Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria

The first applicant was born in 1982 and lives in Furstenfeld, Austria. He is the father of the second applicant, who was born in 2006 and lives at an unspecified address in Romania.

On 13 April 2004 the first applicant married a Romanian citizen, K.T. The marriage was concluded in Salzburg, Austria. On 15 February 2006 their daughter, the second applicant, was born. The parents had joint custody of the child under Austrian law. They lived in Salzburg.

On 1 February 2008 K.T. and the first applicant separated. On 25 February 2008 K.T. filed a divorce petition with the Salzburg authorities. The first applicant lodged a counter petition on 25 March 2008.

On 29 January 2008 K.T. filed for an interim injunction against the first applicant, seeking his removal from the family home on the ground of his violent behaviour. On 8 February 2008, the Salzburg District Civil Court granted the interim injunction for a period of three months. Criminal proceedings were also initiated against the first applicant for infliction of bodily harm.

On 1 February 2008 K.T. lodged an action for temporary sole custody of the second applicant throughout the divorce proceedings. At the end of September 2008, while the proceedings for the award of custody were pending before the Austrian courts, K.T. left for Romania together with the second applicant. The first applicant was not informed of the departure, even though at the time the spouses had joint custody of the second applicant.

In the meantime, on 25 July 2008 the Salzburg District Criminal Court acquitted the first applicant of inflicting bodily harm. The Salzburg Public Prosecutor reserved the right to initiate criminal proceedings against K.T. for perjury.

On 25 November 2008, the Salzburg District Civil Court granted the first applicant temporary sole custody of the second applicant until the finalisation of the divorce proceedings. The court relied, inter alia, on expert opinion which concluded that the first applicant was better suited to have custody. K.T. does not appear to have appealed against the judgment.

Currently, the divorce proceedings between the first applicant and K.T. are pending before the Romanian courts.

On 30 September 2008 the first applicant submitted a request for the return of the second applicant to Austria under Article 3 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). He argued that the second applicant had been removed from Austrian territory in breach of the joint custody held by the spouses at the time of the removal. On 7 October 2008 the Austrian authorities submitted the request to the Romanian Ministry of Justice (“the Romanian Ministry”), the Central Authority responsible for the obligations established under the Hague Convention.

On 28 October 2008, at the request of the Romanian Ministry, the General Police Department (Inspectoratul General al Poliţiei) confirmed that the second applicant was living with her mother, in Romania, at her grandparents’ home. Furthermore, on 3 November 2008 the Department for Social Services and Child Protection (Departamentul General de Asistenţă Socială şi Protecţia Copilului) drafted a report in relation to the second applicant. The report mainly mentioned K.T.’s statements concerning her situation in Austria, her reasons for departure as well as the maternal grandparents’ declarations concerning their commitment to provide housing and financial support to the second applicant indefinitely. It was also mentioned that the second applicant did not appear to be an abused or neglected child and that she was very attached to her mother and her maternal grandparents. The report concluded that the second applicant had appropriate living conditions, both from a material and emotional point of view.

On 5 December 2008 the Romanian Ministry instituted proceedings on behalf of the first applicant before the Bucharest County Court. By a judgment of 28 January 2009, communicated on 28 May 2009, the Bucharest County Court found in favour of the first applicant, ordering the return of the second applicant to Austria. The Bucharest County Court held that the request fell under Article 3 of the Hague Convention and that none of the exceptions provided for under Article 13 applied.

K.T. appealed. She submitted several pieces of evidence, including declarations of her parents as witnesses given before a Romanian Court in the context of the divorce and custody proceedings. She further submitted a welfare report drafted by the Custody Service within the Timişoara City Hall (Serviciul de Autoritate Tutelară din cadrul Primariei Municipiului Timişoara). The report included information on K.T.’s family situation, living conditions, and K.T.’s declarations in relation to the circumstances of her living and departing from Austria. Finally, the report recommended that K.T. were awarded the custody over the second applicant.

By a final judgment delivered on 8 July 2009, and rendered in written form on 17 September 2009, the Bucharest Court of Appeal allowed the appeal on points of law, holding that the return of the second applicant to Austria would expose her to physical and psychological harm, within the meaning of Article 13 § 1 (b) of the Hague Convention. On the merits, the Bucharest Court of Appeal held that the first applicant had shown violent behaviour towards K.T., as the Salzburg District Civil Court had maintained when granting K.T. the interim injunction of 8 February 2008. The Bucharest Court of Appeal further held that the first applicant had breached the restraining order in September 2008, which determined K.T. to come to Romania. Finally, the domestic court reasoned that even if there was no evidence of a violent behaviour of the first applicant towards the child, this could be inferred from his behaviour towards K.T. and from K.T.’s departure to Romania. The Salzburg District Civil Court’s judgment of 25 November 2008 was set aside on the ground that by that time K.T. and the second applicant had already left Austria.

Throughout the domestic proceedings, the Romanian Ministry informed the Austrian authorities of the progress of the Hague Convention proceedings. The information included the date of the hearings and whether or not an appeal had been lodged. From the evidence adduced to the case file, it appears that the Romanian Ministry did not have any direct contact with the first applicant in connection with the Hague Convention proceedings.

The relevant provisions of the Hague Convention, which entered into force in respect of Romania on 30 September 1992, read, in so far as relevant, as follows.

“The removal or the retention of a child is to be considered wrongful where –

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”

“A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. [..]”

“Central Authorities shall co-operate with each other and promote cooperation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures –

f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; [..]”

“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.”

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”

“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”

Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“the Regulation”), in so far as relevant reads as follows:

(17)“In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. [...]”

“1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention [..], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.

A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.

Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.

A court cannot refuse to return a child on the basis of Article 13 (b) of the [...] Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.

If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.

Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives [a copy of an order on non-return pursuant to Article 13 of the Hague Convention and of the documents relevant to that order] must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. [..]”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary and non-pecuniary damage - award

András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicant was born in 1978 and lives in Kaunas.

The applicant owned a flat together with another person, I.B. On 15 May 2001 the applicant and I.B. disconnected the flat from the central heating system provided by the company “Litesko Ltd.” (hereinafter – Litesko), and signed a contract with an alternative heating provider. On 15 June 2001 the new provider’s heating system was installed in the flat. On 6 August and repeatedly on 17 October 2001 the applicant informed Litesko about the termination of their old agreement. According to the applicant, in the following months they received no bills from the old heating provider. In February 2002, however, Litesko sent a bill for heating to the applicant and I.B.

Following the refusal by the applicant to pay the bill, Litesko filed a civil claim for payment for the period from 1 January 2002 to 1 September 2003.

On 7 June 2004 the Palanga City District Court (hereinafter - the Palanga Court) dismissed the claim by Litesko. The court observed that the owners of the flat were free to choose their heating provider and they had informed the plaintiff about the termination of the agreement and properly disconnected from the heating system. The court concluded that the plaintiff itself had acknowledged that it no longer supplied heating to the flat. It was also established that the applicant together with I.B. and Litesko were no longer in a contractual relationship for heat consumption. The Palanga Court noted that the claim filed by the plaintiff was an unsubstantiated attempt to enrich itself at the expense of the other party.

Litesko missed the time-limit for lodging an appeal and its request to renew it was dismissed. Neither of the parties requested re-opening of the proceedings.

