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24. The applicant also complained under Article <mask> of the Convention that the Khabarovsk courts lacked impartiality and independence and that the proceedings on his claims had been unfair and excessively long. He further complained under Articles 9, 10, 14 and 17 of the Convention and Protocol No. 12 that he had been persecuted for his beliefs and discriminated against. Finally, he complained under Article 2 of Protocol No. 4 that, lacking residence registration, he could not buy a plane ticket. | 9 |
15. The applicant complained that the non‑communication of the principal public prosecutor’s written opinion to him infringed the right to a fair trial, resulting from the failure to respect the principle of equality of arms. He further alleged that the fairness of the proceedings had been undermined by the attendance of the prosecutor at the deliberations of the Court of Cassation and the length of the proceedings. He relied on Article <mask> of the Convention, which in so far as relevant, read as follows: | 9 |
60. The applicants complained under Article <mask> of the Convention that the proceedings had been unfair. In particular, they complained that costs had been unfairly ordered against them, in view of the fact that they had not been responsible for the errors committed by the first-instance court. Furthermore, they complained that they had not been heard in relation to this matter and that the Supreme Court’s judgment had not been reasoned in this respect. | 9 |
42. The Government submitted that the applicant had expressly waived his right to a lawyer and the waiver had been compatible with Article <mask> of the Convention. The domestic courts had lawfully relied on the self-incriminating statements made by the applicant and the absence of the lawyer at that time had not affected the overall fairness of the proceedings. They argued that the applicant had voluntarily confessed to the murder and that his privilege against self-incrimination had not been affected. | 9 |
31. The Government maintained that the judgment of 23 October 2000 had been reviewed by the Supreme Court by way of the cassation appeal procedure provided for under the Code of Civil Procedure and that such review therefore complied with the requirements of Article <mask> of the Convention. They further insisted that the quashing of the judgment of 23 October 2000 by the President of the Supreme Court had pursued the legitimate aim, in particular, of rectifying the errors made by the lower court when considering the applicant’s case. | 9 |
45. The Government argued that the two decisions cited above were in contradiction with each other in that the complaint under Article 6 about the fact that the applicant had been convicted under the summary procedure had been rejected by means of a decision against which no appeal lay, that being surely incompatible with the Court's intention to look into “the question whether the provisions introduced by Legislative Decree no. 341 of 24 November 2000 infringed the principles of fair trial”. Moreover, before the decision on admissibility no specific question relating to compliance with Article <mask> of the Convention had been put to the Government by the Court's Registry, so that the Government had been prevented from submitting detailed observations on the admissibility and merits of the complaint in question. | 9 |
23. The applicant complained of a violation of Article <mask> of the Convention in view of the alleged failure to provide him with the relevant decisions concerning his son's case. The Court considers that this complaint raises essentially the same issue as that raised under Article 2 of the Convention, namely, whether the authorities complied with their procedural obligations under Article 2. It will therefore not examine this complaint separately. | 9 |
73. The applicant complained of a violation of Article 6 §§ 1, 2 and 3 (d) of the Convention. He alleged that on all seven occasions the proceedings in which he was convicted of an administrative offence fell short of the fair hearing guarantees, in particular the principles of equality of arms, adversarial proceedings, independence and impartiality of the tribunal, and the presumption of innocence. Article <mask> of the Convention, in so far as relevant, reads: | 9 |
77. The Government submitted that, in any event, the applicant’s right to a fair trial under Article <mask> of the Convention had not been violated. The Court of Appeal had taken evidence in compliance with the requirements of that provision. Pursuant to Article 244 of the Code of Criminal Procedure in particular, the same rules for the taking of evidence applied both to the prosecution and the defence. Under the German Code of Criminal Procedure, it was for the criminal courts themselves to investigate the truth of their own motion. Even though the investigation into offences committed abroad raised considerable procedural problems, the defendants were protected by the rules on criminal procedure and by having the benefit of the doubt. | 9 |
99. The Government of Cyprus submitted that the instant application was an exceptional case in which the applicant had been denied each and all of the basic fair-trial guarantees provided for in Article <mask> of the Convention. The violations of his rights included inter alia a failure to inform the applicant promptly, in a language that he understood, of the nature and cause of the accusation against him, to provide him with adequate time and facilities to find a lawyer of his own choosing and to prepare his defence, to allow the cross-examination of witnesses and to provide the applicant with proper interpretation and a transcript of the trial. Lastly, there was proof beyond reasonable doubt that the “court” which tried the applicant was neither impartial nor fair. | 9 |
87. The Government submitted that face-to-face meetings were prohibited in order to protect the identities and the safety of the police officers responsible for the investigation. That prohibition was offset by the verification of lawfulness carried out by the Indictments Division. The latter drew on the confidential file to check the identities and the reliability of the undercover agents, thus verifying whether the case had involved any incitement, and if so, deciding on the lawfulness of the evidence. At all stages in the proceedings before the investigating authority the defendants had had the opportunity of consulting the opened case file, which had necessarily contained all the relevant evidence. In addition, throughout the proceedings in the instant case the domestic courts had sought to ensure that the defence rights and the fairness of proceedings were being respected, in compliance with the requirements of Article <mask> of the Convention. | 9 |
26. The Government submitted that the applicant was not precluded from lodging an appeal on points of law with the Court of Cassation but there was a certain procedure envisaged by the law at the material time which should have been respected by a person willing to apply to this court. They argued that procedural requirements for lodging appeals were not incompatible with the guarantees of Article <mask> of the Convention. Furthermore, the domestic law envisaged a possibility to receive free legal assistance upon the initiative of an advocate. The Government finally submitted that the requirement that appeals on points of law could only be lodged by licensed advocates pursued the legitimate aim of ensuring the quality of appeals lodged with the Court of Cassation and was later abolished due to difficulties revealed during the practical implementation of the relevant procedural rules. | 9 |
42. The applicant argued that, whenever the court authorities transmit the summons solely to counsel, the latter will bear the burden and risk of delivery, which, in the applicant’s view, would run counter to Article <mask> of the Convention. A request by counsel that the applicant be summoned in person would have been in vain, as the direct service of a writ to an accused, who was assisted by counsel, was not provided for by the Code of Administrative Offences. In any event, the applicant, having made two requests to attend the hearing, was entitled to be heard at least once. In particular, evidence could have been obtained whether or not he had received information on the prolongation of the provisional work permit of A., and, if he had got such information, what kind that was. Furthermore, the applicant had been excluded from examining witnesses. | 9 |
