ITEMID: 001-113534
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF HELENA TRZNADEL v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1957 and lives in Mielec.
6. The applicant is married with two children. Prior to her early retirement she had been employed for twenty eight years and had paid social security contributions to the State.
7. On 28 December 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension.
8. Along with her application for a pension, the applicant submitted, among other documents concerning her daughter’s health condition, a medical certificate issued by a specialist doctor on 17 December 2001. The certificate stated that her daughter N. (born in 1996) had suffered in particular from chronic rhinitis (przewlekła zapalenie nosa) and chronic bronchitis (zapalenie oskrzeli).
9. On 29 January 2002 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension in the net amount of 678.80 Polish zlotys.
10. On 25 September 2002 the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of her parent. On an unknown date the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.
11. On 2 October 2002 the Rzeszów Social Security Board issued simultaneously two decisions for the applicant. By virtue of the first decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings and revoked the initial decision granting a pension and eventually refused to award the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance.
12. The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension.
13. On 22 September 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) quashed the SSB’s decisions and granted the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance. The court considered that the SSB should not have reopened the proceedings ex officio. The parties appealed.
14. On 26 February 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) quashed the Regional Court’s judgment and remitted the case.
15. On 29 July 2004 the Tarnobrzeg Regional Court dismissed the applicant’s appeal. The Regional Court concluded on the basis of the evidence that the applicant’s child did not require her mother’s permanent care since her health condition did not significantly impair her bodily functions. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care.
16. On 24 November 2004 the Court of Appeal dismissed the appeal.
17. On 8 March 2005 the Supreme Court refused to entertain a cassation appeal lodged by the applicant’s lawyer.
18. Following the revocation of her right to the early-retirement pension the applicant was not ordered to return her early-retirement benefits paid by the Social Security Board.
19. The applicant did not provide details about her financial situation after the revocation of EWK pension. She only submitted that she was unemployed.
20. The Government submitted that following the revocation of the EWK pension the applicant did not work and most likely benefitted from social assistance. They stressed that between 1 January 1999 and 6 July 2003 the applicant’s husband was employed. His yearly income amounted to 9,120 PLN in 2002 and 6,191 PLN in 2003. As of 1 July 2003 the applicant’s husband became eligible for a work disability pension which he has been receiving ever since.
21. In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they have failed to specify which of those benefits, if any, were available in the applicant’s situation.
22. Under the relevant laws currently in force, the applicant will qualify for a regular retirement pension when she turns sixty in 2017.
23. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region.
24. Out of all applications lodged with the Court, about twenty-four applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case.
25. One-hundred-and-four applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eighty-one applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements.
26. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 31-34, 15 September 2009.
27. The reopening of the proceedings concerning the early-retirement pension is regulated in section 114 (1) of the Law of 13 October 1998 on the system of social insurance (Ustawa o systemie ubezpieczeń społecznych), which at the relevant time read as follows:
“The right to benefits or the amount of benefits will be re-assessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.”
On 1 July 2004 a new subparagraph 114 (1)(a) was added, which reads as follows:
“Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.”
28. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a second-instance court. A party had to be represented by an advocate or a legal adviser.
29. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
30. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find non-conformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was well-founded the Supreme Court could also amend the impugned judgment and adjudicate on the merits.
31. On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 (3) of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an age-limit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution.
32. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 (3) of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits.
33. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted.
34. On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-84787
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: SKORIK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: The applicant, Ms Lyudmila Vasilyevna Skorik, is a Ukrainian national who was born in 1963 and lives in the city of Kyiv, Ukraine. She was represented before the Court by Ms E. A. Prikhodko, who resides in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Ms I. Shevchuk, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1987 the applicant inherited a house with a plot of land. She subsequently had a land dispute with her neighbours, Ms G. and Ms T., as to the limits of their respective plots.
On 2 August 1988 the Shevchenkivsky District Court of Kyiv found for the applicant in her dispute with G. concerning the border between their plots of land. On 23 May 1990 the Kiev City Court quashed the decision of 2 August 1988 and remitted the case for fresh consideration. The proceedings were subsequently terminated. On 18 March 1991 the first-instance court issued a ruling on reversal of execution of the decision of 2 August 1988.
On 24 June 1991 the Executive Committee of the Shevchenkivsky District Council of Kyiv (hereafter “the Executive Committee”) decided that the limits of the plots should be in accordance with technical reports which had been drawn up in 1964.
On 16 October 1991 the Shevchenkivsky District Court of Kyiv found against the applicant in her dispute with G. as to the use of a shed situated on the border of the applicant’s and G’s plots of land. The court decided that, despite the fact that according to the technical reports of 1964 the shed was situated on the applicant’s plot of land, there were no documents which could prove the property rights for the shed in question. The court further found that according to the testimonies of witnesses, since the 1950s the shed had been used by the household in which G. lived.
On 20 November 1991 the Kiev City Court upheld in cassation the decision of the first-instance court.
On 6 April 1992, following the above judicial decisions, the Executive Committee invalidated its decision of 24 June 1991 and approved the current limits of the plots in question. This decision was to the applicant’s disadvantage.
In November 1999 the applicant instituted proceedings in the Shevchenkivsky District Court of Kyiv against G., T. and the Executive Committee, challenging the decision of 6 April 1992 and requesting that all obstacles to her free use of her land be removed.
In May and November 2000 the court ordered forensic expert reports to be drawn up in the case. The first concluded that the actual limits of the land plots did not correspond to the technical documentation, and the second concluded that the actual limits corresponded to the decision of the Executive Committee of 6 April 1992.
At the court hearing of 24 May 2001 the applicant sought to introduce an additional claim seeking the invalidation of land ownership certificates issued to G. and T. in June 2000. The defendants objected to this new claim as unrelated and noted that the applicant could submit it separately. The court subsequently rejected this additional claim within the impugned proceedings.
On 6 December 2001 the Shevchenkivsky District Court of Kyiv found against the applicant, having established that she had challenged the decision of 6 April 1992 outside the statutory time-limit and that the actual border between the plots of land, as confirmed by the forensic report, corresponded to the decision of 6 April 1992. Given the validity of the decision of 6 April 1992 the court rejected the remainder of the applicant’s arguments as unfounded.
On 13 March 2002 the Kyiv City Court of Appeal upheld the judgment of 6 December 2001. On 31 May 2002 the applicant posted a cassation appeal, which was received by the court on 10 June 2002.
On 14 June 2002 the Shevchenkivsky Local Court rejected the applicant’s request for a cassation appeal as having been submitted too late. The court stated that, under the new wording of Article 321 of the Code of Civil Procedure (hereafter “the CCP”), which had entered into force on 4 April 2002, the time-limit for lodging an appeal in cassation was one month, and that the applicant had exceeded that time-limit by only submitting her appeal on 10 June 2002.
On 7 October 2002 the Kyiv City Court of Appeal upheld the ruling of 14 June 2002, stating that the applicant had lodged her appeal on 10 June 2002, which had been outside the new one-month time-limit established by law, and had not requested an extension of the time-limit for lodging such an appeal.
On 28 October 2002 the applicant’s representative lodged an appeal in cassation against the rulings of 14 June and 7 October 2002.
On 27 May 2003 the Supreme Court returned the appeal to the first-instance court to decide on compliance of the appeal with procedural formalities, namely on the fact that the applicant’s representative had submitted the cassation appeal on her own behalf and not on behalf of the applicant.
By a ruling of 25 June 2003 the Shevchenkivsky Local Court requested that the applicant’s representative bring the cassation appeal in compliance with procedural formalities and fixed the deadline for doing so at 18 August 2003. The representative resubmitted the appeal with the same shortcomings.
