ITEMID: 001-111890
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ROBATHIN v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1959 and lives in Vienna.
6. The applicant is a practising lawyer by profession. He runs his law office with a partner.
7. In 2005 criminal proceedings on suspicion of aggravated theft, aggravated fraud and embezzlement were opened against the applicant and a number of other persons by the Vienna Regional Criminal Court (Landesgericht für Strafsachen).
8. On 21 February 2006 the investigating judge issued a search warrant for the applicant’s premises. The warrant authorised the search and seizure of the following items:
“Documents, personal computers and discs, savings books, bank documents, deeds of gift and wills in favour of Dr Heinz Robathin, and any files concerning R. [name of one person] and G. [name of another person].”
9. In its reasoning, the search warrant stated that the applicant was suspected firstly of having taken furniture, pictures and silver worth more than 50,000 euros (EUR) from Mr R. in December 2003 for personal enrichment; secondly, of having induced Mr G. to sign an agreement for a secured loan of EUR 150,000 in December 2004, which Mr G. then failed to receive; and thirdly, of having abused the power of attorney granted to him by Mr R. in order to make bank transfers, causing the latter financial damage of more than EUR 50,000 in September 2003.
10. The search of the applicant’s business premises was carried out by police officers of the Federal Ministry of the Interior on 21 February 2006. The applicant, his defence counsel and a representative of the Vienna Bar Association were present. The police officers proceeded to search the applicant’s computer system, copying all files to disc. The representative of the Vienna Bar Association opposed this as being disproportionate since it was technically possible, by using appropriate search criteria, to search for and copy only those files which corresponded to the criteria set out in the search warrant. Having contacted the investigating judge, the police officers insisted on copying all files. On the proposal of the representative of the Vienna Bar Association, the police officers copied all data returned by a search for the names “R.” and “G.” to one disc and all other data to separate discs. All the discs were sealed.
11. The report drawn up by the police officers lists the following seized items: (1) laptop, (2) CDs/DVDs of R./G. data, (3) CDs/DVDs of all Robathin law office data, and (4) copies of agendas.
12. All these items were handed over to the investigating judge. Because the applicant opposed the search of the data, the Review Chamber (Ratskammer), a panel of three judges, of the Vienna Regional Criminal Court was called upon to decide whether they were to be examined or returned pursuant to Article 145 § 2 of the Code of Criminal Procedure (Strafprozeßordnung).
13. On 3 March 2006 the Review Chamber authorised the examination of all the files. It repeated that there were grounds for suspecting the applicant of the offences described in the search warrant and noted that the data in issue had been seized in the context of the preliminary investigations in respect of the applicant and other persons. A lawyer could not rely on his duty of professional secrecy and the attendant guarantees of Article 152 § 1 of the Code of Criminal Procedure when he himself was the suspect. In sum, the examination of the seized files was necessary in order to investigate the offences.
14. On 23 March 2006 the Vienna Bar Association contacted the Procurator General, suggesting that he lodge a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) in the applicant’s case. It submitted, in particular, that a search of a lawyer’s business premises risked impinging on his duty of professional secrecy.
15. Pursuant to Article 139 of the Code of Criminal Procedure, the investigating judge had to give reasons when issuing a search warrant and to describe as clearly as possible which items were to be searched for and seized. In the applicant’s case it was open to doubt whether the search warrant had accurately described which items could be seized. Generally, only a search for particular files likely to be related to the offence in issue could be authorised. The same applied to searches of electronic data. A practising lawyer was obliged by law to have at his disposal a computer system fulfilling certain standards in order to communicate electronically with the courts. In fact, most lawyers also had all their files in electronic form. Standard software for law offices allowed full-text searches for any name or word and thus made it easy to narrow the search of data. In the present case such a search had returned results and thus the search warrant did not extend to the seizure of all of the law office’s data.
16. For these reasons, the Bar Association argued that the seizure of all the data and the Review Chamber’s decision to permit the examination thereof had been excessive and therefore unlawful. The Review Chamber had failed to give any specific reasons why an examination of the data relating to Mr R. and Mr G. would not be sufficient. The applicant’s duty of professional secrecy could only be lifted in relation to the suspicion against him concerning two of his clients but not in respect of all his lawyer-client relationships. Moreover, the partner in his law office was not under any suspicion.
17. By a letter of 12 April 2006 the Procurator General informed the Vienna Bar Association that he had not found any reason to lodge a plea of nullity for the preservation of the law.
18. On 14 May 2009 the Vienna Regional Criminal Court convicted the applicant of embezzlement but acquitted him of the other charges. The court sentenced him to three years’ imprisonment, two of which were suspended on probation. On 22 December 2009 the Supreme Court dismissed the applicant’s and the public prosecutor’s pleas of nullity and on 10 March 2010 the Vienna Court of Appeal upheld the sentence. Subsequently, the applicant obtained evidence which had not been available to him at the time of the trial. He requested a reopening of the proceedings, which was granted and led to the applicant’s acquittal by the Vienna Regional Criminal Court’s judgment of 15 March 2011.
19. Articles 139 to 149 of the Code of Criminal Procedure in the version in force at the material time concerned the search of premises and persons and the seizure of objects.
20. Article 139 § 1 provided, in particular, that a search may be carried out only if there is reasonable suspicion that a person suspected of having committed an offence is hiding on the premises concerned, or that there are objects on the premises the possession or examination of which is relevant to a particular criminal investigation.
21. Pursuant to Article 140 §§ 1 and 2, a search should, in general, be carried out only after the person concerned has been questioned, and only if the person sought has not come forward of his or her own volition or the object or objects sought have not been voluntarily produced and if the reasons warranting the search were not eliminated during the questioning. No such questioning is required where delay would be detrimental.
22. Article 140 § 3 stated that a search may, as a rule, only be carried out on the basis of a reasoned search warrant issued by a judge.
23. Pursuant to Article 142 §§ 2 and 3, the occupant of the premises subject to the search or, if he is unavailable, a relative of the occupant, must be present during the search. A report is to be drawn up and signed by all those present.
24. Article 143 § 1 of the Code of Criminal Procedure provided that, if objects relevant to the investigation or subject to forfeiture or confiscation are found, they are to be listed and taken to the court for safe keeping or seized. It referred in this respect to Article 98, pursuant to which objects in safe keeping must be put into an envelope to be sealed by the court, or have a label attached so as to avoid any substitution or confusion.
Article 145 read as follows:
“1. When searching through documents, steps must be taken to ensure that their content does not become known to unauthorised persons.
2. If the owner of the documents does not want to permit their being searched, they shall be sealed and deposited with the court; the Review Chamber must determine immediately whether they are to be examined or returned.”
25. According to the courts’ case-law, which is endorsed by the opinion of academic writers (see Bertl/Vernier, Grundriss des österreichischen Strafprozessrechts, 7th edition), the provisions relevant to the search and seizure of paper documents also apply mutatis mutandis to the search and seizure of electronic data. If the owner of discs or hard drives on which data are stored objects to their being searched, the data storage devices are to be sealed and the Review Chamber must decide whether they may be examined.
26. Section 9 of the Austrian Lawyers Act regulates the professional duties of lawyers including, inter alia, the duty to maintain professional secrecy.
27. Article 152 § 1 of the Code of Criminal Procedure exempts lawyers, notaries and business trustees from the obligation to give evidence as witnesses in respect of information given to them in the exercise of their profession.
28. It is established case-law that documents which contain information subject to professional secrecy may not be seized and used in a criminal investigation.
29. Pursuant to an instruction (Erlaß) of the Federal Minister of Justice of 21 July 1972, a representative of the competent Bar Association shall be present during the search of a lawyer’s office in order to ensure that the search does not encroach on professional secrecy.
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-92699
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KOKOSHKINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture;Violation of Article 5 - Right to liberty and security
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1980 and lives in the Moscow Region.
6. On 3 October 2006 the applicant was arrested on suspicion of drug trafficking. On an unspecified date charges were brought against her and several other persons.
7. On 5 October 2006 the Podolsk Town Court of the Moscow Region remanded her in custody. It referred to the gravity of the charge and found that she might abscond, reoffend, threaten witnesses, destroy evidence or impede the investigation in some other way.
8. The applicant appealed. She submitted that she had no intention of absconding or interfering with the investigation and asked the court to release her on bail. She had a permanent place of residence and employment, positive references and a clean criminal record.
9. On 31 October 2006 the Moscow Regional Court upheld the detention order on appeal, finding that it had been lawful and justified. There was a well-founded suspicion of the applicant’s involvement in drug trafficking.
