ITEMID: 001-58013
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF BEIS v. GREECE
IMPORTANCE: 3
CONCLUSION: Preliminary objection allowed (non-exhaustion of domestic remedies)
JUDGES: N. Valticos
TEXT: 6. Mr Beis lives in Athens. He is professor of the law of civil procedure in the University of Athens.
7. In March 1992 the head of the Legal Service of the Greek Chamber of Technology (Techniko Epimelitirio Ellados - "the TEE"), a public-law entity (nomiko prosopo dimosiou dikeou) with all the immunities and other privileges of the State, instructed the applicant - orally and saying that he was "acting on behalf of the TEE" - to draw up two expert reports on proceedings brought against the TEE by Mr Philis and Mr Samaras; it was agreed that Mr Beis would be paid 7,500,000 drachmas (GRD) for the two reports. Mr Philis, an engineer, had brought two actions for damages against the TEE, which he accused of having badly defended his interests in an action to recover fees. Mr Samaras, a lawyer with a long-term contract with the TEE, had brought proceedings against it to challenge the termination of that contract.
8. Mr Beis submitted the two reports to the head of the TEE’s Legal Service on 22 April 1992. However, the agreed fees were not paid to him. According to the applicant, the relevant member (paredros) of the Court of Audit (Elenktiko Synedrio) responsible for scrutinising the TEE’s expenditure before payments were made orally opposed the payment on the ground that the reports could have been produced by the TEE’s Legal Service and that the expenditure was therefore not lawful.
9. On 4 May 1992 the TEE’s Governing Body requested a working party of seven experts - including the applicant - to (a) draft a bill designed to amend the rules providing for the TEE’s subrogation to engineers’ rights in their actions to recover fees, in the light of the European Court of Human Rights’ judgment on the matter; (b) prepare a bill amending the provisions on the functioning of the TEE’s Legal Service; (c) study the actions brought by Mr Philis, in order to assist the TEE’s Legal Service by means of an expert opinion; (d) express an opinion on the prospects of success of the appeals pending in the case brought against the TEE by Mr Samaras; and (e) give any other advice likely to facilitate the TEE’s work. It was expressly stated in the Governing Body’s decision that the working party’s tasks were to be "carried out jointly and with the cooperation" of all its members.
The working party was to submit its report by 15 June 1992. The remuneration was to be GRD 10,500,000, which was to be paid to the members of the working party after submission of the report, by a decision of the Governing Body and according to the work each had done. It was also stipulated that if the report was submitted late, the agreement would not be valid and the members of the working party would forgo any action against the TEE to recover fees.
10. On 8 May 1992 five members of the working party informed the TEE’s Legal Service that they had instructed Mr Beis to advise the TEE on the cases brought against it by Mr Philis and Mr Samaras. The applicant was to be paid GRD 7,500,000 out of the total sum offered by the TEE. The other tasks would be carried out by the other members, who would share the remainder of the sum.
11. On 12 June 1992 the vice-president of the TEE acknowledged receipt of the two expert reports submitted by the applicant on 22 April 1992 (see paragraph 8 above).
12. On 9 July 1992 the TEE issued a warrant (no. 3495) in favour of Mr Beis for payment of GRD 7,500,000 as remuneration for his membership of the working party between 5 May and 12 June 1992.
However, on 29 July 1992 an auditor (epitropos) from the Court of Audit - carrying out the prior scrutiny of the lawfulness of the expenditure to which the TEE is subject under Presidential Decree no. 766/1947 - refused to authorise payment of that sum, taking the view that the expenditure was unlawful (decision no. 20 of 29 July 1992); in his view, the report drawn up by the working party had been within the competence of the TEE’s Legal Service. The TEE argued that the expenditure was lawful and on 18 August 1992 resubmitted the warrant for payment for approval by the Court of Audit’s auditor. The latter, however, persisted in his refusal and on 16 September 1992 sent the case to the First Division of the Court of Audit.
13. On 5 October 1992, as a result of some procrastination on the TEE’s part in paying him the agreed remuneration, the applicant made an ex parte application to a single judge of the Athens Court of First Instance (Monomeles Protodikio) for an order to pay (diatagi pliromis). His application was granted on 12 October 1992. The order to pay (no. 12207/92) was based on the following documents: the decision of the TEE’s Governing Body of 4 May 1992, the acknowledgment of receipt of 12 June 1992 and the Governing Body’s approval of 9 July 1992 for payment of the fees to the applicant.
On 21 October 1992 Mr Beis served the order to pay and the notice to comply on the TEE, but the latter made no payment. He served them again on 11 November 1992, after the time during which the TEE could have made an application to have the order set aside (anakopi) had expired (see paragraph 15 below).
On 24 November 1992 the First Division of the Court of Audit, to which the auditor had sent the case, ruled as follows (decision no. 631/1992):
"In order that special problems of major importance arising in connection with the TEE’s activities may be studied, special advisory committees or working parties may be set up, composed of technicians or researchers who are members of the TEE and experts from other fields (lawyers etc.) who are not members of it, on the basis of a decision by the Governing Body (or a regional section of the TEE) for which due reasons must be given (as to the advisability of establishing such a body, its objectives, etc.).
These special advisory committees or working parties may sometimes be asked to study and carry out a specific `scientific project’ connected with the general activities and functioning of the TEE and not solely of the specialised standing scientific committees (section 10 of Law no. 1486/1984), provided that the statutory requirements are satisfied, even where such a project comes within the competence of the TEE’s standing bodies.
These special committees or working parties may, therefore, be given powers to study and carry out a scientific project relating to problems of major importance which normally come within the competence of the TEE’s Legal Service under Article 1 of Presidential Decree no. 883/1980.
As part of their task, these special committees or working parties draw up their opinion after a preliminary meeting and exchange of views ...; only a procedure of this kind makes it possible to clarify the issue being dealt with and to facilitate a thorough study of it by the relevant executive bodies of the TEE.
An opinion given merely by a single member of one of these committees or working parties therefore does not fulfil the law’s intention, even if that person acts under powers granted him by the other members, since in that eventuality the participation of those other members in the collegiate bodies would be pointless.
The remuneration which may be paid to the members of these special committees or working parties, as provided in section 14 (2) of Law no. 1486/1984 and in Article 1(d) of the legislative decree of 10 May 1946 (ratified by Law no. 28/1946), is laid down by the TEE’s Governing Body. If the recipient is a civil servant or a salaried employee in the public sector (State, public-law entities, etc.) referred to in section 1 (6) of Law no. 1256/1982 ... - a university professor, for example - this remuneration must not exceed the threshold laid down in section 3 (4) of Law no. 1256/1982, in other words 30% of the office-holder’s usual total salary, as laid down in joint decision no. 4391/2-3-1982 of the Prime Minister and Minister of Finance ..., adopted under section 3(4) of the aforementioned Law, which includes the basic salary, the length-of-service allowance, the study allowance, the family allowance, the corrective amount, the wage-indexation allowance and other allowances specific to certain categories of employee or civil servant.
The setting up of the working party to study `jointly and in cooperation’ the special issues mentioned in decision no. 1238 adopted by the TEE’s Governing Body at its 30th meeting on 4 May 1992 and to carry out the tasks set out in that decision must be regarded as lawful ..., regard being had to the capital importance of the issues in question for the functioning of the TEE and the inability of the TEE’s Legal Service, which had competence in this instance, to deal with the issues satisfactorily.