In 2006 Litesko brought a new claim against the applicant and I.B., requesting payment for heating for the period 1 April 2004 to 1 September 2005.

On 20 March 2006 the Kaunas City District Court upheld the claim and awarded Litesko 490 Lithuanian litai (LTL; approximately 142 euros (EUR)) against each of the owners. Having re-interpreted the domestic law, the court ruled that the applicant and I.B. were still in a contractual relationship with Litesko because they had arbitrarily disconnected the heating system and thus they had to pay for the heating. The court found that the 7 June 2004 court decision did not have res judicata effect as the new claim concerned a different period of time, and that this situation was therefore not identical to the one ruled upon earlier by another District Court.

On 20 June 2006 the Kaunas Regional Courta contractual relationship between the parties and the supply of heating to the flat.

The applicant did not have the right to lodge a cassation appeal as the amount of the claim was smaller than the minimum required by domestic law for the lodging of such an appeal.

Article 279 § 4 of the Code of Civil Procedure provides that once a judgment, decision or ruling becomes effective, the parties or other persons to the proceedings as well as the successors to their rights may not raise once again the same claims on the same grounds, and may not contest the facts and legal relations that had been established by a court in another case.


BETSON AND COCKRAM v. THE UNITED KINGDOM

The applicants, Mr Raymond Betson (“the first applicant”) and William Cockram (“the second applicant”), are British nationals. The first applicant was born in 1961 and is currently detained in HMP Whitemoor. No details were provided as to the date of birth or current location of the second applicant.

On 7 November 2000 the applicants and four accomplices attempted to steal the contents of the De Beers Millennium Diamond Exhibition at the Dome in Greenwich by driving a JCB digger into the said exhibition. The value of the gems they were trying to steal was 200 million pounds sterling. The applicants and their accomplices were caught in the act.

On 5 November 2001 the applicants stood trial at the Central Criminal Court on charges of conspiracy to steal and conspiracy to rob. They pleaded guilty to conspiracy to steal but not guilty to conspiracy to rob. The only issue at trial was, therefore, whether there was a conspiracy to rob.

The trial lasted three months. There were many witnesses, including Police Constable W, who gave evidence about ‘The Play’ (a book that he had written about the attempted theft) and G, a prosecution expert who gave evidence about the configuration of the transceivers used by the applicants. The first applicant, in the course of giving evidence, lied about the presence of another man in his car. The trial judge (“the judge”) warned him about the risk of his being in contempt of court. Later, when summing up, the judge directed the jury that the said lies were irrelevant to the first applicant’s guilt.

The judge admitted that he ‘nodded off’ during the closing speeches. A solicitor’s clerk who was present at the trial noted that there were a few occasions towards the end of the trial when the judge slumped in his chair, fell asleep and was awakened by the sound of his own snoring. A journalist who was also present observed the judge fall asleep on about half a dozen occasions. The journalist could not recall when the judge had fallen asleep, other than on one occasion during the early stages of the closing speeches. The applicants’ counsel did not raise any issue at the trial in relation to the judge’s falling asleep.

On 18 February 2002 the jury put a complicated question to the judge about the use of force. The applicant did not explain how the judge responded to this question. Later that day, the jury convicted the applicants of conspiracy to rob. The judge sentenced each of them to 18 years’ imprisonment.

The applicants appealed. The first applicant, who was represented by junior counsel during his appeal hearing, appealed on the following grounds: in the first place, the judge displayed inadequate vigilance during the trial in falling asleep on a number of occasions; secondly, the judge improperly and inquisitorially interrupted the first applicant’s evidence on a number of occasions; thirdly, bearing in mind that the first applicant had already given evidence of his own record of dishonesty, the judge should not have taken him to task in relation to possible contempt and perjury in declining to name others to whom he had referred in the course of his evidence; fourthly, the judge at times acted like a prosecuting counsel; fifthly, the summing up was unbalanced and prejudicial to the first applicant’s case; sixthly, the judge should not have permitted the prosecution to call evidence from Police Constable W; seventhly, the judge should not have responded in detail to a question put by the jury.

The second applicant, who was represented by senior counsel, only relied on the first two of those grounds.

The Court of Appeal delivered its judgment on 22 January 2004. It made the following comments in relation to the sixth and seventh grounds of the first applicant’s appeal:

“It is to be noted that, until that stage, no defendant had named [W] and if he had not been called, the defence and, in particular, [the first applicant], would have had free rein to implicate him in the conspiracy, without him having the opportunity of denying that that was so. The plot of the book which he had written, whether prejudicial or not, was elicited in cross-examination by leading counsel on behalf of [the first applicant]. In those circumstances, we propose to say no more about [the first applicant’s] sixth and seventh grounds save that, having read the jury’s question and the way in which the judge dealt with it, we are entirely satisfied that both these grounds are devoid of merit.”

As to the second, third, and fourth grounds, the Court of Appeal found that, although on occasions the judge’s interventions were excessive, when viewed in the context of the trial as a whole, the said interventions did not render the trial unsafe. In particular it observed that, although in an ideal world the judge might have made fewer references to perjury, it was inescapably obvious that the first applicant was lying and the judge was entitled to warn him about the risk of contempt of court.

As to the fifth ground, the Court of Appeal found that, having read with care the criticised passages in the summing up, there was no substance in the complaints. In particular, the direction in relation to perjury was correct.

Finally, and as to the first ground, the Court of Appeal opined as follows:

“There remains the ground in relation to the judge’s falling asleep. Because the appearance as well as the actuality of justice being done is important, no judge ought, in any circumstances, to fall asleep during any stage of a criminal trial. It is highly regrettable that this judge did so. But because a judge falls asleep or, for any other reason, allows his or her attention to wander, it does not necessarily follow that the trial is unfair, or that any ensuing conviction is unsafe. It is the effect, not the fact, of such inattention which is crucial. This must, in each case, depend on all the circumstances, including the period of inattention, both absolute and as a proportion of the length of the whole trial; the stage of the trial at which the inattention occurs; and, of primary importance, the impact of that inattention, if any, on the course and conduct of the trial. We give two examples by way of illustration. First, if a judge is inattentive, however briefly, during a defendant’s evidence in chief and, in consequence, fails to register and, in due course, sum up to the jury, a piece of evidence crucial to the defence, the conviction may be regarded as unsafe. The unsafety arises not because the judge slept or was otherwise inattentive but because, in consequence, the summing-up was defective in that the defence was not properly put before the jury. Conversely, a conviction is unlikely to be regarded as unsafe if, during a lengthy trial, a judge is inattentive, even for substantial periods, if, in consequence, he missed no significant point meriting inclusion in his summing-up and did not fail properly to control the admissibility of evidence, the conduct of counsel or some other aspect of the proceedings.