10. On 30 November 2006 the Podolsk Town Court extended the applicant’s detention until 3 February 2007, referring to the gravity of the charge, the risk of absconding, reoffending or interfering with the proceedings, and the need for a further investigation. In particular, it noted that it was necessary to listen to 126 recordings of the applicant’s phone conversations, to perform an expert analysis of those recordings, to carry out fingerprint, physico-chemical and psychiatric expert examinations, to make these expert opinions available to the defendants and counsel and to draft a bill of indictment.
11. The applicant appealed. She repeated her arguments advanced in the previous grounds of appeal and further claimed that the Town Court had not explained how she could interfere with the expert examinations or obstruct the listening to the recordings. She also submitted that her brother was terminally ill with cancer.
12. On 19 December 2006 the Moscow Regional Court upheld the extension order on appeal, finding that it had been lawful and justified.
13. On 1 February 2007 the Podolsk Town Court extended the applicant’s detention until 3 April 2007, referring to the gravity of the charge, “her active role in the commission of the crime”, her being the leader of an organised criminal group, her refusal to cooperate with the investigator and to name her accomplices, the risk of absconding, reoffending or interfering with the proceedings, and the need for a further investigation. In particular, it noted that it was necessary to listen to 123 recordings of the applicant’s phone conversations, to perform an expert analysis of those recordings, to identify other members of the organised criminal group, to find and question witnesses who might have information about the group’s activities, to verify whether the applicant was involved in the commission of other crimes related to drug trafficking, to bring final charges against her and her seven accomplices and to perform other investigative measures.
14. On 13 February 2007 the Moscow Regional Court upheld the extension order on appeal.
15. On an unspecified date the investigator applied for a further extension of the applicant’s detention, submitting that the investigation had not been completed. It was necessary to listen to fifty-one recordings of the applicant’s phone conversations, to perform an expert analysis of those recordings and make the results available to the defendants and counsel, to find and question witnesses who might have information about the group’s activities, to find one of the accomplices who had absconded, to find out whether the defendants were involved in the commission of other crimes related to drug trafficking, to bring final charges against them and to perform other investigative measures.
16. On 2 April 2007 the Podolsk Town Court extended the applicant’s detention until 3 June 2007, referring to the gravity of the charge, the need for a further investigation, and the risk that she might abscond, reoffend or interfere with the investigation. On 11 April 2007 the Moscow Regional Court upheld the extension order on appeal.
17. On an unspecified date the investigator applied for a further extension of the applicant’s detention, submitting that the investigation was still pending. In particular, an expert analysis of the recordings of the applicant’s telephone conversations had not been completed and some of the applicant’s accomplices had not been charged yet. The applicant refused to cooperate with the investigation and there was a risk that she might abscond, reoffend or put pressure on witnesses if released.
18. On 31 May 2007 the Podolsk Town Court extended the applicant’s detention until 3 October 2007. It noted that the applicant was charged with a particularly serious offence and that further investigation was necessary. The purpose of her detention was to ensure that the investigation was completed effectively and in good time and to eliminate any risk of her absconding, reoffending or hampering the proceedings.
19. In her appeal submissions the applicant complained that the court’s conclusions had not been based on relevant facts. She had a permanent place of residence and employment, positive references and a clean criminal record. There was no evidence of any attempts to interfere with the investigation, either on her part or on the part of her co-defendants who were not in custody.
20. On 13 June 2007 the Moscow Regional Court upheld the extension order on appeal.
21. On 24 September 2007 the Moscow Regional Court extended the applicant’s detention until 3 February 2008, referring to the gravity of the charges, the need for a further investigation and the risk of her absconding or interfering with the investigation.
22. The applicant appealed. In her grounds of appeal she complained, in particular, that the length of her detention had exceeded a “reasonable time”, contrary to 5 § 3 of the Convention. She submitted that all evidence had been already collected and the investigation completed, save for certain purely administrative formalities. She further claimed that the Regional Court’s conclusion that she might abscond or interfere with the investigation had been hypothetical and had not been supported by relevant facts. The court had disregarded her arguments that she had a permanent place of residence and employment, positive references, a clean criminal record and a terminally ill brother. She also complained about inhuman conditions of her detention, in particular overcrowding, insufficient number of sleeping places and poor sanitary conditions. She asked the court to apply a more lenient preventive measure.
23. On 30 November 2007 the Supreme Court of the Russian Federation upheld the extension order on appeal. It noted, in particular, that the maximum eighteen-month time-limit permitted by the domestic law had not been exceeded.
24. On 18 January 2008 the Moscow Regional Court extended the applicant’s detention until 3 April 2008. It noted that the defendants and their counsel were studying the voluminous case file and the investigator needed time to prepare the case for the committal before a court. It referred to the complexity of the case, the number of the defendants, the gravity of the charges against the applicant and her leadership of an organised criminal group. The applicant’s arguments about her good character were insufficient to warrant release. The court found that she might reoffend, abscond, or intimidate witnesses. It also rejected the applicant’s request to be released on bail of 100,000 Russian roubles (RUB, approximately 2,800 euros (EUR)), finding that there was no reason to amend the preventive measure.
25. In her appeal submissions the applicant asked to be released. She complained that the court had not given reasons for rejecting her bail offer and offered to post higher bail if the proposed amount was insufficient. She argued that the length of her detention had exceeded a “reasonable time” and that the investigating authorities had failed to display “special diligence” in the conduct of the investigation. In particular, they had procrastinated in preparing the case for remittal before a court. She further submitted that she could no longer interfere with the investigation as it had been completed, all witnesses had been questioned and material evidence collected. Finally, she again complained of overcrowding, insufficient sleeping places and poor sanitary conditions in the detention facility and submitted that the combination of those factors to which she had been exposed for many months had already resulted in a deterioration in her health.
26. On 13 March 2008 the Supreme Court upheld the detention order on appeal, finding that it had been lawful, well-reasoned and justified.
27. On 17 March 2008 the Moscow Regional Court extended the applicant’s detention until 3 July 2008. It noted that the defendants and their counsel were studying the case file and that the investigator needed time to prepare the case for committal before a court. It referred to the complexity of the case, the number of the defendants, the gravity of the charges against the applicant and her leadership of an organised criminal group. It also noted that her drug test had been positive, therefore there were reasons to believe that she might abscond, reoffend, intimidate witnesses or interfere with the proceedings in some other way.
28. The applicant appealed, repeating her arguments set forth in the previous appeal submissions. She also argued that the drug test had been performed a long time ago and its results were irrelevant for the assessment of the risk of absconding, reoffending or interfering with the proceedings.
29. On 7 May 2008 the Supreme Court quashed the extension decision and ordered that the applicant be released on bail of RUB 100,000. It found that the Regional Court had not adduced sufficient reasons to justify an extension of the applicant’s detention up to twenty-one months. In particular, it held that under domestic law the complexity of the case could only serve as a justification for up to twelve months’ detention and could not justify an extension of detention beyond that time-limit. The Regional Court’s conclusion that the applicant might abscond, reoffend or interfere with the proceedings had not been supported by relevant facts or evidence. The Regional Court had disregarded such pertinent facts as the applicant’s positive references, permanent residence and employment and her family situation. It had failed to take into account the recent death of her brother, which mitigated the risk of her absconding as in such circumstances she naturally wished to be with her family. As the investigation had been completed and the witnesses questioned, the risk of interfering with the proceedings was also negligible. The results of the drug test were irrelevant for the assessment of the risk of reoffending, as the test had been performed immediately after the arrest, that is more than a year before, and the applicant had never been medically certified as being a drug addict. The Supreme Court further referred to the applicant’s frail health and “her well-founded complaints about the inhuman conditions of her detention, which caused her humiliation and imperilled her health”. Finally, it found fault with the Regional Court for its failure to consider the possibility of applying a more lenient preventive measure, although the applicant had asked to be released on bail.
30. On the same day the applicant posted bail and was released. It appears that the criminal proceedings against her are still pending.
31. From 11 October 2006 to 7 May 2008 the applicant was held in detention facility no. IZ-50/3 in the town of Serpukhov, the Moscow Region.
32. According to a certificate of 10 April 2008 from the facility administration, produced by the Government, from 11 October 2006 to 17 September 2007 and from 25 September 2007 to 7 May 2008 the applicant was held in cell no. 32 measuring 21.2 sq. m. It was equipped with eight bunks and accommodated five to eight inmates. From 17 to 25 September 2007 she was held in cell no. 52 measuring 41 sq. m. It was equipped with twelve bunks and accommodated eight inmates. The Government supported their assertions with copies of extracts from registration logs showing the number of detainees on 11 October, 4 November and 8 December 2006, 19 January, 6 February, 2 April, 3, 14, 15, 21, 22 and 23 May, 6 and 7 June, 8 and 9 July, 9 August, 4 and 17 September, 11 October, 13 November and 18 December 2007, and 11 January, 6 February, 11 March and 9 April 2008. They further submitted that the applicant had at all times had a separate bunk and had been provided with clean bedding and a mattress which was 6.5 centimetres thick.
