ITEMID: 001-98353
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BEKTAŞ AND ÖZALP v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violations of Art. 2 (substantive aspect);Pecuniary and non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The first applicant was born in 1968 and lives in Adana. The second applicant was born in 1966 and lives in Hatay. The first applicant is the wife of Mr Murat Bektaş and the second applicant is the sister of Mr Erdinç Arslan. Mr Bektaş and Mr Arslan were killed by police officers on 5 October 1999.
6. On 5 October 1999 at around 9.30 p.m. six police officers from the antiterrorist and special forces of Adana police headquarters raided a block of flats where Murat Bektaş, aged 32, and Erdinç Arslan, aged 22, had been living. The following day at 4.00 a.m. a police report (olay-yakalama-ev arama-zapt etme-görgü tespit tutanağı) was drawn up and signed by thirtysix police officers.
7. According to this report, at 9.00 p.m. on 5 October 1999 Adana police headquarters received an anonymous telephone call. The caller stated that several persons had been acting suspiciously and carrying bags and suitcases into one of the flats on the third floor of a building.
8. A total of thirty-six police officers arrived outside the block of flats at around 9.30 p.m. and secured the surrounding area. Seven officers went up to the landing on the third floor, where there were three doors. There was no lighting in the building and it was dark. As the police officers did not know which flat to enter, they decided to raid all of them at the same time. Immediately thereafter, shots were fired from one of the flats but the police officers were unable to determine from which of the three flats the shots were coming.
9. At that moment one of the doors was opened by a man carrying a gun who, upon seeing the police officers, closed the door immediately and locked it. The officers told this person that they were police officers and ordered him to surrender. As he did not reply, the police officers broke the door and, without entering the flat which was also in the dark, started firing towards the ceiling and the upper parts of the walls.
10. At around that time the police officers realised that the gunfire had in fact been coming from the flat on the opposite side of the landing and ordered the persons in that flat to surrender. However, the occupants chanted slogans and continued shooting. The officers then broke down their door, entered the flat – which was also in the dark – and returned fire. The occupants of the flat then retreated to a room and the police officers intensified their fire towards that room. When the officers realised that no more gunfire was coming from the occupants of the room they stopped firing. In this room the police officers captured a certain Mr Mustafa Köprü alive, and found Mr Erdinç Arslan's body. Upon discovering that there were explosives in the flat the police officers left the building for their own safety and notified bomb disposal experts, who subsequently arrived and defused the explosives.
11. Meanwhile, a number of other officers entered the first flat and found the second applicant and her three-year-old son as well as the body of Murat Bektaş.
12. The same evening the Istanbul prosecutor arrived at the scene of the incident. In his presence the police officers searched Erdinç Arslan's flat and found a Kalashnikov machine gun numbered SG29101, a Unique firearm, empty cartridges and bullets. The police officers found a Star firearm numbered 1898622 in Murat Bektaş's flat. They also recovered empty Kalashnikov cartridges and bullets by the entrance to Mr Bektaş's flat.
13. On 6 October 1999 at 12.30 a.m. the Adana prosecutor drew up a report from which it appears that he arrived at the scene of the incident after having received a telephone call from the security forces. The prosecutor first conducted an inspection in Erdinç Arslan's flat and observed the presence of a Kalashnikov machine gun, another firearm, several cartridges, bullets, empty cartridges, explosives and materials for making explosives. In Murat Bektaş's flat the prosecutor noted the presence of the Star firearm and the empty Kalashnikov cartridges and bullets. The prosecutor further observed and recorded in his report the existence of numerous bullet marks on the walls and ceilings in both flats. The prosecutor stated in the report that a doctor from the Forensic Medicine Institute had examined the corpses and had observed that there were bullet entry wounds to Erdinç Arslan's head, abdomen and lumbar regions. As regards Murat Bektaş, the doctor had noted bullet entry wounds on his head and hands. The doctor had concluded that classic autopsies were required in order to establish the cause of death. The corpses were then sent to the morgue of the Forensic Medicine Institute.
14. The same day autopsies were carried out on the bodies of the two deceased men. It appears from the autopsy reports that Murat Bektaş was shot in the head and hands. A bullet entry wound was observed on his left temple. Another bullet entry wound was observed on the back of his right hand. The third bullet had entered his left hand through the third finger. Bullet exit wounds were observed in the occipital region, on the right palm and on the left wrist. The experts were unable to determine the number of bullets which Murat Bektaş had received to his head. They maintained that all the shots had been fired at long range. Murat Bektaş's death was stated to have been caused by a fractured skull, laceration of the brain and a cerebral haemorrhage as a result of firearms injuries.
15. The report concerning Erdinç Arslan revealed that he had been shot in the head and chest. Two bullet entry wounds were observed in the left orbital region. One bullet entry wound was found on the left side of the chest. The bullet exit wounds were found on the left parietal region and the right side of the lumbar region. The forensic experts concluded that the bullets to Erdinç Arslan's head had been fired at long range, but they were unable to determine the distance because the deceased's clothing had been covering his body.
16. Also on 6 October 1999 a police chief informed the Adana prosecutor that the fingerprints taken from “the two dead terrorists” did not match any fingerprints in their archives.
17. On 7 October 1999 Mustafa Köprü, who survived the shooting, made a statement before the Adana prosecutor regarding the incident. He maintained, inter alia, that he and Erdinç Arslan had rented the flat ten days before the incident and had been manufacturing explosives there. On the day of the incident, when he had heard footsteps on the roof, he had approached the entrance to the flat and opened fire on the police officers who were outside the flat. The police officers had then returned fire and shot Erdinç Arslan but he had not seen Erdinç Arslan firing the Kalashnikov machine rifle.
18. On 8 October 1999 the prosecutor questioned the first applicant, who maintained, inter alia, that her husband had not had a firearm and that he had actually been on the telephone when the police officers had suddenly stormed their flat without any prior warning, opened fire and shot her husband. She had then hidden in the flat with her son. After her husband had been hit, the officers had continued firing into the flat. The officers had not informed them that they were police officers. The first applicant also gave a description of the officer who shot her husband. She stated that she had heard the officers unsuccessfully ordering the occupants of the other flat to surrender. She maintained that the shooting had continued for a while and, when it stopped, two uniformed men had entered her flat and taken her and her son outside. Before she left the flat she had looked at her husband's body and she had not seen any weapons next to him. She requested that the persons responsible for killing her husband be punished.
19. On 12 October 1999 the prosecutor questioned the police officers who had participated in the operation. The officers stated, inter alia, that they had been surprised on their arrival on the third floor by the fact that there were three doors, one of which turned out to be the door to a storeroom. While they were reflecting on how to proceed, shooting had come from one of the flats. As they could not establish from which direction the gunfire was coming, they had decided to raid all the flats. At that moment a man with a pistol in his hand had briefly emerged from one of the doors and then gone back inside. The officers had then broken the door to that flat (occupied by Murat Bektaş) and fired their weapons at random in order to warn the occupants. They had then realised that the gunfire had actually come from the flat on the other side of the landing (Erdinç Arslan's flat) and had called for assistance from the Special Forces.
20. Officers Nurettin Bülbül, Eyüp Yalçınkaya and Haydar Erol from the anti-terrorist branch stated that, together with the officers from the special forces, officer Bülbül and officer Yalçınkaya had broken the door to Mr Arslan's flat and opened fire. The occupants of the flat who had been firing at them had then retreated to a room and continued to fire from there. According to officer Bülbül, the armed clash had continued for approximately ten minutes, whereas officer Yalçınkaya was of the opinion that it had lasted for five minutes. After the operation, officers Bülbül and Yalçınkaya had seen a Kalashnikov rifle, a pistol, a cartridge and explosives in the room. Officer Yalçınkaya added that he had used a Kalashnikov rifle in the operation.
