ITEMID: 001-84106
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF PHINIKARIDOU v. CYPRUS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings
TEXT: 7. The applicant was born in 1945 and lives in Nicosia.
8. The applicant was born out of wedlock. Her biological mother abandoned her outside the house of a woman who gave her to Mrs Maria Phinikaridou. The latter brought her up. Although estranged from her biological mother, the applicant did not lose all contact with her. In December 1997, when the applicant was fifty-two years old, her biological mother, just before dying, told her the name of her biological father in the presence of the applicant's son. Her mother died in January 1998.
9. On 24 June 1999 the applicant lodged an application with the Nicosia Family Court requesting judicial recognition of paternity on the basis of section 20(2) of the Children (Relatives and Legal Status) Law 1991 (hereinafter “the Children Law”). The respondent, whom the applicant claimed was her father, objected to the application and denied paternity. Without going into the merits of the paternity claim, he maintained that the applicant's claim was time-barred under section 22(3) of the above-mentioned Law. The applicant claimed, in reply, that the aforementioned section and, in addition, section 25(1) of the same Law setting in motion the period of limitation on the date of entry into force of the Law rather than on the date when she acquired knowledge of her father's identity, were unconstitutional. In particular, she argued that they were contrary to Articles 15 § 1 (the right to respect for private and family life), 28 (the principle of equality and non discrimination) and 30 § 1 (the right of access to a court) of the Constitution. The applicant contended that she had been prevented from having recourse to court and from determining through judicial proceedings whether or not she was the respondent's daughter. She had also been placed in a disadvantageous position with regard to other litigants who happened to acquire information concerning their father within the statutory time-limit.
10. On 15 September 1999 the respondent applied to the court for trial of the preliminary matter of whether the applicant's claim was statute-barred. On 30 October 2000 the applicant lodged an application requesting the court to refer the question to the Supreme Court.
11. On 17 May 2001 the Nicosia Family Court, following the agreement of the parties, decided to refer the issue of constitutionality of section 22(3) to the Supreme Court under Article 144 of the Constitution.
12. In its judgment of 23 November 2001 the Supreme Court, by a majority (Judges Artemides, Nicolaides, Kallis, Iliades, Kramvis and Gavrielides), held that sections 22(3) and 25(1) of the Children Law complied with the relevant provisions of the Constitution and the Convention. In particular, the Supreme Court noted the following:
“The applicant's lawyer suggests that the violation of Articles 15 and 30 of the Constitution is caused by the fact that the applicant learnt the identity of her natural father in 1997. It was, consequently, objectively impossible to lodge the application for her recognition within the three-year period from the date the Law came into force. Therefore, as he concludes, Article 30 § 1 of the Constitution is also violated because the applicant is deprived of access to court to assert her statutory right, a right which originates directly from Article 15 of the Constitution, which protects private and family life. A further suggestion of the applicant's lawyer, concerning unfavourable discrimination caused by the different time-limits for the exercise of other rights that are provided for by the Law, we will not deal with because it was not pursued.
...
The matters raised are extremely serious because they touch on the institution and the function of the family: the most important nucleus of society, the members of which are bound by the deepest and purest feelings of love and solidarity. The State considers self-evident the value of the institution of the family, which it also protects in its most powerful statute, the Constitution. This also regulates the whole range of family relationships – also on the basis of the criterion of their lawful functioning in society as a whole – in legislative rules which constitute the basis of the body of law known as Family Law.
The basis of our discussion is Articles 15 and 30 of the Constitution, corresponding to Articles 8 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which was ratified by our House of Representatives by Law No. 39/62. Accordingly, the decisions of the European Court of Human Rights and the Commission on the matters with which we are concerned illustrate the approach to be taken, as does our jurisprudence .
...
In the recent decision of the Full Court of the Supreme Court in Pantelis Yiorgalla v. Soulla Hadjichristodoulou (2000) 1 A.A.D. 2060, we dealt with the provisions of section 11(1)(a) of the same Law, according to which the husband of the mother is barred from contesting paternity after one year has elapsed from the time he is informed of the birth and the circumstances from which the conception of the child resulted. The Family Court had also addressed the same questions with reference again to Articles 15 § 1 and 30 § 1 of the Constitution.
We refer to our above decision, the reasoning of which we believe holds in the present case as well without being distinguished on any ground whatsoever. The legal principles, as discussed and adopted, are applicable here too.
...
The general principle which emerges from the decisions of the European Court of Human Rights is that the right of access to court is subject to legitimate restrictions, precisely so that it can function rationally for all interested parties in the judicial process. The ECHR considers that time-limits on the exercise of a right serve fundamental purposes inseparably interwoven with certainty about the rights of individuals and are intended to ensure the finality of the dispute.
...
Yiorgalla is distinguishable, as the applicant's lawyer submits, in a situation where the child seeking recognition by its natural father learns his identity after its right has lapsed under the Law. In such a case, the lawyer asserts, the right is time-barred, as has happened in the case of the applicant.
We do not agree with this submission. In the statute of limitations on civil rights the starting point of the time-limit is not the litigant's knowledge of the particulars on the basis of which he will pursue his right, but the event which created the cause of action. And this is determined, in case of disagreement, by the court according to objective criteria. This principle was applied by the Commission of Human Rights in the case of X. v. Sweden.”
13. The Supreme Court laid emphasis on the decision of the European Commission of Human Rights in the case of X v. Sweden (decision of 6 October 1982, no. 9707/82, Decisions and Reports 31, p. 223), in particular the following extract:
“In the opinion of the Commission it must generally be accepted in the interest of good administration of justice that there are time-limits within which prospective proceedings must be instituted. It must also be accepted that the time-limit is final and that there is no possibility to institute proceedings even when new facts have arisen after the expiry of the time-limit. This is also true for paternity proceedings. The Commission is furthermore of the opinion that a time-limit of three years from the child's birth as in the present case, is not an unreasonable time-limit for instituting paternity proceedings. Accordingly, the Commission finds that the fact that the applicant was not permitted to institute paternity proceedings does not disclose any appearance of a violation of Article 6 of the Convention taken alone.”
14. The Supreme Court concluded that the provisions of sections 22(3) and 25(1) of the Children Law not only did not conflict with the provisions of Articles 15 and 30 of the Constitution but, on the contrary, were in line with the jurisprudence and reasoning which the Court has adopted in the operation and application of the corresponding Convention Articles. In this regard, the Supreme Court held as follows:
“We also note that the entirety of the provisions of Articles 15 and 30 which have occupied our attention create not only rights but also obligations. Article 30 does not operate only on behalf of the person resorting to the court but also on behalf of those who are being sued. All the interested parties before the court have the right to a fair trial in accordance with paragraph 2 of the Article, and the right to present their case, adduce evidence and examine witnesses, as provided for in paragraph 3 of the same Article. The right of protection of private and family life is provided for in paragraph 1 of Article 15; in accordance with paragraph 2, however, interference with that right in accordance with the law is permitted for the protection of the rights and freedoms which the Constitution guarantees to any other person. The principle of proportionality and balance of the rights is also based on the spirit and letter of those provisions, as is discussed in the passages we have cited above.
In the particular question before us, it should not be overlooked that in the period which will have elapsed between the birth of the child born out of wedlock and the submitting of the application for paternal recognition, the putative father could have created his own family. The submitting of an application for paternal recognition and indeed when the putative father is advanced in age will without doubt cause upheaval in his family life. Therefore the recognition of the right to submit an application without time-limits may, on the one hand, have as a consequence the creation of a family for the child but, on the other, lead also to the break-up of another family, the family of the putative father. It is for this reason that the principle of proportionality must play the decisive role. Its correct and commensurate application dictates that the exercise of the relevant right be time-barred after a reasonable time has elapsed since the child's birth.”
15. Lastly, in view of the interesting and novel legal matter raised before it, the Supreme Court did not make an order for costs.
16. However, a minority of the Supreme Court judges dissented (Judges Pikis, Nikitas, Konstandinides, Nicolaou and Hadjihambis). The minority found that section 22(3) of the Children Law was contrary to and incompatible with the provisions of Articles 15 § 1 and 30 §§ 1 and 2 of the Constitution since it extinguished the exercise of the family right to recognition of paternity. They therefore considered that the application could not be considered time-barred.
17. The minority, following the Supreme Court's judgment in Yiorgalla v. Hadjichristodoulou ((2000) 1 A.A.D. 2060), considered that the setting of a time-limit for the exercise of the civil right to recognition of paternity was acceptable provided that it was not oppressive and left a reasonable margin for the exercise of the right. The creation of an institution for the incorporation into the family of a child born out of wedlock was an obligation of the State that was imposed by both Article 15 of the Constitution and Article 8 § 1 of the Convention.
