ITEMID: 001-98827
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF LELAS v. CROATIA
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant lives in Vrlika.
5. He is a serviceman employed by the Ministry of Defence (Ministarstvo obrane Republike Hrvatske). In 1996, 1997 and 1998, as a member of the 40th Engineering Brigade of the Croatian Army, the applicant occasionally participated in demining operations in the newly liberated territories in Croatia.
6. On the basis of the Decision of the Minister of Defence of 18 September 1995 (see paragraph 36 below), he was entitled to a special daily allowance for such work.
7. Since the allowances had not been paid to him, on 21 May 2002 the applicant brought a civil action against the State in the Knin Municipal Court (Općinski sud u Kninu), seeking payment of the unpaid allowances. He sought in total the sum of 16,142.83 Croatian kunas (HRK) together with accrued statutory default interest.
8. The State responded that his action was time-barred because the three-year limitation period for employment-related claims had expired.
9. In reply, the applicant argued that on several occasions he had asked his commanding officer why the allowances had not been paid. His commanding officer had made enquiries of his superior, who had then contacted the General Staff of the Croatian Armed Forces (Glavni stožer Oružanih snaga Republike Hrvatske). Eventually, the applicant had been informed through his commanding officer that his claims were not being disputed and that they would be paid once the funds for that purpose had been allocated in the State budget. Relying on that information, the applicant argued that the State had acknowledged the debt within the meaning of section 387 of the Obligations Act and that the running of the statutory limitation period had thus been interrupted.
10. The court heard the applicant's commanding officer B.B. and the head of the Split Regional Finance Department of the Ministry of Defence, Brigadier I.P.
11. B.B., who had been the commander of the 40th Engineering Brigade between January 1996 and April 1999, testified that lists of servicemen who carried out demining work, together with the number of days worked and the corresponding amount of allowances, had been submitted to him by platoon commanders within the brigade. As the commander of the unit, he had signed them after checking them for accuracy and had then submitted them for certification to the commander of the 3rd Operational Zone. After the commander of the 3rd Operational Zone had signed the lists, they had been submitted for payment to the Regional Finance Department in Split. He had informed the applicant that the lists had been submitted for payment. When the allowances were not paid, the applicant and other members of the unit had approached him, as their commanding officer and the only person they were authorised to approach under internal regulations, asking him when the payment would be made. In their name he had then contacted the commander of the 3rd Operational Zone. Each time he had been informed that the right to receive payment and its amount were not being disputed and that payment would follow after the funds had been allocated for that purpose. Each time he had transmitted that information to the members of his unit, including the applicant.
12. I.P. had since 1996 been the head of the Split Regional Finance Department of the Ministry of Defence, which was in charge of financial matters for the 3rd Operational Zone. He testified that he had been aware that members of the 40th Engineering Brigade had been carrying out demining work up to April 1998 and that the commander of the 3rd Operational Zone had been submitting lists of servicemen who carried out demining work for payment. Since payment was not forthcoming when the allowances fell due, the General Staff of the Croatian Armed Forces had informed the relevant financial departments that the allowances had not been paid because no funds had been allocated in the budget for that purpose, whereas no instructions had been given to dispute the right to receive allowances or their amount.
13. On 3 March 2003 the Knin Municipal Court ruled in favour of the applicant and ordered the State to pay him the allowances he sought. The relevant part of that judgment read as follows:
“[It] is undisputed that ... when each instalment became due, up to 21 February 2002, the plaintiff asked his commanding officer when the payment would be made, because according to the internal organisation of [the Ministry of Defence] that was the only person he was authorised to approach, and that [his] commanding officer took this up on behalf of the plaintiff with the Headquarters of the 3rd Operational Zone and that the commander of the 3rd Operational Zone informed [the plaintiff's] commanding officer that the right to receive payment and its amount were not in dispute, and that payment would follow after the funds had been allocated in the budget, because currently there were none; the commanding officer passed this information on to the plaintiff.
The foregoing, in the view of this court, represents acknowledgement of the debt within the meaning of section 387 of the Obligations Act, because ... the plaintiff was informed by the person authorised to act on behalf of the respondent that the right to receive payment and its amount were not in dispute and that payment would follow once funds had been allocated in the budget.”
14. Following an appeal by the State, on 22 April 2003 the Šibenik County Court (Županijski sud u Šibeniku) quashed the first-instance judgment and remitted the case. It held that the first-instance court had failed to establish: (a) who in this case was the person authorised to acknowledge the debt on behalf of the Ministry of Defence, and (b) whether the signed and certified lists of the members of the applicant's unit who had carried out demining work, indicating the number of days on which they had done such work and the corresponding amount of daily allowances, processed by the Ministry's Finance Department, in fact constituted requests for payment and therefore an indirect acknowledgment of the debt.
15. In the resumed proceedings, the Knin Municipal Court again heard the head of the Split Regional Finance Department of the Ministry of Defence, Brigadier I.P., who testified that the certified lists of servicemen who had carried out demining work constituted requests for payment of the allowances. He further stated that after receiving the lists the Split Regional Finance Department had checked them for accuracy and submitted them together with the requisite form, which in fact constituted a request for payment, to the Central Finance Department of the Ministry of Defence in Zagreb. According to I.P., the Central Finance Department had been authorised to check the lists and could have returned them to the Regional Finance Department if the request for payment of allowances or their amount had been invalid, which they had not done. After the Split Regional Finance Department had submitted the lists and request for payment, the head of the Central Finance Department had informed him that payment would follow once funds had been allocated in the budget for that purpose. Had there been funds, no further action would have been required for the amount requested to be transferred to the applicant's bank account.
16. In these resumed proceedings, the respondent argued for the first time that, in accordance with the internal regulations of the Ministry of Defence, the person authorised to acknowledge the debt on behalf of the Ministry was the head of its Finance Department before a court action had been brought, and afterwards the head of the Legal Department.
17. On 18 June 2003 the Municipal Court again ruled in favour of the plaintiff. The relevant part of that judgment read as follows:
“The Split Regional Finance Department certified the above-mentioned payment lists ... by first checking that the payment and its amount were justified, and then sent it, together with the [requisite] form, namely the payment request form, to the Central Finance Department ... in Zagreb. [That Department], by not returning the lists and the request for payment to the Split Regional Finance Department, accepted them as justified and well-founded. [The Central Finance Department] had to pay the amounts [sought] because the Split Regional Finance Department did not have ready money. After receiving those [lists and] the request for payment, the Central Finance Department had informed the Split Department that payment would follow once funds had been allocated in the State budget, of which the plaintiff was notified and which was explained to him by his commanding officer between the [time the instalments] became due and 21 February 2002.
The foregoing, in view of this court, represents acknowledgement of the debt because, by certifying the payment lists with the payment request form and informing the plaintiff thereof as well as of the fact that payment would follow once funds had been allocated in the State budget, the plaintiff, as the creditor, was informed by the respondent, as the debtor, in a clear and unequivocal manner, that the claim at issue, that is, the respondent's debt, was being acknowledged.”
18. Following an appeal by the State, on 8 March 2004 the Šibenik County Court again quashed the first-instance judgment and remitted the case. It held that from the case file it followed that in accordance with the internal regulations of the Ministry of Defence the person authorised to acknowledge the debt on behalf of the Ministry had been the head of its Finance Department before the action was brought, and afterwards the head of the Legal Department. Therefore, the applicant's commanding officer could not have acknowledged the debt on behalf of the Ministry.
19. In the resumed proceedings, the Knin Municipal Court, in order to establish who was the person authorised to acknowledge the debt on behalf of the Ministry of Defence, heard the head of the Central Finance Department of the Ministry of Defence, and examined the internal regulations of the Ministry.
20. The head of the Ministry's Central Finance Department, I.H., testified that the person authorised to acknowledge the debt on behalf of the Ministry had indeed been the head of its Central Finance Department before the action was brought and the head of its Legal Department afterwards. He also testified that the Split Regional Finance Department's request for payment of daily allowances for demining work had been deemed invalid by a letter of 29 October 1998 because the Decision of the Minister of Defence of 18 September 1995 applied only to the Danube region of Croatia.
21. On 19 April 2005 the Municipal Court ruled for the third time in favour of the plaintiff. The relevant part of that judgment read as follows:
“In line with the internal organisation of [the Ministry], the plaintiff, after [the daily allowances had become due but] payment had not been forthcoming, had been addressing his requests for payment to his immediate superior, that is to the commander of his unit, whereupon he [the commander] had on behalf of the plaintiff been contacting the commander of the 3rd Operational Zone of the Croatian Armed Forces. The commander of the 3rd Operational Zone had been forwarding such requests to the General Staff of the Croatian Armed Forces, which had been replying that the right to receive payment and its amount were being acknowledged, and that payment would follow once funds had been allocated for that purpose. The commander of the 3rd Operational Zone had been sending that information to the commander of the [plaintiff's] unit, who had been notifying the plaintiff of this between June 1998 and May 2002, when the commander of the unit received the last information from the commander of the 3rd Operational Zone.
In this way authorised and responsible persons and the department [within the Ministry], in particular the commander of the 40th Engineering Brigade, the commander of the 3rd Operational Zone ... and the competent Regional Finance Department, which certified and acknowledged the amounts of daily allowances as costs of [the Ministry], and in the form of a request for transfer of funds corresponding to the amounts sought ..., submitted them to [the Ministry's Central Finance Department], acknowledged the debt to the plaintiff in a clear and unequivocal manner.
Accordingly, the respondent's argument raised in the course of the proceedings that only the head of [the Central Finance Service] or the head of the Legal Department were authorised to acknowledge the debt on behalf of the Ministry, is unfounded because this does not follow from the evidence taken, especially from the documents provided by the respondent, in particular from [the internal regulations of the Ministry of Defence], and [because] the time-limits fixed by the court at the request of the respondent's representative for furnishing evidence [in support of that argument] had expired.
...
... from the letter of 29 October 1998 it does not follow that the request of the [Split] Regional Finance Department had been regarded as invalid. [Rather], it was only returned to the [Split Regional Finance] Department for additional examination and checking, and it was suggested that afterwards the Regional Finance Department should decide on the right to receive payment of the allowances at issue.
Consequently, in the light of the foregoing, this court indisputably established that authorised persons of the respondent had continued, throughout the entire period in dispute, that is, from the time the claims had become due until May 2002, to inform the plaintiff in a clear and unequivocal manner that the respondent did not dispute [his] right to receive daily allowances in the amount sought. [T]hereby, the respondent acknowledged the debt to the plaintiff within the meaning of section 387 of the Obligations Act, so it is clear that the statutory limitation period did not expire, because its running was interrupted by the acknowledgment of the debt.”
22. Following an appeal by the State, on 24 October 2005 the Šibenik County Court reversed the first-instance judgment by dismissing the applicant's action. The relevant part of that judgment read as follows:
“On the basis of the evidence taken, the first-instance court established the following relevant facts:
- that the plaintiff, as a member of the 40th Engineering Brigade of the Croatian Army at the material time, under the command of the 3rd Operational Zone of the Croatian Armed Forces, had occasionally carried out demining work during 1996, 1997 and 1998;
- that the Decision [of the Minister of Defence of 18 September 1995] had established the right of the ... members of the Croatian Armed Forces to a special daily allowance for demining work;
- that, in accordance with the [above] Decision, the commander of the 40th Engineering Brigade had been compiling monthly lists of members of the unit who in a particular month had carried out demining work, and had specified the number of days spent on demining work and the corresponding amounts of daily allowances due, and that [those lists] had been certified and co-signed by the commander of the 3rd Operational Zone of the Croatian Armed Forces and submitted to the Split Regional Finance Department of the [Ministry of Defence];
- that the plaintiff, when the special daily allowances were not paid, on numerous occasions approached the commander of his unit, in accordance with the hierarchical organisation of the [Ministry] ... with a query as to when the payment would be made, and that [his commander], after making enquiries of the command of the 3rd Operational Zone, informed him that his claims were not in dispute... and that payment would follow after funds had been allocated for that purpose.
Relying on these facts, the first-instance court found that that the authorised persons of the respondent (the commander of the 40th Engineering Brigade, the commander of the 3rd Operational Zone of the Croatian Armed Forces, as well as the Split Regional Finance Department – which had certified and acknowledged the amount of the plaintiff's special daily allowances as costs of the respondent and had submitted it in the form of a request to the [Central] Finance Department of the [Ministry for transfer of the amount sought]) – had, throughout the entire period in dispute, until May 2002, unequivocally informed the plaintiff that the respondent did not dispute [his] right to receive daily allowances in the amount sought, and that the respondent had thereby acknowledged the debt to the plaintiff within the meaning of section 387 of the Obligations Act, so the statutory limitation period had not expired.
However, having regard to the evidence taken before the first-instance court, this court considers the above finding of the first-instance court erroneous. [This is so] because, contrary to the view of the first-instance court, and in accordance with the hierarchical organisation of the [Ministry], the persons authorised to acknowledge the debt on behalf of the [Ministry] were the head of [its Central] Finance Department – which Department, in accordance with the [Ministry's] internal regulations, was authorised to ultimately process and check the requests for payment of the plaintiff's claims submitted by the Split Regional Finance Department (until the action was brought in this case) – and the head of the [Ministry's] Legal Department (during the present proceedings), as the respondent correctly argued ... as well as the other authorised persons who were, in accordance with the hierarchical organisation of the [Ministry], superior to [them].
That being so, and having regard to the facts established in the proceedings before the first-instance court, it does not follow that it was precisely those authorised persons mentioned above who acknowledged the debt by making a declaration to the plaintiff as the creditor, nor that the debt was acknowledged in some indirect manner within the meaning of paragraph 2 of section 387 of the Obligations Act. [O]n the contrary, the request of the Split Regional Finance Department to transfer funds [corresponding to the amounts of daily allowances sought] (which request, together with signed and certified lists compiled by the 40th Engineering Brigade, cannot be considered an acknowledgement of the debt within the meaning of section 387 of the Obligations Act) ... was regarded as invalid by the Central Finance Department and returned to the Split Regional Finance Department for further checking and additional examination (...). [T]herefore, in the instant case the respondent did not acknowledge the plaintiff's claims in any manner prescribed by law that would lead to an interruption of the statutory limitation period. [S]ince the last monthly instalment of special daily allowances had become due in April 1998, and the action in this case had been brought on 21 May 2001, the [respondent's] plea that the claims at issue were statute-barred, ... is well-founded because the three-year statutory limitation period set forth in section 131 of the Labour Act in respect of the plaintiff's claims, which arose from his employment relationship with the respondent, had expired in the instant case.”
23. The applicant then lodged a constitutional complaint against the second-instance judgment, alleging violations of his constitutional rights to equality before the courts and to a fair hearing. He argued that his claim for special daily allowances for demining work was not statute-barred, because the Ministry of Defence had on several occasions acknowledged the debt, thereby interrupting the running of the statutory limitation period, and that the Šibenik County Court had not relied on any provision of substantive law which would justify dismissal of his action.
24. On 10 April 2008 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's constitutional complaint and served its decision on his representative on 8 May 2008.
25. The relevant part of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum)) provides as follows:
“All citizens of the Republic of Croatia and foreigners shall be equal before the courts and other state or public authorities.”
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
“1. The right of ownership shall be guaranteed.
2. Ownership implies duties. Owners and users of property shall contribute to the general welfare.”
“1. Ownership may be restricted or taken in accordance with the law and in the interest of the Republic of Croatia subject to payment of compensation equal to the market value.
2. The exercise ... of the right of ownership may, on an exceptional basis, be restricted by law for the protection of the interests and security of the Republic of Croatia, nature, the environment or public health.”
“International agreements in force, which were concluded and ratified in accordance with the Constitution and made public, shall be part of the internal legal order of the Republic of Croatia and shall have precedence over the [domestic] statutes. ...”
26. In its decisions nos. U-I-892/1994 of 14 November 1994 (Official Gazette no. 83/1994) and U-I-130/1995 of 20 February 1995 (Official Gazette no. 112/1995) the Constitutional Court held that all rights guaranteed in the Convention and its Protocols were also to be considered constitutional rights having legal force equal to the provisions of the Constitution.
27. The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional self-government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or right to local or regional self-government, guaranteed by the Constitution (“constitutional right”)...
2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] are available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.”
“A constitutional complaint shall contain ... an indication of the constitutional right alleged to have been violated [together] with an indication of the relevant provision of the Constitution guaranteeing that right...”
“ ... [t]he Constitutional Court shall examine only the violations of constitutional rights alleged in the constitutional complaint.”
28. On 9 July 2001 the Constitutional Court delivered a decision, no. U-III-368/1999 (Official Gazette no. 65/2001) in a case where the complainant relied in her constitutional complaint on Articles 3 and 19(1) of the Constitution, neither of which, under that court's jurisprudence, contained constitutional rights. The Constitutional Court nevertheless allowed the constitutional complaint, finding violations of Articles 14, 19(2) and 26 of the Constitution, on which the complainant had not relied, and quashed the contested decisions. In so deciding it held as follows:
“Therefore, a constitutional complaint cannot be based on either of the constitutional provisions stated [by the complainant in her constitutional complaint].
However, the present case concerns, as will be explained further, a specific legal situation as a result of which this court, despite [its] finding that there are not, and cannot be, violations of the constitutional rights explicitly relied on by the complainant, considers that there are circumstances which warrant quashing [the contested] decisions.
...
Namely, it is evident from the constitutional complaint and the case file that there have been violations of [constitutional] rights, in particular those guaranteed by Article 14 (equality, equality before the law), Article 19 paragraph 2 (the guarantee of judicial review of decisions of state and other public authorities) and Article 26 (equality before the courts and other state or public authorities) of the Constitution ...”
29. Section 387 of the Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/1978, 39/1985 and 57/1989, and the Official Gazette of the Republic of Croatia no. 53/1991 with subsequent amendments) provided as follows:
STATUTE OF LIMITATIONS
GENERAL PROVISIONS
General rule
Section 360
“(1) The right to request performance of an obligation shall be extinguished on the expiration of a statutory limitation period.
(2) ...
(3) A court shall not take a statutory limitation period into account of its own motion if the debtor did not plead it.”
INTERRUPTION OF A STATUTORY LIMITATION PERIOD
Acknowledgement of a debt
Section 387
“(1) The running of a statutory limitation period shall be interrupted when the debtor acknowledges his or her debt.
(2) A debt may be acknowledged not only by a statement [that is, a declaration] to the creditor but also in an indirect manner, such as by making a payment, paying interest or providing security...”
30. In interpreting section 387 of the Obligations Act the Supreme Court has consistently held that acknowledgement of a debt capable of interrupting a statutory limitation period, regardless of whether it has been made in a direct or indirect manner, has to be done unequivocally and by the persons authorised to act on behalf of the debtor (see, for example, decisions nos. Rev 3053/1999-2 of 23 January 2002, Rev 271/03-2 of 12 April 2005, Rev 347/04-2 of 21 June 2005, Revt 97/03-2 of 22 December 2005, and Revt 156/2006-2 of 29 November 2006).
31. On 25 May 2000 the Supreme Court delivered a judgment, no. Rev 1401/1999-2, in a case in which the plaintiffs sued the State seeking payment of unpaid salaries for the period during which they had been receiving medical treatment and held captive by the enemy, respectively. The question arose whether the letter of the Ministry of Defence, in particular, the General Staff of the Croatian Armed Forces, of 9 February 1998, confirming that the plaintiffs had been members of their military unit and had appeared on its payroll but had not collected their salaries in the above-mentioned period, constituted acknowledgment of the debt. The lower courts dismissed the plaintiffs' action, finding that the letter had not constituted acknowledgement of a debt capable of interrupting the statutory limitation period. In dismissing an appeal on points of law (revizija) by the plaintiffs and upholding the lower courts' judgments, the Supreme Court held as follows:
“From [the letter of 9 February 1998] it only follows that the plaintiffs were members of a certain unit at a certain time and that they did not receive a salary for that period. Such [a letter] cannot per se constitute an acknowledgment of the debt within the meaning of section 366 of the Obligations Act and interruption of the statutory limitation period. That is a general statement which cannot be considered as an acknowledgment of the debt. The ... letter indicates that the debt may exist but it does not constitute an acknowledgement by the debtor that the debt [indeed] exists, that is, acknowledgment that the debtor has [an obligation] to settle the debt or that the debtor will settle it. The statement of facts by the debtor, on the basis of which it could be concluded that the debt exists, does not constitute acknowledgment of the debt [capable of] interrupting the statutory limitation period. For the acknowledgement of the debt to result in the interruption of the statutory limitation period, it has to be explicit and specific so that the debtor's will to settle the existing debt is unequivocally expressed.”
32. On 27 September 2007 the Supreme Court delivered a decision, no. Rev-427/2006-2, in a case where the plaintiff company sued the State seeking payment of a certain amount of money. The question arose whether a letter of 15 May 1996 signed on behalf of the Finance Department of the Ministry of Defence by the head of its Bookkeeping Division informing the plaintiff that its claim had been recorded with the Ministry's Finance Department but that funds had not been allocated to satisfy that claim, as well as a letter of 6 November 1997 signed on behalf of the Finance Department of the Ministry of Defence by the head of its Payment Operations Division notifying the plaintiff that the Ministry would settle its debt by transferring the money to the plaintiff company's giro account upon transfer of the funds to the Ministry from the State budget, amounted to acknowledgment of the debt. The lower courts ruled in favour of the plaintiff, finding that the above-mentioned letters had constituted acknowledgement of a debt capable of interrupting the statutory limitation period. The Supreme Court allowed an appeal on points of law by the State, quashed the lower courts' judgments and remitted the case. In so deciding the Supreme Court held as follows:
“In the contested judgments no reasons were given for the finding that the head of the Bookkeeping Division, who had signed the letter of 15 May 1996, would be authorised to acknowledge the debt (even assuming that the mere recording of the claim and its amount with the Finance Department of the Ministry of Defence could be considered an acknowledgment of the debt).