21. Officers Fevzi Mustan and Muammer Topaç from the special forces told the prosecutor that when they and their team arrived outside the building they had heard gunfire and had gone up to the third floor where they had met with officers from the anti-terrorist branch. No fire had been opened from Mr Arslan's flat before they stormed the flat. After having entered the flat they had asked the occupants of the flat to surrender but one shot had been fired in response from one of the rooms, followed by an object which had been thrown towards them from the same room and which they had considered at the time to be a bomb. They and another colleague from the anti-terrorist branch had then opened fire towards the room; they had used M16 rifles and the remaining officer had used a Kalashnikov rifle. Officer Mustan stated that he was sure that only a total of three officers – including himself – had opened fire. The firing had continued for approximately five to six seconds. After the firing had ceased, they had seen a pistol in the room but no bombs or any other rifles.
22. On 13 October 1999 Adana Magistrates' Court questioned the police officers. Officers Mustan and Topaç stated that on their arrival on the third floor landing gunfire had been coming from inside Mr Erdinç's flat. The Magistrates' Court rejected the prosecutor's request to order the pre-trial detention of six of the police officers, namely Nurettin Bülbül, Haydar Erol, Eyüp Yalçınkaya, Ali Erdurucan, Fevzi Mustan and Muammer Topaç. The following day the prosecutor successfully lodged an objection against the Magistrates' Court's decision.
23. On 18 October 1999 the first applicant identified police officer Ali Erdurucan as the person who had shot her husband Murat Bektaş.
24. The same day the six police officers being held in pre-trial detention lodged an objection against their detention. The following day the Adana Assize Court ordered the release of five of them and rejected the objection lodged by Officer Ali Erdurucan.
25. On 21 October 1999 the prosecutor heard evidence from the second applicant, who contended that on the day of the incident at around 9.35 pm. her brother Erdinç Arslan had telephoned her. She had heard him shouting “Let me go! Leave me!”. She maintained that she had heard noises on the telephone but not gunfire.
26. On 25 October 1999 the Adana prosecutor filed a bill of indictment with the Adana Assize Court. In the indictment the prosecutor stated that, prior to the operation, the security forces had failed to conduct an investigation or gather information about the suspected persons and had thus failed to plan the operation in a proper manner. The prosecutor noted that officers Nurettin Bülbül, Haydar Erol, Eyüp Yalçınkaya and Ali Erdurucan had broken down the door to Murat Bektaş's flat and entered there without issuing a warning. The prosecutor considered that, although the officers alleged that they had not directly aimed at Murat Bektaş, the wounds to Murat Bektaş's head could not have been the result of random firing. As for the firearm found next to Mr Bektaş's body, the prosecutor stated that his office had been unable to determine how the firearm had come to be there; no cartridges or bullets belonging to that firearm had been found at the scene of the incident.
27. With regard to the killing of Erdinç Arslan, the prosecutor observed in his indictment that the wound to Mr Arslan's head could not have been the result of warning shots. Noting that the deceased had only fired once, the prosecutor considered that officers Nurettin Bülbül, Fevzi Mustan and Muammer Topaç had exceeded the limits of self-defence by killing him.
28. The prosecutor charged Ali Erdurucan, Haydar Erol and Eyüp Yalçınkaya with the offence of murder. Nurettin Bülbül was charged with murder and with exceeding the limits of legitimate self-defence. Finally, Fevzi Mustan and Muammer Topaç were charged with the offence of causing death by exceeding the limits of legitimate self-defence.
29. On 12 December 1999 the Adana Assize Court (hereinafter “the trial court”) held the first hearing on the merits of the case. On the same day the applicants and the deceased men's other relatives joined the proceedings as interveners.
30. On 2 February 2000 the representative for the interveners requested the trial court to order an investigation into the accused police officers' superiors who had planned and controlled the operation. The trial court dismissed this request, holding that the intervening parties should apply to the prosecutor's office.
31. On 28 March 2000 the trial court had regard to the time spent by Officer Ali Erdurucan in detention and also noted that the collection of the evidence was almost complete. Noting that Mr Erdurucan had a permanent residence, the trial court ordered his release from prison.
32. During the subsequent hearings the trial court heard evidence from the defendants, the applicants, the intervening parties, the police officers who participated in the operation, the deceased persons' neighbours and Mustafa Köprü. Mr Köprü changed his previous statement and maintained that Erdinç Arslan had in fact fired the Kalashnikov. The trial court also conducted an on-site inspection of the two flats and ordered experts to take photographs of the scene of the incident and to draw up a sketch map.
33. During the on-site inspection on 19 February 2001, the trial court ordered an expert to draw up a report in order to determine whether the shots had been fired at random and to establish the accuracy of the police officers' account that they had not been able to establish the source of the firing at the beginning of the operation.
34. On 16 March 2001 the expert submitted his report to the trial court. He concluded that the police officers had fired their guns at random. The expert also considered that it was probable that the police officers had failed to determine the direction of the shots fired from the Kalashnikov because shots from such a powerful weapon would have caused an echo in the building.
35. On 9 May 2001 the trial court rendered its judgment. It held that there was no evidence in the case file to prove that there had been a premeditated plan to kill the two persons or that the firearms found at the scene of the incident had been planted there by the police officers who had participated in the operation.
36. With regard to the killing of Murat Bektaş, the trial court rejected the first applicant's allegation that the lights had been on in the flat at the time of the incident and that her husband had not had a firearm. The trial court considered it probable that Murat Bektaş had had a firearm in his hand as there were armed men in the building. The trial court further noted that the police officers had planned to render Mr Bektaş harmless in order to be able to arrest him. It also observed that Murat Bektaş had not fired his gun.
37. The trial court observed that the police officers had fired a total of eighteen bullets and that Mr Bektaş had been shot in the head, whereas the police officers should have aimed at other parts of his body, such as his legs and feet, in order to avoid the risk to his life. The trial court concluded that Nurettin Bülbül, Haydar Erol, Eyüp Yalçınkaya and Ali Erdurucan had exceeded the limits of their powers in resorting to force and had thus caused Murat Bektaş's death. However, the trial court could not determine which officer had actually killed Murat Bektaş and it thus reduced the four police officers' sentences to eight years, before further reducing them to six months and then suspending them altogether.
38. As to the killing of Erdinç Arslan, the trial court noted at the outset that the security forces had received information that the deceased and Mustafa Köprü had been making explosives in their flat with a view to carrying out bomb attacks on the provincial offices of the three political parties which formed the coalition Government at the time. The trial court observed that, according to the expert report of 7 October 1999, Erdinç Arslan and Mustafa Köprü's hand swabs revealed traces of antimony. It further noted that an exchange of gunfire had begun between the police officers who had secured the area outside the building and Erdinç Arslan and Mustafa Köprü, who had been in the flat. It recorded that twelve bullets had been fired from the Kalashnikov and nine from the Unique firearm; both these weapons had been found in Mr Arslan's flat. The court noted that a bullet had been fired from the room in the direction of the police officers who had been on the other side of the door.
39. The trial court considered that the police officers, who had been facing two persons armed with weapons and bombs in a confined place, could not have been expected to fire at non-life-threatening parts of Mr Arslan's body. It therefore held that Nurettin Bülbül, Fevzi Mustan and Muammer Topaç had remained within the limits of legitimate self-defence. It concluded that there were no grounds for imposing any punishment on those officers for the killing of Erdinç Arslan.
