ITEMID: 001-81274
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TOMLJENOVIC  v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1934 and lives in Zagreb.
5. The applicant was teaching biology and chemistry and was the headmaster of V.N. Elementary School in Zagreb. By its decision of 22 December 1995 the Ministry of Education and Sport (Ministarstvo prosvjete i športa) relieved the applicant of his post of headmaster and dismissed him from work on account that he had reached the retirement age.
6. On 3 January 1996 the applicant brought an action in the Administrative Court (Upravni sud Republike Hrvatske) against that decision.
7. On 9 October 1997 the Administrative Court declined its jurisdiction in the matter, and on 6 May 1998 forwarded the case to the Zagreb Municipal Court (Općinski sud u Zagrebu).
8. On 4 September 1998 the Municipal Court invited the applicant to supplement his claim, which the applicant did within the time-limit indicated. The court held hearings on 20 November 2000 and 5 February 2001.
9. On 17 December 2001 the Municipal Court, considering that it lacked jurisdiction in the matter, made an application to the Supreme Court (Vrhovni sud Republike Hrvatske) with a view to resolving the negative conflict of jurisdictions.
10. On 22 January 2002 the Supreme Court ruled that the Administrative Court was competent to hear the applicant's case.
11. Following the transfer of the case back to the Administrative Court, on 31 October 2002 that court ruled in favour of the applicant. It quashed the impugned decision of 22 December 1995 and remitted the case to the Ministry.
12. Since the Ministry failed to give a new decision within the statutory time-limit of 30 days, on 5 November 2003 the applicant requested the Administrative Court to do so (see paragraph 16 below). In their reply to his request, the Ministry submitted that it was no longer competent to issue such a decision owing to the change in legislation governing primary education. On 6 May 2004 the Administrative Court, acting as a court of full jurisdiction, issued a decision entirely substituting for that of the Ministry. It dismissed the applicant's request by accepting that the Ministry no longer had competence in the matter. However, it found that in those circumstances the Ministry should have forwarded the case-file to a body authorised under the new legislation to issue such a decision – the school board of the V.N. Elementary School. The Ministry did so on 26 June 2006.
13. It appears that the case is currently pending before the school board.
14. Meanwhile, on 8 March 2004 the applicant lodged a constitutional complaint about the length of the proceedings. On 1 July 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's complaint. It examined only the length of the proceedings in their part between the introduction of the applicant's request to the Administrative Court on 5 November 2003 and the lodging of the constitutional complaint. The Constitutional Court dismissed the constitutional complaint finding that the proceedings had lasted only four months and three days.
15. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual's rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
16. The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/92 and 77/92) provide as follows:
Section 64(1) provides that, in the execution of the Administrative Court's judgment, the administrative authority shall issue its decision immediately but at the latest within 30 days. Otherwise, a party may by a special submission request it to do so. If the authority does not issue a decision within seven days following that request, a party may apply to the Administrative Court.
Section 64(2) provides that if such an application was made, the Administrative Court shall first ask the administrative authority to give reasons for its omission. The authority shall reply immediately but at the latest within seven days. If the authority fails to do so, or if the reasons given do not justify the failure to decide, the Administrative Court shall give a decision entirely substituting for the decision of the administrative authority.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61020
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF PETUR THOR SIGURÐSSON v. ICELAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: David Thór Björgvinsson;Gaukur Jörundsson;Georg Ress
TEXT: 8. The applicant is an Icelandic national, born in 1954. He is a practising lawyer and lives in Reykjavik, Iceland.
9. The applicant instituted proceedings against the National Bank of Iceland, claiming compensation under the law of torts, on the grounds that one of the Bank’s legally trained employees had made an incorrect declaration in 1992 which was instrumental in the Supreme Court’s finding that a certain claim was no longer enforceable. As the District Court found for the defendant bank, the applicant, by a summons of 31 May 1996, instituted appeal proceedings before the Supreme Court.
10. In the course of the proceedings before the Supreme Court the applicant was given various dates between 10 July and 30 October 1996 within which to complete his submissions and the respondent Bank was given until 6 November 1996 to submit its reply. Subsequently the hearing was scheduled to open on 14 April 1997. Meanwhile, sometime between early March and early April 1997, the case was included in the Supreme Court’s docket.
11. By a judgment of 25 April 1997, the Supreme Court, by three votes to two, rejected the applicant’s claim. The minority found that the applicant’s claim should be upheld and that the National Bank was liable to pay him ISK 8,746,319 Icelandic krónur (ISK) in compensation, plus default interest from 30 August 1993.
12. One of the three judges forming the majority was Mrs Justice Guðrún Erlendsdóttir. The applicant submitted that after the delivery of the Supreme Court’s judgment, it came to light that Mrs Justice Guðrún Erlendsdóttir and her husband, a Supreme Court lawyer, had a financial relationship with the National Bank of such a nature as to disqualify her from sitting in the applicant’s case.
13. In the spring of 1996 Mr Örn Clausen, husband of Mrs Justice Guðrún Erlendsdóttir, had sought a solution to certain financial problems arising from the inability of a debtor, Mr Edvard Lövdal, to pay certain debts with respect to which Mr Örn Clausen was one of the guarantors, and the inability of other guarantors to honour the guarantee. In early May 1996 twenty-one creditors, one of which was the National Bank, possessed claims under the guarantees amounting to approximately ISK 50,000,000. This included a claim of approximately ISK 16,000,000 by the National Bank. Another large creditor was the Savings Banks’ Hedge Fund which, on behalf of the S-Þingeyinga Savings Bank (Sparisjóður Suður-Þingeyinga – “the Savings Bank”), held a claim of approximately ISK 17,500,000.
14. In order to solve these problems Mr Örn Clausen attempted to reach a settlement with each of the creditors. An economic consultant company, Ráð, agreed to examine his financial situation and to look into the possibilities of obtaining full settlement against partial payment, starting with the two largest creditors and thereafter opening negotiations with the smaller ones, to be completed within six months.
A settlement request made by the company to the National Bank’s lawyer on 15 April 1996, included the following observations:
“... Mr Örn Clausen has informed us that he had, for the sake of friendship, provided guarantees with respect to Mr Lövdahl’s debts, as they have been friends for decades. He also informs us that he owns no property, and that he will foreseeably have to answer for guarantees on account of Mr Lövdahl in an amount of approximately ISK 49,550,000. His other liabilities amount to approximately ISK 10,000,000 around ISK 8,000,000 of which are taxes. Mr Örn Clausen’s wife owns [two] real properties ... [These] are owned by her separately under their marriage agreement dating from 1967. She has declared her readiness to use their net value by mortgage or sale for settling the debts, provided that Mr Örn Clausen is released from his personal guarantees and that his bankruptcy is avoided.
We consequently ask you to recommend to your client, the National Bank, acceptance of 25% in final settlement of the total debt to which Mr Örn Clausen must answer as surety. This would release him from his surety liability. The payment would be made simultaneously with the signature of an agreement to this effect.”
15. On 30 May 1996, in order to obtain funds to pay the creditors, the judge’s husband Mr Örn Clausen issued four debt certificates to Landsbréf hf, Verðbréfamarkaður Landsbankans (Landsbréf, the Securities Market of the National Bank, a financial institution owned by the National Bank), totalling approximately ISK 13,600,000. The debts were secured on two properties owned by Mrs Justice Guðrún Erlendsdóttir, namely the couple’s main residence and one apartment in which her husband had his law office.
16. On 4 June 1996 Landsbréf sold the above four debt certificates to Eignarhaldsfélag Alþýðubankans (People’s Bank Holding Company – “the EFA”), a company specialising in high-risk investments. Ever since, the four debt certificates have been in that company’s ownership.
17. On 4 June 1996, in accordance with a settlement agreement of the same date between the National Bank and Mr Örn Clausen, he paid approximately ISK 4,370,000, of which ISK 3,677,195 were towards his debts to the National Bank and the remainder covering his lawyer’s fees. Moreover, under the terms of the settlement agreement with the bank, he was released from ISK 11,031,584 of debts originating in his guarantees for Mr Edvard Lövdal’s debts, which amounted to ISK 14,708,779. The above settlement was in conformity with a decision taken on 3 June 1996 by the National Bank’s Governing Board.
18. As regards the state of Mr Örn Clausen’s debts vis-à-vis the National Bank, the Government relied on the following information provided on 4 March 2002 by the head of the bank’s legal department:
“The National Bank of Iceland hereby confirms that a settlement agreement was concluded with Mr Örn Clausen on 6 June 1996 concerning his undertakings to guarantee the payment of debts to the National Bank, by which the Bank cancelled 75% of its claims against Mr Örn Clausen against a final payment of 25%. We confirm that the Bank did not extend a new credit to Mr Örn Clausen for the said 25%.
On 4 June 1996 Mr Örn Clausen’s total debts to the Bank amounted to ISK 17,298,940; his debts that did not come under the settlement agreement were a note issued 12 September 1991 in the amount of ISK 2,090,161.10, and a suretyship obligation for payment of a loan originally in the amount of ISK 500,000, which was not in arrears (remaining amount as at 31 December 1996: ISK 195,656).
Mr Örn Clausen’s total debts on 25 April 1997 were a note issued 12 September 1991, in the amount of ISK 2,394,028.60, and a suretyship obligation for payment of a loan originally in the amount of ISK 500,000, which was not in arrears (remaining amount as at 31 December 1997 ISK 27,777).”
