ITEMID: 001-93504
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BUBIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1945 and lives in Povlja on Brač island.
5. The applicant was an employee of a company, Ceming, in Solin. Sometime in 1988 another employee of the same company, Z.G., moved into a flat in Split, Pujanke, owned by the company Ceming and measuring 77.38 square metres.
6. On 6 June 1988 the company Ceming as the owner of the flat instituted administrative proceedings seeking Z.G.’s eviction on the ground that Z.G. had broken into the flat and moved in without any legal basis. The relevant part of the eviction request reads:
“Z.G. moved into the flat without any authorisation, without a contract on the use of the flat or any other valid basis for entering the flat, by breaking the door ...”
7. A decision ordering the eviction of Z.G. was issued on 27 June 1988 by the Split Municipality, Committee for Urbanism, Construction, Property and Housing (“the Split Housing Committee”). The parties were, however, not able to submit a copy of this decision because the case file had been lost. It was referred to in the submissions filed by Ceming with the Split State Attorney’s Office on 6 September 1989. The relevant part of these submissions reads:
“Z.G. moved into the flat without any authorisation, without a contract on the use of the flat or any other valid basis for entering the flat, by breaking the door ...
In view of the above [Ceming] instituted administrative proceedings with the Split Municipality, Committee for Urbanism, Construction, Property and Housing, and that Committee ordered the eviction of Z.G. from the flat in question in its decision of 27 June 1988 ...”
8. On 8 May 1989 the company Ceming allocated to Z.G. another flat in Split, in the same apartment building, measuring 54,18 square metres.
9. The decision of 8 May 1989 was annulled as illegal on 8 January 1990 by the Split Employment Court. It found that Z.G. had a house where he lived with his family. The relevant part of this decision reads:
“According to the statement of participant Z.G. and a report of the on-site visit carried out by the Commission of the respondent this court has established that the participant, together with his family, lives in a one-storey family house located in Klis. According to Z.G, the ground floor comprises two rooms, a kitchen, bathroom and toilet, measuring in all fifty square metres while the first floor, measuring about forty square metres, comprises two more rooms and an additional space. It is undisputed that the first floor is in the exclusive ownership of Z.G., while the ground floor, again according to Z.G., is in his co-ownership in 5/8 together with his mother in 1/8, his brother in 1/8 and the children of his late brother in 1/8. The whole building is in sole and undisturbed possession of Z.G, his spouse, one son and Z.G.’s mother, while his other son rents a flat in Kučine. ...”
10. On 6 December 1990 the company Ceming allocated to the applicant and his family (his wife and three children) a flat in Split, Pujanke, the same one Z.G. had already moved into, consisting of three bedrooms, a living room, a kitchen with a dining room, storage, a bathroom with toilet and a hallway, and measuring 77.38 square metres, by which the applicant acquired a specially protected tenancy of the flat. A note on the allocation decision stated that it became final on 21 September 1990. The flat was publicly owned and the said company had the right to dispose of it. The applicant and his family could not, however, move into the flat because Z.G. occupied it (see § 5 above).
11. On 28 December 1990 Ceming sought enforcement of the decision of 27 June 1988, namely that the eviction of Z.G. be carried out (see § 7 above). On 15 January 1991 the Split Housing Committee issued an enforcement order against Z.G. on the basis of its decision of 27 June 1988, after which the administrative authorities unsuccessfully attempted on eleven occasions to enforce the eviction order between January 1991 and December 1994.
12. On 3 June 1991 Parliament enacted the Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo), which regulated the sale of publicly-owned flats previously let under protected tenancies, giving the right to holders of such tenancies of publicly-owned flats to purchase them from the provider of the flat under favourable conditions. All publicly-owned flats became the property of the municipalities in which they were situated.
13. On an unspecified date in 1991 the applicant brought a civil action in the Split Municipal Court for Z.G.’s eviction. The applicant argued that Z.G. had no title to occupy the flat, while the applicant had been granted a specially protected tenancy of the flat. On 18 July 1991 the applicant’s claim was allowed and the court ordered Z.G. to vacate the flat within eight days of the date when the decision became final. The relevant part reads:
“The decision granting the flat to the plaintiff was adopted on 3 December 1990 and it is therefore clear that it could not have become final on 20 September 1990, as is noted on it. ... It is obviously a mistake. However, the fact is that that decision had meanwhile become final because if not, the plaintiff, as a tenant - a holder of a specially protected tenancy - would not have been issued with a decision fixing the amount of the rent for the flat ...
The defendant is using the flat in question without any right to do so. The results of the proceedings show that the flat in question has never been allocated for his use ... Therefore, he has no legal basis to live in the flat in question ...”
However, the judgment was quashed and the case remitted to the Split Municipal Court for a new trial. On 16 July 1993 that court found that it had no jurisdiction in the matter because the applicant had never moved into the flat. This decision was upheld by the Split County Court (Županijski sud u Splitu) on 22 October 1993.
14. Meanwhile, in August 1992 Z.G. brought a civil action against the applicant in the Split Municipal Court, seeking the annulment of the decision of 6 December 1990 by which the applicant had been granted the specially protected tenancy of the flat in question. On an unspecified date Z.G. died and his wife, A.G., took over the proceedings.
15. Under the Protected Tenancies (Sale to Occupier) Act the applicant as the buyer and Split Municipality as the seller concluded a contract for the sale of the said flat on 18 October 1994. A copy of the contract was submitted for approval by the State Attorney’s Office. On 21 October 1994 approval was given. It also stated that that approval could not preclude the State Attorney from seeking annulment of the contract.
16. After the applicant had become the owner of the flat in 1994, he became entitled to participate in the administrative proceedings concerning the eviction of Z.G. (see § 11 above). On 4 November 1994 the applicant asked for the eviction order to be carried out. The eviction was scheduled for 19 December 1994 but was not carried out.
17. On 11 January 1995 the Split State Attorney’s Office brought a civil action against the applicant and Split Municipality in the Split Municipal Court, seeking annulment of the contract of sale in question. They argued that the applicant had never obtained a protected tenancy of the flat because he had never moved into it.
18. On 27 January 1997 the Split Housing Committee discontinued the enforcement proceedings and annulled the enforcement order of 15 January 1991 (see § 11 above), finding that pursuant to the Constitutional Court’s decision of 20 November 1996 by which certain provisions of the Housing Act were revoked, it no longer had jurisdiction in the matter.
19. As regards the civil action brought by the Split State Attorney’s Office (see § 17 above), the Municipal Court held in favour of the latter and in its judgment of 10 July 2002 annulled the contract of sale between the applicant and the Split Municipality (see § 15 above). It held that the conditions for acquiring protected tenancy were that there should exist a final and enforceable decision on granting such a tenancy and that the holder of the protected tenancy had moved into the flat concerned. It found that the stamped certificate stating that the decision of 6 December 1990, granting the applicant protected tenancy on the flat at issue, had become final, was obviously erroneous since it bore the date 21 September 1990. It was impossible for a decision of 6 December 1990 to become final three months before it was issued. It concluded as follows:
“... this court considers that the first defendant has never moved into the flat in question and therefore according to the relevant legal provisions has never acquired the status of a holder of a specially protected tenancy. He could not therefore have purchased the flat in question under the provisions of the Specially Protected Tenancy (Sale to Occupier) Act. For that reason this court has not addressed the preliminary question whether the decision on granting the specially protected tenancy had become final, because the criterion for acquiring a specially protected tenancy, namely that the first defendant has moved into the flat, has not been satisfied and thus the first defendant has not acquired the status of a holder of a specially protected tenancy.”
20. The judgment was upheld by the Split County Court on 27 August 2004. The relevant part of the judgment reads:
“The findings of the first-instance court that the sale contract concluded on 18 October 1994 between the defendants was null and void are accepted as correct by this court....
The first-instance court correctly established the following relevant facts:
- that the first defendant had been granted the right to occupy the flat in question by a decision of Ceming, ... of 6 December 1990;
- that the first defendant had never moved into the flat on the basis of a final decision.
On the basis of the above facts, which were correctly and fully established, the first-instance court correctly concluded that the first defendant had never acquired the specially protected tenancy of the flat in question because, under section 59 § 1 of the Housing Act (Official Gazette nos. 51/85 – 70/93,...), the specially protected tenancy is acquired on the day of entering the flat on the basis of a final decision to that effect.
