ITEMID: 001-110422
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: HILLEFORS v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: The applicant, Mr Carl-Gunnar Hillefors, is a Swedish national who was born in 1954 and lives in Hisings Backa. He was represented before the Court by Mr C. Jansson, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was employed as a mechanic and in May 1991 he had a nervous breakdown (psykisk kollaps). On 24 June 1993 he submitted an occupational injury report (arbetsskadeanmälan) to the Social Insurance Office (Försäkringskassan, “the Office”) of the County of Västra Götaland in which he requested that his psychological problems be considered workrelated and thereby make him eligible for life annuity (livränta). He claimed that his psychological problems had been caused by degrading treatment to which he had been subjected by his co-workers and his supervisor.
In a decision on 13 June 2001, the Board of the Social Insurance Office (Socialförsäkringsnämnden, “the Board”) decided not to accept the applicant’s mental illness as a work injury and found that the applicant’s personality was the primary cause of his problems. The applicant and his representative at the time had been present at a meeting with the Board, before the Board made its decision.
The applicant appealed against the decision to the County Administrative Court (länsrätten) in Gothenburg, claiming that he had been subjected to degrading treatment at work. Through his legal representative he requested compensation under the 1976 Work Injury Insurance Act (lagen om arbetsskadeförsäkring, SFS 1976:380). In support of his claims he submitted written statements by six former co-workers and several medical certificates.
The County Administrative Court, in its assessment of the case, had access to the Office’s case-file and to extensive medical documentation, including copies of medical records and opinions given by several physicians and several of the Office’s own appointed doctors (försäkringsläkare).
On 28 March 2003 the County Administrative Court rejected the applicant’s appeal. It found that he had not sufficiently proved that, from an objective point of view, he had been subjected to treatment that was considered injurious in the eyes of the law. The court did not question the applicant’s subjective perception of the alleged circumstances, but there was not sufficient objective evidence to hold that the applicant’s supervisor and colleagues had acted in an incorrect manner. During the proceedings before the County Administrative Court no oral hearing was requested by the applicant, nor did the court hold one on its own initiative.
The applicant appealed to the Administrative Court of Appeal (kammarrätten) in Gothenburg. He requested leave to appeal and maintained his claim. He further requested that an oral hearing be held in his case so that he could explain, under oath, the treatment to which he had been subjected and so that two of the witnesses, who had previously given written statements, could be heard before the court under oath.
On 2 February 2004, the judge rapporteur at the Administrative Court of Appeal drew up a memorandum stating that the applicant’s legal representative had been informed over the phone that the court did not intend to hold an oral hearing before taking its decision regarding leave to appeal. The memorandum further stated that the applicant had been given a prolonged respite until 5 March 2004 to submit additional documents.
In a final submission to the court, received on 8 March 2004, the representative supplemented the applicant’s appeal.
On 26 March 2004 the Administrative Court of Appeal, which had access to the Office’s and the County Administrative Court’s case-files, refused leave to appeal.
The applicant appealed to the Supreme Administrative Court (Regerings-rätten). He stated that he had requested an oral hearing before the Administrative Court of Appeal and that the purpose of the oral hearing had been presented. He also objected to the fact that the Administrative Court of Appeal had failed to reject his request for an oral hearing in a separate decision. No request was made for an oral hearing before the Supreme Administrative Court.
On 27 November 2006 the Supreme Administrative Court refused leave to appeal.
Domestic provisions of relevance in the present case are found in the 1976 Work Injury Insurance Act (lagen om arbetsskadeförsäkring, SFS 1976:380) and the Administrative Court Procedure Act (förvaltningsprocesslagen, SFS 1971:291, “the 1971 Act”). The 1976 Work Injury Insurance Act has been incorporated into Chapters 39 and 41 of the Social insurance Code as of 1 January 2011.
According to Chapter 2, section 1, of the 1976 Work Injury Insurance Act, the term “work injury” mainly refers to injuries resulting from accidents or other harmful factors at a person’s workplace. Under the Act, all gainfully employed persons working in Sweden are insured against work injuries.
For an injury to qualify as a work injury, a causal link must be established between the accident or harmful factor in the workplace and the insured person’s health problems. At the relevant time, if it was clear that the insured person had been subjected to harmful factors at work, his or her medical problems were presumed to have been caused by the harmful factors unless there were substantially stronger grounds for a conclusion to the contrary (Chapter 2, section 2, of the 1976 Act in its wording before 1 January 1993, which applied to the present case).
Regarding mental and psychosomatic illnesses, the travaux préparatoires (govt. Bill 1975/76:197 pp. 71 and 90-91) emphasise that some factors that are connected to work or work conditions, and that may give rise to a disturbance to mental health, are not such that the harmful effect that may occur should fall under the 1976 Act. Thus, it is in the nature of things that mental health disturbance as a result of, inter alia, shutting down work places, lack of appreciation of work efforts and discomfort with work tasks or colleagues should not give rise to compensation.
Section 9 of the Administrative Court Procedure Act, as in force at the relevant time was worded as follows:
“The procedure shall be in writing.
Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case, the processing may include an oral hearing regarding certain issues.
In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”
In a case concerning social insurance, leave to appeal is required for the Administrative Court of Appeal to consider an appeal against a decision issued by a County Administrative Court. Leave to appeal shall be granted if it is of importance for the guidance of the application of law that a superior court considers the appeal, if reason exists for amendment of the County Administrative Court’s conclusion, or if there are otherwise extraordinary reasons to entertain the appeal.
A decision of the Administrative Court of Appeal not to grant leave to appeal may be appealed against to the Supreme Administrative Court.


ITEMID: 001-69571
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF NAKACH v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 7. The applicant, Mr Bensaid Nakach, is a Moroccan national, who was born in 1944. At the time of the events complained of, he was detained in a secure institution, the Forensic Psychiatric Centre “Veldzicht” in Balkbrug, Netherlands; in July 2002 he was transferred to the secure institution “De Kijvelanden” in Poortugaal, near Rotterdam, Netherlands.
8. On 7 February 1994 the applicant hit his wife, Mrs K., on the head, the shoulders and the back with the blunt edge of a meat cleaver, choked her and kicked her in the face. Mrs K. was injured but survived.
9. On 10 October 1994 the Breda Regional Court convicted the applicant of attempted manslaughter. In the light of a psychiatric report which found the applicant's mental powers to be deficient and the chance of his re-offending to be high, it sentenced him to one year's imprisonment and ordered his placement at the Government's disposal (terbeschikkingstelling van de regering) with confinement in a secure institution.
10. On 10 October 1995 the 's-Hertogenbosch Court of Appeal upheld the judgment of the Regional Court.
11. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad), which was dismissed on 1 October 1996.
12. The time which the applicant had spent in detention on remand counting towards the sentence, the order placing the applicant at the Government's disposal therefore went into force on that date.
13. The placement order was prolonged for an additional two years in September 1998.
14. On 29 September 2000 the Breda Regional Court extended the applicant's placement order for a further two years.
15. The applicant appealed to the Arnhem Court of Appeal (gerechtshof).
16. A hearing was held on 9 April 2001. The Government state that the registrar (griffier) took notes and that these were kept in the case file.
17. The Court of Appeal gave its decision on 23 April 2001; it found that the applicant's continued placement at the Government's disposal remained necessary in the interest of public safety and accordingly upheld the decision of the Breda Regional Court. Summaries of an expert report and of statements made at the hearing by an expert and by the applicant's counsel are contained in this decision; they cover approximately a page and a half.
18. On 28 June 2001 the applicant's counsel wrote to the Court of Appeal asking for a copy of the official record of the hearing of 9 April.
19. A reply dated 11 July 2001, on stationery bearing the letterhead of the vice-president of the Court of Appeal in charge of criminal cases (the signature is illegible), contains the following passage:
“In reply to your request of 28 June last I must inform you that no official records are usually made of hearings of the criminal division concerning prolongations of placements at the Government's disposal. The reason is that no ordinary remedy lies against the decisions concerned and the workload of the Court of Appeal does not admit of structural activities 'just to fill the archives' (voor het archief). For that reason, also, the decisions in question tend to render the statements made more extensively than would be the case if in fact an official record were prepared (in addition).”
20. A person who has been found guilty of certain serious crimes and who, at the time of committing the offence, suffered from a mental deficiency or derangement may be placed at the Government's disposal if required in the interests of the safety of others or, more generally, in the interests of the safety of persons or goods. Such a measure, which is not considered a punishment, may be imposed instead of or together with a prison sentence (Article 37a §§ 1 and 2 of the Criminal Code). The sentencing court may further decide that the person concerned shall be confined in a secure institution in the interests of public safety (Article 37b § 1).
21. According to Article 38d of the Criminal Code, the person concerned shall be placed at the disposal of the Government for an initial period of two years which may be prolonged, at the request of the public prosecutor, for a further period of one or two years. The period of placement cannot be extended beyond a total of four years unless the crime committed by the person concerned was a crime of violence committed against, or causing danger to, one or more persons, or such further extension is necessary for the protection of other persons (Article 38e).
