ITEMID: 001-95032
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF YURIY NIKOLAYEVICH IVANOV v. UKRAINE
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Respondent State to take individual measures (Article 46 - Pilot judgment;Individual measures);Non-pecuniary damage - award
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: 7. The applicant was born in 1957 and lives in Moscow.
8. In October 2000 the applicant retired from the Ukrainian Army. He was entitled to a lump-sum retirement payment and compensation for his uniform, but the payments were not made to him on his retirement.
9. In July 2001 the applicant instituted proceedings in the Cherkassy Regional Military Court against Military Unit A-1575, seeking recovery of the debt. On 22 August 2001 the court allowed his claim in full and ordered the military unit to pay the applicant 1,449.36 Ukrainian hryvnias (UAH) in compensation for his uniform, UAH 2,512.50 in retirement payment arrears, and UAH 51 by way of reimbursement for the court fees. On 22 September 2001 the court’s judgment became final and enforceable.
10. On an unspecified date the applicant received UAH 2,512.50. The remainder of the award remained unpaid.
11. The enforcement proceedings concerning the judgment of 22 August 2001 commenced on 24 January 2002. In the course of those proceedings the bailiffs informed the applicant that they had frozen the debtor’s bank accounts, though no funds had been found in those accounts.
12. In a letter of 12 November 2002 the Ministry of Defence informed the applicant that the legislative provisions entitling him to compensation for his uniform were suspended and that there were no budgetary allocations for such payments.
13. On 5 May 2003 the debtor military unit was disbanded and Military Unit A-0680 became its successor.
14. In a letter of 6 April 2004 the bailiffs informed the applicant that the latter military unit had no money to pay the applicant in compliance with the judgment of 22 August 2001. They also mentioned that the forced sale of assets belonging to military units was prohibited by the law.
15. The judgment of 22 August 2001 remains partially unenforced.
16. In 2002 the applicant lodged with the Leninskyy District Court of Kirovograd (“the Leninskyy Court”) a complaint against the bailiffs, alleging that the judgment of 22 August 2001 had not been enforced because of fault on their part. On 3 December 2002 the court found that the bailiffs had not taken the necessary measures to enforce the judgment in the applicant’s favour and ordered them to identify and freeze the bank accounts of the debtor military unit in order to seize the money available in those accounts.
17. According to the applicant, the bailiffs did not comply with the court’s ruling of 3 December 2002. On 20 May 2003 he lodged a claim with the same court against the bailiffs, seeking compensation for pecuniary and non-pecuniary damage.
18. On 29 July 2003 the applicant’s claim was partly allowed. The Leninskyy Court found that the judgment of 22 August 2001 remained unenforced through the fault of the bailiffs and awarded the applicant UAH 1,500.36 in compensation for pecuniary damage and UAH 1,000 for non-pecuniary damage. On 29 August 2003 the judgment of 29 July 2003 became final and enforceable. On 25 February 2004 an appeal by the applicant against the judgment of 29 July 2003 was dismissed as having been lodged out of time.
19. On 3 March 2004 the applicant submitted a written request to the Leninskyy Court to issue a writ of execution in respect of the judgment of 29 July 2003. The applicant did not receive the writ or a reply to his request. The judgment of 29 July 2003 remains unenforced.
20. Throughout the proceedings against the bailiffs, the applicant was assisted and represented by a lawyer.
21. According to the applicant’s lawyer, in order to substantiate the application in the present case he had tried to obtain some unspecified documents from the applicant’s case file kept by the Leninskyy Court. On 13 July 2004 he requested that court to send him all the documents from the case file, without specifying that he needed them for the applicant’s case before the Strasbourg Court.
22. In a letter of 29 July 2004 the Leninskyy Court informed the lawyer that he had failed to provide a form of authority and thus could not obtain the documents requested.
23. The applicant’s lawyer did not resubmit his request with an authority form.
24. Article 124 of the Constitution provides as follows:
“... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”
25. Article 382 of the Code provides:
“1. Wilful failure of an official to comply with a sentence, judgment, ruling or resolution of a court which has entered into force, or hindrance of its enforcement,
shall be punishable by a fine [in the amount] of five hundred to one thousand times the statutory non-taxable monthly income, or by deprivation of liberty for a term of up to three years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.
2. The same actions committed by an official occupying a responsible or especially responsible position, or by a person previously convicted of the crime envisaged by this Article, or [the same actions] causing substantial damage to the legally protected rights and freedoms of citizens, State or public interests or the interests of legal entities,
shall be punishable by restraint of liberty for a term of up to five years, or by deprivation of liberty for the same term with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.
3. Wilful failure of an official to comply with a judgment of the European Court of Human Rights
shall be punishable by deprivation of liberty for a term of three to eight years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years.”
26. The Act determines the procedure for forcible execution of decisions of courts and of other competent authorities and officials (“judgments”).
27. Under section 2 of the Act, the enforcement of judgments is entrusted to the State Bailiffs’ Service, which forms part of the Ministry of Justice. Other entities and officials may also carry out enforcement in accordance with the law. In particular, pursuant to section 9, the bodies of the State Treasury are responsible for the enforcement of judgments concerning recovery of money from the State or local budgets or entities financed from the State budget.
28. The Act confers a wide range of powers on bailiffs in enforcement proceedings. In particular, they are entitled to seek and obtain, from any person concerned, information and documents that are necessary for the enforcement of decisions, to enter and inspect premises belonging or occupied by debtors, to seize and sell debtors’ property, to freeze debtors’ bank accounts, and to impose fines on citizens and officials in cases envisaged by the law (sections 4-5 of the Act). The bailiffs’ orders concerning the enforcement of judgments are binding on all entities, organisations, officials and common citizens in the territory of Ukraine. Pursuant to sections 6 and 88 of the Act, the bailiffs are entitled to punish persons failing to comply with their orders by a fine amounting to ten to thirty times the statutory non-taxable monthly income. If the actions of the offenders fall within the ambit of the criminal law, the bailiffs are to request their prosecution.
29. Section 3 of the Act contains a list of documents on the basis of which bailiffs may proceed with forcible execution (“the enforcement documents”). It includes, inter alia, writs of execution issued by courts, rulings and resolutions of courts in civil, commercial, administrative and criminal cases, judicial orders, and judgments of the European Court of Human Rights. In order to initiate enforcement proceedings, the person in whose favour the judgment was delivered (“the creditor”) or a prosecutor who represented a citizen or the State in the court proceedings must submit to the bailiffs one of the documents specified in section 3 together with a request for its enforcement (section 18). The bailiffs have three days to determine whether the request was made in compliance with the law and, if so, to start the enforcement proceedings, which must normally be completed within six months (sections 24-25). Section 34 of the Act obliges the bailiffs to suspend the enforcement proceedings in specific situations. Such suspension is compulsory if, for instance, a commercial court has started bankruptcy proceedings against the debtor and imposed a ban on payments in respect of creditors’ claims, or if the debtor is an enterprise included on the list of fuel and energy enterprises taking part in the procedure for recovery of debts pursuant to the Act on measures designed to ensure the stable functioning of fuel and energy enterprises.
30. Under section 37, enforcement proceedings are to be discontinued in cases where, for example, the judgment has actually been enforced in full, the time allowed for a particular type of debt collection has expired, or the enforcement document has been transferred to the debtor’s liquidator following official recognition of the debtor’s insolvency. The bailiffs must return the enforcement document to the creditor if, for instance, the debtor does not have property which could be seized with a view to enforcing the judgment and the measures adopted by the bailiffs in order to discover such property have proved to be unsuccessful.
31. Parties to enforcement proceedings or persons involved in them are entitled to challenge the bailiffs’ actions or inactivity before their superiors or courts and to claim damages (sections 7, 85 and 86).
32. By the transitional provisions of the Act, the application of sections 4 and 5 was suspended in respect of enterprises included on the list of fuel and energy enterprises taking part in the procedure for recovery of debts pursuant to the Act on measures designed to ensure the stable functioning of fuel and energy enterprises.
33. Section 11 of this Act provides that damage caused by bailiffs in the course of execution of a judgment is to be compensated at the expense of the State in accordance with the procedure established by law.
34. Under section 5 of this Act, a military unit, as an entity taking part in economic activities, is legally responsible for its failure to fulfil its contractual obligations and for damage caused to the environment and to the rights and interests of natural and legal persons and the State. The money allocated under the relevant provisions of its budget, excluding the money allocated in respect of protected items of the budget, may be used to fulfil the unit’s obligations. If the amount of money available is insufficient, the Ministry of Defence becomes responsible for the unit’s debts. No property allocated to the unit may be used for settlement of its debts.
35. At its 114th session on 12 May 2004 the Committee of Ministers, having considered the measures needed to guarantee the long-term effectiveness of the control system instituted by the Convention, recommended, inter alia, that member States
“review, following Court judgments which point to structural or general deficiencies in national law or practice, the effectiveness of the existing domestic remedies and, where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court...”