Since the first defendant has not acquired the specially protected tenancy, he does not have the right under section 6 § 1 of the Specially Protected Tenancy (Sale to Occupier) Act (Official Gazette nos. 43/92 – 58/95) to purchase the flat. Therefore, the conclusion of the first-instance court that the sale contract of 18 October 1994 was null and void, under section 103 § 1 of the Civil Obligations Act (Official Gazette nos. 53/91 – 112/99), is correct.
...
It is undisputed between the parties to the proceedings that the first defendant was granted the flat in question by a decision ... of 6 December 1990 and that it bears a certified stamp that it had become final on 21 September 1990.
The conclusion of the first-instance court that the above decision could not have become final before it had been issued is correct.
...
The first defendant, in his evidence given on 17 October 2000, claimed that he had no possession of the flat in question since September 1990 which confirms that the decision of the first-instance court is correct because, even assuming that he actually had possession of the flat in September 1990, such possession was not based on the final decision granting him that flat for his use.”
21. In his subsequent constitutional complaint the applicant argued that the decision of 6 December 1990 had in fact become final on 6 January 1991 and that he had been prevented from entering the flat because Z.G. had already occupied it illegally in 1988. He also relied on the Supreme Court’s practice that a specially protected tenancy could not be lost where the holder of such a tenancy had failed to enter the flat because it had already been illegally occupied by a third person. It was dismissed by the Constitutional Court (Ustavni sud Republike Hrvatske) on 26 October 2006 as ill-founded.
22. In the civil proceedings brought by Z.G. in August 1992 (see § 14 above), on 30 April 2007 the Split Municipal Court declared the decision of 6 December 1990 (granting the specially protected tenancy to the applicant) null and void on the ground that it had not been adopted according to the procedure prescribed for granting a specially protected tenancy. This judgment was upheld by the Split County Court on 6 February 2008 and thus became final.
23. The relevant provisions of the Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993) read as follows:
“A protected tenancy shall be acquired on the day of entering the flat ...”
“A person who does not enter the flat [of which he or she is granted a specially protected tenancy] without a justified reason within thirty days of the day when he or she is granted occupancy shall lose the right to occupy the flat [granted to him or her].”
24. The Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/1991 with further amendments - “the Act”) regulated the conditions of sale of flats let under protected tenancies.
Section 1 of the Act gave the right to the holders of protected tenancies of publicly-owned flats to purchase such flats under favourable conditions, provided that each holder bought only one flat.
Section 21 obliged a seller to submit the sale contract for approval by the competent State Attorney’s Office within eight days.
25. The relevant part of the Obligations Act (Zakon o obveznim odnsima, Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/99), as then in force, read:
“(1) Each contractual obligation shall have a permissible [legal] basis [causa].
(2)The basis is not permissible if it contravenes the Constitution, peremptory norms or morals.
...”
“Where there is no [legal] basis or where it is not permissible, the contract is null and void.”
“The right to plead nullity shall be inextinguishable.”
26. The relevant parts of the State Attorney’s Office Act (Zakon o državnom odvjetništvu, Official Gazette no. 75/1995) read:
“...
... the competent State Attorney’s Office shall ... seek the annulment of a contract ... which contravenes peremptory norms.”
27. The relevant part of decision no. Rev 1255/00-2 of 17 October 2000 reads:
“... the lower courts lost sight of what they had established, namely that eight days after the defendants B. and Lj.B. had obtained a decision granting them occupancy rights, a certain D.M. had moved into the flat without legal basis and had thus prevented the defendants B. from moving into the flat themselves.
Against this background it cannot be accepted that the defendants had not acquired the specially protected tenancy and that thus they were not entitled to purchase the flat in question under section 6 of the Protected Tenancies (Sale to Occupier) Act ... On the contrary, they were entitled to purchase the flat as tenants.
...”
NON_VIOLATED_ARTICLES: P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-23908
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: DENISOV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Anatoliy Aleksandrovich Denisov, is a Russian national, who was born in 1950 and lives in Gatchina.
On 20 August 2002 the applicant brought proceedings against a local authority alleging that the authority had not ensured a good upkeep of his house.
On 30 September 2002 the Gatchina Town Court refused to initiate the proceedings because the applicant had not paid a court fee.
On 13 November 2002 the Leningrad Regional Court quashed this decision on appeal as insufficiently reasoned.
On 20 November 2002 the Gatchina Town Court again demanded the applicant to accompany his action with a court fee.
On 25 December 2002 the Leningrad Regional Court upheld this decision on appeal.
On an unspecified date the applicant lodged a supervisory-review complaint against these decisions.
On 11 April 2003 a judge of the Leningrad Regional Court refused to lodge an application for supervisory review.
On 10 September 2003 the acting President of the Leningrad Regional Court upheld the decisions, including that of 11 April 2003.
On 14 November 2002 a new Code of Civil Procedure (“CCivP”) was enacted to replace that of 1964. The CCivP entered into force on 1 February 2003. Section 4 of the CCivP defines the procedures by which judicial acts which have come into force may be re-examined. Chapter 41 defines the supervisory-review procedure:
“1. Judicial acts which have come into force ... may be appealed against ... in a supervisory-review court by parties to litigation and other persons if their rights and legal interests are affected by the judicial acts.
2. Judicial acts may be appealed against in a supervisory-review court one year after they come into force.
3. Where a public prosecutor participated in litigation, officials of the prosecutor's office ... shall have the right to appeal to a supervisory-review court against judicial acts which have come into force.”
“2. A [supervisory-review application] against:
i) ... a cassation judgment of ... a Regional Court; ... a judgment of a District Court ... [shall be brought] before the Presidium of a ... Regional Court...;
ii) ... a cassation judgment of ... a Regional Court; ... a judgment of a District Court ... [shall be brought] before the Civil Section of the Supreme Court, if the Presidium of a ... Regional Court has dismissed applications against these judgments;...
3. [Supervisory-review complaints] against supervisory-review judgments of the Civil Chamber of the Supreme Court ... shall be brought to the Presidium of the Supreme Court if such judgments disrupt the unity of court jurisprudence.”
“2. After examination of a [supervisory-review application] a judge shall decide as follows: either
i) to obtain the case-file, if there are doubts as to the lawfulness of the judicial act; or,
ii) not to obtain the case-file, if under the federal law the reasons of the [supervisory-review application] cannot entail the quashing of the judicial act.
6. The President of the [competent] court may overrule the judge's decision not to obtain the case-file. In this case the President of the relevant court ... shall give his own decision to obtain the case-file.”
“2. After examination of the case obtained by the supervisory-review court a judge shall decide as follows: either
i) not to pass the case for consideration on the merits by the supervisory-review court; or,
ii) to pass the case for examination of the [supervisory-review application] by the supervisory-review court.”
“2. The President of the [competent] court may overrule the judge's decision not to pass the case for consideration on the merits by the supervisory-review court. In this case the President of the relevant court ... shall give his own decision to pass the case for consideration on the merits by the supervisory-review court.”
“3. The court hearing may be attended by parties to litigation, their counsel, other persons who have lodged the supervisory-review application ... if their rights and legal interests are directly affected by the judicial act appealed against...
[A representative of a prosecutor's office] may attend the hearing if a public prosecutor participated in the case.
5. If the persons listed in p. 3 of the present Article appear in the court hearing, they may make oral submissions on the case...”
“The grounds for quashing or varying judicial acts of lower courts in supervisory-review proceedings shall be significant violations of substantive or procedural law.”
“The President or a Deputy President of the Supreme Court may lodge with the Presidium of the Supreme Court a reasoned application for supervisory-review of judicial acts to ensure the unity of court jurisprudence and legality.”
“1. After examination of a case under the supervisory-review procedure, a court may:
i) uphold the decision of the court of first, second or supervisory-review instance and dismiss the [supervisory-review application];
ii) quash the decision of the court of first, second or supervisory-review instance in full or in part and remit the case for a fresh examination;
iii) quash the decision of the court of first, second or supervisory-review instance in full or in part and shelve the case or close the proceedings;
iv) leave in force one of judicial acts passed in the case;
v) quash or vary the decision of the court of first, second or supervisory-review instance and pass a new decision without remitting the case for a fresh examination if there has been a mistake in the application and interpretation of substantive law...”


