ITEMID: 001-85701
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KAFKA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Petr Kafka, is a Czech national who was born in 1949 and lives in Varnsdorf. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 May 1998 the applicant brought a civil action against his former employer seeking to quash an appraisal report of him.
It appears that the proceedings are still pending.
On 3 June 1998 the applicant filed a civil action against his former employer for the payment of CZK 4,736 (application no. 925/04).
The proceedings terminated with a decision of the Constitutional Court of 8 December 2004.
On 20 July 1998 the applicant brought a civil action seeking to quash an employee’s card issued by his former employer on 2 April 1998 and the delivery of a new card alleging that the period of employment was wrongly recorded. On 25 May 2000 the District Court suspended the case pending the outcome of the proceedings instituted by the applicant against his former employer for the payment of CZK 4,736 (application no. 925/04).
On 18 May 2005 the court resumed the proceedings which seem to be still pending.
On 13 April 2000 the applicant issued proceedings for damages against the Jiříkov Reformatory Institution for Children and Juveniles (Východný ústav pro děti a mládež) which are still pending.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-67092
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SERVES v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: 1. The applicant [Mr Paul Serves] is a French national born in 1955. He is a regular officer in the French army and lives at Seillons (in the département of Var). He has lodged two other applications with the European Commission of Human Rights: application no. 20225/92, on which the Court gave judgment on 20 October 1997 (Serves v. France, judgment of 20 October 1997, Reports of Judgments and Decisions 1997VI), and application no. 36535/97, which the Court declared inadmissible on 27 April 1999.
He was represented by Mr S. Degrâces, of the Paris Bar.
The facts of the case, as submitted by the parties, may be summarised as follows.
2. At the material time the applicant held the rank of captain. He was in command of the first company (“the company”) of the 2nd Foreign Parachute Regiment (“2nd Para”) and was based in the Central African Republic.
3. On 5 April 1988 the company set off on a “provincial tour” to the Awajaba region in the north of the Central African Republic.
On 11 April 1988 the applicant called together the heads of platoon and told them that poachers had been reported to him in the presidential reserve and Bamingui-Bangoran National Park and that they were to carry out an “unofficial” investigation mission. He designated two areas; one platoon of the company, under the applicant's command, was to investigate in one of them and a second platoon, under the command of Lieutenant C., was to investigate in the other. A third platoon was to relieve the second after forty-eight hours. The applicant said that any poachers encountered should be intercepted and, if they fled, should if necessary be fired on after a warning had been given. The operation began on the morning of 13 April.
On 14 April 1988 a patrol from the second platoon, commanded by Staff Sergeant B., came upon two natives who fled on seeing them. Staff Sergeant B. fired two shots, wounding one of the fugitives in the leg. On hearing of the incident from the Staff Sergeant, Lieutenant C. went to the scene with the platoon's medical orderly, Corporal J. The injured man was treated and taken to the bivouac, where Lieutenant C. ordered Corporal D. to dig a grave. An hour after that had been done, and after being questioned, the captive, on Lieutenant C.'s orders, was “finished off” by means of five shots fired by Corporal D. and then buried.
4. The applicant was told of the incident on 15 or 16 April 1988 and ordered his men to remain silent. They returned to their camp at Bouar on 21 April. In his report on the “provincial tour” the applicant made no mention of any incident.
5. When questioned on 22 April 1988 by Lieutenant-Colonel Champy, the commanding officer of the French operational assistance units (“the EFAO”) in Bouar, who had heard rumours of an incident during the tour, the applicant and Lieutenant C. said that they had found a native's body, had buried it and had not reported the matter out of discretion. They drew up reports relating this version of the events. The Central African authorities were informed on 23 April and no further inquiries were made.
6. On 13 May 1988, however, Colonel Larrière, the commanding officer of the EFAO in the Central African Republic, was told that evidence given to the Central African police implicated his soldiers. He therefore decided to recommence the inquiry and on 15 May personally interviewed the applicant, Lieutenant C., Staff Sergeant B. and Corporal J. The applicant and Lieutenant C. confirmed the content of their original reports. As their statements differed in some respects, however, Colonel Larrière interviewed Lieutenant C. again. The lieutenant then admitted that Staff Sergeant B. had opened fire on the poacher, who had been injured in the leg and had received medical treatment at the scene of the incident. He also said that the captive had died from his injuries shortly after being taken to the bivouac and that he himself had ordered that he should be buried at once.
7. On his return to Bangui with the applicant and Lieutenant C., Colonel Larrière had the matter reported to the Army Chief of Staff. On 17 May 1988 the Chief of Staff told the colonel that he had been in touch with the prosecutor at the Paris Military Court, that an application should be made to the EFAO military police – a gendarmerie detachment assigned during operations to a large unit or base to carry out general policing and criminal-investigation duties – and that the company was to be relieved as soon as possible.
8. In a commanding-officer report of 20 May 1988 Colonel Larrière said that he believed Lieutenant C.'s latest statement on the circumstances of the poacher's death. He also set out the facts described above (see paragraphs 26), concluded that the applicant was “wholly” responsible and asked for disciplinary penalties to be imposed on him (replacement as head of his unit and a reprimand by the Minister of Defence) and on Lieutenant C. (forty days' confinement). The report stated, inter alia: “... from the evidence obtained in the course of this inquiry it may be concluded that Captain Serves ... was wholly responsible. He acted outside the scope of his duties, breached instructions and issued orders conflicting with those he had received concerning the use of weapons and ammunition. ... As an officer in command of a Foreign Legion unit, he knew that in giving such orders he would be blindly obeyed. Moreover, although he was aware of the events, he did not report them and sought to conceal the facts, ordering his men to remain completely silent.”
9. The soldiers involved in the case were sent back to France on 21 May 1988. The applicant, Lieutenant C., Staff Sergeant B. and Corporal J. were held at Fort Nogent in the département of Val-de-Marne. Together with the other two heads of platoon in the unit, they were questioned on 22, 23 and 24 May 1988 by General Guignon, the commanding officer of the 11th Parachute Division and the 44th Territorial Army Division. In his commanding-officer report of 25 May 1988 to the Army Chief of Staff he mentioned a rumour that the poacher had been “finished off” by Corporal D. and concluded that Lieutenant C. and the applicant bore the responsibility, which was “weighty” in the latter's case. The report stated that “in sending his company off on this stupid 'poacher-hunting' expedition [the applicant had taken] the enormous risk of a 'blunder' of [that] kind” and that by “subsequently distorting the truth and ordering his entire unit to keep quiet or to tell lies he [had] made matters considerably worse for himself”, adding that “the courts will establish the precise degree of his guilt; as far as his commanding officers are concerned, he does not deserve any leniency”.
On 30 May 1988 General Guignon questioned the applicant, Staff Sergeant B., Corporal J. and Lieutenant C. again. Lieutenant C. admitted that Corporal D. had, on his orders, shot the injured man in order to “put an end to the suffering of a dying man”. This was later confirmed by the corporal. A commanding-officer report of 1 June gives an account of this and concludes: “The facts which I have reported seem to me to be credible at this stage. In any event, it would appear difficult for me to pursue my investigations now that most of the protagonists are being dealt with by the courts. Keeping deliberately within the strict confines of the commanding-officer inquiry, I confirm that the responsibility lies mainly, as I have already stated, with the two officers in question.”
10. On 18 May 1988 Colonel Larrière had informed the commandant of the Bangui military police of the facts of the case. The commandant had opened a preliminary inquiry and on 18 and 20 May 1988 sent messages to the prosecutor at the Paris Military Court, reading as follows:
“First: investigation being carried out by commanding officer of Bangui military police detachment (CAR) assisted by Bangui and Bouar military police personnel[;] pending proceedings do not require soldiers in question to be detained here in view of line taken by Head of State of Central African Republic.
Second: all personnel involved will have made statements before returning to France.
Third: personnel concerned will depart for Bastia with their unit on Saturday 21 May 1988 ...”
and
“Further to telephone call today 20 May 1988, names of soldiers implicated in the case are
(1) Serves, Paul, Captain.
(2) [C.], Lieutenant.
(3) [B.], Staff Sergeant.
(4) [J.], Corporal.
Unable at present to give you detailed account of facts. Information currently being sought.
Please ask CEMA [Army Chief of Staff] to make arrangements with EFAO Bangui for soldiers in question to be conveyed to Paris. Request message confirming instructions you gave by telephone and possibly also fresh orders – even at once orally.”
