Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicant, Mr Vasile Balan, is a Moldovan national who was born in 1956 and lives in Pănăşeşti. He was represented before the Court by Mr Lilian Osoian, a lawyer practising in Chişinău. The Government were represented by their Agent, Mr Vladimir Grosu.

The facts of the case may be summarised as follows.

On 28 September 2003 the applicant was accidentally injured by an individual, D., sustaining an injury to his left thigh bone. On an unspecified date the applicant instituted civil tort proceedings against D., seeking a court order obliging D. to pay him compensation for pecuniary damage.

On 26 November 2004 the Străşeni District Court ordered D. to pay the applicant 7,184 Moldovan lei (MDL) (the equivalent of 435 euros (EUR) in compensation for pecuniary damage and MDL 215 (EUR 13) for legal fees. This decision was final and an enforcement warrant was issued. It has not been enforced to date.

On 28 July 2009 the Court delivered the Olaru and others pilot judgment (see Olaru and Others v. Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, 28 July 2009) in which it found, inter alia, that the problem of non-enforcement of domestic judgments awarding social housing to different categories of individuals disclosed the existence of a “systemic problem”. The Court ordered, inter alia, that the respondent State set up an effective domestic remedy which secures adequate and sufficient redress for non-enforcement or delayed enforcement of final domestic judgments (see Olaru and others, cited above, § 58 and point 4 of the operative part).

On 20 September 2011 the Moldovan Government informed the Court that on 1 July 2011 a new law (Law no. 87) entered into force, instituting a remedy against the problem of non-enforcement of final domestic judgments and against the problem of unreasonable length of proceedings.

On 29 September 2011 the Registry of the Court informed the applicant and all other applicants in the same position of the new remedy, asking whether they intended to make use of it within the six-month time-limit set by Law No. 87 (see paragraph 9 below). The applicants’ attention was drawn to the fact that according to Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted and that failure to observe the above rule could constitute a reason for declaring the application inadmissible.

By a letter of 10 November 2011 the applicant informed the Court in response that he was not intending to use the new remedy because it was not effective. In particular, the applicant argued that even the denomination of Law no. 87 suggested that it offered a remedy only when a final judgment had not been enforced in a timely manner but not when the judgment had not been enforced at all. In the applicant’s view, the law did not provide for a mechanism to trigger a rapid enforcement of an unenforced final judgment. Moreover, the applicant submitted that it would be an excessive burden for him to be requested to go back to the domestic courts and attempt to exhaust the new remedy.

According to Law no. 87 anyone who considers him or herself to be a victim of a breach of the right to have a case examined or a final judgment enforced within a reasonable time is entitled to apply to a court for the acknowledgement of such a breach and compensation. According to section 1 of the law, it should be interpreted and applied in accordance with the national law, the Convention and the Court’s case-law. According to section 4 of the law the courts are obliged to deal with applications lodged under the law within three months. Section 5 of the law states that if a breach of the right to have a case examined or a final judgment enforced within a reasonable time is found by a court, compensation for pecuniary damage, non-pecuniary damage and costs and expenses have to be awarded to the applicant. Section 6 of the law simplifies the procedure of enforcement of judgments adopted under the law so as no further applications or formalities should be required from the part of the applicants. Under section 7 of the law all individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts within six months of the entry into force of the new law, provided that the European Court has not ruled on the admissibility and merits of the complaint.

At the same time the Code of Civil Procedure was modified in such a manner as to reduce the number of instances of appeal from two to one and to waive court fees for such proceedings.


CASE OF O'HALLORAN AND FRANCIS v. THE UNITED KINGDOM

No violation of Art. 6-1;No separate issue under Art. 6-2

Alvina Gyulumyan;Christos Rozakis;Egbert Myjer;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Luzius Wildhaber;Matti Pellonpää;Nicolas Bratza;Snejana Botoucharova;Stanislav Pavlovschi;Volodymyr Butkevych

The applicants were born in 1933 and 1939 and live in London and Petersfield respectively.

On 7 April 2000, at 4.55 a.m., a vehicle of which the applicant was the registered keeper, registration number T61 TBX, was caught on a speed camera driving at 69 miles per hour (mph) on the M11 motorway where the temporary speed limit was 40 mph.

On 17 April 2000, the police camera enforcement unit of the Essex Constabulary wrote to the applicant:

“I have photographic evidence that the driver of T61 TBX failed to comply with the speed limit ... It is intended to institute proceedings against the driver for the offence of failing to comply with the speed limit ... You have been named as the driver of the vehicle at the time of the alleged offence and have a legal obligation to comply with the provisions of the notice contained on page 2. I must warn you that if you fail to comply with this demand within 28 days you will commit an offence and be liable on conviction to a maximum penalty similar to that of the alleged offence itself – a fine of £1,000 and 3-6 penalty points.”

The attached Notice of Intended Prosecution informed the applicant that it was intended to institute proceedings against the driver of the vehicle. He was asked to furnish the full name and address of the driver of the vehicle on the relevant occasion or to supply other information that was in his power to give and which would lead to the driver’s identification. He was again informed that a failure to provide information was a criminal offence under section 172 of the Road Traffic Act 1988.

The applicant answered the letter confirming that he was the driver at the relevant time.

On 27 March 2001 the applicant was summoned to attend North Essex Magistrates’ Court where he was tried for driving in excess of the speed limit. Prior to the trial, the applicant sought to exclude the confession made in response to the Notice of Intended Prosecution, relying on sections 76 and 78 of the Police and Criminal Evidence Act 1984 read in conjunction with Article 6 of the Convention. His application was refused in the light of the decision of the Privy Council in Brown v. Stott [2001] 2 WLR 817. Thereafter the prosecution relied upon the photograph of the speeding vehicle and the admission obtained as a result of the section 172 demand. The applicant was convicted and fined 100 pounds sterling (GBP), ordered to pay GBP 150 costs and his licence was endorsed with six penalty points.

On 11 April 2001 the applicant asked the magistrates to state a case for the opinion of the High Court:

“Whether in the circumstances of this case, the admission that the defendant was indeed the driver should have been excluded under sections 76 and 78 of the Police and Criminal Evidence Act 1984 having regard to the Human Rights Act and the recent cases decided by the European Court as he had been obliged to incriminate himself?”

On 23 April 2001 the magistrates’ clerk informed the applicant that the magistrates refused to state a case as the issue had already been decided definitively by the Privy Council in Brown v. Stott (cited above) and by the High Court in Director of Public Prosecutions v. Wilson ([2001] EWHC Admin 198).

On 19 October 2001 the applicant’s application for judicial review of the magistrates’ decision was refused.

A car of which the applicant was the registered keeper was caught on speed camera on 12 June 2001 driving at 47 mph where the speed limit was 30 mph.

On 19 June 2001 the Surrey Police sent the applicant a Notice of Intended Prosecution in the following terms:

“In accordance with section 1, Road Traffic Offenders Act 1988, I hereby give you notice that proceedings are being considered against the driver of Alvis motor vehicle registration mark EYX 622 ...

This allegation is supported by means of photographic/recorded video evidence. You are recorded as the owner/keeper/driver or user for the above vehicle at the time of the alleged offence, and you are required to provide the full name and address of the driver at the time and location specified. Under section 172 of the Road Traffic Act you are required to provide the information specified within 28 days of receipt of this notice. Failure to supply this information may render you liable to prosecution. The penalty on conviction for failure to supply the information is similar to that for the offence itself, i.e. a fine and penalty points.”

On 17 July 2001 the applicant wrote to the Surrey Police invoking his right to remain silent and privilege against self-incrimination.

On 18 July 2001 the Surrey Police informed the applicant that the appeal in Brown v. Stott, cited above, held that section 172 did not infringe the said rights.

The applicant refused to supply the information.

On 28 August 2001 the applicant was summoned to the Magistrates’ Court for failing to comply with section 172(3) of the Road Traffic Act 1988. He obtained an adjournment.

On 9 November 2001 the Magistrates’ Court agreed to a further postponement, apparently with reference to the applicant’s proceeding with an application in Strasbourg. The applicant wrote to the Court on 15 November 2001, relying on Article 6 §§ 1 and 2 of the Convention.

On 8 February 2002 the Magistrates’ Court cancelled the postponement and fixed the trial for 15 April 2002, on which date the applicant was convicted and fined GBP 750 with GBP 250 costs and three penalty points. He states that the fine was substantially heavier than that which would have been imposed if he had pleaded guilty to the speeding offence.

Section 172 of the Road Traffic Act 1988 (“the 1988 Act”) deals with the duty to give information of a driver of a vehicle in certain circumstances. Subsection (1) refers to the traffic offences to which the section applies. They include parking on a cycle track (under section 21 of the 1988 Act) and causing death by reckless driving (section 1), offences under a number of other provisions, including speeding, and manslaughter by the driver of a motor vehicle.

Subsection 2 provides:

“Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies –

(a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and

(b) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.”

Subsection 3 provides:

“Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.”

Subsection 4 provides:

“A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.”

A person guilty of an offence under subsection 3 can be disqualified or have his licence endorsed with three penalty points; he may also be fined up to level three on the standard scale, that is, GBP 1,000.

