjak ...
is guilty
because during January 1996 he took from H.Ć. ... a sum of DEM 3,000 and gave it to B.P. ..., so that the latter would act as a further intermediary in bribing L.P. ... to issue a forged certificate of Croatian citizenship in the name of H.Ć., which L.P. did on 26 January 1996,
by which he committed a serious breach of work discipline under section 82 paragraph 1(14) of the Interiors Act (Zakon o unutarnjim poslovima) and section 49 paragraph 1(11) of the Rules on employment of the employees of the Ministry of Interior of the Republic of Croatia,
Owing to which a disciplinary measure under section 87 of the Interiors Act
termination of employment
is to be applied.”
9. The judgment was based on the applicant's written statement of 28 May 1996 in which he confessed and the two other statements given to the police by H.Ć. and B.J. The applicant's contention, that he had signed the statement under duress since he had been interviewed by his colleagues for the whole night, that the notes of the interview had been amended several times and that he had been given no right such as to make a telephone call, was dismissed. The disciplinary court ordered the applicant's dismissal. The reasoning of the judgment reads as follows:
“Through a request for the institution of disciplinary proceedings submitted by the Chief of the Karlovac Police Department ... of 29 May 1996 the defendant Zdravko Vanjak was charged with a serious breach of work discipline, specified as to its factual background and legal characterisation in the operative part of this judgment.
The Disciplinary Court of the Karlovac Police Department initiated proceedings by its decision ... of 26 June 1996.
A decision by the Chief of the Police Department ... of 29 May 1996 removed Zdravko Vanjak from his duties in the Ribnik Border Police Station with effect from 29 May 1996 on account of a reasonable suspicion that he had committed a serious breach of work discipline by committing a criminal offence under Article 229 paragraph 1 of the Criminal Code of the Republic of Croatia, and that his further service would harm the interests of the service.
During the disciplinary proceedings the president of the court read aloud the written statement of Zdravko Vanjak of 28 May 1996.
In his defence Zdravko Vanjak does not accept his written statement. He adds that he was being questioned by the police, having being called on the false pretext that he was needed in connection with some customs business. They did not secure his rights such as using the telephone and so on.
He states that he knows H.Ć. but that he was not present at any dealings in connection with a certificate of citizenship or the taking of any money.
Furthermore, he retracts his written statement which he signed because he was tired of being browbeaten by his colleague policemen who questioned him, [he wanted them] to cease psychologically ill-treating him.
For example, the record of the interview reads that his superior was present, which is untrue because his superior entered [the interview room] for a few minutes only and then immediately left and he did not see him again that day, nor was he present when he signed the written statement.
He also adds that immediately after the interview he drew up a statement concerning the circumstances of the investigation and submitted it to an officer.
In defence of defendant Zdravko Vanjak, his counsel H.K. pointed to grave breaches of procedure, since the statement and records of interviews with the police were admitted as evidence. He also objected that a criminal complaint against the defendant was taken as proof that he had committed [the offence] he has been charged with.
After deliberations and voting the Disciplinary Court dismissed the objections by the defence.
During the proceedings the Disciplinary Court consulted the written statements given by B.J. and recorded under no. 511-05-04/2-4-96 on 28 May 1996; by Zdravko Vanjak recorded under no. 511-05-04/2-4-96 on 28 May 1996; by H.Ć. recorded under no. 511-05-04/2-4-96 on 28 May 1996 and also a criminal complaint against Zdravko Vanjak, no. 511-05-04/2-K-65/96f 28 May 1996.
H.Ć. was not invited to the hearing because his permission to stay in Croatia had been terminated by a decision ... of 28 May 1996, upheld by a decision no. ... of 28 June 1996. [A measure of] prohibition of entry [on the territory of] Croatia has been applied for the period of five years.
After the assessment of all relevant facts established in the proceedings the panel of the Disciplinary Court established that the defendant Zdravko Vanjak is guilty of a serious breach as set out in the operative part of the judgment.
By such conduct the defendant violated existing laws and rules of service since he had committed acts irreconcilable with the police service.
While assessing the disciplinary measure [to be applied] the panel of the Disciplinary Court took as aggravating the fact that the defendant had already been disciplinary punished.
In view of the above, it has been decided as set out in the operative part of the judgment.”
10. On a subsequent appeal by the applicant against the judgment of 10 October 1996, the Appellate Disciplinary Court of the Ministry of Interior (Drugostupni disciplinski sud Ministarstva unutarnjih poslova Republike Hrvatske) upheld the first instance judgment on 3 December 1996 but altered the qualification of the offence finding that the act in question constituted an offence under Section 82 paragraph 1 (13 and 17) of the Interiors Act which refer to inappropriate conduct, rather than paragraph 1(14), on the ground that:
“... no one, including the defendant, can be considered liable for a criminal offence as long as [his or her liability] has not been established in a final judgment (Article 28 of the Constitution).”
11. The applicant then lodged a complaint against the disciplinary courts' judgments with the Administrative Court (Upravni sud Republike Hrvatske) whereby he complained, inter alia, of the fact that the statements given to the police could not have served as evidence in the disciplinary proceedings against him. He also complained that he had no access to the evidence relied on by the disciplinary courts, namely the statements given by two persons to the police. The complaint was dismissed on 6 May 1998 on the ground that in the disciplinary proceedings it had been established that the applicant had committed the offence in question and that the use of the impugned statements had been correct.
12. On 24 June 1996, i.e. parallel to the institution of the disciplinary proceedings, the Karlovac State Attorney's Office (Općinsko državno odvjetništvo u Karlovcu) lodged a request that an investigation be opened against the applicant and three other individuals on a suspicion that they had acted as intermediaries between H.Ć. and a clerk of the registry of citizens, passing a sum of DEM 3,000 to the latter in order to issue a certificate of Croatian citizenship for H.Ć. and thus committed a criminal offence under Article 348 paragraph 1 of the Criminal Code in connection with Article 37 of the Criminal Code.
13. During the investigation the suspects and a witness were heard by an investigation judge. The applicant remained silent.
14. On 5 June 1998 the Karlovac State Attorney Office sought that the criminal investigation against the applicant be discontinued on the ground that the statement given by H.Ć. showed that the applicant had procured him a certificate of Croatian citizenship but that he had given no money for that to the applicant. Hence, there was insufficient evidence that the applicant had committed a criminal offence.
15. On 18 June 1998 an investigation judge of the Karlovac County Court discontinued the criminal investigation against the applicant owing to the above request of the State Attorney's Office.
16. On 1 July 1998 the applicant requested the reopening of the disciplinary proceedings against him. He argued in support of his request that the factual basis for disciplinary proceedings as well as the criminal proceedings was identical and as the latter had been discontinued due to lack of evidence there would likewise be no basis upon which disciplinary sanctions ought to be imposed.
17. On 15 July 1998 the Karlovac Police Department Disciplinary Court declared the request inadmissible, finding the fact that the criminal proceedings against the applicant had been discontinued irrelevant in respect of the decision on his disciplinary responsibility. This decision was upheld by the Disciplinary Appeal Court of the Ministry of Interior on 15 September 1998.
18. The applicant then lodged a complaint with the Administrative Court which was dismissed on 20 April 2000. His subsequent constitutional complaint was declared inadmissible on 20 December 2000 as lodged out of time.
19. On an unspecified date, following the dismissal of his administrative complaint in the disciplinary proceedings against him, the applicant lodged a constitutional complaint against the Administrative Court's judgment of 6 May 1998, as well as several supplementary submissions complaining that the disciplinary proceedings against him had been unfair. He argued, inter alia, that the disciplinary courts found that he had committed a criminal offence although he had not been convicted in the criminal proceedings against him which had been discontinued. He further argued that the statement he had made to the police was not a valid evidence under domestic law and as such should have been removed and that the statements given to the police, relied on in finding him disciplinary responsible, had never been communicated to him, nor had they been produced at the hearing before the disciplinary courts.
20. On 4 February 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's complaint. The relevant part of that decision reads as follows:
“.. the Constitutional Court finds it useful to comment on the applicant's arguments concerning the legal nature of disciplinary proceedings.
First and foremost, the applicant contends that the State Attorney's Office discontinued criminal prosecution against him for lack of evidence that he had committed a criminal offence consisting in the same acts [as those serving as a basis] for the judgments [adopted] in the disciplinary proceedings. The Constitutional Court emphasises that the ground for the applicant's [disciplinary] conviction and the imposed disciplinary measure was his liability for serious breaches of work discipline under section 82 paragraph 2 (13 and 17) of the Interiors Act, and not his liability for a criminal offence.
Criminal and disciplinary liabilities are two separate [types] of liability, which have to be established in two entirely independent sets of proceedings with no mutual influence. Liability for serious breaches of work discipline may be established even without a decision of a criminal court, irrespective of the fact that a breach of working duty may at the same time amount to a criminal offence. [The purpose of] disciplinary proceedings is to establish the elements constituting a breach of work discipline. It is not necessary that at the same time the elements of a criminal offence have been satisfied, and in that respect the disciplinary liability is wider than the criminal.
