ITEMID: 001-66796
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF KRASTANOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 6-1;Not necessary to examine P1-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1952 and lives in Sofia.
8. The applicant is a highschool teacher. At about 11.45 a.m. on 2 March 1995 he went to a café with two of his work colleagues.
9. At about 12 noon seven or eight police officers with masks on their heads rushed into the café.
10. Subsequently it was established that they were officers of the Ministry of Internal Affairs, the Special Anti-Terrorism Squad („Специализиран отряд за борба с тероризма“) and the Central Service for Combating Organised Crime („Централна служба за борба с организираната престъпност“) and that they were conducting an operation for the arrest of several persons suspected of criminal offences who were apparently known to go regularly to that café.
11. The officers shouted “Police!” and ordered everyone in the café to lie down, put their hands up and close their eyes. The applicant asked where exactly he should put his hands. One of the officers told him that he should put his hands behind his neck. The applicant did so and lay down on the bench on which he had been sitting. He remained in this position for about two or three minutes, during which he was hit two or three times on the head with a solid object. After that he was ordered to go out of the café. The applicant asked why he had been hit, since he had done nothing to provoke this. He also said that he had difficulties moving because he was feeling a strong pain in his head and was losing blood. The police officers threatened the applicant and swore at him, using abusive language. They dragged him outside the café, hit him several times and threw him down on the ground. The applicant was hit several times in the head with the butt of a gun and received several kicks in the ribs. After that the officers ordered the applicant to produce his identity papers. He handed his wallet to an officer who checked the papers. At that point the applicant’s colleagues managed to explain that there had apparently been some kind of confusion as to the applicant’s identity and the beating stopped. The officers told the applicant that they had mistaken him for another person and apologised.
12. The applicant crossed the street with the help of his two colleagues and then lost consciousness. An ambulance was called which brought him to the neurosurgical ward of the Medical Academy in Sofia.
13. The applicant was examined by the emergency ward team. It was found that he had a cerebral trauma with an epidural haematoma in his left temporal area, cerebral contusion, polyfragmentary fracture of the left temporal bone, fracture of the ninth rib on the right side of the thorax and a subcutaneous emphysema in the right thoracic half. Six hours after his admission to hospital it was decided that urgent head surgery was needed. The applicant underwent decompressive craniotomy in the left temporal area, evacuation of the epidural haematoma and coagulation of the damaged arteria meningica media at the left side of his head.
14. The applicant remained in hospital until 13 March 1995.
15. During the following five or six months he was experiencing pain and had to be treated with analgesics and vasodilatory drugs. He was on sick leave until 27 November 1995.
16. The applicant was directed for another operation, which he could not afford financially.
17. On 10 September 1998 the competent commission for assessing disability issued a decision stating that the applicant suffered from second degree disability. The diagnosis on which this decision was based was the following: traumatic subdural subarachnoid and extradural haemorrhage, posttraumatic and postoperative status in respect of an acute epidural haematoma in the left temporal area, defect after a depressive polyfragmentary fracture of the left temporal bone, posttraumatic encephalopathy, quadripyramidal syndrome, latent hemiparesis on the right side, central subcompensated otoneurological syndrome, neuritis of the left auditory nerve (light degree), postfractural status of the ninth rib at the right side, arterial hypertension.
18. On 26 May 1995 the applicant took proceedings under the State Responsibility for Damage Act against the Ministry of Internal Affairs, the Central Service for Combating Organised Crime, the Specialised AntiTerrorism Squad and the Sofia City Directorate of Internal Affairs. He alleged, in particular, that officers of those entities had illtreated him in violation of the relevant rules for the use of force by the police. He claimed 500,000 Bulgarian levs (BGL) as compensation for nonpecuniary damage and BGL 100,000 as compensation for pecuniary damage.
19. A prosecutor took part in the proceedings ex officio, as required by section 10(1) of the State Responsibility for Damage Act (see paragraph 46 below).
20. The first hearing was held on 2 October 1995. The applicant provided particulars of his claim for compensation for pecuniary damage. The defendants did not dispute most of the facts alleged by the applicant, but maintained, inter alia, that he had provoked the beating through his inadequate behaviour, that the use of force by the police had been lawful and that they were not liable for damage caused in the course of police operations. They also disputed the amount of compensation sought. The Sofia City Directorate of Internal Affairs submitted that it was not liable because it had not participated in the planning or the execution of the operation on 2 March 1995. The applicant requested the defendants to provide a copy of the order pursuant to which the operation had been carried out, in order to clarify whose officers had participated in it. He also presented written evidence and asked for leave to call witnesses. The court admitted the written evidence, gave leave to the applicant to call witnesses, ordered an accounting and a medical expert reports and directed the defendants to provide a copy of the order pursuant to which the operation had been carried out.
21. The next hearing was held on 19 February 1996. The court heard a witness called by the applicant, the applicant in person, and the medical and accounting experts. It admitted their reports in evidence. Counsel for the Specialised AntiTerrorism Squad stated that the order pursuant to which the 2 March 1995 operation had been carried out was classified and a copy could be produced only if the court made a special ruling to that effect. The court agreed and adjourned the case.
22. The third hearing took place on 20 May 1996. The order pursuant to which the operation of 2 March 1995 had been carried out was admitted in evidence. The court allowed the applicant to adduce further written evidence and adjourned the case.
23. The hearing listed for 10 June 1996 did not take place because the Sofia City Directorate of Internal Affairs had not been duly summoned.
24. The fourth and last hearing was held on 30 September 1996. The court heard the parties’ closing arguments. In his observations the prosecutor who participated in the proceedings ex officio concluded that the applicant’s averments of illtreatment were true and that his action was wellfounded.
25. The Sofia City Court gave judgment on 4 November 1996. It found that the police officers involved in the 2 March 1995 incident had used force uncalled for, in breach of the National Police Act which regulated the use of force by the police. It further found that the use of force had not been provoked in any way by the applicant and accordingly rejected the defendants’ argument of contributory negligence. The court found that the police officers had been employed by the first three defendants (the Ministry of Internal Affairs, the Central Service for Combating Organised Crime and the Specialised Anti-Terrorism Squad), but not by the fourth defendant (the Sofia City Directorate of Internal Affairs). Finally, it found that the applicant had sustained damage due to the unlawful behaviour of the officers. It awarded the applicant the whole amount of the compensation for nonpecuniary damage sought (BGL 500,000) and partially dismissed his claim for compensation for pecuniary damage, awarding him BGL 63,064.57 under that head. The court ordered that both amounts should bear interest at the statutory rate starting from 2 March 1995 until settlement. The first three defendants were ordered to pay jointly and severally.
26. On 26 November 1996 the Ministry of the Internal Affairs appealed against the judgment to the Supreme Court. The Central Service for Combating Organised Crime also appealed on 2 December 1996. The Ministry’s appeal concerned only the amount of the compensation for nonpecuniary damage awarded to the applicant, whereas the Central Service for Combating Organised Crime’s appeal concerned the awards of compensation for both pecuniary and nonpecuniary damage.
27. Copies of the appeals were served on the other parties to the case. As the Specialised AntiTerrorism Squad had changed its address, the initial service of process, having been made at its old address, had to be repeated at the new one.
28. On 28 October 1997 the case file was sent to the Supreme Court.
29. In December 1997 the Code of Civil Procedure (“the CCP”) was amended to provide for threeinstance proceedings. Accordingly, all appeals which had been filed with the Supreme Court prior to the amendment were to be forwarded to the newly created courts of appeals. The amendment entered into force on 1 April 1998.
30. On 1 April 1998 the Supreme Court of Cassation forwarded the appeals to the newly created Sofia Court of Appeals.
31. On 9 July 1998 the Sofia Court of Appeals, acting in pursuance of the new rules of civil procedure adopted with the 1997 amendment of the CCP, instructed the appellants – the Ministry of Internal Affairs and the Central Service for Combating Organised Crime – to indicate which parts of the judgment below they were appealing against and why they considered that that judgment was erroneous.
32. On 29 July 1998 the Central Service for Combating Organised Crime complied with the court’s instructions, submitting an amended appeal in which it specified that it was appealing only against the amount of nonpecuniary compensation awarded to the applicant, because it considered that the Sofia City Court had erroneously assessed the extent of the damage suffered by him.
33. On 30 July 1998 the Ministry of Internal Affairs withdrew its appeal and on 24 August 1998 the Sofia Court of Appeals discontinued the proceedings in respect of that appellant.
34. A hearing listed for 29 October 1998 did not take place, because the Sofia Appellate Prosecutor’s Office, which had to participate in the proceedings ex officio, had not been duly summoned.