Section 12(1) of the Road Traffic Offenders Act 1988 provides that on summary trial for a relevant offence, including speeding offences, a statement in writing signed by the accused under section 172(2) of the 1988 Act that he was the driver of the vehicle on that occasion may be accepted as evidence of that fact.

Section 76 provides

“(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section;

(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained –

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

Section 78(1) provides:

“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

In Brown v. Stott, cited above, the Privy Council considered the case of a woman arrested for shoplifting in the vicinity of a car that appeared to be hers. She was breathalysed and tested positive for alcohol consumption. With a view to ascertaining whether she had been guilty of driving her car while under the influence of alcohol (contrary to section 5 of the 1988 Act), the police served her with a section 172 notice. The Procurator Fiscal sought to use her answer that she had been driving as the basis for a prosecution for driving with excess alcohol. The High Court of Justiciary allowed the defendant’s appeal, finding that the prosecution could not rely on evidence of the admission which she had been compelled to make.

On appeal by the Procurator Fiscal, the Privy Council found that the use of the admission did not infringe the requirements of Article 6 of the Convention. Lord Bingham of Cornhill, giving the leading judgment, held, inter alia:

“The high incidence of death and injury on the roads caused by the misuse of motor vehicles is a very serious problem common to almost all developed societies. The need to address it in an effective way, for the benefit of the public, cannot be doubted. Among other ways in which democratic societies have sought to address it is by subjecting the use of motor vehicles to a regime of regulation and making provision for enforcement by identifying, prosecuting and punishing offending drivers. Materials ... incomplete though they are, reveal different responses to the problem of enforcement. Under some legal systems (Spain, Belgium and France are examples) the registered owner is presumed to be the driver guilty of minor traffic infractions unless he shows that some other person was driving at the relevant time or establishes some other ground of exoneration. There being a clear public interest in enforcement of road traffic legislation the crucial question in this case is whether section 172 represents a disproportionate response, or one that undermines a defendant’s right to a fair trial, if an admission of being the driver is relied on at trial.

I do not for my part consider that section 172, properly applied, does represent a disproportionate response to this serious social problem, nor do I think that reliance on the respondent’s admission in the present case, would undermine her right to a fair trial. I reach that conclusion for a number of reasons.

Section 172 provides for the putting of a single, simple question. The answer cannot of itself incriminate the suspect, since it is not without more an offence to drive a car. An admission of driving may, of course, as here, provide proof of a fact necessary to convict, but the section does not sanction prolonged questioning about facts alleged to give rise to criminal offences such as understandably was held to be objectionable in Saunders, and the penalty for declining to answer under the section is moderate and non-custodial. There is in the present case no suggestion of improper coercion or oppression such as might give rise to unreliable admissions and so contribute to a miscarriage of justice, and if there were evidence of such conduct the trial judge would have ample power to exclude evidence of the admission.

While the High Court was entitled to distinguish ... between the giving of an answer under section 172 and the provision of physical samples, and had the authority of the European Court in Saunders ... for doing so, this distinction should not in my opinion be pushed too far. It is true that the respondent’s answer whether given orally or in writing would create new evidence which did not exist until she spoke or wrote. In contrast, it may be acknowledged, the percentage of alcohol in her blood was a fact, existing before she blew into the breathalyser machine. But the whole purpose of requiring her to blow into the machine (on pain of a criminal penalty if she refused) was to obtain evidence not available until she did so and the reading so obtained could, in all save exceptional circumstances, be enough to convict a driver of an offence ... [I]t is not easy to see why a requirement to answer a question is objectionable and a requirement to undergo a breath test is not. Yet no criticism is made of the requirement that the respondent undergo a breath test.

All who own or drive motor cars know that by doing so they subject themselves to a regulatory regime. This regime is imposed not because owning or driving cars is a privilege or indulgence granted by the State but because the possession and use of cars (like, for example, shotguns ...) are recognised to have the potential to cause grave injury. It is true that section 172(2)(b) permits a question to be asked of ‘any other person’ who, if not the owner or driver, might not be said to have impliedly accepted the regulatory regime, but someone who was not the owner or driver would not incriminate himself whatever answer he gave. If, viewing this situation in the round, one asks whether section 172 represents a disproportionate legislative response to the problem of maintaining road safety, whether the balance between the interests of the community at large and the interests of the individual is struck in a manner unduly prejudicial to the individual, whether (in short) the leading of this evidence would infringe a basic human right of the respondent, I would feel bound to give negative answers. If the present argument is a good one it has been available to British citizens since 1966, but no one in this country has to my knowledge, criticised the legislation as unfair at any time up to now.”

The decision was adopted by the English High Court in Director of Public Prosecutions v. Wilson, cited above.


Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - financial award

The applicant was born in 1972 and lives in Krasnoyarsk in the Russian Federation.

The applicant arrived in the Republic of Latvia as a member of the ex-USSR armed forces located in the territory of Latvia. On an unspecified date in the beginning of the 1990s he and Ms B., a Latvian citizen, started living together in de facto partnership. In 1993 a child was born to the applicant and his partner.

After the military forces were withdrawn from Latvia, the applicant resided there between 11 June 1993 and 31 March 1994 on the basis of a temporary residence permit. On 31 March 1994, upon the expiry of the residence permit, he left Latvia.

Between 1994 and 1997 the applicant visited Latvia three times on the basis of a visa. The validity of the last visa expired on 17 November 1997 but the applicant continued to reside in Latvia illegally.

On 19 February 1998 the applicant was apprehended by the police and taken into custody on suspicion of having committed robbery and criminal proceedings were initiated against him and seven co-accused persons.

On 20 February 1998 the applicant was brought before a judge of the Ziemeļu District Court of the City of Riga who decided to detain him on remand. The judge filled in a standard form by typing in the date, the names of the court and the applicant and other details of the case. In substantiating the decision, the judge had to choose from and underline the pre-typed text of the standard form. She took into account the severity of the crime the applicant was suspected of, the danger of his possible absconding and the possibility that he could impede the investigation. However, the judge did not underline the pre-typed text as to whether or not a preventive measure should be imposed on the applicant. He did not appeal this decision.

On 17 March 1998 the applicant was officially charged with robbery.

On 9 April, 11 June, 10 August and 13 October 1998 a judge of the Ziemeļu District Court of the City of Riga, on the request of the prosecutor in charge of investigation, extended the applicant's detention on remand until 19 June, 19 August, 19 October and 12 December 1998 respectively. The applicant was not brought before the judge. The decisions were drafted using a standard form and repeated from one decision to the next the same grounds in the same words, i.e. the severity of the crime the applicant was charged with, the danger of his possible absconding and the possibility that he could impede the investigation. The applicant did not appeal any of these decisions.

On 30 October 1998 the prosecutor in charge of investigation and the applicant discussed the possibility of releasing him on bail.

On 25 November 1998, according to the prosecutor's permission, the applicant and his partner met in order to discuss the details of the applicant's release on bail without reaching any agreement in this respect.

On 10 December 1998, 11 January, 29 January, 20 February and 19 March 1999 a judge of the Ziemeļu District Court of the City of Riga, on the request of the prosecutor in charge of investigation, extended the applicant's detention on remand until 12 January, 29 January, 20 February, 20 March and 20 April 1999 respectively. The applicant was not brought before the judge. The decisions were drafted using a standard form and repeated, from one decision, the same grounds and in the same words, i.e. the severity of the crime the applicant was charged with, the danger of his possible absconding and the possibility that he could impede the investigation. The applicant did not appeal any of these decisions.

On 21 April 1999 the applicant was given access to the case file in order to take cognisance of its contents, which he completed on 29 October 1999.

On 7 August 2000 the last of the co-accused persons completed the reading of the case file.

On 23 August 2000 the investigating prosecutor N. informed all accused persons that the examination of the case file had been completed. The prosecutor, considering the fact that the applicant resided in Latvia illegally, the danger of his possible absconding and the possibility that he could impede the investigation, refused the applicant's request to alter the preventive measure imposed on him. The applicant did not appeal this decision. On the same day the final indictment, drafted by the prosecutor N., was presented to the applicant.

On an unspecified date the case was transmitted to the Riga Regional Court for adjudication.

During the preliminary investigation the applicant asked the prosecutor in charge of investigation for permission to correspond with his relatives; these requests, using a standard form, were refused as being contrary to the interests of investigation.

On 1 February 1999 the applicant asked the prosecutor for permission to meet his partner. His request was refused on 8 February 1999.

On 27 June 1999 the applicant asked the prosecutor for permission to exchange correspondence with his parents, who were living in Russia.

On 5 July 1999 the prosecutor informed the applicant that he was not allowed to meet his partner or to exchange correspondence with his parents.

On 22 July 1999 the applicant asked the prosecutor for permission to exchange correspondence with his relatives and to meet his partner and their child. These requests were refused on 2 August 1999.

On 10 August 2000 the applicant asked the prosecutor for permission to exchange correspondence with his mother and his partner.

On 16 August 2000 the prosecutor allowed the applicant to exchange correspondence with his mother.

On 13 September 2000 a judge of the Riga Regional Court allowed the applicant to exchange correspondence with his partner.

