ITEMID: 001-58226
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF PÉLISSIER AND SASSI v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1+6-3-a;Violation of Art. 6-1+6-3-b;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 7. Mr Pélissier was born in 1944 and lives at Sanary-sur-Mer; Mr Sassi was born in 1935 and lives at Cannes. Both are French nationals.
8. On 16 October 1975 Mr Fernand Cortez and Mr Claude Cortez formed a private limited company (société à responsabilité limitée – Sàrl), Bleu Marine, whose object was the sale of pleasure craft. Fernand Cortez was appointed manager. In 1976 Bleu Marine started to trade with a public company, Chantiers Beneteau S.A., whose object was boat-building. On 8 October 1981, Bleu Marine became Chantiers Beneteau’s exclusive distributor for the Var département coast.
9. On 31 March 1980 both applicants became shareholders in Bleu Marine, each holding 250 of a total of 1,000 shares (the remaining 500 belonged to the promoters, Fernand and Claude Cortez).
10. On 29 September 1982 Fernand Cortez, the applicants and Mr Dominique Stizi formed a private limited company, Station Service du Bateau Sàrl, which was run by Fernand Cortez and Dominique Stizi. Its objects were the development of port infrastructures, harbour building and the sale and outfitting of boats. The share capital was held by Fernand Cortez (48 shares), the applicants (24 shares), and Dominique Stizi (104 shares). On 29 February 1984 the Toulon Commercial Court declared the company insolvent and ordered its judicial reorganisation.
11. By agreements made with Station Service du Bateau and another company, Cortez et Cie, Bleu Marine was granted a licence allowing it to launch its boats on the sea front.
12. In 1983 relations between Bleu Marine and Chantiers Beneteau started to deteriorate, the former owing the latter nearly three million French francs (FRF). Chantiers Beneteau then terminated the distribution agreement with Bleu Marine.
13. On 30 May 1983 Bleu Marine filed for insolvency. On 1 June 1983 the Toulon Commercial Court held that the company was insolvent and ordered its judicial reorganisation.
14. On 4 July 1984 the Toulon Commercial Court, finding that Bleu Marine had debts of almost FRF 10 million, ordered its liquidation under the supervision of the court.
15. On 20 June 1983 Chantiers Beneteau lodged a complaint with the senior Toulon investigating judge against a person or persons unknown for forgery of commercial documents and fraud by the falsification of a balance sheet and its use with a view to obtaining a rescheduling of debt which would never be honoured. On 16 December 1983 the investigating judge sent instructions to the Marseilles Regional Police Department.
16. On 27 June 1984 Fernand Cortez, the manager of Bleu Marine, was charged by the Toulon investigating judge assigned to the case. On 8 October an additional charge of negligent and fraudulent bankruptcy was brought against him. On 22 January 1985 the investigating judge’s instructions of 16 December 1983 were carried out. The results revealed in particular the existence of a property holding company (société civile immobilière), SCI Le Ponant, which had been set up by Fernand Cortez, Mr Pélissier and Mr Sassi’s wife, in order to acquire land for letting to Bleu Marine.
17. On 15 October 1984 Mr and Mrs Grouzet lodged a complaint against Fernand Cortez and any other person having managerial responsibility for Bleu Marine, alleging misappropriation and, subsequently, fraud, in connection with the purchase and payment for a boat that was never delivered. On 4 October 1985 a Mr Louis Dreyer lodged a complaint against Fernand Cortez for misappropriation and applied to be joined to the proceedings as a civil party claiming damages.
18. On 14 September 1984, after appearing before the investigating judge on 20 and 21 August and 13 September 1984, the first applicant was charged with the offences set out in the complaint of 20 June 1983 and with negligent and fraudulent bankruptcy and misappropriation.
19. On 12 June 1985 the second applicant was charged with the same offences.
20. After Law no. 85-98 of 25 January 1985, which reformed insolvency law, came into force, the public prosecutor, considering there to be “strong evidence of criminal bankruptcy”, lodged an additional application to have Fernand Cortez, Dominique Stizi and the applicants charged with that offence under the new law. In so doing, he relied on the provisions relating to criminal bankruptcy and aiding and abetting criminal bankruptcy.
21. In a letter of 14 November 1985 to the investigating judge, the lawyer acting for Chantiers Beneteau argued that a charge of aiding and abetting criminal bankruptcy might lie against the applicants. On 17 July 1986 Chantiers Beneteau applied to be joined to the criminal bankruptcy proceedings as a civil party claiming damages.
22. On 1 December 1986 the investigating judge preferred an additional charge of “criminal bankruptcy” against Fernand Cortez under sections 196 and 197 of the Law of 25 January 1985 and Articles 402 and 403 of the Criminal Code. On 4, 16 and 19 December 1986 he preferred identical additional charges of “criminal bankruptcy” against the first applicant, the second applicant and Dominique Stizi respectively.
23. On 15 June 1987 the investigating judge appointed two accounting experts to audit the accounts.
24. On 30 June 1988 they submitted their report to the investigating judge.
25. On 10 January 1989 the investigating judge made an order transmitting the file to the public prosecutor for submissions (ordonnance de soit-communiqué).
26. On 27 June 1990 the investigating judge made a discharge order on the charges of forgery and using forged commercial documents, negligent and fraudulent bankruptcy and fraud; ultimately, the only charge on which the applicants were committed to stand trial at the Criminal Court was that of criminal bankruptcy under the Law of 25 January 1985. A discharge order was also made in the case of Fernand Cortez on the same charges and on the complaint lodged by Mr and Mrs Grouzet. He was committed to stand trial at the Criminal Court alone (on certain charges for which he was the sole defendant), with Dominique Stizi (on charges relating to the management of Station Service du Bateau), and with the applicants. In his order, the investigating judge cited Articles 402, 406 and 408 of the Criminal Code and sections 196 and 197 of the Law of 25 January 1985.
27. On 12 March 1991 the Toulon Criminal Court sentenced Fernand Cortez to one year’s imprisonment and a fine of FRF 20,000 for fraudulent bankruptcy, concealment of assets and misappropriation. It acquitted Dominique Stizi of the charges against him. Of the civil parties, Chantiers Beneteau’s application to be joined to the criminal bankruptcy proceedings was declared inadmissible and the court noted that Mr and Mrs Grouzet had withdrawn their application to be joined as civil parties; the only person to be awarded compensation was Louis Dreyer (in respect of the misappropriation by Fernand Cortez).
28. In the same judgment, the Toulon Criminal Court held with regard to the bankruptcy charges against the applicants:
“It should firstly be noted that under the Law only de jure or de facto managers, not, as suggested by the prosecution, members, can commit the offence.
Without it being necessary to consider whether the indictment is bad for failure to allege that the members [the applicants] were de facto managers, that being an essential element of the offence, it need only be observed that [the applicants] have not performed any acts of management, the de jure manager cannot be regarded as having been a ‘replaceable’, compliant manager and it does not appear that he gave the other two the right to sign on his behalf.
...
Thus, as they cannot properly be described as de jure managers, the defendants Sassi and Pélissier must be acquitted of these offences.”
29. On 14 March 1991 Chantiers Beneteau appealed against that judgment. The public prosecutor and Fernand Cortez did likewise on 22 March 1991. On 2 April 1992 Chantiers Beneteau lodged additional submissions with the registry of the Court of Appeal in which they proposed, in the alternative, recharacterising the acts the applicants were alleged to have committed as “aiding and abetting” criminal bankruptcy.
30. On 26 November 1992, after hearings on 16 April and 25 June 1992, the Aix-en-Provence Court of Appeal held that although the applicants could not be regarded as having been de facto managers of the company, they had nonetheless been informed of the serious difficulties it was in and had “wilfully performed positive, material acts that had facilitated, aided or abetted Cortez in the concealment of assets to the detriment of Bleu Marine”. It appears from the judgment that the applicants were regarded as appearing before the Court of Appeal as “defendants on criminal bankruptcy charges”.
