ITEMID: 001-99447
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: RUPAR v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Ms Hilda Rupar, is a Slovenian national who was born in 1927 and lives in Domžale. She was represented before the Court by Mr B. Mrva, a lawyer practising in Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Since 1975 the applicant has had a foundry in the village of Selo where she has been producing products such as ashtrays and door handles. Her and her daughter's income depends on this business.
4. On the adjoining plot of land, the owner, J.S., built extensions to his building, which had originally been built for a handicraft business. The applicant's plot stands to the west of J.S.'s plot. As a result of the extensions, there is less than ten metres between the applicant's and J.S.'s buildings. The extensions were in the form of eight apartments. They were built without the required building permits and several injunctions were issued prohibiting J.S. from continuing with the building work or from using the unlawfully built constructions (see paragraphs 17-23 below).
The apartments were nevertheless sold and all of them are currently inhabited.
5. The applicant submitted that, because of the illegally built extensions, J.S.'s land was practically all built up and there was no space left for the appertaining land. Consequently, the residents, who were mostly families, had been using the applicant's land for parking, playing, etc. An oil-fuel tank had been placed on the terrace of J.S.'s building and was a potential fire risk to the applicant. The rainwater run-off was directed onto the applicant's plot of land. The unlawfully built flats had no proper drainage, which resulted in an intolerable smell and the conditions were against all health and hygiene standards. The new residents were constantly complaining about the foundry's activities, which operate twenty-four hours a day.
6. In 1989 J.S. obtained a site permit (permit for use of land – lokacijsko dovoljenje) for a large extension to his initial construction to convert part of the workshop into an apartment block and for the construction of a building for business and storage purposes. This permit was renewed by a decision of 9 September 1993. Subsequently, J.S. obtained a building permit (gradbeno dovoljenje) on 26 January 1995.
7. On 13 July 1998, following the applicant's successful request for the matter to be reopened, the Domžale Administrative Unit quashed the decisions by which the site and building permits had been granted. The applicant participated as party to these and further proceedings. As regards the site permit, an appeal by J.S. was dismissed by the Ministry of the Environment and Spatial Planning (“the Ministry”) on 18 November 1999. J.S. subsequently applied to the Administrative Court challenging the Ministry's decision. His application was rejected on 24 May 2000. He then appealed to the Supreme Court. His appeal was dismissed on 18 March 2004.
8. As regards the building permit, the Ministry quashed the decision of 13 July 1998 and ordered a re-examination of the application on 22 November 1999. Subsequently, on 16 January 2007, the Domžale Administrative Unit again quashed the decision of 26 January 1995, meaning that J.S.'s request for a building permit was refused. It relied on the fact that, following the above proceedings (see paragraph 7 above), J.S. was not in possession of a valid site permit which was a prerequisite for acquiring a building permit.
9. In 1997 the applicant instituted proceedings against J.S. in the Ljubljana District Court seeking the demolition of the unlawfully built extensions. She claimed that the extensions had been endangering her business and having a negative effect on working conditions.
10. On 10 July and 22 September 1997 respectively, the District Court issued two interim orders prohibiting J.S. from continuing with the illegal construction and selling the apartments. J.S. did not respect the orders and continued with the construction.
11. In the course of the proceedings, the court appointed a construction expert who prepared a report. The court refused the applicant's request for a supplement to the report finding that the request raised issues which should be determined in the administrative proceedings.
12. On 1 June 1998 the court, relying on the expert report, dismissed the applicant's claim. Referring to the conditions laid down in sections 42(1) and 5(1) of the Law on Basic Property Rights and section 156 of the Law on Obligations, it found that the deprivation of sunlight did not exceed the statutory limit and that the behaviour of the new residents could not be considered as a source of danger which could justify demolishing the building. In respect of the smell allegedly arising from the drainage, the court found that, firstly, the applicant had not raised this issue in her claim and secondly, the drainage problems had not been caused by the newly built extensions. The applicant could therefore not expect these extensions to be demolished. Lastly, the court noted that the issue of whether J.S.'s construction complied with statutory requirements was not relevant to the civil proceedings because, even if a construction was legal, an aggrieved party could seek redress in respect of an alleged environmental nuisance (imisije) in civil proceedings. The question of the compliance with statutory requirements was therefore a matter which had to be decided in the administrative proceedings. Consequently, the court also revoked the interim orders of 10 July and 22 September 1997.
13. The applicant lodged an appeal and on 24 February 1999 the Ljubljana Higher Court upheld the first-instance court's judgment. As regards the applicant's argument that she had been refused protection from future interferences by residents of the illegal construction, the Higher Court noted that the potential source of damage would have to be certain and concrete, which could not be established in the present case. In addition, it noted that none of the other issues mentioned by the applicant, namely, how many parking spaces were available to the new residents and where the fuel tank and rubbish bins should be placed, justified the demolition of the extensions and would be more appropriately considered in administrative proceedings.
14. On 30 March 2000 the Supreme Court rejected the applicant's appeal on points of law, finding that the lower courts' conclusions were correct and stressing that the applicant's allegations did not obviously justify the demolition of the disputed construction, which was the only claim pursued by the applicant. It added that demolition could be ordered only when there were no other means to prevent damage.
15. The applicant lodged a constitutional appeal. She disputed the lower court's opinion that she should have used other means in order to protect her right to property. She alleged that, owing to the circumstances of the case, in particular J.S.'s non-compliance with the authorities' orders and the lack of alternative solutions to the problems deriving from the illegal building, demolition was necessary. She submitted that the fact that J.S.'s building did not comply with the building permits should have been taken into account as the aim of such permits was also to protect the neighbours' interests. She further submitted that the Inspectorate could intervene only of its own motion and had been ineffective in her case. She would therefore not be able to gain effective protection of her rights in administrative proceedings.
16. On 18 September 2001 the Constitutional Court rejected the applicant's complaints as inadmissible since it did not find any violation of her human rights. In this connection, it found that the courts, by finding that some issues should be determined in administrative proceedings, had not referred the applicant to administrative proceedings or denied judicial protection in respect of those rights. The Constitutional Court furthermore said that in any event, even when assessing a right in administrative proceedings, a party dissatisfied with the result could subsequently bring a claim before the Administrative Court. Lastly, the Constitutional Court stressed that the applicant's case had been examined by tribunals established by law which had duly considered the applicant's claims and that the decisions issued in the case had been well reasoned. The decision was served on the applicant on 10 October 2001.
17. In 1997, the Inspectorate of the Ministry of the Environment and Spatial Planning (“the Inspectorate”) instituted proceedings against J.S. in respect of the construction of an exterior staircase and the illegal extension of the mansard.
19. According to the note from the Land Registry concerning J.S.'s real estate, J.S. had been banned from continuing to build or sell the construction since 1997. In 1998 the status of “illegal construction” (črna gradnja) was entered into the registry.
20. On 3 December 1998 the Inspectorate issued a decision ordering the removal of an exterior staircase, for which no permit had ever been issued and which was the only way to enter the apartments situated in the north-west and north sections of the building. By 17 July 1999 this decision had become final and enforceable. On 13 June 2001 the Inspectorate also ordered the removal of an extension of 11m x 2.5m situated in the south section, which consisted of two floors, and of the wall which served to separate J.S.'s land from the neighbouring plots. Since administrative enforcement proceedings were not carried out in Slovenia between 1999 and 2004, which was due to the absence of any authorised operator who could carry out the enforcement, the decisions ordering the enforcement of the above decisions were adopted only on 14 October 2004.
