ITEMID: 001-59511
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 2001
DOCNAME: CASE OF KRESS v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1 with regard to the fact that the Government Commissioner's submissions were not communicated;Violation of Art. 6-1 on account of the Government Commissioner's participation in the deliberations;Violation of Art. 6-1 on account of the length of proceedings;Non-pecuniary damage - finding of violation sufficient (fairness);Non-pecuniary damage - financial award (as regards length);Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 11. On 8 April 1986 the applicant, who was then aged 44, underwent a gynaecological operation under general anaesthetic at Strasbourg Hospital.
12. On wakening, she suffered a neurological syndrome. In the days that followed she suffered a further vascular accident and her shoulder was scalded when a cup of tea was upset. Since then she has been 90% disabled; she is hemiplegic, has difficulty coordinating her upper limbs, can speak only with difficulty and suffers from double vision.
13. On 27 May 1986 the applicant made an urgent application to the President of the Strasbourg Administrative Court seeking the appointment of an expert. In an order of 28 May 1986 the President appointed an expert, who filed a report on 2 June 1986 in which he concluded that there had not been any medical error.
14. On 6 August 1987 (after a preliminary claim of 22 June 1987 had been refused) the applicant brought an action for damages against Strasbourg Hospital in the Strasbourg Administrative Court.
15. In submissions of 21 October 1987 the applicant criticised the findings set out in the report of 2 June 1986 and applied for a detailed, thorough expert opinion.
16. In letters of 10 November 1988 and 11 January 1989 the applicant’s lawyers sought to have the case set down for hearing. The clerk of the Administrative Court replied (in letters of 18 November 1988 and 13 January 1989) that on account of the backlog of work, it was not currently possible to foresee the date on which the case might be set down for hearing.
17. The hearing was eventually listed for 19 April 1990.
18. In a judgment delivered on 25 May 1990 the Strasbourg Administrative Court ordered further inquiries into the facts with a view to commissioning a report from a panel of two experts.
19. On 23 October 1990 the experts filed the following findings:
“As regards the cerebral arterial thromboses that occurred on 8 April and 17 April 1986, nothing in Mrs Kress’s clinical condition or in the results of the tests made them foreseeable. The treatment of this complication was appropriate to the patient’s state of health and in accordance with the current state of scientific knowledge. As regards the scald on the left shoulder, the experts attribute it to a lack of assistance and organisation in the department.”
20. The applicant criticised that expert report and in reasoned submissions of 22 March 1991 quantified the damage she had sustained.
21. At the request of Strasbourg Hospital the hearing set down for 4 April 1991 was postponed to 13 June 1991.
22. In a judgment delivered on 5 September 1991 the Strasbourg Administrative Court assessed the amount of damage sustained by the applicant as a result of her scalded shoulder at 5,000 French francs and dismissed the rest of the claim for damages.
23. The applicant appealed against that judgment to the Nancy Administrative Court of Appeal. In a judgment of 8 April 1993 that court dismissed the appeal on the ground that whatever the seriousness of the consequences of the surgical operation, the circumstances of the hospitalisation had not disclosed any failure to provide information about the nature of the operation and its foreseeable consequences or any negligence or presumption of negligence in the organisation or running of the relevant department.
24. On 11 June 1993 the applicant, represented by a member of the Court of Cassation and Conseil d’Etat Bar, appealed on points of law against that judgment to the Conseil d’Etat and filed full pleadings on 11 October 1993. She referred to a judgment of the Judicial Assembly of the Conseil d’Etat of 9 April 1993 that had been delivered in the meantime (the Bianchi judgment of 9 April 1993, Revue française de droit administratif 1993, p. 574), in which no-fault liability in hospital cases had been extended to cover the risks of treatment, and in her sole ground of appeal relied on the fact that the hospital should in her case have been found liable without fault. She submitted that there had been a causal link between the operation and the damage, that the existence of the risk had been known, even if it was statistically only a very slight one, and that she had, within the meaning of the Bianchi judgment, sustained extremely serious special damage.
25. Strasbourg Hospital filed a defence on 12 September 1994 and the applicant replied on 16 January 1995. The hospital lodged a rejoinder on 10 March 1995.
26. The case was heard in public on 18 June 1997 by the 5th and 3rd sections sitting together and considered on the basis of a report by the 5th section. After hearing the observations of the reporting judge, those of the parties’ lawyers and, last, the Government Commissioner’s submissions, the Conseil d’Etat reserved judgment. Counsel for the applicant then produced a memorandum for the deliberations (note en délibéré) in which it was argued that the Government Commissioner had wrongly expressed doubts as to the extreme seriousness of the applicant’s afflictions since the operation of 8 April 1986.
27. In a judgment delivered on 30 July 1997 the Conseil d’Etat dismissed the applicant’s appeal on the following grounds:
“It appears from the evidence submitted to the courts below that Mrs Kress underwent a hysterectomy on 8 April 1986 at the Strasbourg Regional Hospital Centre. Following that operation, which took place normally, post-operative complications, which supervened twice, caused serious, disabling after-effects and damage for which Mr and Mrs Kress sought compensation, relying in the courts below on mistakes that they alleged had been made by the hospital. Before this Court Mr and Mrs Kress have maintained for the first time that the hospital should have been held liable without fault.
On the basis of the unappealable assessment it made of the facts, the Nancy Administrative Court of Appeal inevitably held that no-fault liability on the part of the Strasbourg Regional Hospital Centre for the damage relied on by Mrs Kress had not been made out. In so doing, that court did not make any error of law, seeing that it is apparent from the evidence submitted to the courts below that the circumstances in which such liability could be incurred did not obtain.”
28. The history of France’s administrative courts is essentially that of the Conseil d’Etat. In 1790 the Constituent Assembly implemented the theory of the separation of powers and organised matters so that the executive would not be subject to the judiciary. It preserved the ancien régime principle that administrative authorities should be tried by a special court, in accordance with the idea that judging the administrative authorities was “also an administrative act”. Such a special court was set up by the Consulate in 1799. This was the Conseil d’Etat, which was instituted by Article 52 of the Constitution of 22 Frimaire Year VIII (13 December 1799). It was given responsibilities in two areas: administrative (contributing to the drafting of major enactments) and judicial (settling disputes connected with the administrative authorities).
29. In 1849 an Act vested it with the administration of “delegated” justice (la justice déléguée), and thereafter it accordingly gave its rulings “in the name of the French people”. During the Third Republic the Conseil d’Etat acquired an organisational pattern that it still largely has today. Its function was laid down in the Act of 24 May 1872, which amended the 1849 Act and established delegated justice permanently.
30. The main feature of the post-war period was the organisation of the administrative jurisdiction. In 1953 the administrative courts (of first instance) succeeded the prefectural councils, which had existed since 1799. The 1958 Constitution, which contains only three Articles – 64, 65 and 66 – relating to the judiciary, in particular, to provide that judges (but not members of State Counsel’s offices) are irremovable, does not mention the Conseil d’Etat or the other administrative courts under this head. The Act of 31 December 1987, which came into force in 1989, added to the courts vested with administrative jurisdiction the administrative courts of appeal, to which the bulk of the appellate jurisdiction was transferred. From these new courts and various specialised courts, such as the Court of Audit, an appeal on points of law lies to the Conseil d’Etat as the supreme administrative court.
31. The judges of the administrative courts have a special status different from that of the judges of the ordinary courts and the members of State Counsel’s Office at those courts. They are governed by the general rules on the civil service; however, they are in practice both independent and irremovable (see paragraph 35 below). In 1980 a decision of the Constitutional Council (22 July 1980, Official Gazette of 24 July, p. 1868) established the existence and independence of the administrative jurisdiction as being among the fundamental principles recognised in the laws of the Republic having constitutional rank.
32. The Conseil d’Etat has about 300 members, two-thirds of whom work within the Conseil and one-third outside it. Its nominal President is the Prime Minister and in practice the Vice-President of the Conseil d’Etat presides. By Article 13, third paragraph, of the Constitution, concerning the powers of appointment of the President of the Republic, all the senior members of the Conseil d’Etat (conseillers d’Etat) are appointed by decree of the President of the Republic adopted in Cabinet, while the junior legal assistants (auditeurs) and the middle-ranking maîtres des requêtes are appointed by an ordinary presidential decree, under section 2 of the Ordinance of 28 November 1958 on civil and military appointments.
33. The members of the Conseil d’Etat are recruited in one of two ways: through competitive examination or directly from other parts of the civil service. Legal assistants, recruited through competitive examination, are promoted to the rank of maître des requêtes after about three years’ service and become conseillers d’Etat about twelve years later. External appointments are subject to approval by the Vice-President of the Conseil d’Etat.
34. The status of the members of the Conseil d’Etat is not so much laid down in writing as guaranteed in practice. As regards written rules, mention must be made of the decree of 30 July 1963 laying down the rights and duties of members of the Conseil d’Etat. These rights and duties are very similar to those applying to the civil service (and, in particular, no provision is made for irremovability), with a number of exceptions: no provision is made for assessment, no promotions table is drawn up and an advisory committee replaces both the Joint Administrative Committee and the Joint Technical Committee.
