ITEMID: 001-89592
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF AKHMADOV AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);No violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);No violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture;Degrading punishment);No violation of Article 13+5 - Right to an effective remedy (Article 5 - Right to liberty and security);No violation of Article 14 - Prohibition of discrimination
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 7. The first applicant is the father of the fifth and sixth applicants and a grandfather of Amkhad Vakha-Khadzhiyevich Gekhayev, born in 1986. The second and third applicants are the parents of Zalina Amadovna Mezhidova, born in 1978. The fourth and fifth applicants are Amkhad Gekhayev’s parents. The sixth applicant is Zalina Mezhidova’s husband and Amkhad Gekhayev’s uncle. The seventh and eighth applicants are Zalina Mezhidova’s children.
8. The applicants live in the Gudermes District of the Chechen Republic.
9. It does not appear that any of the applicants witnessed the events of 27 October 2001. The following account is based on eye-witness statements submitted by the applicants.
10. On 27 October 2001 a number of farmers from several villages of the Gudermes District, including two of the applicants’ relatives – Amkhad Gekhayev and Zalina Mezhidova – were harvesting in a field near the village of Komsomolskoye. The farmers had obtained prior authorisation for their work from the local authorities.
11. At 3 p.m. the farmers loaded the crop into a VAZ-2121 “Niva” vehicle belonging to the first applicant, in order to transport it to Komsomolskoye. Amkhad Gekhayev was driving and Zalina Mezhidova accompanied him, as she intended to return to the village to take care of her ailing grandmother and her two minor children – the seventh and eighth applicants, who were then three years and three months old and four months and twenty days old respectively.
12. At 3.10 p.m. an MI-8 and two MI-24 helicopters without clear hull numbers appeared in the sky over the field. One of the helicopters had the letters VVS RF (“the Air Forces of the Russian Federation”) on its side.
13. The MI-24 helicopters headed towards the field and started shooting over the heads of the people who remained there. Women and children were among their number.
14. The MI-8 helicopter attacked the “Niva” vehicle. After several warning shots the car stopped. The helicopter then landed nearby and several armed men in uniform approached the “Niva”, strafing it with machine guns. They took the applicants’ relatives out of the car and put them in the helicopter. According to the witnesses, Amkhad Gekhayev and Zalina Mezhidova appeared wounded or dead. The military blew the car up and the three helicopters then left.
15. Immediately after the incident the residents of Komsomolskoye made a video recording of the car. The “Niva” vehicle had been blown up, its windows were missing and there were numerous bullet holes in its frame. There were blood traces on the car doors. Zalina Mezhidova’s shoes and Amkhad Gekhayev’s cap lay nearby. Police officers arrived shortly after the incident, inspected and took photographs of the incident scene, collected slugs and cartridges from bullets of various calibres and a casing for a signal flare, examined the bullet holes on the car frame and noted the findings in their report.
16. The applicants referred to statements by a resident of Komsomolskoye, who had claimed that late in the evening of 27 October 2001 he had seen two armoured personnel carriers arrive at the scene of the incident and leave shortly afterwards.
17. According to the Government, since the beginning of the counter-terrorist operation in the Chechen Republic, the civil and military authorities had taken all necessary steps to secure the safety of civilians residing in the North Caucasus. The residents of the Chechen Republic had been notified of the actions they should perform when in the area of any special counter-terrorist operation so as to indicate that they did not belong to illegal armed formations. In particular, once they had established “visual contact” with representatives of the federal forces, residents were to stop moving, exit from their means of transport, show that they had no firearms or other weapons in their hands and wait for the arrival of a group of servicemen for an identity check.
18. On 27 October 2001, following orders, a group of three federal military helicopters were patrolling the air space trying to detect movements of off-road vehicles, a type of vehicle often used by members of illegal armed formations, with a view to carrying out identity checks.
19. At about 3.30 p.m., while patrolling over the area in the vicinity of the village of Komsomolskoye, the pilots of the helicopters saw an off-road VAZ-2121 “Niva” vehicle moving at high speed. The pilots fired warning shots using a light machine-gun at a spot situated 20-30 metres away from the car in order to make it stop. In the Government’s submission, the “Niva” accelerated. The pilots again fired warning shots using the same weapons and aiming the same distance from the car. The “Niva” then stopped and the helicopters landed. Servicemen from the helicopters saw a man rush out of the car and hide in thick bushes along the road. According to the Government, the people who remained in the car did not get out and show that they were unarmed. The servicemen started approaching the “Niva” but when they arrived within 10 metres of the car, it suddenly drove off. The officer in command of the servicemen assessed the situation as life-threatening and ordered that lethal fire be opened on the car, with the result that Amkhad Gekhayev and Zalina Mezhidova were shot dead.
20. The servicemen further inspected the “Niva” and found an F-1 grenade and a RPG-26 hand-held grenade launcher. The servicemen then took those weapons and the bodies of the deceased to the helicopter and delivered them to the competent authorities.
21. Immediately after the incident the applicants started searching for Amkhad Gekhayev and Zalina Mezhidova.
22. On 28 October 2001 the first applicant applied in writing to various Gudermes District officials seeking their assistance in establishing the whereabouts of his grandson and daughter-in-law.
23. According to the applicants, on 29 October 2001 the corpses of Amkhad Gekhayev and Zalina Mezhidova, wrapped in plastic sheeting, were brought by a helicopter to the Gudermes District military commander’s office. The bodies were severely mutilated – the upper half of the body was missing from Zalina Mezhidova’s corpse and Amkhad Gekhayev’s corpse had no lower limbs.
24. On 30 October 2001 the remains were taken to Makhachkala, in the Republic of Dagestan, for an independent forensic examination. In the applicants’ submission, they were denied access to a report on the results of this examination.
25. According to the applicants, on the same date the bodies were returned to them and they buried the remains.
26. On 7 December 2001 a civil registration office of the Gudermes District issued death certificates for Zalina Amkhadovna Mezhidova, born in 1978, and Amkhad Vakha-Khazhiyevich Gekhayev, born in 1986. The dates of death were recorded as 1 and 27 November 2001 respectively and the place of death was indicated as the village of Komsomolskoye, Gudermes District.
27. Since 27 October 2001 the applicants have repeatedly applied in person and in writing to various public bodies, including prosecutors at different levels, the Administration of the Chechen Republic (Администрация Чеченской Республики), the Special Envoy of the Russian President for Rights and Freedoms in Chechnya (Специальный представитель Президента Российской Федерации по соблюдению прав и свобод человека в Чеченской Республике) and the President of the Supreme Court of Chechnya (Председатель Верховного Суда Чеченской Республики). In their letters to the authorities the applicants referred to the events of 27 October 2001 and asked for assistance and details of any investigation. These enquiries remained largely unanswered, or only formal responses were given, stating that the applicants’ requests had been forwarded to various prosecutors’ offices. The applicants also applied to a number of intergovernmental organisations and mass media.
28. On 27 October 2001 the Gudermes prosecutor’s office (прокуратура Гудермесского района) commenced an investigation in connection with the shooting at the “Niva” vehicle and the detention of Amkhad Gekhayev and Zalina Mezhidova. The case file was assigned the number 21176. In the applicants’ submission, neither they nor any other relatives were formally notified of the initiation of the investigation or granted victim status.
29. On 3 November 2001 the Gudermes prosecutor’s office referred the case to the military prosecutor’s office of military unit no. 20102 (военная прокуратура – войсковая часть 20102) for investigation. The latter received the case on 17 November 2001 and assigned it the number 14/33/0741-01. According to the Government, as a result of the re-organisation of the system of military prosecutor’s offices, the case file number was subsequently replaced with the number 34/33/0741/01.
30. On 30 November 2001 the military prosecutor’s office of military unit no. 20102 discontinued the investigation, in the absence of the constituent elements of a crime in the actions of the servicemen involved in the incident of 27 October 2001. According to the applicants, they were not apprised of this decision until much later.
31. In a letter of 28 December 2001 the military prosecutor’s office of military unit no. 20102 notified the applicants, in response to their query, that:
“The preliminary investigation established that the use of firearms by the servicemen on 27 October 2001 in the vicinity of the village of Komsomolskoye had been lawful and justified. There are no grounds to bring criminal proceedings against them.
Besides, during the examination of the “Niva” vehicle [the servicemen] discovered weapons and ammunition which had been kept there and carried unlawfully.”
The letter further stated that the criminal proceedings instituted in connection with the death of the applicants’ relatives had been discontinued, and informed the applicants that they could challenge that decision in court and also file a civil claim for compensation for pecuniary damage. According to the applicants, they were not furnished with a copy of the decision to discontinue criminal proceedings referred to in the letter of 28 December 2001, and therefore were unable to challenge it.
32. On 28 January 2002 the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики, “the republican prosecutor’s office”) informed the fourth applicant, father of Amkhad Gekhayev, that his complaint concerning the lack of an effective investigation into the murder of Amkhad Gekhayev and Zalina Mezhidova had been transmitted to the military prosecutor’s office of military unit no. 20102 for examination.