On 19 August 2003 the first-instance court returned the cassation appeal without consideration for failure to comply with procedural formalities.
On 24 October 2003 the Kyiv City Court of Appeal upheld the ruling of 19 August 2003.
The applicant appealed in cassation.
On 3 February 2004 the Shevchenkivsky Local Court requested that the applicant’s representative bring the cassation appeal in compliance with procedural formalities and fixed the deadline for doing so at 25 February 2004.
By ruling of 25 February 2004 the same court extended the deadline for the applicant’s representative to submit her corrected cassation appeal to 10 March 2004.
On 30 November 2004 a panel of three judges of the Supreme Court rejected the applicant’s request for leave to appeal in cassation against the rulings of 19 August and 24 October 2003.
At the time of the second-instance decision on appeal, the first paragraph of Article 321 of the CCP provided that a cassation appeal should be lodged within three months of the decision on appeal or within a year of the decision of the first-instance court, if the latter decision was not appealed against under the normal appeal procedure.
On 7 March 2002 the Ukrainian Parliament passed a law amending the CCP (hereafter “the Amendment Act”), including the Article in question. It came into force on 4 April 2002. The new wording of Article 321 created a one-month time-limit for lodging a cassation application against the decision of an appellate court.


ITEMID: 001-85895
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ALEKSANYAN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Robert Vladimirovich Aleksanyan, is a Russian national who was born in 1958 and lives in Sochi, the Krasnodar Region. The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant possessed a plot of land, which was in his family’s de facto tenure for more than 20 years. In 2000 he applied to the local authority (Отдел архитектуры и градостроительства администрации Адлерского района г. Сочи) seeking to have his title to the plot registered. However, the local authority refused his request. The applicant brought proceedings against the local authority.
On 1 August 2002 the Adlerskiy District Court of Sochi granted the applicant’s claim and obliged the defendant to register the applicant’s title to the plot of land at issue. No appeal was lodged against the judgment, and it became binding and enforceable.
On an unspecified date the defendant filed an application for reopening of the case in view of the newly discovered circumstances. The defendant referred to the decision of the head of the local administration dated 22 July 2002 which could have affected the outcome of the proceedings.
By the decision of 20 November 2002 the Adlerskiy District Court granted the defendant’s request, quashed the judgment of 1 August 2002 and reopened the proceedings.
On 10 December 2002 the Adlerskiy District Court decided that the applicant’s claim should be dismissed. However, on 23 January 2003 the Krasnodar Regional Court quashed the above judgment on appeal, declared the decision of 22 July 2002 void and granted the applicant’s claim.
On an unspecified date the defendant lodged an application for supervisory review of the appeal decision of 23 January 2003.
On 16 October 2003 the Presidium of the Krasnodar Regional Court held a supervisory-review hearing and quashed the decision of 23 January 2003 and remitted the case for a fresh examination at the first-instance court.
The applicant lodged an application for supervisory review of the decision of 16 October 2003, but on 28 July 2004 the Supreme Court of Russia dismissed his request.
On 15 January 2004 the Adlerskiy District Court left the applicant’s action without consideration due to the applicant’s alleged failures to appear for the hearings.
In October 2004, as soon as the applicant learned about the decision of 15 January 2004, he tried to file an appeal against it claiming to have never been apprised of any hearings before the district court.
In the final decision of 14 December 2004 the Krasnodar Regional Court held that the applicant had failed to provide the court with valid reasons for his absence from the hearings and that he had failed for a long time to raise this issue before the court. The applicant’s reference to the absence of summons in the case file was left unexamined.
However, following the applicant’s request, on 14 April 2005 the Presidium of the Krasnodar Regional Court found that there had been no proof of the applicant’s notification of the hearings of 10 and 15 January 2004 in the case file. On that ground it quashed the decision of 15 January 2004 and remitted the case for a fresh examination at the first-instance court.
The outcome of the fresh examination of the applicant’s case has not been made known to the Court.


ITEMID: 001-97451
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ALIYEVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant, Khava Aliyeva, was born in 1967 and lives in Grozny.
6. At the material time the applicant, her husband, Mr Abu Aliyev, born in 1962, and their five children lived in flat no. 77 at 141 Khmelnitskaya Street, Grozny, in the Chechen Republic. Mr Abu Aliyev was disabled as he had had one leg amputated.
7. At 2.00 a.m. on 29 October 2002 several armoured personnel carriers (“APCs”) and UAZ vehicles arrived at 141 Khmelnitskaya Street and around thirty armed men wearing camouflage uniforms and masks got out of the vehicles. They broke down the door of the Aliyevs' flat and entered. The men did not identify themselves but the applicant believed that they belonged to the Russian military because they spoke unaccented Russian and had blue eyes.
8. The servicemen searched the flat and took money in the amount of 1,500 roubles, certain personal items and books on Islam. Then they dragged Mr Abu Aliyev out of the bed, forced him onto the floor and beat him. Meanwhile some of them ordered the applicant to go into the kitchen. She obeyed; once in the kitchen she grabbed a knife, but the servicemen threatened to shoot her unless she dropped it. The men tied the applicant up with adhesive tape and threw her on to the floor. Then they took with them Mr Abu Aliyev, who was wearing only his underwear, and left.
9. The applicant's neighbour, Ms B., looked through the window and saw masked men in camouflage uniforms dragging out the half-naked Mr Abu Aliyev. She rushed to the Aliyevs' flat and found the applicant tied up with adhesive tape and her children crying. After Ms B. had untied the applicant they rushed into the street, but heard only the sound of the vehicles. The applicant has enclosed a written statement by Ms B. to corroborate her account of the events.
10. The next day relatives of Mr Yu. A., who lived in the neighbouring district of Grozny, came to see the applicant. She had never met them before and believed that her husband did not know Mr Yu. A. either. They said that Mr Yu. A. had also been abducted the previous might by armed men in APCs and asked her whether she had any information about the captives. The applicant replied that she had no information. The applicant has not furnished any statements by the relatives of Mr Yu. A. concerning the latter's alleged abduction.
11. According to the Government, on 1 November 2002 the Grozny Prosecutor's Office received from the Prosecutor's Office of the Chechen Republic the applicant's request to take measures to find her husband, Mr Abu Aliyev, taken on 29 October 2002 to an unknown destination by unidentified men in camouflage uniforms armed with automatic weapons and who had UAZ vehicles.
12. On 30 October 2002 the applicant, requesting assistance in the search for her husband, reported his abduction to various State agencies, such as the prosecutors' offices of Grozny and the Chechen Republic, the Security Council of the Chechen Republic and the Chechen Administration.
13. On 11 November 2002 the Chechen Administration informed the applicant that her complaint had been forwarded to the Grozny Prosecutor's Office.
14. On 12 November 2002 the Grozny Prosecutor's Office informed the applicant that an investigation into her husband's kidnapping had been instituted on 11 November 2002 under Article 126 § 2 of the Russian Criminal Code (“aggravated kidnapping”). The decision to institute the investigation stated, inter alia:
“On 29 October 2002 at approximately 2 a.m. unidentified men armed with automatic weapons in masks and camouflage uniforms, having broken down the entrance door, entered apartment no. 77 at Bogdana Khmelnitskogo street, house 141, building 5 in the Leninskiy Distict of Grozny and forcibly took [Mr] Abu Adamovich Aliyev, born in 1962, residing at the above stated address, to an unknown destination.”