35. It is thus, rather, practice which provides the guarantees enjoyed by the members of the Conseil d’Etat. Three traditional practices are both very long-standing and decisive: firstly, the Conseil d’Etat and its members are managed internally by the Executive Committee (bureau) of the Conseil d’Etat, consisting of the Vice-President, the six division presidents and the Secretary-General of the Conseil d’Etat, without any outside interference. In particular, there is no distinction in the Conseil d’Etat between judges and members of State Counsel’s Office as there is in the ordinary courts, where the members of State Counsel’s Office are subordinated to the Minister of Justice.
Secondly, even though there is no written provision guaranteeing the irremovability of members of the Conseil, that guarantee exists in practice. Lastly, while promotion is theoretically by selection, it is in practice – by a custom which goes back to the middle of the nineteenth century – strictly by seniority, and this guarantees the members of the Conseil d’Etat great independence, vis-à-vis both the political authorities and the authorities of the Conseil d’Etat themselves.
36. Most duties within the Conseil d’Etat can be performed by members of any grade. Thus the duties of Government Commissioner, although generally given to maîtres des requêtes, can also be carried out by auditeurs or conseillers d’Etat.
37. The Act of 31 December 1987 instituted a National Council of Administrative Courts and Administrative Courts of Appeal, whose membership ensures that it is independent and representative. The Council has a general advisory role in relation to matters concerning the staff of all the administrative courts (individual measures affecting judges’ careers, promotion and discipline).
38. Procedure in the administrative courts has developed essentially under the influence of the courts themselves. It attempts to achieve a compromise between the public interest – represented in the proceedings by the administrative authorities – and the interests of individuals, who must be effectively protected from misuse of public authority. The procedure is inquisitorial, written and inexpensive, and its distinctive feature is that one of the parties is a public body.
39. The Conseil d’Etat consists of five administrative divisions (Interior, Finance, Public Works, Social, and Report and Research) and a Judicial Division, itself subdivided into ten sections (sous-sections).
40. Where a case has been assigned to a section, the president of the section appoints one of its members as reporting judge to examine the case. After careful study of the file the reporting judge draws up a draft decision. The draft is accompanied by a memorandum whose purpose is to set out the reasoning leading from the application to the draft. The memorandum includes a consideration of admissibility issues (including jurisdiction and verification that there is no defect rendering the application inadmissible as a matter of public policy) and must answer each ground raised in the application, with reference either to the evidence or to legal provisions or to case-law. The reporting judge appends to the memorandum a copy of the provisions and case-law relied on in the draft decision.
The file subsequently goes to the reviser, an office assumed in each section by the president or one of the other two assesseurs constituting the bench. The reviser re-examines the evidence and forms a view as to how the case should be decided. He may himself prepare another draft decision in the event of disagreement with the reporting judge. Once the draft decision has been revised, the case is listed for consideration at a preparatory sitting of the section, at which it will be discussed in the presence of the Government Commissioner, who does not, however, take part in the vote on the draft. Only when the draft decision has been adopted by the section will the file be forwarded to the Government Commissioner to enable him either to prepare his submissions or to ask for a fresh preparatory sitting to be convened or for the case to be transferred to a differently constituted court.
41. The institution of Government Commissioner dates from an ordinance of 12 March 1831. Originally, as its name indicates, it was designed to represent the government’s point of view, but that function very rapidly disappeared (at the latest in 1852). The title has remained but is now a misnomer. Since then the institution has become, to the outside observer, one of the most distinctive features of French administrative justice, in particular because Government Commissioners rapidly established themselves as judicial officers totally independent of the parties.
The Government Commissioner plays a traditionally very important role in the creation of administrative case-law and most of the major judicial innovations have come about as a result of celebrated submissions by the Government Commissioner. Furthermore, given that the judgments of the Conseil d’Etat are always drafted very elliptically, it is often only by reading the submissions of the Government Commissioner, where published, that one can discern the ratio decidendi of the judgments.
42. By the terms of Decree no. 63-766 of 30 July 1963 on the organisation and functioning of the Conseil d’Etat, Government Commissioners are taken from among the maîtres des requêtes and auditeurs at the Conseil d’Etat or, exceptionally, from among the conseillers. By Article R 122-5 of the Administrative Courts Code, they are appointed by a decree of the Prime Minister, adopted on a proposal by the Minister of Justice, after being put forward by the Vice-President of the Conseil d’Etat in consultation with the division presidents. In practice, the Conseil d’Etat’s proposals are always endorsed. Appointment as Government Commissioner – which is not a rank – is for an unlimited duration but a Government Commissioner cannot remain in post for more than ten years and in practice does not generally do so for more than two or three years.
There are two Government Commissioners for each of the ten sections that make up the Judicial Division but there is no hierarchy of Government Commissioners, who do not constitute a separate “corps”.
43. The Government Commissioner is a member of the Conseil d’Etat who is attached to the section from which the bench designated to hear a case is constituted and he attends – without voting and generally without speaking – the sitting at which the cases are prepared for trial, when the cases are presented by the reporting judges, and he receives a copy of the draft judgment adopted by the section and revised by the reviser. When his view of a case differs from that of the section, he can come and discuss it with the section at another preparatory sitting. If the disagreement remains and he considers that the case is of sufficient importance, he has the right (rarely exercised in practice) to request that the case should be referred to the Judicial Division or to the Judicial Assembly (Article 39 of the decree of 30 July 1963 on the organisation and functioning of the Conseil d’Etat). Only after that will he prepare his submissions for the actual trial, which is open to the public. These submissions, which are generally exclusively oral ones, are not communicated either to the parties or to the reporting judge or to the members of the trial bench.
44. It has become an established practice to communicate to lawyers who so request, before the hearing, the general tenor of the submissions which the Government Commissioner will make at the hearing. In view of the number of cases to be tried (about 500 a year for each Government Commissioner), the Government Commissioner’s submissions, which remain his exclusive property, are often solely oral. He has complete freedom as to whether or not to place those he has decided to put in writing in the Conseil d’Etat’s archives or to publish them in important cases as an annex to Conseil d’Etat judgments reported in the official reports or in legal periodicals.
45. At the hearing the Government Commissioner is under an obligation to make his submissions, which must be reasoned, since he is not allowed to say that he wishes to leave matters to the court’s discretion.
46. The Government Commissioner’s role at the hearing was described as follows by a former member of the Conseil d’Etat, T. Sauvel, in 1949:
“Once the case has reached the public hearing, and the reporting judge has read his report, which is merely a summary of the evidence and makes no mention of the section’s opinion, and the lawyers have made oral submissions if they considered it appropriate, the Commissioner stands up and is the one who speaks last, even after counsel for the defence. He sets out the whole case, making a critical analysis of all the grounds and of all the case-law that could be relied on; often he will indicate how the case-law has developed, highlighting the stages it has already gone through and hinting at possible future developments. Lastly, he will submit that the application should be dismissed or allowed. He does so in his own name, without any obligation to share the section’s opinion or to take instructions either from Principal State Counsel (for there is none) or from any superior, presiding judge or minister. He is answerable only to his own conscience. He is a vital cog in the machinery of administrative procedure, which perhaps owes its real distinctiveness to him. The submissions in many cases go far beyond the bounds of the individual case and amount to legal treatises, to which litigants and commentators will long refer.”
47. In the terms used by the Conseil d’Etat itself (10 July 1957, Gervaise, Recueil Lebon, p. 466, reiterated on 29 July 1998 in Esclatine) the Government Commissioner’s function is
“to set out for the Conseil the issues which each application raises for decision and to make known, by making his submissions completely independently, his own assessment, which must be impartial, of the facts of the case and the applicable rules of law, together with his opinion as to whether the manner in which, according to his conscience, the case submitted to the Court to which he belongs should be disposed of.”
48. At the hearing, therefore, the parties to the case cannot speak after the Government Commissioner, since he speaks after counsel for the opposing parties have addressed the court. Even if they are not represented by a lawyer, they do, however, have the possibility, hallowed by usage, of sending the trial bench a “memorandum for the deliberations” to supplement the observations they have made orally or to reply to the Government Commissioner’s submissions. This memorandum for the deliberations is read out by the reporting judge before he reads out the draft judgment and before the discussion begins.
49. Furthermore, it is settled case-law of the Conseil d’Etat that if the Government Commissioner were to raise a ground – even one involving an issue of public policy – that had not been relied on by the parties during the proceedings, the presiding judge would stay the proceedings, communicate the ground to the parties so that they could present argument on it, and relist the case for a fresh hearing some weeks later, since grounds raised of the court’s own motion have to be notified to the parties.
50. After the public hearing it is customary for the Government Commissioner to attend the deliberations but he has no vote. As a general rule, he intervenes orally only to answer any specific questions that are put to him. He is, after all, the member of the Court who has seen the case file most recently and is therefore supposed to have the most detailed knowledge of it.
51. Cases in the Conseil d’Etat may be tried either by a single section (and in that event all the members of the trial bench already know the case) or by combined sections (in that event, four members, representing the section which prepared the case for trial, out of the nine judges who have to deliberate on it know the case) or by the Judicial Division or the Judicial Assembly (so-called solemn constitutions of the court for hearing the most important cases), in which only the President and the reporting judge, out of the seventeen or twelve judges who will have to deliberate on it, know the case.
52. Lastly, it should be pointed out that there are Government Commissioners not only at the Conseil d’Etat but also at the other administrative courts (of first instance and appeal) and at the Jurisdiction Disputes Court. Furthermore, the function of Advocate General at the Court of Justice of the European Communities was closely modelled on the institution of Government Commissioner, with the difference that under Article 27 § 2 of the Rules of Procedure of the Court of Justice, only the judges who sat at the hearing may take part in the deliberations – to the exclusion, therefore, of the Advocate General.