The applicant spent the whole period of detention from 19 February 1998 to 19 August 2002 in a remand prison. According to the Instruction on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons (hereinafter referred to as “the Instruction”), approved by the Minister of the Interior, and Transitional Provisions on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons (hereinafter referred to as “the Transitional Provisions”), approved by the Minister of Justice, long-term family visits were prohibited in remand prisons.

On 4 September 2000 the Riga Regional Court received the case file.

On 7 September 2000 a judge of the Riga Regional Court committed the applicant for trial and scheduled the hearing for 13 May – 10 June 2002. The applicant was not summoned. The judge decided to continue his detention on remand without giving reasons. The decision was not subject to appeal.

On 4 November 2000 the applicant asked the Riga Regional Court to schedule a separate court hearing in order to determine the date of trial and to reconsider the preventive measure imposed on him.

On 20 November 2000 a judge of the Riga Regional Court replied that the trial date had not been set.

On unspecified dates the applicant complained to the President of the Riga Regional Court and the Ministry of Justice that his right to trial within a reasonable time had been infringed. On 5 December 2000 the Ministry of Justice notified the applicant that the trial date had not been scheduled.

On 28 November 2000 the applicant asked the Riga Regional Court to hold a hearing in his case within a reasonable time. On 8 January 2001 the applicant repeated this request.

On 29 January 2001 a judge of the Riga Regional Court replied that the trial date had not been set.

On 26 February 2001 the applicant announced a hunger strike to protest against the lack of progress in the proceedings.

On 2 March 2001 the Riga Regional Court informed him that the hearing had been scheduled for May 2001 and he discontinued the hunger strike.

On 13 March 2001 the Riga Regional Court informed the applicant that the trial had been scheduled for 13 May – 1 July 2002.

On 15 March 2001, in reply to the applicant's earlier complaint, the Ministry of Justice informed him that the hearing had been set for 13 May – 1 July 2002.

On 27 March 2001 the Riga Regional Court confirmed that the trial date had been scheduled for 13 May – 1 July 2002.

On 5 April 2001 the Ministry of Justice confirmed that the trial dates were set for 13 May – 1 July 2002 and not May 2001 as erroneously stated by the Riga Regional Court in its letter of 2 March 2001. The applicant was also informed that, due to the court's case load, it was not possible to begin the trial within the time limit provided for in Article 241 of the Criminal Procedure Code.

On 11 April 2001, on the applicant's request of 2 April 2001 to alter his detention on remand, a judge of Riga Regional Court informed him that he had been committed for trial and that there was no reason to alter the preventive measure imposed on him.

On 13 May 2002 the Riga Regional court commenced adjudication of the applicant's case.

On 16 and 20 May 2002 the Riga Regional court adjourned the hearing as several witnesses did not appear. The court ordered the police to ensure the appearance of these witnesses under constraint.

On 11 June 2002 the Riga Regional Court found the applicant guilty of robbery and unlawful ammunition storage. The prosecuting authorities were represented by the prosecutor N. and his colleague. The court sentenced him to four years and six months' imprisonment and, according to Article 24 2 of the Criminal Code, ordered his deportation from Latvia after having served the sentence. The applicant appealed this judgment.

On 21 November 2002 the Criminal Chamber of the Supreme Court acquitted the applicant of the charge of unlawful ammunition storage and quashed the first instance court's sentence in regard to his deportation, upholding the remainder of the first instance court's judgment. The prosecutor N. represented the prosecuting authorities together with his colleague. The applicant did not file an appeal on points of law and thus the judgment became final.

On 29 July 2002 the Citizenship and Migration Authority (hereinafter referred to as the “CMA”) took a decision on forced expulsion of the applicant, stating that the applicant, a Russian national, arrived in Latvia on 20 August 1997 on the basis of a visa. It observed that the Riga Regional Court convicted the applicant on 11 June 2002 and ordered his expulsion from Latvia, according to Article 242 of the Criminal Code. The CMA noted that the applicant would be released on 19 August 2002 and decided, in accordance with Article 242 of the Criminal Code, to expel him from the territory of Latvia to the Russian Federation. There was no date indicated in the decision as to when the expulsion should take place. When the applicant took cognisance of this decision, he wrote next to his signature that he objected to his expulsion as he had a family in Latvia.

On 19 August 2002 the applicant was released from prison, the time he had spent in detention on remand counting as part of the sentence. On the same date he was transferred to the Detention Center for Illegal Immigrants and thereafter detained at the Center pending his deportation to the Russian Federation.

On 29 August 2002 the applicant appealed against the decision of the CMA to the Central District Court of the City of Riga. The court received the appeal on the same day.

On the same day the applicant was deported to the Russian Federation.

On 3 September a judge of the Central District Court of the City of Riga examined the applicant's appeal of 29 August 2002 and, as it was written in Russian, allowed the applicant until 30 September 2002 to rectify this procedural deficiency.

On 3 October 2002 the proceedings were terminated as neither the applicant nor his lawyer pursued the complaint.

On 4 September 2003 the applicant and his partner married in Krasnoyarsk in the Russian Federation.

The relevant part of Article 77 provides that the maximum term of detention on remand during the investigation of a criminal case may not exceed two months. If it is not possible to complete investigation of the case within that period and there are no grounds for altering a preventive measure, a judge may extend the period of detention for up to one year and six months. If necessary, the detained person and his defence counsel may be heard. Extension of detention beyond one year and six months is not allowed and the detained person is entitled to immediate release.

Paragraph 7 of Article 77 (adopted on 17 October 2002 and with entry into force on 1 November 2002) provides that in exceptional cases the Senate of the Supreme Court may extend detention beyond one year and six months.

Paragraph 5 of Article 77 provides that the time taken for all defendants to take cognisance of the documents in the investigation file shall not be taken into account in calculating the length of detention pending trial.

By virtue of Article 83, a preventive measure shall be terminated if it has been applied unlawfully or it ceases to be necessary, or may be changed to ateration of detention on remand applied by a judge or a court during the preliminary investigation shall be effected by a reasoned decision of a prosecutor, or it may be terminated by a court decision in the cases provided for in Article 2221.

According to Article 222, a complaint regarding acts of a prosecutor shall be subject to appeal to a higher prosecutor. The complaint shall be examined within three days upon its receipt and it can be dismissed only by a reasoned decision.

Pursuant to Article 2221, all decisions given by a judge at the pre-trial stage regarding the detention on remand and its extension can be appealed to a higher court by a suspected or accused person or his/her counsel or representative. The appellant and the prosecutor in charge of investigation shall be present at the adjudication of the appeal. The appeal shall be examined and a decision taken within seven days as of its receipt. The decision is final and not subject to further appeal.

After a judge has committed an accused person to trial, a court shall decide in a preliminary hearing on the question of preventive measures. A decision concerning committal of an accused person to trial shall be taken within 14 days upon receipt of a case file in the court (Article 223).

In deciding whether to commit an accused person for trial, a judge or a court shall determine whether the preventive measure applied was appropriate (Article 225).

When committing an accused person to trial, a judge holds a preliminary hearing to rule on the request to alter a preventive measure if the judge considers that the request is well-grounded. The decision refusing the request to alter a preventative measure cannot be appealed. (Article 226).

Articles 237 and 465 provide that the decisions of a court, ordering detention on remand or altering it, taken during the preliminary hearing or during the adjudication of the matter, may be appealed to a higher court.

Article 241 sets time-limits for examination of a case and provides that the examination of a case before a court must start not later than within twenty days or, under exceptional circumstances, no later than within one month, after the case is received by the court.

A judgment of the first instance court enters into force and becomes final after expiry of the time-limit provided for appeal of this judgment, if the judgment has not been appealed. A judgment of an appellate court enters into force and becomes final after expiry of the time-limit provided for cassation appeal of this judgment, if the judgment has not been appealed. If a cassation appeal has been submitted, the judgment becomes final after its examination by the cassation court, if the court does not quash the judgment (Article 357).

Criminal Code (Latvijas Kriminālkodekss), applicable at the material time (in force until 1 April 1999)

The relevant part of Article 242 provided that a court can decide to order expulsion from the Republic of Latvia of a person, who is not a national of Latvia. The expulsion is a supplementary punishment and is effected after serving the sentence.

Until 14 May 2001 the situation of persons detained in remand prisons was governed by the “Instruction on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons” (Instrukcija par aizdomās turamo, apsūdzēto, apcietināto un notiesāto turēšanas kārtību izmeklēšanas cietumos), approved by the Minister of the Interior on 30 April 1994 (hereinafter referred to as “the Instruction”).

Rule 26 of the Instruction provided that the sentenced persons and the arrested persons placed in the investigation prisons were allowed to send letters and to receive short-term visits upon approval by the authority conducting the criminal proceedings (i.e. either by investigating authorities or the court, depending on the stage reached in the proceedings).

Rule 32 of the Instruction stipulated that the arrested persons placed in the investigation prisons might be allowed to receive one short-term visit (up to one hour) per month from family members and other persons only on the basis of a written permission from the person or the body dealing with the particular criminal case.

Rule 35 of the Instruction provided that visits in the investigation prisons took place in the presence of a prison authority.

