ITEMID: 001-75668
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: UMAROV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Sulim Garmasovich Umarov, is a Russian national who was born in 1926 and lives in Moscow. He is represented before the Court by Mr A. Voytsekhovskiy, a lawyer practising in the Tver Region.
At the material time the applicant, his wife and their two sons lived in a private house at 206 Shefskaya Street, Grozny.
In late 1994 the Russian Government launched a military operation in Chechnya, aimed at disarming illegal armed formations.
According to the applicant, on 15 August 1995, during one of the federal attacks on Grozny, his then six-year-old elder son was seriously injured with the result that he was paralysed.
In early October 1999 a new military operation was commenced on the territory of Chechnya.
According to the applicant, from 10 October until 10 November 1999 he and his family hid in the basement of their house fearing massive air strikes and artillery shelling of Grozny.
On 10 November 1999 they were admitted to hospital and diagnosed with post-contusional syndrome and neurasthenia. The applicant submitted a medical certificate confirming the above diagnosis.
On 20 December 1999 the applicant and his family members were discharged from hospital, which was being evacuated since the warfare intensified.
On the same date the applicant and his relatives returned home.
According to the applicant, at some point in December 1999 they were intimidated and robbed by federal soldiers.
At the end of December 1999 the federal military authorities warned the residents of Grozny that they should leave the city within 48 hours.
On 30 December 1999 the applicant and his family left for Ingushetia. According to the applicant, federal military kept refugees from Grozny at a check-point at the Ingush border for three days in the open and without giving them any food.
At the beginning of January 2000 the applicant and members of his family reached Moscow and stayed with their relatives.
At some point the applicant found out that his house and other property in Chechnya had been destroyed during the hostilities.
On 10 November 2000 local authorities drew up an evaluation report (дефектный акт) confirming that the applicant’s possessions were completely devastated during the hostilities in 1999 – 2000.
On 4 June 2001 the applicant filed a court claim against the Ministry of Finance in the Basmanny District Court of Moscow (“the District Court”). He complained about the destruction of his possessions, enclosing the evaluation report of 10 November 2000 and a list of the destroyed items of his property, and sought compensation for pecuniary and non-pecuniary damage.
On 4 July 2001 the District Court delivered its judgment, in which it acknowledged the fact that the applicant’s private house and other belongings had been destroyed as a result of the hostilities in 1999 – 2000. The court held, however, that under Section 1069 of the Civil Code of Russia the State was only liable for damages for its agents’ actions which were unlawful. It noted that the military operation in Chechnya had been launched by virtue of presidential decree no. 2166 of 30 November 1994, and governmental decree no. 1360 of 9 December 1994 which had been found constitutional by the Constitutional Court of Russia on 31 July 1995, except for two provisions of the governmental decree. In this latter respect the court noted that the said two provisions had never been applied to the applicant, and therefore no unlawful actions on the part of the State bodies had ever taken place to warrant compensation for damage inflicted on the applicant’s property.
The court further held that under Section 1079 of the Civil Code of Russia damage inflicted by a source of increased danger was to be compensated for by a person or entity using such source, unless it was proven that the damage had been caused on account of force majeure or the fault of the affected person. However, in the court’s view, the applicant had not submitted any evidence to confirm that his property had been destroyed by a source of increased danger used by the State, or that he had borne any mental suffering in connection with the destruction of his housing and other possessions. Accordingly, the court concluded that there were no grounds for granting the applicant’s claims.
On 12 April 2002 the Moscow City Court dismissed the applicant’s appeal thus upholding the first instance judgment.


ITEMID: 001-77655
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF EDWARDS v. MALTA
IMPORTANCE: 3
CONCLUSION: P1-1 applicable;Violation of P1-1;Just satisfaction partially reserved
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1919 and lives in London.
5. The applicant claimed to be the owner of four tenements in Malta. Before the Court he produced a statement made on 19 July 2006 by a notary public, which reads as follows:
“I the undersigned Dr. Paul Pullicino, Notary Public, do hereby certify that in virtue of a secret will made on the 4th day of October, 1966, by Charles Edwards, and published by me on the 9th November, 1996, Major Joseph John Edwards [the applicant] was nominated and appointed by his father, the late Mr Charles Edwards as his sole universal heir and Testamentary Executor of his estate to whom he bequeathed 21/25ths undivided parts of tenements situated at numbers 96 to 100 Tonna Street, Sliema, - of which 2/25ths had been inherited by his wife from her late brother Sir Augustus Bartolo and the further 16/25ths purchased by him from her brother's family in the mid 1950's – all of which were owned in common with the remaining 4/25ths undivided and equal parts owned by four further members of the Bartolo family residing somewhere in South America, the administration of which had been passed on to him by their eldest brother Captain Albert Borg Falzon who had been their family administrator until he emigrated from Malta on the 4th June, 1956.”
6. In March 1941 the four tenements were requisitioned for the purpose of providing housing for homeless people. The requisition order was served on the applicant's ancestor, Mr Charles Edwards. Further correspondence about the premises was addressed to Mr Charles Edwards, as trustee of the estate of the late Sir Augustus Bartolo.
7. On 2 June 1949 a judicial letter was sent to Mr Charles Edwards “as owner” of the premises, demanding recognition of the tenants. He replied that he was only the trustee of the estate and could not therefore recognise the tenants. This position was confirmed in a court application of 14 July 1949.
8. The top floor of one of the tenements was allocated to Mr P. and his family, while family S. had been allotted the ground floor. The requisition of this tenement, composed of two floors, was contested on the ground that the ground floor provided the only access to a field, which belonged to the same owner and which had not been requisitioned. After these tenants had been recognised, on 16 December 1949 the premises were derequisitioned.
9. The premises were again requisitioned on 18 July 1957 from Mr Charles Edwards. They were derequisitioned on 5 March 1963.
10. On 10 September 1975 a fresh requisition order concerning the same tenement was issued to Mr. Charles Edwards. The authorities instructed that family P. be allotted both floors. The housekeeper, who was in correspondence about the matter with the applicant (Mr Joseph John Edwards), handed over all the keys of the tenement.
11. On 14 November 1975 the applicant wrote to the Housing Department asking for reconsideration of the order of 10 September 1975. He reiterated the argument concerning access to the field. The Department acknowledged receipt of this letter but did not reply to it. On an unspecified date in 1976, an amended requisition order, including the field adjacent to the applicant's tenement, was issued.
12. The applicant alleged that he had sought the assistance of the Minister of Housing and of the Attorney General in order to restore the situation and that on further meetings with the authorities he had been made to believe that the situation would be remedied. However, this had not been the case and he did not obtain any satisfaction.
13. On 28 March 1996 the applicant instituted proceedings before the Civil Court (First Hall) against the Director of Social Accommodation. He alleged that the requisition order of 10 September 1975 had been issued as a result of an abuse of power and was therefore null and void. He also claimed an infringement of his right to the enjoyment of his property as guaranteed by Article 1 of Protocol No. 1 by reason that the requisition order had not been made in accordance with the public interest and that he had not received adequate and appropriate compensation.
14. In a judgment of 3 October 2003, the Civil Court dismissed the applicant's claim. It declared that the tenement should be considered 'quid unum' and therefore as a single entity, including the field. It also found that the applicant's submission that the requisition order had been made in excess of power was unsubstantiated.
15. The Civil Court held that the existence of a public interest should be assessed in the light of the particular features of each individual case. In the applicant's case, the requisition was aimed at ensuring a fair distribution of homes. The benefit enjoyed by the son of Mr P. and his family, who were still using the tenement as a place of habitation, was far superior to that of the applicant. In fact, the latter made sporadic use of the garden or field, which, according to certain witnesses, was used as a rubbish dump.
16. The Civil Court furthermore observed that the applicant had brought his complaints twenty years after the issuing of the requisition order and that during this period he had apparently accepted the rent that he was being paid. This rent had been established by the Land Valuation Officer and had the applicant wanted to review the amount of the rent he could have applied to the Rent Regulation Board.
17. The Civil Court found that it had no jurisdiction to deal with the alleged violation of Article 1 of Protocol No. 1 since the requisition order had been issued in 1975. According to Article 4 of Chapter 319 of the Laws of Malta, the Convention could not be applied retroactively and thus only breaches which occurred after 30 April 1987 fell within the jurisdiction of the domestic courts.
18. The applicant appealed to the Constitutional Court.
19. He observed that had the tenement been a single entity, this should have been the case from the original requisition order made in 1941. However, the field only became accessory to the tenement according to the 1975 requisition order. The applicant moreover claimed that the tenant was making use of the land to further his gardening hobby, which could not be considered an essential part of his accommodation needs. The applicant recalled that he had been deprived of his property for almost thirty years and complained about the amount of rent (28 Maltese Liras (MTL) per year – approximately 67 euros (EUR)), which he considered to be ridiculous in comparison with the market value of the property.