40
41. On 29 May 2002 the Court of Cassation upheld the judgment of the Adana Assize Court. On 31 July 2002 the Court of Cassation's decision was deposited with the registry of the Adana Assize Court.
42. The relevant domestic law and practice are set out in the judgment of Kasa v. Turkey (no. 45902/99, §§ 57-62, 20 May 2008).
VIOLATED_ARTICLES: 2


ITEMID: 001-81488
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: PALISKO AND PALISKOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant, Mr Ján Palisko, and the second applicant, Mrs Mária Palisková, are a married couple. They are Slovakian nationals who were born in 1954 and 1958 respectively and live in Kapušany pri Prešove. The respondent Government were represented by Ms A. Poláčková, their Agent, who was subsequently succeeded in that function by Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1989 the applicants were granted the “right of personal use” (právo osobného užívania) of a plot of land. Following changes in property law, this right was later transformed into the right of ownership.
The plot is located in the municipality of Drieňov and registered as no. 871/2. The nearest public road is Mlynská Street. Another nearby public road is Okružná Street.
The municipality is connected to the electricity and gas networks but has no access either to a public water supply or to sewage and water cleansing systems.
The area where the plot is located was subject to a development plan (zoznam pozemkov na výstavbu) issued in 1985 under the 1976 Decree on territorial-planning documentation (Decree no. 84/1976 Coll.). This plan was later transformed into a zoning plan (územný plán) under the Construction Code (Law no. 50/1976 Coll., as amended). It designated the relevant area for systematic individual construction of residential houses. The construction of a public road to connect Mlyská Street and Okružná Street and a connection to the public utility system were envisaged on land that had previously been expropriated and purchased for that purpose. If constructed, the road would provide access to the applicants’ house and the electricity and gas networks would run as close as 6 metres from the house.
Later in 1989 the applicants were granted a permit to construct (stavebné povolenie) a family house on the assigned plot and commenced the construction work.
On 13 February 1992 the Drieňov Municipal Office (Obecný úrad) held a public meeting to debate the issue of the construction of the new road. The owners of all the plots concerned were invited to attend and the majority of them stated that they were not interested in having the road constructed. The applicants were advised to seek access to their house by way of an easement through the neighbouring property of the first applicant’s family which they were using de facto for the construction work.
On 2 April 1992 the Drieňov Municipal Council (Obecné zastupiteľstvo) passed a resolution instructing the mayor to reconsider the existing zoning plan in the light of the changing circumstances and approving the sale of the land adjacent to the applicants’ plot to several individuals. The land included the plots on which the new road and the public utility connection were to be located. The sale deprived the applicants’ plot of direct access to Mlynská Street. The road and utility connections envisaged in the original plan have never been constructed. Alternative solutions were explored instead (see below).
The applicants requested to be granted, by way of an administrative decision, a right of access to their plot via the plots separating their house from Mlynská Street. In a letter of 1 June 1992 the Prešov County Environmental Office (Obvodný úrad životného prostredia) informed the applicants that in the circumstances no such right could be granted in administrative proceedings and that they should assert it in the ordinary courts. There is no indication that the applicants have done so. They received a similar response from the Prešov District Office in a letter of 17 December 2002.
In the meantime the applicants finished the construction of their house and requested that the construction be approved (kolaudačné rozhodnutie). In a letter of 23 October 1992 the County Environmental Office “returned” the request to the applicants and informed them that the construction could not be approved as, contrary to sections 6 and 7 of the 1976 Decree on general technical requirements for constructions (Decree no. 83/1976 Coll.), the house was not connected to the land communications or public utilities networks. There is no indication that the applicants formally pursued the request after receiving this letter.
Since then the applicants have been unable to use the house. In order to minimise its dilapidation they have had to carry out maintenance work. They had to stay in another flat which they eventually had to sell to be able to pay the costs of maintenance of the house. At the same time, the applicants have been liable to pay real-estate ownership tax in respect of the plot of land, but not in respect of the house.
On 8 November 1994 the Municipal Council passed a resolution approving a new zoning plan for the period until 2010. It does not envisage the construction of any land communications or utilities connections in the area and is still in place.
The applicants eventually acquired title to the property of the first applicant’s family and acquired consent from the owner of another neighbouring plot which allows their plot to be connected to the gas and electricity networks from another street a distance of more than 100 metres away. They had the gas and electricity connection installed at their own expense, the cost being substantially higher than it would have been under the old zoning plan.
Between May 1992 and April 2002 the applicants on numerous occasions raised the issue of the construction of the access road and the connection to the public utility system with the Ministry of Audit (Ministerstvo kontroly), the County Environmental Office, the Prešov District Environmental Office (Okresný úrad životného prostredia), the Prešov District Office (Okresný úrad) and the Ministry of the Environment (Ministerstvo životného prostredia). In response, they were informed that the matter primarily fell within the responsibility of the Drieňov municipal authorities and that they were free to bring their claims before a court.
On 16 July 1992 a commission convened under the auspices of the Prešov Land Office (Pozemkový úrad) observed that it was the duty of the Drieňov municipal authorities to construct an access road to the applicants’ plot of land and called on the Municipal Council to reconsider its above resolution of 2 April 1992.
On 23 September 1993, at the applicants’ request, the Prešov District Prosecutor lodged a complaint against the resolution of 2 April 1992. He considered that the municipality was under an obligation to construct an access road to the applicants’ plot and to secure a connection to the public utility system for them. The 1992 sale was arbitrary and had prevented the construction of the applicants’ house from being approved. Further to the complaint, on 6 December 1993 the Prešov District Office quashed the resolution of 2 April 1992 but its decision was later overturned by the Ministry of the Interior on appeal.
On 16 December 1993 the applicants brought a civil action challenging the 1992 sale of the land adjacent to the applicants’ plot to third parteis. On 23 May 1994 and 18 December 1995 respectively the Prešov District Court and, on appeal, the Košice Regional Court dismissed the action. They concluded that the applicants did not have a “pressing legal interest” in accordance with Article 80 (c) of the Code of Civil Procedure in having the action determined because it did not directly concern their legal position.
On 14 October 1996 the applicants submitted a request to the municipal authorities for the construction of an access road and a connection to the utilities network. The Municipal Council took notice of the request and advised the applicants to seek access to their plot by way of an agreement with the owners of the land concerned. In response the applicants applied to the Constitutional Court (Ústavný súd), challenging the way in which the municipal authorities had handled their request and claiming a violation of their property rights as protected under the Constitution. On 8 October 1997 the Constitutional Court declared the complaint inadmissible. It held that the Municipal Council’s reaction to the applicants’ request did not take the form of a decision and, as such, could not constitute a violation of individual rights. The Constitutional Court nevertheless observed that “the obligation on the [Drieňov] municipal authorities to secure an access road [for the applicants] remained undisputed” (nie je dotknutá).
The applicants also lodged a petition under Article 130 of the Constitution with the Constitutional Court, alleging that the municipal authorities’ inactivity in respect of the construction of the road amounted to a violation of their property rights under the Constitution. On 22 July 1999 the Constitutional Court declared the petition inadmissible, observing that the applicants had asserted their property rights in court proceedings and that their action was still pending (see below). In view of the subsidiary role of the Constitutional Court, a simultaneous assertion of the applicants’ rights before the Constitutional Court was not appropriate.
On 5 May 1993 the applicants brought an action against the municipality. They supplemented the action several times, ultimately seeking a judicial order for the municipal authorities to plan and construct an access road to their plot of land. They relied on Article 417 § 2 of the Civil Code, section 4(1) and (3)(e) of the Municipalities Act (Law no. 369/1990 Coll., as amended) and sections 2(3), 3(6), 3d and 4b of the Land Communications Act (Law no. 135/1961 Coll., as amended). The applicants also sought a ruling establishing an easement in their favour against the owners of the neighbouring plots. However, they later withdrew this claim.