22. A hearing shall be held in public by the review chamber (raadkamer) of the Regional Court (Article 509m § 1).
23. An appeal against the decision of the Regional Court lies to the Arnhem Court of Appeal (Article 509v § 1).
24. The Court of Appeal's decision, which shall contain the specific reasons underlying it, is final; no ordinary legal remedy is available to challenge it (Article 509x § 2).
25. The provisions of the Code of Criminal Procedure prescribing the content of the review chamber's decisions and the official record of its hearings are the following:
“1. The decision taken by the review chamber shall be reasoned. If it is laid down that the hearing shall be public, the decision shall be pronounced publicly.
2. The decision shall state the names of the judges of the chamber (college) which gave it and the date on which it was given. It shall be signed by the president and the registrar who attended the hearing.
3. If the president is prevented from signing, another judge of the review chamber shall sign. If the registrar is prevented from signing, this shall be mentioned in the decision.
4. Unless otherwise provided, the decision shall be transmitted to the suspect and other participants in the proceedings without delay.
...”
“1. The registrar shall prepare an official record of the hearing by the review chamber, which shall contain the summary content (den zakelijken inhoud) of the statements made and of any further events that have occurred at that hearing.
2. If a suspect, a witness or expert, or a suspect's counsel or a lawyer desires any statement to be recorded in his own words, that shall be done as far a possible in so far as the statement does not exceed reasonable limits.
3. The official record shall be finalised (vastgesteld) by the president or one of the other judges of the review chamber and the registrar [together] and signed as soon as possible after the end of the hearing. Should the registrar be prevented, this shall be done without his co-operation and the fact of his having been thus prevented shall be mentioned at the end of the official record.
4. The official record shall be added to the case file together with the decision and any other documents submitted during the hearing.”
26. In a judgment of 28 February 1962, Nederlandse Jurisprudentie (Netherlands Law Reports) 1964, no. 291, the Supreme Court declared null and void a decision of a trial court because the official record of the hearing at which it was delivered was not contained in the case file, so that it could not be established that delivery had taken place in accordance with the prescribed formal requirements, including that of publicity. The Supreme Court accepted that the judgment's delivery in public was noted in the judgment itself, but that was not sufficient since, with regard to formalities to be observed at hearings, the law had attributed evidentiary value only to the official record.
27. In two other judgments, delivered by the Supreme Court on 6 June 1998 (Nederlandse Jurisprudentie 1998, no. 838) and on 22 March 1998 (Nederlandse Jurisprudentie 1998, no. 438) respectively, decisions were declared null and void on the ground that, there being no official record in each case of the hearing in camera, it had to be assumed that no such hearing meeting the appropriate formal requirements had in fact been held.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-4685
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: BYRNE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Irish national, born in 1936 and living in Dublin. He was the husband of Anne Byrne.
He is represented before the Court by Mr G. O’Neill, a lawyer practising in Dublin.
On 17 May 1974 Anne Byrne was killed in a terrorist bombing in Dublin. The cars used for the bombing were stolen in Belfast, Northern Ireland on the same day.
The Irish authorities conducted extensive inquiries but were unable to bring charges against any person. The files remain open. The Royal Ulster Constabulary (RUC) in Northern Ireland has conducted an inquiry into the theft of the vehicles and related offences which did not produce any results. However, there was no formal murder inquiry by the RUC.
On 6 July 1993 ITV, a television station in the United Kingdom, broadcast a programme in which the adequacy of the RUC inquiry was discussed.


ITEMID: 001-83778
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: GALINS v. LATVIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Jurijs Gaļins, is a Latvian national who was born in 1975 and is currently serving his sentence in Grīvas Prison, Daugavpils District. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 October 1998 the applicant was arrested on suspicion of having committed murder. On the same date the applicant was interrogated; he confessed and indicated the location of a body.
On 19 October 1998 a judge of the Rīga District Court decided to detain the applicant on remand.
On 21 October 1998 the applicant, naming as his accomplices O.T. (who had died on 15 June 1998) and S.J., confessed that on unspecified dates he had committed burglaries in two summer cottages.
On 13 November 1998 the applicant was charged with murder.
On 19 and 25 November 1998 criminal proceedings in respect of the burglaries were initiated against the applicant. On 26 November 1998 these criminal cases were joined.
On 3 December 1998 and 2 February 1999 a judge of the Rīga District Court, in the context of the criminal proceedings regarding the murder, extended the applicant’s detention on remand until 16 February and 16 March 1999 respectively.
On 16 February 1999 the prosecutor in charge of the investigation of the murder ordered that the applicant undergo a psychiatric examination, which was carried out on 26 February 1999. According to the expert report, the applicant was of sound mind and thus accountable for the murder.
On 4 March 1999 the criminal cases concerning the murder and the burglaries were joined.
On 15 March 1999 a judge of the Rīga District Court extended the applicant’s detention on remand until 16 May 1999.
On 7 May 1999 the murder charge against the applicant, which at the time involved an accomplice K.P., was supplemented with the charges in respect of the burglaries committed with accomplices S.J. and O.T.
On 16 May 1999 the final bill of indictment was presented to the applicant, S.J. and K.P.
On 31 May and 7 June 1999 respectively the criminal cases were sent to the Rīga Regional Court for adjudication.
On 26 and 28 July 1999 respectively a judge of the Rīga Regional Court, who was in charge of the adjudication of the applicant’s case, committed him, K.P. and S.J. for trial, joined the criminal cases and scheduled a hearing for 13 to 24 November 2000. On an unspecified date before 25 September 2000 the judge died.
On 25 September 2000 the applicant informed the Rīga Regional Court and the Prosecutor General about his intention to begin a hunger strike as a sign of his protest against the delay in setting a date for the trial. On 2 October 2000 he commenced a hunger strike, which apparently lasted for ten days, requesting that a date be set for a hearing in his case. On 11 October 2000 the applicant informed the President of the Rīga Regional Court that he had been on a hunger strike since 2 October 2000 and requested that a hearing be scheduled. The applicant also expressed his concerns regarding the recent death of the responsible judge and its impact on the adjudication of his case.
On 12 October 2000 the applicant was informed that his case had been transferred to another judge of the Rīga Regional Court and that the hearing had been set for 15 January 2001.
The hearing did not commence as planned on 15 January 2001 because there was no court room available; it was adjourned for a day.
The hearing started on 16 January 2001; however, it was adjourned as S.J. failed to appear.
On 18 January 2001 the hearing was resumed but it was postponed as one of the key witnesses failed to appear.
On 19 January 2001 the hearing was resumed. During the hearing the applicant asked the court to order a psychiatric examination. This petition was rejected as the applicant had already undergone such an examination during the pre-trial investigation on 26 February 1999.
On 29 January 2001 the Rīga Regional Court convicted the applicant of aggravated murder, robbery and theft and sentenced him to eleven years’ imprisonment. The applicant appealed against the judgment.
On 24 April 2001 the Criminal Chamber of the Supreme Court declared the applicant’s appeal admissible and scheduled the hearing for 29 May 2001.
On 29 May 2001 the Criminal Chamber of the Supreme Court held a hearing. On the applicant’s request, the court ordered his medical examination in a psychiatric hospital. The applicant was examined at the hospital between 25 June and 24 July 2001, when the medical experts carrying out the examination declared the applicant of sound mind and thus accountable for the criminal offences of which he had been convicted by the Rīga Regional Court.
The appeal court resumed the hearing on 21 November 2001. The court dismissed the applicant’s complaint about the expert opinion of 24 July 2001 and upheld the judgment of the first instance court. The applicant filed a cassation appeal against this decision on 7 February 2002.
On 26 February 2002 the Senate of the Supreme Court by a final decision dismissed the applicant’s cassation appeal.
The applicant is currently serving his sentence.


ITEMID: 001-57970
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF BOTTEN v. NORWAY
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1 (fair hearing);Costs and expenses - claim withdrawn
TEXT: 7. The applicant, a Norwegian citizen, is a Lieutenant-Colonel in the Norwegian Air Force. He is Commanding Officer of Flesland Air Station and is currently serving as full Colonel in the United Nations Forces in Tuzla, Bosnia-Herzegovina.
8. In 1987 the applicant served as Commander of the Norwegian Defence Telecommunications Station ("the Station") on Jan Mayen island in the Arctic Ocean, which is part of the Kingdom of Norway.
On 17 April 1987 the captain of a shrimp trawler, M/S Polarbas, radioed the Station, asking it to receive for treatment a fisherman, who had injured his arm. On 18 April the applicant agreed to this request and, on the same date, he and a colleague rowed out in a rubber dinghy to meet the trawler's lifeboat bringing the fisherman closer to shore. Shortly after the injured fisherman had been taken aboard, a breaker capsized the dinghy, leaving all three passengers in the sea, which on that date had a temperature of -0.3 °C. The applicant was the only one of the three who managed to reach the shore and who survived.
9. A military board of inquiry, set up inter alia to establish the facts of the incident and to express an opinion on whether any regulations had been violated, concluded in a report of 1 May 1987 that relevant instructions had been violated and that the applicant, as Head of Station, was responsible.