19. Under an agreement concluded on 6 June 1996 the Savings Bank too decided to cancel 75% of its claim against a final payment of 25% by Mr Örn Clausen.
20. The fact that the two largest creditors had accepted the settlement arrangements described above was of significant help in Mr Örn Clausen’s efforts to obtain settlement agreements with other creditors, all or most of whom accepted debt cancellation against partial payment.
21. The applicant submitted that there was evidence that on 4 June 1996 the debts of the husband of Mrs Justice Guðrún Erlendsdóttir towards the National Bank amounted to more than ISK 31,000,000. Moreover, in April 1997, at the time when the Supreme Court gave its judgment, the debts in question apparently amounted to approximately ISK 29,000,000.
22. The applicant lodged two petitions to the Supreme Court requesting the reopening of the proceedings in his case against the National Bank on the ground of Mrs Justice Guðrún Erlendsdóttir’s alleged lack of impartiality.
23. The first petition was submitted to the Supreme Court on 9 June 1997. The Supreme Court, sitting as a full court, unanimously rejected it on 10 July 1997. Its decision reads:
“In support of his assertion relating to the disqualification of Supreme Court Judge Guðrún Erlendsdóttir, the petitioner refers to four debt certificates issued to the name of Landsbréf, which are secured by mortgage upon two real estates owned by the judge. By reason of the National Bank’s ownership of Landsbréf, the petitioner considers that this situation disqualified the judge from adjudicating the case. The secured debts in question amount to a total of ISK 13,600,000 which, as stated in the certificates, corresponds to approximately 55% of the total assessed sale price of the properties. The certificates were issued in May 1996 for a period of twenty-five years. The petitioner does not maintain that the certificates are in arrears.
It is shown from the information provided by the lawyer for the National Bank that the debt certificates are not, and were not at the time when the case was being considered by the Supreme Court, in the ownership of Landsbréf, the National Bank or any [other] company linked to the Bank. Mortgages on the said properties referred to in the petition, which now have been struck out of the records, and secure debts due to other parties are deemed irrelevant here.
Although the above-mentioned letter of [the applicant] does not refer to the particular statutory provisions authorising the reopening of proceedings, it is to be assumed that the petition is based on section 169 of the Civil Procedure Act, Law no. 91/1991. The petitioner has not referred to any new fact or adduced any new evidence having a bearing on the merits of the case, cf. section 169(1), subparagraphs (a) and (b) of Law no. 91/1991.
In the light of the above consideration concerning the said mortgages, none of the conditions which provide the petitioner with a reason to believe that the said judge was not impartial and therefore disqualified from adjudicating the case have been fulfilled, cf. section 6, subsections (1) and (9), of the Supreme Court Act, Law no. 75/1973; section 5, subsection (g) of Law no. 91/1991, Article 70 of the Constitution of the Republic of Iceland (no. 33/1944), cf. section 8 of Constitutional Act no. 97/1995, and Article 6 of the European Convention on Human Rights, cf. Law no. 62/1994. Accordingly, since the legal conditions for granting the petitioner’s request for reopening of the proceedings have not been fulfilled, the request is rejected.”
24. The applicant submitted that, after the Supreme Court had given its decision of 10 July 1997 in the first revision case, he realised that Mrs Justice Guðrún Erlendsdóttir’s husband had additional financial ties with the National Bank. During the period from 1988 to 1991 he had assumed large-scale financial obligations vis-à-vis the bank and for years his debts to the bank had been seriously in arrears. According to the applicant, although this could not be affirmed with certainty, it was possible that the National Bank had released Mrs Justice Guðrún Erlendsdóttir’s husband from a debt of over ISK 11,000,000.
25. On 23 October 1997 the applicant filed a new petition with the Supreme Court, asking for the reopening of his compensation case. The Supreme Court rejected the petition on 20 November 1997 on the ground that, under the relevant provisions of the Civil Procedure Act, a party may apply only once for re-examination of a case.
26. At the material time of the present case a general rule on the disqualification of judges was contained in Article 5 § g of the 1991 Code of Civil Procedure, which read:
“A judge ... is disqualified from handling a case if:
...
g. Other facts or conditions are at hand which are capable of casting doubt on his impartiality on reasonable grounds.”
The Government have further pointed to a provision in section 6(9) of the Act 1973 on the Supreme Court of Iceland (Act no. 75:1973), which provides:
“A judge of the Supreme Court shall withdraw if:
...
9. His attitude to a party or to the matter in dispute is such as to present a risk that he will not be able to examine the case in an impartial manner.”
Section 7(2) of that Law provides that the court shall decide in plenary session whether a judge is prevented on grounds of lack of impartiality from participating in a given case. It is open to the parties to challenge the participation of a judge on such grounds.
27. Subsequent to the events at issue in the present case, a new Law on the Judiciary was enacted in 1998 (Law no. 15/1998), which in section 18(4) contains the following provision aimed at codifying a practice that applied at the time of the case:
“A request by a judge not to be assigned to deal with a particular case may be granted by reason of the judge’s relationship to the subject matter, the parties, their non-legal representative or their lawyer, even if the judge cannot be deemed to be disqualified from handling the case, provided that the judge’s request is duly reasoned and another judge of the court is available.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83249
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF RAMADHI AND OTHERS v. ALBANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial awards (global) and Government to return the plot of land;Costs and expenses award - Convention proceedings;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Josep Casadevall
TEXT: 5. The applicants, all siblings, were born in 1921, 1916, 1927, 1928, 1934 and 1943 respectively and live in Kavaja and Durrës, Albania.
6. During the communist regime several plots of land and two shops owned by the applicants’ father were confiscated by the authorities without payment of compensation. The property, measuring in total 46,000 sq. m (the land) and 150 sq. m (the shops) (“the relevant property”), was situated in the Kavaja region.
7. On an unspecified date the applicants lodged an application with the Kavaja Property Restitution and Compensation Commission (Komisioni i Kthimit dhe Kompensimit të Pronave – “the Commission”) under the Property Act, seeking to have the relevant property returned to them.
8. On 7 June 1995 and 20 September 1996, respectively the Kavaja Commission upheld the applicants’ title as joint owners of two shops and a plot of land measuring 15,500 sq. m. Not being able to restore the relevant property in its entirety, the Commission ruled that 10,000 sq. m of the relevant property was to be returned to the applicants and that they were entitled to compensation, under the Property Act, in respect of the remaining 5,500 sq. m of land and the shops. Moreover, it decided not to rule on the adjacent plot of land measuring 30,500 sq. m, since agricultural property was outside its jurisdiction: rather the District Land Commission was the competent body pursuant to the Land Act (Law no. 7501 of 19 July 1991).
9. On an unspecified date, in compliance with the Kavaja Commission’s decision of 20 September 1996, the applicants took possession of the plot of land measuring 10,000 sq. m.
10. Notwithstanding the applicants’ requests, to date, the authorities have failed to comply with the parts of the Commission’s decisions of 7 June 1995 and 20 September 1996 relating to the payment of compensation in respect of the shops and the plot of land measuring 5,500 sq. m.
11. On an unspecified date the applicants lodged an application with the Kavaja Land Commission (“the Land Commission”), attached to the Kavaja Municipality, claiming property rights in respect of the plot of land measuring 30,500 sq. m.
12. On 11 November 1998 the Land Commission upheld the property claims of the applicants Sh. Ramadhi, R. Kapedani and R. Ramadhi (“the first three applicants”) and dismissed those of the applicants Xh. Ramadhi, D. Ramadhi and N. Ramadhi (“the last three applicants”) on the ground that the latter were not eligible to claim property rights over agricultural land, in so far as they were not resident in the area where the land was located.
13. The first three applicants entered their ownership of the property in the Land Register. According to the ownership certificates, the applicants’ titles nos. 462, 460 and 461 corresponded to the plots of land registered in the Register as nos. 89/15, 89/16 and 89/17 respectively.
14. On 7 April 1999 the Land Commission, further to a request by the Ministry of Justice, declared the first three applicants’ titles void on the basis that the decision of 11 November 1998 conflicted with substantive laws.
15. On 25 November 1999 the first three applicants initiated proceedings in the Durrës District Court, claiming property rights over the relevant property.
16. On 4 February 2000 the Durrës District Court annulled the Land Commission’s decision of 7 April 1999 and ordered the Land Commission to examine de novo the first three applicants’ claim to be given title to the plot of land measuring 30,500sq.m. The judgment became final at the latest on 6 March 2000.
17. On an unspecified date the Kavaja District Court issued a writ for the enforcement of the judgment of 4 February 2000.
18. On 14 February 2001, by letter no. 151/h, the Bailiff’s Office ordered the Kavaja Municipality to comply with the District Court’s decision of 4 February 2000.
19. On 7 May 2001, by decision no. 366, the Kavaja Municipality held that it had no jurisdiction to enforce the decision on the ground that the Kavaja Land Commission, which would originally have had jurisdiction, had been dissolved pursuant to the Instruction of 8 November 1999 by the city’s mayor.
20. On 8 January 2003, the newly established Kavaja Land Commission, in compliance with the District Court’s judgment of 4 February 2000, upheld the validity of the first three applicants’ titles nos. 462, 460 and 461.
21. The applicants maintained that the property issue was still unresolved since the local authorities had transferred the above-mentioned plots of land to third parties, so that the Commission decision was thus ineffective in practice. Entries in the Land Register indicate that the plots of land registered as nos. 89/15 and 89/16 (corresponding to the applicants’ titles nos. 462, 460) are currently owned by third parties and the applicants maintained that third parties had built on the third plot of land corresponding to title no. 461. The Government maintained that the applicants had failed to register their title to the relevant property in the Land Register in order to take possession of the property in question and did not comment on the applicants’ submission concerning the transfer of the property to third parties.