The Prešov District Court determined the action for the first time on 29 May 1996 but the judgment was quashed on appeal.
On 12 December 1996 the District Court granted the action and ordered the municipal authorities to plan and construct an access road for the applicants within 60 days from the date on which the judgment became final. It was observed that the applicants had lawfully constructed a house. The municipal authorities had an obligation to provide an access road. Their failure to do so prejudiced the applicants’ rights and exposed them to an imminent risk of substantial damage. In these circumstances the applicants were entitled to have their interests safeguarded under Article 417 § 2 of the Civil Code. The municipal authorities were to choose the means of complying with the ruling, for example by buying out or expropriating the land concerned or establishing an easement in the applicants’ favour. The municipal authorities appealed (odvolanie).
On 26 January 2000 the Prešov Regional Court (Krajský súd) overturned the judgment of 12 December 1996 and dismissed the action. The Regional Court held that there was no legislation providing a basis for a privatelaw obligation to construct a road. The construction of roads fell within the field of construction law and, as such, could not be ordered under the general civil law.
The applicants challenged the judgment of 26 January 2000 by means of an appeal on points of law (dovolanie). They argued that the municipality was the sole entity responsible for the construction of local communications facilities on its territory. The applicants relied on Article 108 of the Constructions Code and maintained that the municipal authorities had the power to initiate expropriation proceedings in respect of the land for the access road and proceedings for establishing an easement in their favour. The applicants also relied on the protection of their property rights under the Constitution.
On 27 March 2002 the Supreme Court (Najvyšší súd) dismissed the appeal on points of law. It held that the ordinary courts could not issue enforceable orders in matters within the field of construction law. Article 417 § 2 of the Civil Code did not support the applicants’ request for a construction order, which could only be carried out in accordance with construction law.
The applicants challenged the judgments of 26 January 2000 and 27 March 2002 by lodging a complaint under Article 127 of the Constitution alleging a violation of their property rights and discrimination. On 1 October 2002 the Constitutional Court declared the complaint inadmissible, having found no constitutionally relevant illegality, arbitrariness or unfairness.
The Act regulates the legal and economic status of municipalities and their self-governance and cooperation (section 1).
General rules concerning municipal self-governance are laid down in section 4. Unless provided otherwise by statute, municipalities are independent in taking decisions and actions in respect of the administration of their property and all affairs falling within their competence (subsection 1). In particular, municipalities are self-governed in respect of the construction, maintenance and administration of local communications (miestne komunikácie) (subsection 3 (e)).
The Code lays down general rules concerning territorial planning, construction activities and expropriation in the context of construction activities and defines the status of construction authorities.
Under Article 29 § 3, as applicable at the relevant time, approved territorial-planning documentation (územno-plánovacia dokumentácia) provides a binding basis for the preparation of other categories and levels of territorial-planning documentation, for decisions concerning the use of areas and for documentation concerning specific constructions.
Expropriation is dealt with in Part 4. Land and buildings which are necessary for construction purposes may be expropriated and rights in respect of them may be restricted (“expropriation”) (Article 108 § 1).
Expropriation may take place only in the public interest in specified circumstances, for example where it is necessary for creating conditions for ensuring access to a plot of land or a construction (Article 108 § 2 (d)).
The aim of expropriation is to transfer or restrict the right of ownership or to establish, cancel or restrict easements (Articles 109 § 1). Expropriation can take place only if its aim cannot be attained by consent or by other means (Articles 109 § 2).
Expropriation is subject to a procedure before the construction authority. The procedure commences on an application by, inter alia, the individual who is to benefit from the expropriation (Article 112 §§ 1 and 2).
The expropriation procedure is concluded by means of an administrative decision on expropriation (Article 114 § 1) and, unless provided otherwise, is governed by the general rules on administrative proceedings (Article 140).
The Act regulates the construction, use and protection of land communications, the rights and duties of owners, administrators and users of land communications, and State administration and supervision of land communications (section 1(1)).
Land communications are divided according to their importance, purpose and technical nature into: (a) highways (dialnice); (b) roads (cesty); (c) local communications; and (d) utility connections (účelové komunikácie) (section 1(2)).
Local communications include streets that are generally accessible to and used by local transport and belong to the local communications network (section 4b(1)). They are the property of municipalities (section 3d(3)) and their planning, preparation and construction is the responsibility of the municipal authorities (section 2(3)).
Utility connections serve, inter alia, to connect production facilities or constructions and real estate with other land communications. They are divided into public and private (section 22(1) and (3)), may be owned by the State or other legal entities or individuals (section 3d(4)) and their planning, preparation and construction is in general the responsibility of the owners (section 2(3)).
In the event of a serious threat, the person threatened may seek a judicial order for appropriate and adequate measures to be taken in order to avert any impending damage (Article 417 § 2).
The Decree was issued by the Ministry for Technical and Investment Development and published in the Collection of Laws as no. 83/1976.
Pursuant to section 6(1), all constructions must be accessible from public land communication facilities by means of a communication node or a utility connection which must be completed before the construction is approved. Constructions must have adequate access to the water, energy and sewage systems prior to their approval (section 7(1)).


ITEMID: 001-111404
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GRYAZNOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1967 and lives in Kaliningrad.
6. In 2000 the applicant was convicted of extortion and aggravated murder and sentenced to seventeen years’ imprisonment. On 12 October 2000 he was transferred to a correctional colony in the Kaliningrad Region to serve his sentence.
7. On 1 July 2002 the applicant sued the investigator for compensation, claiming that he had been ill-treated to make him confess. In his statement of claim he alleged that on 17 March 1999 the investigator had beaten him and injured his lips, forehead and ears. The investigator had also threatened to kill him. After he had confessed to the murder, he had been placed in a detention facility. He had applied for medical assistance, which had been refused. On 23 March 1999 he had been questioned and the questioning had been videotaped. In his statement of claim he asked the court to watch the videotape, in which it could be seen that his lips were cut. He also asked the court to hear his counsel, Ms V., who had seen marks of beatings on his face. He finally indicated that he wanted to give oral submissions and requested to be brought to the hearing.
8. On 25 September 2002 the Leningradskiy District Court of Kaliningrad rejected the applicant’s requests to be brought to the hearing and to summon Ms V. It stated that domestic law did not give a detainee the right to be brought to a hearing in a civil case. Referring to legal professional privilege, it held that Ms V. could not be questioned about the information that had become known to her in the performance of her duties as counsel. It further requested the prosecutor’s office of the Kaliningrad Region to make available the video record of the applicant’s questioning.
9. On 29 October 2002 the prosecutor’s office of the Kaliningrad Region informed the court that the record of the questioning had been erased as unnecessary.
10. On an unspecified date the prosecutor’s office of the Kaliningrad Region and the local department of the Ministry of Finance made written submissions in support of the respondent.
11. On 14 November 2002 the applicant repeated his request to attend the hearing. On 20 November 2002 the Leningradskiy District Court rejected his request, giving the same reasons as before. It added that the applicant was entitled to appoint a representative.
12. On 10 December 2002 the Leningradskiy District Court heard the investigator, who denied beating the applicant. The applicant was not brought to the hearing.
13. On the same day the Leningradskiy District Court gave its judgment. It rejected the applicant’s claim for compensation as unsubstantiated.
14. On 16 December 2002 the applicant received the decision of 20 November 2002 and a notification stating that the hearing before the Leningradskiy District Court was scheduled for 10 December 2002. On the same day the applicant complained to the District Court about the belated notification. He also submitted that he did not have a representative and that his personal attendance was important because his claim was based on his personal experience. He asked that a new hearing be scheduled and that he be brought to that hearing.