In 2001 the penitentiary institutions were transferred from the supervision of the Ministry of the Interior to the Ministry of Justice. On 9 May 2001 the Minister of Justice approved new “Transitional Provisions on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons” (Pārejas noteikumi par aizdomās turamo, apsūdzēto, apcietināto un notiesāto turēšanas kārtību izmeklēšanas cietumos) which entered into force on 14 May 2001 (hereinafter referred to as “the Transitional Provisions”).

Rule 25 of the Transitional Provisions provides that the sentenced persons and the arrested persons may be allowed to receive one short-term visit per month on the basis of a written permission from the authority dealing with the particular criminal case.

Civil Procedure Code (Civilprocesa kodekss), applicable at the material time (in force until 1 February 2004)

Article 228 § 3 provides that decisions of the state authorities, which affect the rights and obligations of individuals, are subject to judicial review by the court which is fully authorised to quash the impugned decisions and terminate the administrative proceedings against the concerned individuals.

According to Article 2395, the absence of an individual, who has submitted a complaint, at court proceedings is not an obstacle for the court to hear the merits of the case; however, the court may declare the individual's presence mandatory.

The court, having found the appealed act or decision unlawful and infringing the rights of an individual, declares the complaint lawful and obliges the responsible authority to remedy the violation complained about (Article 2397).

Law on Entry and Residence in the Republic of Latvia of Foreign Citizens and Stateless Persons (Likums par ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos Latvijas Republikā), applicable at the material time (in force until 1 May 2003)

The Head of the department or the Head of a territorial unit shall issue an expulsion order, demanding the departure of a person from the territory of the State if, inter alia, an alien resides in the State without a valid visa or residence permit or if the alien has otherwise violated the visa regime (Article 38).

A person is obliged to leave the territory of the state within seven days from the moment he/she has been notified of an expulsion order unless the order has been appealed. The person who has been notified of an expulsion order may appeal it within seven days to the Head of the department. The person may reside in the territory of the state during the examination of the appeal. The decision of the Head of the department may be appealed within seven days from its receipt, by submitting an appeal to a relevant court (Article 40).

The Head of the department of a territorial unit can decide on the forced expulsion of a person if this person within seven days of the notification about the expulsion order has not appealed it, as provided for by Article 40, or his/her appeal has been dismissed (Article 481).

Other relevant regulations

Article 1 § 1 of the Law on Public Prosecutor's Office (Prokuratūras likums) states that the Prosecutor's Office is an institution of judicial power, which independently carries out supervision of the observance of law within the scope of its competence.

The relevant part of Article 92 of the Constitution (Satversme) states that every person has the right to defend his or her rights and lawful interests in a fair trial. In case of unlawful interference with his or her rights, everyone is entitled to adequate compensation.

The judgments of the Constitutional Court of the Republic of Latvia (Latvijas Republikas Satversmes tiesa)

The judgment of 5 December 2001 in case no. 2001-07-0103, in the relevant part, reads as follows:

“...The Constitutional Court established:

...the court verdict of not guilty is determined as the legal basis for receiving the compensation. The criterion of the addressees of the Law on Compensation is non-existence of person's guilt. Thus, it refers only to those persons, whose liberty has been limited because of an arrest, but who are not guilty of a criminal case and the fact has been acknowledged by a court judgment... .”

The judgment of 19 December 2001 in case no. 2001-05-03, in the relevant part, reads as follows:

The Transitional Provisions [on the Procedure of Keeping Suspected, Accused, Detained and Sentenced Persons in Remand Prisons; confirmed by the Minister of Justice on 9 May 2001] have been passed in compliance with Article 15 of the Law on the Structure of the Cabinet of Ministers, determining that individual ministers may issue instructions binding on the institutions subordinate to them if the respective issue has not been regulated by the Law on the Structure of the Cabinet of Ministers. Instruction No. 1-1/187 envisages that the personnel of the Department of Prisons and the institutions subordinated to it shall be acquainted with the Transitional Provisions. ... the Transitional Provisions ... have [not] been published for common knowledge.

Thus the Transitional Prohibitions ... are internal normative acts... .”


The applicant, Mr Detlef Otto, is a German national who lives in Kusterdingen (Baden-Wuerttemberg). He was represented before the Court by Mr R. Schlierer, a lawyer practising in Stuttgart.

The applicant is a member of the political party “the Republicans” (Partei der Republikaner, in the following Die Republikaner). The party is considered as populist and right-wing and has therefore been under scrutiny by the offices for the protection of the constitution (Verfassungsschutzämter) in various German States (Länder). In the general elections in September 2005, Die Republikaner achieved 0.6 % of the votes. The party has not been declared unconstitutional by the Federal Constitutional Court in accordance with Section 21 (2) of the German Basic Law. The applicant stood for the party as a candidate in local elections in 1994 and as a substitute candidate in regional elections in the State (Land) Baden-Wuerttemberg in 1996. Moreover, he contributed to activities of the party’s county association on a regular basis.

The applicant had been employed as a civil servant with the BadenWuerttemberg police since 1968. He was promoted several times, lastly in 1993 to the position of detective superintendent (Kriminalkommissar). He retired in 2002.

Although the applicant received above-average appraisals at work, he was not considered for a further promotion to chief inspector (Kriminaloberkommissar) despite the fact that there were such openings as from 1 July 1994. Following his inquiry about the reasons for not having been promoted, the Tübingen Regional Council informed the applicant in a letter dated 7 February 1995 that promotions were generally based on suitability, capabilities and professional qualifications. Regarding his suitability, the Regional Council expressed severe doubts due to his active membership of Die Republikaner, a party which was suspected to pursue anti-constitutional goals. Therefore, his promotion process had been stayed until further instructions by the Baden-Wuerttemberg Ministry of the interior would be received regarding the matter.

The applicant subsequently instituted proceedings against the lack of promotion to the position of chief inspector. On 12 December 1996, the Sigmaringen Administrative Court dismissed the applicant’s claim, finding that the decision not to promote the applicant had been lawful. The court noted that public servants were generally not entitled to a promotion which was subject to the employer’s discretion with regard to suitability, capabilities and professional qualifications. The employer enjoyed a margin of appreciation in this respect. That margin had not been overstepped by basing unsuitability for promotion of a public servant on active membership in a political party seeking to undermine the free democratic constitutional system. Having regard to a judgment by the Baden-Wuerttemberg Administrative Court of Appeal of 11 March 1994, the court considered Die Republikaner as a party with unconstitutional goals. Both before and during the proceedings, the applicant had failed to dissociate himself from right-wing fundamentalist utterances of party officials. Moreover, the fact that only the Federal Constitutional Court could declare a prohibition of a political party with unconstitutional goals (and had not yet done so with regard to Die Republikaner) was no obstacle. Whereas the German constitution granted every citizen the right to work the free democratic constitutional system as a member of a party which is not prohibited, the duty of loyalty required from public servants (which is laid down in Section 33 (4) of the German Basic Law) would demand that every public servant defend this order. Lastly, the court found that the judgment of the European Court of Human Rights in the case of Vogt v. Germany (judgment of 26 September 1995, Series A no. 323) would not require a different ruling. That case concerned the dismissal of a public servant as opposed to non-promotion in the present case. Hence the question of proportionality had to be considered differently.

On 4 October 1999, the Baden-Wuerttemberg Administrative Court of Appeal dismissed the applicant’s appeal and refused to grant leave to appeal on points of law. The court found that the applicant’s employer had not overstepped his margin of appreciation as the suitability of public servants could lawfully be assessed with regard to their duty of loyalty. Membership in a party which pursued goals which were not in accordance with the free democratic constitutional system was sufficient to cast doubt on whether a public servant was a suitable candidate for promotion. Since the party in question had been scrutinised by various offices for the protection of the constitution in Germany, and this scrutiny had been found lawful by numerous Administrative Courts of Appeal in Germany, the court did not itself have to establish whether or not the activities of Die Republikaner were unconstitutional. With regard to the proportionality of the decision not to promote the applicant, the court found that the judgment in the case of Vogt v. Germany (above-mentioned) did not demand a different ruling since the applicant in the present case had already been promoted several times and had not been deprived of his professional and economic basis by the decision not to promote him further.

The applicant’s appeal against the refusal to grant leave to appeal on points of law was dismissed by the Federal Administrative Court on 19 May 2000.

On 17 December 2001, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It held that the administrative courts’ assessment concerning the unconstitutional goals of Die Republikaner was in line with the jurisprudence of various Administrative Courts of Appeal in different German States (Länder). The courts had rightly granted the employer a margin of appreciation when assessing the applicant’s suitability for promotion. The Federal Constitutional Court found that the domestic authorities and courts had lawfully taken into account the applicant’s political activities even though it had not yet itself declared Die Republikaner an unconstitutional party in accordance with Section 21 (2) of the German Basic Law.

The relevant provisions of the Basic Law are worded as follows:

Section 21

“2. Parties which, through their aims or the conduct of their members, seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of the Federal Republic of Germany shall be held to be anticonstitutional. The Federal Constitutional Court shall determine the question of anti-constitutionality.”

Section 33

“2. All Germans shall have an equal right of admission to the civil service according to their suitability, capabilities and professional qualifications.