21. In the meantime, J.S. had been using the new extensions, in particular the eight apartments, despite the fact that he had not obtained an operating permit (uporabno dovoljenje). On 15 December 2000, J.S. was banned from making use of the extensions. In 2001, several inspections were carried out of his property. As J.S. had not complied with the decision of 15 December 2000, the Inspectorate fined him 100,000 SIT on 7 May 2004.
22. It would appear from the records concerning the execution of one of the decisions of 14 October 2004 (see paragraph 20 above) that part of the above-mentioned extensions to the south section of the building and the wall were demolished in November 2005.
23. As regards the exterior staircase, J.S. was ordered to remove it on 22 June 2007. Following an objection from the residents of the apartments, who had also invested in the construction of the staircase, the case was reopened in order to allow them to participate in the proceedings. On 24 April 2009, the Inspectorate issued a decision again ordering the removal of the exterior staircase. It noted in its decision that no permit had ever been issued for the construction of the staircase and, furthermore, that the site and building permits for the large extension of the initial building had also been quashed by binding decisions. The case is now pending on appeal.
24. Section 156 of the Law on Obligations (Zakon o obligacijskih razmerjih, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 29/1978) provided, in so far as relevant:
25. The relevant provisions of the Law on Basic Property Rights (Zakon o temeljnih lastninskopravnih razmerjih, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 6/1980), read as follows:
“The owner of the real estate must... refrain from the activities and must remove the sources... (smoke, unpleasant smells, heat...etc.) which interfere with their neighbours' enjoyment of their property, if these interferences exceed the level which is normal given the nature and purpose of the estate and the local customs. The same applies when such activities or sources cause significant damage.”
“If a third person unjustifiably disturbs an owner ... in any way other than by taking possession of his property, the owner ... can bring a civil claim demanding that such disturbance discontinue.”
If the disturbance causes damage, the owner can demand compensation in accordance with the general rules...”
26. Section 24 of the Inspection Act (Zakon o inšpekcijskem nadzoru, Official Gazette no. 56/2002) provides in the relevant part:
“The inspector must consider all reports, complaints, notices and any other applications which are within his competence and inform the applicants, upon their request, of the steps taken.
... The inspector must also consider anonymous applications...
In proceedings before the Inspectorate, the person accused of the alleged misconduct (zavezanec) has the status of party to the proceedings. The applicant who lodged an application ...[with the Inspectorate] is not considered a party to the proceedings.”
27. The Constitutional Court decision of 15 July 1999 (Up-3/97) provides, in so far as relevant, as follows:
“... the persons, whose rights and interests are affected by the decisions of the Inspectorate should have the status of party to the proceedings (...). However, the purpose of supervision by the Inspectorate requires that individuals cannot initiate proceedings before the Inspectorate. ....
.... supervision by the Inspectorate is aimed at protecting public interests; protection of the rights concerning relations between neighbours is afforded in civil proceedings based on the Law on Basic Property Rights and the Law on Obligations.”


ITEMID: 001-70961
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TALATTİN AKKOÇ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicant was born in 1957 and lives in Kocaeli.
6. On 14 December 1995 the Kocaeli Provincial Private Administration Office (Kocaeli İl Özel İdare Müdürlüğü) expropriated a plot of land belonging to the applicant. A committee of experts assessed the value of the plot of land and the relevant amount was paid to him on 22 November 1996.
7. On 22 October 1996 the applicant filed an action for compensation with the Gebze Civil Court of First Instance.
8. On 20 February 1998 the first-instance court ordered the administration to pay the applicant 4,619,997,360 Turkish liras (TRL) plus interest at the statutory rate, running from 22 November 1996, the date on which the ownership of the property was transferred to the administration.
9. On 22 September 1998 the Court of Cassation upheld the decision of the first-instance court.
10. On 15 December 1998 the Court of Cassation rejected the applicant’s request for the rectification of its decision.
11. On 29 July 1999 the Kocaeli Provincial Private Administration paid the applicant the amount due together with interest.
12. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25) and Akkuş v. Turkey judgment of 9 July 1997 (Reports 1997IV, §§ 13-16).


ITEMID: 001-79243
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF DENISOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6 and P1-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1959 and lives in the Tyumen Region.
5. In 1999 he brought a court action against the Ministry of Finance of the Russian Federation. He sought to recover the monetary value of the state-issued promissory notes for the purchase of a Russian-made car.
6. By judgment of 6 March 2001 the Armizonskiy District Court of the Tyumen Region awarded the applicant 38,368.92 Russian roubles (RUR) and recovered in his favour RUR 673 in compensation for court fee. The District Court specified that those amounts had to be paid by the Ministry of Finance at the expenses of the Treasury of the Russian Federation. The judgment was upheld on appeal by the Tyumen Regional Court on 23 July 2001.
7. On an unspecified date the President of the Tyumen Regional Court granted the Ministry of Finance's request to file a motion for supervisory review with the Presidium of the Tyumen Regional Court.
8. On 22 February 2002 the Presidium of the Tyumen Regional Court, by way of supervisory review, upheld the judgment of 6 March 2001.
9. The judgment of 6 March 2001, as upheld on 23 July 2001, remains unenforced to date.
VIOLATED_ARTICLES: 6


ITEMID: 001-98256
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF CHARAHILI v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (in case of expulsion to Tunisia);Violation of Art. 5-1;Violation of Art. 3 (substantive aspect);Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1986 and is currently held in the Kırklareli Foreigners' Admission and Accommodation Centre in Turkey.
6. In 2003 the applicant left his home country and, via Libya, arrived in Syria, where he received religious training. Six months after his arrival in Syria, the applicant was detained for two months under the Syrian Government's policy of detaining and deporting nationals of North African countries. After his release from detention in Syria, the applicant left that country in March 2005 and arrived in Istanbul. He then went to Hatay, a province in the south of Turkey, where he began working. His identity documents were stolen and subsequently the applicant obtained a false passport.
7. On 15 August 2006 the applicant was arrested by police officers from the anti-terrorist branch of the Hatay police headquarters on suspicion of membership of an international terrorist organisation, namely Al-Qaeda. The search carried out in the apartment he had shared with another person revealed some materials used for manufacturing bombs. During his questioning by the police, in the presence of an interpreter, the applicant stated that he was not a member of Al-Qaeda but of Ennahda, an illegal organisation in Tunisia.
8. On 17 August 2006 the applicant made statements before the Adana public prosecutor and subsequently the Adana Magistrate's Court, which remanded the applicant in custody.
9. On 18 August 2006 the applicant lodged an objection against the detention order, which was dismissed on the same day.
10. On 14 September 2006 the Adana public prosecutor filed a bill of indictment with the Adana Assize Court charging the applicant with membership of Al-Qaeda under Article 314 of the Criminal Code and section 5 of Law no. 3713. In the indictment the public prosecutor noted, inter alia, that an arrest warrant had been issued in respect of the applicant in Tunisia for membership of Ennahda and that the applicant had left his country for that reason in 2003.
11. On 25 September 2006 the Adana Assize Court allowed the bill of indictment lodged against the applicant and decided to hold the first hearing on the merits of the case on 9 November 2006.
12. On 9 November 2006 the applicant made statements before the Assize Court. He contended, inter alia, that he did not have any connection with Al-Qaeda and that the material found in his apartment did not belong to him but to his flatmate.