36. In the Appendix to the Recommendation of 12 May 2004, the Committee of Ministers noted:
“... The Court is confronted with an ever-increasing number of applications. This situation jeopardises the long-term effectiveness of the system and therefore calls for a strong reaction from contracting parties. It is precisely within this context that the availability of effective domestic remedies becomes particularly important. The improvement of available domestic remedies will most probably have quantitative and qualitative effects on the workload of the Court:
 on the one hand, the volume of applications to be examined ought to be reduced: fewer applicants would feel compelled to bring the case before the Court if the examination of their complaints before the domestic authorities was sufficiently thorough;
 on the other hand, the examination of applications by the Court will be facilitated if an examination of the merits of cases has been carried out beforehand by a domestic authority, thanks to the improvement of domestic remedies...
13. When a judgment which points to structural or general deficiencies in national law or practice (‘pilot case’) has been delivered and a large number of applications to the Court concerning the same problem (‘repetitive cases’) are pending or likely to be lodged, the respondent state should ensure that potential applicants have, where appropriate, an effective remedy allowing them to apply to a competent national authority, which may also apply to current applicants. Such a rapid and effective remedy would enable them to obtain redress at national level, in line with the principle of subsidiarity of the Convention system.
14. The introduction of such a domestic remedy could also significantly reduce the Court’s workload. While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter, there may exist a category of people who have already been affected by this problem prior to its resolution...
16. In particular, further to a pilot judgment in which a specific structural problem has been found, one alternative might be to adopt an ad hoc approach, whereby the state concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation...
18. When specific remedies are set up following a pilot case, governments should speedily inform the Court so that it can take them into account in its treatment of subsequent repetitive cases...”
37. At the same session of 12 May 2004 the Committee of Ministers adopted a resolution, by which it invited the Court to:
“ ... I. as far as possible, to identify, in its judgments finding a violation of the Convention, what it considers to be an underlying systemic problem and the source of this problem, in particular when it is likely to give rise to numerous applications, so as to assist states in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments;
II. to specially notify any judgment containing indications of the existence of a systemic problem and of the source of this problem not only to the state concerned and to the Committee of Ministers, but also to the Parliamentary Assembly, to the Secretary General of the Council of Europe and to the Council of Europe Commissioner for Human Rights, and to highlight such judgments in an appropriate manner in the database of the Court.”
38. On 6 March 2008 the Committee of Ministers considered, pursuant to Article 46 § 2 of the Convention, the measures adopted by the Government of Ukraine with a view to complying with the Court’s judgments concerning the issue of the prolonged non-enforcement of final domestic decisions. The Committee adopted an interim resolution (CM/ResDH(2008)1), the relevant provisions of which read as follows:
“The Committee of Ministers...
expresses particular concern that notwithstanding a number of legislative and other important initiatives, which have been repeatedly brought to the attention of the Committee of Ministers, little progress has been made so far in resolving the structural problem of non-execution of domestic judicial decisions;
STRONGLY ENCOURAGES the Ukrainian authorities to enhance their political commitment in order to achieve tangible results and to make it a high political priority to abide by their obligations under the Convention and by the Court’s judgments, to ensure full and timely execution of the domestic courts’ decision;
CALLS UPON the Ukrainian authorities to set up an effective national policy, coordinated at the highest governmental level, with a view to effectively implementing the package of measures announced and other measures which may be necessary to tackle the problem at issue;
URGES the Ukrainian authorities to adopt as a matter of priority the draft laws that were announced before the Committee of Ministers, in particular the law On Amendments to Certain Legal Acts of Ukraine (on the protection of the right to pre-trial and trial proceedings and enforcement of court decisions within reasonable time);
ENCOURAGES the authorities, pending the adoption of the draft laws announced, to consider the adoption of interim measures limiting as far as possible the risk of new violations of the Convention of the same kind, and in particular:
- to consider the adoption of measures similar to those taken in the education sector in other sectors which raise similar problems;
- to take measures to ensure effective management and control over state entities and enterprises to avoid debts arising to employees;
- to ensure in practice the effective liability of civil servants for non-enforcement;
- to award compensation for delays in enforcement of domestic judicial decisions directly on the basis of the Convention’s provisions and the Court’s case-law as provided by the Law on enforcement of judgments and the application of the case-law of the European Court;
INVITES the Ukrainian authorities to consider, in addition to the measures announced, appropriate solutions in the following areas:
- to improve budgetary planning, particularly by ensuring compatibility between the budgetary laws and the state’s payment obligations;
- to ensure the existence of specific mechanisms for rapid additional funding to avoid unnecessary delays in the execution of judicial decisions in case of shortfalls in the initial budgetary appropriations; and
- to ensure the existence of an effective procedure and funds for the execution of domestic courts’ judgements delivered against the state...”
39. From 2 to 5 June 2009 the Committee of Ministers resumed consideration under Article 46 § 2 of the Convention of the group of the Court’s judgments against Ukraine concerning the failure to enforce, or delays in the enforcement of, domestic decisions. The following decision (CM/Del/Dec(2009)1059) was adopted by the Committee on that subject:
“The Deputies,
1. recalled that, as acknowledged by the Committee of Ministers in its Interim Resolution CM/ResDH(2008)1, the non-enforcement of domestic judicial decisions constitutes a structural problem in Ukraine;
2. noted that there are still a number of cases in which domestic court decisions remain unenforced despite the judgments of the European Court;
3. noted with concern that, notwithstanding the efforts made by the Ukrainian authorities in adopting interim measures, the structural problem underlying the violations has not been solved;
4. observed that failure to adopt all necessary measures, including previously announced legislative measures, has resulted in a steady increase in the number of new applications lodged with the European Court concerning non-enforcement of domestic judicial decisions;
5. noted with concern in this context that priority has not been given to setting up a domestic remedy in case of non-enforcement or delayed enforcement of domestic judicial decisions, despite the Committee’s repeated calls to this effect;
6. called upon the Ukrainian authorities once again to take rapidly the necessary action to ensure Ukraine’s compliance with its obligations under the Convention, and in particular to reconsider the various proposal for reforms made during the examination of these cases (see, in particular, CM/Inf/DH(2007)30 revised and CM/Inf/DH(2007)33);
7. decided to resume consideration of these items at the latest at their 1072nd meeting (December 2009) (DH), possibly in light of a draft interim resolution taking stock of the general and individual measures adopted by then and other outstanding issues if any.”
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-23406
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: TRAVEL TIME, EMBASSY ENTERPRISES, HARMONY HOLIDAYS, MALBOROUGH PROMOTIONS LTD v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Nicolas Bratza
TEXT: The applicants, Travel Time (UK) Limited, Embassy Enterprises UK Limited, Harmony Holidays Limited and Marlborough Promotions Limited, are companies registered in the United Kingdom. They are represented before the Court by Messrs Foot Anstey Sargent, solicitors, in Exeter. The respondent Government are represented by Mr D. Walton of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were companies involved in the timeshare industry, being responsible for finding potential purchasers of timeshare slots in holiday resorts. Two of the applicants were telesales companies, whose role it was to persuade members of the public to attend a timeshare presentation. The other two applicants were responsible for issuing certificates at the end of the presentation which entitled their bearers to a one week holiday in a resort abroad.
On 7 October 1998, the Secretary of State for Trade and Industry (“the Secretary of State”) issued petitions to wind up each of the applicants pursuant to section 124A of the Insolvency Act 1986.
The petitions contained allegations of fraud and deceit by the applicants. The central allegations were that the two telesales companies deliberately deceived members of the public into attending the presentations, partly by false statements made on the telephone and partly by the omission of matters that the public ought to have been told. The two holiday certificate companies were said to have collected a significant amount in processing fees (58 pounds sterling per couple) and then deliberately organised matters so as to get away with sending the minimum possible number of people on holiday. In effect, the case against them was that, having extracted processing fees out of thousands of couples, they then cheated most of them out of a holiday.
On 8 October 1998, the Secretary of State, without notice to the applicants, applied to the High Court for the appointment of a provisional liquidator. The application was granted by Mr Justice Lloyd in the absence of the applicants, without any requirement upon the Secretary of State to give an undertaking in damages (an undertaking that, should the application prove subsequently to have been ill-founded, damages could be payable for losses suffered by the companies).
Mr Justice Lloyd’s Order appointed the official receiver as the provisional liquidator. His powers included the ability to (i) enter onto the applicants’ premises and take possession, collect in and protect the applicants’ assets, whether within or outside the jurisdiction, (ii) take possession of and secure the books and records of the applicants, (iii) retain and pay or dismiss employees at his discretion, (iv) terminate, complete or perfect any contracts or transactions relating to the applicants’ businesses, (v) retain and operate the existing bank accounts of the applicants and (vi) open and operate new accounts with liberty to pay therefrom any necessary expenses incurred on behalf of the applicants by the official receiver while carrying out his powers and duties under the Order.