In the present case, the judge, as he frankly and properly admits, was, for a time, asleep during the speeches of counsel for [the first applicant] and [C]. We are prepared to accept that he was also asleep on a few other occasions, sometimes to the extent that he woke himself by the sound of his snoring. It is however of some significance that, at the trial, no defendant, no counsel in the case, (of whom there were a total of 13), and no juror, was sufficiently concerned to raise the matter with the judge, other counsel, or the court usher. It is of greater significance that, before this Court, it has not been shown that, because he slept, the judge missed and failed to sum up to the jury any significant feature of the evidence or speeches. On the contrary, this summing-up, extending to approximately 250 pages of transcript and delivered, as we have said, over four days, shows every sign of having been carefully prepared. It was comprehensive and balanced, accurate as to the law and detailed as to the evidence. The defence of each defendant was fully put. Had the judge been awake when he was asleep, the appearance of justice would, of course, have been obviously enhanced. But the trial would have followed no different course. Furthermore, regrettable though it is that the judge occasionally slept, no objection having been made at the time, we are unpersuaded that the jury was, even arguably, unfairly prejudiced against any defendant, bearing in mind also the length of trial, the full, fair and accurate summing-up, the lengthy period of retirement, the pertinent question asked by the jury, and the compelling, powerful evidence against the defendants. It was for these reasons that yesterday we refused [the first applicant] and [the second applicant] leave to appeal against conviction.”

The Court of Appeal then found the original sentence of 18 years to be excessive and substituted a sentence of 15 years.

Section 2(1) of the Criminal Appeal Act 1968 (“the 1968 Act”), as amended by the Criminal Appeal Act 1995 (“the 1995 Act”), provides a single, composite right of appeal against a criminal conviction. It states that the Court of Appeal:

“(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b) shall dismiss an appeal in any other case.”

The broad intention behind this provision was summarised by the then Lord Chief Justice, Lord Bingham, in R v. Graham and Others ([1997] vol. 1 Criminal Appeal Reports p. 302 [Court of Appeal]), when he said:

“This new provision ... is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe. If the Court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the Court will dismiss the appeal. But if, for whatever reason, the court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The Court is then subject to a binding duty to allow the appeal.”

In R v. Chalkley and Jeffries ([1998] 2 All ER 155, the Court of Appeal observed, however, that it:

“...has no power under the substituted section 2(1) to allow an appeal if it does not think the conviction unsafe but is dissatisfied in some way with what went on at the trial...” (per Lord Justice Auld at page 172j).

Subsequently, the Court of Appeal modified its approach.

The scope of the “safety test” was discussed by Lord Bingham C.J. in his judgment in R v. Criminal Cases Review Commission, ex parte Pearson ([2000] 1 Criminal Appeal Reports 141 [Court of Appeal]), where he stated:

“The expression ‘unsafe’ in section 2(1)(a) of the 1968 Act does not lend itself to precise definition. In some cases unsafety will be obvious, as (for example) where it appears that someone other than the appellant committed the crime and the appellant did not, or where the appellant has been convicted of an act that was not in law a crime, or where a conviction is shown to be vitiated by some serious unfairness in the conduct of the trial or significant legal misdirection, or where the jury verdict, in the context of other verdicts, defies any rational explanation. Cases however arise in which unsafety is much less obvious: cases in which the Court, although by no means persuaded of an appellant’

This passage was subsequently cited by the Court of Appeal in the case of R v. Davis, Rowe and Johnson ([2001] 1 Criminal Appeal Reports 8), where Lord Justice Mantell, delivering the judgment of the court, stated that:

“The following is not intended to be an exhaustive statement of the principles involved. We simply extract the following. The Court is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been ‘vitiated by serious unfairness or significant legal misdirection’ ... Usually it will be sufficient for the Court to apply the test ... which, as adapted by [counsel for the Crown], might read:

‘Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?’

That being so there is no tension between s. 2(1)(a) of the Criminal Appeal Act as amended and section 3(1) of the Human Rights Act [requiring legislation to be read and given effect in a way which is compatible with Convention rights].”

Later in his judgment, Lord Justice Mantell stated that:

“We are satisfied that the two questions [the questions of ‘fairness’ and ‘safety’] must be kept separate and apart. The [European Court of Human Rights] is charged with inquiring into whether there has been a breach of a Convention right. This court is concerned with the safety of the conviction. That the first question may intrude upon the second is obvious. To what extent it does so will depend upon the circumstances of the particular case. We reject, therefore, [counsel for Johnson]’s contention that a finding of a breach of Article 6 (1) by the [European Court of Human Rights] leads inexorably to the quashing of the conviction. Nor do we think it helpful to deal in presumptions. The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree. ...”


Violation of P1-1;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in 1937 and lives in Moscow.

On 17 November 2002 the applicant arrived in Moscow from Baku. He was carrying with him 21,348 US dollars (USD), representing the proceeds from the sale of his ancestral dwelling in Baku. However, he only reported USD 48 on the customs declaration, whereas Russian law required that any amount exceeding USD 10,000 be declared to the customs. A customs inspection uncovered the remaining amount in his luggage. The applicant was charged with smuggling, a criminal offence under Article 188 § 1 of the Criminal Code, and the money was appended to the criminal case as physical evidence (вещественные доказательства).

On 8 May 2003 the Golovinskiy District Court of Moscow found the applicant guilty as charged and imposed a suspended sentence of six months’ imprisonment conditional on six months’ probation. As regards the money, it held:

“Physical evidence – 21,348 US dollars stored in the Central cash desk of the Sheremetyevo Customs Office – shall revert to the State.”

In his statement of appeal the applicant claimed his innocence and submitted that the confiscation order had no basis in the domestic law because Article 188 of the Criminal Code did not provide for confiscation as punishment.

On 29 May 2003 the Moscow City Court upheld the conviction on appeal. As regards the money, it noted that the trial court had not ordered confiscation of the money as a penal sanction, but had rather decided on the destiny of the physical evidence.

The applicant sent complaints to various Russian authorities. He pointed out that he had been living below the poverty line and that for this reason he had decided to sell the flat in Baku which he had inherited from his mother. He enclosed copies of the will and the flat sale contract. He asked for return of the lawfully acquired money on humanitarian grounds.

On 8 September 2003 the Ombudsman of the Russian Federation wrote a letter on the applicant’s behalf to the acting Moscow City prosecutor, asking him to submit a request for institution of supervisory-review proceedings in the part concerning the confiscation order. On 18 September 2003 the deputy Moscow City prosecutor replied to the Ombudsman that there were no reasons to seek institution of supervisory-review proceedings because the confiscation order had been lawful on the basis of paragraph 7 of the USSR Supreme Court’s Resolution of 3 February 1978.

On 22 October 2003 the Ombudsman asked the Prosecutor General to apply for institution of supervisory-review proceedings. He wrote, firstly, that, contrary to the requirements of the Code of Criminal Procedure, no procedural document indicated what category of physical evidence the applicant’s money belonged to. That omission entailed an incorrect decision on the destiny of the physical evidence. The applicant’s money had neither been an instrument of the crime – in smuggling cases only a hiding place could be such an instrument – nor had it been criminally acquired. Accordingly, neither paragraph 3 (1) nor paragraph 3 (4) of Article 81 of the Code of Criminal Procedure were applicable in the applicant’s situation and the money should have been returned to the lawful owner pursuant to paragraph 3 (6) of that Article. Otherwise, the confiscation order amounted to a de facto second punishment for the same offence. Finally, the Ombudsman contested the applicability of the USSR Supreme Court’s resolution of 3 February 1978. He pointed out that paragraph 7 expressly provided for application of the “current legislation”. As the new Criminal Code did not provide for confiscation in cases of smuggling, paragraph 7 could not be applied.

On 9 December 2003 the deputy Prosecutor General replied to the Ombudsman that the Presidium of the Supreme Court had already opined that the object of smuggling should be treated as the instrument of the offence and be liable to confiscation as such (he referred to the judgment in the Petrenko case, cited in paragraph 23 below).