... the letter of 6 November 1997 [containing] the statement that its [the Ministry's] debt would be settled by transferring the money to the [plaintiff company's] giro account, but without establishing the amount of the debt that the respondent considered well-founded, and without establishing whether ... the head of the Payment Operations Division (who signed the letter) was authorised to give such a statement, cannot, at least for the time being, be considered an acknowledgment of the debt.
In this court's view, an acknowledgement of a debt within the meaning of section 387 paragraph 2 of the Obligations Act can be made by the debtor personally or through an authorised person (if the debtor is a legal entity). It follows from the foregoing that declarations of unauthorised persons acknowledging a debt on behalf of a debtor cannot produce for the debtor any legal effects of a valid acknowledgement of a debt. It also has to be noted that an acknowledgement of a debt must not be contrary to peremptory norms [jus cogens].
For these reasons, until it is established whether, and on the basis of which legal document, the head of the Bookkeeping Division and the head of the Payment Operations Division were persons authorised to acknowledge the debt, there can be no conclusions as to the legal significance of the letters of 15 May 1996 and 6 November 1997.”
33. According to the views expressed in Croatian legal doctrine, a right is not extinguished by the expiration of a statutory limitation period. Rather, the creditor only loses the right to seek its enforcement through the courts. Therefore, a debtor remains a debtor even after a statutory limitation period has expired. For that reason, if a debtor pays a creditor after the expiry of a statutory limitation period, he or she cannot claim the amount paid back (on account of unjust enrichment) because he or she paid an existing debt
34. Section 131 of the Labour Act (Zakon o radu, Official Gazette nos. 38/95, 54/95 (corrigendum), 65/95 (corrigendum), 17/01, 82/01, 114/03, 123/03, 142/03 (corrigendum) and 30/04) provides as follows:
Statutory limitation period for an employment-related claim
Section 131
“Unless otherwise provided in this or another statute, an employment-related claim expires after three years.”
35. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and the Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) provides as follows:
“The court shall proceed on an action even if the plaintiff has not indicated the legal basis for his or her claim; and if the plaintiff has indicated the legal basis the court shall not be bound by it.”
“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.
(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”
36. Decision of the Minister of Defence on Payment of Special Daily Allowances for Carrying Out Mining and Demining Works (Odluka o isplatama posebnih dnevnica za vrijeme izvođenja radova na miniranju i deminiranju, unpublished) of 18 September 1995 reads as follows:
“1. Permanent and reserve members of the Armed Forces of the Republic of Croatia carrying out mining and demining works shall have the right to special daily allowances.
2. Special allowances shall be calculated in the amounts prescribed by the Decision on the Amount of Daily Allowance for Official Journeys and the Amount of Compensation for Users Financed from the State Budget [that is, 123 Croatian kunas (HRK) at the time], and so from the time of departure to [carry out] mining and demining works, according to the following criteria:
(a) the entire daily allowance for every twenty-four hours spent on mining and demining works, including periods of twelve to twenty-four hours [that is, between twelve and twenty-four hours];
(b) half the daily allowance for periods of eight to twelve hours.
3. The lists of persons entitled to special daily allowances, with details, shall be compiled by the commander at independent battalion level or higher, and shall be certified by the commander of the operational zone ... The certified list shall be submitted for payment to the regional finance department on whose territory mining and demining works have been carried out, at the latest on the third day of the month in respect of the preceding month.
4. This Decision shall enter into force on the day of its adoption, and shall be applicable from 1 June 1995.”


ITEMID: 001-57960
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF PALAORO v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland
TEXT: 8. Mr lives at Höchst in Vorarlberg.
9. On 7 November 1987 a police car observed the applicant driving on the motorway at speeds considerably in excess of the maximum speed limits. At 14.28 hours and 53 seconds he was recorded travelling at 150 kilometres per hour on a stretch of road where a sign indicated the limit to be 100 k.p.h. Thirty-one seconds later he was recorded travelling at 67 k.p.h. over the general 130 k.p.h. limit for motorways. The applicant alleged that as the vehicle he was driving was an extremely powerful one, it was difficult for the driver to realise at what speed it was actually travelling.
On 6 December 1987 the Tyrol regional police authority (Landesgendarmeriekommando) drew up a report and imposed two separate fines on the applicant for speeding.
10. On 16 November 1988, after administrative proceedings which involved an examination of the reporting police officers (Meldungsleger) in the absence of the applicant, the Imst district authority (Bezirkshauptmannschaft) found the applicant guilty of two speeding offences under the Road Traffic Act (Straßenverkehrsordnung - see paragraph 17 below). Pursuant to section 99(3) of that Act (see paragraph 18 below) the applicant was fined 4,000 and 6,000 Austrian schillings (ATS), with imprisonment of eight and ten days respectively in default of payment.
11. The applicant appealed to the Tyrol regional government (Amt der Landesregierung), questioning the precision of the police methods for measuring vehicle speed. He further contended that, having admitted driving at a high speed on a given stretch of road, he should not have been punished under two different provisions, which had resulted in an excessively high fine. He therefore requested that the incident be treated as a single offence and the fine reduced accordingly.
12. On 22 December 1988 the Tyrol regional government reduced the fines to ATS 2,000 and 4,000 respectively, and the penalties in default to four and seven days' imprisonment. The appellate authority accepted, among other considerations, that speed-measuring techniques could not achieve total accuracy. The submission that only one offence had been committed was dismissed on the ground that two different provisions had been infringed at two different moments in time.
13. Mr Palaoro then applied to the Constitutional Court (Verfassungsgerichtshof). Relying on Article 6 (art. 6) of the Convention, he complained that the administrative criminal procedure did not guarantee a fair trial. He argued that he should have been given an oral hearing and the opportunity to examine the witnesses - that is to say the police officers - in person. This would have allowed him to establish that the measuring methods used by the police were often defective. He further criticised the "principle of cumulative imposition of penalties" (Kumulationsprinzip), by virtue of which the same criminal behaviour could be punished under different provisions. In this context he referred to Article 4 of Protocol No. 7 ((P7-4) to the Convention.
14. On 10 March 1989 the Constitutional Court declared the applicant's complaint partly inadmissible as raising questions concerning the application of ordinary law; in so far as the complaint did raise issues of constitutional law, the Constitutional Court, referring to its own case-law on the Convention, found that the application did not have sufficient prospects of success. Among other provisions, Article 144 para. 2 of the Federal Constitution was applied (see paragraph 20 below).
15. On 19 April 1989 Mr Palaoro requested the Constitutional Court to send his file to the Administrative Court (Verwaltungsgerichtshof) and on 15 June 1989 he submitted his grounds of appeal to the latter. He stressed that he should have had the opportunity to examine the witnesses directly and that he should not have been punished twice for what he considered to be a single offence.
No public hearing was requested.
16. On 25 October 1989 the applicant's appeal was dismissed by the Administrative Court pursuant to section 42(1) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz - see paragraph 24 below). It noted that a formal confrontation with a witness was to be ordered only where it was necessary in the special circumstances of a given case: there was no general right to put questions in person to a witness (section 47 of the Administrative Criminal Justice Act). The Administrative Court upheld the respondent authority's grounds for dismissing the applicant's second complaint (see paragraph 12 above).
17. Section 20(2) of the Road Traffic Act 1960 sets the maximum speed limit on motorways at 130 kilometres per hour.
Section 52(A)(10)(a) of the same Act prohibits travelling in excess of the speed limit indicated on a road sign.
18. Under section 99(3)(a) of the Road Traffic Act, breaches of its provisions are punishable with a fine of up to ATS 10,000, with imprisonment of up to two weeks in default of payment.
19. Article 90 para. 1 of the Federal Constitution (Bundes-Verfassungsgesetz) provides:
"Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law."
20. By Article 144 para. 1 of the Federal Constitution, the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law.
Article 144 para. 2 provides:
"Up to the time of the hearing the Constitutional Court may by means of a decision (Beschluß) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."
21. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful.
22. Section 39(1) of the Administrative Court Act provides, in particular, that at the end of the preliminary proceedings (Vorverfahren) the Administrative Court must hold a hearing where the applicant makes a request to that effect.
Section 39(2) reads as follows:
"Notwithstanding a party's application under subsection (1), the Administrative Court may decide not to hold a hearing where
1. the proceedings must be stayed (section 33) or the application dismissed (section 34);
2. the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction (section 42(2)(2));
3. the impugned decision must be quashed as unlawful on account of a breach of procedural rules (section 42(2)(3));
4. the impugned decision must be quashed because its content is unlawful according to the established case-law of the Administrative Court;
5. neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed;
6. it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further."
Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958; sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in 1982.
23. Section 41(1) of the Administrative Court Act provides:
"In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42(2)(2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary."
24. Section 42(1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision.
By section 42(2),
"The Administrative Court shall quash the impugned decision if it is unlawful
1. by reason of its content, [or]
2. because the respondent authority lacked jurisdiction, [or]
3. on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or
(b) the facts require further investigation on an important point, or
(c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority."
25. If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law (Rechtsanschauung)" (section 63(1)).
26. In a judgment of 14 October 1987 (G 181/86) the Constitutional Court held:
"From the fact that it has been necessary to extend the reservation in respect of Article 5 (art. 5) of the Convention to cover the procedural safeguards of Article 6 (art. 6) of the Convention, because of the connection between those two provisions (art. 5, art. 6), it follows that, conversely, the limited review (die (bloß) nachprüfende Kontrolle) carried out by the Administrative Court or the Constitutional Court is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation."
27. Pursuant to Article 129 of the Federal Constitution, administrative courts called "independent administrative tribunals" (Unabhängige Verwaltungssenate) were set up in the Länder with effect from 1 January 1991. The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences (Verwaltungsübertretungen).
28. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains, inter alia, a reservation worded as follows:
"The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-110961
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF HASDEMİR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
JUDGES: Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre
TEXT: 5. The applicant was born in 1961 and is currently detained in İzmit Ftype prison.
6. On 6 May 2000 the applicant was arrested and taken into police custody on suspicion of membership of a criminal profit-making organisation and carrying out illegal activities on its behalf.
7. On 8 May 2000 the investigating judge at the İstanbul State Security Court ordered the applicant’s pre-trial detention.
8. On 19 June 2000 a bill of indictment was filed against the applicant and four other persons with the İstanbul State Security Court, accusing them of forming a criminal profit-making organisation and of being involved in incidents of murder, extortion and fraud.
9. On 30 January 2003 the first-instance court acquitted the applicant and the other accused of the former charge on the ground that the mental elements of the crime had not been established on their parts. It followed that it lacked jurisdiction to examine the other charges brought against them and transferred the proceedings to the Kartal Assize Court.
10. On 20 December 2004 the Court of Cassation quashed the judgment of the first-instance court, noting that the latter had erroneously acquitted the applicant and his co-accused of the charge concerned. In its decision, the court held that all components of forming a criminal profit-making organisation had been sufficiently established against the accused.
11. Subsequently, the case was remitted to the first-instance court.
12. Following the abolition of the State Security Courts by Law no. 5190, the İstanbul Assize Court resumed the criminal proceedings.
13. During the proceedings, the İstanbul Assize Court reviewed the lawfulness of the applicant’s continued detention regularly at the end of each hearing or, at the latest, every thirty days, of its own motion, without holding any oral hearing.
14. At the hearing on 3 March 2010 the İstanbul Assize Court decided, once more, to extend the applicant’s continued detention on account of the reasonable grounds of suspicion that he had committed the offences with which he was charged, and the state of the evidence in the case file.
15. On 5 January 2011 having regard to the period he had spent in detention, the İstanbul Assize Court released the applicant.
16. On the basis of the range of evidence in the case file, on 6 December 2011 the İstanbul Assize Court convicted the applicant of a number of crimes; including forming a criminal profit-making organisation, murder, abduction and extortion. Subsequently, the court sentenced the applicant to life imprisonment.
17. According to the information in the case file, the applicant lodged an appeal with the Court of Cassation, before which the proceedings are currently pending.
18. The relevant sections of the Turkish Code of Criminal Procedure (Law no.5271) can be found in the judgment of Araz v. Turkey (no. 44319/04, §§ 15-16, 20 May 2010).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
5-5
6-1


ITEMID: 001-70740
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: WARREN v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Curtis Francis Warren, is a United Kingdom national who was born in 1963 and is currently serving a prison sentence in the Netherlands. He is represented before the Court by Mr J. Jahae, a lawyer practising in Amsterdam.
The applicant was placed in pre-trial detention (voorlopige hechtenis) on 24 October 1996. The criminal proceedings brought against the applicant – in which he stood accused of, inter alia, leading a criminal organisation, importation of about 317 kilograms of cocaine and possession of XTC, marihuana and weapons – came to an end on 16 November 1999, when the Supreme Court (Hoge Raad) confirmed the judgment handed down by the Court of Appeal (gerechtshof) of The Hague on 22 April 1999 in which the applicant had been sentenced to twelve years’ imprisonment.
The applicant, who had initially been detained in an ordinary remand centre (huis van bewaring), was transferred – on the basis of a report from the Detainee Intelligence Information Service / National Criminal Intelligence Service (Gedetineerde Recherche Informatiepunt / Centrale Recherche Informatiedienst; “GRIP/CRI”) according to which there were indications that the applicant would seek ways to escape – on 23 December 1996 to the National Segregation Unit (Landelijke Afzonderingsafdeling) in a Maastricht detention facility.
On 4 February 1997, on the basis of further GRIP information and the advice of the special selection board of the maximum-security institution (Extra Beveiligde Inrichting; “EBI”) – the Minister of Justice decided to place the applicant in the pre-trial detention unit in the EBI which is part of the Nieuw Vosseveld Penitentiary Complex in Vught. According to this further GRIP information, set out in an official report (ambtsbericht) dated 23 December 1996, the applicant represented an increased security risk in that in case of an escape, outside aid with use of brute force, violence against persons and a hostage-taking situation could not be excluded. In this connection, it was pointed out that he was a member of a criminal organisation, that various kinds of firearms and hand grenades had been found when members of this organisation had been arrested, that some members – including the applicant’s right-hand man – were still at large, that the organisation was said to dispose of explosives and heavy arms such as rocket launchers, and that in the course of previous arrests of members of the organisation in the United Kingdom, one person escaped when the police transport was blocked by a vehicle. It was further pointed out that the authorities of the United Kingdom, where the applicant was to serve a 23 years’ prison sentence, had filed a request for his extradition.