35. A hearing fixed for 18 February 1999 was adjourned because counsel for the applicant was ill and could not attend.
36. A hearing was held on 15 April 1999. The parties did not submit additional evidence. The court heard their closing argument and accepted their written observations. The Central Service for Combating Organised Crime reiterated its position that the claim for compensation for nonpecuniary damage, allowed in full by the Sofia City Court, was excessive, in particular because the applicant had contributed to the inflicting of his injuries through his inadequate behaviour during the 2 March 1995 incident.
37. The Sofia Court of Appeals gave judgment on 5 May 1999. It held that the applicant had been illtreated by police officers, that he had not contributed in any way to that and that as a result of the illtreatment he had sustained serious injuries. Accordingly, the court upheld the Sofia City Court’s judgment. No appeal having been lodged within the statutory timelimit, the judgment entered into force on 27 May 1999.
38. On 24 June 1999 the applicant’s lawyer requested the Sofia City Court to issue a writ of execution pursuant to the judgment. On 29 June the court issued such a writ against the Ministry of Internal Affairs, the Central Service for Combating Organised Crime and the Specialised AntiTerrorism Squad.
39. On 5 July 1999 a monetary reform took place, whereby BGL 1,000 became 1 new Bulgarian lev (BGN).
40. On 12 July 1999 the applicant presented the writ of execution to the financial department of the Ministry of Internal Affairs and four days later, on 16 July, he received the compensation awarded to him by the courts together with the interest accrued. He was altogether paid BGN 2249.84, BGN 563.06 representing the principal amount of compensation awarded by the courts (BGN 500 for nonpecuniary damage and BGN 63.06 for pecuniary damage), BGN 1,570.80 representing interest, and the remainder costs and expenses for the proceedings.
41. The Government submitted that an internal inquiry had been carried out by the Ministry of Internal Affairs in relation to the events of 2 March 1995, but that they had not been able to find any documents relating to that inquiry in the archive of the Ministry. The applicant submitted that he knew of the existence of a preliminary inquiry carried out by the prosecution authorities, but that he had no information about it.
42. Section 40(1) of the National Police Act, as in force at the material time, read, as relevant:
“... [P]olice [officers] may use ... force ... when performing their duties only if they [have no alternative course of action] in cases of:
1. resistance or refusal [by a person] to obey a lawful order;
2. arrest of an offender who does not obey or resists a police [officer]; ...
5. attack against citizens or police [officers]; ...”
Section 41(2) provided that the use of force had to be commensurate to, in particular, the specific circumstances and the personality of the offender. Section 41(3) imposed upon police officers the duty to “protect, if possible, the health ... of persons against whom [force was being used]”.
43. Articles 128, 129 and 130 of the Criminal Code (“the CC”) make it an offence to cause a light, intermediate or severe bodily injury to another. Article 131 § 1 (2) provides that if the injury is caused by a police officer in the course of or in connection with the performance of his or her duties, the offence is an aggravated one. This offence is a publicly prosecutable one (Article 161 of the CC).
44. Under Bulgarian law criminal proceedings for publicly prosecutable offences can be opened only by the decision of a prosecutor or an investigator (Article 192 of the Code of Criminal Procedure (“the CCrP”)). The prosecutor or the investigator must open an investigation whenever he or she receives information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the CCrP). During the relevant period the CCrP provided that if the information to the prosecuting authorities was not supported by evidence, the prosecutor had to order a preliminary inquiry (verification) in order to determine whether the opening of a criminal investigation was warranted (Article 191 of the CCrP).
45. Section 1 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“) provides that the State is liable for damage suffered by private persons as a result of the unlawful acts of civil servants, committed in the course of or in connection with the performance of their duties. The State’s liability is strict, i.e. no fault is required on the part of the civil servants in the commission of the unlawful acts (section 4 in fine).
46. Section 7 of the Act provides that the action in responsibility must be brought against the authority by whom the civil servant concerned is employed. A prosecutor participates in the proceedings ex officio (section 10(1)).
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61053
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF YVON v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Georg Ress
TEXT: 8. The applicant was born in 1931 and lives in Saintes (Charente-Maritime). He is a winegrower.
9. On 19 May 1993 plans for improving a major road on the edge of the Saintes urban area were declared to be in the public interest. Completion of this operation required the expropriation of various plots of land, including twenty-one hectares belonging to the applicant. The expropriation liability order was issued on 5 September 1994.
10. On 12 September 1994 the expropriations judge for the département of Charente-Maritime issued an expropriation order giving rise to a transfer of ownership.
On 28 September 1994, in the absence of an agreement between the applicant and the State as the expropriating authority (represented by Mr H., an inspector from the Charente-Maritime Revenue Department) on the amount of compensation to be paid, the latter applied to the expropriations judge. In an order of the same day the expropriations judge for the département of Charente-Maritime set 4 November 1994 as the date for the site inspection and stated that the public hearing would be held immediately afterwards.
On 3 November 1994 Mr P., Deputy Director of the Charente-Maritime Revenue Department, filed submissions in his capacity as Government Commissioner. The applicant’s lawyer then requested an adjournment because of the lateness of these submissions. The hearing was accordingly fixed for 18 November 1994.
In a judgment of 9 December 1994, having heard the applicant, Mr H., the State’s representative in the proceedings, and Mr P., the Government Commissioner, the expropriations judge assessed the compensation payable by the State at 1,441,517 French francs (FRF).
11. On 5 January 1995 the applicant appealed against this decison and filed a memorial with the Expropriations Division of the Poitiers Court of Appeal, in which he assessed the amount of compensation due at FRF 3,763,698.
On 13 April 1995 the Charente-Maritime Revenue Department filed a memorial in reply, signed by Mr H., in which it asked that the decision be upheld; a sheet of paper entitled “Study of the local property market”, listing thirteen contracts of sale and one judgment, was appended. On 24 April 1995 the applicant’s representative wrote to the signee of the memorial, requesting that he send a full copy of the contracts and decisions cited. In a letter of 18 July 1995 the Deputy Director of the Charente-Maritime Revenue Department, Mr P., refused to produce the documents on the ground that tax officials were bound by a duty of professional confidentiality.
On 17 August 1995 the applicant’s counsel replied to the Deputy Director of the Revenue Department as follows:
“... it is regrettable that almost three months were required to send a brief reply to a standard request for production of documents, dated 24 April 1995, even though the case is due to be heard on 22 September. This aside, you are mistaken in failing to distinguish between your roles as Director of the Revenue Department and as representative of the expropriating authority in legal proceedings brought in application of the Decree of 11 December 1973 – Article R. 179 of the Code of State Property.
In this latter capacity, you are obliged to respect the fundamental principle of adversarial proceedings and the provisions of the new Code of Civil Procedure which impose a basic obligation on the parties to produce the evidence to which they refer. This principle also applies when you are acting in your capacity as Government Commissioner, which for the moment poses no further difficulties. I might add that had your memorial contained, as a minimum, sufficient indications to enable me to order the contracts from the land registry, I would have refrained from asking you to produce these documents.
I am therefore obliged to ask the court ... to order discovery of the documents which you refer to, unless the court prefers purely and simply to discount this evidence, which would mean that it would rule only on the basis of my own terms of comparison ...”
On 4 September 1995 Mr P., standing in for the Director of the Vienne Revenue Department in his capacity as Government Commissioner, lodged submissions in support of a cross-appeal with a view to the hearing before the Expropriations Division of the Court of Appeal (initially set for 22 September 1995, the hearing was subsequently postponed at the applicant’s request until 24 May 1996); he assessed the compensation in issue at FRF 1,396,267.
The applicant filed a memorial in reply, referring in particular to an infringement of his right to a fair trial in the following terms:
“...
In the present case, the Director of the Revenue Department representing the expropriating authority and the Director of the Revenue Department acting as Government Commissioner are one and the same person, even if, for form’s sake, the Director of the Revenue Department is represented by two separate individuals, which is a fiction, since, as we have seen, the same person replied to the expropriated party’s counsel on behalf of the expropriating authority and also signed the Government’s Commissioner’s submissions.
It follows that the Director of the Revenue Department may take part in the present proceedings only in his capacity as the State’s representative or in his capacity as Government Commissioner, and may not combine the two roles. Otherwise, the parties do not enjoy a fair trial within the meaning of Article 6 of the European Convention on Human Rights ...”
According to the Government, the registry of the Expropriations Division informed the applicant and the Director of the Revenue Department within the Property Department, in letters dated 9 May 1996, of further grounds of appeal lodged on the same day by the Government Commissioner.