Furthermore, it is to be stressed that although disciplinary proceedings are actually [by their nature] criminal proceedings sui generis, they also bear strong features of the administrative proceedings.
There is in principle a lesser risk as to the scope of possible violations of human rights in disciplinary proceedings than in criminal proceedings. Also, the consequences of disciplinary proceedings differ significantly from those of criminal proceedings. Therefore, the application of the [rules of] Code of Criminal Procedure in disciplinary proceedings is only subsidiary, as worded in section 42 paragraph 2 of the Act on Civil Servants (Official Gazette no. 27/2001): 'In the proceedings concerning a serious breach of official duty provisions of the Code of Criminal Procedure shall be applied appropriately...'. Subsidiary application of the Code of Criminal procedure means that its provisions are to be applied according to the nature of the disciplinary proceedings, that is to say that their application is neither obligatory in each instance nor they have to be applied literally.
The above is applicable in respect of the exclusion of the official notes made by the police [to be used] as evidence in criminal proceedings. The official police notes cannot serve as evidence in criminal proceedings owing to the special nature of those proceedings. However, such notes are not illegal evidence ab initio, both from the standpoint of some potential criminal proceedings or from that of disciplinary proceedings. They become illegal evidence only if actually used in criminal proceedings. Their use for other (lawful) purposes is not prohibited.”
21. Article 348 paragraph 1 of the Criminal Code (Kaznenini zakon Republike Hrvatkse, Official Gazette no. 110 of 21 October 1997) reads:
(1) Whoever gives or promises a gift or other gain to an official in order to perform an official or another act within his or her authority which he or she should not perform or to omit an official or other act which an official is obliged to do, or who acts as an intermediary at such bribing of an official shall be sentenced to imprisonment for a term from three months to three years.”
22. The relevant provisions of the Interiors Act (Official Gazette nos. 19/1991, 73/1991, 19/1992, 33/1992, 76/1994, 161/1998 Zakon o unutarnjim poslovima) read as follows:
“The following shall particularly be considered a serious breach of work discipline:
...
13. inappropriate conduct during or outside the hours of service;
14. any criminal offence incompatible with entering employment with the Ministry [of Interior];
...
17. actions incompatible with the duties of an employee of the Ministry [of Interior] ...”
“Breaches of work discipline may entail the following measures:
1. public warning,
2. a fine,
3. dismissal from work.
...”
23. The relevant part of section 42(2) of the Act on Civil Servants (Official Gazette no. 27/2001, Zakon o državnim službenicima i namještenicima) reads:
“In the proceedings concerning a serious breach of official duty provisions of the Code of Criminal Procedure shall be applied appropriately ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-86355
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ŞENOL ULUSLARARASI NAKLİYAT, İHRACAT VE TİCARET LİMİTED ŞİRKETİ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicant company is a Turkish company specialising in international highway transportation.
6. On 1 June 1992 at Trieste port the Italian police discovered thirty kilograms of heroin stashed in a lorry which had been hired by the applicant company for the purpose of transporting walnut logs from Turkey to Italy. The driver of the vehicle escaped. As soon as they found out about the incident the applicant company informed the Istanbul Police Headquarters and submitted all the documents in their possession concerning the transportation.
7. On 31 December 1992 the applicant company’s licence for international highway transportation was extended until 31 December 1994.
8. On 23 June 1994 the Ministry of Transport (“the Ministry”) revoked the applicant company’s licence pursuant to Article 53 (g) of International Highway Transportation Regulations, on account of the incident in Italy.
9. On 12 July 1994 the applicant company brought an action before the Ankara Administrative Court (“the Administrative Court”) and requested the annulment of the Ministry’s decision of 23 June 1994. It also requested the Administrative Court to grant an interim decision to suspend the execution of the Ministry’s decision.
10. The Ministry submitted written defence arguments, together with a number of supporting documents, to the Administrative Court on 12 August 1994. The Administrative Court forwarded the Ministry’s written defence arguments to the applicant company. The documents attached to the Ministry’s written defence arguments, however, were not forwarded to the applicant company but were placed in the case file of the Administrative Court.
11. On 31 August 1994 the applicant company submitted observations in response to those of the Ministry. In their observations the lawyers for the applicant company referred to a number of documents which had been appended to the Ministry’s written defence arguments of 12 August 1994 but which had not been communicated to them.
12. The applicant company’s request for the interim measure was refused by the Administrative Court on 14 September 1994.
13. On 13 April 1995 the Administrative Court dismissed the case. In the proceedings the applicant company had submitted that the drug trafficking had been carried out by the driver of the hired vehicle and that the company could not, therefore, be held responsible for the driver’s actions. In its decision the Administrative Court held, inter alia, that since the impugned transportation had been undertaken by the applicant company under its licence, it was responsible for the transportation and therefore the Ministry had acted lawfully when revoking the licence.
14. An appeal lodged by the applicant company on 13 October 1995 was dismissed by the Supreme Administrative Court on 8 October 1997.
15. On 19 October 2000 the Supreme Administrative Court refused the applicant company’s request of 6 February 1998 for a rectification of the decision. That decision was served on the applicant company on 11 December 2000.
VIOLATED_ARTICLES: 6


ITEMID: 001-92746
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF R.H. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1953.
6. In January 2002 the applicant went to a bar for a few drinks. He met his female acquaintance who was in the company of two 17-year-old girls whom he had not met before. Afterwards, they all decided to leave the bar in a taxi. They dropped off the applicant’s acquaintance at her home and continued to the applicant’s apartment. The applicant, and apparently also the girls, continued drinking and talking. According to the statement given by the applicant in the District Court (käräjäoikeus, tingsrätten), after a while he called a taxi for the girls and gave them money for the fare. He claims that the next time he heard of the girls was about four months later when the police contacted him and suspected him of a sexual offence.
7. The girls’ version of the early evening’s events was roughly the same as the applicant’s but differed considerably as concerned the events at his apartment. The girls claimed that while they were in the applicant’s apartment, he had sexual intercourse with one of the girls after she had fallen asleep, and that he attempted to rape the other one. Immediately after this had happened, the girls decided to leave. One of the girls called a taxi and the applicant gave them money for the fare. When they got home, the mother of one of the girls called the police. A police patrol came and the police interviewed the girls. The girl who alleged that she had been raped refused to see a doctor.
8. The applicant was questioned for the first time on 21 May 2002. The public prosecutor brought charges against him on 20 November 2003. The District Court held an oral hearing on 31 March 2004 at which only the applicant and the girls were heard.
9. On 5 May 2004 the District Court gave its judgment. It acknowledged that the parties’ accounts of the facts diverged greatly. The majority of the District Court judges found that the girls’ account was more reliable than the applicant’s. Their stories were coherent and consistent. It was not credible that the girls could have invented the allegations. The fact that the girl who had been raped did not see a doctor immediately after the incident was of no relevance. The applicant was convicted of sexual abuse and attempted coercion into sexual intercourse (sukupuoliyhteyteen pakottamisen yritys, försök till tvingande till samlag), sentenced to a conditional prison sentence of 8 months and 15 days and fined. One judge found the applicant’s account of the facts to be more reliable and gave a dissenting opinion.
10. By a letter dated 4 June 2004 the applicant appealed to the Appeal Court (hovioikeus, hovrätten), requesting that an oral hearing be held as he had been convicted on the basis of conflicting evidence. The girls’ testimonies before the District Court had differed from their accounts given during the pre-trial investigation and were inconsistent. The girl who claimed to have been raped had not seen a doctor after the alleged offence. Moreover, the police had started to investigate the crime as rape. However, since rape was such a serious offence the police should have arrested the applicant immediately and conducted a crime-scene investigation in his apartment. Instead, the applicant had been questioned for the first time only about four months later.
11. On 6 September 2004 the Appeal Court decided to apply the filtering procedure (seulontamenettely, sållningsförfarandet) and rejected the request for an oral hearing. It upheld the District Court’s judgment without examining the case any further.
12. By a letter dated 11 November 2004 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), complaining about the use of the filtering procedure and reiterating the grounds of appeal relied on before the Appeal Court. He referred, inter alia, to Article 6 of the Convention.
13. On 23 March 2005 the Supreme Court refused leave to appeal.
14. The filtering procedure used by the Appeal Courts is based on Chapter 26, sections 2 and 2a, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), which has been in force since 1 October 2003.
15. The Appeal Courts may filter a case, that is, uphold the District Court’
16. Section 15 of the Code of Judicial Procedure (Act no. 165/1998) provides:
“(1) The Appeal Court shall hold a main hearing regardless of whether one has been requested, if a decision on the matter turns on the credibility of the testimony admitted in the District Court or the findings of the District Court in an inspection, or on new testimony to be admitted in the Appeal Court. In this event, the evidence admitted in the District Court shall be readmitted and the inspection carried out again in the main hearing, unless there is an impediment to this.
(2) If the evidence referred to in paragraph (1) cannot be readmitted at the main hearing, the decision of the District Court shall not be changed for that part, unless the evidence for any special reason is to be assessed differently. However, a decision on a charge may be altered in favour of the defendant in a criminal case.”