52. The applicant observed that, at the relevant time, the Constitutional Court in several restitution cases quashed judgments which had been adopted without a public hearing pursuant to section 250(f) of the Code of Civil Procedure. Invoking Article 38 of the Charter of Fundamental Rights and Freedoms and Article <mask> of the Convention, the Constitutional Court found that cases involving controversial arguments could not be considered to be simple cases. Thus in decision No. II. ÚS 269/95, the Constitutional Court expressly stated that “restitution cases cannot be re-examined without a public hearing taking into account their complexity and the fact that former acts of deprivation of property rights had taken place a long time before”. Similarly, on 29 November 1994 the Constitutional Court quashed a judgment of the Prague Municipal Court given without a public hearing in another restitution case (decision No. Pl. ÚS 41/94) holding that “the simple cases mentioned in section 250(f) of the Code of Civil Procedure are, according to the legislator, cases in which the necessary evidence has been obtained and the cases themselves are quite clear and only points of law are really at issue”. | 9 |
71. The applicant submitted that prior to July 1999 in Bulgaria there had not existed any formal remedies against the unreasonable length of civil proceedings. He further submitted that the remedy created in July 1999 – the “complaint about delays” – was not an effective one. In particular, the applicant argued that for a remedy to be effective, it had to be able to lead to a finding that the length of the proceedings had been unreasonable and to result in an award of compensation for delays which had already occurred. Measured by this yardstick, the procedures available under Bulgarian law did not constitute effective remedies for the purposes of Article 13. Prior to July 1999 the applicant could address the Ministry of Justice and the Supreme Judicial Council. However, those were unregulated hierarchical appeals which could not lead to binding remedial action. As regards the “complaint about delays”, it did not lead to a finding that Article <mask> of the Convention had been breached and could not result in compensation; therefore it was likewise not effective. | 9 |
89. The Government further alleged that no evidence originating from X’s case had been used in the proceedings against the applicants. In any event, the use of evidence from the disjoined proceedings would have been lawful under Article 154 § 5 of the Code of Criminal Procedure, subject to Article 240 of the Code which requires a judgment to be based solely on evidence examined in a court hearing. They submitted that under these conditions, using evidence from the disjoined proceedings was compatible with Article <mask> of the Convention. | 9 |
83. The Government of Cyprus submitted that the instant application was an exceptional case in which the applicant had been denied each and all of the basic fair-trial guarantees provided for in Article <mask> of the Convention. The violations of her rights included inter alia a failure to inform the applicant promptly, in a language that she understood, of the nature and cause of the accusation against her, to provide her with adequate time and facilities to find a lawyer of her own choosing and to prepare her defence, to allow the cross-examination of witnesses and to provide the applicant with proper interpretation and a transcript of the trial. | 9 |
42. The applicants complained under Article <mask> of the Convention that, in the domestic proceedings which concluded in a final judgment of the Supreme Administrative Court of 11 July 2002, they lacked access to a court having full jurisdiction because the domestic courts refused to review the valuation of the Properties and relied entirely on the method and calculations undertaken by the Privatisation Agency and the Ministry of Industry in determining their entitlement to shares under section 18 of the Privatisation Act. The relevant part of Article 6 reads as follows: | 9 |
30. The Government submitted that the applicant’s failure to object to postponements of the hearings prevented him from claiming a violation of Article <mask> of the Convention (see Ciricosta and Viola v. Italy, 4 December 1995, § 32, Series A no. 337‑A). However, the Court considers that the circumstances of the present case are distinct from the special situation obtaining in Ciricosta. In that case the Court noted that a remedy for delays in proceedings had recently been introduced and that at the time of its judgment it was too early to verify its effectiveness (§ 31). This was not so in the present case. Moreover, the total number and duration of postponements in Ciricosta were so extensive as to affect the duration of the proceedings seriously, while the Government submitted evidence of only several such postponements in the present case and these were not capable of affecting the overall length of the proceedings. The Court concludes that the applicant did not contribute in any significant manner to the length of the proceedings. | 9 |
53. The Government submitted that during the hearing of 12 October 1992 Mrs M. did not complain that she had not been given an opportunity to make submissions, nor did she lodge a request to make further submissions. Similarly, she did not challenge the judge at any stage of the proceedings and during the same proceedings she failed to raise before the relevant courts the issue under Article <mask> of the Convention that her right to an impartial tribunal was “likely” to be infringed. Mrs M. never requested that the Chief Justice withdraw from her case, a plea which would not have been decided by the Chief Justice alone, but by the three judges sitting in the case. According to the Government, Mrs M. could have made such a request under Article 734 § 1 (e) of the Code of Organisation and Civil Procedure (see paragraph 28 above) which reflected the nemo iudex in causa propria rule in general. The Government made reference to various domestic decisions in which the courts had repeatedly attributed overriding importance to the fact that justice should not only be done but be seen to be done and that this had been an acknowledged legitimate ground for the withdrawal of or challenge to a judge. However, at the hearing before the Grand Chamber the Government admitted that there had been no domestic case-law proving that a challenge under Article 734 § 1 (e) of the Code of Organisation and Civil Procedure in such a case as the present one would have been successful. | 9 |
52. The Government also disputed the applicability of the civil limb of Article 6. They pointed out, primarily, that the Court could not create a substantive right which had no legal basis in the country concerned. Luxembourg domestic law did not recognise any “right” on the part of the applicant which could bring Article 6 § 1 into play. Under section 7 of the 1986 Law and Article 4 of the Grand-Ducal Regulation of 19 February 1989, prison leave was not a right but merely a privilege granted to prisoners. The legislature, in giving responsibility for matters relating to the execution of sentences imposed by the criminal courts to the Attorney General or his or her representative, had sought to remove the enforcement of judicial rulings from the control of the ordinary courts, whose task was confined to hearing and determining cases. Hence, the granting of prison leave would remain a matter exclusively for the Attorney General or his or her representative, ruling, in the case of persons whose sentence exceeded two years, in accordance with the majority decision of the Prison Board. Furthermore, prison leave, including the arrangements for its implementation, fell wholly within the State’s powers of discretion in the sphere of justice and penal policy. Thus, a dispute (contestation) over “rights” for the purposes of Article <mask> of the Convention could not be said to exist. The Government added that prisoners, who had the benefit of the safeguards provided by the Convention throughout the criminal proceedings until their conviction by the courts, had to serve their sentence to its end, forfeiting their liberty in the process. Hence, the applicant had been subjected to generally permissible restrictions applied to prisoners convicted under ordinary criminal law, arising solely out of the custodial sentence imposed on him. In that respect, the present case differed from Enea v. Italy ([GC], no. 74912/01, ECHR 2009‑...), where the applicant had been placed under a more severe confinement regime entailing more substantial restrictions on his rights compared with other inmates imprisoned under the ordinary criminal law. As to whether the alleged right relied upon was a “civil” right, the Government argued that any supposed right to prison leave did not by its nature have mainly or exclusively pecuniary implications. The applicant’s action in the administrative courts had not had a pecuniary aim, as it had sought the setting-aside of the decisions of the Prison Board rather than the recognition of a possible right to prison leave for the applicant. The outcome of the administrative proceedings, moreover, had not been directly decisive for the granting of prison leave, as the administrative courts could not substitute their assessment for that of the Prison Board. Lastly, in so far as the applicant relied on his right to see his children and reintegrate into social and professional life, the Government submitted that, if there had indeed been any restriction in that regard, it had been brought about solely by the offence which the applicant had committed and which had led to his custodial sentence. The Prison Board had taken no measures to prevent the applicant from seeing his children or resuming work. As to his social and professional reintegration, the Government pointed out that the applicant had received vocational training throughout his detention, of which he could make use when he had completed his sentence. The Government concluded that the proceedings before the Prison Board did not fall within the scope of Article 6 of the Convention. | 9 |