33. The applicant did not dispute the cell measurements or the number of bunks. She disagreed, however, with the number of inmates asserted by the Government. According to her, cell no. 32 accommodated up to twelve inmates. At times inmates did not have individual bunks and had to take turns to sleep. The metal bunks were covered with thin mattresses. The applicant, who suffered from back pain, had to stuff a layer of magazines between the metal frame and the mattress to make her bed softer.
34. The Government contended that the cells had natural light from the windows. Each cell had two windows measuring 1.44 m in width and 1.60 m in length. The windows were covered with metal bars. Openings between the metal bars, measuring 10 centimetres in width and 20 centimetres in length, allowed natural light. The cells were also equipped with fluorescent lamps which functioned during the day and at night. The applicant stated that the windows were covered with thick metal bars that blocked access to natural light. The openings between the metal bars measured no more than five centimetres by five centimetres. The artificial light was dim and did not allow inmates to read or write. As the artificial light was never switched off at night the applicant’s sleep was disturbed.
35. The Government submitted that each cell had a ventilation system. They were also naturally ventilated through the windows. They admitted that there was a pigsty 62 m away from the detention facility. They insisted however that the windows of the applicant’s cells looked onto the opposite side. There were no insects or rodents in the detention facility, as all the cells were disinfected every month. It follows from the certificate of 10 April 2008 from the facility administration that sanitary services cleansed the cells regularly to reduce the number of rodents and insects. The applicant claimed that there was no forced ventilation and it was stifling and smoky in the cells. It was also smelly as the windows faced a pigsty. The cells swarmed with flies, mosquitoes and lice. Inmates had to do their laundry indoors, creating excessive humidity. The ceiling was covered with fungus. Some of the inmates were suffering from tuberculosis.
36. Relying on the certificates issued by the facility administration on 10 April 2008, the Government stated that the average temperature in the cells was 20 to 23 degrees Celsius both in winter and in summer. The floor was covered by wood plates which were four centimetres thick. According to the applicant, it was very cold in the cells in autumn and spring when the heating system was not on. She had to sleep in woollen clothes. The cells had a concrete floor covered with thin wood flooring and it was freezing to walk on.
37. It follows from the same certificates produced by the Government that the cells were equipped with a lavatory bowl, a sink and a tap with running cold and hot water. This was separated from the living area by a partition 167 centimetres in height in cell no. 32 and 137 centimetres in height in cell no. 52. Toilet articles and detergents were distributed regularly. In cell no. 32 the dining table was situated 0.63 m from the toilet bowl, while in cell no. 52 the distance between the toilet bowl and the dining table was 2.90 m. The applicant disagreed with this description. She claimed that the lavatory bowl was placed in the corner of the cell. There was indeed a partition on one side, but the other side was left unshielded so that the person using the toilet was in view of the other inmates and the warders. The dining table was fixed to the floor less than a metre from the toilet and the bunks were 1.5 metres from it. No toilet articles or detergents were distributed. There was no running hot water in the cell but detainees were permitted to use immersion heaters.
38. The Government further contended that inmates were allowed to take a shower once a week and were provided at that time with clean bedding and towels. The temperature in the shower hall was 31 degrees Celsius, while the water temperature was 70 degrees Celsius. The water temperature could be adjusted by the warders upon request. According to the applicant, inmates were allowed to take a shower once a week for ten or fifteen minutes. The water was too hot. It took time to call a warder to adjust the temperature and then inmates had insufficient time to shower. It was so cold in the changing room in winter that the door was covered with ice.
39. Finally, the Government submitted that inmates were provided with sufficient and wholesome food. There were containers with boiled drinking water in each cell. The applicant claimed that the food was insipid and she could not bring herself to eat it. Inmates were not provided with drinking water and had to drink tap water which did not meet sanitary conditions.
40. The Government submitted that the applicant had an hour-long walk daily. The yard measured 20.8 sq. m. It was covered by a roof to protect inmates from rain. The entire cell population was taken to the yard at once. The number of inmates walking in the yard simultaneously with the applicant varied between four and seven.
41. The applicant did not dispute the yard measurements. She claimed however that up to twelve detainees were taken into the yard at once. The walls were coated with shuba, a sort of abrasive concrete lining, designed to prevent detainees from leaning on the walls. The opening to the sky was covered with rusty metal bars. When it rained rusty water came pouring down on the detainees. The yard had a concrete floor and was freezing to walk on. It was very smoky in the yard.
42. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112 of the CCrP).
43. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).
44. Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).
45. After arrest the suspect is placed in custody “during the investigation”. The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 109 §§ 1-3). The period of detention “during the investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 109 § 9).
46. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The period of detention “during the trial” is calculated up to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
47. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
VIOLATED_ARTICLES: 3
5


ITEMID: 001-59267
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF MALAMA v. GREECE
IMPORTANCE: 1
CONCLUSION: Preliminary objection partially allowed (six month period);Preliminary objections partially dismissed (six month period, non-exhaustion of domestic remedies);Violation of P1-1;Not necessary to examine Art. 6-1;Just satisfaction reserved
JUDGES: András Baka
TEXT: 8. The applicant’s mother, Ioulia Andrikou, was the adopted daughter of Lambros Veicos, who died in 1934. He had owned a three-quarter undivided share of an area of 942,250 sq. m. of land in the suburbs of Athens. The land included 250,000 sq. m. of pine forest (which had been exploited for many years), ten quarries and two sand extraction sites.
9. On 27 December 1923, by a decree of the Ministry of Health, Welfare, Social Protection and Agriculture, the Greek State expropriated the land in question for use by the Refugees’ Relief Fund (Ταμείο Περιθάλψεως Προσφύγων), a public-law corporation established in order to meet the needs of refugees from Asia Minor following the mandatory exchange of populations under the 1923 Treaty of Lausanne.
10. The day after the ministerial decree was issued, the relevant authorities began to occupy the expropriated land, without any compensation being paid to Lambros Veicos. The basis for the expropriation was an ordinance issued by the Greek Government (“the Government”) on 14 February 1923, authorising the expropriation and occupation of land before any compensation was paid to its owners. The ordinance was subsequently ratified by means of a constitutional resolution of 15 September 1924; its content was also incorporated in Article 119 of the 1927 Constitution.
11. On 15 May 1928 Lambros Veicos applied to the relevant courts for payment of the compensation he was owed by the State, which had in the meantime taken over from the Refugees’ Relief Fund, the fund having been wound up in 1925. In a judgment of 31 August 1928 (no. 184/1928) the President of the Athens Court of First Instance determined the provisional unit amount of compensation due. On 20 October 1928 the Greek State applied to the Athens Court of First Instance for an assessment of the final unit amount of compensation due. In a series of judgments (nos. 3117/1929, 9477/1930, 4590/1932 and 1494/1934) the court adjourned its examination of the case and directed that evidence should be obtained and that an expert assessment should be carried out by the State. The proceedings lasted more than twenty years without ever resulting in a final judgment. Lambros Veicos died in 1934.
12. On 1 May 1963 Ioulia Andricou and her sister – the applicant’s mother and aunt respectively and the sole heirs of Lambros Veicos – applied to the Athens Court of First Instance for a fresh assessment of the provisional unit amount of compensation due, on the basis of the real value of the land in 1963.
13. In a judgment of 26 October 1963 (no. 1905/1963) the court determined the provisional unit amount of compensation due.
14. On 20 January 1964 Ioulia Andricou and her sister applied to the Athens Court of First Instance for an assessment of the final unit amount of compensation due.
15. In a judgment of 27 June 1964 (no. 13725/1964) the court again directed that evidence should be obtained and that an expert assessment of the value of the land should be carried out.
16. In a judgment of 20 November 1976 (no. 15640/1976) the court noted that no expert assessment had been carried out, and consequently adjourned its examination of the case.
17. In a judgment of 8 July 1981 (no. 12474/1981) the court, on an application by the parties, ordered a further expert assessment.
18. In a judgment of 17 June 1983 (no. 9283/1983) the court determined the final unit amount of compensation due.
19. On 5 March 1984 Ioulia Andricou and the heirs of her sister, who had died in the meantime, appealed against the judgment of the Court of First Instance. On 18 December 1984 the State likewise appealed against the judgment. The case was adjourned several times. Both appeals were finally heard on 3 March 1992, and then on 5 October 1993.
20. In a judgment of 10 December 1993 (no. 7966/1993) the Athens Court of Appeal dismissed the appeal lodged by the State and assessed the amount of compensation due at 10 (old) paper drachmas per square metre, a sum corresponding to the supposed value of the expropriated land in September 1922. The Court of Appeal added that in September 1922, 7.16 paper drachmas had been equivalent to one metal drachma – that is to say, “one Latin Union gold drachma”.