18. They further observed that it was indisputable that the right of recognition of paternity constituted an integral aspect of the family life of the individual which Article 15 § 1 of the Constitution safeguarded. It was equally certain in their view that the exercise of this right by the child might be subject to reasonable time-limits. The crucial question was whether a time-limit for the exercise of the right could be set irrespective of the knowledge of the facts that constituted the right or even the possibility, viewed objectively, of the holder of the right acquiring knowledge of that right.
19. The minority also examined the Limitation Law, Cap. 15, and in this context stated the following:
“In civil law the setting of time-limits is related, as a rule, to the moment the cause of action arises. The Limitation Law, Cap. 15, provides for this. ...
This principle is subject to two categories of exceptions, namely:
the impossibility of exercise of the right by persons affected by an impediment – minority (under the age of 18), mental disturbance, prohibition from administering the individual's affairs or absence from the country; and
the action is for relief from the consequences of a mistake.
In both cases the time-period for the exercise of the right is suspended for as long as the ignorance or impediment exists. The spirit by which the Limitation Law is inspired is that the ignorance of or the impossibility of defending rights suspends, within the framework we have explained, the time-limits.
The subject of paternity belongs to established civil rights which touch on the existence of the individual. The recognition of paternity takes effect against all and marks the framework of the family of the individual (see Nicolaides v. Yerolemi ((1984) 1 C.L.R. 742).
The question in the present case is whether the right which the person concerned is ignorant of – and, objectively, could not have ascertained – can lapse before it comes to the knowledge of the person entitled to exercise it. The right under discussion is protected as a fundamental human right by the Constitution. The question arises whether the extinction of the right, independently of the knowledge or the possibility of acquiring knowledge of its existence, is compatible with the respect for the right to family life, which Article 15 § 1 of the Constitution safeguards and of the right of recourse to court, which Article 30 §§ 1 and 2 of the Constitution safeguard. Taking the question further: is elimination ever possible of a fundamental right, the existence of which the person concerned does not know and about which he does not have the means of being informed?”
20. The minority considered that the decision of the Commission of Human Rights in X. v. Sweden (cited above) did not touch directly on the matter before them, which revolved round respect for the right to family life. They did, however, find that it indirectly shed some light on the point in issue to the extent that it maintained that the separate regulation of the claim by the child for recognition of paternity was a right of a peculiar character which was connected to the particularities of the quest for paternity by the child itself. The Court's judgment in the case of Kroon and Others v. The Netherlands (judgment of 27 October 1994, Series A no 297C, p. 43), in which it was held that the limitations imposed by Dutch law on the recognition of paternity constituted a violation of the right to family life, was directly relevant to the facts of the applicant's case.
21. The minority finally underlined that:
“The facts which relate to the paternity of a child relate to the time before its birth, in reality to the time which relates to its conception. Objectively, the child does not know, nor has it the means of discovering the facts surrounding its conception. The only persons who have authentic knowledge of these facts are the parents, each of them, primarily the mother. Chance knowledge, to the extent that the possibility of the paternity of a child is thought likely, may be acquired by third persons to the extent that the facts concerning the paternity of a child are rumoured, without it ever being certain that such possibility will come to the knowledge of the person affected. The setting of a time-limit for the exercise of the right to recognition of paternity, regardless and independent of the knowledge of facts that constitute it, reduces the right to the point of extinction. The core of the right to family life is violated and the right provided becomes only a right by law, and does not obtain respect.”
22. Following the Supreme Court's judgment, the applicant withdrew her application before the Family Court on 3 April 2002.
23. The applicant's putative biological father died on an unspecified date in 2004.
24. Article 15 of the Constitution provides:
“1. Every person has the right to respect for his private and family life.
2. There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person.”
25. Article 28 §§ 1 and 2 provide:
“1. All persons are equal before the law, the administration and justice and are entitled to equal protection thereof and treatment thereby.
2. Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in this Constitution.”
26. Article 30 §§ 1 and 2 provide:
“1. No person shall be denied access to the court assigned to him by or under this Constitution. The establishment of judicial committees or exceptional courts under any name whatsoever is prohibited.
2. In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law ... .”
27. Article 144 reads as follows:
“1. A party to any judicial proceedings, including proceedings on appeal, may, at any stage thereof, raise the question of the unconstitutionality of any law or decision or any provision thereof material for the determination of any matter at issue in such proceedings and thereupon the Court before which such question is raised shall reserve the question for the decision of the Supreme Constitutional Court and stay further proceedings until such question is determined by the Supreme Constitutional Court.
2. The Supreme Constitutional Court, on a question so reserved, shall, after hearing the parties, consider and determine the question so reserved and transmit its decision to the court by which such question has been reserved.
3. Any decision of the Supreme Constitutional Court under paragraph 2 of this Article shall be binding on the court by which the question has been reserved and on the parties to the proceedings and shall, in case such decision is to the effect that the law or decision or any provision thereof is unconstitutional, operate as to make such law or decision inapplicable to such proceedings only.”
“Challenging paternity is excluded:
(a) for the husband of the mother, when one year has passed since the date he was informed of the child's birth and the circumstances from which it emerges that the mother did not conceive by him, and, in every case five years after the birth... .”
(1) “A child that is born out of wedlock acquires retrospectively after its birth the legal status and the rights of a child born in wedlock as against its parents and their relatives if the parents subsequently marry and the child had been recognised or after the marriage the child is recognised voluntarily or by judicial decision as the child of the husband.
(2) The voluntary recognition as provided in paragraph (1) may be challenged on the grounds that the husband of the mother is not the father in accordance with the provisions of section 18.”
“The paternal recognition of a child who is born out of wedlock is effected by
(a) voluntary recognition or
(b) recognition by judicial decision.”
(1) “The father can recognise a child born out of wedlock as his own provided that the mother consents to this.
(2) If the mother has died or does not have the capacity to enter legal relations, the recognition is effected by the sole declaration of the father.
(3) If the father has died or does not have the capacity to enter into legal relations, the recognition may be given by the paternal grandfather or grandmother.
(4) If the child has died the recognition takes effect for the benefit of its descendants.”
“If the consent of the mother is given in accordance with the provisions of this section, the recognition is considered to have been carried out and the appropriate changes are made in the official registers.”
(1) “The mother has the right to apply to the court for recognition of the paternity of her child that was born out of wedlock with its father”.
(2) The child also has the right referred to in paragraph (1) above.
(3) If the mother refuses her consent as provided for by paragraph (1) of section 16, the father also has the right to apply for recognition by judicial decision and in the case of paragraph (3) of section 16 that right vests in the paternal grandfather and grandmother.”
“(1) The application of the mother for recognition by judicial decision is brought against the father or his heirs.
(2) The application of the child for recognition by judicial decision is brought against the parent who has not proceeded with the necessary declaration for voluntary recognition or his heirs.
(3) The application of the father or of his parents for recognition by judicial decision is brought against the mother or her heirs.”
28. Section 22 sets maximum time-limits after which it is not legally permissible for the mother, child or father, as the case may be, to seek judicial recognition of paternity. Unless exercised within the periods of limitation specified in the section, the legal right to seek judicial recognition lapses.
“(1) The right of the mother to seek recognition by judicial decision of the paternity of her child shall lapse five years after the child's birth.
(2) If the mother was married at the crucial period of the child's conception, her right to ask for recognition by judicial decision of the paternity of her child by the biological father shall lapse five years after the day when the decision upholding the challenge to paternity in accordance with the provisions of section 8 becomes final.
(3) The right of the child to seek its recognition by judicial decision shall lapse three years after it has attained its majority.
(4) The right of the father or of his parents to seek recognition by judicial decision shall lapse three years after the mother has refused to give her consent to voluntary recognition.
(5) In the case of section 13 the right to recognition by judicial decision shall not lapse.”
“In the case of voluntary recognition or recognition by judicial decision the child acquires from its birth the legal status and the rights of a child born in wedlock as against both its parents and their relatives.”
29. By virtue of section 25(1), in the case of applications for judicial recognition of paternity where majority has been attained before the Law entered into force, the three-year limitation period is set in motion on the date of entry into force of the Law, that is, 1 November 1991, and not on the earlier date of attaining majority as referred to in section 22(3):
“In cases where reference is made in this Law to time-limits within which a person may exercise his rights or take the measures provided for in this Law , these time-limits shall begin to run from the date when this Law came into effect.”
30. Therefore, the limitation period provided for in section 22(3) is not retroactively applied.
31. The relevant provisions of Law 216/90 on parent-child relations provide:
“(a) The care of a child who is a minor (“parental care”) is the duty and right of the parents, who shall exercise it jointly.
(b) Parental care includes the determination of a name, the supervision of the person, the administration of the property and the representation of the child in each matter or legal transaction which relate to its person or property.”
“(1) The parents have the obligation to maintain jointly their child who is a minor, each according to his capabilities.
(2) By a decision and relevant arrangement by the court, the obligation of the parents by virtue of paragraph (1) may continue after the child attains its majority in cases where special circumstances demand this, such as in cases of incapacity or disability of the child or service in the National Guard or study at an educational institution or professional training school.”