22. The Government contested the applicability of Article <mask> of the Convention to the proceedings on the postponement of enforcement. According to the Court's case-law, a “civil right” exists if there is a genuine and serious dispute which relates to the existence, the content or the conditions of a right and which is, at least on arguable grounds, recognised under domestic law. The outcome of the proceedings must have a direct impact on the right in question. | 9 |
17. The applicant complained in the first place that he had not received a fair trial by an independent and impartial tribunal due to the presence of a military judge on the bench of the Ankara State Security Court. The applicant further maintained that the principle of equality of arms had been violated since he had not been notified of the public prosecutor’s observations at the appeal stage. In this connection, he invoked Article <mask> of the Convention, which in so far as relevant reads as follows: | 9 |
82. The applicant organisation complained of a violation of a right to a fair hearing. In particular, the applicant organisation complained that the principle of equality of arms had not been respected as regards the extension of the limits of the counterclaim in the second set of proceedings. They relied on Article <mask> of the Convention which, in its relevant parts, reads as follows: | 9 |
36. The applicant complained that lack of diligence on the part of the competent Romanian authorities in assisting him in the enforcement procedure of a judgment in his favour had infringed his rights guaranteed by Article <mask> of the Convention and also his right to property as provided by Article 1 of Protocol No. 1 to the Convention. Insofar as relevant, these provisions read as follows: | 9 |
28. The applicants complained under Article 1 of Protocol No. 1 to the Convention that the law did not allow them to seek an increase in rent to reflect market values, thus it made them bear an excessive burden which could not be justified by any legitimate interest. Under Article <mask> of the Convention they complained that they did not have an effective remedy which could determine a rent increase, since the law provided for a cap on rent levels which had to be applied by the Rent Regulation Board. | 9 |
24. The applicant complained that in the appeal hearing of 24 April 2003 he had not been represented by counsel. As regards the new appeal hearing of 1 October 2008, he alleged that the defence provided by State-appointed counsel had not been effective; that the video link had been of poor quality and he had been unable to hear and to follow the court session. Furthermore, he argued that the fee awarded to counsel by the appellate court had been excessive. The applicant relied on Article <mask> of the Convention, which, in so far as relevant, reads as follows: | 9 |
23. The Government submitted that Article <mask> of the Convention did not apply to the proceedings at issue because, at the time of the events, the Court's judgment in the case of Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007‑IV), had not yet been given and under the Pellegrin test (Pellegrin v. France [GC], no. 28541/95, § ..., ECHR 1999‑VIII) Article 6 would not have been applicable to disciplinary proceedings against a civil servant such as the applicant. | 9 |
47. The applicant replied, with reference to Article 131 (f) of the Constitution and the practice of the Constitutional Court, that in order to exhaust all domestic remedies, individuals had to file a complaint with the Constitutional Court if and when they alleged a breach of Article <mask> of the Convention. Indeed, the applicant’s claims before the Constitutional Court, namely the impartiality of the court, the breach of the principle of legal certainty and the failure to enforce a final judgment, fell within the Constitutional Court’s competence as confirmed by its practice. Hence, the Constitutional Court had both the competence and an obligation to consider and decide the case, if necessary, by means of a judgment. Accordingly, the applicant’s claims had been lodged in time as, irrespective of the fact that it was a de plano inadmissibility decision, the Constitutional Court’s decision was dated 8 April 2002. | 9 |
25. The Government submitted that the complaint under Article 7 had not been brought before the constitutional jurisdictions, as the complaint before such courts had been raised solely under Article <mask> of the Convention. They noted that, while it was true that the applicant had tried to amend his application before the constitutional jurisdictions, he had done so too late, at a point when the case had been adjourned for judgment. Referring to Article 175 of the Code of Organisation and Civil Procedure, they noted that putting forward pleadings under Article 7 would have substantially affected the defence on the merits, which had been based on Article 6. The Government contested the applicant’s allegation that they had opposed his request, and noted that no right of reply to the applicant’s request had been granted to the respondent. Given the above, it had thus been for the applicant to lodge a fresh set of constitutional redress proceedings. Lastly, the Government noted that the Court’s power to decide a complaint ex officio under a different Article from the one relied on by the applicant did not override the need to exhaust domestic remedies. | 9 |
117. The applicant contended that compulsory questioning by police officers engaged the right to a fair trial under Article <mask> of the Convention, since the purpose of the investigation was to enable the police to determine whether the person being questioned appeared to be a “terrorist”. Although the definition of “terrorist” was extremely broad, in most cases such an inquiry would include an investigation into whether someone had personal involvement in criminal offences. Moreover, the Schedule 7 powers had the substantive characteristics of a police power to investigate criminal activity. | 9 |
16. The Government further submitted that the judgment of 15 March 2004, by which the applicant had been awarded arrears in respect of food and disability allowances, and the judgment of 9 September 2004 had not been enforced because the Ministry of Finance had not allocated necessary funds to the local department of the federal treasury. The Government acknowledged that the non-enforcement of those judgments infringed the applicant's rights guaranteed by Article <mask> of the Convention and Article 1 of Protocol No. 1. Subsequently the Government submitted that the applicant had received monthly and annual allowances for the period up to 1 July 2006. | 9 |
35. The Government maintained that the applicant’s representative had submitted his appeal in person to the first instance court, and that the date stamp on the appeal showed that the appeal had been submitted on 23 March 2001. The courts had therefore rejected the appeal as having not been submitted within the time-limit, as provided under the then Act. They further stated that the Court of Appeal had made efforts to establish the truth as to the date of receipt of the appeal. Acting upon its instructions, the first-instance court had established that 23 March 2001 had been recorded in the register as date of introduction. That date had been indicated on the copy of the appeal which had been communicated to the defendants for consideration. In addition, the applicant had had the right to challenge that decision before the Court of Appeal. They therefore concluded that the State could not be held responsible for errors made by the applicant’s lawyer, namely having failed to submit the appeal in good time. Finally, they stated that the applicant had been afforded the guarantees embodied in Article <mask> of the Convention. | 9 |