The carrying out of this project individually by Mr Beis, one of the members of the working party, who drew up his opinions without any preparatory meeting being held or any exchange of views on the issues between the members of the working party, does not comply either with the TEE Governing Body’s decision no. 1238/4 May 1992, whereby the members of the working party were instructed to carry out the whole project `jointly’, or with the provisions of Article 15 of the presidential decree of 27 November and 14 December 1926.
The joint statement of 8 May 1992 by five of the members of the working party, whereby they entrusted the carrying out of part of the project to Professor Beis, was made in contravention of the general principles of the functioning of collegiate administrative bodies, since there is nothing to show that all the (seven) members of the working party were invited to a joint meeting to take a decision; furthermore, it contravenes the terms of implementation of the whole project laid down by the Governing Body of the TEE in decision no. 1238/1992 and the provisions of Article 15 of the presidential decree of 27 November and 14 December 1926.
The expenditure which was the subject of the TEE’s payment warrant was accordingly not lawful, by reason of, inter alia, the irregularities in the project’s implementation.
In this connection, it is of little importance that it has not been proved in the instant case that the remuneration of a public servant for participation in a public-sector working party was within the limits laid down in section 3(4) of Law no. 1256/1992. The payment warrant in issue must accordingly not be approved."
14. On 3 December 1992, when the judicial order to pay had become final by virtue of Article 633 of the Code of Civil Procedure (see paragraph 15 below), Mr Beis applied to the Bank of Greece for attachment of a sum of GRD 7,500,000 in the TEE’s account at the bank; the bank, however, did not react.
In the meantime, pursuant to the order to pay obtained ex parte, the TEE issued two new payment warrants (nos. 93 and 94) for a total of GRD 7,625,000. On 12 February 1993, however, the auditor in charge of the file at the Court of Audit refused to authorise payment on the ground that the Court of Audit was not bound by the fact that the judicial order to pay had become final after expiry of the time allowed for any application to have it set aside. Under the Court of Audit’s settled case-law (see paragraph 16 below), the effect of orders of this kind is indeed limited and does not correspond to that referred to in Article 17 para. 3 of Presidential Decree no. 774/1980 on the Court of Audit (see paragraph 23 below). An ex parte order to pay therefore does not constitute a judicial act comparable to a final court decision.
15. The relevant provisions of the Code of Civil Procedure are as follows:
"Under the special procedure set out in Articles 623-34 of the Code of Civil Procedure, an order to pay may be sought in respect of a pecuniary claim or one pertaining to securities if the debt and the amount owed are proved by an officially recorded document or a private one."
"The justice of the peace shall be competent to issue an order to pay where the claim comes within the jurisdiction of his court. In all other cases a single judge of the court of first instance shall be competent. No hearing shall be held upon an application for an order to pay."
"The judge shall rule on the application as soon as possible, without summoning the debtor to attend ...; the judge shall, however, be entitled
(a) to require the applicant to attend to give explanations answering his application;
..."
"1. The judge shall dismiss the application
(a) if the legal requirements for making an order to pay are not satisfied;
..."
"The judge shall grant the application in so far as it is, in his view, founded in law and in fact, and shall order the debtor to pay the sum due and legal costs ..."
"A judicial order to pay shall be enforceable."
"A debtor against whom an order to pay has been issued may apply to have it set aside within fifteen days of service of the order. The application to set aside shall be made to the court having jurisdiction ratione materiae to hear the case."
"1. If an application to set aside has been properly made within the time prescribed by law and the reasons given for it are lawful and well-founded, the court shall set aside the order to pay; otherwise it shall dismiss the application to set aside and confirm the order to pay.
2. If the application to set aside has not been made within the time prescribed by law, the party in favour of whom the order to pay has been made may again serve that order on the debtor, who shall again be entitled to apply to have it set aside within a period of ten days ... If no application to set aside has been made within that time, the order to pay shall become final and may only be challenged by means of proceedings to reopen the case."
16. In a decision adopted at the tenth session of the full court on 6 March 1985 the Court of Audit held:
"It follows from the [aforementioned] provisions ... that when verifying the lawfulness of expenditure, the Court of Audit also, if necessary, verifies the entitlement of the creditor of the State, local authority or other public-law entity. If the issue of entitlement has become res judicata (within the meaning of Articles 322 et seq. of the Code of Civil Procedure) as a result of a judgment by a civil court, that judgment is binding on the Court of Audit.
It is clear that the estoppel per rem judicatam which thus prevents the Court of Audit reopening that issue derives from the fact that the civil court has examined the merits, in law and in fact, of the claim ...
If, further, it is taken into consideration that by Article 633 para. 2 (b) of the Code of Civil Procedure, an order to pay does not create an estoppel per rem judicatam but merely ‘becomes final’, it may be asserted that the effect of an ex parte order to pay, just like its limits in objective and subjective terms, is not identical with that of a court decision and of its functions and limits.
This is because an order to pay is not a court decision and, by Articles 631 and 904 para. 2 (b) of the Code of Civil Procedure, is made, after the special procedure laid down in Articles 623 et seq. of that Code, solely to provide an enforceable instrument.
The review undertaken when an application is made under Articles 632 and 633 of the Code of Civil Procedure to set aside an order to pay does not cover the right in issue but relates merely to the validity of the order to pay as an enforceable instrument.
In the light of the foregoing, accepting the contrary argument that the effect of an order to pay does not differ from that of a court decision or is not of limited scope is to call in question the constitutionality of the effect of an order to pay, as the latter is made without the debtor being summoned and without any adversarial hearing
It must therefore be considered that the effect of an order to pay is merely to deprive the defendant of his right to raise preliminary objections unreasonably, such an estoppel resembling ... the negative aspect of the estoppel per rem judicatam created by a court decision (in that the objections may not be considered again).
Consequently, the effect of an order to pay does not extend to a finding as to the right in issue (the positive aspect of res judicata); that being so, the Court of Audit is not bound by such an order when it verifies the lawfulness of expenditure, the claim merely being made enforceable by such an order.
None of the foregoing deprives an order to pay of its enforceability, although naturally that does not prejudice the provisions on immunity from execution enjoyed under section 8 of Law no. 2097/1952 by the Greek State and, as a result of a broad construction of that statute, by local authorities and other public-law entities.
...
Acknowledgment and settlement of expenditure, like the orders to pay relating to it, presuppose that the right of the creditor of the State, local authority or other public-law entity has been proved by means of relevant documents, as it is not sufficient to rely on a claim whose enforceability derives from a judicial order to pay, even if that order has become final.
It must accordingly be accepted that when verifying the lawfulness of expenditure, the Court of Audit is not bound by the limited effect of the order to pay ..., as that effect does not have the characteristics of the binding force referred to in paragraph 3 of Article 17 of Presidential Decree no. 774/1980 on the Court of Audit.
It follows that the right conferred by the effect of the order to pay on the person who is claiming to be entitled to the amount of the expenditure does not ipso facto make that expenditure lawful and that the Court of Audit is under an obligation to verify the lawfulness of that expenditure in all its aspects."