32. In the case of Yiorgalla v. Hadjichristodoulou (cited above) the Supreme Court, sitting as a full bench, examined the constitutionality of the one-year limitation period set by section 11(1)(a) of the Children Law in respect of applications contesting paternity. Under this provision, the limitation period starts to run from the time the mother's husband is informed of the birth and the circumstances from which the conception of the child resulted. The question whether this time bar was in line with Articles 15 and 30 § 1 of the Constitution was referred to the Supreme Court by the Family Court.
33. The Supreme Court held that the protection of family life, which was safeguarded as a fundamental right by Article 15 § 1 of the Constitution and, in parallel, by Article 1 of the Convention, also extended to the procedural means which were provided for the constitution of the family and the relations between its members. Rights interwoven with family life were “civil rights” within the meaning of Article 30 of the Constitution and Article 6 § 1 of the Convention. Article 30 § 1 of the Constitution secured access to court for the exercise of civil rights. The setting of a time-limit for the exercise of civil rights was acceptable provided that the restriction which was set was not oppressive and left a reasonable margin for the exercise of the right. Furthermore, the time-limit had to correlate with the purpose which it aimed to serve. An objective purpose of time-limits was the securing of certainty as regards the rights of the individual. The repudiation of paternity was by nature a civil right, the exercise of which could be subject to time-limits. The creation of an institution for the incorporation into the family of a child born out of wedlock was an obligation imposed by Article 8 § 1 of the Convention on the State.
34. The Supreme Court noted that since the father had had knowledge of the material facts concerning the presumption of paternity from the day of the child's birth, the time-limit of one year was sufficiently long for the purposes of seeking judicial determination of his rights.
35. Accordingly, the Supreme Court held that the time-limit was in conformity with the Constitution.
VIOLATED_ARTICLES: 8


ITEMID: 001-70741
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: DAGALAS AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, whose names appear in the annex, are Turkish nationals. They are represented before the Court by Ms M. Umut Akarçay, a lawyer practising in Istanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were heirs to plots of land in the village of Zekeriyaköy in Sarıyer, Istanbul.
On 29 June 1938 the Forest Directorate conducted a cadastral survey pursuant to Law on Agricultural Land Planning and designated the applicants’ land as private forest.
On 13 July 1945, the Law no. 4785, which provided for the nationalisation of all forest areas, came into force. On 21 May 1947 the applicants’ land was nationalised and it was registered in the name of the Treasury as “Hamitağa State Forest”.
In 1957 the applicants brought an action before the Sarıyer First Instance Court in Civil Matters. Relying on Article 2 (b) of Law no. 4785, they filed a claim for the restitution of the land. The court requested the Ministry of Agriculture’s opinion concerning the legal status of the land. On 28 January 1958 the Ministry informed the court that, in view of the requirements provided under Article 2 (b) of Law no. 4785, the land in question did not have the necessary characteristics to be removed from “nationalised land” status. Following the notification of the Ministry’s opinion, the applicants did not pursue their case. The case was consequently struck off.
In 1967 some of the applicants initiated another action before the Sarıyer First Instance Court in Civil Matters with the same claim. The court requested the Ministry of Agriculture’s opinion once again. In a letter dated 30 January 1968 the Ministry reiterated its opinion given in the previous case.
In 1969 the applicants challenged the Ministry of Agriculture’s opinion of 30 January 1968 before the Supreme Administrative Court. In 1971 the Supreme Administrative Court dismissed the applicants’ case. Subsequently, the Sarıyer First Instance Court in Civil Matters also dismissed the applicants’ claim.
In 1984, due to the amendments made in the Law on Forests (amended by Law no. 2896), the Forest Cadastral Commission conducted a cadastral evaluation (aplikasyon çalışması) in the area. The purpose of this evaluation was to detect the forests which were not yet included in the cadastral map and to remove the forest status of the lands which had lost their characteristics defined in the law.
The Forest Cadastral Commission’s report was made public on 29 November 1985. It concluded that a plot of land which was located within the borders of the Hamitağa State Forest had lost its characteristics as a forest in accordance with Article 2 of the Law no. 4785. It was therefore necessary to remove it from the “state forest” status. The report became final after one year as there were no objections lodged against it. The plot was still registered in the name of the Treasury; however, it was no longer designated as forest area.
In 1988, due to the recent amendments in the Law on Forests (amended by Law no. 3302), the Forest Cadastral Commission re-evaluated the status of the Hamitağa State Forest once again. The Commission concluded in its report that another plot of land had to be removed from the “state forest” status as it had lost its characteristics as a forest. The commission’s decision was pronounced on 7 March 1988.
On 7 September 1988 some of the applicants lodged a complaint with the Sarıyer Court of first Instance in Civil Matters demanding restitution of the property rights of the Hamitağa State Forest and the registration of the land in their names. They contended that the land in question never had the qualifications to be nationalised in accordance with the Article 2 of the Law no. 2785.
In the meantime, on 12 September 1988 the rest of the applicants initiated a separate case before the Sarıyer Court of first Instance in Civil Matters, concerning the same subject matter and claim.
On 19 December 1988 the court decided that it did not have jurisdiction and transferred both cases to the Sarıyer Cadastral Court. The first case was registered under no. 1989/71 and the second under no. 1989/47.
The first hearing of the case no 1989/47 was held on 16 March 1989. The applicants’ lawyer requested the court to delay the hearings in order to submit evidence.
On 23 May 1989 the applicants’ lawyer submitted the evidence.
At the hearing of 9 August 1989 the applicant’s lawyer contended that the land registry records submitted to the court by the administrative authority were not correct. He therefore requested additional time to provide the accurate records. The next hearing was scheduled for 26 October 1989.
At the hearing of 26 October 1989 the land registry records were not yet provided before the court.
Neither the applicants nor their representative attended the following six hearings.
In the case no. 1989/71 the applicants did not attend the hearings until January 1990. At the hearing of 25 January 1990 the applicants’ lawyer requested the court to grant additional time in order to submit evidence.
At the hearing dated 3 December 1990 the court decided to join the two case files. Furthermore it requested from the applicants to provide the court with the certificates of inheritance.
On 4 February 1991 the court decided to assign an expert to translate the register of the title-deeds which were written in Ottoman Turkish, in the Arabic alphabet. At the following three hearings the court waited for the expert’s report.
On 29 July 1991 the expert requested the court to grant him an extension for preparing his report. The applicants’ lawyer did not attend the hearing.
On 21 November 1992 the expert report was submitted with the court. Both parties requested time to submit their observations on the report. The court granted their request. Moreover other heirs to the land in question requested to intervene in the proceedings.
At the hearing of 10 March 1992 the court decided to obtain the opinion of the Forest Administration on the land in question.
At the hearing of 25 May 1992, upon the requests of both parties, the court rescheduled the next hearing for 6 August 1992.
On 14 August 1992 the court carried out an on-site inspection together with the cadastral experts.
On 6 October 1992 the experts submitted their report to the court. Both parties requested the court to grant additional time to examine the report.
On 19 November 1992 the court decided to ask further information from the Forest Administration concerning the nationalisation procedure of the land. The Forest Administration submitted its reply on 19 February 1993. The court decided to send this reply to the cadastral experts and ask their opinion.
Furthermore, the court decided to appoint another expert to determine the applicants’ shares of inheritance. The report on the heritage was submitted to the court on 23 March 1994.
On 19 January 1996 the Sarıyer Cadastral Court ruled in favour of the applicants. The Treasury appealed.
On 13 December 1996 the Court of Cassation quashed the decision of the Sarıyer Cadastral Court. It held that the applicants’ claim for restitution of property provided under Law no. 4785 was already dismissed by the Sarıyer First Instance Court in Civil Matters in the beginning of 1970’s. Moreover, as regards the applicants’ objection to the cadastral commission’s report dated 7 March 1988 the court held that the action was filed out of time. It maintained that according to the law on forests the actions brought against the cadastral evaluations had to be lodged within one year from the pronouncement of the commission’s decision. The commission report pronounced in 29 November 1985 already concluded that the land in question, except a small part which no longer had the necessary qualifications, had “state forest status” and it was called “Hamitağa State Forest”. This report became definitive on 29 November 1986 as there were no objections lodged against it. The re-evaluation carried out in 1988 was, in essence, the same as the previous one. The only difference was that, in 1988, the Cadastral Commission decided to remove a further part of the land from state forest status. Thus the objection should have been filed with the court following the first evaluation of the land. The Court of Cassation therefore concluded that the applicants’ case must be rejected for failure to comply with the statutory time limit. It further concluded that, in any event, the land in question did not have the necessary physical characteristics to change its status to private forest.
The applicants requested rectification of the Court of Cassation’s decision. On 22 October 1997 their request was rejected.
On 16 January 1998 the Sarıyer Cadastral Court followed the Court of Cassation’s reasoning and dismissed the applicants’ case.
On 11 May 1998 the Court of Cassation upheld the decision of the Sarıyer Cadastral Court.
On 26 October 1998 the Court of Cassation rejected the applicants’ request for rectification of the judgment.
Article 1 provides that the forests which belong to the private or legal persons, foundations, villages, municipalities, provincial administration or public corporate bodies at the date of the entry into force of this law are nationalised in accordance with this law. These forests are registered in the name of the Treasury without any notification or procedure.
Article 2 lists the physical characteristics of the land in question which could form an exception to the rule provided under Article 1.
Article 5 provides that the landowners whose lands were nationalised in accordance with this law should submit an application with the forest administration within one year from the date of the entry into force of this law. If they fail to do so within the statutory time-limit they will lose the right to receive compensation for the nationalisation of their lands.
Article 1 provides that the lands which were nationalised in accordance with the Law no. 4785 can be returned to their previous owners if they have certain physical characteristics listed in this Article.
In accordance with the provisional Article of the same law, those who failed to bring an action within the time-limit provided in Article 5 of the Law no. 4785, can request compensation for nationalisation of their land within one year from the date on which this law has come into force.
Article 11 provides that it is possible to challenge the Cadastral Commission’s reports by filing an action before the cadastral courts within six months (Law no. 3302 amended this time limit to one year) from the date on which these reports are announced. This time-limit is ten years for those who have the title deed of the land in question.
Article 12 provides that the statutory time-limit to file an objection against the rights, limitations, and assertions found in the cadastral records, is ten years starting from the date on which these records become definitive. After the expiration of this time-limit, it is not possible to file an action by relying on the legal facts prior to the cadastral planning.
Article 22 of the same law evokes that the cadastral planning of a location can be carried out only once.


ITEMID: 001-71853
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: TOTH v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Ferenc Tóth, is a Hungarian national, who was born in 1953 and lives in Tura, Hungary. He is represented before the Court by Mr J. Pajcsics, a lawyer practising in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a professional hunter. At the relevant time he had a firearms licence; through his interest in firearms he became acquainted with Mr R.B. and Mr G.S. In early 1995 R.B. gave the applicant a hand grenade as a present. In February 1997 Mr A.D., an acquaintance of G.S., met a person called “Peter” in a club. Peter asked A.D. whether he could procure 50 hand grenades for him. A.D. promised to look into the matter and obtained the applicant’s phone number from G.S. He repeatedly called the applicant to ask whether he could help him in procuring the hand grenades. The applicant eventually undertook to hand over to him the grenade he had received as a present. At their meeting Peter was also present and discussed the price of the grenades with them.
Afterwards, Peter called the applicant regularly, asking him to procure the 50 grenades. The applicant contacted R.B. and requested 10 or 20 hand grenades from him. On 10 March 1997 the applicant obtained 21 grenades from R.B. On the way home he met A.D. and Peter. They decided to conclude their business the following day. On 11 March 1997, instead of Peter, police officers arrived at the meeting and searched the applicant’s car. They found 21 hand grenades in it. The applicant was arrested together with A.D.
Subsequently, criminal proceedings were initiated against the applicant on charges of the abuse of explosives. During the investigation the applicant confessed to the offence. However, he maintained that he had been entrapped by Peter into committing it.
On 7 April 1997 the applicant’s lawyer requested the Budapest Public Prosecutor to investigate the matter of police entrapment, having regard to the suspicion that the person called Peter was an undercover police officer whose identity the Head of the National Police refused to reveal. The Prosecutor stated that Peter might be an undercover police officer who had secretly collected information about the applicant. However, he refused to open an investigation into the matter and took the view that the Head of the National Police had proceeded lawfully throughout.
The Budapest XIV/XVI District Public Prosecutor charged the applicant with the abuse of explosives. Subsequently, he was also charged with the abuse of firearms.
During the hearings before the Pest Central District Court the applicant maintained that, although he had committed the offence, he had not had any intention to trade in grenades and only did so because of the incitement by Peter, an undercover police officer. He claimed that the officer’s incitement had not been justified, since the police had no good reason to suspect the applicant of any prior involvement in selling hand grenades. He had no criminal record and there was nothing to suggest that he was predisposed to becoming involved in dealing in grenades until approached by Peter.
On 11 January 2000 the District Court convicted the applicant of the abuse of explosives and firearms, and sentenced him, as a cumulative punishment, to two years’ imprisonment, suspended for three years. In reaching its conclusion the District Court stressed the fact that the applicant had had no previous criminal record, that time had elapsed and that the applicant had confessed. The court established that a person called Peter had been involved in the case, but could not be identified. It relied on the testimonies of the accused and three witnesses, expert opinions and documentary evidence.
The applicant appealed. He argued that Article 6 § 1 of the Convention had been violated in that he did not have a fair trial before the District Court. He referred to the Court’s case-law, in particular the cases of Lüdi v. Switzerland (judgment of 15 June 1992, Series A no. 238) and Teixeira de Castro v. Portugal (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV).
For its part, the Prosecutor’s Office appealed against the leniency of the sentence imposed on the applicant, having regard to the widespread bomb attacks taking place at the material time.
The Budapest Regional Court examined the applicant’s allegations concerning the fairness of the proceedings. It requested the Criminal Directorate of the National Police to supply information about the identity of Peter. It sought to have the police officer in charge of the operation exempted from his duty of confidentiality. The court intended to hear both men as witnesses. In reply to this request, the Head of the National Police stated that Peter was an informer acting on police instructions, pursuant to Article 64 § 1 (a) of the Police Act. He refused to give further information about Peter or to exempt his handler from his duty of confidentiality.
In these circumstances, the Regional Court was forced to endorse the first-instance court’s findings of fact. In its judgment of 12 December 2001 it upheld the applicant’s conviction and sentence.
The Regional Court held that the applicant and his accomplices would not have committed the offence without the pressure of the undercover police agent. However, it held as follows:
“The act committed by the defendants is an act which is obviously dangerous for society and which therefore matches the notion of a criminal offence (section 10 § 2 of the Criminal Code). Its danger for society cannot be questioned even if there was indeed a provocation by the police, that is, if instigation – known to or encouraged by the police – took place.”
The court considered that although the police instigation did not exonerate the applicant, his right to a fair trial was nevertheless infringed, notably in the light of the Teixeira and Lüdi cases. It also considered that the fact that the applicant would not have committed the offence, without incitement by Peter, was a factor to be taken into account when imposing sentence. Consequently, it rejected the prosecution’s request to increase the applicant’s sentence, despite its own finding that the offence was particularly dangerous for society, given the frequency of bomb attacks at the time. However, it did not mitigate the applicant’s sentence as requested by the latter in his appeal.
The court also noted that, in separate proceedings, the applicant had meanwhile been convicted of an abuse of ammunition by the Gödöllő District Court on 26 April 2001.
Concerning the assessment of the evidence, the Regional Court stated as follows:
“The findings of fact are based on lawfully obtained evidence, namely the defendants’ admissions, the police report on their apprehension and the information contained in the minutes of seizure. The doubt prevailing in the case (whether or not Peter instigated the crime) was assessed in the defendants’ favour – the court accepted their testimonies in this connection.”
“[... R]eview proceedings may be initiated ... if ...
(a) a person was ... convicted ... in breach of the substantive provisions of criminal law; ...”
“The Supreme Court may quash the decision reviewed and instruct the lower-instance court ... to resume its proceedings, if:
a) the second-instance court gave its decision on the merits in breach of the substantive provisions of criminal law referred to under section 284 § 1, ... .”
“In the hypothesis described under paragraph 1 subparagraph a) [of section 291], the Supreme Court may itself deliver a decision in accordance with the law, if this will result in the acquittal of the defendant, ... the discontinuation of the proceedings, or the imposition of a less severe punishment.”
“(1) A criminal offence is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which represents a danger for society and for which the law orders the infliction of punishment.
(2) An activity or omission shall be an act dangerous to society if it violates or endangers the constitutional, social or economic order of the Republic of Hungary, or the person or rights of citizens.”
“A person, whose act at the time of perpetration represents little danger to society so that even the most lenient punishment ... is unnecessary, shall not be punishable.”
“(1) Any person who, without a licence, prepares, obtains, possesses or transfers to an unauthorised person explosives or blasting-agents or equipment for their use, commits a crime, punishable with imprisonment of two to eight years.”
“(1) Any person who
a) prepares, obtains, possesses or distributes firearms or ammunition without a licence,
b) exceeds the provisions of a licence relating to the preparation, obtaining, possession or trade of firearms or ammunition,
c) transfers his licensed firearm or ammunition to a person who has no licence;
commits a crime, punishable with imprisonment of two to eight years.”
“It is not allowed to deliver a judgment in which the court finds the defendant guilty of one of the cumulative offences with which the latter has been charged and imposes a sentence, while discontinues the proceedings in respect of another offence, having regard to its negligible danger to society (section 28 of the Criminal Code).”


ITEMID: 001-78664
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: SELIGA v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: The applicant, Mr Robert Šeliga, is a Slovenian national who was born in 1973 and lives in Velenje. He was represented before the Court by the Verstovšek lawyers who are practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 August 1994 the applicant was injured in an accident at work in a lignite mine. His employer had taken out insurance with the insurance company ZT.
On 30 October 1995 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 7,886,567 tolars (approximately 33,000 euros) for the injuries sustained.
On 14 and 15 December 1995 the applicant lodged preliminary written submissions.
On 29 March 1996 the applicant requested that a date be set for a hearing.
On 28 June and 8 November 1996 and on 14 February 1997 the applicant lodged preliminary written submissions and increased his claim.
On 2 April 1997 the court held a hearing which was adjourned for additional evidence-taking.
On 23 June 1997 the applicant lodged preliminary written submissions.
On 2 June 1997 the court held a hearing and decided to appoint a medical expert.
On 14 July 1997 the applicant lodged preliminary written submissions. That day, the court appointed a medical expert who delivered an opinion on 15 September 1997. The court sought an additional opinion from the appointed expert. He delivered the additional opinion on 16 October 1997.
On 31 July, 3 and 30 October and 5 November 1997 the applicant lodged preliminary written submissions and increased his claim.
On 5 November 1997 the court held a hearing which was adjourned because the applicant submitted preliminary observations increasing his claim.
On 31 December 1997 and 27 January 1998 the applicant lodged preliminary written submissions.
On 11 February 1998 the court held a hearing, which was adjourned because it did not have enough time to serve the applicant’s submissions of 27 January 1998 on the respondent.
On 6 March 1998 the court held a hearing and decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 31 March 1998.
On 14 April 1998 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed.
On 21 October 1998 the court allowed the ZT’s appeal and decreased the damages awarded. The court also upheld both appeals in the part concerning the costs and expenses of the proceedings and remitted the case to the first instance court for re-examination.
On 19 January 1999 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 1 December 1999 the court allowed the appeal in part and increased the amount of damages awarded.
On 13 April 2002 the applicant lodged with the first-instance court preliminary written submission concerning costs and expenses. On 9 June and 30 August 2000 he requested the court to render a decision.
On 20 September 2000 the Celje District Court delivered a decision concerning the costs and expenses of the proceedings. ZT appealed.
On 1 March 2001 the Celje Higher Court allowed the appeal in part and lowered the amount of costs awarded.
On 9 May 2001 the applicant requested the court to correct its decision. On the same day he sought from the Public Prosecutor’s Office a request for protection of legality against the Celje Higer Court’s decision.
On 16 May 2001 the court corrected its decision and served it on the applicant on 29 May 2001.
On 31 August 2001 the Public Prosecutor’s Office decided not to lodge a request for protection of legality.


ITEMID: 001-100576
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: MEDVEDEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Aleksandr Vyacheslavovich Medvedev, is a Russian national who was born in 1978 and lives in Moscow. He is represented before the Court by Mr A. Yablokov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 March 2002 the police department of the Tekstilshchiki District of Moscow started an investigation of a residential burglary committed in the district earlier (criminal case no. 127215).
On 19 March 2002 the police investigator questioned an eyewitness to that burglary, who identified the applicant as one of the perpetrators. The investigator questioned the applicant, who denied involvement in that crime. The Government submitted a copy of the record of interview, signed by the applicant. On several occasions the applicant was questioned by an investigator in charge of criminal case no. 127215. However, no charges were brought against him. In July 2002 the investigation into the burglary was stayed.
According to the applicant, on 10 April 2002, at about 10 a.m., his car was stopped on the road. Police officers in plain clothes pulled the applicant out of his car and took him to the nearby police station. The applicant submitted that he had been arrested in connection with the burglary, and that the policemen had been trying to extort a confession from him.
At 5:10 p.m. a report of an “administrative offence” was drawn up by the police officers. The report stated that the applicant had been detained near the Tekstilschiki metro station for using obscene language in a public place. The police confiscated his belongings, without making a record of what they had done, and locked the applicant in a cell.
On 11 April 2002, at about 5 p.m., the applicant was brought before a judge of the Lyublinskiy District Court of Moscow. The applicant claimed that he had not been given access to the case file, the judge had not allowed him to present his arguments and that, despite his requests, he had not been allowed to have a lawyer.
The judge sentenced the applicant to seven days' “administrative detention” (a sanction for public disturbance, provided by the Code on Administrative Penalties – see “Relevant domestic law” below). The court decision referred to the police report and statements of one of the policemen who had allegedly arrested the applicant near the metro station. The text of the decision indicated that it was not subject to any appeal and that the applicant had refused to sign it. The applicant claimed that he had never been served with a copy of the decision, or even seen it. He had never refused to sign the second page of the court's judgment, since he had not seen it. He was informed about the sentence by the policemen escorting him.
On the same day the applicant took part in an identification parade within case no. 127215.
On 12 April 2002 the applicant's relatives contacted his lawyer, who went immediately to the police station where the applicant was being detained. However, the lawyer was denied access to the applicant for the reason that the applicant was at that time being questioned by the police in connection with the burglary.
On 14 April 2002 the lawyer visited the applicant in the detention facility of the police station.
On 15 April 2002 the applicant's lawyer requested the Lyublinskiy District Court to give him access to the materials of the administrative case. It appears that the registry personnel and the judge searched in the archives of the court, but the case file was not found.
On 17 April 2002 the applicant complained to the prosecutor's office about his “administrative detention”. It appears from his complaint that he was shown a copy of the court's decision of 11 April 2002 but did not get access to the materials of the administrative case. He repeated his complaint on 29 April 2002.
On 17 April 2002 the applicant was released after serving his sentence. He found his car with a broken window; its audio system had been stolen.
The Government insisted that the applicant had been arrested at 5 p.m. near the Tekstilschiki metro station for public disturbance, and that the police records were accurate. They produced a copy of the record of the arrest, which indicated that the applicant had been arrested at 5 p.m. on 10 April 2002 for “hooliganism”. They further produced a copy of a “record of administrative arrest” of 10 April 2002 which indicated that the applicant had been arrested under Article 158 of the Code of Administrative Offences. That document did not contain any information as to the particular circumstances of the offence: most of the sections of the record of the arrest had been left blank. They further produced a copy of a “description of administrative offence” of the same date, which indicated that the applicant had been arrested for using obscene language in a public place and for ignoring police orders. Both documents had been signed by the applicant.
They further claimed that after the hearing of 11 April 2002 the applicant had refused to sign a copy of the court decision: a note stating this had been made by the judge on the court's ruling. However, the applicant had signed the first page of the decision after the mention “[I] has been informed about [my] rights and obligations under Article 247 of the Code of Administrative Offences”. They produced a copy of the decision of 11 April 2002.
The relevant part of the reasoning of the decision reads as follows:
The decision contained, inter alia, a typewritten entry which indicated that the decision indicated that it was not subject to any appeal.
On 21 April 2002 the applicant's lawyer drafted an appeal against the decision of 11 April 2002. He indicated, inter alia, that he had not received access to the case file or even a copy of the decision.
It follows from the following correspondence and the postal receipt produced by the applicant that the appeal was sent by registered mail on 22 April 2002. On 30 April 2002 the appeal reached the Lyublinskiy District Court, which was supposed to send it on to the Moscow City Court together with the case file.
However, on 7 May 2002 the Lyublinskiy District Court returned the appeal to the applicant's lawyer. In the cover letter the judge noted that the appeal had arrived at the District Court outside the time-limit established by law, and thus would not be forwarded to the Moscow City Court. The letter was sent to the address of the bar association to which the applicant's lawyer belonged. The applicant claims that his lawyer has never received this letter. According to the letter from the bar association, they have not received any letters from the Lyublinskiy District Court addressed to the applicant's lawyer.
On 15 May 2002 the Moscow City Prosecutor's Office sent the applicant a letter in reply to his complaint of 15 April 2002. It can be seen from that letter that the prosecutor's office requested the materials of the administrative proceedings from the Lyublinskiy District Court. However, the request remained unanswered. Therefore, the prosecutor's office was unable to review the lawfulness of the detention order of 11 April 2002.
On 11 July 2002 the applicant requested the Moscow City Court to restore the time-limit for lodging an appeal. He referred to the fact that, despite his request of 15 April 2002, he still did not have access to the materials of the case file and did not have a copy of the decision of 11 April 2002.
It is unclear what decision was taken in reply to this request. It can be seen from the letter of the Vice-President of the Moscow City Court of 31 May 2004 addressed to the applicant that the appeal submitted by his lawyer and dated 11 July 2002 has been left unexamined since “by its form and content it did not comply with the requirements for appeals against the court decisions in the administrative cases”. The case file with the applicant's request was returned to the Lyublino District Court.
On 20 February 2004 an inquiry into the applicant's arrest and detention was initiated. The investigator questioned the applicant and the policemen who took part in his arrest on 10 April 2002. The policemen confirmed that they had arrested the applicant for use of obscene language in a public place. The investigator concluded that the applicant's allegations concerning the circumstances of his arrest were unsubstantiated. On 1 March 2004 the investigation was discontinued.
On 20 February 2004 the Vice-President of the Moscow City Court informed the Supreme Court that the Moscow City Court had never received any appeal from the applicant or his lawyer against the decision of 11 April 2002.
On 21 April 2004 the Deputy Prosecutor of Moscow lodged an extraordinary appeal against the decision of 11 April 2002. On 17 July 2004 the Vice-President of the Moscow City Court examined the case by way of supervisory review. The Vice-President noted that the District Court had based its conclusions solely on the statements of the police officers, without referring to other possible witnesses to the incident. Officer K. was not a witness to the offence attributed to the applicant. Further, the court did not refer to any concrete information on the applicant'
The Code of Administrative Offences (the Code) of 1984 (Кодекс об административных правонарушениях РСФСР), as in force at the relevant time (until 1 July 2002), established the penalties for petty offences and the procedure for imposing the penalties. Pursuant to Article 158 of this Code, disturbance of public order (which included use of offensive language in public) was punishable with administrative detention up to fifteen days, to be ordered by a district court judge.
Under Article 242 § 3 of the Code when the police arrest a person for the disturbance of public order, that person may be detained until the moment of examination of his administrative case by the court.
Article 267 of the Code (as amended in March 2001 and 18 December 2001) provided that a court decision concerning an administrative offence could be appealed against to a higher court. Under Article 268 an appeal could be lodged within ten days from the delivery of the decision. The time-limit for appeal, if it was not met, could be restored by the competent court upon an application by the appellant.
The Civil Code of the Russian Federation provides as follows:
Article 1070: Responsibility for damage caused by unlawful acts of investigative authorities, prosecuting authorities and courts
“1. Damage caused to a citizen as a result of unlawful conviction, unlawful criminal prosecution, ... unlawful administrative detention ... shall be compensated at the expense of the Treasury of the Russian Federation, and in the instances provided for by law, at the expense of the Treasury of the subject of the Russian Federation ... in full, irrespective of the fault of the officials of the agencies...”
The Civil Code provides that the damage caused by an unlawful criminal prosecution should be compensated irrespective of the fault of the tortfeasor (that is, the State agency which decided to prosecute, detain and so on). However, the notions of “unlawful” prosecution or detention (see Article 1070) are not developed in the relevant provisions of the Civil Code. Certain guidelines on this subject may be obtained from Decree No. 4892-X of the Supreme Council of the USSR of 18 May 1981, which concerns compensation for damage caused by unlawful acts by law-enforcement agencies. For example, point 2 of that Decree provides that an acquitted person has the right to obtain damages from the State; the only exception concerns cases when the person was charged after making a false confession. Furthermore, in the case of Paskhalov (published in the Bulletin of the Supreme Court, 1993 г., N 1, page 5), the Supreme Court of the Russian Federation used the following wording: “... unlawful attribution of criminal liability, namely when an acquittal judgment was given...”. These words, as well as the subsequent judicial practice suggest that the domestic courts regard criminal proceedings which ended with an acquittal to be “unlawful” as such. Therefore, if there was an acquittal, remand in custody would be “unlawful” even if all the substantive and procedural rules were complied with when it had been imposed.


ITEMID: 001-57824
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF GOISIS v. ITALY
IMPORTANCE: 2
CONCLUSION: Preliminary objection allowed (out of time)
JUDGES: C. Russo;N. Valticos
TEXT: 7. Mr Mario Goisis lives at Zanica (in the province of Bergamo).
8. On 4 January 1989 he sued Mr G.N., Mr E.Q.Y. and Mrs M.T. in the Bergamo magistrate’s court (pretore). He sought to have them ordered to move the low wall which enclosed their properties so that the width of the adjoining road should be not less than five metres along the whole of its length.
9. The case was listed on 16 January 1989. At the first hearing, on 22 February 1989, the applicant and Mr E.Q.Y. asked for an adjournment so that the other parties’ pleadings could be studied. The magistrate adjourned the proceedings to 7 February 1990.
10. On 5 April 1989 Mr Goisis’ lawyer applied for an earlier date. The magistrate refused the application on 8 April, on the grounds that there was no urgency and that the time allowed was in accordance with the usual practice.
On 11 April, however, he agreed to bring the hearing forward to 22 November 1989, on account of a change in the timetable. When the day came, Mr E.Q.Y. raised an objection to jurisdiction - joining Mr G.N. and Mrs M.T., who had already made such an objection in their pleadings of 14 February - and sought a second adjournment.
11. On 15 January 1990, on an application by Mr E.Q.Y., the magistrate ordered the joinder of a limited company, Edilpiatti S.r.l. He adjourned the proceedings to 9 May and then, of his own motion on this occasion, to 17 July 1990. Other hearings were held on 12 December 1990 and 9 April and 20 November 1991.
12. On the last-mentioned date the magistrate reserved judgment, but on 1 December he relisted the case and commissioned an expert opinion.
13. The proceedings were reopened on 12 March 1992, when a deadline of 31 July 1992 was set for the filing of the expert’s report, and the proceedings continued on 28 October and 9 December 1992 and 20 January 1993.
14. In a judgment of 7 April 1993, which was filed at the registry on 14 April, the magistrate declined jurisdiction in favour of the Bergamo District Court. He also set a strict deadline of two months for resuming the proceedings, and these were resumed on 26 May 1993.


ITEMID: 001-120969
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF LAVRECHOV v. THE CZECH REPUBLIC
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
TEXT: 5. The applicant was born in 1952 and lives in Udomlya, Russia.
6. He was a representative of a Russian company, T., which bought a share of a Czech company, S. The applicant was a member of the Board of Directors of company S. from 8 August 1995, and its chairman from 27 February 1996. He was unable, however, to exercise his powers between 24 September and 3 December 1996, having been illegally dismissed from the Board of Directors by its Czech members. Company S. later became insolvent.
7. On 11 June 2001 the applicant was charged with insider trading and fraud, in particular with concluding contracts disadvantageous to company S. and causing pecuniary damage of 88,000,000 Czech korunas (CZK) (3,520,000 euros (EUR)). On 20 June 2001 he was placed in pre-trial detention.
8. On 8 January 2002 the applicant requested to be released on bail and offered to pay security of CZK 4,000,000 (EUR 160,000). The request contained a declaration that he was aware of the contents of Article 73 § 3 of the Code of Criminal Procedure, which set out the conditions under which bail could be forfeited. On 17 January 2002 the Ostrava Regional Court granted the applicant bail against payment of security in the amount of CZK 10,000,000 (EUR 400,000). It justified the amount of the security by the exceptional gravity of the charges and the significance of the reasons for taking him into custody originally, in particular the high risk that he would abscond.
9. On 31 January 2002 the applicant authorised his lawyer to pay the security in the amount set by the court. He also undertook to stay at his address in the Czech Republic and to attend hearings in his case, and declared that he was aware that the security would be forfeited if he did not comply. On 22 February 2002 he was released on bail. One of the conditions was that he stay at his address in the Czech Republic and receive mail there.
10. On 7 June 2002 the Regional Court authorised the applicant to leave the Czech Republic for Russia until 18 June 2002, on condition that he attended the first hearing, scheduled for 19 to 21 June 2002. This was the fourth time such a request by the applicant had been granted. The applicant had made three previous trips to Russia, between February and June 2002, and had always returned.
11. On 17 June 2002 the applicant informed his lawyer that on 14 June 2002 his passport, with an entry visa to the Czech Republic, had been stolen in Moscow and that he was arranging for a new passport. As a result the hearing was adjourned to 7 to 9 August 2002.
12. A summons to the new hearing was sent to the applicant at his address in the Czech Republic but returned as undelivered. The Regional Court also attempted to serve the summons on the applicant through his lawyer.
13. On 8 July 2002 the lawyer sent certain documents to the Regional Court, including a confirmation from the Russian authorities that the applicant’s official registered address in Russia was in Udomlya.
14. On 30 July 2002 the lawyer informed the Regional Court that he did not have direct contact details for the applicant in Russia and that he had sent the summons for the hearing to the address given to him by one of the applicant’s co-accused.
15. As the applicant had still not received a new passport and he objected to the hearing being held in his absence, the hearing planned for 7 to 9 August 2002 was cancelled.
16. On 12 March 2003 the Regional Court, having received no information from the applicant, made enquiries of Interpol and the trade representation of the Russian Federation in the Czech Republic as to whether the applicant had applied for a new passport.
17. The date the applicant received a new passport from the Russian authorities is disputed between the parties. The Government claimed that it was on 28 February 2003, but according to the applicant it was not until 2 April 2003. The applicant did not inform the Regional Court that he had obtained a new passport.
18. The Regional Court scheduled another hearing for 6 to 8 September 2004 and, on 22 March 2004, summoned the applicant through the Ministry of Justice at an address in the city of Podolsk in Russia, which was registered in the case file as the applicant’s place of residence in Russia. It also warned the applicant that the fact that he had not applied for a Czech visa, had remained in Russia and had not been in contact with the court was incompatible with his bail conditions, could be qualified as avoiding the criminal proceedings and could lead to the forfeiture of the sum deposited as security. The applicant was also advised of the possibility that criminal proceedings against him would be conducted in absentia.
19. The Russian Ministry of Justice informed the Czech authorities that the applicant was not registered and did not live at the address in Podolsk, and that his current place of residence had not been established. It was thus not possible to deliver the summons to the hearing.
20. Nevertheless, the applicant found out about the scheduled hearing and obtained a short-term visa allowing him to visit the Czech Republic between 2 and 12 September 2004.
21. On 2 September 2004, however, the applicant sent a fax to the Regional Court requesting adjournment of the hearing, referring to unspecified health problems and stating that he now had new lawyers, who would need time to study the case. He did not give his address in Russia. Consequently, the Regional Court was obliged to adjourn the trial once again.
22. On 28 February 2005 the Regional Court asked the Ministry of Justice to request the Russian authorities to deliver a summons to the applicant to a hearing scheduled for 21 to 23 November 2005, at the address in Podolsk or in Udomlya. However, the summons for the trial was not served on the applicant until 16 January 2006, in Udomlya. On 21 November 2005 the Regional Court again cancelled the hearing.
23. On 6 December 2005 the Regional Court decided to conduct the criminal proceedings against the applicant in absentia. It stated that the applicant had been avoiding the criminal proceedings by staying out of the country, that he had not returned to the Czech Republic since June 2002 and that he had created serious difficulties for the conduct of the trial by staying in Russia. The court also found the applicant’s excuse for not attending the hearing on 2 September 2004, namely that he had health problems, totally inadequate. It further observed that the applicant was not respecting the bail conditions he had agreed to, namely that he would appear at hearings and that he would stay at his place of residence in the Czech Republic.
24. On 27 to 29 March, 5 to 7 June, 11 September and 23 October 2006 hearings took place before the Regional Court in the proceedings against the applicant in absentia.
25. On 23 October 2006 the Regional Court fully acquitted the applicant, holding that he had not committed any criminal offence but had merely engaged in standard and transparent business activities.
26. On 28 June 2007 the Olomouc High Court upheld that judgment.
27. On 1 November 2007 the Regional Court, at the applicant’s request, ruled that the bail should be returned to the applicant, as he had not been duly informed about the consequences of not complying with the conditions of bail. Moreover, none of the situations envisaged by Article 73a § 4 of the Code of Criminal Procedure for forfeiting the bail was applicable.
28. On 5 December 2007 the High Court quashed that decision and ruled that the bail was forfeited. It held that the applicant must have known about the possibility of forfeiture of the bail even though he had not been formally informed about it because his requests for release on bail had contained declarations that he had been aware of the possibility of forfeiture should he break the bail conditions. It also held that it was true that for some time the applicant had been unable to return to the Czech Republic because he had lost his passport and the Czech authorities had taken time to issue him with a new visa. However, the applicant had failed to collect correspondence at the address in Podolsk, which was one of the addresses he had given to the prosecuting authorities, and thus letters from the court could not be delivered to him in time. It was also clear from the applicant’s behaviour that he was avoiding criminal prosecution by remaining out of the country. Nor had he kept in contact with the Regional Court, even though he had known about the proceedings. The conditions for forfeiture of the bail under Article 73a § 4 of the Code of Criminal Procedure were thus fulfilled, and in particular the applicant had been in hiding, had failed to inform the relevant authorities of his place of residence, and had thus frustrated delivery of an official letter.
29. The applicant lodged a constitutional appeal against that decision, arguing that it was unjust that such a large sum should be forfeited, even though he had not committed any crime. He also disputed the findings of the High Court.
30. On 3 June 2008 the Constitutional Court dismissed the appeal as manifestly ill-founded.
31. Article 73a §§ 1 and 2 of the Code of Criminal Procedure provides that individuals in pre-trial detention may be released on bail with a minimum security of CZK 10,000, the actual amount being determined by the court, depending on the particular circumstances of the accused and the case.
32. Under Article 73a § 4 (§ 3 at the relevant time) of that provision bail will be forfeited, inter alia, if the accused absconds, goes into hiding or does not inform the relevant authorities of a change of place of residence, and thus frustrates delivery of an official letter. Under Article 73a § 9 (§ 6 at the relevant time) the accused must be informed in advance of the conditions under which bail may be forfeited.
NON_VIOLATED_ARTICLES: P1
NON_VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-114535
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: LOYKA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Tobiáš Loyka, is a Slovak national, who was born in 1947 and lives in Bratislava. He was represented before the Court by Mr B. Jablonka, a lawyer practising in Bratislava.
2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant was detained and tried on a charge of fraud. So far as the subject matter of the present application is concerned, the term of the applicant’s detention was authorised until 14 March 2008.
4. Prior to the expiry of the authorised term of his detention, and by means of several applications, the applicant sought the withdrawal of all the judges of the courts involved in his case on the grounds of bias.
5. The applicant also requested release and the public prosecution service requested an extension of the term of the applicant’s detention. Both requests were dismissed by the Poprad District Court (Okresný súd) and, following interlocutory appeals (sťažnosť), by the Prešov Regional Court (Krajský súd) on 8 February and 5 March 2008 respectively.
6. On 13 March 2008 the applicant was indicted to stand trial on the above charges and, the following day, that is to say on 14 March 2008, he submitted an urgent request for release, relying on the expiry of the term of his detention on that very day, as mentioned above.
7. On 17 March 2008 the president of the District Court bench trying the applicant informed him by way of a letter, in response to his request for release, that it was sufficient for the lawfulness of his detention to be examined at a later date, together with the preliminary examination of the indictment (predbežné prerokovanie obžaloby).
8. Of the challenges for bias submitted by the applicant, the one which is decisive for the purposes of the present case was directed against all the judges of the District Court. It was dismissed as unfounded by the Supreme Court (Najvyšší súd) and its decision was served on the District Court on 27 March and 15 April 2008, respectively.
9. On 15 April 2008, after receiving the Supreme Court’s decision concerning the impartiality of its judges, the District Court dismissed the applicant’s request for release of 14 March 2008, and ruled that he should remain in detention.
10. On 7 May 2008, following an interlocutory appeal by the applicant, the Regional Court came to the conclusion that, in the absence of a decision to extend his detention beyond 14 March 2008, the applicant’s detention had had no lawful basis. It therefore quashed the decision of 15 April 2008 and ordered the applicant’s release: the order was implemented immediately.
11. The trial is still pending.
12. On 1 April 2008 the applicant lodged a complaint under Article 127 § 1 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd).
Relying on Article 5 §§ 3 and 4 of the Convention, the applicant contended that the District Court had arbitrarily failed to release him from detention from 14 March 2008 onwards and to determine speedily the lawfulness of his detention when he had requested release on that day.
The applicant sought an order for his release and the equivalent of some 15,350 euros (EUR) in damages.
13. In reply to the complaint, the District Court argued that it had not been possible for it to determine the applicant’s request for release of 14 March 2008 as long as and until his challenge of bias against all its judges had not been determined. It had ruled on the applicant’s request the same day, as soon as it had been determined and the Supreme Court decision of 27 March 2008 in that respect had been served on the District Court.
14. On 17 April and 3 September 2008 respectively the Constitutional Court declared the complaint admissible and found a violation of the applicant’s rights under Article 5 § 4 of the Convention. It held that, in the circumstances, a decision on the applicant’s request for release had been in the category that had to be taken immediately (neodkladný úkon) and should have taken precedence over the determination of impartiality of the District Court’s judges.
At the same time, the Constitutional Court held that the complaint under Article 5 § 3 of the Convention was consumed by that under Article 5 § 4 of the Convention.
As to the applicant’s just satisfaction claim, the Constitutional Court held that the protection of the applicant’s rights had been completed by his release and that, in the circumstances, the finding of a violation of his rights was sufficient redress for him. Lastly, the applicant was awarded costs.
The Constitutional Court’s judgment (nález) was served on the applicant on 16 October 2008 and no appeal lay against it.
15. The relevant part of Article 46 reads as follows:
“...
3. Everyone shall have the right to compensation for damage caused by an unlawful decision of a court, other State body or a body of public administration, or by wrongful official action.
4. Conditions and details ... shall be provided for by an Act of Parliament.”
16. Article 127:
“1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may award appropriate financial compensation to a person whose rights under paragraph 1 have been violated.
4. Liability for damage or other loss in respect of a person who has violated rights or freedoms as referred to in paragraph 1 shall not be affected by a Constitutional Court decision.”
17. The Constitutional Court Act (Law no. 38/1993 Coll., as amended) governs the organisation of the Constitutional Court, the procedure before it and the status of its judges.
An individual complaint under Article 127 of the Constitution is made subject to the rule of exhaustion of ordinary remedies, which is formulated in the relevant part of section 53(1) and (2) as follows:
“1. A[n] [individual] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means, which a statute effectively provides to [the complainant] with a view to protecting [the complainant’s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute.
2. The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under paragraph 1 has not been fulfilled, if the complainant establishes that [the complainant] has not fulfilled this condition for reasons worthy of particular consideration.”
18. Under its section 56(4), when dealing with individual complaints, in the event of a finding of a violation of a fundamental right or freedoms:
“The Constitutional Court may also grant appropriate financial compensation to a person whose fundamental right or freedom has been violated.”
19. Section 56(6) provides that:
“If the Constitutional Court quashes a final and binding (právoplatné) decision, measure or act and remits the matter for further proceedings, the person who issued the decision, decided on the measure or carried out the act is liable to examine and determine the matter anew. In such proceedings or procedure [he] is bound by the legal view of the Constitutional Court.”
20. In connection with the present application, as well as three other individual applications under the Convention of a similar kind, the Constitutional Court produced a report.
The report is dated 7 March 2011 and concerns specifically the existence of an enforceable right to compensation, as required by Article 5 § 5 of the Convention, in respect of detention in contravention of Article 5 §§ 1 to 4 of the Convention and the Constitutional Court’s practice in awarding appropriate financial compensation.
The report and case-law references contained therein can be summarised as follows.
21. Awarding appropriate financial compensation under Article 127 § 3 of the Constitution is an optional remedy in respect of a violation by a public authority of fundamental rights and freedoms of individuals and legal entities which has been found by the Constitutional Court. The purpose of appropriate financial compensation is to complete the protection of the fundamental right violated in instances where it has been established that the violation occurred in such a way as to call for a level of protection higher than the mere finding of a violation or, as the case may be, an order by the Constitutional Court that a case be dealt with without a violation of the fundamental right in question (cases nos. IV ÚS 410/04 and IV ÚS 139/08).
The question of an award of appropriate financial compensation arises in particular where it is not possible to remedy a violation of a right or freedom by way of quashing the impugned decision or measure or by restoring the status quo ante (case no. I ÚS 15/02).
The purpose of appropriate financial compensation is to reduce the loss felt as a result of the violation of the fundamental right; the Constitutional Court determining the award of compensation on an equitable basis and taking into account the circumstances of the individual cases concerned (mutatis mutandis, case no. III ÚS 424/08).
22. As regards the system of remedies in respect of detention in violation of Article 5 §§ 1 to 4 of the Convention, by virtue of Article 127 § 4 of the Constitution, the liability of a person who has violated rights or freedoms as referred to in paragraph 1 of that Article for damage or other loss is not to be affected by the Constitutional Court’s decision, including on appropriate financial compensation. This provision is of particular relevance in correlation with the right to compensation for damage (including non-pecuniary damage) caused by a public authority under the State Liability Act.
23. The provision of Article 127 § 3 of the Constitution, which allows for an award of appropriate financial compensation, is a special and autonomous remedy, which is independent of the State Liability Act. It does not constitute a lex specialis and, therefore, an award or non-award of appropriate financial compensation under Article 127 of the Constitution does not preclude a claim for compensation for pecuniary or non-pecuniary damage under sections 7, 8 and 9 of the State Liability Act.
24. The State Liability Act (Law no. 514/2003) was enacted on 28 October 2003 and became operative on 1 July 2004. It provides for the liability of the State for damage which has been caused by, inter alia, unlawful arrest, detention (zadržanie) or other deprivation of liberty (section 3(1)(b)); decisions concerning remand in custody (väzba) (section 3(1)(c)); and wrongful official action (section 3(1)(d)).
25. Pursuant to section 7, where a decision on arrest, detention or any other deprivation of liberty has been quashed as being unlawful or where there has been wrongful official action in that context, a person affected by it is entitled to compensation for damage.
26. The right to compensation for damage caused by a decision concerning detention on remand is vested in the person who has been detained, provided that the criminal proceedings against him or her have been dropped (section 8(5)(a)), or he or she has been acquitted (section 8(5)(b)), or the matter has been referred to another authority (section 8(5)(c)).
27. However, no such right arises when the person concerned himself or herself has given cause to be remanded in custody (section 8(6)(a)).
28. Section 9, which deals with compensation for damage caused by wrongful official action, provides:
“1. The State is liable for damage caused by wrongful official action. Wrongful official action includes a public authority’s failure to take action or issue a decision within the statutory time-limit, general inactivity in the exercise of public authority, unjustified delays in proceedings or other unlawful interference with rights and legally recognised interests of individuals and legal entities.
2. The right to compensation for damage caused by wrongful official conduct is vested in the person who sustained the damage.”
29. Section 17 defines the manner and extent of compensation for damage. Its relevant part provides:
“1. Damage and lost profit shall be compensated for, unless special legislation provides otherwise.
2. In the event that the finding of a violation of a right alone is not adequate compensation in view of the loss caused by the unlawful official action or wrongful official conduct, monetary compensation shall also be awarded for non-pecuniary damage, if it is not possible to compensate for it otherwise.”
30. Under section 25(4), unless provided for otherwise by special legislation, disputes concerning matters regulated by the State Liability Act are to be decided upon by the courts.
31. In a judgment of 16 March 2007 (in case no. 4C 258/2006) the Brezno District Court allowed an action for damages by two individuals against the State under the State Liability Act and ordered the defendant to pay the costs of their defence in a criminal trial that had ended with their acquittal.
On 22 November 2007 the Banská Bystrica Regional Court upheld the judgment following the defendant’s appeal.
32. On 14 October 2009 the Bratislava Regional Court allowed an appeal (case no. 2Co 238/2008) in an action by an individual against the State under the State Liability Act for damages and awarded him a sum of money in compensation for non-pecuniary damage caused by his remand in custody in the context of a criminal trial that had ended with his acquittal.
33. In a judgment of 17 August 2009 (case no. 19C 47/2006) the Bratislava I District Court allowed an action for damages by an individual against the State under the State Liability Act and awarded the claimant a sum of money in compensation for non-pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial.
The impugned wrongful official action concerned extension of the claimant’s detention pending trial.
The action was preceded by a constitutional judgment of 19 October 2005 (case no. I. ÚS 65/05) in which the Constitutional Court found a violation of the claimant’s rights under Article 5 §§ 3 and 4 in connection with the same facts.
However, the Constitutional Court did not award the claimant damages as he had made no claim for damages.


ITEMID: 001-90450
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MARKOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1952 and lives in Moscow.
5. In February 1996 the applicant’s neighbour caused a flood in the applicant’s flat. According to the applicant, she sent a statement of claims to the Basmanniy District Court of Moscow by regular mail in November 1996. She sought compensation for damage caused by her neighbour. It is unclear whether the applicant’s statement was received by the District Court.
6. On 14 January 1997 the applicant resubmitted her tort action against her neighbour to the Basmanniy District Court of Moscow. On 10 October 1997 the proceedings were stayed pending an expert examination. They were subsequently resumed on 10 March 1998 with no examination having been performed.
7. From 28 April 1998 to 17 February 1999 several hearings were adjourned either because the defendant had not attended or because the judge was busy on another case.
8. On 17 February 1999 another expert examination was ordered. The parties refused to pay for it. The examination was not performed and on 13 May 1999 the experts returned the case file to the District Court. On 8 June 1999 and 10 April 2000 the court made an offer to the applicant to pay for the expert report. According to the Government, she did not reply to the offer.
9. On 3 August 2000 the Basmanniy District Court resumed the proceedings.
10. On 15 August 2000 the hearing was adjourned because the parties had not attended. On 24 August 2000 the Basmanniy District Court refused to examine the action because the parties had again failed to appear.
11. On 4 September 2000 the applicant complained to the Moscow City Court that she had not been properly notified of the hearing of 24 August 2000 and had been unable to attend.
12. On 8 September 2000 the Moscow City Court quashed the decision of 24 August 2000 and ordered the proceedings to be resumed. A hearing was listed for 6 December 2000.
13. From 6 December 2000 to 3 June 2002 several hearings were adjourned either because the defendant had not attended or had asked for an adjournment or because the judge was busy on another case.
14. On 3 June 2002 the Basmanniy District Court of Moscow granted the applicant’s action in part and awarded her 10,000 Russian roubles as compensation for damage.
15. On 22 October 2002 the Moscow City Court upheld the judgment on appeal.
16. On many occasions in 2001-2002 the applicant complained to various domestic officials, including the Supreme Judicial Appointments Board, the Judicial Department of the Supreme Court of Russia, the Moscow City Court, and the Ministry of Justice, of the excessive length of the proceedings in her case.
17. It appears that her complaints were either left unanswered or redirected to the Basmanniy District Court of Moscow.
VIOLATED_ARTICLES: 13
6