13. On 25 January 2007 the applicant's representative requested the first-instance court to order the applicant's continued detention. He submitted in this respect that the applicant had applied to both the Turkish authorities and the United Nations High Commissioner for Refugees (UNHCR) to be granted refugee status and that, if he were released, he might be deported to Tunisia. The applicant himself also requested that he be kept in detention until the outcome of his application for refugee status. On the same day, the Assize Court ordered the applicant's continued detention, taking into consideration the nature of the offence and the applicant's request.
14. On 12 April 2007 the Adana Assize Court ordered the applicant's release pending trial.
15. On 19 February 2008 the Adana Assize Court acquitted the applicant of the charge of membership of Al-Qaeda.
16. Appeal proceedings are currently pending before the Court of Cassation.
17. On 19 January 2007 the applicant applied to the Ministry of the Interior requesting asylum.
18. On 16 April 2007 the Ministry of the Interior dismissed this request. According to a document addressed to the Adana public prosecutor's office by the Ministry of Justice on 24 April 2007, the applicant's temporary asylum request was dismissed in view of the offences with which he had been charged and the fact that his presence in Turkey constituted a threat to public safety and public order. It was considered that the applicant had not been sincere in his request but had attempted to use the temporary asylum system in order to avoid deportation to Tunisia.
19. On 25 April 2007 the decision of the Ministry was served on the applicant. In the documents so served, he was told that he could lodge an objection with the Ministry against this decision within two days.
20. On an unspecified date the applicant objected to the decision of 16 April 2007. On 18 May 2007 he was notified that the Ministry had dismissed his objection. The decisions of 25 April and 18 May 2007 were served by a police officer who spoke Arabic.
21. In the meantime, on 3 May 2007 the applicant was recognised as a refugee under the UNHCR's mandate.
22. On 16 October 2007 the applicant was served with a deportation order.
23. On 17 October 2007 the applicant addressed a petition to the Adana police headquarters. He maintained that his request for temporary asylum had been rejected on 18 May 2007 and that he had learned that he would soon be deported to Tunisia. The applicant requested that his deportation be suspended since his lawyer intended to challenge the deportation order before the administrative courts.
24. On the same day the applicant's lawyer lodged an application with the Supreme Administrative Court. He requested the setting-aside of the decision rejecting the applicant's asylum request. The applicant's representative further requested the setting-aside of the deportation order.
25. On 26 October 2007 the applicant's representative filed a petition with the Adana police headquarters and informed the latter of the application he had lodged with the Supreme Administrative Court. He requested the police not to deport the applicant.
26. On 26 October 2007 the Supreme Administrative Court decided that it did not have jurisdiction over the case and transferred the petition to the Ankara Administrative Court.
27. On 14 February 2008 the Ankara Administrative Court requested the Ministry of the Interior to submit a copy of all documents relating to the applicant's case.
28. On 20 March 2008 the Ankara Administrative Court, after receiving the documents concerning the applicant, rejected the application, holding that the applicant had not complied with the time-limit of sixty days stipulated in the Administrative Procedure Act (Law no. 2577). The first-instance court held that the applicant had been notified of the Ministry's decision rejecting his temporary asylum request and ordering his deportation on 18 May 2007, and that the applicant should have challenged this decision by 17 July 2007 at the latest. The court noted that the applicant's petition dated 17 October 2007 to the Adana police headquarters and his application to the Court would not stop the running of the sixty-day time-limit.
29. On 20 June 2008 the applicant's representative lodged an appeal against the decision of 20 March 2008. In his petition, the representative noted that the Ministry's decision rejecting the applicant's objection had not been served on his lawyer, who had found the document dated 25 April 2007 in the criminal case file by chance.
30. On 3 July 2008 the applicant's representative was informed by the president of the Ankara Administrative Court that he had failed to pay the court fees and that he had to pay a total of 161.80 Turkish liras (TRY) by postal order within fifteen days. The representative was warned that if he failed to pay this sum, the applicant would be deemed to have waived his right of appeal.
31. On 11 August 2008 the applicant's representative effected the postal order and paid TRY 162.
32. On 24 October 2008 the Ankara Administrative Court decided that the applicant had waived his right of appeal since his representative had failed to pay the Court fees despite the warning.
33. On 12 January 2009 the applicant' representative appealed against the decision of 24 October 2008, claiming that he had paid the fees. He submitted a copy of the postal order in support of his petition.
34. On 2 February 2009 the Ankara Administrative Court informed the applicant that his representative had failed to pay the Court fees in relation to his appeal dated 12 January 2009.
35. On 4 March 2009 the applicant's lawyer paid TRY 175 in court fees by way of a postal order.
36. Following the decision of the Adana Assize Court of 12 April 2007 to release the applicant pending trial, the applicant was not released but was taken to the foreigners' department at the Adana police headquarters.
37. On 12 April 2007 the applicant was transferred to the Fatih police station in Adana.
38. On 12 December 2007 the applicant's representative sent a request to the General Police Headquarters for the applicant to be released from detention. In his request he noted that the applicant was being detained in a small cell and that on 26 October 2007 the European Court of Human Rights had indicated to the Turkish Government that the applicant should not be deported to Tunisia until further notice.
39. The applicant's representative received no reply to his request.
40. Subsequently, on 12 March 2008 he filed a complaint with the Adana public prosecutor's office against the Minister of the Interior, the Adana Governor, the Adana police director, the director of the foreigners' department at the Adana police headquarters and the director of the Fatih police station. He requested the public prosecutor's office to initiate an investigation into the persons concerned, alleging that they had unlawfully deprived the applicant of his liberty and that his detention in a small cell for ten months constituted ill-treatment. The representative noted in his request that there was no legal basis on which to detain the applicant, since asylum seekers were normally given temporary residence permits in Turkey. He further submitted that the ventilation was inadequate in the cell. The applicant was completely isolated and there was no provision for outdoor exercise. Moreover, the applicant did not have access to a doctor. In particular, when he had had a toothache he was denied access to a dentist and had to take the medication that was given to him by police officers.
41. On 16 April 2008 the Adana public prosecutor decided not to bring criminal proceedings against the Minister of the Interior, holding that he had not committed any offence as the applicant was being detained by the police with a view to his deportation.
42. On 23 September 2008 the public prosecutor at the Court of Cassation decided not to process the request from the applicant's lawyer to bring proceedings against the Adana governor.
43. On the same day the applicant's representative wrote to the department responsible for aliens, borders and asylum attached to the General Police Headquarters, to the Adana police headquarters and to the Human Rights Commission of the Turkish Parliament, requesting that his client be released from the Fatih police station.
44. In the meantime, between 1 October 2007 and 3 November 2008 the applicant was examined and prescribed treatment at the Adana hospital on seven occasions. He was examined by an ophthalmologist, a dentist and a general practitioner in relation to his respiratory problems.
45. On 7 November 2008 the applicant was transferred to the Kırklareli Aliens' Admission and Accommodation Centre.
46. On 12 January 2009 the President of the Human Rights Commission of the Turkish Parliament sent a reply to the applicant's representative informing him that the applicant was being detained pending the deportation procedure and that he had been transferred to the Kırklareli Foreigners' Admission and Accommodation Centre.
47. On an unspecified date criminal proceedings were brought against the applicant and twelve other persons in Tunisia on charges of membership of a terrorist organisation, aiding and abetting the organisation and providing financial support to that organisation. According to a document translated from Arabic into Turkish by the applicant, on 12 January 2008 a Tunisian criminal court convicted him of membership of an illegal organisation and sentenced him to five years' imprisonment.
48. A description of the relevant domestic law and practice can be found in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 2944, 22 September 2009).