20. In a judgment of 25 February 2005, the Constitutional Court rejected the applicant's appeal.
21. It held that the applicant's tenement should be considered one whole property, especially since the only access to the field was through the ground floor. Furthermore, the applicant had never made any serious attempt to question this and had kept unreservedly receiving the rent due. In any case, if he had not been satisfied with the amount of the rent, the applicant should have applied to the Rent Regulation Board, thus using the ordinary remedy available in such circumstances.
22. The Constitutional Court found that the applicant's claim regarding a violation of his right to the enjoyment of property was inadmissible ratione temporis as the requisition order had been issued and executed before 1987. However, since the complaint concerning the absence of adequate compensation referred to a continuing situation, the Constitutional Court went on to consider its merits.
23. It recalled that the applicant had always accepted rent from the tenants, which meant that there was a regular lease between the two. The Constitutional Court held that the Government enjoyed a wide margin of appreciation in assessing what was in the public interest and which measures were proportionate to the aims sought to be achieved. It quoted van Dijk's and van Hoof's book Theory and Practice of the European Convention stating that social and economic policy in the field of housing constituted an aim in the general interest.
24. Finally, the requisition and the amount of rent were in accordance with the Strasbourg case-law. The Constitutional Court referred, on these points, to the cases of Pine Valley Developments and Others v. Ireland (judgment of 29 November 1991, Series A no. 222), Sporrong and Lönnroth v. Sweden (judgment of 23 September 1982, Series A no. 52), The Holy Monasteries v. Greece (judgment of 9 December 1994, Series A no. 301-A) and James and Others v. United Kingdom (judgment of 21 February 1986, Series A no. 98).
25. According to section 2 of the Housing Act requisition means:
“ to take possession of a building or require the building to be placed at the disposal of the requisitioning authority.”
26. Until 1989 the Housing Secretary could issue a requisition order if he was satisfied that such a step was necessary in the public interest for providing living accommodation to certain persons or for ensuring a fair distribution of living accommodation. As in force at the time of the requisition of the applicant's tenement, section 3(1) of the Housing Act read as follows:
“The Secretary, if it appears to him to be necessary or expedient to do so in the public interest or for providing living accommodation to persons or for ensuring a fair distribution of living accommodation, may requisition any building, and may give such directions as appears to him to be necessary or expedient in order that the requisition may be put into effect or complied with.”
27. After 1989 the authority to issue requisition orders was given to the Director of Social Housing.
28. A requisition order imposes on the owner of the requisitioned premises a landlord-tenant relationship. According to section 8(1) of the Housing Act, the Director of Social Housing may require the owner to recognise the person accommodated in his property as his tenant or sub-tenant.
29. The owner of the premises may seek authorisation for non-compliance with this request in accordance with section 8(2) and (3) of the Housing Act, which, in so far as relevant, provides:
“(2) Within thirty days of service on him of a judicial letter under the last preceding sub-section, the requisitionee, by application to the First Hall of the Civil Court in contestation of the Director, may pray for an authorisation of non-compliance with that request ...
(3) The court shall not grant the authorisation of non-compliance mentioned in the last preceding sub-section unless the applicant shows to the satisfaction of the court that serious hardship would be caused to him by complying with that request:
Provided that the assertion that the requisitionee wishes to take possession of the building for his own use or for the use of any member of his family shall not be considered of itself as a hardship for the purposes of this sub-article.”
30. According to the Housing Act, the owner of the premises has a right to compensation, which is calculated and payable pursuant to the criteria established in section 11, which, in so far as relevant, reads as follows:
“(1) Subject as hereinafter provided, the compensation payable in respect of the requisition of a building shall be the aggregate of the following sums, that is to say-
(a) a sum equal to the rent which might reasonably be expected to be payable by a tenant in occupation of the building during the period for which possession of the building is retained by virtue of the provisions of this Act, under a letting granted immediately before the beginning of that period:
Provided that where the building is used by the Director or by a person accommodated therein after its requisition as a dwelling house within the meaning of the Rent Restriction (Dwelling Houses) Ordinance, the rent shall not exceed the fair rent as defined in article 2 of the aforesaid Ordinance;
(b) a sum equal to the cost of making good any damage to the building which may have occurred during the period in which possession thereof under requisition was retained (except in so far as the damage has been made good during that period by the occupant of the requisitioned premises or by a person acting on behalf of the Director), no account being taken of damage which, under the provisions of this Act, is the responsibility of the requisitionee;
(c) a sum equal to the amount of expenses reasonably incurred, otherwise than on behalf of the Director, for the purpose of compliance with any directions given by or on behalf of the Director in connection with the taking of possession of the building .”
31. According to Article 2 of the Rent Restriction (Dwelling Houses) Ordinance, “fair rent” means:
“i) in respect of an old house, the rent which might reasonably be expected in respect of an old house, regard being had to the average rents prevalent on the 31st March, 1939, as shown on the registers of the Land Valuation Office in respect of comparable dwelling houses in the same or in comparable localities:
Provided that where, after the 31st March, 1939, structural alterations or additions in a house, whether old or new, have been carried out which, in the opinion of the Board, have enhanced the rental value of the house and in respect of which or, as the case may be, of a part of which, no compensation has been paid or is payable under the provisions of the War Damage Ordinance 1943, and no amount has been paid or is payable by way of a grant by the Government of Malta, the rent shall be increased by an amount which, in the opinion of the Board, corresponds to the enhancement of the rental value and which shall in no case exceed a return of three and one quarter per centum a year on the capital outlay on the alterations or additions (excluding any interest on loans or in respect of idle capital) or, as the case may be, on the part thereof in respect of which compensation has not been paid and is not payable under the provisions of the War Damage Ordinance 1943, and no amount has been paid or is payable by way of grant by the Government of Malta, in every case as proven by the landlord to the satisfaction of the Board or, in default, as assessed by the Board; and
ii) in respect of a new house, a sum equivalent to a return of three per centum a year on the freehold value of the site and of three and one quarter per centum on the capital outlay on construction (excluding any sum which has been paid or is payable by way of a grant by the Government of Malta and any interest on loans or in respect of idle capital) as proven by the landlord to the satisfaction of the Board or, in default, as assessed by the Board:
Provided that where a payment under the War Damage Ordinance 1943, is made by or is due from the war damage account in respect of a former building out of which or on the site of which a new house is erected in whole or in part, for the purpose of computing the fair rent of that new house the return on that part of the capital outlay thus contributed by or due from the war damage account shall in no case exceed one year's fair rent of the former building as on 31st March,1939, or three and one quarter per centum for one year on that part of the capital outlay, whichever is the less;
iii) in respect of a scheme house, an annual sum to be determined by agreement ...”


ITEMID: 001-76947
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MONNAT v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;Violation of Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;John Hedigan;Lucius Caflisch;Luzius Wildhaber
TEXT: 4. The applicant was born in 1951 and lives in Geneva.
5. He is a journalist with the Swiss Radio and Television Company. At the material time he was responsible for the current affairs programme Temps présent (“Present tense”).
6. On 6 and 11 March 1997, as part of that programme, the Swiss Radio and Television Company broadcast on its channel for French-speaking Switzerland (TSR – Télévision suisse romande) a report by the applicant entitled “Switzerland’s lost honour”, concerning Switzerland’s position during the Second World War.
The report began by discussing the history of Switzerland during the Second World War, as supposedly experienced by the people at the time and taught for many years in schools. Switzerland had been portrayed as a brave country which, despite its neutrality, had been on the side of democracy and thus of the Allies. After this recounting of the “myth”, the journalist stated: “There has been a somewhat rude awakening.” The programme continued with severe criticism of Switzerland’s position by prominent figures and with contrasting opinions of Swiss citizens who had lived through the war. The journalist said that historians had made efforts to uncover a significant part of the truth. The programme then described the attitude of Switzerland and its leaders, emphasising their alleged affinity with the far right and their inclination towards rapprochement with Germany. This was followed by an analysis of the question of anti-Semitism in Switzerland and of the country’s economic relations with Germany, focusing on the laundering of Nazi money by Switzerland and on the role of Swiss banks and insurance companies in the matter of unclaimed Jewish assets.
7. The programme provoked objections from groups of citizens, who filed complaints under section 4 of the Federal Radio and Television Act (see paragraph 19 below) with the Independent Complaints Authority for Radio and Television (“the Complaints Authority”).
8. In the course of its investigation into the complaints, the Complaints Authority interviewed two historians. It subsequently upheld the complaints on 24 October 1997 and asked the Swiss Radio and Television Company to inform it, within ninety days of being notified of its decision, of the measures taken to redress the breach it had found, in accordance with section 67(2) of the Federal Radio and Television Act (see paragraph 20 below).
9. The Swiss Radio and Television Company appealed against the decision.
10. On 1 December 1998 the Federal Court allowed the appeal, holding that there had been a breach of the right to a hearing, quashed the decision appealed against and referred the case back to the Complaints Authority for a fresh decision.
11. On 27 August 1999 the Complaints Authority, after holding a hearing with the parties in private, again upheld the citizens’ complaints.