33. On the same date the Chief Military Prosecutor’s Office (Главная военная прокуратура) informed the fourth applicant that his application of 5 December 2001 concerning the investigation into the abduction and murder of Amkhad Gekhayev and Zalina Mezhidova had been transferred to the Military Prosecutor’s Office of the Northern Caucasus Military Circuit (“the Northern Caucasus Military Prosecutor’s Office”, Военная прокуратура Северо-Кавказского военного округа) and to the Government of the Chechen Republic.
34. In a letter of 28 January 2002 the Administration of the Chechen Republic notified the fourth applicant that his application concerning the abduction and murder of Amkhad Gekhayev and Zalina Mezhidova had been forwarded to the Commander of the United Group Alignment (Командующий ОГВ (с)) for investigation.
35. By a letter of 15 February 2002 the Northern Caucasus Military Prosecutor’s Office informed the fourth applicant that his application of 5 December 2001 had been transmitted to the military prosecutor’s office of military unit no. 20102 for examination.
36. In its letter of 14 March 2002 the Northern Caucasus Military Prosecutor’s Office reported that:
“Criminal case no. 14/33/0741-01 was closed on 30 November 2001 by the military prosecutor’s office of military unit no. 20102 ... in the absence of the constituent elements of a crime in the actions of [servicemen] of an air-borne search and attack group (воздушно-поисковая штурмовая группа) of military unit no. 20706 who had been carrying out their combat mission of searching for and apprehending leaders of armed gangs on the territory of Chechnya. The ground for the decision to discontinue the criminal proceedings was the failure by Gekhayev A.V., who had been driving the vehicle VAZ-2121,... to comply with the group’s order to stop in order to permit the inspection of the car, with the result that the group opened fire on the vehicle. Gekhayev A.V. and Akhmadova (Manayeva) Z.A., who were sitting in the car, died as a result of their wounds. During the inspection of the vehicle boot [the servicemen] found an F-1 grenade and a RPG-26 hand-held grenade launcher.”
The letter also stated that the Northern Caucasus Military Prosecutor’s Office was studying the case file and would inform the applicants of its findings.
37. On 20 March 2002 the sixth applicant – Amkhad Gekhayev’s uncle and Zalina Mezhidova’s husband – sent a complaint to the Prosecutor General’s Office of Russia (Генеральная прокуратура Российской Федерации). He referred to the events of 27 October 2001 and requested that the criminal proceedings in connection with the abduction and murder of his relatives be resumed. He also complained that his applications to the military prosecutor of Chechnya had remained unanswered.
38. In reply, on 23 April 2002 the Chief Military Prosecutor’s Office referred the sixth applicant’s complaint to the Northern Caucasus Military Prosecutor’s Office for examination.
39. On an unspecified date in June 2002 the sixth applicant requested the Northern Caucasus Military Prosecutor’s Office to inform him of developments in the case, stating that for a month and a half he had received no information regarding the results of the investigation.
40. In its letter of 21 June 2002 the Northern Caucasus Military Prosecutor’s Office notified the sixth applicant that the decision of 30 November 2001 had been quashed on 21 June 2002 on the ground that the investigation had been incomplete. The letter further stated that the case had been transmitted to the military prosecutor’s office of military unit no. 20102 for fresh investigation, and that the Northern Caucasus Military Prosecutor’s Office would closely supervise the course of the investigation.
41. On 27 July 2002 the sixth applicant again applied to the Northern Caucasus Military Prosecutor’s Office, seeking information about the results of the investigation. On 29 August 2002 the Northern Caucasus Military Prosecutor’s Office transmitted their application to the military prosecutor’s office of military unit no. 20102.
42. In early September 2002 the sixth applicant applied both to the Northern Caucasus Military Prosecutor’s Office and to the military prosecutor’s office of military unit no. 20102 for information regarding the results of the investigation. It does not appear that those applications were ever answered.
43. On 16 September 2002 the sixth applicant sent another query to the military prosecutor’s office of military unit no. 20102. He complained that none of the relatives of Amkhad Gekhayev and Zalina Mezhidova had ever been questioned by the investigating bodies.
44. On 18 November 2002 the SRJI, acting on the applicants’ behalf, applied to the republican prosecutor’s office and the Gudermes prosecutor’s office, seeking to ascertain what measures had been taken to establish the circumstances of the crime and the identities of the culprits. The SRJI also requested the authorities to let the applicants have the forensic examination report of 30 October 2001.
45. The republican prosecutor’s office referred the above application to the Military Prosecutor’s Office of the United Group Alignment in the Northern Caucasus (военная прокуратур объединенной группировки войск на Северном Кавказе).
46. The latter informed the SRJI on 6 January 2003 that during the preliminary investigation in criminal case no. 34/33/0741/01, opened in relation to the abduction and murder of Amkhad Gekhayev and Zalina Mezhidova, the identities of the servicemen involved had been established and that the criminal proceedings had been discontinued on 30 November 2001 on account of the lack of the constituent elements of a crime. The Military Prosecutor’s Office of the United Group Alignment in the Northern Caucasus was at that stage unable to review the lawfulness of the decision of 30 November 2001, since the case file had been transferred on 28 March 2002 to a prosecutor of the Northern Caucasus Military Prosecutor’s Office who had been studying it since that date.
47. On 27 January 2003 the military prosecutor’s office of military unit no. 20102 informed the SRJI that the investigation had identified all the servicemen involved in shooting and abducting Amkhad Gekhayev and Zalina Mezhidova. In order to establish the events of 27 October 2001 in detail, all the persons involved in the incident, including the helicopter pilots, had been questioned and three ballistic expert studies had been carried out. A number of forensic examinations had also been conducted, but reports on their findings had not yet been obtained from an expert body in Makhachkala. The letter provided assurances that the forensic examination reports would be obtained on demand from the expert body in Makhachkala and that the victims would have access to them. The investigation was pending.
48. On 26 March 2003 the SRJI requested the military prosecutor’s office of military unit no. 20102 to inform the applicants of the latest developments in the case and of the exact number of criminal proceedings instituted in relation to the abduction and murder of Amkhad Gekhayev and Zalina Mezhidova. The SRJI also enquired about the possibility for the applicants to obtain access to the forensic examination reports and requested that the applicants be notified of the names of the relatives who had been granted victim status in the case and provided with a copy of the relevant decision.
49. On 17 May 2003 the military prosecutor’s office of military unit no. 20102 stated that they were unable to reply to the SRJI’s queries as case file no. 34/33/0741-01 had been transferred to the Military Prosecutor’s Office of the United Group Alignment for examination.
50. Following the receipt of that letter, on 27 July 2003 the SRJI submitted a query similar to that sent on 26 March 2003 to the Military Prosecutor’s Office of the United Group Alignment. The latter forwarded it to the military prosecutor’s office of military unit no. 20102 on 17 September 2003.
51. On 20 July 2003 the sixth applicant addressed a letter to the Gudermes prosecutor’s office. He complained that he had on numerous occasions requested the investigating authorities to update him on the results of the investigation into the deaths of his wife and nephew but had never been provided with any information. He also complained that neither he nor the fourth and fifth applicants – Amkhad Gekhayev’s parents – had so far been declared victims of a crime.
52. In a letter of 11 August 2003 the South Federal Circuit Department of the Prosecutor General’s Office (Управление Генеральной прокуратуры РФ в Южном федеральном округе) replied to the sixth applicant, informing him that his complaint had been forwarded to the republican prosecutor’s office “for examination on the merits”. The latter forwarded the sixth applicant’s complaint to the Gudermes prosecutor’s office on 25 August 2003.
53. On 21 October 2003 the military prosecutor’s office of military unit no. 20102 replied to the SRJI’s letter of 27 July 2003, forwarded by the Military Prosecutor’s Office of the United Group Alignment, stating that they were unable to provide any information concerning the investigation, as the case file had been sent to the Northern Caucasus military prosecutor’s office for study.
54. On 20 December 2003 the SRJI complained to the Chief Military Prosecutor’s Office that their queries addressed to various military prosecutors remained unanswered.
55. In a letter of 15 April 2004 the Military Prosecutor’s Office of the United Group Alignment informed the SRJI that the investigation in criminal case no. 34/33/0741-01 had been discontinued on 15 January 2004 in the absence of the constituent elements of a crime in the servicemen’s actions, and that the said prosecutor’s office was at present studying the case file to establish whether the decision of 15 January 2004 had been lawful. The letter further stated that the applicants would be apprised of the results of that study and that they could have access to the case file at the military prosecutor’s office of military unit no. 20102 in Khankala.
56. On 5 May 2004 the Military Prosecutor’s Office of the United Group Alignment further notified the SRJI that the criminal case had been transmitted to the military prosecutor’s office of military unit no. 20102 for additional investigation. The applicants were invited to address their further queries to the military prosecutor’s office of military unit no. 20102.
57. On 21 July 2005 the military prosecutor’s office of military unit no. 20102 informed the sixth applicant that on the same date the criminal proceedings in case no. 34/33/0741-01D against Captain S., a serviceman of military unit no. 74854, for criminal offences under Articles 126 (kidnapping), 108 (2) (causing death by negligence) and 244 (abuse of dead bodies and desecration of their graves) of the Russian Criminal Code, had once again been terminated in the absence of the constituent elements of a crime, and the proceedings against him for a criminal offence under Article 286 (2) (aggravated abuse of power) had once again been terminated due to an amnesty act.