17. Section 8 of Law no. 2097/1952 provides:
"Enforcement of judicial decisions (of civil or criminal courts, the Supreme Administrative Court and the Court of Audit) whereby the State is ordered to pay a debt or legal costs shall be prohibited, as shall be that of any authority to execute to the effect that the State must pay such a debt.
Service of a demand for payment of such debts shall be prohibited and if it is effected nonetheless, such service shall in no way bind the State."
18. The courts have accepted that the statutory provisions whereby a public-law entity enjoys the same rights as the State in judicial matters (Court of Cassation, judgment no. 108/71, "Greek Lawyers’ Review" no. 38, p. 317) or "enjoys, in general, on the same footing as the State, all the judicial, administrative, financial or other immunities and rights of the State" (decision no. 2311/1979 of the Athens Court of First Instance, "Greek Lawyers’ Review" no. 38, p. 762) have the consequence that the provisions of section 8 of Law no. 2097/1952 apply to an entity of that kind.
The Court of Cassation has ruled (in judgment no. 1039/1995) that section 8 of Law no. 2097/1952 is consistent with the Greek Constitution and the European Convention in these terms:
"The privilege of immunity from execution enjoyed by the Greek Railways Board (‘the OSE’) is not contrary to Article 4 para. 1 of the Constitution, relating to the equality of citizens before the law, as that provision excludes only the creation by the legislature of privileged positions with regard to certain persons; it does not, however, preclude the legislature from making special rules ... where they are necessary in the interests of society or the public. Such reasons exist here because the preferential treatment given to the OSE is justified by the vital social objective the OSE pursues, namely the provision of rail transport; it follows that the State has a direct interest in ensuring that the OSE operates without hindrance. Nor is this privilege contrary to Article 20 of the Constitution guaranteeing citizens’ rights to legal protection by the courts ... Furthermore, extension to the OSE of the privilege of immunity from execution enjoyed by the State is not contrary either to Article 1 of the First Protocol (P1-1) of 20 May 1952 ... or, lastly, to Article 6 para. 1 (art. 6-1) of the Rome Convention of 4 November 1950 ..., as those Articles (P1-1, art. 6-1) regulate other matters and not questions such as the present one, with which they are quite unconnected."
As to the TEE, Article 41 of the presidential decree of 27 November and 14 December 1926 on the establishment of the TEE provides:
"The TEE shall correspond independently and enjoy all the privileges and immunities of the State, taking precedence immediately after the National Engineering School."
19. The relevant Articles of the Code of Civil Procedure provide:
"1. Within eight days of service of the notice of the garnishee order, the garnishee shall be required to declare whether the attached debt exists, whether the attached asset is in his possession and whether the asset is subject to another garnishee order emanating from someone else and, if so, for what sum.
2. The declaration referred to in paragraph 1 shall be made orally to the clerk to the justice of the peace for the declarant’s place of residence, who shall make a record of it.
3. Failure to make a declaration shall be tantamount to a negative declaration. Failure to make a declaration or the making of an inaccurate one shall render the garnishee liable in damages to the creditor."
"Within thirty days of the making of the declaration referred to in Article 985, the creditor shall be entitled to have the declaration set aside by the court ... An application for compensation under Article 985 para. 3 may be made at the same time."
20. In judgment no. 3/1993 the Court of Cassation, sitting as a full court, held that Greek banks were prohibited by their confidentiality obligations from supplying information about bank accounts even where the account-holder had consented to disclosure. The existence of that prohibition - failure to comply with which was a criminal offence - meant that a bank’s failure to make the declaration referred to in Article 985 of the Code of Civil Procedure was not tantamount to a negative declaration within the meaning of that Article and could not be made the subject of an application to set aside under Article 986. Thus the law indirectly prohibited attachments of assets in the hands of Greek banks, but that did not impair the legal protection afforded by court decisions or judicial orders to pay obtained ex parte. That conclusion was also confirmed by the fact that the legislature had not added to the rules on bankers’ confidentiality obligations a provision expressly permitting such attachments (Dike, vol. 5, May 1994, pp. 497-506).
21. Article 1 of Presidential Decree no. 883/1980 provides:
"There shall be set up within the TEE a Legal Service with the following duties: (a) to be responsible for the conduct of litigation and proceedings to which the TEE is a party and the protection of the TEE’s legal and non-legal interests before all judicial or administrative authorities ...; (b) to assist the TEE’s organs and departments by giving opinions on legal questions submitted to it; (c) to produce the drafts of bills, decrees, etc., suggested by the TEE; and (d) to draw up contracts of all types between the TEE and third parties."
In addition, by Article 15 of the presidential decree of 27 November and 14 December 1926 establishing the TEE:
"... If necessary, special committees shall be set up to consider specific problems or working parties to implement a specific scientific project; in addition to [members of the TEE], specialists in other fields who are not members of the TEE may also sit on these ..."
The TEE’s expenditure is dealt with in the single Article of Presidential Decree no. 766/1974, which provides:
"The following public-law entities shall not incur expenditure without prior authorisation from the Court of Audit: ... (2) The Greek Chamber of Technology (TEE) ..."
22. Article 98 of the Constitution provides:
"1. The Court of Audit shall be competent, in particular,
(a) to scrutinise expenditure by the State, local authorities or other public-law entities made subject to its control by special laws ...
2. The powers of the Court of Audit shall be determined and exercised in accordance with the law ...
3. The judgments of the Court of Audit in the cases referred to in paragraph 1 shall not be subject to review by the Supreme Administrative Court."
23. Article 17 of Presidential Decree no. 774/1980 on the Court of Audit provides:
"1. The Court of Audit
(a) ...
(b) shall, under Article 98 of the Constitution, scrutinise the expenditure of the State and local authorities and other public-law entities made subject to this control by special laws, in order to verify that each item of expenditure is charged to an appropriation authorised by law and that it has been incurred in accordance with the provisions of the Code of Public Accounts and the other relevant statutes or regulations.
2. ...
3. In the exercise of its powers of review, the Court of Audit may, if necessary, examine any ancillary issue that arises, subject to the provisions on res judicata.
4. ...
5. The Court of Audit shall not have jurisdiction to review the appropriateness of administrative acts.
..."
The procedure for prior scrutiny of expenditure (before payment) is set out in Article 21 of the decree, which provides:
"1. If the scrutiny carried out shows that the requirements of paragraph 1 (b) of Article 17 are, in respect of a given item of expenditure, wholly or partly unsatisfied, the competent member or auditor shall, in a reasoned decision, refuse to approve the payment warrant issued by the authority concerned and shall return the warrant with a copy of his decision to that authority.
If the payment warrant is resubmitted to him, the relevant member or auditor may either approve it - if the impediments to approval have in the meantime be removed - or send it with his report to the appropriate division of the Court of Audit, which shall rule ...
The appropriate division of the Court of Audit ... may, on account of the major importance or public interest of the question raised, refer the case to the full court of the Court of Audit ...
2. If the payment warrant has not been approved, the appropriate Minister may seek the requisite approval from the Court of Audit on his own responsibility ...
If the warrant is approved on the Minister’s responsibility, Principal State Counsel at the Court of Audit shall file a report with the Minister of Finance, the Cabinet and Parliament stating why payment has not been approved. If Parliament ... does not ratify the warrant thus approved, the Court of Audit, sitting as a full court, shall order that the Minister concerned shall be liable for the amount stipulated in the warrant.