15. On 26 December 2002 the applicant received a copy of the judgment of 10 December 2002. In his appeal submissions he complained, in particular, that he had not been brought to the hearing, and about the court’s refusal to summon Ms V. He further complained that, despite his many requests, he had had no opportunity to study the materials submitted by the respondent, or to comment on them.
16. On 29 January 2003 the applicant received the transcript of the hearing of 10 December 2002 and copies of written submissions by the prosecutor’s office of the Kaliningrad Region and the local department of the Ministry of Finance.
17. On 4 March 2003 the applicant received the remaining materials from the case file.
18. On 12 March 2003 the Kaliningrad Regional Court upheld the judgment on appeal. The applicant was not brought to the appeal hearing.
19. On an unspecified date the administration of the applicant’s correctional colony applied to a court, asking it to order the applicant’s transfer to prison for three years.
20. On 10 April 2002 the Bagrationovskiy District Court of the Kaliningrad Region granted the request. It held that the applicant had often disrupted the colony regime or infringed colony regulations, and had frequently been placed in a punishment or solitary cell. It concluded from this that the applicant was of an unruly character and was a bad influence on the other inmates.
21. On 11 April 2002 the applicant was transferred to prison.
22. On 10 September 2002 the Kaliningrad Regional Court quashed the decision on appeal as having no basis in domestic law.
23. On 8 October 2002 the applicant was transported back to the colony.
24. On 27 January 2003 the applicant sued the judge who had ordered his transfer to prison and the Kaliningrad Regional Department of the Ministry of Finance for compensation. He claimed that the judge had unlawfully ordered his transfer to prison and that her unlawful decision had caused him mental suffering for which he should be compensated by the Ministry of Finance.
25. On 9 April 2003 the Kaliningrad Regional Court declared the claim inadmissible in the final instance. It held that Article 1070 of the Civil Code, which provided for compensation for damage caused by unlawful judicial decisions, contained an exhaustive list of cases in which such compensation could be paid. The applicant’s situation did not fall within the cases specified.
26. Before 1 February 2003 the civil procedure was governed by the RSFSR Code of Civil Procedure of 11 June 1964 (“the old CCP”). On 1 February 2003 the Code of Civil Procedure of the Russian Federation (“the CCP”) entered into force.
27. Individuals may appear before the court in person or act through a representative (Article 43 § 1 of the old CCP and 48 § 1 of the CCP). A court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50 of the CCP). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims for damage to health (section 26 § 1).
28. Parties to the case must be notified of the time and place of court hearings (Article 144 of the old CCP and Article 155 of the CCP). Summons are to be served on the parties and their representatives in such a way that they have enough time to appear at the hearing and prepare their case (Article 106 § 2 of the old CCP and Article 113 § 3 of the CCP). If a party to the case fails to appear and there is no evidence that the party has been duly summoned, the hearing must be adjourned (Article 157 § 1 of the old CCP and Article 167 § 2 of the CCP).
29. A court may hold a session outside the court-house if, for instance, it is necessary to examine evidence which cannot be brought to the court-house (Articles 66 and 179 of the old CCP and Articles 58 and 184 of the CCP).
30. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). The Code does not mention any possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or a defendant.
31. On several occasions the Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings have been refused by courts. It has consistently declared those complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code do not, as such, restrict the convicted person’s access to court. It has emphasised nonetheless that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving his sentence, or the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the applicant’s submissions or to take any other procedural steps (decisions 478-O of 16 October 2003, 335-O of 14 October 2004, and 94-O of 21 February 2008).
32. Parties to civil proceedings are entitled to study the case file and make copies of documents, submit evidence, and ask questions of the other party and the witnesses (Article 30 of the old CCP and Article 35 of the CCP).
33. Parties must submit evidence in support of their submissions. If they are unable to obtain a certain piece of evidence, the court may, at their request, order that the person, organisation or State body in possession of that piece of evidence make it available to the court (Articles 50, 64 and 69 of the old CCP and Article 57 of the CCP).
34. Each party must send the other party a copy of its submissions and supporting evidence (Article 149 of the CCP). All evidence must be examined by the court at the hearing in the presence of the parties. The parties must be provided with copies (Articles 175 and 178 of the old CCP, Articles 180-183 of the CCP).
35. Parties may ask the court to examine witnesses. They must explain to the court which relevant facts that witness may confirm. The court then decides whether that witness should be summoned to testify (Articles 61 § 3 and 142 § 1 (6) of the old CCP and Articles 69 § 2 and 150 § 1 (7) of the CCP). Counsel in criminal, civil or administrative proceedings may not be questioned about the circumstances that have become known to them as a result of the performance of their duties (Article 61 § 2 (1) of the old CCP and Article 69 § 3 (1) of the CCP).
36. The Civil Code provides that damage inflicted on the person or property of an individual shall be reimbursed in full by the person who inflicted the damage (Article 1064 § 1).
37. Damage caused through unlawful conviction, unlawful prosecution, unlawful placement in custody or order not to leave the place of residence, unlawful administrative arrest or correctional work, shall be compensated by the federal or regional treasury, irrespective of any fault by the judges or law-enforcement officials (Article 1070 § 1 of the Civil Code). The federal or regional treasury shall also be liable for damage sustained by an individual as part of the administration of justice, provided that the judge’s guilt has been established in a final criminal conviction (Article 1070 § 2).
38. By a ruling of 25 January 2001, the Constitutional Court provided an interpretation of Article 1070 § 2 of the Civil Code. It held that a judge’s criminal conviction was a necessary element of a claim for damages on account of an unlawful judicial decision issued by that judge in the context of civil proceedings. It reasoned as follows:
“3...This special precondition for State liability for damage caused as part of the administration of justice is justified by the criteria for the activities of the judiciary, established by the Constitution of the Russian Federation and detailed in the legal provisions on [civil] procedure (including adversarial proceedings, wide margin of appreciation of the judges, and so on), and by the existence of a special procedure for review of judicial decisions. Review of judicial decisions, that is assessment of their lawfulness and justification, must be carried out through special procedures established by law: appeal, cassation and supervisory review proceedings. Review of a judicial decision in separate tort proceedings would have amounted to an additional review of its lawfulness and justification...
This is unacceptable ... because it would have led to a situation where a party to judicial proceedings which considers that it has been a victim of unlawful actions by a judge would have recourse not only to appeal proceedings, but also to a tort action, and the judges would have had to prove each time absence of fault on their part. This would have undermined the existing system of review of judicial decisions by higher courts, which is intrinsic to the judiciary and is established by law.
4. Administration of justice is a special type of State power. When applying a general legal rule to the circumstances of a given case, a judge provides an interpretation of the rule, takes a decision within the scope of his (at times wide) margin of appreciation provided by the law and, often, assesses the circumstances without the benefit of sufficient information (sometimes concealed from him)...
Article 1070 § 2 not only excludes a presumption of fault on the [judge’s] part, but also requires the establishment of the judge’s guilt in a criminal judgment as an additional condition of State liability. Thus, Article 1070 § 2 links State liability to a criminal act by a judge, which is premeditated (pronouncement of a deliberately unlawful conviction, judgment or another decision, an offence under Article 305 of the Criminal Code of the Russian Federation) or negligent (improper exercise of his powers by a judge as a result of a negligent or careless attitude to his duties, which results in a substantial breach of citizens’ rights or legitimate interests, an offence under Article 293 of the Criminal Code of the Russian Federation).