Mr Justice Lloyd’s Order further ordered that (a) notice of it was to be given to the applicants forthwith and that (b) the applicants were at liberty to apply to the court to vary or discharge the Order on 48 hours notice given to the official receiver or to the Secretary of State’s solicitor. The applicants did not make any such application.
On 8 October 1998, immediately after the appointment, the Department of Trade and Industry (“the DTI”) issued a press release concerning the appointment of the provisional liquidator that, it is alleged by the applicants, was grossly misleading and damaged the applicants’ reputations.
The official receiver immediately took control of the applicants and their premises. He dismissed employees and then closed down the applicants’ businesses as quickly as he could. He was in control of the applicants for more than one year following his appointment, during which time he failed to deal with customers’ telephone queries and did not administer any holiday breaks. The applicants allege that this resulted in a loss of income to them and destroyed their businesses and reputations.
On 6 January 1999, the applicants applied for permission to seek judicial review of the Secretary of State’s decision both (i) to bring the winding up petitions and (ii) to seek the appointment of the provisional liquidator for the companies. On 7 May 1999, the question of whether such permission should be granted was ordered by Mr Justice Latham to be determined by the judge hearing the petitions.
The action was tried in July 1999. By his judgment of 6 October 1999, Mr Justice Park dismissed the Secretary of State’s petitions to wind up the applicants and he discharged the provisional liquidator. The Secretary of State’s applications for permission to appeal were dismissed by both Mr Justice Park and the Court of Appeal.
Mr Justice Park found that there was no substance in the above allegations made by the Secretary of State. In relation to the two holiday certificate companies he further found that the DTI had fundamentally misunderstood the nature and the economics of the applicants’ businesses. In relation to other regulations, Mr Justice Park did not find any infringements that would have justified winding up any of the applicants.
Mr Justice Park further expressed his opinion about the DTI’s investigation and actions. He stated that Mr Hill, the official at the DTI in charge of the investigations into the four applicants:
“...conducted his investigations almost entirely on the basis of documents...He had no prior knowledge of the usual way that timeshare marketing was organised, and if he tried to find out about it from other sources he did not say so. He decided to take action against the companies, including the drastic step of applying for the appointment of a provisional liquidator without the companies having notice of the application, almost entirely on the basis of inferences which he drew from the documents. He did not put any of his concerns to P or A [the directors of the companies] and ask whether they had an explanation.
...If, before launching the petition, Mr. Hill had spoken to P and A (with their solicitor present if they had wished, as they probably would) they might have been able to convince him, as they have convinced me, that his conclusions were mistaken. Even if they had not, and Mr. Hill had still decided to petition for the companies to be wound up and to apply for the appointment of a provisional liquidator, the judge on that application would have been told that the DTI’s allegations were disputed by the companies and the directors. I take it for granted that, if explanations by P and A had been given to Mr. Hill, he would have described them in his affidavit as fairly as he could, even if he did not accept them himself.
As matters happened, however, the DTI launched the petition without any warning. It applied for the appointment of a provisional liquidator without notice to the companies. The only evidence before Lloyd J was Mr. Hill’s affidavit which presented the matter on the basis that the companies’ operations were indisputably and incontrovertibly dishonest. That is, of course, how Mr. Hill saw the matter and neither I nor Mr. Joffe (counsel for the companies) suggest for a moment that Mr. Hill was influenced by any motive other than his sincere belief about what the protection of the public required. On the material before Lloyd J I do not see how the judge could have done other than accede to the application for the appointment of the provisional liquidator. But thereby the businesses of four companies were destroyed.”
Mr Justice Park awarded costs to the applicants on the “standard” basis, but declined to award on the “indemnity” basis.
After Mr Justice Park had delivered his judgment, the applicants referred to their application for permission to seek judicial review of the Secretary of State’s decision to bring the winding up petitions and to seek the appointment of the provisional liquidator. Mr Justice Park indicated to the applicants that he was not minded to grant such permission on the basis that there was no obligation on the Secretary of State to provide compensation for losses caused by the appointment of a provisional liquidator at his request. Therefore, as no compensation could be awarded in judicial review proceedings, no purpose would be served by an application by the applicants for judicial review. The applicants thereafter decided not to pursue the application, on the grounds that to do so would have been pointless.
The applicants allege that the effect of the appointment and subsequent continuation in office of the provisional liquidator was to destroy the applicants’ goodwill and to devastate their businesses. All the applicants are now in liquidation.
The applicants allege that, in effect, the Secretary of State has a common law immunity from having to give a cross-undertaking in damages upon the appointment of a provisional liquidator at his request, in circumstances in which a private litigant would be obliged to do so. In the absence of any right to seek compensation from the Secretary of State, the applicants do not have any means of obtaining financial redress for losses caused by the appointment of the provisional liquidator.
Section 447 of the Companies Act 1985 empowers the Secretary of State to require a company to produce documents during the course of an investigation into its affairs.
Section 124A of the Insolvency Act 1986 provides that:
“Where it appears to the Secretary of State from-
(a) any report made or information obtained under Part XIV of the Companies Act 1985 (company investigations, &c.) ...
that it is expedient in the public interest that a company should be wound up, he may present a petition for it to be wound up if the court thinks it just and equitable for it to be so.”
Section 135 of the Insolvency Act 1986 allows the court, at any time after the presentation of a winding up petition, to appoint a liquidator provisionally.
Under section 144(1) of the Insolvency Act 1986, a provisional liquidator is required to take into his custody or under his control all property and things in action to which the company is or appears to be entitled.
The effect of an undertaking in damages is that the applicant agrees to abide by any order the court may make as to damages if the court later determines that the company sustained loss as a result of the application. The applicant will also be required to give an undertaking to be responsible for the acts and defaults of the provisional liquidator in such circumstances.
In Re Highfield Commodities Limited [1984] BCLC 623 at page 629g-i, Sir Robert Megarry V-C set out the position on the general law as follows:
“First, the general practice is to require an undertaking in damages if a provisional liquidator is appointed ex parte. Second, the general practice is not to require an undertaking in damages if the appointment is made inter partes. The distinction, I think, or a distinction, must be that the protection of the undertaking will be given where the company has had no opportunity of providing any answer or explanation to contentions which may prove to be wholly unfounded, whereas if the company has at least had the opportunity of being heard, the court will be making the appointment after considering what the company has said, if it has chosen to speak, and so can better assess the propriety of making the appointment.”
However, in Re Highfield (at page 630e), the position of the Secretary of State was said to be different:
“...where, as here, the Secretary of State is seeking to have the company wound up not in order to assert some proprietary claim of the Crown but by virtue of the Companies Act 1967, section 35, [the then equivalent of section 124A of the Insolvency Act 1986] I think that the doctrine of the Hoffman case provides sufficient authority and guidance to provide an exemption of the Crown from being required to offer an undertaking in damages as the price of obtaining the appointment of a provisional liquidator, save where the company can establish special circumstances which justify such a requirement being made.”
The applicants state that the phrase “special circumstances” remains undefined by the courts.


ITEMID: 001-79615
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: AKGUL v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Atiye Akgül, is a Turkish national who was born in 1941 and lives in Iskenderun. She is represented before the Court by Mr I. K. Yıldırım and Mr G. Nurtin, lawyers practising in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 15 June 1998 the General Directorate of National Roads and Highways expropriated a part of a plot of land (plot no. 147) belonging to the applicant in Belen. A committee of experts had assessed the value of the land and an amount of compensation was paid to the applicant at the time of the expropriation.
On 21 December 1998 the applicant filed a case with the Iskenderun Civil Court of First Instance and requested additional compensation.
On 26 October 1999 the Iskenderun Civil Court of First Instance awarded the applicant additional compensation of 32,632,776,000 Turkish liras (TRL) (approximately 64,361 euros (EUR)) plus interest at the statutory rate, running from 19 November 1998.
On 9 May 2000 the Court of Cassation upheld the judgment of the firstinstance court.
The applicant commenced enforcement proceedings. On 23 July 2001 the administration paid the applicant the amount of TRL 86,623,450,000 (approximately EUR 75,300) covering additional compensation and interest, as well as costs and expenses.
The relevant domestic law and practice in force at the material time are outlined in the Gül and Others v. Turkey ((dec.), no. 44715/98, 18 March 2004).


ITEMID: 001-23955
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: WILKINSON and KNOTT v. the UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicants, James Wilkinson and Gareth Knott, are United Kingdom nationals. They were born in 1959 and 1962 and are from Manchester and Newcastle, respectively. They were represented before the Court by Mr G. Blades, a lawyer practising in Lincoln.