..."


ITEMID: 001-81829
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KURNAZ AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: No violation of Art.2;Violation of Art. 3
JUDGES: Nicolas Bratza
TEXT: 9. The application was initially introduced by Mehmet Kurnaz who was born in 1956 and was living in Antalya. Following his death on 22 December 1997, his parents, brothers and sister (hereinafter: “the applicants”) expressed their intention to pursue the application on 30 June 1998. The applicants were born in 1927, 1929, 1954, 1950 and 1958 respectively and live in Antalya.
VIOLATED_ARTICLES: 3


ITEMID: 001-21999
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: NYLUND v. FINLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Finnish national, born in 1950 and living in Helsinki. He is a maritime broker.
He is represented before the Court by Mr Matti Wuori, a lawyer practising in Helsinki.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.
In October 1987, the applicant started a relationship with T. They began living together in mid-November and became engaged to be married on 1 January 1988. In May 1988 it was confirmed that T was pregnant. According to the applicant, he and T had deliberately decided to found a family. In mid-June their engagement and cohabitation ended.
On 21 July 1988, T married a person called R. In January 1989, T gave birth to a daughter called J.
The applicant claims to be the biological father of J. On 7 September 1989, on his own initiative, he recognised J as his child before the Child Welfare Supervisor (lastenvalvoja, barnatillsyningsman) of Espoo.
By virtue of section 20 of the Paternity Act (isyyslaki, lagen om faderskap), the matter of the approval of his recognition came before the District Court Judge (kihlakunnantuomari, häradshövding) of Espoo. In his decision of 28 September 1989, the Judge noted that J was born in wedlock whereby followed a legal presumption of the husband’s paternity. In the written proceedings T denied the applicant’s paternity and maintained that she had already had a relationship with her husband around the time of J’s conception. On the basis of these circumstances, the Judge found that the applicant was not J’s father. According to section 45 of the Paternity Act, no appeal lay from the Judge’s decision.
The Judge’s decision was written on a form designed for decisions concerning the recognition of paternity. On the back of the form was attached information for the man about, inter alia, the legal consequences of the recognition.
T refused the applicant’s offer to pay for a voluntary DNA test. The applicant’s attempts to see J have been fruitless, apparently due to T’s opposition thereto.
On 14 June 1991, the applicant took legal action seeking a determination of whether he was the biological father of J or not. In doing so, he referred to Article 8 of the Convention.
The mother T and the child J were summoned to the District Court (kihlakunnanoikeus, häradsrätten) of Espoo. During the first hearing on 22 October 1991, they objected to the trial, stating that the applicant had no right of action. Furthermore, they based their objection on the failure to summon J’s other guardian R to the court. Subsequently, R was also summoned.
On 10 March 1992, the District Court held a second hearing in which it considered the matter of the applicant’s right of action. Both parties submitted to the District Court an expert opinion, respectively, concerning the issue of the applicant’s legal standing. The parties disagreed over whether it was at all possible to start legal proceedings concerning only the determination of whether a person was a natural father or not, or whether the action should include a request for the establishment or annulment of paternity.
On 10 March 1992, the District Court decided that the claim was not, as such, formulated in a manner that would be contrary to the Paternity Act. It found that the Paternity Act gave the courts an opportunity merely to declare whether a man and a child were, in reality, close relatives without, at the same time, establishing a legal father-child relation between them. However, the District Court also found that, according to the Paternity Act, a man claiming to be a father did not have the right of action as regards paternity proceedings relating to a child born in wedlock. The District Court considered Articles 8 and 12 of the Convention and Article 5 of Protocol No. 7 to the Convention as well as Article 7 of the United Nations Convention on the Rights of the Child of 20 November 1989. It concluded that the applicant had no right of action regarding the determination of whether he was J’s father or not. The District Court then dismissed the applicant’s action without examining it on the merits.
The applicant appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki. He emphasised that the child’s fundamental right to know her origins could not be denied on the grounds that the other biological parent had opposed it. From the applicant’s point of view, the focus of his action was whether a woman, who had become pregnant while living in a relationship similar to marriage, had the right to prevent the examination of the paternity and judicially to kidnap the child on the formal ground that she had married somebody else. The applicant stated that he had only requested that the fact that he was the father of J be confirmed, without asking to establish a legal father-child relation. The applicant had a very strong need for the protection of law in the case. He argued that it was in the best interest of the child that the matter be solved before she herself reached the age of 15, thereby obtaining the right of action of her own. He requested that the District Court’s judgment be quashed and the case be referred back to the District Court.
On 23 December 1992, the Court of Appeal rejected the applicant’s appeal. It reached the same conclusion as the District Court but its reasoning differed from that of the latter. The Court of Appeal noted that the applicant had only requested that it be determined whether or not he had fathered the child born when T was married to R. Biological paternity, as a fact separate from the kinship, did not in itself create any rights or obligations for the man or the child. Furthermore, the establishment of such a fact without the consent of the child’s parents would disturb relations in the child’s family. The best interests of the child did not require that biological paternity should be determined separately from the kinship. The Court of Appeal found that the action was not based on the Paternity Act. Furthermore, since the action in reality included a request for the annulment of the presumption of the husband’s paternity, it was contrary to the aim of the Paternity Act. The Court of Appeal found that the applicant had no legal interest to have determined the biological paternity of J on any other grounds either. Lastly, the Court of Appeal found that the international conventions referred to in the District Court’s judgment did not include provisions pursuant to which the applicant would have had the right to the examination in issue.
The applicant requested leave to appeal. He referred, inter alia, to Article 8 of the Convention.
On 24 May 1993, the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal.
B. Relevant domestic law
The Paternity Act (700/1975)
Chapter 1, General Provisions
Section 2, Presumption of Paternity on the basis of Marriage (351/1980)
The husband is the father of a child born during marriage. If the marriage is dissolved before the birth of a child due to the death of the husband, he is the father of the child if the date of birth of the child after the dissolution is such that the child could have been conceived during the marriage. However, if the mother has entered into a new marriage before the birth of the child, the latter husband is the father of the child.
Section 3, Establishment of Paternity by Recognition and Decision of the Court
When a man who was not married to the mother of the child at the time of the birth of the child wants to recognise his paternity, the provisions of chapter 3 on the recognition of paternity shall apply to such recognition (351/1980).
The court shall establish that the man is the father of the child if it is shown that he had intercourse with the mother at the time of conception, and if, in view of the statements of the mother of the child and the man as well as all the other circumstances, it is deemed proven that the man has fathered the child. The provisions of chapter 4 shall apply to the court proceedings for the establishment of paternity.
Section 4, Annulment of Paternity (351/1980)
The paternity of the husband may be annulled through recognition. The court may upon an action establish that the husband or a man who has recognised his paternity is not the father. The provisions of chapter 5 shall apply to the annulment of paternity.
Chapter 3, Recognition of Paternity
Section 15, Issuing a Statement of Recognition
A man who wants to recognise his paternity shall notify a child welfare supervisor, a population registrar or a notary public in person that he is the father of the child. ...
Section 16, Approval by the Child
If the child is legally competent, the recognition shall be subject to his approval. ...
