ITEMID: 001-89390
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GULUB ATANASOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);No violation of Art. 5-3;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. Prior to the events at issue, in the 1980s, the applicant was convicted of theft and served a prison term. Several other sets of criminal proceedings were opened against him, some of which were terminated on the basis that the applicant, who suffered from schizophrenia, was found to be of unsound mind and therefore not criminally liable.
6. After 1990 the applicant spent several years in Germany until his expulsion on an unspecified date.
7. On 27 June 1999 two persons were robbed and murdered in their home in Plovdiv.
8. On 2 July 1999 the applicant was arrested, remanded in custody and charged with two counts of murder. The charges were later amended to robbery aggravated by murder.
9. In the course of the investigation approximately twenty witnesses were examined, some of them repeatedly. The investigator ordered numerous expert reports, including autopsies, analyses of blood stains and tissue, ballistic reports and reports by psychiatrists on the applicant's mental health. Several witness confrontations and identity parades were organised and other evidence was collected.
10. For several months in 2000 the case was dealt with by prosecution authorities at a number of levels in relation to the applicant's request for a third psychiatric examination (see paragraphs 29-31 below) and, additionally, on account of divergent views expressed by the investigator and prosecutors as regards the precise legal characterisation of the charges. On 27 December 2000 the Plovdiv Regional Prosecutor's Office submitted to the Regional Court an indictment against the applicant.
11. The trial started in January 2001. During the period when the applicant was deprived of his liberty three hearings were held. The hearing held on 19 February 2001 was adjourned as some of the psychiatric experts who had examined the applicant were absent. The next hearing took place on 8 and 9 May 2001, when the court examined twelve witnesses and twenty experts. Another hearing was held on 3 July 2001.
12. In a judgment of 4 June 2003 the Plovdiv Regional Court acquitted the applicant, holding that the charges against him had not been proven.
13. This judgment was quashed on 29 December 2003 by the Plovdiv Appeals Court, acting on an appeal by the prosecutor, on the basis that, inter alia, the lower court had failed to examine all relevant facts. The case was remitted to the Plovdiv Regional Court for a fresh examination.
14. The proceedings were terminated on an unspecified date following the applicant's death on 31 January 2006.
15. Following the applicant's arrest on 2 July 1999, he was remanded in custody by decision of an investigator and a prosecutor who found on the basis of witness testimony and other evidence that there was a reasonable suspicion as to the applicant's having been involved in the murders committed on 27 June 1999.
16. The applicant spent an unspecified period in the detention facility of the Plovdiv Investigative Service. Between 17 August and 28 September 1999 he was at the Psychiatric Department of Sofia Medical University for a psychiatric examination (see paragraphs 27 and 28 below).
17. On an unspecified date prior to March 2000 he was transferred to Plovdiv prison.
18. On an unspecified date in March 2000, while detained in Plovdiv prison, the applicant underwent a medical examination which detected the presence of a lump in his salivary gland. On 22 June 2000 he was transferred to Sofia and admitted to the Sofia prison hospital for the purpose of surgically removing the lump and analysing it with a view to establishing whether it was cancerous or benign. The applicant refused to undergo surgery and on 24 June 2000 was transferred back to Plovdiv prison.
19. On an unspecified date in June 2000 the applicant appealed against his detention, arguing that he had been unlawfully detained, that he was ill and needed immediate surgery and that there was no longer any risk of his absconding, re-offending or hindering the investigation.
20. On 30 June 2000 the Plovdiv Regional Court examined the applicant and his lawyer in person and dismissed the appeal on the basis that as the applicant had had a previous conviction for a serious wilful offence (theft) and had been charged with murder, there was a risk of his absconding or re-offending. As regards the applicant's health condition, the court noted the medical experts' opinion that the applicant could undergo surgery and receive adequate treatment in the Sofia prison hospital.
21. The applicant appealed stating, among other things, that he did not want to undergo surgery in the Sofia prison hospital because it did not offer appropriate conditions.
22. On 6 July 2000 the Plovdiv Appeals Court decided to release the applicant from custody and place him under house arrest. It held that there was sufficient evidence supporting a reasonable suspicion that the applicant had committed an offence and considered that, as correctly assessed by the Regional Court, there was a real risk of his absconding or re-offending. However, the court took into account the applicant's health. It noted the medical experts' opinion that the applicant might have developed a tumour of the salivary gland and decided that he would have greater freedom to choose the medical treatment he wished to have if placed under house arrest.
23. Following his release from custody the applicant sought and obtained, on 13 July 2000, permission to undergo surgery in a Plovdiv hospital. That was performed on an unspecified date before 26 July 2000, when he was discharged from hospital.
24. In July 2001 the applicant sought his release from house arrest. That was granted by a decision of 23 July 2001 of the Plovdiv Appeals Court on the basis that the proceedings against him risked exceeding a reasonable time. The applicant was released on bail on an unspecified date.
25. In the course of the criminal proceedings it was established that the applicant had been suffering from paranoid schizophrenia since 1984 and had been treated in psychiatric hospitals in 1985, 1986, 1988 and 1989.
26. The investigator in charge of the case ordered an expert report on the applicant's mental health. He was examined on 22 July 1999. The experts, relying mainly on the history of his illness, concluded that the applicant was of unsound mind.
27. The investigator ordered a second, more detailed examination by a larger group of experts, and, for that purpose, the applicant's placement at the Psychiatric Department of Sofia Medical University.
28. The applicant stayed at the psychiatric hospital between 17 August and 28 September 1999, when he was remanded in custody. In their ensuing report submitted on 19 October 1999 the medical experts considered that the applicant suffered from a form of schizophrenia but was not of unsound mind within the meaning of the Penal Code. The report mentioned that the applicant's stay in hospital had been effected “under the conditions of pre-trial detention”.
29. In January 2000, and again at a later date, the applicant and his lawyer insisted on a third detailed psychiatric examination in view of the divergent conclusions of the first two examinations. The investigator initially refused and the applicant appealed. By decisions of 15 and 20 March 2000 of the prosecuting authorities, the applicant's request was granted.
30. On 13 July 2000 the prosecutor in charge of the case wrote to the investigator stating that he did not object to a third examination and that the applicant could be placed in a psychiatric hospital for a period of up to thirty days.
31. On 3 August 2000 the investigator in charge of the case ordered a third psychiatric report to be prepared by a commission of eleven experts and, accordingly, the applicant's placement at the Psychiatric Department of Sofia Medical University. The investigator considered that the length of the applicant's stay was to be decided by the experts. The order referred to Article 117 of the Code of Criminal Procedure, which concerned the commissioning of expert reports. No reference was made to Article 155 of that Code (see paragraphs 34-37 below).
32. The applicant, who was under house arrest at that time, spent twenty-six days (from 8 August to 4 September 2000) at the Psychiatric Department of Sofia Medical University. In their ensuing report, eight of the experts came to the conclusion that despite his mental illness the applicant had been of sound mind at all relevant times and the remaining three experts considered that he was of unsound mind within the meaning of the Penal Code.
33. The experts also stated that the applicant had been placed at the Psychiatric Department “under conditions of house arrest” and had complied “relatively strictly” with the ensuing restrictions. They stated that towards the end of his stay in the hospital he had occasionally been tense and had made statements that he had been “fed up” and would commit suicide or “blow up the hospital”.
34. The relevant legislation at the time of the events in the present case was the Code of Criminal Procedure (“CCP”) of 1974 (abrogated with effect from April 2006).
35. Until 1 January 2000, Article 155 of the CCP provided that confinement in a psychiatric institution for the purpose of effecting a psychiatric examination of a person charged in criminal proceedings could be ordered by a prosecutor or a court. In practice, such measures were ordered by prosecutors where the case was pending at the investigation stage and by judges where the case was pending before a court.
36. This provision was amended with effect from 1 January 2000. The amended text required a judicial decision in all cases and also introduced a thirty-day maximum period of confinement (subject to not more than one extension) and other procedural guarantees.
37. Article 155 was in a chapter of the CCP entitled “Measures of procedural compulsion”. This chapter contained separate provisions for various such measures – pre-trial detention, house arrest, bail, undertaking not to leave the place of residence, suspension from office, confinement to a psychiatric hospital and several others. The provisions concerning each measure were phrased and structured as separate rules governing separate measures. The same structure was reproduced in the new CCP in force since April 2006.
38. At all relevant times, paragraph 6 of Article 155 provided that the period spent in psychiatric hospital for examination should count as a period of pre-trial detention. The effect of this provision was that persons sentenced to imprisonment could deduct from their prison term the time spent in a psychiatric hospital.
39. The Ministry of Health has issued an instruction for the guidance of health care personnel dealing with persons confined to psychiatric institutions (Инструкция No. 1 за дейността на здравните органи при настаняване на лица в психиатрични стационари по принудителен ред, ДВ бр.бр. 58/1981, 44/1991 и 48/2004). It clarifies, in its sections 4 and 5, that persons in pre-trial detention or serving a prison term are to be placed in facilities for detained persons and held under conditions of detention. The instruction does not mention persons under house arrest.
40. Under Article 181 of the CCP of 1974, decisions of an investigator could be appealed against to a prosecutor and prosecutors' decisions to a higher prosecutor.