The applicant’s detention in the EBI was reviewed and prolonged by the Minister every six months.
On 15 September 1999, the applicant was attacked in the EBI by another detainee who was lethally injured by the applicant in the ensuing fight. Criminal proceedings were brought against the applicant which ended on 4 March 2003 when the Supreme Court confirmed the judgment given by the ‘s-Hertogenbosch Court of Appeal on 8 February 2002, in which it had rejected the applicant’s plea of self-defence, convicted him of manslaughter and imposed a sentence of four years’ imprisonment.
By letter of 17 July 2001, the applicant was informed that the Minister of Justice had decided to extend his placement in the EBI once again. This decision was based on the contents of the official report of 23 December 1996, the possibility of the applicant’s extradition to the United Kingdom where – according to the applicant’s own statement – he would still have to serve a fifteen years’ prison sentence, and a further official report of 16 August 1999, according to which there were plans to liberate the applicant from detention, involving the deployment of a helicopter by a member of the criminal organisation who had escaped on 10 June 1999 from a Netherlands detention facility by way of a well prepared escape plan. Further pointing out that the applicant had been sentenced to twelve years’ imprisonment and that he had been convicted in first instance in another set of criminal proceedings in connection with the death of a co-detainee to four years’ imprisonment, the Minister considered that it appeared from the above that the applicant’s escape would give rise to great social upheaval. Since, moreover, the EBI special selection board – having noted the above as well as the grave concern in society and public opinion concerning the crimes committed by the applicant – had advised the Minister to prolong the applicant’s detention in the EBI, the Minister had taken a decision to this effect.
The applicant filed an appeal against this decision with the Appeals Board (beroepscommissie) of the Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming). In this appeal, he challenged the necessity to prolong his placement in the EBI, arguing inter alia that it had been based on outdated information, that his conduct in the EBI had been correct throughout, that he had not caused the fight with the co-detainee, and that there were no reasons for holding that he would harbour any escape plans. Although he did make a general reference to the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) as regards the EBI regime, he did not present any arguments about the manner in which this regime would have affected him personally. He further did not raise any complaints, either in form or substance, under Article 3 or Article 8 of the Convention in relation to his personal conditions of detention in the EBI.
On 29 November 2001, the Appeals Board dismissed the appeal. It noted that the applicant had been sentenced to a lengthy prison sentence for very serious crimes giving rise to grave concern in society and public opinion, and that – in addition – he had been sentenced in first instance to four years’ imprisonment in relation to a fight in the EBI with a fatal outcome. It therefore considered that the applicant, in the event of an escape, would pose an unacceptable risk to society in terms of severe disturbance of public order, the risk of escape being, as such, of lesser importance, i.e. the situation provided for in Article 6 under b. of the Regulation selection, placement and transfer of detainees (Regeling selectie, plaatsing en overplaatsing van gedetineerden) of 15 August 2000. The Appeals Board further concluded that, having found no facts or circumstances militating against a continuation of the applicant’s stay in the EBI, the decision to prolong his placement was lawful and that, weighing up all the interests involved, it could not be considered as unreasonable or unjust.
On 15 April 2002, the applicant was transferred to a prison with an ordinary regime in Maastricht.
An overview of the relevant domestic law and practice is given in the Court’s judgment of 4 February 2003 in the case of Van der Ven v. the Netherlands (no. 50901/99, §§ 26-35, ECHR 2003-II).


ITEMID: 001-98124
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SABAYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1968 and lives in the town of Kolomna in the Moscow Region.
6. By judgment of 16 September 1999 the Elektrostal District Court of the Moscow Region examined the criminal case against the applicant and three other co-accused. The court convicted the applicant of aggravated blackmail and kidnapping and sentenced him to sixteen years' imprisonment. That sentence was upheld on appeal by the Moscow Regional Court on 25 January 2000.
7. Thereafter the applicant sought to initiate supervisory review of his case.
8. The applicant's supervisory review request to the Presidium of the Moscow Regional Court was partly successful. On 18 January 2001 the Presidium of the Moscow Regional Court, sitting as a supervisory review body, re-examined his case and partly changed the judgment of 16 September 1999.
9. On 26 February 2002 the applicant requested one of the Deputy Presidents of the Supreme Court to initiate supervisory review proceedings in his case before the Supreme Court, arguing that the lower courts wrongly assessed the evidence in the case and failed to apply the domestic law correctly.
10. Apparently in response to that request, on 11 June 2002 the Deputy President of the Supreme Court decided to initiate supervisory review proceedings in respect of the decisions of the lower courts in the applicant's case. The main reason for that decision was that while the lower courts had made a correct assessment of the facts of the case, they had erred in the legal characterisation of the offence committed by the applicant.
11. According to the Government, on 5 November 2002 notifications that the supervisory review hearing would take place on 19 November 2002 were sent to the applicant and the lawyer who had represented him at the trial. They were also invited to respond to the arguments of the Deputy President of the Supreme Court.
12. According to the applicant, he received a notification in the form of a telegram about the hearing of 19 November on 6 November 2002. From the documents submitted by the applicant it follows that he received a copy of the request of 11 June 2002 only on 27 November 2002, that is already after the supervisory review hearing in his case.
13. The applicant explained that once the main set of criminal proceedings was over, the lawyer in question had ceased to represent him. He submitted a copy of the lawyer's letter dated 29 January 2006, in which the lawyer had confirmed the absence of any agreement to act on the applicant's behalf in the supervisory review proceedings of 19 November 2002. The lawyer also confirmed the receipt of the notification of 5 November 2002, along with a copy of the request of 11 June 2002, but stated that he had been unable to react to these documents for lack of authority.
14. The parties agreed that the applicant asked to attend the supervisory review hearing in person.
15. The applicant submitted a copy of that request. The request was made on 10 November 2002 but was not received by the Supreme Court until 26 November 2002.
16. On 19 November 2002 the Supreme Court, in the presence of the prosecutor and one of the other co-defendants' lawyers, examined the arguments of the Deputy President's supervisory review appeal and amended the sentence by changing the charges of aggravated kidnapping to aggravated deprivation of liberty. The applicant's sentence was thus reduced from sixteen to thirteen years of imprisonment accordingly.
17. By letter of 4 December 2002 the Supreme Court notified the applicant of the outcome of the supervisory review proceedings.
18. Section VI, Chapter 30 of the Code of Criminal Procedure of 1960 (Уголовно-процессуальный кодекс РСФСР), in force at the material time, allowed certain officials to challenge a judgment which had become effective and to have the case reviewed.
19. Pursuant to Article 356 of the Code of Criminal Procedure of 1960, a judgment became effective and enforceable as of the day when the appeal instance pronounced its decision or, if the judgment had not been appealed against, when the time-limit for appeal expired.
“The grounds for quashing or changing a judgment [on supervisory review] are the same as [those for setting aside judgments which have not become effective on cassation appeals].”
