ITEMID: 001-61731
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF GORRAIZ LIZARRAGA AND OTHERS v. SPAIN
IMPORTANCE: 1
CONCLUSION: Preliminary objections rejected (victim, non-exhaustion of domestic remedies);No violation of Art. 6-1 as regard the equality of arms;No violation of Art. 6-1 as regard the right to a fair hearing;Not necessary to examine Art. 8 and P1-1
JUDGES: Nicolas Bratza
TEXT: 8. The first five applicants are individual Spanish nationals who live in Itoiz (Navarre province). The third applicant is also the chairperson and legal representative of the sixth applicant, the Coordinadora de Itoiz association. The first, second, fourth and fifth applicants are members of this association.
9. The case originated in an engineering project of February 1989 for the construction of a dam in Itoiz (Navarre province) which would result in the flooding of three nature reserves and a number of small villages, including Itoiz, where the applicants live. According to the Government, the total number of landowners affected by the dam's construction is 159, thirteen of whom live in Itoiz itself.
10. On 6 May 1988 the Coordinadora de Itoiz association was set up; its articles of association state, inter alia, that its aim is “to coordinate its members' efforts to oppose construction of the Itoiz dam and to campaign for an alternative way of life on the site, to represent and defend the area affected by the dam and this area's interests before all official bodies at all levels, whether local, provincial, State or international, and to promote public awareness of the impact of the dam”.
By a ministerial decree of 2 November 1990, the Ministry of Public Works adopted the Itoiz dam project.
11. In 1991 the villages concerned by the dam and the applicant association brought an administrative appeal before the Audiencia Nacional against the ministerial decree of 2 November 1990. The appeal was based on several allegations of unlawfulness which, in their opinion, had tainted the procedure for informing the public about the proposed dam, the fact that the project had been adopted without the prior approval of the hydrological plans for each river basin or of the national hydrological plan and the lack of any public or social interest served by the project. They also claimed that the project breached the legislation on environmental protection, since no environmental impact study had been commissioned. Finally, the court's attention was drawn to the project's impact on the nature reserves and habitat within the relevant area in the light of the Council of Europe's recommendations on engineering works in the Pyrenees and the European Union's common agricultural policy.
12. In a judgment of 29 September 1995, the Audiencia Nacional partly upheld the appeal, considering in particular that, according to the law, the planned dam should have been based on the national hydrological plan, which had not been drawn up when the project was approved. The court also accepted the request for precise designation of the protection zones around the nature reserves affected by the dam and for a breakdown of the quarry use that would be necessary for its construction.
13. The applicant association applied for immediate enforcement of the judgment and, in particular, for suspension of construction work on the dam. By a decision of 24 January 1996, the Audiencia Nacional granted a suspension order but directed that the necessary measures be taken to ensure the completion of work already begun and for the maintenance and safety of the work already completed, subject to the payment of security by the applicant association.
14. All the parties to the proceedings lodged súplica appeals against the decision of 24 January 1996. In the context of the interim enforcement of its judgment of 29 September 1995 and, in particular, with a view to maintaining the protection zones around the three nature reserves affected by the project, the Audiencia Nacional, by a decision of 6 March 1996, prohibited the filling of the reservoir and displacement of the population concerned.
15. On 17 June 1996 the parliament of the Autonomous Community of Navarre (parlamento foral de Navarra) passed Autonomous Community Law (foral) no. 9/1996 on natural sites in Navarre (“the Autonomous Community law of 1996). This law amended Autonomous Community Law no. 6/1987 of 10 April 1987, particularly with regard to the possibility of reclassifying the protection zones or carrying out activities within them for the purpose of introducing infrastructure that had been declared in the general or public interest. According to the applicants, this Law enabled construction work on the dam to continue, with the consequent deterioration of the protected natural site.
In application of the Autonomous Community law of 1996, the Autonomous Community's government adopted Decree no. 307/1996 of 2 September 1996, which identified the peripheral protection zones for certain nature reserves and strict nature reserves in Navarre.
16. In the meantime, Counsel for the State and the government of the Autonomous Community of Navarre had appealed on points of law against the Audiencia Nacional's judgment of 29 September 1995. In a judgment of 14 July 1997, the Supreme Court definitively cancelled the dam project in so far as it concerned the 500-metre protection zones around nature reserves RN 9, 10 and 11. As a result of the judgment, the size of the planned dam, and thus of the area to be flooded, was reduced, so that the village of Itoiz, where the applicants' immovable property was located, was saved from flooding.
17. In application of the Supreme Court's judgment, by a decision of 4 September 1997, the Audiencia Nacional declared final the interim enforcement measures ordered on 6 March 1996 concerning the prohibition on filling the reservoir and other related work. Before ruling on the question of the possible suspension of construction work on a dyke, the Audiencia Nacional invited the parties to appear before it so that they could submit observations on the consequences of the new Autonomous Community law of 1996, particularly with regard to the protection zones around all the nature reserves provided for in that law, and on the impact of the maximum flood levels on the protection zones of the reserves to which the cancelled project had referred.
18. The central State authorities and the Navarre Autonomous Community's government argued before the Audiencia Nacional that it had become legally impossible to enforce the Supreme Court's judgment of 14 July 1997, in so far as the Autonomous Community law of 1996 had removed protection-zone status from the area within the nature reserves that was due be flooded. Accordingly, taking that legislative amendment into account, it had become possible to carry out the public-works schemes planned within those protection zones.
19. The applicant association contested the authorities' argument, claiming that the Autonomous Community law of 1996 was inapplicable in the instant case, since it had been enacted following the administrative decisions in the proceedings in issue and subsequent to the Audiencia Nacional's judgment and the two interim enforcement orders. In the alternative, the applicant association requested that certain provisions in the Autonomous Community law be referred to the Constitutional Court for a preliminary ruling on their constitutionality, particularly those authorising the removal of protection-zone status from the three nature reserves in the area to be flooded, which, in the applicant association's submission, would allow the work to be completed and make the reservoir cover the area specified in the original plans.
20. By a decision of 1 December 1997, the Audiencia Nacional asked the Constitutional Court to rule on the preliminary question submitted by the applicant association.
By a decision of 21 May 1998, the Constitutional Court declared the application inadmissible on account of certain errors in its presentation which could nonetheless be corrected.
21. In order to rectify the above-mentioned errors, the Audiencia Nacional summoned the parties on 28 May 1998 so that it could hear their submissions on certain aspects of the Autonomous Community law whose constitutionality had been challenged before the Constitutional Court, and on the constitutionality of section 18(3) (A.1.) and (B) of that law. The applicant association submitted its observations on 10 June 1998.
By a decision of 17 June 1998, the Audiencia Nacional again asked the Constitutional Court to rule on the preliminary question as to constitutionality and extended the question to include a new point raised by the applicant association, namely section 18(3) (B) (B.1.) of the Autonomous Community law.
22. By a decision of 21 July 1998, the Constitutional Court declared the issues raised in the preliminary question admissible. Under section 37(2) of the Judicature Act, it gave notice of the questions to the Chamber of Deputies, the Senate, the government and parliament of Navarre and the Spanish government, and invited them to file their observations within fifteen days. The Constitutional Court received Counsel for the State's observations on 4 September 1998. The government and parliament of Navarre submitted their observations on 11 and 15 September 1998 respectively. The Attorney General's observations were submitted on 29 September 1998. The Speaker of the Chamber of Deputies indicated that the Chamber would present no observations. The Speaker of the Senate asked that the Senate be considered a party to the proceedings and offered its assistance. On 1 March 2000 the Audiencia Nacional forwarded to the Constitutional Court the written pleadings submitted by the applicant association during the proceedings before it. These pleadings, dated 29 September 1997, 10 June 1998 and 28 February 2000, were formally included in the case file at the Constitutional Court.
23. In a judgment of 14 March 2000, the Constitutional Court, sitting as a full court, held that the impugned provisions of the Autonomous Community law of 1996 were compatible with the Constitution. It observed at the outset that enforcement of the Supreme Court's judgment of 14 July 1997, delivered in accordance with Navarre Autonomous Community Law no. 6/1987, had become impossible since the entry into force of the Autonomous Community law of 1996, in that the cancelled project complied with the new law.
24. Examining the purpose of the Autonomous Community law of 1996, the Constitutional Court held as follows:
“... Its purpose is to establish a general system for environmental protection of the natural sites in the Autonomous Community of Navarre. Accordingly, this protection system [was] applicable ... to the nature reserves already identified in the previous Autonomous Community law, even though the essential difference between the legal rules established by those two laws lies in the arrangements regarding the peripheral protection zones.”
25. The Constitutional Court held, firstly, that this was not to be seen as a legislative solution for the particular problem of the three peripheral zones around the three nature reserves affected by construction of the Itoiz dam and, secondly, that statements and parliamentary initiatives by certain politicians which, in the opinion of the Audiencia Nacional, demonstrated that the main aim of the Autonomous Community law of 1996 was to prevent execution of the Supreme Court's judgment, were immaterial in assessing whether there had been a violation of the principle of lawfulness. The Constitutional Court also ruled that, given the significance of the question raised by the Itoiz dam's construction, which could not simply be ignored, it was justifiable that the explanatory memorandum accompanying the Autonomous Community law of 1996 specifically mentioned the aim and means of environmental protection in the peripheral protection zones around the three above-mentioned nature reserves.
26. As to the alleged infringement of the right to a fair hearing, in so far as the Autonomous Community law of 1996 now prevented execution of the Supreme Court's judgment partly cancelling the Itoiz dam project, the Constitutional Court considered that the fact that in the meantime a new law had been passed amending the legal system applicable to the peripheral protection zones and replacing the previous law on the basis of which the project had been declared partly void was not in itself incompatible with the right to execution of judicial decisions as enshrined in Article 24 of the Constitution.
27. Referring to the case-law of the European Court of Human Rights and, in particular, to the judgments in Stran Greek Refineries and Stratis Andreadis v. Greece (9 December 1994, Series A no. 301-B) and Papageorgiou v. Greece (22 October 1997, Reports of Judgments and Decisions 1997-VI), the Constitutional Court examined whether the impossibility of executing the Supreme Court's judgment as a consequence of the enactment of the Autonomous Community law of 1996 was justified in view of the values and assets protected by the Constitution. Having held that environmental protection was enshrined in the Constitution, the Constitutional Court examined whether the prejudice arising from the failure to execute the judgment in issue was proportionate to the protected or disputed interests or was on the other hand purposeless, excessive or the cause of a clear imbalance between the interests at stake. It found that both the Supreme Court's judgment of 14 July 1997 and the new Autonomous Community law of 1996 were intended to guarantee the existence of a peripheral protection zone around the three nature reserves affected by the dam's construction. The Constitutional Court further noted that the system of peripheral protection zones introduced by this new law had not in itself been considered arbitrary in the Audiencia Nacional's decision; nor had the zones' new boundaries been held responsible for the serious deterioration of the environment. Accordingly, it held that the balance of general interests had been respected and that there was no clear lack of proportion between the conflicting interests. Consequently, the impugned provisions could not be held to be contrary to Article 24 § 1 of the Constitution.
28. As to the argument that the new legal rules governing the peripheral protection zones around the nature reserves appeared in a law rather than in regulations, as had previously been the case, and that this deprived the applicants of the possibility of overseeing the administration's actions through an administrative appeal or enforcement proceedings, the Constitutional Court noted that there was no legal provision requiring that certain subjects be dealt with by regulations. It added that the new law did not amount to ad causam legislation, being general in form and in substance, and pointed out that laws could be challenged before the Constitutional Court through the remedy provided for in Article 163 of the Constitution.
Accordingly, the Constitutional Court dismissed the application for a preliminary ruling. The judgment was published in the Official Gazette on 14 April 2000.
29. The relevant provisions of the Constitution read as follows:
“The Constitutional Court shall have jurisdiction for the whole of Spanish territory and is competent to hear:
(a) appeals against alleged unconstitutionality of laws and regulations having the force of law ...;
(b) individual appeals for protection [recurso de amparo] against violation of the rights and liberties referred to in Article 53 § 2 of the Constitution, in the circumstances and manner laid down by law;
(c) disputes between the State and an Autonomous Community or between different Autonomous Communities over the scope of their powers.
...
“If in the course of proceedings a judicial body considers that a provision which has the status of law and is applicable in the proceedings and upon whose validity its decision depends might be contrary to the Constitution, it shall refer the issue to the Constitutional Court in the circumstances and manner and with the effects – which shall under no circumstances include suspensive effect – to be laid down by law.”
“1. Judgments of the Constitutional Court shall be published in the State's Official Gazette together with any dissenting opinions. They shall be final with effect from the day after their publication and no appeal shall lie against them. Judgments declaring a law or a rule having the force of law unconstitutional and all judgments that are not merely in personam shall be binding on everyone.
2. Unless stated otherwise in the judgment, parts of the law not declared unconstitutional shall remain in force.”
30. The relevant provisions of this law read as follows:
“1. When judges or courts, of their own motion or at the request of a party, consider that a provision which has the status of law and is applicable in the proceedings and upon whose validity its decision depends might be contrary to the Constitution, they shall refer the matter to the Constitutional Court, in accordance with the provisions of the present Law.
2. The judge or court concerned shall make the referral only when the case is ready for trial and within the time allowed for giving judgment. They must specify which law or provision having the status of law is alleged to be unconstitutional and which Article of the Constitution is considered to have been breached. They must also state the precise reasons why the outcome of the proceedings depends on the validity of the contested provision. Before taking a final decision on whether to refer an issue to the Constitutional Court, the judge or court shall first hear any representations the parties and a representative of State Counsel's Office may wish to make regarding the relevance of the issue within a ten-day non-extendable time-limit that shall apply to each of them. The judge shall give his or her decision within three days thereafter, no further action being required. No appeal shall lie against that decision. However, the constitutionality issue may be raised again in subsequent proceedings until such time as the judgment has become final.”
“A judge or court shall refer constitutionality issues to the Constitutional Court by sending a certified copy of the main case file and any representations made under the preceding Article.”
“1. On receipt of the case file the Constitutional Court shall follow the procedure laid down in paragraph 2 of this Article. However, it may in a reasoned decision declare the question referred inadmissible after hearing representations by the Attorney General alone if the procedural requirements have not been complied with or the question referred is manifestly ill-founded.
2. The Constitutional Court shall inform the Chamber of Deputies and the Senate (through their respective Speakers), the Attorney General and the Government (through the Ministry of Justice) of the question referred. If it concerns a law or a provision having the status of law adopted by an Autonomous Community, the legislative and executive authorities of that Community shall also be informed. Each of these bodies shall be entitled to appear before the Constitutional Court and to make representations on the constitutionality issue within a non-extendable fifteen-day time-limit that shall apply to each of them. Once that period has expired, the Constitutional Court shall give judgment within fifteen days, unless it gives a reasoned decision explaining why it considers a longer period – not exceeding thirty days – to be necessary.”
31. The explanatory memorandum to the Autonomous Community law of 1996 states that the text has two objectives: first of all, it establishes a legal system specific to Navarre in order to safeguard, preserve and improve those parts of its territory which contain natural assets worthy of protection in accordance with Spanish legislation and European Union directives on environmental protection; secondly, the law is intended to harmonise the legislation on natural sites enacted by the Autonomous Community of Navarre.
In particular, the law lists the nature reserves and natural sites in Navarre which are protected by law and establishes their boundaries. It also sets out, for each type of protected site, the types of activity and use which are authorised or prohibited. Section 18 reads as follows:
1. Through an autonomous law, the parliament of Navarre may identify the boundaries of ... peripheral protection zones around the Strict Nature Reserves and Nature Reserves, which may be discontinuous and shall be intended to avoid external impact on the environment or landscape.
...
3. The regulations governing activities and land use within the peripheral protection zones of the Strict Nature Reserves, Nature Reserves and Nature Parks shall be as follows:
(A) Non-construction activities
(A.1.) The following may be authorised:
...
– Activities related to the creation of infrastructure which is in the public or general interest.
...
(B.) Construction activities
(B.1.) The following may be authorised:
...
– Infrastructure declared to be in the public or general interest.
...”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60823
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF MITCHELL AND HOLLOWAY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicants were born in 1946 and 1941 respectively and live in Kent.
10. On 7 February 1986 the applicants granted to a company now known as Buckingham International Limited (“Buckingham”) an option to purchase 90% of the share capital in Worldwide Dryers Limited (“WWD”) for 2 pounds sterling (“GBP”) a share, with a further option to purchase the remaining 10% at a price to be fixed by an agreed formula. On 2 October 1986 the first lot of shares in WWD was purchased. Relations between Buckingham and the applicants subsequently deteriorated.
11. On 12 February 1988 WWD and Buckingham issued High Court proceedings against the applicants claiming, inter alia, damages for breach of contract. On 27 October 1988 Buckingham exercised its call option on the remaining 10% of the shares of WWD, Buckingham alleging that no further payment was due to the applicants given its outstanding claims against them.
12. In January 1990 the second applicant was granted legal aid.
13. The plaintiffs finally served their statement of claim on 1 May 1990 having received numerous extensions of time (ordered by the court on the basis of the parties’ consent). The statement of claim ran to fifteen pages. It included many allegations of breaches of warranties in the option agreement and claims that the applicants owed WWD substantial sums of money which they had borrowed from WWD through directors’ loans schemes.
14. The applicants served a short-form defence on 31 July 1990 after two extensions of the relevant time-limit granted by the High Court following contested hearings. Further particulars of the defence were requested by the plaintiffs in November 1990. At a directions hearing on 28 February 1991, a Master of the High Court, inter alia, allowed the applicants to amend their defence and to file a counterclaim, and ordered that the action be set down for hearing on or before 23 March 1991. This date was subsequently vacated by the parties’ agreement. On 23 April 1991 the applicants were accorded until 14 May 1991 to file the amended defence and counterclaim, and it was so filed. In June 1991 the first applicant was granted legal aid. The plaintiffs’ reply and defence to the counterclaim was served on 9 September 1991, after an extension of time.
15. At the request of the applicants’ solicitors, on 23 October 1991 the High Court ordered that the plaintiffs’ claim and the applicants’ counterclaim be set down for hearing. The relevant setting down notice was filed by the plaintiffs on 31 October 1991.
16. On 13 November and 19 December 1991 the High Court ordered the plaintiffs to file outstanding pleadings. By letter dated 7 November 1991, the applicants requested an expedited hearing from the Lord Chancellor’s office. The letter of the Administrator of the Royal Courts of Justice dated 20 November 1991, in response, explained that the applicants could apply to the High Court to advance the hearing but that the court was otherwise unable to bring the hearing date forward. It further explained that such delays often occurred given the number of cases waiting to be heard, in the light of the estimated hearing time (then ten days) and because a fixed hearing date had been requested.
17. In late 1991 and early 1992 the applicants were advised by solicitors and by junior and Queen’s Counsel that an application for an expedited trial was unlikely to succeed as inter alia there were no grounds for granting the applicants priority over other litigants. On 9 January 1992 the plaintiffs filed outstanding pleadings (further and better particulars of the statement of claim) and in February and March 1992 discovery of documents took place in the case.
18. On 6 February 1992 counsel for all parties submitted an increased estimated hearing time of fifteen days. On 27 February 1992 the hearing date was fixed for 7 March 1994. The High Court later confirmed in its judgment of 5 November 1997 that the two-year delay in such cases was “not untypical” and that the reason was that the Chancery lists were “extremely congested”.
19. On 8 December 1993 WWD was ordered (on its own petition) to be wound up.
20. On 24 February 1994, due to the late discovery of the plaintiff’s documents (some 120 boxes), the applicants applied for an adjournment of the hearing date and for an expedited hearing date thereafter. Both requests were granted and the hearing date was re-scheduled for April 1994. On 12 April 1994 the applicants served further amendments to their defence and counterclaim.
21. The hearing began on 26 April 1994 and lasted 20 days. Since WWD was in liquidation and did not appear, the judge dismissed WWD’s action at the outset. Buckingham applied to make substantial amendments to its pleadings and its claims were adjourned. Only the applicants’ counterclaim was therefore examined. Judgment (ninety-nine pages) was delivered by Ferris J. on 18 July 1994 in favour of the applicants in the sum of GBP 3,681,143.47 plus costs.
22. The execution of that judgment was stayed by order of the High Court on 27 July 1994 pending the lodging of a notice of appeal. On 29 July 1994 the High Court made an order for security for costs against Buckingham and on 15 August 1994 Buckingham lodged an appeal. On 12 September 1994 Buckingham’s claims were dismissed by consent and costs were awarded to the applicants. The stay was partially lifted, allowing the applicants to pursue execution of a small part of the judgment. On 20 April 1995 a High Court Master made a provisional charging order over the property of Buckingham in the sum of the judgment.
23. On 27 April 1995 creditor banks appointed administrative receivers in respect of Buckingham. On 22 May 1995 the High Court Master confirmed the charge on Buckingham’s property in the amount of the judgment and of the interest and legal costs accrued since the judgment. On 8 June 1995 Buckingham withdrew its pending appeal since the receivers did not wish to pursue it. The appeal was therefore dismissed by the High Court on 29 June 1995 and costs were awarded to the applicants. The stay was also lifted.
24. In March 1996 the Taxing Office assessed the applicants’ costs (including those of the appeal but less the periods for which they were legally aided) at GBP 500,000 approximately.
25. Given the appointment of administrative receivers to Buckingham, the applicants investigated how to achieve priority for their judgment over unsecured and preferential creditors of Buckingham, and it was considered that the judgment could be enforced against the intra-group indebtedness of certain subsidiaries of Buckingham in the United States (“US”).
26. In early 1996 the applicants therefore had the judgment registered in Florida. In May 1996 they issued proceedings in the US to garnishee funds owed to Buckingham by its US subsidiaries. On 8 May 1996 a circuit court in Florida made an order by which over 7,000,000 US dollars of those subsidiaries’ funds were held in court as security for the judgment debt in the United Kingdom.
27. On 21 May 1996 the High Court, on the application of Buckingham’s administrative receivers for a winding up order, appointed provisional liquidators to take over its affairs. In May 1996 those provisional liquidators obtained from the US courts a provisional discharge of the order garnisheeing the subsidiaries’ funds. That provisional order was subject to the courts in the United Kingdom determining whether the latter would permit the applicants to enforce their judgment debt ahead of the existing secured and preferential creditors of Buckingham.
28. The applicants therefore issued new proceedings (no. 2835/1996) on 11 June 1996 in the High Court in the United Kingdom to have determined the issue identified by the US courts. Pointing to the delay in the determination of their claim against Buckingham in the substantive proceedings, they requested the High Court to exercise its discretion to give them priority over the secured and preferential creditors of Buckingham.
29. On 3 July 1996 a compulsory winding up order of Buckingham was obtained which confirmed the provisional liquidators in office.
30. On 1 August 1996 the High Court ordered, on the basis of the parties’ consent, that the jurisdiction issue be dealt with as a preliminary matter. On 11 October 1996 the High Court found that it did not have jurisdiction. A notice of appeal was issued on 28 October 1996 and leave to appeal was granted on 14 January 1997. On 21 February 1997 the Court of Appeal found that the High Court had jurisdiction and remitted the case to it. (Mitchell and another v. Carter and another, Re Buckingham International plc [1997] 1 BCLC 681).
31. On 12 May 1997 the applicants requested that their application be certified as fit for a speedy trial and that application was granted on 3 June 1997. The High Court heard the matter again on 9 July 1997. On 5 November 1997 Harman J. handed down the High Court’s judgment. He found that he could not prefer the judgment debt of the applicants over the secured and preferential creditors of Buckingham. He described the “lamentable history” of the proceedings and was critical of the conduct of those proceedings by Buckingham and their legal representatives, referring to their “highly successful spoiling tactics”, to the “carefully dilatory conduct of the action before mid-1992” and to their “extremely overdue” statement of claim pointing out, in this context, that “if litigation is about the obtaining of justice at a fair trial it is equally clear that that process was wholly obstructed”. A notice of appeal was filed on 5 December 1997.
32. On 3 February 1998 the Court of Appeal heard the appeal and on 16 February 1998 it confirmed the judgment of the High Court (Mitchell and another v. Buckingham International plc (in liq) and others, Re Buckingham International plc (in liq) (no 2) [1998] 2 BCLC 383). The Court of Appeal also referred to the “delaying tactics adopted in the litigation by Buckingham and its solicitors” which “may have amounted to, or come close to, abuse of process”. It went on:
“The civil justice system has unfortunately failed to give [the applicants] prompt relief for their complaints, and their eventual victory before Ferris J has become a very hollow victory. Nevertheless, there was in our judgment no substantial flaw in the way in which Harman J exercised his discretion.”
33. The Court of Appeal also refused leave to appeal to the House of Lords. The application for leave to appeal to the House of Lords (filed on 16 March 1998) was rejected by that body on 29 June 1998.
34. The applicants finally recovered from the liquidators of Buckingham approximately GBP 100,000 after payment of their costs.
35. The High Court possesses an inherent jurisdiction to dismiss any action for “want of prosecution” by the plaintiff and an action is liable to be so dismissed where the plaintiff has been guilty of contumelious default or where there has been inordinate and inexcusable delay causing prejudice to the defendant.
36. It also has an inherent jurisdiction to strike out an action on the grounds that it is an abuse of the process of the Court. This latter power was supplemented by Order 18 rule 19 of the Rules of the Superior Courts (“RSC”) which provided for an express power to strike out any pleading or an endorsement of any writ on the grounds, inter alia, that it may prejudice, embarrass or delay the fair trial of the action, or is otherwise an abuse of process of the Court.
37. Order 19 rule 1 of the RSC provided that, where a plaintiff failed to serve a statement of claim on a defendant, the latter could apply to the court after the relevant time period passed for an order to dismiss the action. The court could dismiss the action or make such order as it thought fit.
38. Order 34 rule 2(2) of the RSC provided for action to be taken where the plaintiff failed to set down an action for hearing within the period stipulated by the court: the defendant could either set the case down for hearing or could apply to the court to dismiss the action for want of prosecution. Again, the court could dismiss the action or make such other order as it thought fit.
39. A party to proceedings could also apply to a Master or judge of the High Court for an order that the hearing of a case be expedited.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108232
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ĐOKIĆ v. SERBIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Just satisfaction dismissed (out of time)
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 5. The applicant is a former police officer who was born in 1970 and is currently serving a prison sentence in the Niš Penitentiary (Kazneno-popravni zavod u Nišu).
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 26 May 2005 the District Court in Leskovac found the applicant guilty of murdering his former wife, and sentenced him to eleven years’ imprisonment.
8. On 18 October 2005 the Supreme Court quashed this judgment and ordered a retrial.
9. On 16 December 2005 the District Court in Leskovac again convicted the applicant and sentenced him to eleven years’ imprisonment. In so doing, it provided extensive reasoning.
10. On 20 March 2006 the Supreme Court upheld this judgment. The appeal bench included judge M.C. and the applicant received the judgment on 26 May 2006.
11. On 26 June 2006, through the prison authorities and as evidenced by their certificate, the applicant filed an appeal on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude). The Supreme Court received this appeal on 5 July 2006, as certified by its stamp of even date.
12. On 31 May 2007 the Supreme Court noted that the appeal had been lodged on 5 July 2006 and consequently had to be rejected as out of time (neblagovremen; see paragraph 20 below). The Supreme Court’s bench again included judge M.C. and the applicant received this decision on 21 September 2007.
13. The relevant domestic provisions are contained in the Code of Criminal Procedure (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02, as well as in the Official Gazette of the Republic of Serbia – OG RS – nos. 58/04, 85/05, 115/05 and 49/07).
14. Article 40 (5) provides that a judge may not sit in a case when he or she has already taken part in the adoption of a decision before a lower court or before “the same court” should its decision subsequently “be appealed”.
15. Article 41 § 1 provides, inter alia, that as soon as a judge discovers this ground for recusal, he or she shall cease dealing with the case and request the president of the court to appoint another judge in his or her stead.
16. Article 182 § 4 provides, inter alia, that a defendant who has been sentenced to a prison term shall have the right to file his submissions through the prison authorities, thereby interrupting any time-limits.
17. Article 183 § 3 provides, inter alia, that a time-limit set in months shall expire by the end of the day, of the last month, which corresponds by number to the date when the running of the time-limit commenced.
18. Article 419 provides, inter alia, that the competent public prosecutor “may” (može) file a Request for the Protection of Legality (zahtev za zaštitu zakonitosti) against a “final judicial decision”, on behalf of or against the defendant, if the relevant substantive and/or procedural “law has been breached” (ako je povređen zakon).
19. On the basis of the above request, under Articles 420, 425 and 426, the Supreme Court may uphold the conviction at issue or reverse it. It may also quash the impugned judgment, in its entirety or partly, and order a re-trial before the lower courts. If the Supreme Court, however, finds that there has been a violation of the law in favour of the defendant, it shall only be authorised to declare so but shall leave the final judgment standing.
20. Article 428 provides, inter alia, that a defendant who has been found guilty and sentenced to an effective prison term at first and second instance shall have the right to file an appeal on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude) with the Supreme Court within one month as of the date of receipt of the judgment rendered on appeal.
21. In accordance with Articles 432 and 425 and 426, inter alia, the Supreme Court shall, should it accept an appeal on points of law, have the power to overturn the impugned judgment or quash it and order a retrial before the lower courts. It shall also be able to do so if there are serious doubts as to the veracity of the decisive facts established in the impugned decision and this impinges upon the proper application of the relevant law.
22. In 2009 amendments to the above Code of Criminal Procedure (Zakon o izmenama i dopunama Zakonika o krivičnom postupku, published in OG RS no. 72/09) removed the appeal on points of law as an existing domestic remedy. Article 146 § 1 of this Act, however, provides that in respect of all defendants who had already lodged their appeals on points of law before the entry into force of these amendments it is the “repealed provisions” that shall be applicable.
23. Lastly, in its decision of 17 September 2009 the Constitutional Court held that a Request for the Protection of Legality is not a remedy which needs to be exhausted before one may file an appeal with the Constitutional Court, the reason being, inter alia, that it was only the public prosecutor who could have filed such a request on behalf of the defendant and, further, that the former had full discretion in respect of whether to do so (Už-1233/2009).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99856
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF PALAMARCHUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 4. The applicant was born in 1961 and lives in Vinnitsa.
5. In 1983, while undergoing training at the SU-26 company, the applicant had an accident. As a result of this accident he was classed as a disabled person.
6. Starting in 2000 the applicant instituted four sets of proceedings against the Vinnitsa specialised collective company no. 26 (“the company”), the successor of the company responsible for the accident, in the Zamostyansky District Court of Vinnitsa (“District Court”).
7. On 21 September 2000 the applicant instituted proceedings against the company, seeking a ruling to oblige the company to provide him with a wheelchair for home use and a wheelchair for outside use. The applicant also claimed compensation for non-pecuniary damage.
8. By its judgment of 19 June 2001 the District Court ordered the company to provide the applicant with two wheelchairs. It also partly allowed the applicant's claim for compensation. By an additional judgment of 3 July 2001 the District Court amended its previous judgment and ruled that the company should provide the applicant with all components for wheelchairs.
9. On 23 October 2001 the Vinnitsa Regional Court of Appeal quashed the above judgments and remitted the case for a new consideration to the District Court. The applicant appealed in cassation. In the period from November 2001 to December 2002 the District Court mainly examined the admissibility of the applicant's appeal in cassation against the ruling of 23 October 2001.
10. In December 2002 the applicant's appeal in cassation was sent to the Supreme Court. On 22 December 2003 the latter dismissed it.
11. Between 30 June 2004 and 11 April 2005 no hearings were scheduled.
12. Between 12 April 2005 and 27 March 2006 the District Court scheduled some ten hearings, two of them were adjourned on account of absence of the company's representative, two other on account of the judge's absence. Three hearings were adjourned since the applicant's representative failed to appear.
13. Between 21 April 2006 and 04 August 2006 no hearings were held.
14. In the period from 6 November 2006 to 12 December 2007 the District Court scheduled some twelve hearings. Three of them were adjourned because the judge was involved in other proceedings and one on account of his illness. Three hearings were adjourned because the Fund's representative failed to appear, four due to the absence of the company's representative.
15. On 12 December 2007 the case was transferred to another judge.
16. Between 13 December 2007 and 14 May 2009 the District Court scheduled some thirteen hearings, six of them were adjourned since the judge was ill and one because he was involved in other hearings.
17. On 15 May 2009 the District Court left the applicant's claim without consideration. The applicant in his submissions alleged that he learned about that decision from the Government's observations sent to him in July 2009.
18. On 18 February 2002 the applicant instituted proceedings against the company. The applicant claimed nursery allowance and compensation for non-pecuniary damage caused to him by the company.
19. The first hearing was held on 16 December 2003. On unspecified dates the prosecutor and the Vinnitsa Regional Department of the State Social Security Fund (“Fund”) joined the proceedings.
20. According to the records provided by the Government, of around sixty-five listed hearings three were adjourned since the Fund's representative failed to appear. On three occasions the hearings were adjourned as the prosecutor failed to appear. Six hearings were adjourned since the judge was involved in other proceedings and seven on account of the judge's illness. Nine hearings were adjourned since the applicant or his representative failed to appear or at their request. Seventeen hearings were adjourned because of the absence of the company's representative or at his request.
21. On 3 June 2009 the District Court left the applicant's claim without consideration. The applicant in his submissions alleged that he learned about that decision from the Government's observations which were sent to him in July 2009.
22. On 21 March 2001 the applicant lodged a complaint with the District Court challenging the actions of the head of the company. He alleged that the latter had unlawfully refused to send him for a medical examination in order to establish that he needed anti-bedsore treatment.
23. On 23 July 2001 the applicant challenged the judge sitting in his case. On 26 July 2001 the District Court dismissed his request. The applicant appealed. On 3 September 2001 the Vinnitsa Regional Court of Appeal dismissed the applicant's appeal.
24. Between 14 September 2001 and 20 December 2003 the District Court scheduled three hearings, two of them were adjourned at the company's request. The applicant challenged a judge sitting in his case on several occasions. On 19 December 2001, 21 August 2002 and 16 May 2003 his requests were granted and the case was transferred to another judge.
25. On 21 December 2003 the prosecutor joined the proceeding. On an unspecified date the Fund joined the proceedings as a third party.
26. There were no hearings scheduled between 8 November 2007 and 18 December 2008.
27. Out of around sixty-one hearings listed in the period from 21 December 2003 to 14 May 2009, five were adjourned because the Fund's representative failed to appear. Nine hearings were adjourned due to the absence, or at the request, of the applicant or his representative. On ten occasions the judge failed to appear because he was ill, on eight occasions since he was involved in other proceedings, and on one occasion as he was on holiday. Seventeen hearings were adjourned because the company's representative failed to appear or at his request.
28. On 12 December 2008 the case was transferred to another judge.
29. On 15 May 2009 the District Court left the applicant's claim without consideration. The applicant submitted that he had learned about that decision from the Government's observations sent to him in July 2009.
30. On 3 May 2001 the applicant instituted proceedings against the company. He challenged the company's refusal to provide him with bedclothes and claimed compensation.
31. On 13 June 2001 the District Court left his claim without consideration due to its procedural shortcomings.
32. On 6 November 2001 the Vinnitsa Regional Court of Appeal quashed the ruling of 13 June 2001 and remitted the case to the District Court.
33. On 26 December 2001 the District Court allowed the applicant's claim. The company appealed.
34. On 23 April 2002 the Vinnitsa Regional Court of Appeal quashed the judgment of 26 December 2001 and remitted the case for a fresh consideration. On 19 August 2002 the Supreme Court dismissed the applicant's appeal in cassation against the ruling of 23 April 2002.
35. On an unspecified date the Fund joined the proceedings as a third party.
36. Between 20 August 2002 and 14 May 2009 the District Court scheduled some fifty-four hearings. Three of them were adjourned due to absence of the Fund's representative. Six hearings were adjourned since the applicant or his representative failed to appear or at their request. Two hearings were adjourned as the judge was on holiday, six since he was involved in other proceedings and ten on account of the judge's illness. Sixteen hearings were adjourned since the company's representative failed to appear or at his request.
37. On 15 May 2009 the District Court left the applicant's claim without consideration. The applicant in his submissions stated that he had learned about that decision from the Government's observations sent to him in July 2009.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101910
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: LIEPAJNIEKS v. LATVIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Fricis Liepājnieks, is a Latvian national who was born in 1927 and lives in Rīga. He was represented before the Court by Ms D. Rone, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.
2. The creation of the Republic of Latvia was proclaimed on 18 November 1918. Different types of property rights were recognised, including the ownership of residential buildings.
3. A large-scale entry of the Soviet army into Latvia took place in June 1940. After the lawful government of the country was overthrown and Soviet rule was imposed by force (see, mutatis mutandis, Kolk and Kislyiy v. Estonia (dec.), nos. 23052/04 and 24018/04, ECHR 2006I), the nationalisation of property began. Property was expropriated without any compensation (see paragraph 35 below).
4. The building located at 129 Ģertrūdes street was amongst the buildings nationalised. From 1969 the applicant lived in an apartment located in that building on the basis of a lease agreement concluded on 19 April 1969 (“the 1969 lease”) with the Housing Department of the Moscow District of Rīga City (Rīgas pilsētas Maskavas rajona namu pārvalde). The agreement was a pre-typed standard text, not indicating the amount of rent payable. It entitled the applicant and his family members to rent the apartment for an indefinite period of time. Under Soviet law the amount of rent payable was not set by the parties to the lease but by the State’s administrative authorities. By a decision of 12 January 1995, the building located at 129 Ģertrūdes street was returned to its former owner. The applicant continued to live in the apartment located in that building until 4 August 2008, when he moved out.
5. On 4 May 1990 the Supreme Council, the legislative assembly elected on 18 March in the same year, adopted the Declaration on the Restoration of Independence of the Republic of Latvia. On 21 August 1991 the Supreme Council passed the Constitutional Law on the Statehood of the Republic of Latvia, proclaiming full independence with immediate effect (see Kononov v. Latvia [GC], no. 36376/04, §§ 27-28, 17 May 2010).
6. On 30 October 1991 the Supreme Council adopted the Law on Denationalisation of Real Estate, whereby the decrees on nationalisation issued after 1940 were declared null and void. The nationalised buildings were to be returned to their former owners or their heirs. The former lease agreements concluded with tenants in those buildings under Soviet law continued to be binding in their entirety until 1994, and from then on only in so far as the term of lease was concerned. The amount of rent payable was determined by the State. During the first seven years after restoration of their property rights, owners could not evict tenants without allocating them another place of residence. After that period eviction could take place in accordance with the Law on Residential Tenancies. On the same date – 30 October 1991 – the Supreme Council passed the Law on the Return of Real Estate to the Legitimate Owners.
7. On 30 October 1991 the Decision on Entry into Force of these two laws (“the Supreme Council’s Decision”) was enacted. It required the Council of Ministers to draft a law on compensation and submit it to the Supreme Council by 1 December 1991, and to draft and stipulate regulations for credit arrangements for tenants. In 1992 the Supreme Council and its respective committees examined a draft law “On Restitution of Property and Compensation”, but that law was never enacted. The draft did not include any reference to tenants’ right to receive compensation. On 5 November 1992 the Economic Committee of the Supreme Council (Augstākās padomes Ekonomikas komisija) rejected the draft because it was necessary to specify its sphere of application. It also had to be aligned with the provisions of the Law on Privatisation Certificates and the Civil Law. The Ministry of Economic Reforms was instructed to improve the draft within two weeks and re-submit it to the Supreme Council. It appears that this task was never completed. It should be noted, however, that on 1 June 2006 six members of the Latvian Parliament (Saeima) submitted for examination a draft law on compensation for tenants. On 12 October 2006 that draft was accepted at first reading in one of the last sessions of the Parliament before the expiry of its term. The draft law was never reviewed at second and third reading and was therefore never passed.
8. Another part of the property reform in the 1990s was the privatisation of State and municipally owned property. Those who resided in such buildings took this opportunity to acquire property rights over apartments located in them through privatisation.
9. In accordance with the Law on Residential Tenancies, enacted on 16 February 1993, the amount of rent payable by tenants in denationalised buildings or those returned to their former owners was to be established on the basis of a written agreement, but could not exceed the maximum amount determined by the State. That law was amended on several occasions. On 8 March 2006 the Constitutional Court declared the statutory rent limits unconstitutional and declared them void as of 1 January 2007.
10. From 1 January 2007 onwards owners were entitled to increase rent by serving notice on their tenants of their intention to do so. Tenants could challenge it by lodging a claim with the civil courts. The courts would then decide whether the amount of rent was warranted and adequate; owners were accordingly required to justify the amount requested. Evictions could not take place without a court order, and tenants were entitled to receive advance notice, and to the opportunity to be heard, before being evicted.
11. On 4 August 2008 the applicant moved out of the apartment allegedly because he could not afford to pay the rent. He did not initiate proceedings in the civil courts over the amount of the rent. Nor was he subject to eviction proceedings. According to the information provided by the Government, since 4 August 2008 the applicant is residing in another dwelling, namely, a house entered into the Land Register as his spouse’s property in part (50%) (1/2 domājamās daļas). The applicant did not contest this.
12. On 11 August 2006 the applicant lodged a civil claim with the Rīga Regional Court (Rīgas Apgabaltiesa) against the State represented by the Cabinet of Ministers (Ministru kabinets) and against the Rīga City Council (Rīgas dome). He requested the court to compel the Cabinet of Ministers to comply with the Supreme Council’s Decision in his case and to allocate him an equivalent apartment or grant compensation to acquire such an apartment in the amount of Latvian lati (LVL) 31,500 (approximately EUR 45,000).
13. On 14 August 2006 the regional court dismissed the applicant’s claim without examining it on its merits. The court found that the applicant had lodged his complaint against the State represented by the Cabinet of Ministers and against the Rīga City Council and, in substance, had requested that an action of executive power (action or omission of a public authority) be subjected to judiciary control. According to the court, such claims fell within the jurisdiction of the first-instance administrative district court; there was no dispute over a civil right. The applicant submitted an ancillary complaint against that decision.
14. On 16 October 2006 the Civil Chamber of the Supreme Court (Augstākās tiesas Civillietu tiesu palāta) quashed the decision of the regional court and issued a new ruling. The applicant’s claim was rejected on the ground that it was not subject to examination by a court. The court held, inter alia:
“... [the applicant] in fact requests the allocation of an apartment but such issues are to be resolved in local municipalities – in the present case the Rīga City Council, in accordance with the Law on State and Municipal Assistance Concerning Apartment Issues...
[The applicant’s] claim would be subject to examination by an administrative court if the Rīga City Council were to adopt a decision unfavourable to him, in which case there would be grounds for appeal against the decision under the provisions of the Law of Administrative Procedure.
Thus, administrative proceedings should be initiated before the administrative body concerned, whose decision can be appealed against [in a court] in accordance with the provisions of the Law of Administrative Procedure”.
The applicant submitted an ancillary complaint against that decision.
15. On 8 December 2006 the Senate of the Supreme Court (Augstākās tiesas Senāts) upheld the decision of its Civil Chamber. The court stated that:
“The allocation of a place of residence and alternative claims for compensation do not fall within the competence of a court....
In his claim, [the applicant] has linked his considerations with the Supreme Council’s Decision of 30 October 1991. But he has not taken into account that the legal provision [contained therein] does not provide for the existence, change or termination of a substantive legal relationship between the applicant, on the one hand, and the Cabinet of Ministers [or] the Rīga City Council [on the other hand]...
[The applicant’s] claim relates to issues falling outside the competence of the judiciary”.
16. On 16 January 2007 the applicant lodged a claim with the Administrative District Court (Administratīvā rajona tiesa) against the State represented by the Cabinet of Ministers and against the Rīga City Council. He submitted that the Cabinet of Ministers and the Rīga City Council were responsible for the fact that the apartment he was renting had been handed over to another person and that his right to lease had been breached; he had suffered non-pecuniary and pecuniary damage. He requested the court to compel the Cabinet of Ministers and the Rīga City Council to comply with the Supreme Council’s Decision and other legislative enactments and grant him compensation in the amount of LVL 31,500 to acquire an apartment of the same standard and LVL 50,000 for non-pecuniary damage. He also complained that the binding regulations of the Rīga City Council under which eligibility for registration to receive offers of lets of apartments owned by the municipality depended on monthly income were discriminatory.
17. The applicant’s claim was examined in the district court, the regional court and the Supreme Court, which adopted a final decision on 8 June 2007. The Administrative Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Administratīvo lietu departaments) examined separately each branch of the applicant’s claim.
18. First of all, the Senate considered whether the applicant had a right to claim compensation for an apartment of the same standard under domestic law. The Senate established that a draft law on compensation referred to in section 4, paragraph 2 of the Supreme Council’s Decision had not been enacted, and that consideration therefore had to be given to whether tenants’ right to compensation derived from the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation of Real Estate in the Republic of Latvia. The first of those laws did not provide for such compensation rights, but for social rights to retain the right to lease (section 12), to statutory rent limits (section13) and to have another apartment allocated in the event of eviction (sections 15 – 17). Under the second law only former owners or their legal heirs, not tenants, were entitled to compensation. The Senate concluded that the applicant did not have a subjective right to compensation in order to acquire an apartment of the same standard on the basis of the above-mentioned laws.
19. The Senate then proceeded to examine whether such a right to compensation could be derived from the Law on Administrative Procedure, since under section 92 of that law every person has a right to request adequate compensation for pecuniary or non-pecuniary damage suffered as a result of an administrative act (administratīvais akts) or action of a public authority (faktiskā rīcība). The Senate considered whether the elements of an action of a public authority were found in the relevant actions or omissions of the State authorities (whether the person had a right to such act and whether, by such act, his or her subjective rights or interests might have been affected).
20. Since the applicant did not have a right under domestic law to privatise the apartment in the denationalised building, he could not request the authorities to ensure such rights or to ensure that they were protected during the process of denationalisation of the building where his rented apartment was located. Therefore, the denationalisation of the building was not an action of a public authority in so far as the applicant was concerned (within the meaning of the Law of Administrative Procedure) and was not subject to administrative proceedings.
21. Taking into account that the drafting and enactment of laws was the prerogative of the State’s legislative power, the alleged omission of the Cabinet of Ministers to draft a law on compensation was not an action of a public authority (within the meaning of the Law of Administrative Procedure) and, thus, was not subject to administrative proceedings.
22. As to the applicant’s running a risk of having to pay higher rent and losing his home, the Senate noted that the applicant was dissatisfied with the implementation of the State’s policy, which is not an action of a public authority and therefore cannot be reviewed in administrative proceedings.
23. Finally, as concerns the allegedly discriminatory regulations of the Rīga City Council, the Senate considered that examination of such a claim fell within the competence of the Constitutional Court.
24. Accordingly, the Senate dismissed the claim as inadmissible on the grounds that it was not subject to administrative proceedings and that the applicant did not have a right of claim.
25. The Law on Denationalisation of Real Estate (likums “Par namīpašumu denacionalizāciju Latvijas Republikā”) was adopted on 30 October 1991 and took effect on 1 January 1992 (see paragraph 29 below). In its relevant part it provided as follows:
“To repeal the following:
The Decree on Nationalisation of Large Buildings issued by the Presidium of the Supreme Council of the Latvian SSR on 28 October 1940 and all legislative enactments issued under that decree;
...
All decrees issued by the Presidium of the Supreme Council of the Latvian SSR on nationalisation of buildings owned by individual natural persons.”
“Lease or rental agreements concluded by the previous manager shall be binding on the owners of denationalised buildings.
Amendments to lease or rental agreements shall be made only with the approval of the municipal authorities and under a procedure prescribed by law.”
“Rent in denationalised buildings or apartments shall not exceed the amount established by the Council of Ministers.”
“Eviction from denationalised buildings shall take place only under the Latvian Apartment Code, but for the first seven years after restoration of property rights, in cases when the owner requests eviction under section 147 or section 149, paragraph 1, only if an equivalent place of residence is offered [to the tenants].”
26. On 16 January 1994 amendments to the Law on Denationalisation of Real Estate entered into force, whereby section 15 was amended to refer to the relevant provisions of the newly adopted Law on Residential Tenancies: section 29, parts 4 and 5. On 7 April 1994 another set of amendments to the law entered into force (“the 1994 amendments”). The relevant provisions, following those amendments, read as follows:
“The term of lease or rent concluded by the previous manager shall be binding on the owners of denationalised buildings unless otherwise provided in this law.”
“The amount of rent [determined] without their consent for tenants who had concluded agreements with previous managers of denationalised buildings shall not exceed the amount established by the Cabinet of Ministers.”
27. The Law on the Return of Real Estate to the Legitimate Owners (likums “Par namīpašumu atdošanu likumīgajiem īpašniekiem”) was passed on 30 October 1991 and took effect on 20 November 1991. In its relevant part it provided as follows:
“The property rights of the former owners or their legal heirs, irrespective of their current nationality, of buildings arbitrarily taken over by the State or legal entities in the 1940s to 1980s, without compensation and with complete disregard for their ownership rights, shall hereby be restored.”
“Monetary disputes between the former manager and the owner shall be resolved under the Latvian Civil Code.”
“Lease or rental agreements concluded by the previous manager shall be binding on the owners of returned buildings.
Amendments to lease or rental agreements shall be made only with the approval of the municipal authorities and under a procedure prescribed by law.”
“Rent in returned buildings or apartments shall not exceed the amount established by the Council of Ministers.”
“Eviction from returned buildings shall take place only under the Latvian Apartment Code, but for the first seven years after restoration of property rights, in cases when the owner requests eviction under section 147 or section 149, paragraph 1, only if an equivalent place of residence is offered [to the tenants].”
28. On 16 January 1994 amendments to the Law on the Return of Real Estate to the Legitimate Owners entered into force, whereby section 15 was amended to refer to the relevant provisions of the newly adopted Law on Residential Tenancies: section 29, parts 4 and 5. On 7 April 1994 another set of amendments to the law entered into force (“the 1994 amendments”). The relevant provisions of the Law on the Return of Real Estate to the Legitimate Owners then read as follows:
“The term of lease or rent concluded by the previous manager shall be binding on the owners of returned buildings unless otherwise provided in this law.”
“The amount of rent [determined] without their consent for tenants who had concluded agreements with previous managers of returned buildings shall not exceed the amount established by the Cabinet of Ministers.”
29. On 30 October 1991 the Supreme Council adopted the Decision on Entry into Force of the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation of Real Estate (Lēmums “Par Latvijas Republikas likumu “Par namīpašumu atdošanu likumīgajiem īpašniekiem” un “Par namīpašumu denacionalizāciju Latvijas Republikā” spēkā stāšanās kārtību”):
“The Supreme Council of the Republic of Latvia decides:
1. [that] Until the buildings are returned to their legitimate owners it shall be prohibited to sell [or change the ownership in any other way], reconstruct, rebuild and demolish these buildings as well as to have new tenants located in the residential and non-residential premises which have become available. This prohibition shall enter into and remain in force from the date of this decision until the expiry of the statute of limitations for submitting a claim or an application.