49. The CPT standards concerning the conditions of detention of foreign nationals (see the CPT standards, document no. CPT/Inf/E (2002) 1- Rev. 2006, page 40) provide, in so far as relevant, as follows:
“... In certain countries, CPT delegations have found immigration detainees held in police stations for prolonged periods (for weeks and, in certain cases, months), subject to mediocre material conditions of detention, deprived of any form of activity and on occasion obliged to share cells with criminal suspects. Such a situation is indefensible.
The CPT recognises that, in the very nature of things, immigration detainees may have to spend some time in an ordinary police detention facility. However, conditions in police stations will frequently - if not invariably - be inadequate for prolonged periods of detention. Consequently, the period of time spent by immigration detainees in such establishments should be kept to the absolute minimum.”
50. A description of reports by Amnesty International and Human Rights Watch relating to the situation of Ennahda members can be found in Saadi v. Italy [GC] (no. 37201/06, §§ 65-79, ECHR 2008...).
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-81427
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF LUKAVICA v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1962 and lives in Jastrebarsko.
5. On 3 February 1994 the police authorities impounded the applicant's vehicle suspecting that it had been stolen.
6. On 25 November 1994 the Osijek Municipal State Attorney's Office gave a decision by which it refused to institute criminal proceedings against a certain M.S. – a person from whom in 1992 the applicant had bought the car – and dismissed the criminal complaint relating thereto. It however failed to decide on returning the vehicle to the applicant.
7. Meanwhile, on 23 June 1994 the applicant brought a civil action against the State in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking recovery of the impounded vehicle or, alternatively, pecuniary damages. Subsequently, on 9 November 1999, the applicant withdrew the first claim maintaining the one for damages.
8. On 10 October 1997 the Municipal Court gave judgment dismissing the applicant's claim. The applicant appealed.
9. On 11 May 1999 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment for misapplication of substantive law and remitted the case.
10. In the resumed proceedings, the Municipal Court held hearings on 5 November 1999, 5 September 2001, 7 March 2003 and 11 March 2004. The hearings scheduled for 16 March 2001 and 2 July 2002 were adjourned owing to the illness of the judge assigned to hear the case, and to the applicant's absence, respectively.
11. On 11 March 2004 the parties reached an in-court settlement (sudska nagodba) whereby the State was to return the vehicle to the applicant, pay her 30,000 Croatian kunas (HRK) in respect of pecuniary damages, cover the costs of the proceedings in the amount of HRK 13,664 and pay the statutory default interest on these amounts accruable from the date of settlement, all within eight days. Under Croatian law an in-court settlement is equal, in terms of its effects, to a res judicata judgment and constitutes an enforcement title.
12. Since the State failed to perform the assumed obligations, on 15 September 2004 the applicant applied to the Zagreb Municipal Court for enforcement of the part of the above settlement concerning payment of damages and costs of proceedings. The case was later on transferred to the Jastrebarsko Municipal Court (Općinski sud u Jastrebarskom).
13. On 15 February 2005 the Jastrebarsko Municipal Court issued a writ of execution (rješenje o ovrsi), which was carried out on 5 April 2005.
14. The applicant's vehicle has not been returned to her. The Government submitted that she had never attempted to enforce that part of the in-court settlement. The applicant, however, submitted that, relying on the settlement, she had attempted to retrieve her vehicle from the police authorities but had been sent from one location to another, at none of which her car could be found.
15. Meanwhile, on 16 July 2002 the applicant lodged a constitutional complaint under section 63 of the Constitutional Court Act complaining about the length of the above proceedings. On 29 September 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed her complaint finding that the delay was attributable to the complexity of the case and the applicant's conduct. In particular, it found that the applicant had contributed to the length of the proceedings in that she had failed to attend the hearing of 2 July 2002. As to the conduct of the Municipal Court, the Constitutional Court observed that there had existed two substantial periods during which no hearings had been held. However, even though they altogether amounted to more than two years, they had been justified because in that period the Municipal Court had been taking evidence by corresponding with the competent administrative authorities.
16. The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:
Section 63
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant's rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
17. The relevant provisions of the Criminal Procedure Act (Zakon o krivičnom postupku, Official Gazette nos. 53/91, 91/92, 34/93 (consolidated text), 38/93 (errata) and 28/96), as in force at the material time, provided as follows:
Objects of evidentiary value shall be impounded temporarily and returned to the owner after the conclusion of the proceedings. If such an object is indispensable to the owner, it may be returned to him or her even before the conclusion of the proceedings but he or she shall be obliged to bring it upon request.
If there is a risk of delay, the police authorities may even before the commencement of the investigation temporarily impound objects pursuant to the provision of section 201 of this Act ...
(1) Objects which have to be seized pursuant to the Criminal Code, or which may be used as evidence in criminal proceedings, shall be temporarily impounded and deposited with a court, or their safe-keeping shall be secured in another way.
...
(4) The police authorities may impound the objects referred to in paragraph (1) when acting under the provisions of [inter alia, section] ... 145 of this Act, or when executing a court order.
The objects which were temporarily impounded in the course of the criminal proceedings shall be returned to their owner or holder upon the termination of the proceedings if their seizure is not required (section 487).
(1) Objects that must be seized according to the Criminal Code shall also be seized when criminal proceedings do not end with a judgment convicting the accused, provided that this is required by considerations of public safety or the protection of morals.
(2) The authority before which the proceedings were pending at the time they ended or were discontinued shall render a separate decision thereon.
(3) The decision on the seizure of objects referred to in paragraph (1) of this section shall also be given by a court when it has failed to give such a decision in a judgment convicting the accused.
(4) A certified written copy of the decision on the seizure of objects shall be served on the owner of the object, if he is known.
(5) The owner of the object is entitled to appeal against the decision referred to in paragraphs (2) and (3) of this section if he or she considers that no legal ground for the seizure of the object existed. If the decision referred to in paragraph (2) of this section was not given by a court, the panel of the competent first-instance court shall decide on the appeal.
VIOLATED_ARTICLES: 6


ITEMID: 001-69243
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF H.G. AND G.B. v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. On 1 September 2001 the Innsbruck Regional Court (Landesgericht) ordered the first applicant's detention on remand on suspicion of having committed homosexual acts with adolescents contrary to Article 209 of the Criminal Code.
5. On 3 December 2001 the Innsbruck Regional Court convicted the first applicant under Article 209 of the Criminal Code and sentenced him to eighteen months' imprisonment. It found that, from July 2001 until his arrest, the first applicant had had sexual relations with three different male minors born in 1986 and 1987 respectively. In determining the sentence the court had regard to the first applicant's confession as a mitigating circumstance and to his previous convictions as aggravating circumstance.
6. On 6 December 2001 the first applicant started to serve his sentence of imprisonment at Garsten prison. On 1 September 2002 the first applicant was granted early release from detention.
7. On 25 September 2000 the Wels Regional Court convicted the second applicant under Article 209 of the Criminal Code and sentenced him to three months' imprisonment, suspended for a probation period of three years. It found that on 3 June 1998 the second applicant had had a sexual encounter with a male minor born in 1981. Referring to Article 41 § 1 of the Criminal Code the court found that the conditions for an extraordinary mitigation of sentence (ausserordentliche Strafmilderung's guilt.
8. On 14 December 2000 the second applicant appealed, arguing, inter alia, that Article 209 of the Criminal Code was unconstitutional in that it did not comply with Article 8 of the Convention read in conjunction with Article 14.
9. On 20 February 2001 the Linz Court of Appeal dismissed the second applicant's appeal. The Court stated that it had no doubts about the constitutionality of Article 209 of the Criminal Code and referred in this respect to the Constitutional Court's case-law.