11. On 21 May 1988 the commandant of the military police interviewed Colonel Larrière, who had given him a copy of his report of 20 May. An official report of 21 May, to which the colonel's report and the record of his interview were annexed, brought the investigation to an end.
12. On an application of 20 May 1988 by the prosecutor at the Paris Military Court an investigation was begun in respect of the applicant, Lieutenant C., Staff Sergeant B. and Corporal J.
On 24 May 1988 the applicant was charged with manslaughter, and on 23 June 1988 a murder charge was substituted. He was detained pending trial from 24 May to 21 July 1988.
Lieutenant C. and Corporal D. were also charged with murder, and three other legionnaires, from the company's second platoon, were charged with aiding and abetting murder; Corporal J. was charged with manslaughter and Staff Sergeant B. with wounding with intent or wilful violence or assault, entailing or not unfitness for work for not more than eight days and committed with a weapon.
13. On 9 October 1989, on an application by the prosecutor, the First Indictment Division of the Paris Court of Appeal, exercising jurisdiction as the body supervising military judicial investigations, gave the following judgment:
“...
The body supervising the judicial investigation
...
Notes that the investigation was commenced on an application of 20 May 1988 made without the opinion of the Minister of Defence or of the authority referred to in Article 4 of the Code of Military Criminal Procedure having first been obtained as required by Article 97 of that Code.
Holds that this irregularity, seeing that the offenders were not caught in the act, had the effect of infringing the rights of those against whom proceedings have been brought, and that at the same time they were also not afforded a fair hearing as some of the evidence from the preliminary inquiry had not been placed in the file.
Consequently declares void the application of 20 May 1988 for a judicial investigation and the steps subsequently taken in the proceedings.
Declares that the preliminary inquiry and the messages of [18] and 20 May 1988 remain effective.
...”
14. In response to a request from the prosecutor on 21 October 1989, the Minister of Defence issued an opinion on 10 November 1989 in which he stated that the facts appeared to constitute a serious crime (crime) and that criminal proceedings should be brought.
15. On an application of 13 March 1990 by the prosecutor (which referred to the official report of 21 May 1988, the messages of 18 and 20 May 1988, General Guignon's commanding-officer reports of 25 May and 1 June 1988 and the Minister of Defence's opinion), a judicial investigation, for murder, was begun in respect of Lieutenant C. and Corporal D. only. They were charged on 19 April 1990.
16. In connection with that investigation, the military investigating judge took evidence from Colonel Larrière, Lieutenant-Colonel Champy and Staff Sergeant B., among others.
The applicant was likewise summoned to appear as a witness, on 12, 19 and 26 September 1990; on each occasion he attended but refused to take the oath and give evidence. On the same dates the investigating judge consequently ordered him to pay fines of 500 French francs (FRF), FRF 2,000 and FRF 4,000 respectively. The applicant appealed against those orders to the First Indictment Division of the Paris Court of Appeal. His main argument was that as, in its judgment of 9 October 1989, the Division had expressly declared that the preliminary inquiry and the messages of 18 and 20 May 1988 on which his 1988 charge had been based remained effective, there was incriminating evidence against him such as enabled him to be charged, so that he could not be examined as a witness without his defence rights being infringed and a breach of Article 6 of the Convention and Article 105 of the Code of Criminal Procedure being committed. The Indictment Division upheld the impugned orders in a judgment of 29 October 1990. In a judgment of 23 October 1991 the Court of Cassation dismissed an appeal on points of law by the applicant.
17. On 6 May 1992 the applicant was again charged with murder, and on 28 February 1994 the First Indictment Division of the Paris Court of Appeal indicted Corporal D. for murder, and Lieutenant C. and the applicant for aiding and abetting murder.
18. The hearing in the Paris Military Court was held on 10 and 11 May 1994. On 11 May 1994, having heard evidence from a large number of witnesses, including Colonel Larrière and General Guignon, the court convicted all three defendants; Corporal D. was sentenced to one year's imprisonment, suspended, Lieutenant C. to three years' imprisonment, with one year suspended, and the applicant to four years' imprisonment, with one year suspended.
19. The applicant and Lieutenant C. appealed on points of law against the judgments of 28 February 1994 and 11 May 1994.
In a summary statement of his grounds of appeal of 25 May 1994 the applicant relied in particular on Article 6 of the Convention, alleging that his defence rights had been infringed by the addition of General Guignon's reports to the case file, and that the proceedings as a whole had not been fair.
On 29 April 1997 the Court of Cassation delivered the following judgment, in which it dismissed the appeal:
“... In dismissing the objection that the prosecutor's application of 13 March 1990 for a judicial investigation was void because it referred to two inquiry reports based on statements obtained, in breach of the rules of criminal procedure and the rights of the defence, from persons against whom proceedings had been brought, the Court of Appeal stated that 'the fact that the report of the commanding-officer inquiry carried out in connection with separate administrative proceedings was added to the case file so that the parties could present argument on it cannot invalidate the judicial proceedings, which alone are governed by the Military Criminal Code and the Code of Criminal Procedure' and that 'the application, which was partly based on the commanding-officer inquiry, cannot be declared void'.
In so holding, the body supervising the judicial investigation did not infringe the provisions relied on in the ground of appeal [including Article 6 § 1 of the Convention].
It follows that the ground of appeal cannot be accepted. ...
In dismissing the application for the proceedings to be declared void on the grounds that the investigating judge should not have summoned the appellant to appear before him as a witness or have examined Corporal [J.] or Staff Sergeant [B.] in that capacity since they had all been implicated by the commanding-officer inquiry, and that certain statements set out in the order transferring the case for submission to the Indictment Division of the Court of Appeal, concerning the length of time the accused had each spent in detention, were incorrect and had been taken from documents pertaining to the proceedings that had been declared void, the judges below noted in the first place that when Paul Serves was summoned before the investigating judge, the investigation had not yet established his precise role, and that it was not until May 1992 that, in the light of the evidence taken from a large number of witnesses and [Lieutenant C.'s] statements incriminating Paul Serves, the investigating judge considered that there was substantial, consistent evidence of his guilt such as to justify charging him.
They added that the examination of Corporal [J.] and Staff Sergeant [B.] as witnesses could not have invalidated the proceedings since no charges had been brought against either soldier.
Lastly, they found that the statements set out in the investigating judge's order concerning Paul Serves' detention pending trial had not been based on information taken from the documents that had been declared void but had been taken from the judgment declaring void the first application for a judicial investigation, and that Serves could not rely on inaccuracies concerning the situation of the other persons charged.
Given the nature of the statements, the body supervising the judicial investigation justified its decision without infringing the provisions relied on in the ground of appeal, which must therefore be dismissed. ...”
20. On 16 June 1997 the Director of Army Service Personnel issued a “notice of loss of rank”, which read:
“In a judgment delivered on 11 May 1994 the ... Military Court convicted Major Paul Serves ..., currently stationed at the Marseilles Military Instruction and Training Centre, and sentenced him to four years' imprisonment, with one year suspended, for aiding and abetting murder ...
An appeal on points of law ... was dismissed ... in a judgment of 29 April 1997.
The judgment delivered on 11 May 1994 ... is final with effect from 29 April 1997.
Notice is hereby given of the following:
1. The conviction shall automatically entail loss of rank, pursuant to Article 389 of the Military Criminal Code, and dismissal from the service, pursuant to section 79 of the Armed Forces (General Regulations) Act as amended (Law no. 72-662 of 13 July 1972).
Loss of rank and dismissal from active military service shall take effect on 29 April 1997, the date on which the judgment became final.
2. Mr Serves shall retain the right to claim his pension entitlements in accordance with the conditions set out in the Civil and Military Pensions Code, in particular Article L. 25. ...”


ITEMID: 001-60757
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF L.B. v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1948 and lives in Florence.
9. Mr and Mrs B. were the owners of an apartment in Florence, which they had let to M.C.B.
10. In a registered letter of 21 February 1987, they informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1987 and asked her to vacate the premises by that date.
11. In a writ served on the tenant on 24 April 1987, they reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.
12. By a decision of 11 June 1987, which was made enforceable on 23 June 1987, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988.