2. [to] Stipulate that the seven-year period during which, after restoration of property rights, tenants cannot be evicted without having been allocated an equivalent residence, as prescribed by the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation of Real Estate in the Republic of Latvia, applies also in cases when a judgment on a tenant’s eviction pursuant to sections 147 and 149 of the Latvian Apartment Code has not yet been enforced on the date of this decision.
This article does not apply when tenants have been placed in a building after a previous owner has submitted a claim to have his property rights restored. In such cases the time-limit shall be one year from the date of restoration of property rights.
3. [to] Stipulate that the Law on Denationalisation of Real Estate in the Republic of Latvia shall enter into effect on 1 January 1992.
4. [to] Obligate the Council of Ministers:
1) to submit to the Supreme Council a draft law on amendments to existing legislation with regard to the enactment of the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation in the Republic of Latvia by 1 January 1992;
2) to draft and submit to the Supreme Council a draft Law on Compensation by 1 December 1991;
3) to draft and adopt the Regulations on Denationalisation in the Republic of Latvia and [a model] denationalisation certificate by 10 December 1991;
4) to amend the government’s legislative acts on apportionment and change of residential property with regard to the entry into effect of the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation in the Republic of Latvia by 10 December 1991;
5) to draft and stipulate simplified regulations on credit arrangements for tenants residing in denationalised buildings or houses that have been returned to their legitimate owners if those tenants were registered to receive an equivalent residence because of the denationalisation of that property and have expressed the wish to build an individual house for residential purposes;
6) to harmonise the government’s decisions on the material rights of oppressed and deported nationals with the Laws on the Return of Real Estate to the Legitimate Owners and on Denationalisation in the Republic of Latvia by 1 December 1991.
5. [to] Obligate parish, city and district authorities:
1) to identify the buildings taken from previous owners in their territory;
2) to provide the legitimate owners who have obtained a residency permit in Latvia in connection with the denationalisation or return of the buildings to them, with land to build individual houses for residential purposes;
3) in dealing with questions of allocation of equivalent residential property or land to tenants residing in denationalised buildings, primarily to ensure that previous owners residing in their territory can return to their properties;
4) to promote exchanges of apartments between owners of denationalised buildings and houses that have been returned to their legitimate owners [on the one hand] and tenants of such buildings [on the other hand], if as a result of such an exchange the owner takes up residence in his building.
6. [to obligate] The Ministry of Finance to draft and submit to the Presidium of the Supreme Council by 10 December 1991 a draft enactment on methods of compensation for denationalised buildings and calculation of the buildings’ value.
7. [to] Obligate the Legislation Committee of the Supreme Council to submit the part of Latvian Civil Law concerning inheritance for consideration, and amendments and additions to the parts of the civil code on property law and obligations law for the third reading, by 30 November 1991.”
30. On 16 February 1993 the Law on Residential Tenancies was adopted (Likums “Par dzīvojamo telpu īri”); it entered into force on 1 April 1993. Over time, it has been amended on several occasions. The relevant provisions were spelled out in the Constitutional Court’s judgment of 8 March 2006 (see paragraph 35 below).
31. For the present purposes the 2001 and 2004 amendments to that law are of importance. They were adopted on 5 July 2001 and 20 December 2004 and took effect on 1 January 2002 and 1 January 2005 respectively. With the 2001 amendments the transitional provisions stipulated the maximum amount of rent payable per square metre (the statutory rent limits) if the owners of denationalised or returned buildings could not reach an agreement with their tenants. The amount was fixed at 0.24 Latvian lati (LVL) in 2002, LVL 0.36 in 2003 and LVL 0.48 in 2004. With the 2004 amendments the statutory rent limits were set for three more years – LVL 0.60 in 2005, LVL 0.72 in 2006 and LVL 0.84 in 2007. These statutory rent limits were abrogated by the Constitutional Court with effect on 1 January 2007.
32. Following the 2001 amendments, the sections relating to dispute resolution in the event of eviction read as follows:
“The landlord may terminate the lease and evict a tenant together with family members and other persons without allocating them another place of residence in the following situations:
1) if the tenant does not pay rent for more than three months while continuing to have the use of the residence in accordance with the lease agreement and relevant legal provisions, ...
Before bringing an action in court, the landlord shall give the tenant at least one month’s notice of termination of the lease. ...”
“Disputes arising from residential tenancy relations shall be adjudicated in a court.”
33. With the 2004 amendments, a new Article was introduced in the transitional provisions:
“14. The Cabinet of Ministers shall develop by 1 March 2005 and implement by 1 July 2005 a State and local government support programme and compensation mechanism for tenants renting residential accommodation in a denationalised residential building or one which has been returned to a legal owner and who have been using such accommodation up to the time of restoration of the property rights to the previous owners or their heirs.”
34. The relevant provisions of this law have been quoted elsewhere (see Grišankova and Grišankovs v. Latvia (dec.), no. 36117/02, ECHR 2003II (extracts)).
35. In case no. 2005-16-1 the Constitutional Court examined individual constitutional complaints lodged by the owners of denationalised buildings. They complained that the 2004 amendments in so far as they related to the statutory rent limits were unconstitutional. In its judgment of 8 March 2006 the court declared that provision unconstitutional and null and void as of 1 January 2007. The judgment, in its relevant part, reads as follows:
“1. In 1940, after the establishment of Soviet occupation, the nationalisation of private property began in Latvia. To implement it, on October 28 the Presidium of the Latvian SSR Supreme Council passed a Decree “On Nationalisation of Large Buildings’’. Under that Decree those buildings, the “total useful area” of which exceeded 220 square metres in Riga and other major cities of Latvia and 170 square metres in smaller towns, were nationalised. In addition, all those buildings in which State institutions were located, as well as houses whose owners did not reside in Latvia and buildings having historical or artistic value were nationalised. Over the following decades the Soviet power continued divesting owners of their properties. ...
On 30 October 1991 the Republic of Latvia Supreme Council adopted the Law “On the Denationalisation of Buildings in the Republic of Latvia”, by which the above Decree and the normative acts issued in accordance with it were declared null and void. On the same day the Law “On the Return of Real Estate to the Legitimate Owners” was passed. Its Section 1 stipulates that “The property rights of the former owners or their legal heirs, irrespective of their current nationality, of buildings arbitrarily taken over by the State or legal entities in the 1940s to 1980s, without compensation and with complete disregard for their ownership rights, shall hereby be restored”. In the ensuing years, on the basis of the above laws, buildings were denationalised and returned to their legal owners. Many of those properties still had tenants living in them who had concluded rental contracts prior to the restoration of property rights. ...
2. ... Section 11, paragraph 1 of the Law on Residential Tenancies [enacted in 1993] provided that “rent shall be determined on the basis of an agreement between the parties, but it shall not exceed the maximum amount established by the government”. In their turn the 1997 amendments stipulated that “rent shall be determined on the basis of a written agreement between the parties, except in the cases specified in the second, third and fourth paragraphs of this section”.
Section 11, paragraph 4 provided: “In denationalised buildings and buildings that have been returned under the Law on the Return of Real Estate to the Legitimate Owners, in respect of tenants who were renting the apartments at the time of the denationalisation (or return to owners) the rent shall be determined on the basis of a written agreement and in accordance with the Cabinet Regulations on the procedure for calculating rent.
On 1 January 2002 amendments to the Law on Residential Tenancy took effect, incorporating the provision on statutory rent limits in denationalised or returned buildings into the Transitional Provisions of that Law. Article 4 of the Provisions provides that if the tenant was resident in the building before its restoration to the rightful owner, the rent shall be determined by agreement between the parties. If no agreement is reached, then the rent shall be determined by the owner, but it shall not exceed LVL 0.24 per square metre of rented area a month in 2002, LVL 0.36 in 2003 and LVL 0.48 in 2004.
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4. On 20 December 2004 amendments to the Law on Residential Tenancies were adopted. They took effect on 1 January 2005...
5.1. The Parliament, in its reply, stressed that the contested provision had been enacted in order to balance the interests of the owners of denationalised apartment buildings, the State, the municipalities and the tenants of such buildings with respect to the statutory rent limits.
Referring to the judgment of the European Court of Human Rights in the case of ... (Hutten-Czapska v. Poland [2005] ECHR 119), the Parliament indicates that the imposition of restrictions in respect of rent has a legitimate aim – to secure the social protection of indigent tenants having regard to the continuing lack of residential accommodation and the existing concern at demands for unjustifiably high rent. Furthermore, this legitimate aim has to be examined in a broader context since the housing problem creates infringements of other human rights, such as social security and children’s rights. ...
6.5. According to Professor K. Torgāns, even if the impugned provisions had not been adopted, the owners of the apartments would not be free to fix any rent they wished as section 13 of the Law on Residential Tenancies establishes agreement between the tenant and the owner as a general principle, as well as the settling of disputes in court. ...
