ITEMID: 001-102133
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MISHGJONI v. ALBANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13+6-1
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 7. The applicant was born in 1972 and lives in Vlore.
8. In 1996 the applicant was appointed a judge at the Vlora District Court. In December 2001 a disciplinary inquiry was opened against her by the inspectors of the High Council of Justice (“HCJ”). On the basis of the results of this inquiry, the prosecutor's office was asked to open a criminal investigation against the applicant. The investigation was opened on 12 January 2002. This resulted in the applicant being suspended from work on the same day.
9. On 26 April 2002 the prosecutor discontinued the criminal investigation for lack of evidence. However, on 15 July 2002 the HCJ, during the applicant's absence on sick leave, dismissed her on account of flagrant violations of professional discipline. The records of previous HCJ meetings indicated that the applicant had been summoned on several occasions to appear before it. However, she was on extended sick leave because of depressive neurosis. The HCJ continued the proceedings in absentia.
10. On 22 July 2002 the applicant challenged the HCJ's decision of 15 July 2002 by filing an appeal with the Supreme Court, which was competent to determine issues of both fact and law. On 18 November 2002 the Supreme Court Joint Benches rejected the appeal.
11. The applicant's subsequent constitutional complaint to the Constitutional Court was accepted on 12 November 2004. The Constitutional Court found violations of Article 42 of the Constitution and Article 6 of the Convention given the in absentia proceedings. It quashed both decisions (of the Supreme Court Joint Benches and the HCJ) and remitted the case for re-examination to the HCJ.
12. In response to the applicant's request for reinstatement at the Vlora District Court, the President of the District Court replied on 23 December 2004 that he was not competent to consider her request.
13. On 28 December 2004 the applicant filed a request for reinstatement with the HCJ. She requested that the HCJ re-hear her case in accordance with the Constitutional Court's decision.
14. On 24 October 2008 the HCJ decided to dismiss the applicant on account of flagrant violations that seriously discredited the position and image of a judge. The applicant appealed to the Supreme Court Joint Benches.
15. On 6 February 2009 the Supreme Court Joint Benches quashed the HCJ decision of 24 October 2008. It found that the proceedings relating to the disciplinary measure had taken too long and as a result the said measure could not produce any effect and was therefore invalid (masa disiplinore e marrë tej një afati të arsyeshëm ndaj kësaj gjyqtareje është e paefektshme dhe konsiderohet e pavlefshme ... Prandaj vendimi i KLD-së duhet të shfuqizohet).
16. On 27 February 2009 the applicant was reinstated as a judge at the Vlora District Court.
17. Following the discontinuance of the criminal proceedings on 26 April 2002, the applicant requested the HCJ and the Minister of Justice on 30 April 2002 to pay her salary arrears for the period during which she was suspended from her duties.
18. On 10 April 2003 the applicant, relying on sections 27 and 38 of the Judiciary Act, lodged an application with the Vlora District Court requesting the payment of salary arrears from 12 January 2002 to 15 July 2002 and consequential damages. On 13 February 2004 the Vlora District Court (“the District Court”) decided in favour of the applicant. It found that since the criminal proceedings had been discontinued, the applicant should be paid salary arrears for the period between 12 January and 15 July 2002 in accordance with section 27 of the Judiciary Act. On an unspecified date the President of the Vlora District Court appealed the decision.
19. On 5 November 2004 the Vlora Court of Appeal quashed the District Court's judgment. It relied on the HCJ's decision of 15 July 2002, by which the applicant had been dismissed from work (see paragraph 9 above). It found that as long as no decision had been taken on the applicant's reinstatement, she could not benefit from salary arrears.
20. On 4 December 2004 the applicant filed an appeal with the Supreme Court. She argued that the Court of Appeal had incorrectly applied the domestic law and had not given sufficient reasons in its decision.
21. On 21 October 2005 the Supreme Court dismissed the applicant's appeal finding that it did not contain any lawful grounds of appeal in accordance with Article 472 of the Code of Civil Procedure (“CCP”).
22. On 26 October 2006 the applicant appealed to the Constitutional Court, relying on the same arguments as before the Supreme Court. She also alleged that the domestic courts lacked impartiality in the examination of her case.
23. On 3 July 2007 the Constitutional Court, sitting as a bench of three judges, dismissed the appeal as manifestly ill-founded.
Article 42 § 2
“In the protection of his constitutional and legal rights, freedoms and interests, or in the event of criminal charges brought against him, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
Article 142 § 3
“State bodies shall comply with judicial decisions.”
Article 131
“The Constitutional Court shall determine: ... (f) Final complaints by individuals alleging violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
Article 147
“1. The High Council of Justice is composed of the President of the Republic, the Chairman of the Supreme Court, the Minister of Justice, three members elected by the Parliament and nine judges of all levels who are elected by the National Judicial Conference. ...
4. The High Council of Justice decides on the transfer of judges as well as their disciplinary responsibility pursuant to the law.
6. A judge may be removed from office by the High Council of Justice for commission of a crime, mental or physical incapacity, acts and behaviour that seriously discredit the position and image of a judge or professional inefficiency. The judge has the right to complain against this decision to the Supreme Court, which decides by Joint Colleges.”
24. This law governs the overall membership, organisation, functioning and responsibilities of the HCJ, which is chaired by the President of the Republic. Among its chief tasks, the HCJ decides on the appointment and dismissal of judges in respect of courts of first instance and courts of appeal. The law also governs the conduct of disciplinary proceedings against judges. According to the law, it is incumbent upon the Minister of Justice to inspect courts of first instance and courts of appeal. The Minister submits requests for disciplinary proceedings to be taken against judges to the High Council of Justice, which takes a decision thereon. An appeal against the decision of the HCJ may be lodged with the Supreme Court within 10 days from the notification thereof.
25. Section 19 of the HCJ Act stipulates that the Chairman decides on the time and date of its meetings, which should take place at least once every two months.
26. Section 27 of the Judiciary Act provides that a judge shall be suspended from work when a criminal investigation is initiated against him, until a final decision is taken. In the event the judge is acquitted of the charges by a final court decision, the judge is entitled to resume his position and to full remuneration since the time he was suspended from work.
27. Section 38 provides that a judge is entitled to obtain the official journals, legal periodicals and bulletins free of charge.
28. Chapter V of the Judiciary Act governs the disciplinary responsibility of judges. Section 40 provides that judges bear responsibility for breaches of discipline and the commission of acts or behaviour that seriously discredit them personally and the authority of justice. Section 42, which listed dismissal from work as one of the measures to be taken against a judge for breaches of discipline, was rescinded by the Constitutional Court's decision No.3, dated 20 February 2006.
29. Article 324–333 regulate the adjudication of administrative disputes. Article 324 provides that a party may bring an action before a court with a view to challenging the administrative body's refusal to adopt an administrative act.
30. Article 472, in so far as relevant, reads as follows:
“Decisions of the Court of Appeal and the District Court may be appealed against to the Supreme Court on the following grounds: (a) the law has not been complied with or has been applied erroneously; (b) there have been serious breaches of procedural rules (pursuant to Article 467 of the Code); (c) there have been procedural violations that have affected the adoption of the decision. ...”
Article 81 – Execution of decisions
“1. The Constitutional Court's judgments are binding.
2. The execution of the Constitutional Court's judgments is ensured by the Council of Ministers by virtue of respective State administration bodies.
3. The Constitutional Court may assign another body responsible for the execution of its judgment and, as necessary, the method of its execution.
4. The persons who do not enforce or prevent the enforcement of the Constitutional Court's judgments, when their action does not constitute a criminal offence, are liable to a fine (...) imposed by the President of the Constitutional Court, whose decision is final and constitutes an executive title.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90182
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TKACHEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1955 and lives in Yoshkar-Ola, a town in Mari El.
5. The applicant is a retired police officer who was injured during his service in Grozny. He sued a local special-purpose police squad (Федеральное государственное учреждение Отряд милиции особого назначения при Министерстве Внутренних Дел Республики Марий Эл) over his injury. On 5 November 2004 the Yoshkar-Ola Town Court awarded the applicant a lump sum of 202,187.97 Russian roubles (RUB) in damages and costs, and a monthly compensation of RUB 6,201.73 to be paid from 1 November 2004 to 17 September 2005 with an adjustment for the cost of living. On 9 December 2004 the judgment was upheld on appeal and became binding.
6. On the defendant’s initiative on 16 December 2005 the Presidium of the Supreme Court of Mari El quashed the judgment and rejected the applicant’s claims. The Presidium found that the courts below had misinterpreted material law, and, in particular, that the Ministry of the Interior had not been responsible for the applicant’s injuries.
7. Domestic law concerning supervisory review is cited in detail in earlier cases (see, for example, Kot v. Russia, no. 20887/03, § 17, 18 January 2007).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-113722
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KĘDZIOR v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1956 and lives in Sośnica.
6. The applicant has been undergoing psychiatric treatment since the age of sixteen. He was hospitalised on several occasions in psychiatric hospitals in Lubliniec and Żurawica.