12. In a judgment of 21 June 1996 the Expropriations Division of the Poitiers Court of Appeal established the compensation amount at FRF 1,542,867. It held that the applicant’s request that the court dismiss the intervention by the Director of the Revenue Department in his capacity as Government Commissioner was ill-founded. The judgment stated:
“... The [applicant’s] criticisms of the Director of the Revenue Department’s activities and of the dual nature of his functions are unfounded because:
(i) The Director of the Revenue Department’s twofold status as Government Commissioner and ... representative of the expropriating authority does not amount to a defect; despite the strangeness of this situation, there is nothing to prevent the Director of the Revenue Department representing the expropriating authority and simultaneously assuming the functions of Government Commissioner.
(ii) The Director of the Revenue Department’s joint role as Government Commissioner and representative of the expropriating authority does not deny the expropriated party a fair trial provided that the Government Commissioner does not participate in the decision-making process within the expropriations court.
(iii) In any event, in the specific case of this appeal, two Directors of Revenue Departments intervened, namely the Director of the Charente-Maritime Revenue Department, representing the State, and the Director of the Vienne Revenue Department as the Government Commissioner (see the appointments of substitutes dated 25 August 1995 and 2 May 1996 in the case file).
Consequently, the [applicant’s] claims on the basis of Article 6 of the Convention ... must be rejected.
...
As regards the [applicant’s] request that the State provide him with a copy of the contracts and judgments referred to as terms of comparison, and in the light of the adversarial principle, it seems initially that this request is admissible since it is not ‘a new ground which was not raised at first instance’ but new claims intended to secure dismissal of the other party’s claims (Article 654 of the New Code of Civil Procedure);
However, this request [by the applicant] ... must be rejected since the information provided is sufficient to allow identification of the property sold and the price agreed upon together with free discussion of their value as evidence;
...”
13. The applicant appealed on points of law, alleging in particular that there had been a violation of his right to a fair trial. He submitted that it was not necessary for a party to participate in the decision-making process for its intervention to be considered a violation of Article 6 of the Convention, and complained that the Government Commissioner had been the last to speak, after the expropriated party, and that the latter had had no opportunity to reply. The applicant also complained that the Court of Appeal had dismissed his request for production of copies of the terms of comparison cited by the Government Commissioner.
On 8 April 1998 the Court of Cassation dismissed this appeal on the following grounds:
“... Firstly, the judgment correctly accepts that, since Article 6 of the Convention ... is not applicable, in that the Government Commissioner does not take part in the Expropriations Division’s decision-making process, it is not necessary to find his intervention inadmissible.
Secondly, there is no text prohibiting the parties from replying to the submissions made by the Government Commissioner at the hearing.
...
The Court of Appeal justified its decision in law ... by accepting in the exercise of its unfettered discretion that the information provided had been sufficient to enable identification of the property sold and the price agreed upon together with free discussion of their value as evidence.
...”
14. In a number of départements, including Charente-Maritime, the Revenue Department is the sole authority empowered to carry out purchases of real property, real-property rights or businesses, by agreement or through compulsory purchase orders, on behalf of all the State’s public, civil or military bodies (Article R. 176 of the Code of State Property). In the expropriation proceedings for which it is consequently responsible, it carries out, on behalf of the expropriating authority, “all the acts incumbent on the latter” (Article R. 178 of the same Code). Article 179 of the Code of State Property, in the version applicable at the material time, further provides:
“In determining compensation for expropriation, the officials of the Revenue Department appointed by order of the General Director of Revenue shall act before the Expropriations Divisions on behalf of the State’s expropriating bodies.
...
The appointments provided for in this Article shall not apply to the officials mentioned in [Article 13-7 of the Expropriations Code].”
15. The relevant provisions of the Expropriations Code are worded as follows:
“Failing agreement between the parties, compensation shall be determined by an expropriations judge appointed for each département from among the judges who are members of a tribunal de grande instance.”
“No objection may be filed against judgments given at first instance.
An appeal lies to the court of appeal within a period of fifteen days from service of judgments given in application of Chapter III.”
“An extract of the judgment shall be notified at the request of the most diligent party.
It may be referred to the Court of Cassation. Appeals on points of law shall be brought, investigated and tried in accordance with the procedure provided for in Section II of Title II of Law no. 47-1366 of 23 July 1947.”
“The Director of the Revenue Department (Property) of the département in which the Expropriations Division is based shall exercise the function of Government Commissioner before this Division.
The Director of the Revenue Department (Property) may appoint officials from his Department as his substitute in the role of Government Commissioner before the court mentioned in Article R.13-1.
Before the Chamber dealing with the appeal, he may be substituted either by Directors of Revenue Departments (Property) from other départements within the court of appeal’s territorial jurisdiction, or by officials from the Revenue Department (Property) whom he shall appoint specifically for this purpose.”
“Cases brought before the courts cited in Articles L. 13-1 and L. 13-22 shall not be transmitted to State Counsel’s Office if the latter’s presence is not required at the hearing.”
“Before the Chamber dealing with the appeal, State Counsel may nevertheless ask to see the file in all cases where he believes that his Office should be represented. In such an event, he may attend the hearing in order to lodge those submissions which he considers necessary, without prejudice to those of the Government Commissioner.”
“Failing agreement between the parties within one month of receiving notification of the expropriating authority’s offers ... the case may be referred to the expropriations judge by the more diligent party under the conditions set out in Article L. 13-4.
...”
“A copy of the order fixing the date and time for inspection of the site shall be sent to the expropriating authority by the registrar of the court, with a view to its communication to the interested parties and to the Government Commissioner.
If the case is referred to the judge by the expropriated party, the parties shall be notified directly by the registrar of the date of the site inspection.
The registrar shall append a copy of the memorials and other documents in his possession to the notification sent to the Government Commissioner.
The parties and the Government Commissioner must be informed at least fifteen days in advance of the date of the site inspection.
The visit to the site shall be conducted in their presence. A report shall be produced on the inspection.”
“The judge may not appoint experts.
In order to assess the value of non-transferable real property and immovable property which present particular valuation difficulties, he may exceptionally be assisted during the inspection of the site by a notary or retired notary appointed from a list drawn up for the whole area within the court of appeal’s territorial jurisdiction by its president, on the basis of proposals from the regional Chamber of Notaries.
Exceptionally, he may also appoint a person whom he considers suitably qualified to provide advice in the event of technical problems concerning the assessment of compensation sums other than those referred to in the preceding paragraph.”
“The public hearing shall be held on completion of the inspection of the site.
At the latest during this inspection, the judge shall inform the parties or their representative, as well as the Government Commissioner, of the place and time of the hearing, which may take place outside the premises in which the court sits.”
“The judge shall hear the representative of the expropriating authority and the expropriated parties ... The parties may discuss only points covered in the memorials which they have submitted.
...”
“The Government Commissioner shall present oral observations and file submissions.
The Government Commissioner’s submissions shall contain the elements needed for the court to be informed of the situation.
In particular, they shall include a reasoned valuation of the main compensation and, as appropriate, of the subsidiary compensation due to each owner of rights and, where necessary, information that would allow for automatic application of the provisions of Articles L. 13-14 to L. 13-19.”
“Where one of the parties is unable to produce certain documents in support of its memorials, the judge may, where he considers this necessary for the resolution of the case, authorise the party, at its request, to produce these documents at the hearing.”
“The judge shall rule within the limits of the parties’ submissions as they appear in their memorials and of the Government Commissioner’s submissions where the latter proposes a valuation that is lower than that of the expropriating party. In such a case, the Government Commissioner’s written submissions must be appended to the case file.
If the respondent has not lodged a memorial in reply to the applicant within the period of one month provided for in Article R. 13-23, he shall be deemed to abide by his offers if the respondent is the expropriating authority, and by his reply to the offers if the respondent is the expropriated party.
Where the expropriated party has failed to reply to the authority’s offers and to produce a memorial in reply, the judge shall determine the compensation on the basis of the evidence available to him.”
“The judgment shall set out, inter alia, the reasons in point of law or of fact for which all awards of main or subsidiary compensation are granted. Where the judgment rejects the Government Commissioner’s submissions proposing a valuation that is lower than that of the expropriating authority, it must specifically state the reasons for such a rejection.
The judgment may be delivered by the judge without the Government Commissioner being present.
The judgment shall be notified by the most diligent party to the other party and to the Government Commissioner.”
“Appeals may be lodged by the parties or by the Government Commissioner within fifteen days from notification of the judgment ...
...”