15. On 4 December 2002 the Grozny Prosecutor's Office granted the applicant victim status in case no. 48193. It appears that she was questioned on the same date. According to the Government, she stated that on the night of 29 October 2002 she had been woken up by noise from the stairwell. She had got dressed and when she had approached the door she had heard her neighbour telling somebody not to break down the door. She had wanted to go out and see what was happening, however at that moment armed men wearing camouflage uniforms and masks had broken down the door and burst into the apartment. Without giving any explanations they had searched the apartment. They had put adhesive tape on her mouth, tied up her hands and feet and thrown her on to the kitchen floor. Then, having taken some minor personal things, books on Islam, subha (Muslim prayer beads) and money in the amount of RUB 1,500 they had left, taking her husband with them. When she ran outside she saw an APC and a UAZ vehicle with its lights off going towards the veterinary clinic. She has had no information about her husband since.
16. On an unspecified date Ms B. was questioned. According to the Government she submitted that on the night of 29 October 2002 she had heard noise and had gone out to the stairway enclosure. There she had seen somebody breaking down the door between the lobby and the staircase. She had said not to break down the door as she would open it herself. However, unknown persons had broken down the door and entered. They were armed men in masks with automatic guns. One of them had said to her in Russian “Stand back!” and had closed the door to her apartment. She had heard them breaking down the door of the Aliyevs' apartment. When she looked out into the street she saw a man in camouflage uniform with an automatic weapon sitting there. Then she opened the door again and saw an armed man in a mask who noticed her and turned towards her. She got frightened and closed the door. Then she heard the noise in the stairway enclosure and went to the kitchen window to see what was going on in the yard. There she saw a group of approximately ten men in camouflage uniforms walking fast towards Bogdana Khmelnitskogo Street. Two of them were carrying Mr Abu Aliyev. There was nobody else in the street. She left her apartment and went to see the applicant to find out what had happened. The applicant told her that those men had been looking for her husband. They had tied her up but had not touched the children.
17. On 13 January 2003 the Grozny Prosecutor's Office informed the applicant that the investigation into her husband's kidnapping had been stayed for a failure to identify those responsible.
18. On 17 and 23 January 2003 the Grozny Prosecutor's Office informed the Special Envoy of the Russian President in Chechnya for Rights and Freedoms and the applicant that an investigation in case no. 48193 had been instituted on 11 November 2002.
19. On 9 March 2003 the Grozny Prosecutor's Office informed the applicant that the investigation in case no. 48193 had been stayed for a failure to identify those responsible and that investigative measures were being taken to resolve the crime.
20. On 23 June 2003 the applicant was again questioned. According to the Government, she submitted no new information.
21. On 27 August 2003 the investigating authorities sent instructions to district prosecutors in the Chechen Republic to intensify search measures.
22. On 7 October 2003 the applicant asked the Grozny Prosecutor's Office to clarify what stage the investigation into her husband's kidnapping had reached. She further requested that, if the proceedings had been stayed, the decision to suspend the investigation be quashed.
23. On 8 October 2003 Ms Sh., the applicant's neighbour, was questioned. According to the Government, she stated that on the night of the abduction she had been woken up by the noise. However, she had noticed nothing else and had fallen asleep again. The next morning she had learned that Mr Abu Aliyev had been abducted.
24. On 9 October 2003 Mr B., another neighbour of the applicant, was questioned. According to the Government, he submitted that he was living with his ex-wife in the apartment next to the Aliyevs. On 29 October 2002 she had been woken up by loud noise in the stairway enclosure. He had thought that it was thieves, but his wife had said that it was servicemen. She had asked him not to go out and had gone to the window herself. They had heard noise from apartment no. 77 but had not been able to understand what was going on there. In about ten minutes everything had calmed down and they had gone to apartment no. 77 to find out what had happened. There in the kitchen he had seen the applicant who had said that the armed men in camouflage uniforms had taken away her husband. His wife had confirmed that she had seen armed men in camouflage uniforms.
25. On 10 October 2003 the Leninskiy District Prosecutor's Office informed the applicant that the decision to suspend the investigation in case no. 48193 was compatible with domestic law and thus there were no reasons to quash it.
26. On 13 October 2003 Ms G., who apparently also lived in Bogdana Khmelnitskogo Street, was questioned. According to the Government, she stated that she had no close relationship with the Aliyevs. She had learned about the abduction a few days later from her neighbours. Mr G., questioned on the same date, made a similar statement.
27. On 16 October 2003 Ms S., the applicant's neighbour, was questioned. According to the Government, she submitted that on the night of 29 October 2002 she had been woken up by the noise. She had opened the door to the balcony and had called out to the applicant since she had thought that the noise had been coming out from their apartment. She had heard no reply and had gone down to the applicant's apartment. There she had seen the applicant who had just been untied by her daughter. Later Ms S. had learned that armed men had taken away Mr Abu Aliyev.
28. On 17 October 2003 Ms A., the applicant's daughter, was questioned. According to the Government, she stated that on the night of 29 October 2002 she had been woken up by a horrible noise. Her three-year-old brother had also woken up and they had got frightened and started to cry. The armed people burst into their apartment. One of them ordered her to stop crying and to calm down her brother. They had left in approximately ten to fifteen minutes. Then she had heard her mother calling her. Ms A. had gone to the kitchen and found her mother there, tied up with adhesive tape. Ms A. had untied her, and her mother had run outside. Ms A. had not seen her father being taken away.
29. On the same date the applicant requested the Prosecutor's Office of the Chechen Republic that she be permitted to copy the investigation file, at her own expense.
30. On 27 October 2003 the applicant requested the Prosecutor's Office of the Chechen Republic to help her find her husband, who had been kidnapped by armed men in camouflage uniforms.
31. On 5 November 2003 the Prosecutor's Office of the Chechen Republic denied the applicant access to the case file, giving the reason that the investigation had not been completed.
32. On 9 February 2004 the Leninskiy District Prosecutor's Office informed the applicant that the investigation into her husband's kidnapping had been resumed and invited her to visit their premises on 14 February 2004 for additional questioning as a victim.
33. On 14 February 2004 Mr A., Mr Abu Aliyev's brother, was questioned. According to the Government, he submitted that he had learned of his brother's abduction from his cousin. He had been surprised because the day before his brother had visited him and they had been planting apple trees together.
34. On 9 March 2004 the investigation in case no. 48193 was again suspended; the applicant was not promptly informed of the decision.
35. On 16 June 2004 the applicant requested the Leninskiy District Prosecutor's Office to inform her of recent developments in the investigation and to allow her access to the case file.
36. On 26 June 2004 she repeated the request.
37. According to the Government, in the course of the investigation measures were taken to establish the whereabouts of Mr Abu Aliyev and to identify the perpetrators. In particular, requests for information were sent to Departments of the Interior and prosecutors of different levels in Chechnya and Dagestan, the FSB Department in Chechnya, the Chechen penitentiary and passport-visa authorities, the Ministry of the Interior and other bodies. As a result of those measures it was established that Mr Abu Aliyev had not been detained by State authorities and had not been placed in either remand or administrative detention facilities. He was not found in hospitals, nor was his body to be found in any morgue either. No special operations were being conducted by the federal forces in Grozny on the date in question. The investigation did not establish that servicemen were involved in the crime. Operational search measures were being taken in the criminal case.
38. The Government provided documents related to the investigation on ten pages, including copies of the decisions to institute the investigation and to grant the applicant victim status and of notifications sent to he application concerning the institution, suspension and resumption of the investigation. The Government enclosed no transcripts of questioning and no other documents concerning the investigative measures allegedly taken.