13. On 6 August 1987, the applicant became the owner of the apartment.
14. On 11 January 1989, the applicant served notice on the tenant requiring her to vacate the premises.
15. On 9 May 1989, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.
16. On 18 May 1989, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 11 July 1989.
17. Between 11 July 1989 and 21 May 1998, the bailiff made twenty attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
18. On 3 July 1998, the tenant vacated the premises and the applicant recovered possession of the flat.
19. The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57424
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1980
DOCNAME: CASE OF ARTICO v. ITALY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (ratione temporis);Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (six month period);Violation of Art. 6-3-c;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
TEXT: 8. Mr. Ettore Artico, an Italian citizen born in 1917, is an accountant by profession.
On 27 January 1965, Mr. Artico was sentenced by the Verona District Judge (pretore) to eighteen months’ imprisonment and a fine for simple fraud (truffa semplice). A further sentence of eleven months’ imprisonment and a fine for repeated fraud (truffa con recidiva), impersonation (sostituzione di persona) and uttering worthless cheques was imposed on him by that Judge on 6 October 1970. These various offences had been committed in May/June 1964. Appeals lodged by the applicant on 28 January 1965 and 11 December 1970 were rejected on 16 December 1969 and 17 April 1971, respectively, by the Verona Criminal Court; it dealt with both cases in Mr. Artico’s absence.
On 11 October and 13 November 1971, the pretore issued committal warrants to enforce the two prison sentences. The warrants were served on the applicant on 22 December 1971; he had, in fact, been arrested on 8 December in connection with other offences.
9. On 25/26 December 1971, Mr. Artico, who was then in Brindisi prison, appealed once more to the Criminal Court against both of the decisions of the pretore. He claimed to be unaware of the Criminal Court’s judgments and accordingly filed with the appeals applications to quash (ricorsi per cassazione), inter alia, "any decision given on appeal" ("la eventuale sentenza di secondo grado"). The fact that the cases had been dealt with in Mr. Artico’s absence was the basic target of these applications: they challenged in particular the regularity of both the procedure followed as regards the service of various documents and declarations to the effect that the applicant was untraceable (decreto di irreperibilità; Article 170 of the Code of Criminal Procedure).
By two Orders of 6 March 1972, the Criminal Court declared the appeals inadmissible on the ground that they were directed against decisions that had already been the subject of appeals. At the same time, the Criminal Court, for reasons of jurisdiction, transmitted the applications to quash to the Court of Cassation.
10. On 10 and 14/15 March, Mr. Artico, who was then in Venice prison, filed declarations with the latter Court setting out his further arguments. Although this was not mentioned amongst the principal grounds invoked, the declarations concluded with a new request: the offences covered by the decisions of the pretore should be declared to have been extinguished as a result of statutory limitation (prescrizione; Articles 157 et seq. of the Criminal Code) in November/December 1971, since by that date the statutory period of seven years and six months had elapsed.
In pleadings dated 3 and 10 July 1973, which dealt only with the alleged procedural irregularity and not with the issue of statutory limitation, the public prosecutor (pubblico ministero) submitted that Mr. Artico’s applications were manifestly ill-founded.
By two Orders (ordinanze) of 12 November 1973, the Court of Cassation, sitting in chambers, declared the applications inadmissible on the ground that there had been no procedural irregularity; it dit not, however, advert to the question of statutory limitation.
11. During 1975, Mr. Artico, relying once more on the issue of statutory limitation, filed with the Court of Cassation an appeal (istanza di revisione) against the decisions of 27 January 1965 and 6 October 1970 which had been confirmed by the Criminal Court on 16 December 1969 and 17 April 1971. By judgment of 5 August 1975, the Court of Cassation held that the offences of simple fraud, impersonation and uttering worthless cheques had been extinguished by statutory limitation. Accordingly, the Verona Criminal Court’s judgments were quashed but not, in the case of that of 1971, as regards the offence of repeated fraud.
At the same time, the Court declared a request by the applicant for provisional release to be inadmissible on the ground that it had not been established that his detention stemmed from the decisions that were under appeal.
12. Mr. Artico was, however, released on 23 August 1975 pursuant to a directive (provvedimento) issued on the same date by the Milan public prosecutor’s department (procura della Repubblica). The directive, after referring to the 1975 judgment of the Court of Cassation, re-calculated at two years and eight months the total period of imprisonment due to be served in respect of the offence of repeated fraud and various other offences; as the applicant had been in prison since 8 December 1971, the period had already expired on 7 August 1974.
An application by Mr. Artico for compensation for wrongful detention was dismissed by the Court of Cassation on 4 November 1977 on the ground that it had been lodged out of time.
In a directive issued by the Ferrara public prosecutor (procuratore della Repubblica) on 15 March 1978, another re-calculation was made of the period of imprisonment due to be served by the applicant for various offences; the detention which he had undergone "unduly" ("indebitamente") from 8 August 1974 to 23 August 1975 was set off against other sentences.
13. Mr. Artico, who had originally been represented by a lawyer of his own choice, Mr. Ferri, included in his declaration of 10 March 1972 to the Court of Cassation a request for free legal aid in connection with the applications to quash. This request was granted on 8 August 1972 by the President of the Second Criminal Section ("the Section President") who appointed for the purpose Mr. Della Rocca, a lawyer from Rome.
14. On 4 September, Mr. Artico wrote to the Section President and the public prosecutor (procuratore generale) attached to the Court of Cassation ("the Cassation prosecutor") to inform them that he had heard nothing from Mr. Della Rocca and to request that steps be taken to provide effective assistance. By letter of 8 September, Mr. Della Rocca advised the applicant that it was only on his return from holiday that he had learned of the appointment, stated that other commitments prevented him from accepting it and gave the name of a colleague whose services he strongly recommended the applicant to utilise. On 10 October, Mr. Artico asked Mr. Della Rocca to apply for the appointment of a substitute in accordance with the procedure laid down by law. In a letter of 18 January 1973 to the applicant, the lawyer said that on 17 October he had submitted to the Section President a formal request (istanza) to that effect, indicating therein that for health reasons he was unable to undertake a task which he described as very demanding and onerous (molto impegnative e gravi); he considered that in this way he had fulfilled his obligations and expressed the wish to be left in peace.
On 30 January 1973, the applicant wrote to the Section President and the Cassation prosecutor requesting Mr. Della Rocca’s replacement and enclosing a copy of the latter’s letter to him of 18 January. The registry of the Court of Cassation apparently replied on 26 February with a note to the effect that Mr. Della Rocca was still acting since a lawyer appointed for legal aid purposes was not in law entitled to refuse the appointment. On 6 March, Mr. Artico – who referred as on subsequent occasions to various statutory texts - sent to the Cassation prosecutor a complaint requesting, in addition to Mr. Della Rocca’s replacement, the imposition on him of criminal and disciplinary sanctions; no action seems to have been taken on this complaint, a copy whereof had been sent to the Section President. On 12 March, the applicant wrote to the Senior President of the Court of Cassation, inter alia, to draw his attention to the lack of legal assistance and to seek his intervention. By a telegram of 4 May the registry advised the applicant that Mr. Della Rocca had not been replaced and that the applications to quash were still with the public prosecutor’s department. Three days later Mr. Artico wrote again to the Cassation prosecutor to complain, amongst other things, of the absence of a substitute counsel and, on 6 June, the registry sent to the applicant a telegram worded similarly to the previous one. By letter of 19 June to the Cassation prosecutor, a copy of which was sent to the Section President, Mr. Artico emphasised the situation’s serious consequences for the defence and once more requested the appointment of another lawyer.
15. By notification dated 25 September, the registry of the Court of Cassation informed Mr. Della Rocca that the case was due to be heard on 12 November 1973. On 5 October, the registry sent to Mr. Artico, in reply to his telegram, a telegram advising him of the date of the hearing and that the lawyer had not been replaced. Letters dated 6 October from the applicant to the Section President and the Cassation prosecutor, which referred to several earlier communications of a similar nature, complained of Mr. Della Rocca’s attitude and of the authorities’ failure to act and contained a further request for replacement. On 2 November, Mr. Artico submitted to the Section President, with a copy to the Cassation prosecutor, the last of such requests, alleging a violation of the rights of the defence and asking for an adjournment of the hearing; however, this request did not reach the Court of Cassation until 20 December whereas it had already declared the applications to quash inadmissible on 12 November (see paragraph 10 above).
16. Under Article 524 of the Code of Criminal Procedure:
"An application to quash may be made to the Court of Cassation on the following grounds:
1) failure to observe or erroneous application of the criminal law ...;
2) exercise by a court of a power reserved by law to legislative or administrative bodies or not granted to the State authorities;
3) failure to observe the rules of the present Code in cases where it is stipulated that non-observance shall result in nullity, inadmissibility or estoppel.