21. On 18 April 1994 the State appealed on points of law.
22. In a judgment of 18 June 1996 (no. 920/1996) the Court of Cassation dismissed the State’s appeal and upheld the Court of Appeal’s judgment, which accordingly became final and irrevocable.
23. On 10 January 1997 the applicant, who had in the meantime acquired title to her mother’s claims by virtue of notarial deeds nos. 1222/1995 and 1225/1995, applied to the Athens Court of First Instance for recognition of her entitlement to three-eighths of the amount of compensation determined by the Court of Appeal, and for payment of the compensation.
24. Meanwhile, in a separate expropriation case concerning a plot of land situated 150 m away from the land in issue, the Athens Court of First Instance had assessed the provisional unit amount of compensation at 70,000 drachmas (GRD) per square metre (judgment no. 12/1997). The State had subsequently accepted that amount and paid it to the entitled persons.
25. In a final and irrevocable judgment of 12 September 1997 (no. 1783/1997) the Athens Court of First Instance declared that the applicant was entitled to three-eighths of the amount of compensation determined in judgment no. 7966/1993 of the Athens Court of Appeal.
26. On 7 October 1997 the applicant served the judgment of 12 September 1997 on the Greek State. On 10 October 1997 she asked the Ministry of Finance’s Expropriation Department to pay her, as speedily as possible, the compensation she was owed. Having received no reply, she made two further applications, on 8 January and 9 March 1998.
27. On 18 June 1998 the State Legal Council considered an enquiry it had received from the Ministry of Finance’s Public Property Department as to whether the State was under an obligation to pay the applicant the amount of compensation determined by the domestic courts and, if so, what method should be used to calculate the compensation. The State Legal Council replied to the first question in the affirmative. Furthermore, after a very thorough examination of the criteria applied in the matter, it held that the value of one metal drachma was equivalent to 32.258% of the price quoted for one gram of gold on the Athens Stock Exchange.
28. On 15 September 1998 the applicant applied to the Commission. She complained that the Greek State’s refusal to pay her the compensation she was owed had infringed her right to effective judicial protection in the determination of her civil rights and her right to peaceful enjoyment of her possessions. She also complained of the length of the proceedings.
29. In a decision of 21 December 1998 the Ministry of Finance, having calculated, in new drachmas, the compensation to be awarded for the expropriation, ordered a payment of GRD 461,014,975 to be made to the applicant.
30. In a letter dated 30 March 1999 the applicant stated that she was prepared to accept the sum but reserved the right to “claim ... in the European Court of Human Rights ... any additional sums in respect of the pecuniary damage ... sustained on account of the failure to pay full compensation for the expropriation”.
31. On 21 April 1999 the money was paid into the applicant’s bank account.


ITEMID: 001-121175
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: TU AND CO AB v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Johan Hirschfeldt;Mark Villiger;Paul Lemmens
TEXT: 1. The applicant, TU & Co AB, is a Swedish limited liability company, which has its seat in Stockholm. The applicant company was represented before the Court by Mr T. Bodström, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr A. Rönquist, of the Ministry for Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant company runs the restaurant Undici Restaurant & Bar (Undici) in the centre of Stockholm. On 27 September 2007, the Social Council (Socialtjänstnämnden) decided to revoke Undici’s licence to serve alcoholic beverages on its premises. The decision was based partly on several reports from the Police Authority regarding disorder and excessive serving of alcohol on the premises and partly because the restaurant had served liquor by the bottle after 1 a.m. (which was prohibited). Moreover, the applicant company had failed to report to the authorities that its parent company, which was also its majority owner, was subject to liquidation as well as to report changes in the ownership structure of this company.
4. The applicant appealed against the decision and asked to have its alcohol licence back. On 8 November 2007, the County Administrative Court (länsrätten) of Stockholm held an oral hearing in the case during which the two shareholders of the applicant company and its parent company were heard as well as five witnesses, four at the request of the applicant. Both the shareholders and one of the witnesses, the liquidator of the applicant’s parent company, were heard about the circumstances relating to the liquidation and the applicant company’s ownership structure. The court also had written evidence at its disposal, inter alia, the applicant company’s register of shareholders from 2000 and its annual report from 2006.
5. On 21 November 2007, the court partly granted the applicant company’s appeal in that it repealed the revocation of the licence but gave the applicant company a warning instead. In its reasoning, the court stated that it was common ground between the parties that there had been changes in the ownership structure of the parent company and that this company had been liquidated. However, in the court’s view, these circumstances were not reason enough to revoke Undici’s licence to serve alcoholic beverages since the restaurant business was still run in the same way by the same persons. Turning to the issue of public disorder, the court noted that it was undisputed that disorder had occurred on seven different occasions and endorsed the Social Council’s view that this constituted grounds for revoking Undici’s licence to serve alcoholic beverages. However, having regard to the fact that almost all of the incidents had occurred during student parties, and to the applicant company’s assurance that such parties would never take place again, as well as the applicant company’s implementation of new policy documents, it found specific reasons to believe that the applicant company had a genuine will to deal with the problems which had previously occurred and, consequently, that the intervention could be limited to a warning.
6. The Social Council appealed to the Administrative Court of Appeal (kammarrätten) of Stockholm which, on 17 March 2008, decided to grant leave to appeal. The applicant company, as well as the Social Council, requested that an oral hearing be held in the case. The applicant company asked to hear the two shareholders previously heard before the County Administrative Court and four witnesses, three of whom were to be heard in person before the court. Only one of the witnesses, an advocate, had not been heard before the County Administrative Court and he was to testify that there was no reason to revoke the applicant company’s alcohol licence due to the changes in the ownership structure or the liquidation of the main shareholder.
7. On 18 June 2008, the Administrative Court of Appeal rejected the applicant company’s request for an oral hearing as being unnecessary and invited the applicant company to make its concluding submissions in the case, at the latest on 14 July 2008. The applicant company was granted an extension of time-limit and finalised its submissions in writing on 18 August 2008.
8. On 15 October 2008, the Administrative Court of Appeal repealed the County Administrative Court’s judgment and ruled in favour of the Social Council. The judgment was based on the fact that changes in the ownership structure and the shareholder’s liquidation had not been reported to the relevant authority. Additionally, it noted that a number of police reports indicated that repeated disruptions of public order had occurred, such as fighting and serving alcoholic beverages to young people and that people had been so intoxicated that the police had taken them into custody, including a person who was only 15 years old at the time. In the court’s view, it was an aggravating circumstance that the disruptions of public order were primarily related to student parties, involving mostly young people. Moreover, it was noted that a waitress, on 8 March 2007, had left a pitcher of liquor on a table for guests at the restaurant after 1 a.m. The Administrative Court of Appeal, referring to the fact that the applicant company had previously received warnings for failing to respect the rules for serving alcoholic beverages, did not find any specific reasons to limit the intervention to a warning.
9. The applicant company appealed to the Supreme Administrative Court (Regeringsrätten) and requested the court to hold an oral hearing. In response to a question by the court, the applicant company specified that it requested the oral hearing only if leave to appeal was granted.
10. On 24 October 2008, the Supreme Administrative Court refused leave to appeal.
11. The basic provisions mainly applicable in the present case are laid down in the Alcohol Act (Alkohollagen, 1994:1738). On 1 January 2011, this Act was replaced by a new Alcohol Act (2010:1622). Hereafter, reference is made to the older, now repealed, Act, which was in force at the time relevant to the present case.
12. An overriding principle of the Act is restraint in connection to serving alcoholic beverages. In accordance with Chapter 3, section 4, of the Act, the sale of beverages falling under the Act shall be conducted in such a manner that harmful effects are prevented as far as possible. Any person engaged in the sale of alcoholic beverages shall ensure that order and sobriety prevail at the point of sale. Under Chapter 6, section 2, of the Act, the serving of alcoholic beverages shall be conducted with restraint and may not lead to inconvenience with respect to public order and sobriety. Under the City of Stockholm’s guidelines for licences to serve alcoholic beverages, neither serving nor consumption of entire bottles of spirits (helrör) is allowed after 1.00 a.m.
13. Moreover, a person to whom a licence has been granted shall notify the licensing authority in the event of any change in the activity significant for the supervision. Notice shall also be given of important changes of ownership. Notice shall be given in advance. If the circumstances giving rise to the duty of notification could not have been foreseen, notification shall instead be made without delay (Chapter 8, section 3).