53. In connection with the hearing of a reference for a preliminary ruling made to the Court of Justice at the European Communities by a Dutch court (the Arrondissementsrechtbank te ‘s-Gravenhage), Emesa Sugar (Free Zone) N.V. (a company), relying on Article 6 § 1 of the Convention, applied on 11 June 1999 to submit written observations after the Advocate General had delivered his opinion at the hearing on 1 June.
54. In an order of 4 February 2000 the Court of Justice refused that application on the following grounds:
“...
11. In accordance with Articles 221 and 222 of the EC Treaty, the Court of Justice consists of Judges and is assisted by Advocates General. Article 223 lays down identical conditions and the same procedure for appointing both Judges and Advocates General. In addition, it is clear from Title I of the EC Statute of the Court of Justice, which, in law, is equal in rank to the Treaty itself, that the Advocates General have the same status as the Judges, particularly so far as concerns immunity and the grounds on which they may be deprived of their office, which guarantees their full impartiality and total independence.
12. Moreover, the Advocates General, none of whom is subordinate to any other, are not public prosecutors nor are they subject to any authority, in contrast to the manner in which the administration of justice is organised in certain Member States. They are not entrusted with the defence of any particular interest in the exercise of their duties.
13. The role of the Advocate General must be viewed in that context. In accordance with Article 222 of the EC Treaty, his duty is to make, in open court, acting with complete impartiality and independence, reasoned submissions on cases brought before the Court of Justice, in order to assist the Court in the performance of the task assigned to it, which is to ensure that in the interpretation and application of the Treaty, the law is observed.
14. Under Article 18 of the EC Statute of the Court of Justice and Article 59 of the Rules of Procedure of the Court, the Opinion of the Advocate General brings the oral procedure to an end. It does not form part of the proceedings between the parties, but rather opens the stage of deliberation by the Court. It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the Court or which ‘derives its authority from that of the procureur général’s department ...’ (judgment in Vermeulen v. Belgium, cited above, paragraph 31). Rather, it constitutes the individual reasoned opinion, expressed in open court, of a Member of the Court of Justice itself.
15. The Advocate General thus takes part, publicly and individually, in the process by which the Court reaches its judgment, and therefore in carrying out the judicial function entrusted to it. Furthermore, the Opinion is published together with the Court’s judgment.
16. Having regard to both the organic and the functional link between the Advocate General and the Court ..., the aforesaid case-law of the European Court of Human Rights does not appear to be transposable to the Opinion of the Court’s Advocates General.
17. Moreover, given the special constraints inherent in Community judicial procedure, connected in particular with its language regime, to confer on the parties the right to submit observations in response to the Opinion of the Advocate General, with a corresponding right for the other parties (and, in preliminary ruling proceedings, which constitute the majority of cases brought before the Court, all the Member States, the Commission and the other institutions concerned) to reply to those observations, would cause serious difficulties and considerably extend the length of the procedure.
18. Admittedly, constraints inherent in the manner in which the administration of justice is organised within the Community cannot justify infringing a fundamental right to adversarial procedure. However, no such situation arises in that, with a view to the very purpose of adversarial procedure, which is to prevent the Court from being influenced by arguments which the parties have been unable to discuss, the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties ...
19. In the instant case, however, Emesa’s application does not relate to the reopening of the oral procedure, nor does it rely on any specific factor indicating that it would be either useful or necessary to do so.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98018
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF DENISOVA AND MOISEYEVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of P1-1;Just satisfaction reserved
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicants were born in 1949 and 1978 respectively and live in Moscow. They are wife and daughter of Mr Valentin Moiseyev, who was also an applicant before the Court (see Moiseyev v. Russia, no. 62936/00, 9 October 2008).
6. On 3 July 1998 the Investigations Department of the Federal Security Service of the Russian Federation (the FSB) opened criminal proceedings against Mr Moiseyev. At 11.30 p.m. a search was conducted at the applicants' flat. Foreign currency, the keys and registration papers for a VAZ car, and the second applicant's personal computer were seized. Simultaneously a search was carried out at Mr Moiseyev's office. In total, the investigators seized 5,747 US dollars.
7. On 10 July 1998 the investigator seized from the first applicant the keys to garage no. 178.
8. On 13 July 1998 Mr Moiseyev was formally charged with high treason, an offence under Article 275 of the Criminal Code.
9. On 22 July 1998 the investigator ordered a charge to be placed on the VAZ car with a view to “securing possible forfeiture of the defendant's property in accordance with Article 175 of the RSFSR Code of Criminal Procedure”.
10. On 1 September 1998 the investigator informed the director of the SBS-Agro bank of the freezing of Mr Moiseyev's foreign currency and Russian rouble accounts.
11. On 16 September and 12 November 1998 the investigator issued charging orders in respect of the garage and the computer. On 16 November 1998 the computer was physically removed from the applicants' flat and placed in the material evidence room of the Federal Security Service.
12. On 29 March 1999 the second applicant asked the investigator to return the computer, which was her personal property. On 12 April 1999 the investigator replied that the computer had been seized with a view to securing possible forfeiture of Mr Moiseyev's property and that certain files edited by Mr Moiseyev had been discovered on the hard disc. The second applicant was informed that, if necessary, her text files would be copied and handed over to her.
13. On 8 June 1999 the investigator ordered attachment of the seized 5,747 US dollars as a material exhibit. On 15 June 1999 the Finance and Planning Department of the “USSR State Security Committee” issued a receipt for the money.
14. On 14 August 2001 the Moscow City Court convicted Mr Moiseyev of high treason committed between 1992 and 1998, sentenced him to four years and six months' imprisonment and issued a confiscation order in respect of his property. The parts of the judgments relevant to the determination of the property matters read as follows:
“Mr Moiseyev's pre-trial deposition that he had received remuneration for information transmitted to a representative of a foreign state has been confirmed by the search records, noting the discovery of US dollars both in his office and at his place of residence. The witness B. confirmed that the search had uncovered 4,647 US dollars sorted into non-standard envelopes.
Both Mr Moiseyev and his wife Ms Denisova who was interviewed as an additional witness at trial, had been present during the search but raised no objections. Accordingly, the court considers that the decision attaching the 1,100 US dollars seized in Mr Moiseyev's office, the 4,647 US dollars, and seven envelopes as material exhibits was justified...
Having regard to the public dangerousness of the committed crime, the court orders confiscation of Mr Moiseyev's property. The court decides on the destiny of the material exhibits in accordance with Article 86 of the RSFSR Code of Criminal Procedure...
A confiscation order is issued in respect of the property that has been seized: [the VAZ car, foreign currency and Russian rouble bank accounts, garage no. 178, and the computer], as well as the cash funds of 5,747 US dollars which have been criminally acquired.”
15. On 3 January 2002 the first applicant asked the Supreme Court to order the return of her spousal property and to remove the garage from the list because it was rented rather than owned. She did not receive a response to her request.
16. On 9 January 2002 the Supreme Court upheld the conviction.
17. On 4 March 2002 the Moscow City Court sent an excerpt from the judgment of 14 August 2001 to the FSB's Finance and Economic Department for enforcement of the confiscation order in respect of the cash funds. The covering letter read as follows:
“Confiscation order to be executed in respect of Mr Moiseyev's cash funds in the amount of [unreadable] US dollars as having been criminally acquired and stored at the Department [according to] receipt no. 1013 of 15 June 1999.”
18. On 18 March 2002 the Moscow City Court issued five writs of execution for enforcement of the confiscation order in respect of Mr Moiseyev's property at his place of residence, the VAZ car, the garage, the bank accounts and the computer.
19. On 27 March 2002 the cash funds in the amount of 5,747 US dollars were received by the Vneshtorgbank from the FSB's Finance and Economic Department and credited to the State.
20. On 25 May 2002 a bailiff discontinued enforcement in respect of Mr Moiseyev's property located in his flat because no chargeable items had been found.
21. By a decision of 20 June 2002, a bailiff ordered the removal and sale of the computer and declared enforcement completed. On 31 July 2002 the computer was evaluated at 2,500 Russian roubles (RUB) and subsequently sold for RUB 1,609.05.
22. On 17 September 2002 a bailiff discontinued enforcement in respect of Mr Moiseyev's foreign currency and Russian rouble bank accounts. He determined that no accounts in his name were listed in the bank's database.
23. On 27 November 2003 a bailiff determined that the garage was in fact a collapsible metal structure located on a rented plot, in respect of which the rent agreement had expired. Accordingly, he held that its removal or sale were impossible.
24. Following the amendments of the Criminal Code (see paragraph 34 below), Mr Moiseyev asked the Moscow City Court to relieve him from the auxiliary penal sanction in the form of the confiscation order. On 14 February 2005 the Moscow City Court found that the enforcement of the confiscation order had been discontinued or terminated in respect of everything but the VAZ car. Since the auxiliary penal sanction of confiscation had been removed from the Criminal Code, the City Court decided to return the car to Mr Moiseyev. On 6 July 2005 the Supreme Court of the Russian Federation upheld that judgment on appeal.
