ITEMID: 001-76315
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF HOUSING ASSOCIATION OF WAR DISABLED AND VICTIMS OF WAR OF ATTICA AND OTHERS v. GREECE
IMPORTANCE: 4
CONCLUSION: Preliminary objection dismissed (six month period);Violation of P1-1;Just satisfaction reserved
JUDGES: Loukis Loucaides
TEXT: 8. The first applicant was set up in 1951 by disabled Second World War veterans and relatives of soldiers who died in that war with the aim of providing housing to its members. It raised its capital by means of members’ contributions.
9. In 1957, by deed no. 4572, the first applicant bought 50,000 sq. m in the area of Aghios Ioannis in Cholargos, for a total of 400,000 drachmas. The Government claimed that the land did not belong to the persons who had sold it to the applicants but to the State. They relied in this connection on a judgment issued in 1968 by the Athens Court of Appeal. The applicants contested this view. They stressed that the 1968 judgment had been delivered after the exchange of their land in 1964 (see paragraph 10 below), namely after they had transferred to the State all their possible claims against the former owners of their land, and that in any event they had purchased this land in good faith and at market value.
10. In 1960 the land was requisitioned without compensation for the needs of the Greek Army. After an application by the association, the Supreme Administrative Court ruled that the requisition was null and void because it was serving permanent and not temporary needs (judgment no. 143/1963). In 1964, as a result of this judgment, the State bought the unlawfully requisitioned land and exchanged it with 100,000 sq. m of land owned by the National Defence Fund in the nearby area of Korakovouni. The area was public woodland outside the boundaries of the urban development plan. According to the applicants, the understanding was that the association would be allowed to develop it after the State had issued the appropriate changes to the local planning regulations. The first applicant paid one drachma per sq. m to cover the difference in value between the old and the new land. The relevant decision approving the contract of sale and exchange was retroactively validated by virtue of the Necessity Act (Law no. 62/1967). The Government asserted that the above price was symbolic and that at the relevant time the market value of the land was 15 drachmas per sq. m. Therefore, they considered that the land in question had been donated to the applicants. The applicants contended that this assertion was false.
11. On 6 May 1966 a Royal Decree included the land in the revised urban development plan, following a proposal by the Cholargos District Council and an affirmative opinion by the Supreme Administrative Court sitting in an administrative capacity with the power to give a non-binding advisory opinion.
12. In 1974 Legislative Decree no. 303/1974 declassified the land from being reafforestable (άρση αναδάσωσης). Further, the Minister of Agriculture issued a license for building roads and cutting down trees in order to implement the new town plan. In 1975 the applicant association started transferring plots of land to its members and applied to the Cholargos District Council for an altitude study, which was necessary under Greek law for the implementation of the urban development plan. The first building licenses were also issued.
13. In 1975 the new Constitution introduced new rules for the protection of the environment (see paragraph 22 below).
14. In 1976 the Cholargos District Council rejected the association’s application for an altitude study. Further, the Minister of Agriculture requested that the Minister of Public Works revoke the 1966 Royal Decree whereby the planning zone had been extended to the land owned by the first applicant, for the reason that it had been issued without the assent of the Ministry of Agriculture even though the area “was a forest”. In 1978 the Minister of Public Works replied that he would not revoke the decree because it had already been applied for twelve years and had been relied upon by third parties (decision no. Γ21046/3102/7.7.1978). He then issued a new decision approving the detailed zoning plan (ρυμοτομικό σχέδιο) and the altitude study. On an application by the Cholargos District Council, the Supreme Administrative Court found both decisions illegal. It held in particular that under the 1975 Constitution the protection of the forest was more important than the expectations created by the fact that the land had already been in the process of being developed (judgment no. 2330/1980).
15. On 8 November 1980 the Minister of Planning, Housing and the Environment gave a new decision which repeated in substance the annulled decision concerning the detailed zoning plan and the altitude study. The Cholargos District Council again applied to the Supreme Administrative Court, which quashed the new decision as well, considering that following its earlier ruling the administration had to revoke the zoning decree or give new reasons for not doing so (judgment no. 362/1982). A third-party appeal (τριτανακοπή) by the first applicant was dismissed by the Supreme Administrative Court (judgment no. 2920/1985).
16. On 15 April 1988 a Presidential Decree abolished the 1966 Royal Decree in so far as it extended the urban development plan to the association’s land. Members of the association brought their case unsuccessfully before the Supreme Administrative Court which on 26 April 1990 ruled that, even if the Necessity Act (Law no. 62/1967) had ratified the inclusion of a forest in a zoning area, such law would have been considered to have been abrogated by virtue of the 1975 Constitution (judgment no. 1403/1990).
17. From 1990 to 1999 the first applicant undertook various initiatives which aimed at a settlement of its dispute with the State but to no avail.
18. In 1999 the Forest Inspectorate of Penteli issued a decision declaring that the first applicant’s land was a forest according to the Forests Code.
19. On 17 March 1999 the applicant association and three of its members invited the State to exchange the association’s land for new land of equal value belonging to the State, or to expropriate it, according to the provisions of Law no. 998/1979 (see paragraph 23 below). The authorities did not reply.
20. On 22 July 1999 the case was brought before the Supreme Administrative Court. The applicants referred to the history of the proceedings and inter alia argued that their property had been interfered with for more than forty years with no compensation whatsoever. Coming to the current situation, they stressed that Presidential Decree of 15 April 1988, and the interpretation of Articles 24 § 1 and 117 § 4 of the 1975 Constitution as set out in the 1403/1990 judgment and in the jurisprudence of the Supreme Administrative Court, made clear that it was no longer possible to build on their land. Such interference was even more odious in view of the aims of the association which was the provision of appropriate housing for its members, an aim that had now come to nought, despite the great amounts of money and time invested in it by the association and its members. The applicants claimed that according to the provisions of Law no. 998/1979 they were entitled to compensation for the deprivation of their right to use their property for the purposes for which they had bought it. Thus, by refusing to exchange their land for new land of equal value, or to expropriate it, the State had violated Articles 17 of the 1975 Constitution and 1 of Protocol No. 1 to the Convention.
21. On 4 October 2001 the Supreme Administrative Court, by a majority, dismissed the application on the ground that the relevant provisions of Law no. 998/1979 were unconstitutional. In particular, it held that, “by providing for the possibility of expropriating or exchanging woodland which cannot become a residential area, Section 50 § 3 presupposes that the urban development of woodland is in principle lawful, something which is contrary to Article 24 of the 1975 Constitution”. However, one judge expressed the opinion that the expropriation or the exchange of land which was purchased before the entry into force of the 1975 Constitution was not contrary to it (judgment no. 3403/2001). The judgment was certified (θεώρηση) on 23 March 2002.
22. The relevant provisions of the Constitution, which came into force on 11 June 1975, read as follows:
“1. Property is protected by the State; rights deriving therefrom, however, may not be exercised contrary to public interest.
2. No one shall be deprived of his property except in the public interest, which must be duly shown, when and as specified by law and always following full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional determination of compensation. In cases in which a request for the final determination of compensation is made, the value at the time of the court hearing of the request shall be considered...”
“The protection of the natural and cultural environment is an obligation of the State. The State is bound to take special preventive or repressive measures for the preservation of the environment. Matters pertaining to the protection of forests and woodland in general shall be regulated by law. It is forbidden to alter the status and use of State forests and woodland, except where agricultural development or other use is paramount for the national economy and serves the public interest.”
“The expropriation of forests or woodland that belong to private individuals or corporations is allowed only for the benefit of the State, according to Article 17 of the Constitution [which provides the conditions for the taking of property], for the public interest; their status as forests or woodlands is not thereby changed.”
23. The relevant section of Law no. 998/1979 reads as follows:
“Forests and private woodland belonging to Housing Associations at the time of entry into force of this law and which cannot lawfully become a residential area or be included in such an area according to [§§ 1 and 2 of this Section], shall be expropriated by the State at the expense of the Central Fund of Agriculture and Forests, or shall be exchanged with land of equal value or other vacant land which is under the management of the Ministry of Agriculture and has been included in a residential area according to current legislation. The expropriation shall take place by virtue of a joint decision of the Ministers of Finance and Agriculture, on the basis of an opinion by the Forestry Technical Council...”
In 1987 the Supreme Administrative Court held that “in its true meaning [Section 50 of Law no. 998/1979] regulated the status of private forests and woodland purchased by housing associations”; it thus considered that the above provision was not applicable in a case where land was donated to a housing association (judgment no. 4884/1987).


ITEMID: 001-61829
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF PABLA KY v. FINLAND
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 7. The applicant is a limited partnership company founded in 1986 and based in Helsinki.
8. The applicant company, which was running a restaurant in Helsinki, rented the restaurant premises from an insurance company, Keskinäinen Henkivakuutusyhtiö Suomi (KHS). In 1994 it was offered the opportunity to rent more premises, which would be renovated to be suitable for restaurant use. When the renovation was finished, the applicant company found that there were excessive toilet facilities and that part of the planned restaurant facilities were missing, especially those planned to be built in the cellar. The applicant company paid 251,000 Finnish marks (approximately 42,200 euros) for the renovation expenses and the monthly rent was raised considerably. The amended rent contract had been signed before the extension work commenced.
9. In 1997 the applicant company instituted civil proceedings against KHS before a Division of the Helsinki District Court (käräjäoikeus, tingsrätt) known as “the Housing Court” (asunto-oikeus, bostadsdomstolen). The applicant company claimed that there had been a breach of the rent contract, as the newly renovated facilities did not correspond to the original plan, on the basis of which the applicant company had signed the amended rent contract. KHS disagreed with the applicant company, arguing that even though there had originally been a plan to build restaurant facilities in the cellar, it had later proved to be impossible to build such an extension and that the applicant company had been aware of this before signing the contract (see paragraph 19 below).