22. The Albanian Constitution, in so far as relevant, reads as follows:
“1. The right of private property is protected by law 2. Property may be acquired by gift, inheritance, purchase, or any other ordinary means provided by the Civil Code. 3. The law may provide for expropriations or limitations in the exercise of a property right only in the public interest. 4. The expropriations or limitations of a property right that are equivalent to expropriation are permitted only against fair compensation. 5. A complaint may be filed in court to resolve disputes regarding the amount/extent of compensation due.”
“In the protection of his constitutional and legal rights, freedoms and interests, and in defence of a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
“State bodies shall comply with judicial decisions.”
“The Constitutional Court shall decide: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
“1. Within two to three years from the date when this Constitution enters into force, The Assembly, guided by the criteria of article 41, shall issue laws for the just resolution of different issues related to expropriations and confiscations done before the approval of this Constitution;
2. Laws and other normative acts that relate to the expropriations and confiscations, adopted before the entry into force of this Constitution, shall be applied provided they are compatible with the latter.”
23. The Property Restitution and Compensation Act (Ligji për kthimin dhe kompensimin e pronës) underwent several amendments during the past fourteen years. The main changes to the first Property Act of 1993 came about as a result of two laws which entered into force respectively in 2004 and 2006. Thus, hereinafter they will be referred to as the “Property Act 1993”, the “Property Act 2004” and the “Property Act 2006”, respectively.
The relevant provisions of each of these laws are abridged as follows:
24. According to the Act of 1993 the former owners of properties expropriated by the relevant regime and their legal heirs had the right to claim the ownership over the original properties. Upon ownership being determined they were entitled either to have allocated the original immovable property or to be awarded compensation in kind (in a maximum of 10,000 sq. m) or in value if one of the following conditions was met: the alleged property (1) was pasture, meadow, forestry land, or agricultural or non-agricultural land; (2) was not subject to Law no. 7501 of 19 July 1991; (3) was currently State-owned; (4) had been designated as suitable for construction and is situated within the boundaries of a city.
Section 16 of the Act provided for the following forms of compensation in respect of property which could not be restituted: (a) State bonds, equivalent to the compensation owed, and with a first option of acquiring shares in State enterprises being privatised by the Government or in other activities carried out through the granting of loans; (b) an equivalent plot of land or building site near to an urban area, in accordance with the general urban-development regulations; and (c) an equivalent plot of land in a tourist zone, in accordance with the general urban-development regulations.
The Council of Ministers had the authority to define detailed rules for determining the methods and time-limits for such compensation to take place.
25. Moreover, the 1993 Act instituted the Commission on Restitution and Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të Pronave) as the competent administrative body to deal with former owners’ restitution and compensation of property claims. However, it omitted to provide a time-limit within which a decision could be appealed, thus preventing it from even becoming binding.
26. The Property Act enacted in 2004, repealing the previous one, provided for two forms of restitution of immovable properties, namely the return, under certain circumstances, of the original property and compensation in the event of the impossibility for the authorities to return the original property. The restitution was not limited in size. The Act provided for five forms of compensation: (a) property of the same kind; (b) property of any other kind; (c) shares in State-owned companies; (d) the value of a State-owned property in the privatisation process, and (e) a sum of money corresponding to the value attributed to the property at the time of the decision (section 11). The Act instituted the State Committee for Property Restitution and Compensation (Komiteti Shteteror per Kthimin dhe Kompensimin e Pronave), composed of five members elected by Parliament. Its role was to decide on the lawfulness of district committees’ decisions on restitution and compensation claims (sections 15 and 17). The Council of Ministers was to establish the rules and the criteria of these (sections 13).
27. Section 19 provided for the enforcement of the decisions awarding compensation within the first six months of each financial year. On its entry into force, persons entitled to claim restitution or compensation had to lodge applications with the District Committee by 31 December 2007. The Act granted the Committee discretion to decide which form of compensation should be granted, but applicants could express in writing their preferred type of compensation. The District Committee’s decision could be appealed to the State Committee (section 20) and to the district courts within thirty days of the date of issue of the Committee’s decision.
28. On 28 April 2005 Parliament adopted an Act, setting down the method by which immovable property would be valued for compensation purposes. Its implementation was left to the State Committee for the Compensation and Restitution of Properties, which was to issue the appropriate maps for the properties’ valuation.
29. In order to comply with the committees’ decisions awarding pecuniary compensation, section 23 of the 2004 Act provided for the establishment of a ten-year Property Compensation Fund, whose aim was to provide financial support for such awards. The 2004 Act was examined by both the Constitutional and the Supreme Courts.
On 24 March 2005 the Supreme Court, Joint Colleges, concluded that the Property Act of 2004 had no retroactive effect and that its provisions, could therefore, not have any impact on property rights recognised by administrative or court decisions given before its entry into force.
30. On 17 July 2006 Property Act of 2004 was amended by means of the Property Act 2006 which entered into force on 17 August 2006. It provided, inter alia, for the establishment of the Agency for the Restitution and Compensation of Properties, a new body competent to decide restitution and compensation claims (section 15). The new law repealed sections 11 § 2; 19 and 20 of the previous law which, inter alia, provided for the procedure for the enforcement of decisions that awarded compensation.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-94975
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF DEMİRKAYA v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1978 and lives in İzmir.
5. On 8 October 2001, the applicant was taken into police custody in İzmir on suspicion of aiding and abetting an illegal organisation, namely the PKK (Kurdistan Workers' Party). During his police custody, the applicant signed a form explaining arrested persons' rights, whereby he was reminded of his right to remain silent. On 9 October 2001 the police officers interrogated the applicant at the Anti-Terrorism department of the Izmir Security Directorate, in the absence of a lawyer. The applicant admitted that he had aided and abetted the PKK and acted as courier for the organisation. Another accused, N.S. was also arrested in the course of the operation. In his police statement, N.S. stated that he was a member of the PKK and that he had stayed at the applicant's house when he had come to Izmir and maintained that the applicant had acted as a PKK courier and helped him in certain illegal activities.
6. On 12 October 2001 the applicant was questioned by the public prosecutor and he denied that he had been involved in the PKK. He also claimed that he had signed his police statement without reading it.
7. On the same day, the applicant was brought before the investigating judge, who questioned him and sixteen other suspects in relation to their involvement in the PKK. The applicant's lawyer was also present during the questioning. In his statement to the investigating judge, the applicant denied all the charges against him. After the interrogation, the applicant was placed in pre-trial detention on the order of the judge.
8. In an indictment dated 19 October 2001, the Public Prosecutor at the Izmir State Security Court charged the applicant and fifteen others with aiding and abetting an illegal organisation. The charges were brought under Article 169 of the Criminal Code and Article 5 of Law no. 3713 (the anti-terrorist law).
9. During the trial, the applicant denied any connection with the PKK. Furthermore N.S., one of the co-defendants, admitted to being a PKK member before the court, but stated that although he had stayed at the applicant's house when he had come to Izmir, the applicant did not know that he was a PKK member. In this connection, N.S. rejected his police statement, alleging that it had been taken under duress. On 20 June 2002 the Izmir State Security Court convicted the applicant as charged and sentenced him to three years and nine months' imprisonment. In convicting the applicant, the Izmir State Security Court relied on the applicant's police statement, which had been taken in the absence of a lawyer. The court further took into consideration the police statement of N.S. who had given evidence that the applicant had been involved in the activities of the PKK. It therefore concluded that the applicant's police statement, in which he had admitted to his involvement in the PKK, had been confirmed by other evidence in the case file.
10. On 10 October 2003 the Court of Cassation dismissed the applicant's appeal.
VIOLATED_ARTICLES: 6


ITEMID: 001-57811
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF MIAILHE v. FRANCE (No. 1)
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 8;Not necessary to examine Art. 13;Just satisfaction reserved
JUDGES: C. Russo;N. Valticos
TEXT: 6. Mr William Miailhe has dual French and Philippine nationality and has his home at Malate (Greater Manila) in the Philippines. He is a company director and in early 1983 was also honorary consul of the Philippines in Bordeaux, having just resigned as French foreign-trade counsellor in Manila.
Mrs Victoria Miailhe and Mrs Brigitte Miailhe, both of French nationality, are respectively the mother and the wife of the first applicant. They are housewives.
7. On 5 and 6 January 1983 officers from the Bordeaux customs, accompanied by a senior police officer (officier de police judiciaire), made two searches of premises in Bordeaux which housed the head offices of the companies managed by Mr Miailhe and which served as the Philippines consulate. The applicants - who in France lived at Château Siran (Labarde, Gironde) - used to receive there all private mail that was not sent direct to Manila. The searches took place from 9.15 a.m. to 3.50 p.m. on the first day and from 9.15 a.m. to 12.50 p.m. on the second day, the applicant and his secretary being present on both occasions.
The officers seized nearly 15,000 documents. They placed them unsorted in eight cardboard boxes which they sealed and took away to the customs’ regional head office.
Work on removing the seals and classifying the documents began on 21 January 1983, in the presence of a senior police officer and Mr Miailhe. The latter asked for and obtained a photocopy of documents that he said he needed urgently for his work.
After being suspended at the applicant’s request, the work resumed on 28 January in the presence of two senior police officers; Mr Miailhe’s lawyer had indicated by telephone that his client refused to attend.
