ITEMID: 001-69311
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KIRILOVA AND OTHERS v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - reserved;Non-pecuniary damage - reserved;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 13. All applicants – or their ancestors – owned real estate which was expropriated during the 1980s or the early 1990s. At the time of the expropriations they were awarded compensation in the form of flats which the authorities undertook to construct and deliver, but which have – with one exception (see paragraph 71 below) – remained unfinished and undelivered until present. The specific circumstances of each case are described below.
14. Mrs Kirilova and her husband owned jointly a house with a yard in the centre of Sofia.
15. By a mayor's order of 29 May 1985 their house was expropriated with a view to the construction of a school and a street. The order, based on section 98(1) of the Territorial and Urban Planning Act of 1973 („Закон за териториалното и селищно устройство“ – “TUPA”)(see paragraphs 73 and 74 below), provided that Mrs Kirilova and her husband were to be compensated with one flat and their son, Mr Kirilov, was to be compensated with another flat. Both flats were to be situated in a building which the municipality intended to construct. The expropriated house was valued at 29,311.59 old Bulgarian levs (BGL).
16. By a supplementary order of 28 July 1986, based on section 100 of TUPA (see paragraph 75 below), the mayor indicated the exact flats with which Mrs Kirilova, her husband, and Mr Kirilov were to be compensated, specifying the building in which they would be located and their precise surface.
17. The expropriated house was pulled down and the construction of the school started. Mrs Kirilova and her husband, and their two children, Mr Kirilov and Ms Schneider, were settled in a municipal flat in the outskirts of Sofia, pending the construction of the flat offered in compensation.
In 1993 Mrs Kirilova's husband died.
18. The construction of the building in which the flats offered in compensation would be located did not start as planned, apparently because of financial difficulties experienced by the municipality.
19. On 22 July 1997 Mrs Kirilova, Mr Kirilov and Ms Schneider lodged complaints with the municipality, the regional governor, the Parliament, the Ministry of Finance and the Ministry of Construction and Urban Development, stating that the flats allocated to them as compensation had not been constructed, apparently due to lack of funds. They stated that they had been waiting in vain, despite their repeated complaints. They also alleged that since 1986 the municipality had built and sold flats to other persons, but had never found funds to discharge its obligation to them. They requested to be given other flats as compensation. Their request was placed on a waiting list.
20. By letters of 5 December 1997 and 14 April 1998 the municipality informed Mrs Kirilova, Mr Kirilov and Ms Schneider that the construction of the flats was expected to start in 1998 and that additional funds were needed.
21. On 2 January 2001 Mrs Kirilova died. Mr Kirilov and Ms Schneider are her only heirs.
22. In April 2004 the municipality served on Mr Kirilov and Ms Schneider updated orders under section 100 of TUPA, which had been made on 19 November 2003 and 12 February 2004 respectively. The orders provided that the two applicants were to be offered other flats, not the originally intended ones, due to a modification of the plan of the building under construction.
23. At the time of the latest information from the two applicants (19 April 2004), the construction of the building in which their flats were to be situated had advanced, but it was still unfinished.
24. Mr Ilchev owned part of a house with a yard in Sofia, where he lived.
25. By a mayor's order of 16 March 1988 the house was expropriated for the construction of a subway station. The order, based on section 98(1) of TUPA, provided that Mr Ilchev was to be compensated with a threeroom flat in a building which the municipality intended to construct. The house was valued at BGL 8,484.30.
26. Shortly thereafter the house was occupied and Mr Ilchev was settled in a small municipal flat in the outskirts of the city pending the construction of the flat offered in compensation.
27. In July 1989 the expropriated house was pulled down and a subway station was built on the site.
28. By a supplementary order of 8 September 1989, based on section 100 of TUPA, the mayor indicated the exact flat with which Mr Ilchev was to be compensated, specifying the exact building in which it would be located and its precise surface.
29. The construction of this building never started, apparently because of financial difficulties experienced by the municipality and also because its construction would interfere with the ongoing process of restitution of certain plots of land to their former owners.