31. The Court of Appeal consequently held that the applicants were guilty, not of the offences charged, but of the separate offence of aiding and abetting criminal bankruptcy through the concealment of assets. As regards the first applicant in particular, the Court of Appeal found, inter alia, that he had furnished a false certificate in order to justify the payment of a sum of money in a suspect operation. It referred in its judgment to Chantiers Beneteau’s main submissions requesting the applicants’ conviction for criminal bankruptcy, but made no mention of the additional submissions lodged on 2 April 1992 concerning the accusation that they had aided and abetted criminal bankruptcy. There is a dispute as to whether that request was brought to the attention of the applicants; however, it is common ground that it was mentioned, as an ancillary point, by the civil party at the hearing.
32. The Aix-en-Provence Court of Appeal sentenced each of the applicants to a suspended term of eighteen months’ imprisonment and to a fine of FRF 30,000. While upholding the conviction of Fernand Cortez and the partial discharge order made in his favour by the Toulon Criminal Court, it nonetheless increased the term of imprisonment to eighteen months, while suspending it, and the fine to FRF 30,000. Lastly, the Court of Appeal upheld Dominique Stizi’s acquittal, the award of damages to Louis Dreyer and the declaration that Chantiers Beneteau’s application to be joined as a civil party was inadmissible.
33. On 26 and 27 November 1992 the applicants appealed against that decision to the Court of Cassation on points of law. In their pleadings they denied the offence and contended on the basis of Article 6 of the Convention that the Court of Appeal’s decision to convict them of an offence different from that charged had not been the subject of adversarial argument and had infringed the rights of the defence. In addition, the first applicant submitted that when referring to alleged irregularities on his account the Court of Appeal had relied on allegations that had never been put to him and were incapable of showing that he had aided and abetted criminal bankruptcy.
34. In a judgment of 14 February 1994 the Court of Cassation dismissed the applicants’ appeal on the grounds that:
“... the reasons given in the impugned judgment enable the Court of Cassation to satisfy itself that the court below sufficiently made out, within the limits of its jurisdiction, all the constitutive elements of the actus reus and mens rea
35. The relevant provisions of the Code of Criminal Procedure provide:
“The Criminal Court shall be seised of offences within its jurisdiction on the voluntary appearance of the parties, a summons accompanied by a statement of the charges, an immediate summary trial or, lastly, a committal by the investigating judge or judges.”
“The case is transferred to the Court of Appeal to the extent determined in the notice of appeal ...”
36. The relevant provisions of the Criminal Code in force at the material time were as follows:
“Accessories to a serious crime (crime) or other major offence (délit) shall be liable to the same penalties as the principals, except where statute provides otherwise.”
“A person who, by gifts, promises, threats, abuse of authority or power, scheming or contrivance, has incited the commission of a serious crime (crime) or other major offence (délit) or given instructions for its commission;
has procured weapons, implements or any other means of assisting in the commission of an offence knowing that such weapons, implements or other means were intended for that purpose; or
has knowingly aided or abetted the principal or principals in acts preparatory to the commission of the offence or facilitating its commission or in carrying out the offence, shall be guilty of an offence as accessories, without prejudice to the penalties specially imposed by this Code on persons conspiring to commit or inciting breaches of State security, even if the crime intended by those conspiring or inciting is not committed.”
“Persons found guilty of criminal bankruptcy shall be liable on conviction to between three months’ and five years’ imprisonment and a fine of between FRF 10,000 and FRF 200,000 or to either of those penalties.
In addition, an order may be made barring them from exercising the rights referred to in Article 42.”
“Accessories to criminal bankruptcy shall be liable to the same penalties as those laid down in the preceding Article, even if they are not merchants, craftsmen or farmers and do not directly or indirectly, de facto or de jure, manage a private-law legal entity having an economic activity.”
37. The relevant provisions of this law read as follows:
“The provisions of this Chapter are applicable to:
(1) all traders and craftsmen;
(2) anyone who has directly or indirectly, whether de jure or de facto, managed or liquidated a private-law entity having an economic activity; and
(3) individuals who are permanent representatives of entities managing entities as defined in subsection 2 above.”
“Where judicial reorganisation proceedings are commenced, the persons referred to in section 196 shall be guilty of criminal bankruptcy if they are found to have done any of the following:
(1) with the intention of avoiding or delaying the commencement of judicial reorganisation proceedings, made purchases with a view to resale at less than market value or used ruinous means to procure funding;
(2) misappropriated or concealed all or part of the debtor’s assets;
(3) fraudulently increased the debtor’s liabilities; or
(4) held fictitious accounts or caused accounting documents of the undertaking or entity to disappear or failed to keep any accounts.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-a
6-3-b


ITEMID: 001-88997
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TALIADOROU AND STYLIANOU v. CYPRUS
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 6-2;Violation of Art. 8
JUDGES: Christos Rozakis;Dean Spielmann;Effie Papadopoulou;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens
TEXT: 6. The applicants were born in 1940 and 1946 respectively and live in Limassol, Cyprus.
7. The applicants were, at the material time, senior officers in the Cypriot Police Force in which they served until retirement. They both served continuously with an interruption of one year and nine months under the conditions set out below.
8. On an unspecified date in 1992, criminal proceedings were initiated against them in relation to their alleged involvement in the ill-treatment and torture of suspects. The prosecuting authorities failed to prove a prima facie case against them and they were acquitted on 23 July 1993. The court considered that the testimony of the principal prosecution witnesses - the victim and one of his relatives who had been arrested with him- “had been so obviously unreliable that no reasonable court could rely on it and convict the accused”. It also considered that the prosecution had committed a series of improprieties which had tainted the evidence to such an extent that the case against the applicants should be discontinued in the interests of the proper administration of justice.
9. Subsequently, on 3 September 1993, the Ministerial Council appointed an Independent Investigating Commission (IIC) to examine this matter further. The Commission's findings were delivered on 3 November 1995. It found that the applicants, together with nine other police officers, had engaged in torture practices against certain suspects in order to obtain confessions. On the basis of the Commission's findings, on 7 March 1996, the Ministerial Council terminated the applicants' employment with the Police Force for the protection of public interest. One other police officer was also dismissed by virtue of the same decision, while five junior officers who were also found to have been involved in acts of torture and ill-treatment of prisoners were not dismissed. The applicants' dismissal was widely reported in the national press.
10. The applicants challenged the legality of the said decision before the Supreme Court, exercising its administrative judicial review jurisdiction.
11. The Supreme Court delivered its judgment in a plenary session on 26 November 1997. It unanimously annulled the decision of the Ministerial Council which was found to have violated the constitutional rights of the applicants. In particular, it found that their right not to be tried twice for the same offence had been breached and that their right to be presumed innocent, especially in the light of their acquittal, had been prejudiced. It further found that the applicants had effectively been dismissed without trial or disciplinary proceedings and, as such, they had been deprived of any opportunity to defend themselves. Moreover, the decision of the Ministerial Council was found to be ultra vires.
12. On 28 November 1997, the applicants requested reinstatement to their former posts. On 5 December 1997 they returned to duty.
13. Subsequently, the applicants brought an action under Article 146.6 of the Constitution before the District Court of Nicosia requesting fair and equitable compensation.
14. Judgment was delivered on 30 April 2000 by the District Court, which refused the applicants' request for exemplary damages. Concerning their request for payment of the difference in their monthly salaries, corresponding to the period in which their service had been interrupted, the court observed that the applicants had received a higher amount upon their dismissal than the requested difference in salaries. This amount had been held by the first applicant throughout the period following his return to duty and until his retirement and it was still held by the second applicant. As regards the first applicant, the amount he had received upon his dismissal had been deducted from the amount to which he was entitled by virtue of his retirement and the difference had been paid to him. The request was accordingly refused.