It observed that “where the events in issue are part of history, their presentation by journalists is bound to involve difficulties. Witnesses are increasingly rare. Certain aspects of the social context that might have explained the conduct of the time become blurred ...”
The Complaints Authority held that the programme had breached the broadcasting regulations deriving from section 4 of the Federal Radio and Television Act, by which current affairs programmes were bound by a duty to report objectively in such a way as to reflect the plurality and diversity of opinion. It pointed out that the second subsection of section 4 also provided that personal views should be identifiable as such. The Complaints Authority accordingly found against the Swiss Radio and Television Company, requesting it to indicate the measures taken to redress the breach, in accordance with section 67 of the Federal Radio and Television Act.
12. On 10 January 2000 the Swiss Radio and Television Company, the applicant and a historian who had been involved in the report applied to the Federal Court to have the decision of 27 August 1999 set aside.
13. In a judgment of 21 November 2000 (served on 15 December), the Federal Court declared the application inadmissible in respect of the applicant on the ground that, although he had produced the report, he was not entitled to take part in the proceedings since he was not personally a victim of the decision of 27 August 1999.
14. In respect of the Swiss Radio and Television Company, the Federal Court considered the application on the merits. It held that, although politically committed journalism was not prohibited in itself, it should be identifiable as such. In the present case the journalist had conveyed his support for one particular viewpoint through harsh criticism. In short, the Federal Court did not object to the programme’s content but rather to the fact that the method used, namely politically committed journalism, had not been identified as such. It pointed out that journalism of that nature was subject to particularly stringent rules of diligence, which the programme had not observed. The journalist should have informed viewers that the report was not presenting an indisputable truth but rather one possible interpretation of relations between Switzerland and Germany. The Federal Court accordingly dismissed the Swiss Radio and Television Company’s application. The relevant parts of the judgment read as follows:
“5. (b) ...
The impugned programme concerns a historical subject – Switzerland’s position during the Second World War – which has returned to prominence on account of the issue of unclaimed assets. By broadcasting a programme on a matter of public debate, the Swiss Radio and Television Company was performing the role assigned to it, and it has rightly not been criticised on that account. Because of its historical aspect, the programme in issue was faced with a problem regarding sources: witnesses to the events recounted are becoming increasingly rare and certain elements that might have explained the conduct of the time are becoming blurred, as was noted in the decisions complained of. Accordingly, the explanation of historical facts relies on hypotheses that may serve as a basis for the construction of theories. In such circumstances, journalists must test their hypotheses and, where appropriate, adjust them, even if they are not expected to reveal an absolute truth. They must abide by the rules of journalistic diligence. Accordingly, in this context they must, in particular, indicate any persisting doubts, point out contradictions between witness accounts and mention the differing interpretations supported by some historians. On account of its topical nature, the programme in issue contributes to a debate and may be described as politically committed journalism in the sense referred to above. It has to satisfy particularly stringent requirements of journalistic diligence since it expresses criticism that may be especially painful. It is necessary to assess whether the rules of diligence applicable in the present case have been complied with, bearing in mind that such an assessment must take into account the situation obtaining at the time when the impugned programme was broadcast.
6. (a) The impugned programme, entitled ‘Switzerland’s lost honour’, begins by discussing the history of Switzerland during the Second World War, as supposedly experienced by the people at the time and taught for many years in schools. Switzerland had been depicted as a small, brave country which had resisted the demoniac forces of Nazism. Despite being neutral, in their hearts the Swiss had been on the side of democracy, in other words the Allies. They had deterred the Nazis from attacking them through their determination to resist, if necessary with the help of the Réduit, a kind of impregnable fortress in the Alps. They had displayed generosity by welcoming more than 230,000 people who had fled the extermination camps and by temporarily receiving child war victims. Switzerland had introduced banking secrecy so that Jews could store their savings safely in the country. After this recounting of the ‘myth’, the journalist states: ‘There has been a somewhat rude awakening.’ The programme continues with severe criticism of Switzerland’s position during the Second World War by prominent figures – most of them Jewish – and with contrasting opinions of Swiss citizens who lived through the period and young people who know about it only through the ‘myth’. The journalist then asserts that in the past twenty-five years, historians studying the period have uncovered a significant part of the truth. Next, the programme describes the attitude of Switzerland, and in particular its political and military leaders, during the Second World War, emphasising their alleged affinity with the far right and their inclination towards rapprochement with Germany. The question of Swiss anti-Semitism is then examined, along with the economic and financial relations between Switzerland and Germany. The programme alleges that the Réduit served Germany’s economic interests and focuses on the laundering of Nazi money by Switzerland and on the role of Swiss banks and insurance companies in the matter of unclaimed Jewish assets. The journalist concludes by saying: ‘The experts of the Volcker Commission and the historians of the Bergier Commission will no doubt confirm that the Swiss political and economic elite in this difficult period adapted to the circumstances rather too well. Their biggest mistake was probably their failure to acknowledge and come to terms with that attitude after the war; to acknowledge that the Swiss were not heroes but normal people caught up in events, who succeeded in taking advantage, for themselves and their descendants, of the most appalling global crisis of the twentieth century.’
(b) The Complaints Authority, which did not criticise the content of the programme in issue, found that the Swiss Radio and Television Company had breached section 4 of the Federal Radio and Television Act by using a method, described as politically committed journalism in the decisions under review, which had not allowed viewers to form their own opinion. The company had not observed the principles of journalistic diligence since it had never suggested that there were differing views among the historians who had distanced themselves from the ‘myth’ that had built up with regard to Switzerland’s position during the Second World War.
(c) The Swiss Radio and Television Company disputes that the programme in issue can be regarded as politically committed journalism, which is subject to particularly stringent rules of diligence. It argues that, in any event, the programme complied with such rules. The company also complains of a misuse of discretionary power. It accuses the relevant authority of having reaffirmed the conclusions of its decisions of 24 October 1997 despite the fact that the additional investigation had virtually demolished the reasoning on which they were based, and of having acted arbitrarily by assuming the role of the ultimate authority on historical science.
7. (a) As the Complaints Authority noted, the programme in issue sets the ‘myth’ against the ‘truth’ which historians have brought to light, without indicating the disagreements existing between them. In various spheres, such as the basis of Switzerland’s economic relations with Nazi Germany, the purpose of the Réduit or the explanation of Switzerland’s independence, it makes no reference to differing views, despite the fact that opinion on these matters is far from unanimous, as the Complaints Authority showed. Similarly, the decisions under review observe that the programme in issue merely provides one explanation for the conduct of a prominent figure such as General Guisan, without mentioning that there are other explanations that are just as valid, if not more so.
While accusing the Swiss authorities, at least implicitly, of having deceived the population for some fifty years with a ‘myth’, the impugned programme, without admitting as much, also gives its own interpretation which is no less categorical. This impression is, moreover, reinforced by interviews, in which ordinary men and women who lived through the events under discussion defend the ‘myth’, expressing their emotions with varying degrees of articulacy, while historians, who are expected to have a rigorous grasp of their subject, provide the ‘truth’. As the Complaints Authority rightly pointed out, the programme in issue ridicules the wartime generation by showing recollections that are incorrect or exaggerated or convey a misplaced sense of self-satisfaction, contrasting with the cold logic of the historians. This leaves the impression that the interpretation put forward in the programme is corroborated by all specialists and thus reflects the sole historical truth. There is therefore a risk that one myth might be replaced by another, and only the observance of strict rules of journalistic diligence can prevent such a lapse. Furthermore, the programme does not always place the events it describes in their historical context as precisely as is desirable. It takes insufficient account of certain important aspects (for example, the threats Switzerland faced as a result of being surrounded by the Axis powers, and the position of other neutral or even Allied powers) for viewers to be able to form an opinion, or plays down their significance. Lastly, it does not always enable facts to be distinguished from comment (see the speech given on 7 May 1995 by Kaspar Villiger).
(b) The Swiss Radio and Television Company wrongly asserts that the Complaints Authority should have had regard to its programmes as a whole in assessing whether the diversity of opinions among historians had been reflected. It refers in that connection to the special programme of 19 February 1997 on General Guisan, ‘Switzerland in torment’, and the debate broadcast on 21 May 1997, ‘Switzerland – neutral or cowardly’; in addition, it announces that the programme in issue will be followed up in the light of the findings of the commissions set up by the Federal Council. It must be noted, however, that the impugned programme appears to be self-contained. It does not refer to the previous programme of 19 February 1997 or to the subsequent one of 21 May 1997. Furthermore, these three programmes were not advertised by the Swiss Radio and Television Company as forming a coherent whole, and viewers of the programme in issue could not have suspected that it was part of a series, if indeed it was.
(c) The impugned programme adopts an extremely critical approach towards Switzerland’s position during the Second World War, as is legitimate. However, it neglects to mention that it is not revealing ‘the truth’ but one of several different interpretations of relations between Switzerland and Germany during that period. Accordingly, viewers are not provided with all the material enabling them to form their own opinion. Furthermore, the programme in issue lacks objectivity and transparency in that it never mentions either the existence or the essence of other interpretations of Switzerland’s position during the Second World War, whereas the version it presents is not unanimously supported by historians.