The facts of the case, as submitted by the parties, may be summarised as follows. Both applicants were convicted and sentenced by courts-martial convened following the entry into force of the Armed Forces Act 1996.
In October 1999 Mr Wilkinson was convicted by an air-force district court-martial of conduct to the prejudice of good order and air force discipline. He was fined of £1000 pounds sterling (“GBP”). The Reviewing Authority confirmed the verdict but reduced his fine to GBP 250. In December 1999 the Courts-Martial Appeal Court dismissed his application for leave to appeal against conviction and sentence and his renewed application was rejected in April 2000.
In October 1999 Mr Knott was convicted by an army district court-martial of disobeying a lawful command. He was sentenced to a severe reprimand and to a fine of GBP 700. The Reviewing Authority confirmed the verdict and sentence. In January 2000 the Courts-Martial Appeal Court dismissed his application for leave to appeal against conviction and sentence and his renewed application was rejected in April 2000.
The provisions of the Army Act 1955 and of the Air Force Act 1955, which regulated army and air-force courts-martial prior to 1 April 1997, are set out in Findlay v. the United Kingdom (of 25 February 1997, Reports of Judgments and Decisions 1997-I, §§ 32-51) and Coyne v. the United Kingdom (judgment of 24 September 1997, Reports 1997V, §§ 20-44).
Following the adoption of the Commission's report in the Findlay case (no. 22107/93, Commission's report of 5 September 1995), the Armed Forces Act 1996 came into force on 1 April 1997 and significantly amended both 1955 Acts. The relevant domestic law and practice applicable to air-force courts-martial following the entry into force of the 1996 Act is set out in the case of Cooper v. the United Kingdom ([GC], no. 48843/99, §§ 15-77, ECHR 2003XII). The relevant regulatory framework governing post-1996 Act army courts-martial is the same in all material respects (the Cooper judgment, at § 107).


ITEMID: 001-22647
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: JAMES and OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicants are the James family, all United Kingdom nationals, resident in Norwich:
(1) Dr Peter James, born in 1938; husband
(2) Mrs Sue James, born in 1944; wife; and their children
(3) Mr David James, born in 1971,
(4) Ms Victoria James, born in 1974,
(5) Mr Richard James, born in 1976,
(6) Mr Caspar James, born in 1980.
They are represented before the Court by Ms Nuala Mole, of the Aire Centre, London.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first and second applicants decided to put themselves forward to adopt a child. In March 1990, they were approved by the Childrens’ Society as prospective adopters and were matched with a child, J., who was born on 21 January 1984 and in the care of Essex County Council (“the local authority”). They stated that they made it clear that they could not envisage adopting a “boisterous” child or any child who presented challenging behavioural or physical disabilities.
During the matching process, the applicants were not shown inter alia J.’s July 1990 school report which noted that there were “constant arguments when he was with others” and that he “can be aggressive”, a report of a previous foster carer which depicted J. as a very troublesome presence in the family home and a report by the Maudsley Hospital which stated that J. would find it harder to find adoptive parents given his history of difficult behaviour. The documents on J.’s background gave a clear picture of a troublesome and difficult child with a disturbed background, far from the child whom the applicants envisaged they would be caring for.
On 2 September 1990, J. moved into the applicants’ home. It was immediately apparent that he had serious behavioural problems, that he was prone to persistent foul moods and required constant one to one attention.
The applicants began to discover information that demonstrated that J. had not been a suitable child for them to adopt and felt very strongly that they had been severely misled by the local authority. Had full and candid disclosure been made they felt that they would never have accepted J. as suitable for their family. For example, they were not told of the possibility that J. might have had a genetic disposition to fragile X syndrome until shortly after he arrived in their home; they were not told until February 1992 that he had been removed from his first foster placement after an alleged sexual incident between him and the foster mother’s daughter; and they were not told until two years later that it was the unsubstantiated belief of a previous social worker that J. had been abused at a pre-verbal stage. Nor had they been told of the correct number of previous placements (there had been three, not two) or of the extent of disruption that J. had caused in these placements.
In 1991, the applicants reached the painful decision to discontinue their relationship with J. However social worker delays in responding to the situation left the applicants in the impossible situation of finding that they did not want to adopt him but having to keep him as the local authority could not place him anywhere else. In July 1992, they decided that he could remain with them as a foster child while attending boarding school most of the year.
On 15 July 1993, the applicants initiated the local authority’s internal complaints procedure complaining about their poor social work practices and also seeking access to the files to ensure the records accurately reflected the difficulties surrounding the placement. Their complaints were upheld in June 1994 and the applicants received reimbursement of their legal costs of 10,000 pounds sterling.
Following further disputes with the local authority about payment of J.’s boarding school fees, the applicants applied for a residence order for J. in October 1997. This order was made on 9 April 1998.
J. has remained difficult throughout his teenage years and exhibits disturbed and disordered behaviour.
The applicants took legal advice concerning their remedies in respect of the local authority’s failings in their case.
Notes of a consultation with Queen’s Counsel on 17 December 1998 referred to the case-law which indicated that it was problematic to establish that a local authority owed a duty of care to foster parents in the area of child care. A pending case of W. v. Essex County Council (2000 2 WLR 601) was expected to clarify if a cause of action could arise in a similar situation. It was also pointed out that difficulties arose concerning the ability of the applicants to demonstrate that they had suffered damage, as it would be necessary to show that there had been economic loss or a psychiatric condition caused to the parents or the other children.
On 16 March 2000, the House of Lords issued its judgment in the case of W. v. Essex County Council, holding that the foster parents’ claim against the local authority could not be struck out and should proceed on the merits.
On 20 June 2000, advice from Queen’s Counsel noted that recent authorities indicated that the applicants might have an arguable claim that the local authority owed them a duty of care in respect of the information which they imparted about any child offered for fostering. However, the difficulty with their claim was that they had not suffered any damage recognised by law. They had not suffered any physical injury and had been able to protect their own children against J. Unlike the foster parents in W. v. Essex County Council, they had not needed psychiatric treatment or been forced to abandon paid employment or otherwise incurred any overall financial loss. She therefore advised that there was no basis on which the courts would accept that they had suffered any damage of a kind that the local authority had a duty to prevent or of a kind that was recoverable.


ITEMID: 001-70967
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF DZELILI v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;No separate issue under Art. 5-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - partial award
TEXT: 9. The applicant was born in 1971. When lodging his application, he was detained in Oldenburg, Germany. He is presently living in Hamburg, Germany.
10. On 6 July 1996 the applicant was arrested in Wilhelmshaven. On 7 July 1996 the Wilhelmshaven District Court issued a warrant of arrest against the applicant on the ground that there was a strong suspicion that he had committed five counts of robbery and one count of robbery in connection with attempted murder.
11. On 4 November 1996 the Oldenburg Public Prosecutor’s Office charged the applicant with attempted murder, aggravated robbery causing physical injury, and an offence under the Federal Weapons Act.
12. On 6 December 1996 the Oldenburg Regional Court dismissed the applicant’s motion to have Mr B. appointed as defence counsel.
13. On 8 January 1997 the Oldenburg Court of Appeal ordered that the applicant’s detention on remand be continued on the grounds that the strong suspicion that he had committed the crimes he was accused of persisted and that he was likely to abscond if released.
14. On 14 January 1997 the Oldenburg Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 6 December 1996.
15. On 18 February 1997 the Oldenburg Regional Court admitted the indictment without modifications and decided to open the trial against the applicant and two other accused. The trial started on 14 March 1997.
16. On 25 June and 26 September 1997 the Oldenburg Regional Court confirmed the arrest warrant of 7 July 1996. On 29 December 1997 the Oldenburg Regional Court dismissed the applicant’s request to suspend the arrest warrant of 7 July 1996.
17. On 22 May 1998, after the trial had taken place on fifty-five days with an average duration of ninety minutes, a lay assessor fell ill. As the designated substitute lay assessor had withdrawn previously, also due to illness, the trial had to begin anew.
18. On 28 May 1998 the Oldenburg Regional Court upheld the arrest warrant. It found that irrespective of the delays occasioned by the assessors’ illness, the applicant’s continued detention was proportionate given the serious nature of the crimes he was charged with.
19. On 2 June 1998 the trial was reopened with two substitute lay assessors.
20. On 22 June 1998 the Oldenburg Court of Appeal rejected the applicant’s appeal against the Oldenburg Regional Court’s decision of 28 May 1998 upholding the arrest warrant.
21. On 1 February 1999, the applicant alleged for the first time that he had been in Tetovo, in Macedonia, at the time of the offence.
22. On 10 February 1999 the Oldenburg Regional Court dismissed the applicant’s request to suspend the execution of the arrest warrant. It decided that investigations in Macedonia with regard to the applicant’s alibi be conducted by way of letters rogatory.