It follows from Article 1070 § 2 of the Civil Code, taken together with its Article 1069 and the above-mentioned and other provisions of the Criminal Code on the basis of which a judge may be held criminally liable, that the State is liable for damage in all cases where it has been caused by a criminal act committed by a judge as part of judicial proceedings.
The specific nature of the disputed provision which provided for an exception to the general rules governing compensation for damage warrants a conclusion that the term “administration of justice” does not cover judicial proceedings in their entirety, but only extends to judicial acts touching upon the merits of a case...”
39. The Constitutional Court further held that other judicial acts, mainly those of a procedural nature, fell outside the scope of the notion of “administration of justice”. State liability for damage caused by such procedural acts or failures to act, such as a breach of the reasonable length of court proceedings, could arise even in the absence of a final criminal conviction of a judge, if the fault of the judge has been established in civil proceedings. An individual should be able to obtain compensation for any damage incurred through a violation by a court of his or her right to a fair trial within the meaning of Article 6 of the Convention. The Constitutional Court held that Parliament should legislate on the grounds and procedure for compensation by the State for damage caused by unlawful acts or failures to act on the part of a court or a judge in such cases, and should determine territorial and subject-matter jurisdiction over such claims.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-105017
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: SUHADOLC v. SLOVENIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Mr Uroš Suhadolc, is a Slovenian national who was born in 1961 and lives in Tržič. He was represented before the Court by Mr L. Poljanec from Slovenska Bistrica. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney.
The facts of the case, as submitted by the parties, may be summarised as follows.
On the evening of 12 May 2006 the applicant was driving a car near the town of Kranjska Gora, where a police officer using a laser speed measurement device identified his speed as 76 km/h. The speed limit was 50 km/h. The applicant’s car was stopped and he was asked to undergo a breath alcohol test. Two police officers conducted the procedure. The electronic device for measuring the level of alcohol in the applicant’s breath gave a reading of 0.39 mg/l. The applicant was informed that he was charged with committing two road traffic offences under the Road Traffic Safety Act, namely the offences of driving in excess of the speed limit and driving under the influence of alcohol, with a blood alcohol content of at least 0.34 milligrams of alcohol in one litre of breath. He was barred from continuing to drive. Two reports were prepared on the spot. A report concerning the measurement of the applicant’s speed contained, amongst other information, the specification of the speed measuring device, the date, time and place of the measurement and the results captured by the device, as well as the name of the officer using the device and the identification number of the certificate proving his competence to use the device. The report concerning the breath alcohol test contained, amongst other information, the specification of the device used and the results, and noted that the applicant had agreed with the results. The applicant also signed the report and was given a copy of it. Lastly, the applicant was issued with a written notice indicating the charges and inviting him to submit a written statement in reply within five days.
On 16 May 2006 the applicant submitted a written statement in which he denied committing any offence. He argued that the speed measuring device should not have been used in the dark and that his vehicle did not have the capacity to reach the speed shown by the device. The police must have confused his car with another vehicle or misused the speed measuring device. He further argued that there had been no road signs indicating the speed limit on the road where he had been driving. Moreover, the applicant disputed the credibility of the breath alcohol test and alleged that it had been exposed to factors whose presence or functioning could have interfered with the results, such as the police radio.
On 8 August 2006 the Kranjska Gora Police issued a decision. The applicant was found to have committed the two offences and was given a fine – combined to cover both offences – of 100,000 Slovenian tolars (SIT) (approximately 400 euros (EUR)) and seven penalty points. The decision referred to the two police reports, which indicated the results of the speed measurement and the breath alcohol test. It rejected the applicant’s arguments concerning the misuse of the speed measuring device, noting that the device had been designed in such a way that in the event of any interference, the wrong position being used or a loss of signal no result would be shown. It also referred to the confirmation of the Slovenian Metrology Institute that the type of device in question complied with the relevant technical requirements. As regards the breathalyser, the decision mentioned that special tests had been carried out at the request of the Ministry of Interior to verify the effect of mobile phones and radio devices on breathalyser results. The tests proved that there was no such effect. As regards the applicant’s argument concerning the lack of a road sign showing the speed limit, the police explained that the speed limit of 50 km/h applied by virtue of the general rule concerning the speed limit in inhabited areas. Finally, the applicant was ordered to pay approximately 20,000 SIT (approximately EUR 80) for the costs of the proceedings.
On 12 September 2006 the applicant lodged a request for judicial review. He alleged that only a judge could have validly convicted him. He further complained that the time-limit for the submission of the request for judicial review was too short. He denied committing the offences and demanded that the police prove their allegations. In particular, he asked the police to prove that it had been his speed captured by the device, and to supply documents demonstrating the credibility of the laser machine’s results and the method used to measure the level of alcohol in his breath, as well the competence of the officer to handle the speed measuring device.
The Jesenice Local Court delivered a judgment rejecting the request as unsubstantiated on 15 April 2008. The court noted at the outset that the applicant had lodged a “standard” request for judicial review. It found that the procedure had not infringed applicable legislation and, in particular, that the facts had been properly established by the police officers. The court referred to the two reports prepared by the officers on the spot, a certificate which demonstrated that the respective police officer had undergone appropriate professional training for the use of the laser device in question and the confirmation of the Slovenian Metrology Institute that this type of device complied with the relevant technical requirements. As regards the breath alcohol test, the court noted that the applicant’s conviction for driving under the influence of alcohol had been based on the report indicating the results of the breath alcohol test, which had been signed by the applicant without comment. Since the applicant had agreed with the report, no further steps had been taken by the police to establish the applicant’s level of intoxication. Finally, the court also found that the impugned decision had not violated the applicant’s constitutional rights, as it had been issued in accordance with applicable law and judicial review had been available to him. The court also rejected his complaint concerning the eight-day time-limit, stating that this was a statutory time-limit of which he had been informed in the police’s decision. The applicant was ordered to pay EUR 90 for the costs of the proceedings.
On 9 May 2008 the applicant lodged a constitutional appeal, alleging a violation of fair trial guarantees – in particular, that any fine should be imposed by a judicial and not by a police procedure; that he had been charged and convicted by the police; and that the guarantees enshrined in Articles 23, 24 and 29 of the Constitution had not been provided to him. In addition, he complained that no ordinary appeal lay against the local court’s judgement.
The Constitutional Court dismissed the applicant’s constitutional appeal on 26 May 2008. It relied on point three of the first paragraph of section 55b of the Constitutional Court Act, read together with point four of the second paragraph of section 55a of that Act (see “Relevant domestic law and practice” below). The Constitutional Court’s decision was served on the applicant on 6 June 2008.
“Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law.
Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may judge such an individual.”
“Court hearings shall be public. Judgments shall be pronounced publicly. Exceptions shall be provided by law.”
“Anyone charged with a criminal offence must, in addition to absolute equality, be guaranteed the following rights:
- the right to have adequate time and facilities to prepare his defence;
- the right to be present at his trial and to conduct his own defence or to be defended by a legal representative;
- the right to present all evidence to his benefit;
- the right not to incriminate himself or his relatives or those close to him, and to not admit [his] guilt.”
Prior to 1 January 2005, proceedings concerning regulatory offences were regulated by the Minor Offences Act 1983 (Zakon o prekrških, Official Gazette of the Socialist Republic of Slovenia no. 25/1983, as amended). Under that law, proceedings were conducted by judges handling minor offences. Appeals against their decisions were dealt with by judicial panels handling minor offences.
On 18 December 2002 a new Minor Offences Act (hereinafter referred to as “the MOA”, Official Gazette no. 7/2003) was enacted by the Slovenian Parliament. It came into force on 7 February 2003 and began to be implemented from 1 January 2005. As stated in the travaux préparatoires to this law, the reform was considered necessary because of the heavy backlogs faced by the courts and the need to simplify and expedite the processing of cases concerning minor offences.