ITEMID: 001-96213
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KOOTTUMMEL v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed
JUDGES: Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant who was born in India lives in Lustenau. She runs an Indian restaurant with Ayurvedic cuisine in Lustenau.
6. On 1 October 2004 she lodged a request with the Dornbirn Labour Market Service (Arbeitsmarktservice – LMS) for the grant of an employment permit for an Ayurvedic chef from the South of India as a key worker (Schlüsselarbeitskraft).
7. On 2 November 2004 the Dornbirn LMS refused the request in accordance with section 2(5) of the Aliens' Employment Act (Ausländerbeschäftigungsgesetz). It found that the chef did not fulfil the conditions to be a key worker as defined in section 2(5).
8. The applicant appealed against the refusal to the Vorarlberg LMS on 17 November 2004. She maintained in substance that the authority had failed to assess properly the evidence.
9. On 15 February 2005 the Vorarlberg LMS dismissed the applicant's appeal. It held that the submitted documents did not sufficiently prove her contention that the proposed chef fulfilled the conditions required to be a key worker or that the requested employment would secure existing jobs or create new jobs, as required by section 2(5) of the Aliens' Employment Act. His professional skills could not be seen as specific and extraordinary since any chef could with further training obtain a certificate in Ayurvedic cuisine.
10. The applicant filed a complaint with the Administrative Court on 31 March 2005 and requested an oral hearing. In her appeal the applicant maintained that the authorities had failed to assess the evidence properly and give appropriate reasons. Had they done so they should have concluded that the person to be employed qualified as a key worker. On 7 June 2005 the Voralberg LMS submitted its comments.
11. On 24 April 2006 the Administrative Court dismissed the applicant's complaint. In accordance with section 39(2) of the Administrative Court Act (Verwaltungsgerichtshofgesetz) it also dismissed the applicant's request for an oral hearing as it found that it would not be likely to contribute to the clarification of the case. The decision was served on the applicant's counsel on 6 June 2006.
12. The Employment of Foreigners Act (Ausländerbeschäftigungs-gesetz) regulates a foreigner's access to the Austrian labour market. Section 2 (5) of this act, as in force at the relevant time, reads as follows:
“(5) Key workers are foreigners who have particular training or specific know- how and professional experience which are requested on the domestic labour market and who would receive for their employment a monthly gross salary of at least 60% of the maximum contribution level under Section 108 para. 3 of the General Social Security Act. Moreover, at least one of the following conditions must be fulfilled:
1. the intended employment goes beyond the interest of the employing company and is of specific relevance for the region or the sector of the labour market concerned or
2. the intended employment fosters the creation of new employments and ensures the protection of existing employments or
3. the foreigner has a crucial influence on the management of the company (executive managerial post) or
4. the intended employment leads to a transfer of capital investment to Austria or
5. the foreigner is a university or polytechnics graduate or holds a certificate proving that he has accomplished a specially recognised training.”
Further relevant provisions of that act can be found in the judgments in the cases of Jurisic and Collegium Mehrerau v. Austria (no. 62539/00, 27 July 2007) and Coorplan-Jenni GmbH and Hascic v. Austria (no. 10523/02, 27 July 2006).
13. Section 39(1) of the Administrative Court Act requires the Administrative Court to hold a hearing after its preliminary investigation of the case where the complainant has requested a hearing within the time-limit. Section 39(2) (6) provides, however, that, notwithstanding such a request, the Administrative Court may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings that an oral hearing would not be likely to contribute to the clarification of the case and that the lack of a hearing would not be in breach of Article 6 of the Convention.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87402
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GIGOLASHVILI v. GEORGIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1966 and lives in Rustavi.
6. On 6 December 2003 the applicant was arrested by the police and charged with the offence of the unlawful possession of drugs.
7. On 8 December 2003 the Vake-Saburtalo District Court in Tbilisi remanded the applicant in custody for three months. The court endorsed the prosecutor’s argument that, in view of the applicant’s prior conviction for which he had been on probation, there was a reasonable suspicion that he might abscond pending the new set of proceedings.
8. On 19 February 2004 the prosecution brought against the applicant and two other persons additional charges of conspiracy to commit the unlawful possession of arms, robbery and murder.
9. On 4 March 2004 the Tbilisi Regional Court extended the applicant’s detention until 5 May 2004.
10. On 29 April 2004 the investigator in charge of the case, notifying the applicant and two other accused persons that the investigation had been terminated, invited them to study the case materials. The applicant contested the termination of the investigation, requesting that additional witnesses be examined. In a decision of 29 April 2004, the investigator, reasoning that the applicant could have made such a request earlier, dismissed it as an attempt to prolong the proceedings.
11. On 5 May 2004 the authorised period of the applicant’s detention expired without the court ordering its extension.
12. On 13 May 2004 the applicant complained to the competent prosecution authority that his detention had been unlawful since 5 May 2004. He also challenged the termination of the investigation as premature.
13. In a decision of 16 May 2004, the Vake-Saburtalo district prosecutor dismissed the applicant’s complaint of 13 May 2004 as unsubstantiated. As regards the alleged unlawfulness of detention since 5 May 2004, the prosecutor reasoned that the time during which the accused studied case materials did not, under the relevant procedural law, count towards the detention term. In so far as the applicant and his representatives had started studying the case materials on 30 April 2004, this fact being proved by the relevant records of the investigator, the applicant’s detention thereafter could not be said to be unlawful.
14. On 8 July 2004 the Vake-Saburtalo district prosecutor sent the criminal case, along with the bill of indictment, to the Supreme Court of Georgia for trial. According to the indictment, the three accused persons and their lawyers had been examining the case materials between 30 April and 7 July 2004.
15. On 26 October 2004 the applicant complained to the Supreme Court, reiterating, inter alia, that no judicial decision had authorised his detention since 5 May 2004. As to the prosecutor’s reasoning that the time spent on studying the case materials had not counted towards the detention term, the applicant, relying on numerous factual details, first submitted that his lawyer had fully examined the file on 30 April and 1 May 2004, in two and a half hours. He further argued that, even if the investigator’s formal records were to be trusted, then the examination of the file should be considered to have ended on 28 June 2004. Since his case had been referred for trial only on 8 July 2004, the applicant claimed to have been kept in unlawful detention for at least ten days. In the light of the above arguments, he requested to be released immediately.
16. On 27 October 2004 the Supreme Court, having examined the admissibility of the case, decided to commit the applicant and the two others for trial under Article 417, 425 and 428 of the Code of Criminal Procedure (“the CCP”). Without replying to the applicant’s allegations about the unlawfulness of his pre-trial detention, the court upheld the restraint measure on the basis of the “nature of the charges” and the inability to conduct, at the admissibility stage, a comprehensive judicial assessment of his arguments for release.
17. As disclosed by the case file, the Supreme Court relinquished, on 6 May 2005, jurisdiction over the criminal proceedings in favour of the Tbilisi Regional Court. On 31 May 2005 the applicant complained about the unlawfulness of his detention before the latter, reiterating his previous arguments.
18. On 20 July 2005 the Tbilisi Regional Court dismissed the applicant’ April 2004, immediately after the termination of the investigation on 29 April 2004. This process lasted until 7 July 2004, one day before the case was sent by the prosecutor for trial. Reiterating that, pursuant to Article 406 § 4 of the CCP, the period of examination of the case file did not constitute part of the authorised detention term, the Regional Court concluded that the applicant’s detention between 30 April and 7 July 2004 should not be taken into account.
19. In an order of 5 July 2006, the President of the Supreme Court noted that, the applicant’s criminal case file having been sent for trial on 8 July 2004, the permissible term of twenty-four months for the defendant’s pre-trial detention under Article 680(4) § 9 of the CCP would expire on 8 July 2006. Using his prerogative under the same Article to extend, in exceptional circumstances, the detention beyond that term, the President remanded the applicant in custody until 8 November 2006.
20. In a verdict of 22 December 2006 of the Tbilisi Regional Court, the applicant was convicted of the aforementioned offences and sentenced to twelve years in prison. The period of imprisonment started to run, according to the verdict, from the date of the applicant’s arrest on 6 December 2003.
Article 406 § 4 – “Time spent on studying the case materials”
“The time spent by the accused (defendant) and his or her representative on studying the criminal case materials shall not be counted towards the period of detention prescribed by law.”
“1. Where there is a sufficient basis for hearing the case, the judge (court), without prejudging the merits of the case, shall commit the accused for trial...