...
An application shall be inadmissible if made on grounds which are not prescribed by law or are manifestly ill-founded."
17. Article 531 provides as follows:
"When a ground on which the application would be inadmissible is pleaded by a party or is raised ex officio, the question shall be decided as a preliminary point by the Court of Cassation sitting in chambers ...
...
In all the aforesaid cases, the Court shall rule on the matter, having regard to the public prosecutor’s written pleadings, without the intervention of defence lawyers.
However, in the cases contemplated in the final paragraph of Article 524, the public prosecutor’s pleading shall be filed at the registry of the Court and notice of the said filing shall be given forthwith to the applicant’s lawyer. The latter shall be entitled to submit, within fifteen days of the notification, to the President of the Section seised of the matter a written request that the application be heard in open court. If such a request is presented, the Court shall sit in public.
If the applicant has not appointed a lawyer, the aforesaid notice shall be given to the lawyer officially appointed for that purpose by the President."
18. Free legal aid is governed, inter alia, by the provisions of Royal Decree (Regio Decreto) no. 3282 of 30 December 1923.
In criminal matters, legal aid is available as of right to anyone who is in a "state of poverty" ("stato di povertà"; Article 15), which phrase is to be interpreted as meaning inability to meet the expenses involved (Article 16). The decision affording legal aid is taken by the president of the trial court (Article 15; see also Article 3 of Royal Decree no. 602 of 28 May 1931). Once granted, it is the judicial authority seised of the case which nominates the lawyer who is to act for the person concerned (Article 29 of the 1923 Decree). The prosecuting authorities or the court president may cause a substitute lawyer to be designated either on their own initiative, where there are serious reasons, or if the original lawyer "establishes legitimate grounds which oblige him to abstain, or entitle him to be excused, from acting" (Article 32). Similarly, Article 128 of the Code of Criminal Procedure provides that an officially appointed lawyer may be replaced "for a justified reason".
Article 5 of Royal Decree no. 602 of 28 May 1931 stipulates that any defence lawyer who is unable to act must supply a written statement of the reasons therefore; even after such a declaration has been made and for so long as he has not been replaced, the lawyer must fulfil the obligations of his office.
An assisted party loses the benefit of legal aid if he instructs a lawyer of his own choice (Article 128 of the Code of Criminal Procedure).
In general, legal aid comes under the supervision of the prosecuting authorities; they can take such measures as may be necessary to ensure that the case of an assisted person is properly attended to and, without prejudice to the latter’s action for damages, may request the imposition of disciplinary penalties on lawyers who neglect their duties (Article 4 of the 1923 Decree).
19. By virtue of Article 152 of the Code of Criminal Procedure, a court is obliged, at any stage of the proceedings, to take notice of its own motion of the extinction of an offence; statutory limitation takes effect by operation of law, even where an appeal is otherwise inadmissible.
The Government conceded that in the present case the Court of Cassation should itself have raised this question in its decisions on the applications to quash.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-96087
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MOLNAR GABOR v. SERBIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits (ratione temporis);Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 6-1;No violation of P1-1
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 6. Following the financial crisis in the former Socialist Federal Republic of Yugoslavia, as well as the collapse of the banking system in Serbia in the 1990s, in 1998 and 2002 the respondent State adopted specific legislation accepting the conversion of foreign currency deposits in certain banks, including Vojvođanska banka, into a public debt. The legislation set the time-frame (2016) and the amounts, including interest, to be paid back to the banks' former clients. It also explicitly provided, inter alia, that any foreign currency-related judicial proceedings were to be discontinued (for details concerning the relevant domestic law see paragraphs 20-27 below).
7. The applicant was born in 1926 and lives in Subotica, Serbia. He is retired and receives a pension in the net amount of approximately 250 Euros (“EUR”) monthly.
8. The facts of the case, as submitted by the parties, may be summarised as follows.
9. On a number of separate occasions, the applicant deposited a certain amount of his foreign currency savings with the Subotica branch of Vojvođanska banka, a bank based in Novi Sad.
10. In 1991 the said bank refused to release the applicant's funds.
11. On 21 July 1993 the applicant filed a civil claim, seeking the release of his foreign currency deposits with the interest stipulated.
12. On 27 September 1993 the Municipal Court in Subotica ruled partly in favour of the applicant and ordered the bank to pay him: (i) 15,584.41 German Marks (“DEM”), on account of his foreign currency savings; (ii) 37,460,000,000 Yugoslav Dinars (“YUD”), for his legal costs; and (iii) the statutory interest due in respect of the latter as of 27 September 1993.
13. On 20 March 1996 the District Court in Subotica upheld this judgment, adding that the respondent bank should also pay interest on the sum of DEM 15,584.41 which had been awarded. In particular, this interest was to be paid as of 1 January 1993, based on the DEM sight deposit rate (kamata na štedne uloge po viđenju).
14. On 2 October 1996 the Supreme Court rejected the respondent's appeal on points of law (revizija) and confirmed the District Court's judgment.
15. On 24 April 2001 and 26 September 2001, respectively, the applicant filed two separate requests with the Municipal Court in Subotica, seeking enforcement of the above judgment by means of a bank account transfer.
16. On 2 April 2002 the Municipal Court rejected those requests, stating that, under the relevant domestic legislation, all judicial enforcement proceedings aimed at the collection of foreign currency deposits had to be discontinued.
17. On 30 March 2004 the bank confirmed that the applicant's foreign currency savings had been converted into a public debt in the amount of EUR 8,740.18.
18. As of 1 March 2007 the applicant was still owed EUR 6,652, having in the meantime, in several instalments and on various grounds, been reimbursed a total of EUR 2,088.18.
19. There is no information in the case file whether the applicant received any payments thereafter.
20. Articles 1, 2, 3 and 4 provided that all foreign currency savings deposited with “authorised banks” before 18 March 1995, including explicitly the deposits held by the bank at issue in the present case, were to become a public debt.
21. Under Article 10, the State's responsibility in that respect was to be fully honoured by 2012 through the payment of specified amounts, plus interest, and according to a certain time-frame.
22. Article 22 provided that, as of the date of this Act's entry into force (12 December 1998), “all pending lawsuits, including judicial enforcement proceedings, aimed at the collection of the foreign currency covered by this Act shall be discontinued.”
23. This Act repeals the Act described above. In so doing, however, it explicitly acknowledges as part of the public debt all deposits previously recognised as such (in the total amount of EUR 4.2 billion as of 31 March 2002). It modifies the time-frame for honouring the debt in question (from 2012 to 2016) and specifies amended amounts, plus interest, to be paid annually.
24. Pursuant to Article 13, the banks' clients can make use of their deposits converted into Government bonds in order to pay taxes or indeed, under Articles 12 and 14, in advance of the said time-frame, for a number of purposes such as buying State property, taking part in the privatisation of State-owned businesses and banks, as well as, under certain conditions and up to a specified amount, the payment of medical treatment, medication and funeral costs.
25. In accordance with Articles 10 and 11, former clients of the banks in question may sell the said bonds on the stock exchange or to other banks or individuals. Such trading is exempt from all taxation.
26. Article 36 reaffirms that “all lawsuits aimed at the collection of the foreign currency savings covered by this Act, including the judicial enforcement proceedings, shall be discontinued.”
27. This Act has been in force since 4 July 2002. It was subsequently amended on two occasions, but these amendments concerned peripheral issues unrelated to the savers above-described status.
28. Articles 199 and 200 provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of “personal rights” (prava ličnosti) may, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction.
29. Article 379 § 1 provides, inter alia, that all claims recognised by a final court decision shall become time-barred within ten years, including those claims which would otherwise have become time-barred within a shorter period of time.
30. Article 360 § 3 provides that courts shall not take into account whether a given claim is time-barred unless and until there is a specific objection by the debtor to this effect.
31. Article 1 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim in YUD until the date of its settlement (which includes awards granted by final court judgments).
32. Article 2 states that such interest shall be calculated on the basis of the official retail price index (mesečna stopa rasta cena na malo) plus another 0.5% monthly (mesečna fiksna stopa).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-67138
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: RIEBERER AND ENGLEITNER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants, Ernst Rieberer and Gottfried Engleitner are Austrian nationals, who were born in 1951 and 1962 respectively and live in Vienna and Mitterbach. They were represented before the Court by Mr A. Friedberg, a lawyer practising in Vienna. The respondent Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1992 the applicants concluded a sales contract with the A. company in respect of real estate situated in Mitterbach.