10. On 11 July 1988 the public prosecutor of Nordland, under an expedited non-judicial procedure (forelegg), proposed to the applicant a suspended sentence of twenty-seven days' military custody (vaktarrest) and a fine of 5,000 Norwegian kroner (NOK) for the offence of neglect or carelessness in the performance of official duties (Article 78 para. 1 of the 1902 Military Penal Code - Militær Straffelov, Law no. 13 of 22 May 1902). As the applicant refused to accept the proposal, the public prosecutor instituted proceedings against him in Bodø City Court (byrett - "the City Court"), charging him with the aforementioned offence.
11. The trial before the City Court took place from 9 to 13 March 1989. The applicant was heard and thirteen witnesses and three expert witnesses gave evidence. Documentary evidence, including the military board of inquiry's report of 1 May 1987 (see paragraph 9 above), was submitted. Furthermore, on 11 March the City Court held an inquiry on Jan Mayen island at the site of the accident, where a number of witnesses testified.
12. In its judgment of 30 March 1989, the City Court described the relevant facts as follows:
"In the morning of 18 April 1987 [the applicant] was informed by Ms Karin Ree, nurse [at the Station], that the captain of M/S Polarbas had been in contact with Jan Mayen radio and requested that Mr Asbjørn Olufsen [the injured fisherman] be taken ashore at Jan Mayen so that the nurse could have a look at his wrist injury. The [applicant] responded in a positive manner to the request, but said that they would have to ascertain conditions in [the bay of] Båtvika before receiving Mr Olufsen. The nurse and the Chief Engineer, Arne Svendsen, were willing to participate in the operation. Mr Svendsen went down to Båtvika to check the conditions and reported back to [the applicant] that they were satisfactory. [The applicant] then contacted the Polarbas and agreed that the patient should be brought by a launch close to the beach in Båtvika and that a rubber dinghy ... would meet them there. It was further agreed that the transfer of the patient would take place approximately twenty minutes after the conversation between the Polarbas and the Station. They also agreed on a radio frequency on which the parties would communicate.
...
While driving to Båtvika, the [applicant] discovered that he had forgotten his camera. He wondered whether he should return to pick it up, but the nurse insisted that they had no time to lose and that they should therefore drive on. She then offered to collect the camera later, but the [applicant] told her that she should not do so.
On arriving at Båtvika they found the [rubber dinghy] already there, the Maintenance Chief Officer having fetched it and driven it down to the beach. The Maintenance Chief Officer said that the dinghy ought to be pumped up. The Chief Engineer, however, thought that it was better to leave the dinghy as it was and so do nothing to it. The [applicant] and Mr Svendsen sat down in the dinghy after having put on survival suits. However, neither of them put on their hoods. They took no radio equipment with them in the dinghy, but Ms Ree had a radio for the purpose of communicating with the Polarbas and its launch.
As they left the beach, the Polarbas launch with the injured fisherman on board was far out in the approaches to Båtvika. Some time after the dinghy had left, the nurse ... returned to the beach with the [applicant's] camera which she had gone back to collect at the administration building ...
Mr Svendsen rowed the dinghy out from the beach. After having rowed some forty to sixty metres from the shore they waited a while, trying to get the launch to approach them. However, they did not obtain any response from the persons in the launch.
[Mr Svendsen] was tired and he and [the applicant] changed places, the [applicant] taking over the rowing. They tried several times to contact the launch, but to no avail. They realised that something had gone wrong. They therefore rowed further towards the launch which was still lying far out in the approaches to Båtvika. As they came up to the launch they were told that the engine had broken down and that a sea anchor had been deployed. The men in the launch were anxious since, despite the sea anchor, the launch was drifting towards the rocks. None of the persons in the launch were wearing life-jackets or survival suits. Nor was such equipment available in the launch.
The injured fisherman ... was taken on board the [rubber dinghy]. The dinghy was then rowed away from the launch. A breaker capsized the dinghy and the three people on board were thrown into the sea. They were not attached to the dinghy with lines nor did they have any lines with them. They did not have life-jackets.
Ms Ree, who was standing on the beach, had a portable radio set, but did not have first-aid equipment, such as a stretcher, blankets or the like."
13. The City Court acquitted the applicant. Its judgment includes the following observations. Although the applicant was in principle under no duty to receive the injured fisherman, such a duty arose from the fact that he agreed to do so. In determining whether the applicant had been guilty of neglect or carelessness in the landing operation or in its preparations, it had to be ascertained whether he had breached any applicable instructions. Gross breaches or several recurring breaches of instructions could amount to neglect or carelessness within the meaning of Article 78 para. 1 of the Military Penal Code. The public prosecutor had argued that the applicant had acted in breach of his duties in seven instances, of which those indicated below were the subject of argument in the present case:
"1. It was the duty of the defendant to use the dory once he had decided to receive a patient.
...
4. It was his duty to ensure that the nurse brought along medical equipment and was present throughout the operation.
...
7. It was his duty, once he had chosen to use the rubber dinghy, to ensure that the chief engineer was attached to it by a line. Moreover he ought to have returned to the beach earlier, once he realised that the launch did not intend to approach them."
The City Court was of the view that the instructions imposing duties on military and civilian personnel on Jan Mayen, in particular Instruction C 14 containing General Rules on Traffic on and around Jan Mayen, were for various reasons unclear. Moreover, many of the provisions in question were designed for the loading and discharging of supply vessels. The relevant instructions could therefore apply to rescue operations only in so far as was appropriate.
As to the above-mentioned item 4 of the prosecutor's allegations, the City Court held:
"... the [applicant] cannot be blamed for the fact that the nurse did not remain on the shore throughout the operation. The Court is satisfied that Botten did not know that she had returned to the Station to fetch his camera. Moreover, the Court is satisfied that he did not order her to fetch the camera. Anyway, her absence was quite short, lasting only a few minutes. The [applicant] knew, however, that [the] nurse ... did not bring along first-aid equipment to the shore. In that respect therefore, there is a breach of Instruction B 13, section 3.6. The Court points out, however, that there are no serious violations of the instructions. The object of the operation was merely to fetch a fisherman who was only suffering from a wrist injury and it would moreover take only a short time to go up to the Station buildings to collect the necessary equipment."
With regard to item 7, the City Court made, inter alia, the following observations:
"... the City Court agrees in principle with the prosecutor that it was unsafe to row the rubber dinghy right out to the launch. However, the [City] Court takes into account the fact that the [applicant] and [Mr Svendsen], while on their way, admittedly after they had passed the point where they had intended to meet the launch, but while they were still in fairly calm waters, discovered that there were problems on board the launch. Accordingly, the [City] Court cannot see here either that the [applicant] committed any breach of the instructions since it was highly probable, and gradually became quite obvious, that the launch was in a critical situation."
Finally, with regard to item 1, the members of the City Court were divided:
"Assessor Terje Henriksen considers that section 2 of Instruction C 14 lays down an obligation for the defendant to use the dory, since the penultimate paragraph of section 2 ... provides that this rule applies to all personnel on Jan Mayen. The President of the Court considers that ... section 2, which applies to sea traffic, must be applied wherever appropriate. Regarding this special case, where the [applicant] was to take ashore a fisherman with an injured wrist, the President cannot find any circumstances which could justify setting aside the general obligation to use the dory. The operation was not conducted under such heavy pressure that this provision could be disregarded. Assessor Tordis Kvarv is of the opinion that the provision does not apply in a rescue operation of the kind in issue and that the matter must therefore be assessed in terms of general requirements of care.
Assessor Terje Henriksen considers that the breach of this provision under the very special weather conditions which exist in the ocean area off Jan Mayen is so serious that it qualifies as `neglect or carelessness' within the meaning of Article 78 para. 1 of the Military Penal Code. He has therefore arrived at the conclusion that the defendant should be convicted for violation of Article 78 para. 1 ...
The President ... is of the opinion that even if this instruction has been disregarded, it must nevertheless be considered in applying Article 78 para. 1 ... whether the choice made by [the applicant] made the situation worse than would have been the case had he chosen the dory. If it did not, a violation of this instruction cannot be described as neglect or carelessness. The majority of the Court (Assessor Tordis Kvarv and the President) have found that the use of the dinghy instead of the dory did not lead to reduced safety, having regard to the purpose which the boat was originally supposed to serve. Particular weight is attached to the fact that the parties had agreed to meet close to the beach. Although the precise meeting point had not been agreed, it must at least be accepted that they did not intend to go much further out than about 100 metres from the beach. In this area the waters are calm. Moreover, reference is made to the testimony of the prosecution expert witness, Mr Alv Håkon Klepsvik, Commander. He testified in court that he saw no safety problems in using the rubber dinghy in, or just outside, Båtvika provided it was kept away from breakers or wave peaks. He considered that, if one stayed in the middle of Båtvika or on the lee side, using the dinghy did not give rise to any problems. Nor would he have had any hesitation in using the dinghy to receive a person from another boat. He further testified that there was less risk of injury in transferring a person from a boat to another when the second was a rubber dinghy, and he thought that it would be preferable to use a rubber dinghy rather than a dory for that purpose. As regards the fact that the dinghy was not fully pumped up, he stated that it was better to use a dinghy that was not fully inflated. Nor did this reduce the dinghy's seaworthiness.
The majority of the Court agrees with the minority that the essential point in this case is whether there was a duty to use the dory and whether any breach of this duty led to reduced safety. The ... majority has accordingly come to the conclusion that such is not the case and that the defendant should therefore be acquitted, ... finding him not guilty of neglect or carelessness as described in the charge."
14. On 12 April 1989 the public prosecutor appealed from the judgment of the City Court to the Supreme Court (Høyesterett). In the first place he maintained that the City Court's decision was flawed in that it had applied too narrow an interpretation of the statutory offence of neglect in the performance of official duties. In the view of the prosecution, the breach of the duty to use a dory was so serious that it amounted to neglect. The City Court's view that using a rubber dinghy instead of a dory did not lead to reduced safety was not a sufficient reason for holding otherwise. The instructions had been laid down on the basis of several years' experience and with a view to the particular conditions at Jan Mayen and the fact that the Station officers are not necessarily accustomed to the sea and are only stationed there for a limited period. These considerations suggested that, save in exceptional circumstances, the Station officer was strictly required to exercise care and to follow the instructions. In the prosecution's opinion, the instruction could be departed from only if there was an emergency or if the service might thereby be carried out in a better or safer manner; that, however, was not the situation in the applicant's case.
The prosecutor further submitted that the facts as established by the City Court were sufficiently clear to allow the Supreme Court to give a new judgment under Article 362 para. 2 of the 1981 Code of Criminal Procedure (see paragraph 28 below) convicting and sentencing the applicant, as opposed to quashing the City Court's judgment and referring the case back for fresh examination.
In his alternative submission, he argued that the City Court's judgment should be quashed on the ground of a procedural defect, its reasoning being incomplete. The judgment failed to describe the sea conditions prevailing at the time when the applicant set out in the dinghy and also when he realised that the lifeboat would not arrive at the agreed meeting point, and the distance between the lifeboat and the shore at those times. Nor did the judgment mention what the applicant thought had gone wrong with the lifeboat, which alternatives he had to taking the dinghy further out or how much time it would have taken to prepare the dory for the operation.
15. On 20 April 1989 the Appeals Selection Committee of the Supreme Court (Høyesteretts Kjæremålsutvalg) granted leave to appeal. By letter of 27 April 1989 the Supreme Court informed the applicant of its decision and that it had appointed as his counsel the lawyer who had represented him in the City Court. Moreover, the Supreme Court invited the applicant to contact his counsel as soon as possible if he possessed any information of relevance to the case which was not apparent from the case file. In addition, the Supreme Court stated that it intended to deal with his case in the near future without giving him further notice (Article 353 of the Code of Criminal Procedure - straffeprosessloven - as applicable at the relevant time).
16. After the prosecutor and counsel for the applicant had been consulted, the Supreme Court, by letter of 11 May 1989, advised counsel that it had set the oral hearing for 20 June 1989, at 9.15 a.m.
Subsequently, counsel informed the applicant of the date of the hearing and told him that, if he wished, he could ask the Supreme Court for leave to make an oral statement at the hearing but that he would not be heard either as a party or as a witness. Moreover, counsel advised the applicant that it was unusual for a defendant in an appeal personally to address the Supreme Court. Accordingly, the applicant did not ask for such leave.
17. An extract of the proceedings in the City Court, prepared by the prosecutor (for further details, see paragraph 18 below), was sent to counsel well in advance of the hearing in the Supreme Court. Counsel made no objections to the extract, nor did he make any further submissions to the Supreme Court.
18. At the hearing on 20 June 1989 the applicant's counsel was present, but he himself was not. As he was entitled to do, counsel addressed the Supreme Court and replied to the prosecutor's oral submissions in so far as they concerned the latter's appeal on points of law and procedure (see paragraph 14 above). However, in determining liability, the Supreme Court was bound by the establishment of the facts concerning the question of guilt in the City Court's judgment (Article 335 of the Code of Criminal Procedure as applicable at the relevant time).
After the main pleadings, the prosecution requested the Supreme Court to convict the applicant of an offence under Article 78 para. 1 of the Military Penal Code and to sentence him to a suspended term of twenty-seven days' military custody and to a fine of NOK 5,000, failing payment of which he should be imprisoned for fifteen days. In the alternative, the prosecutor asked the Supreme Court to quash the City Court's judgment.
Counsel for the applicant requested the Supreme Court to dismiss the appeal.
The Supreme Court's case file included a 112-page extract from the proceedings in the City Court, containing the City Court's judgment of 30 March 1989, the written evidence used by it, including details of the applicant's professional and private status and income, his military service card, a statement to the effect that he had no criminal record, the military inquiry report and certain court transcripts. However, it did not include any records of the hearings in the City Court, such records not being available. The Supreme Court heard no witnesses or experts.
19. In a judgment of 27 June 1989, which was final, the Supreme Court upheld the prosecution appeal. Mr Justice Dolva, on behalf of a unanimous court, gave the following reasons:
"I find that the appeal on the application of the law must be upheld and that the conditions for pronouncing a new judgment convicting the accused pursuant to Article 362 para. 2 of the Code of Criminal Procedure have been fulfilled.
...
The decisive issue in the case is ... whether the applicant's conduct in connection with the landing operation and the preparations for it constitutes neglect or carelessness under Article 78 para. 1 of the Military Penal Code. The grounds cited for this are that he disregarded applicable instructions on several points as specified in the indictment. The City Court's judgment lists seven matters which, taken together, are claimed to constitute neglect. Several of these points have not been pursued before the Supreme Court.
The instructions applying to Jan Mayen are comprehensive. This must be viewed in the light of the demanding conditions for those serving there. I would note that the preamble to the instructions for Jan Mayen, which were issued in August 1986 by the Norwegian Defence Communications and Data Services Administration and which are relevant to the present case, states: 'Written instructions are more necessary on Jan Mayen, where there is a constant turnover of personnel, than elsewhere.'
The 'General Provisions concerning Traffic on and around Jan Mayen', which form part of the said instructions, figure centrally in the case. Section 1 ..., entitled 'Purpose', reads: 'These are general provisions which are intended as guidelines for both official and leisure traffic on and around Jan Mayen.' Even though the provisions initially give the impression of setting out 'guidelines', it is clear that they include binding rules, as shown by section 2 on sea traffic, the first paragraph of which reads: 'Excursions by boat in the sea around Jan Mayen without seagoing support vessel are generally prohibited.' However, the rule goes on to list various exceptions. I would point out that the provisions on sea traffic clearly must cover the operation launched to receive the injured fisherman on that occasion, even though it was presumed that the transfer would be conducted relatively close to the shore. I also find it clear that the provisions must apply to the landing operation, even though there is no mention of assistance to the fishing fleet here or elsewhere in the instructions for Jan Mayen.
Section 2 ... includes, inter alia, the following two clauses: `
- Ensure that both dories are used on trips if no other boat is close to the island, or no other boat has been made ready to assist if necessary.
- When the weather conditions are deemed to be satisfactory, the other dory may be replaced by the dinghy, which may be taken aboard the dory or drawn behind it.'
In my view, it follows from the rules that there is a requirement to use a dory on occasions such as the one in question here, and that a dinghy could not replace a dory in this situation. It is true that a dinghy could be used in certain circumstances, but only as a backup. I therefore agree with the President of the City Court and the one lay judge who, admittedly on somewhat different grounds, found that the provisions imposed an official duty on the [applicant] to use a dory instead of a dinghy.
The President of the [City] Court was however of '... the opinion that even if this instruction has been disregarded, it must nevertheless be considered in applying Article 78 para. 1 ... whether the choice made by the [applicant] made the situation worse than would have been the case had he used a dory. If it did not, a violation of this instruction cannot be described as neglect or carelessness'.
I do not agree with this interpretation of the law.
In my opinion, the duty to use a dory is of such key significance in the provisions relating to traffic that an assessment such as that mentioned by the President is insufficient. I refer to the fact that the duty was imposed in the light of experience and is intended to protect life and health in an area characterised by quite extraordinary weather conditions and in difficult waters, and that it is thus particularly important that the instruction is complied with on this point. The assessment referred to by the President of the City Court cannot therefore be decisive for whether there was neglect.
The second lay judge, who together with the President of the City Court constituted the majority voting in favour of acquittal, likewise based her decision on an erroneous application of the law. In her opinion, the duty to use a dory did not apply 'to a rescue operation of this kind, and the matter must therefore be considered on the basis of a general assessment of the duty of care'. I find that she was of the opinion that there was no duty to use a dory, and therefore no neglect within the meaning of Article 78 para. 1.
The majority of the City Court ... found that using a rubber dinghy instead of a dory on the occasion did not have the effect of reducing safety given the use for which the dinghy was initially intended, namely reception of the injured fisherman from the shrimp trawler's lifeboat not 'much further than about 100 metres from shore'. However, according to the regulations, this is not decisive.
Thus the [applicant's] acquittal is based on an erroneous application of the law. In the present case, however, this does not warrant quashing the City Court's judgment, since I agree with the prosecution's submission in the notice of appeal that the conditions are satisfied for pronouncing a new judgment convicting [the applicant] pursuant to Article 362 para. 2 of the Code of Criminal Procedure. In this connection, I refer to the City Court's account of the facts.