Section 16 (a), Approval by the Mother and Husband (351/1980)
If the recognition concerns a child referred to in section 2, the recognition shall be subject to the approval of the mother and the husband.
Section 20, Enforcement of Recognition
When a man has recognised his paternity, the child welfare supervisor responsible for the investigation of paternity under section 6, paragraph 2 shall without delay send the documents on the recognition as well as the record of the investigation of paternity for approval to the competent district court judge or city court chairman or other legally trained court member appointed by the city court for this purpose (351/1980).
The judge shall approve the recognition if
1) the recognition has been made in the manner provided in sections 15-19, and
2) if there is no cause to assume that the man who has recognised his paternity is not the father of the child.
...
Chapter 4, Court Proceedings for the Establishment of Paternity
Section 22, Right of Action
The child shall have a right of action for the establishment of paternity.
The man shall have a right of action for the establishment of paternity if the judge has not approved the recognition on the grounds referred to in section 20, paragraph 2 (2). The action shall be brought within one year from the date on which the man was informed of the decision of the judge. However, the man shall not have a right of action if the recognition concerns a child referred to in section 2 (351/1980).
Chapter 5, Annulment of Paternity
Section 34, Grounds for Annulment of Paternity
On the basis of an action the court shall establish that the husband is not the father of the child referred to in section 2 if it is shown that someone other than the husband had sexual intercourse with the mother and, in view of all the circumstances, it may be deemed proven that the child was conceived at that time or if, on the basis of the hereditary characteristics of the child or of other special circumstances, it can otherwise be deemed proven that the man is not the father of the child.
If the child was conceived before marriage or when the spouses were separated due to a breakdown of the relations between the spouses, the court shall establish that the husband is not the father of the child unless in can be proven to be probable that the spouses had sexual intercourse with one another at the time the child was conceived.
The paternity of the husband is annulled when a man other than the husband has recognised his paternity in the manner provided in section 15, paragraph 1, and the judge has approved the recognition (351/1980).
Section 35, Right of Action
An action to annul paternity may be brought by the husband, mother or child.
The husband and mother shall bring an action within five years from the birth of the child.
...
Section 45, Restrictions on Appeal
The decision of the judge in a matter concerning the approval of recognition shall not be subject to appeal.
By virtue of section 4 of the Population Data Act (väestötietolaki, befolkningsdatalag, 507/1993), in the Population Data System shall be registered, as describing a persons status under family law, inter alia, data of his or her parents. The former Population Register Decree (väestökirja-asetus, personregisterförordning, 198/1970) included a similar provision.


ITEMID: 001-89849
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SEMOCHKIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1941 and lives in Salavat. In 1998–2004 he obtained two judgments against the authorities.
5. On 2 February 1998 the Leninskiy District Court of Ufa awarded the applicant 9,019.88 Russian roubles (“RUB”) in pension arrears against the Ministry of the Interior of Bashkortostan. This judgment became binding on 12 February 1998, but was not enforced immediately. In 2000–2002, the bailiff’s service’s servicing bank had its licence suspended pending insolvency proceedings. On 31 July 2002 the bailiffs made a bank transfer to the applicant, but the transfer failed because of a clerical mistake.
6. As the applicant believed that the bailiffs had caused the delay, on 15 August 2001 he sued them for the judgment debt and non-pecuniary damages. After two ﬁrst-instance hearings, one appeal hearing, and two supervisory-review hearings, on 18 November 2004 the Kirovskiy District Court partly held for the applicant. It conﬁrmed the bailiffs’ fault, awarded RUB 45,509.20 that included the original judgment debt adjusted for ination and costs, but rejected the claim for non-pecuniary damages.
7. Both the applicant and the bailiffs appealed against this judgment, but the applicant’s appeal was not accepted because he had missed the time-limit. On 10 February 2005 the Supreme Court of Bashkortostan upheld the judgment of 18 November 2004. The applicant and the bailiffs were absent from this hearing. Earlier the applicant had asked the courts to examine the case in his absence.
8. On 5 September 2005 the bailiffs enforced the judgment of 2 February 1998.
9. On 29 March 2006 the Ministry of Finance enforced the judgment of 18 November 2004.
10. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-93814
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: NIKOLAISHVILI v. GEORGIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicant, Mrs Marina Nikolaishvili, is a Georgian national who was born in 1952 and lives in Tbilisi. The respondent Government were represented by their Agent, Mr B. Bokhashvili of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was one of the six founding partners and a holder of 24% of the shares of a limited liability company (“the company”) set up on 12 June 1996 to run a retail shop. The shop, privatised by those partners in 1994 and valued at some 50,100 Georgian laris (GEL) (approximately 22,000 euros (EUR)), was designated as the company’s founding capital.
In 1996, a certain Mrs P. brought a court action contesting the lawfulness of the privatisation of the shop and, in a decision of 23 July 1997, the Mtatsminda District Court in Tbilisi declared the privatisation agreement null and void.
After the decision of 23 July 1997 became binding, the applicant and another founding partner of the company, Mr N., entered into friendly settlement negotiations with Mrs P. On 6 November 1998 they reached an agreement, according to the written terms of which the applicant and Mr N. were “to cede” to Mrs. P., respectively, 12% and 8% of their company shares. The agreement did not specify Mrs P.’s counter-obligations, if any.
On 19 November 1998 the Presidium of the Tbilisi City Court, on the basis of both parties’ request, quashed in a supervisory review the decision of 23 July 1997 and ordered the parties to abide by the conditions of their friendly settlement of 6 November 1998; the company was ordered to amend its registration records in the Corporate Register accordingly.
As disclosed by the minutes of the company partners’ general meeting on 24 December 1998, the applicant considered that Mrs P. should pay compensation for the agreed cession of the shares, as this had been her pledge during the friendly settlement negotiations. However, since Mrs P. now insisted on obtaining those shares free of charge, the applicant stated that she would not cede her part. The applicant’s position was maintained by Mr N. and other partners, and the unanimous decision was not to admit Mrs. P. as a new partner.
On 22 February 1999 the Mtatsminda District Court, pursuant to Mrs P.’s request, issued a resolution on the redistribution of the company shares in accordance with the decision of 19 November 1998 and entered the consequent amendments into the Corporate Register. Thus, Mrs P. was designated as a new partner with 20% of the company shares, 12% of which was transferred from the applicant’s possession.
On 24 August 2000 the applicant brought an action before the KrtsanisiMtatsminda District Court, requesting that the resolution of 22 February 1999 be declared null and void, and that the disputed 12% of the company shares be returned to her. The applicant, relying on the relevant provisions of the Act of 28 October 1994 on Entrepreneurship (“the Act on Entrepreneurship”), claimed that Mrs P. lacked the standing to request amendment of the company’s registration records, and that consequently the resolution of 22 February 1999 had been unlawful.
On 4 September 2002 the Krtsanisi-Mtatsminda District Court, finding the applicant’s reading of the Act on Entrepreneurship to be erroneous, dismissed her action. That decision, however, was overturned by the Tbilisi Regional Court on 7 February 2003 in the applicant’s favour. The appeal court reasoned that the decision of 19 November 1998 had not rendered Mrs P. a partner nor transferred any shares to her, but had simply ordered the company to enforce the friendly settlement of 6 November 1998. Since the company’s decision-making body – the partners’ general meeting – had refused, on 24 December 1998, to accept her as a new partner, Mrs P. should have challenged that decision in adversarial proceedings. The appellate court further reasoned that, by virtue of section 46 § 5 of the Act on Entrepreneurship, consent to a partial cession of the company’s shares had to be recorded in writing at a general meeting of the partners.