3. During the admissibility hearing, in addition to deciding whether to commit the accused for trial..., the judge (court) shall decide whether to impose a measure of restraint on the accused.”
“The judge (court) shall decide whether to commit the accused for trial within fourteen days or, in complicated cases, within a month of the date of delivery of a final judgment on the last criminal case registered with the same judge (court).”
The CCP distinguished between two periods of detention: detention “pending investigation”, whilst the case was investigated, and detention “pending trial”, whilst the case was tried by a court. Although there was no difference in practice between the two periods of detention, the calculation of the time-limits was different.
Incorporated into the Code by an Amendment of 25 March 2005, Article 680(4) contained provisional rules regulating the time-limits of the above-mentioned periods of detention. Pursuant to Articles 680(4) § 1, those provisional rules, particularly that contained in Article 680(4) § 9, were to remain valid until the entry into force of Article 162, the latter provision introducing shorter time-limits of detention.
Article 681 § 9 stated that Article 162 would enter into force on 1 January 2006.
Pursuant to Article 680(4) § 9, if only two levels of jurisdiction were involved, the permitted term of detention “pending trial” was twenty-four months. However, in “exceptional circumstances”, the President of the Supreme Court could extend that term to a maximum of thirty months.
An amendment of 28 April 2006, which entered into force on 13 May 2006, further revised Article 162, by reducing the maximum permissible term of detention pending “investigation” and “trial”, to nine months, both periods taken together. Simultaneously, Article 681 § 2 was amended to bring Article 162 into force on 1 January 2007. Consequently, the provisional rules on the detention time-limits contained in Article 680(4) also remained in force until 1 January 2007 (see Article 680(4) § 1 above).
The complainant challenged the constitutionality of Article 406 § 4 of the CCP. On 16 December 2003 the Constitutional Court declared that the provision was not only unconstitutional but also incompatible with Article 5 § 1 of the Convention. However, the Constitutional Court ruled in the operative part of its judgment that, in order “to avoid the creation of difficulties for the investigative authorities”, the enforcement of its judgment by the annulment of the impugned provision should be delayed until 25 September 2004.
Pursuant to section 23 § 1, if the Constitutional Court found the challenged legislative provision to be unconstitutional, that provision should be considered null and void from the moment the relevant judgment was pronounced.
Under Article 25 § 3, the Constitutional Court’s judgment should be enforced immediately after its announcement, unless another date was fixed.
VIOLATED_ARTICLES: 5


ITEMID: 001-79648
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BELEVITSKIY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of Art. 3;Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Peer Lorenzen
TEXT: 6. The applicant was born in 1981 and lives in Moscow.
7. On 11 October 2000, at the Luzhniki market, the applicant was arrested on suspicion of drug-dealing by the operative officers I. and K. of the Ramenskiy District police station of Moscow. He was identified by a Mr E. as the person who had sold him heroin. The exact time of the arrest was disputed by the parties. The applicant maintained that he had been apprehended at about noon, the Government claimed that it had happened at 4.30 p.m.
8. At 6.50 p.m. the applicant was searched at the police station by the police officer R. in the presence of two lay witnesses (ponyatye). A sachet containing 0.004 g of heroin was found on him.
9. A record of the applicant's arrest was drawn up at 11.50 a.m. on the following day. On the same day the investigator ordered the applicant's placement in custody. The decision did not specify the duration of the detention period (see paragraph 51 below for relevant legal provisions).
10. On an unspecified date a confrontation between the applicant and Mr E. was arranged. Counsel for the applicant was in attendance. Mr E. confirmed his statement that he had bought heroin from the applicant.
11. The applicant alleged that he had been beaten by police officers at the Ramenskiy District police station on 11 October 2000. The Government denied that allegation.
12. It follows from the medical certificate of 24 October 2000 issued by the trauma department of clinic no. 8 that on 13 October 2000 at 3.10 p.m. the applicant was brought for a medical examination by the Ramenskiy District police officers. The medical examination revealed “a haematoma in the area of fourth to sixth ribs on the left side, a haematoma in the left side of the lumbar region, an abrasion in the area of the left knee joint”.
13. On 18 December 2000 a senior assistant to the Nikulinskiy District prosecutor's office issued a decision not to institute criminal proceedings in connection with the applicant's claim of ill-treatment. The reasoning of the one-page decision was founded on the statements by the police officers R., I. and K. who had taken part in the applicant's arrest and search. They denied that they had exercised any mental or physical pressure on the applicant.
14. Counsel for the applicant contested the decision of 18 December 2000 before the deputy Moscow Town prosecutor. They submitted that the medical certificate of 24 October 2000 had been left outside the scope of the inquiry. The Moscow Town prosecutor ordered an additional inquiry.
15. On 29 March 2001 the senior assistant issued a further decision not to institute criminal proceedings. The entire reasoning read as follows:
“During the additional inquiry, the Nikulinskiy District prosecutor's office examined the medical certificate which indicated that on 13 October 2000 [the applicant] had been brought to the medical unit where bodily injuries... had been recorded.
It follows from the certificate issued by the head of the Krylatskoye District police station Mr Z. that the applicant did not have any health complaints on his placement in the investigations ward, of which he made a handwritten note in the medical register.
Moreover, during the additional questioning of [the applicant] by the assistant prosecutor that took place before his placement in custody in the presence of the advocate [the name is unreadable], [the applicant] clarified that the police officers had not exercised pressure on him and that he had given the confession statement voluntarily. He had no claims against the police officers.
Having examined the collected materials, I find that [the applicant's] allegations that he had been subjected to mental and physical violence by the police officers, have no objective confirmation. It is impossible to establish the circumstances in which the bodily injuries recorded in the medical certificate had been received because he did not mention these injuries to the assistant prosecutor and because [at that time] he had no visible injuries or health complaints.”
16. On 9 December 2000 the investigation was completed and the case file was transferred to the Nikulinskiy district prosecutor's office for final approval of the charge sheet.
17. On 13 December 2000 the case against the applicant and Mr E. was submitted to the Nikulinskiy District Court of Moscow for trial.
18. On 4 January 2001 the Nikulinskiy District Court of Moscow received the case-file.
19. On 11 January 2001 the Nikulinskiy District Court of Moscow issued a pre-trial decision. The decision represented a one-page printed template, in which the dates, the applicant's and his co-defendant's names, and the charges against them were filled in by hand. The relevant part read as follows (the pre-printed part in plain script and the part written by hand in italics):
“The Nikulinskiy District Court is competent to try the case; sufficient evidence for examination of the case has been collected; the charge sheet has been prepared in compliance with the requirements of the criminal-procedure law; there are no grounds to revoke or vary the measure of restraint imposed on the defendant; the defendant or third parties have not lodged any motions.
Recognising that the investigation of the case has been carried out in accordance with the RSFSR Code of Criminal Procedure and that the rights of the accused Mr E. and [the applicant] have been respected, and that there are no obstacles to the judicial examination, the court –
HAS HELD –
To fix the hearing of the criminal case against Mr E. and [the applicant] ... for 23 January 2001... with the participation of prosecutor, counsel.
The measure of restraint – the same for each defendant...”
The decision was issued in the absence of the applicant or his counsel and no copy thereof was served on them.
20. On 23 January 2001 the hearing was adjourned for one week owing to the absence of counsel for the applicant.
21. On 30 January 2001 the District Court held a preliminary hearing in the case. Counsel petitioned the court for the applicant's release pending trial. The court dismissed the request, finding as follows:
“Having heard the parties to the proceedings and submissions by the prosecutor who asked that the petition for [the applicant's] release not be granted, the court finds that there are no grounds to vary the measure of restraint imposed on [the applicant] because [the applicant] is charged with a criminal offence classified as a particularly serious offence punishable with deprivation of liberty and [because] the court has not yet completely examined the evidence collected by the prosecution.”
22. On 5 and 22 February and 5 March 2001 counsel for the applicant appealed against that decision. They submitted that the applicant had a permanent place of residence in Moscow and no criminal record and therefore there were no reasons to believe that he would abscond. They also indicated that the applicant's detention from 11 to 12 October 2000 had not been recorded or covered with any authorisation. Moreover, the applicant had been only remanded in custody for two months and, accordingly, his detention after 12 December 2000 had been unlawful.