The Complaints Authority emphasised the cultural role assigned to the Swiss Radio and Television Company, the autonomy it enjoys and the conflicts that may arise between these two aspects. On that basis, it reached the conclusion that the programme in issue had not breached section 3(d) of the Federal Radio and Television Act. The Complaints Authority then referred to the principles applicable to the provision of information, laying particular emphasis on the principle of journalistic diligence. It pointed out the difficulties inherent in programmes dealing with historical subjects. It also gave a precise definition of its power of review. Having thus delimited the scope of its intervention, the Complaints Authority undertook an analysis of the impugned programme. It examined the programme’s structure and the method used to present the subject. In addition, it conducted research into whether the diversity of views had been reflected with sufficient accuracy. Following a thorough examination, the Complaints Authority found that the programme in issue had breached section 4 of the Federal Radio and Television Act. The Complaints Authority did not exceed or misuse its discretionary power. Indeed, it remained within the scope of the powers conferred on it, being precluded, as it emphasised itself, from stating a position on historical events and their interpretation or on the validity of the views expressed by the historians appearing on the programme in question. Its criticisms of the Swiss Radio and Television Company, moreover, do not concern the content of the programme but solely the manner in which it presented Switzerland’s position during the Second World War to viewers. In the final analysis, the Complaints Authority cannot be criticised for finding, in accordance with federal law, that the programme in issue breached section 4 of the Federal Radio and Television Act, by which Article 55 bis, paragraph 2, of the former Constitution is given statutory expression.
Moreover, it is not surprising that the Complaints Authority should have reached the same conclusions as in its previous decisions of 24 October 1997. The additional investigations made it possible to clarify some points regarding the content of the impugned programme, without having any bearing on its form or style.
(d) The Swiss Radio and Television Company is also wrong to complain that its independence has been undermined (freedom of opinion, of the media and of science). It overlooks the fact that the freedom it enjoys is not absolute but is limited by section 4 of the Federal Radio and Television Act, which the Complaints Authority is required to apply. The Complaints Authority’s review of compliance with that provision cannot therefore in itself undermine the company’s independence.
8. (a) The Swiss Radio and Television Company alleges that the decisions complained of infringe Article 10 of the European Convention on Human Rights (ECHR). This provision guarantees freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas (Article 10 § 1 ECHR). This freedom is not absolute (Article 10 § 2 ECHR).
(b) According to the case-law, restrictions on the freedom of expression enshrined in this provision are acceptable if they are prescribed by law, based on a legitimate aim under Article 10 § 2 ECHR and necessary in a democratic society to achieve that aim (see the unreported judgment of 12 January 1996 in the case of B. v. Direction générale de l’Entreprise des PTT suisses, point 3 (b)).
Furthermore, with regard to freedom of expression, Article 10 ECHR does not guarantee any greater protection than unwritten constitutional law (ATF [Judgments of the Swiss Federal Court] 119 Ia 71, point 3a, p. 73, 505, point 3a, p. 506; 117 Ia 472, point 3b, p. 477). The Federal Court has also pointed out that Article 10 ECHR does not afford more extensive protection than section 5 of the Federal Radio and Television Act to broadcasters – in so far as they are entitled to rely on it. The freedom it affords to receive and impart information and ideas without interference by public authority includes the freedom of radio and television broadcasting, but this freedom is not unlimited (ATF 122 II 471, point 4b, p. 479).
(c) The Swiss Radio and Television Company’s complaint must be dismissed. The Complaints Authority’s criticisms of the company pursue a legitimate aim under Article 10 § 2 ECHR, since they seek to protect the right of viewers to receive objective and transparent information.
9. In the light of the foregoing, the applications must be refused in so far as they are admissible.”
15. In a letter of 26 February 2001, the Swiss Radio and Television Company informed the Complaints Authority of the measures taken in accordance with section 67(2) of the Federal Radio and Television Act as a result of the Complaints Authority’s decision of 27 August 1999, upheld by the Federal Court in its judgment of 21 November 2000.
“... Further to this procedure, two preliminary remarks must be made. As a result of the procedure conducted in 1999 by the Complaints Authority following the Federal Court’s judgment of 1 December 1998, the Swiss Radio and Television Company had the opportunity to put forward its point of view and no factual errors could be identified in the programme in question (see also the Federal Court’s judgment of 21 November 2000, p. 15), since the criticisms no longer related to the content of the programme ... In addition ... the Complaints Authority emphasised the critical function that broadcasters, by their very nature, are also required to perform (as the Federal Court also confirmed in its judgment of 21 November 2000, p. 14) and the difficulty inherent in the genre of programmes on historical subjects ...
Further to the decisions by your authority, as upheld by the Federal Court, we hereby give you formal notice of the following measures taken in accordance with section 67, subsection (2), of the Federal Radio and Television Act, as instructed in your decisions ...:
1. The decisions have been communicated to the News Editors’ Conference, which has taken note of them.
2. The Conference has drawn attention to the manner in which sensitive subjects of a highly emotive nature are to be dealt with and to the need to take into account the public impact, using as an example the procedure and decisions in question here.
...
4. It has also been specifically agreed that in the coverage of sensitive subjects, as in the programme in question, where there are ‘differing views’ among historians or other participants (see the Federal Court’s judgment of 21 November 2000, pp. 12-13, and the Authority’s decisions, paragraphs 8.5 and 8.11), such differences are to be appropriately indicated, although, as the Authority itself states in its decisions (paragraph 8.4), this does not require the ‘tiniest nuances ... to be taken into account’.
5. Lastly, the decisions have been incorporated into all the Swiss Radio and Television Company’s training courses ...”
16. In its reply of 26 March 2001, the Complaints Authority stated that it found the measures taken to be adequate and would no longer propose taking the measures referred to in section 67(3) of the Federal Radio and Television Act. It thereby declared the procedure closed.
17. On 10 May 2001 the competent bailiff of the city of Geneva drew up an official report attesting that the broadcast had been “placed under a legal embargo and that as a result it [was] not possible to obtain a copy of it from the TSR sales department or from any European or foreign television channel”.
18. Article 93 of the Federal Constitution provides:
“1. Legislation on radio and television and on other forms of transmission of productions and information via public telecommunications services shall fall within the jurisdiction of the Confederation.
2. Radio and television shall contribute to education and cultural development, to the free formation of opinion and to entertainment. They shall take into account the particularities of the country and the requirements of the cantons. They shall portray events accurately and provide a fair reflection of the diversity of opinions.
3. The independence of radio and television and autonomy in programming shall be guaranteed.
4. The position and role of other media, in particular the press, shall be taken into account.
5. Complaints about programmes may be submitted to an independent authority.”
19. Section 4 of the Federal Radio and Television Act of 21 June 1991 provides:
“(1) Programmes shall portray events accurately. They shall fairly reflect the plurality of events and the diversity of opinions.
(2) Personal views and comments must be identifiable as such.”
20. Sections 58 to 67 of the Act govern the Complaints Authority. They provide, in so far as relevant:
“(1) The Federal Council shall appoint an authority responsible for examining complaints ..., composed of nine members discharging their duties as a secondary activity ...
(2) The Complaints Authority shall rule on complaints concerning radio and television programmes transmitted by Swiss broadcasters.
(3) In performing its duties, the Complaints Authority shall not be bound by any instructions from the Federal Assembly, the Federal Council or the federal administration.
...”
“(1) Within thirty days from the submission of the written opinion ..., a complaint about the programme in question may be submitted in writing to the Complaints Authority. The opinion of the mediation body must be attached to the complaint.
(2) The complaint must give a brief indication of the nature of the alleged breach of the regulations on broadcasting as set out in this Act, in the provisions on its implementation or in the licence.”
“(1) If the supervisory authority finds a breach of the regulations, it may:
(a) order the licence-holder to redress the breach or to take measures to prevent any further recurrence; the licence-holder shall inform the authority of the measures taken;
(b) require the licence-holder to forfeit any unlawful financial benefit to the Confederation;
(c) propose that the Department restrict, suspend or revoke the licence or subject it to further conditions.
(2) If the Complaints Authority finds a breach of the regulations, it shall inform the broadcaster. Within an appropriate period, the broadcaster shall take measures to redress the breach and to prevent any further recurrence. It shall inform the Complaints Authority of the arrangements made.
(3) If the broadcaster has not made sufficient arrangements within an appropriate period, the Complaints Authority may propose that the Department take the measures provided for in subsection (1)(c) above.”
21. Sections 70 to 73 concern punitive measures. Section 70 provides, in so far as relevant to the present case:
“(1) A fine of up to 5,000 francs shall be imposed on anyone who:
...