The Ombudsman lodged a constitutional complaint on behalf of the applicant and another person.

On 8 July 2004 the Constitutional Court declared the complaint inadmissible (decision no. 251-O). It held that the legal possibility of confiscating the objects recognised as physical evidence in a criminal case, including instruments and proceeds of offences, was compatible with the international obligations of the Russian Federation undertaken under the United Nations Convention against Transnational Organised Crime and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. Hence, Article 81 of the Code of Criminal Procedure did not permit an arbitrary interference with property rights and did not violate, in itself, the complainants’ constitutional rights. The Constitutional Court concluded as follows:

“Determination of the status of the objects illegally transported across the customs border of the Russian Federation in the criminal proceedings and decision on whether they fit the description of physical evidence liable to criminal confiscation... are to be made by the court of general jurisdiction trying the criminal case... Lawfulness of, and justification for, the judicial decision on confiscation of physical evidence shall be reviewed by higher courts in criminal proceedings. The Constitutional Court of the Russian Federation is not competent to carry out such a review...”

On 24 March 2005 the Constitutional Court refused the Ombudsman’s further request for a clarification of its decision of 8 July 2004.

The United Nations Convention against Transnational Organized Crime which concerns the transnational offences and also offences of participation in an organised criminal group, laundering of the proceeds of crime, corruption, and obstruction of justice, ratified by Russia on 26 May 2004, provides as follows:

“2. States Parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate negotiable instruments across their borders, subject to safeguards to ensure proper use of information and without impeding in any way the movement of legitimate capital. Such measures may include a requirement that individuals and businesses report the cross-border transfer of substantial quantities of cash and appropriate negotiable instruments.”

“1. States Parties shall adopt, to the greatest extent possible within their domestic legal systems, such measures as may be necessary to enable confiscation of:

(a) Proceeds of crime derived from offences covered by this Convention or property the value of which corresponds to that of such proceeds;

(b) Property, equipment or other instrumentalities used in or destined for use in offences covered by this Convention.”

The Criminal Code of the Russian Federation provides that smuggling, that is movement of large amounts of goods or other objects across the customs border of the Russian Federation, committed by concealing such goods from the customs or combined with non-declaration or inaccurate declaration of such goods, carries a penal sanction of up to five years’ imprisonment (Article 188 § 1).

The Foreign Currency Act (Federal Law no. 3615-I of 9 October 1992, in force at the material time) provided that Russian residents and non-residents alike had the right to transfer, bring in, and send foreign currency to Russia without any restrictions provided that they have complied with the customs rules (sections 6 § 3 and 8 § 1).

The Code of Criminal Procedure of the Russian Federation (“CCrP”) provides as follows:

“1. Any object may be recognised as physical evidence -

(1) that served as the instrument of the offence or retained traces of the offence;

(2) that was the target of the criminal acts;

(3) any other object or document which may be instrumental for detecting a crime or establishing the circumstances of the criminal case.

On delivery of a conviction... the destiny of physical evidence must be decided upon. In such a case –

(1) instruments of the crime belonging to the accused are liable to confiscation, transfer to competent authorities or destruction;

(2) objects banned from circulation must be transferred to competent authorities or destroyed;

(3) non-reclaimed objects of no value must be destroyed...;

(4) criminally acquired money and other valuables must revert to the State by a judicial decision;

(5) documents must be kept with the case file...;

(6) any other objects must be returned to their lawful owners or, if the identity of the owner cannot be established, transferred to the State...”

Similar provisions were previously contained in Article 86 of the RSFSR Code of Criminal Procedure (cited in Baklanov v. Russia, no. 68443/01, § 20, 9 June 2005).

The Resolution of the Plenary Supreme Court of the USSR “On judicial practice regarding the offence of smuggling” (no. 2 of 3 February 1978) provided as follows:

“7. In accordance with the current legislation, the objects of smuggling are liable to confiscation to the State as physical evidence. Vehicles and other means of transport are also liable to confiscation as instruments of the offence provided that they were equipped with special hiding places for concealing goods or other valuables...”

The Resolution of the Plenary Supreme Court of the USSR “On confiscation of the instruments of the offence that were recognised as physical evidence in the case” (no. 19 of 16 August 1984) provided as follows:

“Having regard to the questions relating to the possibility of applying Article 86 § 1 of the RSFSR Code of Criminal Procedure... in cases of negligent criminal offences, the Plenary USSR Supreme Court resolves -

- to clarify that the objects belonging to the convict and declared to be physical evidence may be confiscated on the basis of Article 86 § 1 of the RSFSR Code of Criminal Procedure... only if the convict or his accomplices deliberately used them as the instruments of the crime with a view to achieving a criminal result.”

The Presidium of the Supreme Court of the Russian Federation in the case of Prosecutor General v. Petrenko (decision no. 446p98pr of 10 June 1998) granted the prosecution’s appeal against the judgment, by which Mr Petrenko had been found guilty of smuggling of foreign currency but the money had been returned to him on the ground that Article 188 of the Criminal Code did not provide for confiscation as a penal sanction. The Presidium held as follows:

“Confiscation of property as a penal sanction must be distinguished from confiscation of smuggled objects which were recognised as physical evidence. These issues must be addressed separately in the judgment...

In the meaning of [Article 86 § 1 of the RSFSR Code of Criminal Procedure] and also Article 83 of the CCrP, an instrument of the offence is any object which has been used for accomplishing publicly dangerous actions, irrespective of the main purpose of the object. Accordingly, the notion of an instrument of the offence comprises the object of the offence.

A mandatory element of a criminal offence under Article 188 of the Criminal Code is an object of smuggling that is being illegally transported across the customs border... The court found Mr Petrenko guilty of [attempted smuggling], noting that the US dollars were the object of the offence. Accordingly, it was required to decide on the destiny of physical evidence in accordance with Article 86 § 1 of the CCrP – that is, according to the rules on the instruments of the offence – but failed to do so.”


Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in 1957 and lives in Baku.

The applicant applied for registration as an independent candidate for the forthcoming elections to the Milli Majlis (Parliament) of 6 November 2005. On 19 August 2005 the Constituency Electoral Commission (“the ConEC”) for Nasimi First Election Constituency no. 21, a single-mandate constituency in Baku, registered him as a candidate.

On 26 October 2005 Police Office No. 19 of the Nasimi District Police Department informed the ConEC that the applicant was privately funding certain urban improvement works (such as laying new asphalt and repairing public recreation facilities for children) in some public areas of his constituency, allegedly with the purpose of winning over the support and votes of the local residents, in breach of the requirements of the electoral law. To this effect, the police drew up a record, signed by three police officers and two employees (A.A. and V.Q.) of the local housing utilities committee responsible for the residential buildings in question, which stated that the applicant had “laid fresh asphalt in front of the residential buildings indicated on the attached drawing ... and this fact [was] confirmed by the signatures below”.

In support of this submission, the police office submitted handwritten statements by several local residents, all of which were addressed directly to the police and expressed gratitude to the applicant for the work he had carried out in their neighbourhood. While some of the statements were dated 26 October 2005, two statements were dated 27 October 2005.

In particular, a statement by I.K., dated 26 October 2005 and addressed to Police Office No. 19, read as follows:

“I have resided at the above-mentioned address since 1989. During this time, no renovation has been done in the courtyard [of our building]. But in the last month a lot of renovation work has been carried out in the courtyard ... [a description of specific improvements follows].