On 22 December 2003 the applicant lodged a complaint with the Leninskiy District Court of Grozny. She requested that the decision on suspension of the investigation be quashed and that the investigators' inactivity be found unlawful.
On 16 June 2004 the applicant requested the Leninskiy District Court of Grozny to inform her whether the complaint of 22 December 2003 had been examined.
On 15 July 2004 the Leninskiy District Court of Grozny dismissed the applicant's complaint having found that the investigators had taken all requisite measures to resolve the crime.
On 22 July 2004 the applicant appealed against the court's decision.
On 15 September 2004 the Supreme Court of the Chechen Republic dismissed the applicant's appeal, finding no flaws in the investigation.
39. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-96610
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF PENEV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-3-a+6-1;Violation of Art. 6-3-b+6-1;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1946 and lives in Sofia.
7. In July 1998 the Plama oil refinery, a joint stock company with its main office in Pleven (“Plama” or “the company”), was declared insolvent. On 18 May 1999 the applicant was appointed its trustee in insolvency.
8. On 21 May 1999 Mrs L.T., a former trustee of Plama, lodged a statement of claim on behalf of the company in the Pleven Regional Court.
9. On 22 June 1999 the Pleven Regional Court advised the applicant to specify whether he would confirm this action. The applicant decided to retain a lawyer, Mr Y.N. On 5 July 1999 he obtained the authorisation of the insolvency court to pay Mr Y.N. a fee of 150,000 Bulgarian levs (BGN), the equivalent of approximately 76,900 euros (EUR), for Plama’s legal representation in the proceedings.
10. On 7 July 1999 Mr Y.N. attended a court hearing and requested in writing that the proceedings be terminated, since the action had been brought by Mrs L.T., who did not represent Plama at the time. Upon request by the defendant, the case was transferred to the Sofia City Court where the proceedings were subsequently terminated.
11. Meanwhile, the creditors of Plama agreed upon a plan for the company’s recovery. On 8 July 1999 the plan was approved by the insolvency court and the applicant’s functions as trustee in insolvency were terminated. However, he retained some supervisory functions.
12. On 15 July 1999 the applicant signed two orders for the transfer of BGN 150,000 to Mr Y.N.’s bank account.
13. Later in 1999 an investigation was opened in relation to the applicant’s actions. On 7 June 2001 the prosecution filed an indictment against him. He was indicted with exceeding his powers (Article 282 § 2 of the Criminal Code, see paragraphs 24 and 26 below) in that, acting as an official with whom powers were vested by virtue of law (длъжностно лице), he had retained a lawyer to represent the company before obtaining the insolvency court’s authorisation to pay the fee agreed upon, and that on 15 July 1999 he had ordered that the sum of BGN 150,000 be paid to Mr Y.N., even though by that time he had ceased to act as a trustee in insolvency of the company and was no longer authorised to act for it.
14. On an unspecified date Plama was constituted as a civil party in the criminal proceedings against the applicant and brought an action for damages in the amount of BGN 150,000.
15. On 5 December 2001 the Pleven District Court convicted the applicant as charged, sentenced him to four years’ imprisonment and allowed in full Plama’s civil claim.
16. The applicant lodged an appeal against the judgment of the Pleven District Court.
17. On 18 December 2002 the verdict was upheld by the Pleven Regional Court, which dismissed an objection by the applicant that he had not had an official capacity (длъжностно лице). It held that it was sufficient that as a trustee he had assumed managerial functions and responsibility for the company’s assets.
18. On the first charge against the applicant, that he had exceeded his powers in retaining a lawyer to represent the company, the Regional Court found that it had certainly not been necessary to retain a lawyer, provided that the only thing the latter had done had been to request the termination of the proceedings. Thus, the applicant had indebted the company with the lawyer’s fee whereas it had not received any gain in return. The applicant had not therefore acted in accordance with the rights and powers vested in him as a trustee but with the aim of enriching Mr Y.N. and inflicting a financial loss on Plama.
19. Similarly, the Regional Court found that the applicant had exceeded his powers in ordering the payment of Mr Y.N.’s fees.
20. The applicant appealed in cassation. He argued that he had not acted as an official and that, therefore, he could not have committed an offence under Article 282 of the Criminal Code. He argued, furthermore, that he had acted in accordance with the law and had not unnecessarily indebted Plama.
21. The Supreme Court of Cassation delivered a judgment on 10 December 2003. It confirmed the lower courts’ conclusion that the applicant had had an official capacity. However, it held that in retaining a lawyer and ordering the payment of the legal fees he had not exceeded his powers as a trustee. Retaining a lawyer had been within his powers and, as he had continued to exercise supervisory functions after the adoption of the plan for Plama’s recovery, he had had the power to order the payment. Furthermore, Article 282 of the Criminal Code concerned offences against the proper exercise of State power, whereas it had been alleged that the applicant had acted against the interests of a private company. It followed that he could not have committed an offence under Article 282 of the Criminal Code. Therefore, on the charges of having exceeded his powers, the Supreme Court of Cassation acquitted the applicant.
22. Nevertheless, the Supreme Court of Cassation found that as the applicant had deliberately entered into a contract which was disadvantageous to the company he was guilty of an offence under Article 220 § 1 of the Criminal Code (see paragraph 25 below). In the domestic court’s view, returning such an alternative verdict was procedurally lawful, per argumentum a contrario, under Article 285 § 1 of the Code of Criminal Procedure, since it was based on the circumstances underlying the initial charges and the applicant had defended himself in respect of those circumstances throughout the proceedings. Only the legal characterisation of the facts had changed.
23. Accordingly, the Supreme Court of Cassation convicted the applicant of deliberately entering into a disadvantageous contract and thus inflicting substantial damage on Plama, and sentenced him to a suspended term of one year’s imprisonment. It affirmed the lower courts’ judgments in the part allowing Plama’s civil claim. That judgment was final.
24. Article 282 § 1 of the Criminal Code, as in force at the relevant time, provided that an official in whom certain powers were vested by virtue of law (длъжностно лице), who breached or failed to fulfil his duties, or exceeded his power, with the aim of obtaining a benefit for himself or a third party, or of causing damage to others, was to be punished by up to five years’ imprisonment or correctional labour. Article 282 § 2 envisaged imprisonment of up to eight years where considerable material damage had resulted from these acts or the offender had occupied a senior managerial post.
25. Under Article 220 § 1 of the Criminal Code, an official in whom certain powers are vested by virtue of law (длъжностно лице), who deliberately enters into a disadvantageous contract which can result in substantial damage to the company or organisation he represents, is to be punished by imprisonment of up to five years.
26. In accordance with the structure of the Criminal Code of 1968, Article 282 was at the relevant time classified as an offence against the functioning of State bodies and public organisations, while Article 220 was considered an offence against the economy.
27. Article 285 § 1 of the Code of Criminal Procedure 1974, in force until April 2006, required that the prosecution file a new indictment in cases where, at the trial stage of the proceedings, it transpired that there were grounds to substantially amend the factual basis of the charges, or to bring charges which required a more severe punishment. Under Article 285 § 3, in cases where a new indictment was necessary and the parties had so requested, the domestic court had to adjourn the hearing for further argument.
28. Identical provisions are contained in Article 287 §§ 1 and 3 of the new Code of Criminal Procedure, in force from April 2006.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-a
6-3-b


ITEMID: 001-22219
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: LAVRSEN v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Danish national, born in 1942, living in Piraeus, Greece. He is represented before the Court by Mr Jakob Skaarup Arrevad, a lawyer practising in Copenhagen, Denmark. The respondent Government are represented by its Agent Mr Hans Klingenberg, the Ministry of Justice, and its Co-Agent, Mrs Nina Holst-Christensen, the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
By indictment of 5 September 1991 the applicant, at that time a practising lawyer, jointly with one of his clients, henceforth called MA, was charged with aggravated breach of trust alleged to have been committed in their roles as manager and/or chairman of the board of two companies, owned by MA over a short period between July and September 1989, during which period, they had let the companies purchase three industrial properties from a company controlled by MA at a price substantially above market value, the amount including an agency commission to MA exceeding 4.6 million Danish kroner (DKK), whereby the acquiring companies suffered or risked suffering a corresponding financial loss. The companies went bankrupt on 26 September 1989.
Moreover the applicant (and MA) was charged with fraud alleged to have been committed in the same period relating to the sale of two cars to a person henceforth called SP under the pretence that the cars were not in pawn.
The applicant and MA pleaded not guilty on both counts. As regards the second count they claimed that SP acted in bad faith. Several hearings were held in the City Court. During these proceedings SP and 8 other witnesses were heard, including 3 witnesses henceforth called MWK, KAT and IK.
The prosecution and the defence agreed not to hear 2 witnesses henceforth called THL and BA.
By judgment of 8 December 1992 the City Court of Ballerup (Ballerup ret) convicted the applicant (and MA). The applicant was sentenced to 2 years’ imprisonment and deprived of his right to practise law. From the judgment it appears that in order to convict the applicant (and MA) of aggravated breach of trust the court relied partly on the testimonies given by MWK and KAT concerning the contents and aim of some particular transactions these witnesses had with MA. As regards the charge of fraud it appears that the court relied partly on the testimonies given by SP and IK concerning the sale of the 2 cars.
The applicant (and MA) appealed against the judgment to the High Court of Eastern Denmark (Østre Landsret). During these proceedings 11 witnesses were heard, including SP, MWK, KAT and IK. As regards these witnesses the applicant expressed doubts during the proceedings in the High Court as to their credibility and therefore requested the prosecution to provide information about their criminal records, and that counsel for the defence be allowed to ask questions, in writing, about any pending charges which might have been brought against them concerning financial crime. In accordance with section 185 of the Administration of Justice Act (Retsplejeloven) this was complied with. MWK and IK confirmed that charges were brought against them. SP had previously been convicted of fraud and fraudulent preference.
On 21 December 1993 the High Court of Eastern Denmark upheld the judgment, but increased the sentence to 2 years and 6 months’ imprisonment. As regards the conviction for aggravated breach of trust the High Court referred to the reasoning given by the City Court. However, regarding the conviction for fraud the High Court relied, in addition to the reasoning given by the City Court, on testimony given by a witness who was not heard before the City Court.
After the trial in the High Court and due to press coverage, the applicant and counsel for the defence, accidentally became aware that within the police a so-called Information Centre in January 1990 had composed a note called “Anti-Social Trade” (Samfundsskadelig Samhandel), henceforth called the note, illustrating a new pattern of crime, and outlining 23 named individuals suspected of being interrelated in a network of financial crimes in Denmark, mainly concerning fraudulent trading in connection with deliberate bankruptcy intentions, breaches of laws concerning bookkeeping and accounting in companies, customs and excise fraud committed in connection with car sales, and finally fraud related to the raising of credit secured on real property. Among the persons mentioned in the note were the applicant, MA, SP, MWK, KAT, IK, THL and BA. The note contained information about judgments, charges, dropped charges, and mere suspicions against each person in regard to the above criminality, and a statement of their assumed mutual business connections. According to the note it was ascertained that this limited circle, among others, systematically exploited those loopholes and ambiguities in the Danish legislation, which sometimes arise in connection with new legislation and/or reorganisation of administrative procedures.
It appears from the introductory paragraphs of the note that the State Prosecutor for Financial Crime (Statsadvokaten for Særlig Økonomisk Kriminalitet) in 1989 decided that the Information Centre was to illustrate this new pattern of crime. The Information Centre was not supposed to go into depth as to bring forth evidence to prove that crimes had been committed, it was merely intended to outline the information available. If the result turned out as expected the purpose was to have a special group appointed from several different police units, as none could manage the task alone for resource reasons. This group was then to make concrete investigations with the targeted attempt to have proceedings instituted against the individuals in question.
The note was distributed to the Prosecutor General (Rigsadvokaten), the State Prosecutors (Statsadvokaterne), the National Commissioner of Police (Rigspolitichefen) and the various police districts.
The prosecution did not submit the note, either to the applicant, or to the court during the criminal proceedings against the applicant
The applicant requested leave to appeal against the above judgment of the High Court to the Supreme Court (Højesteret). With a view to this counsel for the defence asked the prosecution, on 16 June 1994, to submit a copy of the above note. However, access to the note was refused by the State Prosecutor for Financial Crime on 22 July 1994, by the Prosecutor General on 2 November 1994 and by the Ministry of Justice (Justitsministeriet) on 12 April 1995.
The applicant then brought legal proceedings before the High Court of Eastern Denmark against the Ministry of Justice requesting that counsel for the defence be given access to the note.
Before the High Court as regard the nature of the note in general the Ministry of Justice referred to its reply of 30 May 1996 to a question from Parliament, according to which inter alia:
“The note has been drafted by the Information Centre...mainly for use in deliberations on how to rank the cases in order of priority, on combinations of resources and on prosecution competence...
On the basis of the note...concrete investigative steps were taken, and that was the primary purpose of the note...several of the individuals referred to in the note have been prosecuted and a number of them have been convicted.
The note contains a compilation of a series of particulars and suspicions... concerning 23 named individuals. The note was thus a good foundation, in an investigating context, for the police and the prosecutors to ensure better co-ordination of the investigation and the commencement of prosecution in cases regarding financial crime...”
The High Court of Eastern Denmark found for the Ministry on 7 November 1996. The applicant appealed against the judgment to the Supreme Court, before which the prosecutor in the applicant’s trial as a witness stated that he was given a copy of the note as general material like all other prosecutors working for the State Prosecutor for Financial Crime, but since the note did not form part of any specific case, he did not use it in connection with his work on the applicant’s case.
The Supreme Court found for the applicant on 11 June 1998, stating as follows:
“According to section 745, subsection 1 of the Administration of Justice Act the defence is entitled to have access to material produced by the police. As stated by the Prosecutor General in his notice No. 5 of 15 April 1992, to come within the scope of this provision, the material needs to have some connection with the relevant trial. However, it does not have to be of real importance to the investigation or to the possible continuation of the prosecution.
From the Minister of Justice’s answer of 30 May 1996 to Parliament it appears, among other things, that as a result of the “Anti-Social Trade” note and in accordance with the main aim of the note, specific measures and investigation were initiated.
The Ministry of Justice does not dispute that the applicant, the co-accused and some of the witnesses who were heard during the applicant’s trial figure in the note, including the mutual relationship among some of them. The investigations were initiated shortly after the note was composed, and both the persons in charge of the investigations and the prosecutor were in possession of the note.
In these circumstances, the Supreme Court considers that the note has such a connection with the applicant’s trial that the defence is entitled to have access to it cf. section 745, subsection 1 of the Administration of Justice Act.”
A copy of the note was hereafter sent to the applicant’s counsel on 23 June 1998. Subsequently, in support of his request for leave to appeal the applicant alleged that Article 6 § 1 of the Convention had been violated, notably as the principle of equality of arms had not been complied with. In this respect he referred to the content of the note, with which both the police and the prosecution were familiar, but which was not available to counsel for the defence during the criminal trial.