(c) seriously or repeatedly breaches the regulations on broadcasting as laid down in international agreements, in this Act or the provisions on its implementation, or in the licence, provided that the Complaints Authority seeks such a penalty.
...
(4) In less serious cases, the offender may be exempted from the penalty referred to in subsection (1) above.”
VIOLATED_ARTICLES: 10


ITEMID: 001-83012
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BODON v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: 4. The applicant was born in 1955 and lives in Budapest.
5. On 13 June 1996 the applicant was arrested on charges of smuggling. He was detained until 10 June 1997.
6. On 26 May 1998 the applicant and his 11 accomplices were charged by the Budapest XVIII/XIX District Public Prosecutor's Office with having participated in a gang of smugglers involved in illegally importing merchandise (mainly perfumes and sweets) worth over 100 million Hungarian forints, from Austria to Hungary.
7. On 17 December 1998 the Customs Authority seized a large amount of merchandise, mainly spirits and cosmetics, held by the applicant.
8. After having held several hearings and obtained the opinions of experts, on 18 June 2004 the Budapest XVIII/XIX District Court held a public hearing, which the applicant's lawyer attended, and discontinued the criminal proceedings against the applicant and his accomplices, observing that their conduct was no longer punishable subsequent to Hungary's accession to the European Union. The court ordered that the seized goods should be returned to the applicant. He states, however, that the Customs Authority had meanwhile sold the merchandise. The decision was served on the applicant's lawyer on 8 November 2004.
9. On 1 April 2005 the applicant filed an action against the State for compensation on account of his pre-trial detention. On 7 June 2005 the Budapest Regional Court dismissed the action, in a procedural decision, observing that it had been introduced outside the six-month statutory time-limit which had run from the pronouncement of the final decision on 18 June 2004.
10. On 24 November 2005 the Budapest Court of Appeal quashed this decision, holding that the applicant's claims had to be examined on their merits.
11. In the resumed proceedings, on 1 March 2006 the Regional Court dismissed the applicant's claims as being statute-barred.
12. On 26 September 2006 the Court of Appeal upheld this decision. Examining the applicant's claims from the perspective of the Codes of Criminal and Civil Procedure and Articles 5 § 5 and 13 of the Convention, the Court of Appeal was satisfied that the final decision had been pronounced on 18 June 2004 and that the applicant's claims were consequently statute-barred.
13. On 26 April 2007 the Supreme Court dismissed the applicant's petition for review.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-117874
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF OLSZEWSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1958 and lives in Gostynin.
6. On 22 April 2003 the applicant complained to the Court of procedural shortcomings and the unfavourable outcome of criminal proceedings.
7. On 28 July 1999 he had been acquitted of robbery by the Gostynin District Court (Sąd Rejonowy).
8. On 21 December 1999 the Płock Regional Court (Sąd Okręgowy) partly quashed the judgment and remitted the case to the lower court.
9. On 20 May 2002 the Gostynin District Court convicted the applicant of robbery and sentenced him to six years’ imprisonment.
10. On 2 December 2002 the Płock Regional Court upheld that judgment but reduced the applicant’s sentence to five years’ imprisonment. The judgment, together with the court’s reasoned opinion, was served on the applicant on 16 March 2003.
11. On 24 March 2003 the applicant’s legal-aid lawyer informed the Płock Regional Court that he had not found any grounds to lodge a cassation appeal in the applicant’s case. On 7 April 2003 the court conveyed that information to the applicant and its refusal to appoint another lawyer.
12. On 9 April 2004 the Ombudsman refused to lodge an extraordinary cassation appeal in the applicant’s case, because he had not found any grounds to do so.
13. On 15 March 2005 the applicant made an application to the Supreme Court for the proceedings to be reopened.
14. On 20 June 2005 the Gostynin District Court appointed a legal-aid lawyer to represent the applicant in the proceedings for the reopening of his case. On 8 August 2005 the lawyer prepared and lodged a proper application to reopen the proceedings. He argued that new facts and evidence had come to light since the applicant had been convicted, namely that two of the witnesses for the prosecution had admitted that they had given false statements.
15. On 16 September 2005 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to exempt the applicant from court fees.
16. On 30 September 2005 the Warsaw Court of Appeal refused to reopen the proceedings on the grounds that the witnesses in question had not been convicted of perjury in connection with the main proceedings against the applicant, and that the arguments raised by the applicant’s lawyer were therefore invalid.
17. No appeal was available under the applicable domestic law.
18. On 31 May 2007 the applicant complained to the Court of overcrowding and inadequate medical care and detention conditions in Płock Prison.
19. The applicant was detained in Płock Prison on three separate occasions: (1) from 30 December 1998 to 14 July 1999; (2) from 8 August 2003 until 4 June 2007; and (3) from 9 January until 6 February 2008. Between his first and second periods of detention the applicant was released into the community, and between his second and third periods of detention there, he was detained in the Gdańsk Remand Centre hospital. He was released into the community on 6 February 2008.
20. The applicant submitted that throughout his detention in Płock Prison he had been detained in overcrowded cells. He did not indicate the size of the cells in which he had been placed or the number of inmates he had had to share them with.
21. He did submit to the Court, however, copies of official memoranda revealing that every three to four months or so, the governor of Płock Prison would report to the relevant penitentiary judge along the following lines: “...owing to the overcrowding of [the prison’s] quarters, I have been forced to place prisoners in cells with less than 3 sq. m of living space for each person. This situation affects all cells ...”
22. The official statistics published by the Prison Service (Służba Więzienna) show that during the applicant’s second period of detention, overcrowding (the degree by which the number of prisoners exceeds the maximum allowed capacity of a particular detention facility, which, in turn, is calculated on the basis of the standard of 3 m² of cell space per prisoner provided for in Polish law) at Płock Prison ranged between 19% and 29% in the relevant part of 2003, 22% and 33% in 2004, 22% and 34% in 2005, 25% and 36% in 2006, 29% and 34.5% in the relevant part of 2007, and had been nearly 30% in January 2008 and over 33 % in February of the same year.
23. The Government acknowledged that during the relevant period, namely between 2003 and January 2008, the overall maximum capacity of Płock Prison had been exceeded by on average 32%.
24. The Government also submitted that between 8 August 2003 and 4 June 2007 the applicant had been detained in eight cells, measuring between 6 and 25 sq. m. They submitted that no records existed to show how many prisoners had shared those cells with the applicant. In consequence, it could not be established whether or not the applicant’s cells had been overcrowded.
25. As regards the final period of the applicant’s detention, the Government submitted that between 9 January and 6 February 2008, he had been placed in cell no. 304, which measured nearly 25 sq. m. For a total of nine days he had shared that cell with ten fellow inmates (2.2 sq. m per person). During the remaining nineteen days, he had shared it with eleven inmates (2 sq. m per person).
26. It appears that all cells were clean, well-lit and ventilated.
27. The Government stressed that the applicant had not been confined to his cells all day long. He had been allowed an hour of outdoor exercise per day, an hour in the prison recreation room (świetlica) every other day and two weekly visits to the library. Moreover, the applicant could, if he had wished to do so, have attended education and leisure courses or taken up employment offered by the prison.
28. The applicant, in principle, did not contest the above submissions. As regards his employment opportunities, however, he provided the Court with copies of several letters from the prison administration and the prison authorities, which stated that his job opportunities were objectively limited owing to his disability and the fact that the rate of unemployment among prisoners was very high (see paragraph 39 below).
29. Lastly, the applicant submitted that for two years, from 27 October 2004 until 4 June 2007, he had shared a cell (no. 304, wing III) with an inmate who suffered from schizophrenia and had a history of violence.
30. The Government argued that during his detention in Płock Prison the applicant had not shared his cell with any prisoner suffering from schizophrenia. They also pointed out that the applicant had never made any complaints to that effect to the prison authorities.
31. In his application to the Court of 31 May 2007, the applicant also complained that he had been provided with inadequate medical care by the prison healthcare system during his detention in Płock Prison.
32. The applicant suffered from ulcers, varicose veins, atherosclerosis (hardening of the arteries), osteoarthritis, chronic bronchitis, asthma and a spinal hernia. His conditions were confirmed by numerous hospital records and medical certificates, issued by, among others, a public hospital in Gostyniń on 16 May 2003, Płock Prison medical centre (Zakład Opieki Zdrowotnej) on 30 January 2007, and the Gdańsk Remand Centre hospital on 31 July and 8 February 2007. He used an orthopaedic prosthesis and was in overall poor health.
33. The applicant submitted two hospital discharge reports issued shortly before his detention in 2003. The documents revealed that the applicant had been treated for spondylarthritis (an inflammatory spinal rheumatic disease) and chronic bronchitis and that when he was discharged he had been in a good state of health. The reports also recommended that the applicant should continue taking certain medication and should do physiotherapy exercises at home.
34. The applicant was certified on 14 February 2007 as having a minor disability (umiarkowany stopień niepełnosprawności) and on 31 May 2010 as having a significant disability (znaczny stopień niepełnosprawności).