10. On 17 September 1997 the Housing Court found in favour of the insurance company, rejecting the applicant company's action for compensation in accordance with the Act on Commercial Leases.
11. The applicant company appealed to the Helsinki Court of Appeal (hovioikeus hovrätt), requesting that the District Court's decision be quashed. On 11 December 1997 the Housing Court Division of the Court of Appeal upheld the District Court's decision without an oral hearing. One of the members of the Court of Appeal, M.P., was a member of the Finnish parliament at the time. He had been an expert member of the Court of Appeal since 1974. From 1987 to 1990 and from 1995 to 1998 he was also a member of parliament. For the latter period the date of election was 19 March 1995.
12. On 9 February 1998 the applicant company applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal, complaining, inter alia, about the lack of independence of Judge M.P., who had both legislative functions as a member of parliament and judicial functions as a member of the Court of Appeal. On 5 May 1998 the Supreme Court refused the applicant company leave to appeal.
13. Under section 9 of the Parliament Act (valtiopäiväjärjestys, riksdagsordning 278/1983), which was in force in 1997, only certain military positions and certain high positions in the judiciary, as well as the duties of officials supervising the lawfulness of government activities, were incompatible with the duties of a member of parliament, but there were no such restrictions as regards membership of a court of appeal. That provision read as follows:
“The Chancellor of Justice, the Assistant Chancellor of Justice, a Justice of the Supreme Court or of the Supreme Administrative Court, the Parliamentary Ombudsman and the Assistant Parliamentary Ombudsman may not hold the office of a representative. If a representative is appointed to one of the aforesaid offices or elected Parliamentary Ombudsman or Assistant Parliamentary Ombudsman, his parliamentary mandate shall expire.”
This provision corresponds to the existing section 27 of the Constitution (perustuslaki, grundlagen 731/1999).
14. According to section 23 of the State Civil Servants Act (valtion virkamieslaki, statstjänstemannalagen 750/1994), a public official must be absent from office for the period of time he or she performs the duties of a member of parliament.
15. Under section 29(1) (504/1984) of the Act on Court Proceedings in Cases concerning Rental Matters (laki oikeudenkäynnistä huoneenvuokra-asioissa, lag om rättegång i hyresmål 650/1973), as in force at the relevant time, the court of appeal was required to consider appeals concerning rent contracts as a bench of three judges and two expert members, one of whom represented the views of landlords and the other the views of tenants. The expert members of the court of appeal were appointed by the President of the Republic for a period of four years. Members must be between 25 and 70 years old, and have full legal capacity (section 29(2)). Expert members were required to take an oath (section 31).
16. The Act on Court Proceedings in Cases concerning Rental Matters was repealed by Act no. 597/2002, which came into force on 1 January 2003. Expert members no longer take part in the proceedings before the district courts or courts of appeal. Instead, the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) applies to the proceedings.
17. The provisions concerning the disqualification of judges are contained in Chapter 13, section 1, of the Code of Judicial Procedure. At the relevant time the said provision was worded as follows:
“If the plaintiff or the defendant wishes to challenge a judge, he shall do so in a proper manner, and that judge shall decide whether or not to stand down. The following shall be the legal grounds for disqualification: where the judge is related by blood or marriage to one of the parties to a degree which would constitute a bar to marriage under Chapter 2 of the (1734) Marriage Code, including cousinship by blood although not by marriage; where the judge is the opposing party or a publicly known “enemy” of a party; where the judge or a listed relative has an interest in the case, where they stand to obtain particular benefit or suffer particular loss in it; where the judge has served as a judge in the case in another court; where the judge has served as an advocate or witness in the case; where the judge has previously, on the orders of a court, decided a part of the case; or where the judge has a similar case pending before another court. If the judge knows that such grounds exist in his regard, even though the parties are not aware of the same, the judge shall stand down of his own accord.”
18. The provisions of Chapter 13 of the Code of Judicial Procedure concerning the impartiality of judges were amended by an Act (441/2001) which came into force on 1 September 2001. The government bill (HE 78/2000) contains an extensive account of the existing legislative provisions, the case-law of the European Court of Human Rights and precedents of the Supreme Court concerning the disqualification of judges. The amendment has not changed the Government's assessment of the present case.
19. The Act on Commercial Leases (laki liikehuoneiston vuokrauksesta, lag om hyra av affärslokal 482/1995) was presented as a government bill on 21 November 1994. It was adopted on 17 February 1995 and came into force on 1 May 1995.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57448
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1986
DOCNAME: CASE OF BOZANO v. FRANCE
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (incompatibility);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-1;Not necessary to examine Art. 18+5-1 and P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim partially rejected;Just satisfaction partially reserved
JUDGES: C. Russo
TEXT: 11. The applicant, an Italian national born in 1945, is at present in custody in Porto Azzurro Prison on the island of Elba (Italy).
12. He was arrested by the Italian police on 9 May 1971, released on 12 May and arrested again on 20 May on a charge of having abducted and murdered a 13-year-old Swiss girl, Milena Sutter, in Genoa on 6 May. It was alleged that he had hidden the body and tried to extort a ransom of 50 million Italian lire from the victim's father, an industrialist. He was also charged with indecency and indecent assault with violence on four women.
13. On 15 June 1973, after several months of hearings largely taken up by the evidence of 180 witnesses, the Genoa Assize Court sentenced him to two years and 15 days' imprisonment for offences relating to one of the four women (the time spent in detention being reckoned as part of the sentence). He was acquitted of the other crimes with which he was charged, in particular the abduction of Milena Sutter and its sequel, for lack of evidence; and he was accordingly released.
14. The prosecution appealed to the Genoa Assize Court of Appeal against the judgment (which ran to 166 pages). The hearing was set down for on 20 November 1974 but had to be adjourned, because the defence challenged the presiding judge, alleging that he had publicly stated his conviction that Mr. Bozano was guilty. The appeal proceedings commenced on 18 April 1975 after this challenge had been rejected by the Court of Cassation, but the accused applied for an adjournment. On the evidence of a medical certificate, he claimed that he was in hospital being treated for renal colic and was thus unable to appear. The court found that he was deliberately refusing to appear (contumace) and proceeded with the hearing. Thereupon the defence entered a fresh challenge in respect of the presiding judge and lodged an objection impugning the Assize Court of Appeal on grounds of bias; the challenge and the objection were dismissed by the Court of Cassation on 28 April. In the absence of the applicant, the proceedings then resumed before the Assize Court of Appeal, which refused to hear some of the defence witnesses. Considering that they could no longer perform their duties in these circumstances, the applicant's principal counsel withdrew from the case, and the defence was from then on conducted by a single lawyer who had been instructed not long before.
On 22 May 1975, the Assize Court of Appeal, giving judgment in absentia, sentenced Mr. Bozano to life imprisonment (ergastolo) for the crimes relating to Milena Sutter and to four years' imprisonment for the other crimes; the court held that there were no extenuating circumstances.
15. On 25 March 1976, the Court of Cassation dismissed the applicant's appeal on points of law against this judgment, whereupon the public prosecutor's office in Genoa issued a committal order, on 30 March, and the Italian police circulated an international arrest warrant, two days later.
16. Mr. Bozano had in fact taken refuge in France, at first living on the Côte d'Azur and then in central France. He assumed the (false) identity of Bruno Bellegati Visconti - at any rate after a certain time.
17. On 26 January 1979, the French gendarmerie arrested him in the course of a routine check in the département of Creuse and on the same day he was taken into custody at Limoges Prison (Haute-Vienne) pending extradition proceedings. He was served with the document authorising his arrest and the documents produced in support of the extradition request, and the public prosecutor attached to at the Court of Appeal examined him under section 13(2) of the Extradition of Aliens Act of 10 March 1927 ("the 1927 Act"). On 31 January, Italy officially applied to France for his extradition under a bilateral treaty of 12 May 1870.
18. On 15 May 1979, the Indictment Division of the Limoges Court of Appeal, to which the case had been submitted in accordance with section 14 of the 1927 Act, ruled against extradition after hearing the public prosecutor, the applicant's counsel and the applicant himself. It found that the request was in order as far as the 1870 treaty and the 1927 Act were concerned but held that the Italian procedure for trial in absentia, which had been followed in this case by the Genoa Assize Court of Appeal, was incompatible with French public policy (ordre public), because even in respect of indictable offences (and not just of lesser ones) it was possible under that procedure to pass an enforceable sentence on an accused who had not appeared in person before the court, without the adversarial proceedings which formed the basis of French criminal procedure and without any provision for making a retrial obligatory.
By virtue of section 17 of the 1927 Act, this negative ruling was final and binding on the French Government, which accordingly declined to extradite the applicant.
19. Mr. Bozano nonetheless remained in prison at Limoges, because he had been charged in France with fraud and with forgery and falsification of administrative documents and use thereof.
On 24 August 1979, the investigating judge found that Bozano seemed to have acted merely as an executing agent and not to have planned and directed the frauds with which he was charged; the details which he had "preferred not to reveal" related to the circumstances at the beginning of his residence and not to the matters in issue; there were a considerable number of extentuating circumstances in connection with the making of the false identity documents; it was no longer necessary to keep him in prison in order to ascertain the truth, but on account of his "special administrative position" he had to be placed under judicial supervision. The investigating judge therefore ordered his release on bail of 15,000 francs and subject to certain conditions.
The public prosecutor's office appealed against this order, but the Indictment Division of the Limoges Court of Appeal upheld it on 19 September 1979. Six days earlier, despite the prosecution's opposition, the investigating judge had decided that there were no grounds for keeping Mr. Bozano in custody.
20. The applicant was immediately released. He has claimed that on the next day, 20 September, he applied for a residence permit at Haute-Vienne Prefecture but was refused an acknowledgment of receipt of this application. The Government have stated that there is no trace of this application in the official archives, but they have not denied that it was made. At all events, Mr. Bozano's lawyer in Limoges wrote to the Prefect on 27 September in support of his client's course of action.
For its part, the Italian consulate-general in Paris had stated on 13 July 1979 - without giving any reasons - that it was unable for the time being to provide the applicant with an identity document; this was in reply to a letter sent to it the previous day by another lawyer acting for the applicant, who was a member of the Paris Bar.
21. On 26 October 1979, the investigating judge issued a discharge order in respect of the fraud charge, an order terminating judicial supervision, and an order committing the applicant for trial at Limoges Criminal Court on charges of forging and falsifying administrative documents and using false identity documents (contrary to Articles 153 and 261 of the Criminal Code).
22. The account given hereafter in paragraphs 23, 25 and 26 is based mainly on information and documents supplied to the Commission and, subsequently, to the Court by Mr. Bozano's lawyers. The Government have not formally challenged its accuracy, but they have expressed reservations in respect of one or two matters; they acknowledge, however, that they cannot be certain or adduce any evidence to the contrary.
23. On the evening of 26 October 1979, at about 8.30 p.m., three plain-clothes policemen, at least one of whom was armed, stopped Mr. Bozano as he was returning home after an interview with his Limoges lawyer and ordered him to follow them. When he protested, they seized him and forced him to get into an unmarked car. He was handcuffed and driven to Limoges police headquarters. There four other men arrived shortly afterwards who said they had come specially from Paris; they served him with a deportation order (without giving him a copy).
24. This order, which had been made more than a month earlier - on 17 September 1979 - by the Minister of the Interior at the instance of the Prefect of Haute-Vienne and was signed by the Director of Regulations, read as follows:
"THE MINISTER OF THE INTERIOR
Having regard to article 23 of the Aliens (Conditions of Entry and Residence) Ordinance of 2 November 1945,
Having regard to the Decree of 18 March 1946,
Having regard to information obtained concerning Lorenzo BOZANO, born on 3 October 1945 in GENOA (Italy);
Deeming that the presence of the above-mentioned alien on French territory is likely to jeopardise public order (ordre public),
BY THIS ORDER REQUIRES:
1. the above-named to leave French territory;
2. the Prefects to execute this order.
Paris, 17 SEPTEMBER 1979."
25. The applicant refused to sign a police report stating that he complied with this decision of his own free will. On the contrary, he emphatically opposed deportation and demanded to be brought before the Appeals Board provided for in article 25 of the Aliens (Conditions of Entry and Residence) Ordinance of 2 November 1945.
He was told that this was out of the question and that he was going to be taken at once to Switzerland (and not to the Spanish border, which was the nearest frontier). Accordingly, without first being ordered to leave France for a country of his choice or being allowed to inform his wife or his lawyer, he was forced to get into an unmarked BMW and sit, still handcuffed, between two police officers. At about 10 p.m. the car left for Clermont-Ferrand, preceded by a police car which led the way. It reached the frontier near Annemasse on Saturday 27 October 1979 in the early hours of the morning. At first it was unable to cross; after a long telephone conversation between the officer in charge of the French policemen and the Swiss authorities, it proceeded to the French customs post at Moillesulaz.
26. After a further telephone conversation, there appeared an unmarked Opel with a Swiss number plate, and a Swiss policeman got out. He put other handcuffs on Mr. Bozano, who was made to sit on the back seat between this policeman and a French one. The Opel entered Switzerland at about 8.00 a.m., escorted by the BMW with the other three French policemen aboard. The two vehicles drove to the police station in the Boulevard Carl-Vogt in Geneva.
The applicant, who had no identity papers, was informed at about 11.45 a.m. that Italy was requesting his extradition. He was then provisionally taken into custody at Champ-Dollon Prison, as had been requested that same day by the Federal Police Office when it informed the Geneva police that the diplomatic request would be arriving shortly.
As early as 14 September and 24 October 1979, Interpol Rome had telexed several States, including Switzerland, to inform them that Mr. Bozano would shortly be deported from France. The documents later supplied by Italy in support of its request were dated 28 October 1979, a Sunday.
27. In 1976, Italy, to which Switzerland is bound by the European Convention on Extradition of 13 December 1957, had requested Switzerland to extradite the applicant, and the latter's name had accordingly been recorded in the Swiss Police Gazette (Moniteur suisse de police) of 5 April 1976 as being the subject of a "warrant for arrest pending extradition proceedings".
Mr. Bozano was extradited to Italy on 18 June 1980 after the Swiss Federal Court had rejected his objection on 13 June. He is currently serving his sentence in Porto Azzurro Prison on the island of Elba, as Italian law - unlike the French system - makes no provision for obligatory retrial after proceedings in absentia (cf. Article 639 of the French Code of Criminal Procedure). It appears that he has never ceased to claim that he is innocent of the appalling crime of which he was convicted, but unless he is given a retrial (revisione) or a pardon, he will not be eligible for release (on parole) until May 2008.
28. On 11 and 26 December 1979, Mr. Bozano's lawyer had had recourse to two remedies in France.
29. In the first place, they summoned the Minister of the Interior to appear in urgent proceedings before the presiding judge of the Paris tribunal de grande instance on 17 December.
According to them, the "operation" carried out on the night of 26-27 October 1979 had three major defects, any one of which was sufficient to classify it as arbitrary and thus constituting a flagrantly unlawful act (voie de fait). Mr. Bozano's "brutal arrest" was obviously a vital stage in the execution of the deportation order but could not be justified by the order because it had preceded notification of the order. The authorities could not prove that the execution of the administrative act had met with definite resistance or at least obvious unwillingness to comply: they had quite simply not left the applicant "any time to do anything at all", and in any case it would have been in his interests to comply voluntarily so as to be able to choose the country in which he would take refuge. Finally and most importantly, the executive had no automatic right of enforcement in this matter.
Furthermore, there was the flagrant unlawfulness of the order itself. It was contrary to the decisions to release the applicant and to discharge the judicial supervision order that had been taken by the investigating judicial authorities on 19 September and 26 October 1979, and to the negative ruling of 15 May 1979 by the Indictment Division of the Limoges Court of Appeal (see paragraph 18 above); and in choosing Switzerland out of five neighbouring countries, against the applicant's will, the authorities knew that they were handing him over to the European State most likely to extradite him to Italy, owing to the existence of an extradition agreement between Italy and Switzerland and the nationality of the murdered girl.
Mr. Bozano's lawyers further pointed out that the matter was urgent because the Swiss Federal Court was about to take a decision on the Italian extradition request (see paragraph 27 above), and that their client had been improperly removed from the jurisdiction of the French courts, seeing that the investigating judge had committed him for trial at Limoges Criminal Court on a charge of using false identity documents (see paragraph 21 above).
They therefore sought an injunction from the presiding judge of the Paris tribunal de grande instance requiring the Minister of the Interior to apply to the appropriate Swiss authority, within eight days of the interim order's being made, for the return of their client.
30. In his submissions of 17 December 1979, the Minister pointed out that section 13 of the Act of 16/24 August 1790 forbade any interference by the ordinary courts with administrative acts. He drew the inference that the application must be dismissed and the applicant left to take proceedings in the proper courts if he so desired.
The Paris Commissioner of Police likewise entered a plea in bar alleging want of jurisdiction, which the procureur de la République (public prosecutor) argued at the hearing, submitting that the parties should be referred to the administrative court. He too based his argument on the 1790 Act and, in addition, the Act of 16 fructidor of Year III, which forbids the courts to deal with administrative acts of any kind whatsoever. There was nothing to prove that the deportation order complained of and its enforcement had amounted to a flagrantly unlawful act, that is to say, that they were manifestly incapable of being related to the application of a statute or regulations. In particular, the investigating judicial authorities' order for the applicant's release and their decision to discharge the judicial supervision order did not establish that Mr. Bozano's presence on the national territory did not constitute a threat to public order. Furthermore, it was in the nature of deportation to be effected by coercion if need be (Court of Cassation, Criminal Division, 20 February 1979, Batchono - Juris-Classeur périodique 1979-19207). As to the negative ruling by the Indictment Division of the Limoges Court of Appeal on 15 May 1979, it did not forbid taking Mr. Bozano to the Swiss frontier, as the Swiss Confederation had agreed to accept him.
31. On 14 January 1980, the presiding judge of the Paris tribunal de grande instance made an order stating that there were no grounds for hearing the case on an urgent application because the application, "as it [put] relations between States in issue, [was] not within the jurisdiction of the judge competent to hear urgent applications in the ordinary courts". This decision was preceded by reasons which read as follows (translation from French):
"The various events between Bozano's being apprehended and his being handed over to the Swiss police disclose manifest and very serious irregularities both from the point of view of French public policy (ordre public) and with regard to the rules resulting from application of Article 48 of the Treaty of Rome. Moreover, it is surprising that precisely the Swiss border was chosen as the place of deportation although the Spanish border is nearer Limoges. Lastly, it may be noted that the courts have not been given an opportunity of making a finding as to the possible infringements of the deportation order issued against him, because as soon as the order was served on him, Bozano was handed over to the Swiss police, despite his protests. The executive thus itself implemented its own decision.
It therefore appears that this operation consisted, not in a straightforward expulsion on the basis of the deportation order, but in a prearranged handing over to the Swiss police ..."