On 21 April 1994 the applicants requested to be entered in the land register as owners.
On 4 May 1994 bankruptcy proceedings were opened as regards the A. company.
On 4 May 1994 the Lilienfeld District Court (Bezirksgericht) ordered the entry of the applicants as owners in the land register. Consequently, the applicants were entered in the land register.
On 22 June 1994 the St. Pölten Regional Court (Landesgericht) quashed this decision upon the appeal of the A. company's bankruptcy trustee. It noted that a chair lift was situated on the real estate. It therefore qualified as a railway facility within the meaning of Section 26 § 4 of the Railway Act (Eisenbahngesetz) and no entry could be made in the land register until the sales contract had been approved by the competent authority under that Act. The applicants did not appeal to the Supreme Court against this decision.
Thereupon, on 4 July 1994 the Lilienfeld District Court amended the land register, cancelling the entry of the applicants as owners.
On 14 September 1994 the A. company, represented by its bankruptcy trustee, requested the Lower Austria Regional Governor (Landeshaupt-mann) to approve the sales contract.
On 2 December 1994 the Lower Austria Regional Governor refused the request, finding that due to the sales contract the A. company could no longer fulfil the legal obligations resulting from its licence to run the chair lift on the real estate at issue. Therefore, the transaction ran counter to the public interest. This decision was served on the A. company but, erroneously, not on the applicants. On 19 December 1994 the A. company filed an appeal.
On 4 October 1995 the Federal Minister of Public Economy and Transport (Bundesminister für öffentliche Wirtschaft und Verkehr) dismissed the A. company's appeal. This decision was served on the applicants.
Subsequently, on 20 November 1995, the applicants filed a complaint with the Administrative Court (Verwaltungsgerichtshof). In these and the subsequent proceedings the applicants were represented by counsel.
On 20 December 1995 the Administrative Court rejected the applicants' complaint. It noted that the applicants had not appealed against the Regional Governor's decision of 2 December 1994 and had therefore not exhausted available remedies.
On 11 April 1996 the second applicant requested the Lower Austria Regional Governor to approve the sales contract.
On 26 July 1996 the Lower Austria Regional Governor dismissed the second applicant's request.
On 17 January 1997 the Federal Minister for Science, Traffic and Art (Bundesminister für Wissenschaft, Verkehr und Kunst) rejected the second applicant's appeal. Subsequently, the latter lodged a complaint with the Constitutional Court.
On 31 July 1997 the Constitutional Court refused to deal with the second applicant's complaint for lack of prospects of success and transmitted the case to the Administrative Court.
On 22 September 1997 the second applicant supplemented his complaint to the Administrative Court.
On 25 September 1997 the Administrative Court instituted preliminary proceedings.
On 18 February 1998 the Administrative Court dismissed the second applicant's complaint. Noting that the Regional Governor's decision of 2 December 1994 had become binding in respect of the A. company, it found that a separate request for approval of the sales contract by the second applicant did not justify a review of the case. However, according to the relevant provision of the General Administrative Procedure Act (see domestic law part below), the second applicant had been party to the above proceedings. He had been “omitted” in the proceedings, as the Regional Governor's decision had not been served on him. In accordance with the relevant case-law, it was up to him to request that a copy of that decision be served on him, so as to enable him to file an appeal against it.
On 11 May 1998, upon the applicants' requests made in April 1998, they were served the Regional Governor's decision of 2 December 1994.
On 18 December 1998 the Federal Minister for Science and Traffic (Bundesminister für Wissenschaft und Verkehr) dismissed the applicants' appeals.
On 1 February and on 2 February 1999, respectively, the applicants filed a complaint with the Constitutional Court (Verfassungsgerichtshof).
On 15 March 1999 the applicants supplemented their complaints.
On 7 June 1999 the Constitutional Court declined to deal with the applicants' complaints and transmitted the case to the Administrative Court.
On 17 August 1999 the applicants supplemented their complaint with the Administrative Court. On 30 August 1999 the Administrative Court instituted preliminary proceedings. On 13 October 1999 the applicants submitted supplementary observations. On 2 December 1999 the Federal Minister filed his comments. On 14 December 1999 the first applicant filed further submissions. On 26 January 2000 the Federal Minister commented on these statements.
On 3 May 2000 the Administrative Court quashed the Federal Minister's decision of 18 December 1998. It noted, in particular, that the Minister had wrongly applied Section 26 § 4 of the Railway Act. The transaction did not run counter to public interest as the bankruptcy trustee of the A. company had returned the licence for operating the chair lift in January 1997 and the real estate at issue did therefore no longer qualify as a railway facility.
On 12 July 2000 the Federal Minister for Traffic, Innovation and Technology (Bundesminister für Verkehr, Innovation und Technologie) quashed the Regional Governor's decision of 2 December 1994.
In the meantime, the relevant legislation was changed and an approval of the transaction under the Railway Act was no longer required at all.
On 29 August 2000 the applicants requested the Lilienfeld District Court to enter the contract into the land register.
On 4 October 2000 the Lilienfeld District Court dismissed the applicants' request.
On 22 February 2001 the St. Pölten Regional Court dismissed the applicants' appeal. It noted that the sales contract had not been approved under the Railway Act before the expiry of the validity of the rank of creditors in the bankruptcy proceedings concerning the A. company. Therefore, the real estate at issue had fallen into the bankrupt's assets and had been sold by the bankruptcy trustee.
On 29 May 2001 (served on 14 August 2001) the Supreme Court rejected the applicants' extraordinary appeal on points of law.
1. Under Article 431 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) the procedure for the acquisition of real property is the entry of the acquisition title in the land register (see also Section 4 of the Land Register Act - Grundbuchsgesetz).
Under Section 94 § 1 of the Land Register Act the Land Register Court can not proceed to enter a transaction in the land register until the transaction which is subject to approval has been approved by the competent authority.
2. Under the Section 26 §§ 3 and 4 of the Railway Act (Eisenbahngesetz) as in force at the relevant time, a sales contract concerning a train, a railway or real property qualified as railway facility was subject to approval by the competent authority. A sales contract without this approval was null and void (§ 5).
3. The procedure concerning the approval was governed by the General Administrative Procedure Act 1950 (Allgemeines Verwaltungsverfahrens-gesetz), section 8 of which reads as follows:
"Persons who ... take part in the proceedings on the basis of a right granted to them or an interest protected by the law ... are parties [to the proceedings]."
According to the case-law of the Administrative Court a person is regarded as a party whenever an administrative measure has a direct bearing on his or her personal rights.
4. Section 62 of the General Administrative Procedure Act provides that decisions of administrative authorities can be issued either by oral announcement or in a written form. According to the constant doctrine and the case-law of the Administrative Court, a decision of an administrative authority does not produce any legal effects on a party to which it had not been notified (see Antoniolli-Koja, Allgemeines Verwaltungsrecht, third edition, pp. 299, 581, with reference to Administrative Court VwSlg 8482A/1973, 8494A/1973, 9547A/1978, 9634A/1978, 10.542A/1981 and VwSlg 814A/1949, 8057 A/1971). An “omitted party” (übergangene Partei) can, therefore, in principle not take any legal remedies against the decision at issue. This party can, however, request a declaratory decision concerning its standing as a party in the proceedings at issue or request the service of the decision and file an appeal once the decision had been served upon it. (see Antoniolli-Koja, Allgemeines Verwaltungsrecht, cited above, p. 299 with reference to Administrative Court VwSlg 5794A/1962 ).
5. By virtue of Article 130 of the Federal Constitution (Bundesverfassungsgesetz), the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful. Pursuant to Article 131 the application may be brought by any person claiming a violation of his or her rights by the administrative decision, provided that this person has exhausted all other remedies.


ITEMID: 001-5093
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: CASELLI v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national, born in 1959 and living in Florence.
A.
G.S and R.S. were the owners of an apartment in Florence, which they had let to E.Z.
In a writ served on the tenant on 22 June 1987 they communicated their intention to terminate the lease and summoned him to appear before the Florence Magistrate.
By a decision of 13 July 1987, which was made enforceable on 18 March 1988, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 31 December 1988. Enforcement proceedings were subsequently started.
On 30 December 1992, the applicant became the owner of the apartment.