15. However, 7,500 Cypriot pounds (CYP), plus 8 per cent interest as from the date that the action was lodged, was awarded in compensation for moral damage. The court pointed out that, as observed by the Supreme Court in the case of Frangoulides v. The Republic (1982) 1 C.L.R. 462, an award of damages under Article 146.6 of the Constitution was not subject to the common-law rule for quantifying damages aimed at restitutio in integrum, but was governed by the principles of equity. It considered that the applicants had suffered injury to their psychological and moral integrity which was directly caused by the annulled decision. In particular, the following was noted:
“Within this framework of criteria (established in the domestic case-law), I do not see any good reason why the court should rule, in a case similar to the present one, where, by the exclusive behaviour of the administration (Ministerial Council) the plaintiffs have been expelled from their positions with characterisations that have definitely affected them psychologically as they themselves have maintained, that they should not be entitled to certain compensation for that injury to their psychological integrity. I consider such injury as damage emanating directly from the annulled administrative decision”.
16. Moreover, it was acknowledged that the decision had serious defamatory effects for them. As such, the relevant award was seen as required by equity to redress the unlawful act of the administration.
17. The applicants lodged an appeal with the Supreme Court and contended that the award of damages was manifestly insufficient. The Attorney-General lodged a cross-appeal requesting the annulment of the first-instance District Court judgment.
“Such moral damage did not constitute a direct consequence of the annulled administrative act and that, therefore, such an award was not covered by the provisions of Article 146 (6) of the Constitution”.
19. Article 146 of the Constitution of the Republic of Cyprus provides as follows:
“1. The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.
2. Such a recourse may be made by a person whose any existing legitimate interest, which he has either as a person or by virtue of being a member of a Community, is adversely and directly affected by such decision or act or omission.
3. Such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse.
4. Upon such a recourse the Court may, by its decision-
(a) confirm, either in whole or in part, such decision or act or omission; or
(b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever, or
(c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed.
5. Any decision given under paragraph 4 of this Article shall be binding on all courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned.
6. Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared there under that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant.”
20. In Frangoulides v. The Republic (1982) 1 C.L.R. 462 at p. 470, Mr Justice Pikis, as he then was, observed the following:
“The cause of action conferred by Article 146.6 of the Constitution, is a cause sui generis, in the sense that it bears no relationship to a common law action for damages, or, in fact, to any other cause of action known to the law (Costas Tsakkistos v. The Attorney-General (1969) 1 C.L.R. 355). It is a right to be evaluated in the context of Article 146 and the system of review of administrative action created thereby. It is ancillary to judicial review, as a measure necessary for its effectiveness. Primarily it entitles the injured party to recover damage not remediable by proper administrative action. If the proper administrative action is not taken, the remedy is to go to the administrative court again. If notwithstanding this step the injured party is left to shoulder damages, then he has a right to recover them from the Republic. The right to damages under Article 146 is distinctly independent from any other cause of action, as the Supreme Court held in Attorney-General v. Andreas Marcoulides and another (1966) 1 C.L.R. 242. Not only its juridical basis but also the manner of quantifying damages is different from a common law action. The Supreme Court emphasised the equitable character of the relief as well as the damages recoverable, stressing that they are not strictly compensatory. Consequently, it is legitimate for the Court to have regard, not only to the extent of the material damage suffered, but also to the conduct of the parties and the degree to which the successful party contributed to the production of the wrongful administrative act. In the case of Marcoulides, supra, the Supreme Court derived guidance, inter alia, from French case law, establishing that the conduct of the parties and their blameworthiness, if any, is of crucial importance to the determination of the quantum of the damages.”
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-23292
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: DZIZIN v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Victor Aleksandrovich Dzizin, is a Ukrainian national, who was born in 1926 and resides in the city of Kharkov, Ukraine.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 March 1956, as a result of injuries sustained in an industrial accident, the applicant was unable to work. Thereafter, he was paid a disability pension by his former employer, the Serp i Molot company. According to the applicant, 92% of the shares in the company belong to the State.
In August 1998 the payments ceased and on 14 June 2001 the applicant lodged a claim with the Moskovsky District Court of Kharkov against the company.
On 5 July 2001 the District Court found in favour of the applicant (Рiшення Московського Районного Суду м. Харкова). The decision became effective on 5 August 2001 and was sent for execution to the Moskovsky District Department of the State Bailiffs’ Service (Вiддiл Державної Виконавчої Служби Московського Районного Управлiння Юстицiї м Харкова).
On 11 September 2001, the State Bailiffs’ Service initiated execution proceedings in the applicant’s case. The first payment (328.46 UAH) to the applicant was made on 22 October 2001.
In the absence of further execution, the applicant contacted the bailiff responsible for the execution of the judgment on several occasions and, on 26 February 2002, lodged a complaint with the Head of the Moskovsky District Department of the State Bailiffs’ Service against that bailiff.
On 23 March 2002 the Head of the Moskovsky District Department of the State Bailiffs’ Service replied to the applicant, stating, inter alia, that the judgment could not be executed due to the adoption of the Law of Ukraine “on the Introduction of a Moratorium on the Forced Sale of Property” (Закон України “Про введення мораторiю на примусову реалiзацiю майна”), which had entered into force on 29 November 2001.
On 22 April 2002, a second payment (314.19 UAH) was made to the applicant.
On 11 October 2002, the final payment (5132.99 UAH) was made to the applicant and the court judgment of 5 July 2001 was thereby fully enforced.
1. Civil Code of Ukraine
Under Article 214 of the Civil Code, in case of delay in the fulfilment of its financial obligations, the debtor must, upon a claim of the creditor, pay the amount of the debt, plus any interest payable at an established inflation rate during the default period.
2. Law of Ukraine of 29 November 2001 “on the Introduction of a Moratorium on the Forced Sale of Property”
The Law aims at protecting State interests on the sale of assets belonging to undertakings in which the State holds at least 25% of the share capital.
The moratorium has been introduced until such time as the mechanism for the forced sale of the property of such undertakings has been improved. No time-limit has been set.
Section 2 of the Law provides that the forced sale of property includes the execution of writs by the State Bailiffs’ Service over property belonging to undertakings.
The Law applies to immovable property and other fixed assets, which are used in production, as well as shares, owned by the State in the property of other companies and invested to the statutory capital of those enterprises.
The Law therefore stays the execution of all writs by the State Bailiffs’ Service over the above-mentioned assets or undertakings in which the State holds at least 25% of the share capital.
3. Law of Ukraine of 21 April 1999 “on Enforcement Proceedings”
Under Article 2 of the Law, the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under Article 85 of the Law the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department of that Service or with a local court. Article 86 of the Law entitles the creditor to institute court proceedings against the State Bailiffs’ Service for inadequate enforcement or non-enforcement of a judgment, and to receive compensation.
4. Law of Ukraine of 24 March 1998 “on the State Bailiffs’ Service”
Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, and compensation for damages caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts.


ITEMID: 001-77565
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF TOMASIC v. CROATIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (victim);Violation of Art. 6-1;No separate issue under Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1950 and lives in Bjelovar.
5. On 26 February 1992 the applicant's summer house in Velika Pisanica was blown up by unknown perpetrators.
6. On 24 February 1995 the applicant together with his wife brought a civil action against the State in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages. They relied on section 180 of the Civil Obligations Act.
7. On 3 February 1996 the Amendment to the Civil Obligations Act (“the 1996 Amendment”) entered into force. It provided that all proceedings concerning actions for damages resulting from terrorist acts or acts of violence were to be stayed pending the enactment of new legislation on the subject.
8. On 23 February 1996 the Municipal Court stayed the proceedings pursuant to the 1996 Amendment.
9. On 31 July 2003 the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (“the 2003 Liability Act”) entered into force.
10. Pursuant to the 2003 Liability Act, on 17 February 2004 the Municipal Court resumed the proceedings. On 26 April 2004 it declared the applicant's action inadmissible finding that it no longer had jurisdiction in the matter.
11. The applicant appealed to the Zagreb County Court (Županijski sud u Zagrebu). It appears that the proceedings are currently pending before that court.
