ITEMID: 001-4979
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: TEWS v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1956 and residing in Linz. He is a lawyer by profession.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
I. Proceedings for reduction of maintenance payments
On 29 April 1991 the Linz District Court (Bezirksgericht) dissolved the applicant’s marriage. The District Court based its decision on an agreement which the applicant and his wife had concluded the same day in court providing, inter alia, for maintenance payments by the applicant to his two children.
On 17 May 1991 the applicant remarried and subsequently adopted the child of his present wife.
On 11 November 1991 the applicant introduced a request with the Linz District Court for reduction of maintenance payments and referred to his new obligation to maintain his present wife and child.
On 14 November 1991 the District Court dismissed the request. On 3 December 1991 the applicant appealed. On 17 December 1991 the District Court nevertheless appointed a book-keeping expert to assess the applicant’s income. On 7 January 1992 the applicant also appealed against this decision. On 10 and 19 March 1992 the District Court heard the parties at the applicant’s request on the appointment of the expert.
On 9 April 1992 the Linz Regional Court (Landesgericht) quashed the District Court’s decision of 14 November 1991 and upheld the District Court’s decision of 17 December 1991 to appoint a book-keeping expert. As regards the decision of 14 November 1991 the Regional Court noted that the issue of the reduction of maintenance payments was closely connected with the provisions in the agreement of 29 April 1991 for the recalculation of maintenance payments. The Guardianship Court (Vormundschaftsgericht) had refused to approve part of the agreement but had failed to decide whether it also disapproved of some remaining provisions relevant to the issue. The District Court should therefore have only decided on the applicant’s request once this issue had been clarified.
On 8 May 1992 the District Court found that there was no need to approve the remaining parts of the agreement of 29 April 1991. The applicant appealed against this decision. On 25 June 1992 the Regional Court quashed the District Court’s decision.
On 9 July 1992 the District Court decided not to give its approval to the remaining part of the agreement of 29 April 1991. It found that it was not in the interests of the children to grant them maintenance payments at a fixed percentage of the applicant’s income. Such a method would not take into account any increasing needs of the children. The applicant appealed against this decision.
On 30 July 1992 the Regional Court dismissed the applicant’s appeal but granted an ordinary appeal on points of law (ordentlicher Revisionsrekurs) as it considered that there existed no case-law on partial approval of maintenance agreements concluded in the course of divorce proceedings.
On 31 August 1992 the applicant introduced the appeal on points of law, which was dismissed on 22 March 1993 by the Supreme Court (Oberster Gerichtshof).
On 18 November 1993 the applicant applied for a time-limit to be fixed for the seeking of the expert opinion. On 9 December 1993 the court file was transmitted to the appointed expert, who submitted his expert opinion to the District Court on 3 February 1994.
On 14 February 1994 the District Court dismissed the applicant’s request for reduction of maintenance payments. The applicant appealed and also challenged the court clerk (Rechtspfleger) for bias.
On 15 April 1994 the Regional Court quashed the District Court’s decision of 14 February 1994. On 29 July 1994 the President of Linz District Court rejected the applicant’s challenge for bias.
On 18 August 1994 the District Court again dismissed the applicant’s request for reduction of maintenance payments. The applicant appealed.
On 29 August 1994 the applicant again challenged the court clerk dealing with his case for bias, as well as the President of the District Court who on 29 July 1994 had rejected the applicant’s previous challenge.
On 29 September 1994 the Regional Court decided the applicant’s appeal against the District Court’s decision of 18 August 1994. It partially confirmed the District Court’s decision and partially granted the applicant a reduction of maintenance payments. On the same day it dismissed the applicant’s bias contention.
On 14 December 1994 the applicant introduced an extraordinary appeal on points of law (außerordentlicher Revisionsrekurs), which on 25 April 1995 was granted by the Supreme Court insofar as it concerned the partial reduction of maintenance payments, referring the case back to the first instance court. It considered that the extraordinary appeal granted only if there is insufficient case-law concerning a legal issue was admissible in the interests of legal certainty and uniformity.