In all, the customs registered 9,478 documents. They considered the remainder to be of no relevance to their inquiries and returned them in two sealed boxes.
8. The searches and seizures in issue were based on Articles 64 and 454 of the Customs Code (see paragraphs 17-18 below) and were part of an investigation to determine whether the applicants were to be regarded as being resident in France and whether they had contravened the legislation on financial dealings with foreign countries.
9. On a complaint lodged by the director of customs investigations on 29 January 1985, the Bordeaux public prosecutor’s office began a judicial investigation in respect of the three applicants on 19 February 1985.
A local investigating judge charged them on 20 June 1985 with offences against the legislation and regulations governing financial dealings with foreign countries.
In a final application of 18 June 1991 the Bordeaux public prosecutor requested the investigating judge to commit Mr and Mrs Miailhe for trial at the Bordeaux Criminal Court and to discharge Mrs Victoria Miailhe. On 3 July 1991 the judge made orders to this effect.
The trial was due to begin on 17 June 1992 but was postponed to 25 November 1992 at Mr and Mrs Miailhe’s request. In a judgment of 2 December 1992 the Criminal Court ruled that the public prosecution and the proceedings for imposition of customs penalties in respect of Mr and Mrs Miailhe were barred as a result of changes in the criminal law. It also ordered the return of the seized documents.
10. On 11 August 1983 the three applicants had instituted proceedings against the Director-General of Customs and Excise in the Paris District Court (1st district), which they asked to
"Hold that under domestic law customs officers may make house searches as provided in Articles 454 and 64 of the Customs Code only in order to look for goods.
Hold that seizure of documents by customs officers cannot be regarded as being in accordance with the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Hold that seizure of letters from lawyers to their clients amounts to an interference with the rights of the defence.
And consequently,
Declare the seizures of 5 and 6 January 1983 null and void."
11. On 20 December 1983 the court declined jurisdiction in favour of the Paris tribunal de grande instance.
12. The Miailhes applied to the Paris tribunal de grande instance, which likewise held that it had no jurisdiction. In its judgment of 16 May 1984 it gave the following reasons:
"That being so, as was held in the aforementioned judgment of 20 December 1983, the ordinary courts have no jurisdiction to assess the lawfulness of the actions in issue unless there has been a flagrantly unlawful act (voie de fait).
The customs officers made the seizures under Article 454 of the Customs Code.
That Article, which empowers authorised officers to establish offences against the regulations governing financial dealings with foreign countries as provided in Article 64 of the Customs Code, lays down a rule that applies not only to searches for goods held unlawfully but also to those for documents likely to constitute the subject-matter or evidence of these offences.
The seizures that are alleged to be null and void were therefore carried out by the authorities within the framework laid down by law for establishing offences against the regulations governing financial dealings with foreign countries, whose constitutionality is not for the Court to review.
Although the European Convention for the Protection of Human Rights and Fundamental Freedoms provides in Article 8 (art. 8) that ‘everyone has the right to respect for his private and family life, his home and his correspondence’, interference by a public authority with the exercise of this right is provided for in the same Article (art. 8) where such interference ‘is in accordance with the law and is necessary ... in the interests of ... the economic well-being of the country, [and] for the prevention of ... crime ...’. The customs’ action was taken in that context.
The provisions of Article 136 of the Code of Criminal Procedure on house searches relate to operations referred to in that code and do not apply to searches made under the Customs Code, which continue to be governed by the special legislation on the matter. The Act of 29 December 1977, which requires the intervention of the judicial authorities in respect of house searches during the investigation and establishment of offences against tax and business regulations, moreover provides in section 17 that ‘house searches made pursuant to the Customs Code shall continue to be governed by existing legislation’.
The Constitutional Council’s decision on which the plaintiffs relied is likewise irrelevant to that legislation.
The ordinary courts consequently have no jurisdiction to review the lawfulness of the seizures made at the home of Mr and Mrs Miailhe. The Court must decline jurisdiction."
13. The Miailhes appealed, seeking a declaration that the seizures on 5 and 6 January 1983 were null and void and an order for return of the documents held by the customs.
14. On 23 October 1984 the Paris Court of Appeal upheld the judgment of 16 May 1984 in the following terms:
"The seizures in issue were not challenged on the ground of any formal defect.
The courts below correctly held that the powers conferred on customs officers by Articles 64 and 454 of the Customs Code, special provisions which are not overridden by the more general ones of Article 136 of the Code of Criminal Procedure and the Act of 29 December 1977, cover the seizure of documents likely to constitute the subject-matter or evidence of offences against the regulations governing financial dealings with foreign countries.
To this extent the principles relating to the protection of private life, the home and correspondence cannot be an obstacle to applying these provisions.
However, although coming within the ambit of the aforementioned Articles 64 and 454, the unlawful seizure or retention of purely private documents that were manifestly irrelevant to the financial or business transactions which prompted the authorities’ intervention could amount to a flagrantly unlawful act, since such an infringement of civil liberties would then be wholly severable from the authorities’ powers.
In the instant case it appears from the search and seizure reports which have been put in evidence that on 5 and 6 January 1983 the authors of them placed a very large number of documents under seal in the offices of Mr Miailhe and in his presence, and that he, while protesting against the principle of the seizure, made no objection based on the nature of any given document. On 21 January 1983 the seals were removed and all the documents were classified, and Mr Miailhe and his secretary availed themselves of the opportunity they were afforded to take a photocopy of those documents ‘which they needed for their work in the coming days’. Once again, Mr Miailhe made no reference to the presence of purely private papers or letters among his business papers.
On 28 January 1983 the same customs officers proceeded to go through the documents in detail and seized them. Mr Miailhe had been summoned to attend but made it known that he refused to do so. Notwithstanding his absence, numerous documents were exempted from seizure ‘as being of no relevance to their inquiries’ and were placed in two sealed cardboard boxes and returned to Mr Miailhe some days later.
In these circumstances it appears that the officials took the most meticulous precautions in order not to exceed their powers under the law and that if it is subsequently shown that they have inadvertently kept purely private papers unconnected with their investigation - papers of which the three appellants have never given any particulars -, Mr Miailhe must be held largely responsible, and at all events it could only have occurred as a result of an involuntary mistake and not of a manifest, deliberate violation of a personal freedom."
15. An appeal on points of law by the applicants was dismissed by the Commercial Division of the Court of Cassation on 17 June 1986. Its judgment read as follows:
"As to the first ground:
The Court of Appeal is criticised for having ruled as it did, in that, according to the applicants, in confining itself to noting that the seizure in dispute was made as part of an investigation into the status as a French resident of Mr Miailhe, the Philippines consul in Bordeaux, without even determining whether the purpose of the operation was to seize documents likely to constitute the subject-matter or evidence of an offence against the regulations governing financial dealings with foreign countries, the Court of Appeal infringed Articles 64 and 454 of the Customs Code.
It appears from the Court of Appeal’s own reasons and those it adopted, however, that the disputed seizures were made during an investigation to ascertain whether Mr Miailhe had, as a French resident, committed offences against the legislation governing financial dealings with foreign countries. The ground has not been made out.
As to the second ground:
The Court of Appeal is further criticised for having ruled as it did, in that, according to the applicants, it could not, without infringing Article 455 of the New Code of Civil Procedure, omit to answer the submission in which Mr and Mrs Miailhe argued that, independently of the existence of any flagrantly unlawful act which might have been committed against them, Article 66 of the Constitution entrusted the judiciary with the protection of every aspect of the liberty of the individual, and in particular the inviolability of the home.
In its judgment, however, the Court of Appeal held that, although coming within the ambit of the aforementioned Articles 64 and 454, the unlawful seizure or retention of purely private papers that were manifestly irrelevant to the transactions which had prompted the authorities’ intervention could amount to a flagrantly unlawful act, since such an infringement of civil liberties would then be severable from the authorities’ powers. The Court of Appeal also noted that the customs officials took the most meticulous precautions in order not to exceed their powers and that there was no manifest, deliberate violation of a personal freedom. In so holding, the Court of Appeal answered the submissions made, and it follows that the ground is not made out.
As to the third ground:
Lastly, the Court of Appeal is criticised for having ruled as it did, in that, according to the applicants, by raising of its own motion the points of pure fact that the customs officers classified the 15,000 documents seized and then went through them, which allegedly led to some of them being returned to Mr Miailhe on account of their irrelevance to the investigation, the Court of Appeal exceeded its powers and violated Articles 4, 7, 12 and 16 simultaneously of the New Code of Civil Procedure.
The Court of Appeal, however, held that the facts it noted appeared from the search and seizure reports put in evidence, which have been produced. Its judgment is therefore not susceptible to the criticism made in this ground."
16. The criminal provisions of customs law in France are treated as a special body of criminal law.
17. Two provisions of the Customs Code are relevant as regards these officials:
"The officials designated below shall be empowered to establish offences against the legislation and regulations governing financial dealings with foreign countries:
1. customs officers;
2. other officials of the Ministry of Finance with the rank of at least inspector;
3. senior police officers (officiers de police judiciaire).
The reports made by senior police officers shall be forwarded to the Minister for Economic Affairs and Finance, who shall refer cases to the prosecuting authorities if he thinks fit."
"The officials referred to in the preceding Article shall be empowered to carry out house searches in any place as provided in Article 64 of this code."