“The grounds for quashing or changing a judgment on appeal are as follows:
(i) prejudicial or incomplete inquest, investigation or court examination;
(ii) inconsistency between the facts of the case and the conclusions reached by the court;
(iii) serious violation of procedural law;
(iv) misapplication of [substantive] law;
(v) inappropriate sentence considering the gravity of the offence and the convict's personality.”
20. Article 371 of the Code of Criminal Procedure of 1960 provided that the power to lodge a request for a supervisory review could be exercised by the Prosecutor General, the President of the Supreme Court of the Russian Federation and their respective Deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the Presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of such officials for a review.
21. According to Articles 374, 378 and 380 of the Code of Criminal Procedure of 1960, the request for supervisory review was to be considered by the judicial board (the Presidium) of the competent court. The court could examine the case on the merits, and was not bound by the scope and grounds of the extraordinary appeal. The Presidium could dismiss or uphold the request. If the request was dismissed, the earlier judgment remained in force. If it upheld the request, the Presidium could decide whether to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, or for fresh court examination at any instance, to uphold a first-instance judgment reversed on appeal, or to amend and uphold any of the earlier judgments.
22. Article 380 §§ 2 and 3 of the Code of Criminal Procedure of 1960 provided that the Presidium could in the same proceedings reduce a sentence or amend the legal classification of a conviction or sentence to the defendant's advantage. If it found a sentence or legal classification too lenient, it had to remit the case for fresh examination.
23. Under Article 377 § 3 of the Code of Criminal Procedure of 1960, a public prosecutor took part in a hearing before a supervisory review body. The convicted person and his or her counsel could be summoned if the supervisory review court found it necessary. If summoned, they were to be given an opportunity to examine the application for supervisory review and to make oral submissions at the hearing. On 14 February 2000 the Constitutional Court of the Russian Federation ruled that the convicted person's presence was not optional but mandatory if the grounds for initiating the supervisory review proceedings could worsen his personal situation.
24. Under Article 407 of the new Code of Criminal Procedure of 2001, which entered into force on 1 July 2002, the convicted person and his counsel are notified of the date, time and place of hearings before the supervisory review court. They may participate in the hearing provided that they have made a specific request to do so.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108452
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: OKON v. IRELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: The applicants, Ms Stella Maris Ekaette Okon and Ms Daniella Victoria Okon, are Nigerian nationals who were born in 1974 and 1999, respectively. They live in Dublin. They are represented before the Court by Ms A. Farrell, a lawyer practising in Dublin.
On 13 February 2000 the applicants arrived in Ireland. Shortly thereafter they applied for asylum.
On 13 November 2000 the first applicant married an Irish national. On 21 November 2000 she applied for a residence permit on the basis of her marriage. She did not therefore pursue the asylum application. The marriage subsequently failed and the first applicant separated from her husband. Accordingly, on 19 July 2004 the Department of Justice, Equality and Law reform revoked her leave to remain as she was no longer residing with her spouse and proposed to deport her. The Minister for Justice Equality and Law Reform (“the Minister”) issued a deportation order in December 2004.
On 10 November 2005 the applicants re-applied for asylum. The first applicant was interviewed on 23 November 2005. The application for asylum was based on the following claims. The first applicant claimed that she was ill in her late teens and was sent to live with the family of a native doctor (“E”) in or around 1990. Thereafter, she was effectively detained by that family. E cut her with a blade and rubbed charcoal into her wounds and six months later began raping her. E threatened to kill the first applicant’s father when the latter protested. Her father later died in 1997. She gave birth to her son in 1992 and to the second applicant in 1999. In November 1999 E died. Since E’s brother wished to marry the first applicant, the applicants escaped from E’s funeral. They fled to Ibadan. Following threats, they left for Lagos and, subsequently, they left for Ireland, via France, leaving the first applicant’s son with her mother. The first applicant claims that she was subjected to Female Genital Mutilation (“FGM”) against her will prior to the birth of the second applicant. She feared that, on return, that she would be kidnapped and re-detained by E’s family and that the second applicant would be subjected to FGM. The first applicant claims that internal re-location is not an option and that the Nigerian police would not assist her.
By letter of 2 December 2005 the applicants were informed that the Refugee Applications Commissioner (“RAC”) was recommending that they not be declared refugees. The RAC report highlighted, inter alia, certain inconsistencies and vagueness in her claims and her failure to seek protection from the Nigerian police.
By decision of 10 April 2006, notified to the applicant on 17 May 2006, the Refugee Appeals Tribunal (“RAT”) affirmed the recommendation of the RAC. The RAT, inter alia, found parts of her claim to be inconsistent and vague, relied on the country-of-origin information about FGM in Nigeria and noted her failure to seek assistance of the Nigerian authorities or asylum in France. The applicants were legally represented before the RAT.
In June 2006 the applicants applied, pursuant to section 5 of the Illegal Immigrants (Trafficking) Act 2000, for leave to apply for judicial review citing the RAT, the Minister, Ireland and the Attorney General as respondents. They requested, inter alia, an order quashing the decision of the RAT as well as declarations that the RAT’s failure to publish its previous decisions was unconstitutional and that the second applicant should have been heard as she was no longer an infant. They also took issue in some detail with the RAT’s assessment of their factual claims.
On 4 September 2006 the respondents filed a replying affidavit. In October 2006 the case was listed for hearing in July 2007.
On 26 July 2007 the High Court heard the applicants’ judicial review application and judgment was reserved.
In November 2007 the case was listed for mention when the parties were informed that judgment was not available. The applicants inquired on several later occasions about the delivery of the judgment.
The matter was listed for mention on 17 November 2009 and the parties were informed that a judgment was not available. The High Court requested the parties to explore a settlement of the action. Accordingly, on 19 November 2009 the applicants wrote to the respondents seeking a possible settlement. No response was received.
The case was again listed for mention on 23 November 2010 and the High Court informed the parties that a judgment was not available but that a judgment should be ready by the end of 2010.
By notice dated 29 March 2011, the applicants notified the High Court of their change of solicitor.
The case has not been re-listed since then and no judgment has been delivered to date.


ITEMID: 001-98431
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SHIMIDZU AND BERLLAQUE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants, Mr Takahashi Shimidzu and Mr Andrew Ivan Berllaque, are British nationals who were born in 1982 and 1965 respectively. They live in Gibraltar. Mr Shimidzu was represented before the Court by Mr D. Hughes, a barrister practising in Gibraltar; Mr Berllaque by Mr S. Bossino, a barrister also practising in Gibraltar. They were each assisted by Ms J. Simor and Mr C. Nicholls Q.C., counsel.
The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott of the Foreign Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1–3 April 2003, the first applicant, Mr Shimidzu, was tried before a judge and jury in the Supreme Court of Gibraltar on charges of assault occasioning bodily harm, obstructing a police officer and resisting a police officer in the execution of his duty. He was acquitted by the jury after a submission of no case to answer was rejected by the trial judge. When Mr Shimidzu’s counsel made application for costs after the trial, the Chief Justice said:
“But, Mr Hughes, you know that you can’t get costs. I would grant them, if I could, you know that the law is against you.”