I also refer to what I previously said about the background to and the specific contents of the provisions concerning traffic on and around Jan Mayen, in particular the duty to use a dory. Given the difficult conditions on the island, it is particularly important that rules of this kind are complied with. The [applicant] is at fault for having decided, despite the requirement set out in the instruction, to use the rubber dinghy on that occasion and for having done so. I would point out, however, that the situation had changed at the subsequent stages of the operation, when it was clear that the persons in the approaching lifeboat were in danger. In my opinion, however, what had already happened in the earlier stages constitutes such a serious matter that it must be deemed to constitute neglect under Article 78 para. 1. I would note that counsel for the defence has contended before the Supreme Court that the duty to use a dory could not apply when a lifeboat was launched from the shrimp trawler. I do not find that this [argument] can be accorded decisive weight in the present case, as it is clear from the City Court's judgment that the dinghy was not simply used as a backup on this occasion. Nor could the defendant know whether or not the lifeboat was properly equipped, as subsequently turned out not to be the case.
As previously indicated, the prosecution has also brought up other matters which, in its opinion, constitute breaches of the applicable instructions. Some of these matters which were submitted to the City Court have not been pursued before the Supreme Court.
...
The City Court unanimously concluded that there was a breach of the instruction on account of the fact that the nurse had not brought first-aid equipment down to the shore and that the [applicant] was aware of this fact. I find this to be the case. However, the failure to use a dory in the landing operation is the predominant factor in relation to Article 78 para. 1.
As regards sentencing, I find it appropriate to sentence [the applicant] to twenty days' military custody suspended for a probation period of two years, in addition to an unconditional fine of NOK 5,000 or, in default of payment, military custody for fifteen days. In this connection, I have attached importance to the fact that the defendant is only at fault in respect of his conduct during the preliminary stages of the landing operation."
20. Article 78 para. 1 of the Military Penal Code reads:
"A person exercising command who is guilty of neglect or carelessness in the performance of his official duties shall be punished with arrest or with the loss of commission or with detention for a term not exceeding six months."
21. Appeals in all criminal cases, including those covered by the Military Penal Code, are governed by the Code of Criminal Procedure.
22. Under Article 278 of the Code of Criminal Procedure, proceedings during the main hearing in the District or City Court are oral. Written evidence is read out by the person producing the evidence unless the court decides otherwise (Article 302). After the examination of each individual witness and after the reading out of each piece of written evidence, the accused has to be given an opportunity to speak (Article 303). The court must see to it that the facts of the case are fully established (Article 294).
When the production of evidence (bevisførselen) is completed, the prosecutor and then defence counsel may make a speech. Each of them is entitled to speak twice. When defence counsel has finished, the person indicted is asked whether he has any further comment to make (Article 304). In deciding what is deemed to be proved, only the evidence produced at the main hearing shall be taken into consideration by the court (Article 305).
23. Under Article 40 of the Code of Criminal Procedure, if the City Court decides to convict the accused its judgment must, in giving its verdict, state in a specific and exhaustive manner the facts of the case which the court has found to be proved and on which its verdict is based. It must also refer to the penal provision under which the accused has been convicted. In addition the judgment must state the reasons to which the court has attached importance in determining the sanctions.
If the person charged is acquitted, the grounds of the judgment must, in accordance with Article 40, state which conditions for a finding of guilt are deemed not to be satisfied, or the circumstances which exclude a sanction called for by the prosecution.
24. Under the Code of Criminal Procedure, as applicable at the material time, a party in a criminal case seeking to challenge a judgment of the City Court could, depending on the nature of the point disputed, either request a new trial (fornyet behandling) in the High Court (lagmannsretten) or appeal (anke) to the Supreme Court.
If the object was to contest the City Court's assessment of evidence in relation to the question of guilt (bevisbedømmelsen under skyldspørsmålet, Article 369, as applicable at the relevant time), the appellant party could, with leave from the Appeals Selection Committee of the Supreme Court apply for a new trial in the High Court (Article 370, as applicable at the relevant time).
On the other hand, an appeal on grounds of errors of law going to the verdict (rettsanvendelsen under skyldspørsmålet), on procedural defects (saksbehandling) and as to sentence (straffutmåling) could be lodged with the Supreme Court (Article 335, as applicable at the relevant time). The Supreme Court thus had no competence to review questions of facts which go to the question of guilt but had to base itself on the findings of the City Court in this respect. No such limitation applied to the Supreme Court's jurisdiction with regard to sentencing, which comprised both questions of facts and of law.
25. Both parties may in principle lodge an appeal against a judgment of the District or City Court (Article 335, as applicable at the time). However, an acquitted person may not appeal unless the court has found it proved that he committed the unlawful act referred to in the indictment (Article 336, as applicable at the time).
26. The appeal proceedings are prepared and conducted according to the rules applicable to the hearing at first instance in so far as such rules are appropriate and it is not otherwise provided (Article 352, as applicable at the relevant time).
27. The proceedings in the Supreme Court are oral and public and both parties are allowed to speak twice. The appellant party is entitled to address the court first. The accused may be allowed to address the court during the hearing (Article 356, as applicable at the relevant time). Evidence is submitted to the court by reading out from the documents relating to the case (Article 357, as applicable at the time).
28. Article 362 (as applicable at the time) read:
"If the court finds no reason to vary or set aside the judgment appealed against, the appeal shall be dismissed by court order.
In the alternative the court shall pronounce a new judgment if the necessary conditions are fulfilled; otherwise the judgment appealed against shall be set aside by court order."
In determining whether the "necessary conditions are fulfilled", the Supreme Court will concentrate on the question whether the facts as ascertained in the judgment appealed against are sufficient to render a new decision on the merits. Case-law under Article 362 confirms that the Supreme Court is reluctant to pronounce a new judgment.
Prior to the entry into force of the 1981 Code of Criminal Procedure on 1 January 1986, the Supreme Court had, under Article 396 of the 1887 Code of Criminal Procedure, power to give a new judgment convicting the accused only "when the question of guilt had been decided against the defendant" in the lower court. The 1981 Code removed this limitation on the Supreme Court's competence.
29. Since 1 August 1995, when the 1993 Act Amending the Code of Criminal Procedure (Lov av 11 juni 1993 nr. 80 om endringer i straffeprosessloven m.v. (toinstansbehandling, anke og juryordning)) entered into force, an appeal against the City Court lies ordinarily with the High Court, which has power to review points of fact, law and procedure (Articles 5, 306 and 345 as amended). As a consequence, to a greater extent than before, the High Court will act as a second instance, and the Supreme Court as a third instance, in criminal cases.
On the other hand, the above-mentioned provisions in Articles 336, 356, 357 and 362, which have been replaced respectively by Articles 307, 339, 340 and 345, remain essentially unchanged.
30. In an opinion appended to the bill proposing to amend the Code (Ot prp nr. 78 (1992-93), p. 25), the Supreme Court stated:
"The present system, where the Supreme Court acts as the ordinary second instance in criminal cases, is internationally unique. This arrangement has enabled a speedy hearing of appeal cases and has given the Supreme Court a considerable influence on the practice of criminal law. However, in recent years - given current developments - the present system has demonstrated that it is no longer satisfactory. It does not fulfil the standards of legal safeguards which ought to be met and, at the same time, with the increased number of criminal cases in present-day society, the arrangement creates working conditions in the Supreme Court which prevent it from performing its functions in a fully satisfactory manner. The proposal that one should have two ordinary instances below the Supreme Court would bring the appeal system in criminal cases in line with that in civil cases and with the appeal systems in most countries. It would give the Supreme Court the opportunity to concentrate its work to a greater extent on cases where its decision will concern matters of principle, or where there are other particular reasons for obtaining a decision from the Supreme Court."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81745
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: MINTOFF AND OTHERS v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Mr Dominic Mintoff, Ms Anna Mckenna and Ms Yana Mintoff Bland are Maltese nationals who were born in 1916, 1949 and 1951 respectively. The first two applicants live in Malta and the third applicant lives in Texas, United States. They are represented before the Court by Dr Ian Refalo and Dr John Vassallo, lawyers practising in Valetta, Malta.
The first applicant is a former leader of the Malta Labour Party and a former Prime Minister of Malta, and the second and third applicants are his children. They are joint owners of a residence in Delimara in an undeveloped coastal area of Malta.
In 1987 the nationalist government, ordered the construction of a new power station. Consequently, it selected and legally expropriated a site in Delimara, approximately 5 metres from the applicants' property.
At the relevant time, the first applicant objected to the proposed power station on the ground that it would pollute his property and render it unusable. Unsuccessfully, he submitted to the authorities proposals for a number of alternative locations and suggestions as to how the power station could be constructed in order to minimise the damage to his property.
In 1992/1993 the power station began operating. Due to the resulting noise and pollution the applicants had to leave their residence and move to their other house in Tarxien.
The abandonment of the property meant that it became subject to a number of break-ins during which movables and furniture were stolen. Since then the first applicant has been unsuccessfully endeavouring to recover the possession of two other properties, situated in Marsaxlokk, which he had intended for storage purposes, and which had been in his possession for more than fifty years but to which road access had been denied.
On 19 July 1994 the first applicant and his wife instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction, alleging a violation of Article 1 of Protocol No. 1 to the Convention, in respect of their property in Delimara.
On 11 August 1995 the Civil Court found a violation of Article 1 of Protocol No.1 to the Convention. Despite the fact that the property had not been formally expropriated and that therefore the claimants had not received compensation, they had been deprived of the enjoyment of their property to the extent that they could not use it as a residence due to the noise and toxic emissions, and there had therefore been a de facto expropriation. Moreover, the property had suffered a dramatic depreciation in value. The court considered that although the State had had the right to decide where and when to build the power station, which was undoubtedly in the public interest, it was essential that a fair balance be struck between the general interests of the community and individual rights and this could not be achieved if the claimants were made to suffer an excessive burden. The Civil Court deferred the proceedings for further submissions in respect of an adequate remedy.
Both parties appealed.
On 30 April 1996 the Constitutional Court upheld the first-instance judgment. However, it did not determine the amount of compensation. It remitted the case to the Civil Court, with a view to reaching a friendly settlement.
A number of meetings were held over the next three years but no agreement was reached between the parties, in particular because the planning authority failed to approve building permits for any of the sites which were suggested as replacements for the expropriated property. Numerous hearings took place, evidence was heard, various pleadings were made by the first applicant's lawyers, who were replaced regularly, and various court-appointed technical architects, including additional architects as requested by the first applicant, submitted their evaluations. The parties drew up at least two signed private deeds of agreement.
On 30 August 2004, the Civil Court declared the deeds of agreement between the parties null and void as they had not been done by means of a public deed as required by law and it went on to determine the issue of compensation. It emphasised, that his status as a former politician should neither create an advantage for nor prejudice the first applicant, whose rights had to be respected. It awarded him 360,000 Maltese liras (MLT – approximately 864,000 euros (EUR)), having taken into consideration the fact that the applicant and his wife had been suffering a continuous violation since 1992 (when the power station was built), the inconvenience caused to them, the fact that the first applicant, in using the property in the exercise of his duties as Prime Minister, had rendered it of historical interest, the agreements which the parties had attempted to reach and the fact that the property would remain in the applicant and his wife's possession even though it was unfit for habitation and that its value had greatly diminished. However, it refused to consider the damage caused to movables kept in the property and other damage suffered by them (see Part 3 below) as these were irrelevant, since this was a case concerning adequate compensation and not damages. It further rejected as unsubstantiated the first applicant's submission that he had been offered a sum of over MLT 1,000,000 (approximately 2,400,000 EUR) in compensation, an offer he had refused. It also held that the payments which had already been made to him in 1998 and 2002 amounting to MTL 212,950 (approximately EUR 511,080) should be deducted from the sum awarded.
Both parties appealed. The first applicant's children (the second and third applicants) were granted leave to pursue the application in the first applicant's late wife's stead. In particular the applicants claimed that the remedy granted had not been adequate and that the sum awarded was too low. Particular reference was made to the first applicant's prominent public position, the continuous breach they were suffering, the inconveniences suffered in relation to their other properties, the estimates of the property's value, the failure to provide an alternative property, the fact that the amounts already paid had to be deducted, the offer of MLT 1,000,000 (approximately 2,400,000 EUR) which they had received and that allegedly had not been taken into consideration by the court, and the length of the proceedings.
They further alleged that during the appeal proceedings it had transpired that in similar proceedings, namely, B. vs. Commissioner of Lands, the valuation provided by the court-appointed architects was much in excess of that provided in the applicants' case. However, it does not appear from the Constitutional Court's judgment that this argument was raised before it.
On 28 July 2006 the Constitutional Court upheld the reasons given by the first-instance court and the consequent award of compensation. It affirmed that the applicants had the right to be reimbursed the value of the residence which had been rendered uninhabitable. It re-examined the estimates of the value of the property in 1991/92 before the power station was constructed, provided by the court appointed experts and the additional experts, amounting to MTL 95,400 and MTL 130,000 respectively (approximately EUR 228,960 and EUR 312,000) and the estimated value of the property in 1997 had the power station not been constructed, which amounted to MLT 220,000 (approximately EUR 528,000). It took account of the fact that the applicants had had to bear various inconveniences and the delay in granting the remedy, notwithstanding that part of the delay was due to the applicants' intermittent filing of irrelevant notes and depositions. It further considered that between 1998 and 2002 the sum of MTL 212,950 (approximately EUR 511,080) had already been paid to the applicants, the first payment amounting to MTL 128,000 (approximately EUR 307,200) in 1998. All this could be considered together only by determining a sum arbitrio boni viri which the first court had correctly done.
By 2004, the first applicant, who was living in his other house in Tarxien, was contacted by Enemalta Corporation (one of the parties to the above-mentioned proceedings) and the Water Services Corporation, which have a joint debt collecting procedure, for payment of outstanding water and electricity bills relating to the house in Tarxien, amounting to a few hundred Maltese Liras.
Given that the applicants had already been declared to be owed compensation from the Government and Enemalta Corporation and that his utilities were being provided intermittently and suffered from numerous faults, the first applicant refused to pay the bills. As a result, on 2 November 2004 the utilities supply was cut off and was restored only when third parties paid the bill, against the first applicant's wishes.
When the water supply was restored, the pressure was initially too high and caused the pipes to burst, effectively depriving the first applicant of access to clean water, thus rendering his property in Tarxien uninhabitable too.
With respect to the property in Delimara, apart from noise and smoke emissions, further damage was caused by flooding, affecting the roofs and the electrical installations, and causing an infestation of rats. Historical documents and other possessions were also damaged and since no public funds were available to cover the necessary repairs, the insurance company which would not pay damages unless such works were done, threatened to withdraw insurance cover completely.
On 29 March 2005 the applicants instituted proceedings before the Civil Court (First Hall) in its constitutional and “conventional” jurisdiction against the respondents, inter alia, Enemalta Corporation and the Water Services Corporation regarding damage to their Tarxien property. They invoked Articles 1, 6, 8 and 14 of the Convention and Article 1 of Protocol No. 1, and requested the court to provide them with an adequate remedy.
On 29 March 2006 the Civil Court rejected the applicants' claims, in part because the respondent had been incorrectly cited and for the rest it declined from exercising its constitutional jurisdiction on the ground that the applicants had not made use of the ordinary remedies available to them.
On 10 April 2006 the applicants appealed. By a judgment of 20 June 2006 the Constitutional Court upheld the first-instance judgment.
The applicants make reference to a set of legal proceedings in relation to the reinstatement of the Tarxien property, but it is not clear whether these are in fact the same proceedings as are mentioned above or new proceedings and if they are new proceedings whether they have terminated.
According to the applicants' submissions of 23 January 2007, both their houses remain uninhabitable. Moreover, according to their communication, dated 9 April 2007, the first applicant has ongoing problems with his telephone line and does not receive regular post, and as a result, his Telecare telephone service - which he alleges is being tampered with - his correspondence with banks and his receipt of payments due and timely court notifications are adversely affected. Lastly, they allege that the garden of the Tarxien property has been invaded by wild cats and that the local council has not taken any steps to resolve this problem.
Under Maltese law, a person alleging a breach of human rights as guaranteed by the European Convention Act or the Constitution of Malta may, without prejudice to any other remedy with respect to the same matter that is lawfully available, apply to the Civil Court (First Hall) for redress. The latter's practice and procedures are governed by the Maltese Rules of Court.
In respect of an action for damages in tort or quasi-tort, section 1045 of the Civil Code, Chapter 16 of the Laws of Malta, regarding the measure of damages, reads as follows:
“(1) The damage which is to be made good by the person responsible in accordance with the foregoing provisions shall consist in the actual loss which the act shall have directly caused to the injured party, in the expenses which the latter may have been compelled to incur in consequence of the damage, in the loss of actual wages or other earnings, and in the loss of future earnings arising from any permanent incapacity, total or partial, which the act may have caused.”
Mr B. owned property (a residential home and adjacent land) in Delimara which in 1993 had been expropriated for the construction of the said power station. He had been offered MTL 107,000 (approximately EUR 256,800) in compensation, which he contested as being inadequate. In the meantime building work had begun on the land contiguous to his property and as a result he suffered damage over a number of years. Pending proceedings regarding the determination of adequate compensation, he was informed that his property was no longer required by the authorities and was asked to sign a disclaimer of responsibility towards them in respect of it, which he refused to sign.
On an unspecified date Mr B. instituted proceedings before the Civil Court (First Hall) in its ordinary jurisdiction. He claimed that he had sustained damage both to his quality of life and to the value of his property, which remained in his possession, and that the authorities were liable for damages, this being without prejudice to any other remedy available to him for the determination of a violation of his fundamental rights under the European Convention on Human Rights.
On 6 June 2002 the Civil Court found in favour of Mr B. and concluded that the authorities' actions had been abusive and illegal and in violation of his rights as property owner. Consequently, it held the authorities liable for damages and deferred the proceedings for the determination of compensation.