18. When the house searches were made (5 and 6 January 1983), Article 64 of the Customs Code was worded as follows:
"1. When searching for goods held unlawfully within the customs territory, except for built-up areas with a population of at least 2,000, and when searching in any place for goods subject to the provisions of Article 215 hereinafter, customs officers may make house searches if accompanied by a local municipal officer or a senior police officer (officier de police judiciaire).
2. In no case may such searches be made during the night.
3. Customs officers may act without the assistance of a local municipal officer or a senior police officer
(a) in order to make searches, livestock counts, and inspections at the homes of holders of livestock accounts or owners of rights of pasture; and
(b) in order to look for goods which, having been followed and kept under uninterrupted surveillance as provided in Article 332 hereinafter, have been taken into a house or other building, even if situated outside the customs zone.
4. If entry is refused, customs officials may force an entry in the presence of a local municipal officer or a senior police officer."
19. The Budget Acts of 30 December 1986 (section 80-I and II) and 29 December 1989 (section 108-III, 1 to 3) amended Article 64, which now provides:
"1. In order to investigate and establish the customs offences referred to in Articles 414-429 and 459 of this code, customs officers authorised for the purpose by the Director- General of Customs and Excise may make searches of all premises, even private ones, where goods and documents relating to such offences are likely to be held and may seize them. They shall be accompanied by a senior police officer (officier de police judiciaire).
2. (a) Other than in the case of a flagrant offence (flagrant délit), every search must be authorised by an order of the President of the tribunal de grande instance of the locality in which the customs headquarters responsible for the department in charge of the proceedings is situated, or a judge delegated by him.
Against such an order there shall lie only an appeal on points of law as provided in the Code of Criminal Procedure; such an appeal shall not have a suspensive effect. The time within which an appeal on points of law must be brought shall run from the date of notification or service of the order.
The order shall contain:
(i) where applicable, a mention of the delegation by the President of the tribunal de grande instance;
(ii) the address of the premises to be searched;
(iii) the name and position of the authorised official who has sought and obtained leave to make the searches.
The judge shall give reasons for his decision by setting out the matters of fact and law that he has accepted and which create a presumption in the case that there have been unlawful activities of which proof is sought.
If, during the search, the authorised officials discover the existence of a bank strongbox which belongs to the person occupying the premises searched and in which documents, goods or other items relating to the activities referred to in paragraph 1 above are likely to be found, they may, with leave given by any means by the judge who made the original order, immediately search the strongbox. Such leave shall be mentioned in the report provided for in paragraph 2(b) below.
The judge shall take practical steps to check that each application for leave made to him is well-founded; each application shall contain all information in the possession of the customs authorities that may justify the search.
He shall designate the senior police officer responsible for being present at the operations and keeping him informed of their progress.
The search shall be carried out under the supervision of the judge who has authorised it. Where it takes place outside the territorial jurisdiction of his tribunal de grande instance, he shall issue a rogatory letter, for the purposes of such supervision, to the President of the tribunal de grande instance in the jurisdiction of which the search is being made.
The judge may go to the scene during the operation.
He may decide at any time to suspend or halt the search.
The judicial order shall be notified orally to the occupier of the premises or his representative on the spot at the time of the search, who shall receive a complete copy against acknowledgement of receipt or signature in the report provided for in paragraph 2(b) below. If the occupier of the premises or his representative is absent, the judicial order shall be notified after the search by means of a registered letter with recorded delivery. Notification shall be deemed to have been made on the date of receipt entered in the record of delivery.
Failing receipt, the order shall be served as provided in Articles 550 et seq. of the Code of Criminal Procedure.
The time-limits and procedures for appeal shall be indicated on notification and service documents.
(b) Searches may not be commenced before 6 a.m. or after 9 p.m. They shall be made in the presence of the occupier of the premises or his representative; if this is impossible, the senior police officer shall requisition two witnesses chosen from persons not under his authority or that of the customs.
Only the customs officers mentioned in paragraph 1 above, the occupier of the premises or his representative and the senior police officer may inspect documents before they are seized.
The senior police officer shall ensure that professional confidentiality and the rights of the defence are respected in accordance with the provisions of the third paragraph of Article 56 of the Code of Criminal Procedure; Article 58 of that code shall apply.
The report, to which shall be appended an inventory of the goods and documents seized, shall be signed by the customs officers, the senior police officer and the persons mentioned in the first sub-paragraph of this section (b); in the event of a refusal to sign, mention of that fact shall be made in the report.
Where an on-the-spot inventory presents difficulties, the documents seized shall be placed under seal. The occupier of the premises or his representative shall be informed that he may be present at the removal of the seals, which shall take place in the presence of the senior police officer; the inventory shall then be made.
A copy of the report and of the inventory shall be given to the occupier of the premises or his representative.
A copy of the report and the inventory shall be sent to the judge who made the order within three days of its being drawn up.
3. Customs officers may act without the assistance of a senior police officer
(a) in order to make searches, livestock counts and inspections at the homes of holders of livestock accounts or owners of rights of pasture; and
(b) in order to look for goods which, having been followed and kept under uninterrupted surveillance as provided in Article 332 hereinafter, have been taken into a house or other building, even if situated outside the customs zone.
4. If entry is refused, customs officers may force an entry in the presence of a senior police officer."
20. Article 458 of the Customs Code provides:
"Offences against the legislation and regulations governing financial dealings with foreign countries may be prosecuted only on a complaint by the Minister for Economic Affairs and Finance or one of his representatives authorised for the purpose."
VIOLATED_ARTICLES: 8


ITEMID: 001-22911
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: TAYLOR v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mark James Taylor, is a United Kingdom national, who was born in 1983 and lives in London. He is represented before the Court by Breeze, Benton & Co., Solicitors, London. The Government are represented by their Agent, Ms J. Foakes, Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 March 1997 the applicant along with another youth (C.) were arrested by the police for suspected involvement in offences relating to the theft of a ring and causing severe injuries to its owner, a boy aged 11. The victim was rendered unconscious as a result of the attack and had to be detained in hospital for three days. He was treated for multiple and extensive bruising to his face and head as well as to the rest of his body.
At the time of the commission of these offences, the applicant was aged 14 years and 24 days.
On 3 April 1997 the applicant, who had earlier been released on bail, was formally charged with the offence of robbery contrary to section 8 (1) of the Theft Act 1968. He was again released on bail and attended Stratford Youth Court for the first time on 7 May 1997. C. failed to attend and a warrant was issued for his arrest.
At the first hearing before Stratford Youth Court on 7 May 1997, the applicant’s lawyer obtained a two-week adjournment to allow him to consider the case outline served by the Crown Prosecution Service (“CPS”). At the hearing, although the matter was discussed, no decision was taken as to the court’s jurisdiction to sentence the applicant, if convicted, under section 53(2) and (3) of the Children and Young Persons Act 1933 (“the 1933 Act”). The applicant was released on bail.
At the resumed hearing on 21 May 1997, Stratford Youth Court stated its intention to commit the applicant to the Crown Court for trial, given that the Crown Court had greater sentencing powers. The proceedings were adjourned until 16 July 1997 to enable the case to be prepared for committal.
At the hearing on 16 July 1997, the CPS withdrew the robbery charge and replaced it with charges of theft contrary to section 1 of the Theft Act 1968 and assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 (“the 1861 Act”). Stratford Youth Court accepted jurisdiction over these charges since they were within its sentencing remit. The applicant pleaded not guilty. The case was adjourned for two weeks to allow the CPS to obtain and review further medical evidence with a view to a possible preferment of a more serious charge of causing grievous bodily harm with intent, contrary to section 18 of the 1861 Act.
According to the applicant, the CPS created unnecessary delay by not reviewing the charges earlier. There was no reason why the trial date could not have been fixed at the 16 July hearing and the medical evidence submitted in due course. Instead, Stratford Youth Court allowed a two-week adjournment to enable the CPS to review the medical evidence. In the applicant’s view, the CPS should in any event have known the extent of the victim’s injuries by 16 July 1997, without having to be given a two-week adjournment to review the medical evidence.
At the next hearing on 30 July 1997, Stratford Youth Court fixed a pre-trial review hearing for 8 October 1997 and the trial for 4 November 1997. The medical evidence sought by the CPS was still not available. However, the CPS did not request a further adjournment.
On 8 October 1997 Stratford Youth Court had to adjourn the pre-trial review since the co-accused C. had failed to attend. The pre-trial review was adjourned until 15 October 1997. On that occasion, the date of the trial was fixed for 20 and 21 November 1997. According to the Government, the applicant’s representative did not object to these dates. The applicant denies this and states that objection was made regarding further delay.
On 20 November 1997 the applicant failed to attend Stratford Youth Court. An application by the CPS to proceed in his absence was refused. A warrant was issued for his arrest.
The applicant turned up at Stratford Youth Court on 21 November 1997. He stated that he had forgotten that he was due to attend court the day before. The court adjourned the proceedings to 26 November 1997 so that arrangements could be made for another trial date to be set.
At the directions hearing on 26 November 1997,Stratford Youth Court fixed the date of the pre-trial review hearing for 17 December 1997. The trial was set down for 12 March 1998.
The pre-trial review had to be adjourned twice and was eventually held on 25 February 1998 and again on 4 March 1998. On the latter occasions the defence made submissions on disclosure of materials in the possession of the CPS. The applicant points out that the CPS should have disclosed the materials requested at a much earlier stage of the proceedings, for example at the hearing on 17 December 1997.
In the meantime the applicant had turned fifteen on 1 March 1998.