12. Meanwhile, on 24 April 2002 the applicant, represented by an attorney, lodged a constitutional complaint about the length of proceedings under section 63 of the Constitutional Court Act. On 7 July 2004 the Constitutional Court accepted the applicant's complaint. Relying on the Court's case law (Kutić v. Croatia, no. 48778/99, ECHR 2002II), it found violations of the applicant's constitutional rights to a hearing within a reasonable time and of access to a court. It ordered the Zagreb Municipal Court to give a decision in the applicant's case within a year and awarded him compensation in the amount of 4,400 Croatian kunas (HRK).
13. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/99) provided as follows:
“Liability for loss caused by death or bodily injury or by damage or destruction of another's property, when it results from acts of violence or terrorist acts or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.”
14. The relevant part of the Act Amending the Civil Obligations Act (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996 – “the 1996 Amendment”) reads as follows:
“Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.”
“Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed.
The proceedings referred to in sub-section 1 of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts.”
15. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03) provides:
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
16. The relevant part of the Reconstruction Act (Zakon o obnovi, Official Gazette nos. 24/96, 54/96, 87/96 and 57/00) provides, inter alia, that the State shall grant, under certain conditions, reconstruction assistance to owners of property (flats and family houses only) which has been damaged during the war. The request is to be submitted to the competent ministry.
17. The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003 – “the 2003 Liability Act”) provides, inter alia, that the State is to compensate only damage resulting from bodily injuries, impairment of health or death. All compensation for damage to property is to be sought under the Reconstruction Act. Section 10 provides that all proceedings stayed pursuant to the 1996 Amendment are to be resumed.
18. Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows:
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
19. The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant's rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
Section 23 provides that, in proceedings before the Constitutional Court, each participant shall pay its own costs unless the court decides otherwise. The term “costs of proceedings” does not include the court fees since no such fees are payable in the proceedings before the Constitutional Court. Under the case-law of the Constitutional Court the issue of the recovery of the costs of proceedings is to be decided by that court if a participant makes a request to that end. For example, in case no. U-III-1384/2000 of 30 November 2000 the Constitutional Court denied the complainant's request for recovery of costs since the constitutional complaint had been dismissed.
20. The 1993 Tariff for Attorneys' Fees (Tarifa o nagradama i naknadi troškova za rad odvjetnika, Official Gazette nos. 69/93, 87/93, 16/94, 11/96), as in force at the material time (i.e. when the applicant lodged his constitutional complaint), provided that the fee for drafting a constitutional complaint amounted to HRK 400.
21. According to the 2004 Tariff for Attorneys' Fees (Tarifa o nagradama i naknadi troškova za rad odvjetnika, Official Gazette nos. 91/04, 37/05), the fee for drafting a constitutional complaint amounts to HRK 5,000.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107247
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: NASSAU VERZEKERING MAATSCHAPPIJ N.V. v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant company, Nassau Verzekering Maatschappij N.V., are a limited company (naamloze vennootschap) incorporated under Netherlands law with its offices in Rotterdam. Their business is insurance. The applicant company were represented before the Court by Ms R.L. Bakels, a lawyer practising in The Hague.
2. The facts of the case, as submitted by the applicant company, may be summarised as follows.
3. The limited partnership (commanditaire vennootschap) H. was a firm of insurance brokers. The applicant company insured H. against professional liability.
4. One of the clients served by H. was the limited liability company (besloten vennootschap) R. Among the insurance contracts negotiated for R. by H. was a fire insurance policy with a different insurance company (not the applicant) covering a warehouse belonging to R.
5. A dispute arose between H. and R. after the warehouse was damaged by fire. It emerged that the warehouse was underinsured, allegedly as a result of H.’s negligence.
6. R. sued H. for the difference between the insurance payout and the actual damage before the Regional Court (rechtbank) of Zutphen. On 21 June 2006 that court ordered H. to pay to R. a total sum of 725,000 euros in damages, plus interest and costs.
7. The time-limit for lodging an appeal with the Court of Appeal (gerechtshof) expired on 21 September 2006.
8. The appeal summons (dagvaarding) was served on R. on 27 September 2006, that is six days late. The applicant company state that this resulted from an oversight on the part of the bailiff (deurwaarder).
9. On 10 April 2007 the Court of Appeal of Arnhem gave judgment rejecting H.’s appeal as out of time.
10. H. lodged an appeal on points of law with the Supreme Court (Hoge Raad), which confirmed the Court of Appeal’s judgment on 24 April 2009.
11. The applicant company paid the sums awarded by the Regional Court to R.
12. On 22 October 2009 H. and the applicant company signed a deed of assignment (akte van cessie) containing the following clauses:
“8. The parties [i.e. H. and the applicant company] take the view that – since it has now been established in law that H.’s appeal is inadmissible – H.’s right of access to a tribunal, enshrined in Article 6 of the Convention, has been violated. H. thus has a claim against the Netherlands State based on violation of Article 6 of the Convention. This claim will be realised by bringing proceedings against the Netherlands State in the European Court of Human Rights on the ground of violation of Article 6 of the Convention.
9. H. is prepared to assign the above-mentioned claim against the Netherlands State to [the applicant company] for the purpose of the intended proceedings. [The applicant company] are prepared to accept this assignment.”


ITEMID: 001-23338
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: BOSO v. ITALY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Giampiero Boso, is an Italian national who was born in 1960 and lives in Eraclea. He was represented before the Court by Ms W. Viscardini, of the Padua Bar.
The applicant was married. In 1984 his wife, who was pregnant, decided to have an abortion despite his opposition. Her pregnancy was terminated on 10 October 1984.
On 8 November 1984 the applicant brought an action against his wife in the San Donà di Piave magistrate’s court, seeking compensation for the infringement of his rights as a potential father and of the unborn child’s right to life. The applicant further challenged the constitutionality of Law no. 194 of 1978, arguing that it contravened the principle of equality between spouses as enshrined in Articles 29 and 30 of the Italian Constitution in that it left it entirely to the mother to decide whether to have an abortion and took no account of the father’s wishes.
The applicant’s wife maintained that she had acted in accordance with section 5 of Law no. 194 of 1978, by which she alone had the right to decide whether to undergo an abortion.
In an order (no. 389) of 31 March 1988 the Constitutional Court declared the constitutionality issue manifestly ill-founded on the ground that the Law complained of was based on a policy decision to grant the mother full responsibility for an abortion, and that that decision was not illogical, especially as the effects of pregnancy, both physical and mental, were felt primarily by the mother.
Having regard to the Constitutional Court’s decision, the magistrate’s court dismissed the applicant’s action in a judgment of 18 May 1990.
The applicant appealed against that judgment to the Venice District Court. He raised a further constitutionality issue, submitting that section 5 of Law no. 194 of 1978 infringed Articles 2, 8 and 12 of the Convention and Articles 2, 10 and 11 of the Italian Constitution.
In a judgment of 24 June 1993 the Venice District Court dismissed the appeal on the ground that the right to compensation under Article 2043 of the Civil Code presupposed that the applicant’s wife’s conduct had been unlawful, whereas she had acted in accordance with Law no. 194 of 1978. The Court further held that the constitutionality issue raised by the applicant was essentially the same as that raised at first instance and accordingly declared it manifestly ill-founded.
The applicant appealed on points of law to the Court of Cassation, arguing, in particular, that section 5 of Law no. 194 of 1978 infringed Articles 2, 8 and 12 of the Convention, which protected the right to life and the right to found a family.
In a judgment of 19 June 1998, the text of which was deposited at the registry on 5 November 1998, the Court of Cassation dismissed the applicant’s appeal.
It had regard to the Constitutional Court’s decision of 31 March 1988 and further held that declaring the abortion legislation unconstitutional would not have had any bearing on the applicant’s claim for compensation. The claim was in any event bound to fail in the absence of any unlawful conduct on the part of the applicant’s wife, who had made use of a right to which she was entitled.
Law no. 194 of 1978 allows doctors to terminate a pregnancy in specified circumstances.
By section 4 of the Law, a woman may decide to have her pregnancy terminated before the twelfth week where continuation of the pregnancy, childbirth or motherhood might endanger her physical or mental health, in view of her state of health, her economic, social or family circumstances, the circumstances in which conception occurred or the likelihood of abnormalities or of malformations of the foetus.