14. The municipality shall revoke a licence to serve alcoholic beverages if such inconveniences as referred to in Chapter 6, section 2, occur more than occasionally (Chapter 7, section 19, point 2). The municipality shall also revoke a licence to serve alcoholic beverages if the licensee does not comply with the provision of the Act applying to the service or licence, or with applicable provisions or conditions pursuant to the Act (ibid, point 3).
15. Instead of revocation, a licence may be issued with a warning if, for special reasons, a warning is deemed sufficient (Chapter 7, section 20). In accordance with the travaux préparatoires (Government Bill 1994/95:89, p. 110), an example of such special reasons is that the licensee has taken appropriate measures to correct the circumstances so that it may be assumed that the business will in future be operated in accordance with the applicable provisions.
16. Appeal against a decision rendered by the Social Council under the Alcohol Act lies to the administrative courts. However, in these cases leave to appeal is required for the Administrative Court of Appeal to consider an appeal on the merits against a decision or judgment delivered by the County Administrative Court (Section 34 a of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291, hereinafter “the 1971 Act”). Likewise, leave to appeal is required for the Supreme Administrative Court to consider on the merits an appeal against a decision or judgment delivered by the Administrative Court of Appeal (Section 35 of the 1971 Act).
17. Section 9 of the 1971 Act is worded as follows:
“The procedure shall be in writing.
Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case, the processing may include an oral hearing regarding certain issues.
In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”
18. The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court.
19. The travaux préparatoires to the 1971 Act emphasise that an oral procedure can be advantageous for the investigation of a case in two respects in particular. Firstly, such a hearing may be needed in order to examine a witness, expert or party or in cases where a party has difficulty expounding his or her claim in writing. Secondly, an oral hearing may be needed to clarify the positions taken by the parties in the case and perhaps eliminate unnecessary or meaningless points of dispute. In the latter case, the procedure is typically of a preparatory nature. Moreover, the oral form of procedure envisaged in the 1971 Act is not to be seen as an alternative to the written form, but rather as a complement to that form (see the Government Bill 1971:30, p. 535).
20. Furthermore, the travaux préparatoires to the 1971 Act underlined, in connection with the provision in section 9 of the Act concerning the right of a party to an oral hearing in certain cases, that while serious consideration should be given to the wishes of a party for such a hearing, the party could hardly be allowed to have a decisive influence in the matter. The question of whether a hearing is necessary should primarily be assessed in the light of the existing investigation of the case, but it should also be possible to accord significance to other factors, for example, if the case is very important for the party and a hearing would give him a better understanding of the importance of the decision to be given in the case. One particular reason not to arrange an oral hearing could be that the case is of a trivial nature or that the costs of the hearing are high compared to the value of the object of dispute (see Government Bill 1971:30, p. 537).
21. In recent years the Supreme Administrative Court has set aside a number of decisions on appeal and referred cases back to the administrative courts of appeal because of the lack of an oral hearing in the lower courts (see, for example, RÅ 2002 ref. 23, RÅ 2003 note 68, RÅ 2004 note 65, RÅ 2007 note 171 and RÅ 2009 note 73).
22. A comprehensive summary of the issue of compensation for violations of the Convention in the Swedish legal order can be found in Eskilsson v. Sweden ([dec.], no. 14628/08, 24 January 2012) and Eriksson v. Sweden (no. 60437/08, §§ 27-36, 12 April 2012).


ITEMID: 001-86770
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ROUB v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: The applicant, Mr Jan Roub, is a Czech national who was born in 1951 and lives in Plzeň. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
i. Proceedings for damages
In October 1992 the applicant created a private school of traffic education (called the “Private School of Traffic Education, Morals and Ethics in Road Traffic). According to him, the State ran a similar education program called the “Road and Motor Vehicle Traffic Safety” and, consequently, liquidated “by fraudulent means of an unfair economic competition” the activities and educational programs of the private school.
On 14 April 1997 the applicant decided to issue proceedings for damages against the Ministry of the Interior.
The proceedings terminated by a decision of the Constitutional Court (Ústavní soud) of 20 October 2004.
By a judgment of 24 October 2003 the Plzeň-town District Court (obvodní soud) found the applicant guilty.
On 13 January 2004 the Plzeň Regional Court (krajský soud) upheld this judgment. On 28 July 2004 the Supreme Court (Nejvyšší soud) quashed the lower courts’ judgment and declared the applicant non-guilty.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-107047
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF TOMASOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of P7-4
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 4. The applicant was born in 1973 and lives in Split.
5. On 25 March 2004 the Split police lodged a request for minor-offences proceedings to be instituted against the applicant in the Split Minor Offences Court (Prekršajni sud u Splitu).
6. On 3 March 2006 the Split Minor Offences Court found that on 15 March 2004 at about 10.35 p.m. the applicant had had 0.21 grams of heroin on her, which amounted to a minor offence under section 3(1) of the Prevention of Narcotics Abuse Act. She was fined 1,700 Croatian kunas (HRK) on the basis of section 54(1)(1) and 54(3) of the same Act. This decision became final on 15 March 2006.
7. On 8 February 2005 the Split State Attorney’s Office (Općinsko državno odvjetništvo u Splitu) lodged an indictment with the Split Municipal Court (Općinski sud u Splitu) accusing the applicant of possession of heroin. The police report was included in the case file.
8. On 19 March 2007 the Split Municipal Court, in criminal proceedings against the applicant, found the applicant guilty of possessing 0,14 grams of heroin on 15 March 2004 at about 10.35 p.m. and fined her HRK 1,526. The previous fine was to be included in this one. The applicant was also ordered to bear the costs of the proceedings in the amount of HRK 400.
9. The applicant’s conviction was upheld by the Split County Court (Županijski sud u Splitu) on 5 June 2007 but a suspended sentence of four month’s imprisonment was applied with a one-year probation period.
10. The applicant’s subsequent constitutional complaint, alleging a violation of the ne bis in idem principle, was dismissed by the Constitutional Court on 7 May 2009 on the ground that the Croatian legal system did not exclude the possibility of punishing the same person twice for the same offence when the same act is prescribed both as a minor offence and a criminal offence.
11. The relevant part of the Prevention of Narcotics Abuse Act (Zakon o suzbijanju zloupotrebe opojnih droga, Official Gazette nos. 107/2001, 87/2002, 163/2003) reads:
“(1) The growing of plants from which narcotics may be produced and the production, possession and trafficking in narcotics, plants and parts of the plants from which narcotics may be produced is banned, as is the production, possession and trafficking in substances which may be used for the production of narcotics, save for [such possession, production and trafficking] under the conditions prescribed by this Act for medical, nutritional, veterinarian or educational purposes or for the purposes of scientific research.
...”
“(1) A legal entity shall be fined between HRK 20,000 and HRK 50,000 for the minor offences of:
1. possession of narcotics ...
...
(3) For the minor offence under subsection (1) point 1 ... of this section a person shall be fined between HRK 5,000 and 20,000.”
12. The relevant part of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003, 190/2003, 105/2004) reads:
“(1) Whoever unlawfully possesses substances which are prescribed as narcotics shall be fined or sentenced to a term of imprisonment not exceeding one year.
...”


ITEMID: 001-72567
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1984
DOCNAME: CASE OF LUBERTI v. ITALY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-4;No violation of Art. 5-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings
JUDGES: C. Russo
TEXT: 8. Mr. Luberti, who is an Italian national born in 1924, currently resides in a religious home. On 20 January 1970, in Rome, he killed his mistress by firing several shots at her. He then left the apartment, leaving the body behind.
On 25 March 1970, the police, acting on information in a letter from the applicant confessing to the killing, discovered the body. According to the police report, the circumstances of the act suggested that the perpetrator was not fully in possession of his mental faculties.
Criminal proceedings were instituted against Mr. Luberti; he was not arrested until 10 July 1972, by which date the preliminary investigation of the case had been completed and he had been committed for trial on a charge of murder.
9. On 17 January 1976, the Rome Assize Court sentenced Mr. Luberti - who had pleaded not guilty - to twenty-one years’ imprisonment for murder and to one year’s imprisonment and a fine of 500,000 Lire for possession of military weapons.
10. The applicant appealed, pleading for the first time, amongst other grounds, that he was insane at the time of the commission of the act of which he was accused.
On 24 November 1976, the Rome Appeal Court of Assize ordered an expert psychiatric opinion. The two experts appointed for this purpose filed their report on 11 November 1977; their conclusion was that at the date of the killing Mr. Luberti was suffering from a paranoiac syndrome (sindrome paranoica) depriving him of the capacity to form an intention (capacità di volere) and that at the time when the opinion was drawn up he was, in psychiatric terms, a dangerous person.