7. The applicant lived in Nowy Lubliniec with his mother and handicapped sister. At the end of 2000 the applicant’s brother, who did not live with them, applied to the court submitting that the applicant had been aggressive, had been refusing to take his medication and had been abusing alcohol.
8. On 22 December 2000 the applicant was partly deprived of his legal capacity by a court because of his mental disorder, as he had been diagnosed with schizophrenia.
9. On 28 August 2001 the Lubaczów District Court appointed his brother, Mr Zbigniew Kędzior, as his guardian (kurator). Subsequently, the guardian applied to the court to have the order varied and to have the applicant declared totally incapacitated.
10. In the course of the proceedings, on 22 December 2001, an expert psychiatric opinion was prepared which confirmed that the applicant was suffering from schizophrenia and that he had a tendency to abuse alcohol.
11. On 27 December 2001 the Krosno Regional Court changed its previous decision and decided to declare the applicant totally incapacitated as his mental condition had deteriorated. The applicant’s brother remained his guardian (opiekun prawny).
12. On an unspecified date the applicant’s guardian requested the Ruda Różaniecka Social Care Home (Dom Pomocy Społecznej) to admit the applicant.
13. On 8 February 2002 the Lubaczów District Family Centre (Powiatowe Centrum Pomocy Rodzinie) decided to place the applicant in the social care home, as requested by his guardian. In terms of domestic law the admission was voluntary and did not require approval by a court.
14. Between 31 October 2001 and 11 February 2002 the applicant was in a psychiatric hospital in Jaroslaw.
15. On 11 February 2002 the applicant was admitted to the Ruda Różaniecka Social Care Home, where he remained for ten years.
16. The applicant complained to the Lubaczów District Court that he had been placed in the care home against his will and without any medical necessity. On 12 April 2002 the president of the court informed him that the placement had been in accordance with the law.
17. On 27 December 2004 the District Family Centre informed the applicant that his guardian was authorised to place him in the care home.
18. On 9 February 2006 the Przemysl Regional Court rejected the applicant’s request for proceedings to be initiated to have his legal capacity fully restored. The court considered that the applicant, being legally incapacitated, did not have the authority to lodge such a request, and that his guardian did not support the request.
19. On 23 February 2006 the president of the Lubaczów District Court explained to the applicant again that due to his total incapacitaty he had not been a party to the proceedings relating to his placement in the care home.
20. On 17 March 2006 the president of the Przemysl Regional Court informed the applicant in a letter that there were no grounds to institute proceedings to restore the applicant’s legal capacity of the court’s own motion.
21. On 5 June 2006 and 15 February 2007 the District Family Centre again replied to the applicant’s letters informing him that only his guardian could approve his release from the care home.
22. On 21 September 2006 the Przemysl Regional Court again rejected a request by the applicant to have his legal capacity restored, given his lack of legal standing to initiate such proceedings.
23. On 17 January 2007 the president of the Lubaczów District Court informed the applicant that any variation of his incapacitation order was governed by Article 559 of the Code of Civil Procedure (CCP). The president further clarified that proceedings to vary the incapacitation order could be instituted by a court of its own motion. In addition, the applicant himself, although lacking legal capacity, could apply to the court for such proceedings to be instituted. According to the president, the latter possibility was based on the interpretation of the law as provided in a commentary to the CCP.
24. The applicant again asked the Przemyśl Regional Court to quash the legal incapacitation order. On 8 February 2007 the court rejected the request as inadmissible in law.
25. On 1 March 2007 the president of the Przemysl Regional Court explained to the applicant, in a letter of response to the applicant’s query, that only his legal guardian could institute proceedings to have his legal incapacity revoked. Alternatively, the applicant could request the court to institute such proceedings of its own motion, but for that to succeed new medical evidence needed to be provided.
26. On 11 May and 7 August 2007 the Przemysl Regional Court rejected further requests by the applicant for his legal capacity to be restored, on the ground that the applicant had no legal standing to institute such proceedings.
27. On 17 September 2007 the same court rejected a further appeal by the applicant against the decision of 7 August 2007. The court noted that following the Constitutional Court’s judgment of 7 March 2007 the domestic law had been amended, and it was now possible for a person lacking legal capacity to institute proceedings to have the incapacitation order set aside. However, the amendments to the CCP had been introduced by the law of 9 May 2007, which would enter into force only on 7 October 2007. Thus, the applicant’s request had not been examined.
28. On 13 July 2007 the Jarosław District Prosecutor informed the applicant that his complaints, in particular against Dr F., who had prepared an expert opinion in 2001 in the proceedings concerning his incapacitation, were manifestly ill-founded.
29. On several occasions in 2008 the applicant attempted to institute proceedings to have his incapacitation quashed; however, all his requests were refused for failure to comply with various procedural requirements, including failure to pay court fees in the amount of 40 Polish zlotys (PLN, approx. 10 euros (EUR)). The applicant appealed against all the decisions and submitted new requests for the incapacitation order to be lifted.
30. It appears that a later request was successful, as on 9 March 2009 the Przemysl Regional Court instituted proceedings to have the applicant’s legal capacity restored (file no. Ns 23/09). The court decided to have an expert opinion prepared and for the applicant to be heard by a judge in the presence of a psychologist and a psychiatrist.
31. On 20 March 2009 a judge, with a panel of experts, heard the applicant during a twentyfiveminutelong interview.
32. On 7 April 2009 the experts submitted their opinion to the court on the basis of that interview with the applicant. The applicant submitted to the experts that he had been placed in the social care home against his will by his brother seven years previously. In the home he had been independent, had not been drinking alcohol and had been taking his medication. In the past four years he had been given long leaves of absence to visit his home, and had travelled alone. He would like to make his own decisions and to vote in elections and not to be obliged to ask his brother for everything. He also mentioned that if his capacity were restored he would prefer to stay in the social care home and to continue visiting his family home on leaves of absence.
33. The experts concluded that the applicant was suffering from schizophrenia, although for several years he had not experienced psychotic symptoms or displayed aggressive behaviour. However, without a rigorous therapeutic regime the applicant’s state of health could worsen. According to the experts the applicant did not consider himself to be a person with a mental disorder, and showed a lack of critical judgment regarding his state of health and his actions. On the basis of the file and the interview with the applicant the experts concluded that his primary intention in applying for restoration of his legal capacity was to leave the social care home. In this context they noted that during the interview the applicant had spontaneously declared that he would prefer to stay in the social care home even if his capacity were restored. Nevertheless, judging from his consistent and extensive correspondence with the courts so far, the experts considered that his sole intention remained “to live freely in the family home and not in the social care institution”. The experts concluded that the applicant’s mental state had improved but not to the extent that would allow him to function independently.
34. On 8 April 2009 the experts informed the court that they considered it unnecessary to notify the applicant of any court decisions or applications to court, given his state of health.
35. On 9 April 2009 the Przemysl Regional Court decided to stop sending the applicant any notifications of court decisions and appointed a court officer as a guardian to represent his interests in legal proceedings. The applicant submitted that he had never met this guardian.
36. On 9 April 2009 the Przemysl Regional Court dismissed a request by the applicant to have his legal capacity restored. The decision contains no reasons, as it appears that the applicant’s guardian had not asked for them. Nor did she lodge an appeal against the decision.
37. On 16 January 2012, at the request of the applicant’s guardian, he was transferred to the Sośnica Social Care Home.
38. Article 559 of the Code of Civil Procedure (“the CCP”) provides as follows:
“1. A court may quash legal incapacitation if the reasons for which it was ordered cease to exist; the quashing may take place of the court’s own motion.
2. Where the mental state of an incapacitated person improves, a court may change the total incapacitation to partial; where his or her mental state deteriorates, partial incapacitation may be changed to total.”
39. On 7 March 2007 the Constitutional Court gave judgment in case no. K 28/05. The judgment was published and entered into force on 17 March 2007. The court decided that Article 559 of the CCP was unconstitutional in so far as it deprived an incapacitated person of the right to lodge a request to have a legal incapacitation order quashed or varied. As regards the consequences of the judgment, the Constitutional Court considered that the most appropriate means of enforcement would be for the legislature to introduce an amendment to the Code. In that connection it welcomed a bill under examination by Parliament which included a relevant amendment. However, it emphasised that the judgments of the Constitutional Court should be enforced not only by the legislature but also by the ordinary courts. In the present case that would mean changing the unconstitutional practice of courts examining cases concerning incapacitation, and allowing proceedings to be brought by individuals deprived of legal capacity. The Constitutional Court stated:
“From the date of publication of the judgment in the Official Journal the presumption of the constitutionality of Article 559, taken together with Article 545 §§ 1 and 2 of the CCP, in so far as it prevented an incapacitated person from instituting proceedings to quash or vary an incapacitation order, is no longer applicable. The Constitutional Court wishes to emphasise that that is so in consequence of the judgment of the Constitutional Court itself, whether or not legislative changes are eventually introduced. It should therefore be considered that the finding by the Constitutional Court of the unconstitutionality of limiting an incapacitated person’s procedural rights allows the courts to interpret the Code of Civil Procedure in accordance with the Constitution. In the context of this judgment the opinion expressed by the Supreme Court’s resolution of 2004, to the effect that amelioration of the procedural position of incapacitated persons could not be achieved through interpretation of the existing regulations as that would amount to overstepping the boundaries of judicial power, is no longer applicable. Judges, when carrying out their duties, are subject not only to statute but also to the Constitution, which is the highest law in the Republic of Poland and may – and in cases of conflict with existing statutes confirmed by the Constitutional Court shall – be directly applicable.”