The exercise of sovereign authority on a regular basis shall, as a rule, be entrusted to members of the public service who stand in a relationship of service and loyalty defined by public law.”

The relevant provision of the Baden Wuerttemberg Public Servant Act is worded as follows:

Section 11 (1)

“Nominations shall be carried out on the basis of suitability, capabilities and professional qualifications regardless of sex, race, religious or political beliefs, origin or relationships.”


Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza

The applicants were born in 1972 and 1975 respectively and live in Istanbul.

On 18 November 1995 the second applicant was arrested and taken into police custody on suspicion of membership of an illegal armed organisation, namely the PKK (Workers’ Party of Kurdistan). The first applicant was arrested and detained, on 23 November 1995, on the same grounds.

On 24 November 1995 the applicants and two other suspects were identified as those responsible by Mr G.T. and Mr O.T., eyewitnesses to the killing of their father, Mr M.S.T., by the PKK.

On 26 November 1995 the applicants were interrogated by two police officers, in the absence of a lawyer, and they both gave detailed statements regarding their participation in, inter alia, the killing of Mr M.S.T and kidnapping of G.T., on 2 August 1995, on behalf of the PKK.

On 27 November 1995 the applicants, in the absence of a lawyer, were first asked to identify from photos a deceased suspect and later confronted with other suspects. During this procedure both applicants gave details about the other detainees, such as their code names and acts undertaken by them.

On 28 November 1995, at 10.25 a.m., the applicants were examined by a doctor who noted that the first applicant had a bruise of 1x1 cm on his lower lip and that the second applicant had two scratches of 2 cm on his lower right knee and pain in his back and lower back.

In their application form the applicants submitted that they had been subjected to ill-treatment while in police custody. In this connection, they claimed that they had received electric shocks, falaka (beating of the soles of the feet) and Palestinian hanging.

In a letter to the Court dated 5 October 2004 the first applicant submitted, inter alia, that during his arrest he and his family had been sworn at and threatened and that when they had arrived at the police station he had been blindfolded. Subsequently, he had been interrogated by five or six police officers who had kicked and punched him and hit him with sticks. One of them had hit him in the stomach and another had stood on his head. When he had denied the accusations, they had subjected him to hanging and to electric shocks on his penis and feet. Later, when he had refused to sign a statement written by the police, two police officers had punched him in the face and squeezed his penis. Because of the pain he had signed the statement. The applicant further stated that the doctor who had examined him had seen the swelling on his lips and penis and had decided to transfer him to hospital but that the relevant paper had been ripped up by the police.

On the same day the applicants were brought before the public prosecutor at the Istanbul State Security Court where they refused to give any statements.

Later that same day the applicants were brought before a judge at the State Security Court where they refuted the contents of their statements to the police. The second applicant claimed that some of these submissions had been written by the police and that he had made others under duress. The first applicant submitted that the police had made him sign the statement without reading it. The judge remanded them in custody.

On 5 December 1995 the public prosecutor at the Istanbul State Security Court indicted the applicants under Article 125 of the Criminal Code for engaging in activities for the purpose of bringing about the secession of part of the national territory. In particular, they were accused of participating in the killing of Mr M.S.T and kidnapping of G.T. on 2 August 1995.

Between 5 March 1996 and 2 July 1999 the court held hearings on a regular basis during which it examined the accused and a number of witnesses, including those appearing for the defence. In particular, testimony was taken from the wife and sons of Mr M.S.T., including Mr G.T. All of them claimed that they would not be able to identify the perpetrators, in particular because they had been wearing masks. They further submitted that they knew the applicants because they were from the same village and were relatives but that they had never stated, during the identification procedure, that the applicants were responsible for the killing of Mr M.S.T. The court also took testimony from the police officers who had conducted the identification procedure and who stood by the content of the verbatim reports drawn up in that connection. On 12 December 1997 one of the judges, acting as rapporteur, examined the video footage of the re-enactment of events and submitted his report to the court. The applicants contested the report. On numerous occasions the applicants’ lawyer requested their release stating, in particular, that, apart from statements obtained under duress and torture, there was no evidence to convict the applicants. At a hearing on 27 March 1998 the prosecutor submitted his observations on the merits in which he requested the applicants’ conviction under Article 168 of the Criminal Code. The accused were granted time to submit their additional observations.

At a hearing on 2 July 1999 the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. At this hearing the court heard the additional defence submissions of three of the accused, including the second applicant. The next hearing was held on 10 September 1999, when the court heard the submissions of the applicants’ representative, the second applicant and some of the other accused.

In the meantime, on 2 July 1999, the applicants submitted their final written defence submissions in which they claimed that they had been subjected to torture, as shown by their medical reports, and that instead of opening an inquiry, the prosecution and the court had relied on their statements obtained under duress.

On the same day the first applicant wrote a letter to the court proclaiming his innocence. He reiterated that the police had made him sign some documents under torture.

On 17 November 1999 the court held a hearing. On the same day it decided to convict the applicants under, inter alia, Article 168 of the Criminal Code and sentenced them to twelve years and six months’ imprisonment. In its decision, the court held that the applicants, in their police statements, had acknowledged their relationship to and activities within the organisation and that although they had later retracted those statements, the court, having regard to the evidence in the case file, did not find their later submissions credible.

In the meantime, on 20 June 2000, the first applicant wrote to Ms Pişkinsüt, the chair of the Human Rights Commission of the Turkish Grand National Assembly, complaining about his alleged illtreatment. On 12 June 2001 the Fatih public prosecutor’s office decided not to commit any police officer for trial on the ground that the statutory time-limit for prosecution of the offence had expired. On 22 October 2004 the applicant filed a second petition with the Human Rights Commission of the Turkish Grand National Assembly. Once again, on 11 March 2005, the prosecutor decided that, despite recent amendments to the relevant provisions, the statutory timelimit in respect of the applicant’s complaint remained the same.

On 20 December 2000 the applicants appealed. In their petition they submitted, inter alia, that the first-instance court had based its conviction on their statements in police custody which had been obtained under duress. In this connection, they referred to their medical reports.

On 1 February 2001 the Court of Cassation held a hearing and upheld the judgment of the first-instance court in so far as it concerned the applicants’ conviction and sentence.

On 9 November 2004 the applicants were released from prison.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicant was born in 1959 and lives in Soroca.

The applicant works as a technician for a State telephone company. On 9 June 2005 she called R. over the phone and they arranged for the applicant to visit R. at her house situated on Viilor str. no. 15/36 in Soroca in order to verify the functioning of the phone line installed there. Some twenty minutes later when she came to R.’s home, she was met by R. who, according to the applicant, started shouting at her and calling her names.

The applicant called the police from her mobile phone, but was told that she needed to go to the police station in person in order to make a written complaint. She decided to go back to her workplace and told her superior about the incident, but was advised to forget about it. She was told that R. had already called her superior to complain about an alleged assault on her by the applicant.

R. complained to the police that the applicant had assaulted her on 9 June 2005. According to R.’s complaint, the applicant had entered her apartment situated on Viilor str. 15 apartment 36 without authorisation and started ripping the phone lines off the wall and insulting her with offensive language. The applicant had then gone to the cellar and destroyed the phone socket and phone lines. She had been extremely irritated and one could smell alcohol on her breath. Finally, she had hit R. in the face and left. R.’s husband wrote a similar complaint, also noting Viilor str. 15 as being the address of the apartment where the incident had taken place.

On 11 July 2005 the local police filed a report confirming that the applicant had committed an administrative offence by insulting R. The report attested that on 9 June 2005 the applicant had entered R.’s apartment without authorisation, insulted her with offensive language and then hit her in the face, causing her physical harm.

On 26 July 2005 the Soroca District Court found the applicant guilty of the administrative offence of hooliganism.

On an unknown date the Bălţi Court of Appeal sent the case for a rehearing.

The applicant submitted statements from five companies she had visited on 9 June 2005, all confirming that she had been polite and not under the influence of alcohol that day, which contradicted R.’s statements concerning the applicant’s aggressiveness and alcohol consumption. She also submitted a certificate confirming that no repair of the phone lines at R.’s home or office had been asked for on 9 June 2005 or thereafter, and evidence that after her alleged visit phone calls had been made from both phone lines. That proved, in the applicant’s opinion, that the statements in R.’s complaint concerning the ripping out of the phone line and phone socket had been untrue. She submitted further evidence proving that her company had a contract to service the phone line installed at R.’s place, that she had been asked to verify a number of phone lines on 9 June 2005, including that at R.’s place, and evidence of the applicant’s call to the police on 9 June 2005.

On 19 December 2005 the Soroca District Court found the applicant guilty of the administrative offence of insult (injuria). The decision was an almost word-for-word copy of that adopted on 26 July 2005 and reads as follows in its entirety:

“Decision concerning the administrative offence under Article 471-1 of the Code of Administrative Offences, 19 December 2005

Judge [V. N.] of the Soroca District Court, having examined the case concerning the administrative offence regarding [the applicant, her address and workplace], has found:

On 9 June 2005 at 12.20 p.m. [the applicant] entered [R.’s] apartment situated on Mateevici str. 1, apartment 42 without authorisation and started shouting and calling her names, thus denigrating [R.’s] honour and dignity, therefore committing the administrative offence provided for in Article 473 (1) of the Code of Administrative Offences.