10. Any sexual acts with persons under 14 years of age are punishable under Articles 206 and 207 of the Criminal Code.
Article 209 of the Criminal Code, in the version in force at the material time, read as follows:
“A male person who after attaining the age of 19 fornicates with a person of the same sex who has attained the age of 14 but not the age of 18 shall be sentenced to imprisonment for between six months and five years.”
11. On 21 June 2002, upon a request for review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 of the Criminal Code was unconstitutional.
12. On 10 July 2002 Parliament decided to repeal Article 209. That amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, came into force on 14 August 2002.
13. The Court notes that the legal situation has remained unchanged since 9 January 2003, when it gave its L. and V. v. Austria judgment (nos. 39392/98 and 39829/98, ECHR 2003-I). For a more detailed description of the law, the Constitutional Court's judgments concerning Article 209 of the Criminal Code and the parliamentary debate relating to the issue, it therefore refers to the said judgment (§§ 17-33).
VIOLATED_ARTICLES: 14
8


ITEMID: 001-98606
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KAMMERER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1 and 6-3-c;Remainder inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1955 and lives in Axams.
6. On 30 June 2004 the Innsbruck District Administrative Authority (Bezirkshauptmannschaft, DAA) issued a provisional penal order (Strafverfügung) against the applicant, imposing a fine under the Motor Vehicles Act (Kraftfahrzeuggesetz) for non-compliance with the obligations of registered owners to have their cars inspected on a regular basis for security reasons.
7. On 6 July 2004 the applicant lodged an objection to this decision.
8. On 12 July 2004 the DAA issued a penal order (Straferkenntnis) confirming its previous decision and imposing a fine of 72 euros (EUR), with twenty-four hours' imprisonment in case of default, on the applicant.
9. Assisted by counsel, the applicant appealed on 28 July 2004 to the Tirol Independent Administrative Panel (Unabhängiger Verwaltungssenat, IAP) alleging that he was not responsible for the regular car inspection since the car was permanently used by another person. Furthermore he argued that the car had been parked at the same spot for more than five weeks and was not in active use at the relevant time. He also requested that an oral hearing be held in which he and the actual user of the car could be heard as witnesses.
10. On 31 January 2005 the IAP scheduled an oral hearing for 22 February 2005.
11. A summons was served on the applicant's counsel on 3 February 2005, containing the standard text that the accused does not have to appear before the IAP personally but is free to send a representative instead.
12. On the morning of 22 February 2005 the replacement of the applicant's counsel informed the IAP that the applicant had been informed about the hearing only a few days before and that he could not attend the hearing since he was ill, neither could the requested witness appear as she was on holiday. He requested an adjournment of the hearing, but the IAP refused.
13. On 22 February 2005 the hearing took place in the absence of the applicant but in the presence of his counsel, who again requested that the hearing be adjourned to hear the applicant and the witness. The IAP dismissed the applicant's appeal and only amended a citation of the DAA's decision. It found that even though the car was used by somebody else the applicant, as the registered owner has to check that the car undergoes regular inspections. Therefore, the IAP did not consider it necessary to question the witness. As regards the request for an adjournment of the hearing, the IAP found that the applicant's interests had been taken care of by his counsel and that his presence had therefore not been necessary, all the more so as the facts were clear and it was only questions of law which had to be decided.
14. On 4 May 2005 the applicant lodged a complaint with the Constitutional Court in which he complained, inter alia, that the IAP had convicted him in absentia.
15. On 13 June 2005 the Constitutional Court declined to deal with the applicant's case since it did not involve a question of fundamental rights.
16. At the request of the applicant the Constitutional Court transmitted the case on 29 July 2005 to the Administrative Court.
17. On 15 September 2005 the applicant modified his complaint lodged with the Administrative Court.
18. On 27 January 2006 the Administrative Court refused to deal with the applicant's complaint under section 33a of the Administrative Court Act since the amount of the penalty did not exceed EUR 750 and no important legal issue was at stake
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-110469
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF FĄFROWICZ v. POLAND
IMPORTANCE: 3
CONCLUSION: No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Article 6-3-d - Examination of witnesses) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1971 and lives in Nowy Sącz.
6. On 27 January 2006 the applicant was arrested on suspicion of car theft and subsequently remanded in custody. On an unspecified later date he was charged with selling drugs. The charges concerning car theft were severed to be dealt with in another set of proceedings.
7. On 15 February 2006 a certain JH, a minor, was questioned by the police in respect of the car theft. On 27 February 2006 JH was questioned by the police in respect of the charge of selling drugs between September 2005 and 10 February 2006. He admitted that he had been selling drugs which he had received from the applicant. The questioning took place in the presence of a psychologist.
8. In her report dated 1 March 2006 the psychologist observed that JH’s cognitive processes had functioned at the level commensurate to his age. She noted that his interpretation of the facts could have been slightly changed on account of his fear of the consequences of his acts. There could also have been minor inconsistencies with regard to the amount of drugs sold by the applicant to other persons. She also noted that JH had willingly presented the facts related to the drug transactions involving him and other persons.
9. JH was heard by the police as a juvenile suspect but no preventive measures were applied. The charges against him were to be examined separately by the Division for Family and Minors of the Nowy Sącz District Court. That court ordered an inquiry to be carried out at his home. On 10 July 2006 the report of the inquiry was submitted to the District Court. According to the report, JH had left Poland for the USA on 17 March 2006 and his parents did not know his address or telephone number. JH had not informed his parents of his plans to leave Poland and he had merely called them from the airport.
10. On 7 September 2006 the District Court requested the police to establish JH’s place of residence. On 18 September 2006 the police informed the court that JH had been in Chicago as from April 2006 and that he was expected to return to Poland in the summer of 2008.
11. On 17 October 2006 the Nowy Sącz District Court decided not to institute proceedings against JH. It had regard to the fact that he had been in the USA since April 2006 and in those circumstances it would be impossible to apply to him the measures provided in the Juvenile Procedure Act (ustawa o postępowaniu w sprawach nieletnich).
12. On 19 August 2006 the prosecution filed a bill of indictment against the applicant with the Nowy Sącz Regional Court. The applicant was charged with offering drugs to a minor, JH, and with seven counts of selling drugs to JH, PK, SB, KJ, GS, TK and RG between June 2004 and 27 January 2006. The prosecutor requested the court to hear seventeen witnesses, including JH.
13. There were five other defendants in the case (WZ, GS, KJ, MG and TK) who were also charged with drug trafficking offences. Two of them, WZ and GS, were additionally charged with car theft. On 3 October 2006 the trial court severed the charges against MG and TK.
14. On 28 August 2006 the Nowy Sącz Regional Court scheduled hearing dates for 3, 9, 13, 16 and 17 October 2006. JH was summoned to testify on 9 October 2006. On 11 September 2006 JH’s mother informed the trial court that JH resided in the USA where he was attending school. She produced photocopies of the plane tickets. On 18 September 2006 the police confirmed the above and informed the court that the date of JH’s return to Poland was unknown.
15. On 9 October 2006 the trial court again summoned JH to give evidence on 17 October 2006. The police were asked to serve the summons or to establish the date of his return to Poland. On 13 October 2006 the police informed the court that the summons could not be served since JH was still in the USA and the date of his return remained unknown.
16. On 18 October 2006 the trial court again summoned JH to testify at the hearing. It also requested police assistance in establishing the date of his return to Poland. The police informed the court in their two letters of 26 October 2006 that JH was in Chicago. They notified the court that the date of his return to Poland was still unknown. They also reported that, according to the information obtained from JH’s parents, JH would remain in the USA for several years as he was attending school.