32. The applicant's lawyers considered that there was no point in appealing. It should be noted in this connection that the Jurisdiction Disputes Court (Tribunal des conflits) has held that even an unlawful decision to deport does not amount to a flagrantly unlawful act and that consequently only the administrative courts have jurisdiction in the matter (Préfet du Rhône c. Tribunal de grande instance de Lyon and Fentrouci c. Ministre de l'Intérieur, 3 December 1979, Recueil Lebon, 1979, p. 579).
33. On 26 December 1979, the applicant's legal advisers had applied, secondly, to the Limoges Administrative Court, to have the deportation order of 17 September set aside.
They argued in substance that this had been made by an unauthorised entity as it did not bear the Minister of the Interior's personal signature. It was "bad for error of law" to the extent that it was based on Mr. Bozano's previous conviction, because the Indictment Division of the Limoges Court of Appeal had rejected as being contrary to French public policy the conviction in absentia by the Genoa Assize Court of Appeal (see paragraph 18 above). There had also been an abuse of powers, since the matter had been one, not of requiring Mr. Bozano to leave French territory, but of handing him over to the country which was more likely than any other to extradite him to Italy; and a manifest error of judgment, inasmuch as the order complained of was based on the applicant's behaviour in France - the use of a false document had seemed to him to be the only way of escaping prosecution for a crime of which he held he was innocent, and the investigating judge had found that there were a considerable number of extenuating circumstances in relation to the offence (see paragraph 19 above). The authorities should have looked at the whole case to determine whether Mr. Bozano's presence amounted to a threat to public order. The order complained of had not complied with the provisions of Community law (Article 48 of the Treaty of Rome and EEC Directive 64/221). Furthermore, the authorities had disregarded all the formal requirements of Directive 64/221 and the Decree of 5 January 1970: Mr. Bozano had not been served with a refusal to issue a residence permit, had not been able to submit his observations to the Deportation Board, had not been informed of the reasons of public policy on which the administrative decision was based, and had not been given a reasonable period to leave French territory. Only urgency could have absolved the executive from its duty to comply with these mandatory rules, but there had been no such urgency in the instant case nor had it been relied on at any time.
34. Initially (27 May 1980), the Minister of the Interior opposed this argument, contending, inter alia, that the circumstances in which an administrative decision was executed did not affect the lawfulness of the decision; but in further pleadings, sent by telegram on 8 December 1981, the Minister of the Interior and for Decentralisation stated that he desired to leave the matter to the discretion of the court.
35. The court gave judgment on 22 December 1981. Without ruling on the other grounds, it held that the Minister of the Interior had committed "a manifest error of judgment" and the administrative authorities an "abuse of powers".
On the first point the judgment read as follows (translation from French):
"The Minister ... refers to the applicant's use of false administrative documents and to his behaviour in Italy;
The fact of having used false identity documents to enter France and reside there cannot of itself, in the absence of any aggravating circumstances, be considered as amounting to a threat to public order;
It appears from the documents on the file ... that the only factor to which regard was had in respect of the applicant's behaviour in Italy was a criminal conviction and sentence in absentia ...; in the absence of any truly adversarial proceedings, the very serious offence of which Mr. Bozano was accused, and which he has always denied, cannot be regarded as having been adequately proved ... "
The finding that there had been an abuse of powers was based on the following circumstances (translation from French):
"Whereas the haste with which the impugned decision was enforced, when the individual concerned had not even indicated his refusal to comply, and the choice of the Swiss border which was imposed on the individual clearly show the real reason behind the decision: in reality the executive sought, not to expel the applicant from French territory, but to hand him over to the Italian authorities via the Swiss authorities, with whom Italy had an extradition agreement; the executive was therefore seeking to circumvent the competent judicial authority's negative ruling which was binding on the French Government; ... the impugned decision was [therefore] an abuse of powers ..."
The court accordingly quashed the deportation order.
The Minister of the Interior and for Decentralisation did not appeal.
36. The applicant's legal advisers had considered it unnecessary to couple their application for the order to be set aside with an application for a stay of its execution. Had they done so, such an application would have had to be made - at that time - to the Conseil d'Etat and not to Limoges Administrative Court.
37. According to the information provided by the Government, Mr. Bozano was not summoned to appear at Limoges Criminal Court on the charges of forging and falsifying administrative documents and uttering false identity documents (see paragraph 21 above). The prosecuting authorities considered that the nature of the offences charged did not justify continuing the proceedings in view of the fact that the accused had been deported.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-109238
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: LANCHAVA AND OTHERS v. GEORGIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicants are Georgian nationals. They were represented before the Court by Mr Simon Papuashvili, a lawyer practising in Tbilisi.
2. s, may be summarised as follows.
3. In 1991-92, the applicants, as members of a State-supported housing construction cooperative, paid various amounts of money in Soviet roubles, the then legal tender, to the Tbilisi municipality in exchange for the local authority’s undertaking to provide them, under privileged conditions, with newly built apartments. The payable amounts were calculated according to the prices prevailing on the Georgian real property market at the material time. The validity of that transaction was confirmed by a number of legal acts issued by the municipality during the same period.
4. Owing to financial crises which hit the country in the course of its transition from the old Soviet, State-controlled economy to a market one in the early 90s, the Tbilisi municipality failed to fulfil its contractual obligation. Thus, the construction of the relevant block of flats for the applicants never started.
5. The applicants’ case was not an isolated instance of non-fulfilment by the State of its contractual housing obligations. There were many other such housing construction cooperatives all over the country, which, despite having duly paid their contributions to the State, never received any dwellings in exchange. As disclosed by various legal acts contained in the case file, and notably by a Resolution of 9 October 1992 of the Government of Georgia, one of the major reasons for that civil liability of the State was a sudden and drastic depreciation of the Soviet rouble and a consequent rise in the prices of the relevant services and goods, which rendered the monetary contributions of the individual members of various housing cooperatives, such as the applicants, insufficient even for partial funding of house construction work.
6. In April 1993 the Georgian State withdrew the collapsed Soviet rouble from circulation, introducing instead a provisional currency, the socalled coupons, which then also suffered from hyper-inflation. In October 1995, the provisional currency was finally replaced by the Georgian lari, the current national legal tender.
7. On 4 December 2007 the applicants brought an action against the Ministry of Finance, requesting that the State fulfil its obligations under section 48 § 1 (g) of the Act of 5 March of 1998 on State Debt (“the Act on State Debt”) by paying them compensation for the undelivered apartments in an amount of more than 4 million euros. They explained that the amount claimed corresponded to the overall total value of similar apartments according to the current prices on the Georgian real property market.
8. In a judgment of 22 February 2008, the Tbilisi City Court dismissed the applicants’ action as manifestly ill-founded. At the outset, the court acknowledged that the State’s liability vis-à-vis the individual members of housing construction cooperatives constituted domestic public debt under section 48 § 1 (g) of the Act. The court also noted that the State had failed to develop a scheme for the settlement of that debt within the time-limit set by section 48 § 4 of the Act.
9. The City Court then recalled that on 15 November 2004 the Government of Georgia had established, on the basis of section 48 § 1 of the Act, an ad hoc ministerial Commission for the purpose of studying and drawing up recommendations for the problems related to the settlement of various forms of domestic public debt, including that owed to the individual members of housing construction cooperatives. However, that Commission was still in the process of working on the problems, without having submitted any specific recommendations to the Parliament and President of Georgia as yet. Consequently, in the absence of a clear legislative mechanism whereby the State should settle the debt, the court was not able to rule on the matter. Without such a mechanism it was not even possible, the City Court emphasised, to calculate amounts which were currently payable to the applicants as compensation for their old deposits.
10. On 11 July 2008 the Tbilisi Court of Appeal fully upheld the first instance court’s judgment of 22 February 2008. The appellate court reiterated that, in the absence of a legislative mechanism regulating the settlement of the relevant domestic public debt, there was no legal basis for the courts to entertain the applicants’ action for the time being. Since the repayment of that debt was intrinsically connected to its indexation and other complex financial calculations, the judiciary could not overstep the competence of the relevant ministerial Commission specifically created for that purpose.
11. On 14 January 2009 the Supreme Court of Georgia rejected the applicants’ cassation appeal as inadmissible, finally terminating the dispute.
12. On 5 March 1998 the Act on State Debt was enacted. Pursuant to its section 1 (b), domestic debt, which resulted from various types of Government liabilities, was represented by sums in fiat currency.
13. Pursuant to section 48 § 1 (g) of the Act on State Debt, the contractual obligations undertaken but not fulfilled by the State visàvis individual members of housing construction cooperatives were recognised, amongst other Government liabilities, as a form of domestic public debt. According to paragraph 4 of the same section, the Ministry of Finance was supposed to devise a mechanism for the repayment of that particular debt by 1 September 1998.
14. On 15 November 2004 the Prime Minister of Georgia issued Resolution no. 108, establishing an ad hoc Commission to address the problem of the settlement of the various forms of domestic public debt under section 48 § 1 of the Act. The Commission was composed of different Ministers and was initially supposed to submit specific recommendations for the resolution of the problem by 1 January 2009. Subsequently, that deadline was postponed several times. Pursuant to the Resolution as it currently stands, after having been amended for the last time on 1 December 2011, the Commission is expected to submit such recommendations by 1 January 2013.


ITEMID: 001-71983
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MIZZI v. MALTA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (estoppel);Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 14+6-1 and 14+8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1936 and lives in Bidnija (Malta).