The allegation that [the applicant] hit the victim has not been confirmed.

In view of the above, relying on [relevant procedural provisions of the Code of Administrative Offences], the court decides:

To impose a fine on [the applicant] in the amount of ten conventional units amounting to 200 [Moldovan] lei.

This decision may be appealed against within 10 days to the Bălţi Court of Appeal”.

In her appeal in cassation the applicant submitted that there was no evidence whatsoever that she had ever been in R.’s apartment at Mateevici str. or shouted at her. The court had not given any ground for the decision such as a document, witness statement or anything other than the statements by R. and her husband. Moreover, she had visited R. at her address at Viilor str. no. 15 and not at Mateevici str. no. 1 as stated in the decision. Finally, the court had disregarded Article 37 of the Code of Administrative Offences (see below), according to which no administrative penalty could be imposed after three months from the date on which the offence had been committed.

On 8 February 2006 the Bălţi Court of Appeal upheld the lower court’s decision. The court’s decision started by stating that:

“By its decision [of 19 December 2005] the [lower court] imposed an administrative penalty on [the applicant] because on 9 June 2005 she insulted [R.] in her apartment situated on Mateevici str. in Soroca, thus denigrating [R.’s] honour and dignity.”

It then summarised the applicant’s appeal. The court further found that the lower It correctly dismissed the part of the complaint that the applicant had hit R., since during the court hearing R. herself had denied having been hit. The court reduced the fine to 136 Moldovan lei (8.80 euros (EUR)), using a slightly different manner of calculating the amount of the fine. That decision was final. Its text was accessible at the Soroca District Court, where it arrived on 20 February 2006.

The relevant provisions of the Code of Administrative Offences (“the CAO”) read as follows:

“Section 47/3. Insult

Insult, that is, the intentional denigration of honour and dignity of a person through an action, verbally or in writing, shall be punished by a fine of seven to fifteen conventional units or by administrative detention of up to fifteen days.

Section 266. Circumstances to be clarified during the examination of the case concerning an administrative offence.

The authority (official) shall clarify during the examination of the case concerning an administrative offence: whether an administrative offence has been committed; whether the person is guilty of having committed it; whether (s)he should be subjected to administrative responsibility; whether there are circumstances attenuating or aggravating responsibility; whether pecuniary damage was caused; whether there are grounds for forwarding the materials concerning the administrative offence for examination by a public association, the staff [of his/her employer]; as well as other circumstances which are important for the examination of the case.”


CASE OF MIKULJANAC, MALISIC AND SAFAR v. SERBIA

Violation of Art. 6-1;Violation of Art. 13

The applicants were born in 1963, 1958 and 1966, respectively, and live in Beograd.

On 23 May 2001 the applicants were dismissed from their work.

On 6 June 2001 they instituted civil proceedings in the Beograd Third Municipal Court against their former employer, seeking reinstatement and salary arrears.

Sometime after the respondent State's ratification of the Convention on 3 March 2004, the applicants' case was assigned to another judge.

The next hearing in the case was held on 26 October 2004, when the court decided to hear several witnesses.

The hearing scheduled for 23 December 2004 was adjourned by the judge. Subsequently, the case was yet again assigned to another judge and the next hearing was scheduled for 9 September 2005, but did not take place because the witnesses had not been duly summoned.

The next hearing, scheduled for 23 November 2005, was adjourned because the summoned witnesses failed to appear.

On 24 February 2006 the court held a hearing and heard the applicants and a witness. The applicants requested the court to obtain an additional expert opinion concerning the amount of their salary arrears. The court held two more hearings – on 31 March and 15 May 2006.

On 18 May 2006 the court ordered the applicants to advance the costs of the proposed expert opinion and to suggest an expert. The applicants did so on 1 June. At the next hearing held on 16 June 2006, the court ordered that the expert opinion be obtained. The appointed expert submitted the opinion on 5 October 2006.

The court held further hearings on 13 October and 15 November 2006. The respondent then filed a request for a transfer of jurisdiction, which was dismissed by the Supreme Court on 6 December 2006.

The court held further hearings on 2 and 16 February and on 16 March 2007. On the last mentioned date the court gave judgment, accepting the applicants' claim. The applicants appealed against the decision on costs and the proceedings are currently pending before the second-instance court.

The relevant provisions of this legislation are set out in the V.A.M. v. Serbia judgment (no. 39177/05, §§ 70-72, 13 March 2007).

Article 122 § 3 provided that all employment-related disputes were to be resolved by the courts within a period of 6 months from the date of institution of the proceedings.

This Act entered into force on 23 March 2005 and thereby repealed the Labour Act of 2001.

The text of Article 195 § 3 of the Labour Act of 2005 corresponds to the aforementioned Article 122 § 3 of the Labour Act of 2001.

The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006).

Article 243 of this Code defines “judicial malfeasance” (kršenje zakona od strane sudije) as a separate criminal offence.

Article 25 of the Serbian Constitution (Ustav Republike Srbije), published in the Official Gazette of the Socialist Republic of Serbia (OG SRS - no. 1/90), provided as follows:

“Everyone shall be entitled to compensation for any pecuniary and non-pecuniary damages suffered due to the unlawful or improper conduct of a State official, a State body or a public authority, in accordance with the law.

Such damages shall be covered by the Republic of Serbia or the public authority [in question].”

This Constitution was repealed on 8 November 2006, which is when the “new” Constitution (published in OG RS no. 98/06) entered into force.

The substance of Article 35 § 2 of the new Constitution corresponds, in its relevant part, to the above-cited text of the aforementioned Article 25 of the previous Constitution.

Article 170 of the new Constitution provides that a constitutional complaint may be lodged against the acts of public entities violating human and minority rights and liberties guaranteed by the Constitution.

Section 9 of the Constitutional Act on the Implementation of the Constitution (OG RS 98/06) provides that the election of Constitutional Court judges shall be finalised before the end of the first National Assembly session.


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Ms Galina Meister, is a German national who was born in 1961 and lives in Hamburg.

In August 2006 the applicant applied for the advertised post of application developer (Anwendungsentwickler) with the S-GmbH & Co. KG (“S”), a limited liability company developing and trading navigation software. S decided to hire another candidate, inter alia because of the latter’s proven interest in navigation.

In October 2006 the applicant, relying on the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz), brought an action for damages against the company, claiming that she had been discriminated against on the grounds of her sex, age and possibly also (Russian) origin.

On 13 February 2007 the Hamburg Labour Court dismissed her action as unfounded. It pointed out that according to the General Equal Treatment Act a person claiming compensation was required to establish the existence of at least some indications of discrimination. It held that the applicant had failed to set out sufficiently that she had been discriminated against on one of the grounds enumerated in the General Equal Treatment Act. In its reasoning the court dealt with the applicant’s arguments and set out why there were neither sufficient indications nor any kind of proof of the alleged discrimination.

On 16 October 2007 the Hamburg Labour Court of Appeal confirmed the first-instance decision. It referred to the reasons given by the Labour Court and again set out the main reasons why there was no indication of discrimination under the General Equal Treatment Act. It refused to grant leave to appeal on points of law. The judgment was served on the applicant’s lawyer on 21 January 2008.

By a letter of 22 January 2008 the applicant requested the Federal Labour Court to assign her counsel and legal aid. On 25 January 2008 the Federal Labour Court gave her the file number of her legal aid request. By letters of 25 and 27 January 2008 the applicant informed the Federal Labour Court that her letter of 22 January 2008 should also be seen as a complaint against the refusal to be granted leave to appeal on points of law (Nichtzulassungsbeschwerde) and supplemented her reasoning. On 31 January 2008 the Federal Labour Court gave her the file number of her complaint about the refusal to be granted leave to appeal on points of law. By a letter of 1 February 2008 the applicant added further arguments to her requests. In the following months the applicant sent several further letters to remind the Federal Labour Court of her requests.

On 12 March 2008 the applicant lodged a constitutional complaint against the Federal Labour Court’s failure to act in the proceedings concerning her requests of January 2008. On 18 April 2008 the Federal Constitutional Court refused to admit the constitutional complaint for adjudication, without giving any reasons.

On 14 May 2008 the Federal Labour Court informed the applicant that with regard to the Federal Constitutional Court’s decision of 18 April 2008 about her constitutional complaint “against the decision of the senate”, it “considered the matter resolved” (“betrachtet der Senat die Streitsache als erledigt”).

By a letter of 16 May 2008 the applicant again asked the Federal Labour Court to decide upon her requests and pointed out that her constitutional complaint was directed against its failure to act and not against a “decision of the senate”, as there had never been such decision.

On 19 June 2008 and 6 February 2009 the Federal Constitutional Court refused to admit for adjudication further constitutional complaints by the applicant against the Federal Labour Court’s failure to act.

By a letter of 23 December 2008 the applicant lodged a motion for bias against the judges of the Federal Labour Court involved in her proceedings. Hereupon the Federal Labour Court on 17 March 2009 again informed the applicant that her requests of January 2008 had been resolved and struck off the list, so that there was no point in deciding her motion for bias.