35. The applicant asserted that he had not received adequate medical care during his imprisonment. In particular, he submitted that he had not been allowed to have specialist orthopaedic treatment and that on several occasions he had been refused painkillers.
36. The Government submitted that the applicant had been provided with regular and adequate care and treatment which had complied with recommended medical practice. He had been examined by general practitioners and various specialists on 259 occasions. More precisely, during his second and third periods of detention in Płock Prison, the applicant had been examined by specialists in internal medicine (147 times) and physiotherapy (twenty-two times), a pulmonologist (forty times), a dentist (eleven times), a radiologist (nine times), a psychiatrist (ten times), a neurologist (fourteen times), a dermatologist (three times), a laryngologist (twice), an ophthalmologist (three times) and by a vascular surgeon once.
37. From 4 June 2007 to 9 January 2008 the applicant was detained in Gdańsk Remand Centre. He was initially placed in a cell in the general wing because of building works in the hospital wing. On 8 August 2007 he was transferred to the hospital wing. The medical certificates issued in the hospital revealed that throughout the whole period in question, the applicant had received hospital treatment for his spinal arthritis and hernia, as well as for chronic bronchitis.
38. The applicant lodged numerous complaints with the penitentiary prison authorities concerning his allegedly inadequate medical care and other aspects of his detention but to no avail. The applicant did not lodge any complaints about overcrowding at that stage.
39. By letter of 2 June 2005, an officer authorised by the Director of the Łódź Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej) informed the applicant that a complaint he had lodged concerning his unemployment in Płock Prison had been rejected as illfounded. It was emphasised that the applicant’s job opportunities were objectively limited owing to the nature of his disability and the fact that the rate of unemployment among prisoners was very high.
40. By letters of 19 April, 7 May, 9 July and 8 October 2007 the Directors of the Łódź and Gdańsk Regional Inspectorates of the Prison Service informed the applicant that his complaints of inadequate medical treatment in prison had been rejected as ill-founded. It was established that the applicant had received sufficient medical treatment, having been examined by specialists and prescribed medication. It was also noted that in order to provide him with better medical care, on 4 June 2007 the applicant had been transferred to the hospital at Gdańsk Remand Centre.
41. By letter of 6 August 2007 the Director of the Łódź Regional Prison Service informed the applicant that, as he had claimed, the Płock Prison medical centre had failed to undertake all the necessary measures in order to supply him with prosthetics. No further information can be derived from this document. The applicant did not make any submissions regarding this aspect of his medical conditions and healthcare.
42. The applicant also sought temporary leave from prison on account of his poor health; however, on 27 August 2007 the Gdańsk Regional Court refused to grant the necessary licence.
43. On 14 November 2007 the Gdańsk Court of Appeal upheld that decision. The domestic courts considered that adequate medical care and treatment could be provided to the applicant by the prison system. Reference was made to the medical certificates of 12 July and 8 November 2007 which stated that there was no requirement for the applicant to undergo spinal surgery. The courts concluded that the applicant’s multiple and serious health conditions did not make it impossible for him to continue serving his prison sentence.
44. In March 2007 the applicant brought a civil action against the State Treasury for compensation in the amount of 150,000 Polish zlotys (PLN) (approximately 36,000 euros (EUR)) for non-pecuniary damage, which he had allegedly suffered owing to overcrowding and inadequate conditions of detention and medical care in Płock Prison. He also asked to be exempted from paying court fees, on the basis that he was unemployed and had no financial resources.
45. On an unspecified date the Płock Regional Court ordered that the applicant pay court fees in the amount of PLN 7,500 (approximately EUR 2,000).
46. The court later decided to grant the applicant a partial exemption from the fees and ordered that he pay the remaining fee of PLN 1,500 (approximately EUR 420).
47. It would appear that the applicant lodged an interlocutory appeal seeking a full exemption from the court fees.
48. On 30 March 2007 the Płock Regional Court returned the applicant’s interlocutory appeal because it had not been lodged in compliance with the relevant procedural requirements namely the applicant had failed to give full details of his appeal and to submit the necessary supporting documents. On 5 July 2007 the same court rejected a further interlocutory appeal by the applicant because such a remedy had not been available to him under the applicable domestic law.
49. It appears that the applicant sent a further request for an exemption from court fees. On 13 July 2007 the Płock Regional Court invited him to submit a statement of his financial means in support of his request.
50. It appears that the full fee exemption was eventually granted.
51. On 25 June 2009 the Płock Regional Court obtained a medical expert report, which concluded that the applicant’s medical condition, more specifically the atherosclerosis of his legs, spinal hernia, osteoarthritis, chronic bronchitis and joint deformation, did not have any connection and did not directly result from his incarceration and the conditions of his detention in Płock Prison. It was also considered that the cause of the applicant’s multiple health disorders was unknown but they undoubtedly dated back to a time prior to his detention.
52. In addition, the expert made the following findings about the applicant’s health and treatment in Płock Prison: the applicant’s atherosclerosis dated back to 1995 or earlier; he was a smoker and had begun treatment for chronic bronchitis in 1997; he had developed spinal problems in 1998; and he received medication for stomach ulcers. The report also concluded that the medical treatment during his detention could be regarded as effective as his chronic illnesses were not getting any worse.
53. On 5 August 2009 the Płock Regional Court dismissed the applicant’s claim on its merits (no. IC 586/07). A copy of the judgment was served on the applicant on 12 December 2009.
54. On 20 January 2010 the applicant informed the Regional Court that he wished to appeal against the first-instance judgment and asked the court to provide him with its reasoned opinion for the decision.
55. On 8 February 2010 the Płock Regional Court rejected the applicant’s appeal as it was lodged out of time. On 8 April 2010 the same court rejected the applicant’s interlocutory appeal against that decision.
56. On 31 May 2007 the applicant also complained to the Court of procedural shortcomings and the unfavourable outcome of divorce proceedings to which he was party.
57. On 5 January 2006 the Płock Regional Court ruled in the applicant’s divorce proceedings.
58. On 24 March 2006 the Płock Regional Court dismissed an appeal by the applicant for non-compliance with procedural requirements, inter alia, his failure to specify the exact nature of his appeal, namely whether he wished to have the first-instance court’s judgment amended or quashed entirely, and his failure to pay the required court fee in the amount of PLN 50 (approximately EUR 13).
59. On 22 September 2006 the Warsaw Court of Appeal dismissed an interlocutory appeal by the applicant against that decision.
60. On 31 May 2007 the applicant also complained to the Court of procedural shortcomings and the unfavourable outcome of social security proceedings he had brought.
61. The applicant failed to submit all the documents relating to the proceedings which were the subject of that part of the application. As a result, it is impossible for the Court to establish exactly what happened.
62. On an unspecified date the applicant instituted social security proceedings for an assessment of his level of disability and his pension.
63. It appears that on 19 June 2006 the Warsaw District Court decided to dismiss the applicant’s claim for non-compliance with procedural requirements, namely a failure by the applicant to pay a basic court fee (opłata podstawowa) in the amount of PLN 30 (approximately EUR 8). It appears that the applicant later lodged a number of interlocutory appeals, some of which were out of time. Eventually, the case was struck out on the grounds that the applicant had failed to comply with several procedural requirements, namely to pay the required basic court fee and lodge his appeals within the prescribed time-limit.
64. On 31 May 2010 the applicant was certified as being significantly disabled.
65. A detailed description of the relevant domestic law and practice, concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate, is set out in the Court’s pilot judgments in Orchowski v. Poland (no. 17885/04, §§ 75-85, 22 October 2009) and Norbert Sikorski v. Poland (no. 17599/05, §§ 4588, 22 October 2009). More recent developments are described in the Court’s decision in the case of Łatak v. Poland ((dec.), no. 52070/08, §§ 25-54, 12 October 2010).
66. The provisions pertaining to medical care in detention facilities are set out in the Court’s judgment in the case of Sławomir Musiał v. Poland (no. 28300/06, §§ 48-61, 20 January 2009).
VIOLATED_ARTICLES: 3


ITEMID: 001-75238
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF HRIBAR v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1950 and lives in Prebold.
6. On 24 June 1995 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT.
7. On 25 August 1997 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 9,561,000 tolars (approximately 40,000 euros) for the injuries sustained.
Between 6 February 1998 and 14 April 1999 the applicant made four requests that a date be set for a hearing.
Between 24 June 1999 and 7 November 2000 he lodged four preliminary written submissions and/or adduced evidence.
Of the three hearings held between 18 June 1999 and 29 March 2001 none was adjourned at the request of the applicant.
During the proceedings the court appointed a medical expert. The court also sought an additional opinion from the appointed expert.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 27 June 2001.
8. On 5 July 2001 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed.
On 30 January 2003 the court dismissed the ZT’s appeal, allowed in part the applicant’s appeal, and increased the amount of the costs and expenses awarded. The judgment was served on the applicant on 6 March 2003.