“On pain of having his appeal dismissed, an appellant must lodge with or send to the registry of the Chamber, within two months of the date of the appeal, his memorial and the documents which he intends to produce.
The respondent must lodge with or send to the registry of the Chamber, within a month following notification of the appellant’s memorial, his memorial in reply and the documents which he intends to produce.
The memorials and documents must be produced in as many copies are there are parties, plus one additional copy.
The registrar shall serve each party and the Government Commissioner with a copy of the documents filed with the registry as soon as these are received.
A cross-appeal may be brought by the parties in their memorial in reply or by a declaration made at the registry of the Chamber. If brought by the Government Commissioner, it must take the second form.”
“The Division [of Appeal] shall rule on the basis of memorials. However, the parties may present argument briefly on aspects of the memorials they have submitted.
Exceptionally, an expert opinion may be prepared on the basis of a reasoned order from the court. In such a case, if the expropriating authority and the expropriated parties cannot agree on the choice of a single expert, he shall be appointed by the President of the Chamber.”
“The provisions of Articles R. 13-33, R. 13-35, R. 13-36 (first paragraph) and R. 13-38 shall be applicable to the appeal procedure.”
16. The Government Commissioner has the “role of party to the proceedings” (Conseil d’Etat, Assembly, 13 December 1968, Association syndicale des propriétaires de Champigny-sur-Marne et Musso).
17. Intervention by the State official responsible for property as representative of the expropriating authority, under the Decree of 12 July 1967, and simultaneously as Government Commissioner, in application of Article R. 13-7, paragraphs 1 and 3, of the Expropriations Code, does not constitute a ground for alleging procedural impropriety (Paris Court of Appeal, Expropriations Chamber, judgment of 30 January 1981). In addition, the Court of Cassation has ruled that the fact that the Government Commissioner’s role was assumed by the inspector of property who drew up the preliminary opinion assessing the compensation offers on behalf of the expropriating authority does not contravene Article 6 of the Convention, in that the Government Commissioner does not take part in the Expropriations Division’s decision-making process (Third Civil Division, judgment of 21 October 1992, Sté Rivom c. Département de la Côte-d’Or, Bulletin civil (Bull. civ.) III, no. 279).
18. Emphasising that no document may be lawfully submitted to the court without the parties having an opportunity to discuss it in adversarial proceedings and that “this rule applies to all the courts, even in the absence of a specific text to this effect”, the Court of Cassation has ruled that, where the Government Commissioner’s submissions propose a valuation lower than that of the expropriating authority or contains new elements, the expropriations judge is obliged to ensure that these have been brought to the attention of the parties and that the latter have an opportunity to discuss them freely before the end of the hearing (Third Civil Division, two judgments of 10 July 1969: Prudhomme c. ville de Rennes and Consorts Josso c. ville de Saint-Nazaire, Bull. civ. III, judgments nos. 1 and 3, no. 566, pp. 423-24).
19. The report in question contained the following suggestion:
“FOURTH SUGGESTION:
Proposal to amend Articles R. 13-32, R. 13-35, R. 13-47 et seq. of the Expropriations Code as regards the role of the Government Commissioner before the Expropriations Divisions.
Under Article R. 13-7 of the Expropriations Code, the Director of Revenue (Property) of the département in which the Expropriations Division is based exercises the functions of Government Commissioner before this Division during proceedings to establish the compensation due to expropriated parties.
Although no text sets out the exact nature of his role, it is clear from the provisions of the Expropriations Code that the Government Commissioner’s main task is to provide the court, which cannot, in principle, appoint an expert, with the information it requires and in particular with a reasoned assessment of the main and subsidiary compensation due to each owner whose property is subject to expropriation.
For this purpose, the Government Commissioner has access to information on tax statements and assessments held by the tax authorities and, in particular, to the land charges register constituted by all property transfers which must be formally registered.
However, doubts have been cast on the compatibility of certain aspects of the Government Commissioner’s role with the principles derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Thus, it has been noted that the Government Commissioner may propose a valuation of the expropriated assets that is lower than the valuation suggested by the expropriating authority (Article R. 13-35 of the Expropriations Code); he may lodge an appeal or cross-appeal against the judgment determining the level of compensation (Article R. 13-47 et seq. of the Code), although he may not appeal on points of law, except as regards costs imposed on him for the proceedings; and, where he is not the appellant, the Government Commissioner’s submissions are not served on the parties but simply included in the case file (Article R. 13-32).
Expropriated parties have also indicated that they have experienced difficulties in obtaining information contained in the land charges register, to which the Government Commissioner has unimpeded access by virtue of his official functions.
Finally, it has been observed that, whilst the Government Commissioner is not the State’s representative before the Expropriations Division, there may be, at least in appearance, a certain ambiguity where the State itself is the expropriating authority, particularly when, under Article R. 176 of the Code of State Property, the State is represented before the Expropriations Divisions in a number of départements by the Revenue Department.
As long ago as 1992, the Ombudsman included in his annual report a letter, dated 28 January 1992, in which he drew the Minister of Justice’s attention to the Government Commissioner’s role.
Whilst it is unnecessary to state that the Commissioner does not participate in the decision-making process within the Expropriations Division, which is by no means obliged to follow his submissions, and although the Court of Cassation ensures that expropriated parties’ rights are respected and the adversarial principle as defined in the new Code of Civil Procedure is effectively complied with, it would nonetheless appear desirable, in order to put an end to possible doubts regarding the conformity of certain aspects of the Government Commissioner’s current role with the requirements of the European Convention and particularly Article 6 § 1, to redefine his functions, limiting them to those of a specialist entrusted with providing the judge and the parties to the compensation proceedings with the information held by the Revenue Department on the state of the property market, so that this situation is improved.”
20. Decree no. 55-22 of 4 January 1955 reforming land registration provides, inter alia:
“For each municipality, a land charges register shall be maintained by the land registrars, in which, as information is submitted, extracts from published documents shall be registered under the name of each owner and by building, with a reference to their classification in the archives.
The land charges register shall present an up-to-date profile of the legal status of buildings as indicated by the published documents.”
“No changes to the legal status of a building may be the subject of a cadastral transfer if the deed or judicial decision recording this change has not previously been published in the land charges register.”
21. Article 39 of Decree no. 55-1350 of 14 October 1955 is worded as follows (version as amended by Decree no. 98-553 of 3 July 1998):
“Any request for information shall be drawn up in two typed or printed copies on a form supplied by the authorities or on one copied in accordance with the conditions established by an instruction published in the Official Journal of the Revenue Department, the second copy being obtained by duplication.
Subject to the application of paragraph 1 of Article 40, such requests must include:
(1) All items of information provided for in Article 9 of the Decree of 4 January 1955 which are necessary to identify the natural persons or legal entities on whose behalf the information is requested;
The individual designation of the buildings referred to in the request, i.e. indications regarding the municipality in question, the section and identification number on the cadastral map and, for parts of buildings, an indication of the lot number.
Surnames and non-personal names indicated in the applications must appear in capital letters. First names shall be written in small letters.
The applications shall be signed and dated by those submitting them.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81207
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF EVT COMPANY v. SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
TEXT: 4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 7 May 1996 the Commercial Court in Leskovac (Privredni sud u Leskovcu) ordered “Jedinstvo”, a company based in Lebane, to hand over 87,480 kilograms of common salt to the applicant, and pay its legal costs in the amount of 2,850 Yugoslav Dinars (“YUD”).
6. This judgment became final by 8 June 1996.
7. On 21 June 1996 the applicant filed an enforcement request in respect of the judgment.
8. On 24 June 1996 the Commercial Court in Leskovac (“the Commercial Court”) issued an enforcement order against the respondent company (“the debtor”).
9. On 17 October 1996 the Commercial Court adopted a decision stating that the debtor could not deliver the specified amount of common salt and, instead, ordered it to pay to the applicant YUD 218,700.
10. In the meantime, the debtor was transformed into four separate companies - “Holding Jedinstvo”, “Caričin grad” and “8. novembar”, all based in Lebane, and “Agrar” based in Bošnjaca (“the debtors”).
11. On 21 December 1998 the Commercial Court ordered the debtors to pay the applicant YUD 218,700 with statutory interest as of 30 October 1996, plus another YUD 4,850 for legal costs, and ruled that they had jointly assumed the financial obligations of the initial debtor.
12. On 12 February 1999 and 17 September 1999, the Commercial Court and the High Commercial Court in Belgrade (Viši privredni sud u Beogradu), respectively, rejected the debtors' requests for a stay of the enforcement proceedings.