23. On 5 March 2001 the Moscow City Court upheld the decision of 30 January 2001. It found as follows:
“Pursuant to Article 97 of the Code of Criminal Procedure, pre-trial detention in criminal cases is limited to two months.
As it appears from the available materials, the criminal case was opened on 12 October 2000 and on the same day [the applicant] was remanded in custody; on 9 December [2000] [the applicant] was transferred to the Nikulinskiy District prosecutor's office of Moscow where the case-file was sent. Accordingly, there was no violation of Article 97 of the Code of Criminal Procedure during the investigation and the arguments in the appeal to the effect that the detention after 12 December 2000 had been unlawful are not grounded on the case materials.
Pursuant to Article 96 § 2 of the Code of Criminal Procedure, persons charged with [drug-dealing] can be remanded in custody on the sole ground of dangerousness of the offence; in this connection the court upholds the findings of the first-instance court as to the absence of grounds for varying the measure of restraint, and considers these findings to be lawful.”
24. On 26 April 2001 counsel for the applicant again petitioned the trial court for his release pending trial. The request was refused. On 3 May 2001 the decision refusing the request was appealed against to the Moscow City Court. It does not appear that any response was received.
25. On 26 June 2001 the Nikulinskiy District Court extended, of its own motion, the applicant's detention by a further three months or until such time as the merits of the charges had been examined, finding that his release would “substantially impede a thorough, complete and objective examination of the case”.
26. On 5 July 2001 the applicant and Mr E. were convicted of drug-related offences by the Nikulinskiy District Court of Moscow. Mr E. was relieved from the punishment by virtue of the amnesty act. The applicant was sentenced to six years and six months' imprisonment in a high-security colony.
27. On 17 October 2001 the Moscow City Court quashed the conviction on substantive and procedural grounds and remitted the case for a new trial by a different bench. The City Court directed that the applicant remain in custody, without giving any reasons for that decision.
28. On 3 December 2001 the trial hearing was adjourned because Mr E. and witnesses did not appear.
29. On 18 December 2001 the hearing did not take place because the bench was involved in another criminal case.
30. On 19 December 2001 counsel for the applicant complained to the president of the Nikulinskiy District Court that, because of previous adjournments of the hearings, the request for the applicant's release had not been examined on the merits. She also pointed to inhuman conditions of the applicant's detention. It does not appear that any response was received.
31. On 10 January 2002 the hearing was adjourned because the presiding judge was ill.
32. On 21 January 2002 the court examined the request for release and dismissed it. As witnesses did not appear, the case was adjourned until 4 February 2002. On 27 January 2002 the applicant appealed against the refusal to the Moscow City Court. It does not appear that his appeal was examined.
33. On 4 February 2002 a new request for release was refused by the court. The hearing was adjourned until 12 February 2002 because of the absence of Mr E. and witnesses.
34. On 12 February, 5 and 19 March 2002 the hearings were adjourned again, as the witnesses never appeared.
35. On 17 April 2002 the court held a hearing. It heard the applicant, a witness for the defence and read out statements by witnesses who had failed to appear, including that by Mr E.
36. On 18 April 2002 the applicant was found guilty as charged and sentenced to six years and six months' imprisonment in a high-security colony and confiscation of property. As regards the applicant's allegations of ill-treatment by police officers, the court found as follows:
“Statements by the witnesses Er. and G. [who testified] that [the applicant] was neatly dressed at the moment of his arrest, as well as the statement by the witness Ge. [who testified] that at the moment of the personal search [the applicant's] clothing was dirty and that he looked like a tramp cannot, in the court's opinion, confirm the fact that [the applicant] was subjected to physical pressure by police officers because this allegation was examined in the court hearing and found to be unsubstantiated; [this finding is] corroborated with statements by the [police officers] R., I., K., B., Mi. and Mu., and by the decision not to initiate a criminal investigation into [the applicant's] allegations...
It follows from the medical certificate of 13 October 2000 that a doctor of the trauma department examined [the applicant] and found injuries... Before the court [the applicant] testified that these injuries had been inflicted on him by police officers. However, it was established in the court hearing that no physical or mental pressure had been exerted on [the applicant]; the court infers therefrom that the bodily injuries recorded on 13 October 2000 had been caused not under the circumstances described by [the applicant], but in some other way unrelated to [the applicant's] arrest and criminal proceedings against him.”
37. In finding the applicant guilty of drug possession and sale, the District Court relied on the material evidence (the sachet with heroin seized from the applicant), the testimony by Mr E. corroborated by statements of the police officers and lay witnesses present during the search and the record of the confrontation between the applicant and Mr E.
38. On 8 June 2002 the applicant appealed against the conviction. He complained, in particular, that the conviction was based, to a significant extent, on his self-incriminating statements given under the pressure of police officers on the day of his arrest, as well as on the statement by Mr E. who had fled from justice and did not testify in the second trial.
39. On 9 September 2002 the Moscow City Court dismissed the appeal and upheld the conviction. It repeated verbatim the first-instance court's findings as regards the applicant's allegations of ill-treatment.
40. From 11 July to 6 November 2001 and then from 23 April to 5 October 2002 the applicant stayed in remand centre no. IZ-77/3 in Moscow.
41. In 2001, the applicant was held in cells nos. 405, 406 and 706, measuring approximately 36 sq. m. It follows from the documents submitted by the Government that the exact numbers of detainees could not be established because the registers had already been destroyed, however, the design capacity of the remand centre had been exceeded by 300 per cent.
42. In 2002, the applicant was held in cells nos. 603, 602, 612. Cell 603 measured 26 sq. m and housed 21 to 37 detainees, cell 602 had 32 sq. m of floor space for 35 to 45 inmates, and cell 612 accommodated 4 to 6 persons on 9 sq. m.
43. On 3 October 2001 counsel for the applicant complained about “appalling conditions” of his detention to the Supreme Court of the Russian Federation and to the Minister of Justice.
44. On 10 October 2001 the applicant drafted a hand-written complaint to the Presnenskiy District Court of Moscow. He wrote that he had spent more than a year in overcrowded cells that swarmed with bugs and lice. He suffered from lack of fresh air that hardly penetrated through the windows covered with metal bars. A majority of his forty cell-mates were heavy smokers; the light was on round the clock and people had to sleep in shifts. The toilet was not separated from the rest of the cell and offered no privacy whatsoever. He had contracted various diseases, including scabies, “putrefaction of limbs”, constant headaches and hypertension. According to the applicant, he did not send that complaint because he feared the reprisals the prison officials had threatened him with.
45. On 10 October 2001 the applicant's representative received two similar responses from the Main Prisons' Directorate of the Ministry of Justice. She was told that on arrival to the detention facility the applicant had been examined by a doctor who found him in good health. On 6 September 2001 a general practitioner gave him preventive treatment for scabies; on 12 September 2001 he was diagnosed with vegeto-vascular dystonia of normotonic type; on 25 September 2001 he received preventive treatment for scabies; on 1 October 2001 the applicant was diagnosed with atypical dermatitis. His state of health was found to be “satisfactory”.
46. On 8 and 10 January 2002 the applicant's representative received responses to her further complaints. She was informed that on 11 October 2001 the applicant had sought medical assistance for pyodermatitis and received appropriate treatment. On 6 November 2001 the applicant had been moved to another prison and placed in a common cell with sixty-three other detainees. On 7 December 2001 the administration of the detention facility refused medicines brought by the applicant's mother because the medical office of the facility had had all the necessary medicines. On 20 December 2001 the applicant was diagnosed with skin itch and residual effects of pyodermatitis.
47. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities' own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to an appeal to a higher prosecutor or to a court of general jurisdiction (Article 113).
48. On 29 April 1998 the Constitutional Court of the Russian Federation held that anyone whose legitimate rights and interests had been affected by a decision not to institute criminal proceedings should have the right to appeal against that decision to a court.
49. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). A decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96 of the CCrP).
50. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment (Article 96 of the CCrP). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they committed.
51. After the arrest the suspect was placed in custody “pending the investigation” for an initial two-month period (Article 97 of the CCrP). Further extensions could be granted by a prosecutor.
52. Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file, the file was transferred to a trial court. From that day the defendant's detention was “before the court” (or “pending the trial”). Until 14 March 2001 the Code of Criminal Procedure set no time-limit for detention “pending the trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the trial” could not normally exceed six months from the date the court received the file. The time-limit did not apply to defendants charged with particularly serious criminal offences.