17. In the filtering procedure the material to be taken into account comprises the appeal documents, the finding of the District Court as well as any possible reply.
18. The Constitutional Law Committee (perustuslakivaliokunta, grundlagsutskottet) stated in its opinion 35/2002 concerning the filtering procedure (see government bill HE 91/2002) the following:
“A fair trial requires in some situations the holding of an oral hearing at the appellate level. The consideration of a matter cannot, according to subsection 2 of the proposed section, be discontinued in the filtering procedure if a full-scale procedure is necessary for the purposes of the legal security of the parties. The appeal courts are therefore required to apply the provisions on the filtering procedure in a way that meets the requirements of basic and human rights, for example so that the decisions made when using the filtering procedure do not, in an individual case, violate the right to an oral hearing."
19. Since the introduction of the filtering procedure the Supreme Court has given numerous judgments on the applicability of the procedure. According to its case-law, a full examination and an oral hearing are necessary when the Appeal Court’s finding depended on the credibility of oral evidence. The credibility of oral statements and the evaluation of testimonies both require an oral hearing to be held.
VIOLATED_ARTICLES: 6


ITEMID: 001-95083
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KOMNATSKYY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 4. The applicant was born in 1925 and lives in Zhytomyr, Ukraine. He has been recognised as falling within Category I disabled status (the gravest one) on account of his service during the Second World War.
5. The applicant was an operative who dealt with the consequences of the Chernobyl disaster. From 1997 he was on a special priority list of persons to be allocated an apartment by the State.
6. On 31 August 2006 the Korolyovskyy District Court of Zhytomyr ordered Zhytomyr Town Council to provide the applicant with an apartment in accordance with the requirements of section 20 § 10 of the Chernobyl Victims' Status and Social Security Act (see paragraph 12 below). This decision became final. Enforcement proceedings were commenced on 28 September 2006.
7. According to the Government, in February 2008 the bailiff requested from the Korolyovskyy District Court of Zhytomyr replacement of the in-kind award conferred by the decision of 31 August 2006 with an equivalent amount of money. On 8 July 2008 the court dismissed that request. The court's reasoning is unknown, as neither the party furnished a copy of that decision. The State Bailiffs' Service appealed and the proceedings are apparently still pending before the Kyiv Administrative Court of Appeal.
8. Although the debtor was fined several times by the bailiffs, the decision of 31 August 2006 has not been enforced. On several occasions, in their replies to the relevant applicant's complaints, the State authorities gave explanations based on a lack of funds in the budget to purchase or construct new apartments and the lack of available apartments. The enforcement proceedings are still pending.
9. According to the applicant, he lives in a rented house in poor living conditions (for example, without water supply). The local press described the house as “old” and “ramshackle”.
10. The general provisions of domestic legislation on enforcement of judicial decisions are set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-18).
11. Under section 33 of the Enforcement Proceedings Act the bailiff is entitled to request proprio motu the relevant court to change the means of enforcement of a court decision if there are circumstances which preclude its enforcement by the means specified in that decision.
12. Section 20 § 10 of the Chernobyl Victims' Status and Social Security Act (adopted on 28 February 1991) provides, inter alia, that the entitled persons must be housed within one year of the date of their relevant application. Construction of houses shall be funded from the State budget.
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-61294
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF HANSEN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 10. The applicant was born in 1959 and lives in Iceland. She is the mother of two daughters, V.A, who was born in 1981, and A.A, who was born in 1982. At the time of their births the applicant was living in Reykjavik with Mr Halil Al, a Turkish citizen. The children were born out of wedlock.
11. On 13 April 1984 the couple married in Iceland. Halil Al obtained Icelandic citizenship three years later.
12. The applicant and Halil Al separated in November 1989 and Halil Al moved from the house they shared in February 1990.
13. In June 1990 Halil Al went to Turkey with the two girls for a holiday. The applicant gave her consent to allow her daughters to accompany their father to Turkey. In August 1990 the applicant received a telephone call from Halil Al, who told her that her daughters would not be returning to Iceland. From that point on Halil Al refused to communicate with the applicant. Over the following months the applicant received no information about the children or their condition in Turkey.
14. The applicant applied to the Icelandic authorities for a decree of divorce and custody of her two daughters.
15. On 11 January 1991 the Ministry of Justice issued a separation licence and provisionally granted custody of the children to the applicant.
16. On 10 April 1992 the Ministry of Justice decided that the applicant should be granted custody of the children in view of the fact that they had been living with their mother since their parents separated and that Iceland had always been their home. The Ministry based its decision on the opinion of the Reykjavik Child Welfare Committee, which made an overall assessment of the applicant’s and Halil Al’s financial situation and living conditions.
17. On the same date the Ministry of Justice issued a divorce decree, under which Halil Al was to pay the applicant maintenance for each child until the age of eighteen and the children were to have access to their father under arrangements to be determined by mutual agreement between the parents.
18. On 25 October 1991 the applicant brought an action before the Bakırköy Civil Court of General Jurisdiction (Asliye Hukuk Mahkemesi) in Istanbul in which she sought a divorce and custody of her daughters.
19. At a hearing held on 12 March 1992 V.A and A.A appeared before the court. V.A stated as follows:
“I want to remain in the custody of my father. Sophia was my mother once upon a time. She is not my mother anymore. She was bad to me. She has left us alone. She was going out with other men. I love my father.”
A.A stated:
“I want to remain in the custody of my father. Sophia was my mother once upon a time. I do not want her anymore. She has left us alone. We were frightened. She was always going somewhere. I love my father.”
20. On 12 November 1992 the Bakırköy Civil Court of General Jurisdiction declared the applicant and Halil Al divorced and granted custody of the children to the father. It considered in accordance with Law no. 2675 that the applicable law in the case was Turkish law.
21. The Civil Court considered that the children had expressed the wish to stay with their father, who tended to their emotional needs and gave them a decent education. The children had adjusted to their life in Istanbul and to their father’s environment. If they were removed from their surroundings, they would suffer psychologically and emotionally. It was therefore in the children’s best interest to remain with their father, who had sufficient income to support them and pay for their education. The Civil Court also granted the applicant visiting rights allowing her to see the children every July for thirty days.
22. The case attracted the attention of the media and the general public and a group of Turkish and Icelandic reporters were in court when it gave its decision.
23. The applicant appealed. On 23 February 1993 the Court of Cassation quashed the decision of the Civil Court on the grounds that it had failed to clarify whether the applicant had obtained Turkish citizenship and whether Halil Al had obtained Icelandic citizenship as a consequence of their marriage. It had also failed to establish whether the couple’s marriage had been recognised and certified in Turkey.
24. On 7 October 1993 the Civil Court decided not to follow the Court of Cassation’s decision. In its opinion the nationality of the couple bore no relevance to the case before it. Furthermore, the case-file revealed that the couple had been married in accordance with Icelandic law and, therefore, it was unnecessary to consider whether the marriage had been certified by the Turkish authorities.
25. On 30 March 1994 the Joint Civil Divisions of the Court of Cassation (Yargıtay Hukuk Dairesi Genel Kurulu) quashed the decision of 7 October 1993. It held that the couple’s nationality and the question whether their marriage had been recognised in Turkey were the main issues in the case. The Civil Court’s task was to clarify those facts so that it could decide on the applicable law in the light of the rules governing conflicts of laws and the provisions of Law no. 2675.
26. The case was remitted to the Bakırköy Civil Court of General Jurisdiction.
27. In a letter dated 8 February 1995 the Civil Court requested the Ministry of Foreign Affairs to inform it whether the marriage certificate issued by the Icelandic authorities on 13 December 1984 had been certified by the Turkish authorities.
28. In a letter of 18 April 1995 the Ministry of Foreign Affairs informed the Civil Court that the marriage certificate issued on 13 April 1984 by the Register of Births, Marriages and Deaths in Iceland and the divorce decree issued on 10 April 1992 by the Ministry of Justice had been certified by the Turkish Embassy in Oslo.
29. At a hearing on 20 April 1995 the applicant withdrew her divorce petition and asked the Civil Court to rule on the issue of custody.
30. In its decision of the same date the Civil Court referred to its correspondence with the Ministry of Foreign Affairs, which confirmed that Halil Al had both Turkish and Icelandic citizenship and that the applicant had not obtained Turkish citizenship as a consequence of their marriage. It dismissed the divorce petition. It held that it did not, therefore, have jurisdiction to decide the issue of custody.
31. On 28 November 1995 the Court of Cassation quashed the decision of 20 April 1995. In the opinion of the Court of Cassation, the first instance court should have decided which parent would be granted the custody of the children pursuant to the provisions of Law no. 2675 and Article 312 of Civil Code. It was necessary to determine who would have the parental authority over the children because they had been registered as “children born out of wedlock” (gayri sahih nesepli) in the Turkish Register of Births, Marriages and Deaths.
32. The case was once again remitted to the Bakırköy Civil Court of General Jurisdiction.
33. On 13 June 1996 the children were brought to the courthouse for a hearing along with fifteen other girls all wearing the same headscarves and black sunglasses as the applicant’s daughters. A group of people gathered in front of the courthouse chanting slogans and waving banners calling for the children to be allowed to remain with their father in Turkey. The applicant and her lawyers were harassed by the crowd.