9. The applicant is a well-known businessman in Malta. On 29 December 1963 he married a Maltese national, X, in a Catholic ceremony. In 1966 X became pregnant; at that time she was still living together with the applicant, who was aware of the pregnancy. In March 1967 the applicant and X separated and stopped living together. On 4 July 1967 X gave birth to a child, Y.
10. The applicant states that he had had doubts regarding the paternity of Y and wanted to carry out a blood test, although such a test would not have been conclusive under Maltese law, which did not allow him to institute an action to rebut the legal presumption that he was Y’s father. He was registered as the natural father of the child.
11. A few months after Y’s birth, X refused to carry out the blood test. This behaviour intensified the applicant’s suspicions regarding the child’s paternity. He alleged that he distanced himself completely from Y and, although legally obliged to pay maintenance for her until she reached the age of majority, he had no relationship with her. This is disputed by Y (see “D. The statements by Y and by the applicant” below).
12. The applicant legally separated from X on 2 March 1968 by means of a contract of voluntary separation. Subsequently the marriage was annulled by a decree of the Court of Appeal of the Vicariate of the City of Rome on 24 April 1972.
13. According to the applicant’s version of events, on an unspecified date after 1993 Y contacted him and volunteered to undergo a blood test. Scientific examinations were carried out in Switzerland and concluded that the applicant was not Y’s biological father. However, in a written statement attached to the Government’s observations on the merits, Y declared that the DNA test had been carried out in 1990 and not in 1993. She further stated that the results of this test had never been shown to her.
14. On 1 November 1996 the applicant lodged an application with the Civil Court (First Hall), seeking a declaration that notwithstanding the provisions of the Maltese Civil Code, he had a right to proceed with an action for disavowal of paternity.
15. The applicant alleged that the right to respect for his private and family life included the right to have family relationships governed by biological certainty and not by a legal presumption conflicting with the reality of the facts. He considered that the lack of any remedy in that respect violated Article 8 of the Convention, as interpreted by the Court in the case of Kroon and Others v. the Netherlands (judgment of 27 October 1994, Series A no. 297-C).
16. In submissions filed with the Civil Court the applicant also invoked Articles 6 and 14 of the Convention, alleging a potential violation of his right of access to a court and his right not to be discriminated against vis-à-vis the mother of the child, the child herself or any third parties who, unlike the betrayed husband, were free to deny legitimacy without being subject to any time-limit.
17. In a judgment of 30 May 1997 the Civil Court allowed the applicant’s application. It observed that Articles 70 and 73 of the Civil Code had never allowed him to adduce scientific and genetic evidence to prove that the child borne by his former wife was not in fact his daughter. Therefore, there had been a violation of Article 8 of the Convention.
18. The Civil Court considered that the status of father was intimately linked with private life. Therefore, laws establishing how ties of filiation could be created and dissolved could interfere with the right guaranteed by Article 8 of the Convention. It furthermore observed that national law had never allowed the applicant to adduce scientific evidence in order for the family relationship in question to be governed by biological certainty and not by a legal presumption. In fact, under Article 70 of the Civil Code, as in force at the relevant time, the father could only repudiate paternity on the grounds either of physical impossibility of cohabitation or of legal separation during the possible period of conception. Moreover, the husband could not repudiate a child on the ground of adultery, except where the birth had been concealed from him. As the applicant had been cohabiting with X at the time of Y’s conception and had been aware of her birth, no action for disavowal could have been brought within the period of three months from the date of the birth as set forth in the relevant domestic provisions. It was true that the Civil Code had been amended in 1993, and that under the new Article 70 § 1 (d), the husband was also allowed to repudiate a child on the ground of adultery subject to the production of further evidence, including genetic tests, ruling out his paternity of the child. However, under Article 73 of the Civil Code, such an action should have been brought within six months from the date of the birth, and by 1993 that period had already expired.
19. In the Civil Court’s view, such interference could not be justified in terms of paragraph 2 of Article 8 of the Convention. It emphasised that in the case of Kroon and Others v. the Netherlands the European Court had stated that respect for family life required that biological and social reality should prevail over a legal presumption. This finding dispensed the Civil Court from ascertaining whether the other rights relied on by the applicant had also been infringed.
20. The Attorney General appealed against the judgment of 30 May 1997 to the Constitutional Court. A third-party appeal was also lodged by Y.
21. In a judgment of 15 January 2002 the Constitutional Court allowed the appeals by the Attorney General and Y and set aside the impugned judgment.
22. It observed that even before the 1993 amendments the Civil Code had not precluded the taking of genetic and scientific tests to establish whether a person was the father of a child or not. In fact, Article 73 of the Code simply provided that adultery alone was an insufficient basis for bringing an action to repudiate paternity, the presence of another element being necessary, namely that the birth had been concealed from the person legally designated as the father. Only after this circumstance had been established could the “father” produce other evidence, including scientific material. The reason for this limitation of the husband’s right to proceed with an action for repudiation had been the stand in favour of the status of legitimacy, summed up by the presumption “pater is est quem iustae nuptiae demonstrant”. The ratio legis remained the same even after the 1993 amendments, which allowed the husband to repudiate the child on the basis of adultery and scientific tests even if the birth had not been concealed from him (Article 70 § 1 (d) of the Civil Code). In any case, scientific tests alone merely constituted evidence corroborating other elements, and they had never been sufficient and decisive to disavow paternity, the husband being obliged to prove the adultery or the concealment of the birth.
23. The Constitutional Court noted that the applicant was in reality claiming a right to determine paternity uniquely on the basis of biological certainty resulting from scientific proof, independently of any other requirement imposed by the legislator and without any time-limit. It was true that scientific tests, whose results were apparently ascertainable and accessible, could be the most conclusive; however, in the Constitutional Court’s view, this was not a good reason to exclude certainty reached by means of other evidence.
24. The Constitutional Court examined whether the domestic law had struck a fair balance between the husband’s right to know whether or not he was the child’s father and the interests of the child in enjoying certainty as to his or her legal status. It considered that according to today’s social trends, the aim of the interference complained of was the protection of children in the enjoyment of their family ties rather than the protection of the status of legitimacy. The issue raised by the applicant concerned a conflict between factual reality and legal certainty, a matter which was the subject of debate in many other countries. The Constitutional Court noted that the Kroon and Others judgment did not deny a margin of appreciation to the State authorities and that the European Court had not made a statement on the conformity of the provisions of Dutch law with the Convention, preferring to ruleThe contested judgment had simply followed the position taken in the Kroon and Others judgment, the facts of which, however, were completely different from those of the present case, in which both X and Y disagreed with the action taken by the applicant and the “social reality” enjoyed by Y corresponded to her birth certificate.
25. The Constitutional Court moreover pointed out that in the case of Rasmussen v. Denmark (judgment of 28 November 1984, Series A no. 87) the Court had considered that the introduction of time-limits for the institution of paternity proceedings was justified by the desire to ensure legal certainty and to protect the interests of the child, and had consequently found no violation of Article 8 of the Convention. That approach had subsequently been confirmed by the European Commission of Human Rights in the cases of B.H. v. Austria (application no. 19345/92, decision of 14 October 1992) and M.B. v. the United Kingdom, concerning the refusal to order a blood test (application no. 22920/93, decision of 6 April 1994), as well as by the Court in the case of Yildirim v. Austria ((dec.), no. 34308/96, 19 October 1999).
26. In the light of the above, the Constitutional Court considered that the interest in having biological and social reality prevail over legal presumptions should be balanced against equally valid principles and values, such as the interests of the offspring, the identity of the family nucleus and the stability of society. This vindicated the right of the State to impose, within its margin of appreciation, certain limits on the use of an action to deny paternity, which the Constitutional Court could review only if they amounted to serious interference with the husband’s fundamental rights.
27. The Constitutional Court finally observed that the ideal situation was one in which legal certainty corresponded to factual reality. It therefore suggested that the domestic provisions be constantly kept under the legislator’s scrutiny to be refined and updated as and when necessary, taking into account developments in science, changes in the family and social trends.
28. Attached to their observations on the merits, the Government produced a statement by Y, in which she declared that she had used the applicant’s name for thirty-seven years and would like to continue to do so for the rest of her life. Y also stated that the applicant used to visit her during the first year of her life; he had provided maintenance for her upbringing and had paid a sum for her wedding expenses. Y had been invited several times to parties at the applicant’s house and on one occasion she had been asked to go upstairs to greet the applicant’s father. On another occasion, Y had played tennis with the applicant at his private house in Bidnija. At some point between 1990 and 1996 the applicant had invited Y and her son to spend a day at his house by the pool. On that occasion, he had given her son a present.
29. Y declared that she had undergone the blood test in March 1990 at the applicant’s request. At that time she had had no doubt that the applicant was her father. Her intentions were based on purely emotional factors and not on financial considerations. Y alleged that she did not believe the applicant’s statement that she was not his daughter and added that she had never been shown the results of the DNA test. She felt that the applicant was simply trying to find some justification for the fact that he had not always treated her like a daughter. The reasons behind the applicant’s legal actions were probably of a merely financial nature. The allegations made in court had caused Y further suffering.
30. In response to Y’s arguments, the applicant produced a written statement in which he declared that, having suspected that his wife was having affairs during their marriage, he had not been happy when he had been informed that X was pregnant. The applicant had separated from X several months before Y’s birth and had been informed of the birth a few weeks after it had happened. The applicant had not wanted to sign the declaration of birth and had delayed the matter for months. He had eventually been incorrectly led to believe that as the presumed father, he was the only person who could declare the birth; moreover, pressure had been put on him by X and her father, who had promised that a blood test would be carried out. The applicant had asked whether the blood test could be included as a condition in the contract of separation, but he had abandoned that idea in order not to damage X’s reputation. Four months after the signature of the contract of separation, the applicant had been informed that X had changed her mind as to the blood test. He had therefore declared that he would not regard Y as his own daughter.