41. Under section 2(4) of the Act, the State is liable for damage caused by forced medical treatment ordered by a court if its decision has been set aside for lack of lawful grounds. Under section 2(1) of the Act compensation is available for pre-trial detention set aside for lack of lawful grounds (construed in judicial practice as compensation in cases of acquittal or discontinuation of criminal proceedings). Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SMRDA have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4
5-5
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-22895
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: CREDIT BANK and OTHERS v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The first applicant is Credit Bank AD (“Credit Bank”) and the second applicant is Multigroup Bulgaria JSC Holding (“Multigroup”). They are commercial companies incorporated in Bulgaria and have their registered offices in Sofia. The application was submitted also on behalf of a third company, Discount House EOOD (“DH”) (the third applicant), which ceased to exist on 2 December 1996, when it was wound up and merged into the second applicant, its successor. Before the Court the applicants were represented by Mr N. Valner, a solicitor practising in London.
The respondent Government were represented by Mrs V. Djidjeva, Ministry of Justice.
The application is based on the applicant companies’ assertion that the Bulgarian Government nullified their private transaction with State enterprises through retrospective legislation and by procuring favourable judgments of the Supreme Court and the Supreme Court of Cassation.
The transaction in question was a debt assignment. The applicant companies had bought debt owed between State-owned enterprises in respect of natural gas delivered under an inter-governmental agreement.
The Government consider that the judgments of the Supreme Court and the Supreme Court of Cassation declaring this transaction null and void as contrary to the law were not based on retrospective legislation and, being in conformity with the relevant law, cannot be seen as an arbitrary State interference with possessions.
The facts of the case, as submitted by the parties, may be summarised as follows.
Under a 1986 inter-governmental agreement (“the Yamburg agreement”), the Soviet Union undertook to supply natural gas to Bulgaria in exchange for Bulgaria’s participation in the construction and equipment of pipelines in the Soviet Union and deliveries of other commodities. Bulgaria received natural gas from the Soviet Union under two other similar agreements, dating from 1974 and 1986. The Yamburg agreement was amended in 1991 and later reconfirmed and amended by protocols signed in 1993 between Bulgaria and Ukraine and between Bulgaria and the Russian Federation.
In the years after 1986 a number of acts of Parliament, governmental decrees, regulations and instructions dealt with various aspects of the construction-for-gas scheme. By enacting them the State was performing a dual function, being the legislator and at the same time the owner and manager of the relevant assets. Regulation in the economic area was typically effected through subordinate legislation (see below, Relevant domestic law and practice, on the transition of Bulgarian law from that of a fully State-owned centrally controlled economy to that of a market economy).
Several State enterprises and banks were instructed to work on the Yamburg project. They entered into direct contracts with Soviet and later Russian enterprises, thereby fixing certain prices, responsibilities and other conditions. The participation of Bulgarian State enterprises changed whenever the State re-assigned responsibilities.
The 1991 and 1993 protocols amending the Yamburg agreement provided that the State enterprises involved in the project had to introduce changes in their direct contracts. The direct contracts between the Bulgarian and Russian or Ukrainian enterprises, including those signed in 1993, invariably stipulated that they were subject to amendment in case of changes in the underlying inter-governmental agreements.
Some of the construction works carried out in compliance with the inter-governmental agreements was financed directly from the State budget (section 8(1) of Decree No. 50 of the Council of Ministers of 4 August 1986), whereas others were financed by State enterprises.
By Decree no. 44 of 30 December 1988 the Council of Ministers decided that a State-owned bank, Biochim, should finance the Yamburg project. The bank was instructed to provide funds for the construction works under the Yamburg agreement and to receive reimbursement from another State enterprise - which later adopted the name Bulgargas - out of the revenues collected from gas consumers. The decree further stipulated that sums received in excess of the planned revenues should be paid into the State budget and that in case of insufficient revenues the State budget would cover the difference.
The distribution of the imported gas to Bulgarian consumers was thus the task of Bulgargas, which gradually began to handle the financing of certain construction works too.
Since a significant part of the construction works carried out by Bulgaria under the Yamburg agreement preceded the beginning of gas deliveries, the Bulgarian State incurred expenses in the period 1986-1991 which were expected to be covered by the proceeds from gas supplied to Bulgarian consumers over a number of years.
The big gas consumers in the country were State industrial enterprises. Having been conceived to function in the conditions of a centrally administered economy and to produce for the former communist countries, many of them ran into substantial difficulties after 1990 and defaulted on payment of their debts owed to Bulgargas. Significant unpaid arrears for the gas imported under the Yamburg and other inter-governmental agreements thus accumulated (“the unpaid gas debt”) which in turn affected the State budget.
The Law on the 1993 State Budget, published in June 1993, listed among the expected budget revenues “arrears arising out of gas importation in past years”. The Council of Ministers adopted regulations for the implementation of the 1993 State budget, published in the summer of 1993. Regulation 12 provided as follows:
“The State Company Bulgargas shall pay every month into the State budget the difference between all income from the sale of natural gas at domestic prices determined by the Council of Ministers and the actual expenditure incurred in the importation and distribution, including investment expenditures incurred in the implementation of inter-governmental agreements.”
The Law on the 1994 Budget, adopted by Parliament and published in March 1994, also listed as budget revenues the income from gas imported in return for Bulgarian participation in the Yamburg system.
Regulation 27(1) of the Regulations for the implementation of the 1994 budget, published in the State Gazette in April 1994 (Council of Minister’s Decree No. 77), contained the same text as Regulation 12 of 1993.
In addition, Regulation 27(2) provided as follows:
“... debt owed to Bulgargas JSC and Energoimpex by clients in the country for the sale of natural gas and energy supplied between 1991 and 1993 pursuant to inter-governmental agreements shall be collected in accordance with the Law on the Collection of State Debts.”
The 1995 budget adopted in May 1995 again listed among the expected revenues the income from the sale of natural gas imported under the Yamburg agreement, including past arrears.
It further provided that Bulgargas should collect the arrears through the fiscal authorities, in accordance with the Law on the Collection of State Debts, and should seek writs of execution against the debtors.
The 1996 budget also contained similar provisions while expressly referring to the revenues from the sale of Yamburg natural gas as “State debts”.
Bulgargas has at all relevant times been a wholly State-owned enterprise. Until 29 June 1993 it was a “State Company” within the meaning of Decree No. 56/1989 on Economic Activity. On that date it was transformed into a wholly State-owned joint-stock company, in accordance with the Commerce Act and the specific legislation on reorganisation of State enterprises (see below, Relevant domestic law and practice, for all questions concerning the particular legal status of such entities and the legal regime of their assets and management).
Among the biggest debtors owing significant arrears for Yamburg gas delivered between 1991 and 1993 were Himko and K (Kremikovzi), two of the country’s largest industrial enterprises, both wholly State-owned.
The applicant companies entered into negotiations with Bulgargas with a view to purchasing at a discount the “unpaid gas debt” owed by Himko and K. In a report drawn up by the managers of Bulgargas later it was asserted that their efforts to secure cash inflow through debt assignment averted an imminent grave disruption of gas deliveries with potentially dire consequences for the whole national economy.
In June 1994 a first draft contract was submitted to the Council of Ministers. On 1 August 1994, following discussions on the matter, the Council of Ministers agreed in principle while fixing a ceiling on the amounts to be assigned, requiring an undertaking by the assignees that they would not seek to have Himko or K declared in a state of insolvency or have their assets attached, and setting out further conditions. The decision of 1 August 1994 also stated that the amended draft contract should be approved by the Ministers of Industry, Finance and Power Engineering.
An amended draft contract was submitted to the Minister of Industry who issued a letter dated 6 September 1994 stating that the conditions set out in the decision of the Council of Ministers were satisfied but directing that an approved schedule of payments should be appended.
The debt assignment contract was signed on the same day by the first applicant and DH as the assignees and Bulgargas as the assignor.
According to the contract the first applicant and DH purchased at a discount “unpaid gas debts”. These were 1,252,186,494 Bulgarian levs (“BGL”) principal owed by Himko (the equivalent of about 20,890,000 US dollars at the applicable exchange rate) and a similar amount owed by K., as well as additional amounts in respect of interest due. The discount was 24% on the principal of the purchased debt and 18% on the interest.
The first applicant and DH agreed to pay directly to various companies amounts apparently owed by Bulgargas to them in respect of construction works on pipelines, including - for approximately one third of the price - those effected by a State-owned enterprise pursuant to the Yamburg agreement. In respect of the interest, the price was to be paid to Bulgargas only.
The contract contained an arbitration clause.
According to the applicants, Himko did not make any payments. Without initially challenging the debt assignment, Himko’s managers informed the applicants that they were under an obligation to pay through the fiscal authorities. Later Himko disputed the validity of the contract and the applicants brought judicial proceedings against it which ended with judgments declaring the debt assignment null and void (see below, Judicial proceedings). A significant part of Himko’s debt was eventually set off against its tax liability by decision of the fiscal authorities based on, inter alia, Regulation 27(2) of April 1994 (see above). The triangular set-off concerned sums owed by Himko to Bulgargas (the unpaid gas debt), sums owed by Bulgargas to the State and sums owed by the fiscal authorities to Himko (tax refunds).
The managers of K did not question the validity of the debt assignment and began payments immediately upon notification thereof. Within six months K paid to the applicants BGL 654,731,354, approximately half of the debt. K also agreed to sign a novation contract directly with the first applicant and DH. That contract, signed on 15 September 1994, introduced certain modifications in the manner and timetable of payments and contained an arbitration clause. K stopped paying after March 1995 and later unsuccessfully challenged the validity of the debt assignment in proceedings against the applicants (see below). Eventually, on 17 January 1997, the applicants sold the remainder of K’s “unpaid gas debt” to DSK (State Savings Bank).