25. On 13 May 2002 the first applicant sued the court bailiffs and the Federal Security Service before the Khoroshevskiy District Court of Moscow, seeking to have the charging orders lifted and to have her right to one half of the marital property, excluding the bank deposits, recognised. She submitted that she had been married to Mr Moiseyev since 1978 and that the Civil and Family Codes provided for equality of spouses' portions of the marital property. Relying on Mr Moiseyev's pay statements, she argued that from 1992 to 1998 he had earned more than five thousand dollars and thus the amount of 5,747 US dollars could not be considered to have been unlawfully acquired. She indicated that the garage had been rented in 1988, and that the computer had been the second applicant's property.
26. On 11 October 2002, 14 and 27 February 2003 the court heard the parties. As the first applicant withheld consent to the substitution of the Federal Property Fund for the FSB and to Mr Moiseyev as co-defendant, Mr Moiseyev joined the proceedings as a third party.
27. On 27 February 2003 the Khoroshevskiy District Court delivered a judgment. The entire reasoning read as follows:
“Having assessed the collected evidence, the court dismisses [the first applicant's] claim because the judgment of the Moscow City Court established that the contested property had been criminally acquired, which makes it impossible to recognise the plaintiff's right to one half of the seized property, and also [because] the FSB is not a proper defendant in this case. Neither [the first applicant] nor Mr Moiseyev have been deprived of an opportunity to appeal against the conviction in the part concerning the contested property.”
28. On 18 June 2003 the Moscow City Court upheld the judgment on appeal, noting that the claimed property had been found to have been criminally acquired by the Moscow City Court's judgment of 14 August 2001.
29. On 20 November 2003 the applicants sued the Federal Property Fund of the Russian Federation, seeking the lifting of the charging orders and recognition of the first applicant's right to one half of the spousal property and the second applicant's ownership of the computer.
30. On 9 August 2005 the Khoroshevskiy District Court of Moscow dismissed their claim, finding as follows:
“It follows from the judgment of 14 August 2001 that the cash funds in the amount of 5,747 US dollars had been criminally acquired... On 19 March 2002 they were deposited with the Vneshtorgbank bank with a view to confiscation and credit to the State... Accordingly, the court cannot agree with Ms Denisova's claim to one half of the spousal part of the said cash funds. No other judicial documents relating to the origin of the contested cash funds have been produced before the court, whereas, pursuant to Article 61 § 2 of the Code of Civil Procedure, the facts established by a final judicial decision in an earlier case bind the court.
As to Ms Moiseyeva's claims for recognition of her ownership of the computer and peripherals, it cannot likewise be satisfied because they have not been corroborated during the examination of the merits of the case. At present the said property has been confiscated and sold, which is confirmed by the bailiffs' information about the enforcement of the confiscation order in that respect.”
31. On 13 October 2005 the Moscow City Court upheld, in a summary fashion, the City Court's judgment.
32. Property acquired by spouses in marriage is presumed to be jointly owned (Article 256 § 1 of the Civil Code, Article 34 § 1 of the Family Code). A child owns property which he or she has received as a gift (Article 60 § 1 of the Family Code). Giving does not require a written agreement, handover of the gift being sufficient (Article 574 § 1 of the Civil Code).
33. The Criminal Code provides that “penalty shall be imposed on a person found guilty of commission of a crime” (Article 44). Confiscation of property is a form of penal sanction which is auxiliary to the main sanction and defined as “compulsory withdrawal, in whole or in part, without compensation, of the property owned by the convicted person” (Article 52). On 8 December 2003, Article 52 was removed from the Criminal Code.
34. As worded at the time of Mr Moiseyev's conviction, Article 275 of the Criminal Code provided that high treason carried a punishment of up to twenty years' imprisonment that may or may not be accompanied by a confiscation order in respect of the convict's property. On 8 December 2003 the reference to the possibility of issuing a confiscation order was deleted.
35. The RSFSR Code of Criminal Procedure, as worded at the time of Mr Moiseyev's conviction, provided as follows:
“The judgment... must decide on the destiny of the exhibits, and:
(1) instruments of crime which belong to the accused shall be confiscated and passed on to a competent agency or destroyed;
...
(4) criminally acquired money and other assets shall be confiscated to the profit of the State; other items shall be returned to their lawful owners, or, if the owners cannot be established, shall become the State's property. In case of a dispute over the ownership of such items, the dispute shall be resolved in civil proceedings...”
“With a view to securing a civil claim or a possible confiscation order, the investigator must charge the property of the suspect, defendant... or of the other persons who keep criminally acquired property... If necessary, the charged property may be impounded...”
36. Article 442 § 2 of the Code of Civil Procedure provides:
“A dispute over the ownership of the charged property initiated by persons who were not parties to the case shall be examined as a civil claim.
A claim for having the charging order lifted shall be made against the debtor and creditor. If the property has been charged or seized in connection with a confiscation order, the person whose property is to be confiscated, and the competent State authority shall be co-defendants...”
37. Resolution no. 7 of the Plenary Supreme Court of the USSR “On the case-law concerning confiscation of property” (of 29 September 1953, as amended on 29 August 1980) provided:
“4. ...The court should bear in mind that in case of confiscation of the convict's property in its entirety, the confiscation order should only apply to his or her personal property and to his or her part of the jointly owned property, it may not extend to the part of other persons who own that property jointly with the convict. Rights and lawful interests of the convict's family members living with him, must be respected...
9. The courts should bear in mind that even if the criminal judgment contained a list of specific property items liable to confiscation, third parties still may claim their title to that property in civil proceedings... The courts must consider such claims and the criminal judgment does not bind the civil court in its determination of the dispute over the contested property.
However, if the criminal judgment established that the listed property items had been criminally acquired or paid for with criminally acquired assets, but registered in other persons' names with a view to concealing them from confiscation... then the claim for lifting of the charging order shall be dismissed.”
38. Resolution no. 4 of the Plenary Supreme Court of the USSR “On legal requirements for examination of claims for lifting of charging orders” (of 31 March 1978, as amended on 30 November 1990) provided:
“9. When considering a spouse's claim for lifting the charging order in respect of his or her part in the joint marital property, the court must bear in mind that... the property acquired in marriage is jointly owned by the spouses and in case of division their parts are presumed equal...
The court must determine the actual size of the spouse's portion of the marital property and the specific items allocated to him or her, having regard to the entirety of the jointly acquired property, including the property that is not – by operation of law or otherwise – liable to confiscation. Each spouse's portion shall include both the property liable to confiscation and that not liable to confiscation...”


ITEMID: 001-81239
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: PAUL v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Manfred Paul, is a German national who lives in Lebrade.
, may be summarised as follows.
The applicant is a farmer and horse breeder. During the summer of 1996, fourteen of his horses were on a paddock near a sewage treatment plant operated by the Lebrade municipality. In November 1996, after he had returned the horses from the paddock, the applicant noted alterations to the horses’ hide at the croup, the neck and the back. Subsequently, some horses suffered from diarrhoea and lameness. Between December 1996 and summer 1998, all horses except two died naturally or had to be put down.
The applicant subsequently sued the municipality. After he had filed an objection to a default judgment of 4 July 1997, the Kiel Regional Court dismissed his claim on 6 August 1999. It found that, irrespective of the legal basis for his claim and whether chemical or biological substances from the plant had reached the applicant’s property, the applicant had not established that there was a causal link between the impact of the sewage plant and the horses’ diseases. An expert opinion prepared for the court had concluded that there was hardly any available medical evidence which could clarify the cause of the death of the horses with any certainty. The Kiel Regional Court heard three veterinary surgeons who were familiar with horse diseases but found that none of them had established a reason for the horses’ demise: there was no support for the applicant’s suspicion that corrosive vapours from the plant had reached the skin of the horses, and it was not likely that the skin diseases of the animals had been caused by a form of corrosion. Rather, it was likely that the animals had died from enteritis caused by salmonellae. The Kiel Regional Court also noted that the applicant had filed a motion to hear the expert in person during the court hearing, but had not sufficiently substantiated his criticism of the expert’s findings.
On 17 May 2001 the Schleswig Court of Appeal rejected the applicant’s appeal. It held that the Kiel Regional Court had no reason to obtain a further expert opinion or to hear the expert in person. The applicant had not submitted substantiated claims concerning the extent of the plant’s emissions or concerning the link between the alleged emissions and the damage. The Schleswig Court of Appeal found that section 6 of the Environmental Liability Act, which provides for a shifting of the burden of proof if a facility listed in Appendix 1 of the Act is inherently capable of causing the damage (see Relevant domestic law, below), did not apply because the sewage plant was not listed in Appendix 1 to the Act. The Schleswig Court of Appeal also considered that the applicant had not sufficiently substantiated how the plant could possibly produce corrosive vapours and how they could reach his property, which was not located in the prevailing wind direction. Thus, the Schleswig Court of Appeal saw no need to obtain further evidence at the appeal stage.
On 28 February 2002 the Federal Court of Justice dismissed the applicant’s appeal on points of law. The Federal Constitutional Court refused to admit the applicant’s constitutional complaint on 30 April 2003.
Relevant provisions of the Environmental Liability Act of 10 December 1990:
“1. Facility liability for environmental impacts
If a person suffers death or injury to his body or health, or if property is damaged, due to an environmental impact that issues from one of the facilities named in Appendix 1, then the operator of the facility shall be liable to the injured person for the damage caused thereby.
6. Presumption of causation
(1) If a facility is inherently capable, on the facts of the particular case, of causing the damage that occurred, then it shall be presumed that this facility caused the damage. Inherent capability in a particular case is determined on the basis of the course of business, the structures used, the nature and concentration of the materials used and released, the weather conditions, the time and place at which the damage occurred, the nature of the damage, as well as all other conditions which speak for or against causation of the damage in the particular case.
