Case law update

Published date01 June 2017
Date01 June 2017
DOI10.1177/2032284417711581
Subject MatterECHR Update
ECHR Update
Case law update: Relevant
ECtHR cases January to
March 2017
Ben Wild
UK Government Legal Department
Length of investigation or proceedings
Sarbyanova and Pashaliyska v. Bulgaria (application no. 3524/14)
The applicants, Niya Sarbyanova-Pashaliyska and Maria Pashaliyska, are Bulgarian nationals who
were born in 1960 and 1999, respectively, and live in Sofia. The case concerned their complaint
about the excessive length of the investigation into the murder of Ivan Pashaliysky, their husband
and father, respectively.
On 2 June 2000, Mr Pashaliysky was killed in an office in a hotel in Sofia. The authorities
arrested a suspect the same night and opened criminal proceedings against him the following
day. The suspect was indicted a few days later. The investigation was brought to court 3 years
later, higher prosecutors having returned the case to the investigators during that time in order for
a number of shortcomings to be redressed. The accused ended up being convicted at first instance
in 2007.
However, in July 2008, the case was sent back to the investigation stage by the appeal
court due to a procedural defect, namely, the indictment had not contained a description of
how the accused had killed the victim. This defect was remedied, and in August 2008, the
suspect was indicted again and fresh proceedings were opened against him. Sixteen hearings
subsequently took place, at which the applicants made numerous requests for evidence to be
gathered and witnesses to be heard. Changes in the composition of the bench meant that the
trial had to be restarted again. Those proceedings eventual ly led to the accused’s conviction in
December 2013 and his being sentenced to 12 years’ imprisonment. The guilty verdict and
sentence were ultimately upheld in a final judgement by the Supreme Court of Cassation in
November 2015.
Both applicants were named as private prosecutors throughout those proceedings. The second
applicant, who had also been recognized as a civil party seeking damages during the proceedings,
was ultimately awarded 8000 in damages.
Relying on Article 2 (right to life) and Article 13 (right to an effective remedy) of the European
Convention on Human Rights, the applicants complained about the excessive length of the inves-
tigation into their relative’s murder, both at the pretrial and trial stages.
New Journal of European Criminal Law
2017, Vol. 8(2) 256–274
ªThe Author(s) 2017
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/2032284417711581
njecl.sagepub.com
NJECL
NJECL
Outcome
No violation of Article 2
No violation of Article 13 in conjunction with Article 2
Hiernaux v. Belgium (application no. 28022/15)*
The applicant, Anne-France Hiernaux, is a Belgian national who was born in 1968 and
lives in Nivelles (Belgium). The case concerned the length of the closing of the criminal
investigation conducted into the leaders of the Belgian Church of Scientology, to which Ms
Hiernaux belonged.
In 1997 and again in 2008, two criminal investigations were opened into the Church of Scien-
tology (ESB) and its leadership, including Ms Hiernaux. The cases were joined in May 2013, and
Ms Hiernaux and several other persons were charged and then committed for trial before the
Brussels Court of First Instance in March 2014. Before the Committals Division, Ms Hiernaux
complained that there had been a breach of the reasonable time requirement and asked the court to
find the prosecution inadmissible, but her complaints were dismissed. The Committals Division
considered that it was not appropriate to penalize the failure to comply with the reasonable time
requirement at that stage of the proceedings and that the passage of time had not resulted in the loss
or deterioration of evidence and had not prevented the defence from exercising its rights in the
ongoing proceedings. That decision was upheld on appeal and fo llowing an appeal on points
of law.
In its judgement of 11 March 2016, the Brussels Court of First Instance found that the pro-
ceedings had not been conducted within a reasonable time. However, it held that the entire
proceedings had been unfair, since the investigation had been biased and no offences had been
committed and concluded that the prosecution was inadmissible.
Relying on Article 13 (right to an effective remedy) taken together with Article 6 § 1 (right to a
fair hearing within a reasonable time) of the European Convention on Human Rights, Ms Hiernaux
alleged that she had not had an effective remedy in order to raise her complaint about the excessive
length of the criminal proceedings brought against her.
Outcome
No violation of Article 13 taken together with Article 6 § 1
J.R. v. Belgium (no. 56367/09)*
The applicant, J.R., is a Belgian national who was born in 1961 and lives in Leuze (Belgium).
The case concerned the length of the criminal proceedings brought against the father of a family
(J.R.), who had been accused of being the person behind a murder committed by his son.
In September 2003, C.R., J.R.’s son, killed his mother. He subsequently explained to the
authorities that his parents had separated; some of the couple’s 10 children lived with their mother
and others with their father; he lived with his father, whom he accused of having instructed him to
commit the murder. In May 2004, a warrant was issued for J.R.’s arrest by an investigating judge of
the Tournai Court of First Instance; he was released a few days later by the Indictments Division of
the Mons Court of Appeal on the ground that there was insufficient evidence pointing to his guilt.
In April 2014, J.R. asked that the prosecution be declared inadmissible because a reasonable time
had been exceeded, but the Indictments Division dismissed his request. In May 2016, the Indict-
ments Division decided to send C.R. for trial before the criminal court and ordered that the
proceedings against J.R. be discontinued, holding that there was insufficient evidence against him.
Wild 257

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT