ITEMID: 001-57807
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF DOBBERTIN v. FRANCE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses partial award - domestic proceedings
JUDGES: Feyyaz Gölcüklü;John Freeland;N. Valticos;R. Pekkanen
TEXT: 8. At the time of his arrest Mr Rolf Dobbertin was a national of the German Democratic Republic. He was a plasma physicist and was working in Paris as a research assistant under contract to the French National Scientific Research Centre (CNRS).
9. On 19 January 1979 he was arrested at his home by the police and held in police custody until 25 January 1979, when he appeared before the investigating judge at the National Security Court (Cour de sûreté de l’Etat), who charged him with being in communication with agents of a foreign power, namely the German Democratic Republic, remanded him in custody and issued a letter of request (commission rogatoire).
10. Between 25 January 1979 and 20 March 1980 the investigating judge questioned the applicant on nineteen occasions. Between 21 March 1980 and 18 June 1981 he issued several requests for evidence to be taken on commission by the French Intelligence Service (DST) and made orders for on-the-spot judicial inspections. He also further questioned the applicant by way of recapitulation.
On 22 May 1981 he forwarded the file to the principal public prosecutor.
11. On 18 June the Prime Minister issued a decree indicting Mr Dobbertin.
Shortly afterwards, however, the proceedings were transferred to the Paris Court of Appeal pursuant to Law no. 81-737 of 4 August 1981 abolishing the National Security Court, section 6 of which provided:
"...
Cases pending before the National Security Court shall be transferred on the date of commencement of the present Law [15 August 1981] to the appropriate ordinary courts ...
..."
On 28 August 1981 the principal public prosecutor at the Court of Cassation requested that court to commit the applicant for trial by the Paris Military Court. On 19 September 1981 the Criminal Division so decided on the basis of section 1 of the aforementioned Law, which provided:
"...
... where the offences being prosecuted amount to the crime (crime) of treason or espionage or to some other breach of national security and there is a risk of a defence secret being divulged, the Principal Public Prosecutor at the Court of Cassation shall ... ask the Criminal Division to remove the case from the investigating judicial authority or court of trial and transfer it to the military judicial authority of the same kind and level which has territorial jurisdiction and which shall proceed in the manner, and according to the procedure, laid down in the Code of Military Justice ..."
12. On 14 January 1982 the accused received a summons to appear on 25 January 1982. The hearing was postponed, however, and in an order of 2 February, made on an application by the Government Commissioner, the President of the Military Court directed that further inquiries into the facts should be made.
The investigating judge in charge of the case issued several letters of request and corresponded with various civil and military authorities in order to determine the importance and scientific value of the documents that Mr Dobbertin had passed on to the East German secret service. The further inquiries into the facts were completed on 25 November 1982.
13. The file, however, was automatically forwarded to the office of the principal public prosecutor at the Paris Court of Appeal, because on 1 January 1983 there came into force Law no. 82-621 of 21 July 1982 on the judicial investigation and trial of military offences and those involving national security; section 1, first sub-paragraph, of that Law abolished the military courts in peacetime and provided that offences coming within their jurisdiction would henceforth be dealt with by the ordinary courts. The object was to enable the Indictment Division of the Paris Court of Appeal, once it had ruled on the lawfulness of the proceedings and determined the legal classification of the offences charged (Article 215 of the Code of Criminal Procedure), to commit the applicant for trial at the Paris special Assize Court, composed of seven judges, one of whom presides (Articles 697 and 698-6).
14. On 3 March 1983 the Principal Public Prosecutor at the Paris Court of Appeal brought the case before the Indictment Division.
15. In a judgment of 23 March 1983 the Indictment Division ordered the applicant’s release under judicial supervision and on bail of 150,000 French francs (FRF). Mr Dobbertin was unable to pay this until 9 May 1983, when he regained his freedom.
16. On 11 March 1983 his counsel had filed pleadings. They relied on Articles 5 and 6 (art. 5, art. 6) of the Convention and complained in particular of the unlawfulness of:
(a) the proceedings in the National Security Court, because of the length of the police custody and the status of the investigating judge; (b) the proceedings in the Paris Military Court, on account of its lack of independence and impartiality; and (c) the pre-trial detention, in view of its length.
In a second judgment on 23 March 1983 the Indictment Division held that it had no jurisdiction to commit Mr Dobbertin for trial at the Assize Court as the indictment had been in existence since 18 June 1981, when the Prime Minister had issued a decree concerning the applicant (see paragraph 11 above), and it did not have to be renewed since the legislature had expressly validated process and decisions dating from before the entry into force of the Laws of 4 August 1981 and 21 July 1982. It reached the same conclusion in respect of the pleas of nullity based on the Convention.
17. On 14 June 1983 the Criminal Division of the Court of Cassation, allowing an appeal on points of law by the principal public prosecutor at the Paris Court of Appeal, set aside that judgment for the following reason: "While section 6 of the Law of 4 August 1981 and section 14 of the Law of 21 July 1982 lay down that all process, formalities and decisions dating from before the entry into force of the relevant Law shall remain valid, these transitional provisions in no way alter the rules applicable in the courts to which jurisdiction has been transferred."
On the other hand, it held that the appeal on points of law brought by the applicant was inadmissible. Mr Dobbertin had filed pleadings reproducing the complaints set out in the Indictment Division but had not lodged them through counsel, and legal representation was compulsory in the Court of Cassation except for applicants convicted under the criminal law.
It remitted the case to a differently constituted bench of the Indictment Division of the Paris Court of Appeal.
18. Mr Dobbertin again sought to have the proceedings declared null and void, but without success. In a judgment of 9 December 1983 the Indictment Division committed him for trial at the Paris special Assize Court and rejected the plea based on Article 5 para. 3 (art. 5-3) of the Convention.
19. On 6 March 1984 the Court of Cassation upheld that decision on the point in issue but set it aside for failure to comply with Article 157 of the Code of Criminal Procedure, an essential provision that was mandatory as a matter of public policy; the Indictment Division had omitted to declare null and void an order made by the investigating judge on 20 May 1979 in which he had appointed translators without giving reasons for choosing ones who were not on a list of official experts.
20. The case having been remitted to it, the Indictment Division on 20 July 1984 reached the same decision as it had on 9 December 1983. It held, notwithstanding the prosecution’s submissions to the contrary, that translations made by qualified people were not expert opinions, despite the terms used by the investigating judge, and that accordingly the failure to comply with the rules on expert opinions did not give rise to a nullity. It again committed the applicant for trial at the Paris special Assize Court.
21. On a further application by Mr Dobbertin, the Court of Cassation, sitting as a full court, gave judgment on 19 October 1984. It set aside the Paris Court of Appeal’s judgment and remitted the case to the Versailles Court of Appeal.
22. On 14 May 1985 the Versailles Court of Appeal quashed the order of 20 May 1979 commissioning experts (Article 206 of the Code of Criminal Procedure) and various procedural steps and ordered that a number of documents should be withdrawn from the file. It sent the case to one of the investigating judges at the Versailles tribunal de grande instance with instructions that he should continue the investigation.
23. On a further appeal on points of law by the applicant, the Criminal Division of the Court of Cassation gave judgment on 29 October 1985. It set aside the judgment of the Versailles Court of Appeal and remitted the case to the Indictment Division of the Amiens Court of Appeal, stating that if the latter found there was sufficient evidence against the accused, it should commit him for trial at the Paris special Assize Court.
The judgment was served on Mr Dobbertin on 16 December 1985.
24. On 20 January 1986 the principal public prosecutor at the Amiens Court of Appeal asked the Indictment Division to declare null and void certain procedural documents (notably records of the interviews at which the applicant was questioned, letters of request and the documents relating to their execution, various reports and applications and, more especially, nearly all the translations of the documents in German that were communicated on 3 April 1979 by officers from the Intelligence Service); to order that they should be withdrawn from the file; and to appoint an investigating judge from the judicial district of the Amiens Court of Appeal to continue the investigation.
On 20 February 1986 Mr Dobbertin lodged pleadings in which he sought to have the proceedings quashed on the grounds that they had contravened Articles 10, 6 and 5 (art. 10, art. 6, art. 5) of the Convention, and asking for a declaration that the evidence admitted did not correspond to the crime of being in communication with a foreign agent, which was a punishable offence under Article 80 para. 3 of the Criminal Code.
25. In a judgment of 15 April 1986 the Indictment Division quashed most of the proceedings that had taken place after the order of 20 May 1979 commissioning experts and decided to forward the file to the first investigating judge at the Amiens tribunal de grande instance.
It refused the request made in the applicant’s pleadings that it should consider the legal classification of the offences and the question of what evidence there was, on the ground that only the judicial investigation could enable an assessment to be made of these.
The complaints based on the Convention were dismissed. The question whether there had been a violation of Article 10 (art. 10) depended on the outcome of the investigation; Article 6 (art. 6) did not apply to proceedings before an indictment division; and the Court of Cassation had already dismissed the complaint under Article 5 para. 3 (art. 5-3), on 6 March 1984.
26. Mr Dobbertin appealed on points of law and asked the Court of Cassation to hear the appeal immediately. In an order of 31 July 1986 the President of the Criminal Division refused that request, holding that neither public policy nor the proper administration of justice required the hearing to be expedited; he also considered that there was no ground for allowing the appeal as matters stood.
27. On 22 December 1986 the case file was therefore sent to the first investigating judge at Amiens.
On 13 February, 27 March and 30 November 1987 he gave an expert at the Amiens Court of Appeal a total of 146 documents to translate. On 5 March and 28 August 1987 he gave an expert at the Besançon Court of Appeal 641 other documents to translate, together with a number of handwritten reports. The applicant was questioned by him on 1 February, 22 March and 18 April 1988, and on 11 May the judge issued a letter of request to the Intelligence Service.
28. On 24 April 1988 Mr Dobbertin asked the Indictment Division to take certain investigative measures, to limit the scope of the further inquiries into the facts and to quash a letter of request of 14 April 1982 and the record of the interview for questioning held on 1 February 1988.
On 6 September 1988 the Indictment Division declared the application inadmissible, since it considered that as matters stood it was impossible to reach a judicial decision on any of the requests in it.
29. On 9 May 1989 the Indictment Division recorded that the case file had been lodged with the registry after completion of the further inquiries into the facts, and on 19 September 1989 it committed the applicant for trial at the Paris special Assize Court (see paragraph 23 above).
Mr Dobbertin appealed on points of law against both these judgments, but the Court of Cassation dismissed the appeals on 4 January 1990.
30. Mr Dobbertin appeared before the Assize Court on 13, 14 and 15 June 1990, and on the last-mentioned date he was convicted and sentenced to twelve years’ imprisonment.
31. On 27 December 1990 the Indictment Division of the Paris Court of Appeal decided to release him under judicial supervision.
32. On an application by Mr Dobbertin, the Criminal Division of the Court of Cassation, giving judgment on 6 March 1991, set aside the Assize Court’s judgment of 15 June 1990. It remitted the case to a differently constituted bench of the Paris special Assize Court, which on 29 November 1991 acquitted the applicant. The prosecution did not appeal within the five-day period laid down in Article 568 of the Code of Criminal Procedure.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-114516
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF CUCU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 5. The applicant was born in 1977. He lives in Bucharest.
6. On 21 November 2001 the Bucharest Appeal Court found the applicant guilty of robbery and two traffic offences and sentenced him to eleven years’ imprisonment.
7. He started serving his sentence in Jilava Prison, where he was detained from 28 February 2001 to 4 March 2002; from 27 April 2002 to 23 January 2003; from 28 January to 3rd July 2003; and from 20 February 2006 to 4 December 2008. He also served a part of his sentence in Giurgiu prison from 3rd July 2003 to 26 February 2005; from 5 March 2005 to 11 February 2006; and from 25 February to 23 April 2009.
8. The further circumstances on the applicant’s conditions of detention are in dispute between the parties.
9. The applicant complained about the conditions of his detention, summarised below, in both Jilava and Giurgiu prisons.
He regularly complained thereof and about the disciplinary measures taken against him to the delegate judge, who dismissed most of his complaints.
For instance, in a decision of 23 March 2007, the delegate judge to Jilava Prison rejected the applicant’s complaints that he did not fully benefit from the rights granted to him by the Regulations implementing Law no. 275/2006, adopted by Decree no. 1897/2006, on the ground, inter alia, that the legal force of the regulations was inferior to that of the law, and that therefore the prison administration was under no obligation to grant detainees rights which were not provided for by Law no. 275/2006 itself.
10. The cell lacked basic hygiene, it was infested with lice, bugs and rats, the blankets were in a poor condition and the mattresses were dirty. Although the cell was very small and it was only big enough for two to three people, there were nine beds and twelve inmates in the cell (sometimes even fourteen to fifteen).
11. The cell window was very small and the cell lacked natural light. Due to the size of the window, the cell was not properly ventilated. The air was even more difficult to breathe as his cellmates were smokers, and the applicant was thus exposed to smoke almost all day long.
12. As the sanitary facilities were separated from the rest of the cell only by a makeshift partition, the smell was unbearable.
13. The water was undrinkable.
14. In addition, the applicant alleges that his daily walk schedule was not observed and that his access to cultural and educational activities was limited.
15. The conditions were similar to those in Jilava Prison: the cell was overcrowded and lacked basic hygiene; also, there were no educational and cultural activities and the walk schedule was not observed.