23. On 25 February 1999 the Oldenburg Regional Court, following the applicant’s appeal, refused to change its decision of 10 February 1999 (Nichtabhilfe der Beschwerde) and forwarded the appeal to the Oldenburg Court of Appeal. According to the Regional Court, the applicant’s continued detention on remand was not disproportionate. It reasoned that, if the applicant were convicted, his sentence would exceed the length of the detention on remand so far, due to the serious nature of the crimes and the damages and injuries suffered by the victim. As to the length of the proceedings, the Regional Court noted that there had been debates on whether to disjoin the applicant’s case from the proceedings against his co-accused, but the applicant had not seemed interested in speeding up the proceedings.
24. On 28 June 1999 the Oldenburg Regional Court again dismissed the applicant’s request to suspend the execution of the arrest warrant. On 12 July 1999 the Oldenburg Regional Court, following the applicant’s appeal, confirmed its decision of 28 June 1999.
25. On 23 July 1999 the Oldenburg Court of Appeal dismissed the applicant’s further appeal and confirmed the Regional Court’s decision of 28 June 1999.
26. On 10 September 1999 the Oldenburg Regional Court rejected the applicant’s request to dismiss his court-appointed defence counsel from office, as there was no appearance that the said counsel had not fulfilled his duties. It also found that the loss of trust alleged by the applicant and his counsel had not been substantiated.
27. On 17 September 1999 the Oldenburg Regional Court was informed by the Public Prosecutor’s Office that the investigations in Macedonia with regard to the applicant’s alibi by way of letters rogatory had not been carried out. The applicant stated that he would adduce one hundred defence witnesses, two at each hearing.
28. On 27 September 1999 the Oldenburg Regional Court rejected the applicant’s motion for bias.
29. On 31 January 2000 one of the four alibi witnesses from Macedonia who had been summoned by the Oldenburg Regional Court through diplomatic channels following the alibi of 1 February 1999, appeared and testified in court.
30. On 14 June 2000 the Oldenburg Regional Court dismissed the applicant’s request to suspend the execution of the arrest warrant. It found that, if released, the applicant very likely would abscond, given the circumstances of his arrest and the sentence which he risked incurring if found guilty as charged. The Regional Court noted that the applicant was residing illegally in Germany and that an expulsion order had been issued against him. It further observed that he had been about to abscond when he was arrested. Under these circumstances, the length of the applicant’s detention on remand was not disproportionate. The Regional Court included a detailed account of the trial, explaining the continued conduct of the proceedings, which disclosed that on several occasions witnesses could not be questioned by the court because they either did not come to the hearing or made use of their right not to testify. Furthermore, the applicant and his co-accused had, often later than necessary, filed numerous motions for evidence to be taken. It observed that at the present time, it was not possible to disjoin the applicant’s case from the cases of the other defendants, as they were accused of having committed the offences jointly.
31. On 15 August 2000 the Oldenburg Court of Appeal rejected the applicant’s appeal against the decision of 14 June 2000. It found that the length of time spent in detention on remand alone did not justify releasing the applicant and that his continued detention was proportionate.
32. On 26 September 2000 the Oldenburg Regional Court dismissed the applicant’s request to suspend the execution of the arrest warrant on the ground that contrary to his allegations, suspicion persisted that the applicant had committed the crimes he was accused of. It was still likely that he would abscond if released, given in particular the high prison sentence he risked incurring if found guilty according to the indictment.
33. On 1 November 2000 the Oldenburg Regional Court refused to change its decision of 26 September and forwarded the applicant’s appeal to the Oldenburg Court of Appeal. It noted that the applicant had caused some of the procedural delays himself by knowingly delaying the naming of defence witnesses.
34. On 16 November 2000 the Oldenburg Court of Appeal rejected the applicant’s appeal and confirmed the decision of 26 September 2000.
35. On 13 December 2000 the applicant lodged a complaint against the decisions of the Oldenburg Regional Court of 26 September 2000 and of the Oldenburg Court of Appeal of 16 November 2000 with the Federal Constitutional Court. He argued that his continued detention on remand, given, inter alia, the excessive duration of the trial before the Oldenburg Regional Court, was unconstitutional.
36. On 28 December 2000 the Oldenburg Regional Court had been informed that another twenty-three defence witnesses from Macedonia refused to appear in court. The translated protocols of their hearing, which had been conducted by way of letters rogatory by judges in Macedonia, were read out in court.
37. On 11 January 2001 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint of 13 December 2000.
38. On 20 March 2001 the Oldenburg Regional Court pronounced its judgment after having held an average of less than four hearings per month with an average duration of less than two and a half hours each. It convicted the applicant of aggravated robbery and dangerous bodily injury and acquitted him of attempted murder. It found that the applicant and his co-accused Cevizovic, who had both been masked and had been carrying weapons, had broken into L.’s house and had robbed L. by use of force. It sentenced the applicant to eight years’ imprisonment. In fixing the length of the sentence, the Regional Court took into consideration as a mitigating factor the inordinate length of his detention on remand and of the criminal proceedings. It refered in particular to the delay occasioned by the sickness of the lay assessors and the ensuing suspension of proceedings, and stated that this delay was not imputable to the applicant.
39. On 22 March 2001 the applicant lodged an appeal on points of law against the Oldenburg Regional Court’s judgment.
40. On 13 July 2001 the Oldenburg Regional Court dismissed the applicant’s request to suspend the execution of the arrest warrant. It argued that the applicant had been sentenced to eight years’ imprisonment and that his detention on remand was not yet disproportionate as he had not yet served two thirds of his prison sentence.
41. On 7 August 2001 the Oldenburg Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 13 July 2001. It found that the danger that the applicant might abscond if released still persisted.
42. On 17 August 2001 the applicant lodged another complaint with the Federal Constitutional Court. He complained that the Oldenburg Regional Court, in its decision of 13 July 2001, and the Oldenburg Court of Appeal, in its decision of 7 August 2001, had refused to suspend the execution of the arrest warrant. In particular, the said courts had not taken the length of his detention on remand and of the criminal proceedings adequately into consideration.
43. On 10 September 2001 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.
44. On 12 September 2001 the reasoned judgment of the Oldenburg Regional Court, comprising 201 pages, was deposited with its registry.
45. On 6 November 2001 the Oldenburg Regional Court decided to suspend the execution of the arrest warrant against the applicant. On 7 November 2001 the applicant was released from prison.
46. On 8 November 2001 the applicant substantiated his appeal on points of law. He argued, inter alia, that in its decision, the Regional Court had not taken the length of the criminal proceedings adequately into account and had not specified the effects of this length on the sentence.
47. On 17 April 2002 the Public Prosecutor’s Office filed its observations on the applicant’s appeal with the Regional Court. On 13 August 2002 the Public Prosecutor’s Office sent the case-files to the Federal Public Prosecutor.
48. On 27 November 2002 the Federal Public Prosecutor sent the case-files and his own motions concerning the applicant’s appeal to the Federal Court of Justice.
49. On 11 September 2003 the Federal Court of Justice, after a hearing, partly quashed the judgment of the Oldenburg Regional Court in respect of the applicant’s sentence and remitted the case to a different chamber of the Oldenburg Regional Court.
50. In the reasons of the judgment prepared on 22 October 2003, the Federal Court of Justice found that the duty to proceed expeditiously guaranteed by Article 6 § 1 of the Convention had been violated at least during the first half of the second trial by the Oldenburg Regional Court. It stated that the judges rehearing the case would have to assess in detail the reasons and exact length of these delays as well as further delays contrary to the rule of law which had occurred afterwards. They would then have to fix explicitly the sentence which would have been adequate without the delays in the proceedings and the actual sentence as mitigated because of these delays, thereby precisely assessing the amount of compensation granted.
51. On 13 April 2004 the Oldenburg Regional Court quashed the arrest warrant against the applicant.
52. On 16 August 2004 the Regional Court opened the new trial against the applicant. On 2 September 2004, after a total of four hearings, it sentenced the applicant to six years and six months’ imprisonment for the crimes of aggravated robbery and dangerous bodily injury he had already been finally convicted of. It suspended on probation the remainder of the applicant’s sentence which he had not yet served in detention on remand.
53. In its reasons for fixing the said prison sentence, the Regional Court found that, having regard to all factors aggravating and mitigating the applicant’s guilt, it would have sentenced the applicant to nine years’ imprisonment if the proceedings had been terminated within a reasonable time. However, the applicant’s right under Article 6 § 1 of the Convention to a hearing within a reasonable time had been violated in the proceedings against him, which necessitated the reduction of his sentence.
54. The Regional Court argued in particular that in the criminal proceedings as a whole there had been a total delay of three years and eleven months which was imputable to the judicial authorities. In particular, it was attributable to them that the initial trial before the Oldenburg Regional Court had to begin anew after some fourteen months, because a lay assessor had fallen ill.