34
35. At the hearing V.A stated as follows:
“I have been staying with my father for almost six years. I am happy with my father. I do not want to stay with my mother. I want to enjoy the Islamic way of life. That’s why I want to stay with my father. My mother tried to kidnap me. That’s why I do not want her. I do not want to stay with her. I am having an Islamic education. At the same time I go to a public school. I cannot say the name of the school for security reasons. I am not under the pressure of my father.”
A.A stated:
“I have been staying with my father for six years. I am happy with him. I am happy being with him. I have no worries. My stepmother Mülkiye Al is staying with us. My father takes care of us. My stepmother helps him. I do not want to see my mother. I do not want to say the name of my school. I am afraid that my mother will intervene.”
36. The applicant’s lawyer alleged that the children were under the influence of their father and not giving testimony of their own free will. He submitted that the children should undergo a psychological examination by child therapists. The court did not rule on that request.
37. Having regard to the statements of the children and other evidence before it, the Civil Court decided to award custody of the children to their father and granted the applicant visiting rights. It reached the following conclusions:
38. During the proceedings the children had stated on several occasions that they had been living with their father for six years and were happy being with him. They did not want to see their mother and feared that she might kidnap them. The case-file showed that the children had no psychological, mental or physical problems. Their father had given them sufficient financial support, they had adjusted to their father’s environment and were happy to live with him. In the light of those facts the children’s interest would best be served by their remaining with their father. However, it was also necessary to satisfy the children’s maternal needs. Therefore, having regard to the distance between Turkey and Iceland and the children’s summer holidays, the applicant should be granted visiting rights every July and August for sixty days.
39. On 18 November 1996 the Court of Cassation upheld that decision.
40. The Court of Cassation rejected an application by the applicant for rectification of the judgment on 31 March 1997.
41. The applicant brought civil proceedings against Halil Al claiming that he had abused his authority as the children’s guardian (velayetin nezi davası).
42. At a hearing held on 5 May 1998 the children appeared before the Bakırköy Civil Court of General Jurisdiction.
43. V.A stated:
“I am living with my father. He takes care of my sister and me. I do not agree to seeing my mother because I do not want to see her. I do not sympathise with my mother because she did not show any interest or concern during my childhood. I am studying at a private school. I do not want to disclose its name for security reasons. I want to remain in the custody of my father. I do not agree to my mother’s request [to see us]. I am aware that it is a criminal offence to refuse to see my mother. In 1997, I met my mother at the request of police officers. I do not have any involvement in the Kadri cult.”
A.A stated:
“I have been living with my father for eight years. My sister is also living with us. My father has always fulfilled his parental duties. My sister and I did not want to live with our mother because we were not happy with her. She never took care of us. I want to stay with my father. I am continuing my studies at a private school. I am not going to tell the school’s name. If I do, my mother might follow us. I met my mother in 1992 and 1997 because I wanted to see her. My mother forced me to testify against my father in the proceedings before the Bakırköy 8th Civil Court of General Jurisdiction.”
44. On 12 March 1992 the Bakırköy Civil Court of General Jurisdiction provisionally granted the applicant access to her children on the first and third Saturday of every month. However, she was able to see her children on only two occasions. Her subsequent attempts to have access were unsuccessful.
45. On 4 June 1992 Halil Al informed the Bakırköy Enforcement Officer (İcra Müdürü) that his daughters would be staying in Sivas between 6 June 1992 and 6 September 1992 for their summer holidays. He also communicated his addresses in Istanbul and in Sivas.
46. While staying in Sivas, Halil Al informed the Enforcement Officer that the family had prolonged their stay because V.A. was ill and that they would now be staying in Sivas until 4 October 1992.
47. In the meantime, the Magistrate’s Court (Sulh Ceza Mahkemesi) in Bakırköy acquitted the applicant, on 6 October 1992, of a charge of attempted kidnapping of the children on 17 October 1991, following a complaint by Halil Al.
48. On 12 November 1992 the Bakırköy Civil Court of General Jurisdiction dissolved the applicant’s marriage and granted custody of the children to their father and access to the applicant. Having regard to the need to satisfy the children’s maternal needs, the distance between Turkey and Iceland and the children’s summer holidays, the court held that the applicant should be granted visiting rights every July for thirty days (see, paragraph 21 above).
49. Subsequently, Halil Al requested the office of the Bakırköy Enforcement Judge (İcra Tetkik Mercii Hakimliği) to stay the execution of that decision. He submitted that the Court of Cassation had quashed the decision of the first-instance court and that, therefore, the execution proceedings should be halted. In the meantime, the applicant applied to the Bakırköy Civil Court of General Jurisdiction for access to her children since the Court of Cassation had quashed the decision of the first-instance court (see, paragraph 23 above).
50. On 30 June 1993 the Bakırköy Civil Court of General Jurisdiction provisionally granted the applicant visiting rights from 5.00 p.m. on every Friday to 5.00 p.m. on every Sunday. The court noted that the children could visit their mother in the apartment that she had rented in Istanbul.
51. Between 2 July and 10 September 1993 the enforcement officers went to Halil Al’s home eleven times. However, on none of these occasions did they manage to find him or the children. On two occasions the doorkeeper of the building told the officers that Halil Al had gone to Sivas with his daughters for a holiday.
52. The applicant filed several complaints. The Bakırköy Public Prosecutor instituted criminal proceedings against Halil Al on the ground that he had failed to comply with court orders.
53. On 19 January 1994 the Bakırköy Criminal Court of First Instance (Asliye Ceza Mahkemesi) sentenced Halil Al to three months and ten days’ imprisonment. The penalty was converted into a fine of 500,000 Turkish Liras.
54. Attempts by the applicant to see her children on 15 July 1994, 22 July 1994, 29 July 1994, 5 August 1994, 19 August 1994, 26 August 1994, 2 September 1994 and 9 September 1994 all failed. The officers did not find the children at their home on any of those dates.
55. On 16 September 1994 the enforcement officers forcibly entered Halil Al’s house and found the children’s stepmother. Halil Al arrived later. He told the officers that only V.A was at home. The officers left without taking V.A with them since A.A was not there.
56. When the officers returned to Halil Al’s house on 23 September 1994 they again found the children’s stepmother. The children and their father were absent. Halil Al again refused to comply with the access arrangements on 30 September 1994, 14 October 1994, 21 October 1994 and 25 November 1994.
57. On 10 October 1994 the Court of Cassation upheld the decision of the Bakırköy Criminal Court of First Instance of 19 January 1994 (see, paragraph 53 above).
58. On 6 January 1995, 20 January 1995, 3 February 1995, 10 March 1995, 24 March 1995 and 7 April 1995 Halil Al again failed to comply with the access arrangements. He was not found at his home on any of those dates.
59. On 14 April 1995 the applicant arrived at Halil Al’s house accompanied by enforcement officers. The children’s grandfather, who was at home, said that the children were at school but he did not know which school. The enforcement officers searched the house but could not find the children.
60. On 13 June 1996 the Bakırköy Civil Court of General Jurisdiction granted the applicant visiting rights every July and August for sixty days (see, paragraph 38 above).
61. The Bakırköy Enforcement Officer sent an official letter to Halil Al on 10 July 1996 inviting him to be present at his home on 12 July 1996 at 5.00 p.m.
62. On 11 July 1996 Halil Al requested the office of the Bakırköy Enforcement Judge to set aside the order for enforcement of access rights. On 12 July 1996 the judge rejected that request. However, the officers who visited Halil Al’s home did not manage to find the children or Halil Al.
63. In a letter of the same day Halil Al informed the Enforcement Office that V.A was in Erzurum and A.A was in Sivas for a holiday and that the applicant could visit the children in those cities.
64. On 19 July 1996 the enforcement officers were again unable to find Halil Al at his home. The doorkeeper of the building told them that the children had left home early in that morning.
65. The applicant lodged three complaints with the office of the Bakırköy Public Prosecutor on 12 July 1996, 20 August 1996 and 11 September 1996.
66. On 24 July 1996 the Bakırköy Public Prosecutor filed a bill of indictment with the Bakırköy Criminal Court of First Instance, accusing Halil Al of non-compliance with court orders.
67. In a letter of 26 July 1996 the Bakırköy Enforcement Officer informed the local police station of a visit planned on the same date and requested a policeman to accompany the officers. In their subsequent visits a policeman accompanied the enforcement officers.
68. On 4 September 1996 the Bakırköy Public Prosecutor filed a further bill of indictment with the Bakırköy Criminal Court of First Instance, again accusing Halil Al of non-compliance with court orders.
69. When they attended the premises on 13 September 1996 the children’s grandfather told the officers that the children had not come back from Sivas. The officers noted that the children’s beds were made.
70. On 20 September 1996 the enforcement officers did not find anyone at Halil Al’s home. A neighbour told them that she had not seen anyone come in or out of the house for a long time.