16. He was detained alone in a cell for more than eight months, from July 2003 to February/March 2004. During that period he had no contact with the outside world, his rights to receive visits or parcels and to make phone calls were heavily restricted, the window could not be opened and he could only go out for walks on the roof of the prison building, handcuffed, and in a group of no more than five or six prisoners.
17. On 19 March 2004 the applicant was categorised as “dangerous” and treated as such, including during his transfer from Jilava Prison to Giurgiu Prison. This measure was regularly renewed. However, the applicant considered that the decisions to categorise him as dangerous had lacked any factual basis and pointed out that since 29 March 2003 he had not committed any act of indiscipline and had integrated very well into prison life.
18. Being categorised as a dangerous prisoner had serious consequences. His rights to receive visits, parcels and correspondence were restricted, and sometimes even withdrawn.
The applicant frequently had to file actions with the courts each time there was a restriction of his right to receive parcels and correspondence; most of his complaints about that were allowed by the domestic courts. However, the decision to categorise him as dangerous had other consequences: it prevented him from participating in a number of activities in the prison, and even restricted his movement; for instance, his hands were handcuffed behind his back whenever he was moved, which proved very painful.
19. Generally, the prison staff had a hostile attitude towards him.
20. On 4 July 2004 he was taken from Giurgiu Prison to Giurgiu County Court for a hearing. He did not receive any food or water until he was taken back to Giurgiu Prison.
21. The Government submitted in their observations that in general, the conditions in Jilava Prison were adequate. In 2001 and 2002 there had been a problem with the overcrowding of the cells, but as of 2003 the situation had improved, and in each cell the number of detainees corresponded to the number of beds at the most. Each cell had power supply, natural light and natural ventilation through the windows. In summer time, the cell doors remained open, being closed off only by grids for better ventilation.
22. Each cell was equipped with tables, chairs, benches and a hallstand. The cells were cleaned by the prisoners, the necessary materials being provided by the prison administration. Disinfestation services were provided by professionals at least once every three months. The sanitary facilities were cleaned every morning with disinfectants. Whenever necessary, the cells were cleaned with disinfectants. Every week, upon request, the clothing of the detainees was washed.
23. Drinking water was permanently available. The quality of the water was checked monthly by a company under contract with the prison administration; according to the reports of that company, the water was drinkable.
24. The applicant was detained in cells nos. 203, 304, 307, 210, 208, 405, 404, 401, 403, 412.
During 2001-2003 the applicant was entitled to a daily thirty-minute walk; after Law no. 275/2006 entered into force in July 2006, he was entitled to a three-hour walk. In 2006 and 2007 the applicant also took part in educative programmes.
25. The fact that the applicant was registered as a detainee with an increased degree of risk did not restrict his right to receive packages, visits, or correspondence; however, appropriate security measures were taken when granting these rights.
Moreover, the applicant complained dozens of times both about the security measures and the way they interfered with his rights, as well as about the improper conditions of his detention. The delegated judge often granted the applicant’s appeals concerning disciplinary sanctions against him. The appeals concerning his registration as dangerous and the material conditions of detention were dismissed, on the ground that no breach of law could be found. For instance, on 25 May 2007, the applicant’s complaints about the improper material conditions in his cell and about the lack of medical treatment by a dentist were dismissed by the delegate judge. He found, upon examination of the information submitted to him by Jilava Prison administration, that the conditions of the applicant’s detention did not amount to inhuman or degrading treatment and that, although there was no dentist in Jilava Prison, a competition for hiring a dentist in that prison was being organised by the Ministry of Justice. The delegated judge concluded that no breach of Law no. 275/2006 could be found.
26. The cells in the prison had two or six beds, and were equipped in compliance with the law. Each detainee had an individual bed and a bedroll.
27. The two-bed detention cells measured 10.24 square metres, access to natural light and ventilation through four windows, and were equipped with one sink with utensils, one television stand, one table, one 220V lamp and one night watch light.
28. The six-bed detention rooms measured 21.76 square metres, access to natural light and ventilation through six windows, and were equipped with one sink with utensils, one television stand, three tables, one bench, a hallstand, one 220V lamp and one night watch lamp.
29. The sanitary facility was separated from the detention room and conformed to hygiene standards and privacy requirements. The detention rooms and water for twice weekly baths were heated by the prison’s own power station. Drinking and non-drinking water was provided by the Giurgiu city supply network and was checked periodically.
30. The applicant was registered as a detainee with an increased degree of risk, and therefore security measures were taken when according his rights. For instance, his daily walk took place in one of the eight courtyards specially designed for very dangerous detainees, located on block C.
31. Between July 2003 and March 2004 the applicant was detained alone in a cell equipped in a similar way to the other cells. After March 2004 the applicant shared his cell with another detainee. The daily programme was respected by the prison administration, his rights to visits and packages were observed, and he was even able to participate in the football games organised by the penitentiary authorities.
32. The applicant’s registration as a detainee with an increased degree of risk was well-founded and repeatedly prolonged throughout his detention in Giurgiu Prison. The applicant complained dozens of times about his conditions of detention, including material conditions, lack of medical treatment and restrictions to his rights as a result of his registration as dangerous.
The delegated judge often granted the applicant’s appeals concerning disciplinary sanctions against him. The appeals concerning his registration as dangerous and the material conditions of detention were dismissed, on the ground that no breach of law could be found.
33. The circumstances surrounding the events on 10 and 11 November 2005 are in dispute between the parties.
34. The applicant alleged that on 10 and 11 November 2005, while in Giurgiu Prison, he had been beaten by members of the Giurgiu Prison intervention squad wearing balaclavas. His requests to be examined by a forensic doctor immediately after the violent incidents had been ignored. He further alleged that he had immediately duly informed the prison authorities about the violent behaviour of the members of the intervention squad.
35. The Government submitted in their observations that on 10 November 2005, upon his return from a court hearing, the applicant had asked to be taken to the prison store room to pick up some personal effects. The officers had informed him that his request would be granted only after all the formalities applicable to detainees returning from court to their cells had been complied with. Unhappy that his request had not been granted immediately, the applicant had become violent, and while he was being taken to the detention room, he had managed to undo his handcuffs and hit C.C., one of the members of the intervention unit, in the face. The incident was settled calmly and the applicant was placed in his cell without further difficulty. The next day C.C. had been taken to a doctor, who had established that he had “a minor head injury of level 0-1”, which required nine days of medical treatment.
36. The applicant also alleged that on 14 November 2005, during the morning call, he had been hit and insulted by a supervising officer, N.I., and two members of the intervention unit.