On 12 October 1994, a notice was served on the tenant requiring him to vacate the premises.
On 25 November 1994, a notice was served on the tenant informing him that the order for possession would be enforced by a bailiff on 13 December 1994.
Between 13 December 1994 and 30 May 1996, the bailiff made 4 attempts to recover possession, on 13 December 1994 ,14 June 1995, 9 January 1996 and 30 May 1996, but to no avail, as the applicant was never granted the assistance of the police enforcing the order for possession.
In the meantime, on 19 January 1996, the applicant had made a statutory declaration that he urgently required the premises as accommodation for himself.
On 8 October 1996, the applicant and the tenant reached an agreement, as a result of which, on 30 October 1996, the tenant vacated the premises.
B. Relevant domestic law
The relevant domestic law is described in the Immobiliare Saffi v. Italy judgment of 28 July 1999, to be published in the Court’s official reports, §§ 18-35.


ITEMID: 001-76729
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF AISTOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 5. The applicant was born in 1971 and resides in the town of Armyansk, the Autonomous Republic of Crimea, Ukraine.
6. The applicant instituted proceedings in the Novogrodovskiy Town Court of Donetsk Region against the Novogrodovskaya Mining Company No. 1/3 – a State-owned enterprise – to recover salary arrears.
7. On 25 April 2002 the Novogrodovskiy Town Court found in favour of the applicant (Решение Новогродовского городского суда Донецкой области) and awarded him UAH 4,087.29. On 5 June 2002 the Novogrodovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Новогродовского городского управления юстиции) initiated the enforcement proceedings.
8. By a number of decisions of the Commercial Court of the Donetsk Region, the Bailiffs’ Service had been prohibited from selling the property of the Mining Company, due to the bankruptcy proceedings which had been initiated against the company.
9. In August 2004 the judgment in the applicant’s favour was enforced in full.
10. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57561
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1983
DOCNAME: CASE OF PRETTO AND OTHERS v. ITALY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
JUDGES: C. Russo
TEXT: 9. Mr. Rodolfo Pretto, an Italian citizen, for more than forty years farmed, with the help of members of his family, land at Villaganzerla Castegnero (Vicenza) of which he was the tenant.
In 1971, the owner entered into a preliminary contract with a certain Mr. S. for the sale of the property at a price of 27 million Lire. In accordance with section 8 of the Agricultural Land Development Act (Act no. 590 of 26 May 1965 - "Disposizioni per lo sviluppo della proprietà coltivatrice"), he informed Mr. Pretto of the conclusion of this contract.
Mr. Pretto gave notice of his intention to exercise the right of pre-emption ("diritto di prelazione") conferred on him by the same Act. Nevertheless, by deed dated 9 June 1971, the owner sold the land to the brother-in-law of Mr. S. for the price that had been agreed with the latter.
10. On 24 September 1971, Mr. Pretto brought an action before the Vicenza Regional Court seeking the re-sale of the land to him by the new owner (azione di riscatto). He complained of the failure to respect his right of pre-emption and alleged that the price indicated in the contract was fictitious: according to the Agricultural Inspector’s valuation, the land was in fact only worth about 12 million Lire. The applicant stated that he was willing to offer the new owner the price actually paid or, alternatively, the price shown in the sale contract or, in the further alternative, such price as the Regional Court might determine.
The defendant pleaded that the action was inadmissible since Mr. Pretto had not made an unconditional offer of the price mentioned in the contract. He also claimed that the plaintiff could in any event no longer avail himself of his right of pre-emption as he had not paid the said amount within the three-month period laid down by section 8 of Act no. 590.
11. The Regional Court gave judgment on 21 March 1973. It held that Mr. Pretto was entitled to have the land re-sold to him at the price specified in the contract, such price to be paid not later than one month and twenty-one days from the date on which the judgment became final.
12. On 7 July 1973, the new owner appealed to the Venice Court of Appeal which, after postponing the hearings three times at the request of both parties, reversed the Regional Court’s decision by a judgment of 8 October 1974, which was deposited in the Court of Appeal’s registry on 12 December. The Venice Court found that although Mr. Pretto’s action had been admissible, he was estopped from availing himself of his right to obtain a re-sale since he had not paid the price stated in the sale contract within three months of the commencement of the proceedings at first instance. It held that this time-limit had to apply, by analogy with the rules on the exercise of the right of pre-emption (section 8 of Act no. 590).
13. On 12 February 1975, Mr. Pretto appealed on points of law to the Court of Cassation. The respondent lodged a cross-appeal (ricorso incidentale) on 26 March 1975 and the applicant filed a reply thereto (controricorso al ricorso incidentale) on 3 May 1975.
On a date which it has not been possible to trace (see paragraph 8 in fine above), the President of the 3rd Civil Chamber of the Court of Cassation directed that the hearings be held on 18 February 1976. The applicants claimed that previously Mr. Pretto had twice asked for the case to be dealt with, but that for reasons beyond their control they were unable to prove this.
On 12 February, Mr. Pretto filed a supplementary memorial; under Article 378 of the Code of Civil Procedure, he was permitted to do so up to the fifth day before the hearings.
On 18 February, the 3rd Civil Chamber postponed the hearings: as section 8 of Act no. 590 had given rise to conflicting judicial decisions, it considered it preferable to await the ruling of the plenary Court of Cassation on other appeals bearing on the same point.
The plenary Court was to have sat on the following day, but in fact did not give judgment until 10 June 1976. On 19 October, the 3rd Civil Chamber applied that decision and dismissed Mr. Pretto’s appeal; it confirmed the Venice Court of Appeal’s interpretation of section 8 of Act no. 590. The full text of the judgment was made public by being deposited in the Court of Cassation’s registry on 5 February 1977. Article 133 of the Code of Civil Procedure, which save for some rare exceptions applies to all civil court judgments, whether rendered at first instance, on appeal or on cassation, in fact provides (translation from the Italian):
"The judgment (sentenza) shall be made public by being deposited in the registry of the court which delivered it. The Registrar shall record at the bottom of the judgment that it has been deposited, adding the date and his signature; within the next five days, he shall advise the parties (parti che si sono costituite) of the deposit by means of a written notice which shall contain the operative provisions of the judgment."
Under Article 120 of Royal Decree no. 1368 of 18 December 1941 (rules on the application of the Code of Civil Procedure and transitional provisions), the deposit has to be effected within thirty days of the examination of the case.
14. On 24 June 1977, the judgment was served on Mr. Pretto by the respondent and thereupon became enforceable.
15. Anyone can consult or obtain copies of the judgments of the Court of Cassation on application to its registry. If judgments contain features that are novel from the point of view of interpretation of the law, they may be published.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61900
LANGUAGEISOCODE: ENG
RESPONDENT: AND
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF PLA AND PUNCERNAU v. ANDORRA
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (ratione materiae);Violation of Art. 14+8;Not necessary to examine Art. 8;Just satisfaction reserved
JUDGES: Nicolas Bratza
TEXT: 10. The first applicant, Mr Antoni Pla Puncernau, who was born in 1966, is the adopted son of the second applicant, Mrs Roser Puncernau Pedro. The second applicant was the first applicant’s supervisor, as Mr Pla Puncernau is mentally handicapped. They both lived in Andorra. She died when the proceedings were still pending before the Court.
11. In 1949 Mrs Carolina Pujol Oller, the widow of Francesc Pla Guash, died leaving three children: Francesc-Xavier, Carolina and Sara. She had made a will before a notary in 1939. Under the seventh clause of her will, she settled her estate on her son, Francesc-Xavier, as tenant for life. Should he be unable to inherit, the estate was to pass to his sister, Carolina, and if she was also unable to inherit, it was to pass to Sara’s son, Josep Antoni Serra Pla.
12. The testatrix indicated that Francesc-Xavier, the beneficiary and life tenant under her will, was to transfer the estate to a son or grandson of a lawful and canonical marriage. To that effect she had inserted the following clause in her will: “The future heir to the estate must leave it to a son or grandson of a lawful and canonical marriage ...” (“El qui arribi a ésser hereu haurà forçosament de transmetre l’herència a un fill o net de legítim i canònic matrimoni ...)”.
Should those conditions not be met, the testatrix had stipulated that the children and grandchildren of the remaindermen under the settlement would be entitled to her estate.