30. Mr Ilchev made numerous complaints to the municipal authorities, to no avail. By a letter of 19 June 1998 the deputymayor advised him that the construction of the building in which the flat offered in compensation would be situated could not start because of changes in the zoning plan. After a new plan was drawn up, a new building designed, and financing secured for its construction, Mr Ilchev would be invited to choose another flat.
31. On 21 December 2000 Mr Ilchev requested from the municipality to be allotted another flat, to no avail.
32. Meanwhile, on 9 February 1996, Mr Ilchev commenced proceedings against the municipality under the State Responsibility for Damage Act (see paragraph 80 below). He complained that the municipality had failed to deliver the flat offered in compensation and sought BGL 3,000,000 as compensation for the pecuniary and nonpecuniary damage he had suffered. After being invited by the court to specify and itemise his claims, on 11 March 1996 Mr Ilchev stated that he sought BGL 1,000,000 as compensation for the pecuniary damage he had sustained on account of the delay in the delivery of the flat, and BGL 2,000,000 as compensation for the non-pecuniary damage, which consisted in insecurity and the impossibility to use and dispose of his property.
33. In a judgment of 23 July 1999 the Sofia City Court partially allowed Mr Ilchev's action, awarding him 500 new Bulgarian levs (BGN) in compensation for nonpecuniary damage and BGN 536.45 in compensation for pecuniary damage. It held that the municipality's failure to provide Mr Ilchev with a flat was an omission contrary to section 1 of the State Responsibility for Damage Act.
34. Mr Ilchev appealed, claiming that the amount of compensation was too low. The municipality of Sofia also appealed.
The Sofia Court of Appeals reversed the Sofia City Court's judgment, holding that the applicant had failed to request the cancelling of the expropriation and had thus been the one at fault for the obtaining situation.
35. Mr Ilchev appealed on points of law to the Supreme Court of Cassation.
In a judgment of 16 October 2001 that court quashed the Sofia Court of Appeals' judgment and remitted the case. It held, inter alia, that Mr Ilchev had suffered damages because of the municipality's failure to build and deliver him a flat. The restitution of the expropriated property was impossible because the house had been pulled down for the construction of a subway station. Since the omission of the municipality had been unlawful, Mr Ilchev was entitled to claim compensation for the delay. The court further held that the authorities' obligation to compensate the damage suffered by Mr Ilchev on account of the delay, although stemming from their failure to provide him with a flat, was different from that underlying obligation.
36. On remittal, the Sofia Court of Appeals, in a judgment of 2 October 2002, upheld the Sofia City Court's judgment, but awarded to Mr Ilchev an additional BGN 280.27 in compensation for pecuniary damage, together with interest as from 9 February 1996, when the action had been commenced (see paragraph 32 above), until settlement. It held, inter alia, that the municipality's failure to build and deliver the flat allotted to Mr Ilchev in compensation for his house had been an illegal omission within the meaning of section 1 of the State Responsibility for Damage Act and that the damage suffered by the applicant was a direct and proximate result of this omission. The court also held that the applicant's allegation that the amount of the compensation was too low was partially wellfounded. The applicant, who was an acting officer in the army, had been living on army premises during the weekdays and could have rented the prospective flat out. The amount which he would have received in rent between 1988, when the flat had been due, and 1996, when the action had been commenced, was BGN 280.27.
37. The municipality appealed to the Supreme Court of Cassation, arguing that the action was inadmissible and unfounded.
The Supreme Court of Cassation declared the appeal inadmissible by a decision of 13 April 2004. It held that the amount in controversy was below BGN 5,000 and that the Sofia Court of Appeals' judgment was therefore not subject to appeal on points of law. The municipality did not appeal against this decision and the Sofia Court of Appeals' judgment of 2 October 2002 entered into force.