37. After the incidents on 10, 11 and 14 November 2005, the applicant lodged with the Prosecution Office attached to the Giurgiu District Court a criminal complaint against the following prison officers:
a) C.C. and other members of the intervention unit, for hitting him on the evening of 10 November 2005 upon his return from a court hearing;
b) S.C., S.V., C.C. and other members of the intervention unit for allegedly beating, threatening and insulting him on 11 November 2005;
c) prison warden I.N. for allegedly insulting and hitting him during the morning call on 14 November 2005.
38. On 24 November 2005 the applicant was brought before the Giurgiu District Court concerning his request that the prison administration’s decision to grade him as a “dangerous detainee” be revoked (see paragraph 18 above). During the hearing, he complained that he had been repeatedly beaten in Giurgiu Prison by State agents and that his body still bore bruises, and that he suffered pain in the right rib cage. He also indicated that he had filed complaints with the prosecutor and the prison administration, asking to see a doctor, but that he had received no answer.
The court took note of the criminal complaints lodged by the applicant and forwarded them to the prosecutor for further investigation. It also ordered the Giurgiu Prison administration to allow a doctor to see the applicant in order to have a medical certificate drawn up in relation to his allegations of ill-treatment.
39. Following the Giurgiu District Court’s order, the applicant was examined by a doctor the next day, on 25 November 2005. A forensic medical report was drawn up, indicating multiple bruises in the area of the applicant’s thighs and lower legs, which were deemed to still require some two to three days’ medical treatment. The report also stated that the bruises could have been caused on 10 or 11 November 2005 by impact with hard objects.
40. On 12 December 2005 the Prosecution Office indicted the applicant for assault on a State agent, for having hit C.C. on 10 November 2005 (see paragraphs 46 et seq. below).
41. On 31 October 2006 the Prosecution Office decided not to open criminal proceedings against I.N. in relation to the alleged incident on 14 November 2005, on the ground that the complaint had not been substantiated. The prosecution established that the only witness who had supported the applicant’s version of events, S.M., had not been an eyewitness; he had only heard screams and shouting involving the applicant and I.N from his cell. The other witnesses, who had been sharing the cell with the applicant, had not seen anything.
42. The decision not to open criminal proceedings against I.N. was upheld by the higher prosecutor on 22 January 2007.
43. On 20 March 2008 Giurgiu County Court upheld the decision not to open proceedings. The court reached this decision upon examination of the file produced by the prosecution, without any evidence being administered or any witnesses being heard.
44. On 12 December 2006 the Prosecution Office decided not to open criminal proceedings in relation to the alleged incidents of 10 and 11 November. The prosecutor established that on 10 November 2005, due to the fact that the applicant had been denied a particular request, he had succeeded in freeing one hand from his handcuffs and hitting one of the agents of the special intervention unit, C.C., in the face. The intervention squad had managed to immobilize the applicant. The prosecutor considered that the forensic certificate drawn up on 25 November 2005 could not constitute evidence showing that the injuries had been inflicted by I.N. and C.C., since there was a possibility that those injuries had been inflicted during the immobilization of the applicant. The prosecutor further indicated that the statements made by those witnesses who were also detainees were subjective, due to the fact that they had been the applicant’s fellow inmates; moreover, they had presented the facts differently.
45. The decision not to open criminal proceedings in relation to the alleged incidents of 10 and 11 November 2005 was upheld by the higher prosecutor on 7 February 2007.
46. On 11 February 2008 the Giurgiu District Court upheld the decision of 7 February 2007. The court reached its decision upon examination of the file produced by the prosecution, without administering evidence or hearing witnesses.
The court found that the witnesses did not confirm the applicant’s allegations. In particular, those witnesses in Giurgiu Prison who had seen the applicant being hit by agents wearing balaclavas were unable to provide the names of those agents, while other witnesses had no knowledge at all of the said events. The court found the statement by an inmate, S.M., to the effect that one of the two agents wearing balaclavas who had beaten the applicant had been C.C., unconvincing on the ground that the agents’ faces had been covered by the balaclavas. The court further found, with respect to the forensic medical certificate, that “the mere existence of those bruises does not indicate the respondents’ guilt.”
47. On 15 May 2008 Giurgiu County Court upheld the decision of 11 February 2008, finding that the applicant’s allegations had not been fully substantiated. The court reached its decision upon examination of the file produced by the prosecution. It concluded that despite a number of witnesses confirming the occurrence of incidents between the applicant and the prison wardens in Giurgiu Prison, none of those witnesses had identified the applicant’s aggressors as the defendants indicated by the applicant.
48. On 12 December 2005 the Prosecution Office indicted the applicant for assault on a State agent, for having hit C.C. on 10 November 2005. After questioning witnesses to the incident on 10 November 2005 and in the light of the medical certificate issued on 11 November 2005, indicating that C.C. had needed eight to nine days of medical care, the prosecutor established that the applicant had voluntarily hit C.C. on 10 November 2005.
49. Before the Giurgiu District Court the applicant claimed that he had not hit C.C. on 10 November 2005. He contended that while he had been vehemently protesting against the guards’ refusal to take him to the store room, two members of the intervention squad had approached him and hit him. During his attempts to defend himself from the blows, one of the agents might have accidentally been hurt. He claimed, however, that he had not behaved aggressively and had not resisted the immobilisation manoeuvres. He relied on the statements of all the witnesses to the incident, which had shown that he had not acted violently when the agents had attempted to immobilize him. He further stressed that numerous witnesses had stated that the State agents had assaulted him, and pointed to the incoherency of the statements of the agents who claimed that he had voluntarily hit C.C.
He finally asked the court to hear evidence from all witnesses to the incident, inmates and State agents.
50. On 22 May 2006 the Giurgiu District Court convicted the applicant of assault on a State agent, C.C., sentenced him to seven years’ imprisonment and, as required by Article 71 of the Criminal Code read in conjunction with Article 64 a) of the Criminal Code, deprived him of his right to vote as an additional penalty.
The court firstly noted that the inmates who had witnessed the incident of 10 November 2005 had withdrawn the statements they had made to the prosecutor in which they had indicated that the applicant had hit C.C. Before the court, they had stated that those statements had been made under duress. They submitted to the court that it was the applicant who had been assaulted by the State agents.
The court found those statements irrelevant, on the ground that they merely proved an alleged provocation by the State agents, and did not exculpate the applicant from the injuries he had caused to C.C. The court further found that those injuries had been caused with intent, as the statements given by the State agents questioned in the court showed.
51. Following an amendment of the Criminal Code on certain sentences, an appeal by the applicant was allowed on 18 June 2007 by the Giurgiu County Court, with regard to the prison sentence only, which was reduced to one year. The decision was upheld by the Bucharest Court of Appeal on 7 January 2008.
52. On 29 April 2004 the Giurgiu prison administration informed the applicant that his common-law wife, P.N.M., was not allowed to visit him, since the prison records indicated that he was married to another woman. Her name was therefore not put on the list of people allowed to visit the applicant.