58. On 24 January 2006 the first applicant complained in writing about the incident of 27 October 2001 and the defects in the investigation to the President of the Chechen Republic. It does not appear that any reply followed.
59. On 28 and 31 January 2006 the first, fifth and sixth applicants wrote letters to the Prosecutor General’s Office complaining about the deaths of their relatives and the inadequate investigation. It does not appear that they received any replies to their letters.
60. Referring to the information provided by the Prosecutor General’s Office, the Government submitted that the investigation into the abduction of the applicants’ relatives had been commenced on 27 October 2001, and had then been discontinued on several occasions as there had been no constituent elements of a crime in the servicemen’s actions, and subsequently resumed by higher-ranking prosecutors in view of the incomplete nature of the investigation. According to them, the applicants were duly informed of all the decisions taken during the investigation. The Government adduced a report on the investigative measures taken in case no. 34/33/0741-01. The undated report signed by an acting head of one of the departments of the Main Military Prosecutor’s Office lists investigative measures taken during the investigation, without providing any details concerning those actions.
61. It can be ascertained from this document that the criminal proceedings in criminal case no. 34/33/0741-01 were instituted under Article 126 (kidnapping) of the Russian Criminal Code on 27 October 2001. They were then discontinued on 30 November 2001 owing to the absence of the constituent elements of a crime in the incident of 27 October 2001. That decision was quashed on 21 June 2002 and the case file was forwarded to the military prosecutor’s office of military unit no. 20102 for further investigation. The report further states that the investigator in charge of the military prosecutor’s office of military unit no. 20102 took up the case on 8 December 2003. It is unclear from the report whether any action was taken in the period between 21 June 2002 and 8 December 2003. The investigation was then discontinued on 8 January 2004 in the absence of the constituent elements of a crime in the incident of 27 October 2001. On 21 May 2004 that decision was set aside and the case was sent for additional investigation. On 10 July 2004 the proceedings were again discontinued, as it was impossible to establish the whereabouts of Captain S., the officer in command of the servicemen involved in the incident of 27 October 2001. Thereafter the investigation was reopened on 23 October 2004 and 7 May 2005 and discontinued in application of an amnesty act on 7 April and 21 July 2005 respectively.
62. The report also states that the scene of the incident was inspected on 27 October and 29 October 2001, and that the “Niva” vehicle was inspected on 9 November 2001. It can also be ascertained from the report that in the first few days following the incident of 27 October 2001 fragments of bullets and cases were collected at the scene of the incident and in the “Niva” and examined by experts. Also during the first days following the incident investigators seized and examined documents relating to the combat mission of 27 October 2001, as well as firearms and ammunition used by the servicemen involved in the events in question. Over the same few days a number of expert studies were ordered and carried out and a number of witnesses were questioned. The report reveals the names of some of those witnesses, whilst the other witnesses, apparently the servicemen involved in the events of 27 October 2001, are identified only by the first letter of their surnames. According to the report, one A. A. Mezhidov – apparently the third applicant – was questioned and granted the status of victim of a crime on 3 November 2001.
63. The report also states that “a male and female corpse were examined” on 29 October 2001 and that a forensic expert examination of the remains of the applicants’ relatives was ordered on 30 October 2001; however, it is unclear when this examination was performed. The report further states that the results of the forensic examination of the bodies of the deceased “were received on 29 June 2004”. It can also be ascertained from the report that at some point criminal proceedings were brought against Captain S., the officer in command of the servicemen who strafed the ”Niva” vehicle on 27 October 2001, but were discontinued on 21 July 2005, under an amnesty act.
64. In their memorial of 6 August 2007, submitted after the decision on admissibility, the Government did not provide any updated information regarding developments in the investigation after 21 July 2005 despite the Court’s specific request for such information. In reply to another question of the Court they indicated that on 29 October 2001 investigators had examined the dead bodies of Amkhad Gekhayev and Zalina Mezhidova in the presence of forensic medical experts. They further submitted that a forensic medical examination of the remains had been ordered and commenced on 30 October 2001 and terminated on 19 February 2002. According to the Government, expert report no. 221 of 19 February 2002 reflecting the results of the examination of Amkhad Gekhayev’s remains had stated that six gunshot and shrapnel wounds had been found on his chest and that those wounds had been caused by bullets and iron fragments of a car body. The report had further attested a traumatic amputation of Amkhad Gekhayev’s lower limbs as a result of the explosion of some explosive device. It had stated that Amkhad Gekhayev’s death had been caused by abundant blood loss as a result of a bullet wound to his chest inflicting injuries of the heart and left lung. In the Government’s submission, expert report no. 222 of 19 February 2002 showing the results of the examination of Zalina Mezhidova’s remains had stated that three bullet wounds had been found on the right buttock, thigh and pubic region. The Government did not provide any further details regarding the results of the examination of Zalina Mezhidova’s body and, in particular, did not indicate the cause of her death. They also remained silent as regards the applicants’ assertion that the upper half of Zalina Mezhidova’s body had been missing. According to them, both reports stated that the gunshot wounds had been inflicted while the victims were alive. The Government did not submit a copy of any of the reports to which they referred.
65. On 13 October 2003 the first applicant lodged a complaint with the Military Court of the North Caucasus Military Circuit (военный суд Северо-Кавказского военного округа), alleging inactivity on the part of investigators from the military prosecutor’s office of military unit no. 20102, the military prosecutor’s office of the United Group Alignment and the Northern Caucasus military prosecutor’s office. He described in detail the events of 27 October 2001, the circumstances of the discovery of the bodies of Amkhad Gekhayev and Zalina Mezhidova and the applicants’ fruitless efforts to have their relatives’ killings investigated. He further complained that the investigation had been plagued with serious defects which rendered it ineffective. The first applicant complained, in particular, that the investigation had been pending for almost a year and a half without any progress, that none of the numerous eye-witnesses to the events of 27 October 2001 had ever been questioned by the investigators, that the reports on the forensic examination of the remains of Amkhad Gekhayev and Zalina Mezhidova had not been included in the case file and that none of the relatives of the deceased could gain access to those reports, that none of the relatives of the deceased had been declared victims, that none of them had received copies of the decisions to open the criminal proceedings or to discontinue the investigation, or been informed what measures were being taken to investigate the events of 27 October 2001, and that their numerous requests and applications had remained unanswered or only formal replies had been given. The first applicant requested the court to order the competent authorities to carry out a full and objective investigation capable of leading to the identification of those responsible for his relatives’ deaths.
66. The Military Court of the North Caucasus Military Circuit forwarded this complaint to the Grozny Garrison Military Court (Грозненский гарнизонный военный суд) on 13 November 2003.
67. In a letter of 1 December 2003 the Grozny Garrison Military Court notified the first applicant that a court hearing in connection with his complaint had been scheduled for 9 December 2003. The letter was sent to the SRJI’s address in Moscow rather than to the first applicant’s address in the Gudermes District of Chechnya. According to the SRJI, they received the above letter on 8 January 2004, and therefore neither the first applicant nor his representatives from the SRJI were able to attend the hearing.
68. On 9 December 2003, in the absence of the first applicant or his representatives and in the presence of the defendants’ representatives, the Grozny Garrison Military Court examined the first applicant’s complaint of 13 October 2003 and dismissed it as unfounded. The court held, in particular:
“It has been established that the objective reason for the prolonged processing of the case was that the case file had been transmitted to various levels of the competent authorities by confidential mail.
The question of the necessity of questioning any witnesses falls within the competence of the investigator in charge or the supervising prosecutor.
The case material also reveals that the report on the forensic examination of the bodies of Z. Mezhidova and A. Gekhayeva was not included in the case file, with the result that it was impossible for the [applicants] to gain access to it.
...
...On 22 July 2002 the decision to discontinue the criminal proceedings in connection with the abduction of Z. [Mezhidova] and A. Gekhayev by [the] servicemen was quashed and it was not until 8 December [2003] that the senior investigator of the military prosecutor’s office of military unit no. 20102 took up the case. As a result, the [applicants] have not been informed of the course of the investigation and so far [they] have not been granted the status of victims of a crime.
Accordingly, it has been established that there is no evidence of any breach of the law in the [defendants’] actions.”
69. On 20 January 2004 the SRJI wrote to the Grozny Garrison Military Court stating that they had not received the court’s letter of 1 December 2003 until 8 January 2004. They requested the court to send them a copy of its decision of 9 December 2003, if a decision had been taken on that date, and henceforth to inform them of court hearings in advance. They also pointed out that the first applicant’s address in Chechnya had been indicated on the front page of his complaint.
70. By two letters of 17 June 2004 the Grozny Garrison Military Court forwarded a copy of its decision of 9 December 2003, without further explanations, to the first applicant and the SRJI. According to the applicants, this letter never reached the first applicant, whilst the SRJI received it on 4 September 2004.