As this conclusion was challenged by the expert called by the party seeking damages (consulente tecnico), the Appeal Court directed on 17 November 1978 that a further expert opinion be obtained. The Appeal Court wished to be advised whether the applicant was, at the time of the killing, partly or completely insane and whether he was still a danger to society. Three new experts examined Mr. Luberti on several occasions; they saw him for the last time on 14 May 1979. Although their report agreed with the previous report in other respects, it differed as regards the precise diagnosis of his illness; it also found that at the moment of the crime Mr. Luberti lacked the capacity to understand and not just the capacity to form an intention (capacità d’intendere e di volere). In addition, the report contained observations on the applicant’s behaviour during his meetings with the experts. It mentioned certain symptoms of the illness that was diagnosed: evidence of megalomania was to be found in Mr. Luberti’s overestimation of himself, in his superiority complex in regard to the experts, in his conviction that he was immortal and in his antagonistic attitude to the world around him. Furthermore, statements by the applicant alleging that he was the victim of widespread international conspiracies showed clearly that he was suffering from persecution mania. Finally, the report affirmed that the psychosis observed had certainly also existed at the time of the events giving rise to the criminal proceedings.
The Appeal Court accepted these findings. On 16 November 1979, it acquitted Mr. Luberti on the ground of mental incapacity (infermità psichica - Article 88 of the Criminal Code) and directed that he be confined for two years in a psychiatric hospital. This security measure was ordered on the basis of Article 222 of the Criminal Code as then in force (see paragraph 18 below). Amongst other things, that Article provided that in a case like Mr. Luberti’s the court always had to order confinement for two years, there being a legal presumption that the accused was a danger to society.
However, although it was under no legal obligation to do so, the Appeal Court of Assize also made a finding as to the applicant’s mental health at the time of its judgment. It agreed in particular with the conclusions of the two expert opinions regarding Mr. Luberti’s lack of responsibility and the assessment of his dangerous character. It added that his dangerous character was not simply presumed but real, as the experts had unanimously found, and that attention should be drawn to this as a factor that could, in due course, assist in making a re-assessment of Mr. Luberti’s state of mind when the question of the termination of his confinement came to be considered. Finally, the Appeal Court of Assize noted that the case concerned a "paranoiac" and that the confinement necessitated by his state of mental health should follow his detention without a break.
Pursuant to Article 485 of the Code of Criminal Procedure, taken in conjunction with Article 206 of the Criminal Code, the Appeal Court of Assize ordered the provisional implementation of its decision.
11. Appeals on points of law, based on different grounds, were lodged with the Court of Cassation by the applicant and by the public prosecutor attached to the Rome Court of Appeal. Mr. Luberti complained of the failure of the Appeal Court of Assize to take account of a medico-legal and ballistic report which had been drawn up pursuant to a direction it had given at the hearings and which should have determined whether there had been homicide or, on the contrary, suicide. The two appeals were dismissed on 17 June 1981.
12. Pursuant to the judgment of the Appeal Court of Assize, Mr. Luberti, who had been continuously detained in prison since 10 July 1972, was admitted to the psychiatric hospital of Aversa (Province of Naples) on 21 November 1979.
13. After that judgment, Mr. Luberti made several applications to the judicial authorities for release from confinement. He adopted basically two different approaches.
On the one hand, he applied on 28 November 1979 to the supervising judge (magistrato di sorveglianza - see paragraph 21 below) at the Santa Maria Capua Vetere court (within whose jurisdiction the hospital was situated) to have the periods during which he was undergoing psychiatric examinations whilst in detention on remand set off against the period of the security measure. This application was rejected.
On the other hand, Mr. Luberti applied to three different courts for early release from confinement, on the ground that it was not justified by his state of health.
14. He turned first - as early as 19 November 1979, that is barely three days after the judgment of the Appeal Court of Assize - to the Rome Supervision Division (sezione di sorveglianza - see paragraph 21 below); he relied on Article 207 of the Criminal Code and section 71 of Act no. 354 of 26 July 1975, concerning the administration of prisons and the implementation of measures involving deprivation or restriction of liberty.
The Supervision Division first undertook a series of inquiries. It obtained, inter alia, a medical report from the hospital, a copy of Mr. Luberti’s "clinical diary" and several documents submitted by him.
On 5 March 1980, a psychologist consulted by the applicant on a private basis issued him with a certificate to the effect that he had recovered and that it was necessary to release him if the clinical progress achieved was not to be completely reversed.
On 5 August 1980, the Rome Supervision Division held a hearing at which the public prosecutor’s office submitted, on the basis of Article 635 of the Code of Criminal Procedure (see paragraph 21 below), that that Division lacked jurisdiction since the appeals on points of law against the judgment of 16 November 1979 (see paragraph 11 above) were still pending. By order of the same date, deposited in the court registry on the following day, the Supervision Division ruled that it did not have jurisdiction. This order was based, inter alia, on a judgment of the Court of Cassation, in which it was held that an application for suspension of the implementation of a security measure imposed following an acquittal that has not yet become final must, since it constitutes an issue forming part of the proceedings (procedimento incidentale), be made to the trial court and not to the judge supervising the execution of sentences (1st Chamber, 12 June 1962, in "Giustizia Penale" 1965, III, p. 152).
On 16 August 1980, Mr. Luberti appealed on a point of law to the Court of Cassation. That Court held on 3 December 1980 that, under Article 640 of the Code of Criminal Procedure, the Rome Court of Appeal had jurisdiction to determine the appeal. The judgment (decreto) was deposited in the court registry on 4 February and the file was sent to the Court of Appeal on 26 February 1981. By judgment (decreto) of 4 May 1981, deposited in the court registry on 29 May, the Court of Appeal confirmed the order of 5 August 1980.
15. On 16 August 1980, the date of his appeal to the Court of Cassation against the aforesaid order, Mr. Luberti had also made two other applications: one was addressed to the Rome Appeal Court of Assize and the other to the Naples Supervision Division, within whose district the hospital where he was confined was situated.
16. At first, on 4 September 1980, the proceedings before the Appeal Court of Assize were suspended indefinitely because on 22 August the applicant had failed to report back to the hospital after an eight-hour period of leave granted to him by the supervising judge at the Santa Maria Capua Vetere court. Subsequently, on a date which the Government were unable to indicate, the Appeal Court discontinued the proceedings before it. The applicant was again arrested on 17 March 1981 and re-admitted to the hospital two days later.
17. The Naples Supervision Division in the first place suspended its decision pending the final outcome of the proceedings instituted before the Rome Supervision Division (see paragraph 14 above). It resumed consideration of the application pending before it as soon as the Rome Court of Appeal had dismissed, on 4 May 1981, the appeal against the order of 5 August 1980 (ibid.). The hearings were held on 12 May, that is even before the Appeal Court’s judgment had been deposited in its registry (29 May). The material before the Naples Supervision Division included a medical report dated 16 April 1981 - that is, less than a month after Mr. Luberti’s return to the psychiatric hospital -, which had been drawn up for the purposes of the inquiry into the case; the Chief Medical Officer (Direttore capo sanitario) of the hospital stated therein that "from the clinical point of view there [was] no reason why the security measure should not be terminated".
On 4 June 1981, the Naples Supervision Division directed that the confinement should be terminated, having found, particularly in the light of the aforesaid report, that psychiatrically and criminologically Mr. Luberti was no longer dangerous. Before giving its decision on the merits of the case, the Supervision Division stated that it had jurisdiction to rule on the application although the public prosecutor’s appeal on points of law against the judgment of the Rome Appeal Court of Assize was still pending (see paragraph 11 above); it disagreed with the Rome Supervision Division’s interpretation of Article 635 of the Code of Criminal Procedure (see paragraph 14 above).
The order was deposited on 10 June and Mr. Luberti was released on 15 June that is two days before the dismissal of the two appeals on points of law (see paragraph 11 above).
18. Under Article 222 of the Italian Criminal Code in force at the time of Mr. Luberti’s trial, an accused acquitted on account of insanity was to be subjected to a security measure in the form of confinement in a psychiatric hospital (ospedale psichiatrico giudiziario). The minimum period of detention was prescribed by law by reference to the seriousness of the offence; in the present case, that period was two years.
Article 202, first sub-paragraph, provided that security measures could be imposed only on persons who were a danger to society and had committed an act constituting an offence under the law. Under the first sub-paragraph of Article 204, such measures were to be ordered where it was established that the individual concerned was a danger to society. However, the second sub-paragraph added:
"In the cases expressly provided for" - including that covered by Article 222 -, "there shall be a legal presumption that the person concerned is a danger to society. Nevertheless, even in such cases the application of security measures shall be conditional on proof of a danger of this nature, if the conviction or acquittal was pronounced:
(1) more than ten years after the facts occurred, when persons of unsound mind are involved, in the cases set out in the second sub-paragraphs of Articles 219 and 222; ...."
The presumption created by the first sentence of this text was applicable in the present case.