Under section 6 of the MOA, an “offence” means any act that is against the law, or is in breach of a Government regulation or local self-government ordinance, and which is, as such, designated as a punishable minor offence. While the MOA contains some specific provisions concerning the elements of a minor offence and responsibility for such an offence, it also refers to provisions of the Penal Code, which are to be applied by analogy in minor offence procedure. In addition, the principle of the presumption of innocence is included in the MOA, which in section 7 states that “persons accused of having committed minor offences are innocent until their responsibility is established by a final decision”.
The MOA provides for sanctions in respect of minor offences, namely a fine, a warning, penalty points (which can lead to withdrawal of a driving licence), a ban on driving, expulsion of a foreigner from Slovenia and seizure of items (sections 17-25 of the MOA).
The significant difference between the old and the new system introduced by the MOA is the establishment of a summary procedure (hitri postopek), which is conducted by administrative authorities such as the police or inspectorates.
An administrative authority may start a procedure upon its own motion or upon request. If a defendant has not had an opportunity to reply to the charges when the offence was recorded or considered by the authority, the latter, before issuing any decision, shall invite the defendant to submit a written reply. The decision should include a short reference to the defendant’s statement and state the facts and evidence on which it is based. It must also include a warning as to the possibility of imprisonment for non-payment (sections 49-58).
Summary procedure is used as a rule for minor offences, subject to the following exceptions: cases where another person has been injured; offences where an additional sentence can be imposed; cases where an additional penalty of a driving ban is envisaged; cases where a pecuniary claim or a minor is involved, or which concern military duties; or cases where an additional sentence of penalty points which are sufficient to lead to the withdrawal of a driving licence is envisaged (section 52 of the MOA). These cases are dealt with by courts handling minor offences in ordinary judicial proceedings (redni sodni postopek) in which the Criminal Procedure Act is applied by analogy.
After the summary procedure, judicial review is available. An application for such review is dealt with by a single judge at a court handling minor offences, which is normally a local court (sections 59-66 of the MOA).
A defendant has the right to lodge an application for judicial review within eight days from the receipt of an administrative authority’s decision concerning a minor offence. By lodging such an application, a defendant renounces the opportunity of paying a reduced fine. In addition, an application, in principle, suspends payment of the fine.
An application can be lodged on standard appeal grounds (a violation of procedural or substantive law, erroneous or insufficient establishment of facts, and/or a challenge to the sanction). It should be filed with the administrative authority that issued the relevant decision. If the authority considers that the request is well-founded, it may annul or change its decision. If not, it sends the file and any additional evidence to the local court (section 63 of the MOA).
A judge can decide on the admissibility and merits of the application on the basis of the file received from the administrative authority. Under section 65 of the MOA, the judge may reject the application in a judgment, if there is no need for further fact-finding and if the grounds for appeal are not established. This is done without hearing the applicant. If the judge finds that the facts were correctly established but that a different sanction should be imposed, he may uphold the application in part and modify the administrative authority’s decision accordingly. If a violation of procedural or substantive law is established or if further fact-finding is required, the judge quashes the decision and decides on the case in ordinary judicial proceedings to which the accused and the authority that issued the impugned decision are parties. In these judicial proceedings, the defendant has a right to be heard orally by the judge, to adduce evidence, to make procedural requests and to appeal against the judgment (sections 67-168 of the MOA).
An appeal to the Higher Court can be lodged on all grounds against a first-instance court’s decision declaring an application inadmissible and against a judgment by which the administrative authority’s decision has been modified to the defendant’s disadvantage following additional fact-finding. In addition, an appeal can be lodged on all grounds, except factual ones, against a decision imposing a fine higher than the minimum amount or ordering a seizure of items worth more than 400 euros.
The relevant provisions of the Road Traffic Safety Act (Zakon o varnosti cestnega prometa, Official Gazette no. 3/2004, implemented from 1 January 2005) read as follows:
“(1) The speed limit shall be:
– 50 km/h – on roads in inhabited areas;
...
(7) A driver who exceeds the speed limit determined by the general rule or road signs on a road in an inhabited area, shall be liable for the following fine:
...
(c) if he exceeds the speed limit by more than 20 but less than 30 km/h, - 60.000 SIT. The driver shall also be given 3 penalty points;
...”
“...
(2) All other drivers may have a maximum of 0.50 grams of alcohol per kilogram in their blood or 0.24 milligrams of alcohol in one litre of breath....
...
(4) A driver... who violates paragraph 2 of this section, shall be punished with a fine [as follows]:
...
(b) if he has more than 0.50 but less than 0.80 grams of alcohol per kilogram of blood or more than 0.24 but less than 0.38 milligrams of alcohol in one litre of breath, with a minimum [fine of] 40,000 SIT. ... The driver ... shall also be given 4 penalty points.
...”
“(1) An administrative body can also decide in summary proceedings on a minor offence for which, apart from a fine, a sentence of a maximum of five penalty points is prescribed [for each offence]...
...
(3) A court ... shall declare invalid the driving licence of a driver who, on the basis of the decision of the administrative body, reaches or exceeds eighteen penalty points.
...”
The Constitutional Court Act (Zakon o ustavnem sodišču, Official Gazette no. 15/1994) was adopted on 8 March 1994. It stated that a constitutional appeal was inadmissible if it did not concern an important legal issue and if an alleged violation of human rights or fundamental freedoms did not have significant consequences for the complainant.
On 30 May 2007 the Slovenian Parliament adopted an amendment to the Constitutional Court Act (Official Gazette no. 51/2007, hereinafter referred as “the Amendment”) which limited the availability of constitutional appeals by, inter alia, excluding the possibility of challenging decisions issued in proceedings concerning minor offences. However, such cases could, exceptionally, be examined if they raised important constitutional questions extending beyond a specific case. The Amendment came into force on 15 July 2007. The relevant provisions of the amended Act (Official Gazette no. 64/2007 – official consolidated version) read as follows:
“(1) The Constitutional Court shall decide in a panel of three Constitutional Court judges (hereinafter referred to as a panel) at a closed session whether to initiate proceedings on the basis of a constitutional appeal.”
“(1) A constitutional appeal shall not be admissible if the violation of human rights or fundamental freedoms [alleged] did not have significant consequences for the complainant.
(2) It is deemed that there has been no violation of human rights or fundamental freedoms having significant consequences for the complainant with regard to individual decisions:
- issued in small-claims disputes ...;
- concerning costs of proceedings, where such decision alone is challenged in the constitutional appeal;
- issued in trespass to property disputes;
- issued in minor offence cases.
(3) Irrespective of the preceding paragraph, the Constitutional Court may in particularly justified cases decide exceptionally on a constitutional appeal against the individual decisions referred to in the preceding paragraph, notably where the decision appealed against concerns an important constitutional question which goes beyond the importance of the actual case.”
“(1) A constitutional appeal shall be rejected:
- if it does not concern an individual act by which a state authority, local authority, or a holder of public power decided on the rights, obligations or legal interest of the complainant;
- if the complainant does not have a legal interest in a decision on the constitutional appeal;
- if it is not admissible, except in the instance referred to in the third paragraph of the preceding section;
- if it was not lodged in due time;
...
(2) A constitutional appeal shall be accepted for consideration:
- if there has been a violation of human rights or fundamental freedoms which has had significant consequences for the complainant; or
- if it concerns an important constitutional question which goes beyond the importance of the actual case.
...”
Section 38 of the Amendment, concerning transitional rules, provides so far as relevant:
“(1) Proceedings which are pending at the time of entry into force of this Amendment shall be continued according to the provisions of the Amendment.