13. The beneficiary under the will, Francesc-Xavier, contracted canonical marriage to the second applicant, Roser Puncernau Pedro. By deed drawn up on 11 November 1969 before a notary in La Coruña (Spain), they adopted a child, Antoni, in accordance with the procedure for full adoption. They subsequently adopted a second child.
14. In 1995 Francesc-Xavier Pla Pujol made a will in which he left 300,506 euros (EUR) to his son, Antoni (the first applicant), and EUR 180,303 to his daughter. He named his wife, Roser (the second applicant), sole heir to the remainder of his estate. In a codicil of 3 July 1995, Francesc-Xavier Pla Pujol left the assets he had inherited under his mother’s will to his wife for life and to his adopted son, Antoni, as remainderman. The assets in question consisted of real estate. On 12 November 1996 Francesc-Xavier Pla Pujol died. The codicil was opened on 27 November 1996.
15. Accordingly, the only potential heirs to the estate under the will are the applicants, Antoni Pla Puncernau and his mother, and two sisters, Carolina and Immaculada Serra Areny, who are the great-grandchildren of the testatrix.
16. On 17 July 1997 Carolina and Immaculada Serra Areny brought proceedings in the Tribunal des Batlles of Andorra to have the codicil of 3 July 1995 declared null and void and seeking an order requiring the applicants, as defendants in the proceedings, to return to the plaintiffs all the assets of the estate of Carolina Pujol Oller, their great-grandmother, and to pay them damages for unlawful possession of the assets.
17. In a judgment delivered on 14 October 1999, after hearing submissions from both sides, the Civil Division of the Tribunal des Batlles of Andorra dismissed the action for the following reasons:
“ ...
III. Both parties agree that it is the contents of the will that determine the testatrix’s intention at the time of making it, so that the will has to be interpreted in accordance with that intention, which is to be inferred from the words used in the will (Digest 50, 16, 219). Since 1941 it has been apparent from the case-law of the Andorran courts (judgment of the Judge of Appeals dated 3 February 1941) that ‘on both a partially intestate and a testate succession it is principally the testator’s intention that must be taken into account, as can be inferred from many provisions of Roman and canon law ...’
IV. In her will dated 12 October 1939, the testatrix stipulated that ... ‘The future heir to the estate must leave it to a son or grandson of a lawful and canonical marriage ...’ [‘El qui arribi a ésser hereu haurà forçosament de transmetre l’herència a un fill o net de legítim i canònic matrimoni ...’].
In doing so, the will in question set up a family settlement si sine liberis decesserit. An analysis of this type of settlement shows that the purpose is to secure and preserve the estate by keeping it in the settlor’s family.
V. In interpreting the contents of the will in question, account has to be taken, as has previously been stated, of the testatrix’s intention in the light of the words used and the actual nature of the society in which she lived.
When the will was made, the Constitution had not been enacted and there was no ordinary statute or other relevant analogous provisions. Consequently, for the purposes of interpreting the wording in the will reference has to be made to customary law, the ius commune, deriving from the influence of Roman law as amended by canon law, and to the relevant case-law of the Andorran courts ... Foreign legislation, case-law and legal theory cannot apply in the present case.
The Corpus Iuris provided for the institution of adoption and included in the word ‘child’, children born out of wedlock and adopted children ... by providing for two forms of adoption: one undertaken under the authority of a princep and the other before a judge. The procedure followed in the first case was to ask the adoptive parent if he sought to take the adopted child as his legitimate child and to ask the adopted child if he consented. It was also stipulated that ‘a consanguineous relationship is not instituted by deed but by birth or solemn adoption’ (Diocletian and Maximianus, Codi 4, 19, 13). Furthermore, ‘the father-child bond is not created by mere declarations or false assertions, even if both parties consent, but only by lawful marriage or solemn adoption’ (Diocletian and Maximianus, Codi 4, 19, 14) ...
Consequently, according to the Roman concept of adoption, the adopted child leaves his family of origin and terminates all legal connection with it. On doing so he becomes the son of the adoptive parent’s family and, as such, takes the family name and above all acquires inheritance rights. This institution has essentially been used for inheritance purposes. Subsequently, two forms of adoption became available: full adoption and simple adoption [menys plena], the sole purpose of the latter being to safeguard the adopted child’s rights over the adoptive parent’s estate. Full adoption is based on the idea that adoption must replace or imitate biological filiation.
...
VI. ... If account is taken of the fact that adoption is a legal institution whose purpose is to enable childless couples to have children ... At that time adoption therefore already satisfied a need, with the adopted child being regarded as a legitimate child. That approach was subsequently confirmed by the Constitution and by statute.
It cannot therefore be said that, by inserting that clause, the testatrix intended to prevent adopted or non-biological children from inheriting her estate. If that had been her intention, she would have made express provision for it.
Accordingly, the codicil made by the late heir, Francesc-Xavier Pla Pujol, is compatible with the deceased Carolina Pujol Oller’s will and cannot be declared null ...”
18. The Serra Areny sisters appealed to the High Court of Justice of Andorra. In a judgment delivered on 18 May 2000, after hearing submissions from both sides, the High Court set the lower court’s judgment aside. It allowed the appeal, set aside the codicil of 3 July 1995, declared that the appellants were the legitimate heirs to their great-grandmother’s estate and ordered the applicants to return the property in question. The grounds for the court’s judgment were as follows:
“II. ... Accordingly, the fundamental question to be resolved in the instant case is whether a child who has been adopted in accordance with the procedure for full adoption can be regarded as a child of a lawful and canonical marriage, as required by the testatrix ...
III. This question has to be resolved in accordance with the legal rules on the relationship of adopted children to their adoptive parents that were in force in 1939 and 1949, that is, between the time when Mrs Carolina Pujol i Oller made her will and the date of her death. A will becomes a legal deed from the date on which it is made in accordance with the statutory formalities. Accordingly, in interpreting the testamentary dispositions, regard must be had in the instant case to the legal position of adopted children in the social and family conditions existing in 1939 when the will was made and possibly in 1949 when the testatrix died ...
Legal commentators with first-hand experience of Andorran life stress that adoption is practically unheard of in Andorra (Brutails: ‘Andorran customs’, p. 122). That assertion is borne out by all the Andorran case-law reports, in which there is no reference to adoption. This silence on the subject is perfectly understandable, moreover, given that the provisions of Roman law on adoption could not easily be transposed to Andorran families living in the first half of the twentieth century for the following reasons: since the nineteenth century it could be regarded as an institution that had become obsolete and, to a certain extent, unnecessary given that the main purpose – to appoint a successor or heir – had been achieved in the Principality of Andorra through the institution of heretament (agreement, specific to Catalan law, on the succession of a living person), introduced by customary law. In that social and family context, it is difficult to sustain the proposition that, in setting up a family settlement in case her heir should die without leaving offspring of a lawful and canonical marriage, the testatrix was also referring to adopted children, given that, at the time, adoption was not an established institution in the Principality of Andorra.
The fact that in the instant case the adoptive parents were married to each other does not make their adopted child a legitimate child or a child born of the marriage. The distinction according to whether a child was born in or out of wedlock is relevant only to illegitimate children ... with regard to adopted children, the distinction according to whether a child was born in or out of wedlock does not apply. Accordingly, a child adopted by a couple is an adopted child and not a legitimate child or a child of the marriage.
Furthermore, the notarially recorded deed of adoption was drawn up in Spain in accordance with the Spanish procedure for full adoption ... The Law of 24 April 1958, amending the Civil Code, is applicable to the conditions and general effects of full adoption. Under that Law, the act of adopting a child gave him or her the status of the adoptive father/mother’s child, but did not give the child family status with regard to the adoptive parents’ family. Under Article 174-VII of the Spanish Civil Code, adoption created a filial tie between the adoptive parent, the adopted child and his or her legitimate descendants, but not with the adoptive parent’s family. Moreover, the inheritance rights were also limited in the present case: the deed of adoption referred to the relevant 1960 Catalan legislation, that is, a compilation of 1960 Catalan civil law. Article 248 provided that on an intestate succession adopted children were entitled to inherit only from their adoptive father or mother and not from the rest of their adoptive parents’ family. That rule reflected the idea that adoption created only a filial status and not a family status.
IV. Accordingly, from a legal standpoint, the adopted children of persons on whom an estate was settled by their father or mother were unconnected with the family circle with regard to the beneficiary’s ascendants. That approach can largely be explained by the minimal impact of adoption on the social and family consciousness in Andorra, both at the time when the will was made and when the testatrix died. The testatrix’s presumed intention has to be established in the light of the circumstances existing at the time of her death. The adopted children of her legitimate son or of the marriage were unconnected with the family circle both from a legal and a sociological point of view.