40. The Law of 9 May 2007, which entered into force on 7 October 2007, amended the CCP. A new paragraph was added; Article 559 § 3 provides as follows:
“An application to have a legal incapacitation order quashed or varied may also be lodged by the incapacitated person.”
41. According to the 1994 Psychiatric Protection Act (ustawa o ochronie zdrowa psychicznego) the admission to a psychiatric hospital of a person who has a mental disorder or is mentally disabled and is unable to express his or her consent must be approved by a civil court (section 22 (2)). A court can also decide on the admission of a person who has a mental disorder but who does not consent to treatment in the hospital. A guardian can express consent to admit an adult who is totally incapacitated, but the latter must agree too, unless he is unable to express agreement. In any event, and in particular in the event of disagreement between the patient and the guardian, the question of admission is decided or confirmed by a court (section 22). Admission to the hospital is preceded by a psychiatric examination.
42. Admission to a social care home is governed by section 38 et seq. of the Act. It provides that a person who, on account of mental disorder or mental disability, is unable to take care of himself or herself and cannot be taken care of by somebody else, and does not need hospital treatment, may be placed in a social care home with his or her consent or the consent of his or her guardian. Only if the person concerned or his or her guardian does not consent to the placement must the decision be taken by a court.
43. According to the Ordinance of the Minister of Justice of 22 February 1995, a regional court must supervise the legality of the admission and continuing residence of individuals confined to psychiatric hospitals and social care homes (section 1). However, an obligation to carry out periodic reviews, every six months, of the need for continuing residence applies only to those admitted to psychiatric hospitals (section 2 (3)).
44. The regulations on the functioning of social care homes were also governed by the 1990 Social Assistance Act (Ustawa o pomocy społecznej), replaced by the Act of 2004. According to the relevant regulations, the costs of the person’s stay in a social care home must not exceed 70% of his or her income or pension. Both Acts provided that placement of a totally incapacitated person in a social care home may only be done with his or her guardian’s consent.
45. The relevant international instruments and conclusions on the comparative law are set out in the judgment of Stanev v. Bulgaria [GC], no. 36760/06, §§ 72, 73 and 8895, ECHR 2012.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-1
5-4
6-1
VIOLATED_BULLETPOINTS: 5-1-e


ITEMID: 001-61197
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF EFSTATHIOU AND MICHAÏLIDIS & Co. MOTEL AMERIKA v. GREECE
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Peer Lorenzen
TEXT: 8. The first applicant was born in 1930 and lives in Salonika. The second applicant is a commercial partnership with its registered office in Pieria (northern Greece).
9. On 7 July 1994, by means of a joint decision of the Minister of Finance and the Minister of Public Works (no. 1078361/4744/0010), the Greek State expropriated property covering a total surface area of 455,024 sq. m, with a view to improving certain sections of the main road between the towns of Platamonas and Katerini in Pieria. The expropriation affected 2,455.12 sq. m of land belonging to the first applicant and 2,401 sq. m belonging to the second (entered in the land register as plots nos. 64 and 214 respectively). The administrative authorities decided that the applicants should not receive any compensation in respect of 716.40 sq. m of plot no. 64 and 490 sq. m of plot no. 214, as they were deemed to have derived benefit from the construction of the road.
10. On 7 June 1995 the State applied to the Katerini Court of First Instance for an assessment of the provisional unit amount of compensation per square metre. The first applicant was not summoned to appear in court.
11. On 14 June 1996 the court determined the provisional amount of compensation for plot no. 214. It also assessed the amount of special compensation for the unexpropriated parcels of land at 100,000,000 drachmas (GRD) (judgment no. 118/1996).
12. The applicants subsequently applied to the Salonika Court of Appeal for the assessment of the final amount of compensation for the expropriation. In their observations, they submitted that the irrebuttable presumption in law that owners of property fronting a public highway derived benefit from the expansion of the highway was contrary to Article 17 of the Constitution and Article 1 of Protocol No. 1 to the Convention.
13. In an interlocutory decision of 18 June 1997 the Court of Appeal observed that, in assessing the unit amount of compensation for property expropriated with a view to building a main road, the court merely determined the amount, without considering whether and to what extent the adjoining owners had an obligation to contribute to the expropriation costs pursuant to section 1 of Law no. 653/1977. It ordered an expert assessment of the real value of the expropriated property (judgment no. 2380/1997).
14. On 29 September 1999 the Court of Appeal assessed the final unit amount of compensation for the expropriation of plots nos. 64 and 214 at GRD 8,000 per square metre. It also assessed the final amount of special compensation for the unexpropriated parcels of plot no. 64 at GRD 45,142,390 (judgment no. 2741/1999).
15. On 18 March 2000 the applicants appealed on points of law. They argued that the fact that the Court of Appeal had merely determined the amount of compensation for the expropriation, without considering whether and to what extent the adjoining owners had an obligation to contribute to the expropriation costs, was contrary to Article 17 of the Constitution, Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
16. In a judgment of 23 March 2001 the Court of Cassation dismissed the appeal, at least in so far as it concerned the present case (judgment no. 480/2001).
17. Article 17 of the Constitution provides:
“1. Property shall be protected by the State; rights deriving therefrom, however, may not be exercised contrary to the public interest.
2. No one may be deprived of his property unless it is for the public benefit, which must be duly proved, in the circumstances and manner laid down by law and only after full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional determination of compensation. In cases in which an application is made for immediate final assessment of compensation, regard shall be had to the value of the expropriated property at the time of the court hearing of the application ...”
18. Legislative Decree no. 797/1971 of 30 December 1970 and 1 January 1971 is the main legislative provision governing expropriations. It applies the principles set out in the constitutional provisions. By Article 13 § 1, compensation is calculated by reference to the real value of the expropriated property on the date of publication of the decision giving notice of the expropriation.
Paragraph 4 of that Article provides:
“Where part of a property is expropriated and the part remaining in the owner's possession suffers substantial depreciation in value or is rendered unusable, the judgment in which compensation is assessed shall also include a determination of the special compensation for that part. This special compensation shall be paid to the owner together with the compensation for the expropriated part.”
19. The relevant provisions of section 1 of Law no. 653/1977 of 25 July and 5 August 1977 on the obligations of adjoining owners where major roads are built are worded as follows:
“(1) Where a major road up to thirty metres wide is built in an area not covered by a town development plan, adjoining owners who derive a benefit shall be required to pay for an area fifteen metres wide, thus contributing to the cost of expropriating the properties bordering the road. However, the area to which this obligation applies shall not exceed half the surface area of the property concerned.
...
(3) For the purposes of this section, adjoining owners whose properties front the roads that have been built shall be deemed to have derived benefit.
(4) Where those entitled to compensation on account of an expropriation are themselves liable for payment of part of that expropriation, there shall be a set-off between rights and obligations.”
20. For a long time, this presumption that the benefit derived from road improvements amounted to sufficient compensation was regarded as irrebuttable. Following the Court's judgments in Katikaridis and Others v. Greece, Tsomtsos and Others v. Greece (judgments of 15 November 1996, Reports of Judgments and Decisions 1996-V) and Papachelas v. Greece ([GC], no. 31423/96, § 49, ECHR 1999-II), the national courts now accept that the presumption is no longer irrebuttable. Consequently, the owners concerned may apply to the civil courts for a declaration that they have not derived benefit within the meaning of the law cited above and, where appropriate, for additional compensation (see judgment no. 10737/1998 of the Athens Court of Appeal, which, ruling on a similar application in another case, ordered an expert assessment of whether the applicants, as adjoining owners, had actually derived any benefit from the expropriation of their property).


ITEMID: 001-90028
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: DICKIE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant is a British national. He was born in 1933 and lives in Leicester. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott, of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 12 August 1998 at the age of 62. At the time of her death, she had been in receipt of a retirement pension for over two years. The applicant, who reached the age of 65 one week after the death of his wife, subsequently contacted the Benefits Agency to enquire whether, in addition to his own pension, he was entitled to inherit part of his wife’s pension. He received a negative answer. In 2001 he submitted a claim for widow’s benefits to the Benefits Agency. The claim was rejected by a decision of 5 September 2001, on the ground that the claimant was not a woman. This decision was reconsidered by a reviewing officer within the Benefits Agency, who upheld it on 4 October 2001. The applicant did not appeal.