On 31 January 2007 the Civil Court held that in accordance with section 1045 of the Civil Code, damage had to be assessed according to the estimated value of the property had the power station not been built which corresponded to MLT 750,000 (approximately EUR 1,800,000), and its actual value, namely MLT 200,000 (approximately EUR 480,000). Consequently it awarded Mr B. MLT 550,000 (approximately EUR 1,320,000) in damages.
According to the Maltese Court Services website, in February 2007 an appeal was lodged and the case is currently pending before the Court of Appeal (Civil, superior jurisdiction).


ITEMID: 001-92169
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF FELBAB v. SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 8 - Right to respect for private and family life;Violation of Article 13+6 - Right to an effective remedy (Article 6 - Right to a fair trial);Violation of Article 13+8 - Right to an effective remedy (Article 8 - Right to respect for private and family life)
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 6. The applicant was born in 1969 and lives in Zrenjanin, Serbia.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. On 1 August 1992 the applicant married M.F.
9. On 6 February 1993 and 9 September 1994 their children Z.F. and N.F., respectively, were born.
10. In 1998 the applicant and M.F. started having marital problems.
11. On 19 April 1998 M.F. moved out, but the children remained with the applicant.
12. On 31 August 1999 the applicant filed a claim with the Municipal Court in Zrenjanin (“the Municipal Court”), seeking the dissolution of marriage, the custody of the children and a contribution to their maintenance.
13. In January 2000 M.F. spent several days with the children, but failed to return them to the applicant thereafter.
14. On 6 June 2000 the Municipal Court: (i) dissolved the marriage; (ii) granted custody of the children to M.F.; (iii) ordered the applicant to pay monthly child maintenance; and (iv) ruled that the applicant could spend every first and third weekend of each month with the children, as well as seven and fourteen days of their winter and summer holidays, respectively.
15. By 28 September 2000 this judgment had become final.
16. On 9 August 2006 the applicant filed a claim with the Municipal Court, seeking custody of Z.F and N.F. as well as the amendment of the maintenance ordered.
17. On 22 August 2006 M.F. filed a separate claim with the Municipal Court, seeking the amendment of the applicant’s access rights.
18. On 11 September 2006 the Municipal Court joined these proceedings into a single case.
19. On 8 February 2007 the applicant withdrew his claim in respect of N.F.
20. On 12 April 2007 the Municipal Court ruled against the applicant and partly in favour of M.F. In particular, the court ordered that the applicant would be entitled to spend time with Z.F. and N.F. each Sunday between 10 a.m. and 4 p.m., thereby restricting his prior access rights.
21. On an unspecified date thereafter this judgment would appear to have become final.
22. Having apparently been refused access to the children by M.F., on 28 September 2000 the applicant filed an enforcement request with the Municipal Court.
23. On 6 October 2000 the Municipal Court issued an enforcement order, stating, inter alia, that M.F. would be fined 1,500 Serbian dinars should she fail to comply therewith.
24. On 8 November 2000 the applicant informed the Municipal Court that he had been denied all access and requested that the conditional fine now be imposed.
25. On 28 November 2000 the Municipal Court rejected this request as premature, stating that M.F. had received the order in question on 20 November 2000.
26. On 27 March 2001 the Municipal Court confirmed its decision of 28 November 2000.
27. On 25 June 2001 the applicant informed the Municipal Court that his contact with the children was dependent upon the whims of his former wife and noted that the final judgment of 6 June 2000 was being ignored.
28. On 29 June 2001 the Municipal Court decided to impose the said fine and again ordered M.F. to respect the applicant’s access rights.
29. On 22 December 2003 the Social Care Centre based in Zrenjanin (“the Social Care Centre”) informed the court that the applicant had not been in touch with them. They further noted that M.F. had stated that the applicant had not shown any initiative to see the children. Lastly, the Social Care Centre proposed that the enforcement proceedings be terminated.
30. On 21 February 2005 the Municipal Court confirmed its decision of 29 June 2001.
31. On 3 March 2005 the Municipal Court ordered M.F. to pay 6,750 dinars in costs.
32. On 8 May 2008 the Municipal Court scheduled a hearing for 28 May 2008.
33. On 22 May 2008 the Municipal Court cancelled this hearing, terminated the enforcement proceedings and reaffirmed its order of 29 June 2001. As regards the termination, it referred to the judgment rendered in 2007 and relied on the provisions of Article 62 § 1 of the Enforcement Procedure Act (see paragraph 49 below).
34. Having received this decision, the applicant failed to file a formal complaint against it (see paragraph 50 below).
35. On 5 June 2008 M.F. paid the fine first imposed on 6 October 2000.
36. On 20 April 2005 the Municipal Court found the applicant guilty of failing to pay child maintenance between 8 October 2001 and 8 March 2005 and sentenced him to four months in prison, suspended for one year.
37. On 28 September 2007 the Municipal Court revoked the suspended sentence and ordered the applicant to serve the four months in prison.
38. On 7 November 2007 this decision became final and on 4 February 2008 the applicant started serving his sentence. On 23 April 2008, however, the Municipal Court ordered that the applicant be released on parole.
39. On 31 May 2006 the Social Care Centre confirmed that Z.F. had effectively been living with the applicant since 22 April 2006.
40. On 12 October 2006 the said centre observed that: (i) the enforcement proceedings had been ineffective due to the uncooperative attitude of the children, as well as their mother; (ii) the contact between the applicant and the children had been re-established in the summer of 2005; (iii) in late summer of 2005 and April 2006, respectively, Z.F. had fled to the applicant’s home; and (iv) the applicant himself could not be considered to be a positive influence on her.
41. On 22 February 2007 Z.F. again went to stay with the applicant. Ultimately, however, she was returned to her mother by the Social Care Centre.
42. On 6 November 2006 Z.F. stated, inter alia, that she would prefer to live with the applicant.
43. On 21 December 2006 N.F. stated that he wanted to stay with his mother, but was willing to maintain regular contacts with the applicant.
44. It would appear that in December 2007 both Z.F. and N.F. had been staying with the applicant, which is why on 17 December 2007 he had been ordered by the Municipal Court to return them to their mother.
45. In a separate case, on 26 December 2007 the Municipal Court ruled that M.F. was legally entitled to have Z.F. removed from the applicant’s home, where she had stayed temporarily. By 26 December 2007 this judgment became final and Z.F. returned to live with her mother.
46. Following the dissolution of his marriage with M.F., the applicant remarried and fathered another three children.
47. On 22 February 2007 the applicant was diagnosed as suffering from hypertension, hypoglycaemia and spondylosis.
48. On 11 July 2008 the Employment Agency (Nacionalna sluzba za zaposljavanje) confirmed that the applicant had been formally unemployed since 1987, except briefly between 26 October 2001 and 6 March 2002. It would appear, however, that he had worked unofficially during this time and had been an occasional recipient of various social benefits.
49. Article 62 § 1 provides that enforcement proceedings “shall be terminated ex officio if the ... [title being enforced] ... has been ... repealed, reversed, annulled, or otherwise rendered ineffective, or the certification of enforceability has been ... revoked”.
50. Article 49 § 3 provides that the creditor shall have the right to file a complaint against a decision adopted, inter alia, on the basis of Article 62 § 1.
51. Article 209, while placing special emphasis on the best interests of the child, states that there shall be an initial period of three days for voluntary compliance with a child custody and/or access order. Beyond that, however, fines shall be imposed and, ultimately, if necessary, the child shall be taken forcibly, in co-operation with the Social Care Centre.
52. The Enforcement Procedure Act 2004 entered into force in February 2005, thereby repealing the Enforcement Procedure Act 2000. In accordance with Article 304 of this Act, however, all enforcement proceedings instituted prior to 23 February 2005 are to be concluded pursuant to the Enforcement Procedure Act 2000.
VIOLATED_ARTICLES: 13
6
8


ITEMID: 001-96983
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ILIEV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Anton Stefanov Iliev, is a Bulgarian national who was born in 1977 and lives in Ruse. He was represented before the Court by Mr A. Kazakov, a lawyer practising in Ruse. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Kotzeva, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 January 1997 the applicant was conscripted into the Bulgarian armed forces to complete his military service. He was physically fit at the time. The applicant served primarily with the Air Force and was stationed in several garrisons.
On 1 April 1997 he was transferred to garrison no. 26600 in the town of Yambol to attend a radiotelegraph training course.
A medical examination of 2 April 1997 pronounced the applicant physically fit.
According to the applicant his platoon commander in Yambol, Lieutenant A., started to systematically ill-treat him because he failed to meet the performance standards required of him.
The applicant visited the garrison’s infirmary on 8 and 10 May 1997. He was diagnosed with “neurosis” and prescribed antidepressants.
One morning in May 1997 the applicant was ordered to the office of the platoon officers. Lieutenant A., Senior Sergeant H. and Sergeant P. were present. According to the applicant, they criticised him for his low performance in the training course and, as punishment, ordered him to do twenty pushups. When he got down and started the pushups, Lieutenant A. and Senior Sergeant H. started to kick him with their military boots. He was allegedly kicked numerous times in the head, neck and stomach. Sergeant P. allegedly witnessed the beating. The officers then warned the applicant not to tell anyone what had happened.
According to the applicant, soon after that he started having problems with his vision and had pain in his neck.