13. On 23 December 1999 the applicant filed a submission with the Commercial Court, seeking the expedition of these proceedings.
14. Mr Marko Momčilović subsequently became the applicant's owner and authorised representative.
15. Throughout this time and during the years that followed, the applicant proposed different means of enforcement, including bank account seizures as well as the auctioning of the debtors' movable and, if needed, immovable assets. It emphasised that, where appropriate, police assistance should be sought.
16. On 11 July 2001, 25 March 2002 and 14 November 2002, respectively, the applicant filed requests to this effect with the Commercial Court and urged that the proceedings be expedited.
17. On 21 February 2004 the applicant sent a complaint, by post, to the Court of Serbia and Montenegro, stating, inter alia, that the debtors still had sufficient assets to pay their outstanding obligation, as the Commercial Court would have otherwise been “only too glad” to declare the enforcement impossible (“sud bi [inače] jedva [do]čekao da [to] konstatuje i obavesti nas kako je nemoguće sprovesti izvršenje”). This complaint, however, appears not to have reached the Court of Serbia and Montenegro.
18. By 18 March 2004 the debtors paid the applicant a total of 838,148.06 Serbian Dinars, the domestic currency having been renamed in the meantime.
19. On 22 November 2004 and 30 November 2004 the applicant complained to the Commercial Court, on 15 December 2004 to the High Commercial Court in Belgrade, and on 2 July 2001 and 15 December 2004 to the Supreme Court of Serbia (Vrhovni sud Srbije), respectively.
20. On 21 January 2005 the President of the Commercial Court informed the applicant that the enforcement proceedings had been hindered by the debtors' employees as well as the police. While the former physically prevented the bailiffs from conducting an inventory of the debtors' movable assets, on several separate occasions, the latter refused to assist the bailiffs in their subsequent attempts to seize those very assets. The President further noted that the most recent refusal of the police to assist the bailiffs occurred on 18 November 2004, which is why the enforcement had to be postponed. Finally, he stated that the proceedings would recommence as soon as the judge handling the case clarified the situation with the head of the local police, and concluded that the refusal of the police to assist the bailiffs in their duties was common in cases involving “discontented workers” engaged in the obstruction of judicial enforcement proceedings.
21. Article 4 § 1 provides that the enforcement court is obliged to proceed urgently.
22. Under Article 47, if need be, bailiffs may request police assistance. Should the police fail to provide such assistance, the enforcement court shall inform the Minister of Internal Affairs, the Government, or the competent parliamentary body of this failure.
23. This Act entered into force on 23 February 2005, thereby repealing the Enforcement Procedure Act 2000. In accordance with Article 304, however, all enforcement proceedings instituted prior to 23 February 2005 are to be concluded pursuant to the Enforcement Procedure Act 2000.
24. Article 1 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement (which includes awards granted by final court judgments).
25. Article 2 states that such interest shall be calculated on the basis of the official retail price index (mesečna stopa rasta cena na malo) plus another 0.5% monthly (mesečna fiksna stopa).
26. Article 40 §§ 1-3 provides, inter alia, that judicial insolvency proceedings may be instituted by a company's creditor, providing that it can substantiate its claim and document that the debtor in question cannot otherwise cover its outstanding obligations.
27. Under Article 54 § 1, inter alia, the Serbian Central Bank (Narodna banka Srbije) shall monitor the solvency of all corporate entities and initiate judicial insolvency proceedings in respect of those whose bank accounts have been “blocked” due to outstanding debts for a period of 60 days consecutively, or for 60 days intermittently, within the last 75 days.
28. The relevant provisions of this Act read as follows:
“The Supreme Court of Serbia shall set up a Supervisory Board [“Nadzorni odbor”] (“the Board”).
This Board shall be composed of five Supreme Court judges elected for a period of four years by the plenary session of the Supreme Court of Serbia.”
“In response to a complaint or ex officio, the Board is authorised to oversee judicial proceedings and look into the conduct of individual cases.
Following the conclusion of this process, the Board may initiate, before the High Personnel Council, proceedings for the removal of a judge based on his unconscientious or unprofessional conduct, or propose the imposition of other disciplinary measures.”
29. Articles 213, 242, 243 and 245 of this Code incriminate “obstruction of an official in the performance of his or her duties” (sprečavanje službenog lica u vršenju službene dužnosti), “abuse of office” (zloupotreba službenog položaja), “judicial malfeasance” (kršenje zakona od strane sudije) and “official malfeasance” (nesavestan rad u službi), respectively.
30. Article 340 incriminates “non-enforcement of a court decision” (neizvršenje sudske odluke).
31. This Code entered into force on 1 January 2006, thereby repealing the Criminal Code 1977.
32. The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86038
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF VISAN v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Partly inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1949 and lives in Bucharest.
5. In a final decision of 28 June 1993, the Bucharest County Court convicted the applicant of fraud, sentenced her to six years’ imprisonment and awarded damages to the victim. The court did not address the argument that the offence had been pardoned by Decree no. 11/1988.
6. On 5 August 1993 the applicant was placed in detention, where she remained until 22 July 1994.
7. In a final decision of 3 October 1995, the Supreme Court of Justice acting on an application of the Procurator General (recurs în anulare), quashed the final decision of 28 June 1993 and ended the criminal trial against the applicant on the ground that the offences committed had been pardoned. It upheld the remainder of the decision.
8. On 6 March 1998 the applicant lodged an action with the Bucharest County Court, under Articles 998-999 of the Civil Code, seeking compensation from the State for the damage caused by the “severe miscarriage of justice which had led to her illegal detention for almost one year”. She claimed 200,000,000 Romanian lei (ROL).
9. The case was tried by ten courts, corresponding to three levels of jurisdiction. The courts examined the case either under Article 504 of the Code of Criminal Proceedings (“CCP”) or under the Civil Code. In her pleas the applicant invoked the Civil Code supplemented by the CCP provisions above.
10. In a final decision of 28 January 2003 the Supreme Court of Justice rejected the applicant’s action. It considered that the facts of the case allowed for the application of Article 504 of the CCP as interpreted by the Constitutional Court’s decision no. 45 of 10 March 1998 (see paragraph 18 below). However, it considered, for the first time, that the applicant should have brought her claims within one year from the date on which her conviction had been quashed (Article 505 of the CCP). As she failed to do so, her action was time-barred.
11. On 17 February 2003 the Supreme Court of Justice delivered an attestation informing the applicant that her action had been rejected as timebarred.
12. On 7 November 2003 the applicant obtained a copy of the final decision of 28 January 2003, after several unsuccessful attempts and complaints lodged with the Ministry of Justice and the Supreme Court of Justice concerning the unreasonable delay in the drafting of the court decision.
13. Decree no. 11/1988 on the pardon of certain criminal offences and the reduction of various sentences reads as follows, in so far as relevant:
“Criminal offences for which a sentence of up to ten years’ imprisonment has been imposed shall be pardoned.”
14. The relevant provision on the pardon in the Criminal Code reads as follows:
“(1) The pardon extinguishes the criminal responsibility for the act committed...
(2) The pardon does not affect ... the rights of the victim.”
15. The relevant Articles of the Civil Code state as follows:
“Any act committed by a person which causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”
“Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence.”
16. According to the provisions of Article 3 of Decree no. 167/1958 the general time-limit for lodging an action for compensation is three years from the date when the damage occurred.
17. The relevant Articles of the CCP prescribe:
“Anyone who has been convicted by means of a final decision is entitled to compensation from the State for any loss or damage sustained where after a retrial it is held in a judgment against which no appeal lies that he did not commit the offence in question or that no offence was committed.
Anyone against whom a preventative measure has been taken, and in whose favour a decision to discontinue proceedings or of acquittal has been given for the reasons listed in the preceding paragraph, also enjoys a right to compensation for damage sustained...”
“... The claim [for compensation] must be lodged within one year from the date of the final acquittal or from the order discontinuing the proceedings.”
18. In a decision of 10 March 1998, published on 18 May 1998 in the Official Journal, the Constitutional Court, to which an objection had been submitted alleging that the first paragraph of Article 504 of the CCP was unconstitutional, ruled as follows:
“Under Article 48 of the Constitution, the State is liable for damage caused by miscarriages of justice committed in criminal proceedings. It follows that the principle of the State’s liability towards victims of a miscarriage of justice in a criminal trial must be applied to all victims of such a miscarriage. ... The Court notes that the legislature has not brought the provisions of Article 504 of the Code of Criminal Procedure into conformity with those of Article 48 § 3 of the Constitution. ... Consequently, bearing in mind that Article 504 of the Code of Criminal Procedure provides for only two cases in which the State’s responsibility for miscarriages of justice committed in criminal proceedings may be engaged, it follows that this restriction is unconstitutional, since Article 48 § 3 of the Constitution does not allow for any such limitation.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84005
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GASHI v. CROATIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Remainder inadmissible;Just satisfaction reserved
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1962 and lived in Pula.