The first applicant and DH, for their part, made several payments to Bulgargas and another company between 5 October 1994 and 6 March 1995 in respect of the price of the purchased debt. According to the applicants, they have paid a total of BGL 697,731,586.
On 6 October 1994 Himko sent a letter to the Council of Ministers concerning the validity of the debt assignment. On 10 October and 14 October 1994 the Ministers of Industry and Finance wrote to Bulgargas, Himko and K expressing the view that the debt assignment contract was not valid or had not entered into force, as no schedule of payments had been included, contrary to the Council of Ministers’ decision of 1 August 1994.
On 5 January 1995 the assignment of the unpaid gas debt was discussed at a meeting of the Council of Ministers. The Government considered that it was contrary to the Law on the 1994 State Budget, Regulation 27 of April 1994, and the Law on the Collection of State Debts. Instructions were issued for measures to be taken against the managers of Bulgargas for having acted in breach of the law. It was further decided that there should be an “immediate suspension of the transfer of the debts ... and invalidation of the entries in the accounts ...”.
In 1995 K, having suspended payments to the applicants, brought proceedings against the first applicant and DH before the Arbitration Court of the Bulgarian Chamber of Commerce and Industry seeking a declaration that the novation contract of 15 September 1994 was invalid. By a decision of 7 August 1995 the Arbitration Court found that the contract was valid. It rejected the claim that pursuant to the Law on the 1995 State Budget and the implementing acts the arrears owed to Bulgargas by K had become the property of the State and that therefore their assignment was to be considered invalid.
On 19 July 1995 Bulgargas brought a claim before the Arbitration Court seeking recovery of an amount from the first applicant and DH. The amount sought was the difference between the sums paid by the first applicant and DH to Bulgargas and the sums received by the applicants from the debtors.
By a decision of 28 September 1995 the Arbitration Court rejected the argument that the debts assigned under the contract of 6 September 1994 were the property of the State, that they were thus not transferable and that therefore the debt assignment contract was null and void. This argument had been based on, inter alia, Regulation 27(2) of April 1994 for the implementation of the Law on the 1994 State Budget (see above). The Arbitration Court noted that Bulgargas had been and had remained the creditor in respect of the unpaid arrears. The legal provisions invoked had merely sought to introduce a special legal regime for their collection, the regime under the Law on the Collection of State Debts. That law applied to all State debts and - in cases provided for by Act of Parliament - to the collection of other debts. As the Regulations for the implementation of the 1994 budget were merely a piece of subordinate legislation, the special legal regime for collection of debts had only become applicable to Bulgargas’s debts by virtue of the provisions of the 1995 budget, adopted by Act of Parliament. In any event, even if it was considered that the special procedure had been applicable to the collection of the gas debt as of the date of the assignment contract, that fact could not alter the private law nature of the debt.
In 1995 Bulgargas again applied to the Arbitration Court seeking a declaration that because clause 16 of the debt assignment contract of 6 September 1994 was void, the entire contract was void. Clause 16 stipulated that the first applicant and DH would not seek to have K and Himko declared into a state of insolvency. On 14 June 1996 the Arbitration Court held that clause 16 was void as it purported to exclude the right to levy distress, but that this did not render the entire contract void.
In 1995, not having received any payment from Himko, the first applicant and DH brought proceedings before the Vratsa Regional Court against Himko for payment of part of its debt. Bulgargas intervened in the proceedings as a third party in support of Himko. By a judgment of 18 April 1996 the Regional Court granted the claim, rejecting the objection of Himko that the debt assignment contract of 6 September 1994 was not valid. The court considered that the Court of Arbitration’s decision of 28 September 1995 was binding in this respect.
Himko appealed. By a judgment of 15 November 1996 the Supreme Court overturned the lower court’s judgment.
The Supreme Court found that the Arbitration Court’s decision of 28 September 1995 was only binding on the parties, which were, in the proceedings leading to that decision, the first applicant and DH and, as an adverse party, Bulgargas. Himko was not a party thereto.
The court further found that under an international agreement of 1986 between Bulgaria and the former Soviet Union the Bulgarian State had undertaken to participate in the construction of gas supply pipelines and deliver machines and equipment. The Soviet Union had undertaken to supply natural gas to Bulgaria. This agreement had later been reconfirmed by a protocol signed between Bulgaria and the Russian Federation.
Bulgaria’s Council of Ministers had designated a State enterprise, later incorporated as a wholly State-owned joint-stock company under the name Bulgargas, to conclude the necessary contracts for the construction works and for the supply of gas to Bulgaria. However, the Bulgarian State had remained a party to the underlying international agreement. Therefore, the natural gas thus delivered was State property. The income from gas deliveries was listed among the budget revenues under the 1993 and 1994 budget laws. By Regulation 12 of the Regulations on the implementation of the 1993 State budget Bulgargas had been entrusted with the task of selling the supplies of Russian natural gas to consumers. The Regulation provided that all revenues therefrom should be paid on a monthly basis by Bulgargas to the State budget after deduction of the expenses incurred. This was also provided for in Regulation 27(1) of the Regulations for the implementation of the Law on the 1994 State Budget. The regulations were adopted by the Council of Ministers which was competent to enact measures in execution of the State budget.
The Supreme Court found that there had therefore been a particular legal regime established by the State as the owner of the natural gas according to which all income from gas supplies had to be paid into the State budget after deduction of the delivery expenses. The assignment of the unpaid gas debt to the applicants ran contrary to this regime and the requirements of the 1993 and 1994 budget laws, including the applicable provisions on maintaining the budget balance. The contract of 6 September 1994 was void.
The Supreme Court expressly stated that its conclusions were not based on the provisions of the Law on the 1995 State Budget concerning the applicability of the Law on the Collection of State Debts. The applicable collection procedure, established in Regulation 27(2) of April 1994 and the 1995 law, was irrelevant.
The first applicant and DH submitted a petition for review (cassation) to the Supreme Court of Cassation. By judgment of 2 April 1997 the Supreme Court of Cassation upheld the judgment of 15 November 1996.
The Supreme Court of Cassation acknowledged that under the Commerce Act of 1991 Bulgargas, as a legal person separate from the State, was the owner of all its assets. However, the special legal regime, as correctly established in the impugned judgment of 15 November 1996, made it clear that the claims at issue had been fiscal and not commercial. Thus, invariably in all State budgets, for the years 1993, 1994, 1995 and 1996, the income from the sale of natural gas had been listed as an item among the expected revenues for the State budget. Had the claims at issue been commercial and not fiscal, the State would have been entitled to receive from Bulgargas only the dividends and the ordinary taxes owed by every commercial company. However, the applicable provisions clearly entitled the State to receive all revenues from the sale of natural gas after deduction of expenses, regardless of the financial results from all other activities of the company. The assignment of the Himko debt, which was a budget entry on the income side, was thus unlawful.
The Supreme Court of Cassation further mentioned that in accordance with the 1995 budget law the sums owed by Himko were subject to the special collection procedure under the Law on Collection of State Debts.
The Supreme Court of Cassation also addressed the applicants’ argument that the Constitutional Court’s judgment of 10 December 1996 (see below) had established the private-law nature of the debts at issue. It noted that the issue decided by the Constitutional Court had been whether an amendment to the Law on the 1996 State Budget had been unconstitutional rather than the civil dispute concerning the debts at issue. The refusal of the Supreme Court to suspend the proceedings pending the outcome of the case before the Constitutional Court was not, therefore, in breach of procedural rules.
None of the arbitral awards or the judicial decisions involving the applicants referred to any previous cases concerning the special legal regime of the unpaid gas debt. It appears that in this respect the dispute concerning the 6 September 1994 debt assignment was the first of its kind.
On an unspecified date in 1996 the Council of Ministers introduced in Parliament a bill on interpretation of certain provisions of the Law on the 1996 State Budget. In the reasoning accompanying the bill, the Council of Ministers stated, referring to the Vratsa Regional Court’s judgment of 18 April 1996, that there had been contradictory opinions on the question whether claims arising out of the sale of natural gas were transferable. Parliament therefore had to adopt an interpretation of the Law, as it was competent to do under the Law on Normative Acts. The proposed bill on interpretation was not adopted. Apparently it was redrafted as a bill amending the Law on the 1996 State Budget.
By acts of Parliament of 17 July and 11 September 1996 the Law on the 1996 State Budget was amended. The amendment stated inter alia that all claims arising out of the sale of natural gas were State claims and were not transferable unless otherwise provided by act of Parliament. Also, the amendment provided that a debtor who had paid into the State budget arrears due in respect of deliveries of natural gas should be considered to have discharged his debt and that the State should not be liable to any third person in respect of any sums thus received in the State budget.
By a judgment of 10 December 1996 the Constitutional Court, acting upon a referral by the President of Bulgaria, declared the amendments of 17 July and 11 September 1996 unconstitutional. It found that the amendments purported to declare as State property claims which had previously not been considered to have been State claims. This was contrary to the Constitutional guarantee on property rights. The Court further rejected the argument of the Council of Ministers that the amendment had been of an interpretative nature. The Court noted that it introduced a new provision.
By letter of 29 September 1997, faxed and mailed on 30 September 1997, the applicants’ lawyer stated his intention to submit an application on behalf of Credit Bank and DH and briefly described the events complained of. The letter stated that DH was a company incorporated under Bulgarian law with its registered office in Sofia.
In a letter of 6 November 1997 requesting an extension of the time for submission of the application form, the applicants’ lawyer again referred to Credit Bank and DH as the applicants. The application form, dated 19 February 1998, mentioned Multigroup for the first time.
Together with the application form the applicants’ lawyer submitted two authorisation forms: a power of attorney dated 4 September 1997 issued by the executive directors of Credit Bank and a power of attorney dated 5 November 1997 issued by the executive director of Multigroup. The latter document stated that it authorised Mr Valner to represent both Multigroup and DH.
According to Bulgarian law at the time of the conclusion of the construction-for-gas inter-governmental agreements, almost all economic activity was owned and administered by the State. All commercial assets were the property of the State and were only allocated to State enterprises for “use and management” - which included the power to transfer property between State enterprises in accordance with the applicable rules. State enterprises possessed distinct legal personality but were under the direct control of the relevant ministries. State assets, including debts, could be taken away from one enterprise and re-assigned to another by simple decision of the relevant ministries. Certain elements of self-management were introduced during the 1980s, within the limits of a centrally-administered and State-owned economy.
A process of replacing economic legislation began in 1990, after the beginning of democratisation.
In 1990 certain provisions of the Property Act were amended. In July 1991 a new Constitution enshrined the right to peaceful enjoyment of property. The Commerce Act, setting out rules on incorporation and management of companies, was also enacted in 1991.
Under the Commerce Act and other legislation adopted in 1991 and 1992, State enterprises had to be transformed, by decision of the relevant ministry and upon registration at the competent court, into State-owned limited liability companies or State-owned joint stock companies.
The question whether the transformed enterprises became the full owners of their assets or were beneficiaries of a right to use and manage State property was still discussed in the legal theory after 1991. While the new provisions of commercial law were based on the concept that every commercial company owned its assets, under section 8 of the Property Act (regulating real and movable property) as in force between 1990 and 1996 State-owned legal persons only “exercised, on their own account, the right to State property in respect of assets provided to them”. On the other hand the provisions of Decision No. 201 of 25 October 1993 of the Council of Ministers and section 17a (adopted mid-1994) of the Law on the Transformation and Privatisation of State Enterprises provided that in the process of transformation of a State enterprise ownership of real estate or other assets that had been used and managed by it should be deemed to belong to the transformed company. That was the prevailing view.
In 1993 a number of provisions of the Law on Obligations and Contracts which limited freedom of contract on the basis of the old concepts of a centrally planned economy were repealed. New provisions regulating commercial transactions were for the first time enacted in 1996, when a new chapter was added to the Commerce Act. In the meantime certain limitations on contractual freedom remained in provisions specifically applicable to wholly State-owned limited liability or joint stock companies, mostly relating to the transitional period pending their privatisation (additional section 1 of the Law on the Establishment of Wholly State-Owned Commercial Companies; additional section 10 of the Law on the Transformation and Privatisation of State Enterprises, sections 6 and 7 of Regulations No. 265 of the Council of Ministers of December 1992, in force until February 1994, Regulations on the Manner of Exercise by the State of its Ownership Rights in Enterprises, adopted in February 1994, Decree No. 56 on Economic Activity and the regulations for the application of the decree).
In May 1996 the new Law on State Property and amendments to the Property Act provided that State-owned commercial companies became the owners of all their assets and the State ceased to be the owner of property it had provided for the creation of a State-owned joint stock or limited liability company.
The transition from legislation regulating a State-owned centrally planned economy to one suited for a market economy was largely completed in 1996 with the adoption of the above-mentioned property laws and provisions on commercial transactions. In 1996 the remaining parts of Decree No. 56 on Economic Activity, the main piece of legislation in this area in the period before the market reforms, was repealed.
This law provides for a specific fiscal enforcement procedure for the collection of State claims, different from that under general civil procedure. According to its section 2 that procedure may also apply to the collection of other claims where so provided by act of Parliament.
In accordance with the Constitution the Constitutional Court does not examine individual complaints. It rules on the constitutionality of laws if so requested by the President, certain other institutions, or a minimum of one fifth of all members of Parliament. It can also examine certain categories of cases concerning elections.


ITEMID: 001-5972
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: LAM AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Nicolas Bratza
TEXT: The first applicant is a British national, born in 1949 and living in Paignton, England.
The second applicant, also a British national, is his wife, born in 1950. The third and fourth applicants are their children, born respectively in 1974 and 1976.
The applicants were initially represented before the Court by William A. Merrick and Co., Solicitors, London, England. They are currently represented by the Environmental Law Centre, Southport, England.
The first applicant is the owner of a Chinese restaurant situated in a designated conservation area in the centre of Paignton. The applicant and his family live on the premises.
At the material time two warehouses and a storage building were located in the immediate vicinity of the restaurant. These units were leased in August 1988 by a company manufacturing wooden artefacts. The company obtained planning permission in November 1988 to use the storage building as a craft workshop, it being understood that any industrial processes carried out were to be restricted to those falling within Class B1 of the Town and Country Planning (Use Classes) Order 1987.
The company subsequently used one of the warehouses for paint spraying with the result that toxic cellulose paint spray fumes were emitted into the first applicant’s restaurant via an illegal vent inserted into the wall of the warehouse. The applicants became ill, suffering from a variety of symptoms including headaches, chest problems and rashes. Complaints were lodged with the Torbay Borough Council (“the local authority”) by the first applicant as well as by other residents affected by the fumes. The local authority was requested by the complainants to enquire into planning-related matters as well as environmental aspects of the company’s operations.
On 24 November 1989 the local authority granted the company permission to construct a special chimney to channel the fumes away from the neighbouring premises. However, the chimney which was built resulted in the fumes being directed downwards and worsened the situation for the applicants. They were eventually forced to abandon their home and business.
Although the local authority served a prohibition notice and an abatement notice on the company between October 1990 and December 1991, no steps were taken to enforce these notices.
In early 1991 the applicants issued proceedings against the company claiming an injunction and damages. However, the applicants were unable to continue with their claim since the defendant company was not covered by insurance in respect of public liability for the emission of fumes. In December 1992 the company abandoned its activities and the applicants returned to their premises.
The applicants turned to the local authority to secure redress and on 4 October 1994 issued a writ claiming damages for personal injury and damage to property as a result of the local authority’s negligence in granting the company the planning permission which led to the chemical processes being carried out on the company’s premises and in failing to take enforcement proceedings under the Planning Acts or Environmental Protection Acts.
On 4 October 1995 the local authority issued a High Court summons to have the writ struck out as showing no cause of action.
foreseeability of harm and proximity of relationship between the applicants and the local authority, Mr Justice Collins ruled that it would not be just and reasonable to impose a duty of care on the local authority. In Mr Justice Collins’ view:
“... It seems to me that it would be wholly detrimental to the proper process of considering planning applications if the local authority in addition had to have regard to the private law interests of any persons who might be affected by the grant of permission, and to ask itself in each case whether it had properly had regard to the individual rights concerned. If it were potentially liable to actions in negligence in those circumstances, it seems to me that the carrying out of its important functions in the public interest would be likely to be affected. ... It seems to me that the fact that the grant of planning permission does not give permission to create a nuisance or to do damage to a particular adjoining occupier carries with it that it is not and cannot be implicit in the grant of the permission that there is any overriding of third party rights. Once one accepts that, it seems to me that it is impossible to say there is a duty of care owed to such a third person, because ex hypothesi there can be in the grant of permission no breach of that person’s rights. .... ”
Mr Justice Collins considered that the applicant’s primary remedy was the private law remedy for damages and/or an injunction against the company to stop the nuisance.
As to the applicants’ claim that they had suffered damage on account of the local authority’s failure to take enforcement action, Mr Justice Collins held that the decision to take such action is one which is taken in the public interest and should not be influenced by considerations as to whether there might be a claim for negligence if action was or was not taken in a particular case. Mr Justice Collins pointed to a range of remedies which allowed an individual to protect himself in the event of a local authority not taking action to bring an end to a nuisance, including a private law claim against the person creating the nuisance and the laying of a complaint before a Magistrates’ Court.
The Court of Appeal granted the applicants leave to appeal.
Before the Court of Appeal the applicants’ counsel abandoned reliance on the arguments submitted in the High Court proceedings that the breach of statutory duty on the part of the local authority gave rise to a cause of action and that a breach of a common law duty of care could be demonstrated in relation to the original grant of planning permission. The applicant’s counsel maintained that a cause of action lay in respect of the manner in which the local authority failed to exercise its enforcement functions to put an end to a statutory nuisance.
On 30 July 1997 the Court of Appeal dismissed the applicants’ appeal against Mr Justice Collins’ ruling. As regards the applicants’ reliance on the failure of the local authority to take enforcement action under sections 79 and 80 of the Town and Country Planning Act 1990, Lord Justice Potter considered that:
“...these are plainly provisions for the benefit of the public at large living within the area of the local authority and, albeit, under section 80, service of an abatement notice is obligatory if the local authority is satisfied that a statutory nuisance exists, it is not mandatory for the local authority to take proceedings for an offence under section 80(4). Indeed, should it see fit to do so, section 82(1) anticipates the right of any person ‘aggrieved by the existence of a statutory nuisance’ to make complaint to a Magistrates’ Court himself. Quite apart from that, the procedures in s. 79 and s. 80 exist in parallel with, and without any derogation from, the right of such person to take private proceedings against an adjoining landowner, whether for an injunction or damages. In those circumstances it seems to us plain that there is neither reason nor necessity in relation to such a landowner aggrieved by the failure of local authority to take action in respect of a nuisance, to create a right of action in damages based on such failure.”