9. On 28 March 2003 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 13 May 2004 the court rejected the appeal.
The judgment was served on the applicant on 3 June 2004.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97051
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MARIAN SOBCZYNSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 5-3
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant, Mr Marian Sobczyński, is a Polish national who was born in 1950 and who lives in Zabrze, Poland.
6. On 7 June 2006 the applicant was arrested on suspicion of being a member of an organised criminal gang, tax fraud, perjury and other related offences.
7. On 9 June 2006 the Katowice District Court (Sąd Rejonowy) remanded him in custody. That decision was justified by the strong evidence against the applicant, the gravity of the offences with which he had been charged and the severity of the penalty which could be imposed if convicted. In addition, the court relied on the risk that the applicant would induce witnesses to give false testimony and also go into hiding if released. The latter ground was justified in the light of the fact that the applicant did not have a fixed residence prior to his arrest.
8. It appears that the applicant’s interlocutory appeal against the above detention order was dismissed on 23 June 2006.
9. Subsequently, the applicant’s pre-trial detention was extended by the decisions of the Katowice District Court issued on 25 August, 24 November and 18 December 2006, 19 February, 25 April and 18 June 2007 and by the decisions of the Gliwice Regional Court (Sąd Okręgowy) issued on 20 September and 27 December 2007 and 25 March 2008.
10. The domestic courts relied on the original grounds for the applicant’s detention. In addition it was noted that the proceedings were complex and involved a large number of witnesses and voluminous evidence. The investigating authorities had to obtain expert reports on accountancy, finance and forensics. Lastly, it was noted that new aspects of the alleged criminal activities of the applicant were being revealed in the course of the progressing investigation.
11. On 22 April 2008 the prosecutor lodged a bill of indictment against the applicant and his two alleged accomplices with the Katowice Regional Court. The applicant was indicted of numerous counts of tax fraud, money laundering and perjury, allegedly committed within an organised criminal gang.
12. The first hearing took place on 23 October 2008. It appears that since then the trials have been taking place once a month or more frequently.
13. Pending trial, the applicant’s detention was extended by the Katowice Regional Court’s decisions of 5 May and 5 November 2008.
14. The applicant or his lawyer challenged a number of decisions to extend his detention. It appears that an interlocutory appeal was not brought against seven of those decisions. The interlocutory appeals lodged by the applicant’s lawyer against the decisions of 25 March, 5 May and 5 November 2008 were rejected by the Katowice Court of Appeal on 4 June 2008 and two unspecified dates respectively. Likewise, the applicant’s request for release was rejected by the Katowice Regional Court on 21 July 2008.
15. On 6 March 2009 the Katowice Regional Court released the applicant from detention, placing him under police supervision (dozór policyjny). The court considered that keeping the applicant in detention was no longer necessary since the majority of witnesses had already been examined by the trial court and in the light of the fact that the applicant had been recently registered at a fixed residence address.
16. It appears that the criminal proceedings against him are currently pending.
17. In parallel to his pre-trial detention subject of the instant application, the applicant served two separate prison sentences imposed on him by a competent criminal court. The two prison terms amounted to one year, six months and nineteen days. And thus from 2 March 2007 until 31 July 2008 the applicant was serving a sentence imposed on him by the Wieluń District Court in its judgment of 5 February 2007 and from 8 September until 28 October 2008 the applicant was serving a sentence, which was imposed on him by the same court in its decision of 28 July 2008.
18. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-60939
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF BERTUZZI v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: András Baka;Gaukur Jörundsson
TEXT: 9. The applicant, Mr Rémi Bertuzzi, was born in 1951 and lives in Saint-Laurent (département of Vosges).
10. He applied to the Metz tribunal de grande instance for legal aid to bring an action in damages against Mr T., a lawyer, for failing to represent him properly in court proceedings. He was granted full legal aid on 1 June 1995.
11. Three lawyers were assigned in turn by the president of the bar council to represent the applicant under the legal-aid scheme, but they applied for permission to withdraw from the case, owing to personal links with the lawyer the applicant wished to sue. The last of them withdrew from the case in late October or early November 1995.
12. On 23 November 1995 the applicant asked the president of the legal-aid office to assign a fourth lawyer. On 27 November 1995 he made a like request to the president of the bar council. The registry of the legal-aid office forwarded the applicant's letter to a lawyer who had been delegated by the bar council to the legal-aid office.
13. On 12 December 1995 that lawyer wrote to the president of the bar council in Metz to request the appointment of a fourth lawyer. The latter took no immediate action on the request, other than to seek information about the nature of the applicant's case, which he was given.
14. In the absence of a reply, the applicant wrote to the Minister of Justice on 14 June 1996. All he received in reply was a letter which arrived on 21 June 1996 informing him that his request had been transferred to the Director of the Civil Affairs Department. The applicant pointed this out in a letter to the minister dated 23 November 1996.
15. In March 1997 the applicant received a reply from the president of the bar council informing him that the grant of legal aid dated 1 June 1995 had lapsed. Consequently, he was advised to make a fresh application if he wished to pursue his claim against Mr T. The applicant did not reply to that letter.
16. Legal Aid Act (Law no. 91-647 of 10 July 1991):
“Natural persons with insufficient means to enable them to assert their rights in the courts shall be eligible for legal aid. Such aid may be full or partial. ...”
“The costs which a recipient of legal aid would have had to bear if he or she had not been granted legal aid shall be borne by the State. ...”
“Recipients of legal aid shall be entitled to the assistance of a lawyer and of any other member of the legal profession whose services are required in the proceedings.
The lawyers and other members of the legal profession shall be chosen by the recipient of legal aid. They may also be chosen by the officer of the court initially chosen or assigned to the case.
If the recipient of legal aid fails to make a choice or if an officer of the court who has been chosen refuses to act, the lawyer or other member of the legal profession shall be assigned to the case by the president of the bar council or the president of his or her professional regulatory body, without prejudice to the rules governing official appointments or assignments.
An officer of the court who was acting for the recipient of legal aid before such aid was granted must continue to do so. He or she may only be released from acting in exceptional circumstances and under the conditions laid down by the president of the bar council or the president of his or her professional regulatory body.”
Decree no. 91-1266 of 19 December 1991 implementing the Legal Aid Act:
“Applications for legal aid shall be lodged with or sent by the applicant or his or her representative to the legal-aid office.
They shall contain the following information:
(1) the last name, first names, occupation, nationality and domicile of the applicant or, if the applicant is a juristic person, its name, form, object and registered office;
(2) as applicable:
(i) the nature of the claim and a brief summary of the grounds;
(ii) a summary of the existing dispute, the identity of the parties and the nature of the proposed settlement before action;
...”
“The statement of means referred to in Article 34 shall contain:
(1) details of the applicant's family and professional situation;
(2) a full detailed list of all means of any kind directly or indirectly available to or at the free disposal of the applicant during the past calendar year and, if applicable, the year in which the application is made, other than the family benefits and social benefits referred to in Article 2, and of the means of his or her spouse and, if applicable, other people habitually living in his or her home and any dependants;
(3) the nature and value of his or her movable and immovable assets, including non-income producing assets;
(4) details of the outward signs of his or her lifestyle.
Unless the applicant is not habitually resident in France, the statement shall be made on a printed form conforming to the models specified in a joint order of the Minister of Justice and the Minister for the Budget. It shall contain a statement of the criminal-law provisions set out in paragraph II of section 22 of Law no. 68-690 of 31 July 1968.”
“A grant of legal aid shall lapse if the applicant fails to bring the court proceedings for which it was granted within one year after being notified of the grant.”
“If the applicant for legal aid fails to produce a document establishing that a lawyer or other member of the legal profession chosen by him or her has agreed to act, the duly appointed member of the office or section representing the relevant profession may proceed to assign an officer of the court to the case.”
“For the purposes of the preceding Article, a lawyer appointed as a member of the office or section must be in possession of an authority issued by the president of his or her bar. ...”
“If no lawyer or other member of the legal profession has been chosen by the recipient of legal aid or assigned in accordance with Articles 76 to 78, the secretary of the legal-aid office or section shall, immediately after the decision to grant legal aid has been taken, send a copy to the president of the bar council and, if appropriate, the president of each of the professional regulatory bodies of the various officers of the court qualified to represent the recipient of legal aid, to assist him or her and to perform such acts and take such steps as may be necessary in the substantive proceedings, or in any interlocutory application or enforcement proceedings for which the legal aid was granted.
If it appears necessary to instruct a new lawyer or other member of the legal profession after legal aid has been granted, the secretary of the legal-aid office or section shall, on an application by the recipient of legal aid, send a copy of the decision to the president of the bar council and the president of each of the professional regulatory bodies referred to in the preceding sub-paragraph.”
“The president of the bar council or of the professional regulatory body or his or her representative shall appoint the lawyer or other member of the legal profession who will act for the recipient of legal aid.