32. The applicant complained that the courts had refused his request for an alternative expert examination concerning the quality of the poppy-tar and that they had based their decisions on the expert reports produced by the same Ministry as had brought the criminal charges against him. He further complained that he had been incited by a police agent acting as an agent provocateur to commit the offence of which he was later convicted. He also alleged that the courts had refused to accept that he had decided to call off the sale of poppy-tar. He alleged procedural unfairness, in breach of Article <mask> of the Convention, which, in so far as relevant, reads as follows: | 9 |
90. The Government argued that according to Article 217 § 1 of the new Civil Code, the absolute nullity of an act can be invoked by any person without any limitation in time. According to them, the absolute nullity of the sale and lease was an essential premise for the admission of the Prosecutor General’s action and the upholding of those actions after the expiry of the general time-limit did not breach the principles of fairness guaranteed by Article <mask> of the Convention. The Government also submitted that the fourth applicant was summoned at its official address and the court was not obliged to send a summons to another address. | 9 |
17. The Government, relying on the Court's judgments in the cases of Pellegrin v. France ([GC], no. 28541/95, ECHR 1999‑VIII) and Kanayev v. Russia (no. 43726/02, 27 July 2006), argued that the applicant's complaint under Article <mask> of the Convention was incompatible ratione materiae because the applicant had been a military officer and the judgment award had concerned wage arrears for his military service. They further argued that Article 1 of Protocol No. 1 was also inapplicable because the applicant had not had a “possession” within the meaning of the invoked Convention provision as he had had no right to receive “payments in the amount desirable”. He neither had an “existing possession” nor a “legitimate expectation”. As to the merits of the complaint, the Government noted that the judgment of 22 February 2002 had been quashed because the Military Court of the Ryazan Garrison had incorrectly interpreted and applied material law. | 9 |
53. The applicant further complained under Article <mask> of the Convention about the Supreme Court’s refusal of 12 November 2001 to examine his cassation appeal (see paragraph 28 above). He submitted that the May 2000 amendment to the Code of Civil Procedure, which provided for the possibility to leave a cassation appeal without examination, had come into force after his cassation appeal against the judgment of 9 November 2000 had been lodged with the Supreme Court. As a result, he had been unfairly deprived of his right to have access to that court. | 9 |
20. The Government submitted that the judgments of 30 June 2003, 24 March 2004 and the judgment of 8 June 2004, by which the applicant had been awarded RUB 9,494.52, had been enforced in full. They further submitted that the judgments of 1 April and 8 June 2004 had not been enforced. They acknowledged that the lengthy non-enforcement of the judgments in the applicant's favour violated his rights guaranteed by Article <mask> of the Convention and Article 1 of Protocol No. 1 to the Convention. | 9 |
25. The Government argued that, in the assessment of the relationship between the right to a fair trial guaranteed by Article <mask> of the Convention and the obligation to withhold information pertaining to ongoing police operations from the parties to court proceedings, a difference should be made between the withholding of facts not affecting nor relating to the case and the withholding of facts affecting or relating to the case. The right of everyone “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him” under Article 6 § 3 (d) cannot be considered to extend to the examination of witnesses in respect of facts which do not affect or relate to the case. | 9 |
35. The Government maintained that based on an overall assessment and in the light of the specific circumstances of the cases, the criminal charges against the applicants were determined within a reasonable time as prescribed by Article <mask> of the Convention. They agreed that the cases were uncomplicated as concerned the facts, but found that they were to some extent complex due to problems in law as well as procure. In this respect the Government referred inter alia to the involvement of EU-law issues, notably the question whether the relevant provision of the 1989 Act should have been notified to the European Commission and the question whether the cases should have been referred to the European Court of Justice for a preliminary ruling. Moreover, the Government found that the applicants to a very considerable extent had been a contributory cause to the length of the proceedings. Finally, the Government maintained that it could not give rise to criticism that the city courts decided to adjourn the criminal proceedings pending the outcome of the “test-cases” as these decisions were reasonably motivated. All in all the Government found it inappropriate that the applicants on the one hand requested adjournments of the proceedings; extensions of time-limits for submission of pleadings; were unable to appear before court hearings before certain dates; raised questions of principles, including a request for a preliminary reference to the European Court of Justice; requested an expert witness; and a special counsel assigned, and on the other hand claimed that the length of the proceedings were excessive. | 9 |
50. The applicant complained under Article <mask> of the Convention that the judgment of 3 December 2003 had been given in her absence. She further alleged that the examinations of experts had been carried out in breach of the national law, that the domestic courts had refused to assist her in collecting the evidence and that the amount of compensation awarded was insufficient. | 9 |
71. The applicant submitted that a complaint to a court about the unlawfulness of her detention would have been ineffective because the Prosecutor General's Office had a two-fold duty of making a case for holding her in custody and ensuring respect for her rights. She further complained that she had not been taken to the hearing before the Golovinskiy District Court. The applicant invoked Article <mask> of the Convention in connection with these grievances. The Court considers, however, that they fall to be examined under Article 5 § 4 of the Convention which is a lex specialis in such a situation. Article 5 § 4 reads as follows: | 9 |
43. The applicants also complained under Article <mask> of the Convention that the compensation proceedings against the law-enforcement authorities were unfair. Relying on Articles 6, 13 and 17 of the Convention and Article 1 of Protocol No. 1, the applicants alleged that the harvest of sunflower seeds belonging to Mr V. Pozhyvotko had been unlawfully appropriated by his business colleagues. | 9 |
16. The applicant complained that the criminal proceedings against him had been unfair. In particular, he alleged that his guilt had not been proved beyond a reasonable doubt, that the presiding judge had exerted undue influence on the jury and that witness Sh. had not been questioned in court. The applicant relied on in Article <mask> of the Convention, which reads, in so far as relevant, as follows: | 9 |
104. The Government submitted that the applicant’s claim for pecuniary damages concerning her proprietary interests had no causal link to the alleged violation of Article <mask> of the Convention. In relation to the claim for non-pecuniary damage, the Government argued that a finding of a violation would in itself constitute sufficient just satisfaction in the instant case. Alternatively, they argued that the compensation for non-pecuniary damage should be determined bearing in mind the awards made in similar cases, such as Andrejeva v. Latvia ([GC], no. 55707/00, ECHR 2009), Užukauskas v. Lithuania (no. 16965/04, 6 July 2010) and Pocius v. Lithuania (no. 35601/04, 6 July 2010). | 9 |
38. The Government submitted that the applicant had not raised the complaints of a violation of his right to be assisted by a lawyer and of the Odessa Court’s non-compliance with the requirement of a “tribunal established by law” before the Supreme Court and had therefore not exhausted domestic remedies in that respect. According to the Government, the remainder of the applicant’s complaints under Article <mask> of the Convention were unsubstantiated. | 9 |