On 12 March 1998, 340 days after the applicant was first arrested and 11 days after his fifteenth birthday, trial commenced. The victim gave evidence and was cross-examined by live video link. The defence made unsuccessful applications for disclosure of evidence and to have other evidence excluded at the trial, especially the victim’s evidence identifying the applicant and his co-accused.
On 13 March 1998 the applicant was convicted of theft and assault occasioning actual bodily harm. Stratford Youth Court, pursuant to section 37 of the Magistrates’ Court Act 1980 (“the 1980 Act”), committed the applicant to Snaresbrook Crown Court for sentence, being of the view that its powers of sentencing were inadequate and that the applicant should be given a heavier sentence than it had power to impose.
On 17 June 1998 Snaresbrook Crown Court adjourned the case to 18 August 1998 so that pre-sentence reports could be prepared. On that date His Honour Justice Smith, sitting with two lay justices, sentenced the applicant to 18 months’ detention in a Young Offender institution.
The applicant was given leave by a Single Judge to appeal to the Court of Appeal against his sentence.
Before the Court of Appeal counsel for the applicant contended that the sentence handed down was unlawful on the grounds that the fact that the applicant has passed his fifteenth birthday during the proceedings, but before conviction, meant that he should be liable only for the same penalties as a fourteen-year old. Accordingly, he maintained, a sentence of detention in a Young Offender institution could not be passed on him.
On 22 September 1998 the appeal was refused. In dismissing the appeal, Mr Justice Turner stated:
“The simple truth is that [the applicant] was indeed fortunate not to have been charged with, and then convicted of, the even more serious offence of robbery. ... We consider that for the circumstances of the offence ... any right-thinking member of the public would have been appalled if the result had not been the deprivation of liberty of those who committed these offences against such a young boy and with such obvious violence and persistence which were involved in this case. It is urged upon us that because the co-accused has absconded and there was a delay of about 18 months between the commission of the offence and sentence, this would have enabled the court to impose a sentence of custody in a young offender institution. That sentence became available because [the applicant] had turned 15 between the date of the offence and the date of sentence. As a submission, that is entirely accurate. As a submission that leads this court to doubt the correctness of the sentence passed on [the applicant], we not only doubt, we profoundly disagree. In any event it would have been open, given the seriousness of the offences with which [the applicant] was charged and been found guilty, to have considered sentencing under the provisions of section 53 of the Children and Young Persons Act 1933.”
The applicant’s request for an extension of the time-limit for an application to the Court of Appeal to have a question of public importance certified for an appeal to the House of Lords was refused on 29 January 1999. Lord Justice Rose stated:
“It may be some comfort to those who have appeared on behalf of this applicant to be reminded that in any event a case in which a sentence has been passed which was within the discretion of the sentencing court cannot properly be regarded as a point of law of general public importance worthy of consideration of the House of Lords.”
There are three kinds of criminal offences in English law:
summary offences (triable only in the Magistrates’/Youth Court);
“either way” offences (triable either in the Magistrates’/Youth Court or on indictment in the Crown Court); and
indictable offences (triable only in the Crown Court).
The offences of which the applicant was eventually convicted and sentenced (theft and assault occasioning actual bodily harm), were “either way” offences.
If an offender is aged under 21, neither the Crown Court nor a Magistrates’ Court can pass a sentence of imprisonment, but they can pass a sentence of detention in a Young Offender institution. If the magistrates consider that their power of sentencing is inadequate, as occurred in the applicant’s case, they may commit an offender to the Crown Court for sentence.
A person under 18 – a juvenile – is normally tried in a Youth Court. According to section 24(1) of the Magistrates’ Courts Act 1980, a juvenile must be tried in a Youth Court, subject to defined exceptions, including where the magistrates sitting in the Youth Court consider that a juvenile accused, charged with particularly serious offences, could properly be sentenced under section 53(2) and (3) of the Children and Young Persons Act 1933 if he were convicted on indictment (see below). In that event, the juvenile will be tried in the Crown Court.
A Youth Court’s sentencing powers are less extensive than those of the Crown Court. At the time the applicant came to be sentenced, the only form of custodial sentence available to the Youth Court was detention in a Young Offender institution. Moreover, at the material time detention in a Young Offender institution was only available in respect of offenders whose age on the date of conviction (according to the Government) was 15 (as in the applicant’s case), 16 or 17. In this connection, section 1A of the Criminal Justice Act 1982 provided at the date of the applicant’s conviction:
(1) Subject to section 8 below and to section 53 of the Children and Young Persons Act 1933, where -
“(a) an offender under 21 but not less than 15 years of age is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over; and:
(b) (...)
the sentence that the court is to pass is a sentence of detention in a young offender institution.”
The Youth Court was restricted to a maximum sentence of six-months’ detention in a Young Offender institution for a single offence or a total maximum of twelve months where, like the applicant, the offender was convicted of two offences triable either way.
Pursuant to section 37 of the Magistrates’ Courts Act 1980, if a Youth Court found a 15, 16 or 17 year old guilty of an indictable offence or “either way” offence (as in the applicant’s case), and it was of the opinion that the offender should be sentenced to more than six-months’ detention in a Young Offender institution (or twelve months’ detention in the case of an offender like the applicant convicted of two offences), then it could commit him to the Crown Court to be sentenced. Following committal, the Crown Court could then pass a sentence of up to 24 months’ detention in a Young Offender institution for the offence (section 1B of the Criminal Justice Act 1982), or deal with the offender in any way in which the Youth Court could have dealt with him. Detention in a Young Offender institution can only be imposed inter alia if the offence was one of violence and the court was of the opinion that only a custodial sentence would be adequate to protect the public from serious harm, or that offence was so serious that only a custodial sentence could be justified.
In the case of offenders aged 14 or under (like the applicant at the date of the commission of the offences of which he was eventually charged and convicted), the Youth Court may, inter alia, impose a fine, make a compensation order or make a supervision order. It has no power in law to sentence an offender under the age of 14 to a Young Offender institution for summary or “either way” offences. In addition, it has no power to commit such children to the Crown Court for trial or for sentencing. There are exceptional circumstances in which children of 14 may receive a custodial sentence. Thus, according to section 53 of the Children and Young Persons Act 1933, a young person aged between 10 and 17 may be given a custodial sentence if he is convicted of an offence, such as robbery, punishable in the case of an adult with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law. Of relevance to the applicant’s case, under section 7 of the Theft Act 1968 the maximum sentence for an adult convicted on indictment of an offence of theft is seven years’ imprisonment. Of equal relevance to the applicant’s case, under section 47 of the Offences Against the Person Act 1861 the maximum sentence for an adult convicted on indictment of an offence of assault occasioning actual bodily harm is five years’ imprisonment.
According to the Government, in English law the basic rule for determining what power the court has in relation to sentencing an offender is his age at the date of conviction. The age at the date of conviction rule, as opposed to the date of sentence, was approved by the Court of Appeal in R. v. Danga ([1992] Q.B. 476) and later in R. v. Pespane (13 Cr. App. R (S) 438), R. v. Robinson (14 Cr. App. R. (S) 48) and R. v. Starkey (15 Cr. App. R. (S) 576).
The applicant draws attention to his view that section 29 of the Children and Young Persons Act 1963 contradicts the age-at-the-date-of-conviction-rule. This section makes provision for defendants who reach their eighteenth birthday after their case has begun in the Youth Court. It reads:
“Where proceedings in respect of a young person are begun ... for an offence and he attains the age of 18 before the conclusion of the proceedings, the court may deal with the case and make any order which it could have made had he not attained that age.”
If a juvenile has not attained his or her eighteenth birthday at the time of plea, the Youth Court has the power to hear the case and impose sentence. If the defendant’s eighteenth birthday falls after the plea and before final disposal of the case, the Youth Court may nevertheless sentence the defendant as if he or she was still a juvenile. If, however the juvenile has reached age 18 by the time he or she is asked to enter a plea to the offence, the court must treat him or her as an adult (R. v. Islington North Juvenile Court, ex parte Daley [1983] AC 347). In R. v. West London Justices ex parte Siley Windit (reported in Criminal Law Review 2000, p.p. 926-927), the Divisional Court held that the relevant age for determining a juvenile accused’s right to elect for jury trial was his age on the date he entered a plea of guilty.
The applicant further points out that the domestic case-law relied on by the Government is of limited value to the applicant’s case since there are no decisions dealing with the situation of a fourteen-year old who becomes fifteen before conviction and thus moves from a non-custodial to a custodial bracket.


ITEMID: 001-107286
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF LITWIN v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 6-1
JUDGES: Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1958 and lives in Fulda.
6. On 23 February 2000 the applicant was arrested on suspicion of having committed robberies. He was detained pending trial. The trial, at which he was represented by counsel, began on 19 October 2000. At the end of the fifth day of the trial, and after evidence had been heard, the court set the next trial hearing for 17 November 2000 at 9 a.m. According to the court transcript, the trial only started at 10 a.m. on that date.
7. On 17 November 2000 between 9 a.m. and 10 a.m. negotiations took place inside the court building, the content of which are in dispute between the parties.
8. According to the applicant’s submissions, the court, having previously indicated that the potential penalty that the applicant faced could amount to fourteen years’ imprisonment, promised a maximum penalty of nineandahalf years’ imprisonment in exchange for the applicant’s waiver of his right to appeal, as well as a waiver of the applicant’s and his wife’s claims over confiscated assets and an agreement that he would not call for further evidence.
9. According to the Government, the public prosecutor did not take part in the agreement reached. The court, following a proposal made by the applicant’s counsel, promised a penalty of less than ten years’ imprisonment in exchange for the applicant’s waiver of claims over confiscated assets.