On an unspecified date the applicant visited the garrison’s infirmary. It is unclear whether any injuries were found on his person. The garrison doctor apparently diagnosed the applicant with cervical spondylosis and redirected him to the Sliven Military Hospital for an X-ray examination.
On 27 May 1997 the applicant was examined in the Sliven Military Hospital where the diagnosis of cervical spondylosis was confirmed.
The applicant visited the garrison’s infirmary on 28 and 30 May and again on 3 June 1997 when he was diagnosed with “neurosis”. He was redirected to the Sliven Military Hospital where he was hospitalised for an undetermined number of days. Upon his discharge from the hospital he was given home leave on medical grounds.
Upon expiration of the home leave, on 10 July 1997 the applicant returned to his former garrison in the village of Bezmer.
The applicant continued to seek medical treatment. He visited the garrison’s infirmary in Bezmer on 16 and 17 July and 11 and 13 August 1997. On each occasion he was diagnosed with “neurosis” and was prescribed antidepressants.
After a medical examination on 3 November 1997 the applicant was pronounced physically fit.
On 25 November 1997 the applicant suffered his first seizure involving convulsion of the limbs, frothing at the mouth and loss of consciousness. The applicant was taken to the Sliven Military Hospital where he was hospitalised from 25 November to 10 December 1997. He suffered a second seizure while in hospital and was diagnosed with “suspected epilepsy”. Upon being discharged from the hospital the applicant was given home leave on medical grounds.
While on home leave he suffered a third seizure on 21 December 1997.
After returning to his garrison, the applicant had a follow-up examination at the Sliven Military Hospital on 5 January 1998. He was apparently redirected to the Neurological Department of the Military Medical Academy in Sofia (“MMA”), where he was hospitalised from 7 to 9 January 1998. The applicant was diagnosed with:
“Neurovegetative dystonia. Syncope. [Observed] pro-epilepsy”.
On 10 January 1998 the applicant was discharged from the military as the term of his military service had expired.
On an unspecified later date he was pronounced unfit for active military service on medical grounds and was removed from the military’s reserve list.
Following the applicant’s discharge from the military his medical condition continued to deteriorate and the number and frequency of the seizures increased.
Following a fourth seizure on 15 January 1998 the applicant was hospitalised at the MMA from 23 January to 18 February 1998. He was diagnosed with:
“Epilepsy – acute seizures. Lymphadenitis generalised non-specific”.
On 25 February 1998 a CAT scan was performed on the applicant’s head at the Pleven Medical University. It was discovered that he had a cerebral oedema.
The applicant was again hospitalised at the Neurological Unit of the Ruse District Hospital from 2 to 25 March 1998 and then from 28 July to 2 August 1999. During his first stay he was diagnosed with:
“Head contusion. Symptomatic [of epilepsy].”
During his second stay the diagnosis was:
“[Epilepsy] – acute seizures. Massive functional cumulation.”
Between 25 June and 9 July 2001 the applicant was hospitalised at the MMA. On 3 July 2001 he underwent an operation during which a cavernous angioma (a benign vascular malformation which can be caused by a trauma to the spinal cord) was removed from his brain.
On an unspecified date in early 1998 the applicant’s mother complained to the General Staff of the Bulgarian armed forces (the “General Staff”) of the deterioration in her son’s health while he was in the military. In response, by letter of 23 March 1998, the General Staff informed her that her son had received all the medical assistance required.
In September 1999, at the applicant’s request, a doctor drew up an expert report on his state of health. On the basis of the relevant medical documents and the applicant’s explanations, he concluded that the applicant had developed epilepsy during the time of his military service but that it could not be established with certainty whether its cause had been related to the alleged beating of the applicant in May 1997.
On 5 January 2000 the applicant himself complained to the General Staff. He apparently named the officers involved in the alleged beating in the Yambol garrison and Sergeant P., who had allegedly witnessed it.
By order of 15 December 2000 the Chairman of the General Staff of the Air Force set up an internal commission to investigate the applicant’s accusations. In the course of its work, the commission questioned Lieutenant A., Senior Sergeant H. and the doctor at the Yambol garrison’s infirmary. Sergeant P. was not sought out for questioning because he had left the military in 1998. The officers questioned denied that the applicant had been ill-treated or that they had beaten him. The garrison’s doctor also denied that she had seen any injuries on the applicant during the medical examinations performed at the time.
By letter of 16 January 2001 the General Staff informed the applicant that the investigation had concluded that his accusations were unfounded and that his complaints would not be followed up any further.
On 15 November 2000 the applicant also filed a complaint with the Sliven military prosecutor’s office, which opened a preliminary investigation and questioned Senior Sergeant H. and the doctor at the Yambol garrison, who both said that they did not remember the applicant. Sergeant H. denied ever beating or hitting soldiers and the garrison doctor denied any knowledge of ill-treatment of the applicant. Sergeant P. was not questioned as he had not been found at his known address.
On 19 January 2001 a prosecutor from the Sliven military prosecutor’s office refused to open criminal proceedings in relation to the alleged illtreatment of the applicant. On the basis of the testimonies obtained, the applicant’s medical records and the medical expert report drawn up in 1999, he concluded that it had not been established that the applicant had been beaten in the Yambol garrison or that his medical condition had resulted from a trauma allegedly sustained during that beating.
On appeal by the applicant, on 11 September 2001 that decision was upheld by the military appellate prosecutor’s office in Sofia.
It appears that the applicant did not appeal against that decision to the Chief Public Prosecutor’s Office.
By decision of 5 March 2001, the Ruse Labour-Expert Medical Commission (“the LEMC”) assessed the applicant’s medical condition and recognised him to be disabled with 69.75% disability. Upon appeal, by decisions of 22 June and 22 October 2001, the Central Labour-Expert Medical Commission (“the CLEMC”) quashed the decision of the LEMC and assessed the applicant to be disabled with 90% disability. The starting date of the disability was determined to be 11 December 1997. In its decisions, the CLEMC referred to the applicant’s allegations that he had been beaten in May 1997 but did not conclude that this had caused his medical condition.
In December 2001 the applicant started to receive an army pension.
His disability was reassessed by the LEMC on 20 February 2003. The commission found that the number and frequency of his seizures had decreased and assessed the applicant to be disabled with 74.80% disability. Upon appeal, by decision of 13 November 2003, the CLEMC quashed the decision of the LEMC and further decreased the applicant’s percentage of disability to 50%. Once again the CLEMC referred to the applicant’s alleged beating in May 1997 but did not state that it considered this to be the cause of his medical condition.
The applicant was entitled to appeal against the decision of the CLEMC but apparently failed to do so.
Apparently, as a result of the reduction of his disability level, on 1 June 2004 the applicant’s army pension was decreased from an unspecified amount to 60.95 Bulgarian levs (the equivalent of 31 euros).
On 2 August 2001 the applicant filed a complaint with the prosecutor’s office, challenging the grounds for his discharge from the military on 10 January 1998.
By letter of 6 August 2001 the Sliven regional prosecutor’s office informed him that it was not competent to rule on the matter and that instead he should initiate an administrative action challenging the order for his discharge. It does not appear that the applicant initiated any such action.
The applicant filed several more complaints to various authorities seeking compensation for the damage caused as a result of the illness he developed while in the military. In response, by letters of 4 and 8 February 2001 from the Ministry of Defence, letters of 9 February and 5 March 2001 from the General Staff and a letter of 17 October 2001 from the MMA, he was informed of the procedure and formalities required to claim the special compensation provided for in section 249 § 1 of the Armed Forces Act, in force at the time. In particular, the applicant was advised of the need to obtain an evaluation of his medical condition by the Military Medical Commission, which apparently he did not do.
Neither did he bring an action before the civil courts to seek compensation, as he was expressly entitled to do under section 249 § 6 of the Armed Forces Act, in force at the time.


ITEMID: 001-82885
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VARNAI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: 4. The applicant was born in 1937 and lives in Budapest.
5. On 18 June 1996 the applicant’s wife filed for divorce.
6. After several hearings, on 12 March 1999 the Budapest II/III District Court dissolved the parties’ marriage, and ordered the applicant to pay maintenance for the couple’s daughter in the amount of 386,260 Hungarian forints (HUF), which included arrears. The court allowed no suspensive effect for any appeal on the maintenance decision. The use of the couple’s flat was granted to the wife alone.
7. On appeal, the Budapest Regional Court held three hearings and obtained the opinion of a real-estate valuation expert. On 7 November 2000 the court amended the first instance decision, holding that the applicant was entitled to compensation in the amount of 2.75 million Hungarian forints, which corresponded to his share of the flat. It ordered that this liability be taken into account when the District Court, in the resumed proceedings, would eventually decide on the division of the matrimonial property.
8. On 27 April 2001 execution was ordered. On 17 October 2001 the applicant was evicted from the family flat. On 15 November 2001 his car was attached, apparently in order to recover maintenance still owed.
9. The proceedings in respect of the remainder of the parties’ common property were resumed before the District Court on 9 October 2002. Between 5 May 2003 and 25 January 2007 numerous hearings took place, and the case was extended to include several further respondents.
10. According to the information provided by the parties and the elements available in the case file to date, the case has not yet ended.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1