On 11 July 1995 the competent Judge, A.E., requested that the President of the District Court be withdrawn from the case for bias. On 11 September 1995 the applicant filed an application for a time-limit to be set for the delivery of a decision on that request. On 19 September 1995 the President himself requested that he be withdrawn from the case for bias. Both requests were dismissed. Judge A.E.’s further appeal, dated 21 November 1995, was rejected on 7 December 1995.
Meanwhile, on 11 October 1995 the applicant had filed an application challenging the probable substitute Judge G. for bias. Moreover, on 10 November 1995, the applicant filed a motion challenging Judge A.E. for bias. On 19 January 1996 he filed an application for a time-limit to be set for the delivery of a decision on his latter request.
His applications were dismissed on 6 November 1995 and 17 January 1996, respectively. On 22 March 1996 the Linz Regional Court (Landesgericht), following the applicant’s appeal, withdrew Judge A.E. from the case.
On 11 April 1996 Judge K.S. was appointed to deal with the case but was also challenged for bias by the applicant on 17 April 1996. On 29 April 1996 Judge R.K. was appointed to deal with the case.
On 10 July 1996 the court clerk issued a summons for a hearing scheduled for 8 August 1996.
On 22 July 1996 the applicant requested a time-limit to be fixed for the continuation of the proceedings. On 8 August 1996 this application was dismissed because correspondence had crossed.
On 24 July and 23 August 1996 the applicant, and on 14 August 1996 the defendants, filed pleadings with the court.
On 18 September 1996 an expert was appointed in order to establish the applicant’s income and financial position. On the same day the Linz District Court rendered a partial judgment on the maintenance claim, the decision on the remainder being postponed until the delivery of the expert opinion.
On 7 October 1996 the applicant filed a motion requesting a time-limit to be fixed for the delivery of the decision on the reduction of maintenance payments.
On 14 October 1996 the applicant, as well as the defendant, appealed against the District Court’s decision of 18 September 1996. On the same day the District Court, deciding on the remainder of the applicant’s claim, refused the reduction of the maintenance payments and, instead, ordered their increase. It noted that an exact evaluation of the applicant’s financial position had not been possible as the applicant had not provided the expert with the necessary documents. Therefore it had to be presumed that the applicant could afford the fixed amount of maintenance because otherwise he would have given the relevant documents to the expert.
On 18 October 1996 the applicant appealed. On 13 February 1997 the Linz Regional Court partly granted the appeals of 14 and 18 October 1996. The applicant as well as his children appealed from this decision.
On 25 November 1997 the Supreme Court dismissed the appeals. The decision was served on the applicant in January 1998.
II. Official liability proceedings
The applicant instituted official liability proceedings (Amtshaftung) against the State claiming compensation for damages resulting from legal errors and delays caused by the court clerk. His claim related to the written pleadings of 25 August 1993, 23 February 1994, 28 July 1994, 29 August 1994, his motions for a time-limit to be fixed of 18 November 1993 and 23 March 1993, and his appeals of 3 December 1991, 22 May 1992 and 22 February 1994, which had been prompted by the court clerk’s conduct. He argued that the State was also liable for the proper organisation of court proceedings which had failed in his case because a secondary file concerning only the maintenance matters should have been opened much earlier due to the complexity of the litigation.
On 8 June 1995 the Linz Regional Court granted compensation in respect of six pleadings and appeals. It noted in particular that the delay of more than two years, as from 11 November 1991, when the applicant had introduced the request for reduction of maintenance payments, until 9 December 1993, when the file finally had been transferred to the expert, had been too long, which engaged the State’s liability and obligation to pay damages.
The applicant appealed against this decision insofar as his appeal of 3 December 1991 against the Linz District Court’s decision of 14 November 1991 was concerned. He did not appeal against the remainder of the above decision.
On 5 March 1996 the Linz Court of Appeal granted the applicant’s appeal and awarded further damages.


ITEMID: 001-95950
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: TANEVA & OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicants, Ms Katerina Taneva (“the first applicant”), Mr Nikola Dzumaliev (“the second applicant”) and Mr Stojčo Dzumaliev (“the third applicant”), are Macedonian nationals who were born in 1941, 1933 and 1945 respectively and live in Strumica. They were represented before the Court by Ms T. Dedejska, a lawyer practising in Strumica. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1959 and 1961 respectively, the then People’s Council of the Municipality of Strumica (Народен Одбор на Општина Струмица) confiscated two adjacent plots of land (former nos. 168 (1,265 m²) and 171 (2,379 m² ) from members of the applicants’ families.
On 30 December 1992 the Ministry of Finance allocated several plots of land (with different numbering), covering an area of 1,582 m², to a construction company, M., for the construction of a residential building. That decision became final on 6 March 1994. The second and third applicants stated that the decision had not concerned plot no. 171. According to the amended urban development plan of 10 December 1999, a larger residential and business complex was intended to be constructed on that land.
By court decisions of 16 March and 30 May 2001 respectively, it was established that the applicants had inherited a restitution claim (наследник на правото на денационализација) in respect of a property confiscated from the members of their families, and that the property included the plots at issue.
On 30 July 2001 the Ministry of Transport and Communication (“the Ministry”) amended the decision of the Ministry of Finance of 30 December 1992, allocating several plots of land (with different numbering from those indicated in the latter decision, with one exception), the total surface area of which was 2,693 m² , to the M. company for the construction of the residential and business complex as specified in the urban development plan of 1999. According to the second and third applicants, 1,111 m² of plot no. 171 was affected by this decision.
On 12 July 2001 the first applicant submitted a request before the Ministry of Finance for restitution of plot no. 168, which was allegedly still undeveloped given that there were only temporary portakabins at the site.
On 15 April 2002 the Restitution Commission of the Ministry of Finance (“the Restitution Commission”) dismissed the request as ill-founded. On 27 June 2003 the Government Appeal Commission (“the Appeal Commission”) upheld an appeal submitted by the first applicant and annulled that decision. It found that the Restitution Commission had incompletely established the facts as to whether plot no. 168 had been undeveloped.
No further decision has been given in these proceedings.
On 1 June 2001 the second and third applicants submitted a request to the Ministry of Finance for restitution of plot no. 171, which according to them was still undeveloped.
On 5 November 2001 the Restitution Commission dismissed this request, finding that the second and third applicants had already received compensation for the land in two forms: 600 m² had been restored to them and pecuniary compensation had been paid for the remainder. Referring to an on-site examination of 25 September 2001, it found that there had been a construction site of 800 m² on the relevant land which had been allocated, pursuant to the Ministries’ decisions of 30 December 1992 and 30 July 2001, to the M. company for the construction of the residential and business complex, as specified in the urban development plan of 1999.
On 21 December 2001 the second and third applicants appealed, arguing that, inter alia, 1,215 m² of the land had been undeveloped on 1 June 2001, the date of the submission of their restitution claims, and should have been restored to them accordingly; that the Restitution Commission should have applied section 8(2) of the Restitution Act (see “Relevant domestic law” below); that the on-site examination had not been carried out in good time; and that the temporary portakabins had been dismantled on 1 September 2001, when the M. company had started construction works without any valid documentation.
On 19 June 2002 the Appeal Commission dismissed the appeal, under section 8 of the Restitution Act, stating that the second and third applicants had already received compensation and the purpose of the confiscation had been achieved.
On 16 July 2002 the second and third applicants lodged with the Supreme Court an appeal on points of law (тужба за управен спор), claiming that 1,215 m² of the relevant land had still been undeveloped on the relevant date and should have been restored to them accordingly. They further agreed to return the compensation which they had already received for part of the land.
On 28 November 2002 the Supreme Court, relying on section 8(1) of the Restitution Act, upheld the dismissal of the second and third applicants’ claims for restitution of the relevant land. It further held that the land could not be regarded as undeveloped, given the ongoing construction works in accordance with the urban development plan. In this latter connection, the court referred to a construction contract of 12 November 1998 concluded between the M. company and the Ministry of Urban Planning, according to which the Ministry’s administrative offices had been located on the land in question. The fact that the restitution claim had been submitted when those offices had been demolished and the construction site had been in preparation did not mean that the land at issue had been undeveloped.
On 7 April 2003 the public prosecutor informed the second and third applicants that there were no grounds for lodging a request with the Supreme Court for the protection of legality.
On 28 September 2001 the first applicant appealed against the Ministry’s decision of 30 July 2001. It appears that the second and third applicants appealed against that decision as well. No evidence was provided in this latter connection.
On 29 October 2001 the Ombudsman requested the Appeal Commission, as a supervisory body, to annul the Ministry’s decision as contrary to section 72 of the Restitution Act.
On 5 December 2001 the Appeal Commission, acting of its own motion and exercising its supervisory powers (по службена должност, а по право на надзор), annulled the Ministry’s decision. Referring to the applicants’ appeals, the Appeal Commission found the impugned decision contrary to section 72 of the Restitution Act.
On an unspecified date in 2002, the Attorney-General and the M. company challenged the Appeal Commission’s decision before the Supreme Court. No copy of these appeals was communicated to the applicants.
On 3 October 2002 the Supreme Court annulled the decision of 5 December 2001, finding, inter alia, that the Appeal Commission had wrongly regarded the Ministry’s decision as a legal measure or a unilateral declaration within the meaning of section 72(2) of the Restitution Act (see “Relevant domestic law” below). It further found that the land indicated in the Ministry’s decision could not have been regarded as undeveloped for the reasons stated above (in its decision of 28 November 2002). In addition, it referred to the construction, under the contract of 12 November 1998 (see above), of another administrative building which had accommodated civil servants from the provisional administrative offices that had previously been located on the relevant land. The applicants unsuccessfully requested the public prosecutor to institute legality review proceedings before the Supreme Court. Their requests for the reopening of the proceedings have still not been determined.
On 30 December 2002 the Appeal Commission dismissed the first applicant’s appeal and upheld the Ministry’s decision of 30 July 2001.
On 9 February 2006 the Supreme Court allowed an appeal on points of law by the applicants and annulled the Appeal Commission’s decision. It ruled that the applicants’ claims for restitution should have been decided as a preliminary question (претходно прашање) before the land was allocated for construction. It therefore instructed the Ministry to suspend (прекинување) the proceedings pending the outcome of the restitution proceedings.
No further decision has been given in the course of these proceedings.
Section 8(1) of the Restitution Act provides that confiscated property for which compensation has been paid cannot be the subject of restitution. Under subsection 2, in exceptional cases, property for which compensation has been paid can be restored. The claimant is obliged to return the compensation received, in an amount and according to a procedure regulated by a Government decree.
Section 28(2) of the Restitution Act provides that ownership of building land is to be restored where the purpose of confiscation has not been achieved, as well as when that purpose has been achieved and the land, at the time of submission of the restitution claim, was undeveloped.
Section 72(1) and (2) provides that property that is the subject of restitution cannot be disposed of after the entry into force of the Act. Legal measures and unilateral declarations taken contrary to subsection 1 are null and void.
Under section 218(1) and (2) of the Administrative Proceedings Act (“the 1986 Act”), as valid at the material time, an administrative body was obliged to give a decision and serve it on the party concerned within one month after the submission of a request. A party whose request had not been decided within that time-limit could lodge an appeal in the same way as if the request had been dismissed.
Under section 246(2) of the 1986 Act, if an appeal had been submitted in the absence of a decision at first instance, the second-instance body would set a time-limit, of no more than a month, within which the first-instance body should give a decision. In the event of non-compliance, the second-instance body could decide the matter by itself.
The Administrative Proceedings Act of 2005 (“the 2005 Act”), which replaced the 1986 Act, provides for the same rules as the 1986 Act, as indicated above (sections 221(1) and (2) and 246).
Section 16 of the Administrative Disputes Act of 1977 (“the 1977 Act”), provided that a third party directly affected by the annulment of an impugned administrative decision (interested party) was to be treated as a party to the proceedings.
Under section 26 (1) of the Act, if the second-instance body did not give a decision within 60 days, an interested party could lodge an appeal on points of law with the Supreme Court in the same way as if his or her appeal had been dismissed.
Section 26(3) provided that an interested party could ask the second-instance body to decide on his or her request if the first-instance body had failed to issue a decision within 60 days from the submission of that request. If the second-instance body failed to give a decision, the interested party could lodge an appeal on points of law under the conditions specified in subsection 1.
The Administrative Disputes Act of 2006, which replaced the 1977 Act, provides for the same rules as those laid down in section 26 of the 1977 Act (section 22).
Under section 3(2) of the Building Land Act, developed building land is land on which a structure of a permanent nature has been built in accordance with the law.
Several individuals from Strumica sought restitution of part of a plot of land which was allegedly still undeveloped and, under the relevant urban development plan, was set aside for the construction of a residential building. Their claim was dismissed at first and second instance since they had received compensation for the confiscated property. In a decision of 10 September 2003 the Supreme Court annulled the second-instance decision so that the facts could be established with a view to applying section 8(2) of the Restitution Act (U.br.1125/2002).
In a final decision of 30 June 2004 the Restitution Commission accepted the first applicant’s request and restored to her possession a different plot of undeveloped land in Strumica. She was also ordered to return the compensation which had been paid to her predecessor (Дн.бр.19-76/5 (1708-197)).


ITEMID: 001-88661
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SAMOYLOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (procedural aspect);Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych
TEXT: 6. The applicant was born in 1963 and lives in Zelenograd.
7. On 5 February 1999 three police officers from the Metro police (милиция метро) at Leningradskiy railway station in Moscow, L., S. and I., arrested the applicant and another person, R., on suspicion of burglary. They took them to the Komsomolskaya Metro police station for questioning and urged the applicant to confess. The applicant refused and asked to be provided with a lawyer. Angry about this request, the policemen punched the applicant in the upper body and the head.
8. Later, the policemen took the applicant to a special Metro police station for further questioning. According to the applicant, as soon as the interrogation had begun, the policemen beat him to make him sign a confession they had prepared. The applicant refused to sign. Angry about this refusal, the policemen cuffed the applicant’s hands behind his back, dropped him on the floor, and applied electric shocks to his neck, kidney and liver areas and private parts. They kicked the applicant in the stomach, put him in a chair, and beat his head with a document file until he fainted. Fifteen minutes later the policemen told the applicant that they would hand him over to officers from the Sokol district police station because the burglary had been committed in that district.
9. The officers from the Sokol district police station questioned the applicant and placed him in a temporary detention unit. Three days later, the applicant was transferred to remand prison SIZO–48/5.
10. On the applicant’s admission to the prison, the doctor on duty observed injuries on his body. He sent the applicant to a first-aid point to record the injuries.
11. On 10 February 1999 the staff at the first-aid point recorded the following injuries sustained by the applicant:
“Bruises on the soft tissue of the left auricle, right forefinger and right elbow joint and an abrasion on the left shin.”
The applicant explained that the injuries were caused by the ill-treatment he had received from the policemen.
12. On 22 February 1999 the prison administration asked the public prosecutor of the Golovinskiy District to investigate the applicant’s allegation of ill-treatment. The prosecutor referred the request to the Metro public prosecutor (прокурор Московского метрополитена) because it was Metro police officers who had allegedly ill-treated the applicant.
13. The applicant’s criminal case was submitted for trial in the Golovinskiy District Court. At the trial, the court questioned as a witness L., the policeman who had arrested the applicant, who stated that he had not used physical coercion against him. The applicant recognised L. as the man who had beaten him. The court asked the Metro public prosecutor about the results of the inquiry (прокурорская проверка) into the alleged ill-treatment. On 9 June 1999 the Internal Investigations Department of the Moscow police informed the court that the applicant could have been injured when being transported to the remand prison.