71. On 13 September 2004 the SRJI dispatched an application to have the time-limit for appealing against the decision of 9 December 2003 restored. The application was sent by registered mail and received by the Grozny Garrison Military Court on 21 October 2004. No reply followed.
72. On 11 February 2005 the SRJI forwarded a copy of their application of 13 September 2005 to the Grozny Garrison Military Court and asked the latter to provide them with reasons for its failure to reply to the motion received by the court on 21 October 2004. According to the applicants, they were informed in reply that the court had not received their letter of 13 September 2004. The outcome of these proceedings is unclear.
73. In April 2005, when the application was communicated to them, the Government were invited to produce a copy of the investigation file in the criminal case opened in connection with the incident of 27 October 2001. Relying on information obtained from the Prosecutor General’s Office, the Government replied that the investigation was in progress and that the disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure since the file contained information of a military nature and personal data concerning the witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data concerning the witnesses], and without the right to make copies of the case file and to transmit it to others”.
74. In August 2005 the Court reiterated its request and suggested that Rule 33 § 3 of the Rules of Court be applied. In reply, the Government again refused to produce the investigation file for the aforementioned reasons. The Government did, however, submit a report containing a list of investigative measures taken in the context of the investigation in case no. 34/33/0741-01 (see paragraphs 60-63 above).
75. On 3 May 2007 the application was declared partly admissible. At that stage the Court once again invited the Government to submit the investigation file and to provide information concerning the progress in the investigation after 21 July 2005, the latest date on which it had been stayed. Having regard to the Government’s statement to the effect that on 27 October 2001 the federal servicemen had been pursuing a combat mission in order to suppress the criminal activity of members of illegal armed formations in Chechnya, and to their argument that the use of force by the federal servicemen was no more than absolutely necessary during the incident on 27 October 2001, the Court also put a number of factual questions to the Government. It enquired, in particular, how and by whom the mission had been planned and commanded, whether, and, if so, in what manner, the military personnel involved had been instructed to avoid civilian casualties, and whether any firearms or unlawful violence had been used by the applicants’ relatives before the federal servicemen fired lethal shots.
76. In reply, the Government once again refused to furnish the Court with the investigation file, referring to Article 161 of the Russian Code of Criminal Procedure and the lack of assurances from the Court that, once in receipt of the investigation file, the applicants or their representatives would not disclose the material contained in it to the public. The Government remained silent as regards the Court’s question concerning progress in the investigation after 21 July 2005, and the question whether firearms or any unlawful violence had been used by the applicants’ relatives against the federal servicemen on 27 October 2001. As regards the Court’s question on the planning and commanding of the combat mission of 27 October 2001 and whether any instructions had been given to the military personnel to avoid civilian casualties during that mission, the Government replied that during the combat mission the federal servicemen, both commanding officers and their subordinates, had acted in compliance with national legislation and regulations for securing the safety of the civilian population and those relating to the use of lethal force, and that “every serviceman ... knows and must strictly comply with the rules governing contacts with the civilian population in areas of military action”. They refused to provide any further details or any relevant documents, stating that such information constituted a military secret.
77. The Government adduced copies of domestic court decisions reached in unrelated sets of civil and criminal proceedings. These included four first-instance judgments by which federal servicemen, privates or non-commissioned officers, had been convicted of criminal offences committed in the Republic of Ingushetia or the Chechen Republic, as well as a first-instance judgment and appeal decision awarding compensation for omissions on the part of the investigating authorities during the investigation into an individual’s abduction in the Republic of Karachayevo-Cherkessia, the person in question having subsequently been released.
78. For a summary of the relevant domestic law see Khatsiyeva and Others v. Russia, no. 5108/02, §§ 105-107, 17 January 2008.
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 13
14
3
5


ITEMID: 001-87975
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FOULKES v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr John Foulkes, is a British national who was born in 1942 and lives in Wales. He was represented before the Court by Mr Adrian Foulkes, a solicitor with Flanaghan and Jones Solicitors, Powys. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 29 February 2000. On 7 May 2001, the applicant made a claim for widows’ benefits. On 7 June 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-97076
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BERNATOWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr J. Bernatowicz, is a Polish national who was born in 1947 and lives in Płock. 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.
The applicant was arrested by the police in the late evening of 5 April 2000. According to the arrest report, he was detained in connection with insults proffered over the telephone against police officers at the local police station in calls made earlier that evening from the headquarters of the Mazowiecka Milk Co-operative in Płock.
A police officer who was on duty that day had written a memo according to which, at around 8.05 p.m., a man had called the police station, talked to that officer in a vulgar and abusive way and uttered inarticulate threats. The officer knew the telephone number and thought that he recognised the voice of the man calling to be that of the co-operative’s president, A.L., who was later arrested together with the applicant. The officer noted that this telephone call was not the first one that evening. Another police officer, who had worked a previous shift, had received similar calls.
According to another memo written by another police officer, the police went to the co-operative’s headquarters twice. The first time was at around 7.30 p.m., when two officers had found no one in the building. The second time, they found two men who had locked themselves in one of the offices and refused to open the door. Officer K.K. entered through the balcony door. The men were asked to identify themselves but refused to do so or to show their ID cards. One of them behaved in an aggressive manner.
Both men were then taken to the police station, where their identity was established on the basis of their identity cards. The man who had acted aggressively at the time of the arrest turned out to be A.L. and the other man was the applicant.
The applicant submitted that, before they had been taken to the police station, they had been driven around the city in a police car for a long period of time.
At the police station, half an hour after the police’s arrival at the cooperative’s building, between 9 and 10 p.m., the applicant was informed that he had been arrested in connection with insults proffered against police officers over the telephone in a call from the co-operative’s headquarters shortly before the arrests were made.
At the police station a breathalyser test was taken. It showed 1.21‰ alcohol in the applicant’s blood.
The applicant was released on 6 April 2000.
On that day the applicant learned that news about his arrest had been broadcast by a local radio station. The same information reached some of the members of the cooperative and was later reported in one of the local newspapers.
On 17 April 2000 the applicant complained to the Płock Regional Public Prosecutor about his arrest and about alleged ill-treatment by the police. He also raised a complaint regarding an alleged violation of his personal rights, claiming that information about the arrest had been wrongfully disclosed by the police to the public. In a decision of 19 May 2000 the prosecutor replied to his complaint, explaining that he had not found any breach of the applicable laws and that the applicant’s detention had been fully justified. The delay in taking the applicant and A.L. to the police station after he had been arrested had resulted solely from the need to drive one of the police officers home at the end of his shift and did not amount to any attempt at kidnapping, as the applicant had argued. The prosecutor concluded that, if the applicant considered that his personal rights had been breached, he could file an action for compensation with a civil court.
On 13 April 2000 the applicant lodged a further complaint with the Płock District Court, alleging that his detention had been unlawful.
On 18 May 2000 the Płock District Court held that the applicant’s arrest and detention had been executed in compliance with the applicable laws. The court found that the applicant and A. L. had been the only persons at the co-operative’s headquarters at the time of the arrest and, consequently, the only persons who could have had access to the telephone from which the insulting calls to the police station had been made. The court noted that one of the police officers had recognised the voice of A.L., whom he knew, and had been convinced that it was he who had made the insults over the telephone. The court also found that the applicant had failed to cooperate with the police by locking the door and, together with the other suspect, refusing to disclose their names to the officers. The breathalyser test had subsequently shown an alcohol level of 1.21‰ in the applicant’s blood.
The court concluded that the circumstances of the arrest were such that it could be reasonably concluded that the applicant had committed an offence and had to be arrested to prevent his absconding. There was no indication of any ill-treatment which the applicant had allegedly suffered. It further noted that the suspects had been released as soon as the necessary evidence concerning the incident had been gathered.
The applicant appealed against the District Court’s decision, but on 18 July 2000 he was informed that no further appeal was available in law.
On 31 January 2001 the Płock District Prosecutor discontinued an investigation into the applicant’s allegations that the police officers had committed a criminal offence, namely, the abuse of an official position. The prosecutor found no indication that a criminal offence had been committed in connection with the events of 5 and 6 April 2000. The applicant appealed. On 10 May 2001 the Płock District Court allowed his appeal in so far as he complained about the alleged leak of information about his arrest to the local press.
Subsequently, this part of the applicant’s complaint was investigated again. On 21 June 2001 the Płock District Prosecutor discontinued the investigation. All police officers involved in the events of 5 and 6 April 2000 were questioned. They denied any involvement in informing any journalists about the applicant’s arrest. The applicant did not appeal.
Chapter 58 of the Code of Criminal Procedure, entitled “Compensation for unjustified conviction, detention on remand or arrest”, stipulates that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty. Article 552 of the Code provides, in so far as relevant:
“1. An accused who, as a result of the reopening of the criminal proceedings against him or of lodging a cassation appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the pecuniary and non-pecuniary damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him.
...
4. Entitlement to compensation for pecuniary and non-pecuniary damage shall also arise in the event of manifestly unjustified arrest or detention on remand.”


ITEMID: 001-110953
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BJEDOV v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant was born in 1933 and lives in Zadar. Her income consists of her pension, amounting to HRK 1,787.10 per month, and a social benefit amounting to HRK 350 per month.