The above-mentioned works were organised and carried out by our respected neighbour ... Nadir Orujov. He is a person who is willing to share all the problems of the entire neighbourhood and to assist [in resolving these problems]. We wish this person only victory in the upcoming elections”.

A statement by G.N., dated 27 October 2005 and addressed to Police Office No. 19, read as follows:

“In reply to the questions asked of me, I inform you that Nadir Oruj oglu Orujov, who has nominated himself as a candidate [for the parliamentary elections], has carried out benevolent renovation works in our courtyard in the pre-election period. He has laid fresh asphalt in front of the buildings. I have written this statement myself. I confirm [the authenticity of] my signature”.

A statement by S.A., dated 27 October 2005 and addressed to Police Office No. 19, read as follows:

“I inform you that Nadir Oruj oglu Orujov, who has nominated himself as a candidate [for the parliamentary elections], is laying fresh asphalt in front of the buildings [in our courtyard]. He is a good person. I have written this statement myself. I confirm [the authenticity of] my signature.”

Other statements were of a similar content.

According to an extract from the minutes of the ConEC meeting held on 28 October 2005, made available to the applicant and later submitted by him to the Court, the ConEC decided as follows:

“1. To take into consideration the statements by voters ...

To confirm, based on the statements and other material submitted, breaches of Articles 88.4.4 and 88.4.5 of the Electoral Code by Nadir Oruj oglu Orujov, who is registered as a candidate for the elections to the Milli Majlis.

In accordance with Article 113.2.3 of the Electoral Code, to apply to the Court of Appeal with a request for the cancellation of the applicant’s registration as a candidate owing to the breach of the requirements of Articles 88.4.4 and 88.4.5 of the Electoral Code. ...”

The full copy of the same minutes of the above ConEC meeting, as submitted by the Government, indicates that this meeting was held on 29 October 2005.

By a letter of 28 October 2005, the ConEC submitted the cancellation request to the Court of Appeal. The request stated, inter alia:

“[C]andidate Nadir Oruj oglu Orujov has breached the requirements of Article 88 of the Electoral Code and thus violated the rights of other candidates. There have been repeated oral submissions to [the ConEC] concerning his illegal actions. Finally, citizens have applied to Police Office no. 19 of the Nasimi District Police Department and requested [the police] to put an end to his illegal actions. ... It has been proved that [the applicant] conducted [certain renovation works], in breach of Articles 88.4.4 and 88.4.5 of the Electoral Code, with the purpose of buying votes. ...”

According to the applicant, he was not informed about the ConEC’s request in a timely manner.

The Court of Appeal examined the case the next day, at 11 a.m. on Saturday 29 October 2005.

According to the record of the court hearing, the court examined the documents submitted by the ConEC and heard a number of witnesses. In particular, two police officers, F. Zamanov and R. Samadov, testified that, according to “residents of the buildings” in question, the applicant had carried out unauthorised urban improvement works in the constituency.

The court also heard six local residents. It appears that three of them (G.N., R.I. and V.Q.) had submitted handwritten statements to the police earlier. These three witnesses told the court that they did not know the applicant personally and had not known who had carried out the renovation works, that on 26 October 2005 police officer F. Zamanov had approached each of them individually on the street, engaged them in conversation and informed them that the works had been carried out by the applicant, and that F. Zamanov had then asked them to write a “thank-you note” expressing their gratitude to the applicant for his efforts on behalf of the community. The witnesses said that they had not been told that their statements would be used against the applicant later.

Of the remaining three local residents, one stated that she did not know who had carried out the urban improvement works near her home, and two stated that the works had been carried out by the local residents themselves at their own expense.

In its judgment of 29 October 2005, consisting of one and a half typed pages, the Court of Appeal summarised the above-mentioned witness statements as follows:

“... witnesses F. Zamanov and R. Samadov confirmed that [the renovation works] at [the location in question] had been carried out under the instructions and with the assistance of the candidate for the elections to the Milli Majlis, N.O. Orujov. This circumstance was also confirmed by witnesses [R.I. and G.N.] when questioned at the court hearing. ...

Witnesses [V.Q. and M.M.], when questioned at the court hearing, stated that they did not know who had laid the fresh asphalt and carried out the renovation works, while witnesses [Q.H. and G.V.] stated that these renovation works had been carried out by the local residents themselves”.

The court then directly proceeded to a finding that the applicant, by carrying out renovation works in public areas “with the aim of winning over voters” and “promising to provide assistance to voters in return for their votes”, had attempted to influence the voters’ opinion in a manner prohibited by Article 88.4 of the Electoral Code. The court therefore decided to cancel the applicant’s registration as a candidate.

On 31 October 2005 the applicant enquired as to the identity of the local residents who had testified against him. He discovered that two of the persons (S.A. and T.T.) who had complained about him to the police did not actually live in his constituency and had used false addresses in their written submissions.

Three other witnesses (I.K., G.N. and V.Q.) made notarised affidavits addressed to the Supreme Court in which they retracted their previous handwritten submissions to the police, claiming that, in fact, none of them had known whether the renovation works had actually been carried out by the applicant, and that they had been either pressured or tricked by the police into making these statements, without being informed that the police intended to use them against the applicant.

The applicant lodged a cassation appeal with the Supreme Court, arguing that the evidence used against him had been fabricated, that the Court of Appeal had made manifest errors in examining the evidence and had based its decision on unproven allegations, and that therefore his registration had been cancelled arbitrarily. With his cassation appeal, he also enclosed the witness affidavits mentioned above.

On 3 November 2005 the Supreme Court dismissed the applicant’s appeal and upheld the Court of Appeal’s judgment of 29 October 2005. It refused to admit the new evidence submitted by the applicant challenging the reliability of the original evidence used against him (including the witnesses’

Article 88.4 of the Electoral Code of 2003 provides as follows:

“88.4. Candidates ... are prohibited from gaining the support of voters in the following ways:

88.4.1. giving money, gifts and other valuable items to voters (except for badges, stickers, posters and other campaign materials having nominal value), except for the purposes of organisational work;

88.4.2. giving or promising rewards based on the voting results to voters who were involved in organisational work;

88.4.3. selling goods on privileged terms or providing goods free of charge (except for printed material);

88.4.4. providing services free of charge or on privileged terms;

88.4.5. influencing the voters during the pre-election campaign by promising them securities, money or other material benefits, or providing services that are contrary to the law.”

According to Articles 113.1 and 113.2.3 of the Electoral Code, the relevant electoral commission may request a court to cancel the registration of a candidate who engages in activities prohibited by Article 88.4 of the Code.

Complaints concerning decisions of electoral commissions must be examined by the courts within three days (unless the Electoral Code provides for a shorter period). The period for lodging an appeal against a court decision is also three days (Article 112.11).

Chapter 25 of the Code of Civil Procedure sets out rules for the examination of applications concerning the protection of electoral rights (or the right to participate in a referendum). According to Article 290, such applications must be submitted directly to the appellate courts in accordance with the procedure established by the Electoral Code.

Applications concerning the protection of electoral (referendum) rights must be examined within three days of receipt of the application, except for applications submitted on election day or the day after election day, which must be examined immediately (Article 291.1). The court must hear the case in the presence of the applicant, a representative of the relevant electoral commission and any other interested parties. Failure by any of these parties to attend the hearing after due notification does not preclude the court from examining and deciding the case (Article 291.2).