19. On some points, there was a change in the law following a judgment handed down by the Constitutional Court on 27 July 1982 (no. 139). It was held in that judgment that Article 222, first sub-paragraph, and Article 204, second sub-paragraph, of the Criminal Code were unconstitutional
"... in so far as they fail[ed] to make a decision that an individual acquitted on account of insanity be confined in a psychiatric hospital conditional on a prior finding, either by the trial court or by the judge supervising the execution of sentences, there was a continuing danger to society on account of the ... illness at the time of the application of the measure ...."
20. Under Article 207, as qualified by another Constitutional Court judgment (no. 110 of 23 April 1974), termination of a security measure such as Mr. Luberti’s confinement can be ordered even before expiry of the minimum period, for example on application by the individual concerned, if he no longer presents a danger to society. Article 208 specifies that the court shall in any event re-examine the position at the end of that period in order to determine whether the person confined still presents such a danger and shall, if appropriate, fix the date for a further examination.
21. Under Article 206 of the Criminal Code, the implementation of a security measure may in certain cases, including that of a person of unsound mind, begin during the investigation or the trial; this is no more than a discretionary power enjoyed by the court. At this stage, the measure is deemed provisional and only the trial court has jurisdiction over any questions to which it may give rise, including the question of termination of the measure.
For security measures ordered subsequently to the investigation or the trial, Article 635 of the Code of Criminal Procedure confers the power of review and decision on the judge supervising the execution of sentences (giudice di sorveglianza). This institution is comprised of two organs: the supervising judge (magistrato di sorveglianza) and the supervision division (sezione di sorveglianza). Their respective jurisdictions, which are mutually exclusive, are laid down by sections 69 and 70 of Act no. 354 of 26 July 1975, concerning the administration of prisons and the implementation of measures involving deprivation or restriction of liberty. In particular, it is the supervision division which hears applications for termination of security measures.
Supervising judges and supervision divisions give decisions at first instance. The individual concerned and the public prosecutor’s office have a right of appeal against such decisions either to the Court of Appeal (Article 640 of the Code of Criminal Procedure) or, if the ground of appeal is alleged violation of the law, to the Court of Cassation (section 71 ter of Act no. 354 of 1975). They may also challenge a judgment (decreto) given by the Court of Appeal in such proceedings, by filing an application for review (ricorso per revisione) with the Court of Cassation; in that event, the Court of Cassation is also empowered to give a decision on the merits of the case (Article 641 of the Code of Criminal Procedure).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-69281
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ROZANSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Bogusław Różański, is a Polish national who was born in 1942 and lives in Włocławek. He was represented before the Court by Mr A. Radke, a lawyer practising in Włocławek.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 October 1993 the applicant was charged with the offence of trafficking in children and detained on remand. On 30 June 1994 he was indicted before the Zamość Regional Court (Sąd Wojewódzki w Zamościu) on charges of trafficking in children and inciting third parties to give false testimony.
The proceedings were terminated by the judgment of the Warsaw Regional Court of 23 September 2004, after the entry into force of the 2004 Act. On 23 March 2000, the date on which the application was lodged with the Court, they were pending before the Warsaw District Court.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
“1. Parties
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-111193
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: OLGUN v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Mehmet Olgun, is a Turkish national who was born in 1971 and, as far as the Court is aware, now lives in Turkey. He was represented by Mr C.A. Madern, a lawyer practising in Amsterdam. The Netherlands Government (“the Government”) were represented by their Agents, Mr R.A.A. Böcker and Ms J. Schukking, and their Deputy Agent, Ms L. Egmond, of the Ministry for Foreign Affairs.
2. The Turkish Government, informed by the Registrar of their right under Article 36 § 1 of the Convention to take part in the proceedings, did not elect to do so.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant first came to the Netherlands in September 1988. He had been issued a visa, valid for one month, enabling him to visit relatives. It is not clear how long he stayed in the Netherlands.
5. In October 1991 the applicant married Ms Ö., a Turkish national, in Turkey. The couple subsequently returned to the Netherlands, apparently without a visa, where they resided illegally. A son, E., was born to them on 16 July 1992. They lived together as a family for some eighteen months before the spouses separated in 1994. The applicant had access to his son and would meet with him at his brother’s house. Divorce proceedings in Turkey were started in 1995, resulting in the divorce being pronounced on 15 July 1997. Ms Ö. was given parental authority over E., with the applicant being granted access to his son every first Sunday of the month and every first day of national and religious holidays.
6. Meanwhile, in 1996, the applicant had returned to Turkey to do his military service. Between 1996 and 1998, E. visited Turkey during holidays, staying for a while with the applicant’s parents as well as with the applicant himself. In March 1998 the applicant returned to the Netherlands on a short-stay visa to visit relatives, but he overstayed. He saw his son a few times at his brother’s house. The applicant states that Ms Ö. thwarted the access arrangement as much as possible.
7. Ms Ö. was granted a residence permit on an unknown date.
8. On 27 March 2000 the juvenile judge (kinderrechter) of the Amsterdam Regional Court (arrondissementsrechtbank) issued a supervision order (ondertoezichtstelling), valid for one year, in respect of the applicant’s son E. and the latter’s half-sister (a child born of a previous relationship of the applicant’s ex-wife). This decision resulted from an investigation carried out by the Child Care and Protection Board (Raad voor de Kinderbescherming), which had found that E. and his half-sister were being ill-treated, that their mother had limited pedagogical abilities and that she would often leave the children on their own. The Amsterdam Youth Care Office (Bureau Jeugdzorg) was appointed as the family-supervision institution (gezinsvoogdij-instelling).
9. On 26 January 2001 the applicant applied for a residence permit on the basis of a temporary regulation on the legalisation of illegal aliens who had been residing in the Netherlands for a long period of time (Tijdelijke regeling witte illegalen). He indicated that he had regular contacts with his son, which it would be practically impossible to maintain from Turkey, and that there thus existed compelling reasons of a humanitarian nature militating in favour of the grant of a residence permit. As the legalisation regulation only applied to requests which had been lodged between 1 October and 1 December 1999, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s request on 16 March 2001. The Deputy Minister further considered that there were no indications that the applicant ought to be allowed to reside in the Netherlands for reasons of a humanitarian nature.
10. In a report of February 2001 compiled by the Youth Care Office and enclosed with their request to the juvenile judge for an extension of the supervision order, the applicant is mentioned as being E.’s biological father who is residing illegally in the Netherlands at an unknown address. On 19 March 2001 the supervision order was extended for a further year. In addition, on 29 March 2001 the juvenile judge ordered E. and his half-sister urgently to be taken into care (spoeduithuisplaatsing) as it had been found that they were suffering serious neglect and abuse at home. They were accommodated in a foster home. This measure was confirmed on 9 April 2001 and prolonged until 9 July 2001.
11. Meanwhile, in his objection (bezwaar) of 12 April 2001 against the decision refusing him a residence permit, supplemented by an additional document dated 1 May 2001, the applicant argued, inter alia, that his ex-wife was unable to look after their son by herself so that it was in E.’s interests that the applicant also assist in his upbringing – and, therefore, that the applicant reside in the Netherlands.
12. On 22 May 2001 the Deputy Minister dismissed the objection, finding that Article 8 of the Convention did not impose a positive obligation on the Netherlands to grant the applicant a residence permit. In this context the Deputy Minister considered that the applicant had not substantiated his claim that his ex-wife was unable to bring up their son by herself. Moreover, it had not appeared that any impediment existed to the exercise of family life abroad.
13. The applicant appealed this decision to the Regional Court of The Hague, sitting in Utrecht, and also applied to that court for an injunction in order to stay his expulsion.
14. In a report evaluating the course of the supervision order, drawn up by the Youth Care Office and submitted with a request by that Office of 29 January 2002 for an extension of the order, it is stated that the applicant had expressed the wish to see his son more often. Neither Ms Ö. nor E. was very taken with that idea. An access arrangement had nevertheless been agreed, but this did not appear to work in practice.
15. In additional grounds of 12 February 2002 for his appeal to the Regional Court of The Hague, sitting in Utrecht, in the aliens-law proceedings, the applicant argued that an investigation was being carried out into the question whether it would be better for E. if his father were made responsible for his care and upbringing. The applicant claimed that he was willing and able to do so, and that he had even applied for an amendment of the parental authority situation. The applicant further submitted that his son would have no possibility of maintaining the relationship with his father if the latter was not in the Netherlands. In that case, E. would have to stay with his mother or, as had been suggested by the family supervisor (gezinsvoogd), be placed away from his mother and be accommodated in a foster family.