31. The applicant had included access rights in the separation contract and had actually visited Y during the first year of her life because he had not been sure about the results of the blood test. However, he had stopped the visits when it became clear that the blood test would not be carried out and he had never used his right to take Y to his home. The applicant had not seen Y again until she was about twenty years old, when a friend of his had brought her to one of his parties without informing him beforehand. There had been around one hundred guests at the party. The applicant had not recognised Y on that occasion. She had come to parties organised by the applicant three or four more times, always as an uninvited guest. The applicant did not remember whether he had invited her to greet his father, but pointed out that it had been common for his guests to visit his father, who was living with him.
32. The applicant submitted that he had shown the results of the blood tests to Y; however, he had kept the documents for himself. He would have given her a copy had she so requested.
33. On one occasion, “as a matter of courtesy”, the applicant had invited Y for lunch. Y had asked whether she could bring her son and the applicant had replied that that was possible. On that occasion, the applicant and Y had discussed Y’s real father’s identity.
34. The applicant had not seen Y again after this lunch. She had never been treated as a granddaughter by the applicant’s parents and the members of the applicant’s family had not had any direct contact with her. She had never attended family parties or family funerals and had not been given the applicant’s deceased mother’s jewellery (as would be customary in Malta if she were the applicant’s daughter). The applicant had never felt like a father to Y and could not see how she could have felt like a daughter to him. They had seen each other a few times in nearly thirty years and always in the company of third persons. Y had never called the applicant “dad”.
35. The applicant submitted that he had included maintenance for Y in the contract of separation because he was in any case obliged to pay for it. The applicant had also felt obliged to contribute to Y’s marriage expenses, but had not been invited to the wedding.
36. Before the 1993 amendments, the relevant Articles of the Maltese Civil Code read as follows:
“A child conceived in wedlock is held to be the child of the mother’s husband.”
“The husband can repudiate a child conceived in wedlock
(a) if he proves that during the time from the three hundredth day to the one-hundred-and-eightieth day before the birth of the child, he was in the physical impossibility of cohabiting with his wife on account of his being away from her, or some other accident; or
(b) if he proves that during the said time he was legally separated from his wife ...”
“The husband may not repudiate a child on the ground of adultery, except where the birth shall have been concealed from him, in which case he shall be allowed to prove, even in the action for disavowal, both the adultery and the concealment, as well as all other circumstances tending to show that he is not the father of the child ...”
“Where it is competent to the husband to bring an action to disown a child, he must bring such action
(a) within three months from the day of the birth, if he was then in Malta;
(b) within three months of his return to Malta, if he was absent at the time of the birth;
(c) within three months of the discovery of the fraud, if the birth was concealed from him ...”
37. From 1 December 1993 (see Act XXI of 1993) a number of amendments were made to the Civil Code. In particular, to the cases in which the husband may repudiate a child conceived in wedlock was added the following (Article 70 § 1 (d) of the Civil Code):
“if he proves that during the ... time [from the three hundredth day to the one hundred and eightieth day before the birth of the child] the wife had committed adultery or that she had concealed the pregnancy and the birth of the child, and further produces evidence of any other fact (which may also be genetic and scientific tests and data) that tends to exclude such paternity.”
38. Moreover, the periods set down in Article 73 of the Civil Code were raised to six months.
39. By Article 77 of the Civil Code, the legitimacy of a child born in wedlock may be impeached by any interested person if he or she proves that, during the time from the three hundredth day to the one hundred and eightieth day before the birth of the child, it was physically impossible for the husband to have been cohabiting with his wife. This action is not subject to any time-limit.
40. According to the case-law of the domestic courts, a child has the right to challenge his or her paternity without restrictions when the status attributed by the birth certificate conflicts with the factual reality (see the judgment of the Court of Appeal of 14 January 1952 in the case of Antonio Scerri Gauci v. Dr G. Scicluna).
41. By Articles 616 and 620 of the Civil Code, the applicant’s daughter is entitled, as a legitimate descendant, to inherit at least one-third of the applicant’s estate, which is due in full ownership and cannot be encumbered by any burden or condition. As a consequence of the amendments introduced in the Civil Code by Act XVIII of 2004, which entered into force on 1 March 2005, if the applicant dies without having made a will or if his will is declared invalid for any reason, Y, as his only child, will be entitled to his entire estate.
42. Until the child’ reached the age of majority, the applicant was obliged to provide maintenance for his daughter. Should the latter in future become unable to maintain herself, alone or with the help of her husband and children, the applicant would once again become liable to the obligation of maintenance.
VIOLATED_ARTICLES: 14
6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61080
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF APPLEBY AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 10;No violation of Art. 11;No violation of Art. 13
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: 10. The first, second and third applicants were born in 1952, 1966 and 1947 respectively and live in Washington (Tyne and Wear), where the fourth applicant, an environmental group set up by the applicants, is also based.
11. The new town centre of Washington is known as “the Galleries” and is located within an area now owned by Postel Properties Limited (“Postel”), a private company. This town centre was originally built by the Washington Development Corporation (“the Corporation”), a body set up by the government of the United Kingdom pursuant to an Act of Parliament to build the “new” centre. The centre was sold to Postel on 30 December 1987.
12. The Galleries, as owned by Postel at the relevant time, comprised a shopping mall (with two hypermarkets and major shops), the surrounding car parks with spaces for approximately 3,000 cars and walkways. Public services were also available in the vicinity. However, the freehold of the careers’ office and the public library was owned by the Council, the social services office and health centre were leased to the Council by the Secretary of State and the freehold of the police station was held on behalf of Northumbria Police Authority. There was a post office within the Galleries and also the offices of the housing department, leased to the Council by Postel.
13. Around September 1997 the Council gave outline planning permission to the City of Sunderland College to build on a part of Princess Anne Park in Washington known as the Arena. The Arena is the only playing field in the vicinity of Washington town centre which is available for use by the local community. The first to third applicants, together with other concerned residents, formed the fourth applicant to campaign against the college’s proposal and to persuade the Council not to grant the college permission to build on the field.
14. On or around 14 March 1998 the first applicant, together with her husband and son, set up two stands at the entrance of the shopping mall in the Galleries, displaying posters alerting the public to the likely loss of the open space and seeking signatures to present to the Council on behalf of Washington First Forum. Security guards employed by Postel would not let the first applicant or her assistants continue to collect signatures on any land or premises owned by Postel. The applicants had to remove their stands and stop collecting signatures.
15. The manager of one of the hypermarkets gave the applicants permission to set up stands within that store in March 1998, allowing them to transmit their message and to collect signatures, albeit from a reduced number of people. However, the same permission was not granted in April 1998 when the applicants wanted to collect signatures for a further petition.
16. On 10 April 1998 the third applicant, as acting chair of Washington First Forum, wrote to the manager of the Galleries asking for permission to set up a stand and to canvass views from the public either inside the mall itself or in the adjacent car parks and offered to pay to be allowed to do so. In his reply of 14 April 1998, the manager of the Galleries refused access. His letter read as follows:
“... the Galleries is unique in as much as although it is the Town Centre, it is also privately owned.
The owner’s stance on all political and religious issues, is one of strict neutrality and I am charged with applying this philosophy.
I am therefore obliged to refuse permission for you to carry out a petition within the Galleries or the adjacent car parks.”
17. On 19 April 1998 the third applicant wrote again to the manager of the Galleries, asking him to reconsider his decision. His letter remained unanswered.
18. The fourth applicant continued to try and reach the public by setting up stands by the roadside on public footpaths and going to the old town centre at Concord which, however, is visited by a much smaller number of Washington residents.
19. The deadline for letters of representation to the Council regarding the building works was 1 May 1998. On 30 April 1998 the applicants submitted the 3,200 letters of representation they had obtained.
20. The fourth applicant has produced a list of associations and others which were given permission to carry out collections, set up stands and displays within the Galleries. These included: the Salvation Army (collection before Christmas), local school choirs (carol-singing and collection before Christmas), the Stop Smoking Campaign (advertising display and handing out of nicotine patches), the Blood Transfusion Service (blood collection), the Royal British Legion (collection for Armistice Day), various photographers (advertising and taking of photographs) and British Gas (staffed advertising display).
21. From 31 January to 6 March 2001, Sunderland Council ran a consultation campaign under the banner “Your Council, Your Choice”, informing the local residents of three leadership choices for the future of the Council and were allowed to use the Galleries for this purpose. This was a statutory consultation exercise carried out under section 25 of the Local Government Act 2000, which required local authorities to draw up proposals for the operation of “executive arrangements” and consult local electors before sending them to the Secretary of State. Some 8,500 people were reported as having responded to the survey.
22. At common law, a private property owner may, in certain circumstances, be presumed to have extended an implied invitation to members of the public to come onto his land for lawful purposes. This is the case with commercial premises, such as shops, theatres and restaurants, as well as private premises (for example, there is a presumption that a house owner authorises people to come up the path to his front door to deliver letters or newspapers or for political canvassing). Any implied invitation may be revoked at will. A private person’s ability to eject people from his land is generally unfettered and he does not have to justify his conduct or comply with any test of reasonableness.