(2) Paragraph (1) shall not apply if the facility has been properly operated. A proper operation is present if the special operational duties have been complied with and no disruption of operations has occurred.
...”
The sewage treatment plant operated by the defendant municipality is not among the facilities listed in Appendix 1 to the Environmental Liability Act.


ITEMID: 001-97617
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GROSARU v. ROMANIA
IMPORTANCE: 1
CONCLUSION: Violation of P1-3;Violation of Art. 13+P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 6. The applicant was born in 1952 and lives in Bucharest.
7. As a member of the Association of Italians of Romania, he stood as a candidate in the parliamentary elections of 26 November 2000 for the Italian Community of Romania, one of the organisations representing the Italian minority in Romania. That organisation submitted a single-candidate list containing the applicant’s name in nineteen of the forty-two constituencies.
8. Once the votes had been counted, the Central Electoral Office decided, on the basis of Article 4 of Law no. 68/1992 on elections to the Chamber of Deputies and to the Senate (“Law no. 68/1992”), to allocate the parliamentary seat belonging to the Italian minority to the Italian Community of Romania, which had secured 21,263 votes at national level.
9. Although at national level the applicant had secured 5,624 votes out of a total of 21,263, the Central Electoral Office allocated the parliamentary seat to another member of the Italian Community of Romania, Ms Ileana Stana Ionescu, who had stood for election on another single-candidate list and had secured only 2,943 votes, but in a single constituency.
10. On 1 December 2000 the applicant challenged the decision allocating the parliamentary seat before the Central Electoral Office. On 2 December 2000 the Office dismissed his challenge by a majority. That decision was signed by six judges and six representatives of political parties.
11. The relevant parts of that decision read:
“In accordance with Article 4 § 2 of Law no. 68/1992, as amended and supplemented, organisations of citizens belonging to national minorities participating in elections are accorded the same legal status as political parties for the purposes of the electoral process.
With regard to the Italian minority, the votes were centralised and the parliamentary seats were allocated, in accordance with Article 66 of the Law, to the organisation having secured the greatest number of votes and on the basis of the order of candidates appearing on that organisation’s winning list, there being no provision in law for individual nomination.
It should be specified that the government’s Emergency Ordinance no. 165 of 15 [sic] October 2000 granting national minorities the right to submit the same list of candidates for the Chamber of Deputies in more than one constituency does not infringe the principle of parliamentary seats being allocated by constituency, the basis of that regulation being to determine, in such instances, the ethnic minority organisation having the largest number of votes, and not to breach the principle of territorial representation in elections.”
12. In a dissenting opinion, a representative of a political party submitted that Article 68 § 1 (g) of Law no. 68/1992 should be interpreted to mean that in the case of a given ethnic minority, the parliamentary seat should be allocated to the first candidate on the organisation’s national list having gained the most votes, again at national level.
13. On 2 December 2000 the applicant lodged an appeal with the Central Electoral Office against its decision of the same date. On 3 December 2000 the Office, sitting as a panel composed of six judges and twelve representatives of political parties, declared the appeal inadmissible on the ground that its decisions were final.
14. On 4 December 2000 the applicant submitted his case to the Constitutional Court. By a letter of 11 December 2000, in which reference was made to Article 21 of the Romanian Constitution guaranteeing free access to the courts, the court informed the applicant that it did not have jurisdiction in matters concerning electoral disputes.
15. On 4 December 2000 the applicant lodged an appeal with the Supreme Court of Justice. By a decision of 13 December 2000, that court declared the appeal inadmissible on the ground that the decisions of the Central Electoral Office were final.
16. On 8 December 2000 the applicant repeated his challenge in a submission to the Chamber of Deputies Validation Commission, but was unsuccessful. The transcript of the Chamber of Deputies’ session of 15 December 2000, published on the website of that institution, shows that the applicant’s challenge was rejected on the same ground as that put forward by the Central Electoral Office.
17. In the parliamentary elections of 2004 and 2008 the applicant was elected MP for the Italian minority in Romania.
“(1) The Chamber of Deputies and the Senate are elected by universal, equal, direct, secret and free suffrage, in accordance with electoral law.
(2) Organisations of citizens belonging to national minorities which fail to obtain the number of votes necessary for representation in Parliament each have the right to one Chamber of Deputies seat, in accordance with the provisions of electoral legislation. Citizens of a national minority can be represented by one organisation only.
...”
18. The relevant Articles of this Law, in force at the material time, provide:
“1. Legally constituted organisations of citizens belonging to a single national minority which fail to obtain at least one seat in the Chamber of Deputies or the Senate are entitled, jointly, to one seat in the Chamber of Deputies, in accordance with Article 59 § 2 of the Constitution, provided that their share of the vote is at least 5% of the average number of validly cast votes at national level for the election of a deputy.
2. Organisations of citizens belonging to national minorities participating in elections shall be accorded the same legal status as political parties for the purposes of the electoral process.
3. Organisations of citizens belonging to national minorities having participated in elections on the joint list of the organisations in question shall also be covered by the provisions of paragraph 1; in the event that none of the candidates appearing on the joint list is elected, a seat in the Chamber of Deputies shall be allocated to all the organisations having proposed the list, in compliance with the provisions of paragraph 1.
4. The provisions of paragraph 3 shall not apply to organisations of citizens belonging to national minorities having taken part in elections on a joint list with a political party or another political grouping or which have participated both on the joint lists referred to in paragraph 3 and on their own lists.
5. The seat in the Chamber of Deputies allocated in accordance with paragraphs 1 and 3 shall be allocated in addition to the total number of seats.
...”
“1. The Central Electoral Office shall be composed of seven judges of the Supreme Court of Justice and sixteen representatives of the parties, political groupings and coalitions participating in the elections.
2. Within five days of an election date being set, the President of the Supreme Court of Justice shall appoint the seven judges from amongst those serving at the court, in a public session and by the drawing of lots. A record shall be made of the result of the draw which shall be signed by the President of the Supreme Court of Justice and which shall serve as confirmation. The President of the Supreme Court of Justice shall give at least forty-eight hours’ notice in the press of the date of the session.
3. Within twenty-four hours of their confirmation, the appointed judges shall select the president of the Central Electoral Office from among their number, by secret ballot. The office thus composed, which is then joined by representatives of the parties, political groupings and coalitions, shall perform all the duties incumbent upon it in accordance with this Law.
4. In the two days following expiry of the time-limit in which to put forward a candidate, the parties, political groupings and coalitions participating in the elections shall inform the Central Electoral Office in writing of the number of lists submitted in each constituency and the names and surnames of the candidates. Any communications submitted after that time-limit shall not be taken into consideration.
5. Representatives of parties, political groupings or coalitions shall be appointed to the Central Electoral Office in descending order of the number of lists submitted by each party, political grouping or coalition, for the purposes of paragraph 4, in relation to the total number of constituencies nationwide. No party, political grouping or coalition may have more than five representatives.
6. Representatives of parties, political groupings or coalitions appointed to the Central Electoral Office shall be chosen in the order referred to in the communication mentioned in paragraph 4.
7. If more than one party, political grouping or coalition has submitted the same number of lists, their representatives shall be appointed by the President of the Central Electoral Office, by the drawing of lots, in the presence of persons delegated by the parties, political groupings or coalitions concerned ...”
“1. The Central Electoral Office shall:
(a) ensure that electoral registers are updated and monitor the application and uniform interpretation of legal provisions relating to elections at national level;
(b) resolve any disputes in relation to is activities or the operations of the constituency electoral offices;
(c) receive reports from the constituency electoral offices indicating the number of votes validly cast for each list of candidates and record which parties, political groupings or coalitions have failed to obtain at least 3% of validly cast votes at national level; communicate to the constituency electoral offices and publish, within the following forty-eight hours, the names of the parties, political groupings or coalitions concerned;
(d) verify and record the result of the elections, count, at national level, the number of unused votes for each party, political grouping or coalition satisfying the criterion referred to in paragraph (c) above and allocate seats centrally by constituency;
(e) confirm the allocation of a parliamentary seat to the organisation of citizens belonging to a national minority having satisfied the criteria set forth in Article 4, and issue the relevant confirmation to the deputy thus appointed;
(f) annul any elections organised in a constituency if the vote or validation of the results has been subject to fraud affecting the arrangements for the allocation of seats, and organise a new ballot;
(g) perform all other duties incumbent upon it in accordance with this Law.
...
4. The decisions of the Central Electoral Office shall be pronounced in public.”
“1. For the purposes of allocation of seats to candidates on the lists, only parties, political groupings and coalitions having secured at least 3% of the validly cast votes at national level shall be taken into account. Seats in the Chamber of Deputies and the Senate shall be allocated separately.
2. Seats shall be allocated once the Central Electoral Office has notified the names of the parties, political groupings or coalitions having secured at least 3% of the validly cast votes at national level. Seats in the Chamber of Deputies and the Senate shall be allocated separately.
3. Seats in the Chamber of Deputies and the Senate shall be distributed and allocated in two stages: at constituency level and at national level.
4. At constituency level, the electoral office shall determine the constituency electoral coefficient, separately for the Chamber of Deputies and for the Senate, by dividing the total number of votes validly cast for all the lists of the parties, political groupings and coalitions satisfying the criterion referred to in paragraph 1 and for independent candidates by the number of deputies or, as applicable, senators, to be elected in that constituency; each list shall be allocated as many seats as the number of validly cast votes for that list divided by the electoral coefficient of the constituency. The constituency electoral office shall allocate seats in the order in which the candidates appear on the list; one seat shall be allocated to each independent candidate having obtained a number of validly cast votes at least equal to the electoral coefficient for deputies or, as applicable, senators. The constituency electoral office shall inform the Central Electoral Office, with a view to their centralised distribution, of the list of remaining votes (unused or fewer than the electoral coefficient) secured by the lists of parties, political groupings and coalitions satisfying the criterion referred to in paragraph 1 and of any seats that have not been allocated.
5. For each party, political grouping or coalition satisfying the criterion referred to in paragraph 1, the Central Electoral Office shall add up, at national level, separately for the Chamber of Deputies and for the Senate, the total number of any unused votes or votes below the constituency electoral coefficient of all constituencies. The number of votes thus obtained by each party, political grouping or coalition shall be divided by 1, 2, 3, 4, etc., in line with the number of unallocated seats at constituency level; the quotients resulting from the division, irrespective of the list from which they come, shall be ranked in descending order up to the number of unallocated seats; the lowest quotient shall constitute the national electoral coefficient for deputies or, as applicable, senators. Each party, political grouping or coalition shall be allocated as many seats in the Chamber of Deputies or the Senate as the total number of validly cast votes, unused and lower than the constituency coefficient that it has obtained at national level divided by the electoral coefficient fixed at national level.
6. The Central Electoral Office shall determine the distribution of seats by constituency. ...”
“1. The Central Electoral Office shall resolve any disputes that may arise and issue a separate report for the Chamber of Deputies and for the Senate. The report shall indicate, at national level:
(a) the total number of voters registered on the permanent electoral registers;
(b) the total number of voters;
(c) the total number of validly cast votes;
(d) the total number of invalid votes;
(e) the method by which the constituency electoral offices have applied the provisions of Article 66 § 4;
(f) how seats have been distributed at national level in accordance with Article 66 § 5 and the allocation thereof to the constituencies in accordance with Article 66 § 6;
(g) the organisations of citizens belonging to national minorities which, despite having participated in the elections, have failed to gain a seat in the Chamber of Deputies or the Senate; the total number of votes validly cast for the lists of each of those organisations and for organisations entitled to a seat in the Chamber of Deputies in accordance with Article 4; and the name and surname of the first candidate appearing on the list of the organisation entitled to a seat in the Chamber of Deputies having secured the largest number of votes. In the event of any organisations’ lists having obtained the same number of votes, seats shall be allocated by the drawing of lots.”
19. Article 91 § 9 of the new Law no. 373 of 24 September 2004 on elections to the Chamber of Deputies and to the Senate states that the parliamentary seat belonging to the national minorities is to be allocated to the constituency in which the list of candidates put forward has obtained the highest number of votes.
20. This Ordinance added the following paragraph to Article 5 of the above-mentioned Law no. 68/1992:
“8. By way of derogation from the provisions of paragraphs 3, 6 and 7, organisations of citizens belonging to national minorities may submit the same list of candidates to the Chamber of Deputies in more than one constituency.”
21. The relevant parts of the Regulations, in the version in force at the material time, were worded as follows:
“For the purposes of validating mandates, the Chamber of Deputies shall elect, at its first session, a committee comprising thirty deputies reflecting the political composition of the Chamber, as this results from the constitution of parliamentary groups.”
“The Validation Commission shall examine any pending disputes and any which have been examined in breach of the procedural provisions.”
22. The Code of Good Practice in Electoral Matters was adopted by the Venice Commission at its 51st plenary session held on 5 and 6 July 2002 and submitted to the Parliamentary Assembly of the Council of Europe on 6 November 2002. The relevant parts thereof read as follows:
“If the electoral law provisions are to be more than just words on a page, failure to comply with the electoral law must be open to challenge before an appeal body. This applies in particular to the election results: individual citizens may challenge them on the grounds of irregularities in the voting procedures. It also applies to decisions taken before the elections, especially in connection with the right to vote, electoral registers and standing for election, the validity of candidatures, compliance with the rules governing the electoral campaign and access to the media or to party funding.
There are two possible solutions:
– appeals may be heard by the ordinary courts, a special court or the Constitutional Court;
– appeals may be heard by an electoral commission. There is much to be said for this latter system in that the commissions are highly specialised whereas the courts tend to be less experienced with regard to electoral issues. As a precautionary measure, however, it is desirable that there should be some form of judicial supervision in place, making the higher commission the first appeal level and the competent court the second.
Appeal to parliament, as the judge of its own election, is sometimes provided for but could result in political decisions. It is acceptable as a first instance in places where it is long established, but a judicial appeal should then be possible.
Appeal proceedings should be as brief as possible, in any case concerning decisions to be taken before the election. On this point, two pitfalls must be avoided: first, that appeal proceedings retard the electoral process, and second, that, due to their lack of suspensive effect, decisions on appeals which could have been taken before, are taken after the elections.
In addition, decisions on the results of elections must also not take too long, especially where the political climate is tense. This means both that the time-limits for appeals must be very short and that the appeal body must make its ruling as quickly as possible. Time-limits must, however, be long enough to make an appeal possible, to guarantee the exercise of rights of defence and a reflected decision. A time-limit of three to five days at first instance (both for lodging appeals and making rulings) seems reasonable for decisions to be taken before the elections. It is, however, permissible to grant a little more time to Supreme and Constitutional Courts for their rulings.
The procedure must also be simple, and providing voters with special appeal forms helps to make it so. It is necessary to eliminate formalism, and so avoid decisions of inadmissibility, especially in politically sensitive cases.
It is also vital that the appeal procedure, and especially the powers and responsibilities of the various bodies involved in it, should be clearly regulated by law, so as to avoid any positive or negative conflicts of jurisdiction. Neither the appellants nor the authorities should be able to choose the appeal body. The risk that successive bodies will refuse to give a decision is seriously increased where it is theoretically possible to appeal to either the courts or an electoral commission, or where the powers of different courts – e.g. the ordinary courts and the Constitutional Court – are not clearly differentiated ...
Disputes relating to the electoral registers, which are the responsibility, for example, of the local administration operating under the supervision of or in cooperation with the electoral commissions, can be dealt with by courts of first instance.
Standing in such appeals must be granted as widely as possible. It must be open to every elector in the constituency and to every candidate standing for election there to lodge an appeal. A reasonable quorum may, however, be imposed for appeals by voters on the results of elections.
The appeal procedure should be of a judicial nature, in the sense that the right of the appellants to proceedings in which both parties are heard should be safeguarded.
The powers of appeal bodies are important too. They should have authority to annul elections, if irregularities may have influenced the outcome, i.e. affected the distribution of seats. This is the general principle, but it should be open to adjustment, i.e. annulment should not necessarily affect the whole country or constituency – indeed, it should be possible to annul the results of just one polling station. This makes it possible to avoid the two extremes: annulling an entire election, although irregularities affect a small area only, and refusing to annul, because the area affected is too small. In zones where the results have been annulled, the elections must be repeated.
Where higher-level commissions are appeal bodies, they should be able to rectify or annul ex officio the decisions of lower electoral commissions.”
23. The Report on electoral law and electoral administration in Europe (“Synthesis study on recurrent challenges and problematic issues”) was adopted by the Council for Democratic Elections at its 17th meeting (Venice, 8-9 June 2006) and by the Venice Commission at its 67th plenary session (Venice, 9-10 June 2006). The relevant parts thereof read as follows:
“167. Complaint and appeals procedures must be open at least to each voter, candidate, and party. A reasonable quorum may, however, be imposed for appeals by voters on the results of election (CDL-AD(2002)023rev, para. 99). In order to comply with international standards, the complaint and appeals procedures should clearly provide the following rights for voters, candidates, and political parties: the rights to file a complaint, to present evidence in support of the complaint, to a public and fair hearing on the complaint, to an impartial and transparent proceedings on the complaint [sic], to an effective and speedy remedy, as well as to appeal an appellate court if a remedy is denied (see for example CDL-AD(2004)027, para. 111). In practice, however, these rights are not always respected. At times, even credible complaints are left without any legal redress.
168. Due to different legal and political traditions, a variety of procedures are used in the resolution of election disputes. In many established democracies in western Europe (like France, Germany, Italy, or the United Kingdom) election appeals are heard by ordinary administrative and judicial bodies operating under special procedures. In contrast, in most emerging and new democracies in central and eastern Europe (and in other regions of the world), the responsibility for deciding on election complaints and appeals is shared between independent electoral commissions and ordinary courts ...”
24. The Report on electoral law and national minorities was adopted by the Venice Commission on 25 January 2000. It concerns the central element of public life – participation in a State’s elected bodies, especially the national legislature. Such participation is studied through electoral law and the possibilities it gives members of national minorities of being present in elected bodies.
Rules of electoral law which provide for special representation of minorities are an exception. Of the States which replied to the Commission’s questionnaire, only three (Croatia, Romania and Slovenia) provided for the election of deputies intended to represent national minorities. According to the report, Romania is the country where the largest number of minority parties or organisations (treated as political parties for electoral purposes) took part in elections and have deputies and senators in the parliament.
Other systems, while not necessarily guaranteeing the presence of members of national minorities in the elected bodies, facilitate the representation of minority organisations. In Germany and Poland, threshold rules do not apply to such organisations.
The Belgian system is specific. The body of institutions is conceived in such a way as to establish a balance between the different linguistic groups (rather than between minorities in the strict sense). Moreover, in certain areas which are mixed from a linguistic point of view, adjustments have been made so that electors from different linguistic communities are represented in the elected body.
In most cases, however, the representation of minorities in an elected body is achieved through the application of the ordinary rules of electoral law, which treat people belonging to national minorities and others in the same way.
25. The Lund recommendations were adopted in Lund (Sweden) in September 1999 by a group of international experts under the aegis of the High Commissioner on National Minorities of the Organization for Security and Co-operation in Europe (OSCE). The relevant parts of those recommendations read as follows:
“(7) Experience in Europe and elsewhere demonstrates the importance of the electoral process for facilitating the participation of minorities in the political sphere. States shall guarantee the right of persons belonging to national minorities to take part in the conduct of public affairs, including through the rights to vote and stand for office without discrimination.
(8) The regulation of the grouping and activity of political parties shall comply with the international law principle of freedom of association. This principle includes the freedom to establish political parties based on communal identities as well as those not identified exclusively with the interests of a specific community.
(9) The electoral system should facilitate minority representation and influence.
– Where minorities are concentrated territorially, single-member districts may provide sufficient minority representation.
– Proportional representation systems, where a political party’s share in the national vote is reflected in its share of the legislative seats, may assist in the representation of minorities.
– Some forms of preference voting, where voters rank candidates in order of choice, may facilitate minority representation and promote inter-communal cooperation.
– Lower numerical thresholds for representation in the legislature may enhance the inclusion of national minorities in governance.
(10) The geographic boundaries of electoral districts should facilitate the equitable representation of national minorities.”
The Lund recommendations are set out in the “Guidelines to Assist National Minority Participation in the Electoral Process” published in January 2001 under the aegis of the OSCE.
26. Despite differences in the organisation and characteristics of the electoral administration responsible for declaring results and the distribution of seats (independent electoral commissions, government structures, temporary polling stations, courts), the information available to the Court concerning the legislation of a large number of Council of Europe member States shows a degree of convergence as regards the existence of a post-electoral system of appeals. In certain States it is possible to lodge an appeal with a recognised court or tribunal body, be it an ordinary court, a special electoral court or a Constitutional Court. While certain countries make provision for up to two stages of appeal before the judicial authorities, others envisage only one such appeal, at first instance. The three countries that envisage no judicial remedy beyond validation of powers by the legislative chamber are in western Europe (Belgium, Italy and Luxembourg). The tendency towards investing courts with jurisdiction for post-electoral disputes is in line with the European standards recommended by the Venice Commission, which points out that in all cases there must be a judicial remedy available, since an appeal to the parliamentary validation commission or an electoral commission does not offer sufficient guarantees.
27. This is the system used by Romania and Albania. In Albania, decisions relating to the declaration of results may be challenged before the central electoral commission itself. However, the losing parties may subsequently appeal against the decision before a court (the electoral chamber of the Tirana Court of Appeal).
28. While such a practice is fairly widespread, three countries (Belgium, Italy and Luxembourg) stand out because the only post-election remedy available is validation by parliament, the decisions of the electoral offices being deemed to be final. That said, those three countries have enjoyed a long tradition of democracy which would tend to dissipate any doubts as to the legitimacy of such a practice. The Venice Commission in general has reservations as to the effectiveness of this type of remedy, however, as there could be doubts as to the impartiality of such bodies (see paragraph 22 above).
29. The French example may be held up in this regard: when the validation commission (which at the time was the only body authorised to hear appeals) excluded twenty-five Poujadist MPs from parliament in 1956, the Constitutional Council created by the 1958 Constitution was tasked with avoiding such pitfalls and the practice of validation purely and simply disappeared from the French parliamentary landscape. It may also be useful to point out that in 2005, Switzerland created the possibility of an appeal to the Federal Court (while previously, the verification of powers by the National Council served as the only appeal process).
30. Nevertheless, that practice remains the norm in certain States. Furthermore, various countries, including Switzerland, continue to use a dual system. Judicial review does not de facto prevent validation by parliament, in so far as their objectives remain separate. The purpose of the first is to settle potential disputes through the courts while the purpose of the second is to validate mandates by means of political supervision. This type of validation acknowledges the specific nature and independence of the legislature in relation both to the executive and the judiciary.
31. One type of appeal is that lodged with an “ordinary” court. The competent authorities may be administrative courts and courts of appeal, as in the following countries: Andorra, Azerbaijan, Bosnia and Herzegovina, Georgia (Tbilisi Court and Court of Appeal), Hungary, Latvia (Department of Administrative Affairs of the Senate of the Supreme Court), Spain (Administrative Appeals Division of the Supreme Court) and the United Kingdom (Election Court of the High Court and appeal to the Court of Appeal).
32. Many countries confer jurisdiction for post-electoral disputes on the Constitutional Court. However, that court may not necessarily have the same powers of review from one system to another. It may merely review constitutionality (Georgia) or it may verify and approve the results submitted by the electoral commission (Azerbaijan).
33. Certain countries have adopted this type of remedy either at first or last instance: Andorra (second instance), Armenia (first instance), Croatia (first instance), Estonia (first instance, before the Supreme Court as the Constitutional Court), France (first instance), Georgia (only where issues of constitutionality arise), Malta (first instance), Spain (second instance and protection of fundamental rights) and Switzerland (second instance before the Federal Court).
34. Lastly, some systems include courts which deal only with electoral disputes. They are composed of judges who are generally from other jurisdictions and they have a limited lifespan (the time-limit for an appeal following the publication of the results), but they enjoy exclusive jurisdiction in electoral disputes. Specific bodies of this kind have been set up in the following countries: Albania (electoral chamber of the Tirana Court of Appeal), Greece (Special Supreme Court, specialising in certain types of dispute, including electoral disputes), Sweden (Electoral Review Board) and the United Kingdom (Election Court).
35. Only one case is known – that of Switzerland (challenge before the cantonal government). This is the result of the country’s history and federal tradition; however, the powers of the cantonal government go hand in hand with validation by the Conseil national (Parliament) of its own powers and appeal to the Federal Court since 2005.
VIOLATED_ARTICLES: 13
P1
VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-61743
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF POLITIKIN v. POLAND
IMPORTANCE: 4
CONCLUSION: Preliminary objection dismissed (victim);Violation of Art. 6-1;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1942 and lives in Warsaw.
5. On 21 March 1994 the Municipal Housing Board for WarsawŻoliborz (Zarząd Budynków Komunalnych ”Żoliborz”) lodged with the Warsaw District Court (Sąd Rejonowy) a civil action against the applicant. The plaintiff sought to terminate the payment of an annuity (renta wyrównawcza) to the applicant.
6. The trial court held hearings on 7 July, 19 October, 12 December 1994 and 9 February 1995.
7. On 20 February 1995 the District Court exempted the applicant from the court-fees.
8. On 5 March 1996 the court held a hearing.
9. On 23 December 1997 the trial court, sitting in camera, ordered an expert opinion. The opinion was submitted to the court in June 1998.
10. On 9 March 1999 the court held a hearing.
11. On 7 July 2000 the trial court ordered a supplementary expert opinion.
12. On 17 July 2001 the trial court decided to exempt the applicant from the costs of the expert opinion.
13. On 20 August 2002 the expert submitted his opinion to the court.
14. On 23 October 2002 the court held a hearing.
15. On 19 November 2002 the Warsaw District Court gave judgment in which it dismissed the plaintiff's claim and increased the applicant's annuity.
16. The parties did not appeal against it and the judgment became final.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84715
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LIEBREICH v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: The applicant, Mr Harry Liebreich, is a German national who was born in 1967 and lives in Berlin. He was represented before the Court, as already in the proceedings before the domestic courts, by Mr T. Mengede, a lawyer practising in Berlin. The respondent Government were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 September 2001 the Tiergarten District Court opened the trial against the applicant on charges of insurance fraud. In the course of the second trial hearing on 27 September 2001, the applicant presented a medical certificate dated 25 September 2001 issued by H., a licensed doctor (Diplom Mediziner) for psychiatry. According to that certificate, the applicant was suffering from a depression and was therefore presently unfit to plead (verhandlungsunfähig). After the applicant had declared that he had been able to follow the hearing until then, the latter was ended on his request. On the third day of the hearing, the applicant declared to be fit to plead.
On 30 October 2001 the Tiergarten District Court, having held seven hearings, convicted the applicant of 26 counts of insurance fraud and sentenced him to three years’ imprisonment. It found that the applicant, who ran a garage, had simulated accidents with the help of others in order to obtain the payment of insurance benefits. In fixing the applicant’s sentence, the court took into account as an aggravating factor that the applicant had acted on a commercial basis. It considered in mitigation that it could not be excluded that the applicant, who had confessed to the offences, had needed a large amount of money in order to satisfy claims for protection money (Schutzgeld) extorted from him by unknown third persons.
The applicant appealed against the District Court’s judgment. He contested in particular that he had committed the frauds on a commercial basis as he had used the money obtained thereby to pay the blackmailers. He further argued that the sentence was too severe as he had acted with diminished criminal responsibility. Following the constant threats uttered by the blackmailers he suffered from serious anxiety and depression which necessitated continuous neurological and psychiatric treatment.
The hearing before the Berlin Regional Court took place on 25 June 2002.
In the applicant’s submission, his counsel informed the court orally prior to the formal opening of the hearing in the presence of the Public Prosecutor’s Office and his co-defendants’ defence counsels that the applicant was unfit to plead. His counsel submitted two medical certificates dated 13 May 2002 issued by doctor H., the neurologist and psychiatrist in charge of the applicant’s treatment for the past years. According to these certificates, the applicant, who was under constant psychiatric treatment, was unfit for work from 25 September 2001 presumably until 5 August 2002 and also unfit to plead. His lawyer further presented a medical certificate dated 13 November 2001 issued by doctor H. in which the doctor stated that the applicant suffered from a serious anxiety and depression syndrome, might suffer from a personality disorder and was being treated with anti-depressants. The doctor recommended carrying out a psychiatric examination in the course of the appeal proceedings in order to assess the applicant’s criminal responsibility. The applicant’s lawyer further informed the Regional Court that the applicant was presently under the influence of strong anti-depressants which he was obliged to take in order to treat his illness. The court inspected the certificates and handed them back to his counsel as it did not wish to take them to the files at that moment.
The hearing was then opened and the applicant and his co-defendants made submissions on their personal situation. Excerpts of the District Court’s judgment were read out. Having been advised of his right to remain silent, the applicant declared that he was ready to make submissions on the charges against him. In the applicant’s submission, his counsel reminded the court at that moment that the question of the applicant’s fitness to plead had to be addressed.
The Regional Court interrupted the hearing for one hour in order to award the defendants and their counsels the opportunity to consider limiting the appeals to the fixing of the sentence. When the hearing was resumed, the applicant, having consulted his counsel, declared that he restricted his appeal to the fixing of his sentence.
The applicant then handed over to the court the two medical certificates dated 13 May 2002 (see above) issued by doctor H. according to which he was unfit to plead. According to the minutes of the hearing as rectified by the court, the applicant, having consulted his counsel, declared on the court’s enquiry that he considered himself to be fit to plead and was ready to participate in the hearing.
Thereupon, the presiding judge interrupted the hearing for approximately fifteen minutes. According to the minutes of the hearing, the applicant, following this break, declared again on the court’s enquiry that he felt fit to make and to receive procedural statements. According to the minutes of the hearing, the presiding judge subsequently informed the parties that she had phoned doctor H. during the break. The latter had confirmed that the applicant had been prescribed antidepressants. In view of the (average) dosage of the medication, the applicant was fit to make and to receive procedural statements also when he had taken the antidepressants. In the applicant’s submission, the presiding judge informed him of the telephone conversation with his doctor prior to questioning him for the first time on his fitness to plead. The parties were given the opportunity to comment on this issue. The Regional Court considered the applicant as being fit to stand trial and proceeded with the hearing.
The applicant then made submissions on the charges. He stated, in particular, that he had become depressive due to his offences, as a result of which he had lost his means of subsistence.
At the conclusion of the hearing, the Regional Court sentenced the applicant to two years and nine months’ imprisonment. It found that in the applicant’s submission, which had not been disproved, he had been blackmailed since 1997 by unknown third persons who had damaged cars parked in his garage and had threatened him and his family. As the police had not agreed to afford him protection immediately, he had committed the insurance frauds on a commercial basis in order to be able to pay the protection money extorted by these persons. In fixing the sentence, the court further took into account that the applicant had shown in the hearing that he truly regretted his offences presumably committed because of the said blackmail. It also considered in mitigation that there was a link between his feeble health caused by a slight depression and the criminal proceedings against him. The court found the high damage caused (some 250,000 Deutschmarks), the number of frauds committed by the applicant and the fact that he had instigated several persons to participate in them to be aggravating circumstances.
Right after the hearing the applicant went to see doctor H. Having examined him, the latter certified that the applicant was in a confused, very depressed and desperate state of mind and that his submission that he had not been able to follow the court hearing was credible. Doctor H. stated that the information he had given on the phone to the Berlin Regional Court that morning, at a moment when he had been treating other patients, needed to be clarified. From a retrospective point of view it was very likely that the applicant had been unfit to plead for health reasons throughout the hearing before the Berlin Regional Court on that day.
On 2 July 2002 the applicant lodged an appeal on points of law. He argued that the conduct of the hearing before the Regional Court despite his unfitness to plead or without having his capacity to plead properly examined by a doctor entailed a serious violation of his right to be present, to be heard and effectively to defend himself as protected by section 230 § 1 of the Code of Criminal Procedure (see ‘Relevant domestic law and practice’ below).
In his submissions in reply dated 13 December 2002 the Berlin Public Prosecutor General stated that, having regard to the course of the hearing before the Regional Court as laid down in the minutes of the hearing, that court had no reason to doubt the applicant’s fitness to plead and was thus not obliged to consult a medical expert.
On 21 January 2003 (decision served on 27 January 2003) the Berlin Court of Appeal, without giving reasons, dismissed the applicant’s appeal on points of law as manifestly ill-founded.
On 25 February 2003 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He submitted that his right to be heard as guaranteed by Article 103 § 1 of the Basic Law had been violated because the Regional Court had held its hearing in the criminal proceedings against him although it had been or should have been aware that he had been unfit to plead.
On 18 March 2003 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.
If an appeal (Berufung) is lodged against a District Court judgment, the defendant’s case will be reheard by the Regional Court on all questions of fact and law unless the appeal has been restricted by the appellant to certain points of complaint (see section 318 of the Code of Criminal Procedure).
According to the settled case-law of the Federal Court of Justice, the mere physical presence of the defendant is not sufficient for him to be considered to “attend” the hearing; he also has to be fit to plead (Federal Court of Justice, no. 5 StR 199/70, decision of 6 October 1970, Collection of the decisions of the criminal section of the Federal Court of Justice (BGHSt), Vol. 23, pp. 331 et seq., 334). A defendant is fit to plead if he is capable of protecting his interests reasonably in and outside the hearing, of conducting his defence in a proper and understandable manner and of making and receiving procedural statements. In particular, a defendant is not considered unfit to plead if, because of the advice and support of his counsel, he is sufficiently able to exercise his defence rights of his own will, either in person or represented by his counsel (see, inter alia, Federal Constitutional Court, no. 2 BvR 345/95, decision of 24 February 1995, NJW 1995, pp. 1951, 1952). If the court has doubts about the defendant’s capacity to plead, as a rule no hearing may be conducted in the criminal proceedings against him (Federal Court of Justice, no. 4 StR 681/83, decision of 29 November 1983, Neue Zeitschrift für Strafrecht (NStZ) 1984, p. 181; Federal Court of Justice, no. 5 StR 449/84, decision of 17 July 1984, NStZ 1984, p. 520). The trial court is called to take evidence in order to verify the applicant’s fitness to plead in accordance with its duty to investigate all facts relevant to its decision (compare section 244 § 2 of the Code of Criminal Procedure).


ITEMID: 001-90306
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: JERKOVIC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: The applicant, Mr Goran Jerkovič, is a Slovenian national who was born in 1957 and lives in Maribor. He was represented before the Court by Mr J. Jerman, a lawyer practising in Maribor. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. On 11 October 1993 the applicant instituted proceedings against I.P. in the Maribor Basic Court (Temeljno sodišče v Mariboru) seeking payment in the amount of 136.000 German marks (DEM) (approximately 68.000 euros (EUR)).
2. On 14 January 1994 the applicant lodged a request for an interim measure.
3. On 26 January 1994 the applicant lodged a claim against H.P. (the wife of I.P.) and the proceedings were joined.
4. On 28 June 1994 the Convention came into force with regard to Slovenia.
5. Between 11 November 1994 and 21 August 1996 the applicant lodged nine requests for a hearing to be set.
6. On 16 September 1996 the Maribor District Court (Okrožno sodišče v Mariboru) issued a first-instance judgment. The defendants appealed.
7. On 17 June 1997 the appeal court (Višje sodišče v Mariboru) issued a judgment, upholding one part of the first-instance judgment and remitting the remainder for re-examination (default interest and costs).
8. Subsequently, the defendants lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
9. On 21 April 1999 the Supreme Court rejected this appeal.
10. On 30 March 2000 the Maribor District Court issued a judgement regarding default interest and costs. The judgement became final on 18 May 2000.
11. On 22 May 2000 the applicant instituted execution proceedings with the Maribor District Court against I.P. and H.P.
12. On 1 February 2001 the Maribor District Court issued a writ for execution.
13. Subsequently, the Maribor District Court appointed an expert and the applicant lodged several requests for determination of a date for the public auction.
14. The proceedings ended on 9 March 2004, when the amount due was paid and the decision terminating the proceedings was issued (ustavitev postopka).
15. On 23 May 2007 the respondent Government were given notice of the present application.
16. On 10 September 2007 the State Attorney’s Office sent a settlement proposal to the applicant under section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”). In its proposal, the State Attorney’s Office acknowledged that the right to a trial within a reasonable time has been violated and offered to pay monetary compensation in the amount of 810 euros (EUR) in respect of non-pecuniary damage.
17. Subsequently, the applicant informed the State Attorney’s Office that he was not willing to accept the proposal as the sum offered was too low.
18. See domestic law in the Court’s decisions Carević v. Slovenia ((dec.), no. 17314/03, 3 June 2008)) and Pohlen v. Slovenia ((dec.), 28457/03, 3 June 2008).