The possibility of obtaining a higher retirement pension was introduced by the National Insurance Act 1959. This made provision for the payment of extra social security contributions by employees, entitling them to receive Graduated Retirement Pension (GRB) along with the basic State contributory pension. Where a married man who had paid such extra contributions died, his widow was entitled to receive an additional pension equal to half the rate of the deceased’s GRB. This was payable immediately if the widow had already reached pensionable age, or upon reaching pensionable age, as long as she had not remarried. The scheme thus afforded some additional financial protection for widows in old age. Subsequent legislative reform ended the payment of graduated contributions in April 1975. The right of widows already receiving part of their husband’s GRB, or to receive it when they reached pensionable age, was preserved. GRB was replaced by State Earnings-Related Pension Scheme (SERPS), introduced by the Pensions Act 1975. This too provided for widows to inherit part of the pension earned by their husbands.
The right of widowers to inherit part of the additional pension earned by their wives took effect on 5 April 1979. Men widowed after that date could receive a higher pension on condition that their wives had satisfied the prescribed conditions and that both husband and wife had attained pensionable age at the time of bereavement, a condition that did not apply to widows. The social security position of widowers was generally improved as of 9 April 2001, from which date they became entitled, in principle, to an identical suite of bereavement benefits to widows (for details of the relevant legislative provisions, see Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, §§ 18-20, 10 May 2007). This group of widowers may inherit additional pension under the same conditions as widows. According to the Government, Parliament opted to achieve full equalisation in relation to inherited additional pension in stages. This will take effect on 6 April 2010. All widowers who reach pensionable age after that date, irrespective of when their wives died, will be able to claim additional pension on the basis of the social security contributions paid by the latter. This change will not, therefore, affect the applicant.


ITEMID: 001-71894
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: PACE v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Mr Cecil Pace and Mr Henry Pace, are two Maltese nationals who were born respectively in 1930 and 1933 and live in Ta’Xbiex (Malta). They are represented before the Court by Mr M. Pace and Mr T. Azzopardi, two lawyers practising in Ta’Xbiex.
s, may be summarised as follows.
The applicants are principal shareholders of the Bank of Industry, Commerce and Agriculture Limited (hereinafter, the “Bank of Industry”).
On 25 November 1972 the licence of the Bank of Industry was temporarily suspended. Pursuant to Section 18 of the Banking Act 1970 and after consultation with the Central Bank of Malta, the Minister of Finance appointed a controller and charged him to assume all the powers of the Board of Directors and of the shareholders of the Bank of Industry. The controller was requested to take care of the assets and liabilities of the Bank of Industry and of its associated companies with a view to safeguarding the rights and interests of the depositors, creditors and shareholders and to liquidate the assets for eventual distribution.
Between 1986 and 1989 the applicants filed several lawsuits before the Civil Court (First Hall) against the controller, alleging that he was responsible for mismanagement and that his behaviour had been abusive and illegal. They claimed that the assets of the Bank of Industry were being dissipated or sold for a derisory price, that debts were not being collected and recovered, that inventories were not being made and that proper documentation of the transactions was not being kept.
Several sittings took place before the Civil Court and evidence started to be collected.
While the proceedings were pending, Act XVII of 1995 (Controlled Companies Act – Chapter 383 of the Laws of Malta) was enacted. It created a body called “Appeals Board”. All the lawsuits and claims made by the applicants and pending before the Civil Court were transferred to this body, which had become competent to hear and determine them.
The Appeals Board was to be composed of three members, a Chairman and two experts in banking or financial services appointed by the Minister of Finance. The duration of their office, which would have been established in the Minister’s letter of appointment, could not exceed three years. An Appeal on points of law before the Court of Appeal was available against the decisions of the Appeals Board.
According to Article 16 of Act XVII of 1995 no action lay against the controller, the Appeals Board or the Government for anything which had been done in accordance with the provisions of the Act from the date of the appointment of the controller.
Under Article 15 of Act XVII of 1995 the controller had the power of striking off the names of a bank and of its associated companies from the register of companies. He could also decide to deliver documents to the registrar. These documents were to be destroyed after ten years.
In 1996 the applicants introduced a claim (no. 533/96) before the Civil Court (First Hall) in its constitutional jurisdiction. They alleged that the changes introduced by Act XVII of 1995 were specifically aimed at depriving them of the possibility of having a fair trail.
The applicants submitted that, in view of its nature and composition, the Appeals Board could not be regarded as an impartial and independent tribunal.
In a judgment delivered on an unspecified date, the Civil Court dismissed the applicants’ claim. It found that there had been no violation of Article 6 § 1 of the Convention, since this provision did not require a body such as the Appeals Board to have the same level of independence and impartiality as a “tribunal”.
The Civil Court held that the Appeals Board was objectively independent as its decisions were not based on directives issued by any authority. Furthermore, it was free from subjection to any other party. The fact that the members of the Appeals Board were appointed for three years with a possibility of reappointment at the expiry of their term of office did not mean that they would not enjoy sufficient guarantees against outside pressures.
The applicants appealed to the Constitutional Court.
In a judgment of 3 December 1997, the Constitutional Court rejected the applicants’ appeal and confirmed the Civil Court’s judgment. It noted that the Constitution of Malta referred to a court or other authority instituted by law, while the Convention referred to an “impartial tribunal”. Thus, civil rights might be determined by both these institutions.
In the Constitutional Court’s view, there were no doubts as to the personal impartiality of the members of the board. As to the applicants’ argument that a lack of objective impartiality could be inferred from the fact that the members of the board were nominated by the Minister of Finance, who was the defendant in the lawsuits they had introduced, the Constitutional Court observed that the law applied equally to everybody and that the authority who appointed the board was of little relevance. In any case, the manner of appointment of the Chairman and of the members of the Appeals Board did not raise any objectively justified doubts as to their impartiality and independence, as they had no relationship of employment or dependence with the Minister of Finance. The board was allowed to make its decisions freely and independently of any pressure or influence. Its members could not be arbitrarily dismissed. The Constitutional Court also held that Act XVII of 1995 guaranteed a fair trial.
In the meantime, the applicants had introduced another claim (no. 549/96) before the Civil Court (First Hall) in its constitutional jurisdiction. They submitted that since the decisions of the Appeals Board were final in so far as they determined points of fact, the previous existing benefit of double examination had been lost. Furthermore, in view of the retroactive immunity granted by Article 16 of Act XVII of 1995 to the controller, to the Appeals Board and to the Government, nobody could be held legally responsible for the dissipation of their assets and negligent and illegal behaviour in administrating their financial interests. Therefore, even if their lawsuits were well-founded, the applicants could not obtain a judgment against the defendants or enforce it. In addition, they submitted that Article 15 of Act XVII of 1995 also provided for the removal of a company’s name from the register of companies, which entailed the archiving and destruction of the company’s files. This could result in the obliteration of evidence which the applicants might need to use.
In a judgment of 28 May 1999, the Civil Court declared that Act XVII of 1995 had breached the applicants’ right to continue their pending cases within a reasonable time and to have an effective remedy before a national authority. Therefore, it held that the lawsuits instituted by the applicants before the entry into force of this Act should be decided by the Civil Court in accordance with the pre-existing rules, and not by the Appeals Board.
The Civil Court held that it was not competent to decide upon the alleged legal immunity of the controller. It also rejected the applicants’ complaint regarding the destruction of the documents as ordinary remedies were available to avoid such actions being taken.
The Attorney General appealed to the Constitutional Court. The applicants lodged a cross appeal.
In a judgment of 27 February 2003, the Constitutional Court confirmed the Civil Court’s decision in so far as it concerned the finding of a violation of the applicants’ right to a trial within a reasonable time.
It observed that in its previous judgment of 3 December 1997, it had held that the Appeals Board had the necessary requirements of independence and impartiality. However, this did not mean that a transfer of cases from the Civil Court to the board would have been licit and legal, especially since it might have diminished the rights and remedies enjoyed by the parties.
In particular, under Act XVII of 1995 the parties were not entitled to an appeal on points of fact (as guaranteed by the previous rules), but could only challenge the points of law decided by the Appeals Board before the Court of Appeal. Therefore, the parties had lost pendente lite the right to a full appeal. This constituted a violation of Article 13 of the Convention
The Constitutional Court furthermore held that it was legitimate to grant immunity to the controller and to the Minister of Finance. However, Article 16 of Act XVII of 1995 could not be interpreted as conferring a general immunity. As no one could be considered to be above the law, the controller could have been protected against judicial actions only in so far as he had acted in good faith. He would still be liable if it was proved that he had acted in bad faith.
As to the powers given to the controller by Article 15 of Act XVII of 1995, the Constitutional Court observed that under domestic law the applicants could have made use of other ordinary remedies in order to obtain the production of any relevant document. It had not been shown that the applicants had been illegally denied this right.
In a fax of 14 November 2005, the applicants informed the Court that they had not introduced any lawsuit after 1995. The lawsuits filed against the controller of the Bank of Industry and against the Minister of Finance before 1995 were suspended awaiting the outcome of the applicants’ constitutional claims. They were resumed after the delivery of the Constitutional Court’s judgment of 27 February 2003 and were, on 14 November 2005, still pending.
The composition and the method of appointment of the Appeals Board are described in Article 7 of Act XVII of 1995, which reads as follows:
“(1) For the purpose of this Act there shall be constituted a Board to be styled the Appeals Board which shall consist of a Chairman and two other members appointed by the Minister.