The appellate court’s decision can be appealed against to the higher court (the court of cassation) within three days. This appeal must be examined within three days, or immediately if submitted on election day or the next day. The decision of the court of cassation is final (Article 292).


Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant was born in 1971 and currently lives in Riga.

On 23 November 1993 the applicant was arrested by the police and taken into custody on suspicion of having organised and paid the murder of his former business partner; the murder actually took place several days before his arrest. According to the prosecution, the applicant had paid two accomplices to strangle the victim in his car. Then, together with two other accomplices, he had driven the car with the victim’s body to another district, faked a road accident and set the car ablaze. Interrogated as a suspect, the applicant pleaded not guilty.

Three days after the applicant’s arrest, on 26 November 1993, another set of criminal proceedings was initiated against the applicant on the fact of a large-scale contraband of sugar in the Riga Free Port. On the same date, the preventive measure taken with regard to the applicant in the first criminal proceedings (concerning murder) was altered; he was released upon a written undertaking not to change his place of residence. However, three days later, on 29 November 1993, the competent prosecutor ordered the applicant’s detention on remand in the contraband case.

On 6 December 1993 the preventive measure in the murder case was revoked by the prosecutor because of the lack of evidence against the applicant. On the same date the applicant was charged with committing an aggravated contraband. On 10 February 1994 the preventive measure in the criminal proceedings concerning the contraband was also altered into a written undertaking not to change his place of residence. In March 1994 the applicant was officially indicted on a charge of aggravated contraband and forgery.

In January 1994 one of two persons having allegedly strangled the applicant’s business partner was found dead. On 1 June 1994, the other, V.Ķ., was arrested and detained on remand. Later, in September of the same year, he was released upon a written undertaking not to change his place of residence.

On 17 July 1994, in spite of his undertaking not to leave his residence, the applicant left Latvia for the United States of America.

On 5 September 1994 the Supreme Court committed the applicant to trial in the contraband case. On 21 September 1994, the prosecutor charged him with aggravated murder and ordered his detention on remand.

On 3 October 1994 the Supreme Court, examining the contraband case as a court of first instance according to the law then in force, opened the hearing on the merits of this case. As the applicant failed to appear, the preventive measure against him was changed into a detention on remand, he was placed on the wanted list, and the proceedings against him were suspended. In January 1995 the prosecutor sanctioned a search operation in order to locate the applicant’s whereabouts.

In January and February 1995 some investigative measures were taken in the murder case; namely, V.Ķ. was interrogated. The prosecutor also terminated criminal proceedings against one of the applicant’s accomplices who had allegedly helped him to dispose of the victim’s body; he was subsequently charged with concealment of a crime and intentional destruction of property.

On 11 February 1995 the pre-trial investigation of the whole case was suspended. Two days later the Prosecutor’s Office ordered the applicant’s search via the Interpol information channels. On 28 February 1995 the competent prosecutor ordered the applicant to be detained on remand.

On 28 June 1995 the Criminal Police informed the prosecutor that the applicant’s whereabouts were unknown. Consequently, on 3 July 1995 the case against him was disjoined from the rest of the murder case into a separate case file. Shortly thereafter, V.Ķ. and the other presumed accomplice disappeared and were placed on the wanted list.

On 1 September 1997 the prosecutor charged the applicant with a complicity in murder. On 2 September, the prosecutor applied to the Latgale District Court of Riga for a detention order in respect of the applicant, given the fact that under the relevant amendments to the Code of Criminal Procedure a detention on remand could not anymore be applied by a prosecutor. On 3 September 1997 the order was granted, without specifying its temporal limit.

On 12 December 1997 the Prosecutor General’s Office ordered the responsible prosecutor to redefine the charges against the applicant into an aggravated murder and unauthorised possession of a gas pistol with ammunition. On 16 February 1998 the prosecutor resumed the investigation in respect of the applicant’s three presumed accomplices, who had been located in the meantime. On the same day, the proceedings against them were partly discontinued as time-barred.

On an unspecified date, the Latvian authorities learned of the applicant’s stay in the United States. Accordingly, on 24 February 1998 the Prosecutor General’s Office asked the U.S. Department of Justice for assistance in legal matters, namely, to locate and to extradite the applicant in accordance with the Latvian-American Extradition Treaty of 1923. On 26 September 1998 the United States authorities took the applicant into custody pending extradition proceedings.

On 22 October 1999 the competent U.S. Magistrate Judge granted an order allowing the applicant’s extradition to Latvia on the charge of aggravated murder. The applicant appealed requesting a stay of the extradition order.

On 16 December 1999 the Interpol Office of the Latvian Ministry of Interior informed the Prosecutor General’s Office that the applicant was currently held in custody in California, and that the U.S. authorities had consented to his extradition to Latvia on the charge of aggravated murder. On 17 December 1999 the acting Secretary of State of the United States signed a written document approving the applicant’s deportation order. On 20 December 1999 the U.S. Marshals Service convoyed the applicant to the Frankfurt Airport (Germany), where he was handed over to the Latvian authorities. On the same date he was brought to Riga and placed in the Central Prison. On the next day, on 21 December, the Prosecutor General’s Office was notified of this fact.

On the very day of the applicant’s extradition, on 20 December 1999 the Central District Court of California stayed the extradition order of 22 October 1999.

On 22 December 1999 the competent prosecutor decided to resume the pre-trial investigation regarding the applicant. On the same date, the detention order of the Latgale District Court of 3 September 1997 was notified to the applicant, who attested it with his signature.

On 27 December 1999 the applicant’s lawyer appealed against this detention order, stating that the latter had been taken in the applicant’s absence, that the judge who had taken it had no time to acquaint himself with the criminal case file, and that the detention was authorised for an indefinite period of time. By a final decision of 18 January 2000 the Riga Regional Court rejected the appeal, declaring that the applicable domestic law allowed for such order when the accused person was absconding from justice, and that in this case, precisely, the applicant was hiding.

On 10 February 2000 the Latgale District Court, acting upon the prosecutor’s request, extended the applicant’s detention on remand until 30 April 2000, with the following reasoning:

“Taking into account the gravity of the crime committed, as well as the fact that K. Zandbergs could abscond from investigation and trial, and hinder the establishment of truth in the case...”

The applicant appealed, stating that the time he had spent in custody in the United States had to be counted as a part of the overall time of his pre-trial detention and that, consequently, this detention had exceeded the maximum time-limit set by the Code of Criminal Procedure. On 6 March 2000 the Riga Regional Court rejected the appeal, refusing to subscribe to the applicant’s interpretation. According to the court, the time of his detention on remand should be counted from the 20 December 1999 when he was surrendered to the jurisdiction of the Republic of Latvia.

On 14 February 2000 the charges against the applicant were amended. As the U.S. authorities had extradited the applicant on the condition that he would stand trial for murder, the charges regarding intentional destruction of property and illegal possession of a gas pistol were dropped.

By an order of the Latgale District Court of 25 April 2000, reasoned in terms identical to the one of 10 February 2000, the applicant’s detention on remand was extended until 31 July 2000. The applicant’s appeal was dismissed on 19 May 2000, repeating in substance the reasoning of the previous appeal decision.