6. On 14 January 1975 the applicant’s husband was awarded a specially protected tenancy (stanarsko pravo) of a flat in Zadar. Pursuant to the relevant legislation, the applicant as his wife automatically became a co-holder of the specially protected tenancy of the flat. After the death of her husband in 1994 she became the sole holder of the tenancy.
7. On 14 August 1991 the applicant and her husband went to the village of Mokro Polje, between Obrovac and Knin. In September 1991 the applicant’s husband fell ill. They also found out that third persons had broken into and occupied their flat in Zadar. In these circumstances she decided to stay with her husband in Mokro Polje.
8. After the death of her husband on 6 September 1994, the applicant went to live with her daughter in Switzerland. The applicant returned to Zadar in October 1998 and lived in a friend’s flat until 15 July 2001, when the third persons moved out of her flat and she moved back in.
9. Meanwhile, on 29 December 1995 the applicant made a request to purchase the flat at issue to the Town of Zadar as the provider of the flat. She relied on section 4 of the Specially Protected Tenancies (Sale to Occupier) Act, which entitled holders of specially protected tenancies of flats in social ownership to purchase their flats from the provider of the flat under favourable conditions (see paragraph 39 below).
10. As she received no reply to her request to purchase of the flat, on 5 April 2000 the applicant, relying on section 9 of the Specially Protected Tenancies (Sale to Occupier) Act, brought a civil action in the Zadar Municipal Court (Općinski sud u Zadru) against the Town of Zadar seeking judgment in lieu of a contract of sale.
11. The defendant submitted a counterclaim seeking the applicant’s eviction.
12. On 11 January 2001 the Municipal Court ruled for the applicant. Following an appeal by the defendant, on 11 July 2001 the Zadar County Court (Županijski sud u Zadru) quashed the first-instance judgment and remitted the case.
13. In the resumed proceedings, on 20 May 2002 the Zadar Municipal Court again ruled for the applicant. On 24 June 2005 the Zadar County Court again quashed the first-instance judgment and remitted the case.
14. In the resumed proceedings, on 28 April 2006 the Zadar Municipal Court delivered a judgment whereby it dismissed the applicant’s action. At the same time it accepted the defendant’s counterclaim and ordered the applicant to vacate the flat. It also ordered her to reimburse the defendant 4,800 Croatian kunas (HRK) for the costs of the proceedings. The court found that the applicant had been absent from the flat between 14 August 1991 and 15 July 2001, that is, for a period exceeding six months, and that her absence had not been justified. In so deciding the court followed the case-law of the Supreme Court (see paragraphs 34-37 below), according to which, in cases where a third person moves into the flat, the bringing of legal proceedings in order to evict the occupant would demonstrate an intention to live in the flat and prevent the tenant’s absence from being considered unjustified and resulting in a termination of the tenancy. However, the applicant had never instituted any proceedings to regain possession of her flat. Therefore, the condition for termination of her specially protected tenancy stipulated in section 99(1) of the Housing Act had already been met on 13 February 1992. That being so, the court held, while expressly relying on decisions of the Supreme Court nos. Rev-777/1995-2 of 21 December 1999 and Rev-391/02-2 of 18 February 2003 (see paragraphs 31-33 below), that she had not been entitled to purchase the flat under the Specially Protected Tenancies (Sale to Occupier) Act or to acquire the status of a protected lessee under the Lease of Flats Act. Accordingly, the court concluded that she had no title to the flat and ordered her eviction.
15. On 17 November 2008 the Zadar County Court dismissed the applicant’s appeal and upheld the first-instance judgment, which thereby became final and enforceable.
16. The applicant then lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske). Relying on section 382(2) of the Civil Procedure Act (see paragraph 52 below) she argued that her case raised legal issues important for ensuring the uniform application of the law and equality of citizens. In particular, she argued, inter alia, that the judgments of the lower courts in her case were contrary to the case-law of the Supreme Court, according to which a specially protected tenancy could only be terminated by a court judgment (see paragraphs 34-39 below).
17. On 25 February 2010 the Zadar County Court declared the appeal on points of law admissible on the ground that it concerned issues relevant for the unification of interpretation of some provisions of substantive laws.
18. On 6 October 2010 the Supreme Court declared the applicant’s appeal on points of law inadmissible as it found that neither the value of the subject matter of the dispute reached the statutory threshold nor were the legal issues raised therein important for ensuring the uniform application of the law and equality of citizens within the meaning of section 382(2) of the Civil Procedure Act. In particular, the Supreme Court held that the findings of the lower courts in the applicant’s case were not incompatible with its own opinion expressed in judgment no. Rev-391/02-2 of 18 February 2003 according to which, even in the absence of a judgment terminating a specially protected tenancy, the courts were entitled to examine, as a preliminary issue, whether the grounds for its termination had been present in cases where the prior existence of such a tenancy was a requirement for acquiring the right to purchase a flat under the Specially Protected Tenancies (Sale to Occupier) Act or the status of a protected lessee under the Lease of Flats Act (see paragraph 38 below).
19. On 17 June 2011 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Supreme Court’s decision, alleging violations of her constitutional rights to equality before the law and fair proceedings as well as her Convention rights to a fair hearing, respect for her home and peaceful enjoyment of her possessions. At the same time she asked for an interim measure under section 67(2) of the Constitutional Court Act that would postpone the enforcement of the Zadar Municipal Court’s judgment of 28 April 2006 until the Constitutional Court had decided on her constitutional complaint.
20. On 20 May 2011 the applicant lodged a request for reinstatement of the proceedings in the Zadar Municipal Court. She also asked that the decision by the Supreme Court of 6 October 2010 be served on her. She withdrew that request on 30 August 2011.
21. On 11 January 2012 the Constitutional Court declared the applicant’s constitutional complained inadmissible as ill-founded on the ground that that she had not put forward any arguments relevant for the protection of her constitutional rights.
22. Meanwhile, on 4 August 2009 the Town of Zadar instituted enforcement proceedings before the Zadar Municipal Court with a view to enforcing the above-mentioned judgment of 28 April 2006.
23. On 24 August 2009 the court issued a writ of execution (rješenje o ovrsi) ordering the applicant’s eviction from the flat and the seizure and sale of her movable property to satisfy the enforcement creditor’s claim for costs of the above-mentioned civil proceedings.
24. On 4 September 2009 the applicant appealed against the writ to the Zadar County Court and at the same time asked the Zadar Municipal Court to postpone the enforcement. She submitted that her income (pension) was insufficient to cover the costs of other accommodation, that she was seventy-five years of age, in poor health and walked with the help of crutches. She argued that in those circumstances her eviction would amount to inhuman and degrading treatment causing irreparable harm, as it would certainly lead to a rapid deterioration of her health and eventually to her death. In support of her arguments the applicant enclosed with her appeal a medical certificate of 19 June 2009 signed by Dr I.M. from Zadar stating that the applicant was in postoperative status after the hip surgery, suffered from hypertension, rosacea (a skin condition) and a psychoneurosis (psychic tension). Dr I.M. also stated that the applicant walked with the help of crutches and expressed his view that, due to her poor health, it was necessary to spare her from any relocation.
25. On 28 October 2010 the Zadar Municipal Court issued a decision postponing the enforcement until the Zadar County Court had decided the applicant’s appeal of 4 September 2009 and until the Supreme Court had decided on her appeal on points of law in the above-mentioned civil proceedings. The relevant part of that decision read as follows:
“... in the court’s view the enforcement debtor demonstrated that, if the enforcement were to be carried out, she would probably suffer irreparable harm manifested in the fact that she is an elderly person in poor health who would be rendered homeless and who, at the moment, cannot secure temporary accommodation for herself, whereas, on the other hand, the enforcement creditor would not suffer any loss on account of the postponement because the enforcement debtor regularly pays the rent for the flat at issue.”
26. On 5 November 2010 the Zadar County Court dismissed the applicant’s appeal and upheld the writ of execution of 24 August 2009.
27. On 11 May 2011 the Zadar Municipal Court issued a decision to continue the enforcement proceedings. However, on 30 August 2011 the enforcement proceedings were postponed until the Zadar Municipal Court decided on the applicant’s request for reinstatement of the civil proceedings.
28. After she had withdrawn her request for the reinstatement of the civil proceedings, the applicant on 28 September 2011 again asked that the enforcement proceedings be postponed until the Constitutional Court delivered its decision. On 20 February 2012 the Zadar Municipal Court dismissed the applicant’s request and resumed the enforcement proceedings which are still pending.
29. Article 34 of the Constitution (Ustav Republike Hrvatske, Official Gazette nos. 41 and 55) reads as follows:
“The home is inviolable.
A search of a person’s home or other premises shall be ordered by a court in the form of a reasoned written warrant based on law.
The occupier, or his or her representative, shall be entitled to be present during a search of a home or other premises. The presence of two witnesses shall be obligatory.
Under the conditions prescribed by law and where it is necessary to execute an arrest warrant or to apprehend a person who has committed a criminal offence or in order to remove serious danger to the life or health of people, or to property of a high value, the police may enter a person’s home or other premises and carry out a search without a court warrant or the occupier’s consent and without any witnesses being present.