The woman may apply to a health centre (struttura socio-sanitaria), a clinic (consultorio) established under Law no. 405 of 2 July 1975 or her doctor.
By sections 2 and 5 of the Law, clinics and health centres must carry out the necessary medical examinations. Where an abortion is requested because of the impact of economic, social or family circumstances on the pregnant woman’s health, they must also
(a) examine possible solutions to the problems, together with the woman and, with her consent, the potential father;
(b) help the woman to overcome the problems that have led her to request an abortion; and
(c) take any appropriate measures to help the woman by providing her with all the necessary assistance both during the pregnancy and after the birth.
Where the woman applies to her doctor, the doctor carries out the necessary medical examinations and, together with the woman and the potential father, discusses the reasons for her decision to request an abortion, having regard also to the results of the examinations. The doctor informs the woman of her rights, the welfare facilities available to her, and the clinics and health centres at her disposal.
In cases of emergency, a doctor from the clinic or health centre or the woman’s own doctor immediately issues her with a certificate attesting that termination of the pregnancy is urgently required. On the basis of the certificate, the woman may report to one of the establishments authorised to perform abortions.
If the results of the medical examination indicate that there is no emergency, the doctor draws up a certificate, which the woman must also sign, attesting that she is pregnant and that her request for an abortion has been made in accordance with section 4 of the Law. At the same time the doctor gives her seven days to think the matter over. Once that period has elapsed, the woman may request the termination of her pregnancy at an authorised establishment, on the basis of the medical certificate.
Beyond the first ninety days, an abortion may be carried out
(a) where pregnancy or childbirth entails a serious threat to the woman’s life; or
(b) where conditions entailing a serious threat to the woman’s physical or mental health have been diagnosed, including serious abnormalities or malformations of the foetus.
The abortion process is covered by the Personal Data Protection Act (Law no. 675/1996).
There is no provision in law allowing the potential father to prevent an abortion from taking place.


ITEMID: 001-105295
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF PONOMARYOVI v. BULGARIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 14+P1-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 9. The first applicant, Mr Anatoliy Ponomaryov, was born on 15 June 1986 in Kustanay, in the Kazakh Soviet Socialist Republic (now the Republic of Kazakhstan). His brother, the second applicant, Mr Vitaliy Ponomaryov, was also born there on 6 June 1988. In 1990 the two moved to Moscow, the Russian Federation, with their mother, Mrs A.P., a Russian national. In 1992 their mother divorced their father, Mr V.P., also a Russian national. The whereabouts of the latter remain unclear; it appears that he might have settled in another country, probably Germany. It also seems that the applicants have not kept any contact with their father since the divorce.
10. On 6 August 1993 the applicants’ mother married a Bulgarian national. In 1994 the family settled in Pazardzhik, Bulgaria. The applicants’ mother was then granted a permanent residence permit on the basis of her marriage to a Bulgarian national and the applicants were entitled to reside in Bulgaria on the basis of their mother’s permit.
11. In 1994 the applicants enrolled in a Bulgarian primary school, and later in secondary schools. Both of them apparently speak fluent Bulgarian.
12. Their mother has been out of work since 1998. Her husband owned a small Internet café business, which was apparently shut down by the authorities in 2005.
13. On 15 June 2004 Mr Anatoliy Ponomaryov turned 18, and accordingly had to obtain an independent permit in order to continue residing in Bulgaria lawfully. In September 2004 he contacted the immigration authorities and was informed that, to obtain a permanent residence permit, he first had to leave Bulgaria, obtain a special visa from a Bulgarian embassy abroad, return to the country and apply for a temporary residence permit; only then could he apply for a permanent residence permit.
14. On 28 September 2004 the consular department of the Ministry of Foreign Affairs informed Mr Anatoliy Ponomaryov that it would not insist on his leaving the country to obtain a special visa and that he could get one in Bulgaria. The applicant then applied for a permanent residence permit. However, as he was unable to raise the money needed to pay the requisite fees (amounting in total to slightly over 1,300 Bulgarian levs (BGN)), the immigration authorities returned his application on 22 February 2005 without considering it.
15. In October 2005 both applicants, asserting that they had no property or income, asked the Commission for the Remission of Uncollectible State Debts, established by the President of the Republic, to waive the fees in respect of both of them. On 31 May 2006 the Commission rejected their requests, stating that their debts did not appear to be uncollectible.
16. In the meantime, on 17 February and 8 March 2006, the immigration authorities informed the applicants that they had been granted permanent residence permits and invited them to collect them. On 11 May 2006 the applicants paid the requisite fees and obtained documents certifying that they had permanent residence permits. Mr Anatoliy Ponomaryov paid a total amount of BGN 1,375.26 and Mr Vitaliy Ponomaryov a total amount of BGN 1,415.26. They managed to raise the money by taking out a bank loan.
17. On 9 February 2005, when Mr Anatoliy Ponomaryov was in the final year of his secondary education, the head of the Regional Education Inspectorate of the Ministry of Education wrote to the head teacher of his school, inquiring whether the applicant had paid the school fees which he owed as an alien without a permanent residence permit and, if not, whether any measures had been taken to collect them. Two and a half months later, on 26 April 2005, the Education Inspectorate in Pazardzhik held a meeting with the head teacher. At that meeting, attended also by representatives of the immigration authorities, a discussion took place as to whether steps should be taken to enforce section 4(3) of the additional provisions of the 1991 National Education Act (see paragraph 32 below) in respect of the applicant.
18. On 28 April 2005 the head teacher ordered the applicant to pay 800 euros (EUR) in fees, failing which he would be barred from attending classes and would not be issued with a certificate for having completed the school year. She relied on a decision of the Minister of Education of 20 July 2004 laying down the fees payable by aliens schooled in Bulgarian educational establishments under the above-mentioned section 4(3).
19. The applicant sought judicial review of the head teacher’s order. On 5 July 2005 the Pazardzhik Regional Court partly quashed and partly upheld the order. It found that there was no indication that the applicant had a permanent residence permit. He could therefore pursue his studies only if he paid the requisite fees. However, the fact that he had not paid them did not mean that he should not be issued with a certificate for having completed the previous school year, given that the amount could still be recovered from him. That part of the order was therefore unlawful.
20. Both the applicant and the head teacher appealed. On 13 June 2006 the Supreme Administrative Court upheld the lower court’s judgment (реш. № 6381 от 13 юни 2006 г. по адм. д. № 10496/2005 г., ВАС, V о.). It fully agreed with its reasoning, and added that the fact that in the meantime the first applicant had been granted a permanent residence permit (see paragraph 16 above) meant solely that he could attend a Bulgarian school free of charge in the future. However, as at the relevant time he had not had permanent resident status, he had been obliged to pay the requisite fees. Concerning the issuance of a certificate for completion of the corresponding school year, the lower court’s ruling had been correct, as payment of the fees was a precondition for attending classes but failure to pay could not serve as grounds for refusing to award a certificate if the individual concerned had already completed the year.
21. Apparently, the applicant’s school did not in practice prevent him from attending classes, but the issuance of his secondary school diploma was delayed by about two years, which in turn delayed his enrolment in university.
22. Separately, Mr Anatoliy Ponomaryov sought review of the Minister’s fee-setting decision of 20 July 2004 (see paragraph 18 above). He argued, inter alia, that it was discriminatory to require aliens to pay fees to attend Bulgarian schools.
23. On 10 January 2006 a three-member panel of the Supreme Administrative Court dismissed the application (реш. № 349 от 10 януари 2006 г. по адм. д. № 5034/2005 г., ВАС, V о.). It found, inter alia, that privileges granted on the basis of nationality were commonplace in many countries. Moreover, Article 14 of the Convention did not expressly prohibit discrimination on such grounds. If envisaged by a statute or an international treaty, the differential treatment of individuals on the basis of their nationality did not amount to discrimination. Moreover, aliens having permanent residence permits did not have to pay school fees. However, the applicant had not shown that he had such a permit.