5. The applicant was an employee of a glass factory in Pula. On 20 July 1988 the factory granted the applicant and his family a flat for their use in Pula, consisting of a kitchen, one room and a communal toilet and measuring 30.60 square metres.
6. On 3 June 1991 Parliament enacted the Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo), which regulated the sale of publicly-owned flats previously let under protected tenancies, giving the right to holders of such tenancies of publicly-owned flats to purchase them from the provider of the flat under favourable conditions.
7. Under that Act the applicant as the buyer and the Pula Municipality as the seller concluded a contract for the sale of the said flat on 8 May 1996. A copy of the contract was submitted for approval by the State Attorney's Office. On 28 May 1996 approval was given.
8. In a decision of 21 September 1998 the Pula Municipal Court (Općinski sud u Puli) recorded the applicant's ownership of the flat in the court's land register. A copy of this decision was sent for information to the Istra County State Attorney's Office in Pula (Državno pravobraniteljstvo Istarske županije u Puli).
9. On 29 March 2000 the Istra County State Attorney's Office brought a civil action against the applicant and the Pula Municipality in the Pula Municipal Court, seeking annulment of the sale contract in question. They argued that the applicant could not have obtained a protected tenancy of the flat because the glass factory where he had worked had had no right to dispose of the said flat and that such a right had been vested in the Pula Municipality alone. The Municipal Court accepted these arguments and in its judgment of 22 February 2001 annulled the sale contract. The judgment was upheld by the Pula County Court (Županijski sud u Puli) on 15 December 2003. The relevant parts of its judgment read as follows:
“The Boris Kidrič Glass Factory's decision of 20 July 1988, granting the first plaintiff Shani Gashi the right to use a flat in Pula at 19 M. Oreškovićeva Street, , consisting of one room, a kitchen and a communal toilet, clearly and expressly shows that the flat in question as regards its size and equipment is to be considered an unsuitable flat (neuvjetan stan) – provisional accommodation (nužni smještaj).
The question whether the first plaintiff actually acquired the flat in question as provisional accommodation cannot be assessed separately in the proceedings at issue; instead we have to accept the presumption that it was so, which the first plaintiff knew or should have known, owing to which he could not acquire a protected tenancy of the flat in question since under section 8 of the Housing Act (Official Gazette nos. 51/1985 and 42/1986) in force at the time, a protected tenancy could not be acquired in respect of flats and premises used as provisional accommodation, as correctly established by the court of first instance in the impugned judgment.
Since the main condition for sale of a flat under the Protected Tenancy (Sale to Occupier) Act (Official Gazette nos. 43/1992, 69/1992, 25/1993, 2/1994 and 44/1994) is that the buyer is a holder of a protected tenancy of the flat which is the subject of the sale, the first-instance court correctly found that the contract in question concluded between the first and the second plaintiff on 8 May 1996 was null and void under section 52 of the Obligations Act because it had had no [legal] basis as the first plaintiff had not been a holder of a protected tenancy of the flat.
This court likewise accepts further findings of the first-instance court: that the first plaintiff had not acquired a protected tenancy of the flat in question, and the glass factory ... had had no right to dispose of the flat to give it to the first plaintiff for his use and so that he could acquire a protected tenancy, which he had therefore not done because, as said above, the glass factory actually gave the flat to the first plaintiff merely as provisional accommodation.
...
The evidence submitted does not show that the first plaintiff acquired a protected tenancy of the flat in question or that the flat was part of the glass factory's housing assets, or that the Pula Municipality or the City of Pula recognised the first plaintiff's protected tenancy of the flat ... and therefore the sale contract in question ... is in fact null and void because it has no [legal] basis – that is to say because the first plaintiff was not a holder of a protected tenancy of that flat...”
10. The applicant then lodged a constitutional complaint, arguing that a number of his constitutional rights, including his right to property, had been infringed because the lower courts' judgments had deprived him of his ownership of the flat in question. On 3 February 2005 the Constitutional Court dismissed the complaint.
11. The relevant provisions of the Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993) read as follows:
“A protected tenancy cannot be acquired on:
1. Flats designated for temporary or provisional accommodation...”
12. The Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/1991 with further amendments - “the Act”) regulates the conditions of sale of flats let under protected tenancies.
Section 1 of the Act gave the right to the holders of protected tenancies of publicly-owned flats to purchase such flats under favourable conditions, provided that each holder bought only one flat.
Section 21 obliged a seller to submit the sale contract for approval by the competent State Attorney's Office within eight days.
13. The relevant part of the Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/99), as then in force, read:
“(1) Each contractual obligation shall have a permissible [legal] basis [causa].
(2)The basis is not permissible if it contravenes the Constitution, peremptory norms or morals.
...”
“Where there is no [legal] basis or where it is not permissible, the contract is null and void.”
“The right to plead nullity shall be inextinguishable.”
14. The relevant parts of the State Attorney's Office Act (Zakon o državnom odvjetništvu, Official Gazette no. 75/1995) read:
“...
... the competent State Attorney's Office shall ... seek the annulment of a contract ... which contravenes peremptory norms.”


ITEMID: 001-90416
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: JUSSI UOTI v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Jussi Uoti, is a Finnish national who was born in 1964 and lives in Turku. He was represented before the Court by Mr M. Brander, a lawyer practising in Turku. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties and as they appear from the documents on the file, may be summarised as follows.
The police investigated allegations that a bank had advanced loans without the necessary guarantees to such an extent that its solvency had been endangered and that unlawful financial inducements had been offered. The investigation also focused on whether there had been debtor dishonesty or fraud.
On 29 January 1996 the applicant was questioned by the police as a suspect and he was subsequently charged with four counts of economic crime allegedly committed in 1991.
On 18 April 1996 the Salo District Court (käräjäoikeus, tingsrätten) upheld the applicant’s claim that he had not been properly summoned to the trial and declared the case against him inadmissible. On 24 September 1996 the Turku Court of Appeal (hovioikeus, hovrätten) upheld the decision. On 20 October 1997 the Supreme Court (korkein oikeus, högsta domstolen) quashed the previous decisions and remitted the case to the District Court.
Meanwhile, a second hearing was held on 12 June 1996. On 6 August 1996 the applicant was charged with aggravated fraud allegedly committed in 1991. At the third hearing on 27 August 1996, the District Court upheld his claim that he had not been properly summoned. On 11 February 1998 the Court of Appeal quashed the decision. On 8 February 1999 the Supreme Court upheld the appellate court’s decision.
At the same hearing on 27 August 1996 the public prosecutor was found to be biased and a new prosecutor was assigned to the case, which was then adjourned until 11 November 1996.
On 21 January 1998 the District Court upheld co-defendant X’s claim that he had not been properly summoned and that the statute of limitations had already expired. On 8 October 1998 the Court of Appeal quashed the decision and remitted the case to the lower court. On 3 November 2000 the Supreme Court upheld the appellate court’s decision.
Meanwhile, on 30 March 2000 the District Court noted in its minutes that the parties disagreed as to whether the “reasonable time” requirement in Article 6 of the Convention had been complied with, and that the court would decide at a later stage whether the trial could continue.
On 18 May 2000 the District Court issued a separate decision dismissing the applicant’s request that the charges against him be declared inadmissible due to the length of the proceedings. It held, inter alia, that the case was exceptionally difficult, involving voluminous evidence and being of significant public interest. On 19 December 2000 it dismissed the applicant’s renewed request. On 12 January 2001 the applicant lodged a procedural complaint with the appellate court. It was dismissed on 13 March 2001.
There were 28 days of hearings in the District Court up to the end of 2000, held at intervals of approximately two to five months.
On 28 June 2001 a Spanish court acceded to the request of the Finnish Government for the extradition of the applicant, who was residing in Spain at the time, to Finland to serve a prison sentence which had previously been imposed on him. According to an arrangement, the applicant would be granted immunity from further prosecution in Finland for offences he had previously committed.
On 14 August 2001 the District Court found that the criminal case against the applicant was barred on the basis of immunity.
On 30 November 2001 the Ministry of Justice applied to the Spanish authorities for permission to continue the applicant’s prosecution in Finland in respect of offences other than those for which he had been extradited. On 4 October 2002 the relevant Spanish court acceded to the request. The applicant’s appeal was rejected on 2 December 2002. On 10 January 2003 the Spanish Government consented to his continued prosecution in Finland.