(2) The members of the Board shall, before entering upon their office, take before the Attorney General the oath to examine and decide any matter referred to them with equity and impartiality.
(3) The Chairman shall be an advocate with a minimum of twelve years’ legal practice.
(4) The two other members mentioned in sub article (1) shall be persons who in the opinion of the Minister, possess the necessary expertise and experience in banking or financial services.
(5) The members of the Board shall be appointed for such period that the minister may establish in the letter of appointment, which period shall not exceed three years, and may only be removed by the Minister on the advice of the Commission for the Administration of Justice on the grounds of proved inability to perform the functions of their office whether arising from infirmity of body or mind or any other cause, or proved misbehaviour.”
According to Article 12 of the Act,
“The decisions of the Board shall be final except with respect to points of law decided by the Board from which an appeal shall lie to the Court of Appeal.”
Under Act XVII of 1995, the Minister of Finance is required to appoint a controller in order to manage the assets and interests of a company whose licence has been restricted or revoked.
The controller is granted an immunity under Article 16 of the Act, which reads as follows:
“No action shall lie against the Controller, the Appeals Board or the Government for anything done under the authority of this Act or of the Banking Act and this article shall apply from the date of appointment of the Controller even if that date happens to be before the date of the coming into force of this Act.”
The controller’s power to strike off names of companies from the register of companies is provided for by Article 15 of the Act, according to which:
“(1) The Controller shall also, in accordance with article 161 of the Commercial Partnerships Ordinance or any other provision of any other law substituting the said Ordinance, deliver to the Registrar for registration by him a notice of such approval, and the Registrar shall thereupon strike the name of the company or partnership off the register.
(2) The Controller shall, together with the aforesaid notice, deliver the books and other documents of the company to the Registrar, who shall keep them for a period of ten years from the date at which the name of the company or partnership was struck off the register.”


ITEMID: 001-106873
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: NOCHA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: The applicant, Mr Lucjan Nocha, is a Polish national who was born in 1963 and lives in Częstochowa. He is represented before the Court by Ms A. Przedpełska, a lawyer practising in Częstochowa. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
Since his early childhood, the applicant has been suffering from epilepsy marked by frequent seizures.
On 23 March 2008 the applicant was remanded in custody in the United Kingdom in connection with criminal proceedings pending at that time against him. During his detention, he was treated at St George’s Hospital.
On 18 July 2008 the applicant was extradited to Poland.
On 17 February 2009 he was convicted of a criminal offence by a competent Polish court and sentenced to three years’ imprisonment.
The proceedings are currently pending on appeal.
On 27 August 2008 the applicant was committed to Częstochowa Remand Centre.
On 25 March 2009 he was transferred to the hospital of Gdańsk Remand Centre.
On 2 June 2009 the applicant was discharged from the hospital and transported in a prison van to Częstochowa Remand Centre (a journey of approximately 500 km). He was committed to Bydgoszcz Remand Centre overnight. Subsequent short stopovers took place on 3 June at Piotrków Trybunalski and Inowrocław Remand Centres.
On 3 June 2009 at 5 p.m. the applicant arrived at Częstochowa Remand Centre. He was detained there until 25 August 2009 when he was released.
On 19 November 2009 the applicant was committed to Częstochowa Remand Centre to serve his prison sentence.
Six days later, on 25 November 2009 he was granted prison leave on health grounds.
The applicant submitted that in Częstochowa Remand Centre he had been detained in overcrowded cells. The cells in question measured on average 12 sq. m and were shared by eight detainees including the applicant (1.5 sq. m per person). They were insufficiently lit. As a result, the applicant’s eyesight deteriorated.
The applicant also claimed that the cells had been dirty and infested with insects. They were furnished with triple bunk beds, two tables and stools. The toilet annex in each cell was not separated and there was always a stench inside.
The applicant also complained of being bullied and laughed at by the staff of Częstochowa Remand Centre.
The Government acknowledged that from September 2008 until November 2009, with the exception of July 2009, Częstochowa Remand Centre had been overcrowded. The degree by which the number of prisoners exceeded the maximum capacity for that detention facility (calculated on the basis of the standard of 3 sq. m of cell space per prisoner provided for in Polish law) ranged from 22 to 33% in the period from September 2008 until January 2009. It was 16% in February, 7% in April, 5% in June, 3% in August, and 12% in November 2009.
Moreover, the detailed records provided by the Government reveal the following information concerning the applicant.
From 27 August until 17 October 2008 the applicant was assigned to cell no. 30 which measured 14 sq. m. It was shared by three to seven detainees, including the applicant (2 to 4.6 sq. m per person).
From 17 to 23 October 2008 the applicant was committed to cell no. 27 which measured 14.6 sq. m and was shared by five detainees including the applicant (2.9 sq. m per person).
From 23 October 2008 until 17 February 2009 he was again detained in cell no. 30, which was this time shared by five to seven persons (2 to 2.8 sq. m per person).
Lastly, from 3 June to 25 August 2009 and from 19 to 25 November 2009 the applicant was held in cells nos. 37 and 39 respectively, which measured over 16 sq. m and were shared by two to seven detainees including the applicant (2.3 to 8 sq. m per person).
The Government also submitted that the applicant’s cells had been clean, with the toilet annex separated by a concrete or plywood wall. The applicant had one shower per week and an hour’s outdoor exercise per day.
The applicant submitted that in Częstochowa Remand Centre he had not been under regular medical supervision and that his epilepsy had been treated with inadequate generic drugs administered in wrong dosages. As a result his epileptic seizures had increased and he had lived in constant fear for his life and in despair.
Ambulances were called to the remand centre for the applicant on more than sixty occasions (namely, five times in November and twenty-two times in December 2008, eighteen times in January, twelve in February and seven in March 2009). He continued to have fits in Gdańsk Remand Centre hospital, although, as he submitted, the medicine he received there had been more effective. The applicant also submitted that throughout his detention he had often been taken to the local hospitals in Częstochowa for emergency treatment.
During the applicant’s journey from Gdańsk to Częstochowa Remand Centre on 2 and 3 June 2009, he did not receive adequate medical attention. His medicine was administered in the evening of 2 June in Bydgoszcz Remand Centre. The next morning, however, despite his repeated requests, the applicant did not receive any drugs. On 3 June at 1 p.m. he had a serious epileptic fit, after which he lost consciousness.
On 17 July 2009 the applicant had a serious epileptic seizure during his outdoor exercise in Częstochowa Remand Centre. He fell and hit his head on the concrete floor of the courtyard. He received some help from his fellow inmates. Five minutes into the seizure the applicant was surrounded by the remand centre’s guards who were armed and wearing bullet proof vests. A remand centre doctor and a nurse only arrived twenty-five minutes later. The applicant was given an injection. Still unconscious, he was taken inside the building, where he was given another injection. He was then moved inside his cell, where he suffered from another seizure. Only then was an ambulance called and the applicant received some further medical treatment.
On 26 July 2009 he was denied access to the remand centre’s in-house doctor, even though he was not feeling well. His legs became momentarily paralysed and he was dragged into his cell by his fellow inmates. Since then, he has had difficulty walking.
The Government submitted that throughout his detention the applicant had been under constant medical treatment and care in conformity with the requirements of his medical condition and the recommendations of specialist doctors. In order to avoid any accidents or injuries the applicant was assigned a bottom bunk bed. He was also regularly administered medicines as prescribed by a neurologist and a psychiatrist.
The Government did not comment on the number of the applicant’s epileptic seizures and medical emergencies. It was noted, however, that despite the efforts of the remand centre’s medical staff, the applicant’s epileptic fits had become more frequent and more serious.
In March 2009 the applicant had to be hospitalised in Gdańsk Remand Centre. He was prescribed complex pharmacological treatment for patients with medicine-resistant epilepsy. The treatment gave good results and on 2 June 2009 the applicant was transferred back to Częstochowa Remand Centre in good condition with the recommendation to follow further treatment as an out-patient.
The Government did not comment on the applicant’s transport from the hospital in Gdańsk to Częstochowa Remand Centre on 2 and 3 June 2009. They also did not refer to the alleged incidents of 17 and 26 July 2009.
In the Government’s submission, until his release from the remand centre on 25 August 2009, the applicant’s seizures were mild and less frequent than before his hospitalisation.
On the other hand, when the applicant returned to prison on 19 November 2009 after nearly two months at liberty, his epilepsy was much worse than before his release. A medical examination of 23 November 2009 confirmed that the applicant was at risk of suffering injuries during his epileptic fits in prison and that he was not fit for further detention. On these grounds the authorities of Częstochowa Remand Centre applied to suspend the execution of the applicant’s sentence (zawieszenie wykonania kary). The suspension was granted on 25 November 2009.