74. The applicant also complained under Article <mask> of the Convention and Article 1 of Protocol No. 1 that the judgment of 20 November 1973 had not been enforced and that the Moldovan authorities were responsible for the non-enforcement of the 2003 judgment. He further complained under Article 2 of the Convention that he was deprived of his right to life, in the sense of normal life, and under Article 14 that he was discriminated against since the reason for the non-enforcement of the judgments in his favour was his being Russian by origin. | 9 |
71. The Government contended that the complaint made under Article 6 that the constitutional jurisdictions had taken an unreasonably long time to decide the case had never been brought before the domestic courts as the applicants had failed to institute a new set of constitutional proceedings in this respect. Arguing that such a remedy would be effective, the Government made reference to domestic case-law, namely Lawrence Cuschieri v. the Honourable Prime Minister (6 April 1995), Perit Joseph Mallia v. the Honourable Prime Minister (15 March 1996), and The Honourable Judge Dr Anton Depasquale v. the Attorney General (19 September 2001), where the constitutional jurisdictions had taken cognisance of complaints against the Constitutional Court in relation to the fairness of proceedings under Article <mask> of the Convention. In the first of these cases, the Constitutional Court held that it could not a priori exclude review of questionable behaviour or actions of the constitutional jurisdictions. In the Perit Joseph Mallia case, both the first-instance court exercising its constitutional jurisdiction and the Constitutional Court on appeal had upheld the applicant’s claims and had found a violation of Article 6. | 9 |
44. The applicant complained that the criminal proceedings initiated at his request were excessively long and that therefore there had been a breach of Article <mask> of the Convention. The Court reiterates that the Convention does not guarantee the right to pursue criminal proceedings against third parties and that Article 6 does not apply to proceedings aimed at instituting criminal proceedings against third parties. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4. | 9 |
60. The Government further maintained that the applicants’ employment contracts did not provide for the jurisdiction of national courts in case of a dispute. Pursuant to the Vienna Convention the Embassy had its seat in a foreign State, which had its own legal personality. They referred to section 29 of the Civil Procedure Act and section 46 of the Resolution of Conflict of Laws and Regulations of other States Act (see paragraphs 30 and 35 above). They maintained that granting immunity to a foreign State in civil proceedings pursued a legitimate aim of complying with international law and encouraging good diplomatic relations between States, and could not be considered as a restriction on access to a court. They concluded that there had been no violation of Article <mask> of the Convention. | 9 |
80. The Government maintained that the proceedings in the applicants’ administrative cases had complied with Article <mask> of the Convention. They argued that each applicant had been given a fair opportunity to state his case, to obtain the attendance of witnesses on his behalf, to cross-examine the witnesses for the prosecution, in particular the police officers, and to present other evidence. The applicants were given an opportunity to lodge written requests and they availed themselves of that right. The Government claimed that the hearings had been open to the public, including to journalists, who had been present in the courtroom. | 9 |
24. The applicants complained in their submissions of 29 March 2005 that the Court of Cassation’s decision was not reasoned. They also complained that due to the fact that they were detained three hundred kilometres away from İzmir, their representative did not have the possibility to visit them regularly during the criminal proceedings with a view to preparing their defence. They relied on Article <mask> of the Convention. | 9 |
61. The applicant raised additional complaints under Article <mask> of the Convention. However, having regard to all the material in its possession, and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. | 9 |
44. The applicant contended that throughout the investigation and the court proceedings there were several periods of inactivity or almost no activity, in particular from March 1995 until June 1998; from May 2001 until September 2002; and from May 2005 until June 2006. Moreover, although not formally objecting to his case having been heard together with the co-defendants’ cases, having regard to the overall period and what was at stake for him, the applicant maintained that the length of the proceedings exceeded the reasonable time requirement within Article <mask> of the Convention. | 9 |
27. The applicant complained under Article <mask> of the Convention that he had not been given the opportunity to examine and comment on the extracts from the electoral rolls of 2006, 2008 and 2010 submitted as evidence by the Ministry of Justice and cited in its reasoning by the Administrative Court. Under the same Article, he complained about the authorities’ refusal to change his ethnicity entry in the electoral roll, as that refusal had violated his right to an ethnic identity. The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], no. 37685/10, § 124, 20 March 2018, and Söderman v. Sweden [GC], no. 5786/08, § 57, ECHR 2013), considers that this latter complaint should be analysed from the standpoint of Article 8 of the Convention. Articles 6 and 8 of the Convention, in so far as relevant, read as follows: | 9 |
14. The applicants complained that the authorities’ failure to comply with the binding and enforceable judgments of 27 December 2006, 2 August 2006 and 11 October 2006 had violated their right to a court under Article <mask> of the Convention and their right to the peaceful enjoyment of their possessions under Article 1 of Protocol No. 1, which, in so far as relevant, read as follows: | 9 |
22. The applicant emphasised that the claim he had attempted to lodge against the Ministry of Finance had contained references to many procedural and substantive violations committed by the Tverskoy District and Moscow City Courts during the examination of his claim against the Savings Bank. The domestic courts may not have rejected his claim de plano for a lack of justification or insufficient evidence, as those were the issues to be determined in the judicial proceedings. The Basmanniy District Court's refusal to examine his claim had been in breach of the constitutional requirements and Article <mask> of the Convention. | 9 |
62. The Government added that it was not reasonable to require that, in circumstances such as those in the present case, the higher courts had to hold an oral hearing on the specific question of whether leave to appeal should be granted in order to comply with the requirement of fairness in Article <mask> of the Convention. This might result in an individual intentionally refraining from requesting an oral hearing at the first instance in order to request one on appeal, thereby circumventing the system of leave to appeal. As concerned the present case, they observed that the applicant had been represented by legal counsel during the entire process, including before the Social Insurance Office, for which reason it could not have been difficult for him to submit in writing his arguments and the written evidence that he wished to invoke. Consequently, the Government concluded that it had been justified for the Administrative Court of Appeal not to hold an oral hearing. | 9 |
69. The Government contested the applicant’s claim, submitting that the amount was unsubstantiated and excessive. The Court considers that the finding of a violation constitutes sufficient just satisfaction (see Dvorski v. Croatia [GC], no. 25703/11, § 117, ECHR 2015). It further considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article <mask> of the Convention, should he so request (see Salduz, cited above, § 72). It therefore rejects the applicant’s claim. | 9 |
33. The applicant in case no. 3159/10 also complained under Article <mask> of the Convention and Article 1 of Protocol No. 1 to the Convention about the failure of the domestic authorities to enforce the judgment of 28 February 2007 providing her with a plot of land for the construction of a house. She also complained under Article 6 of the unfairness of the proceedings before the Chișinău Court of Appeal, which had failed to summon her and on 24 June 2009 had examined the case in her absence. | 9 |
22. The Government submitted that the complaints under Article <mask> of the Convention should be dismissed as being incompatible ratione materiae with the provisions of the Convention, since tax disputes did not fall within the scope of Article 6 under its civil head (they cited Ferrazzini v. Italy [GC], no. 44759/98, ECHR 2001-VII) and since the criminal head was unconnected to the facts of the case. | 9 |
13. The applicant complained that the appeal lodged by the State Licensing Chamber against the judgment of the Court of Appeal was late and that its upholding by the Supreme Court of Justice breached its right to a fair trial guaranteed by Article 6 § 1 of the Convention. In so far as relevant, Article <mask> of the Convention provides as follows: | 9 |
85. The applicants argued that, although they had made use of that remedy, it had finally proved to be ineffective because the examination of the applicants’ complaints was procedurally flawed. The Court would observe, however, that not every procedural shortcoming results in the “ineffectiveness” of the remedy in question. Article 13 does not impose on States the same obligations as Article <mask> of the Convention. To hold otherwise would be tantamount to extending the scope of Article 6 beyond disputes concerning “civil rights and obligations” (see Golder v. the United Kingdom, 21 February 1975, § 33, Series A no. 18, and Silver and Others v. the United Kingdom, 25 March 1983, § 113, Series A no. 61, with further references). | 9 |
14. The Government submitted in the first place that the application should be rejected as being incompatible ratione materiae with the provisions of the Convention. In this respect, they referred to the Court's case-law (Pellegrin v. France [GC], no. 28541/95, § 67, ECHR 1999‑VIII) and maintained that disputes relating to the career of civil servants were outside the scope of Article <mask> of the Convention. | 9 |
22. The Government argued that a hearing held in the absence of the defendant did not violate Article <mask> of the Convention if the defendant was not punished for his absence in the proceedings and if his right to legal assistance was not restricted, on account of the fact that the defendant was represented in the proceedings by legal counsel. Moreover, the presence of the defendant at an oral hearing was not necessary when the only questions addressed were those which merely required an assessment of evidence and did not relate to the personality of the defendant. According to the applicant's written submission, which was completely identical to the counsel's oral pleadings, he merely claimed that he had left the motor vehicle with a third person and that therefore the applicant's presence was not necessary. Moreover the IAP took full account of the applicant's submissions. Lastly, the Government argued that the applicant had waived his right to attend the hearing on 22 February 2005, since he had not presented any medical certificate as evidence of his sudden illness. | 9 |
67. The Government submitted that under the Court's case-law, the guarantees contained in Article <mask> of the Convention applied less stringently to civil proceedings than to criminal proceedings and that in appellate proceedings restrictions on publicity were permissible if the circumstances of the case required. They said that “special circumstances” had existed in the present case that justified restrictions being placed on publicity in the proceedings. In any event, the applicant company had been able to present all the arguments it had considered appropriate to the Supreme Arbitration Tribunal in writing and the tribunal had addressed each of those arguments. There had been a hearing in public at first instance. The Government therefore considered that the trial had been fair within the meaning of Article 6 of the Convention. | 9 |
101. The applicant further complained, under Article <mask> of the Convention, that the criminal proceedings against him had been instituted unlawfully and that his representative, B., had not been allowed to represent him. The applicant also complained, under Article 6 § 3 (d) of the Convention, that his requests to call witnesses and for the ordering of forensic examinations had been rejected by the court. | 9 |
88. The applicant complained about the delayed enforcement of the final judgment in her favour. She also complained of the unfairness of the proceedings for compensation, stating that in the absence of any specific knowledge regarding military equipment or access to any information about the details of the military operation in Chechnya, apart from that made public in the mass media, she was not in a position to obtain any evidence as to what type of weapon destroyed her property or to what unit of the federal forces it had belonged. Lastly, the applicant complained that her housing and other belongings had been destroyed during the attack of 4 January 2000 but that no compensation had been awarded to her for their loss. She relied on Article <mask> of the Convention and Article 1 of Protocol No. 1 to the Convention, which, in so far as relevant provide as follows: | 9 |
113. The Government contended that there was no causal link between a violation of Article <mask> of the Convention and the loss of income which the applicant alleged he had sustained as, in view of his financial situation, he would have been declared bankrupt in any event on account of the taxes assessed by the Tax Authority. Thus, the tax surcharges had been of no relevance to the bankruptcy decision. In addition, the applicant had failed to substantiate any loss of income. The Government further stated that the Court had no power under Article 41 to oblige a State to cancel a tax debt. Moreover, they contested that there was any causal link between the alleged pecuniary damage relating to the tax debt and the alleged violations of the Convention, which did not relate to the imposition of taxes and surcharges but to the enforcement of the decisions. In any event, only a very small amount of the relevant tax debt had actually been paid; the remainder had become statute-barred on 31 December 2001. | 9 |
95. The Government of Cyprus submitted that the instant application was an exceptional case in which the applicant had been denied each and all of the basic fair-trial guarantees provided for in Article <mask> of the Convention. The violations of her rights included inter alia a failure to inform the applicant promptly, in a language that she understood, of the nature and cause of the accusation against her, to provide her with adequate time and facilities to find a lawyer of her own choosing and to prepare her defence, to allow the cross-examination of witnesses and to provide the applicant with proper interpretation and a transcript of the trial. Lastly, there was proof beyond reasonable doubt that the “court” which tried the applicant was neither impartial nor fair. | 9 |
43. The Government submitted, secondly, that Article <mask> of the Convention was not applicable to the proceedings before the Supreme Court for granting a review of the Court of Appeal’s judgment of 19 December 2007 and that the present case involved no factual or legal issues liable to trigger a fresh examination by the Court under Article 6 of the Convention. | 9 |
61. The Government contested the applicant’s claims. They asked the Court to dismiss the applicant’s just satisfaction claims as not related to the alleged breach of the “reasonable-time requirement” under Article <mask> of the Convention. They invited the Court to consider that the finding of a violation would constitute in itself sufficient compensation for any damage in the present case. | 9 |
38. The applicant complained that he had been unable to attend some of the civil court hearings where he was a party owing to the refusal to escort him to those hearings. He also complained of a refusal by the domestic courts to examine some of his court actions in the absence of a preliminary decision by the Complaints Committee, the latter having refused to issue him with any of its decisions concerning his complaints. He relied on Article <mask> of the Convention. | 9 |
105. The Government commented that the applicant's Article 14 complaint added nothing to her complaints under Articles 6 § 1 and 8 of the Convention. In particular, they submitted that, if privileges are compatible with the requirements of Article <mask> of the Convention alone, then they must be equally compatible with the requirements of Article 6 taken in conjunction with Article 14. They argued further that a person about whom damaging remarks have been made in Parliament is not in a relevantly similar position to a person about whom such remarks have been made outside Parliament. | 9 |