Where there is a probability that evidence may be found in the home of a person who has committed a criminal offence, a search shall be carried out only in presence of witnesses.”
30. The relevant part of the Housing Act (Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993) reads:
“A specially protected tenancy is acquired on the date of moving into the flat on the basis of a final decision allocating the flat or on another valid legal basis, unless otherwise provided by this Act.”
“1. A specially protected tenancy may be terminated if the tenant [...] ceases to occupy the flat for an uninterrupted period exceeding six months.
2. A specially protected tenancy shall not be terminated under the provisions of paragraph 1 of this section in respect of a person who does not use the flat on account of undergoing medical treatment, performance of military service or other justified reasons.”
“1. The provider of the flat shall terminate a specially protected tenancy by bringing an action in the competent court.
2. ...
3. The judgment ordering eviction shall not be enforced if the person to be evicted is not provided with another flat or basic accommodation [nužni smještaj], when that is required by this Act.
4. Another flat shall be made available by the provider of the flat at the latest by the end of the main hearing in the proceedings for the termination of the specially protected tenancy, unless otherwise provided for by this Act.”
5. Basic accommodation shall be secured in enforcement proceedings.”
“The duty of the tenant to vacate the flat extends to other users of that flat, unless otherwise provided for by this Act.”
31. The Specially Protected Tenancies (Sale to Occupier) Act (Official Gazette nos. 27/1991, 33/1992, 43/1992, 69/1992, 25/1993, 26/1993, 48/1993, 2/1994, 44/1994, 47/1994, 58/1995, 11/1996, 11/1997 and 68/1998, Zakon o prodaji stanova na kojima postoji stanarsko pravo) regulates the conditions for the sale of flats let under specially protected tenancies. In general, the Act entitles the holder of a specially protected tenancy of a publicly owned flat to purchase it under favourable conditions of sale.
The relevant provision of the Act provides as follows:
“Every holder of a specially protected tenancy (hereinafter ‘the tenant’) may submit a written application to purchase a flat to the ... owner (‘the seller’) ... and the seller shall be obliged to sell the flat.
...”
32. Section 161 paragraph 1 of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no 91/1996) reads as follows:
“An owner has the right to seek repossession of his or her property from a person in whose possession it is.”
33. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and the Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) provides as follows:
“...
The parties to the proceedings may lodge an appeal on points of law against a second instance judgment where the outcome of dispute depends on the assessment of some substantive or procedural issue of importance for ensuring the unified application of the laws and the equality of citizens ...
...”
“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.
(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”
34. In decision no. Rev-616/1988 of 11 October 1988 the Supreme Court interpreted section 99 of the Housing Act in the following way:
“The specially protected tenancy is not lost ex lege by the mere fact of non-use of the flat for a period exceeding six months. Rather, that is a ground for termination of a specially protected tenancy that can be terminated only by the provider of the flat.”
35. The specially protected tenancy was terminated as soon as the court’s judgment upholding the claim of the provider of the flat to that end has become res judicata (see, inter alia, the Supreme Court’s decision no. Rev-1009/1993-2 of 15 June 1994).
36. In its decisions no. Rev-777/1995-2 of 21 December 1999 and no. Rev-391/02-2 of 18 February 2003 the Supreme Court took the view that, even in the absence of a judgment terminating the specially protected tenancy, the courts were entitled to examine whether the grounds for its termination had been present in cases where the existence of such a tenancy was a precondition for acquiring and exercising the right of a tenant to purchase the flat under the Specially Protected Tenancies (Sale to Occupier) Act.
37. The relevant part of the decision no. Rev-777/1995-2 of 21 December 1999 reads as follows:
“In [the Supreme Court’s] view a contract of sale of a flat concluded with a person whose specially protected tenancy ended by termination after the conclusion of [that] contract, or in respect of whom it was established that a ground for termination [of the specially protected tenancy] had existed at time of the conclusion of [such a contract], is null and void. ...
It was therefore necessary to examine whether at the time of the conclusion of the impugned contract any grounds for termination of the specially protected tenancy existed ...”
38. The relevant part of the decision no. Rev-391/02-2 of 18 February 2003 reads as follows:
“The [view] of the first-instance court, which was also accepted by the second-instance court, that the existence of a judicial decision on termination of the specially protected tenancy is decisive for [resolving] the question whether the plaintiff’s specially protected tenancy of the flat at issue has ended, is incorrect. In [the Supreme Court’s] view, if grounds for termination of the specially protected tenancy existed on the side of the plaintiff at the time of the conclusion of the contract of sale of the flat ... or at the time [he] made a request for purchase of the flat – on which issue the court should have in the instant case decided upon the defendant’s counterclaim (otherwise it could have decided it as a preliminary issue) – ... the plaintiff [would have no right] to demand that a contract of sale of the flat be concluded.”
39. In a series of decisions (for example, in cases nos. Rev-152/1994-2 of 23 February 1994, Rev-1780/1996-2 of 10 March 1999, Rev-1606/00-2 of 1 October 2003, Rev-998/03-2 of 4 December 2003 and Rev-590/03-2 of 17 December 2003), starting with decision no. Rev-155/1994-2 of 16 February 1994, the Supreme Court interpreted section 99(1) of the Housing Act as follows:
“The fact that a flat that is not being used by its tenant is illegally occupied by a third person does not, per se, make the non-use [of the flat by the tenant] justified. In other words, if the tenant fails to take the appropriate steps to regain possession of the flat within the statutory time-limits set forth in section 99(1) of the Housing Act ..., then the [illegal occupation of the flat by a third person] is not an obstacle to the termination of the specially protected tenancy.”
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-23310
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: POPOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Anatoliy Anatoliyovych Popov, is a Ukrainian national, who was born in 1954 and resides in the town of Chervonograd, Ukraine.
The facts of the case, as submitted by the parties, may be summarised as follows.
Between 1982 and 1997 the applicant worked as a miner at the “Chervonogradska” mining factory No. 2 - the State Open Stock Company. On 4 March 1997, following a medical examination, the applicant was recognised as an invalid due to an occupational disease. By an order of 8 May 1997 by his employer, the applicant was awarded a lump sum of 19382.55 Ukrainian hryvnyas (UAH) and monthly payments of 193.82 UAH. By another order of 31 May 2000, the monthly payments were increased to 283.41 UAH.
The awarded lump sum of 19382.55 UAH was never paid to the applicant and the monthly payments were recovered only in part.
In 1998 the applicant instituted proceedings in the Chervonograd City Court of L’viv Region against his former employer to recover all the payments due to him.
On 10 March 1998, the court found in favour of the applicant (Рiшення Червоноградського мiського суду). The mining company was ordered to pay the applicant 20640.47 UAH. The decision became effective and, on 23 March 1998, was sent for execution to the mining company and later transferred for enforcement to the Chervonograd Bailiffs’ Service (вiддiл Державноï виконавчоï служби Червоноградського мiського управлiння юстицiï).
The part of the judgment on the monthly payment of arrears was fully executed in December 2000 and the related enforcement proceedings were closed on 21 December 2000.
The part of the judgment on the lump sum for the applicant’s disability was fully executed in October 2002, and the enforcement proceedings were closed on 4 October 2002.
1. Civil Code of Ukraine
Under Article 214 of the Civil Code, in case of delay in the fulfilment of its financial obligations, the debtor must, upon a claim of the creditor, pay the amount of the debt, plus any interest payable at an established inflation rate during the default period.
2. Law of Ukraine of 21 April 1999 “on Enforcement Proceedings”
Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under Article 85 of the Law the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department of that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against the Bailiffs’ Service for inadequate enforcement or non-enforcement of a judgement, and to receive compensation.
3. Law of Ukraine of 24 March 1998 “on the State Bailiffs’ Service”
Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, and compensation for damages caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts.


ITEMID: 001-113386
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SZIMA v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) read in the light of Article 11 - (Art. 11) Freedom of assembly and association
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
TEXT: 5. The applicant was born in 1960 and lives in Szekszárd.
6. The applicant, a retired senior police officer, was at the material time the chairperson of Tettrekész Police Trade Union. Between May 2007 and July 2009 she published a number of writings on the Trade Union’s website, which was effectively under her editorial control, concerning outstanding remunerations due to police staff, alleged nepotism and undue political influence in the force, as well as dubious qualifications of senior police staff.
7. The applicant was indicted for instigation to insubordination. On 29 April 2010 the Military Bench of the Budapest Regional Court found her guilty as charged and sentenced her to a fine and demotion. The court did not sustain the applicant’s defence according to which the publication of such allegations belonged to the core of a trade union’s activities. It held that those allegations were capable of causing insubordination and as such were hardly or not at all susceptible to any proof of their veracity.