On 30 December 2003 the Supreme Court, at a hearing attended by the applicant and her advocate, overturned the appellate judgement of 7 February 2003 and dismissed the applicant’s action. Acting as the court of cassation it pronounced the operative part of its decision orally that day. A complete, reasoned copy of the judgment of 30 December 2003 was served on the applicant’s advocate on 5 February 2004.
The Supreme Court stated that since the company had refused to abide by the binding court decision of 19 November 1998 of its own accord, the resolution of 22 February 1999 had simply enforced that decision. In any event Mrs P. could have applied to a bailiff, and the resultant enforcement proceedings would have led to the same result. The court of cassation acknowledged that, as a rule, written approval of the conclusions of the partners’ general meeting was required for a partial cession of company shares. However, in the case at hand, the friendly settlement agreement of 6 November 1998 had implicitly amounted to such an approval, since all the partners of the company had had a genuine interest in the maintenance of the privatised shop. As to the price of the disputed shares, the Supreme Court concluded that the company had agreed to cede them not in exchange for monetary compensation, but rather as a quid pro quo for Mrs P.’s commitment to abandon her claim for the annulment of the privatisation.
“1. A company is registered by a court entry in the [Corporate] Register.”
“1. An entry in the [Corporate] Register can be requested by a partner of the company...
4. As regards a limited liability company..., a registration request should contain information about the founding partners’ contributions and the number of their respective shares...
6. A change in the circumstances which serves as the basis for the registration of a company under section 5 § 4 ... must also be entered in the [Corporate] Register ...”
Section 46 § 1, 3 and 5 - “A partner’s rights and responsibilities [in a limited liability company]”
“1. A partner has the right to alienate (gasxviseba) or to bequeath his or her shares.
3. The cession (daTmoba) of shares by a partner takes place in the form of a notarised agreement. A notarised agreement is also required for the alienation (gasxviseba) of shares.
5. A partial alienation of shares is only possible with the company’s approval, [which document] must contain information about the identity of the purchaser and the price...of each share...”
Neither section 46 nor any other provision of the Act accounted for the difference between the notions of “alienation of shares” (wilis gasxviseba) and “cession of shares” (wilis daTmoba), if any.
Article 47 § 3 – “The partners’ general meeting [in a limited liability company]”
“3. If the articles of incorporation do not establish otherwise, the partners’ general meeting decides on all issues, including those related to ... the acquisition and handover of shares...”


ITEMID: 001-58910
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF MATTHEWS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of P1-3;Not necessary to examine Art. 14+P1-3;Costs and expenses partial award - Convention proceedings
JUDGES: Gaukur Jörundsson;John Freeland;Luzius Wildhaber;Nicolas Bratza
TEXT: 7. On 12 April 1994 the applicant applied to the Electoral Registration Officer for Gibraltar to be registered as a voter at the elections to the European Parliament. The Electoral Registration Officer replied on 25 April 1994:
“The provisions of Annex II of the EC Act on Direct Elections of 1976 limit the franchise for European parliamentary elections to the United Kingdom [see paragraph 18 below]. This Act was agreed by all member States and has treaty status. This means that Gibraltar will not be included in the franchise for the European parliamentary elections.”
8. Gibraltar is a dependent territory of the United Kingdom. It forms part of Her Majesty the Queen’s Dominions, but not part of the United Kingdom. The United Kingdom parliament has the ultimate authority to legislate for Gibraltar, but in practice exercises it rarely.
9. Executive authority in Gibraltar is vested in the Governor, who is the Queen’s representative. Pursuant to a dispatch of 23 May 1969, certain “defined domestic matters” are allocated to the locally elected Chief Minister and his Ministers; other matters (external affairs, defence and internal security) are not “defined” and the Governor thus retains responsibility for them.
10. The Chief Minister and the Government of Gibraltar are responsible to the Gibraltar electorate via general elections to the House of Assembly. The House of Assembly is the domestic legislature in Gibraltar. It has the right to make laws for Gibraltar on “defined domestic matters”, subject to, inter alia, a power in the Governor to refuse to assent to legislation.
11. The Treaty Establishing the European Community (“the EC Treaty”) applies to Gibraltar by virtue of its Article 227(4), which provides that it applies to the European territories for whose external relations a member State is responsible. The United Kingdom acceded to the precursor to the EC Treaty, the Treaty Establishing the European Economic Community of 25 March 1957 (“the EEC Treaty”), by a Treaty of Accession of 22 January 1972.
12. Gibraltar is excluded from certain parts of the EC Treaty by virtue of the Treaty of Accession. In particular, Gibraltar does not form part of the customs territory of the Community, with the result that the provisions on free movement of goods do not apply; it is treated as a third country for the purposes of the common commercial policy; it is excluded from the common market in agriculture and trade in agricultural products and from the Community rules on value-added tax and other turnover taxes, and it makes no contribution to the Community budget. European Community (“EC”) legislation concerning, inter alia, such matters as free movement of persons, services and capital, health, the environment and consumer protection applies in Gibraltar.
13. Relevant EC legislation becomes part of Gibraltar law in the same way as in other parts of the Union: regulations are directly applicable, and directives and other legal acts of the EC which call for domestic legislation are transposed by domestic primary or secondary legislation.
14. Although Gibraltar is not part of the United Kingdom in domestic terms, by virtue of a declaration made by the United Kingdom government at the time of the entry into force of the British Nationality Act 1981, the term “nationals” and derivatives used in the EC Treaty are to be understood as referring, inter alia, to British citizens and to British Dependent Territories citizens who acquire their citizenship from a connection with Gibraltar.
15. The powers of the European Community are divided amongst the institutions set up by the EC Treaty, including the European Parliament, the Council, the Commission (“the European Commission”) and the Court of Justice.
16. Before 1 November 1993, the date of the entry into force of the Maastricht Treaty on European Union of 7 February 1992 (“the Maastricht Treaty”), Article 137 of the EEC Treaty referred to the “advisory and supervisory powers” of the European Parliament. Since 1 November 1993, the words “advisory and supervisory powers” have been removed and the role of the European Parliament has been expressed by Article 137 to be to “exercise the powers conferred upon it by [the] Treaty”. The principal powers of the European Parliament under the EC Treaty may now be summarised as follows:
Article 138b provides that the European Parliament shall “participate in the process leading up to the adoption of Community acts by exercising its powers under the procedures laid down in Articles 189b and 189c and by giving its assent or delivering advisory opinions”. Further, the second paragraph of Article 138b empowers the European Parliament to request the European Commission to submit any appropriate proposal on matters on which it considers that a Community act is required for the purpose of implementing the Treaty.
The reference in the first paragraph of Article 138b to “assent” refers to a procedure whereby the EC Treaty (for example, in Articles 8a(2) and 130d) provides for adoption of provisions by the Council on a proposal from the European Commission and after obtaining the assent of the European Parliament. The procedure is called the “assent procedure”.