17. The trial court held five hearings as scheduled and one additional hearing on 15 November 2006. At the hearing held on that date the prosecutor requested the court to read out the statements JH had made to the police. The applicant and his counsel objected. They argued that those depositions were the main incriminating evidence against the applicant and that they wanted to put questions to JH at the hearing. The trial court decided that JH’s statements should be read out pursuant to Article 391 § 1 of the CCP since the witness was permanently abroad and his date of return to Poland remained unknown. It noted that in those circumstances it was not possible to grant the applicant’s request to hear JH at the hearing.
18. The Nowy Sącz Regional Court gave judgment on 16 November 2006. It convicted the applicant as charged and sentenced him to four years’ imprisonment and a fine of PLN 2,000. It further ordered him to make a payment of PLN 5,000 to an association assisting drug addicts.
19. The trial court established that the applicant had sold drugs as alleged in the bill of indictment. In this respect it relied on the statements of JH who had been heard by the police as a juvenile suspect. JH stated that the applicant had sold drugs to GS, TK, SB, RG and KJ in his presence. In his evidence, he described in detail the factual circumstances of those transactions and distinguished between transactions at which he had been present from those of which he had only heard.
The trial court considered JH’s evidence reliable, having regard to its detail, certainty and consistency. The reliability of his evidence was enhanced by the fact that JH had known all the defendants well and had had no motive to incriminate them. Furthermore, the trial court considered that JH’s evidence was objective since he had not concealed any facts which might have put him in a negative light as he admitted that he had been selling the drugs for the applicant to KJ, GS, PK and AB and that he had stolen the car. On 14 February 2006 JH together with the two co-accused WZ and GS had stolen a car which indicated that they had trusted each other.
20. The applicant pleaded not guilty and decided not to testify. He stated that he had not sold or offered drugs to other persons and had not possessed them. He refused to answer any questions from the court and the parties.
21. According to the trial court, the credibility of the statements given by JH was supplemented by other evidence. Those statements were not the only incriminating evidence as they were confirmed in certain respects by evidence from PK, KJ, GS and WZ. Furthermore, JH’s statements were not undermined by the findings of the psychologist who had assisted in his questioning.
22. In respect of witness PK, the trial court considered credible the statements which he had given during the investigation. When questioned at that stage he stated that JH had received drugs from the applicant and had been selling them to others. PK had also confirmed that JH had offered drugs to his friends. That evidence corroborated the relevant statements of JH. PK had also confirmed JH’s statement that the applicant had proposed to manufacture drugs in PK’s garage. During the trial, PK changed his version of events and denied that the applicant had supplied drugs to JH, but the trial court refused to accept his change of testimony as PK had offered no explanation for it.
23. KJ was a friend of JH and the applicant. The court found reliable the evidence she had given during the investigation, namely that she had bought drugs from JH, GS and WZ, and that she had offered and taken amphetamine with the applicant. The latter fact contradicted the applicant’s assertion that he had had nothing to do with drugs. At the trial, KJ denied those statements. However, the trial court noted that she had not explained the reason for the change in her testimony and considered credible her original statements. Furthermore, KJ’s testimony during the investigation was corroborated by JH’s statements. KJ denied that the applicant had sold her drugs. However, the trial court did not find this evidence reliable, having regard to the consistent statements of JH and to the lack of a motive on the part of JH to incriminate the applicant and KJ.
24. The trial court considered credible the statements of GS that he had purchased drugs from JH. The latter confirmed that he had been selling drugs received from the applicant to others persons, including GS. GS was also buying drugs from the applicant and selling them to others as confirmed by the statements of JH and KJ. In view of those statements, the court rejected GS’s subsequent denial at the trial that he had anything to do with drugs.
25. The applicant appealed. He argued that the trial court had breached criminal procedure by reading out the depositions of JH which had been made during the latter’s questioning by the police. He also submitted that the trial court had relied on JH’s statements although they had not been corroborated by other evidence in the case. The applicant lastly claimed that the court had erred in its establishment of the facts of the case.
26. On 17 April 2007 the Kraków Court of Appeal held a hearing and upheld the trial court’s judgment for the most part. It amended it only to the extent that it deleted one count of selling drugs by the applicant to PK since JH had stated that he had not witnessed that particular transaction.
27. Otherwise, the Court of Appeal found that the trial court had correctly established the facts, basing itself on a comprehensive assessment of all the evidence. It had explained why it had considered JH’s statements credible and why it had disregarded the applicant’s evidence since he had limited himself to denying the charges against him. It stressed that the applicant had not put forward any rational arguments to contest the duly substantiated findings of the trial court.
28. The Court of Appeal noted that JH had described precisely various details concerning the purchase of drugs from the applicant, such as the type of drugs, price, quantity, dates of transactions, form of payment, etc. It underlined that JH’s version of events, namely that he had been selling drugs received from the applicant and offering them to his friends, had been confirmed by PK and KJ during their questioning in the course of the investigation. The fact that PK, when heard at the trial, had changed his earlier version of events could not be considered credible as he had not given a plausible explanation for this change. PK had also confirmed JH’s statement that the applicant had proposed to manufacture drugs in PK’s garage but that proposal had been refused. The fact of JH’s offering drugs to friends had also been confirmed by GS and WG during their questioning in the course of the investigation.
29. The Court of Appeal accepted the findings of the trial court that JH, being a close acquaintance of the applicant, GS, KJ, PK, SB, TK and RG, had objectively described the applicant’s actions and that he had not been in conflict with the applicant. In his statements, JH had not concealed facts which incriminated him. He had consistently stated that GS, KJ, SB, RG and TK had purchased drugs from the applicant in his presence. He distinguished those situations from transactions at which he had not been present. The Court of Appeal also noted that before his questioning as a juvenile suspect, JH had been advised that he had the right to refuse to make statements.
30. As regards the lack of cross-examination of JH, the Court of Appeal stated:
“The allegation of the breach of procedure by the trial court is not sustainable. The appeal setting out the above allegation does not specify which provisions were breached; it would appear from the grounds of the appeal that it concerns Article 391 § 1 of the CCP, which the trial court relied on when reading out the statements of JHJH at the trial, and that the court took the decision to read out the statements of that witness after having established objectively and unequivocally that the precondition specified in Article 391 § 1 of the CCP had been met (his uninterrupted long stay abroad), and then only just before closing the trial. The defendant [the applicant] does not dispute that the circumstances specified in Article 391 § 1 of the CCP in respect of witness JH were correctly ascertained, admitting expressly that the witness went away and has lived abroad. In this procedural situation the trial court had the right to read out the statements of that witness, a minor, given at the time when he was questioned as a suspect (the fact that the trial court did not invoke § 2 of Article 391 of the CCP does not have any ility of that evidence (reading out a witness’ statements), the circumstances in which it was obtained and the credibility of those statements by corroborating them with other evidence obtained in the case, as already explained. The parties and the defence had an opportunity to react directly to those statements [of witness JH]....”
31. On 22 June 2007 the applicant filed a cassation appeal with the Supreme Court. He stated that the trial court had read out JH’s depositions and by doing so had prevented the applicant from putting questions to that witness. He alleged a breach of his defence rights, invoking Articles 6, 7 and 391 § 1 of the CCP and Article 6 § 3 (d) of the Convention.