On 12 October 1998 the Ministry of Justice refused the applicant’s request for leave to appeal to the Supreme Court for which reason the High Court judgment of 21 December 1993 became final.


ITEMID: 001-58516
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF ANDREAS WABL v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 10
TEXT: 6. In June 1988 the applicant participated in a protest campaign against the stationing of interceptor fighter planes (Abfangjäger) near Graz airport. In the course of a police action, Police Officer Fellner charged the applicant with having scratched his right arm, and he subsequently requested that the applicant be prosecuted for having caused grievous bodily harm (schwere Körperverletzung). In July 1988 the Graz Public Prosecutor's Office (Staatsanwaltschaft) informed the applicant that the investigation proceedings against him had been discontinued.
7. On 14 August 1988 the “Neue Kronen-Zeitung - Steirerkrone”, issued in Graz, published the following article, under the title “Styrian Green politician and member of Parliament injured civil servant/Request for him to be handed over on account of the risk of infection” and with the headline “Police Officer claims: AIDS test for Wabl!”. The article read as follows:
“Dramatic contribution to the debate on the privilege of members of Parliament: Police Officer Walter Fellner (34) from Aflenz not only requests that Styrian Green politician and member of Parliament Andreas Wabl be handed over, but also that the member of Parliament - who is immune because of privileges, be subjected to an AIDS-test. Reason: Wabl scratched Fellner and drew blood.
'I don't dare to touch my wife and I can't even kiss my children' - Since he has been involved in a police action against the opponents of the [planes] the family life of Police Officer Walter Fellner is ruined. The fear of the immune deficiency syndrome paralyses the social relations and the sexual life of the father of three.
The explosive background: On 10 June, shortly after the [planes] had been stationed, the Police Officer, a senior Police Inspector, participated in a police action in the area of a camp of opponents of the [planes] at Graz-Thalerhof airport. On this occasion, 'friction' developed between the demonstrators and the police. The result of an altercation between Fellner and the Green politician Andreas Wabl was two bleeding scratches, one five, the other ten, centimetres long, to Fellner's right lower arm. Two witnesses and the local medical officer confirmed the injuries.
Fellner does not claim that the immune member of Parliament is suffering from the immune deficiency syndrome, but, as the Inspector told the 'Steirerkrone': 'The member of Parliament had been in contact with the other demonstrators and they were not particularly clean.' Criminal proceedings against Wabl on a charge of causing bodily injury have been discontinued on the ground of the triviality of the injury. Fellner nevertheless requests that the member of Parliament be handed over.
'Mr. Wabl has to undergo an AIDS-test, as he might have infected me', states Fellner and thereby asks the Green 'scratcher' to have a blood sample taken for the purposes of an immune deficiency syndrome test. Wabl's victim also intends to claim compensation for moral damages. As regards his claims for compensation, Fellner is represented by the Graz lawyer Candidus Cortolezis, who is known to be close to the opponents of the [planes] and not to the authorities who guard the [planes].”
8. This article, reproduced on pages 8 and 9 of the newspaper, was accompanied by a photograph showing the applicant and two police officers with the sub-title “AIDS-test for the privileged member of Parliament? Wabl (centre) in an altercation with the police.”
9. The article was announced on the front page as follows:
“Green politician Wabl should have an AIDS test.
The Police Officer Walter Fellner from Aflenz asks Green member of Parliament Andreas Wabl to undergo an AIDS-test. Wabl scratched Fellner and drew blood in the course of an altercation (pages 8/9).”
10. The applicant requested the author of the article in question, who had not contacted him prior to its publication, to publish a rectification as well as a statement drafted by the applicant.
11. The text of this statement, published in the "Steirerkrone" on 17 August 1988, read as follows:
“In the context of the report on Fellner's request for an AIDS-test, the 'Steirerkrone' wishes to clarify that, when mentioning the disease AIDS, it never intended to defame, for personal or political reasons, the member of Parliament Andreas Wabl. We wish to apologise for any gross claims which were not appropriate to our standards of fairness and our reputation as journalists.”
12. This statement was printed as an annex to an article with the headline "Defamation of Green politician not intended/hygiene expert Möse reassures: 'No AIDS-infection from scratches!'", with the following text:
“On Tuesday, the Graz 'hygiene-king', university professor Josef Möse, reassured the Police Officer Walter Fellner from Aflenz, who feared an infection with AIDS from scratches which were allegedly inflicted on him by Green member of Parliament Andreas Wabl. Möse: 'AIDS cannot be caught from scratches.'
Möse, President of the Austrian AIDS Committee, informed the 'Steirerkrone': 'Nobody has anything to fear from a simple scratch. Infection is impossible.' The Head of the Graz Institute for Hygiene declared his immediate willingness to 'hold at any time an explanatory talk' with the senior Police Inspector and his family.
As reported Fellner feared that he had been infected with the AIDS virus by two scratches to his right lower arm, which were inflicted on him in the course of an altercation with the Green member of Parliament Andreas Wabl. Criminal proceedings on a charges of causing bodily harm (superficial reddening) have been discontinued by the Graz Public Prosecutor's Office on the ground that the factual elements of the offence were not present.”
13. The article further referred to the applicant's claims that the matter was a political campaign intending to bring him into disrepute.
14. Also on 17 August 1988 the applicant, on the occasion of a press conference, commented on the events of 10 June 1988 and in particular the above articles of 14 and 17 August 1988. He informed the press of his opinion regarding the background to the events which he considered to be a "political character assassination" ("politischer Rufmord"). When asked by a journalist how he felt about the above events, the applicant replied as follows:
“This is Nazi-journalism.”
15. This statement was quoted in the Austrian media.
16. On 29 August 1988 the company publishing the newspaper “Kronen-Zeitung” brought injunction proceedings under section 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) against the applicant with the Graz Regional Civil Court (Landesgericht für Zivilrechtssachen). It requested that the applicant be prohibited from repeating the statement according to which the contents of the “Kronen-Zeitung” were “Nazi-journalism” and to arrange for a rectification.
17. In the context of private prosecution proceedings instituted by the applicant in respect of the article of 14 August 1988, the Vienna Regional Criminal Court (Landesgericht für Strafsachen), as confirmed by the Vienna Court of Appeal (Oberlandesgericht) on 5 February 1990, convicted the company publishing the “Kronen-Zeitung” of defamation, pursuant to the Media Act (Mediengesetz), and ordered it to pay compensation to the applicant.
18. On 5 February 1993 the Graz Regional Civil Court dismissed the injunction claim. The Court observed that section 1330 of the Civil Code envisaged an injunction in respect of any statement of facts which jeopardised someone's reputation, income or livelihood, the untruth of which was known or must have been known. Considering all circumstances, and in particular the background of the press conference and the impugned statement, the Court found that the applicant had used the expression “Nazi-journalism” as a value-judgment. The Court based its decision on the statements made by the applicant and various witnesses, as well as on an expert opinion regarding the interpretation of the expression “Nazi-journalism”.
19. On 30 June 1993 the Graz Court of Appeal dismissed the plaintiff's appeal (Berufung). The Court of Appeal confirmed the findings of the first instance court that the impugned statement was a value-judgment. Furthermore, even assuming that the impugned statement was an untrue statement of fact, the plaintiff had failed to show that the applicant had known or should have known that this statement was untrue. In this respect, the Court of Appeal referred to the expert opinion according to which the defamation of political opponents with an alleged illness was an essential element of the journalism under the Nazi regime. Furthermore, even assuming that the impugned statement amounted to an insult, it was justified as a reaction to the plaintiff's previous publication on the applicant.