On 4 May 2000 the Ziemeļu District Court of Riga dismissed the charges against the applicant in the contraband case, as there was no consent from the authorities of the extraditing State (i.e., the United States) to try him for the respective offences.

On 27 June 2000 the applicant’s detention on remand was extended until 31 September 2000, with an almost identical motivation as before; however, the Latgale District Court added that the applicant had no registered domicile in Latvia. On 11 July 2000, the applicant’s appeal was dismissed. On 16 August 2000 the criminal cases against the applicant, V.Ķ. and the two other presumed accomplices were joined again in a single case-file. However, shortly thereafter the case against these two latter persons was disjoined from the common case file.

On 18 September and 21 December 2000, the applicant’s detention on remand was extended, respectively, until 31 December 2000 and 28 February 2001. On 17 October 2000 and 9 January 2001 respectively, the Riga Regional Court rejected the applicant’s appeals. The reasoning of all these orders and decisions was the same as before.

On 18 December 2000 the applicant was officially charged with organising an aggravated murder. On 21 December 2000 the prosecutor notified all the accused persons that the pre-trial investigation was completed and that they would now be able to acquaint themselves with the case file. On the same date, the applicant and V.Ķ. received the file, which consisted of 20 volumes. On 19 January 2001 they both finished reading it; the applicant then requested the prosecutor to terminate the proceedings against him. On 5 February 2001, this request was rejected.

On 23 February 2001 the final bill of indictment was notified to the applicant. On 27 February 2001, the case file was sent to the Riga Criminal Court.

On 28 February 2001 the competent judge of the Riga Regional Court, without hearing the parties, took a decision to commit the applicant and the co-accused for trial and fixed a hearing for the period of time running between 30 April and 6 May 2002. The judge also decided that the applicant’s detention on remand “sh[ould] remain unchanged”. No term for that detention was specified. The applicant did not appeal against this decision.

On 5 and 7 March 2001 the applicant submitted two requests to the Riga Regional Court to decide on the lawfulness of his detention on remand, alleging that the consent from the United States to prosecute him had not been properly obtained. He also asked the court to order an additional pre-trial investigation and to alter the preventive measure applied to him. On 14 March 2001 the court rejected all these requests.

On 19 March 2001 the applicant requested a separate hearing on the question whether the time he had spent in custody in the United States had to be counted as a part of his pre-trial detention for the purpose of the current proceedings against him and therefore, whether the maximum time-limit of a detention set by the Code of Criminal Procedure had been exceeded. On 26 March 2001 the court rejected this request.

On 3 April 2001 the applicant asked the Regional Court to alter the preventive measure and to liberate him. On 30 April 2001, the court held a special hearing whereby both the applicant’s defence counsel and the prosecutor were heard. The court finally decided to reject the applicant’s request and to keep him in detention for basically the same reasons as before, i.e., the gravity of the crime for which he was accused, the risk of absconding and the lack of a fixed domicile. The court added that there was a risk that the applicant could commit new crimes, without developing this point.

The applicant appealed. On 21 May 2001 the Criminal Chamber of the Supreme Court found the appeal admissible and scheduled the hearing on this procedural issue to take place on 28 May 2001. On the latter date, it held a hearing and dismissed the applicant’s appeal, upholding the Regional Court’s decision. The Chamber noted, inter alia, that in 1994 the applicant had already breached the preventive measure applied to him and had fled to America.

On 31 August and 17 September 2001 respectively, the applicant applied to the Governor of the Matīsa Prison, requesting permission to make copies of two prosecutors’ replies to his complaints in order to submit them to the Court. His requests were refused by the Deputy Governor of that prison. It appears that the applicant did not appeal against the refusals.

On 30 April 2002 the Riga Regional Court commenced the hearings on the merits of the case. However, as the applicant’s co-accused V.Ķ. failed to appear, the hearing was postponed until 2 May 2002. The court also ordered the police to ensure V.Ķ.’s appearance. However, on 2 May 2002, the police informed the court that the latter had fled to Russia. The court then decided to put him on the wanted list and to adjourn the proceedings sine die.

On 3 and 20 May 2002 the applicant asked the court to alter the preventive measure applied to him. On 14 and 23 May respectively, this request was dismissed.

On 29 May 2002 the applicant asked the case against V.Ķ. to be disjoined from his into a separate file, in order to be able to proceed more speedily. On 26 June 2002 the court rejected this request and affirmed that the applicant would stay in pre-trial detention.

On 1 November 2002 a new wording of Article 77 (7) of the Code of Criminal Procedure entered into force. According to this new provision, a detention in remand should not exceed one year and six months upon committal to trial, and an extension thereto could only be granted by the Senate of the Supreme Court on an exceptional basis. Consequently, on 10 October 2002 the competent judge of the Riga Regional Court requested the Senate to grant such an extension because the applicant “[had] committed the serious offence”. On 1 November 2002 the Senate, without summoning the applicant and his defence counsel, decided to extend the applicant’s detention until 30 April 2003. The only reason mentioned by the Senate was that the applicant was accused of committing a serious and violent crime.

On 25 November 2002 the applicant applied to the Riga Regional Court requesting either to obtain an appropriate permission from the United States to try and sentence him for a criminal offence or discontinue the criminal proceedings. On 6 December 2002 the Riga Regional Court informed the applicant that his requests will be examined at the hearing on the merits of the case. On 23 December 2002 the applicant repeatedly requested the Riga Regional Court to take an express decision on this issue, but to no avail. On 7 January 2003 the court informed the applicant that all his requests should have been decided at the preparatory hearing, according to the relevant Article of the Code of Criminal Procedure. However, as they had been submitted after the preparatory hearing, they were not subject to any other review at this stage of proceedings.

On 3 March 2003 the Riga Regional Court commenced the hearing on the merits of the case. The applicant immediately tried to discharge the prosecutor, accusing him of committing a criminal offence and of forging evidence. The court rejected the applicant’s requests. On 11 March 2003, it resumed the hearing. The applicant tried to have the whole panel of three judges discharged because of their alleged impartiality in addressing the issue of the prosecutor. The court, again, dismissed the applicant’s requests. It also ordered the police to ensure the presence of some summoned witnesses who had failed to appear. On the next day, the witnesses failed to appear again. The court, again, ordered the police to bring them under constraint.

At the hearings of 14 and 17 March 2003 the applicant attempted again to have both the prosecutor and the judges dismissed, but in vain. The court also ordered the police to ensure the appearance of one remaining witness who had failed to appear.

At the same hearings, referring to Article 487 of the Code of Criminal Procedure, the applicant also requested the court either to obtain an appropriate permission from the United States to try him or to terminate the proceedings. His request was dismissed.

On 4 April 2003 the Riga Regional Court found the applicant guilty of organising the murder and sentenced him to nine years of imprisonment. The time he had spent in pre-trial detention or custody both in Latvia and in the United States was counted as a part of the sentence. As to V.Ķ., he was acquitted of murder, but found guilty of wilful destruction of property and sentenced to five years of imprisonment.

The applicant appealed the judgment. He stated, inter alia, that he had been convicted in breach of Article 487 of the Code of Criminal Procedure as the consent from the extraditing state to try and sentence him had not been obtained. On the other hand, he did not repeat his grievances in respect of the alleged partiality of the trial court in his appeal.