14. On 5 October 1999 the court convicted the applicant and R. of burglary and sentenced them to four years and four months’ imprisonment. The court found the applicant’s allegation of ill-treatment unsubstantiated, stating:
“The use of physical coercion [against the applicant and R.] by the policemen has not been corroborated by the results of the inquiry conducted.”
15. On 15 December 1999 the Moscow City Court upheld the applicant’s conviction on appeal.
16. On 26 June 1999 the Metro public prosecutor refused to institute criminal proceedings against the alleged perpetrators on the ground that there was no indication that a crime had been committed. On 31 October 1999 the applicant asked the Moscow public prosecutor to quash the decision of 26 June 1999.
17. On 17 January 2000 the Moscow public prosecutor quashed the decision of 26 June 1999 rendered by the Metro public prosecutor and referred the case back for further investigation.
18. On 24 January 2000 the Metro public prosecutor refused to open criminal proceedings against the policemen for the second time.
19. On 28 January 2004 a Moscow deputy public prosecutor quashed the decision of 24 January 2000, finding that it was superficial. He noted, in particular, that no medical examination had been carried out to establish the method by which the injuries had been inflicted and their gravity and, furthermore, that O. and D., persons who had been detained simultaneously with the applicant and had sustained similar injuries, had not been questioned. He referred the case back for further investigation.
20. On 5 March 2004 the deputy Metro public prosecutor refused to institute criminal proceedings against the policemen for the third time on the ground that there was no indication that a crime had been committed. In the decision it was noted that the policemen L., S. and I., who had arrested the applicant, had stated that they had not used physical coercion against him. Three other policemen, K., Z. and J., who had been on duty at the police station on 5 and 6 February 1999, were also questioned. K. stated that during his shift the applicant had not been brought to the police station. Z. and J. submitted that on 5 February 1999 at around 2 p.m. two persons had been brought to the police station; however, no physical force had been used against them and no procedural steps had been taken that day. O. and D., the persons who had been detained simultaneously with the applicant, could not be questioned because they did not reside in Moscow any more. As regards the injuries noted in the medical report of 10 February 1999, it was impossible to determine when and in what circumstances they had been inflicted.
21. Before 1 July 2002, criminal proceedings in Russia were governed by the 1960 Code of Criminal Procedure of the RSFSR (the old CCP). Under Article 113 of the old CCP, a refusal to open criminal proceedings could be appealed against to a prosecutor or a court. Under Article 220, a refusal by the prosecutor could be appealed against to a higher prosecutor.
22. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (the new CCP). Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.
VIOLATED_ARTICLES: 3


ITEMID: 001-58083
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF VACHER v. FRANCE
IMPORTANCE: 3
CONCLUSION: Lack of jurisdiction (new complaint);Violation of Art. 6-1;Violation of Art. 6-3-b;Violation of Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo
TEXT: 7. Mr Gérard Vacher, a French national, is a company director and lives at Neuilly-sur-Seine.
8. On 21 September 1988 the Public Works Department of the département of Hauts-de-Seine lodged a criminal complaint against the applicant alleging offences under the Town Planning Code and, more particularly, that he had built a wall without first obtaining planning permission.
9. On 9 February 1990 the Nanterre Criminal Court sentenced the applicant to a fine of 8,000 French francs (FRF), payment of which was suspended, and ordered him to alter the wall so that it complied with regulations.
10. On 23 May 1991, following an appeal brought by Mr Vacher on 16 February 1990 and a subsequent cross-appeal by the prosecution, the Versailles Court of Appeal upheld the judgment of the court below in its entirety and further ordered that the wall should be altered to comply with regulations within a period of four months from the date of its judgment, on penalty of FRF 200 per day’s delay starting at the end of that period. It also ordered the applicant to pay the civil party claiming damages FRF 3,000 in respect of the costs incurred by that party.
11. On 28 May 1991 Mr Vacher lodged a notice of appeal on points of law against the judgment of the Versailles Court of Appeal with that court’s registry (Article 576 of the Code of Criminal Procedure - see paragraph 13 below).