71. The applicant’s subsequent visits on 5 October 1996, 18 October 1996, 26 October 1996, 1 November 1996, 8 November 1996, 15 November 1996, 22 November 1996 and 29 November 1996 were also in vain. The children were not at their father’s home on any of those dates.
72. According to the Icelandic Government, an exceptional meeting had been arranged between the applicant and her children on 1 December 1996 following previous discussions between the Turkish and Icelandic authorities and pressure imposed on the Turkish authorities by the Icelandic Foreign Ministry and the Ambassador of Iceland to Turkey who was also present at the meeting.
73. On 7 March 1997 the Bakırköy Criminal Court of First Instance convicted Halil Al of non-compliance with court orders and sentenced him to three months and 26 days’ imprisonment.
74. In a letter of 27 March 1997 the Turkish Ministry of Foreign Affairs informed the Ministry of Justice that the applicant would be coming to Turkey on 29 or 30 March 1997 and requested it to take the necessary steps so that she could exercise her access rights without hindrance.
75. On 10 April 1997 the applicant urged the office of the Bakırköy Public Prosecutor to have Halil Al arrested.
76. On 21 August 1997 the applicant’s lawyer travelled to Divriği in the province of Sivas in order to meet the applicant’s daughters. Halil Al arrived at the meeting point with his daughters. When the children left their father they started shouting and were reluctant to travel with the applicant’s lawyer. They said that they did not want to see their mother anymore because she had never been a real mother to them. They refused to get into the car when the applicant’s lawyer told them to do so. He requested assistance from the police officers and asked if they would accompany them to Ankara. However, the police officers refused, saying that they would only escort him to the boundaries of Sivas province. The applicant’s lawyer declined to travel with the children, as he feared for their safety owing to terrorist activity in the region.
77. The applicant lodged another criminal complaint with the office of the Bakırköy Public Prosecutor. On 24 September 1997 the Bakırköy Criminal Court of First Instance dismissed the applicant’s claims and acquitted Halil Al. It noted that the children had repeatedly expressed their reluctance to see their mother and stayed in friends’ houses just before the scheduled visits in order to avoid seeing her. They were not under the influence of their father and genuinely did not want to see their mother. The court held that there was no evidence on which to convict Halil Al.
78. On an unspecified date the Ministry of Justice notified the Ministry of Foreign Affairs that the applicant had been informed that she could see her children in Sivas, Ankara or Kayseri and that it would be more appropriate for her to go to one of these cities in order to satisfy the children’s maternal needs. However, the applicant had not considered visiting her children in those cities. The Ministry of Justice further emphasised that, as a general rule, a claimant should make use of the relevant legal procedures and apply to the competent authorities in order to exercise his or her access rights. In the present case, however, the applicant had not made use of the legal procedures that were available to everyone.
79. The Bakırköy Criminal Court of First Instance brought the criminal proceedings that had begun on 4 September 1996 (see, paragraph 68 above) to an end. In a decision of 13 January 1998 it convicted Halil Al of non-compliance with court orders and sentenced him to four-months’ imprisonment. The penalty was converted into a fine of 1,200,000 Turkish Liras.
80. By letters of 8 June 1998 and 8 July 1998 the Ministry of Justice requested the public prosecutors in Sivas and Divriği to take the necessary measures to facilitate the access arrangements specified in the order of the Bakırköy Civil Court of General Jurisdiction. The Ministry of Justice also informed the Ministry of the Interior that the applicant’s lawyer’s efforts to have access to her children had been hampered during the meeting of 21 April 1997 because of security concerns. It was suggested that the Ministry of the Interior take the necessary measures in order to facilitate the applicant’s meeting with her daughters the following July.
81. On 15 July 1998 the Bakırköy Criminal Court of First Instance again sentenced Halil Al to one month and five days’ imprisonment. The penalty was converted into a fine of 350,000 Turkish Liras.
82. The applicant met her daughters on 8 July 1998 for four days in Divriği. However, Halil Al did not allow his daughters to see their mother for any longer period. The applicant returned to Iceland.
83. On 27 August 1998 the applicant arrived in Divriği in order to meet her daughters. However, she was not able to see them.
84. The access rights became unenforceable when V.A reached the age of eighteen in June 1999 and A.A in October 2000, as the children were considered adults under Turkish law.
85. The relevant provisions of Law no. 2675 (Law on Private International Law and Procedural Law - Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun)
“The capacity to marry and conditions for the validity of marriage shall be governed by the legislation in force in each party’s country of origin at the time of the marriage. A marriage celebrated in the form prescribed by the legislation in force in the country where the marriage takes place shall be valid. A marriage celebrated in a consulate in accordance with the provisions of an international agreement shall be valid.
The general provisions relating to contracts of marriage shall be governed by the spouses’ national law. If the spouses have different nationalities, the legislation in force in the place where they are domiciled shall apply. If the spouses are not domiciled in the same place Turkish law shall apply.”
“The grounds for divorce and judicial separation shall be determined by the spouses’ national law.
If the spouses have different nationalities, the legislation in force where they are domiciled shall apply. If the spouses are not domiciled in the same place, the legislation in force where they reside shall apply. If the spouses do not reside in the same place, Turkish law shall apply. ”
“Affiliation proceedings shall be governed by the national law of the father. If it is not possible to determine the legislation in force under the father’s national law, the affiliation proceedings shall be governed by the national law of the mother. If it is not possible to determine the legislation in force under the mother’s national law, the affiliation proceedings shall be governed by the national law of the child.”
“The rights and duties of the mother and of a child born out of wedlock shall be governed by the legislation in force under the mother’s country of origin. The rights and duties of a father and of a child born out of wedlock shall be governed by the legislation in force in the father’s country of origin.”
“The law governing custody of the children shall be the law under which the divorce was obtained.”
86. At the material time Turkey was not a party to the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children (the Convention came into force in respect of Iceland on 1 November 1996 and in respect of Turkey on 1 June 2000) or to the Hague Convention on the Civil Aspects of International Child Abduction (the Convention came into force in respect of Iceland on 1 November 1996 and in respect of Turkey on 1 August 2000).
87. At the material time Article 137 of the Civil Code provided:
“The judge shall take the necessary provisional measures concerning, in particular, ... the protection of the children ... in a pending divorce or judicial separation case.”
88. At the material time Article 148 of the Civil Code provided:
“When issuing a decree of divorce or judicial separation the judge shall decide at the same time which parent will have custody of the children and which parent will be granted access rights.
The parent to whom custody is not given shall pay allowances for the maintenance and support of the children and exercise his or her access rights without any hindrance.”
89. Article 25 (a) of the Enforcement and Execution of Court Decisions and Bankruptcy Procedures Code (İcra ve İflas Kanunu) provides:
“The enforcement officer shall issue an enforcement order requiring access to be given as specified in the court order. In the enforcement order the enforcement officer shall specify that access must not be hindered and that a failure to comply will constitute a criminal offence under Article 341.
A person who fails to comply with access arrangements specified in the enforcement order shall be liable to prosecution under Article 341.”
90. Article 341 of the Enforcement and Execution of Court Decisions and Bankruptcy Procedures Code provides:
“A person against whom an enforcement order has been issued hides the child when required to give access or abducts the child following the enforcement of access rights shall be liable on conviction to between one and three months’ imprisonment on a complaint by the person entitled to access.”
VIOLATED_ARTICLES: 8


ITEMID: 001-92316
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SIBGATULLIN v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (victim);Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 6-3-c;Just satisfaction dismissed (out of time)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 7. The applicant was born in 1966 and lives in Nizhniy Tagil, Sverdlovsk region. He is currently serving a prison sentence in Nizhnyy Tagil.
8. In September 2001 the applicant and a certain B. were arrested on suspicion of three murders and were placed in detention. The applicant alleged that he was ill-treated while in detention. However, he did not lodge any complaints in that respect with the competent domestic authorities.
9. On 22 February 2002 the Sverdlovsk Regional Court (“the trial court”) heard the case in the presence of the applicant, his counsel Ch. and his co-accused B. The applicant submitted that B. had tried to strangle the first victim with a cord, but had not managed to do so and asked him for help. So, he had tightened the cord. Afterwards he strangled the second victim. He further maintained that the third victim was killed by his co-accused. Co-accused B. submitted that the applicant had killed the third victim with a knife.
10. The trial court considered that B.’s testimony regarding the third murder was coherent and consistent with other evidence submitted at trial and therefore deserved more credit. It found the applicant guilty of three murders and theft and sentenced him to twenty years’ imprisonment. It found B. guilty of complicity in committing the first and the second murders as well as of theft and sentenced her to fifteen years’ imprisonment. The judgment stated that the applicant and his co-accused could appeal to the Supreme Court of the Russian Federation within seven days of the date on which they received a copy of the judgment.
11. In their appeal against the judgment of 22 February 2002 the applicant and his counsel complained, in particular, that the trial court’s conclusions regarding the applicant’s guilt in the first murder were not supported by the evidence submitted at trial. The first victim had been strangled by B. and when the applicant approached her, she was already dead. The applicant’s conviction for the third murder had been based solely on B.’s testimony which was supported by nothing else but the court’s suppositions. The applicant and his counsel requested that the judgment be quashed and the case be remitted for a fresh trial. When lodging the appeal the applicant did not expressly state that he wished to take part in the appeal hearing. The applicant’s co-accused did not appeal against her conviction.