On 13 May 2009 the Katowice Court of Appeal (Sąd Apelacyjny) examined the applicant’s interlocutory appeal against a decision to extend his pre-trial detention. The applicant argued, among other things, that he had not been fit for further detention. The domestic court relied on an expert report which had been obtained by the first-instance court reviewing the applicant’s preventive measure. It appears from another document in the Court’s possession that the expert report in question was ordered by the Częstochowa Regional Court on 15 January 2009. As quoted by the Katowice Court of Appeal, the expert had concluded that the applicant could receive adequate treatment in detention.
The hospital information chart (karta informacyjna) of 2 June 2009, which was signed by a neurology specialist, Dr D.Z.W., contained the following relevant information: “Recommendations for further treatment: Periodical neurological check-ups. Regular pharmacological treatment. Bottom bunk bed. Medicine: Tegretol CR400 2 x 1 pill, Lamotrix 2 x 150 mg, Kepra 2 x 500 mg.”
On 9 November 2009 the applicant was certified as having a mild disability (umiarkowany stopień niepełnosprawności). The relevant document stated that the applicant had had the disability since 2002.
Since his release the applicant has been receiving constant medical treatment but his epilepsy is very severe. He suffers from frequent seizures, dizziness and anxiety. He claimed that he had to be accompanied by another person in his daily routine.
From 11 to 15 March 2010 the applicant was admitted to the Częstochowa Municipal Hospital (Miejski Szpital Zespolony) because he had broken his elbow during one of his epileptic fits.
The applicant submitted that his current state of health had been caused by the inadequate treatment provided to him in prison.
The applicant lodged numerous complaints with the Governor of Częstochowa Remand Centre, the Director of the Prison Service and with other prison authorities. He claimed that he had not received adequate medical care in Częstochowa Remand Centre. He also alleged to have been denied access to his medical records.
Moreover, the applicant submitted many habeas corpus requests, asking to be released on health grounds.
Lastly, the applicant submitted that he could not afford to bring a civil lawsuit.
The provisions pertaining to medical care in detention facilities and general conditions of detention, and the relevant domestic law and practice are set out in the Court’s judgments in the cases of Kaprykowski v. Poland, no. 23052/05, §§ 36-39, 3 February 2009; Sławomir Musiał v. Poland, no. 28300/06, §§ 48-61 ECHR 2009... (extracts); and Orchowski v. Poland, no. 17885/04, §§ 74-85, 13 October 2009. More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08, §§ 25-54, 12 October 2010).
In particular, the following civil-law provisions regulate the State Treasury’s liability in tort.
Article 23 of the Civil Code contains a non-exhaustive list of “personal rights” (prawa osobiste). This provision states:
“The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
Article 24 § 1 of the Civil Code provides:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”
Article 417 § 1 of the Civil Code provides:
“The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”
Moreover, Article 445 § 1 of the Civil Code, applicable in the event that a person suffers a bodily injury or health disorder as a result of an unlawful act or omission of a State agent, reads as follows:
“...[T]he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered.”
Lastly, under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads as follows:
“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”
Article 4421 of the Civil Code sets out the limitation periods for civil claims based on tort. This provision, in the version applicable as from 10 August 2007, reads, in so far as relevant, as follows:
“1. A claim for compensation for damage caused by a tort shall not be brought after the expiration of three years from the date on which the claimant learned of the damage and of the person liable for it. However, this time-limit may not be longer than ten years following the date on which the event causing the damage occurred.”


ITEMID: 001-108494
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF HAJILI v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election)
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1962 and lives in Baku. He stood for the elections to the National Assembly (Milli Majlis) of 6 November 2005 as a candidate of the opposition bloc Azadliq.
6. The applicant was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single-mandate Zaqatala Election Constituency no. 110.
7. There were a total of forty-one polling stations in the constituency. At the end of election day, the applicant obtained copies of official records of election results (səsvermənin nəticələrinə dair protokol) drawn up by all forty-one Polling Station Electoral Commissions (“PECs”). According to the copies of the PEC records in the applicant’s possession, he received the majority of votes in the constituency.
8. On 7 November 2005 the applicant lodged a complaint with the Central Electoral Commission (“the CEC”), claiming that, after the submission of all the PEC records of results to the ConEC, the PEC records for Polling Stations nos. 23, 24 and 25 had been falsified in favour of one of his opponents.
9. On 14 November 2005 the CEC acknowledged receipt of the applicant’s complaint and also notified him that, on 12 November 2005, it had issued a decision to invalidate the election results for the entire Zaqatala Election Constituency no. 110. The decision, in its entirety, stated as follows:
“Pursuant to Articles 19.4, 19.14, 25.2.22, 28.4, 100.12 and 170.2.2 of the Electoral Code and sections 3.5 and 3.6 of the Law of 27 May 2003 on Approval and Entry into Force of the Electoral Code, the Central Electoral Commission decides:
1. To invalidate the election results in Polling Stations nos. 1, 2, 6, 8, 10, 15, 17, 19, 20, 22, 24, 25, 26, 31, 33, 34, 36, 37 and 40 of Zaqatala Electoral Constituency no. 110 due to impermissible alterations [“yolverilməz düzəlişlər”] made to the PEC records of election results [“protokollar”] of those polling stations as well as infringements of the law [“qanun pozuntuları”] which made it impossible to determine the will of the voters.
2. To invalidate the election results in Zaqatala Electoral Constituency no. 110 due to the fact that the number of polling stations in which the election results have been invalidated constitutes more than two-fifths of the total number of polling stations in the constituency and that the number of voters registered in those polling stations constitutes more than one-quarter of the total number of voters in the constituency.”
10. On 14 November 2005 the applicant lodged an appeal against that decision with the Court of Appeal, arguing that the findings in the CEC decision were wrong. He argued that, while the CEC decision stated that “impermissible alterations” had been made to the results records of nineteen PECs, in reality such alterations had been made to the records of only three PECs (in Polling Stations nos. 23, 24 and 25). As for the PEC records for other polling stations, the photocopies of the same PEC records which were in his possession did not contain any such alterations or changes. According to those PEC records (and excluding the PEC records for Polling Stations nos. 23, 24 and 25), he had obtained the highest number of votes in the constituency. The applicant requested the court to quash the CEC decision of 12 November 2005 and to declare him the winner of the election in the constituency.
11. During the hearing held on 14 November 2005, the judges of the Court of Appeal did not independently examine the originals of the PEC and the ConEC records of results or hear witnesses called by the applicant. The Court of Appeal upheld the CEC decision by reiterating the findings made in that decision and concluding that the invalidation of the election results based on those findings had been lawful.
12. The applicant lodged a cassation appeal. In addition to the arguments advanced in his appeal before the Court of Appeal, he also complained, inter alia, that the Court of Appeal had refused to independently examine the primary evidence and had simply taken the CEC’s findings as fact. He also complained that the CEC had failed to consider the possibility of ordering a recount of the votes as required by Article 108.4 of the Electoral Code and to summon him as an affected party and hear his explanation as required by Article 112.8 of the Electoral Code.
13. On 23 November 2005 the Supreme Court rejected the applicant’s appeal and upheld the Court of Appeal’s judgment as lawful.
14. On 1 December 2005 the Constitutional Court ordered repeat elections to be held on 13 May 2006 for all electoral constituencies in which the results had been invalidated, including the applicant’s constituency.
15. After the votes in a polling station have been counted at the end of election day, the PEC draws up an official record of election results (in three original copies) documenting the results of the vote in the polling station (Articles 106.1-106.6). One copy of the PEC record, together with other relevant documents, is then submitted to the relevant ConEC within twentyfour hours (Article 106.7). The ConEC verifies whether the PEC record complies with the law and whether it contains any inconsistencies (Article 107.1). After submission of all PEC records, the ConEC tabulates, within two days of election day, the results from the different polling stations and draws up a record reflecting the aggregate results of the vote in the constituency (Article 107.2). One copy of the ConEC record of results, together with other relevant documents, is then submitted to the CEC within two days of election day (Article 107.4). The CEC checks whether the ConEC records comply with the law and whether they contain any inconsistencies (Article 108.1) and draws up its own final record reflecting the results of voting in all constituencies (Article 108.2).
16. If within four days of election day the CEC discovers mistakes, impermissible alterations or inconsistencies in the records of results (including the accompanying documents) submitted by ConECs, the CEC may order a recount of the votes in the relevant electoral constituency (Article 108.4).
17. Upon review of a request to declare invalid the election of a registered candidate, an electoral commission has a right to hear submissions from citizens and officials and to obtain necessary documents and materials (Article 112.8).
18. In the event of the discovery of irregularities aimed at assisting candidates who were not ultimately elected, such irregularities cannot be a basis for the invalidation of the election results (Article 114.5).
19. The ConEC or CEC may invalidate the election results for an entire single-mandate constituency if election results in two-fifths of polling stations, representing more than one-quarter of the constituency electorate, have been invalidated (Article 170.2.2).
20. According to former Article 106.3.6 of the Electoral Code in force at the material time, during the initial vote-counting at a polling station at the end of election day, if a voting ballot which had not been properly placed in the corresponding envelope was found in the ballot box, the vote on that ballot was considered to be invalid. Article 106.3.6 was subsequently repealed on 2 June 2008.