16. At a hearing on 25 March 2002 before the juvenile judge concerning the request for an extension of the supervision order relating to E., the applicant stated that at the previous hearing the judge had said that it should be investigated whether or not it would be better for E. to live with his father, but no such investigation had taken place. An investigation into the feasibility of an access arrangement, also ordered, had not taken place either. The applicant announced that a change in the parental authority situation would be sought if the family supervisor failed to carry out the investigation into the possibility of E. living with him. At the hearing the family supervisor admitted that he had not yet done much about the request for an access arrangement as he had been concentrating on the situation of E.’s half-sister.
17. In a decision of 25 March 2002 the juvenile judge extended the supervision order and also ordered the starting-up of an access arrangement and an investigation into the possibility of E. living with his father.
18. The applicant subsequently informed the Utrecht Regional Court, where his appeal was pending in the proceedings relating to his request for a residence permit, that the juvenile judge had instructed the Youth Care Office to investigate whether he should be invested with parental authority over his son and whether his son should live with him.
19. The hearing in these appeal proceedings took place before the Utrecht Regional Court on 12 July 2002. The applicant submitted inter alia that an investigation, ordered by the Amsterdam juvenile judge, was currently pending into the question whether E. should be brought up by his father and whether parental authority over E. ought to be awarded to him. Furthermore, it was plain to see that there were obstacles to the applicant developing family life with his son in Turkey: there was a supervision order in place, issued by a Netherlands court, and parental authority still remained with E.’s mother – the applicant was thus not free to take his son with him.
20. Since the Youth Care Office had still not carried out the investigation ordered by the juvenile judge, the applicant submitted a petition to the Amsterdam Regional Court on 16 July 2002 in which he requested to be granted sole parental authority over E. and to be entrusted with E.’s upbringing. The applicant argued that E. had indicated that he wanted to see his father more often and even wanted to live with him, but that his mother did not agree to this.
21. On 18 July 2002 the Utrecht Regional Court rejected the appeal as well as the request for an injunction in the proceedings relating to the applicant’s request for a residence permit. It considered that the Deputy Secretary had been correct in attaching greater weight to the interests of the community as a whole than to those of the individual. In this context the Regional Court took into account that the applicant had only submitted a decision of the juvenile judge extending the supervision order, but no documents showing that he had lodged a request for parental authority. The applicant had furthermore not submitted proof of the existence of an access arrangement; it was unclear where the child was staying; and the applicant had not demonstrated that there were any objective impediments to family life between himself and his son being pursued in a different manner. The Regional Court noted that the applicant could keep in contact with his son by telephone or letters. No further appeal lay against this decision.
22. The Youth Care Office subsequently decided that, for the time being at least, it would not be in E.’s best interests for him to go and live with his father. Although E.’s situation with his mother was not ideal, it was not so alarming that he urgently required to be placed away from her. In addition, a placement with his father – to which neither E. nor his mother consented –would confront E. with a serious conflict of loyalties. For those reasons, the Youth Care Office did not consider it opportune to examine the applicant’s situation. The Youth Care Office informed the applicant of its position on 21 October 2002. It had further agreed with E. that he would see his father every first Sunday of the month.
23. On 18 December 2002 the Amsterdam Regional Court refused the applicant’s request to be awarded sole parental authority. The court agreed with the Youth Care Office that at the present time it was not in E.’s best interests for the applicant to be invested with parental authority. The applicant lodged an appeal against this decision, submitting that the supervision order had been in place for a number of years without E.’s situation having undergone any real improvement.
24. The applicant left the Netherlands in December 2002 and, as far as the Court is aware, has resided in Turkey ever since.
25. Following a hearing on 20 August 2003, the Amsterdam Court of Appeal (gerechtshof) ordered the Child Care and Protection Board to investigate, before 25 January 2004, the applicant’s background and the possibility of parental authority being granted to him.
26. In a decision of 17 June 2004, the Court of Appeal rejected the appeal. It had regard to the report issued by the Child Care and Protection Board on 4 March 2004, from which it appeared that the applicant had not been involved in the Board’s investigation as he was residing in Turkey and was unable to come to the Netherlands due to the fact that his visa applications kept being refused. The Board had, however, contacted a brother of the applicant’s and the former’s spouse, according to whom E. had had irregular contacts with his father in the past years. The Board noted that, if parental authority was awarded to the applicant, this would mean that E., who had been born and bred in the Netherlands, who did not speak Turkish and who did not want to go to Turkey, would have to move to Turkey at the age of eleven. The Board considered that this would not be in E.’s best interests, even though it was true that the situation in which he was being raised had not been ideal in recent years. The Court of Appeal agreed with the Board’s assessment, adding that it had not been made clear in what way the applicant would wish to exercise his parental authority. While it understood the applicant’s concerns, the court also took into account that E.’s health and performance at school had in the meantime improved and that the supervision order was also expected to have a positive effect.
27. The applicant did not lodge an appeal on points of law with the Supreme Court (Hoge Raad) against this decision.
28. Domestic law and practice relevant to the present case are set out in Benamar v. the Netherlands (dec.), no. 43786/04, 5 April 2005.


ITEMID: 001-67948
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF RASH v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the fairness of the proceedings and under Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1940.
5. In 1991 the applicant moved from Georgia to Saint-Petersburg where his sister lived. In 1997 the Migration Service of St. Petersburg (Миграционная служба г. Санкт-Петербурга) granted the applicant’s family the right to use two rooms in a three-room communal flat.
6. On 5 August 1999 the Novyy Peterburg (“New Petersburg”) newspaper ran an article by Mr Usov under the headline “A Kurd from Novosibirsk? Claim your housing!” (“Курд из Новосибирска? Получи жилплощадь!”). The article alleged that the applicant and his wife, both of Kurdish origin, obtained the housing unlawfully, for a bribe. It was also said that they tortured and humiliated their neighbour (who lived in the third room of the flat) in order to “lay their hands on” the entire flat. The article implied that “compatriots of Öcalan” were given preference to the detriment of ethnic Russians.
7. The applicant complained to a prosecutor’s office, and the Tsentralniy prosecutor’s office of St. Petersburg opened a criminal case for libel. A preliminary investigation established that Mr Usov based his conclusions on statements by the applicant’s neighbour who had been diagnosed with a mental disorder of paranoid nature.
8. On 30 August 1999 (on 6 September 1999, according to the Government) the applicant lodged a civil action for defamation against the “New Petersburg” newspaper and Mr Usov. He claimed both publication of a refutation and compensation for non-pecuniary damage in the amount to be determined by the court.
9. The first hearing was fixed for 19 April 2000. Between 20 June 2000 and 25 November 2002 at least eight hearings were adjourned. According to the Government, the adjournments took place because the applicant failed to appear. According to the applicant, he came to every hearing, but the defendant never showed up.
10. On 17 January and 21 May 2002 the applicant moved to hear the case in his absence, explaining that it was difficult for him to come to every hearing because of his limited mobility. He also filed several complaints with the Dzerzhinskiy District Court of St. Petersburg about unreasonable delays in the examination of his claim, requesting the court to expedite the proceedings.
11. On 31 May 2002 the Dzerzhinsky District Court of St. Petersburg inquired in writing whether the applicant would agree to the substitution of the “New Petersburg” newspaper, the original defendant, by the publishing house “New Petersburg”, the original defendant’s legal successor. On 18 July 2002 the applicant responded in the affirmative. On 30 July 2002 the court sent him again the same inquiry.
12. The hearing in the defamation action before the Dzerzhinsky District Court of St. Petersburg finally took place on 10 February 2003, and the court rendered a judgment in the applicant’s favour. The defendant was ordered to pay 3,000 Russian roubles (“RUR”) for non-pecuniary damage and publish a refutation.
13. In October 2003 the applicant complained to the President’s Office about the district court’s failure to make the text of the judgment available to him. On an unspecified date in December 2003 the applicant received the judgment.
14. On 5 March 2004 the judgment was enforced in the part concerning the pecuniary award and the enforcement proceedings were closed. The applicant submits that the judgment has remained unenforced in the part concerning publication of a refutation.
15. In early 2000 the applicant’s neighbour moved out and the applicant applied to the Migration Service for permission to use the third room in the flat. His application was refused. The applicant challenged the refusal in court.
16. On 1 December 2000 the Kuybyshevskiy District Court of St. Petersburg dismissed the applicant’s claim. On the applicant’s appeal, the judgment was upheld on 15 February 2001 by the St. Petersburg City Court.
17. The applicant’s application for supervisory review was refused by the Presidium of the St. Petersburg City Court.
18. Article 99 of the Russian Civil Procedure Code of 11 June 1964 (in force at the material time) provided that civil cases were to be prepared for a hearing no later than seven days after the action had been submitted to the court. In exceptional cases, this period could be extended for up to twenty days. The civil cases were to be examined no later than one month after the preparation for the hearing had been completed.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1