12. On 15 August 2002 the Supreme Court of the Russian Federation (“the Supreme Court”) examined the applicant’s appeal in the presence of the prosecutor and dismissed it. Neither the applicant nor his counsel were present at that hearing.
13. On 26 October 2005 the Deputy Prosecutor General of the Russian Federation lodged an application for supervisory review of the appeal decision of 15 August 2002 with the Presidium of the Supreme Court, on the ground that the applicant and his lawyer had not been properly notified of the appeal hearing of 15 August 2002 and therefore, could not attend it. He requested that the above decision be quashed and the case be remitted for a fresh appeal examination.
14. On 5 April 2006 the Presidium of the Supreme Court quashed the decision of 15 August 2002 and remitted the case for a fresh examination of the appeal. It appears that neither the applicant nor his representative were present at that hearing.
15. On 23 May 2006 the head of the detention facility in which the applicant was held received a telegram which read as follows: “Inform Sibgatullin that his case will be heard by the Supreme Court of the Russian Federation at 10 am on 29 June 2006”. On the same date the applicant read that telegram. A similar notification was also sent to the applicant’s legal counsel Ch.
16. On 29 June 2006 the Supreme Court held an appeal hearing in the absence of the applicant and his counsel. It heard the prosecutor who requested that the applicant’s conviction on three counts of murder be upheld and that the sentence imposed for theft be lifted as the prescription period had expired.
17. Having studied the materials of the case, the appeal court found, in particular, that the trial court had rightly concluded on the basis of evidence submitted at trial that when the applicant had been tightening the cord, the first victim was still alive and that therefore, he had killed her. It further confirmed the trial court’s conclusion that the applicant had also killed the third victim. The Supreme Court concluded that the trial court had correctly characterised the applicant’s actions as murders and had imposed an appropriate sentence. It upheld the applicant’s conviction for the murders, lifted his sentence in respect of theft and sentenced the applicant to nineteen years and six months’ imprisonment.
18. It does not appear from the decision of 29 June 2006 that the appeal court verified whether the applicant had been duly informed of the hearing and whether he had expressed a wish to take part in it.
19. On 4 July 2006 the applicant, who allegedly was not aware of the appeal hearing of 29 June 2006, but at some point learned that the appeal decision of 15 August 2002 had been quashed on 5 April 2006, sent additional grounds of appeal to the appeal court. On the same date he also lodged a special request for leave to appear at the appeal hearing and requested the appeal court to provide him with legal counsel.
20. Appeal courts shall verify the legality, validity and fairness of the judgment of the trial court (Article 360).
21. If a convicted person wishes to take part in the appeal hearing, he shall indicate this in his statement of appeal (Article 375 § 2).
22. Parties shall be notified of the date, time and place of an appeal hearing no later than fourteen days in advance. Whether a convicted person held in custody shall be summoned shall be decided by the court. A convicted person held in custody who expressed a wish to be present at the examination of the appeal shall be entitled to participate either directly in the court session or to state his case by video link. The court shall make a decision with respect to the form of participation of the convicted person in the court session. A defendant who has appeared before the court shall always be entitled to take part in the hearing. If persons who have been given timely notice of the venue and time of the appeal hearing fail to appear, this shall not preclude examination of the case (Article 376 §§ 2-4).
23. At the hearing the appeal court shall hear the statement of the party who lodged the appeal and the objections of the opposing party. The appeal court shall be empowered, at a party’s request, to directly examine evidence and additional materials provided by the parties in an attempt to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party (Article 377).
24. The appeal court may decide to dismiss the appeal and uphold the judgment, to quash the judgment and terminate the criminal proceedings, to quash the judgment and remit the case for a fresh trial, or to amend the judgment (Article 378).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-97114
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GERDZHIKOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13+6-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1957 and lives in the village of Rosen.
5. In 1992 the applicant was acting as a liquidator of an agricultural cooperative.
6. On an unspecified date in 1993 a preliminary inquiry was opened against him by the police in Pazardzhik. It concerned his alleged mismanagement of property of the co-operative between April and December 1992. On 2 February 1993 the police confiscated the applicant's passport. In April 1993 and in the beginning of June 1993 he was questioned.
7. On 29 June 1994 the Pazardzhik regional public prosecutor's office instituted criminal proceedings against the applicant for mismanaging the assets of the co-operative thus causing it substantial pecuniary damage.
8. On an unspecified date in 1994 the investigator to whom the case had been assigned imposed a prohibition on the applicant's leaving the country.
9. No investigative steps were taken after the opening of the criminal proceedings and the applicant was never formally charged or indicted.
10. On at least thirteen occasions between 26 September 1994 and 5 November 2003, pursuant to oral requests by the applicant to terminate the proceedings and lift the travel ban, the Pazardzhik regional public prosecutor's office sent letters to the Pazardzhik Regional Investigation Service with instructions to close, and forward to it, the applicant's case file. Apparently, those instructions were not complied with.
11. On 2 July 2004 the Pazardzhik regional public prosecutor's office terminated the criminal proceedings against the applicant, finding that the limitation period for the prosecution of the respective offence had expired in 1997.
12. On 11 November 2004 the police lifted the travel ban imposed on the applicant (see paragraph 8 above).
13. A legislative amendment that entered into force in June 2003 introduced the possibility for an accused person to request that his case be brought for trial or terminated if the investigation had not been completed within a time-limit of one or two years, depending on the charges (Article 239a Code of Criminal Procedure, as in force until April 2006). That possibility applied with immediate effect in respect of investigations opened before June 2003.
14. Under the State and Municipalities Responsibility for Damage Act of 1988 (“the SMRDA”) individuals can in certain circumstances seek damages for unlawful acts of the authorities. The Act does not mention excessive length of proceedings as a ground for an action for damages. Nor is there any practice in the domestic courts of awarding damages for excessive length of proceedings.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79889
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MASLOV v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1984 and currently lives in Bulgaria.
7. In November 1990 the applicant lawfully entered Austria together with his parents and two siblings. Subsequently, he was legally resident in Austria. His parents were lawfully employed and have meanwhile acquired Austrian nationality. The applicant attended school in Austria.
8. In late 1998 criminal proceedings were instituted against the applicant. He was, inter alia, suspected of having broken into cars, shops and vending machines, of having stolen empties from a stock ground, of having forced another boy to steal 1,000 Austrian schillings from the latter’s mother, of having beaten this boy and thereby having bruised him, and of having used a motor vehicle without the owner’s authorisation.
9. On 7 September 1999 the Vienna Juvenile Court (Jugendgerichtshof) convicted the applicant of some 22 counts of partially completed and partially attempted aggravated gang burglary (gewerbsmäßiger Bandendiebstahl), of extortion (Erpressung), of partially completed and partially attempted assault (Körperverletzung), and of the unauthorised use of a vehicle (unbefugter Gebrauch eines Fahrzeugs) committed between November 1988 and June 1999. He was sentenced to 18 months’ imprisonment, 13 of which were suspended on probation. Moreover, he was instructed to start drug therapy.
10. On 11 February 2000 the applicant was arrested and further criminal proceedings were opened against him relating to a series of burglaries committed between June 1999 and January 2000. The applicant and his accomplices were suspected of having broken into shops or restaurants, where they stole cash and goods. On 11 February 2000 the Vienna Juvenile Court remanded him in custody.
11. On 25 May 2000 the Vienna Juvenile Court convicted the applicant of 18 counts of partially completed and partially attempted aggravated burglary and sentenced him to 15 months’ imprisonment. When fixing the sentence the court noted the applicant’s confession as a mitigating circumstance, the number of offences committed as well as the rapid relapse into crime after the last conviction as aggravating circumstances. It also observed that the applicant, though still living with his parents had completely elapsed their educational influence, had repeatedly been absent from home, and had dropped out of school. It also noted that the applicant had failed to comply with the instruction to undergo drug withdrawal treatment. Consequently, the suspension of the prison term imposed by the judgment of 7 September 1999 was revoked.
12. Following the Vienna Juvenile Court’s judgment, the applicant served his prison term until 24 May 2002. He did not benefit from early release.
13. Meanwhile, on 3 January 2001 the Vienna Federal Police Authority (Bundespolizeidirektion), relying on Section 36 § 1 of the 1997 Aliens Act (Fremdengesetz 1997), imposed a ten years’ residence prohibition on the applicant. Having regard to the applicant’s convictions, it found that his further stay in Austria was contrary to the public interest. Considering the applicant’s relapse into crime after his first conviction, the public interest in the prevention of disorder and crime outweighed the applicant’s interest in staying in Austria.
14. The applicant, assisted by counsel, appealed. He submitted that the residence prohibition violated his rights under Article 8 of the Convention as he was a minor who had come to Austria at the age of six, his entire family lived in Austria and he had no relatives in Bulgaria. He also referred to Section 38 § 1 (4) of the 1997 Aliens Act, pursuant to which a residence prohibition may not be issued against an alien who has been lawfully residing in Austria from an early age.