55. The Regional Court further found that in the second trial before the Oldenburg Regional Court, there had been a total delay of sixteen months and two weeks for which the judicial authorities were responsible. It listed in detail the exact periods in which the proceedings had not been conducted within a reasonable time in this respect. As the courts were understaffed, it had in fact not been possible to conduct the proceedings more expeditiously, but this was not the applicant’s fault. However, the applicant himself had also caused considerable delays in these proceedings. He had alleged for the first time only on 1 February 1999 that he had been in Macedonia at the time of the offence, and had subsequently named numerous defence witnesses resident in Macedonia in an attempt to establish his false alibi. The court found that the slow execution of the letters rogatory by the foreign authorities to verify the applicant’s alibi was also imputable to the German judicial authorities. Despite this, the applicant’s choice of the points in time and way of lodging motions for evidence to be taken had contributed significantly to the total duration of the proceedings.
56. Furthermore, the Regional Court found that there had been a total delay of eleven months in the proceedings before the Federal Court of Justice which were imputable to the judicial authorities, notably the Public Prosecutor’s Office and the Federal Court of Justice itself.
57. Finally, the Regional Court observed that there had been a delay of five months in the current retrial proceedings.
58. The Regional Court further found that the delays caused during the second trial before the Oldenburg Regional Court, when the applicant had already been detained on remand for more than two years, were of a particular gravity. These delays also violated Article 5 § 3 of the Convention.
59. The applicant subsequently lodged an appeal on points of law against the Oldenburg Regional Court’s judgment delivered on 2 September 2004.
60. On 17 March 2005 the Federal Court of Justice dismissed the applicant’s appeal as ill-founded. It reasoned in particular that in the Regional Court’s findings concerning the specific delays in the proceedings there was merely a mistake for the benefit of the applicant. It argued that the illness of two lay assessors in the first trial before the Oldenburg Regional Court had caused an unavoidable interruption of the proceedings. The loss of time caused thereby could not be qualified as a delay within the meaning of Article 6 § 1 of the Convention. Apart from that, the Federal Court of Justice agreed with the periods of time determined by the Regional Court in which the applicant’s proceedings had not been conducted with the necessary diligence.
61. As regards the delays caused by the retrial in the Oldenburg Regional Court after the remittal of the case, the Federal Court of Justice stressed that it had been correct merely to take into consideration the actual delays imputable to the judicial authorities. The right to lodge an appeal on points of law served to protect the applicant’s rights. The fact as such that the Regional Court’s judgment had partly been quashed on appeal did not, therefore, necessitate treating the whole duration of the retrial as a delay within the meaning of Article 6 of the Convention. Only in cases in which a lower court had made a significant error of law a different conclusion might be called for. However, even if the whole duration of the retrial before the Oldenburg Regional Court were to be treated as a delay imputable to the judicial authorities within the meaning of Article 6 of the Convention, the total reduction of the applicant’s sentence, having regard to the brutality of his crime, would be adequate.
62. On 17 May 2005 (decision served on 22 May 2005) the Federal Court of Justice dismissed the applicant’s complaint that he had not been adequately heard as ill-founded.
63. On 22 July 2005 the applicant lodged a complaint with the Federal Constitutional Court. He claimed that the length of his detention on remand and the length of the criminal proceedings against him had violated his rights guaranteed by the Basic Law. The proceedings are currently pending in the Federal Constitutional Court.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58518
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1999
DOCNAME: CASE OF SERIF v. GREECE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 9;Not necessary to examine Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Marc Fischbach
TEXT: 7. The applicant is a Greek citizen, born in 1951. He is a theological school graduate and resides in Komotini.
8. In 1985 one of the two Muslim religious leaders of Thrace, the Mufti of Rodopi, died. The State appointed a mufti ad interim. When he resigned, a second mufti ad interim, Mr M.T., was appointed. On 6 April 1990 the President of the Republic confirmed M.T. in the post of Mufti of Rodopi.
9. In December 1990 the two independent Muslim Members of Parliament for Xanthi and Rodopi requested the State to organise elections for the post of Mufti of Rodopi, as the law then in force provided. They also requested that elections be organised by the State for the post of the other Muslim religious leader of Thrace, the Mufti of Xanthi. Having received no reply, the two independent MPs decided to organise elections themselves at the mosques on Friday 28 December 1990, after prayers.
10. On 24 December 1990 the President of the Republic, on the proposal of the Council of Ministers and under Article 44 § 1 of the Constitution, adopted a legislative decree by which the manner of selection of the muftis was changed.
11. On 28 December 1990 the applicant was elected Mufti of Rodopi by those attending Friday prayers at the mosques. Together with other Muslims, he challenged the lawfulness of M.T.’s appointment before the Supreme Administrative Court. These proceedings are still pending.
12. On 4 February 1991 Parliament enacted Law no. 1920, thereby retroactively validating the legislative decree of 24 December 1990.
13. The Rodopi public prosecutor instituted criminal proceedings against the applicant under Articles 175 and 176 of the Criminal Code for having usurped the functions of a minister of a “known religion” and for having publicly worn the dress of such a minister without having the right to do so. On 8 November 1991 the Court of Cassation, considering that there might be disturbances in Rodopi, decided, under Articles 136 and 137 of the Code of Criminal Procedure, that the case should be heard in Salonika.
14. On 5 March 1993 the Salonika public prosecutor summoned the applicant to appear before the Salonika Criminal Court sitting at first instance and composed of a single judge to be tried for the offences provided for under Articles 175 and 176 of the Criminal Code.
15. The applicant was tried by the Salonika Criminal Court on 12 December 1994. He was represented by counsel. The court heard a number of prosecution and defence witnesses. Although one witness attested that the applicant had taken part in religious ceremonies, none of the witnesses stated that the applicant had purported to discharge the judicial functions with which muftis are entrusted in Greek law. Moreover, a number of witnesses attested that no official dress for muftis existed. However, one prosecution witness declared that, although in principle all Muslims were allowed to wear the black gown in which the applicant had been appearing, according to local custom this had become the privilege of muftis.
16. On 12 December 1994 the court found the applicant guilty of the offences provided for under Articles 175 and 176 of the Criminal Code. According to the court, these offences had been committed between 17 January and 28 February 1991, a period during which the applicant had discharged the entirety of the functions of the Mufti of Rodopi by officiating at weddings, “christening” children, preaching and engaging in administrative activities. In particular, the court found that on 17 January 1991 the applicant had issued a message to his fellow Muslims about the religious significance of the Regaib Kandil feast, thanking them at the same time for his election as mufti. On 15 February 1991, in the capacity of a mufti, he had attended the inauguration of the hall of the “Union of the Turkish Youth of Komotini” wearing clothes which, according to Muslim custom, only muftis were allowed to wear. On 27 February 1991 he had issued another message on the occasion of the Berat Kandil feast. Finally, on 28 February 1991 and in the same capacity, he had attended a religious gathering of 2,000 Muslims at Dokos, a village in Rodopi, and had delivered the keynote speech. Moreover, the court found that the applicant had repeatedly worn the official dress of a mufti in public. The court imposed on the applicant a commutable sentence of eight months’ imprisonment.
17. The applicant appealed. The hearing before the Salonika Criminal Court sitting on appeal and composed of three judges was adjourned on 24 May 1995 and 30 April 1996 because, inter alia, M.T., the appointed mufti, who had been called by the prosecution, did not appear to testify. M.T. was fined. The appeal was heard on 21 October 1996. In a decision issued on the same date the court upheld the applicant’s conviction and imposed on him a sentence of six months’ imprisonment to be commuted to a fine.
18. The applicant paid the fine and appealed on points of law. He submitted, inter alia, that the appellate court had interpreted Article 175 of the Criminal Code erroneously when it considered that the offence was made out even where a person claimed to be a minister of a “known religion” without, however, discharging any of the functions of the minister’s office. Moreover, the court had been wrong to disregard expert testimony that no official mufti dress existed. The applicant had the right under Article 10 of the Convention to make the statements for which he had been convicted. “The office of the mufti represented the free manifestation of the Muslim religion”, the Muslim community had the right under the Treaty of Peace of Athens of 1913 to elect its muftis and, therefore, his conviction violated Articles 9 and 14 of the Convention.
19. On 2 April 1997 the Court of Cassation dismissed the applicant’s appeal. It considered that the offence in Article 175 of the Criminal Code was made out “where somebody appeared in public as a minister of a ‘known religion’ and discharged the functions of the minister’s office, including any of the administrative functions pertaining thereto”. The court considered that the applicant had committed this offence because he had behaved and appeared in public as the Mufti of Rodopi, wearing the dress which, in people’s minds, was that of a mufti. In particular, the court referred to the incidents of 17 January and 15, 27 and 28 February 1991. The Court of Cassation did not specifically address the applicant’s arguments under Articles 9, 10 and 14 of the Convention.