23. In CIN Properties Ltd v. Rawlins ([1995] 2 EGLR (Estates Gazette Law Reports) 130), where the applicants (young men) were barred from a shopping centre in Wellingborough as the private company owner CIN considered that their behaviour was a nuisance, the Court of Appeal held that CIN had the right to determine any licence which the applicants might have had to enter the centre. In giving judgment, Lord Phillips found that the local authority had not entered into any walkways agreement with the company within the meaning of section 18(1) of the Highways Act 1971 (later replaced by section 35 of the Highways Act 1980) which would have dedicated the walkways or footpaths as public rights of way and which would have given the local council the power to issue by-laws regulating the use of those rights of way. Nor was there any basis for finding an equitable licence. He also considered case-law from North America concerning the applicants’ arguments for the finding of some kind of public right:
“Of more obvious relevance are two North American cases. In Uston v. Resorts International Inc. (1982) N.J. 445A.2d 370, the Supreme Court of New Jersey laid down as a general proposition that when property owners open their premises – in that case a gaming casino – to the general public in pursuit of their own property interests, they have no right to exclude people unreasonably but, on the contrary, have a duty not to act in an arbitrary or discriminatory manner towards persons who come on their premises. However, that decision was based upon a previous decision of the same court in State v. Schmid (1980) N.J. 423A 2d 615, which clearly turned upon the constitutional freedoms of the First Amendment. The general proposition cited above has no application in English law.
The case of Harrison v. Carswell (1975) 62 D.L.R. 3d 68 in the Supreme Court of Canada concerned the right of an employee of a tenant in a shopping centre to picket her employer in the centre, against the wishes of the owner of the centre. The majority of the Supreme Court held that she had no such right and that the owner of the centre had sufficient control or possession of the common areas to enable it to invoke the remedy of trespass. However, Laskin C.J.C., in a strong dissenting judgment held that since a shopping centre was freely accessible to the public, the public did not enter under a revocable licence subject only to the owner’s whim. He said that the case involved a search for an appropriate legal framework for new social facts and –
’If it was necessary to categorise the legal situation which, in my view, arises upon the opening of a shopping centre, with public areas of the kind I have mentioned (at least where the opening is not accompanied by an announced limitation on the classes of public entrants), I would say that the members of the public are privileged visitors whose privilege is revocable only upon misbehaviour (and I need not spell out here what this embraces) or by reason of unlawful activity. Such a view reconciles both the interests of the shopping centre owner and of members of the public, doing violence to neither and recognising the mutual or reciprocal commercial interests of shopping centre owner, business tenants and members of the public upon which the shopping centre is based.’
I have already said that this was a dissenting judgment. Nevertheless counsel [for the applicants] submitted that we should apply it in the present case. I accept that courts may have to be ready to adapt the law to new social facts where necessary. However there is no such necessity where Parliament has already made adequate provision for the new social facts in question as it has here by section 18 of the Highways Act 1971 and section 35 of the Highways Act 1980. (Harrison v. Carswell makes no mention of any similar legislation in Canada.) Where Parliament has legislated and the Council, as representing the public, chooses not to invoke the machinery which the statute provides, it is not for the courts to intervene.
I would allow this appeal ... on the basis that CIN had the right, subject only to the issue under section 20 of the Race Relations Act 1976, to determine any licence the [applicants] may have had to enter the Centre.”
24. The parties have referred to case-law from the United States and Canada.
25. The First Amendment to the Federal Constitution protects freedom of speech and peaceful assembly.
26. The United States Supreme Court has accepted a general right of access to certain types of public places, such as streets and parks, known as “public fora” for the exercise of free speech (Hague v. Committee for Industrial Organisation, 307 U.S. (United States: Supreme Court Reports) 496 (1939)). In Marsh v. Alabama (326 U.S. 501, 66 S.Ct. (Supreme Court Reporter) 276, 90 L.Ed. (United States Supreme Court Reports, Lawyers’ Edition) 265 (1946)), the Supreme Court also held that a privately owned corporate town (a company town) having all the characteristics of other municipalities was subject to the First Amendment rights of free speech and peaceable assembly. It has found that the First Amendment does not require access to privately owned properties, such as shopping centres, on the basis that there has to be “State action” (a degree of State involvement) for the amendment to apply (see, for example, Hudgens v. NLRB, 424 U.S. 507 (1976)).
27. The United States Supreme Court has taken the position that the First Amendment does not prevent a private shopping-centre owner from prohibiting distribution on its premises of leaflets unrelated to its own operations (Lloyd Corp. v. Tanner, 47 U.S. 551, 92 S.Ct. 2219, 33 L.Ed. 2d 131 (1972)). This did not however prevent State constitutional provisions from adopting more expansive liberties than the Federal Constitution to permit individuals reasonably to exercise free speech and petition rights on the property of a privately owned shopping centre to which the public was invited and this did not violate the property rights of the shopping-centre owner so long as any restriction did not amount to taking without compensation or contravene any other federal constitutional provisions (Pruneyard Shopping Center v. Robbins, 447 U.S. 74, 64 L.Ed. 2d 741, 100 S.Ct. 2035 (1980)).
28. Some State courts have found that a right of access to shopping centres could be derived from provisions in their State constitutions according to which individuals could initiate legislation by gathering a certain number of signatures in a petition or individuals could stand for office by gathering a certain number of signatures (see, for example, Batchelder v. Allied Stores Int’l, N.E. (West’s North Eastern Reporter) 2d 590 (Massachussetts, 1983); Lloyd Corp. v. Whiffen, 849 P. (West’s Pacific Reporter) 2d 446, 453-54 (Oregon, 1993); Southcenter Joint Venture v. National Democratic Policy Comm., 780 P. 2d 1282 (Washington, 1989)). Some cases found State obligations arising due to State involvement, for example, Bock v. Westminster Mall Co., 819 P. 2d 55 (Colorado, 1991) (the shopping centre was a State actor because of financial participation of public authorities in its development and the active presence of government agencies in the common areas), and Jamestown v. Beneda, 477 N.W. (West’s North Western Reporter) 2d 830 (North Dakota, 1991) (where the shopping centre was owned by a public body, although leased to a private developer).
29. Other cases cited as indicating a right to reasonable access to property under State private law were State v. Shack, 277 A. (West’s Atlantic Reporter) 2d 369 (New Jersey, 1971), where the court ruled that under New Jersey property law ownership of real property did not include the right to bar access to governmental services available to migrant workers, in this case a publicly funded non-profit lawyer attempting to advise migrant workers; Uston v. Resorts International, 445 A. 2d 370 (New Jersey, 1982), a New Jersey case concerning casinos where the court held that when property owners open their premises to the general public in pursuit of their own property interests they have no right to exclude people unreasonably (although it was acknowledged that the private law of most States did not require a right of reasonable access to privately owned property, p. 374); and Streetwatch v. National Railroad Passenger Corp., 875 F. Supp. (West’s Federal Supplement) 1055 (Southern District of New York, 1995) concerning the ejection of homeless people from a railway station.
30. States in which courts ruled that free speech provisions in their constitutions did not apply to privately owned shopping centres included Arizona (Fiesta Mall Venture v. Mecham Recall Comm., 767 P. 2d 719 (Court of Appeals, 1989)); Connecticut (Cologne v. Westfarms Assocs, 469 A. 2d 1201 (1984)); Georgia (Citizens for Ethical Gov’t v. Gwinnet Place Assoc., 392 S.E. (West’s South Eastern Reporter) 2d 8 (1990)); Michigan (Woodland v. Michigan Citizens Lobby, 378 N.W. 2d 337 (1985)); Minnesota (State of Minnesota v. Wicklund et al., 7 April 1998 (Court of Appeals)); North Carolina (State of North Carolina v. Felmet, 273 S.E. 2d 708 (1981)); Ohio (Eastwood Mall v. Slanco, 626 N.E. 2d 59 (1994)); Pennsylvania (Western Pa Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co., 515 A. 2d 1331 (1986)); South Carolina (Charleston Joint Venture v. McPherson, 417 S.E. 2d 544 (1992)); Washington (Southcenter Joint Venture v. National Democratic Policy Comm., cited above; and Wisconsin (Jacobs v. Major, 407 N.W. 2d 832 (1987)).
31. Prior to the entry into force of the Canadian Charter of Rights and Freedoms, the Canadian Supreme Court had taken the view that the owner of a shopping centre could exclude protesters (Harrison v. Carswell, 62 D.L.R. (Dominion Law Reports) 3d 68 (1975)). After the Charter entered into force, a lower court held that the right to free speech applied in privately owned shopping centres (R. v. Layton, 38 C.C.C. (Canadian Criminal Cases) 3d 550 (1986) (Provincial Court, Judicial District of York, Ontario)). However, an individual judge of the Canadian Supreme Court has since expressed the opposite view, stating obiter that the Charter does not confer a right to use private property as a forum of expression (McLachlin J, Committee for Cth of Can. v. Canada [1991] 1 SCR (Canada Supreme Court Reports) 139, 228).
NON_VIOLATED_ARTICLES: 10
11
13


ITEMID: 001-92102
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF HUB v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1964 and lives in Berlin.
5. The applicant is the father of a son (S.), born on 30 July 1990. In 1997 the applicant and the child’s mother (K.) separated. S. remained with his mother. In 1998 the applicant and S.’s mother were divorced.
6. On 21 January 1998 the Pankow District Court awarded K. sole custody of S. and decided that the applicant would be entitled to personal contact with his son every other weekend. In September 1998, however, the applicant ceased to have contact with his son.
7. On 7 October 1998 the applicant requested the Pankow District Court to impose a coercive fine on the mother to enforce his access rights. The District Court registered his request under file number 11 F 4813/98.
8. Between 9 November 1998 and 10 March 1999 the parties and the Youth Office submitted observations.
9. On 17 May 1999 the applicant withdrew his request and stated that he now wished the court to mediate between the parents with a view to reaching an agreement on the applicant’s contact rights according to section 52a of the Non-Contentious Proceedings Act (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit – see “Relevant Domestic Law” below). The District Court pursued the applicant’s modified request under the same file number (11 F 4813/98).