15. By decision of 19 July 2001 the Vienna Public Security Authority (Sicherheitsdirektion) dismissed the appeal. It confirmed the Federal Police Authority’s finding.
16. On 17 August 2001 the applicant filed complaints both with the Administrative Court (Verwaltungsgerichtshof) and the Constitutional Court (Verfassungsgerichthof). He stressed that he had come to Austria at the age of six, had attended school in Austria and was not able to speak Bulgarian. He had no relatives and other social contacts in Bulgaria. Moreover, he drew attention to the fact that he was still a minor.
17. On 18 September 2001 the Administrative Court dismissed the complaint and found that the residence prohibition was justified under Article 8 § 2 of the Convention. It considered that the applicant had come to Austria only at the age of six, whereas – according to its constant case-law – Section 38 § 1 (4) only excluded a residence prohibition for aliens who had been legally resident from the age of three at the latest. Considering the gravity and the number of offences committed by the applicant, the fact that the first conviction was rapidly followed by a second one and the severity of the penalties imposed, it found that the residence prohibition did not constitute a disproportionate interference with the applicant’s rights under Article 8, despite his lengthy residence and family ties in Austria.
18. On 25 November 2002 the Constitutional Court declined to deal with the complaint for lack of prospects of success.
19. On 18 August 2003 the Vienna Federal Police Authority requested the applicant to leave Austria.
20. On 14 October 2003 the Vienna Federal Police Authority ordered the applicant’s detention with a view to his expulsion. He was arrested on 27 November 2003.
21. On 22 December 2003 the applicant was deported to Sofia.
VIOLATED_ARTICLES: 8


ITEMID: 001-67897
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF MITEV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3 with regard to the right to be brought promptly before a judge;Violation of Art. 5-3 with regard to the length of detention on remand;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1967 and lives in Sofia.
10. During the relevant period the applicant, who was addicted to drugs, was charged with numerous counts of theft. The charges concerned thefts of electric appliances, small amounts of money, small religious ceremonial objects, food, cigarettes and objects of higher value, such as icons and antiquities. More than twenty separate investigations were launched in relation to those thefts. Some of the investigations were initially instituted against an unknown perpetrator whereas in others the applicant, either alone or together with other persons, was named as the suspected perpetrator from the outset.
11. In the course of the ensuing criminal proceedings the investigations were grouped. Two sets of such grouped proceedings are relevant to the present application: one concerning petty thefts and the second concerning icons and antiquities.
12. These included eight investigations and four summary investigations, instituted between 1993 and 1996. The applicant was charged for the first time on 26 October 1993 in respect of one of the investigations. Later charges were brought in the remainder and eventually the twelve files were joined.
13. During the investigation, between 1993 and 1996, the applicant and other suspected or accused persons were interrogated numerous times, fortyfour witnesses were questioned, fifteen on-site visits were made, nine searches were undertaken and numerous expert reports were commissioned and examined (psychiatric reports, finger-print reports and accounting reports).
14. Approximately one third of these acts of investigation concerned charges under which the applicant was eventually convicted. The remainder concerned charges in respect of which the applicant was later acquitted.
15. On 27 October 1994 the competent prosecutor referred the case back to the investigator as there had been irregularities and discrepancies. The investigator concluded his work on 15 June 1995.
16. On 20 February 1996 the Sofia Prosecutor’s Office submitted an indictment to the Sofia District Court.
17. On 18 March 1996 the Sofia District Court, noting that there had been breaches of procedural rules and discrepancies as regards the value of some of the stolen objects, referred the case back to the prosecutor.
18. On 20 February 1997 the prosecutor submitted a fresh indictment.
19. On 28 February 1997 the District Court, noting that some of the defects of the indictment had not been remedied despite the instructions given in the decision of 18 March 1996 and pointing to other discrepancies, referred the case back to the prosecutor.
20. On 22 January 1998 the prosecutor again submitted an indictment.
21. On 6 February 1998 the Sofia District Court, noting that certain procedural rules concerning the modification of the charges had not been observed, referred the case back to the prosecutor once more.
22. The final version of the indictment was submitted on 19 February 1998. It concerned sixteen counts of theft allegedly committed by the applicant and two other persons.
23. Throughout the judicial proceedings the applicant and his lawyer regularly appeared when summoned and did not cause any of the adjournments.
24. The first hearing was held on 13 May 1998. The court noted that one of the co-accused persons was not legally represented whereas legal representation was mandatory in view of the contradictory interests of the three accused persons. As a result, the hearing was adjourned.
25. It resumed on 10 June 1998 but had to be adjourned as one of the accused persons had not appeared. The court ordered his arrest.
26. On 14 July 1998 the hearing proceeded with the questioning of the three accused persons. Several experts and witnesses were also heard. As some of the witnesses had not appeared, the case was adjourned.
27. At the next hearing, held on 12 October 1998, several witnesses were heard. Others had not appeared, which necessitated an adjournment.
28. The hearing scheduled for 10 November 1998 could not proceed as one of the applicant’s co-accused was ill.
29. When the hearing resumed on 7 December 1998 several witnesses were heard but an adjournment was again necessary as other witnesses had not appeared.
30. The next hearing took place on 11 February 1999. Several witnesses were heard. The failure of one witness to appear prompted another adjournment.
31. Throughout the relevant period the Sofia District Court sought police assistance for the establishment of the addresses of witnesses.
32. On 29 March 1999, at the last hearing, the Sofia District Court acquitted the applicant on nine of the charges and convicted him on the remaining seven. He was sentenced to three years’ imprisonment, suspended.
33. On 27 April 1999 the applicant appealed to the Sofia City Court.
34. The Sofia City Court listed a hearing for 13 December 1999 which, however, could not proceed as one of the accused persons did not appear.
35. The hearing took place on 10 April 2000.
36. On 12 June 2000 the Sofia City Court delivered its judgment. It accepted the applicant’s argument that the case should be treated as one concerning a continuing criminal activity and modified the conviction accordingly while upholding the sentence.
37. This second group of proceedings commenced on 26 November 1992 when the applicant was arrested and charged with theft. Other files, concerning separate thefts were opened between 1992 and 1995. The applicant was charged with having stolen icons and antiquities.
38. During the preliminary investigation ten files concerning separate thefts were joined. Eventually, however, the indictment only concerned four thefts, the other charges having been dropped.
39. Some of the investigations launched in 1992, 1993 and 1994 were suspended soon after their beginning as the perpetrators were unknown at the time. They resumed in 1996, when the applicant and other persons were charged.
40. In the course of the investigations many witnesses were heard, several accused persons, including the applicant were questioned, on-site visits and searches were made and expert reports were commissioned and examined. Apparently, only a part of those investigation acts concerned charges eventually retained. According to the applicant, the relevant investigation activity was limited to the questioning of eleven witnesses, three confrontations, six expert reports, four on-site visits and one search.
41. On 13 March 1997 the investigator completed his work and submitted the file to the competent prosecutor.
42. On 23 April 1997 the prosecutor ordered additional investigation. Those were finalised on 1 August 1997.
43. After having decided to drop one of the charges, on 10 December 1997 the prosecutor again referred the case back to the investigator who complied with the instructions and submitted a revised report on 19 March 1998.
44. On 26 June 1998 the prosecutor submitted an indictment to the Sofia City Court against three accused persons, including the applicant.
45. Throughout the judicial proceedings before the Sofia City Court the applicant and his lawyer regularly appeared when summoned and did not cause any of the adjournments.
46. The first hearing before the Sofia City Court, acting as a trial court, was listed for 13 November 1998 but could not proceed as one of the accused persons had not been summoned.
47. On 10 December 1998 and 13 January 1999 the trial could not begin as no ex officio lawyer had appeared for one of the accused, despite the court’s repeated requests to the Sofia Bar.
48. The hearing scheduled for 9 March 1999 could not proceed as one of the accused persons could not be brought from prison owing to his ill health.
49. The trial eventually began on 5 May 1999. On that day the Sofia City Court heard the accused persons and the witnesses who had appeared. As some of the witnesses had not shown up, the hearing was adjourned until 15 June 1999.
50. On that day another adjournment was ordered as certain witnesses and experts had not appeared.
51. The hearing could not proceed on 13 October 1999 as one of the accused persons, a prisoner, was not brought to the courtroom: the Minister of Justice had imposed a five-day ban on transfers of prisoners in view of municipal elections during that period.
52. On 12 November and 13 December 1999 the hearing was again adjourned as the lawyers of two of the accused persons had not appeared, apparently owing to ill health.
53. Throughout the relevant period the Sofia City Court sought police assistance for the establishment of the addresses of witnesses.
54. The last hearing took place on 23 December 1999. On that day the Sofia City Court convicted the applicant in respect of three thefts and acquitted him in respect of the fourth alleged theft. He was sentenced to ten years’ imprisonment. The two other accused persons were also convicted and sentenced to terms of imprisonment.
55. Both the applicant and the prosecution appealed to the Sofia Appellate Court.
56. The applicant’s whereabouts were unknown until 15 December 2000 when he was arrested on new charges, unrelated to the present case. As a result of the applicant’s address being unknown, the Sofia Appellate Court could not proceed with the case until January 2001.