20. Article 11 of the Treaty of Peace of Athens between Greece and others, on the one hand, and the Ottoman Empire, on the other, which was concluded on 17 May 1913 and ratified by the Greek parliament by a law published in the Official Gazette on 14 November 1913, provides as follows:
(Translation)
“The life, property, honour, religion and customs of the inhabitants of the districts ceded to Greece who will remain under Greek administration shall be scrupulously respected.
They shall enjoy in full the same civil and political rights as the subjects of Greek origin. Muslims shall be entitled to freedom and to practise their religion openly.
...
There shall be no interference with the autonomy or hierarchical organisation of existing or future Muslim communities or in the management of their funds or property.
...
Each mufti shall be elected by Muslim voters in his own constituency.
...
In addition to their authority in purely religious matters and in the supervision of the management of vacouf property, the muftis shall have jurisdiction as between Muslims in the spheres of marriage, divorce, maintenance (nefaca), guardianship, administration, capacity of minors, Islamic wills and succession to the office of mutevelli (Tevliét).
Judgments delivered by the muftis shall be enforced by the competent Greek authorities.
As regards successions, any interested Muslim party may with prior agreement submit a dispute to the mufti as arbitrator. Unless the agreement expressly provides otherwise, all avenues of appeal to the Greek courts shall lie against an arbitral award.”
21. On 10 August 1920 Greece concluded two treaties with the principal Allied Powers at Sèvres. By the first treaty the Allied Powers transferred to Greece all the rights and titles which they had acquired over Thrace by virtue of the peace treaty they had signed with Bulgaria at Neuilly-sur-Seine on 27 November 1919. The second treaty concerned the protection of minorities in Greece. Article 14 § 1 of the second treaty provides as follows:
“Greece agrees to take all necessary measures in relation to the Muslims to enable questions of family law and personal status to be regulated in accordance with Muslim usage.”
22. On 30 January 1923 Greece and Turkey signed a treaty for the exchange of populations. On 24 July 1923 Greece and others, on the one hand, and Turkey, on the other, signed the Treaty of Peace of Lausanne. Articles 42 and 45 of this treaty gave the Muslim minority of Greece the same protection as Article 14 § 1 of the Sèvres Treaty for the Protection of Minorities. On the same day Greece signed a protocol with the principal Allied Powers bringing into force the two treaties concluded at Sèvres on 10 August 1920. The Greek parliament ratified the three above-mentioned treaties by a law published in the Official Gazette on 25 August 1923.
23. In its decision no. 1723/80 the Court of Cassation considered that it was obliged to apply Islamic law in certain disputes between Muslims by virtue of the Treaty of Peace of Athens of 1913, the Treaty for the Protection of Minorities of Sèvres of 1920 and the Treaty of Peace of Lausanne of 1923.
24. Law no. 2345/1920 provided that the muftis, in addition to their religious functions, had competence to adjudicate on family and inheritance disputes between Muslims to the extent that these disputes were governed by Islamic law. It also provided that the muftis were directly elected by the Muslims who had the right to vote in the national elections and who resided in the prefectoral district in which the muftis would serve. The elections were to be organised by the State and theological school graduates had the right to be candidates. Section 6(8) of the Law provided for the promulgation of a royal decree to make detailed arrangements for the elections of the muftis.
25. Such a decree was never promulgated. The State appointed a mufti in Rodopi in 1920 and another one in March 1935. In June 1935 a mufti ad interim was appointed by the State. In the course of the same year the State appointed a regular mufti. This mufti was replaced by another in 1941, when Bulgaria occupied Thrace. He was reappointed by the Greek State in 1944. In 1948 the Greek authorities appointed a mufti ad interim until 1949, when a regular mufti was appointed. The latter served until 1985, when he died.
26. Under the legislative decree of 24 December 1990 the functions and qualifications of the muftis remain largely unchanged. However, provision is made for the appointment of the muftis by presidential decree following a proposal by the Minister of Education who, in turn, must consult a committee composed of the local prefect and a number of Muslim dignitaries chosen by the State. The legislative decree expressly abrogates Law no. 2345/1920 and provides that it should be ratified by law in accordance with Article 44 § 1 of the Constitution.
27. Law no. 1920/1991 retroactively validated the legislative decree of 24 December 1990.
28. Article 44 § 1 of the Constitution provides as follows:
“In exceptional circumstances, when an extremely urgent and unforeseeable need arises, the President of the Republic may, on the proposal of the Council of Ministers, adopt legislative acts. These acts must be submitted to Parliament for approval ... within forty days …”
29. Article 175 of the Criminal Code provides as follows:
“1. A person who intentionally usurps the functions of a State or municipal official shall be liable to a term of imprisonment not exceeding one year or a fine.
2. This provision also applies where a person usurps the functions of a lawyer or a minister of the Greek Orthodox Church or another known religion.”
30. The Court of Cassation considered that this provision applied in the case of a former priest of the Greek Orthodox Church who continued to wear the priests’ robes (judgment no. 378/80). The priest in question had been defrocked after joining the Old Calendarists, a religious movement formed by Greek Orthodox priests who wanted the Church to maintain the Julian calendar. In judgment no. 454/66 the Court of Cassation considered that the offence in Article 175 of the Criminal Code was also committed by a person who purported to discharge the administrative functions of a priest. In judgments nos. 140/64 and 476/71 the Court of Cassation applied Article 175 of the Code to cases of persons who had purported to exercise the religious functions of an Orthodox priest by conducting services, “christening” children, etc.
31. Article 176 of the Criminal Code provides as follows:
“A person who publicly wears the dress or the insignia of a State or municipal official or of a minister of a religion referred to in Article 175 § 2 without having the right to do so ... shall be liable to a term of imprisonment not exceeding six months or a fine.”
32. Ministers of the Greek Orthodox Church and other “known religions” enjoy a number of privileges under domestic law. Inter alia, the religious weddings they celebrate produce the same legal effects as civil weddings and they are exempt from military service.
VIOLATED_ARTICLES: 9


ITEMID: 001-4918
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: UYKUR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is a Turkish citizen of Kurdish origin, born in 1953 and living in Osmaniye, Adana.
He is represented before the Court by Mr Kevin Boyle and Ms Françoise Hampson, both university teachers at the University of Essex.
A.
The applicant was the deputy district leader of the Motherland Party (Anavatan Partisi -ANAP) and a member of the party’s executive board. He later became the chairman of the Osmaniye Branch of the Democratic Party (DEP). He resigned from the DEP before it was closed down.
On 4 December 1994 the applicant was taken into custody by members of the security forces. During his detention, he was beaten with sticks, punched in the face and his testicles were squeezed. He was blindfolded throughout the detention and subjected to continuous interrogation. He was sworn at and forced to sign a statement. When he refused to sign without first reading the statement, he was hosed with water and subjected to electric shocks and “hung” for a period of time. He did not receive food, nor was he allowed to rest.
In a statement to the Osmaniye Criminal Court (Sulh Ceza Mahkemesi) dated 6 December 1994, the Public Prosecutor of Osmaniye requested that the applicant be remanded in detention. He stated that the applicant was suspected of collecting money for the PKK and disseminating propaganda against the indivisibility of the State.
On the same day the applicant was brought before the Osmaniye Criminal Court of First Instance (Sulh Ceza Mahkemesi). Before the court the applicant denied the allegations. He requested his release. The court found no grounds for remanding the applicant and released him.
One week later the applicant was taken from the town centre by the Anti-Terror Police. The police threatened him that he would be killed if he stayed in the area. He was further threatened that he would be taken to the police headquarters every two days.
On 15 February 1995 the applicant filed a complaint with the Public Prosecutor of Osmaniye. He complained about the treatment to which he was subjected during his custody and his subsequent surveillance. He alleged that that the police “were coming to his address and disturbing him. They even threatened me indicating the flat of a Turkish police officer downstairs. They are provoking that family, encouraging them to commit an offence against us. I suspect that they listen to my house and my telephone.” The applicant deposed that he lived in fear of being killed, accused Constable Ali Karabıçak of being responsible and requested that an investigation be opened, that witnesses be heard and that Constable Ali Karabıçak be punished.
In a statement dated 23 February 1995 to the Public Prosecutor of Osmaniye, Hatice Gül, who had been taken into custody by the security forces, stated that during her detention she had been questioned about the activities of the applicant. The police had asked her whether she had any information on the applicant’s connections with the PKK and whether she knew that the applicant had been assisting the PKK. In her statement , she stated that she had been persecuted and tortured during her detention and that a police officer made a threat against the applicant’s life. She stated that she too had lodged a complaint against Constable Ali Karabıçak.