On 26 June 2003 the Criminal Chamber of the Supreme Court found the applicant’s appeal admissible. On 15 October 2003 it held its first hearing, whereby the applicant requested a series of investigative measures in order to verify several pieces of evidence. His requests were granted, and the hearing was adjourned. On 3 November and 23 December 2003 and on 21 January, 3 March and 25 May 2004 the applicant filed additional observations to supplement his appeal. Moreover, on 15 December 2003 the American lawyer who had represented the applicant in the extradition proceedings in the United States sent a letter to “the Latvian High Court Criminal Division” (sic), stating that the applicant had been deported from the United States while the extradition proceedings had been pending.

On 16 January 2004 the applicant filed a complaint with the Prosecutor General’s Office complaining about undue delays in the appeal proceedings. The complaint was transmitted to the Criminal Chamber of the Supreme Court. On 12 February 2004 the President of the Criminal Chamber found that the proceedings were postponed lawfully. The applicant sent an essentially identical complaint to the Ministry of Justice, which also forwarded it to the Criminal Chamber. In reply, the latter informed the applicant that a hearing in his case was fixed for 2 June 2004.

By a judgment of 3 June 2004 the Criminal Chamber of the Supreme Court dismissed the applicant’s appeal. It upheld the evaluation of the evidence by the first instance court in full. It also noted that the consent from the extraditing state to try him for the criminal offence had been lawfully obtained; in this respect the Chamber referred to a document signed by the US acting Secretary of State on 17 December 1999 approving the applicant’s deportation order.

The applicant filed a cassation appeal, reiterating his argument based on Article 487 of the Code of Criminal Procedure. On 3 September 2004 the Senate of the Supreme Court declared the cassation appeal inadmissible for lack of arguable points of law. It considered inter alia that the document signed by the acting Secretary of State of the United States on 17 December 1999 had never been quashed and therefore the consent of the extraditing state to try the applicant had been lawfully obtained.

In 2007, having served his sentence, the applicant was released from prison.

The relevant provisions of domestic law are summarised in Svipsta v. Latvia (no. 66820/01, §§ 52-66, ECHR 2006III).

In addition, other relevant provisions of the former Code of Criminal Procedure in force at the material time read as follows:

“A person who is extradited from a foreign state shall not, without a consent of the extraditing state, be charged with committing an offence and subsequently tried or surrendered to a third state for an offence he has committed prior to the extradition and in respect of which he has not been extradited.

(3rd paragraph added on 9 December 1999) The time period spent in detention in a foreign state shall not be counted as a part of the overall length of detention on remand, but it shall be included in the imprisonment term to be served.”

“A person may only be indicted and tried for the criminal offence for which he had been extradited.

These conditions do not apply to the cases where:

1) a consent from the extraditing state to indict and to try the person for other offences committed before the extradition has been received;

2) the offence was committed after the person had been surrendered to Latvia;

3) the person has not left Latvia within 45 days after his liberation, although he had had such possibility;

4) the person had left Latvia after the extradition and had returned therein. ...”

Article IV of the Treaty of Extradition of 16 October 1923 between Latvia and the United States, in force until 2009, read as follows:

“No person shall be tried for any crime or offense other than that for which he was surrendered.”


Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants were born in 1960 and 1928 respectively and live in Budapest.

On 8 November 1996 the applicants brought an action against Mr M., claiming moral damages for the latter’s insulting behaviour. The Dombóvár District Court initially suspended the proceedings pending the outcome of the criminal case being conducted against the respondent. A first judgment was eventually given on 15 April 1998 but was quashed on appeal on 27 May 1999. Subsequently, the case was assigned to the Szekszárd District Court. This court joined two further cases pending between the same parties to the principal action.

The joint proceedings later continued before the Buda Surroundings District Court. This court held numerous hearings between 24 January 2002 and 27 March 2007. Although the applicants did not attend several hearings, it appears that they requested the court to continue with their case in their absence. Ultimately, the District Court found for the applicants on 31 May 2007.

On 10 June 1999 Mr Kalmár brought an official liability action against the Attorney General’s Office. The case was assigned to the Pest County Regional Court. On 17 September 2000 this court adjudicated some of the plaintiff’s claims and disjoined others, the examination of which was suspended pending the outcome of another case. In the latter connection, the proceedings were resumed on 19 December 2001. However, no hearing took place until 4 October 2006. Further hearings took place on 14 March 2007 and 14 April 2008. According to the information in the case file, this case is still pending.

In 2001 Mr Kalmár was found guilty of making false accusations. On 30 July 2003 he requested a retrial. According to the information in the case file, that request is still pending.

On 5 August 2004 Ms J. filed a criminal report against Mr Kalmár, accusing him of libel. A hearing took place on 20 March 2006, at which Mr Kalmár complained that he had not been properly informed of the charges against him. His motion for bias against the police authority dealing with the case was dismissed, and his ensuing complaint, filed on 3 December 2004, does not appear to have been answered.

On 17 May 2006 Mr Kalmár challenged the Budapest XX/XXI/XXIII District Court for bias. His motion was rejected on 2 June 2006. According to the information in the case file, these proceedings are still pending.


The applicant was born in 1949 and lives in Zaporizhzhya.

On an unspecified date the Zavodsky District Court of Zaporizhzhya (“the District Court”) gave an unspecified decision on the claim of the applicant’s former husband, Z., lodged against the applicant for division of their property. By a final ruling of 5 February 1985, the Zaporizhzhya Regional Court (“the Regional Court”, since June 2001, the Zaporizhzhya Regional Court of Appeal), ordered Z. to compensate the applicant for her share of their property.

In 1985 the Prosecutor’s Office of Zaporizhzhya and the Zavodsky District Police Department invited the applicant to discuss the residence registration of her daughter, O.

In 1988-1989 the applicant lodged claims with the Budenovsky District Court of Donetsk and Donetsk Regional Court seeking division of her common property with Z. There is no indication whether and, if so, how these claims were handled by the courts.

In 1991-2005 the applicant unsuccessfully tried to have her brothers, K.Vi. and K.Vo., prosecuted for hooliganism and theft. She was not found to be a civil party to these proceedings.

On 9 November 1992 K.Vi. and K.Vo. lodged a claim against the applicant challenging the validity of their mother’s will over a house and belongings.

On 25 September 1998 the District Court partly allowed the claim.

Following a “protest” of the Zaporizhzhya Regional Prosecutor of 25 September 1998, the Regional Court quashed this judgment on 25 December 1998 and remitted the case to the Distrcit Court which, on19 February 2004 partly allowed the applicant’s claim.

On 26 May 2004 the Regional Court upheld this judgment. On 22 June the applicant appealed in cassation. On 12 July 2006 she requested the Supreme Court to speed up examination of her case. By a final ruling of 4 October 2006, notified to the applicant on 19 October, the Supreme Court upheld the lower court’s decisions.

According to the Government, between 11 September 1997 and 4 October 2006, the applicant filed three procedural requests and two appeals which all met procedural requirements. Moreover, of the twenty nine hearings scheduled, eleven were adjourned at the claimants’ request, five were adjourned at the applicant’s request, four were adjourned due to the claimants’ or witness’s failure to attend, one was adjourned due to the applicant’s failure to attend, one was adjourned at the parties’ request, and three were adjourned for reasons beyond the parties’ control. Overall, due to the applicant’s requests or her failure to attend, the proceedings were delayed for about eleven moths.