10. According to the court transcript of the hearing on 17 November 2000, which makes no mention of the agreement, further documents were then read out, the presiding judge gave legal advice as to the qualification of the alleged offences and both the applicant and his wife, who was present in the courtroom, declared that they waived any rights to the assets confiscated by the prosecution service.
11. At the end of the hearing, the Fulda Regional Court convicted the applicant of aggravated extortion, aggravated robbery and attempted aggravated robbery (two counts of each offence) and dangerous bodily injury (one count) and sentenced him to nine-and-a-half years’ imprisonment. The court, stating that the applicant had not entered a plea, based its findings on DNA expert evidence pointing to a high probability that the applicant had been the person that had caused marks found at the crime scenes and on further circumstantial evidence derived, in particular, from witness testimony. The court considered the fact that the applicant had eventually waived his right to the confiscated assets and had thus delivered a major proportion of his criminal profits as a mitigating factor.
12. After delivery of the judgment, the court verbally informed the applicant of his right to lodge an appeal on points of law. In the applicant’s presence, counsel for both the defence and the prosecution waived their rights to appeal.
13. The applicant subsequently appointed new counsel. On 12 April 2001 the applicant’s new counsel applied for restitution of the status quo ante and lodged an appeal on points of law, arguing that the waiver of the right to appeal had been invalid because it had not complied with the requirements of the Federal Court of Justice’s case-law. As the applicant had not been aware of the invalidity of his waiver, he could not be held responsible for having failed to comply with the statutory time-limit of one week for lodging an appeal on points of law. In a written statement attached to the application, the applicant submitted that his previous counsel had informed him that he would have to expect the imposition of a prison sentence of at least fourteen years if he did not accept the court’s proposal and that he was only informed about the invalidity of the waiver during a first conversation with his new counsel which took place on 10 April 2001.
14. In pleadings dated 10 May 2001 counsel specified the grounds of appeal on points of law. He complained that the negotiated agreement had not been recorded in the court transcript, as required by the case-law of the Fourth Chamber of the Federal Court of Justice (see paragraph 19 below). In his view, this constituted a breach of the principle of a public hearing. He also argued that the actual waiver of the right to appeal had been declared before delivery of the judgment – namely when negotiating the agreement – and had been invalid for this reason as well.
15. On 11 June 2001 the Second Chamber of the Federal Court of Justice (file no. 2 StR 223/01) dismissed the applicant’s request for restitution of the status quo ante and rejected his appeal on points of law as inadmissible. Relying on its own settled case-law, the court observed that a waiver of the right to appeal could not be revoked, rescinded or withdrawn. The Court of Justice did not find it necessary to establish whether the waiver had been part of a negotiated agreement, as this fact did not call into question the validity of the waiver as such. The waiver had to be measured by different standards: notably, whether the accused had retained the freedom to either accept a judgment against him or lodge an appeal had to be verified. This freedom had to be preserved, even if the judgment had been based on an objectionable agreement and the waiver had constituted honouring such an agreement. Notwithstanding any procedural defect in the alleged agreement, the accused may have pursued his interests in an autonomous and appropriate way. The only decisive factor was whether the accused had been unduly influenced when waiving his right to appeal. In the present case, there was no indication that there had been such undue influence. The applicant’s submissions neither disclosed an error or misunderstanding on the applicant’s part, nor any deceit or false information given by the court, nor any impairment of the interests of the defence.
16. The court further considered that, as a result of the valid waiver of the right to appeal, the Fulda Regional Court’s judgment had become legally binding on 17 November 2000 and that the appeal on points of law thus had to be rejected as inadmissible. It followed that the applicant could not be granted restitution of the status quo ante. If a person had knowingly waived a right to appeal, he had not been “prevented from observing a time-limit” within the meaning of Article 44 § 1 of the Code of Criminal Procedure. The decision was served on the applicant’s counsel on 5 July 2001.
17. On 3 August 2001 the applicant lodged a constitutional complaint, claiming that he had been unduly influenced when waiving his right to appeal in exchange for a maximum penalty of nine-and-a-half years’ imprisonment. Furthermore, the Federal Court of Justice had failed to consider the fact that his wife, who had not been involved in the trial, had also been asked to waive any rights she had to the confiscated assets. This procedural method had been arbitrary, had not been in accordance with the statutory provisions governing the confiscation of assets in criminal proceedings and had also constituted a violation of the right to an effective remedy. On 20 November 2003 the Federal Constitutional Court (file no. 2 BvR 1339/01), relying on the relevant provisions of its rules of procedure, refused to admit the constitutional complaint for examination without giving further reasons. This decision was served on the applicant’s counsel on 4 December 2003.
18. Relevant provisions:
“If a person was prevented from observing a time-limit through no fault of his own, he shall be granted restitution of the status quo ante upon application. ...”
“(1) The application for restitution of the status quo ante shall be filed with the court where the time-limit should have been observed within one week after the reason for non-compliance no longer applies. To observe the time-limit, it shall be sufficient for the application to be filed in time with the court which is to decide on the application.
...”
“(1) In suitable cases the court may, in accordance with the following subsections, come to an agreement with the other parties to the proceedings regarding the further progress and outcome of the proceedings. ...
(2) The subject matter of such an agreement may only comprise the legal consequences which could form part of the judgment and of the associated rulings, other procedural measures related to the proceedings, and the conduct of the parties. The verdict and measures of correction and prevention may not be the subject of an agreement.
(3) The court shall announce what content the agreement might have. In this context, it may ... also indicate an upper and lower limit of the sentence.
...”
“(1) Withdrawal of an appeal, as well as waiver of the right to lodge an appeal, may also take effect before expiry of the time-limit for filing. ...
(2) Defence counsel shall require express authorisation for such withdrawal.”
“(1) Withdrawal of an appeal, as well as waiver of the right to lodge an appeal, may also take effect before expiry of the time-limit for filing. If a negotiated agreement (Section 257c) has preceded the judgment, a waiver shall be excluded. ...
(2) Defence counsel shall require express authorisation for such withdrawal.”
19. There has always been agreement between the Chambers of the Federal Court of Justice that agreements with a view to terminating criminal proceedings are not per se inadmissible. It has also been accepted that a waiver of the right to appeal should not be negotiated in the context of such an agreement and that such a waiver is not legally binding on the defendant. However, the Chambers have differed on the question of the consequences of such a waiver if a defendant has nevertheless promised to grant the waiver and has made a declaration that he or she will do so to the trial court.
The First and Second Chambers have held that a waiver of the right to appeal is not invalid simply because it formed – though inadmissibly – part of an agreement between the court, the prosecution and the defence. Rather, it has only been considered to be invalid if the procedural defect led to undue influence at the time the waiver was declared.
The Third, Fourth and, since 2003, Fifth Chambers have found a waiver of the right to appeal, which has been the subject of an agreement with a view to terminating criminal proceedings, to always be invalid. They have held that a promise not to lodge an appeal, made before delivery of a judgment, albeit not legally binding, always constitutes undue influence on the accused.
20. In a leading decision of 3 March 2005, the Grand Chamber of the Federal Court of Justice laid down the principles governing the validity of a waiver of the right to appeal in the context of agreements entered into with a view to terminating criminal proceedings (file no. GSSt 1/04). It considered such agreements, in which the criminal courts make a binding declaration on the maximum penalty to be imposed in exchange for the defendant’s confessing to (part of) the offences he has been charged with, to be compatible with the Code of Criminal Procedure and the Basic Law if certain conditions are met.
21. In particular, all participants in the proceedings (that is, professional and lay judges, the prosecution, the defence counsel and the defendant) must be involved in reaching the agreement, the result of which must be made public at a hearing and must be duly noted in the court transcript. The veracity of any confession made by the defendant in accordance with the agreement must be verified. The agreement is not allowed to concern the legal qualification of the acts the defendant has been charged with. The penalty proposed by the court still must reflect the defendant’s guilt and the penalty which, according to the court, could be expected without a confession may not be disproportionately severe in order to subject the defendant to undue pressure to confess. The court is only allowed to agree a maximum penalty (as opposed to a specific penalty) and may only exceed that penalty if relevant factual or legal issues have been overlooked and if it has previously advised the defendant at a hearing of its intention to set a higher penalty. The Federal Court of Justice noted that in view of their heavy workload, the courts would be unable to render criminal justice and to avoid delays in proceedings without being allowed to have recourse to such agreements.
22. The Federal Court of Justice further observed that in the past, such agreements had in practice often involved the defendant’s promise to waive his right to appeal against the judgment, or at least the court’s suggestion to do so. However, the criminal courts were not authorised, in the context of these agreements, to arrange for a waiver of the right to appeal. An agreement aimed at terminating the proceedings was not to prevent the effective review, by the appeal courts, of the lower courts’ judgments. After the delivery of a judgment which was given following an agreement – irrespective of whether a waiver of the right to appeal had been included or discussed – the court therefore had to inform the defendant not only of his right to appeal, but also of the fact that he was free to lodge an appeal irrespective of the agreement reached (what is termed a qualified instruction). If such a qualified instruction had not been given, the defendant’s waiver of his right to appeal was void.
23. These guidelines of the Federal Court of Justice have meanwhile been incorporated in Sections 257c and 302 of the Code of Criminal Procedure (see paragraph 18 above).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98405
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF HASANOV v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1960 and lives in Baku.