38. Following the entry into force of the Sofia Court of Appeals' judgment, on 26 October 2004 Mr Ilchev was issued a writ of execution against the municipality of Sofia for the amount of BGN 1,315.72 in respect of pecuniary and nonpecuniary damage and BGN 0.70 in respect of costs and expenses for the proceedings, plus interest at the statutory rate as from 9 February 1996, when the action had been commenced (see paragraph 32 above), until settlement.
39. On 29 November 2004 Mr Ilchev presented the writ to the financial department of the municipality and requested to be paid the awarded amount. On 9 January 2005, in response to an inquiry by Mr Ilchev, the municipality informed him that no amounts had been earmarked in its budget for the payment of the amount due to him. On the date of the latest information from the parties (19 January 2005), the amount was still unpaid.
40. Ms Metodieva owned, together with her sister, one half of a house with a yard in the town of Nikopol, which she rented out.
41. By a mayor's order of 16 May 1990 the house was expropriated for the creation of a municipal green space. The order, based on section 98(1) of TUPA, provided that Ms Metodieva was to be compensated with a oneroom flat in a building which the municipality intended to construct. Ms Metodieva's sister was compensated in cash. The applicant's share of the house was valued at BGL 567 (that amount represented ½ of the value of Ms Metodieva's and her sister's share of the house, which amounted to BGL 1,133.65).
42. The construction of the building never started because of financial difficulties experienced by the municipality, and it was eventually altogether left out of the municipal construction program.
43. Meanwhile Ms Metodieva's house was pulled down. Instead of a green space, in 1993 an office building for the State Savings Bank was constructed on the plot.
44. Ms Metodieva made an attempt to obtain the cancelling of the expropriation, relying on a 1992 restitution law, but her attempt failed as that law only concerned expropriations carried out before 21 April 1990.
45. In December 1997 Ms Metodieva asked the mayor to issue a supplementary order under section 100 of TUPA and indicate the exact flat with which she was to be compensated. In January 1998 the mayor replied that such an order could not be issued as the construction of the building in which the flat was to be located had not started.
46. In May 1998 Ms Metodieva requested the mayor to set a date when she could select another flat. As the mayor did not reply, she filed an appeal against his implied refusal with the Pleven Regional Court. In a judgment of 16 October 1998 the Pleven Regional Court quashed the refusal and referred the matter back to the mayor with instructions to issue an order under section 100 of TUPA, in which to specify the exact flat with which the applicant was to be compensated. Apparently the mayor did not issue such an order because there were no flats available.
47. In the meantime, on 4 August 1997, the mayor explained that he could not offer Ms Metodieva a flat as there were no vacant ones with parameters equivalent to those set forth in the expropriation order.
48. Ms Metodieva also filed complaints with the regional governor and the Ministry of Finance, to no avail.
49. On 6 July 1998, pursuant to a request by Ms Metodieva, a municipal commission carried out a new valuation of the expropriated house, setting Ms Metodieva's share at BGL 792,000.
50. Ms Metodieva appealed against this valuation and on 13 January 1999 it was quashed by the Nikopol District Court on the ground, inter alia, that Ms Metodieva had not been notified of the procedure. The matter was referred back to the municipality.
51. On the request of Ms Metodieva on 29 March 2000 the Nikopol District Court interpreted its judgment, specifying, inter alia, that the valuation of the property should be made in accordance with section 102 of the Property Act.
52. On 22 June 2000 a municipal commission reassessed the value of the expropriated house, basing its assessment on its market price at the time of the expropriation. The value thus obtained was BGL 1,133.65 for Ms Metodieva's and her sister's half of the house.
53. On appeal by Ms Metodieva the Nikopol District Court, in a judgment of 1 March 2001, quashed the valuation, holding, inter alia, that the new valuation should be based on the market prices at the time it is being carried out.
54. Both the municipality and Ms Metodieva appealed, and in a judgment of 3 June 2002 the Supreme Administrative Court quashed the lower court's judgment, expressly holding, inter alia, that the new valuation should be made on the basis of the market price at the time of the expropriation, in accordance with section 102 of the Property Act. The court remitted the case to the mayor.