8. The Regional Court based its judgment inter alia on the following statements published by the applicant on the Internet:
(1) “The staff are regularly required to work overtime without remuneration...” “For years, clearly due allowances have not been paid to low-ranking staff...” “Currently it is almost a prerequisite of becoming a senior police officer to have a political background or to be a relative or a descendant of other senior police officers.” “The senior police officers’ obvious violations of the law set a bad example for the force.” “This is typical of senior police officers: they commit violations and infringements, and then, if we point this out, their reaction is striking back without any principles, suing and accusing of incitement in order to counter our suggestions to renew and clean up the force.” “Why are we wondering at the infringements of police officers if law-breaking and tyrannising senior police officers go unpunished?”
(2) “The uninhibited infringements of the law committed by senior police officers placing themselves above the law go unpunished, and what is more, they are even decorated when, on order of the political authority in power, thousands, tens of thousands of discontented and underprivileged people are beaten by jaded police officers on the streets.” “The ‘Tettrekész’ Police Trade Union commiserates with those Hungarian citizens whose human dignity and human rights were violated and affronted by acts of a prostituted leadership and of our criminal ‘colleagues’ and apologises for that.”
(3) “Police staff are getting more and more underprivileged and humiliated by their own leaders.” “Some senior police officers are active in trying to obtain that average citizens be punished rather than ‘served and protected’ by the police officers on the streets.” “Some well-paid senior police officers unprofessionally incite ordinary citizens and police officers against each other.” “We constantly request the review of the often unprofessional selection procedure of senior police officers, but to no avail, because there is apparently no need for a citizen-friendly police.”
(4) “The senior police officers again demonstrated that they were incapable of upholding the public order in a party-neutral and politically neutral way... It is proven again that the Hungarian Police’s primary objective is first and foremost not to maintain public order for the taxpaying citizens but to uphold the reign of current political leaders who have led Hungary into economic and moral distress.” “The reputation of the Police has reached previously unseen depths because of the acts of the unprofessional and anti-national senior police officers non-complying with the spirit of the police oath.” “It is obvious that the Police’s core leadership is, in an unacceptable way, politically committed to the government of the country and that of the capital.”
(5) “The Head of the National Police Department is demonstrating every day that he is much more able to write obscene poems than to lead the Police; moreover, he is considerably much better in being an obstacle to the work of ‘Tettrekész’ Police Trade Union and in managing a police pop band than in cooperating with a representative trade union of the Police with the highest number of police officer members.” “A chaotic and highly unprofessional leadership is ruining the rest of the Police’s reputation from day to day.”
9. On 8 December 2010 the Military Bench of the Budapest Court of Appeal upheld the applicant’s conviction under section 357 of the Criminal Code. It held that the publication of the documents by the applicant had gone beyond her freedom of expression, given the particularities of the armed body to which she belonged. In the court’s opinion, the views contained in the documents constituted one-sided criticism whose truthfulness could and should not be proven.
10. Act No. XX of 1949 on the Constitution (as in force at the material time) provides as follows:
“(1) In the Republic of Hungary everyone shall have the right to good reputation, the inviolability of his home, and the protection of privacy and personal data.”
“(1) In the Republic of Hungary everyone shall have the right to freedom of expression and to receive and impart information of public interest.”
11. Act no. XLIII of 1996 on the Service of Members of Professional Staff of the Armed Forces provides as follows:
“(1) Members of professional staff of the police force and of the civilian national security services shall not be members of a political party and shall not engage in political activities.
(2) Members of professional staff shall not hold a position in a political party and shall not undertake public appearance in the name or interest of a political party, apart from standing as a candidate in parliamentary, European or municipal elections.
(3) Members of professional staff shall not engage in political activities at the place of service or while performing service tasks.
(4) Except for the case regulated under section 69, members of professional staff shall not criticise, or express an opinion about, a measure or order received unless they do so within the scope of their activities securing rights and interests; moreover, they shall not make statements injurious to the order and discipline of the service and shall not express a private opinion in official proceedings by using media publicity.
(5) Members of professional staff shall not produce or disseminate publications harmful to the order and discipline of the service and shall not place such posters, announcements or emblems anywhere.
(6) Announcements of the professional members’ representation organisations falling within their scope of activities may be published in the locally customary manner. ...”
“(1) For the purposes of this Act, “trade union” shall mean any representation organisation – irrespective of its actual designation – of members of professional staff, whose aim is the representation and protection of the service-related interests of members of professional staff.
(2) The trade union shall be entitled to
a) operate within the armed forces and to involve its members in its activity;
b) provide information for the members of professional staff about their rights and duties affecting their financial, social, cultural, living and service conditions;
c) represent its members vis-à-vis the organisational unit or before state organs in respect of issues affecting their service relationship or – upon authorisation – before a court or other authority or body in respect of issues affecting their living- and service conditions.
(3) The trade union shall have the right to exercise the following rights vis-à-vis the organisational unit:
a) may request information on any issues related to members of professional staff’s service-related financial, social and cultural interests;
b) may communicate its position and opinion on the commander’s (head’s) measure (decision) concerning an issue falling under point a) to the commander in charge of the unit and may initiate consultations in such matters;
c) may, during official working hours or – in justified cases – in service hours check observance of the rules governing service and working conditions – including healthy and safe service performance – and may request information and data on the implementation of those rules, which information and data shall be provided for the trade union. Such checks may not endanger or hinder the performance of the service tasks.
(4) The trade union may draw the attention of the head of the organ in charge of the implementation of the rules to the shortcomings and omissions perceived in the course of the check. If the head fails to take the necessary action in due time, the trade union may institute appropriate proceedings. The body having conducted the proceedings shall be obliged to inform the trade union of the findings of the proceedings.
(5) The rights specified under subsections (3)-(4) shall, in respect of issues falling into the supervisory bodies’ scope of direction, be vested in the representative trade union within the given organisation. ...”
“(1) While performing their service, members of professional staff shall be obliged to execute the orders of a supervisor or the instructions of a superior officer, unless they would commit a criminal offence thereby.
(2) Except for the case specified in subsection (1), members of professional staff may not refuse the execution of an unlawful order. Where, however, the unlawful nature of the order was recognised, it shall immediately be drawn to the superior officer’s attention. If the supervisor upholds his order or the superior officer upholds his instruction, it must – upon request – be given in writing. Liability for the execution of an unlawful order or provision shall be borne solely by the issuer of the order or the instruction. ...”
“(1) Members of professional staff or – upon their authorisation and on their behalf– a representation organisation or an attorney at law may file a service complaint if they find prejudicial a service-related decision, measure or their omission, not regulated under section 195 of this Act.
(2) A service complaint against an employer’s measure in connection with the termination of the service relationship, establishment of conflict of interest, or the unilateral modification of the service relationship by the armed forces affecting the member’s position, shall be filed by the member of professional staff within 15 days from the communication of the employer’s measure. In other cases service complaints shall be filed within the period of limitation applicable to the enforcement of the claim at issue.
(3) The complaint shall be filed with the supervisor who took (omitted to take) the decision and who shall – in case he fails to grant it – transfer the case, together with the case files, to the supervisor-commander without delay. Unless specified otherwise under the law, the supervisor-commander shall decide on the complaint within 30 days and shall communicate his decision to the complainant. This time limit may be extended on one occasion for another 30 days.
(4) No person shall be restricted in exercising his right to file a complaint. No complainant shall suffer any detriment in case his complaint is found ill-founded, except where intentional infringement of discipline, regulatory offence, or a criminal offence has been committed.
(5) The exercise of the right of complaint specified in another law shall not be affected by this Act.”
“(1) A first instance decision related to the service relationship and taken in proceedings conducted within the armed forces may – unless this Act provides otherwise – be challenged by a member of professional staff by filing a complaint ... or an appeal ... against the decision within 15 days from its service.
(2) Appeal against a decision brought in relation with the service obligations of a deceased member of professional staff may be lodged by a close relative.
(3) The complaint or appeal shall – unless this Act provides otherwise – be determined within 30 days by the service supervisor or the organ designated by the minister. This time-limit may be extended on one occasion for another 30 days.”
12. Act No. IV of 1978 on the Criminal Code provides as follows:
“(1) Anyone who incites discontent among soldiers towards a
superior, a command or in general towards the order of service or discipline, is guilty of a misdemeanour punishable by imprisonment of up to one year.
(2) The punishment shall be imprisonment for up to three years if:
a) the incitement is committed in the course of the performance of service;
b) the incitement entails considerable disadvantage for the service or discipline.”
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-84135
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: CISTERCIÁCKÉ OPATSTVÍ VYŠŠÍ BROD v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Cisterciácké opatství Vyšší Brod, is a religious order founded in 1259. It is represented before the Court by Mr Holas, a lawyer practising in Prague.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the owner of nine gothic paintings, known as the “Collection of the Master of Vyšší Brod”. In 1953 the collection was seized by the State and subsequently deposited in the National Gallery in Prague.
On 19 July 1990 law no. 298/1990 on the adjustment of certain property relations of holy orders and congregations and of the Archdiocese of Olomouc (zákon o úpravě některých majetkových vztahů řeholních řádů a kongregací a arcibiskupství olomouckého) (hereafter “the Act”) entered into force. It contained an exhaustive list of property and of church entities entitled to acquire it upon the Act’s entry into force. Neither the collection nor the applicant was listed therein.