The applicant challenged the lawfulness of the continued prosecution before the Finnish courts. During spring 2003 he changed counsel. On 20 August 2003 the District Court rejected his claim for continued immunity, finding that the immunity had been annulled by the afore-mentioned decision of the Spanish Government. The decision was upheld by the Court of Appeal on 3 or 13 December 2003.
The present case was adjourned until 9 December 2003 owing to the need to replace the public prosecutor, who had fallen ill.
Meanwhile, on 25 February and 20 August 2003 respectively the District Court dismissed the applicant’s further requests that the charges be ruled inadmissible owing to the length of the proceedings. On 9 February 2004 it also dismissed his renewed request, observing that the question of whether the length of the proceedings had been unreasonable would be examined in due course and that any redress required could be given at the end of the proceedings. The appellate court upheld the last-mentioned decision on 30 June 2004. On 12 October 2004 the Supreme Court refused leave to appeal.
On 31 August 2004 the District Court dismissed the applicant’s renewed request to have the charges against him declared inadmissible on account of the length of the proceedings.
During the trial the police conducted at least 12 additional investigations, the last of which, according to the Government’s observations in the case of Uoti v. Finland (no. 61222/00, § 19, 9 January 2007), was completed on 28 November 2003.
There had been a total of some 50 days of hearings prior to 30 March 2004 when the District Court had started to obtain evidence. Thereafter, there were 38 days of hearings up until the end of October 2004.
On 30 December 2004 the Parliamentary Ombudsman, noting that he lacked competence to interfere with the ongoing proceedings, drew the Government’s attention to the need for the allocation of adequate financial resources to both the District Court and the authorities involved in the case.
On 21 March 2006 the District Court gave its judgment. It found that the “reasonable time” requirement laid down in the Constitution and the Convention had not been respected.
The court dismissed as time-barred the charges concerning four counts of debtor dishonesty and acquitted the applicant of two counts of aggravated fraud. Finally, it dismissed the charge of debtor dishonesty. It ordered the applicant and two co-defendants jointly to pay damages in the amount of some 100,000 euros (EUR), together with interest from 25 May 1992.
The public prosecutor appealed. The Court of Appeal held two preparatory hearings in November 2006. In the main hearing the case was heard over five days in January 2007.
On 22 October 2007 the Court of Appeal gave its judgment, convicting the applicant of aggravated fraud. It concurred with the lower court that the “reasonable time” requirement had not been respected and that the applicant was therefore entitled to redress, which had to be significant and substantial. It also had to be given in a clear and measurable manner. No reason had emerged not to impose a sentence. The court, however, found that the applicant had contributed to the length of the proceedings as, at the time when the summonses were served, he had been abroad and thereby been difficult to reach. Nevertheless, the court stated that it would reduce the applicant’s sentence by half owing to the lengthy proceedings.
Having noted the length of the standard sentence for the aggravated fraud in question and having as a mitigating factor taken into account that the sentence could have been imposed at the time of the imposition of the applicant’s previous sentences (which would have been more advantageous for the applicant) and in that connection the so-called maximum sentence rule laid down by Chapter 7, article 2, of the Penal Code (rikoslaki, strafflagen; as amended by Act no. 697/1991), the Court of Appeal noted that 60 days’ imprisonment would have been appropriate had the proceedings not been excessively lengthy. However, owing to the breach of the “reasonable time” requirement, the Court of Appeal sentenced him to an immediate term of 30 days’ imprisonment. It applied Chapter 6, article 7, point 3, of the Penal Code (as amended by Act no. 515/2003 which took effect on 1 January 2004). Having regard to the seriousness of the applicant’s offence, the damage thereby caused and the considerable advantage pursued and achieved, the court considered that the maintaining of general obedience to the law required that the prison term be an immediate one. The two latter factors led the court to conclude that community service was not an option.
The applicant requested leave to appeal to the Supreme Court, which was refused on 22 May 2008.
Chapter 6, article 7, point 3 of the Penal Code reads:
“In addition to what is provided above in section 6, grounds for mitigating the sentence that are also to be taken into consideration are
...
(3) a considerably long period that has passed since the commission of the offence;
if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result.”
Chapter 6, article 12, point 4, of the Penal Code provides:
“The court may waive the sentence if
...
4) the imposition of a sentence must be considered unreasonable or purposeless especially having regard to the factors mentioned in Chapter 6, article 6, point 3 and Chapter 6, article 7 or the measures taken by social and health services;
...”
In its judgment of 11 June 2004 (KKO 2004:58) the Supreme Court noted that, although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings, such a dismissal or declaration of inadmissibility might in some exceptional circumstances, for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case here. In considering whether there were grounds for applying Chapter 6, article 7, point 3, of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (here over 5.5 years) had been unreasonable. It concluded that, in this case, there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings.
In its judgment of 15 June 2005 (KKO 2005:73) the Supreme Court, applying Chapter 6, article 7, point 3, of the Penal Code, reduced the sentence by six months owing to the lengthy proceedings (some ten years). It imposed an immediate term of ten months’ imprisonment, finding that it was not justifiable to further mitigate the sentence by suspending the term of imprisonment.
On 1 February 2006 the Supreme Court delivered a judgment (KKO 2006:11) in which, applying Chapter 6, article 12, point 4, of the Penal Code, it afforded redress for the breach of the “reasonable time” requirement (here the proceedings had lasted over seven years) by waiving the sentence.


ITEMID: 001-110249
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF JIRSÁK v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant, Mr Zdeněk Jirsák, is a Czech national who was born in 1953 and is currently serving a sentence in Karviná Prison.
6. The applicant served his prison sentence in Valdice Prison in Sections C and D between 2000 and 2005.
7. Between 10 November 2000 and 29 January 2001, he shared cell no. 223, of a total surface area of 35.816 sq. m., with nine other prisoners. The cell was rectangular in shape with bunk beds along both of the longer walls. Next to the entrance, which was at one end of the cell, was a separate room with a toilet. At the opposite end of the cell were two large windows, measuring 1.44 sq. m each. One window and half of the second one could be opened. Yellow translucent pieces of fibreglass covered them from the outside at a distance of approximately 1.5 m. It was up to the detainees how and when the windows were opened. The cell was equipped with ten lockers, two tables and ten chairs.
8. During the whole period of his detention in cell no. 223 the applicant was employed in the prison laundry where he spent nine hours every working day. He was allowed to spend one hour a day outside in the yard. He could also watch television or take part in other recreational activities outside his cell. The applicant could take a hot shower twice a week and wash after work. He was guaranteed one warm meal per day and two hot meals four times a week. He had access to a range of cultural and sports activities, books, newspapers and magazines.
9. On 28 January 2001 at 7.30 p.m. the applicant broke his ankle in his cell while climbing down from his bunk bed. According to him, he fell because he was dizzy due to the stuffy air in the cell. He did not call for medical assistance as he thought that his ankle was just sprained. He took some pills containing Ibuprofen as a painkiller. In the morning, he was unable to walk due to a severe pain in his ankle, so his cell mates took him to the prison infirmary.
10. The prison doctor visually examined the applicant and considered him to be heavily intoxicated with medicaments, although he did not conduct a medical test. The doctor did not send him for an x-ray, because the person operating the prison’s x-ray machine was on holiday and due to the applicant’s alleged intoxication, his transfer to a hospital was, in his view, impossible. The applicant, having been proclaimed intoxicated, was sent to solitary confinement.
11. On the next day, 30 January 2001, the applicant was x-rayed and it was found that his ankle was broken. He was transferred to a prison hospital in Prague. The record shows that the applicant fully cooperated with the medical staff and was operated on at the hospital on 31 January 2001. He then stayed in Prague Prison, where he was treated until 20 March 2001. He was subsequently transferred to Brno Prison, where he continued his treatment, including physiotherapy. The treatment lasted for seven months overall, but the applicant has continued to see a doctor afterwards as he has developed arthritis in his broken ankle.
12. On 26 March 2001 the applicant was found guilty of the disciplinary offence of self-intoxication. He was sentenced to five days under the “closed prison” regime (uzavřené oddělení). He did not appeal.
13. He was also dismissed from his prison job because it was considered that on 29 January 2001 he had been absent from work due to his self-intoxication.
14. In November 2001 the applicant lodged a criminal complaint against the director of Valdice Prison alleging inadequate treatment of his injury.