On 19 June 1991 the case file for the appeal was registered by the Court of Cassation registry. On 14 August 1991 the applicant filed a pleading in support of his appeal.
12. On 3 September 1991 the chief registrar of the Court of Cassation sent Mr Vacher the following letter:
"Further to your letter, I have to inform you that the Criminal Division of the Court of Cassation delivered a judgment on 6 August 1991 dismissing your appeal.
Consequently, the pleading received from you at the criminal registry on 14 August 1991 will be disregarded as being out of time."
The judgment in question, which was served on the applicant on 30 October 1995, was based on the following ground:
"No ground of appeal has been filed in support of the appeal; the judgment appealed against is in the proper form and the findings of fact, which cannot be appealed against, justify both the classification of the offence and the sentence."
13. The main provisions of the Code of Criminal Procedure referred to in the present case are the following:
"The prosecuting authority and all the parties shall have five clear days in which to appeal to the Court of Cassation after delivery of the judgment appealed against.
..."
"Notice of appeal shall be given to the registrar of the court which delivered the judgment appealed against.
It must be signed by the registrar and by the appellant himself or by a lawyer [avoué] at the court which gave judgment, or by a specially authorised person ...
The appeal shall be recorded in a special public register and any person shall be entitled to obtain a copy of it."
"An appellant on points of law may lodge a pleading bearing his signature and containing the grounds of his appeal with the registry of the court against whose judgment he is appealing either when he gives notice of appeal or within the following ten days. The registrar shall issue him with a receipt."
"After expiry of that time-limit, a convicted appellant may send his pleading directly to the Court of Cassation; the other parties may not avail themselves of this provision without retaining a member of the Court of Cassation Bar.
..."
Law no. 93-1013 of 24 August 1993, which came into force on 2 September 1993, inserted Article 585-1, which provides:
"Save where the President of the Criminal Division decides otherwise, a convicted appellant shall lodge his pleading with the registry of the Court of Cassation no later than one month from the date of the notice of appeal."
In his report of 23 June 1993 presented to the National Assembly on behalf of the Committee on Constitutional Law, Legislation and the General Administration of the Republic, Mr Jean Tibéri justified the insertion of the new Article 585-1 as follows:
"The new Article 585-1 is intended to resolve a difficulty which has appeared in recent years. The Court of Cassation frequently dismisses appeals on points of law because no pleadings have been filed in support of them. As the Law does not lay down a time-limit for filing a pleading, a convicted appellant’s pleading may reach the court a few days after his appeal has been dismissed. Indeed, applications are pending before the European Commission of Human Rights on this question. So as to avoid such situations recurring, the new Article 585-1 provides that convicted appellants shall have a period of one month, which may be extended by the President of the Criminal Division, in which to file their pleadings."
"On pain of a 50-franc civil fine imposed by the Court of Cassation, the registrar shall, within a maximum period of twenty days from the date of the notice of appeal, number and initial the documents in the case file and place in the case file an office copy of the judgment appealed against, an office copy of the notice of appeal and, where relevant, the appellant’s pleading. He shall draw up a schedule of the whole case file."
"When the case file has been made ready in the manner described above, the registrar shall deliver it to the representative of the public prosecutor’s office, who shall immediately send it to the procureur général at the Court of Cassation, who shall, turn, forward it to the registry of the Criminal Division.
The President of that Division shall designate a judge to report on the case."
"Where one or more counsel have been instructed, the reporting judge shall set a time-limit for pleadings to be filed with the registrar of the Criminal Division."
"The pleadings shall contain the grounds of appeal and cite the legal provisions alleged to have been infringed.
...
They must be lodged within the prescribed time-limit. No further pleadings may be added to them once the reporting judge has filed his report. Any pleading setting out additional grounds that is lodged out of time may be declared inadmissible."
"In cases concerning any category of criminal offence, the Court of Cassation may give judgment on the appeal on points of law as soon as ten days have elapsed after receipt of the case file by the Court of Cassation.
..."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b
6-3-c