On 17 November 1993 the National Gallery recognised the applicant’s property rights to the paintings, but refused to surrender the collection.
On 8 August 1994 the applicant sought to recover the collection by means of a civil action for determination of the ownership of the paintings, brought against the National Gallery.
In its judgment of 25 March 1998 the Prague 1 District Court (obvodní soud) found that, in general, the State had acquired control over the church property in 1949 pursuant to law no. 218/1949. It noted that the Religious Fund (Náboženská matice), a special State agency, was founded by decree no. 351/1950 to administer church property. The court granted the applicant’s action, basing its finding on documentary evidence, including a contract of deposit concluded by the Religious Fund and the National Gallery on 28 January 1953, according to which the former had deposited the collection of paintings with the latter; and an offer by the Religious Fund of 11 September 1957 to donate the collection to the National Gallery, under the terms of which the ownership of the paintings was to be transferred to the State on the day of the acceptance of the offer. The acceptance of the offer by the National Gallery is dated 11 September 1957.
The court held in particular:
“The original ownership rights to the collection are not challenged by [the National Gallery]. What is disputed is the validity of the contract of donation ...
It ensues from the evidence taken ... that the Religious Fund knew who the real owner of the items was and could not, therefore, be in good faith that it was the owner. The transfer of the ownership of the items [by the donation] could not, therefore, have any legal consequences and remained ineffective with regard to [the applicant]. Since no legislation or decision provided for the transfer of the ownership from the plaintiff to the State or to any other person, [the applicant] is the owner ... ”
The court further stated that the legislation on restitution, in particular the Act, was not applicable to the present case, as it applied only to situations where ownership of property had been transferred to the State, not to situations where such a transfer was not effected. In the latter case, the State seized and held property without acquiring ownership of it. The owner of such property was therefore eligible to claim that it be surrendered to him by using general civil-law actions intended to protect owners’ rights in respect of any third person interfering with their property rights. The court concluded that the Act did not preclude the applicant’s standing to have recourse to this procedure to defend its property rights against the National Gallery.
On 28 July 1998 the Prague Municipal Court (městský soud) upheld this judgment, ruling in particular:
“[R]egard must be had to the Supreme Court’s judgment of 29 May 1997 no. 3 Cdon 404/1996 ... according to which the church property was ... seized by the State using a set of practices typically used to deprive holy orders and congregations of their property ... The [A]ct applies .... in particular to these practices ... It applies at least in so far as it governs the restitution of church property taken away from its owners by the State pursuant to these practices. ...If [the Act] in its enumerative list provided for a remedy for injustices only in respect of certain seized property [seized in a certain way], and not in respect of other property, even if the latter was seized in the same way as the former (by donation by the Religious Fund), then – as [the Act] is lex specialis – the logical conclusion is that a person otherwise entitled (to the property listed therein), does not have standing to claim property rights to the property which is not listed there. ... The Prague High Court took a similar approach in its decision of 30 November 1995 no. 7 Cdo 65/94. ”
The court continued by adopting a different approach, stating:
“[The Municipal] court dissented with this opinion, e.g. in its judgment of 3 February 1997 no. 20 Co 580/96-82, in which it found that [the Act] is a specific instrument atypical of legislation on restitution, and in so far as it does not interfere with civil law..., [for instance in the area of] invalidity of legal acts and of conditions for claiming it before courts, the general law [i.e. civil law] remains unaffected ...”
The court concluded that the case-law of the higher courts, to which it referred, would lead to the Act’s interpretation impairing the protection of the property rights of those owners who were not in possession of their property. In its view, this would be contrary to the constitutional law.
The National Gallery filed an appeal on points of law (dovolání) with the Supreme Court (Nejvyšší soud) which, on 29 June 2000, found that the lower courts had not applied the Act correctly and therefore quashed their judgments. Referring to its case-law, the court reiterated that the Act had to be interpreted as part of the legislation on restitution which was lex specialis in respect of the civil law and was thus to have precedence over the civil law. It stated:
“The court cannot accept the position adopted by the appellate court. There is no doubt that the Act forms by its nature a part of the legislation on restitution ....
It is not acceptable to reduce [the application of the Act] in cases where the property was seized in accordance with the law then in force...”
The Supreme Court supported this conclusion by stating that the restitution legislation was drawn up by the State to mitigate the injustice caused by communist rule in Czechoslovakia in the area of property rights. When adopting a suitable legislative technique for the restitution of church property provided for by the Act, the legislator opted to include an exhaustive list of property to be restored and added an enumerative index of church entities entitled thereto. In the court’s view, it was therefore irrelevant in terms of the restitution of this property whether the State had seized it in accordance with or contrary to the law applicable at the time of seizure.
In a judgment of 15 November 2000 the District Court, having been bound by the Supreme Court’s opinion, dismissed the applicant’s action without taking any further evidence.
On 24 September 2001 the Municipal Court upheld that judgment.
The applicant appealed on points of law before the Supreme Court, which rejected its appeal on 28 November 2002.
On 24 February 2003 the applicant filed a constitutional appeal (ústavní stížnost) contending that the lower courts had failed to protect its property rights and that the principle of equality of arms had not been respected in the proceedings before the Supreme Court, as the appeal on points law submitted by the National Gallery had been admitted for examination on the merits while its own appeal had not. It further contested the lack of assessment of the facts by the District Court and Municipal Court in the proceedings following the judgment of the Supreme Court.
On 21 March 2006 the Second Chamber of the Constitutional Court (Druhý senát Ústavního soudu) rejected the applicant’s constitutional appeal, finding in particular:
“In respect of the [the applicant’s] arguments concerning ... [the Act], the Constitutional Court referred to the opinion of its Plenary Session of 1 November 2005 no. Pl. ÚS – st. 22/05 published [in the Official Gazette] under no. 13/2006, in which it was found that the Act forms part of the legislation on restitution and constitutes an obstacle to the application of the general law. Thus, the Second Chamber, being bound by the cited opinion ..., considered the reasoning of the Supreme Court ... challenged by the applicant to be in conformity with the constitutional law.”
Under Article 126 (1), an owner is entitled to seek protection from a person interfering with his property rights; in particular, the owner is entitled to claim that his/her property be surrendered by a person possessing it contrary to law.
Code of Civil Procedure (law no. 99/1963)
Under Article 80(c) an individual may bring an action seeking a judicial decision determining the existence or non-existence of a certain right if there is a compelling legal interest in such identification.
Under Article 236 (1) decisions in force adopted by an appellate court may be challenged by an appeal on points of law.
Law no. 298/1990 on the adjustment of certain property relations of holy orders and congregations and of the Archdiocese of Olomouc (“the Act”)
The Preamble states that the purpose of the Act is to provide for the redress of injustices which were caused to holy orders and congregations in the 1950s, especially by unlawful deprivation of their immovable property.
Under section 1(1) immovable property specified in Appendix no. 1 is declared to be the property of the respective holy orders and congregations listed in the Appendixes on the day of the Act’s entry into force. Section 1(2) provides that on that day, immovable property specified in Appendix no. 2 is declared to be the property of the Archdiocese of Olomouc. Under section 1(4) movable property which was on 10 April 1950 located in immovable property specified in Appendixes no. 1, 2 and 3 is declared to be, upon the Act’s entry into force, the property of the respective orders, congregations or the Archdiocese of Olomouc, provided that such property exists and can be located.
Opinion no. Pl. ÚS 22/05 of 1 November 2005 (published in the Official Gazette under no. 13/2006)
In this opinion the Constitutional Court took the view that the Act must be considered as a part of the legislation on restitution. Therefore, it bars the application of the general law.
According to the Supreme Court’s case-law (for example, judgments no. 3 Cdon 647/96 of 30 May 1996, no. 3 Cdon 404/96 of 23 February 1999, no. 2 Cdon 669/97 of 25 February 1999, no. 20 Cdo 1601/98 of 30 May 2000), an entity entitled, pursuant to the Act, to the property listed in the annexes thereto does not have a standing to claim property rights to its property seized by the State which is not listed in the annexes of that Act.
In its judgment of 3 February 1997 no. 20 Co 580/96-82 the Municipal Court ruled that the Act is a specific instrument atypical of the restitution legislation, and in so far as it does not interfere with civil law, for instance in the area of the invalidity of legal acts and conditions for its vindication, the general-law (namely, civil-law) regulation remains unaffected.
1. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained that the national courts had refused to examine the merits of its action and to uphold its claim after the quashing judgment of the Supreme Court, although the national courts establishing the facts of the case had found that it had been, and had never ceased to be, the owner of the paintings. Consequently, the applicant had been in an absurd situation, having been the acknowledged owner of the property in question, but unable to enforce its property rights vis-à-vis the National Gallery.
2. The applicant further complained under Article 6 § 1 of the Convention that, after its quashing judgment, by its binding guidelines the Supreme Court had prevented the lower national courts from assessing the facts and from applying the relevant law. The applicant had thus been denied a fair trial.
The applicant finally complained of an impairment of the principle of equality of arms, as its appeal on points of law had been declared inadmissible by the Supreme Court, while the appeal based on the same ground submitted by the defendant had been granted.