16. The Government argued that the Court could apply in the instant case the same reasoning as in the cases of Korolev v. Russia ((dec.) no. 25551/05, 1 July 2010) and Holub v. Czech Republic ((dec.) no. 24880/05, 14 December 2010) and examine the disadvantage the applicant had suffered following the alleged breach of her procedural rights guaranteed by Article <mask> of the Convention. The applicant had never claimed that she had suffered any financial loss as a result of the way the second‑instance court had been composed, and no causal link could be identified between the two elements. | 9 |
27. The Government alleged that the applicant’s right to a fair trial had not been breached. They noted that the right to take part in proceedings was not absolute. Article <mask> of the Convention did not guarantee a right to appear in person before a civil court but rather a more general right to present one’s case effectively before the court and to enjoy equality of arms with the opposing side. States had a free choice of means to be used in guaranteeing those rights to parties in a case (see, among other authorities, Gryaznov v. Russia, no. 19673/03, § 45, 12 June 2012). | 9 |
41. The applicant maintained that his summary trial did not comply with the requirements of Article 6 §§ 1 and 3 of the Convention. He denied that he was offered an opportunity to choose trial by court-martial. In any event, even assuming he had chosen a summary trial, he did not accept that he could be considered to have waived his Article 6 rights. He referred to the fundamental nature of the rights at issue (including independence and impartiality), he pointed out that he had not been legally advised and he stressed the unequal nature of the relationship between a soldier and his Commanding Officer. While he accepted that it was unlikely that he would have been tried by court-martial before 1 April 1997, he maintained that the post-1996 Act system also breached of Article <mask> of the Convention. | 9 |
47. The applicants complained under Article <mask> of the Convention that they had been denied a fair hearing. In this connection, they claimed that the domestic courts had failed to take into account the evidence in their favour and had relied solely on the incident report. They further criticised the fact that they had been denied the opportunity to ask Captain Y. questions because he had been heard by a judge of another court pursuant to a letter rogatory. | 9 |
37. The Government further argued that the Constitutional Court’s task was to determine issues of constitutional law, rather than those of civil rights and obligations. On that ground, they requested the Court to declare the application incompatible ratione materiae with Article <mask> of the Convention in so far as it concerned the Constitutional Court’s alleged interference with the applicant’s rights guaranteed by that provision. | 9 |
60. The applicant complained that he had not been provided with an interpreter to enable him to understand the accusations against him. Furthermore, the appeal proceedings had lasted an excessively long time. Moreover, the presiding judge had not conducted the hearings in an impartial manner and that the trial court had not adequately examined his alibi. Finally, although the trial court had been unable to establish who had actually committed the murder, it had convicted both him and his co-accused and imposed the same sentence on both of them. In respect of these complaints the applicant relied on Article <mask> of the Convention which provides, in so far as relevant, as follows: | 9 |
20. The applicant averred that the Neryungri Town Court's judgment of 16 March 2001 had not been executed since she had not accepted the sum transferred to her on 9 March 2006. She claimed that the reopening of the enforcement proceedings in 2006 had been illegal and considered that she had therefore had no right to accept the money. She stated, furthermore, that the amount had dropped significantly in value since 2001 and that no index-linking had been offered to her. Overall, she insisted that her rights under Article <mask> of the Convention and Article 1 of Protocol No. 1 had been violated. | 9 |
10. The applicant alleged that the length of the administrative proceedings exceeded the reasonable time requirement, in breach of Article <mask> of the Convention. He further maintained, under Article 1 of Protocol No. 1, that the default interest paid on the compensation awarded by the İstanbul Administrative Court was insufficient. The Government submitted that the case had been complex and that there had been no delay in the proceedings which could be attributed to the authorities. The Government further submitted that the amount of compensation paid to the applicant had sufficiently compensated him for the damage he had suffered. | 9 |
30. The Government asserted that requiring the defendant to express a positive intention to appear was not in breach of the Convention. In that connection they pointed out that, under Italian law, the participation of the defendant in the hearing was a right rather than an obligation. In the instant case, the applicant had received a notice informing him of the date of the hearing and of the existence of that right, and stating that it was for the defendant to request the prison authorities to arrange his transfer from the prison to the place of the hearing. True, the applicant alleged that the notice had not been translated into Arabic or French. However, Article <mask> of the Convention did not go so far as to require that all steps in the proceedings should be translated; if he had not fully understood the notice, the defendant could have asked to be assisted free of charge by an interpreter or asked a fellow detainee to translate it. | 9 |
68. The applicant companies further submitted that in its judgment no. 274 of 7 July 2006 the Constitutional Court had not examined the constitutional legitimacy of the law on the basis of Article <mask> of the Convention, namely the principle of a fair trial as also laid down in the Italian Constitution, and therefore it had not examined the constitutional legitimacy of the law in the light of the applicants’ arguments – the said analyses having become customary only after the 2009 judgment in Scoppola v. Italy (no. 2) ([GC], no. 10249/03, 17 September 2009). Indeed, in its judgment no. 274 the Constitutional Court had made statements which were contradictory to the principles derived from Article 6, and moreover had not categorically stated that the norm was one of genuine interpretation (see paragraph 54 above). Furthermore, the relevance of the applicant companies’ arguments had been evident also to the Attorney General to the Court of Cassation (Procuratore Generale della Repubblica presso la Corte di Cassazione) who had not considered the challenge under Article 6 as manifestly irrelevant or ill-founded and who had made statements such as “the claimants’ reasonable expectation to see their claim granted” and “[the provision] influenced the judge’s decision”. | 9 |
42. The Government admitted that, in certain circumstances, the Court had indicated that the re-examination of a case or the reopening of proceedings would constitute the most effective, if not the only, means of achieving restitutio in integrum. However, they stressed that the majority of cases in which the Court had acknowledged that a retrial or the reopening of a case would be an appropriate way of redressing the violation had concerned proceedings which gave rise to breaches of the requirements of Article <mask> of the Convention and which had been decisive for the applicant concerned (the Government referred to Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 89, ECHR 2009, and Davydov v. Russia, no. 18967/07, § 27, 30 October 2014). The Government further stressed that unlike, for example, the awarding of just satisfaction, the reopening of proceedings was a measure to be used in exceptional cases, having regard to the rights of third parties and the principle of res judicata. | 9 |
15. The applicant complained that from November 2006 onwards the authorities had failed to honour the judgment of 27 October 1999 by applying a new method of index-linking in respect of the awarded amount, and from August 2009 had discontinued the payments. She relied on Article <mask> of the Convention and Article 1 of Protocol No. 1 to the Convention, the relevant parts of which read: | 9 |
28. The applicants complain that the administrative proceedings in their cases fell short of the guarantees of a fair hearing, including the principles of equality of arms, adversarial proceedings, independence and impartiality of the tribunal, and also that they had been prevented from calling and examining key witnesses. They relied on Article <mask> of the Convention, the relevant part of which reads as follows: | 9 |