21. The relevant excerpts from the report read as follows:
“Although constituency aggregate results were made available within the legal deadline, detailed results by polling station were only released on 10 November, four days after the election, despite the computer networking of all ConECs with the CEC. This made it difficult for candidates and observers to check that results had been reported accurately. Protocols from two constituencies, 9 and 42, were never posted publicly. ...
The CEC invalidated the results of four constituencies [including Zaqatala Election Constituency no. 110] under Article 170.2 of the Election Code, which states that if a ConEC or the CEC cancels more than 2/5 of PECs representing more than 1/4 of the total electorate in a constituency, then the entire constituency result is considered invalid. ...
At least ... two ConEC chairpersons [ConECs 9 and 42] were dismissed after election day for involvement in electoral malfeasance. The two ConEC chairpersons were arrested and charged with forging election documents. ... The CEC forwarded materials on possible criminal violations to the Prosecutor General’s Office regarding 29 PECs. ...
The process of invalidation of aggregated results in four constituencies by the CEC did not have sufficient legal grounds or an evidentiary basis, nor was the process transparent. The CEC decisions on the invalidation of the election results in the four constituencies concluded that there were “unacceptable modifications performed on the protocols and law infringements which made it impossible to determine the will of the voters” but did not provide any factual basis to support this conclusion. ...
Furthermore, when it invalidated results, the CEC did not make the required initial factual inquiry [as required by Article 170.2 of the Election Code], and ignored Article 108.4 of the Election Code, which authorizes the CEC to order a recount of votes in a constituency if the protocols and documents submitted by the ConEC reveal “mistakes, inadmissible corrections and inconsistencies.” Protocols of ConECs and PECs were not examined or reviewed at CEC sessions. Invalidation of results in a polling station was premised solely on the conclusion of an individual CEC member as to whether a protocol should be invalidated. The judgment of a single CEC member that there were deficiencies in the protocol was accepted as established fact without any explanation of the alleged defect or identification of the number of votes involved. Accordingly, there was no factual basis presented publicly for invalidating results in any of the four constituencies, which is particularly troubling since the CEC registered few complaints that alleged violations in these constituencies. ...
The adjudication of post-election disputes in the courts largely disregarded the legal framework, and fell short of internationally accepted norms. ... In most cases, complaints and appeals were either dismissed without consideration of the merits or rejected as groundless by both the Court of Appeal and the Supreme Court.
Opposition candidates appealed the CEC’s invalidation of results in constituencies 9, 42 and 110. The Court of Appeal upheld the three CEC decisions without any investigation or review of the primary documents and evidence, such as the PEC protocols. In constituency 9, the appellant petitioned the Court of Appeal to examine the protocols, which had been forwarded to the Prosecutor General’s office by the CEC. This petition was denied. In constituency 42, the appellant made an identical request and the court again denied the petition, ruling that it was impossible to obtain the protocols from the Prosecutor General within the legal deadline. The CEC was not able to explain or give any information as to any specific defect in an invalidated protocol or offer any explanation as to what change to a protocol was sufficient for invalidation. ...
Proceedings in the Supreme Court did not correct the shortcomings noted above. The Supreme Court upheld each CEC decision.”
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-71744
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ÖZER AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
TEXT: 6. In 1993, the General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a State body responsible, inter alia, for motorway construction, expropriated a part of a plot of land in Ankara belonging to the applicants and several other persons. A committee of experts assessed the value of the applicants’ land and the sum fixed thereby was paid when the expropriation took place.
7. On 28 December 1993 the applicants, along with twenty-one coowners, lodged a case with the Ankara Civil Court of First Instance, requesting increased compensation.
8. On 14 September 1994 the Ankara Civil Court of First Instance awarded the plaintiffs additional compensation of 5,305,080,000 Turkish liras (TRL) (approximately 126,200 euros (EUR)) plus interest at the statutory rate applicable at the date of the court’s decision, running from 15 February 1993. The amount of compensation that was awarded to the applicants was TRL 2,269,264,010 (approximately EUR 53,980).
9. On 30 January 1995 the Court of Cassation upheld the judgment of the first-instance court.
10. On 17 February 1998 the administration paid the plaintiffs a total of TRL 13,208,453,000 (approximately EUR 53,900). The applicants received TRL 5,649,955,705 (approximately EUR 23,000).
11. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25).


ITEMID: 001-4829
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: ANDRIJIC v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall
TEXT: The applicant, born in 1965, presently resides in Karlskrona, Sweden. In his application form, he states that he has Croatian nationality.

On 9 March 1994 the applicant arrived in Sweden and requested asylum. He stated that he was a citizen of Bosnia-Hercegovina. Before leaving for Sweden, he had been living in Gora. In June 1993 the village was attacked by the Bosnian army. Soldiers searched his family's home on three occasions and took their money and valuables. They also threatened to kill the family members unless they left their home. As a consequence, the applicant decided to leave Bosnia-Hercegovina. The applicant held also a Croatian passport but maintained that he could not be considered as a citizen of Croatia, as the passport did not entitle him to any civic rights in that country. Allegedly, if sent to Croatia, he would be expelled to Bosnia-Hercegovina. Thus, he was very much afraid of being sent to Croatia.
On 6 September 1994 the National Immigration Board (Statens invandrarverk) rejected the applicant's request and ordered his deportation to Croatia. The Board found that the applicant held both Bosnian and Croatian citizenship. Due to the prevailing situation in Bosnia-Hercegovina, he could not be deported to that country. Consequently, in assessing his application, the question was whether he could be afforded protection in Croatia. The Board noted that, according to available information, persons in the applicant's situation did not risk to be sent from Croatia to Bosnia-Hercegovina against their will. Further, there was no reason to assume that Croatia would not afford the applicant the same protection as other Croatian citizens. Finally, the general situation in Croatia did not constitute a ground for granting him asylum.
The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). He claimed that he had deserted from the Bosnian-Croatian army and that, if deported to Croatia, he could be forced to serve in that army in Bosnia-Hercegovina.
On 15 March 1995 the Appeals Board rejected the appeal. It shared the opinion of the Immigration Board and added that there was no apparent risk that Croatian citizens would be forced to take part in armed conflict.
The applicant later requested a temporary residence permit in Sweden. By a decision of 8 June 1995 the Appeals Board granted the applicant such a permit until 1 December 1995 and quashed the deportation order. In so doing, the Board referred to a Government decision of 5 May 1995 according to which the worsened situation in Croatia constituted an impediment to the deportation of asylum seekers to that country.
On 30 October 1995 the applicant submitted a new application for a residence permit. He referred to his previous statements. Further, at an oral hearing on 14 May 1997 he claimed that he would not be allowed to stay in Croatia and that he could not return to his Muslimdominated home district in Bosnia-Hercegovina.
On 17 July 1997 the Immigration Board rejected the applicant's new application and ordered his deportation to Croatia. Having regard to guiding decisions taken by the Swedish Government, the Board found that the applicant could not be sent back to BosniaHercegovina. With regard to the possible deportation to Croatia, the Board noted that no circumstances had been invoked by the applicant which could lead to the conclusion that he was unable to go to Croatia. Consequently, the Board reiterated the conclusions drawn in the previous decisions taken concerning the applicant.
The applicant appealed to the Aliens Appeals Board. In addition to what he had previously stated, he referred to the time he had spent in Sweden. Having adjusted to Swedish society, he claimed that he should be given a residence permit for humanitarian reasons. On 2 February 1998 the Appeals Board upheld the Immigration Board's decision.
Later, the applicant submitted another application to the Appeals Board. He invoked a medical certificate of 23 March 1998 according to which he suffered from a post-traumatic stress syndrome and had regular contacts with a psychiatric clinic in Karlskrona. Allegedly, he would not get the appropriate treatment for his mental problems in Croatia. On 21 April 1998 the Appeals Board rejected the new application.
In May 1998 the applicant made yet another application for a residence permit. He invoked a further medical certificate concerning his mental health. By decisions of 6 and 12 May 1998 the Appeals Board refused to suspend the enforcement of the deportation order and on 12 November 1998 it rejected the application.
In medical certificates issued by the psychiatric clinic at the hospital in Karlskrona on 30 November 1998 and 19 January 1999 chief physician G.S. and therapist I.S. stated that the applicant had undergone treatment for some time at the clinic for a post-traumatic stress syndrome. Allegedly, the enforcement of the deportation order would seriously impair his mental state and could lead to a suicide attempt. The clinic submitted the first certificate to the Appeals Board and requested that the enforcement be suspended.
By a decision of 9 December 1998 the Appeals Board suspended the enforcement of the deportation order for an unspecified period of time.


ITEMID: 001-85103
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GEERINGS v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Isabelle Berro-Lefèvre
TEXT: 8. On 23 October 2003 the Legal Aid Council (Raad voor Rechtsbijstand) made a conditional grant of legal aid in respect of the proceedings before the Court. It is in the following terms:
“The grant of legal aid is conditional. The [Legal Aid Council] will not make any final grant of legal aid if it appears after the termination of legal asistance that [the applicant’s] financial means are such that they exceed the limits set by and pursuant to [the Legal Aid Act (Wet op de rechtsbijstand)] or the cost of legal assistance is reimbursed by a third party.”