10. On 13 August 1999 the District Court heard S., who declared that he wished to see his father only occasionally under the supervision of a third person.
11. At a hearing held on 23 August 1999 the parents agreed on supervised contact for the applicant.
12. On 18 October 1999 the District Court held a further hearing at which the parties declared that the court currently did not need to take any action.
13. On 22 February 2000 the applicant applied for the appointment of a guardian ad litem and a contact supervisor (Umgangsbegleitperson) arguing that the mediation proceedings had failed.
14. On 10 March 2000 the District Court appointed a guardian ad litem and set down the case for hearing on 5 April 2000. However, that hearing was postponed to 15 May 2000 as agreed with the parties.
15. On 5 June 2000 a further hearing was held, and on 14 June 2000 the District Court ordered supervised contact for a period between late June and mid-December.
16. On 6 September 2000 the guardian ad litem informed the court that no contact had taken place.
17. On 28 September 2000 the District Court asked the contact supervisor to comment on the failure to have contact established between the applicant and his son. In October and November 2000 the District Court reminded the contact supervisor of its request of 28 September 2000 and unsuccessfully attempted to contact the latter by phone.
18. On 26 November 2000 the applicant asked the court to continue the proceedings.
19. On 11 December 2000 the District Court sent a further reminder to the contact supervisor and requested the parties to comment on the question as to whether the mediation proceedings should be continued.
20. On 5 January 2001 the applicant asked the District Court to continue the mediation procedure.
21. On 20 March 2001 the District Court decided to continue the proceedings after the parties had agreed on a one-off supervised contact.
22. On 6 July 2001 the contact centre informed the District Court that the contact supervisor had been replaced with another person, and on 11 July 2001 the District Court appointed that person as contact supervisor.
23. On 14 August 2001 the District Court received the contact supervisor’s report, according to which S. refused to see his father.
24. On 22 September 2001 the applicant asked the District Court to declare that the mediation proceedings had failed and to commission an expert report.
25. On 22 November 2001 the District Court heard S. again, who firmly declared that his father no longer existed for him.
26. On 27 November 2001 the District Court commissioned a psychological expert report on the question of contact. That expert informed the court on 25 February 2002 that he could be biased. Accordingly, the mother’s representative challenged the expert for bias on 26 March. On 10 April 2002 the District Court ordered the expert to stop his examinations, and on 6 June 2002 the mother withdrew her challenge of bias. On 13 June 2002 the District Court ordered the expert to continue his examinations.
27. On 11 September 2002 the District Court requested the expert to consider further questions raised by the applicant.
28. On 19 November 2002 the expert informed the court that K. had refused to attend a meeting with the expert until mid-January 2003. Subsequently, the District Court asked K. to ensure that a meeting was held by the end of 2002. On 2 January 2003 the District Court asked all persons involved in the proceedings to support the expert in the preparation of his report. On 16 January 2003 the expert informed the District Court that for the time being K. was unwilling to meet the expert. On 23 January 2003 the District Court ordered K. to cooperate with the expert within two months and announced that further measures would be taken in the event of non-compliance.
29. On 2 April 2003 the expert informed the court that a meeting had been held with K. on 13 March 2003, that the applicant and his son had called each other and that the applicant considered withdrawing his application.
30. On 30 April 2003, at the applicant’s request of 11 April 2003, the District Court ordered the expert to swiftly continue his examination. On 30 June 2003 the expert gave his report in which he suggested a suspension of the applicant’s contact with S. for a period of two years.
31. On 21 October 2003 the District Court heard S., who insisted that he did not wish to see his father any longer.
32. At an oral hearing held on 22 October 2003 the applicant announced that he would withdraw his application. However, on 19 November 2003 the applicant insisted on a court decision.
33. On 10 December 2003 the District Court, relying on the expert’s report, suspended the applicant’s rights to access for two years.
34. On 30 December 2003 the applicant appealed to the Berlin Court of Appeal, and on 18 January 2004 he submitted his statement of grounds of appeal, which the court received on 2 February 2004.
35. On 13 May 2004 the Berlin Court of Appeal upheld the decision of the District Court, arguing that S. had suffered from the persistent conflict between his parents about the applicant’s contact rights and from the respective proceedings, which had been pending now for more than five years and which had led to lasting psychological damage to the child. In order to protect himself, the boy refused to expose himself to this conflict, by refusing to see his father.
36. On 30 June 2004 the applicant lodged a constitutional complaint with the Federal Constitutional Court, which the Federal Constitutional Court refused to admit on 14 July 2004.
37. On 19 July 2004 the decision was served on the applicant.
38. Proceedings in family matters are governed by the NonContentious Proceedings Act (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). Pursuant to section 52a of that Act the family court shall mediate between the parents at the request of one parent if one parent claims that the other parent is obstructing the implementation of a court decision on contact with a child they have in common.
VIOLATED_ARTICLES: 6


ITEMID: 001-90095
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KOLOVANGINA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 6-1
JUDGES: Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1953 and lives in the city of Khabarovsk.
5. On 21 June 2000 the applicant issued her husband, Mr Kolovangin with a power of attorney (registered by a notary public under no. 2226) which provided as follows:
“I, Ms Irina Petrovna Kolovangina, ... hereby authorise Mr Vladimir Aleksandrovich Kolovangin,... to act on my behalf... in civil and criminal proceedings before all judicial bodies, with all the rights which the law confers on a plaintiff, defendant, third party or victim, including the rights to enter into a friendly settlement, to accept or to withdraw the claim in full or in part, to change the grounds of the claim, to lodge appeal against a judgment, to receive a writ of execution with the right to receive property and money, to sign documents on my behalf and to perform any other actions related to the fulfilment of this authority.”
6. On an unspecified date the applicant left Kaluga, where both she and Mr Kolovangin had lived, and moved to Khabarovsk.
7. On 24 May 2001 Mr Kolovangin lodged an action on the applicant’s behalf against a private company. He claimed that the company had overcharged the applicant’s telephone communications and sought compensation of pecuniary and non-pecuniary damage. He enclosed the power of attorney mentioned above.
8. On 28 May 2001 the Kaluzhskiy District Court disallowed the action with reference to Article 129 § 9 of the 1964 Code and stating as follows:
“Ms Kolovangina’s statement of claim is signed by her proxy, Mr Kolovangin. However, the right to lodge an action with a court (the right to sign the statement of claim) is not listed in the submitted copy of the power of attorney; this suggests that Mr Kolovangin does not have the right to lodge a claim on behalf of Ms Kolovangina.”
9. On 25 June 2001 the Kaluga Regional Court upheld that decision. It found that the applicant had not authorised Mr Kolovangin to sign a statement of claim and to lodge it on her behalf.
10. On 6 February 2002 Mr Kolovangin lodged on behalf of the applicant an action seeking to void a contract for the sale of shares between her and a private company. He enclosed a copy of the power of attorney no. 2226.
11. On 11 February 2002 the District Court refused to entertain the action. It reasoned as follows:
“On 6 February 2002 the Kaluzhskiy District Court received the statement of claim on behalf of Ms Kolovangina... The statement was lodged with the court and signed by Mr Kolovangin on behalf of the plaintiff. However, the power of attorney no. 2226 of 21 June 2000 produced to the court does not entitle Mr Kolovangin to lodge an action on behalf of Ms Kolovangina.
Thus, the judge disallows the action under Article 129 § 9 of the RSFSR Code of Civil Procedure, as the statement of claim on behalf of the person concerned was lodged by a person who did not have the right [to do so].”
12. On 21 March 2002 the Regional Court upheld that decision and found as follows:
“Under Article 129 § 9 of the RSFSR Code of Civil Procedure a judge disallows an action if the action was lodged on behalf of the person concerned by a person who did not have the right to pursue the case.
As the power of attorney issued by Ms Kolovangina to Mr Kolovangin did not list the right of the representative to lodge statements of claim on behalf of the represented person, the judge lawfully disallowed the action.”
13. The 1964 Code of Civil Procedure (“the 1964 Code”, as in force at the material time) provided:
“Citizens may pursue their cases in court in person or through representatives...”
“The powers of the representative should be set down in the power of attorney issued and formalised in accordance with the law...”
“The authority to pursue a case in court entitles the representative to perform on behalf of the client all procedural acts, with the exception of seeking the transfer of the case to a comrades’ or an arbitration court; withdrawing claims in full or in part; admitting a claim; varying the grounds of a claim; entering into a friendly settlement; transferring the power of attorney; lodging an appeal against a judgment; submitting the enforcement writ for execution; obtaining the awarded property or money. The representative’s authority to perform any of the acts listed in this Article should be explicitly stated in the power of attorney issued by the client.”
“The judge decides... whether to accept for examination the statement of claim in a civil case.
The judge refuses to accept a statement of claim for examination...
9) if it was submitted on behalf of the interested party by a person not empowered to pursue the case...
The judge’s refusal to accept the statement of claim for examination on the grounds provided by paragraphs... and 9...does not prevent [the party] from reapplying to the court on the same ground, provided that the indicated shortcoming is rectified...”
14. The 2002 Code of Civil Procedure (“the 2002 Code”) which replaced the 1964 Code from 1 February 2003 provides:
“The representative has the authority to perform on behalf of his client all procedural actions. However, the representative’s authority to sign the statement of claim; to lodge it with a court; to seek transfer of the dispute to a court of arbitration; to lodge a counter-claim; to withdraw the claims in full or in part... to enter in a friendly settlement... should be specifically listed in the power of attorney issued by the client.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1