53. On 18 March 2005, relying on Government Ordinance no. 56/2003, the applicant challenged the refusal of the Giurgiu Prison administration to allow him visits from P.N.M. with the Giurgiu District Court. By a decision of 31 March 2005 the court found for the applicant and ordered the decision in question to be quashed and the applicant to be entitled to visits from P.N.M. The decision became final.
54. The prison records do not indicate that there were visits from P.N.M. after the judgment of 31 March 2005. They do, however, indicate that he was visited by members of his family on a regular basis.
55. Whether the decision of 31 March 2005 was enforced or not is in dispute between the parties.
The applicant claimed that the decision of 31 March 2005 had not been enforced and that P.N.M. had not been put on the list of people allowed to visit him. He did not provide, however, specific information as to any attempts by P.N.M. to visit him after 31 March 2005.
In their observations, the Government claimed that, on the contrary, after the decision of 31 March 2005, P.N.M. did not ask to visit the applicant.
56. The domestic legislation on the execution of sentences, in particular Law no. 23/1969 and Emergency Ordinance no. 56/2003 (“Ordinance no. 56/2003”) are described in Petrea v. Romania, no. 4792/03, §§ 21-23, 29 April 2008.
On 20 October 2006 Law no. 275/2006 on the execution of sentences entered into force, which replaced Law no. 23/1969 and Ordinance no. 56/2003.
Article 38 of Law no. 275/2006 provides the right of a detainee to complain to the delegate judge about any measure taken by the prison administration which infringes the rights granted to him by that Law. The decision taken by the delegate judge is subject to appeal before the District Court.
No provision of Law no. 275/2006 deals with the structural quality of the place of detention or the space provided to detainees.
57. The relevant provisions of the Code of Criminal Procedure concerning complaints about decisions by the prosecutor are set out in Dumitru Popescu v. Romania (no. 1), no. 49234/99, §§ 43-45, 26 April 2007).
58. The relevant provisions of the Criminal Code providing the automatic withdrawal of the right to vote and to be elected during the execution of a prison sentence, read as follows:
“Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty:
(a) the right to vote and to be elected to bodies of a public authority or to public elective office;
...”
“The secondary penalty shall consist in disqualification from exercising all the rights listed in Article 64.
(2) A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ...”
59. In a decision of 5 November 2007 (following an appeal in the interests of the law) which became mandatory on the date of its publication in the Official Gazette on 18 July 2008, the High Court of Cassation and Justice advised the domestic courts to interpret Article 71 § 2 of the Criminal Code in the light of the Convention, and thus assess in each case the necessity of the withdrawal of the right to vote.
60. The Government submitted copies of various decisions given by the domestic courts applying Ordinance no. 56/2003 and Law no. 275/2006. These decisions deal mainly with complaints by detainees which challenged before the national courts various disciplinary measures, or related to the regime of imprisonment, the right to correspondence or medical care.
The Government also submitted two cases, one concerning a complaint about poor sanitary installation and lack of observance of a shower schedule, and one concerning a complaint regarding overcrowding, lack of air, and the presence of ill inmates. Both of them were dismissed by the domestic courts on the ground, inter alia, that they “did not regard any of the rights provided by Law no. 275/2006”.
61. Following a visit to Romania by the Commissioner for Human Rights from 13 to 17 September 2004, a report was published on 29 March 2006, providing information on Bucharest-Jilava Prison. The report describes the conditions of detention in this facility as “particularly difficult” and the situation as “alarming”. It further described the facilities as “outdated, windows unable to filter the cold and furniture from another era”.
62. The relevant findings and recommendation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are described in the cases Brăgădireanu v. Romania, no. 22088/04, §§ 73-75, 6 December 2007, and Artimenco v. Romania (no. 12535/04, §§ 22-23, 30 June 2009).
63. With regard to Jilava Prison, excerpts from the CPT’s findings following the visits of 1999 and 2006 are given in the case of Eugen Gabriel Radu v. Romania (no. 3036/04, §§ 14-17, 13 October 2009). In particular, the CPT expressed concern about the restricted living space, as the number of detainees exceeded more than twice the prison’s capacity, the shortage of beds, the lack of adequate separation between the toilets and the living space in the cells, and qualified the conditions as “lacking privacy” and “an affront to human dignity”.
64. Following visits in June 2006 to several prisons in Romania, the CPT published a report on 11 December 2008, in which it stated, inter alia:
“70. (...) the Committee is gravely concerned that the lack of beds remains an ongoing problem not only in the establishments visited, but also at the national level, and has been since the first visit to Romania in 1995. It is high time that major steps are taken to put an end to this unacceptable situation. The CPT calls upon the Romanian authorities to take decisive priority action to ensure that that each inmate housed in a prison has a bed.
However, the Committee welcomes the fact that shortly after the visit in June 2006, the official standard of living space per inmate in the cell was increased from 6 m3 (which amounted to an area of about 2 square metres per detainee) to 4 m2 or 8 m3. The CPT recommends that the Romanian authorities take the necessary steps to meet the standard of 4 m² of living space per inmate in shared cells in all prisons in Romania”.
65. With respect to the practice of prison administrations employing special intervention units, in its report of 2006 the CPT found that special intervention units wearing masks were dispatched to surveillance departments in order to control violent and/or unmanageable and rebellious detainees. According to the CPT, the presence of such units creates an oppressive atmosphere, whereas the wearing of masks makes it difficult to identify a potential suspect if and when an allegation of ill-treatment is made. The CPT recommended that members of the special intervention units should be forbidden from wearing masks in the exercise of their duties in a prison environment, irrespective of the circumstances. The CPT further recommended that the Romanian authorities remind the members of the special intervention units that all forms of ill-treatment against detainees (including verbal provocation and insults) are unacceptable and are to be severely sanctioned, and that the use of force in order to control violent and/or recalcitrant prisoners must be limited to occasions when it is strictly necessary.
VIOLATED_ARTICLES: 3
P1
VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-100105
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KONONTSEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in Kyrgyzstan in 1966. It appears that he currently lives in Kyrgyzstan.
6. On 21 August 1996 the Investigation Department of the Ministry of National Security of Kyrgyzstan (“the Investigation Department”) indicted the applicant on serious fraud charges. According to the decision on indictment, the applicant had failed to pay for 150 TV sets which he had received under a consignment agreement with a joint stock company. On the same date the Investigation Department ordered the arrest of the applicant. On 27 August 1996 the applicant's name was put on a wanted list.
7. On 9 July 2003 the applicant was arrested in Russia (see paragraph 13 below).
8. On 29 August 2003 the General Prosecutor's Office of Russia received a request from their counterpart in Kyrgyzstan for the extradition of the applicant.
9. On 6 April 2004 the Deputy Prosecutor General of Russia authorised the extradition of the applicant to Kyrgyzstan. The applicant challenged the extradition order in court.