The Government dispute the applicant’s account. They maintain that the anti-terror department of Adana Police Headquarters carried out operations in Osmaniye against the PKK between 11 and 14 November 1994. The house of Yaşar Şimşek was searched during these operations and four video tapes were seised. These tapes depicted the PKK engaged in unlawful activities including raids. Yaşar Şimşek subsequently confessed to the police on 5 December 1994 and on the following day to the public prosecutor that the applicant had entrusted these tapes to him. The applicant’s house was searched on 4 December 1994 with his permission and he was taken into custody. The applicant denied the accusations put to him and remained silent when confronted with Yaşar Şimşek’s statement about the provenance of the video tapes. The applicant refused to sign the protocols indicating that he had been taken into custody and that he had heard Yaşar Şimşek’s oral statement regarding the video tapes. He wrote on both protocols “I cannot sign.”
In his statement to the Public Prosecutor taken on 6 December 1994 the applicant denied that he had made Yaşar Şimşek watch the impugned video tapes and stated there was no serious dispute between the two of them. He asserted that a certain Abdullah Can had given him a video recorder but not for the purpose of watching PKK tapes. He declared that he did not have any sympathy for the PKK and had never viewed the tapes in question.
The interrogation ended on 6 December 1994 whereupon the applicant was brought to a clinic for a medical check up. A medical report dated 6 December 1994 states that no traces of ill-treatment or torture were founded on the applicant’s body.
On the same day the applicant was brought before a magistrate. He was released pending trial.
The Osmaniye Public Prosecutor sent the preliminary investigation file to the Konya State Security Prosecutor together with a decision of non-jurisdiction dated 9 December 1994. The Public Prosecutor attached to the Konya State Security Court filed an indictment dated 13 March 1995 accusing the applicant of having violated Article 168 of the Turkish Penal Code in that he had made PKK video tapes available to third parties for unlawful propaganda purposes.
On 15 February 1995 the applicant lodged a complaint with the Osmaniye Public Prosecutor alleging that he had been tortured during his detention and on being released was subjected to surveillance. The Public Prosecutor took a statement from the applicant the same day. The applicant accused Constable Ali Karabıçak of being responsible and of continuing to threaten him. The applicant stated that he only suspected that his house was being watched and his telephone tapped. He requested the Public Prosecutor to hear the evidence of Abdullah Toprak and Hatice Gül. The applicant declared that these witnesses had been forced to give evidence against him.
The Public Prosecutor heard the statements of Abdullah Toprak and Hatice Gül on 23 February and 21 April 1995 respectively. Abdullah Toprak stated that the police had asked him questions when he was in the police station about the applicant’s involvement in the PKK. However, he could not say if the applicant had been tortured since the applicant had not been in the police station at the time. Abdullah Toprak mentioned that he was blindfolded when in detention. Hatice Gül stated that she did not know anything about the applicant’s allegations that he had been tortured. She stated that Constable Ali Karabıçak had questioned her and she had replied that she did not know the applicant.
On 24 April 1999 the Public Prosecutor issued a decision not to bring charges against Constable Ali Karabıçak for lack of evidence. The decision was served on the applicant on 5 April 1995. In the decision the applicant was informed of his right to appeal against it. The applicant did not appeal and the decision became final on 21 May 1995.


ITEMID: 001-100195
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF JAFARLI AND OTHERS v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicants are Azerbaijani nationals who were born in 1951, 1956 and 1978 respectively and live in Nakhchivan, Azerbaijan.
6. The applicants were members of a cooperative (“Əlincə” Kooperativi – “the Cooperative”) incorporated in Nakhchivan. The Cooperative was created by a decision of a general meeting of 5 April 1989 and was initially composed of five members, including the first applicant.
7. The Cooperative's charter was officially registered on 19 September 1994 by the Ministry of Justice of the Nakhchivan Autonomous Republic. According to this charter, the Cooperative was to be liquidated, inter alia, if the number of its members dropped to less than three.
8. According to the minutes of the Cooperative's general meetings available in the case file, there were subsequently some changes in the membership of the Cooperative. Following the departure of four members of the Cooperative, on 18 December 1996 the second and third applicants became its new members and the total number of the members amounted to three. In all these documents the first applicant was mentioned as the chairman of the Cooperative.
9. Pursuant to a number of contracts concluded in the period from 1997 to 2000, the Cooperative supplied one of the units of the Chief Department of Border Troops of the Ministry of National Security (“the Department of Border Troops”) with various foodstuffs.
10. Although the Cooperative had fulfilled its contractual obligations, it was not fully paid.
11. On an unspecified date the Cooperative brought an action against the Department of Border Troops and Border Troops Unit No. 2006, asking for payment of an accrued debt in the amount of 290,167,334 old Azerbaijani manats (AZM) plus 10% interest, as stipulated by the contract.
12. On 9 July 2002 Local Economic Court No. 1 dismissed the claim against the Department of Border Troops. However, Local Economic Court No. 1 upheld the claim against Border Troops Unit No. 2006 and ordered the latter to pay AZM 319,183,067 in total to the Cooperative. This amount included the principal debt of AZM 290,167,334 and the penalty charge of AZM 29,016,733.
13. No appeals were lodged against that judgment and, pursuant to the domestic law, it became enforceable within one month of its delivery.
14. On 21 October 2002 Local Economic Court No. 1 issued a writ of execution of the judgment. However, Border Troops Unit No. 2006 refused to comply with the judgment and, despite the applicants' complaints to various authorities, it was not enforced.
15. In the meantime the Department of Border Troops was reorganised and renamed as the State Border Service.
16. The documents in the case file show that, on the basis of a request by the Cooperative dated 9 March 2004, signed by the first applicant, the Cooperative's activity as a taxpayer was ceased and this fact was recorded by the Ministry of Taxes.
17. On an unspecified date in 2005 the Cooperative brought an action against the State Border Service and the Ministry of Finance complaining about the non-enforcement of the judgment of 9 July 2002. The Cooperative claimed AZM 58,033,446 for lost earnings, AZM 649,900,896 for material damage and AZM 300,000,000 for non-pecuniary damage.
18. On 7 November 2005 Local Economic Court No. 1 dismissed the claim, finding that neither of the defendants could be held responsible for the non-enforcement of the judgment, because the amount awarded to the Cooperative by the judgment of 9 July 2002 had not been paid due to the refusal of the State Treasury to allocate state funds for this purpose.
19. On 6 February 2006 the Economic Court and on 16 June 2006 the Supreme Court upheld the first-instance court's judgment.
20. In the period from March to August 2006, the judgment of 9 July 2002 was fully executed and the total amount of AZM 319,183,067 was paid into the bank account that the Cooperative held at the Kapital Bank.
21. By a decision of 1 May 2007 the Economic Court of the Nakhchivan Autonomous Republic terminated the enforcement proceedings owing to the execution of the judgment of 9 July 2002.
22. The Law on Cooperation in the USSR of 26 May 1988 of the USSR provided that a cooperative was established on a voluntary basis. The number of members of a cooperative could not be less than three (Article 11).
23. The Law of 28 October 1992 on the temporary remaining in force of former USSR laws on the territory of the Republic of Azerbaijan and their application provided a list of former USSR laws which would remain in force in Azerbaijan until the relevant laws of the Republic of Azerbaijan were adopted. The Law on Cooperation in the USSR of 26 May 1988 appeared on this list. This Law ceased to apply on 12 October 2001.
24. The Civil Code of 1 September 2000 provides that a cooperative is a type of commercial company which is a voluntary union of individuals or legal entities established for the purpose of satisfying material and other needs of its members through consolidation of their material contributions (Article 109.1). A cooperative can be established by at least five members (Article 109-1.1).
25. Members of a cooperative, in essence, enjoy rights similar to those of founders or shareholders of other types of legal entities, including the right to participate in the management of the cooperative and to receive a share of its profits (Articles 109.2 and 109.4 in fine). The cooperative's property is divided among the members in accordance with its charter (Article 110). The cooperative's profits are distributed to the members in accordance with their shares, as well as the extent of their participation in the function of the cooperative, by way of contributing personal labour or otherwise (Article 110-2).
26. The supreme management body of a cooperative is the general meeting of members. Each member has one vote at the general meeting regardless of the size of his or her contribution to the cooperative's capital fund (Articles 111.1 and 111.5).
27. The executive bodies of a cooperative are a management board and/or a chairman. A cooperative's chairman may only be elected from among the cooperative's members. The chairman is elected for a specified term at the general meeting of members and has the right to represent the cooperative (Articles 111.1 and 111.10). A cooperative may be voluntarily reorganised or liquidated by a decision of its members' general meeting (Article 113.1).
28. Article 69.2 of the Code of Civil Procedure provides that legal entities can be represented before courts by their bodies, acting within the scope of powers conferred on them by law, regulations or constitutive documents of the legal entity, or by representatives acting on the basis of a power of attorney.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1