The purpose of a family settlement si sine liberis decesserit under Catalan law is to keep the family estate in the legitimate or married family and Catalan legal tradition has always favoured the exclusion of adopted children from such family settlements ... Thus, in order for adopted children to inherit under this type of settlement, there must be no doubt as to the testatrix’s intention to depart from the usual nature of this institution. In the instant case, the expression ‘offspring of a lawful and canonical marriage’, which appears in the 1939 will, does not suffice to infer that the testatrix intended to depart from the usual meaning given to family settlements si sine liberis decesserit under the Catalan and Andorran law of succession.
V. It is apparent from the foregoing that, although the law in force when the child was actually adopted allowed adopted children to inherit from their adoptive parents on an intestate succession (code 8, 48, 10), those rights cannot extend to a testate succession, where the main factor is the testator’s intention. Accordingly, any doubt as to the scope of the expression ‘offspring of a lawful and canonical marriage’ falls away when the testatrix’s intention is analysed in the light of the social, family and legal conditions in which she lived. In the present case, nothing militates in favour of including the life tenant’s adopted children, given the minimal impact of adoption on Andorran family and inheritance law, the adopted child’s status as the adoptive parents’ child (son) but not as a member of the parents’ family, the purpose traditionally ascribed to family settlements under Catalan law, and Catalan and Andorran legal tradition.”
19. The applicants lodged an application with the High Court of Justice to have the proceedings set aside. They submitted that the latter had breached the principle of equality before the law enshrined in Article 6 of the Andorran Constitution and that they had breached Article 10 (right to judicial protection and to a fair trial) of the Andorran Constitution. In a decision of 28 June 2000, the High Court of Justice dismissed their application as ill-founded.
20. The applicants lodged an empara appeal with the Constitutional Court against the decisions of the High Court of Justice. They alleged a violation of Article 13 § 3 (principle of children’s equality before the law regardless of filiation) and Article 10 (right to judicial protection and a fair trial) of the Andorran Constitution. In a decision of 13 October 2000, the Constitutional Court declared their appeal inadmissible for the following reasons:
“... It seems clear that the judgment of the High Court of Justice is limited to clarifying and determining, that is, interpreting, a specific point concerning the testatrix’s intention, as expressed in her will in the form of a family settlement in favour of a child or grandson of a lawful and canonical marriage.
The High Court of Justice does not at any point suggest that there is general discrimination against, or inequality between, children according to whether they are biological or adopted. Such an assertion would evidently amount to a flagrant breach of Article 13 § 3 of the Constitution and would also be contrary to the prevailing legal opinion according to which legal systems must always be interpreted, which is that all children are equal, irrespective of their origin. However, as submitted in substance by State Counsel, ‘discrimination against adopted children as compared to biological children does not in the instant case derive from an act of the public authorities, that is, from the judgment of the Civil Division of the High Court of Justice, but from the intention of the testatrix or settlor regarding who should inherit under her will’ in accordance with the principle of freedom to make testamentary dispositions, which is a concrete manifestation of the general principle of civil liberty.
In its judgment, the High Court of Justice confined itself to interpreting a testamentary disposition. It did so from the legal standpoint it considered adequate and in accordance with its unfettered discretion, seeing that the interpretation of legal instruments is a question of fact which, as such, falls under the jurisdiction of the ordinary courts.
...”
21. The applicants lodged an appeal (recurso de súplica) with the Constitutional Court, which dismissed it on 17 November 2000.
22. Articles 6, 13 and 14 of the Andorran Constitution of 14 March 1993 provide:
“1. Everyone is equal before the law. No one may be discriminated against on grounds of birth, race, sex, origin, religion, opinions or any other personal or social condition.
2. The public authorities shall create the conditions necessary to give full effect to the principles of equality and freedom.”
“1. The civil status of persons and forms of marriage shall be regulated by law. Canonical marriages are recognised as having civil effects.
...
3. Both spouses have the same rights and duties. All children are equal before the law, regardless of their filiation.”
“Everyone has the right to respect for their privacy, honour and image. Everyone is entitled to legal protection from unlawful interference with their private and family life.”
23. Section 24 of the Special Law (qualificada) of 21 March 1996 on the adoption and protection of minors in distress provides:
“... Adopted children have the same rights and obligations within the adoptive family as legitimate children.”
VIOLATED_ARTICLES: 14
8


ITEMID: 001-93790
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KLIMENKO AND OSTAPENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The first applicant was born in 1948 and the second applicant in 1952. They live in Bataysk, the Rostov Region.
6. The applicants, Chernobyl victims, were in receipt of a monthly pension and a special “food allowance” from the State. They brought proceedings against the regional social security office (“the defendant”) claiming recalculation of the pension and the allowance in line with the increase of the minimum subsistence amount.
7. On the dates listed below the Bataysk Town Court of the Rostov Region granted the applicants’ claims and ordered the increase of the allowance and its subsequent index-linking. In re-calculating the amounts to be paid the court applied the multiplier of 1.92 reflecting the increase of the minimal subsistence amount in the Rostov Region. The judgments acquired legal force, as upheld on 16 April 2003 by the Rostov Regional Court.
8. On 13 May 2003 the defendant appealed to the Regional Court by way of supervisory review of the judgments.
9. On 30 June 2003 the judge rapporteur refused to initiate the supervisory review proceedings and to remit either of the two cases for examination on the merits to the Presidium of the Rostov Regional Court (“the Presidium”).The defendant complained to the President of the Regional Court about the judgments in the applicants’ favour and the judge rapporteur’s decision of 30 June 2003.
10. On 19 September 2003 the President of the Rostov Regional Court and on 24 October 2003 judge B. of the Regional Court allowed the defendant authority’s applications for supervisory review of the judgments in the first and the second applicants’ favour respectively and sent the cases for examination on the merits to the Presidium. These decisions referred to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur’s decision of 30 June 2003.
11. On the dates listed in the Appendix the Presidium, by way of supervisory review, quashed the first instance and the appeal judgments on the ground that that the lower courts had applied an incorrect multiplier to the applicants’ cases, and remitted the cases for a fresh examination to the first instance court.
12. On 25 December 2003 the Bataysk Town Court examined the cases anew. The court, by a single judgment, established that the allowance due to the applicants should have been multiplied by 1.25 in 2002 and by 1.26 for 2003. The court restored in the favour of each applicant 34,500 Russian roubles (RUB) for the period between 1 January 2002 and 1 January 2004 and established that as of 1 January 2004 they were entitled to the monthly compensation in the amount of RUB 3,937.50, to be index-linked in future. The judgment was not appealed against and became final ten days later.
13. In 2004 and 2005 the second applicant brought further court proceedings for adjustment of the allowance. On 22 April 2004 and 12 September 2005 the Bataysk Town Court granted his claims and ordered the allowance to be increased by application of the multipliers of 1.16 and 1.08 respectively and to pay him arrears for the periods from 1 to 30 April 2004 and from 1 January to 30 June 2005.
14. As follows from the Government’s additional observations, on 31 October 2006 the second applicant applied for annulment of these two judgments and the award of 25 December 2003 due to discovery of new circumstances. On 15 February 2007 the request was granted by an unspecified court. The judgments of 25 December 2003, 22 April 2004 and 12 September 2005 were annulled on account of discovery of unspecified new circumstances, and the cases were remitted for a new examination.
15. According to the Government, on 13 March 2007 the Bataysk Town Court recovered in the second applicant’s favour RUB 142,027.04 of unpaid allowance in respect of the period from 1 July 2000 to 31 December 2006 and ordered further increase of the monthly payments up to RUB 8,670.75. The scope of the applicant’s claims was not specified by the Government and it is unclear whether these claims had been granted in full or in part. The judgment entered into force on 26 March 2007 and at some point was executed in full.
16. The parties did not submit copies of the judgments of 15 February 2007 and 13 March 2007, the second applicant’s statement of claims in the respective proceedings and his application dated 31 October 2006 for annulment of the earlier judgments.
17. For the relevant provisions on the supervisory-review proceedings contained in the Code of Civil Procedure of the Russian Federation see the Court’s judgment in the case of Sobelin and Others v. Russia (nos. 30672/03 et seq., § 34, 3 May 2007).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1