10. On 13 May 2004 the Moscow City Court upheld the extradition order as lawful and justified. The applicant appealed.
11. On 29 July 2004 the Supreme Court of Russia (“the Supreme Court”) upheld the decision of 13 May 2004 on appeal.
12. From the submitted materials, it appears that, on an unspecified date after 29 July 2004, the applicant was extradited to Kyrgyzstan.
13. On 9 July 2003 the applicant was arrested in Russia and held in custody, first at the Moscow-Paveletskiy temporary detention facility and then at remand prison no. 77/4 in Moscow.
14. On 14 October 2003 the Babushkinskiy District Court of Moscow authorised the detention pending extradition of the applicant under Article 466 § 1 of the Code of Criminal Procedure (“the CCP”) without providing a time-limit for his detention.
15. On 9 June 2004 the applicant appealed against the decision of 13 May 2004 to the Supreme Court (see paragraph 10 above). In his appeal, he also stated that his detention from 9 July to 29 August 2003 had been unlawful because he had been detained without a court order and that the overall length of his detention had been excessive.
16. In its decision of 29 July 2004 the Supreme Court (see paragraph 11 above) left without examination the complaints concerning the lawfulness of the applicant's detention.
17. For a summary of domestic law provisions on detention on remand, see Nasrulloyev v. Russia (no. 656/06, §§ 48-56, 11 October 2007).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-94963
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KIS v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1969 and lives in Košice.
5. On 3 April 2001 the applicant filed an action with the Košice II District Court. He claimed that the defendants had lost the right to use a flat.
6. The first hearing in the case was held on 21 September 2004.
7. On 23 September 2004, on the applicant's complaint, the Constitutional Court found a violation of Article 6 § 1 of the Convention in respect of the length of the above proceedings. It noted that the case was not complex. The applicant's conduct had partially contributed to their duration at the initial stage in that he had not paid the court fees at the time of filing the action. The District Court was responsible for delays totalling twenty-five months. The Constitutional Court awarded the applicant 20,000 Slovakian korunas (SKK) (the equivalent of 500 euros (EUR) at that time) as just satisfaction. It also ordered the District Court to reimburse the applicant's legal costs and to proceed with the case speedily.
8. On 12 April 2005 the District Court found against the applicant.
9. The Košice Regional Court, on appeal, quashed the judgment on 16 November 2005 and remitted the case to the District Court.
10. The District Court asked the defendants and the applicant to submit information and invited several doctors to indicate whether the defendants' state of health would allow them to attend a hearing. A hearing was held in November 2006 at which the applicant requested a modification of his action. His request was subsequently rejected.
11. The District Court found against the applicant on 27 February 2007.
12. On 15 October 2007 the Regional Court upheld the judgment. After having been served on the parties to the proceedings, the decision became final on 29 November 2007.
VIOLATED_ARTICLES: 6


ITEMID: 001-138479
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: KOCESKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 1. The applicants, Ms Olga Koceska (“the first applicant”), Mr Dimko Koceski (“the second applicant”) and Mr Blagojče Koceski (“the third applicant”), are Macedonian nationals, who were born in 1957, 1954 and 1995 respectively and live in Prilep. The first and second applicants are the parents of the third applicant.
2s, may be summarised as follows.
3. As established in the course of the proceedings described below, companies M.T. and T.M.K. (“the companies”) started to construct a local telephone network. Heavy concrete pillars were unloaded on a children’s playground, which was near the construction site. At 5 p.m. on 23 October 2000 B.K., the fourteen-year old daughter of the first and second applicants, slipped and fell to the ground while climbing on the pillars. One pillar became dislodged and fell on top of her. As a result, she suffered serious head injuries and died on the spot. The third applicant, who was then four years old , was present at the time and witnessed the accident.
4. On 27 September 2002 the Prilep Public Prosecutor’s office lodged an indictment of its own motion against Mr M.T. and Mr Z.K., employees in the companies responsible for the construction, accusing them of criminal offences directed against public safety. The first and second applicants took part in the proceedings as victims (оштетени).
5. On 27 April 2005 the Prilep Court of First Instance found the accused guilty and sentenced them each to two years’ imprisonment. The court held that, contrary to the applicable rules, they had failed to secure the construction site and the concrete pillars in order to avoid any risk of fatal consequences. It further advised the applicants that they could claim compensation by means of a separate civil action before the civil courts.
6. On 15 March 2006 the Bitola Court of Appeal accepted appeals by the accused and remitted the case to the trial court for a fresh examination. It ordered the trial court to reconsider the available evidence in order to establish whether the accused had been responsible for placing and securing the concrete pillars. It further rejected as inadmissible an appeal by the first and second applicants in which they complained about the penalty imposed.
7. On 8 November 2006 the trial court acquitted Mr M.T., finding that he had not been responsible for the storage and unloading of the pillars. On the other hand, it convicted Mr Z.K. and sentenced him to one year’s imprisonment since he had authorised for the pillars to be unloaded and left unsecured in the vicinity of the children’s playground, despite the fact that he ought to have known that they were dangerous objects. The first and second applicants were again instructed that they could seek compensation before the civil courts. On 16 February 2007 the trial court rejected an appeal by the first and second applicants, finding that they had participated in the proceedings as victims and that they had been entitled, under the law, to challenge the judgment only in respect of the trial costs. Their appeal, by which they had challenged the merits of the judgment, had accordingly been inadmissible.
8. On 28 March 2007 the Bitola Court of Appeal dismissed appeals by the public prosecutor and the first and second applicants (against the trial court’s decision of 16 February 2007) and allowed an appeal by Mr Z.K. As to the latter, the court dropped the charges on the ground that the prosecution of the offence had become timebarred.
9. In June 2009 the Ministry of Justice informed the first and second applicants that on 20 March 2009 the State Judicial Council (Судски Совет на Република Македонија) had dismissed the trial judge from office.
10. In 2003 the applicants lodged civil action for damages with the Prilep Court of First Instance claiming compensation from the two companies concerned; company B. that was also involved in the construction; the municipality of Prilep and the State (on behalf of the Prilep Public Prosecutor’s office and the first-instance court) for the pecuniary and non-pecuniary loss sustained as a result of the death of B.K. According to the applicants, no action had been taken in respect of their claim until December 2007, when their case was transferred to the Bitola Court of First Instance for consideration.