24. On an appeal by the applicant, a five-member panel of the Supreme Administrative Court upheld the lower court’s judgment on 13 June 2006 (реш. № 6391 от 13 юни 2006 г. по адм. д. № 2249/2006 г., ВАС, петчленен св), fully concurring with its reasoning.
25. On 31 October 2005, when Mr Vitaliy Ponomaryov was in the penultimate year of his secondary education, the head teacher of his school ordered him to pay EUR 1,300 in fees, failing which he would be barred from attending classes and would not be issued with a certificate for having completed the school year.
26. The applicant sought judicial review of this order, arguing, inter alia, that it infringed his rights under the Convention. On 4 April 2006 the Pazardzhik Regional Court dismissed his application. It found no indication that the applicant had a permanent residence permit or that a procedure for obtaining such a permit was under way. He could therefore pursue his studies only if he paid the requisite fees. This did not infringe his right to education, as aliens could attend Bulgarian schools provided they paid the requisite fees.
27. The applicant appealed. On 13 December 2006 the Supreme Administrative Court upheld the lower court’s judgment (реш. № 12503 от 13 декември 2006 г. по адм. д. № 6371/2006 г., ВАС, V о.). It noted that, since the applicant had in the meantime been granted a permanent residence permit (see paragraph 16 above), he could attend a Bulgarian school free of charge in the future. However, as at the relevant time he had not had permanent resident status, he had been obliged to pay the requisite fees.
28. On 20 March 2007 the head teacher of the applicant’s school invited him to pay EUR 1,300 in respect of his schooling during the 2004/05 school year and the same amount in respect of his schooling during the 2005/06 school year.
29. It seems that the applicant was in practice not barred from attending classes throughout the period 2004/06. He submitted that he had been prevented from doing so for certain periods of time, but the court examining a civil claim by his school against him (see paragraph 30 below) found, after reviewing the available evidence in this respect, that he had attended school without interruption during that period.
30. On 6 June 2007 the applicant’s school brought a claim against him, seeking payment of the fees due. In a judgment of 18 February 2008, the Pazardzhik District Court allowed the claim and ordered the applicant to pay his school EUR 2,600 plus interest. It found that the applicant owed this amount because at the relevant time he had not had a permanent residence permit entitling him to be schooled free of charge. Following an appeal by the applicant, on 7 May 2008 the Pazardzhik Regional Court quashed the lower court’s judgment and dismissed the claim. The school appealed on points of law. On 25 November 2008 the Supreme Court of Cassation accepted the appeal for examination, and in a judgment of 29 April 2010 (реш. № 1012 от 29 април 2010 г. по гр. д. № 3446/2008 г., ВКС, І г. о.), quashed the Pazardzhik Regional Court’s judgment and allowed the claim, ordering the applicant to pay the school the equivalent of EUR 2,600 plus interest (the total sum came to BGN 6,394.45), and BGN 350 for costs. It observed, inter alia, that the requirement for certain categories of aliens to pay school fees stemmed directly from the applicable law.
31. The relevant provisions of the 1991 Constitution read as follows:
“Aliens residing in the Republic of Bulgaria shall have all rights and obligations flowing from this Constitution except those rights and obligations in respect of which the Constitution and the laws require Bulgarian nationality.”
“1. Everyone shall have the right to education.
2. School education up to the age of 16 years shall be compulsory.
3. Primary and secondary education in State and municipal schools shall be free of charge. Education in higher educational establishments run by the State shall be free of charge under the conditions set out in the law. ...”
32. Under section 6 of the 1991 National Education Act (Закон за народната просвета), education in State and municipal schools is free of charge. Section 4(1) of the additional provisions of the Act allows all aliens to enrol in Bulgarian schools. Their education is also free of charge if they: (a) have a permanent residence permit (section 4(2), as originally enacted in 1991); (b) have been enrolled following a decision of the Council of Ministers or under intergovernmental agreements so providing (the same provision, as amended in 1998); or (c) are of compulsory school age (under 16), and their parents work in Bulgaria and are nationals either of a member State of the European Union or the European Economic Area, or of Switzerland (the same provision, as amended in May 2006; the amendment was intended to implement in Bulgarian law the provisions of Council Directive 77/486/EEC of 25 July 1977 on the education of the children of migrant workers, and came into force on the day of Bulgaria’s accession to the European Union, namely 1 January 2007). Aliens who do not fall into any of these categories must pay fees in amounts fixed by the Minister of Education. The proceeds from these fees are to be used exclusively for the needs of the educational establishments where the persons concerned are being schooled (section 4(3), as amended in 1998).
33. The relevant parts of Articles 2 § 1 and 28 § 1 of the 1989 United Nations Convention on the Rights of the Child (ratified by Bulgaria on 3 June 1991) read as follows:
“States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”
“States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and available free to all;
(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity by every appropriate means;
...”
34. Article 13 of the International Covenant on Economic, Social and Cultural Rights (ratified by Bulgaria on 21 September 1970) reads as follows:
“1. The States Parties to the present Covenant recognise the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
2. The States Parties to the present Covenant recognise that, with a view to achieving the full realisation of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;
(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.
...”
35. Article 17 of the revised European Social Charter (which Bulgaria ratified on 7 June 2000, accepting sixtytwo of its ninetyeight paragraphs, including Article 17 § 2 below) reads, in its relevant parts, as follows:
“With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in cooperation with public and private organisations, to take all appropriate and necessary measures designed:
...
2. to provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools.”
36. On the basis of the materials available to the Court in respect of twentysix member States of the Council of Europe, it appears that in seventeen States (Belgium, Cyprus, the Czech Republic, Estonia, France, Germany, Italy, Latvia, Luxembourg, the Netherlands, Portugal, Russia, Slovenia, Spain, Switzerland, “the former Yugoslav Republic of Macedonia” and the United Kingdom), primary and secondary education is free of charge and accessible to all persons living or residing in the country regardless of their immigration status or that of their parents. Certain categories of aliens are required to pay fees for their primary and secondary schooling in Malta, and only for their upper secondary schooling in Denmark, Poland and Romania. In five States (Croatia, Monaco, Slovakia, Turkey and Ukraine), certain non-nationals may experience difficulties in enrolling in schools because of their irregular status.
37. The length of compulsory education varies between member States, from eight years at the bottom end of the spectrum to thirteen years at the top end. In eleven States compulsory schooling lasts for eight or nine years, in ten States it lasts for ten or eleven years, and in five States it lasts for twelve or thirteen years. However, it is possible to say that in the great majority of the twenty-six States surveyed, compulsory education encompasses primary and lower secondary education, with the pupil usually finishing compulsory education aged approximately 16. This is generally the case for the first two groups, which together comprise twenty-one States. The number of years differs in each State depending on what age compulsory education begins rather than ends. Upper secondary education is compulsory only in a minority of the States surveyed (Belgium, Luxembourg, Portugal, “the former Yugoslav Republic of Macedonia” and Ukraine).
38. The Spanish Constitutional Court has dealt with the issue of the right to post-compulsory education for non-resident aliens. A Spanish statute governing the rights and freedoms of aliens and their social integration excluded non-resident aliens from the right to post-compulsory education. The Constitutional Court, in judgment no. 236/2007 of 7 November 2007, declared that exclusion unconstitutional since it prevented undocumented or non-resident minors from having access to post-compulsory education. The court held that whether or not the minors were lawfully resident was not a criterion for granting the right to post-compulsory education, which was part of the right to education protected by Article 27 of the Spanish Constitution. It observed that the right to education was not limited to basic education and that it also applied to subsequent, post-compulsory education. The court referred to Article 2 of Protocol No. 1 and to the fact that, in accordance with Article 1 of the Convention, the former applied ratione personae to any “person”, including non-resident or illegal aliens.