7.1. [the Parliament’s representative] stated that neither the State nor the municipalities possessed sufficient financial means to offer tenants residing in denationalised buildings or buildings returned to their legitimate owners adequate compensation... .
8. Denationalisation and return of buildings to the owners after the restoration of Latvia’s independence was carried out in the context of the property reform, which also regulated legal relations between the owners of the buildings and persons who had used apartments in the denationalised or returned buildings prior to the restoration of ownership rights (henceforth – “pre-reform tenants”).
When analysing issues connected with one part of the property reform – land reform – the Constitutional Court has established that “Latvia is not responsible for violations of human rights, including nationalisation of property, perpetrated by the occupying power. The Republic of Latvia has no possibility and no duty to fully compensate all losses inflicted on persons by the occupying power” (Judgment of the Constitutional Court in case no. 2002-12-01, 25 March 2003).
Simultaneously the Constitutional Court ruled that “When restoring the legal system of independent Latvia, the legislator had a duty to take measures to restore fairness and redress the losses inflicted by the previous regime, by observing the principles of the rule of law. At the same time the legislator, when choosing the means for the land reform, had to strike a fair balance between the conflicting interests of various members of society” (ibid.).
The legislator must also observe the principles of rule of law when implementing other aspects of the property reform, including denationalising and returning buildings to their rightful owners.
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10. Article 105 of the Constitution (Satversme) provides: “Everyone has the right to own property. Property shall not be used against the public interest. Property rights may be restricted only in accordance with the law”. In conformity with Article 89 of the Constitution “the State shall recognise and protect fundamental human rights in accordance with this Constitution, the law and international agreements binding upon Latvia”. ...
11.1. In accordance with the former wording of Article 4 of the Transitional Provisions, after 1 January 2005 the rent for an apartment shall be determined by written agreement between the tenant and the owner, and shall include a portion of the building’s management expenses ... but if no agreement has been reached, it shall be determined by the owner. In their turn, the 2004 amendments... not only set the statutory rent limits for 2005, 2006 and 2007 but also stipulate that in cases where rent is not determined by a written agreement between the parties, the owner shall determine it (including a portion of the building’s management expenses proportional to the area rented, and profit). ...
11.2. ... K. Torgāns points out that section 13 of the Law on Residential Tenancies provides for a written agreement between the tenant and the owner and the settlement of disputes in court as a general rule. If the statutory rent limits had not been extended until 2007, the number of disputes to be reviewed in the courts would have increased and the outcome would depend on the assessment of the reasons and financial justification for the rent increase. ...
11.3. During the hearing the applicants expressed their view that if the legislator had not adopted the 2004 amendments, they would have been able to agree on a reasonable rent, and if no agreement with the tenant could be reached, the dispute would have had to be reviewed in court.
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15.3. ... As has been found before, courts of general jurisdiction could review the reasonableness of the rents charged by landlords. The Parliament’s submission that the 2004 amendments are necessary to avert large-scale evictions of tenants is not substantiated. Even if they had not been adopted the relevant provisions of section 13 of the Laws on Residential Properties, the Denationalisation of Real Estate and the Return of Real Estate to the Legitimate Owners, as well as Cabinet Regulation no. 45 (2002) on methods for the calculation of the management expenses included in the rent for residential space would be binding on the owner. Even though there have been attempts to charge unreasonably high rent, there is no basis for concern as the owner alone cannot fix the rent without the tenant’s agreement. ...
17.2. ... The lease agreements had been drawn up with the tenants in the days when the rent was determined administratively and not by agreement between the parties...
17.3. ... Thus the legislator considered the fixing of rents by an administrative procedure as a temporary or transitional measure characteristic of property reform. In the above circumstances the State took on responsibility for regulating relations between owners and tenants by setting statutory rent limits. The duty of the State when setting those limits was to strike a fair balance between the rights of the owners and the tenants while duly observing the principles of the rule of law and the fundamental rights enshrined in the Constitution.
17.4. At the beginning of the property reform the legislator had placed several restrictions on landlords which followed on from the commitments made by the former managers of the buildings. At the same time the law gave reason to believe that these restrictions would eventually be lifted. ... The law provided for a seven-year period during which evicting tenants without allocating them another place of residence was prohibited.
Owners could legitimately expect that the imposed administrative restrictions, which were necessary at the beginning of the reform, would in due time be abolished in a reasonable way. ... Owners could legitimately expect that the State would, in due course, propose a reasonable solution to the problem.
17.5. ... Neither at the beginning of the property reform, nor during it, did the law anticipate that the tenants would have a special status different from that of [ordinary] tenants once the property reform process had been completed. Initially they were guaranteed the right to lease on the same terms as any other tenants. When the legislature decided to liberalise rents in respect of other tenants, it was made clear that the status of pre-reform tenants regarding rental agreements was temporary. ...
Thus, during the property reform pre-reform tenants could not legitimately expect that after the end of the reform process they would continue to have a special status different from other tenants and be able to live in the same apartment forever, paying a considerably lower rent than other persons living in comparable buildings.
17.6. Pre-reform tenants could, however, legitimately expect that the State would protect their rights and, within reasonable limits, provide a gradual transition from rent determined by the authorities to owner-and-tenant relations that would satisfy the interests of both the pre-reform tenants and their landlords.
It has to be acknowledged that until 2005 no significant measures were taken to provide support for tenants. ...
That the State for many years was not interested in normalising the relationships between the owners of denationalised or returned buildings and their tenants is shown not only by the fact that no financial means were allocated for the implementation of measures during the transitional period but also by the lack of information on the scope of the problem. ...
The measures that were undertaken prior to 1 January 2005 were evidently not sufficient to protect the rights of pre-reform tenants. ...
Thus the State, by its inaction, has infringed the pre-reform tenants’ right to legal certainty, namely the certainty that they will be able to solve their housing issues in the long term either by concluding reasonable agreements with the owners of the denationalised or returned buildings or by finding another permanent solution.
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However, the said inaction did not provide pre-reform tenants with legal certainty in respect of any specific rights the protection of which would have the effect of restricting the fundamental rights of owners as stated in Article 105 of the Constitution....”
36. The instrument of ratification of the Convention and its Protocols deposited by the Government on 27 June 1997 contains the following reservation:
“In accordance with Article 64 [now Article 57] of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the Republic of Latvia declares that the provisions of Article 1 of the First Protocol shall not apply to the laws on property reform which regulate the restoration or compensation to the former owners or their legal heirs of property nationalised, confiscated, collectivised or otherwise unlawfully expropriated during the period of Soviet annexation; and privatisation of collectivised agricultural enterprises, collective fisheries and of State and local self-government owned property.
The reservation concerns the Law On Land Reform in the Republic of Latvia Rural Regions (published in Zinotajs [The Bulletin] 1990, No. 49; 1991, No. 41; 1992, No. 6/7; 1992, No. 11/12; 1993, No. 18/19; Latvijas Vestnesis [The Latvian Herald] 1994, No. 137), Law On Privatisation of Agricultural Enterprises and Collective Fisheries (Zinotajs 1991, No. 31; 1992, No. 40/41; 1993, No. 5/6; Latvijas Vestnesis 1995, No. 90; 1996, No. 177), Law On Land Reform in the Republic of Latvia Cities (Zinotajs 1991, No. 49/50; Latvijas Vestnesis 1994, No. 47; 1994, No. 145; 1995, No. 169; 1997, No. 126/127), Law On Land Privatisation in Rural Regions (Zinotajs 1992, No. 32; 1993, No. 18/19; Latvijas Vestnesis 1993, No. 130; 1994, No. 148; 1995, No. 162; 1996, No. 111; 1996, No. 225), Law On Privatisation of Property in Agroservice Enterprises (Zinotajs 1993, No. 14), Law On Privatisation Certificates (Latvijas Vestnesis 1995, No. 52), Law On the Privatisation of Objects of State and Municipal Property (Latvijas Vestnesis 1994, No. 27; 1994, No. 77; 1996, No. 192; 1997, No. 16/17/18/19/20/21), Law On Privatisation of Co-operative Apartments (Zinotajs 1991, No. 51; Latvijas Vestnesis 1995, No. 135), Law On the Privatisation of State and Local Self-Government Apartment Houses (Latvijas Vestnesis 1995, No. 103; 1996, No. 149; 1996, No. 223), Law On Denationalisation of Real Estate in the Republic of Latvia (1991, No. 46; Latvijas Vestnesis 1994, No. 42; 1994, No. 90; 1995, No. 137; 1996, No. 219/220), Law On the Return of Real Estate to the Legitimate Owners (Zinotajs 1991, No. 46; Latvijas Vestnesis 1994, No. 42; 1996, No. 97) and their wording being in force at the moment the Law On Ratification entered into force.”