15. On 1 February 2002 the Hradec Králové Regional Prosecutor’s Office informed him that his complaints were unjustified.
16. On 22 August 2002 the High Prosecutor’s Office expressed doubts about the conduct of the prison authorities towards the applicant and forwarded the complaints to the Ministry of Justice, Department of Prison Inspections (odbor generální inspekce, oddělení vězeňství) to investigate the matter. The prosecutor noted with concern that even though a medical report had found that the applicant had no longer been intoxicated at 3.10 p.m. on 29 January 2001, he still had not been sent for an x-ray but had been kept in solitary confinement until the next day; that the applicant had been dismissed from his prison job during the time of his injury; that he had not been paid sickness benefit; and that he had been subjected to disciplinary punishment for intoxication without any consideration to his claim that he had taken painkillers due to the injury he had suffered. The applicant did not inform the Court about the outcome of this investigation.
17. On 13 February 2004, in reply to another complaint by the applicant alleging overcrowding in the prison, the High Prosecutor’s Office informed him that it was aware of the fact that some sections in Valdice Prison were overcrowded and that the competent prosecutor had been taking steps to remedy the situation.
18. On 20 October 2005 the applicant sent another complaint challenging his treatment on 29 and 30 January 2001 to the Prison Directorate General (Generální ředitelství Vězeňské služby) which, on 29 November 2005, found it unsubstantiated.
19. The applicant instituted civil proceedings against the Czech Republic claiming compensation in respect of pecuniary damage arising from his injury, which had been caused by the unsatisfactory conditions of detention in cell no. 223 in Valdice Prison and inadequate treatment of the injury by the prison doctor.
20. In a judgment of 7 April 2005 the Jičín District Court (okresní soud) rejected his action, finding that at the material time the applicant had been held together with nine other inmates in a cell measuring 35.816 sq. m. (or 107,448 cubic metres) including a toilet, which was in accordance with Order of the Minister of Justice no. 20/1977 in force at the relevant time, which had required a minimum of 7 cubic metres per prisoner. The court based its findings on the testimony of the applicant, two of his cellmates at the time of the injury, other witnesses and several documents. The information about the cell dimensions was based on a report by the prison authorities and the court did not consider it necessary to measure the cell itself, as requested by the applicant. It did not find any illegality in the prison doctor’s conduct. It dismissed the applicant’s request to admit additional evidence as unnecessary.
21. The applicant appealed, arguing that the conditions of his detention had been unsatisfactory. He claimed that the court had rejected his request to admit in evidence a medical expert report to assess the conditions of his detention and his request that the court measure the cell itself and not rely on the prison report.
22. On 19 October 2005 the Hradec Králové Regional Court (krajský soud) upheld the first-instance judgment endorsing the District Court’s opinion.
23. On 10 May 2007 the Supreme Court (Nejvyšší soud) dismissed the applicant’s appeal on points of law (dovolání). It upheld the conclusions of the lower courts that the conditions of the applicant’s detention, including the dimensions of his cell, complied with domestic law.
24. The applicant lodged a constitutional appeal (ústavní stížnost) complaining about the conditions of his detention and violations of his right to a fair trial in the precedent proceedings.
25. The Constitutional Court (Ústavní soud) sent the appeal to the lower courts that had previously been involved in the case for comments.
26. On 24 October 2007 the Constitutional Court dismissed the applicant’s constitutional appeal as manifestly ill-founded, holding that the applicant had merely disagreed with the outcome of the proceedings. It added that the decisions of the ordinary courts had been logical and sufficiently reasoned without any appearance of arbitrariness. The court did not refer in its reasoning to the written observations submitted by the lower courts. It appears from the decision that the District Court maintained, in a short submission, that its decision had not violated the applicant’s constitutional rights and that the Regional Court referred only to the text of its judgment. None of these observations were sent to the applicant, the court finding that they did not bring anything new to the case.
27. In 2007 the applicant instituted proceedings against the prison doctor who treated him on 29 January 2001, for the protection of his personality rights. On 3 December 2010 the claim was dismissed on the ground that the doctor had been acting in his official capacity and therefore it was the State which should have been sued. At the same time, the prescription period for the claim had already expired.
28. On 22 July 2010 the applicant instituted proceedings for damages against the State before the Prague 2 District Court (obvodní soud) under the State Liability Act for inhuman conditions of detention for the whole period of his sentence. Those proceedings are pending.
29. Under Article 11, natural persons have the right to protection of their personality rights (personal integrity), in particular their life and health, civil and human dignity, privacy, name and personal characteristics. Under Article 13 § 1, natural persons have the right to request that any unjustified infringement of their personality rights be ended and that the consequences of such infringement be eliminated. They also have the right to appropriate just satisfaction. Paragraph 2 provides that, in cases where the satisfaction obtained under paragraph 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage. Under Article 16 if pecuniary damage was caused by unjustified interference with personality rights the liability of the perpetrator is governed by the provisions of the Civil Code on liability for damage.
30. Articles 420 et seq. regulate civil liability for causing damage. Everybody is liable for damage caused by his or her unlawful conduct. Only pecuniary damage can be claimed under those provisions
31. Section 13 provided that the State is liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. A person who has suffered loss on account of such an irregularity was entitled to damages under section 31.
32. Section 16(2) provides that each prisoner must have a bed and a place to store his personal belongings. Under section 16(5) a prisoner has the right to medical care in accordance with a special law, subject to the limitations associated with the aim of the punishment. Section 26(1) provides that a prisoner has a right to file complaints and requests to the competent authorities in order to enforce those rights and interests protected by law. Such complaints and requests must be made without delay.
33. Section 17 regulated the accommodation of prisoners, but did not specify cell dimensions. Under section 5 cells had to have a toilet and a sink, separated from the rest of the room by a non-transparent curtain.
34. The amendment provides that there must be at least 4 sq. m of cell surface per each inmate. Placing a person in a multiple occupancy cell that will result in less then 4 sq. m for an inmate is permitted only when the total nationwide number of prisoners exceeds the capacity of that type of prison, rendering it impossible to satisfy the minimum surface requirement. Under section 17(7) bunk beds can be used only if the distance between the two storeys is at least 80 cm and the cell has at least 7 cubic metres of space per prisoner.
35. Section 24 regulated the accommodation of prisoners. It stipulated the minimum cell space per prisoner as 7 cubic metres and the minimum height of the cell as 2.8 m. Bunk beds were allowed if the distance between the two storeys was at least 100 cm.
36. The CPT stated, inter alia, as follows:
“60. Recent legislative changes concerning remand imprisonment have resulted in a substantial decrease of prisoners in Czech prisons. However, the delegation’s findings during the 2002 visit indicated that there was still a lack of sufficient living space for many prisoners in Czech prisons.
In this connection, the CPT was concerned to learn that the already modest standard of 3.5 m² per person, which had been criticized by the Committee (cf. paragraph 47 of the report on the 1997 visit), had recently been formally abolished. The CPT recommends that an official standard be re-established in the Czech prison system, guaranteeing at least 4 m² per prisoner in multiple occupancy cells.
[T]he CPT invites the Czech authorities to continue to pursue their efforts to bring about a permanent end to overcrowding; success in this area will require inter alia that full use be made of existing possibilities for non-custodial sanctions.
61. ...Valdice Prison is located on the premises of a seventeenth-century monastery, which was converted into a prison some 140 years ago. Its official capacity had been more than halved since the 1980s (from 2,700 to 1,280 prisoners); at the time of the visit, the prison was accommodating 1,387 male inmates (an occupancy rate of 108%).”
37. The CPT stated, inter alia, as follows:
“30. The Committee was pleased to note that the amendments to the Confinement Act and to the Remand Act in 2004 introduced the norm of a minimum of 4m² per prisoner in multi-occupancy cells. However, an exemption to this rule was introduced and, as the Czech authorities noted in their follow-up response of 14 April 2005 (cf. CPT/Inf (2005) 5), ‘based on a minimum accommodation area of 4m² per prisoner, most prisons are significantly overcrowded’.
Valdice Prison, described in paragraph 61 of the 2002 CPT visit report (cf. CPT/Inf (2004) 4), has a capacity of 1,094 and held 1,197 sentenced prisoners, of whom 629 were under the high security regime (Category D).”
38. The Committee observed, inter alia, as follows:
“19. The Committee is concerned about overcrowding in prisons (art. 10). The State party should take measures to overcome overcrowding in prisons and to ensure compliance with the requirements of article 10. Information should be provided on prison capacity and the actual prison population so as to permit the Committee to assess the level of overcrowding.”
NON_VIOLATED_ARTICLES: 3