6. On 21 January 1998 the applicant was issued with an occupancy voucher (yaşayış orderi) for a flat in a recently constructed residential building in Baku on the basis of an order of the Baku City Executive Authority of 19 January 1998.
7. At the same time, the applicant became aware that the flat had been occupied by M. and his family, who were internally displaced persons (“IDP”) from Shusha, a region under the occupation of the Armenian military forces following the Armenian-Azerbaijan conflict over NagornoKarabakh.
8. According to the applicant, despite numerous demands, M. refused to vacate the flat, pointing out that he was an IDP and had no other place to live.
9. On an unspecified date in 1998 the applicant lodged an action with the Yasamal District Court asking the court to order the eviction of M. and his family from the flat.
10. On 23 June 1998 the Yasamal District Court granted the applicant's claim and ordered that M. and his family be evicted from the flat. The court held that the applicant was the sole lawful tenant of the flat on the basis of the occupancy voucher of 21 January 1998 and therefore that the flat was being unlawfully occupied by M. and his family.
11. No appeals were filed against this judgment and, pursuant to the domestic law in force at the material time, it became enforceable within ten days of its delivery. However, M. and his family refused to comply with the judgment and, despite the applicant's complaints to various authorities, it was not enforced.
12. On an unspecified date in 2006, the applicant and a group of other persons who were in the same situation lodged an action with the Yasamal District Court complaining that the Yasamal District Department of Judicial Observers and Enforcement Officers (“the Department of Enforcement Officers”) had not taken measures to enforce the judgments.
13. On 27 December 2006 the Yasamal District Court dismissed that complaint as unsubstantiated. The applicant appealed against this judgment. On 2 May 2007 the Court of Appeal quashed the first-instance court's judgment and delivered a new judgment on the merits in the applicant's favour. The Court of Appeal held that the Department of Enforcement Officers' inaction had been unlawful and that the judgment of 23 June 1998 should be enforced. Following a cassation appeal of M. and other persons against this judgment, by a decision of 18 September 2007, the Supreme Court quashed the Court of Appeal's judgment and remitted the case for a new examination. On 12 November 2007 the Baku Court of Appeal quashed the judgment of 27 December 2006 and terminated the civil proceedings. The Baku Court of Appeal held that the judgments should be enforced under the domestic law and there was no need to deliver a new judgment on that issue. It appears from the case file that the Court of Appeal's judgment was not challenged by the parties in the proceedings.
14. On 5 July 2007 M. and a group of other persons who were in the same situation lodged a request with the Yasamal District Court asking for postponement of the execution of the judgment of 23 June 1998. M. alleged that, as he was an IDP, he had no other place to live but the flat in question.
15. On 10 July 2007 the Yasamal District Court granted M.'s request and ordered the postponement of the execution of the judgment of 23 June 1998 until M. could move to one of the houses recently constructed for temporary settlement of IDPs. The court relied on the Presidential Order of 1 July 2004 on Approval of the State Programme for Improvement of Living Conditions and Increase of Employment of Refugees and Internally Displaced Persons (“the Presidential Order of 1 July 2004”), according to which the relevant State organs were instructed that until the return of the IDPs to their native lands or until their temporary settlement in new houses, IDPs should not be evicted from public apartments, flats, lands and other premises, regardless of ownership, they had settled in between 1992 and 1998. Following a series of appeal proceedings, on 3 July 2008 the Yasamal District Court delivered a new decision, which it subsequently rectified on 14 July 2008. The court granted M.'s claim and ordered the postponement of the execution of the judgment of 23 June 1998. It appears from the case file that the applicant did not challenge that decision.
16. On an unspecified date in 2008 the applicant lodged an action against the State Committee on the Affairs of Refugees and Internally Displaced Persons, the Ministry of Finance and other authorities asking for compensation for non-enforcement of the judgment of 20 April 1998. On 7 May 2008 the Yasamal District Court dismissed the applicant's claim as unsubstantiated. On 7 July 2008 the Baku Court of Appeal and on 10 November 2008 the Supreme Court upheld the first-instance court's judgment.
17. Azerbaijani citizens are entitled to obtain the right of use of apartments owned by the State or other public bodies under the terms of a tenancy agreement (Articles 10 and 28). A decision to grant an apartment is implemented by way of issuing the citizen with an occupancy voucher (yaşayış sahəsi orderi) from the local executive authority (Article 48). The voucher serves as the sole legal basis for taking possession of the apartment designated therein (Article 48) and for concluding a tenancy agreement (yaşayış sahəsini icarə müqaviləsi) between the tenant and the housing maintenance authority (Article 51). The right of use of apartments is granted for an indefinite term (Article 10).
18. Individuals residing, pursuant to a tenancy agreement, in apartments owned by the State and other public bodies have a right to transfer those apartments into their private ownership (Article 1). Such privatisation is voluntary and free of charge (Article 2). The right to privatise a State-owned apartment free of charge may be exercised only once (Article 7).
19. IDPs are defined as “persons displaced from their places of permanent residence in the territory of the Republic of Azerbaijan to other places within the territory of the country as a result of foreign military aggression, occupation of certain territories or continuous gunfire” (Article 2). The IDPs may be allowed to temporarily settle on their own only if the rights and lawful interests of other persons are not infringed. Otherwise, the relevant executive authority must ensure that the internally displaced persons are resettled in other accommodation (Article 5).
20. Article 4 of the IDP Settlement Regulations provides as follows:
“In order to prevent the eviction of internally displaced persons from dwellings in which they settled between 1992 and 1994, the legal force of the occupancy vouchers issued by the relevant authorities to individual citizens in respect of those dwellings shall be temporarily suspended...”
21. Article 4 of the IDP Resettlement Regulations provides as follows:
“In cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals, the former must be provided with other suitable accommodation”
22. In the order, inter alia, the relevant state organs of the Republic of Azerbaijan are instructed that until the return of the IDPs to their native lands or until their temporary settlement in new houses, IDPs should not be evicted from public apartments, flats, land and other premises, regardless of ownership, they had settled in between 1992 and 1998.
23. A judge examining a civil case may, at the request of a party to the case, decide to postpone or suspend the execution of the judgment or change the manner of its execution because of the parties' property situation or other circumstances (Article 231).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91274
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MASYUCHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk
TEXT: The applicant, Mr Sergiy Volodymyrovych Masyuchenko, is a Ukrainian national who was born in 1953 in Sumy Region and currently resides in Oleksandriya, Kirovograd Region.
The applicant is a retired military officer. In March 2006 he instituted proceedings in the Novomoskovsky District Court of Dnipropetrovsk Region against the Dnipropetrovsk Regional Military Commissariat seeking to have his pension recalculated in accordance with the changes allegedly introduced by the relevant legal acts.
On 20 July 2006 the Novomoskovsky District Court allowed his claims and ordered the Military Commissariat to recalculate his pension.
On 18 January 2007 the Dnipropetrovsk Regional Court of Appeal reversed this resolution and rejected the applicant’s claims in full. The court informed the applicant, in the operative part of its resolution, that it became enforceable immediately, but could be appealed to the Higher Administrative Court within one month.
The applicant did not appeal in cassation. The applicant allegedly unsuccessfully requested the Constitutional Court to rule in his case, but provided no answer from it.
1. Constitution of Ukraine, 28 June 1996
Article 125
“(...) The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction.
The respective high courts are the highest judicial bodies of specialised courts. (...)”
2. Judicial System Act, 7 February 2002
“... 1. Plenary Supreme Court ... shall be composed of all the judges of the Supreme Court, Presidents of the higher specialised courts, their first deputies, presidents of the Court of Cassation and the Court of Appeal.
2. The Plenary Supreme Court:
... 6) provides the courts of general jurisdiction with recommendations on application of legislation, and if necessary declares recommendations of the higher specialised courts unlawful;
7) decides to institute proceedings before the Constitutional Court with regard to constitutionality of the laws and other normative acts, and also with regard to official interpretation of the Constitution and the legislative acts;
... 5. Draft resolutions of the Plenary Supreme Court with recommendations on how to apply specific legislation in particular types of cases shall be sent to the Prosecutor General and the Minister of Justice at least ten days before the Plenary Supreme Court meets; ...”
In accordance with Article 210 of the Code a court of cassation in administrative cases is the Higher Administrative Court of Ukraine. Under Article 211 of the Code the parties to administrative proceedings may lodge cassation appeals with the Higher Administrative Court against the judgments or rulings of the first-instance court and the court of appeal. The grounds for appeal in cassation are an erroneous application of the procedural or substantive law. In accordance with Article 223 of the Code, the Higher Administrative Court can quash or amend judgments and rulings of the first-instance courts and the courts of appeal or adopt a new judgment upon appeal in cassation.
In accordance with paragraph 10 of Chapter VII of the Transitional Provisions of the Code, appeals in cassation which concern decisions of the courts of general jurisdiction (civil and commercial proceedings) given in administrative cases and which have not been examined by the Supreme Court by 1 September 2005 shall be transferred for examination to the Higher Administrative Court.
The content, so far as relevant, of the Resolution of the Plenary Supreme Court of 15 April 2005 is set out in the Court’s decision in the case of Karuna v. Ukraine ((dec.), no. 43788/05, 3 April 2007). The Resolution of the Plenary Supreme Court explained inter alia, with references to several legislative acts and normative acts of the Cabinet of Ministers, how the courts should approach examination of complaints lodged by former military servicemen with regard to recalculation of previously determined amounts of pensions previously assigned to them. The Plenary Supreme Court drew attention to the relevant legal and factual circumstances which should be taken into account in examining these cases by the courts.