On 21 April 2009 the Federal Constitutional Court refused to admit for adjudication the applicant’s constitutional complaint against the Federal Labour Court’s failure to decide on her motion for bias. It held that due to a misinterpretation of the Federal Constitutional Court’s decision of 18 April 2008 the Federal Labour Court had considered the matter resolved and failed to take a decision in the proceedings. The right to effective legal protection required court proceedings to be terminated within a reasonable time. In this regard it also pointed to Article 6 of the Convention. The Federal Constitutional Court concluded that with regard to its clarification, it could be expected that the Federal Labour Court would neither continue to refuse to take a decision in the applicant’s proceedings (concerning her requests of January 2008 and the motion for bias of 23 December 2008) nor would it fail to take such decisions within reasonable time.

On 5 August 2009 the Federal Labour Court rejected the applicant’s legal aid request for her complaint against the refusal to be granted leave to appeal, holding that the complaint lacked reasonable prospects of success. On the same day the Federal Labour Court declared inadmissible the applicant’s complaint against the refusal to be granted leave to appeal because she was not represented by counsel, as statutorily required.

In June 2008 the applicants lodged a criminal complaint (Strafanzeige) against the Federal Labour Court judges involved in her proceedings. On 8 July 2008 the Erfurt Public Prosecutor’s Office refused to institute preliminary investigations. It held that the applicant’s allegations were unsubstantiated. There were no indications of a criminal offence in the applicant’s submissions.

The applicant appealed against this decision with the General Public Prosecutor’s Office.

According to section 72a §§ 1 and 2 of the Labour Courts Act (Arbeitsgerichtsgesetz) the Labour Court of Appeal’s refusal to grant leave to appeal on points of law can be challenged by a complaint (Nichtzulassungsbeschwerde) to the Federal Labour Court. According to section 11a of the Labour Courts Act a party has the opportunity to request legal aid and the assignment of counsel.

Pursuant to section 11 § 4 of the Labour Courts Act the parties in proceedings with the Federal Labour Court and the Labour Court of Appeal have to be represented by counsel.


Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 13+6-1;Violation of Art. 6-1;Violation of Art. 13+P1-1;Violation of P1-1;Pecuniary and non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in 1954 and lives in the town of Ulan-Ude in the Buryatiya Republic.

The Russian authorities initiated criminal proceedings against the applicant:

- on 13 June 1999 under Article 198 § 2 of the Criminal Code (tax evasion by a private person); the applicant was charged on 10 August 1999;

- on 24 June 1999 under Article 201 § 1 of the Code (abuse of power);

- on 29 August 1999 under Article 199 of the Code (tax evasion by a legal entity);

- on 13 October 1999 under Article 160 § 3 (b) (misappropriation of private property);

- on 21 January 2000 under Article 165 (causing pecuniary damage).

The above cases were joined on a number of occasions, most recently on 4 June 2001. According to the Government, the charges under Articles 165 and 199 of the Code were abandoned on 5 January 2000 and 4 June 2001 respectively (see, however, paragraph 9 below).

According to the Government, the proceedings were suspended on 6 January, 4 February and 17 August 2000, 13 June and 21 September 2001, and 20 January 2003, owing to the applicant’s illness. According to the Government, the applicant and his counsel were advised that the proceedings had been suspended on a number of occasions and subsequently resumed.

On 18 August 2004 the applicant sought access to the case file and, in particular, to the above-mentioned decisions to suspend the proceedings. On 27 August 2004 the Prosecutor’s Office of the Buryatiya Republic sent him a letter stating that the case file might be available at the archives of the Tax Authority in Ulan-Ude. On 5 October 2004 the Investigations Department of the Regional Ministry of the Interior informed the applicant that the criminal case against him had been suspended owing to his illness. Upon his renewed request, on 22 December 2004 the applicant received another reply from the Regional Office of the Drugs Control Service stating that the Investigations Department might be able to provide the requested documents. On 8 September 2005 the Drugs Control Service informed the applicant that on 10 July 2003 the criminal case against him had been forwarded to the Prosecutor’s Office of the Buryatiya Republic.

On 20 January 2006 the Investigations Department discontinued the proceedings as regards charges under Articles 160, 165, 198, 199 and 201 of the Criminal Code.

In August 1997 the applicant bought a PAZ-320500 bus. On 5 November 1999 the investigator in the criminal case against the applicant (see above) authorised seizure of the bus as security for eventual civil claims against him or eventual confiscation as a penalty under Article 160 § 3 (b) of the Criminal Code (see paragraph 16 below). On 9 November 1999 the applicant’s bus was seized. It appears that no civil claims were lodged in the criminal case against the applicant.

On an unspecified date the bus was transferred for safekeeping to a Mr Y.

In September 2003 the applicant brought proceedings in which he challenged the investigator’s seizure order as unlawful and requested the court to release the bus.

On 15 September 2003 the Sovetskiy District Court of Ulan-Ude examined the applicant’s claims with reference to Article 125 of the 2002 Code of Criminal Procedure (see paragraph 19 below) and rejected them as unfounded. The court held as follows:

“...under Article 175 § 1 of the RSFSR Code of Criminal Procedure in order to secure civil claims or eventual confiscation of property the investigator shall issue an order of attachment in respect of the accused’s property which had been unlawfully obtained. Article 160 § 3 of the Criminal Code of the Russian Federation provides for confiscation as a penalty. Besides, the case discloses pecuniary loss [sustained by the victim], and the victim has the right to file a civil claim for damages against the applicant...

The court finds no reasons for leaving the bus with [the applicant] for safekeeping...

The [first instance] court rejected the applicant’s arguments to the effect that his property rights over the bus had been breached by the continuing attachment of property and the criminal case is still pending. The case is being suspended owing to the applicant’s illness...”

On 11 November 2003 the Supreme Court of the Buryatiya Republic upheld the judgment on appeal. The court stated:

“Under Article 115 § 9 the Code of Criminal Procedure, which is now applicable to issues pertaining to attachment of property, the authority dealing with the criminal case has the power to release the property under the order of attachment, if attachment is no longer needed. As shown by the case file, at present the criminal case against the applicant is being dealt with by the investigating authority, the investigation being suspended. Taking into account the earlier submissions and the requirement of the procedure under Article 125 of the Code of Criminal Procedure, the court is not empowered to decide on the issue of lifting the order of attachment...”

On 18 July 2006 the deputy prosecutor of the Buryatiya Republic lifted the order of attachment in respect of the applicant’s bus. The applicant was served with a copy of that decision on 21 March 2007. It appears that the authorities were unable to determine where the bus was kept and thus could not return it to the applicant.

Under Article 160 § 3 (b) of the Code, in force at the material time, misappropriation of another’s property committed on a large scale or in view of the person’s hierarchical status was punishable by a sentence of imprisonment of up to ten years with or without confiscation of property. Under the Federal Law of 8 December 2003 (no. 162-ФЗ), confiscation as a penalty was removed from the Criminal Code, including its Article 160 § 3 (b). On 27 July 2006 a new Chapter 15.1 reintroducing the notion of confiscation was inserted into the Code in relation to a number of offences. The offences under Articles 160, 165, 198, 199 and 201 were not concerned.

A preliminary investigation in a criminal case had to be completed within two months starting from the date when the proceedings were initiated until the date when a bill of indictment was sent to the prosecutor or when the proceedings were terminated or suspended (Article 133). The preliminary investigation could be suspended if the accused had absconded or if his whereabouts had not been determined or if he was suffering from a mental or other serious disease. The investigator had to issue a reasoned decision (Article 195). Pursuant to Article 218 of the Code, a prosecutor was competent to examine complaints against decisions taken by an inquirer or an investigator. By a ruling of 23 March 1999, the Constitutional Court invalidated this provision in so far as it excluded a possibility of judicial supervision over such decisions, including those relating to suspension of proceedings and imposition of charging orders.

Under Article 208 § 1 of the Code, the preliminary investigation can be suspended, inter alia, if the suspect or accused is temporarily suffering from a serious disease which prevents him from participating in the investigation. A victim, civil claimant or respondent and their representatives should be notified accordingly and apprised of their right to appeal against the decision suspending the proceedings (Article 209 § 1). A suspect or accused and counsel should also be informed, if the suspension was caused by his or her illness.

Articles 123 and 125 of the Code concern judicial supervision over any (in)action on the part of an inquirer, investigator or prosecutor in so far as such (in)action affects a complainant’s rights or impedes his or her access to a court. The judge either (i) invalidates the impugned (in)action as unlawful or lacking justification and requires the respondent authority to remedy the violation, or (ii) rejects the complaint.

A decision terminating the criminal proceedings should be handed over or dispatched to the person concerned (Article 214 § 4).

Article 133 § 1 of the Code safeguards a so-called “right to rehabilitation”, including a right to full compensation in respect of pecuniary and non-pecuniary damage caused by criminal prosecution of a person who has been acquitted or in respect of whom the criminal proceedings have been terminated, inter alia, owing to a lack of corpus delicti or because the person had not been involved in the criminal act. The investigator issues a decision in which he or she recognises the person’s right to rehabilitation and also sends notification explaining the procedure for obtaining compensation (Article 134 § 1).