11. On 12 September 2008 the Bitola Court of First Instance partly ruled in the applicants’ favour. Referring to the findings of the criminal courts, the court ruled that the companies were at fault for having stored the concrete pillars unsecured on the children’s playground. It thus awarded the applicants 61,000 Macedonian denars (MKD) in respect of pecuniary damage for funeral costs and MKD 1,900,000 in respect of non-pecuniary damage on account of the mental distress caused. The court fixed the interest at the statutory rate to be calculated from the date of B.K.’s funeral (in respect of the pecuniary damage) and from the date of the judgment (concerning the non-pecuniary damage). It dismissed the applicants’ claim against the municipality of Prilep and the State, finding no evidence that any responsibility could be attributed to them for the damage sustained. Lastly, it awarded the applicants MKD 157,400 for the trial costs incurred in the compensation proceedings. It dismissed their claim for reimbursement of the trial costs incurred in the criminal proceedings against Mr M.T. and Mr Z.K., arguing that they could only have been claimed in the course of those proceedings. On appeal by the applicants, in 2009 the Bitola Court of Appeal quashed that judgment and ordered a retrial.
12. On 23 April 2010 the first-instance court again partly allowed the applicants’ claim and awarded them the same amount in respect of pecuniary damage. It also increased the award in respect of non-pecuniary damage to MKD 2,500,000 and it awarded them MKD 376,630 for the trial costs incurred in those proceedings. It dismissed the claim against the municipality for lack of evidence and it noted that the applicants had withdrawn the claim against the State.
13. On 24 January 2011 the Bitola Court of Appeal overturned that judgment and increased the amount of compensation awarded in respect of non-pecuniary damage by an additional MKD 200,000 It also amended the decision regarding the calculation of the interest. The rest of the first-instance court’s judgment remained the same. Consequently, the final award was set at MKD 61,000 (approximately EUR 1,000) in respect of pecuniary damage; MKD 2,700,000 (approximately EUR 44,000) in respect of non-pecuniary damage and MKD 376,630 (approximately EUR 6,120) in respect of trial costs and expenses.
14. Section 11(3) of the Civil Proceedings Act provides that civil courts are bound by decisions given by criminal courts finding an accused guilty, in respect of the commission of the offence and the convict’s criminal responsibility.
15. Section 200 enumerates grounds under which civil proceedings are suspended ipso jure. Under section 201(2), the civil court may suspend proceedings if the decision depends on whether a criminal offence prosecutable ab initio was committed, who the perpetrator was and if he or she was guilty.
16. Pursuant to Article 107 § 1 (5) of the Criminal Code, prosecution of offences subject to a prison sentence of more than a year becomes statute-barred three years after the offence was committed.
17. Under Article 108 § 6 of the Criminal Code, a prosecution will in any event be barred by prescription after a period equal to double the length of the statutory limitation period for prosecution of the offence has elapsed.


ITEMID: 001-4988
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: ROMPA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish citizen, born in 1941 and living in Smażyno, Poland. She is represented before the Court by Mr L. Markowski, a retired notary public.
A.
On 25 September 1978 the applicant concluded the contract for a purchase of two plots of land, nos. 18 and 19, from Ms T. At that time Ms T. proved her title to the plots by an administrative decision of 1973 declaring that by virtue of the Agricultural Property Regulation Act she had become their owner („akt własności ziemi”). The decision stated that Ms T. had been using the farm, including plots nos. 18 and 19, previously owned by her parents, since 1950, and that she had thereby complied with the legal requirement of an uninterrupted possession of agricultural land for a period set out by law, for acquisition of its ownership by prescription.
Subsequently the applicant was registered in the local land register as the owner of the plot.
In 1981 the Wejherowo District Court gave a decision by which it declared that Mr and Ms D. had acquired ownership of plot no. 18 by prescription in 1959. The applicant lodged an appeal against this decision, which was later dismissed.
On 15 June 1984 the Wejherowo State Notary Office gave a decision by virtue of which plot no. 18 was severed from the land belonging to the applicant, registered in the land register under file no. 20050, and included in the property of Ms and Mr D. registered under file no. 10673.
By a decision of 6 March 1990 the Gdańsk Regional Office declared null and void the administrative title deed of 1973, confirming that Ms T. had become the owner of plot no. 18.
The applicant lodged an appeal against this decision.
On 13 May 1991 the Minister of Agriculture upheld the decision of 6 March 1990. The applicant lodged an appeal with the Supreme Administrative Court.
On 9 December 1991 the State Notary Office granted the applicant’s request to register a warning in the land register that the ownershhip of plot no. 18, which had been registered as the property of Ms and Mr D., had become the subject of litigation.
On 20 January 1992 the Supreme Administrative Court dismissed the applicant’s appeal against the administrative decision of 13 May 1991. Consequently, the decision of 6 March 1990 became final.
On 24 August 1992 the applicant lodged with the Wejherowo District Court a request to have appropriate steps taken ex officio by the court to put right the discrepancies between the entry in the land register and the actual ownership of the plot. She argued that she had validly acquired plot no. 18, having relied on the 1973 title deed of her predecessor, Ms T. The applicant further argued that the inviolability of her ownership acquired in good faith should be protected by law, and requested that plot no. 18 be included again in the register file no. 20050 and that she be registered as its owner.
On 20 February 1993 the applicant, in reply to the court’s enquiry as to the result she wished to obtain by lodging her reqest, submitted that it should not be regarded as a suit for rectification of the land register. The applicant reiterated that she had purchased the plot in 1978 in good faith and that a copy of this contract constituted sufficient evidence that she was the legal successor of Ms T. and that her request was therefore well-founded .
On 2 February 1993 the Wejherowo District Court refused to make the entry requested by the applicant. The applicant lodged an appeal.
On an unspecified later date the Gdańsk Regional Court set aside the decision under appeal and ordered that the case be reconsidered. The court considered that the lower court had failed to take any position as regards a question crucial for the determination of the case, i.e. the question of conflict between the rights of the applicant originating from the purchase contract of 1978 and those of Ms and Mr D. stemming from the prescription judgment of 1981. In order for this issue to be decided it was necessary to establish whether the decision of the Gdańsk Regional Office of 1990, annulling the 1973 title deed of Ms. T., concerned also plot no. 18.
On 1 April 1994 the Wejherowo District Court, Land Register Division, refused to grant the applicant’s request. The court established that the 1973 decision confirming the title of the previous owner of the land, i.e. plot no. 18, had been declared null and void by the decision of the Gdańsk Regional Office of 6 March 1990. The applicant’s appeal was subsequently dismissed by the Supreme Administrative Court. The court concluded that the question of the validity of the title of the applicant’s predecessor had thus been settled by a final decision. The court further observed that it was not in dispute that Mr and Ms D had acquired ownership of the plot by prescription in 1981.
The court considered that the applicant’s claim to eliminate the discrepancies between the entries in the land register and the actual ownership of the land concerned could be brought before a court only in contentious civil proceedings. It was only in such proceedings that the applicant could rely on the argument that her ownership was protected by the principle, provided for by Article 5 of the Land Register Act, that entries in the land register should be presumed to be accurate. The court further considered that, in proceedings concerning registration of ownership in the land register, it lacked jurisdiction to determine the question who was the true owner of the land.