39. In 1982, in the case of Plyler v. Doe (457 U.S. 202), in which immigrant children in the State of Texas complained that they had been deprived of the right to free education on account of their undocumented status, the Supreme Court of the United States held, by five votes to four, that the requirement for illegal aliens – as opposed to nationals and lawfully resident aliens – to pay school fees deprived them of the equal protection of the laws, contrary to the Fourteenth Amendment to the Constitution of the United States.
40. In Resolution 1509 (2006), adopted on 27 June 2006 and entitled “Human rights of irregular migrants”, the Parliamentary Assembly of the Council of Europe expressed the view that “all children have a right to education, extending to primary school and secondary school levels, in those countries where such schooling is compulsory. Education should reflect their culture and language and they should be entitled to recognition, including through certification, of the standards achieved” (point 13.6).
41. Data published by the United Nations Department of Economic and Social Affairs, Population Division shows that in 2010 there were 107,245 immigrants in Bulgaria, accounting for 1.4% of the population. According to the same source, the annual rate of change of the migrant stock in Bulgaria between 2000 and 2010 was 0.6%.
42. Data published by the International Organisation for Migration show that in 2006 in Bulgaria there were 55,684 aliens with permanent residence permits. According to the same source, the number of aliens apprehended as illegally present in the country was as follows: 400 in 2002, 454 in 2003, 877 in 2004 and 1,190 in 2005.
43. According to data published by the National Statistical Institute of Bulgaria, the number of students in upper secondary education during the period 2003/10 was as follows: 166,995 during the 2003/04 school year; 170,482 during the 2004/05 school year; 170,462 during the 2005/06 school year; 167,988 during the 2006/07 school year; 163,050 during the 2007/08 school year; 156,978 during the 2008/09 school year; and 148,627 during the 2009/10 school year. The vast majority of them (all but about 3,500 a year) were enrolled in public schools. No data appear to be available as to how many of those students were not Bulgarian nationals or as to their immigration status. By contrast, data exist on the nationality of students in higher education establishments (universities and equivalent). The number of Bulgarian and foreign students in such establishments during the period 2003/10 were as follows: 215,682 Bulgarians and 7,952 foreigners during the 2003/04 school year; 224,530 Bulgarians and 8,300 foreigners during the 2004/05 school year; 229,649 Bulgarians and 8,652 foreigners during the 2005/06 school year; 244,816 Bulgarians and 9,060 foreigners during the 2006/07 school year; 251,000 Bulgarians and 9,110 foreigners during the 2007/08 school year; 260,826 Bulgarians and 9,472 foreigners during the 2008/09 school year; and 273,202 Bulgarians and 10,034 foreigners during the 2009/10 school year.
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-2


ITEMID: 001-72272
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF TACIROGLU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 6. The applicant was born in 1972. She is detained in Gebze Prison.
7. On 17 September 1993 the applicant was arrested by police officers from the anti-terrorism branch of the Istanbul Security Directorate on suspicion of being a member of Dev-Sol (Revolutionary Left), and was taken into custody. During the operation, the police officers gathered guns and illegal documents from the flat where they had captured the applicant. The applicant had also two forged identity cards in her possession.
8. On 1 October 1993 she was brought before the investigating judge at the Istanbul State Security Court. Subsequently, the investigating judge ordered the applicant’s detention on remand.
9. On 31 December 1993 the public prosecutor filed a bill of indictment with the Istanbul State Security Court against twenty-five persons, including the applicant, and requested that the applicant be punished pursuant to Article 146 § 1 of the Criminal Code with the death penalty.
10. Throughout the criminal proceedings, either on its own motion or at the applicant’s request, the Istanbul State Security Court examined and ordered the applicant’s continued detention. The court relied on “the serious nature of the offences with which the applicant had been charged, the state of evidence, the content of the case file, and the duration of the detention” when further detaining the applicant. On two occasions on 3 November 1997 and 5 May 2000, the court also noted that the case was due to be decided soon.
11. On 17 December 2003 the applicant was convicted of the offence as charged and sentenced to life imprisonment.
12. On 1 April 2005 the Court of Cassation quashed the applicant’s conviction, and remitted the case back to the Istanbul State Security Court.
13. The case is still pending before the Istanbul State Security Court.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-86435
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MCGILLEN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr John Mcgillen, is a British national who was born in 1949 and lives in Stoke-on-Trent. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 11 October 1989. There were two children of the marriage, born on 13 April 1978 and 2 November 1982. In 1997 the applicant applied for widows’ benefits and was refused. On 23 March 2001 he applied to the Benefits Agency for benefits equivalent to those which would have been received by a widow. He was finally refused such benefits by the Social Security Appeal Tribunal on 2 October 2001.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-114484
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF BAŃCZYK AND SZTUKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: George Nicolaou;Ledi Bianku;Vincent A. De Gaetano
TEXT: 4. The applicants Mr Józef Bańczyk and Mr Jan Sztuka were born in 1941 and in 1974 respectively and live in Bienkowice.
5. On 24 November 2003 the prosecution lodged a bill of indictment with the Kędzierzyn-Koźle District Court (Sąd Rejonowy). R.H., M.O., J.R. and M.B were charged with fraud and embezzlement.
6. On an unspecified date between 17 December 2003 and 10 March 2004 the applicants joined the proceedings as a civil party and lodged a claim for compensation against the defendants (powództwo adhezyjne).
7. The bill of indictment was only read out on 14 September 2005. In the following years 8 hearings were adjourned or cancelled due to various reasons (the health problems of one of the accused, illness of a defence lawyers, maternity leave of one of the trial judges, etc.).
8. On 14 September 2011 the Kędzierzyn-Koźle District Court acquitted M.O., J.R. and M.B of all charges. On the same date the court discontinued the proceedings in respect of R.H., who had died in April 2011. As regards the applicants’ civil claims, they were left without examination.
9. On 19 January 2012 the applicants appealed against the first-instance judgment.
10. On 12 June 2012 the Opole Regional Court upheld the challenged judgment.
11. On 14 April 2009 the applicants lodged with the Opole Regional Court a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
12. On 15 June 2009 the Opole Regional Court dismissed the applicant’s complaint stating that there were no significant periods of unjustified inactivity for which the Kędzierzyn-Koźle District Court had been responsible. The court held that the case no. II K 815/03 was a complex one. There were four co-accused, who faced numerous charges. 136 witnesses needed to be heard. Furthermore, the duration of proceedings was extended due to R.H.’s health problems, which necessitated many hearings to be postponed, and due to a maternity leave of one of the trial judges.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97224
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF FEDCHENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary and non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1968 and lives in the village of Suponevo, in the Bryansk Region.
5. The applicant has been the editor of a weekly newspaper, Bryanskiye Budni (Брянские будни), since he founded it in 1999.
6. In 2003 a leaflet was distributed in Bryansk and the Bryansk Region concerning a member of parliament (MP), Mr Shandybin, who was going to stand in the forthcoming elections. The leaflet read as follows:
“Enough of telling fairy tales!!! Let us turn to the facts! Read the Israeli weekly newspaper Beseder. The fortune of the member of the State Duma Vasiliy Shandybin is estimated by the newspaper at 13,123,400 dollars!! You do not believe it? Where does the money come from??? Vasiliy Shandybin charges 1,000 US dollars for a letter with the letterhead of a member of the State Duma, and 5,000 dollars for an MP's inquiry concerning a delicate matter!!! Lobbying on behalf of Vladimir Bryntsalov's interests in the State Duma – 300,000 dollars per year. The profit from trading in medicines and from the sale of overpriced medicines to the Bryansk Region – 600,000 dollars per year. Vote for our fellow countryman Vasiliy Shandybin and you will surely turn him into a billionaire!!!”
7. The leaflet was either quoted or its contents were described in a number of newspapers including Desnyanskaya Pravda (Деснянская правда) of 8 October 2003 and Komsomolets Bryanska (Комсомолец Брянска) of 14 October 2003 and internet news sites, including posts on www.news.nashbryansk.ru, www.gazeta.ru, www.vlasti.net and www.sem40.ru of 3 October 2003, a post on www.sobesednik.ru of unspecified date in October 2002 and a post on www.globalrus.ru of 20 October 2003. The applicant has provided copies of the newspaper articles and printouts from the internet sites.