9. Section 12 of the Legal Aid Act, as relevant to the questions remaining before the Court, provides:
“...
2. No legal aid shall be provided if:
...
f. the legal interest at issue is placed before an international body entrusted with jurisdictional tasks by a treaty (een bij verdrag met rechtspraak belast internationaal college) or a comparable international body and that body itself provides a claim in respect of legal assistance (in een aanspraak op vergoeding van rechtsbijstand voorziet); ...”


ITEMID: 001-67690
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF DRAGICEVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1938 and lives in Crikvenica, Croatia.
5. On 6 July 1992 his weekend house in Nin, Croatia, was blown up by unknown perpetrators.
6. On 18 May 1993 he instituted civil proceedings before the Zadar Municipal Court (Općinski sud u Zadru) seeking damages from the Republic of Croatia for his damaged property.
7. Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima), the Zadar Municipal Court stayed the proceedings on 17 December 1998.
8. The proceedings resumed on 24 October 2003 pursuant to the “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija).
9. On 20 February 2004 the Zadar Municipal Court rejected the applicant’s claim for damages. The applicant appealed and the case is now apparently pending before the Zadar County Court (Županijski sud u Zadru).
10. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) read as follows:
“Responsibility for loss caused by death or bodily injury or by damage or destruction of another’s property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.”
11. The Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996, hereinafter “the 1996 Act”) entered into force on 3 February 1996. The relevant parts of that Act read as follows:
“Section 180 of the Civil Obligations Act ... shall be repealed.”
“Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed.
The proceedings referred to in sub-section 1 of this section shall resume after the enactment of special legislation governing responsibility for damage resulting from terrorist acts.”
12. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides:
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
13. The “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003, hereinafter “the 2003 Act”) entered into force on 31 July 2003. It provides that proceedings which were stayed pursuant to the 1996 Act will resume and defines circumstances in which the Republic of Croatia is liable for damage resulting from terrorist acts and public demonstrations.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68565
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: M. AND OTHERS v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, whose particulars appear in the appendix, were represented before the Court by Mr Ľ. Mráz, a lawyer practising in Bratislava.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants had originally served in the Police. On termination of their service they became entitled to a special monthly allowance for time served (príspevok za službu) pursuant to section 98 et seq. of the Act on Service in the Federal Police Corps (Law no. 334/1991 Coll., as amended). The allowance was paid to them by the Social Security Agency (“the Agency”) of the Ministry of the Interior (“the Ministry”) and its amount was calculated as a percentage of the applicants' monthly salary at the time of the termination of their service. The percentage depended on the number of the years served. Under section 98 (2) of Law no. 334/1991 Coll. the entitlement to the allowance expired once the officer in question recommenced “service”. The term “service” was understood to include also service in the Slovak Intelligence Service (Slovenská informačná služba - “the SIS”). It was the duty of the officer receiving the allowance to report the recommencement of “service” to the Agency within 8 days.
At various dates in 1995, 1996 and 1997 the individual applicants started to work for the SIS. They were subject to an order of the Director (“the Director”) of the SIS no. 39/1996 which forbade them to report the recommencement of their “service” to the Agency so that their affiliation with the SIS would be concealed.
The applicants thus continued receiving the allowance from the Agency (“the paid allowance”). At the same time they were receiving a salary from the SIS. The SIS was however withholding a part of this salary (“the withheld salary”) in an amount equal to the paid allowance. The applicants understood that the SIS would transfer the withheld salary to the State budget.
At various dates in 1998 and 1999 the applicants' service in the SIS terminated and the latter reported the termination to the Agency.
The Agency subsequently reclaimed the paid allowance from the applicants on the ground that it had been paid to them without a valid legal title. The applicants unsuccessfully challenged the decision before the Ministry. The applicants J. K. and F. B. refused to accept the debt and it was collected from them by a judicial enforcement officer. The remaining applicants commenced paying the amounts owed voluntarily in instalments.
The applicants then lodged demands with the SIS for repayment of the withheld salary. As their demands were not met, they lodged a claim with the Bratislava III District Court (Okresný súd) and also sought interest for late payment of the principal amount.
In several separate decisions taken between August 2000 and March 2001 the District Court found that it had no jurisdiction to deal with the applicants' claims against the SIS and that the body to determine the matter was the Director. The District Court based its finding on sections 1 (3), 3 and 231 et seq. of the Act on Service in the Police, the SIS, the Corps of the Prison Guards and the Railway Police (Law no. 73/1998 Coll., as amended) and section 22 (b) of the Act on the Slovak Intelligence Service (Law no. 46/1993 Coll., as amended). The District Court thus referred the actions under Article 104 § 1 of the Code of the Civil Procedure to the SIS for a determination by its Director and discontinued the judicial proceedings in their respect. The Bratislava Regional Court (Krajský súd) upheld the decision on appeal.
On numerous subsequent occasions applicants again turned to the SIS claiming repayment of the withheld salary plus penalty interests. Invoking the above judicial decisions the applicants demanded that the Director determine the matter by a formal decision and insisted that the repayment be made directly to them.
In late 2001 the SIS transferred an amount of money equal to the withheld salary to the Agency. In substance this amount was identical to the paid allowance. In 2002 the Agency returned to the applicants the part of the paid allowance which they had already repaid in the meantime.
The SIS also later paid to the applicants J. K. and F. B. the costs of the enforcement of their debt to the Agency.
Chapter (Časť) 5 governs the administrative judiciary. In accordance with its provisions administrative tribunals review the lawfulness of decisions taken by public administration authorities on the basis of administrativelaw actions under Section (Hlava) 2 of that Chapter and administrativelaw appeals under Section 3 of that Chapter. From 1 January 2002 the relevant provisions of this Chapter were amended by Law no. 501/2001 Coll. in that administrative tribunals also have the jurisdiction to review the “official conduct” of public administration authorities. Law no. 424/2002 Coll. further amended the provisions of this Chapter by defining detailed rules concerning actions against the inactivity of authorities of public administration. These rules are laid down in a new Section 4 and entered into force on 1 January 2003.
By virtue of Article 244 § 3 the notion of “official conduct” also includes inactivity of the administrative authority concerned.
Pursuant to Article 247 § 2 administrative tribunals are entitled to decide in administrativelaw actions against decisions delivered by administrative authorities where such decisions have become final after the exhaustion of all ordinary remedies.
Under Article 244 § 4 in conjunction with Article 250t any natural or legal person who alleges that an authority of public administration is not pursuing a matter, contrary to law and without a weighty reason may seek an order by an administrative tribunal to the authority concerned to proceed with the matter and to determine it within a fixed time limit which cannot be longer than three months. Under Article 250u a failure to comply with the order can be sanctioned by a fine of up to 100,000 Slovakian korunas.
In its judgment (rozsudok) of 23 May 2002 (file no. 7 Sž 24/02) the Supreme Court found that the Ministry of Finance had been inactive in a set of administrative proceedings and ordered that the Ministry give a final decision in the matter within 30 days from delivery of its judgment.
In a resolution (uznesenie) of 16 June 2004 (file no. 23 S 102/03) the Banská Bystrica Regional Court found that the Banská Bystrica Land Registry Office wrongfully failed to determine the plaintiff's objections in land adjustment proceedings which were conducted before that office. The Regional Court ordered that the Land Registry Office determine the objections within 60 days and awarded the plaintiff reimbursement of her costs.
The right to protection of a person's dignity, honour, reputation and good name is guaranteed by Article 11 et seq. of the Civil Code. According to Article 11 any natural person has the right to protection of his or her personal integrity, in particular his or her life and health, civil and human dignity, privacy, name and personal characteristics.
Any natural person has the right to request that any unjustified infringement of his or her personal integrity should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction (Article 13 § 1).
Article 13 § 2 provides that in cases when the satisfaction obtained under Article 13 § 1 is insufficient, in particular because a person's dignity and position in society have been considerably diminished, the injured person is entitled to financial compensation for non-pecuniary damage.


ITEMID: 001-88731
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LEHEL v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicant, Mr Róbert Lehel, is a Hungarian national who was born in 1973 and lives in Üröm. He is represented before the Court by Ms Sz. Gabos, a lawyer practising in Budapest. The respondent Government are represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 September 1997 the applicant was arrested on the charge of having stolen a car. He was in pre-trial detention until 25 November 1997.
On 23 January 2002 a bill of indictment was preferred. The applicant was charged with having trafficked in stolen goods.
After having held several hearings and obtained the opinions of experts, on 10 September 2007 the Buda Surroundings District Court found the applicant guilty as charged and sentenced him to six months’ imprisonment, the execution being suspended for a probationary period of two years.
On appeal, on 15 April 2008 the Pest County Regional Court re-characterised the applicant’s offence as complicity, an offence punishable with up to one year’s imprisonment. The court appreciated the long time which had elapsed since the commission of the offence as an important mitigating factor and decided to dispense with imposing a punishment. Instead, it formally reprimanded the applicant.