53. The detainee or his or her counsel or representative could challenge the detention or extension order issued by a prosecutor, to a court. The judge was required to review the lawfulness of, and justification for, the order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee's release (Article 220-1 of the CCrP).
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-70193
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF POLONETS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings
TEXT: 4. The applicant was born in 1948 and lives in the city of Zhytomyr, Ukraine.
5. On 28 January 2000 the applicant retired from his post in the Zhytomyr Regional Police Department (hereafter “the Police Department”). Having received no redundancy pay, to which he was entitled, the applicant instituted proceedings against the Police Department, seeking the recovery of the debt.
6. On 7 November 2001 the Koroliovsky District Court of Zhytomyr awarded the applicant UAH 7,410 in redundancy pay arrears. On 12 March 2002, the Zhytomyr Regional Court of Appeal (hereafter “the Court of Appeal”), on the Police Department’s appeal, re-examined the case and upheld this judgment.
7. On 19 March 2002 the Koroliovsky District Bailiffs’ Service (hereafter “the Bailiffs’ Service”) instituted enforcement proceedings in respect of the judgment of 7 November 2001 and joined the applicant’s case to other enforcement actions against the debtor.
8. On 14 June 2002 the Bogunsky District Court of Zhytomyr rejected the applicant’s complaint about the bailiffs’ inactivity. The court stated that in October 2001, acting in the course of the enforcement proceedings to which the applicant’s case was subsequently joined, the Bailiffs’ Service levied the Police Department’s bank account, which revealed no funds suitable for attachment. The court found that no further actions regarding the Police Department’s account were possible in the absence of budgetary funds earmarked for such purposes. This judgment was upheld by the Court of Appeal on 26 August 2002 and by the Supreme Court on 13 January 2003.
9. On 17 January 2004 the Koroliovsky District Court of Zhytomyr, on the Police Department’s request, temporarily suspended the enforcement proceedings. On 6 April 2004 the Court of Appeal quashed this decision as it was taken in the applicant’s absence and manifestly unfounded. On 14 May 2004 the Koroliovsky District Court of Zhytomyr ultimately rejected the Police Department’s request.
10. On 23 September 2004 the Bailiffs’ Service terminated the enforcement proceedings as the judgment of 7 November 2001 had been enforced in full.
11. The relevant domestic law is set out in the judgment of 29 June 2004 in the case of Voytenko v. Ukraine (no. 18966/02, §§ 20-25).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-138637
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: MATACHE-GONU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
TEXT: 1. The applicant, Mr Iosif Liviu Matache-Gonu, is a Romanian national, who was born in 1964 and lives in Bucharest.
2. The Romanian Government (“the Government”) were represented by their Agent, Mr R.-H. Radu, from the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 16 May 2003 the applicant took to Romania a car he had bought in Germany and for which he had paid 9,650 euros (EUR). An initial customs declaration was filled in on that date at the Romanian border.
5. Subsequently, at his place of residence the applicant started the process of registering the car. On 20 May 2003 the registration office informed him that the car could be registered only if it passed a technical roadworthiness test.
6. On 22 May 2003 the Bucharest Customs Office issued a primary customs declaration attesting that until it had been further clarified whether the car could be registered in Romania or not, it would have the status of goods in transit.
7. Both customs declarations were filled in on behalf of the applicant by companies specialised in providing customs services. The companies’ names were recorded as the person declaring the goods, while the applicant’s name was recorded under the section “recipient of the goods”.
8. On 23 May 2003, while the car was still in customs transit, the applicant sold it to D.D. He alleged that the car could not be registered in Romania as it was not environmentally friendly and did not fulfil certain technical criteria required by law. On the same day D.D. tried to take the car to the Republic of Moldova, but was prevented from doing so by Romanian border guards on the grounds that the car was still “in transit” and had not been cleared for export.
9. On 26 May 2003, in the presence of the applicant, a customs officer drew up a report for the offence of selling goods while in customs transit. The applicant was fined 25,000,000 lei (ROL) and the car was confiscated in accordance with Article 386 (f) of the Instructions for the Application of the Romanian Customs Code (IARCC). The applicant signed the offence report without written comments.
10. On 18 June 2003 the Râmnicu-Vâlcea District Court allowed an action lodged by the applicant and annulled the car sale contract concluded between him and D.D. on the grounds that D.D. had not paid the full price agreed. The court also mentioned that the advance of ROL 10,000,000 had been returned to D.D.
11. The applicant contested the offence report before the courts, seeking annulment of the fine and the return of the car. He claimed that only D.D. should have been fined, since he had been the owner of the car when the report had been drawn up. On 14 July 2003 the Târgu Bujor District Court rejected the applicant’s action on the grounds that he had committed the offence of selling a car in customs transit, in contravention of Article 386 (f) of the IARCC. The court held that both the fine and the confiscation of the car were prescribed by law in order to prevent fiscal fraud.
12. The applicant appealed against the decision, claiming that, since the sale contract had been annulled by a final judgment, the offence no longer existed.
13. On 12 January 2004 the Galaţi County Court analysed the applicant’s allegations and concluded that the annulment of the sale contract subsequent to the discovery of the offence by the customs authorities did not infer that the offence no longer existed or had not been committed. The court further examined whether the offence report fulfilled the formal requirements and finally decided to uphold the first-instance court’s decision.
14. On 19 February 2004 the National Customs Agency informed the applicant that following the final court judgment of 12 January 2004, he had no further legal grounds for requesting the return of his car.
15. The relevant parts of the Customs Code in force at the material time read as follows:
“The procedure for recording and penalising an act which is an offence under the customs regulations is established by the Instructions for the Application of the Romanian Customs Code approved by Governmental Decision.”
“1. Customs authorities shall record and penalise customs offences which are committed within the area of surveillance of customs operations ....
3. After verifying the existence of an offence under the customs regulations, the customs authorities shall apply fines and confiscate goods, where applicable.”
16. The relevant part of the Instructions for the Application of the Romanian Customs Code, approved by Governmental Decision No. 1114 of 2001, reads as follows:
“The following acts are customs offences and are punishable by fines of between 25,000,000 lei and 75,000,000 lei:
...
(f) the alienation under any circumstances of goods during customs transit. The alienated goods will be confiscated”.


ITEMID: 001-117877
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF MEHMET SALİH UÇAR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: András Sajó;Nebojša Vučinić;Peer Lorenzen
TEXT: 4. The applicant was born in 1965 and lives in Batman.
5. In October 2000 the applicant lodged a case with the Diyarbakır Administrative Court against the Ministry of Interior for the annulment of an administrative decision refusing his request for compensation of disability.
6. On 20 October 2000 the court issued a decision of non-jurisdiction and transferred the case to the Ankara Administrative Court, which dismissed the applicant’s claim on 10 March 2003.
7. On 22 March 2005 the Supreme Administrative Court upheld the judgment of 10 March 2003.
8. On 12 July 2006 the applicant’s request for rectification introduced on 25 March 2005 was rejected by the Supreme Administrative Court.
9. On 24 August 2006 the judgment was notified to the applicant.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102376
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF KOVALEV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1958 and lives in Odessa.
5. On 23 December 1999 the applicant lodged a claim with the Kyivskyy District Court of Odessa against the local land department. He sought the acknowledgement of his ownership title over a land plot which according to him was within his family estate.
6. On 27 September 2000 the applicant lodged a claim with the Zhovtnevyy District Court of Odessa against the municipal council seeking the ownership certificates in respect of the disputed land to be declared invalid. The two claims were subsequently joined into one case.
7. K., a private person and the owner of the disputed land plot, participated in the proceedings as a third party.
8. On 16 August 2001 the Kyivskyy District Court of Odessa left the applicant’s claims without examination in view of his repeated failure to appear before the court. On 27 November 2001 the Odessa Regional Court of Appeal quashed the ruling of 16 August 2001 and sent the case for further examination.
9. On 24 May 2002 the Kyivskyy District Court of Odessa found that the applicant had no legal basis to claim a title to the land plot and rejected his claims as unsubstantiated.
10. On 6 September 2004 the Odessa Regional Court of Appeal dismissed the applicant’s appeal which he had to re-submit on several occasions in order to comply with procedural requirements and upheld the judgment of 24 May 2002.