55. By an order of 23 August 2002 the mayor valued Ms Metodieva's and her sister's half of the house at BGN 1.13, expressly specifying that the valuation had been made on the basis of the market prices at the time of the expropriation.
56. On appeal by Ms Metodieva, the Pleven Regional Court, in a judgment of 13 December 2002, declared the order void and referred the case back to the mayor. It held, inter alia, that both the house and the flat offered in compensation should be valued on the basis of the market prices at the time of the expropriation.
57. On appeal of the mayor, the Supreme Administrative Court, in a judgment of 21 May 2003, quashed the lower court's judgment, holding that the mayor's order had not been void. If there had been irregularities with the valuation, the lower court should have revalued the house instead of referring the matter back to the mayor. The court remitted the case to the Pleven Regional Court with instructions that a new valuation of the house be carried out.
58. In a judgment of 19 April 2004 the Pleven Regional Court valued Ms Metodieva's and her sister's share of the expropriated house at BGN 3,225.29. It held, inter alia, that a valuation based on the market prices at the time of the expropriation, which had taken place a long time before, would impinge on the adequacy of the compensation. In the court's view, the valuation had to be based on the market prices at the time of the delivery of its judgment. According to the expert's report drawn up during the proceedings, the value thus obtained was BGN 3,225.29.
59. The mayor appealed, arguing, inter alia, that the valuation of the expropriated house and, respectively, of the flat offered in compensation, should be done on the basis of the market prices at the time of the expropriation.
60. In a final judgment of 27 October 2004 the Supreme Administrative Court quashed the Pleven Regional Court's judgment and held that the value of Ms Metodieva's and her sister's half of the house was BGN 2,524.50. The court reasoned, inter alia, that a valuation under section 102 of the Property Act had to be based, as a rule, on the market prices at the time of the expropriation. However, no evidence about these prices had been adduced by the municipality. The only data available was that in the expert's report drawn up during the proceedings before the Pleven Regional Court (see paragraph 58 above), which indicated that the value of the property at the time of the mayor's order – 23 August 2002 (see paragraph 55 above) – was BGN 2,524.50. The court instructed the mayor that this new valuation only replaced the original valuation made at the time of the expropriation, but did not change the manner of compensation. Therefore, the mayor had to issue an order under section 100 of TUPA and specify the exact flat with which Ms Metodieva was to be compensated, thus completing the expropriation procedure. However, it was open to Ms Metodieva to request to be compensated in cash instead.
61. It does not seem that Ms Metodieva has since requested that the manner of compensation be changed to cash.
62. Ms ShoilevaStambolova's and Mr Shoilev's father owned half of a house with a yard in Sofia, where he and the two of them lived.
63. By a mayor's order of 8 February 1983 the house was expropriated for the construction of a subway station. The order, based on section 98(1) of TUPA, provided that Ms ShoilevaStambolova's and Mr Shoilev's father was to be compensated with a flat and that Ms ShoilevaStambolova was to be compensated with another flat. Both flats were to be situated in a building which the municipality intended to construct. The house was valued at BGL 39,451. The applicants' father appealed and the Sofia City Court increased the valuation with BGL 947, thus making it BGL 40,398. Thus, the applicants' father's share of the house was valued at BGL 20,199.
64. In 1984 the house was occupied and pulled down. Ms ShoilevaStambolova's and Mr Shoilev's father was offered to be settled in a municipal flat in the outskirts of the city, pending the construction of the flat offered in compensation. Considering, however, that the flat was not suitable for his needs, he chose to rent another flat and left the municipal one uninhabited.
65. By a supplementary order of 7 March 1984, based on section 100 of TUPA, the mayor indicated the exact flats with which the two applicants' father and Ms ShoilevaStambolova were to be compensated, specifying the buildings in which they would be located and their precise surface.