On 13 January 1998 the House of Lords refused the applicants leave to appeal.
In separate proceedings the applicants sought to challenge by way of judicial review a decision reached by the Central Planning Committee of the local authority at a meeting held on 10 November 1997. The background to the meeting concerned a complaint lodged by the first applicant about smells and noises coming from the warehouses being used by a pottery business which had taken over occupancy from the company manufacturing wooden artefacts. The applicants maintained that the activity being conducted did not benefit from planning permission.
At the meeting, the committee decided that the warehouses at the rear of the applicants’ premises were being used legitimately and no enforcement action had to be taken against the owner of the pottery business.
The first applicant was present at part of the meeting and made representations to the committee. According to the first applicant, he only received official notification of the committee’s decision on 16 January 1998 through a council official who had agreed to reconsider the local authority’s decision. The council official confirmed in the letter that the premises were being used legitimately and added that any smells or fumes emanating from the premises were intermittent and did not constitute a statutory nuisance.
On 6 February 1998, fifteen days after being notified of the committee’s decision, the first applicant sought leave to apply for judicial review. He maintained, inter alia, that the local authority had failed to take enforcement proceedings against the owner of the pottery business who was operating without the necessary planning permission.
On 25 June 1998 Mr Justice Moses refused the applicant’s request for an adjournment to enable him to put forward evidence as to why he had delayed the initiation of the leave proceedings in respect of the decision of 10 November 1997. The judge considered that the applicant had ample time to produce such evidence between the date when the local authority notified him that it would oppose the application on grounds of delay and the start of the proceedings. The judge dismissed the applicant’s application for leave to apply for judicial review.
On appeal, Lord Justice Kennedy conceded that the scope of the planning permission in relation to the warehouses was not entirely clear. However, with reference to Order 53, rule 4(1) of the Rules of the Supreme Court and by analogy with time-limits laid down in planning legislation, Lord Justice Kennedy found himself:
“... driven to the conclusion that here the application was not made promptly, as required by Order 53, rule 4 of the Rules of the Supreme Court. There seems to be no reason why the applicant should have waited to receive the letter of 16th January 1998 before seeking to challenge the decision of 10th November. I can find no good reason to extend the period laid down by the Order.”
Lord Justice Kennedy further observed that, even if ten years ago the use made of the warehouses was unauthorised, it was now too late for the local authority to institute enforcement action.
Lord Justices Aldous and Potter agreed with Lord Justice Kennedy’s reasoning and in a judgment dated 28 October 1998 the Court of Appeal dismissed the applicants’ renewed application.


ITEMID: 001-86065
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: TAMBURINI v. FRANCE
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Mr Claude Tamburini, is a French national who was born in 1959 and lives in Metz.
By an order of 28 May 2002, an investigating judge of the Metz tribunal de grande instance indicted the applicant and committed him for trial in the Moselle Assize Court, for having “in Metz, from 1994 to 17 July 1997, committed acts of sexual penetration, by violence, constraint, threat or surprise, on the person of [Samia D.], with the aggravating circumstances that [Samia D.] was under fifteen years of age, having been born on 13 August 1983, and that he had authority over her as the husband of her mother, with whom he lived.”
In a judgment of 18 December 2003 the Moselle Assize Court sentenced the applicant to twenty years’ imprisonment for aggravated rape of a person under 15 by a person in a position of authority, and suspended his civic, civil and family rights for ten years.
By a judgment of 27 May 2005 the Meurthe-et-Moselle Assize Court of Appeal sitting in Nancy, having heard the parties and their representatives in private, upheld the earlier judgment in full. It also found that the delivery into custody order issued against the applicant on 28 May 2002 was equivalent to a detention order, but nevertheless issued a detention order against the applicant that same day.
Appealing on points of law, the applicant complained in particular that the proceedings before the Assize Court of Appeal had been held in private at the victim’s request, in conformity with Article 306 of the Code of Criminal Procedure, whereas he had not freely and expressly waived his entitlement to public proceedings; he also submitted that there had been no separate decision or mention in the record of the proceedings concerning his placement in detention following the delivery of the judgment.
By a judgment of 18 January 2006 the Court of Cassation dismissed the applicant’s appeal.
On the matter of the private hearing, it explained its decision in the following terms:
“Article 6 § 1 of the Convention ... provides for the possibility of excluding the press and the public from all or part of the trial ... where ... the protection of the private life of the parties so require[s].
In allowing the party claiming damages, a rape victim, to decide whether the protection of her private life requires all or part of the trial not to be public, Article 306 § 3 of the Code of Criminal Procedure simply establishes a principle in keeping with the provisions of [Article 6 § 1 of the Convention].”
On the subject of the applicant’s committal to prison, the Court of Cassation held:
“The claim cannot be allowed in so far as the court’s decision to commit the accused to prison, taken by the court alone following the vote on the sentence and in the secrecy of the deliberations, does not require an interlocutory decision or any special mention in the record of the proceedings”.
Article 306 of the Code of Criminal Procedure stipulates, concerning proceedings before the Assize Court:
“The hearing shall be public unless publicity would be dangerous for order or morality. In such a case, the court shall so declare by a ruling made in open court.
The president may nevertheless prohibit access to the courtroom for minors, or for certain minors.
In the case of a prosecution for the offences of rape or torture and acts of barbarity accompanied by sexual aggression, a hearing in camera is granted as of right where the civil party victim or one of the civil party victims so requests; in other cases a hearing in camera may be ordered only where the civil party victim or one of the civil party victims does not oppose it.
Where a hearing in camera has been ordered, this applies to the reading of any judgments that may be made in respect of any procedural objections …
The judgment on the merits must always be read in open court.
...”


ITEMID: 001-77420
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF DEBELIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Preliminary objections dismissed (ratione materiae, victim);Violation of Art. 6-1;Remainder inadmissible
JUDGES: Christos Rozakis
TEXT: 4. The applicant, Mr Nedeljko Debelić, is a Croatian national who was born in 1948 and lives in Rab.
5. On 21 December 1998 three individuals, P.M., J.B. and M.C., the owners of a plot of land on the island of Rab, neighbouring another plot of land, allegedly owned by R.Š., instituted proceedings for the determination of land borders (uređenje međa) before the Rab Municipal Court (Općinski sud u Rabu) against R.Š. because there was no agreement among them on the matter.
6. On 31 March 2000 the applicant filed submissions with the court claiming that he should also be a party to these proceedings because already in 1983 he had bought the plot of land in question from R.Š., although he was not immediately entered as the owner in the land registry. However, he had been in possession of that plot of land ever since. By the Rab Municipal Court judgment of 27 December 1991 the applicant was established as the owner and on 6 March 1998 he applied to the same court to enforce that judgment. The enforcement order to register the applicant as the owner of the plot of land in question into the land registry was issued on 12 March 1998.
7. It appears that the Rab Municipal Court did not answer the applicant's request to participate in the proceedings for the determination of the land borders by any formal decision.
8. From the transcript of the hearing held on 11 April 2000 it transpires that Ivan Debelić was present at the hearing as the applicant's legal representative and he repeated his previous request that the land borders be determined.
9. On 1 June 2000 the court carried out an on the spot inquiry. The applicant was present in person and it was stated that the applicant was the successor of R.Š.
10. From the transcript of the inquiry it transpires that the parties could not agree on the determination of the land borders.
11. There was also an expert present at the inquiry who gave his report and on the same date the court adopted a decision determining the land borders. The text of the decision states that the land border among the parties was in dispute. That decision was served on the applicant on 24 December 2002.
12. In 2002 the applicant filed a constitutional complaint concerning the length of the proceedings. On 13 February 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) declared his complaint inadmissible for lack of capacity to conduct legal proceedings, establishing that the applicant had not been a party to the proceedings complained of. The relevant parts of the Constitutional Court's decision no. U-IIIA-668/2002 of 13 February 2004 read as follows:
“2. The present proceedings, conducted before the Rab Municipal Court under the case file no. R.I.25/98, concern determination of the land borders. ...
4. Pursuant to section 69 paragraph 1(2) of the Constitutional Act, the Constitutional Court invited the Rab Municipal Court to file their observations in respect of the constitutional complaint.
In their observations the Rab Municipal Court stated: “Ivan Debelić is not the legal representative of Nedjeljko Debelić in the proceedings concerning determination of land borders which had been instituted before that court under case file no. R.I. 25/98. Nedjeljko Debelić has not filed an application for determination of land borders in these proceedings. Furthermore, Nedjeljko Debelić has not been named the respondent party in these proceedings ...”
13. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske –Official Gazette no. 49/2002 of 3 May 2002; “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant's rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68385
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF DJIDROVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: David Thór Björgvinsson
TEXT: 10. The applicant was born in 1923 and lives in Skopje. He worked as a pilot in the Yugoslav Army until he retired in 1968.
11. In former Yugoslavia, the citizens used to pay a tax for housing. On the basis of the accumulated funds the State constructed “socially owned” apartments which were then rented to individuals at legally fixed rates.
12. The Yugoslav Army was the single army on the territory of the former Yugoslavia governed by laws which were applicable throughout former Yugoslavia. The applicant, as an officer of the Yugoslav Army, paid monthly contributions from his salary to the Yugoslav Army for the construction of army apartments. All army servicemen were entitled to live in army apartments as tenants.
13. On 28 August 1968 the applicant ceased to be an active officer of the Yugoslav Army under an early retirement scheme. At that time, he lived in Belgrade, as a tenant in an apartment which belonged to the army. On an unspecified date the applicant, having found a job in Skopje, sought to obtain the tenancy of an army apartment there. In December 1979, under an agreement between the Yugoslav Army and the Macedonian Council of Ministers, the Socialist Republic of Macedonia (at that time a member of the Yugoslav Federation) obtained the possession of the applicant’s army apartment in Belgrade in exchange for an apartment in Skopje, which remained the property of the Socialist Republic of Macedonia but was to be used by the Yugoslav Army. In July 1980 the applicant moved into the apartment in Skopje.
14. On 29 December 1990 the Federal Assembly of the Socialist Federal Republic of Yugoslavia enacted a Law on Housing of the Army Servicemen (Закон за станбено обезбедување во ЈНА) (the “Z.S.О.J.N.A.”), according to which army servicemen, current and retired, could purchase apartments in which they lived with a price adjustment for the amount of the paid contributions for the construction of army apartments and for development of the construction land. Section 26 of that law provides that the same purchase conditions apply to apartments which do not belong to the army, as it was in the case of the applicant. According to regulations issued by the Yugoslav Federal Ministry, the price difference was to be paid by the federal army (see paragraphs 43-46 below).
15. Following the fall of Yugoslavia and a referendum held on 8 September 1991, the former Yugoslav Republic of Macedonia declared independence. On 17 November 1991 it adopted a Constitution (Устав на РМ) and the Law on the Implementation of the Constitution (Уставен Закон за спроведување на Уставот). According to the Constitution the laws from former Yugoslavia remain in force, except for the laws regulating the organisation and competence of the former Yugoslav federal organs. On 21 February 1992 the Macedonian President and the General of the Yugoslav Army concluded an agreement for the withdrawal of the Yugoslav Army from Macedonian territory.
16. On 28 February 1992 the Macedonian Government concluded an Agreement for Settlement of Claims and Obligations in Respect of Real Property (Спогодба за правата и обврските во врска со примопредажбата на недвижностите на територија на Република Македонија) (“the S.P.O.V.P.N.T.R.M.”) with the Federal Yugoslav Ministry of Defence. According to this agreement the Macedonian Ministry of Defence took over all the obligations of the Yugoslav Army in respect of army apartments, including the obligation to sell these apartments with a price reduction. The Macedonian Government in 1992 and 1994 enacted regulations implementing this agreement. In 1992 the Macedonian Government enacted Regulations on the Terms of Purchase of the Apartments Obtained by Succession from the Yugoslav Army (Уредба за продажба на државниот стамбен фонд наследен од ЈНА) (“U.P.D.S.F.N.J.A.”), according to which present and former army servicemen living in apartments owned by the Macedonian Ministry of Defence, could purchase them under the Z.S.О.J.N.A
17. From the Ministry of Defence’s decision of 12 June 1992 it appears that the Ministry exchanged the title of its apartments which were inhabited by civilians with the title of the apartments owned by the Housing Fund (“ПУИГ”) which were inhabited by servicemen. Thereby, the servicemen were able to exercise the right under the Z.S.O.J.N.A. to purchase the apartments at a reduced price. However, this exchange was limited and concerned only six apartments owned by the Housing Fund and twenty owned by the Ministry. No details were provided as to the criteria concerning the exchange.
18. In 1993 an amended version of the 1990 Law on the Sale of Socially Owned Apartments (Закон за продажба на станови во општествена сопственост) (“the Z.P.S.O.S.”) was promulgated in the Official Gazette. Under the law their tenants were entitled to purchase them on credit and at a beneficial price. Unlike the Z.S.О.J.N.A., the law did not provide for a price adjustment for the amount of the contributions made towards the construction of “socially owned” apartments and the development of the construction land, despite the fact that the tenants had also paid them.
19. On 26 June 1996 the Constitutional Court abrogated the Z.S.O.J.N.A. without retroactive effect and the respective Government’s Regulations on the ground that they had been contrary to the 1991 Constitution. In particular, the court stated that: (a) the Yugoslav Army, its “housing fund” and the “social ownership” no longer existed; (b) the 1991 Constitution had abolished all the privileges enjoyed by army servicemen; and (c) the Z.S.O.J.N.A. had created an unequal treatment in comparison to the citizens who were entitled to purchase their apartments under the Z.P.S.O.S. The S.P.O.V.P.N.T.R.M. was not mentioned in the Constitutional Court’s decision.
20. Between 1992 and 1994, the applicant requested the Macedonian Ministry of Defence to purchase the apartment in Skopje where he had been living since 1980 as a tenant of the Yugoslav Army in accordance with the Z.S.О.J.N.A. and the U.P.D.S.F.N.J.A. The Ministry of Defence informed him, and seven other servicemen of the former Yugoslav Army, that the examination of their requests had been postponed due to some formalities.
21. On 20 October 1993 the applicant and fifteen other persons asked the Constitutional Court to examine the compatibility of the Z.P.S.O.S. and the relevant regulations issued by the Ministry of Defence with the Z.S.O.J.N.A. On 29 December 1993 this was refused by the Constitutional Court.
22. On 6 February 1995 the applicant submitted another request to purchase the apartment to the President of the Republic who transmitted it to the Ministry of Defence.
23. On 22 March 1995 the Ministry of Defence informed the applicant that his request to purchase the apartment had been dismissed on the ground that the U.P.D.S.F.N.J.A. did not apply to apartments other than those which belonged to the Yugoslav Army. In particular, the Ministry stressed that Section 2 § 2 of the 1992 Regulation on the Sale of Apartments for which the Republic has Responsibilities and Rights (Одлука за продажба на становите на кои права, должности и одговорности во поглед на располагањето има Републиката) (“O.P.S.P.D.O.R”) provided that the U.P.D.S.F.N.J.A. did not apply to apartments for official use of the Government. The Ministry argued that on 21 September 1994 the Government had taken a similar position in respect of this issue. Therefore, the applicant would have had the right to purchase the apartment under the U.P.D.S.F.N.J.A. only if it had concerned an apartment owned by the said Ministry.
24. On 16 February 1995 the applicant instituted proceedings before the Skopje I Municipal Court (Општински суд Скопје I) against the Ministry of Defence, requesting that the apartment be sold to him under an adjusted price in accordance with the Z.S.О.J.N.A. He also invoked Articles 4 and 5 of the Law on the Implementation of the Constitution.
25. On 25 April 1995 the court granted the applicant’s request. The court stated, inter alia, that the applicant, as an army officer, had the right to purchase the apartment under an adjusted price. In particular, the purchase price should be reduced by the revalorised amount of the monthly contributions which the applicant had paid to the Federal Ministry of Defence for the construction of apartments and for development of construction land. The Municipal Court found that the Macedonian Ministry of Defence was under an obligation to pay the price difference for the apartment.
26. The Macedonian Ministry of Defence appealed against this decision on grounds that in accordance with a Government Decision the Z.S.О.J.N.A. only applied to apartments owned by the Macedonian Army.
27. On 1 February 1996 the Skopje Appellate Court (Окружен суд Скопје) upheld the decision of the lower court on the ground that the applicant, as a former officer of the Yugoslav Army, had paid contributions for the construction of army apartments and, therefore, was entitled to purchase an apartment under an adjusted price in accordance with the Z.S.О.J.N.A. The court held, inter alia, that the lower court had reasoned correctly when it had connected the benefit of purchasing an apartment under an adjusted price to the status of the applicant as a former army officer, who had been paying contributions, and not to the identity of the owner of the said apartment.
28. On 17 April 1996 the applicant and the Government concluded a purchase contract for the apartment on the basis of the Municipal and Appellate Courts’ judgments. The applicant thus purchased the apartment with a price reduced by the amount of contributions he had paid to the former Yugoslav Army. On 15 May 1996 the Skopje I Municipal Court authorised the contract.
29. From the copy of one document issued by the Public Enterprise for Administering State Property (Јавно претпријатие за стопанисување со стамбен и деловен простор на Република Македонија), it may be deduced that the applicant paid for the apartment in 1996 at the latest. It is not clear whether later the Ministry of Defence reimbursed the Housing Fund the price difference for the apartment.
30. In the meantime, the Ministry of Defence filed an appeal on points of law (ревизија) with the Supreme Court (Врховен суд на РМ) against the judgment of the Appellate Court of 1 February 1996.
31. Upon the appeal on 18 December 1997 the Supreme Court quashed the lower court’s judgment and dismissed the applicant’s request to purchase the apartment for a reduced price.
32. The Supreme Court noted that in accordance with Article 5 § 1 of the Constitutional Law on the Implementation of the Constitution of the former Yugoslav Republic of Macedonia the federal laws of former Yugoslavia remained in force as Macedonian laws provided that they were harmonised with the Constitution. The powers which were previously exercised by the federal organs were allocated to the bodies of the former Yugoslav Republic of Macedonia. The Z.S.O.J.N.A. remained in force as Macedonian law.
33. The Supreme Court found that under the Z.S.O.J.N.A. it was for the Yugoslav Army to make up for the price difference for the adjustment of the prices of the apartments which were not owned by the Yugoslav Army. However, on 17 November 1991 the former Yugoslav Republic of Macedonia enacted its Constitution and became an independent State. Since then there was no Yugoslav Army nor was its housing fund on the territory of the former Yugoslav Republic of Macedonia. Therefore, the applicant could not have the price for his apartment reduced as there was no Yugoslav Army to cover the price difference.