He or she shall notify the following of his or her appointment:
(1) the lawyer or other member of the legal profession concerned, to whom he or she will forward a copy of the legal-aid office's decision with a reminder of the provisions of Article 54;
(2) the secretary of the legal-aid office, who will immediately inform the recipient of legal aid and invite him or her to contact the officer of the court concerned, and the senior clerk or secretary of any court or tribunal before which the litigation is pending; the name of the officer of the court shall then be recorded in the case file;
...”
“If the officer of the court who was acting for the recipient of legal aid before legal aid was granted applies for permission to withdraw from the case, the president of the bar council or of the relevant professional regulatory body shall decide that application in a reasoned decision in accordance with the provisions set out in the fourth sub-paragraph of section 25 of the aforementioned Law of 10 July 1991.
The decision will be served on the recipient of legal aid, the officer or officers of the court and the secretary of the legal-aid office.”
“In any case in which an officer of the court who was acting for the recipient of legal aid is released from his duty to act, a replacement shall be appointed immediately.”
Judicature Code (legislative section):
“The State shall be under an obligation to compensate for damage caused by any malfunctioning of the system of justice. This liability shall be incurred only in respect of gross negligence or a denial of justice. ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-100718
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KISELEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicant, Mr Yevgeniy Aleksandrovich Kiselev, is a Russian national who was born in 1974 and lives in Ivanovo. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a retired military serviceman. By the judgment of 18 September 2001, which became final on 1 October 2001, the Spassk-Dalniy Garrison Military Court awarded the applicant 38,261.20 Russian Roubles (RUB) against his military unit. On 26 September 2002 the judgment had been fully enforced.
On 3 September 2002 the Military Court of the Far East Military Circuit in the final instance dismissed the applicant's another pecuniary claim against the military unit.
On 27 March 2003 the Spassk-Dalniy Garrison Military Court ordered the respondent authority to pay the applicant RUB 6,434 in compensation for delayed execution of the judgment of 18 September 2001. The judgment was not appealed against and was enforced on an unspecified date.


ITEMID: 001-102725
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SCHELLING v. AUSTRIA (No. 2)
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Richard Schelling, is an Austrian national who lives in Langenegg. He is represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz.
On 16 August 1988 the applicant had applied for a permit under the Landscape Protection Act (Landschaftsschutzgesetz) to put a culvert through a drain on agricultural land owned by him. On 14 September 1988 the Bregenz District Administrative Authority (Bezirkshauptmannschaft) conducted an oral hearing at the applicant's request and inspected his land. On 21 June 1990 the District Administrative Authority refused the requested permission. The applicant appealed.
On 2 April 1991 the Vorarlberg Regional Government (Landesregierung) dismissed the applicant's appeal.
On 28 May 1991 the applicant filed a complaint with the Administrative Court (Verwaltungsgerichtshof) against the Regional Government's decision. On 6 May 1996 the Administrative Court quashed the Regional Government's decision on the ground of procedural deficiencies and remitted the case to them for reconsideration.
On 26 May 1997 the applicant lodged a complaint with the Administrative Court against the administrative authorities' failure to decide (Säumnisbeschwerde).
On 10 July 1997 the Administrative Court ordered the Regional Government to issue a decision within three months. Subsequently, the Regional Government appointed an expert on agriculture and forestry issues, who, after inspecting the applicant's land on 19 August 1997, delivered his opinion on 22 August 1997.
On 4 November 1998 the Administrative Court requested the Regional Government to order another expert, A., to submit an additional expert opinion on nature conservation issues, which A. delivered on 12 January 1999.
Subsequently, on 25 January 1999, the Regional Government invited the applicant to submit comments on the experts' opinions on nature conservation and agricultural and forestry issues. On 24 February 1999 the applicant submitted comments on these opinions and requested a public hearing.
On 6 July 1999 the Administrative Court dismissed the applicant's appeal against the District Authority's decision of 21 June 1990 concerning the request for permission under the Landscape Protection Act. It found that competence to decide on the merits had passed over to it since the Regional Government had failed to make a decision within the three-month time-limit set.
The Administrative Court held that it could dispense with an oral hearing and an inspection of the applicant's land since the proceedings had been carried out correctly and the facts, in so far as relevant in view of the applicable law, were undisputed. This decision was served on the applicant's counsel on 12 August 1999.
On 11 February 2000 the applicant lodged a complaint before the Court, arguing, inter alia, that the proceedings had been unreasonably long and that they had been unfair as no oral hearing had taken place before the Administrative Court. The application was registered under number 55193/00. The Court issued a partial decision on admissibility on 29 April 2003, in which it declared the complaint about the duration of the proceedings inadmissible as being manifestly ill-founded. In a final decision on admissibility issued on 25 November 2004 the Court declared the complaint about the lack of an oral hearing before the Administrative Court admissible.
By a judgment of 10 November 2005 the Court found a violation of Article 6 of the Convention, since the Administrative Court had not held an oral hearing. In particular, the Court held in the judgment:
“29. The Court notes that the applicant's case was considered, in a first round, by the Bregenz District Administrative Authority, and the Regional Government, i.e. purely administrative authorities, and then by the Administrative Court, which quashed the latter authority's decision. In a second round, the Regional Government failed to decide within the statutory time-limit and jurisdiction passed on to the Administrative Court. The applicant did not contest that the Administrative Court qualifies as a tribunal, and there is no indication in the file that the Administrative Court'Fischer v. Austria, judgment of 26 April 1995, Series A no. 312, pp. 17-18, §§ 30-34 with further references). Thus, the Administrative Court was the first and only tribunal which examined the applicant's case.
30. As the Austrian reservation in respect of Article 6 § 1 concerning the requirement that hearings be public, has been found to be invalid (see, Eisenstecken v. Austria, no. 29477/95, § 29, ECHR 2000-X), the applicant was in principle entitled to a public oral hearing before the first and only tribunal examining his case, unless there were exceptional circumstances which justified dispensing with such a hearing. The Court has accepted such exceptional circumstances in cases where proceedings concerned exclusively legal or highly technical questions (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, p. 19-20, § 58; Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002; Speil v. Austria (dec.) no. 42057/98, 5 September 2002). In particular, the Court had regard to the rather technical nature of disputes over benefits under social-security schemes and has repeatedly held that in this sphere the national authorities, having regard to the demands of efficiency and economy, could abstain from holding a hearing if the case could be adequately resolved on the basis of the case-file and the parties' written observations (see, amongst others, Döry v. Sweden, cited above).
31. Turning to the circumstances of the present case, the Court notes that the applicant commented on the expert opinions submitted in the previous proceedings and requested, in particular, that the experts be summoned to an oral hearing and that the concerned land be inspected by the court. He stressed that the project would improve the productivity of the agricultural land and that therefore public interest existed in the realisation of his project as required under the applicable law. He also challenged the expert A. for bias as he had already delivered an opinion upon a request by the Regional Government and that his independence was doubtful as he was a civil servant bound by instructions.
32. The Court cannot find that in the present case the subject matter of the proceedings before the Administrative Court was of such a nature, namely a highly technical issue or of mere legal nature, as to dispense its obligation to hold a hearing.
33. There has accordingly been a violation of Article 6 § 1 of the Convention.”
In view of this finding of a violation the Court did not consider it necessary to examine the complaints about the alleged unfairness of the proceedings. The Court did not award the applicant compensation for pecuniary damage, holding that it could not speculate as to the outcome of the proceedings. The Court also dismissed the claims for non-pecuniary damage, holding that the finding of a violation constituted sufficient just satisfaction. The judgment became final on 10 February 2006.
On 21 February 2006 the applicant applied to the Administrative Court to reopen proceedings. He relied on the Court's judgment of 10 November 2005 and, since the Court had not awarded him damages, argued that the Court had assumed that restitution was possible at the national level. The applicant further contended that the opinion of the expert on nature conservation on which the decision had been based was in contradiction to other findings in the file. As this would constitute a violation of the principle of equality of arms, the applicant asked for another expert to be summoned to a hearing.
By a decision of 26 February 2007 the Administrative Court refused to reopen proceedings. Relying on Section 45 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), it held that reopening was only provided for by law if the provisions on the right to be heard had not been complied with in the previous proceedings, and if it could be assumed that the outcome of the proceedings would have been different if the right to be heard had been observed. The Administrative Court considered that the applicant had failed to argue which submissions he could have made at a hearing which would have led to a different outcome of the proceedings. It therefore refused to grant a reopening of the proceedings. It also held that the law did not provide that a judgment of the Court finding a violation of Article 6 of the Convention should automatically lead to the reopening of proceedings.
The decision was served on the applicant's counsel on 22 March 2007.
The Committee of Ministers, which supervises the execution of judgments of the Court in accordance with Article 46 § 2 of the Convention, has not yet adopted a Final Resolution.
Section 45 of the Administrative Court Act reads as follows:
“§ 45. (1) The reopening of proceedings which have been concluded by a judgment or decision shall be granted, on an application by a party, if ...
...
4. in the proceedings before the court the rules on the right to be heard have not been complied with and it can be assumed that the judgment or decision would otherwise have been different ...”