...
(3) If the Constitutional Court has declared a constitutional appeal admissible before the entry into force of this Amendment, it shall decide [the case] regardless of Articles 55a and 55b.”
The Supreme Court has established precedents as regards the rights of the defence in minor offence proceedings. Its case-law has been developed on the basis of its jurisdiction to decide on requests for the protection of legality (zahteva za varstvo zakonitosti) lodged by the public prosecutor in cases concerning minor offences. According to the extracts from the relevant case-law submitted by the Government, the Supreme Court has found that an offender must have the opportunity to defend himself in the proceedings, in particular, to respond to all the factual and legal aspects of the case (judgments nos. IV Ips 58/2007, IV Ips 49/2007, IV Ips 78/2008). The Supreme Court has also decided that the local courts are not required to examine every piece of evidence put forward by the offender. They must, however, examine evidence whose relevance is sufficiently established (judgment no. IV Ips 45/2007). In the context of minor offences which entail a presumption of the vehicle owner’s liability, the Supreme Court has found that that the accused must offer convincing and reasonable evidence in his defence. The defendant must specify the evidence and the facts which it is claimed are proved by it (judgment no. IV Ips 45/2008). Finally, the Supreme Court has found that the local courts must examine every specific argument which refers to significant facts, reply to such arguments and explain its decision taken on those points. However, the courts do not have to examine statements which are legally irrelevant and are not required to reply to statements of a general nature. Neither must they repeat the reasons given by the administrative authority, but rather can simply endorse its findings (judgment no. IV Ips 30/2007).
By decision no. Up-3663/07 of 10 September 2009, the Constitutional Court assessed a local court’s refusal to hear a witness in minor offence proceedings. The appellant had been fined for parking his car illegally, but denied that he had been using his car at that time. In his request for judicial review, he asked the local court to hear a witness who would prove his alibi. However, that request was rejected by the court, which decided that the applicant should have submitted documents in his defence. The Constitutional Court found that the applicant’s right to defend himself enshrined in Article 29 of the Constitution had been violated, as the local court, which should have heard the witnesses, had unlawfully limited the appellant’s choice of defence method.


ITEMID: 001-84720
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF BALAN v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Pecuniary and non-pecuniary damage - award (global)
JUDGES: Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 5. The applicant was born in 1938 and lives in Chişinău.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. In 1985 the applicant published the photograph 'Soroca Castle' in the album Poliptic Moldav. He received author's fees for that photograph.
8. In 1996 the Government adopted a decision regarding national identity cards using, inter alia, the photograph taken by the applicant as a background for the identity cards issued by the Ministry of Internal Affairs of Moldova (“the Ministry”). The applicant was not consulted and did not agree to such a use of the photograph.
9. In 1998 he requested the Ministry to compensate him for the infringement of his rights caused by the unlawful use of the photograph he had taken, as well as to conclude a contract with him for the future use of the photograph.
10. When his request was rejected, the applicant initiated court proceedings against the Ministry on 10 November 1998. On 24 March 1999 the Chişinău Regional Court partly allowed his claims and found that he had been the author of the photograph which had been used without his agreement. The court awarded him 4,050 Moldovan lei (MDL), equivalent to 568 United States dollars (USD). The court also obliged the Ministry to publish an apology but rejected the applicant's request that the Ministry be ordered to conclude a contract with him for the future use of the photograph.
11. The applicant appealed. He submitted, inter alia, that the reason why he had not asked for the withdrawal of the identity cards already issued in infringement of his rights and for new identity cards using the photograph taken by him not to be issued in the future was that this would have incurred unreasonably high costs for the Ministry and would have caused unnecessary problems for identity card holders. He had therefore requested the conclusion of a contract with the Ministry.
12. On 16 September 1999 the Court of Appeal quashed the lower court's judgment and rejected the applicant's requests.
13. On 22 December 1999 the Supreme Court of Justice quashed the Court of Appeal's judgment and upheld the judgment of the Chişinău Regional Court as regards the award to the applicant, while rejecting his request for an apology to be published. The court also ordered a re-examination of the case as regards the conclusion of a contract with the applicant for the future use of the photograph since, in its opinion, he had such a right.
14. From 1 May 2000 the Ministry ceased using the photograph taken by the applicant as a background for identity cards.
15. In a new set of proceedings the applicant requested compensation for the financial loss caused by the continued unlawful use of his photograph between the date of the judgment, 24 March 1999, and 1 May 2000. Since more than 260,000 identity cards had been issued during the relevant period, he claimed 10% of the amount paid by the identity cards' owners to the State (MDL 2,403,137). He also claimed compensation for infringement of his moral rights (MDL 200,000).
16. On 6 November 2001 the Chişinău Regional Court awarded the applicant MDL 180,000 in compensation for pecuniary damage and MDL 3,600 for non-pecuniary damage, while rejecting his request to oblige the Ministry to conclude a contract with him.
17. On 26 March 2002 the Court of Appeal quashed that judgment and rejected the applicant's claims. The court found that, while the applicant's authorship of the relevant photograph had been clearly established, he had been compensated by the judgment of 24 March 1999. Since the court had not prohibited the use of the photograph in future and since the applicant himself had not requested such a prohibition, the identity cards already issued or any cards issued in the future were no longer covered by the Copyright and Related Rights Act 1994 (“the 1994 Act”) (no.293-XII) (see paragraph 19 below). Accordingly, the applicant could not allege an infringement of his rights.
18. On 16 October 2002 the Supreme Court of Justice essentially repeated the reasons given in the judgment of the Court of Appeal and rejected an appeal by the applicant on points of law. While confirming the applicant's intellectual property rights in respect of the photograph he had taken, it added that an identity card was an official document which could not be subject to copyright.
19. The relevant provisions of the Copyright and Related Rights Act (no. 293-XI) of 23 November 1994 read as follows:
“Section 4
(4) The author's rights do not depend on the property right over the material object in which the relevant protected work is embodied. Purchasing the object does not imply the transfer to the purchaser of any copyright set out in the present Act.
Section 6
(1) The author's rights cover literary, artistic and scientific protected works in the form of:
...
i) ... photographic works ...;
Section 7
(1) The following shall not constitute objects of copyright:
(a) official documents ...
Section 9
...
(2) The personal (moral) rights of the author cannot be assigned and continue to be protected if the copyright is assigned.
Section 19
The use of the author's protected work by third persons ... is permitted on the basis of a contract concluded with the author or with his or her successors, except for the cases mentioned in sections 20-23.
Section 24
(1) The copyright ... may be transferred by the authors or other copyright owners through authorship contracts.
Section 37
(1) The use of ... artistic works in breach of the copyright of their authors is unlawful.
Section 38
(1) The owner of the copyright can request from the person who has infringed this right:
(a) the recognition of this right;
(b) the re-establishment of the situation pertaining before the infringement of the right and the cessation of the actions infringing the author's rights or which may lead to such an infringement;
(c) compensation for losses or lost revenue;
(d) transfer of the revenues obtained through the unlawful use of the protected work, in lieu of compensation for the losses or lost revenue;
(e) compensation of between 10,000 and 20,000 times the minimum wage in lieu of compensation for losses or the transfer of the revenues obtained through the unlawful use of the protected work;
(2) The sanctions mentioned under paragraph (1) (c)-(e) above are applied in accordance with the choice of the holder of the copyright”.
20. The relevant provisions of the Administrative Proceedings Act (no. 793) of 10 February 2000 read as follows:
“Section 4
The following cannot be challenged before administrative courts:
...
(c) laws, Presidential Decrees with a normative character, Government orders and decisions with a normative character, ...”