34. The court did not mention at all the decision of the Constitutional Court and the S.P.O.V.P.N.T.R.M. Nor did it mention that the applicant had already purchased the apartment by contract, or that the Ministry of Defence had exchanged a number of apartments owned by the Housing Fund and inhabited by other servicemen. The applicant was served with the Supreme Court’s judgment on 4 March 1998.
35. The parties have not indicated whether the applicant was formally registered as the owner of the apartment in the Land Registry (Државен завод за геодетски работи) after their purchase agreement had been authorised by the Municipal Court in 1996. From the documents it appears the applicant had already recorded his title over the apartment. In addition, the parties have not indicated whether the Government have taken any legal action to enforce the Supreme Court’s judgment of 18 December 1997, for example by bringing proceedings for the rescission of the 1996 purchase agreement (see paragraphs 60-65 below). There is no information that such proceedings have ever been instituted.
36. The applicant still lives in the apartment in question.
37. Section 110 provides, as far as relevant, that the Constitutional Court decides on the conformity of laws with the Constitution.
38. Section 112 § 1 provides, inter alia, that the Constitutional Court shall repeal or invalidate a law if it determines that it does not conform to the Constitution.
39. Section 112 § 2 provides that the decisions of the Constitutional Court shall be final and executive.
40. Section 4 provides that all issues of succession arising out of the break-up of Yugoslavia shall be regulated by way of treaties with the other former republics.
41. Section 5 §§ 1 and 4 provide that the existing federal laws of former Yugoslavia shall be in force in the former Yugoslav Republic of Macedonia with the exception of the laws regulating the organisation and competence of the Yugoslav federal organs.
42. Section 6 provides that all federal laws which are inconsistent with the Macedonian Constitution shall be amended accordingly within one year from the day when the Constitution was promulgated.
43. Section 1 provides that the law in question regulates the housing of present and former Yugoslav Army servicemen and their families.
44. Section 21 § 1 provides that the purchase price for an apartment owned by the Yugoslav Army shall be determined on the basis of the apartment’s re-assessed construction value, its quality, equipment, location and other similar factors. The price thus determined shall be reduced by the amortisation of the apartment, but not more than 50% of the total amount of amortisation.
45. Section 21 § 2 provides that when an apartment is purchased by an active or retired army serviceman, the purchase price shall be reduced by the adjusted (re-assessed) amount of the monthly contributions paid by the servicemen for construction of army apartments and improvement of construction land.
46. Section 26 provides that when an army serviceman mentioned in Section 21 § 2 wishes to purchase an apartment which is not owned by the army, the army shall pay to the owner of the apartment the price difference between the adjusted and the normal purchase price.
47. According to Section 2 § 2 of that agreement, concluded between the Macedonian Ministry of Defence and the former Yugoslav Army, army apartments should be sold to army servicemen under the conditions set forth in the 1990 former Yugoslav Law on the Housing of Army Servicemen (Z.S.O.J.N.A.).
48. Section 9 of the said agreement provides that the former Yugoslav Army shall not have any right to impose further obligations on the Macedonian Ministry of Defence after the signing of the agreement.
49. Section 10 provides that all other rights and obligations which the former Yugoslav Army had on the territory of the former Yugoslav Republic of Macedonia until 28 February 1992 in connection with real property, housing fund and business premises owned by it shall be transferred to the Macedonian Ministry of Defence.
50. Section 134 of the Law on Defence (Закон за одбрана) provides that real property which was owned by the former Yugoslav Ministry of Defence on the territory of the former Yugoslav Republic of Macedonia shall become the property of the former Yugoslav Republic of Macedonia.
51. Section 1 provides that this law regulates the conditions, manner and procedure for the sale of socially owned apartments. The law does not provide for a price adjustment for the amount of the paid contributions for the construction of “socially owned” apartments and for development of the construction land.
52. Section 2 provides that a decision to sell the (socially) owned apartment will be issued by its owner (the State) within 30 days from the day when this law enters into force.
53. Section 3 § 1 provides that the socially owned apartment may be sold to the tenant of that apartment or to members of his family.
54. Section 3 § 2 provides that if the owner of the apartment (the State) does not issue a decision to sell that apartment within the time limit specified in Section 2, then the holder of tenancy right may within 30 days request the appropriate court to issue a decision in non-contentious civil proceedings to replace the sale contract.
55. The law does not provide for a price adjustment for the amount of the paid contributions for the construction of “socially owned” apartments and for development of the construction land.
56. Section 384 provided that the filed appeal on points (ревизија) of law does not adjourn the execution of judgment against which it has been filed.
57. Section 387 provided that parties may present new facts and introduce new evidence in the proceedings only if these concern essential violations of the provisions for civil procedure for which an appeal on points of law is permitted.
58. Section 393 provided that the Supreme Court may dismiss an appeal on points of law as unfounded if it determines that the grounds it must examine ex officio, or which were included in the appeal, are ill-founded.
59. Section 395 § 1 provided that when the Supreme Court finds that the substantive provisions of an act are wrongly applied by the lower courts, it shall grant the appeal on points of law (ревизија) and deliver a judgment on the merits.
60. Section 144 § 3 provides that the lawful acquiring of ownership over a property does not have any bearing on the rights of other persons over that property.
61. Section 148 § 1 provides that the ownership title over real estate obtained by a legal act is acquired by recording that right (act) in the public records for registering real estate rights unless otherwise provided by the law.
62. Section 151 § 1 provides, inter alia, that the ownership title over a real estate is acquired by virtue of the recording.
63. Section 151 § 2 provides that the removal of ownership title from the public records, on the ground that the recording was incorrect, may be initiated by an action within three years from the day when the real estate was recorded.
64. Section 5 provides, inter alia, that the Land Registry (Државен завод за геодетски работи) is responsible for recording property rights over real estates.
65. Section 50 provides, inter alia, that the Land Registry shall record ownership rights over real estates.


ITEMID: 001-5071
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: CARUSO v. SWITZERLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants, a family, reside in Domat/Ems in Switzerland. The first applicant is an Italian citizen born in 1962. The second applicant, his wife, is a citizen of the Dominican Republic born in 1962. The third and fourth applicants are their daughters, born in 1996 and 1999, respectively. The third applicant is an Italian citizen. Before the Commission they are represented by Mr Th. Fingerhuth, a lawyer practising in Zurich.
The first applicant entered Switzerland together with his parents in 1969 or 1970. In 1981 he was sentenced to detention in an educational labour institution (Arbeitserziehungsanstalt) on account of contravening the Narcotics Act (Betäubungsmittelgesetz). Still in 1981 he fled to Italy where he spent one year undertaking his military service.
In 1984 the first applicant returned to Switzerland whereupon his sentence of 1981 was converted to 18 months’ imprisonment suspended on probation.
In 1994 the first applicant was sentenced to a fine of 300 Swiss Francs (CHF) on account of a drug offence.
The first and second applicant married in 1994. In 1996, their first daughter, the third applicant, was born. The first applicant acquired the authorisation to establish domicile (Niederlassungsbewilligung) in Switzerland, the second and third applicants obtained a residence permission (Aufenthaltsbewilligung).
In 1997 the Zurich District Court (Bezirksgericht) sentenced the first applicant to 39 months’ imprisonment for having contravened the Narcotics Act. The District Court regarded his culpability (Verschulden) as severe. Thus, the first applicant, who was himself a drug addict, had obtained two kilos of cocain, of which he had used half a kilo for himself, and sold the remainder. However, the punishment was suspended in favour of stationary therapy. The first applicant has since been working in a pizzeria. According to a progress report of 24 September 1998, his expulsion would endanger his integration into social and professional life.
As a result of the first applicant’s criminal conviction, the Grisons Aliens’ Police (Fremdenpolizei) withdrew on 31 March 1998 his right to establish domicile in Switzerland and ordered his expulsion. His appeal was dismissed by the Grisons Department for Justice, Police and Health on 9 September 1998, his further appeal by the Grisons Administrative Court (Verwaltungsgericht) on 17 November 1998.
On 1 May 1999 the fourth applicant was born. She has kidney problems and must regularly take antibiotic medication.
The first, second and third applicant filed an administrative law appeal which the Federal Court (Bundesgericht) dismissed on 30 June 1999. The Court relied in particular on Section 10 § 1 (a) of the Aliens’ Domicile and Residence Act (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer) according to which a foreigner may be expelled from Switzerland if he or she has been convicted by a court of a criminal offence. The Court then considered, also in the light of Article 8 of the Convention, the proportionality of expelling the first applicant.
The Federal Court considered, on the one hand, that the first applicant had repeatedly been convicted, and that the Zurich District Court had regarded his culpability as severe. It nevertheless noted that, after his criminal conviction he was afforded therapeutic treatment in the context of which he had found employment. According to a therapy report, his expulsion would endanger his integration into social and professional life.
On the other hand, while the first applicant had been living in Switzerland for approximately 25 years, he had spent some four years in Italy where he had undertaken his military service. As a result, life in his home country would bring about certain difficulties, though he could not be considered a foreigner there. He would also benefit from the professional training obtained in Switzerland. His wife, the second applicant, had only lived for a period of four and a half years in Switzerland, and the circumstances in Italy did not substantially differ from those in Switzerland. Their daughter, the third applicant, was still of an adaptable age. It would not be unreasonable for them to travel to Italy.