Article 144 provides for a motion of censure by the European Parliament over the European Commission whereby if a motion is carried by a two-thirds majority, representing a majority of the members, the members of the European Commission are required to resign as a body.
Article 158 provides that the European Parliament is to be consulted before the President of the European Commission is nominated, and the members of the European Commission, once nominated, are subject as a body to a vote of approval by the European Parliament.
The first paragraph of Article 189 provides:
“In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.”
Article 189b provides:
“1. Where reference is made in the Treaty to this Article for the adoption of an act, the following procedure[] shall apply.
2. The Commission shall submit a proposal to the European Parliament and the Council.
The Council, acting by a qualified majority after obtaining the opinion of the European Parliament, shall adopt a common position. The common position shall be communicated to the European Parliament. The Council shall inform the European Parliament fully of the reasons which led it to adopt its common position. The Commission shall inform the European Parliament fully of its position.
If, within three months of such communication, the European Parliament:
(a) approves the common position, the Council shall definitively adopt the act in question in accordance with that common position;
(b) has not taken a decision, the Council shall adopt the act in question in accordance with its common position;
(c) indicates, by an absolute majority of its component Members, that it intends to reject the common position, it shall immediately inform the Council. The Council may convene a meeting of the Conciliation Committee referred to in paragraph 4 to explain further its position. The European Parliament shall thereafter either confirm, by an absolute majority of its component Members, its rejection of the common position, in which event the proposed act shall be deemed not to have been adopted, or propose amendments in accordance with subparagraph (d) of this paragraph;
(d) proposes amendments to the common position by an absolute majority of its component Members, the amended text shall be forwarded to the Council and to the Commission which shall deliver an opinion on those amendments.
3. If, within three months of the matter being referred to it, the Council, acting by a qualified majority, approves all the amendments of the European Parliament, it shall amend its common position accordingly and adopt the act in question; however, the Council shall act unanimously on the amendments on which the Commission has delivered a negative opinion. If the Council does not approve the act in question, the President of the Council, in agreement with the President of the European Parliament, shall forthwith convene a meeting of the Conciliation Committee.
4. The Conciliation Committee, which shall be composed of the members of the Council or their representatives and an equal number of representatives of the European Parliament, shall have the task of reaching agreement on a joint text, by a qualified majority of the members of the Council or their representatives and by a majority of the representatives of the European Parliament. The Commission shall take part in the Conciliation Committee’s proceedings and shall take all the necessary initiatives with a view to reconciling the positions of the European Parliament and the Council.
5. If, within six weeks of its being convened, the Conciliation Committee approves a joint text, the European Parliament, acting by an absolute majority of the votes cast, and the Council, acting by a qualified majority, shall have a period of six weeks from that approval in which to adopt the act in question in accordance with the joint text. If one of the two institutions fails to approve the proposed act, it shall be deemed not to have been adopted.
6. Where the Conciliation Committee does not approve a joint text, the proposed act shall be deemed not to have been adopted unless the Council, acting by a qualified majority within six weeks of expiry of the period granted to the Conciliation Committee, confirms the common position to which it agreed before the conciliation procedure was initiated, possibly with amendments proposed by the European Parliament. In this case, the act in question shall be finally adopted unless the European Parliament, within six weeks of the date of confirmation by the Council, rejects the text by an absolute majority of its component Members, in which case the proposed act shall be deemed not to have been adopted.
7. The periods of three months and six weeks referred to in this Article may be extended by a maximum of one month and two weeks respectively by common accord of the European Parliament and the Council. The period of three months referred to in paragraph 2 shall be automatically extended by two months where paragraph 2(c) applies.
8. The scope of the procedure under this Article may be widened, in accordance with the procedure provided for in Article N(2) of the Treaty on European Union, on the basis of a report to be submitted to the Council by the Commission by 1996 at the latest.”
Article 189c provides:
“Where reference is made in this Treaty to this Article for the adoption of an act, the following procedure[]shall apply:
(a) The Council, acting by a qualified majority on a proposal from the Commission and after obtaining the opinion of the European Parliament, shall adopt a common position.
(b) The Council’s common position shall be communicated to the European Parliament. The Council and the Commission shall inform the European Parliament fully of the reasons which led the Council to adopt its common position and also of the Commission’s position.
If, within three months of such communication, the European Parliament approves this common position or has not taken a decision within that period, the Council shall definitively adopt the act in question in accordance with the common position.
(c) The European Parliament may, within the period of three months referred to in point (b), by an absolute majority of its component Members, propose amendments to the Council’s common position. The European Parliament may also, by the same majority, reject the Council's common position. The result of the proceedings shall be transmitted to the Council and the Commission.
If the European Parliament has rejected the Council’s common position, unanimity shall be required for the Council to act on a second reading.
(d) The Commission shall, within a period of one month, re-examine the proposal on the basis of which the Council adopted its common position, by taking into account the amendments proposed by the European Parliament.
The Commission shall forward to the Council, at the same time as its re-examined proposal, the amendments of the European Parliament which it has not accepted, and shall express its opinion on them. The Council may adopt these amendments unanimously.
(e) The Council, acting by a qualified majority, shall adopt the proposal as re-examined by the Commission.
Unanimity shall be required for the Council to amend the proposal as re-examined by the Commission.
(f) In the cases referred to in points (c), (d) and (e), the Council shall be required to act within a period of three months. If no decision is taken within this period, the Commission proposal shall be deemed not to have been adopted.
(g) The periods referred to in points (b) and (f) may be extended by a maximum of one month by common accord between the Council and the European Parliament.”
Article 203 makes provision for the budget of the Community. In particular, after the procedure for making modifications and amendments to the draft budget, it is open to the European Parliament to reject the draft budget and to ask for a new budget to be submitted (Article 203(8)).
Article 206 provides for parliamentary involvement in the process of discharging the European Commission in respect of the implementation of the budget. In particular, the European Parliament may ask to hear the European Commission give evidence on the execution of expenditure, and the European Commission is required to submit information to the European Parliament if so requested. Further, the European Commission is required to take all appropriate steps to act on the observations of the European Parliament in this connection.
17. Article 138(3) of the EEC Treaty provided, in 1976, that the European Parliament was to draw up proposals for elections. The Council was required to “lay down the appropriate provisions, which it [was to] recommend to Member States for adoption in accordance with their respective constitutional requirements”. Identical provision was made in the European Coal and Steel Community Treaty and the European Atomic Energy Community Treaty.
18. In accordance with Article 138(3), Council Decision 76/787 (“the Council Decision”), signed by the President of the Council of the European Communities and the then member States’ foreign ministers, laid down such provisions. The specific provisions were set out in an Act Concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage of 20 September 1976 (“the 1976 Act”), signed by the respective foreign ministers, which was attached to the Council Decision. Article 15 of the 1976 Act provides that “Annexes I to III shall form an integral part of this Act”. Annex II to the 1976 Act states that “The United Kingdom will apply the provisions of this Act only in respect of the United Kingdom”.
19. By a declaration dated 23 October 1953, the United Kingdom, pursuant to former Article 63 of the Convention, extended the Convention to Gibraltar. Protocol No. 1 applies to Gibraltar by virtue of a declaration made under Article 4 of Protocol No. 1 on 25 February 1988.