11. On 5 October 2004 the applicant appealed in cassation.
12. On 20 July 2007 the Kharkiv Regional Court of Appeal, acting as a court of cassation, dismissed the applicant’s appeal in cassation and upheld the decisions of the lower courts.
13. The applicant received a copy of the ruling of 20 July 2007 in September 2009 after he had lodged a number of enquiries with the courts.
14. In the course of the proceedings the applicant lodged a number of procedural requests, some of which were allowed, including those concerning the application of provisional measures, withdrawal of the judges from his case, suspension of the proceedings in view of his health problems and pending the outcome of a criminal case against a private person concerning the matter. He also lodged appeals against some of the procedural rulings and requested copies of documents from the case-file. On six occasions the applicant failed to appear before the courts or requested adjournment of the hearings because of his health problems which caused a delay of about seven months. Another five-month delay was caused by respondents’ non-appearance before the courts.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-93912
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: BLEKIĆ v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Ms Anita Blekić, is a Slovenian national, who was born in 1935 and lived in Koper. She died on 30 October 2004, in the course of the proceedings, and she was represented before the Court by her husband Mr Kemal Blekić. Her heirs, Mr Kemal and Ms Vesna Blekić, the late applicant’s daughter, have elected to pursue the application before the Court.
2. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 7 December 1993 the applicant instituted denationalisation proceedings with the Koper Municipality (Občina Koper) seeking restitution of nationalised land that had previously belonged to her late father. It seems that after the reform of public administration the case was transferred in due course to the Koper Administrative Unit (Upravna enota Koper, “KAU”).
5. On 4 May 1994 the administrative authority asked the applicant to complete her request, giving her detailed instructions regarding the missing documents.
6. On 28 June 1994 the Convention came into force in respect of Slovenia.
7. On 31 May and 28 July 1995 the applicant lodged two complaints, with the Ministry of the Environment and Spatial Planning (Ministrstvo za okolje in prostor, “MESP”) and the Ministry of Agriculture, Forestry and Food (Ministrstvo za kmetijstvo, gozdarstvo in prehrano, “MAFF”) respectively, on account of KAU’s failure to render a decision (silence of administrative authorities, pritožba zaradi molka organa). She did not, however, pursue the complaints further as prescribed by law.
8. On 21 and 22 September 1995 KAU forwarded progress reports on the case to both ministries, emphasizing that the applicant’s request was incomplete. Afterwards the applicant submitted several documents but, despite KAU’s instructions, failed to duly complete the request.
9. On 27 January 1998 and 20 July 1999 hearings were held by the administrative authority regarding the correct completion of the request.
10. On 8 May 2000 KAU issued a decision rejecting the applicant’s request for denationalisation in part and upholding the remainder. She appealed to the MESP.
11. On 16 May 2000 KAU appointed an expert surveyor.
12. On 15 September 2000 MESP issued a decision upholding the appeal and remitting the case for re-examination.
13. On 29 January 2001 the expert opinion was issued.
14. On 16 August 2001 the applicant lodged a complaint with MAFF and MESP on account of KAU’s failure to render a decision (pritožba zaradi molka organa).
15. On 27 September 2001 the administrative authority invited the applicant’s attorney for a consultation regarding the completion of the request.
16. On 20 December 2001 the administrative authority held a hearing.
17. On 21 December 2001 the applicant’s attorney withdrew from the case.
18. On 8 January 2002 the administrative authority appointed an expert in building construction.
19. On 1 July 2002 the administrative authority received the expert’s opinion.
After several requests from KAU for the applicant to complete the request for denationalisation, she duly completed it on 22 July 2002.
20. On 5 and 26 September 2002 two hearings were held.
21. On 5 November 2002 KAU issued a partial decision holding that the Slovenian Compensation Fund (Slovenska odškodninska družba, “SCF”) was to pay the applicant compensation for part of the nationalised property. The SCF lodged an appeal with MESP.
22. On 27 January and 21 February 2003 the applicant lodged two complaints, with MAFF and MESP, for failure to render a decision (pritožba zaradi molka organa).
23. On 17 March 2003 MESP issued a decision and remitted part of the case for re-examination.
24. On 26 May 2003 and 12 January 2004 KAU issued two partial decisions. The SFC appealed against both decisions.
25. On 11 July 2003 the administrative authority accepted that M.B., the applicant’s sister-in-law, had locus standi as a third party in the domestic proceedings for one parcel of the disputed nationalised property.
26. On 25 March 2004 MESP allowed the two complaints and annulled the partial decisions. MESP reduced the amount of damages awarded for part of the nationalised property and remitted the remainder of the case to KAU for re-examination
27. On 12 July 2004 the administrative authority held a hearing.
On 30 October 2004 the applicant died. On 3 May 2005 her husband (Mr Kemal Blekić) and her daughter (Ms Vesna Blekić) were declared the sole heirs (hereinafter referred to as the heirs) in the inheritance proceedings and they continued the applicant’s claims before the Slovenian authorities and domestic courts as provided by the Denationalisation Act.
28. On 3 December 2004 and 2 February 2005 the administrative authority held hearings.
29. On 1 April 2005 the heirs lodged a hierarchical complaint against the public officer dealing with the case, requesting her to step down.
30. On 18 April 2005 KAU issued a partial decision. Both parties appealed to MESP.
31. On 19 October 2005 the heirs lodged a complaint with MESP for failure to render a decision (pritožba zaradi molka organa).
32. On 28 October 2005 MESP upheld the heirs’ appeal, annulled KAU’s partial decision and remitted the case for re-examination.
33. On 21 April 2006 the heirs lodged another complaint with MESP for failure to render a decision (pritožba zaradi molka organa).
34. On 19 July 2006 the heirs instituted proceedings against MESP with the Nova Gorica Administrative Court (Upravno sodišče Republike Slovenije, Oddelek v Novi Gorici), for failure to render a decision in the pending denationalisation proceedings.
35. On 1 September 2006 the Nova Gorica Administrative Court dismissed the claim as premature, since the heirs had failed to comply with the set time-limits and therefore to properly avail themselves of the above-mentioned remedy.
36. On 11 December 2006 the heirs lodged another complaint with the MESP for failure to render a decision (pritožba zaradi molka organa).
37. On 19 February 2007 KAU issued a decision regarding one plot of nationalised land. Both parties appealed.
38. On 20 July 2007 MESP rejected both appeals as unfounded.
39. On 18 September 2007 the heirs challenged the Ministry’s decision before the Nova Gorica Administrative Court.
40. On 16 November 2007 a judgment was issued, rejecting the heirs’ claim as unfounded.
41. On 19 March 2008 the Nova Gorica Administrative Court issued a judgment following an appeal against MESP’s decision of 20 July 2007 lodged by the third party in the proceedings (see paragraph 25 above).
42. On 29 April 2008 the administrative authority requested the heirs to pay the procedural costs as provided for in the decision issued on 19 February 2007.
43. On 20 May 2008 the administrative authority lodged a request for enforcement against the heirs, which was withdrawn on 28 May 2008.
44. On 24 February 2009 the heirs lodged a complaint with the MESP for failure to render a decision.
45. On 5 July 1994 the applicant lodged another request for restitution of nationalised property with KAU.
46. On 19 February 2002 KAU issued a partial decision rejecting the applicant’s request for being lodged out of time (the deadline for submitting requests for denationalisation expired in December 1993).
47. On 8 March 2002 the applicant appealed to the Ministry of Agriculture, Forestry and Food (Ministrstvo za kmetijstvo, gozdarstvo in prehrano, “MAFF”).
48. On 27 January 2003 the applicant lodged a supervisory complaint with MAFF as it had not rendered a decision on her appeal of 8 March 2002.
49. On 7 February 2003 MAFF issued a decision dismissing the applicant’s appeal on procedural grounds.
50. On 7 March 2003 the applicant instituted proceedings in the Administrative Court seeking annulment of MAFF’s decision.
51. On 14 November 2003 a decision was issued dismissing the applicant’s claim. The decision was served on the applicant on 24 December 2003.
52. On 7 January 2004 the applicant appealed to the Supreme Court (Vrhovno sodišče). On 14 July 2005 the Supreme Court dismissed the applicant’s appeal.