A person who has sustained pecuniary damage or loss from a criminal offence has a right to lodge a civil claim against the accused. He or she can exercise this right from the commencement of the criminal proceedings until the opening of the trial (Article 29).

If sufficient reasons obtain as to the existence of pecuniary damage caused by a criminal offence, the investigating authority or a court should take measures for securing the existing or eventual civil claim and/or for impeding the accused from hiding his property, if the charges against him carry confiscation as a possible penalty (Article 30).

According to Article 175 of the Code, in order to secure civil claims or eventual confiscation of property, the investigator should issue a charging order in respect of an accused’s property; that of persons who are liable by law for the accused or suspect’s actions; that of other persons who are in possession of the property acquired through unlawful actions. Property attached may be impounded or transferred at the attaching official’s discretion for safekeeping to a competent authority or left with the owner or other person who shall be warned about responsibility for keeping the property safe, and the fact shall be mentioned in the relevant record. The investigator lifts the charging order if it is no longer needed.

Under Article 115 § 1 of the Code, in order to ensure execution of a judgment in a part pertaining to a civil claim, to satisfy other pecuniary penalties or an eventual confiscation of property, an inquirer or investigator, subject to the prosecutor’s consent, or a prosecutor should apply to a court for a charging order in respect of the suspect’s or accused’s property. The court should examine such request under the procedure set out in Article 165 of the Code. A charge or attachment of property prohibits the proprietor or owner from disposing of, and, if appropriate, using the property; it may require impounding of that property and its transfer for safekeeping to its proprietor or owner or a third person (§§ 2 and 6). A charging order is lifted by the authority dealing with the criminal case when the charge is no longer needed (§ 9).

On 4 July 2003 Article 115 § 1 of the Code was amended to exclude an eventual confiscation of property as a reason for requesting a charging order. A charging order could only concern property acquired by the suspect, accused or another person as a result of criminal activity or by criminal means.

On 8 December 2003 Article 115 § 1 of the Code was amended to reintroduce an eventual confiscation of property as a reason for requesting a charging order; in such circumstances it became incumbent on the court to indicate the relevant circumstances in its decision.

By decision no. 97-O of 10 March 2005 the Constitutional Court held, in the context of proceedings concerning Article 82 of the CCrP on real evidence, that provisional measures such as imposition of a charge on one’s property may be required in criminal proceedings and should not be considered as a violation of constitutional rights and freedoms, including property rights. Judicial scrutiny of such measures as to their lawfulness should also encompass an assessment of whether other measures would be inappropriate, with due regard to the gravity of the charges in relation to which provisional measures have been taken, as well as to the nature of the property under the charge, its importance for its owner or holder and other eventual negative effects that the charge might have. Thus, it is incumbent on the investigator and, subsequently, on the reviewing court to be satisfied that the property under the charge should or should not be returned to its owner for safekeeping until the closure of the criminal proceedings.


The applicant, a stateless person, was born in Bulgaria in 1939. Before the Court he is represented by Mr Henrik Olsson, a lawyer practising in Stockholm.

The applicant moved to Sweden from Bulgaria in 1965. Since more than eight years, he is married to a Swedish national, A.S. He also has a 23 year old daughter who lives in Sweden.

As from 1968 the applicant has been convicted on many occasions for serious and repeated crimes, inter alia crimes against property, including robbery, as well as smuggling of goods and narcotics offences of an aggravated nature. He has been sentenced to the following terms of imprisonment: 1972 - 2 years, 1974 - 2 years, 1977 - 7 years, 1980 3 years, 1985 - 5 years. He was released on probation on 27 February 1991. At that time, 2 years and 10 months of his sentences had not been served.

The applicant’s expulsion from Sweden was ordered in 1972 and 1980. However, by a Government decision of 29 April 1982, the expulsion orders were revoked by pardon as the applicant risked political persecution in Bulgaria. Having regard to that decision, the District Court (tingsrätten) of Huddinge, in its 1985 judgment, refrained from ordering the applicant’s expulsion.

In May 1992 the applicant was charged with having possessed and stored, with the intention to sell, 389 grams of amphetamine in April 1992. However, on 25 May 1992, the District Court of Huddinge acquitted the applicant.

By a judgment of 8 June 1993 the District Court of Nacka convicted the applicant for two narcotics offences, one of which was considered as aggravated, illegal possession of a weapon and falsification of a passport. All the crimes had been committed in March 1993. The more serious narcotics offence involved the possession and storage, with the intention to sell, about 5 kilograms of amphetamine. The applicant was sentenced to six years in prison. Further, the court ordered his expulsion from Sweden and issued a prohibition on his return. When fixing the applicant’s prison sentence, the court had regard to the detriment suffered by him on account of the expulsion.

The public prosecutor appealed against the Huddinge District Court judgment and the applicant appealed against the Nacka District Court judgment.

The Svea Court of Appeal (Svea hovrätt) joined the two cases and gave judgment on 12 August 1993. Reversing the judgment of the District Court of Huddinge, it found the applicant guilty of the narcotics offence committed in April 1992. It upheld the judgment of the District Court of Nacka in regard to the finding of guilt, the expulsion order and the prohibition on return. Having regard to the expulsion order, it sentenced the applicant to a total of seven years’ imprisonment.

On 15 September 1993 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal.

In 1994, at his own request, the applicant lost his Bulgarian citizenship.

According to a medical certificate issued on 22 January 1996 by S.A., a licensed psychologist at Hall Prison, the applicant had mental problems due to the expulsion order and had expressed the intention not to commit any crimes in the future. S.A. expressed that, with increased age, criminal activities tend to decrease.

On several occasions thereafter the applicant requested the Government to exercise its power under Chapter 7, Section 16 of the Aliens Act to annul the expulsion order. All his requests were denied. The last decision was taken by the Government on 2 July 1998.

The applicant was released on probation on 4 October 1997 and was expelled from Sweden on 30 June 1998. His wife left Sweden and joined him soon thereafter.


The applicant, Mr Igor Mikhaylovich Ivanov, is a Russian national who was born in 1938 and lives in St. Petersburg. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 30 March 1993 the applicant initiated proceedings before the Kolpinskiy District Court of St. Petersburg against his former employer, a private company, for reinstatement and payment of salary for the period of unemployment.

By judgment of 29 April 1997 the Kolpinskiy District Court reinstated the applicant and ordered that the employer should pay him arrears. By final judgment of 7 August 1997 the St. Petersburg City Court increased the amount of arrears to be paid to the applicant and upheld the remainder of the judgment.

On 17 December 1997 the Presidium of the St. Petersburg City Court, by way of supervisory review, quashed the judgments of 29 April and 7 August 1997 in the part concerning payment of arrears. This issue was accordingly to be examined anew.

The District Court received the case-file in January 1998 and fixed the first hearing for 7 April 1998 during which the applicant amended his claims. The following hearing, listed for 15 July 1998, was adjourned because the parties defaulted and the following hearing was thus scheduled for 10 September 1998, taking into consideration the summer vacation period. In September 1998 the applicant again amended his claims, now also seeking compensation for non-pecuniary damage.

On 30 September 1998 the Kolpinskiy District Court, upon the applicant’s request, adjourned the proceedings and ordered an expert opinion. The proceedings were resumed in December 1998.

Six hearings were fixed between 1 December 1998 and 5 April 1999. Of those one hearing was adjourned because the respondent defaulted and four hearings were adjourned in order to obtain additional evidence and an expert opinion. During hearings in May and June 1999 the applicant amended his claims.

By judgment of 7 June 1999 the Kolpinskiy District Court dismissed the applicant’s claims. The judgment was quashed on appeal on 27 July 1999 and the case concerning the payment of arrears and non-pecuniary damage returned to the District Court for re-examination. The first hearing was fixed for 27 September 1999.

The following three hearings listed between 27 September 1999 and 4 February 2000 were adjourned, two of them due to the respondent’s absence and one because the applicant was ill.

On 7 February 2000 another presiding judge was assigned to the case. The following hearing, listed for 16 May 2000, was adjourned because the new judge participated in other unrelated proceedings.

In June 2000 the District Court, upon the applicant’s request, stayed the proceedings and ordered an additional expert opinion. On 4 October 2000 the expert notified the court that the opinion had not been prepared because the fees for preparing such an opinion had not been paid. The District Court informed the applicant that he should bear the expenses of the expert work. In December 2000 the expert returned the case-file to the court as the applicant had not paid the fees.

In January 2001 the applicant successfully asked the District Court to resume the proceedings. A hearing was fixed for 2 March 2001.

By judgment of 23 March 2001 the Kolpinskiy District Court dismissed the applicant’s claims once again. On 31 May 2001 the St. Petersburg City Court quashed that judgment in the part concerning the compensation for non-pecuniary damage, remitted this matter for a fresh examination and upheld the remainder of the judgment.

In June 2001 the case-file was returned to the District Court and a new presiding judge was assigned to the case. A hearing was fixed for 14 August 2001, however, it was adjourned due to the respondent’s absence. The hearing was thereafter scheduled for 2 November 2001.

By judgment of 2 November 2001 the Kolpinskiy District Court of St. Petersburg awarded the applicant 500 Russian roubles as compensation for non-pecuniary damage. That judgment was upheld on appeal on 29 January 2002.