ITEMID: 001-77300
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: PITSILLOS (N° 1) v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Modestos Pitsillos, is a Cypriot national who was born in 1920 and lives in Nicosia. He was represented by Mrs E. Vrahimi, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of a plot of land (no. 432) in Kato Moni, in the district of Nicosia. The surface area of the plot was approximately 676 square meters.
On 12 June 1987 a notice of compulsory acquisition (no. 950) was published in the Official Gazette of the Republic of Cyprus concerning a number of properties including that of the applicant. In total 356 square metres were to be compulsorily acquired from his property. The purpose of the compulsory acquisition was the construction, improvement, alignment and paving of a public road.
On 14 August 1987 the order of compulsory acquisition (no. 11312) was published in the Official Gazette.
On 11 November 1988 a revocation order was published in respect of 5 square metres. Accordingly, the part of the applicant’s property to be compulsorily acquired was reduced to 351 square metres.
As a result of the compulsory acquisition the road was diverted and cut across the applicant’s plot dividing it into approximately two equal parts. Furthermore, during the road’s construction, damage was caused to forty-one almond trees that had been on the part of the property not affected by the compulsory acquisition.
The applicant and the acquiring authority did not reach an agreement as regards the compensation to be granted in respect of the compulsory acquisition. The latter considered that the applicant was not entitled to any compensation for the acquisition and the damage caused to the trees but only for expenses in respect of construction works he would have to carry out as a result of the acquisition.
On 27 November 1989 the applicant filed an application (no. 41/89) with the District Court of Nicosia under the Compulsory Acquisition of Property Law 1962 (Law 15/1962) requesting an award of just and equitable compensation for the compulsory acquisition of part of his property. The applicant claimed that his property had suffered significant damage because of the compulsory acquisition. His expert assessed this damage at 2,857 Cyprus pounds (CYP). This amount included compensation for the compulsory acquisition (CYP 356), the almond trees (CYP 301) and the construction works that had to be carried out (CYP 2,200). On the other hand, the Government’s expert considered that there had been an increase in the value (betterment) of the remaining part of the property due to the acquisition and consequently, that no compensation should be granted. Furthermore, the Government’s expert considered that the damage to the almond trees could not be taken into account when determining the compensation since the property was located in a residential area and could be used for building purposes. Finally, he assessed the expenses to be incurred by the applicant in carrying out construction works due to the acquisition at CYP 200.
The District Court carried out a local inspection of the property in the presence of the parties, their lawyers and the Government’s expert.
On 22 July 1994 the District Court delivered its judgment by which it dismissed the applicant’s claim for compensation concerning the compulsory acquisition. In particular, the court considered that the evidence submitted by the Government’s expert was more thorough, accurate and credible. It stated that the applicant’s expert had admitted making mistakes several times and that his evidence had been ambiguous and vague. He had not carried out a valuation of the whole property in order to determine any possible damage or betterment caused by the acquisition. In this connection, the court noted that it was not possible to determine whether there was betterment or injurious affection to the two parts of the property without assessing what the value of the whole property was before it was affected by the acquisition. Furthermore, the applicant’s expert had been unclear about the manner in which he had determined the value of the property per square metre. In addition, although the applicant’s expert assessed the property’s value on the basis that it constituted residential property, he then included the value of the uprooted almond trees in his valuation on the basis that the property was not within a residential area.
The value of a plot of land was assessed in monetary terms on the basis of its use and the purpose for which it was suitable. The view of the Government’s expert that residential development was more profitable than agricultural development was reasonable and therefore this test was the starting point for determining the compensation to be awarded. The court noted that the property should be considered as residential property since it was within a residential area. Accordingly, any damage to the trees was included in the valuation which was based on the residential value of the property.
On the evidence submitted the court found that there had been an increase in value (betterment) to the remaining part of the property due to the construction of the new road. It held, therefore, that the applicant was not entitled to compensation in respect of the compulsory acquisition or any compensation in respect of injurious affection to the remaining part. However, the court awarded the applicant the sum of 500 Cypriot pounds (CYP) in respect of the construction works. It also awarded interest on this amount from the date of publication of the notice of acquisition at the annual rate of 9 %. Finally, the court awarded the applicant costs and the amount of CYP 80 which was agreed between the parties as fees for the applicant’s expert.
On 30 August 1994 the applicant filed an appeal with the Supreme Court. In his appeal the applicant invoked eleven grounds challenging the evidence given by the Government’s expert and the findings of the district court that he was not entitled to any compensation for the compulsory acquisition and damage cause thereby. In the first ground of his appeal the applicant stated, inter alia, that
“the court had been mistaken in accepting the perjured testimony of the Government’s expert witness absolving thus the acquiring authority from paying a sum of money as compensation which should have been paid in conformity with the Constitution as just and equitable compensation in cash and promptly...”.
In the seventh ground of his appeal he repeated that reasonable compensation should have been granted and in the eleventh ground he argued that his human rights had been violated.
On 30 September 1999 the Supreme Court dismissed the appeal. Upon examining the applicant’s arguments the Supreme Court considered that the District Court had given satisfactory reasons in its judgment and had correctly approached the expert evidence submitted. It therefore upheld the District Court’s findings and awarded costs against the applicant.
Article 23 of the Cyprus Constitution provides as follows:
“(1) Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such a right. The right of the Republic to underground water, minerals and antiquities is reserved.
(2) No deprivation or restriction or limitation of any such right shall be made except as provided in this Article.
(3) Restrictions or limitations which are absolutely necessary in the interests of public safety or public health or public morals, or town and country planning or the development and use of any property for the promotion of the public benefit or for the protection of the rights of others, may be imposed by law on the exercise of such a right.
Just compensation shall be promptly paid for any such restrictions or limitations which materially decrease the economic value of the property; in case of disagreement, such compensation is to be determined by a civil court.
(4) Any movable or immovable property or any right over or interest in any such property may be compulsorily acquired by the Republic, or by a municipal corporation or by a commune for educational, religious, charitable or sporting institutions, bodies or establishments within its competence and only from the persons belonging to its respective community, or by a public corporation or a public utility body on which such a right has been conferred by law and only
(a) for a purpose which is to the public benefit and shall be specially provided by a general law for compulsory acquisition which shall be enacted within a year from the date of the coming into operation of this Constitution;
(b) when such purpose is established by a decision of the acquiring authority and made under the provisions of such law stating clearly the reasons for such acquisition;
(c) upon payment in cash and in advance of just and equitable compensation, to be determined in case of disagreement by a civil court.”
According to Section 9 of the Compulsory Acquisition of Property Law 1962 (Law 15/1962), as amended by Law N. 25/83, the owner of property which is subject to compulsory acquisition, may apply to the civil courts for determination of the compensation payable, in the event that no agreement is reached with the acquiring authority in this respect. The purpose of this type of proceedings is the determination of such compensation (Lina Neocleous v. The Attorney-General of Cyprus, Supreme Court judgment of 31 May 1992).
Section 10 of the same Law sets out the criteria and principles for the purposes of determining fair and equitable compensation for the compulsory acquisition of property. Paragraph (f) of that section provides as follows:
“(f) in the case of acquisition of only part of an immovable property, on the basis of the present Law, account shall be taken of any possible increase or reduction accruing by reason of the acquisition in the value of another property owned by the owner together with the part that is compulsorily acquired”.