20. On 14 December 1993 the Austrian Supreme Court (Oberster Gerichtshof), upon the plaintiff's further appeal (außerordentliche Revision), reversed the Appeal Court's decision and issued an injunction against the applicant prohibiting him from repeating the statement that the article of 14 August 1988 amounted to “Nazi-journalism”, and similar statements.
21. According to the Supreme Court, section 1330 § 2 of the Civil Code presupposed facts, i.e. circumstances, the existence of which could be demonstrated. If a value-judgment was based on particular facts it comprised a statement of facts. The question whether or not “facts” had been disseminated had to be examined against the general context of the impugned statement, as understood by the man in the street. In this respect the interpretation least favourable to the offender had to be placed on the statement. Objective criticism presupposed that the value-judgment corresponded to unchallenged or proven facts. The Supreme Court further observed that, under section 1330 § 2 of the Civil Code, the plaintiff had to prove that the discrediting statement was untrue, unless the statement also amounted to an insult; in the latter case, the offender had to prove the truth of the statement concerned. The question whether or not a statement constituted an unlawful interference with a person's reputation could only be assessed by balancing all relevant circumstances.
22. The Supreme Court found that the applicant's reproach of “Nazi-journalism” had concerned an article published by the plaintiff, and had arisen on the occasion of a press conference concerning the plaintiff's defamatory report about the applicant. The impugned statement had been an answer to a question put by one of the journalists, and, in the circumstances, the Court had no doubt that this statement only related to the particular article of 14 August 1988. In this context, the applicant's statement was a value-judgment. In any event, there was no indication as to how the journalist had understood the applicant's reproach “Nazi-journalism”.
23. The Supreme Court considered further whether this value-judgment fell within the scope of section 1330 § 1 of the Civil Code. The plaintiff could claim an injunction under this provision if, considering all circumstances, the plaintiff's interests were not less important than the applicant's. The Supreme Court found that the plaintiff had an interest not to be associated with National Socialism. The reproach “Nazi-journalism” was close to a charge of criminal behaviour under the National Socialism Prohibition Act (Verbotsgesetz). The Supreme Court also noted that the applicant's statement was a reaction to an article published by the plaintiff which contained the assumption that the applicant was suffering from the immune deficiency syndrome, i.e. a contagious disease, which provokes fear and antipathy amongst the majority of the population. His indignation about the defamatory reporting might appear understandable but could not justify the reproach that the plaintiff's way of reporting came close to criminal behaviour, in particular as he himself could have brought proceedings under section 1330 of the Civil Code against the plaintiff. Balancing all circumstances, the Supreme Court concluded that the applicant's interests did not outweigh the plaintiff's. The right to freedom of expression could not justify such a serious attack on the plaintiff's reputation. For the same reasons, the impugned statement could not be regarded as permissible political criticism, which is supposed to provoke or shock. The Supreme Court also noted that, having regard to the applicant's submissions in the course of the proceedings, there was a risk that he would repeat the statement in question.
24. This decision was served on the applicant's counsel on 8 February 1994.
25. Section 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows:
“(1) Anybody who, due to defamation, suffers real damage or loss of profit, may claim compensation.
(2) The same applies if anyone is disseminating facts which jeopardise someone's reputation, income or livelihood, the untruth of which was known or must have been known to him. In this case there is also a right to claim a revocation and the publication thereof...”
26. After the Second World War, Austria introduced legislation penalising activities inspired by National Socialist ideas, i.e. the National Socialism Prohibition Act (Verbotsgesetz). In the State Treaty (Staatsvertrag) of 1955, Austria confirmed its undertaking to prohibit any such activities.
27. The applicant applied to the Commission on 7 July 1994. He alleged that the Supreme Court’s judgment of 14 December 1993 prohibiting him from repeating the reproach with “Nazi-journalism” constituted a violation of Article 10 of the Convention.
28. The Commission declared the application (no. 24773/94) admissible on 10 April 1997. In its report of 4 March 1998 (former Article 31 of the Convention), it expressed by a majority the opinion that there had been no violation of Article 10 of the Convention.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-72954
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MARKIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection allowed (non-exhaustion of domestic remedies)
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1936 and lives in Kumertau in the Republic of Bashkortostan.
9. In September 1994 the applicant purchased an imported second-hand car from a third person. Subsequently, the Bashkir Customs Board (“the Customs”) discovered that the car had been customs cleared by its previous owner on the basis of forged documents for which reason, on 13 May 1997, it conﬁscated the car pursuant to Article 280 of the Customs Code.
10. Upon the applicant’s challenge on 15 May 1997 to the Customs’ decision, seeking to declare the decision to seize the car unlawful, the Sovetskiy District Court of Ufa upheld the Customs’ decision on 24 June 1997. The judgment was final and not subject to appeal.
11. On an unspecified date the applicant requested the Supreme Court to examine the case anew under a supervisory-review procedure. On 5 February 1999 the Presidium of the Supreme Court of Bashkortostan allowed the application, set aside the judgment and remitted the case for re-examination.
12. By judgment of 19 March 1999 the Sovetskiy District Court held in the applicant’s favour. It found it established that the applicant had not known that the customs clearance was improper for which reason the court quashed the Customs’ decision of 13 May 1997 as unlawful. The judgment was final and not subject to appeal.
13. Following a subsequent successful supervisory-review request submitted by the Customs, the above judgment of 19 March 1999 was quashed and the case remitted once more to the Sovetskiy District Court for consideration. By judgment of 28 April 2000 this court held in favour of the Customs and dismissed the applicant’s challenge to the Customs’ decision of 13 May 1997.
14. Following yet another supervisory review the Supreme Court of the Russian Federation on 3 June 2002 quashed the above judgment of 28 April 2000 and re-instated the judgment of 19 March 1999 which granted the applicant’s complaint that the Customs’ decision of 13 May 1997 was unlawful.
15. According to the applicant, since his request for recovery of the car lodged with the Customs on 24 April 1999 had been to no avail, on 3 June 1999 he unsuccessfully attempted to file a suit against the Customs before the Sovetskiy District Court of Ufa seeking, inter alia, the restitution of his car and non-pecuniary damages. He then unsuccessfully attempted to bring many actions against courts, including the Sovetskiy District Court of Ufa, and individual judges accusing them of libel, incompetence, and obstruction of justice. However, he has failed, according to information available to the Court, properly to institute proceedings with a view to obtain compensation for the relevant losses.
16. According to the Government, the car was not returned to the applicant because it had been sold following its confiscation in accordance with the legislation of the Russian Federation.
17. Article 280 of the Customs Code of 1993 establishes the responsibility for non-compliance with the rules for importing goods:
“Transportation, storage and acquisition of goods and vehicles imported into the customs territory of the Russian Federation without due customs control, or avoiding such control, or with fraudulent use of documents or identification means, or with a violation of declaration rules... shall be penalised by a fine in the amount ranging from fifty to two hundred per cent of the cost of the goods and vehicles, which are the object of the offence, with or without their confiscation, or with the recovery of the cost of such goods and vehicles, or with or without the revocation of a licence.”
18. The applicant’s appeal of 15 May 1997 against the Board’s decision of 13 May 1997 was lodged under Article 239 of the then Code of Civil Procedure which introduced judicial review of executive decisions. Article 239 in force at the material time read as follows:
Article 239. Decision of Court taken upon appeal
A court, having established that the order of an administrative agency or official is unlawful, shall take a decision to allow the appeal.
If the amount of the imposed fine exceeds the limit set by the legislation, the court shall reduce the amount of the fine down to the set limit. If the fine is imposed without consideration of the seriousness of the committed malefaction, personal characteristics of the guilty person and his economic situation, the court may reduce the amount of the fine.