57. A hearing was listed for 30 March 2001 but was adjourned as one of the other accused persons was not legally represented. It appears that he was unable to continue paying his lawyer, which necessitated the appointment of an ex officio counsel and therefore an adjournment.
58. On an unspecified date in 2001 the Sofia Appellate Court held a hearing which was however adjourned as the report on the value of the stolen objects had not been submitted.
59. On 8 March 2002, having received the experts’ opinion that the value of the icons could not be determined, the Sofia Appellate Court set aside the judgment of the Sofia City Court of 23 December 1999 and referred the case to the preliminary investigation stage of the proceedings. The Appellate Court found, inter alia, that there had been a number of discrepancies concerning the value of the stolen objects which affected the legal characterisation of the charges, that the lower court’s judgment had not provided sufficient reasoning and that it had relied on inadmissible evidence.
60. As of 27 March 2002, the date of the latest information received from the parties in relation to the icons and antiquities case, the proceedings were pending at the investigation stage.
61. On 26 November 1992 the applicant was arrested and remanded in custody on one of the charges which eventually resulted in the criminal case concerning thefts of icons and antiquities. On 11 January 1993 the applicant was released on bail.
62. On 26 October 1993 the applicant was arrested and detained pending trial in relation to the group of case files which eventually resulted in the petty thefts case against him. On 8 April 1994 he was released on bail.
63. On 5 August 1994 the applicant was again arrested in relation to the petty thefts set of case files, brought before an investigator or a prosecutor, charged with additional counts of theft and placed under pre-trial detention.
64. On 17 October 1994 the applicant’s petition for release was dismissed by a prosecutor.
65. On 5 January 1995 another petition for release was dismissed on grounds that the applicant was suspected of having committed offences after his release on 8 April 1994 and that therefore there existed a danger of reoffending.
66. On 27 August 1996 a request for release submitted by the applicant was dismissed by a district prosecutor. That decision was upheld on 23 September 1996 by a regional prosecutor. The applicant’s ensuing appeal was dismissed on 9 October 1996 by the Chief Public Prosecutor’s Office. The decision stated, inter alia, that the applicant was charged with numerous serious crimes and that there were other criminal proceedings pending against him. Therefore, his detention was mandatory under Article 152 § 3 of the Code of Criminal Procedure.
67. According to the applicant, on 11 March and again on 24 April 1997 he submitted to the Sofia District Court, through the prison administration, appeals against his detention. The applicant stated that he had obtained registration numbers under the outgoing correspondence register of the prison but had never been notified of any examination or decision on his appeals. According to the Government, there was no evidence supporting the applicant’s statement that he had submitted appeals in March and April 1997
68. On 12 August 1997 the applicant appealed to the Sofia District Court against his pre-trial detention. He relied, inter alia, on a legislative amendment, in force since 12 August 1997, according to which pre-trial detention pending the preliminary investigation could not exceed one or two years, depending on the gravity of the charges.
69. The District Court held a hearing on 25 September 1997 and ordered the applicant’s unconditional release. The District Court stated, inter alia, that the applicant had been diagnosed as suffering from addiction to drugs and was in need of medical treatment. Furthermore, all evidence in the case had been collected.
70. Despite the District Court’s decision of 25 September 1997 the applicant was only released on 23 October 1997 owing to a misunderstanding concerning the different cases pending against him.
71. In particular, during a certain period of time, the petty thefts case had been dealt with under investigation file number 965/94. The applicant’s initial detention order of 5 August 1994 carried that reference. When later another file, no. 415A/96, had been added to the set, the latter number had become the number of the joint file. In his appeal to the District Court of 12 August 1997 the applicant had referred to file number 415A/96, which also figured in the District Court’s decision of 25 September 1997 ordering his release.
72. That decision was transmitted to the prison administration on 25 September 1997. The prison administration, apparently noting that there existed a detention order under investigation case number 965/94 and considering that that was a separate case, concluded that the applicant should remain in pre-trial detention. No written document was issued in this respect.
73. On 17 October 1997 the applicant submitted a complaint to the District Court stating that he was still in detention. He also stated that the two file numbers concerned the same case. The complaint was registered at the District Court on 21 October 1997.
74. On 23 October 1997 the District Court wrote to the prison administration clarifying the matter. The applicant was released on the same day.
75. On an unspecified date in 1997 the applicant, assisted by a lawyer, brought before the Sofia City Court a civil action against the prosecuting authorities and the Sofia District Court claiming non-pecuniary damages for his allegedly unlawful detention between 16 August 1997, the date by which his appeal of 12 August 1997 should have been decided in accordance with the statutory three-day time-limit, and 23 October 1997, the date on which he was released.
76. After several hearings, on 14 May 2001 the Sofia City Court reserved judgment.
77. By judgment of 27 February 2003 the Sofia City Court dismissed the applicant’s claims on grounds that the period of his pre-trial detention had been deducted from the term of imprisonment to which he had been sentenced and that no compensation for non-pecuniary damage was due in such circumstances. The applicant appealed.
78. On 24 March 2004 the Sofia Appellate Court partly upheld the lower court’s judgment, quashed it for the remainder and decided on the merits.
79. The Appellate Court noted that the fact that the applicant’s request for release filed on 12 August 1997 had not been examined until 25 September 1997 was in violation of domestic law. Nevertheless, the court considered that it was not possible to speculate whether or not his release would have been ordered had his application been examined before 25 September 1997. For these reasons, the court upheld the City Court’s judgment dismissing the applicant’s claims for the period between 16 August and 25 September 1997.
80. The Appellate Court found, however, that from 26 September until the applicant’s release on 23 October 1997 his detention had not been based on any legal ground. The court did not accept the reasoning of the Sofia City Court as regards the deduction of the time spent by the applicant in detention, since that deduction had been made from a suspended sentence and, therefore, the applicant had not benefited from a shorter stay in prison. On that basis the Appellate Court ordered the Prosecutor’s Office, the body in charge of supervising the enforcement of pre-trial detention orders, to pay to the applicant 500 Bulgarian levs (“BGN”) in non-pecuniary damages for his unlawful detention between 26 September 1997 and 23 October 1997. Since the applicant’s claim had been for BGN 7,000 and he owed court fees in an amount proportionate to the dismissed part of his claims, the applicant was ordered to pay BGN 260 in court fees. The applicant was thus eventually entitled to BGN 240 in compensation (the equivalent of about EUR 120).
81. The applicant filed a cassation appeal with the Supreme Court of Cassation. As of July 2004 the proceedings were pending.
82. The relevant provisions of the Code of Criminal Procedure and the Bulgarian courts’ practice at the relevant time are summarised in the Court’s judgments in several similar cases (see, among others, the Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-62, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003XII (extracts)).
83. In June 2003 an amendment to the Code of Criminal Procedure, the new Article 239a, introduced the possibility for an accused person to have his case examined by a trial court if the investigation has not been completed within a certain statutory time-limit (two years in investigations concerning serious crimes and one year in all other investigations).
84. Section 2 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“) provides, as relevant:
“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for:
1. unlawful pre-trial detention ..., if [the detention order] has been set aside for lack of lawful grounds[.]”
85. In two recent judgments the Supreme Court of Cassation held that pretrial detention orders must be considered as being “set aside for lack of lawful grounds” – and that State liability arises – where the criminal proceedings have been terminated on grounds that the charges have not been proven (реш. № 859/ 2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС) or where the accused has been acquitted (реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС). The view taken appears to be that in such cases the pretrial detention order is retrospectively deprived of its lawful grounds as the charges were unfounded.
86. On the other hand, the Government have not informed the Court of any successful claim under section 2(1) of the Act in respect of unlawful pretrial detention orders in connection with pending criminal proceedings or proceedings which have ended with final convictions. It appears that rulings putting an end to pretrial detention in pending criminal proceedings have never been considered as decisions to “set aside for lack of lawful grounds” within the meaning of section 2(1) of the Act. Also, the terms “unlawful” and “lack of lawful grounds” apparently refer to unlawfulness under domestic law.
87. By section 2(2) of the Act, in certain circumstances a claim may be brought for damage occasioned by the “unlawful bringing of criminal charges”. Such a claim may be brought only where the accused person has been acquitted by a court or the criminal proceedings have been discontinued by a court or by the prosecution authorities on the ground that the accused person was not the perpetrator, that the facts did not constitute a criminal offence or that the criminal proceedings were instituted after the expiry of the relevant limitation period or despite a relevant amnesty. In contrast with the solution adopted under section 2(1) (see paragraph 57 above), the Supreme Court of Cassation has held that no liability arises under section 2(2) where the criminal proceedings were discontinued at the pre-trial stage on the ground that the accusation was not proven (реш. № 1085/2001 г. от 26 юли 2001 г. по г.д. № 2263/2000 г. на ВКС ІV г.о.).
88. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the State Responsibility for Damage Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.). The Government have not referred to any successful claim under general tort law in connection with unlawful pre-trial detention.
VIOLATED_ARTICLES: 13
5
6
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
5-5
6-1