When counsel persisted the Chief Justice said:
“You keep trying, Mr Hughes, I understand why you keep trying, but in my opinion it is an unjust system, which says, you can award costs against the defendant on conviction, you cannot award costs in the Supreme Court on acquittal. It is not a just system, but it’s not something that I can get round, however much I would enjoy trying to weave it. I just cannot, and it is a matter for the Legislature, but it is a matter perhaps that the Legislature ought to be invited to give their attention to.”
On 13 – 16 October 2003, the second applicant, Mr Berllaque, was tried before the same court on charges of rape. At the conclusion of the prosecution case, the trial judge upheld a defence submission of no case to answer and, on his direction, the jury acquitted the second applicant.
Mr Shimidzu made a motion to challenge the refusal to award costs. This was referred by the Supreme Court to the Court of Appeal of Gibraltar on 30 September 2003.
Mr Berllaque was given leave to intervene in the proceedings before the Court of Appeal in Mr Shimidzu’s case. Before the Court of Appeal, the applicants argued, inter alia, that the relevant provision of Gibraltarian criminal law, section 232 of the Criminal Procedure Ordinance, violated the Gibraltar Constitution. They relied on sections 1 and 8 of the Constitution. In respect of section 8, they argued that section 232 violated their right to a fair hearing and was a violation of the presumption of innocence. It appears that it was accepted before the Court of Appeal that while section 232 (2) allowed the Supreme Court to order the prosecution to pay costs to an acquitted defendant, all defendants before the Supreme Court would be unable to fulfil the conditions laid down in section 232 (2) since in order for a person to be committed for trial they would have to be detained in custody or bound by recognizance (see section 232 (2) (a) below). The Court of Appeal unanimously rejected the applicant’s submissions in respect of the presumption of innocence and the prohibition on discrimination contained in section 1. By a majority, it found that section 232 violated the right to a fair hearing contained in section 8.
The Attorney-General for Gibraltar appealed to the Judicial Committee of the Privy Council. On 28 June 2005, the Privy Council allowed the appeal, holding that section 232, while unattractive and lacking even-handedness, did not violate the Constitution. This unattractiveness was relieved by the fact that the subsection (1) of the section, allowing the prosecution to claim costs from a convicted defendant, was a dead letter. The Privy Council, relying on this Court’s rulings in Masson and Van Zon v. the Netherlands, judgment of 28 September 1995, Series A no. 327A, §§ 48-49 and Lutz v. Germany, judgment of 25 August 1987, Series A no. 123, § 59, found that Article 6 of the Convention did not require a discretion to award costs to an acquitted defendant. While an even-handed discretionary power to order reimbursement of costs incurred by a successful prosecutor or a successful defendant would be desirable, it was not correct to find, as the Court of Appeal had, that such a power was universal among Western European countries. The principle of equality of arms sought to ensure that a defendant did not suffer an unfair procedural disadvantage but did not require that the situations of the prosecutor and defendant should be assimilated and neither applicant had been able to show any procedural disadvantage in the conduct of the trial from the inability to recover his costs. In respect of the presumption of innocence (and referring to this Court’s findings in Lutz, cited above; Leutscher v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996II; and Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62), the Privy Council found that where the domestic court had a discretion to order costs against a prosecutor in favour of an acquitted defendant, the court should not refuse to make such an order in terms which threw doubt on the presumption of innocence. However, where domestic law granted no discretion and did not permit the making of an order, the failure to make such an order could not be rationally understood as throwing doubt on the defendant’s innocence.
Section 1 of the Gibraltar Constitution Order 1969 (now superseded by a 2006 Order), in so far as it is relevant, provided as follows:
“It is hereby recognised and declared that in Gibraltar there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms, namely―
(a) the right of the individual to life, liberty, security of the person and the protection of the law; ...
...and the provisions of this Chapter shall have effect for the purpose of affording protection to the said rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.”
Section 8 (1) and (2), insofar as they are relevant, provided as follows:
““Provisions to secure protection of law
8.(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
(2) Every person who is charged with a criminal offence ―
(a) shall be presumed to be innocent until he is proved or has pleaded guilty;
...
(c) shall be given adequate time and facilities for the preparation of his defence;
(d) shall be permitted to defend himself in person or, at his own expense, by a legal representative of his own choice or, where so prescribed, by a legal representative provided at the public expense...”
Sections 6 and 7 also provided protection against deprivation of property.
Part XI of the Ordinance governs costs and other ancillary orders in criminal cases.
Section 229, governing the award of costs by Magistrates’ Courts, so far as it is relevant, provides:
“(1) On the summary trial of an information the magistrates’ court shall have power to make such order as to costs ―
(a) on conviction, to be paid by the defendant to the prosecutor; and
(b) on dismissal of the information, to be paid by the prosecutor to the defendant, as it thinks just and reasonable:
Provided that ―
(i) where under the conviction the court orders payment of any sum as a fine, penalty, forfeiture or compensation, and the sum so ordered to be paid does not exceed £1, the court shall not order the defendant to pay any costs under this subsection unless in any particular case it thinks fit to do so;
(ii) and where the defendant is a child or young person, the amount of the costs ordered to be paid by the defendant himself under this subsection shall not exceed the amount of any fine ordered to be so paid.
(2) The court shall specify in the conviction, or, as the case may be, the order of dismissal, the amount of any costs that it orders to be paid under subsection (1).
(3) Where examining justices determine not to commit the accused for trial on the ground that the evidence is not sufficient to put him upon his trial, and are of opinion that the charge was not made in good faith, they may order the prosecutor to pay the whole or any part of the costs incurred in or about the defence.”
At the relevant time, section 232, governing the award of costs by the Supreme Court, provided:
“(1) The Supreme Court may, if it thinks fit, order any person convicted before it to pay the whole or any part of the costs incurred in or about the prosecution and conviction, including any proceedings before the examining justices.
(2) Where any person is acquitted on indictment, then, if ―
(a) he has not been committed to or detained in custody or bound by recognizance to answer the indictment; or
(b) the indictment is for an offence under the Merchandise Marks Ordinance;
(c) the indictment is by a private prosecutor for the publication of a defamatory libel or for any corrupt practice within the meaning of the House of Assembly Ordinance,
the Supreme Court may order the prosecutor to pay the whole or any part of the costs incurred in or about the defence, including any proceedings before the examining justices.
(3) Costs payable under this section shall be taxed by the Registrar.”
Section 231(1) was repealed by the Criminal Procedure (Amendment) Ordinance 2005 with effect from 22 December 2005.


ITEMID: 001-81610
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF URYANSKIY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1947 and lives in Novovolynsk.
5. In July 1999 the applicant instituted civil proceedings in the Novovolynsk Court (Нововолинський міський суд Волинської області) against his former employer, the State OJSC “Chervonogradske GMU” (“the Company”; ДВАТ «Червоноградське гірничо-монтажне управління») for various payments.
6. On 6 October 1999 and 17 December 1999 the court awarded the applicant a total of 3,355.37 Ukrainian hryvnyas (UAH).
7. On 21 January 2000 the Chervonograd Bailiffs Service (Відділ Державної виконавчої служби Червоноградського міського управління юстиції Львівської області) initiated the enforcement proceedings for collecting the above amount.
8. On 20 August 2005 the applicant received UAH 1,409.80.
9. The remaining judgments debt is outstanding on account of the Company's lack of funds and the holding of its assets in tax lien.
10. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1