ITEMID: 001-120071
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF AVILKINA AND OTHERS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award
JUDGES: Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
TEXT: 5. The applicant organisation is a religious organisation, the Administrative Centre of Jehovah’s Witnesses in Russia, located in St Petersburg. The second applicant, Ms Yekaterina Sergeyevna Avilkina, was born in 2006 and lives in Nalchik. The third applicant, Ms Nina Nikolayevna Dubinina, was born in 1959 and lives in Murmansk. The fourth applicant is Ms Valentina Alekseyevna Zhukova, was born in 1956 and lives in the Leningrad region.
6. On 23 September 2004 the Committee for Salvation of Youth from Destructive Cults (“the Committee”) wrote to the Russian President targeting primarily the beliefs and practices of the applicant organisation and accusing it of extremism. The letter also contained a request for an inquiry into the applicant organisation’s activities.
7. On 16 November 2004 the Committee’s letter was forwarded by the President’s Administration to the St Petersburg City Prosecutor’s Office. The ensuing inquiry disclosed no unlawfulness in the applicant organisation’s activities.
8. On 28 March 2005 the Committee lodged another complaint against the applicant organisation. It was rejected on 4 April 2005. Subsequently the Committee introduced six more complaints. All of them were rejected following an inquiry.
9. During the period between 7 March 2005 and 3 May 2007 the applicant organisation addressed five letters to the authorities asking about the results of their inquiries. The prosecutor’s office responded that the applicant organisation’s activities had revealed no violations. The applicant organisation’s request to review the relevant file was refused.
10. According to the applicant organisation, within the framework of the inquiries the City Prosecutor’s Office interacted with other State agencies, submitted religious literature for expert examination, studied medical files of members of the applicant organisation, intervened in a school matter without parental consent and examined repeated complaints from organisations and individuals.
11. On 1 June 2007 a St Petersburg Deputy City Prosecutor asked the St Petersburg Public Health Committee to instruct all the city’s medical institutions to report every refusal of transfusion of blood or its components by Jehovah’s Witnesses. The prosecutor’s letter read as follows:
“In response to the order of the Russian Federation Prosecutor General’s Office, the city prosecutor’s office is investigating the lawfulness of the activity of the religious organisation known as the Administrative Centre of Jehovah’s Witnesses in Russia.
The ideology of the said organisation forbids its adherents to accept transfusions of blood or blood components. An investigation has established that in a series of cases refusals of blood transfusions hindered the administration of qualified medical care and aggravated the illness.
In view of the above, I request that you instruct all medical institutions in St Petersburg to inform the committee, without delay, of any incidents of refusal of transfusion of blood or its components by individuals who are members of the said religious organisation.”
12. On 4 June 2007 the City Prosecutor’s Office dismissed the applicant organisation’s request for access to the materials compiled by it in the course of the inquiries.
13. From 2 February to 5 April 2006 the fourth applicant underwent surgical treatment in a state hospital without the use of foreign blood or blood components. On 25 January 2007 the Kurortnyy District Prosecutor’s Office asked the hospital to submit her medical record.
14. On 26 July 2007 the fourth applicant learnt that the District Prosecutor’s Office had reviewed her medical documents and information on the treatment methods and their results.
15. On 26 March 2007 the third applicant was admitted to a public hospital. She chose to have non-blood management treatment for her condition which the hospital did not agree to provide. On 18 April 2007 she was discharged from hospital. She was then admitted to a private hospital for a surgical intervention. The public hospital did not report her case to the prosecutor’s office.
16. On unspecified dates the second applicant underwent chemotherapy in a public hospital, following a non-blood management treatment plan. In response to the Deputy City Prosecutor’s request (see paragraph 11 above), the doctors informed the Public Health Committee and the prosecutor’s office of her case.
17. On an unspecified date the applicant organisation and several of its members, including the second, third and fourth applicants, lodged a complaint against the prosecutor’s office whereby they asked the court (1) to declare unlawful the inquiries carried out by the prosecutor’s office in connection with the applicant organisation’s activities; (2) to instruct the authorities to cease their interference with the rights and lawful interests of the applicant organisation and to discontinue the investigation into its activities; (3) to declare unlawful the decision of the prosecutor’s office of 4 June 2007 refusing access to the investigative materials; (4) to order the prosecutor’s office to return the medical documents to their respective owners and to require the destruction of the relevant materials, if any, held by the authorities; (5) to order the prosecutor’s office to return the religious literature to the applicant organisation in its entirety and undamaged; (6) to oblige the prosecutor’s office to provide the applicant organisation with the findings of the expert study of the applicant organisation’s religious literature; (7) to instruct the prosecutor’s office to restrain the Committee and other similar organisations from their attacks against the applicant organisation; (8) to instruct the prosecutor’s office to take appropriate measures regarding malicious and unfounded allegations against the applicant organisation in the event that any such allegations contained slander, defamatory statements, or signs of extremism or were untrustworthy.
18. On 27 March 2008 the Oktyabrskiy District Court of St Petersburg granted the applicants’ claims in part. It pronounced unlawful the prosecutor’s office’s decision of 4 June 2007 and instructed it to grant the applicant organisation’s representatives access to the materials from the inquires. The remainder of the application was dismissed.
19. As regards the third applicant’s allegedly premature discharge from the public hospital, the court noted that this issue was beyond the scope of the applicants’ complaint against the prosecutor’s office.
20. The court noted as follows in respect of the disclosure of the second and fourth applicants’ medical files:
“According to Article 61 of the Basic Principles of Public Health Law, information concerning medical consultation, an individual’s health, his or her diagnosis and other data obtained in the course of examination or treatment shall be considered confidential (medical secret). A patient is guaranteed confidentiality of the data he or she provides.
Accordingly ... it should be acknowledged that information on blood transfusion and the method of treatment of a patient, is considered confidential, and the disclosure of such [information], in the absence of [the patient’s] consent, by a person privy to it as a result of their studies or professional duties is permissible only in the instances provided for in part four of Article 61 of the Basic Principles of Public Health Law.
It is true that, in the letter dated 1 June 2007 ... the St Petersburg Deputy Prosecutor advised the chairman of the St Petersburg Public Health Committee to order all medical institutions in St Petersburg to inform the said committee of each refusal of transfusion of blood or its components by members of the Jehovah’s Witnesses, and to forward such information received by the committee to the St Petersburg Prosecutor’s Office ... .
...
According to part 4 § 3 of Article 61 of the Basic Principles of Public Health Law, as in force before the amendments were introduced ... on 24 July 2007, the prosecutor, in connection with an investigation, had a right to apply to a medical institution with a request to disclose confidential medical information.
The court finds incorrect the argument of the representative [of the applicant organisation] and of [the second applicant] that the prosecutor had the power indicated above only when conducting a criminal investigation and not when conducting an investigation concerning compliance with laws, inasmuch as [the wording of Article 61] did not refer to such a restriction. The letter of the St Petersburg Deputy Prosecutor of 1 June 2007 ... was sent to the chairman of the St Petersburg Public Health Committee before [Article 61] was amended and cannot be considered to be in contravention of the law.
...
The request of the Kurortnyy District Prosecutor’s Office of St Petersburg of 25 January 2007 ... sent to [the oncology centre where the fourth applicant underwent treatment] requesting [her] medical history file concerned only the information regarding the possibility of blood transfusion for [the fourth applicant], the reasons for her refusal of such treatment and the consequences of her refusal ... .”
21. On 2 July 2008 the St Petersburg City Court upheld the judgment of 27 March 2008 on appeal.
22. According to the applicant organisation, the prosecutor’s office failed to comply with the judgment of 27 March 2008 ordering the latter to allow the applicant organisation to review the materials of the inquiry. The applicant organisation’s representatives were allowed to review only ten per cent of the materials in question.
23. The Basic Principles of Public Health Law of the Russian Federation (in force at the relevant time) provided as follows:
Article 61. Confidential medical information (medical secret)
“Information concerning medical consultation, an individual’s health, his or her diagnosis and other data obtained in the course of examination or treatment shall be considered confidential (medical secret). ...
Confidential medical information cannot be disclosed by a person privy to it as a result of their studies or their professional, employment-related or other duties, except as provided for in parts three and four of this Article.
A person or his legal representative may consent to the disclosure of confidential medical information to other persons, including officials, for the patient’s examination and treatment, scientific research, publications, training and other purposes.
Confidential medical information may be disclosed without the consent of the individual or his legal representative:
...
3) At the request of investigating bodies, a prosecutor or a court in connection with an investigation or judicial proceedings.”
Article 69. The individual’s right to appeal against actions of state bodies or officers infringing the individual’s rights and liberties in the public health sphere
“Actions of State bodies or officers which infringe the individual’s rights and liberties set forth in the present Basic Principles in the sphere of public health may be appealed against to higher State bodies or officials or to a court in accordance with the applicable legislation.”
24. The Federal Law on the Prosecutor’s Office in force since 1992, as amended, provides as follows:
Article 22. The prosecutor’s power [as regards legal compliance]
“1. When carrying out the duties incumbent on him or her, the prosecutor may:
...
..., conduct inquiries in respect of materials and requests received by the prosecutor’s office ... ;
Summon State officials and private parties in order to obtain their explanations as regards violations of the law.”
Article 27. The prosecutor’s power [as regards protection of human rights and freedoms]
“1. In performing his or her functions, the prosecutor shall:
Examine and consider reports, complaints and other statements concerning [alleged] infringements of human rights and liberties;
Explain to the persons concerned the procedure to follow to protect their rights and liberties;
Take measures to prevent and to stop violations of human rights and liberties, prosecute individuals who break the law, and have any damage repaired;
... .”
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1