35. The applicant made several complaints under Article 6 §§ 1 and 3 (c) of the Convention. In particular, he complained that (1) the record of the hearing of 5 February 2002 had been falsified, (2) he could not question witnesses K. and B. because he had been removed from the court room on 22 March 2002, (3) the trial court had removed the public from a part of the hearing of 22 March 2002, (4) the appeal hearing of his criminal case had been held in his absence on 1 July 2002 and he could not plead his defence and confront the prosecutor. The relevant parts of Article <mask> of the Convention provide: | 9 |
26. The Government submit in the first place that Article <mask> of the Convention does not confer the right to an appeal or an appeal in cassation. However, if such an appeal is provided for in domestic legislation, such proceedings should comply with the requirements of Article 6. In the present case, the applicant is claiming a right to lodge an appeal in cassation, which right he does not have under domestic law. In the Government’s opinion, the right of access to a court is not an issue in the present case since the applicant had access to a court at two instances. What he claims in essence is the right to submit his case – on his own terms – to a third court in order to seek a ruling on issues that have already been determined at two instances. | 9 |
28. The applicant complained under Article <mask> of the Convention about the length of the proceedings before the administrative courts. He further complained under Article 1 of Protocol No. 1 to the Convention about the considerable loss in the market value of his apartment, caused by the inactivity of the administration to demolish the illegal part of the neighboring building. | 9 |
43. The Government, firstly, noted that enforcement of the judgment of 21 November 2001 was still possible, as the Company had not yet been liquidated. They asked the Court to dismiss the complaint as premature under Article 35 § 1 of the Convention. Having extensively relied on the Court’s case-law, the Government further submitted that the judgment had been issued against a private company for whose debts the State could not be held liable. They stressed that the State’s responsibility did not go any further than to assist the applicants in the enforcement of the judgment, through bailiffs or by way of bankruptcy proceedings. The Government reiterated that this was not an obligation of result but of means, with the means of enforcement available to the present applicants having been adequate and effective. The State should only bear responsibility for very serious omissions committed by its officials which had negated the point of enforcing the judgment. The Government further stated that the Court should distinguish the present case from the case of Kunashko v. Russia (no. 36337/03, 17 December 2009), in which it found a violation of Article <mask> of the Convention on account of the State’s failure to effectively assist the applicant in recovering a judgment debt against a private legal entity. Without providing any further details, the Government observed that, in contrast to the Kunashko case (cited above), in the case under examination the bailiffs had “under[taken] active measures aimed at the organisation of an appropriate procedure for the enforcement ... of the judgment of 21 November 2001”. At the same time, the Government noted that the Russian courts had already declared the bailiffs’ “inactivity and their failure to take every possible step” to enforce the judgment in the applicants’ favour unlawful. The Government’s final argument was that the enforcement of the judgment was at the material time in the hands of the Company’s liquidator, who was not affiliated to the State in any way. | 9 |
72. The applicant also complained under Article <mask> of the Convention that the Migration Board and the Federal Administrative Court violated his right to a fair trial. The Court notes that this provision does not apply to asylum proceedings as they do not concern the determination of either civil rights or obligations or of any criminal charge (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. | 9 |
32. The applicant also complained under Article <mask> of the Convention about the outcome of the proceedings in her case and that they were unfair. Relying on Article 13 of the Convention she complained that in March 2002 her advocate had refused to represent her before the Court of Appeal. She also complained under Article 1 of Protocol No. 1 that her property rights had been violated since the domestic courts had found against her. Finally, she invoked Articles 14 and 17, on the same grounds. | 9 |
49. The applicant complained that the non-enforcement of the domestic judgment delivered in her favour on 21 September 1993, in which the authorities had been ordered to pay her salary arrears, had breached Article <mask> of the Convention and Article 1 of Protocol No. 1. She also complained that she did not have an effective remedy in this respect. The relevant parts of the provisions read as follows: | 9 |
22. The applicant complained about non-enforcement of the judgments of the Commercial Court of the Primorskiy Region of 23 July 1998, 22 April 1999 and 20 January 2000, and the judgment of the Federal Commercial Court of the Far-Eastern Circuit of 18 October 2004. It relied on Article <mask> of the Convention and Article 1 of Protocol No. 1, the relevant parts of which read as follows: | 9 |
27. The applicant complained that he had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the Diyarbakır State Security Court which tried and convicted him. He further submitted that he had been deprived of his right to the assistance of a lawyer during his police custody. Finally, he claimed that the length of the criminal proceedings brought against him was excessive. The applicant relied on Article <mask> of the Convention, which in so far as relevant reads as follows: | 9 |
27. The applicant complained under Article <mask> of the Convention that the judgments of 18 December 1997 and 12 February 1999 had been quashed by way of supervisory review on 13 December 2000. She asserted that she had not been informed about the supervisory review proceedings, or present at the subsequent hearings of 4 April 2001, after the remittal of the cases for new consideration. She submitted that she had known about the quashing only after the present case had been communicated to the Government. The Court will examine this complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (cited above). | 9 |
19. The Government claimed that the applicant had not exhausted relevant domestic remedies. First, he had never raised before the domestic courts allegations regarding the unfairness of the proceedings as presented in his subsequent application to the Court. In particular, the applicant had not questioned the alleged restrictions on his access to the case file and on taking notes from it. Nor had he complained that he could not present his arguments in accordance with the principles of adversarial hearing and equality of arms. The Government submitted that Article <mask> of the Convention was directly applicable under Polish law and the applicant could have relied on this provision before the domestic courts. However, in his appeals he had not put forward arguments related to the question of access to the case file. | 9 |
244. The applicant argued under Article <mask> of the Convention that, as a result of the absence of an impartial and effective investigation into the circumstances of her husband's death, she had been denied effective access to the courts to determine her civil right to compensation for his murder allegedly committed by agents of the State. Furthermore, the political context in the area controlled by the “TRNC” regime and the special circumstances of the applicant's case made it all more unlikely that she would receive independent and impartial justice. | 9 |
16. The Government maintained that the additional compensation had been fully paid on 4 November 2002 and 22 May 2007 whereas the applicant had omitted to mention the second payment in his complaints. In addition the applicant had not suffered any material loss as a result of the interest rates applied and the authorities’ delay in settling the relevant amount. Taking into account the Court’s above-mentioned Akkuş judgment, the State had fulfilled its obligation to respect the applicant’s right to the protection of his property under Article 1 of Protocol No. 1. Nor had there been any violation of Article <mask> of the Convention or of Article 1 of Protocol No. 1. | 9 |
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