8. On 9 October 2003 in Bryanskiye Budni no. 206 (no. 41) the applicant published an article entitled “Vasya and Israel” (“Вася и Израиль”). The article reads as follows:
“Vasya was slandered. Ivanych. Shandybin. The hand reaches for an axe. Revenge! For our workers' conscience!
The circulation of the leaflet distributed through towns and villages, according to Vasiliy himself and his associates, is half a million copies, and it says that Shandybin scraped up a fortune of more than 13 million dollars. An angry rebuff of this allegation was made by the Bryanskaya Pravda. He did not take it, says Pravda, Bryntsalov did not chuck him 300,000 dollars for assistance in the sale of medicines either, and 5,000 bucks for an MP's inquiry is unheard of.
Actually, when we are talking about Vasya, it is appropriate to say that one should not look a gift horse in the mouth. Vasya gave medical equipment as a present to two outpatient clinics, and it is impossible to count how many music boxes he gave to schools and orphans' homes. It is clearly improper to ask the donor where he got the money for all these goods. The benefactors paid for Shandybin's pretty haircut, and he justly distributed the catch among those in need.
If there are doubts, they are caused by the unsightly history of Russian 'parliamentarism'. Recently, in connection with the events of 1993, we were reminded how cynically Yeltsin bought MPs who had not yet decided which side of the barricades to run to. He promised them a rich piece of cake, and they slyly ran for this piece, swallowing their spittle. Zhirinovskiy's party was accused of bribery many times, but all our elected representatives take [bribes] (except Vasya, of course), if we mean not only money but also greyhound puppies: favours from Western patrons, from Khodorkovskiys or Abramovichs residing in Russia. And this is a serious school, a school of venality. This is why the accusation against Shandybin in the clandestine leaflet fell on fertile ground. Whether Vasiliy Ivanovich took bribes or not, he will have to account for all his colleagues, for the fact that he has sat next to venal MPs in the venal Duma for many years. In a way, the retribution is legitimate.
Who is the author? He is closer to the body of Vasiliy Ivanovich than the MP himself thinks. Of course, the easiest answer is: the one who intends to stand against him in the same electoral district. We have no doubts that Vasya's ill-wishers from this camp will scribble too, but the leaflet containing a reference to the Israeli source was in fact made in a different camp. Which one? Remember who recently visited Israel. Thus, nominally these forces are Shandybin's allies, but effectively they consider him a serf. And serfs need to be reminded from which barn they originate, so that they do not put on airs and are obedient.
Unfortunately, Shandybin is looking for ill-wishers in the wrong camp. They should be searched for among the people who cover themselves with red rags. Their handwriting is recognisable. Their latest provocation in the press was, in fact, a supplement to Bryanskiye Budni. They published a fake edition of Budni that criticised the opposition to Lodkin, inter alia, to test their undercover printing works. Although the editors lodged an official complaint, the law-enforcement authorities did not try to find the publisher. And now here is a new volley, and surely not the last one, from the underground regional committee [of the Communist Party].”
9. On 15 October 2003 the Election Committee of the Bryansk Region issued a decree declaring that the applicant's article was intended to agitate the electorate and to encourage a negative attitude towards Mr Shandybin. The applicant appealed to a court against the decree.
10. On 26 November 2003 the Bryansk Regional Court found that the decree was unlawful. The court held:
“...[T]he article was published on 9 October 2003 ... before the election campaign had started ... [T]he article contains information about the distribution of a leaflet saying that V.I. Shandybin had made a fortune of more than 13 million dollars, and speculations by the author concerning the existence of this money and its sources. The contents of the leaflet are not quoted in the article. The text of the article contains neither information about the forthcoming elections to the State Duma ..., about V.I. Shandybin as a candidate for the State Duma, his political views and ideas, nor agitational calls to vote for or against V.I. Shandybin or other candidates.
... [Mr] Fedchenko stated at the hearing that in the article he had not sought to agitate but had merely stated his opinion concerning the distributed leaflet and the information contained therein. The [defendant] did not produce any proof to the contrary ...”
11. The Election Committee of the Bryansk Region appealed.
12. On 18 February 2004 the Supreme Court of Russia upheld the judgment.
13. On 20 October 2003 Mr Shandybin brought an action for defamation against the applicant in the Bryanskiy District Court of the Bryansk Region and sought damages in the amount of 500,000 Russian roubles (RUB). He claimed, in particular, that the following passages were untrue and damaging to his honour and reputation:
“Shandybin scraped up a fortune of more than 13 million dollars.”
“He did not take it, says Pravda, Bryntsalov did not chuck him 300,000 dollars for assistance in the sale of medicines either, and 5,000 bucks for an MP's inquiry is unheard of.”
“Thus, nominally these forces are Shandybin's allies, but effectively they consider him a serf. And serfs need to be reminded from which barn they originate, so that they do not put on airs and are obedient.”
14. On 31 May 2004 the Bryanskiy District Court found for the claimant. The court held:
“...[T]he article Vasya and Israel as a whole, as well as particular phrases and words (the subject of the dispute) in it, are strongly indicative of a negative judgment and contain direct emotional judgments which constitute insulting attacks and indirect judgments.
...[T]he [first] assertion as such, in the context of the article, is insulting, and damaging to the honour and dignity of the claimant and ... to his reputation. The defendant failed to prove the contrary. The claim is well-founded.
...The author ironically uses [slang words] in the [second] assertion so as to give it a cynical, insulting character and describes the claimant in negative terms. The assertion is beyond the limits of civilised communication and is in breach of moral standards. Accordingly, the claimant's assertion ... concerning the disparaging character of the above quotation is well-founded.
...The [third] assertion has an emotionally expressive tone of contempt and humiliation and presents the [MP] to the readers in a negative light, as a person capable of doing bad things for society. If used metaphorically, the words are disapproving in tone. The claimant has grounds to perceive the assertions as insulting and slanderous. The court considers this information damaging to the honour, dignity and reputation of the claimant.”
15. The court held the applicant liable for RUR 5,000 in respect of non-pecuniary damage sustained by the claimant. The applicant was also ordered to provide Mr Shandybin with an opportunity to publish his response in Bryanskiye Budni. The applicant appealed.
16. On 1 July 2004 the Bryansk Regional Court reversed the judgment in the part relating to the publication of the claimant's response in Bryanskiye Budni and upheld it in the remaining part. The court found that since Mr Shandybin had not applied directly to Bryanskiye Budni for the publication of the response within a year of the publication of the defaming information, under Sections 45 and 46 of the Law on Mass Media he was estopped from applying to a court in this respect. The court further held:
“On the basis of the evidence described in the judgment the [first-instance] court reached the correct conclusion that the assertions at issue did not correspond to the truth and discredited the honour, dignity and reputation of the claimant.”
17. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.
18. Article 152 provides that an individual may apply to a court with a request for the rectification of information (сведения) that is damaging to his honour, dignity or professional reputation unless the disseminator of that information proves that it “corresponds to reality” (Paragraph 1). The defamatory information must be refuted in the same media source that disseminated it (Paragraph 2). The aggrieved person also has a right to publish a response in the same media source (Paragraph 3). He may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of the information (Paragraph 5).
19. Under Section 45 of the Law on Mass Media no. 2124-I of 27 December 1991 a media source may refuse to publish a response to defamatory information if the aggrieved person did not apply for the publication of the response within a year of the publication of the defamatory information. Under Section 46 a refusal to publish a response may be appealed against to a court within a year of the publication of the defamatory information.
20. The Resolution (in force at the material time) provided that, in order to be considered damaging, information (сведения) had to be untrue and contain allegations of a breach of laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of such information was understood as the publication of the information or its broadcasting, inclusion in professional references, public speeches, applications to State officials and communication in other forms, including oral, to at least one other person (Section 2). The burden of proof was on the defendant to show that the disseminated information had been true and accurate (Section 7).
VIOLATED_ARTICLES: 10