53. On 26 October 2005 the heirs lodged a constitutional complaint with the Constitutional Court (Ustavno sodišče).
54. On 22 September 2006 the Constitutional Court rejected the heirs’ constitutional complaint as unfounded.
55. On 17 May 1991 the applicant lodged a request with the Koper District Court (Okrajno sodišče v Kopru) for determination of damages for the seized property.
56. On 28 January 1997 a hearing was held and she withdrew the request as premature, due to the pending denationalisation proceedings.
1. The 1991 Act on Denationalisation
“Should the recoverers referred to in Articles (...) be deceased or legally proclaimed as such, their legal successors shall be considered as the recoverers.
...”
“The decision of the body of first instance concerning the request (...) must be issued and served on the applicant within one year at the latest following the filing of any such properly presented request.
...”
2. The 1999 Administrative General Procedure Act
3. The 1997 Administrative Disputes Act
“ ...
2. If the appellate body does not rule on the applicant’s appeal against the first-instance decision within 2 months or within a shorter period, if any, provided by law, and fails to make an award upon a subsequent request within a further period of seven days, the applicant may then bring an administrative action, as if his request had been dismissed.
3. The applicant may also act in accordance with the preceding paragraph when an administrative body of the first-instance fails to give a decision from which no appeal lies.
4. If in matters where a right to an appeal exists a body of the first instance fails to give a decision upon the individual’s application within 2 months or within a shorter period, if any, provided by law, the individual may then submit his application to the appellate administrative body. Should the latter find against him, the individual may then bring an administrative action. The individual may also bring an administrative action under the conditions set out in paragraph 2.”
4. The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006- “the 2006 Act”)


ITEMID: 001-91885
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TUDOR TUDOR v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicant was born in 1944 and lives in Bucharest.
6. From 1973 he lived in an apartment rented from the State in a nationalised building. On 13 January 1997, under Law no. 112/1995 on the legal status of certain residential property, the applicant bought that apartment from the State.
7. In a final decision of 23 May 1997 the Bucharest District Court allowed an action (acţiunea în revendicare) brought by the former owner against the State for recovery of possession of the building where the applicant’s apartment was situated.
8. Based on that decision, the former owner lodged several actions for recovery of possession against the persons who had bought apartments in the building in similar conditions, including the applicant.
9. In a final decision of 28 January 2003 the Bucharest Court of Appeal ordered the applicant to surrender possession of the apartment to the plaintiff. The court found that the former owner’s property title deed, as it had been confirmed by the final decision of 23 May 1997, prevailed over the applicant’s purchase contract. It also considered that the applicant’s bona fides in concluding the 13 January 1997 contract was relevant only in the event that the applicant lodged an action for compensation against the State.
10. Meanwhile, the same Court of Appeal did take into account the buyers’ good faith in dismissing actions lodged by the former owner against other persons who had bought apartments in the same building. Thus, on 28 November 2002 the Court of Appeal dismissed the action against T.I. and T.A., who had bought their apartment on 12 December 1996; on 7 February 2003 it dismissed the action against I.E. and M.S. and on 20 June 2003 it dismissed the action against C.D., who had bought his apartment on 27 March 1997.
11. On 6 April 2006 the High Court of Cassation and Justice, acting on an application by the Procurator General (recurs în anulare), quashed the final decision of 28 November 2002 and sent the case back to the firstinstance court. According to the information available to the Court, the proceedings are still pending with the domestic courts.
On 9 February 2006 the High Court allowed a similar application by the Procurator General and set aside the 20 June 2003 decision, thereby allowing the former owner’s action against C.D.
A similar action by the Procurator General, lodged against the 7 February 2003 decision mentioned above, was allowed by the High Court on 14 February 2007. The case was sent back to the Bucharest County Court for re-examination of the appeal. The proceedings are still pending with that court.
12. As to the applicant, eviction proceedings lodged by the former owner against him are currently pending with the domestic courts.
13. Under Romanian law, an action for recovery of possession is one of the principal remedies for the protection of a right of property. Such action is not governed by statute per se but has emerged from case-law. An action for recovery of possession can be defined as the bringing of proceedings to enforce a right in rem in which a dispossessed owner claims back his or her property from the person currently in possession of it. When both the plaintiff and the defendant have a title deed, the court must compare the two deeds and decide which one is preferred. The main outcome of such an action, if successful, is the acknowledgment by the court of the claimant’s title to the property, with retrospective effect, thus obliging the defendant to return the property. If physical restitution is no longer possible, that obligation is replaced by an obligation to pay compensation on the basis of an equivalent sum (see Străin and Others v. Romania, no. 57001/00, § 26, ECHR 2005VII).
14. Articles 1337-1351 of the Civil Code institute the seller’s responsibility for eviction. They provide for the evicted buyer to claim reimbursement of the price and also the payment of costs and damages, regardless of the seller’s good or bad faith. The buyer can either join the seller to the proceedings instituted against him by the third party or lodge a new action against the seller after having been evicted. In the latter case, if the seller proves that he could have won the case against the third party had he been joined to the proceedings, he will be exempted from compensating the buyer (Article 1351 of the Civil Code).
A bona fide buyer continues to enjoy the benefits of the property until he is no longer considered bona fide, that is at the latest when the action for eviction is lodged against him, at which time enjoyment of the property reverts to the rightful owner. However, the buyer may still claim compensation for his loss from the seller.
15. At the date of the facts of the present case, Article 51 of Law no. 10/2001 on the rules governing immovable property wrongfully seized by the State between 6 March 1945 and 22 December 1989, as amended by the Government’s Emergency Ordinance no. 184 of 12 December 2002 (“Law no. 10/2001”), prescribed that an action for recovery of the purchase price, indexed to take account of inflation, brought against the State by a buyer whose contract had been declared null and void, was not subject to court fees. It also provided that the indexed price was to be paid by the Ministry of Finance from a special fund.
16. At the Court’s request, the Government submitted case-law on the different actions for compensation when property is lost in conditions similar to those of the case at hand.
17. Of the seventeen relevant decisions adopted between 2005 and 2008 by courts all over the country, nine concerned actions lodged against the State authorities by persons who lost their property in actions for recovery of possession. The courts applied the Civil Code and awarded them the indexed purchase price and, in most of the cases, damages and the costs reasonably incurred for the upkeep of the house. Most of the courts considered that Law no. 10/2001 was not applicable to actions for recovery of possession when the sale contract was not declared null and void in such proceedings.
18. When such contracts are cancelled, however, the decisions submitted to the Court indicate that the courts consistently apply Law no. 10/2001 and award the buyer the indexed purchase price.
19. In a decision no. 520/C of 3 December 2007 the Constanţa Court of Appeal found in favour of the buyer in an action for recovery of possession lodged by the former owner of a nationalised apartment against the person who in good faith had bought the apartment from the State in 2000. The court decided that the restitution of the apartment to the former owner was no longer possible and, based on the Court’s case-law on Article 1 of Protocol No. 1 (in particular: Pincová and Pinc v. the Czech Republic, no. 36548/97, ECHR 2002VIII; Raicu v. Romania, no. 28104/03, 19 October 2006 and Păduraru v. Romania, no. 63252/00, ECHR 2005XII (extracts)), it compelled the State to pay the market value of the apartment in compensation to the former owner. In the court’the monetary award was the only solution to the action for recovery of possession.
20. In a similar decision of 12 December 2007 the High Court of Cassation and Justice found in favour of the buyer in an action for recovery of possession lodged by the former owner. The High Court took account of the fact that the buyer’s title had been confirmed by the courts in an action in nullity of the sale contract lodged against him by the former owner whereas the former owner’s title had not been upheld by a court. It further considered that dispossessing the buyer regardless of the circumstances, in order to surrender the property to the former owner, would create disproportionate new wrongs in the attempt to attenuate old injuries. It also considered, in a general statement, that the reimbursement of the indexed purchase price under Law no. 10/2001 could not compensate the buyer as it did not reflect the property’s market value.
21. In a decision no. 1055 of 9 October 2008 the Constitutional Court declared Article 47 of Law no. 10/2001 unconstitutional in so far as it breached the buyer’s property title. Under the provision concerned, persons whose actions based on the Civil Code had been dismissed before the entry into force of Law no. 10/2001 could use this Law in order once again to seek the restitution of their property. The Constitutional Court considered that persons whose title to property had been confirmed by a court decision could not be compelled to surrender that property where there was no serious justification for such a measure, based on public order, under Article 44 § 3 of the Constitution.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1