If acts of an administrative agency or official are lawful, the court shall take a decision to deny the appeal.
19. The Federal Law N 4866-1 On Judicial Appeal against Acts and Decisions Infringing Individual Rights and Freedoms dated 27 April 1993, provides for a judicial avenue for claims against public authorities. It states that any act, decision or omission by a state body or official can be challenged before a court if it encroaches on an individual’s rights or freedoms or unlawfully vests an obligation or liability on an individual. In such proceedings the court is entitled to declare the disputed act, decision or omission unlawful, to order the public authority to act in a certain way vis-à-vis the individual, to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom. If the court finds the disputed act, decision or omission unlawful this gives rise to a civil claim for damages against the State.
20. Damage caused to an individual as a result of an unlawful imposition of administrative penalty in the form of arrest or corrective works is compensated pursuant to Article 1070 of the Russian Federation Civil Code, and in all other instances of damages caused to an individual by unlawful acts (inaction) of the State agencies or officials thereof is compensated according to the rules set by Article 1069 of the Russian Federation Civil Code. These provisions read as follows:
Article 1070. Liability for harm caused by unlawful actions of agencies of inquiry, preliminary investigation, the prosecutor’s office and the court
1. Harm caused to an individual as a result of unlawful conviction, unlawful bringing to criminal responsibility, unlawful application as a measure of restraint of remand in custody or of a written undertaking not to leave a specified place, unlawful imposition of an administrative penalty in the form of arrest or corrective labour, shall be compensated in full at the expense of the treasury of the Russian Federation and in cases, stipulated by law, at the expense of the treasury of the subject of the Russian Federation or of the municipal authority, regardless of the fault of the officials of agencies of inquiry, preliminary investigation, prosecutor’s offices or courts in the procedure established by law.
2. Harm caused to an individual or a legal entity as a result of the unlawful activity of agencies of inquiry, preliminary investigation, prosecutor’s offices, which has not entailed the consequences, specified by paragraph 1 of this Article, shall be compensated on the grounds and in the procedure, provided for by Article 1069 of this Code. Harm caused during the administration of justice shall be compensated in cases, if the fault of a judge has been established by the court’s judgment that has entered into legal force.
Article 1069. Liability for harm caused by state bodies, local self-government bodies, and also their officials
Harm caused to an individual or a legal entity as a result of unlawful actions (inaction) of state and local self-government bodies or of their officials, including as a result of the issuance of an act of a state or self-government body inconsistent with the law or any other legal act, shall be subject to compensation. Harm shall be compensated at the expense, respectively, of the treasury of the Russian Federation, the treasury of the subject of the Russian Federation, or the treasury of the municipal authority.
21. The above damage is compensated pursuant to a procedure established by law. Until now the procedure has not been established by the legislature. In practice, while deciding upon such issues the courts are guided by the Decree of the Presidium of the USSR Supreme Soviet of 18 May 1981 on Compensation of damage caused to citizen by unlawful acts of state and non-government organisations, as well as by officials while performing their official duties. Regulations on procedure to compensate damage were approved by that Decree.
22. Pursuant to the above compensation of damage is effected pursuant to an application of an individual to a court or any other authority which has the responsibility to order compensation.


ITEMID: 001-87001
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ENKE v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: The applicant, Mr Günter Enke, is a German national who was born in 1943 and lives in Leipzig (Germany). He was represented before the Court by Mr M. Kyjovský, a lawyer practising in Brno. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The Government of Germany did not make use of their right to intervene (Article 36 § 1 of the Convention).
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 December 1993, during his stay in the Czech Republic, the applicant’s car was damaged by a snow excavator.
On 30 December 1996 the applicant filed a motion seeking the issuance of a payment order and an action for damages with the Trutnov District Court (okresní soud) against the Pec pod Sněžkou Municipality (Město Pec pod Sněžkou), the Pec pod Sněžkou Services (Služby města Pec pod Sněžkou) and the owner of the excavator.
The proceedings terminated on 22 December 2004 on the date on which a judgment of the District Court of 12 March 2004 became final.
On 20 July 2006 the applicant applied for compensation pursuant to Act no. 82/1998 as amended. He claimed EUR 1,800 in respect of fees and expenses incurred in the domestic proceedings.
In a letter of 5 March 2007 the Ministry of Justice informed the applicant that his application had been accepted, that it had been found that his right to a determination of his civil claim within a reasonable time had been violated, but that the length of the proceedings did not justify a financial compensation. The Ministry refused also the applicant’s claim regarding compensation for pecuniary damage.
On 21 March 2007 the applicant informed the Registry that he did not intend to turn to a court under section 15(2) of Act no. 82/1998 as amended.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007)


ITEMID: 001-58146
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF PETROVIC v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 14+8
JUDGES: John Freeland;B. Walsh
TEXT: 6. Mr Antun Petrovic, an Austrian national, was born in 1950 and lives in Vienna.
7. At the material time, he was a student and worked part time. His wife, who had already finished her university studies and was a civil servant in a federal ministry, gave birth on 27 February 1989. She carried on working while the applicant took parental leave to look after the child.
8. On 25 April 1989 Mr Petrovic claimed a parental leave allowance (Karenzurlaubsgeld).
9. On 26 May 1989 his claim was turned down by the local employment office (Arbeitsamt) on the ground that section 26(1) of the Unemployment Benefit Act 1977 (see paragraph 14 below) provided that only mothers could claim such an allowance when a child was born.
10. On 14 June 1989 the applicant appealed against that decision to the Vienna Regional Employment Office (Landesarbeitsamt). He contended that that provision of the Unemployment Benefit Act, under which men were not entitled to a parental leave allowance, was discriminatory and, therefore, unconstitutional.
11. On 4 July 1989 the Regional Employment Office dismissed the applicant’s appeal for the same reasons as the local employment office (see paragraph 9 above).
12. On 18 August 1989 Mr Petrovic lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He again argued that section 26(1) of the Unemployment Benefit Act was unconstitutional, as it was inconsistent with the principle of equality and Article 8 of the Convention.
13. On 12 December 1991, after considering the complaint in private, the Constitutional Court declined to accept it for adjudication on the ground that it did not have sufficient prospects of success.
Referring to its case-law, the Constitutional Court held that section 26(1) did not infringe the applicant’s constitutional rights and was not contrary to Article 8 or Article 12 of the Convention. It added that even if regard was had to recent statutory amendments (section 26 of the Unemployment Benefit Act had been amended by a federal law of 12 December 1989 – see paragraph 15 below), the applicant’s complaint was unfounded, seeing that the legislature had a certain amount of time in which to adapt new rules to changes in society (Anpassung gesetzlicher Vorschriften an geänderte Verhältnisse).
14. Under section 26(1) of the Unemployment Benefit Act 1977, mothers were entitled to a parental leave allowance provided that, following the birth of their child, they took up to one year’s parental leave and were eligible for maternity benefit (Wochengeld – a welfare allowance payable to working mothers for a period of eight weeks after the birth).
15. That section was amended by a federal law of 12 December 1989 (Official Gazette no. 651/1989), which came into force on 1 January 1990. It is now provided that a father may claim a parental leave allowance if he is in employment, has primary responsibility for looking after the child and the child lives under the same roof. In addition, the mother must either be entitled to parental leave as a result of the birth and have waived that right in whole or in part or, if not entitled to parental leave, be prevented by her work from looking after the child.
However, the new rules apply only in respect of children born after 31 December 1989 and therefore do not cover the applicant, whose child was born on 27 February 1989.
NON_VIOLATED_ARTICLES: 14
8