The applicant appealed. She invoked again the principle, provided for by Article 5 of the Land Register Act that entries in the land register should be presumed to be accurate. She further referred to Article 34 of the Land Register Act and argued that she had submitted sufficient documents to prove that she had validly acquired ownership from Ms T.
On 19 May 1994 the Gdańsk Regional Court dismissed the applicant’s appeal. The court relied on Article 46 of the Land Register Act and pointed out that proceedings under the provisions of this Act were concerned only with obtaining a decision to make new entries in the Register, confirming ownership of land. However, in such proceedings the court lacked jurisdiction to determine any disputes as to who was the true owner. Such questions could be examined in civil contentious proceedings under Article 10 of the Land Register Act. The lower court had correctly established that the documents submitted by the applicant were insufficient to show that she was the legal successor of Ms T. Thus, her appeal had to be dismissed as lacking any legal basis.
Later the applicant submitted an identical request to the Wejherowo Court, which was finally rejected by the Gdańsk Regional Court on 27 April 1995 on the ground that the applicant’s request constituted a res iudicata.
B. Relevant domestic law and practice
Article 155 § 1 of the Civil Code provides that the conclusion of a contract of sale, or other contracts by which the parties agree to have title to property transferred, bring about a transfer of that title.
Article 3 of the Land Register Act establishes a legal presumption that the title registered in the land register corresponds to the actual legal situation of the property.
Under Article 5 of the Act, if there is a discrepancy between the title as registered in the register and the actual legal situation of the property, the person who acquired a title from a person whose title had been registered is regarded as having acquired it validly (rękojmia wiary publicznej ksiąg wieczystych).
Article 10 of the Act reads:
“If there is a discrepancy between the title or right as registered in the register and the actual legal status of the land, a person whose title or right is not registered or is registered is entitled to request a rectification of the relevant entries.
A claim for rectification of entries can be made public by registering a warning in the register. Such an entry shall be made on the basis of either a non-final judicial decision, or a judicial temporary order.”
A claim under Article 10 of the Act should be submitted to the court in ordinary contentious proceedings.
The land registers are run by the Land Register Divisions of the District Courts. Article 24 provides that a separate file shall be opened for each property. Pursuant to Article 25, the files shall be divided into four sections. The first section shall identify the real property. The second chapter shall name its owner or owners. The third section shall list rights in rem and other rights of third parties encumbering the property, and the fourth section shall contain entries concerning mortgages.
Article 37 of the Act provides that the court shall examine, in non-contentious proceedings, motions to have entries made in the register. The applicable provisions of the Code of Criminal Procedure shall be applied in such proceedings, with the changes provided for by the Land Register Act.
Under Article 38 of the Act, the court shall order that an entry be made in the register exclusively upon the motion of a party, or ex officio if the law expressly provides for it. Such a motion can be submitted by a person who has a legal interest in having her or his rights or obligations registered.
Pursuant to Article 46 of the Act, when examining a motion to have an entry made in the register, the court shall confine itself to examining the contents of the motion, the documents submitted with it and the existing entries in the register.


ITEMID: 001-106602
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: APINIS v. LATVIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant, Mr Guntis Apinis, is a Latvian national who was born in 1962 and is currently serving a thirteen-year prison sentence in Olaine prison for aggravated murder. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.
2. The applicant submitted numerous complaints to the Court. Among those was a complaint that he had been denied the right to vote in the general election to the Saeima, the Latvian parliament, on 7 October 2006, as the police had failed to send his passport to the prison where he was being held in custody at the time. He also alleged a violation of Article 6 § 2 of the Convention, on account of the fact that he had been called a “murderer” during a TV broadcast.
3. The applicant’s complaints under Article 3 of Protocol No. 1 to the Convention and Article 6 § 2 of the Convention were communicated to the Government on 14 June 2010, who submitted observations on the admissibility and merits of the case.
4. The applicant did not submit any observations. Instead, in his letter of 26 October 2010 he stated that “the Latvian State is not afraid of [the Court], because [the Court] plays with it like a toy”.
5. On 8 November 2010 the Court repeatedly requested him to appoint a representative and advised him to contact the Latvian Bar Association if he could not find one himself. The applicant did not designate a lawyer.
6. On 1 December 2010 the applicant expressed distrust in the Court and used grossly abusive language towards it. In reply, the Court notified the applicant that the time-limit for submission of his observations had expired, and drew his attention to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application.
7. On 17 February 2011 the applicant informed the Court that he did not intend to withdraw his application, and requested an extension of time to submit his observations. Exceptionally, the President of the Section granted that request.
8. On 24 March 2011, in reply to the Government’s letter stating their position on a friendly settlement, the applicant issued threats directed at officials of the Court. The Court replied to the applicant on 2 May 2011, explaining the procedure before it and insisting on the need for the applicant to appoint a representative.
9. In the letter sent on 5 May 2011 the applicant continued to issue abusive and threatening remarks. He stated that “the Court supports fascism” and that during the next eight years he would “find the opportunity to discover the truth and [the chance] to make sure that those who call themselves gods get what they deserve”. In reply, the Court referred to its previous letter.
10. In the letter dated 30 May 2011 the applicant stated that he did not have any trust in the Court because it scoffed at human rights.
11. In his letter of 29 June 2011 the applicant continued to use grossly abusive language towards the State and the Court.


ITEMID: 001-4822
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: RIBOLI v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national, born in 1964 and living in Milan.
He is represented before the Court by Mr Daniele Portinaro, a lawyer practising in Milan.
A.
O.I. s.r.l., a company based in Milan, was the owner of an apartment in Milan, which it had let to C.M. In a registered letter of 11 March 1993, it informed the tenant that it intended to terminate the lease on expiry of the term on 30 September 1993 and asked her to vacate the premises by that date. In a writ served on the tenant on 5 June 1993, it reiterated its intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
In a decision of 16 June 1993, which was made enforceable on 17 June 1993, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 30 September 1994.
On 31 May 1994, the applicant became the owner of the apartment.
On 13 October 1994, the applicant served notice on the tenant requiring her to vacate the premises.
On 17 November 1994, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 16 December 1994.
On 16 February 1995, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.
Between 16 December 1994 and 27 February 1996 the bailiff made 6 attempts to recover possession, on 16 December 1994, 28 February 1995, 19 May 1995, 22 September 1995, 15 December 1995 and 27 February 1996. These attempts proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
On an unspecified date between 27 February 1996 and 15 May 1996, the applicant repossessed the apartment.
B. Relevant domestic law
The relevant domestic law is described in the Immobiliare Saffi v. Italy judgment of 28 July 1999, to be published in the Court’s official reports, §§ 18-35.