32. The applicant argued that the trial court and subsequently the Court of Appeal had based their verdict exclusively on JH’s evidence and had disregarded the evidence of KJ, GS and WZ as being contradictory to the former evidence. In respect of PK, the applicant argued that his statements given at the pre-trial investigation stage had to be carefully analysed since he could not confirm them at the hearing as he had been undergoing drug therapy.
33. The applicant claimed that the courts had not used all available means to secure the attendance of JH at the trial. Furthermore, JH had been treated leniently by the authorities as he had been allowed to leave the country despite his admission that he had been selling drugs. Lastly, the applicant informed the Supreme Court that JH had returned to Poland and that he could have been questioned in respect of the charges against the applicant.
34. On 24 June 2007 JH was arrested by the police for drunken driving in Poland. On 25 June 2007 he was questioned by the Zakopane District Prosecutor. On the same day the Zakopane District Court convicted him of drunken driving in summary proceedings and sentenced him to a suspended prison term and a fine. It also banned him from driving for one year. JH was further placed under the supervision of a court officer.
35. On 5 November 2007 the Supreme Court dismissed the applicant’s cassation appeal as manifestly ill-founded. It held, in so far as relevant:
“When formulating them [arguments in the cassation appeal] the applicant completely disregarded Article 519 of the CCP, which entitles the parties to lodge a cassation appeal exclusively against the final judgment of the second-instance court. Nonetheless, in the present case the author of the cassation appeal repeated the same assertions which he had raised earlier in an ordinary appeal, making only such modifications which supposedly complied with the requirements specified in Article 523 § 1 of the CCP. The same circumstances, which had earlier served as the basis for an assertion that the trial court had made errors in respect of its factual findings, were now being used to formulate arguments of a procedural nature. However, the assessment of their content and the reasons for the cassation appeal leads to the conclusion that as a matter of fact the author intended again to attempt to undermine the credibility of particular sources of evidence and to challenge the factual findings made on that basis. However, in the light of the binding regulation such an attempt in cassation appeal proceedings cannot be effective. (...)
It cannot be overlooked that the arguments of the cassation appeal in the present case are in fact directed against the trial court’s judgment. It was the trial court which assessed the credibility of particular sources of evidence and determined the quantity of drugs which had been trafficked; it was also the Nowy Sącz Regional Court which made use of the measure provided in Article 391 of the CCP in order to disclose statements made by the then minor JH (...)
The issue of the correctness of admitting and relying on JH’s statements was also subject to ordinary review by the second-instance court. The Court of Appeal could not infringe Article 391 of the CCP since it did not make use of the measure provided in it. Even now the appellant has not substantiated [his contention] that the restrictions on the opportunity to release depositions or statements by persons listed in that provisions were breached. (...) However, the digressions as to the possibility of taking evidence from JH, and the conducting of evidentiary proceedings with the participation of the defendant [the applicant] at the current stage of the proceedings, at a time when the case has finally been determined and no breach of the law (still less a manifest breach – Article 523 § 1 of the CCP) has been substantiated, do not fit within the framework of the model of cassation appeal proceedings. The repeated reliance on all those circumstances additionally reinforces the conclusion that the arguments presented in the cassation appeal constituted nothing but an attempt to circumvent the obligation stemming from Article 519 of the CCP, which stipulates that a second-instance judgment shall be the subject of a cassation appeal.”
36. Article 390 § 1 of the 1997 Code of Criminal Procedure (“the CCP”) provides:
“The accused has a right to be present during the taking of evidence in the proceedings.”
37. Article 391 of the CCP reads as follows:
“1. If a witness has without good reason refused to testify, or has given testimony different from the previous one, or has stated that he does not remember certain details, or if he is abroad, or a summons cannot be served on him, or if he has not appeared as a result of obstacles that could not be removed or if the president of the court has declined to summon him pursuant to Article 333§2 [i.e. because upon the lodging of the bill of indictment the prosecution has asked that the records of his testimony be read out at trial], and also when a witness has died, the records of his previous statements may be read out, [regardless of whether they] have been made in the investigation or before the court in the case in question or in another case or in any other procedure provided for by the law.
2. In the circumstances referred to in paragraph 1, and also in the case specified in Article 182 § 3, the records of evidence that a witness has given when heard as an accused may also be read out.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-110193
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: FERENC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Mr Srečko Ferenc, is a Slovenian national who was born in 1968 and lives in Maribor. He was represented before the Court by Odvetniška Družba Matoz O.P. D.O.O., a law firm practising in Koper. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was serving his sentence in the closed section of Dob Prison in the period between 24 February 2009 and 26 March 2011.
As regards the facilities available in the cells and common areas, as well as the health care regime in the prison, the conditions regarding activities outside the cells and contact with the outside world, see the Court’s decision in the case of Lalić and Others v. Slovenia (dec.), no. 5711/10 etc., 27 September 2011.
Between 24 February 2009 and 2 June 2010 the applicant was held in Block 4, in cell no. 8 which measured 58.96 square metres and accommodated seventeen prisoners. After his brief hospitalisation (see below) he was returned to the same cell, which continued to accommodate seventeen prisoners. He therefore at all times had about 3.5 square metres of personal space while being held in the prison cell.
At the beginning of his imprisonment the applicant participated in work therapy sessions, but soon dropped out for unspecified reasons.
The applicant suffers from a large ulceration on his left tibia (the part of the leg below the knee), which had already appeared in 2003. According to the Government, in the period between 24 February 2009 and 9 July 2010, the applicant visited the prison clinic sixty-six times.
The applicant’s medical record shows that the wound was cleaned and dressed systematically (every few days and, during certain periods, every day) in the prison clinic. Medication was occasionally prescribed to the applicant. The applicant’s comments concerning his condition, in particular as regards his pain and discomfort, were also noted in his medical record.
Reports from the prison doctor, which appear to have been prepared at the Government’s request, note that the applicant’s ulcer was regularly cleaned by nurses under the supervision of a general practitioner, that he was also regularly treated by the prison psychiatrist, and was undergoing methadone substitution treatment. It was also noted in one of the reports that the medical assistance provided to the applicant was of a higher standard than that commonly received by individuals with a similar medical problem in Slovenia.
During the period of his imprisonment the applicant was twice admitted to the Department for Plastic and Reconstructive Surgery at the Maribor Hospital, in order to undergo surgical treatment for his ulcer. On both occasions it was envisaged that the surgery would be performed under general anaesthesia. The first time, on 1 December 2008, complications arose when the anesthetist was inserting the intravenous catheter. The applicant was given the option of the catheter being inserted through his inguinal canal (in the groin) or his neck, but he refused, and the surgery was aborted for that reason. The same occurred following the applicant’s second admission to the aforementioned hospital on 2 June 2010. A hospital report dated 4 June 2010 notes that the applicant’s ulcer was not infected. It also advised that the applicant’s status in prison be appropriate to his state of health.
For the relevant domestic law and practice, see paragraphs 33-35 and 3847 of the Court’s judgment in the case of Štrucl and Others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, 27 September 2011), and paragraphs 34-36 of Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 27 September 2011), as well as Lalić and Others, cited above.
In addition, the Patient Rights Act (Official Gazette no. 15/2008, entry into force on 26 August 2008) provides for procedures for dealing with complaints concerning, inter alia, inadequate medical treatment or care. In accordance with the provisions of that Act, a patient can lodge a complaint directly with a health-care provider. If unsatisfied, he or she can complain to the Commission for Protection of Patients Rights. Ultimately, a patient whose complaint has been unsuccessful can challenge the decisions made in his or her case before the Administrative Court. The Act also regulates the work of the Representative for Patients’ Rights, whose main role is to assist, provide advice to and represent patients in the exercise of their rights provided therein.


ITEMID: 001-106417
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: GERDZHIKOV AND CHATEAU VALLEE DES ROSES EOOD v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The first applicant, Mr Petar Kraev Gerdzhikov is a Bulgarian national who was born in 1969 and lives in Karlovo. He is the managing director of the second applicant, Château Vallée Des Roses EOOD (“the applicant company”), a company whose registered office is in Karlovo, Bulgaria. The applicants are represented before the Court by Mr M. Ekimdzhiev and Mrs K. Boncheva, lawyers practising in Plovdiv.
2.
3. In decision no. 24 of 25 January 2000 the Council of Ministers granted the applicant company a concession to exploit part of a mineral water source near the village of Pesnopoy, which was state property, and authorised the Minister of the Environment and Water (“the Minister”) to sign the concession contract on behalf of the State, which was done on 18 February 2000.
4. Meanwhile, in decision no. 644/2000 the Council of Ministers granted another concession for a different part of the same mineral water source to the company Hisar-96 OOD. This decision was appealed against by another participant in the concession tender procedure, as a result of which, in a final judgment of 15 March 2002, the Supreme Court of Cassation quashed it on the ground that, owing to its chemical properties, the mineral water from the source was unfit to serve the purposes of the future concession contract and that it could therefore not be fulfilled.
5. Subsequently, as the properties of the water in the applicant company’s concession were the same, it brought an action to have decision no. 24 of the Council of Ministers declared null and void. The action was granted in a final judgment of the Supreme Administrative Court of 10 February 2004.
6. Following the judgment of 15 March 2002, on 10 April 2002 the applicant company brought an action against the Ministry of the Environment and Water seeking to have the concession contract of 18 February 2000 declared null and void. It further claimed the expenses it had already incurred in connection with the fulfilment of the contract, including costs for equipment for exploiting the source, expenses for preserving and guarding the source, fees for taking part in the concession tender and marketing costs. In these proceedings the applicant company was legally represented.
7. At a court hearing of 7 June 2002 the applicant company substituted the Minister as the defendant to its action, without specifying in what capacity the Minister was acting. At the same hearing the Sofia City Court discontinued the proceedings as it found that the Minister could not be sued in her capacity as an administrative body.
8. The applicant company appealed, arguing that the Minister was a party to the concession contract and that therefore she could be sued.
9. In a decision of 7 October 2002 the Sofia Court of Appeal found that the party to the concession contract was the State, represented by the Minister. Therefore, the Minister could be sued. It remitted the case to the Sofia City Court to continue the proceedings by examining the merits of the action.
10. In a judgment of 17 February 2003 the Sofia City Court rejected the applicant company’s action on the grounds that the Minister, as a State body, could not be sued. It found that the Minister was merely a representative of the State in the concession contract and not a party to it. The applicant company, however, had not directed its action against the Minister as a representative of the State.
11. The applicant company appealed, stating, inter alia, that the Minister was a party to the concession contract, and represented the State interest in connection with the rights and obligations under the contract.
12. In a judgment of 18 June 2003 the Sofia Court of Appeal quashed the lower court’s judgment, declared the concession contract null and void and granted part of the compensation claim made by the applicant company. Although it mentioned that the State was party to the concession contract, it ordered the Minister to pay the awarded compensation.
13. It held that the State, represented by the Minister, was the party to the concession contract and that therefore the Minister did have capacity to take part in the proceedings to have the contract declared null and void.
14. The Minister appealed, arguing that she did not have such capacity as she was not a party to the concession contract but only represented the State in signing it.
15. The applicant company also appealed. It is not entirely clear from its submissions who it considered to be the proper defendant in the proceedings – on the one hand it argued that the Minister was party to the concession contract and on the other hand contended that the Minister was the proper defendant in the proceedings in her capacity as representative of the State.
16. In a final judgment of 30 September 2004 the Supreme Court of Cassation quashed the judgment of the Court of Appeal and discontinued the proceedings. It found that the Court of Appeal should not have examined the merits of the claim as it had not been directed against the proper defendant. The court held that the State was the concession-granting authority and party to the concession contract because concessions could be granted only in respect of objects belonging to the State. The court also found that the rules on representation under the Concessions Act were lex specialis and overrode those on representation under the Code of Civil Procedure (“the CCP”), and that therefore the State was represented by the Minister of the Environment and Water and not by the ministers under Article 18 §§ 3 and 4 of the CCP (see paragraph 24 below). This, however, did not mean that the Minister was a party to the concession contract. The Minister could be sued in proceedings related to concession contracts only in her capacity as representative of the State. As regards the case at hand, the court considered that neither in its initial statement of claim, nor throughout the proceedings did the applicant company specify that its action was directed against the Minister as a representative of the State.
17. The applicant company appealed before the extended panel of the Supreme Court of Cassation, which, in a decision of 21 December 2004, declared the appeal inadmissible as lodged against a final judgment which was not subject to further appeal.
18. The Concessions Act 1995 provided that a concession was a special right to use and exploit objects owned exclusively by the State (section 2). In section 6 it provided that the Council of Ministers adopted decisions to grant concessions. Pursuant to section 7(2) of the same Act, in such decisions the Council of Ministers appointed the minister who would organise the concession tender procedure. Section 18(2) of the same Act provided that the Council of Ministers was to adopt a decision in which it determined the concession holder. In this decision the Council of Ministers also had to authorise the minister appointed under section 7 to sign the concession contract on behalf of the State.
19. Section 12(1) of the Regulations for the Implementation of the Concessions Act, as amended on 15 March 2002, provided that with the decision under section 7(2) of the Concessions Act the Council of Ministers was to appoint the minister who would organise the concession tender procedure, sign the concession contract, organise the implementation of the contract and represent the granting authority in matters connected with the implementation of the contract, apart from those concerning the contract’s termination. Section 46(3) of the Regulations provided that in the event that the concession holder failed to fulfil his obligations under the contract, the Council of Ministers could authorise the minister appointed under section 7 of the Concessions Act to terminate the contract.
20. Under section 21(3) of the Concessions Act, upon termination of the concession contract the concession holder was entitled to reimbursement of expenses incurred under that contract.
21. The new Concessions Act, in force from 1 July 2006, which is more detailed than the previous Act, contains similar provisions in respect of the signing, control of the implementation, and termination of concession contracts. An amendment to this Act of 30 May 2008 introduced section 95e, which provides that in actions concerning the implementation and the termination of concession contracts the State is represented by the minister authorised to sign the concession contract and to represent the granting authority in matters connected with the contract’s implementation.
22. Section 26(2) of the Obligations and Contracts Act provided that if the subject-matter of a contract was unfit to serve its purpose (“невъзможен предмет”) it would be null and void. Pursuant to section 34 of the same Act, when the contract was declared null and void each of the parties was under the obligation to return everything it had received under the contract.
23. Article 117 of the CCP provided that while proceedings were pending before the first-instance court, the plaintiff could join a new defendant or could substitute the initial defendant with a new defendant.
24. Under Article 18 §§ 3 and 4 of the CCP, the State was represented by the Minister of Finance in court proceedings, and by the Minister of Regional Development and Public Works in court proceedings in which State property was concerned.
25. On 2 May 2006 Article 18 of the CCP was amended to include a new paragraph 5 clarifying that, in actions concerning the implementation and termination of concession contracts, the State is represented by the minister authorised to sign the concession contract and to represent the granting authority in matters connected with the contract’s implementation.