66. In 1985 Ms ShoilevaStambolova's flat was finished. BGL 100 of the valuation of the her father's house was applied towards the value of that flat. The remainder (BGL 19,223) was paid by Ms ShoilevaStambolova and she was allowed to take possession of it. However, the applicants' father's flat was not constructed, apparently because the design for the building in which it was to be located was changed.
67. In 1989 the applicants' father requested to be allotted another flat. By a mayor's order of 27 March 1989 he was allotted a new flat in lieu of the one originally intended as compensation. This order, like the original one, specified the exact location and surface of the new flat. The construction of the building in which the flat thus allotted was to be located started in 1989, but was halted soon after, because of lack of funds.
68. On 25 February 1998 Ms ShoilevaStambolova's and Mr Shoilev's father died. The two are his only heirs.
69. In 2001 Ms ShoilevaStambolova and Mr Shoilev wrote to the mayor. They asked whether there were any plans for the completion of the building in which the flat allotted in compensation would be located. In the alternative, they asked whether they could receive another equivalent flat or cash and, if so, what would be the amount of such monetary compensation. By a letter of 9 May 2001 the mayor informed them that there were no plans to finish the building. Their application for recompensation was sixth on the waiting list but at the time there were no flats available. If they opted for cash compensation, the amount which they would be entitled to would be BGN 20.20.
70. On 11 July 2003 Ms ShoilevaStambolova and Mr Shoilev were informed that the plan of the building in which their future flat would be situated had been changed and were invited to choose a new flat. They did so on 6 August 2003, which was confirmed by a revised order under section 100 of TUPA of 9 September 2003. The new flat was almost similar in size and position as the previous one.
71. In early 2004 the construction of the building in which the flat was to be situated was finalised and on 26 May 2004 the municipality delivered the flat to Ms ShoilevaStambolova and Mr Shoilev.
72. At the relevant time expropriations of residential units for public use were regulated by TUPA.
73. Expropriations were effected by order of the mayor, which had to designate the property to be expropriated and its valuation, and specify the manner (property or cash) and amount of compensation due to the dispossessed owner (sections 95(1), 98(1)(1) and 98(1)(2) of TUPA).
74. If the owner was to be compensated with a flat which had not yet been constructed, the order had to specify the type and the general features of such a flat (section 98(1)(4) of TUPA).
75. A supplementary order had to indicate the exact premises offered in compensation and their valuation (section 100 of TUPA). By section 103(1) of TUPA, that supplementary order had the effect of vesting title in the flat offered in compensation, even though it was still nonexistent.
76. The Supreme Court has held that both the initial order providing for compensation and the supplementary order create vested rights for the expropriated owners and may be modified only in limited circumstances (решение № 301 от 29 април 1980 г. по гр.д. № 62/1980 г. на ВС, III г.о.; решение № 713 от 7 септември 1982 г. по гр.д. № 627/1982 г. на ВС, III г.о.). One such case would be if the expropriated owner submitted, prior to receiving the flat, a notarised request for a modification of the order to provide for compensation in cash, for compensation with a smaller flat, or compensation with a flat situated elsewhere (section 103(5) of TUPA).
77. Owners who had not received the flats due within a certain period of time (initially three years and later one year) – either because of changes in the municipal construction program (the respective building being left out of it) or because the building was earmarked for other purposes – could request cancelling of the expropriation or a fresh valuation of the expropriated property (section 109(1) and (2) of TUPA, superseded in 1990 by section 102(7) and (8) of the Property Act). This could be done either before or after the supplementary order. However, once the supplementary order was issued, cancelling of the expropriation was only possible if the land had not been cleared for groundwork or the expropriated building had not yet been demolished. In the latter case the only remaining option would be a fresh valuation (section 109(4) of TUPA, superseded in 1990 by section 102(9) of the Property Act).
78. The valuation of the expropriated property had to be based on the market price of the property at the time of the expropriation (section 102(1) of the Property Act). The fresh valuation is subject to judicial review (section 138(2)(2) of TUPA and решение № 2181 от 3 май 1999 г. по адм. д. № 4433/1998 г. на ВАС, ІІ о.).
79. In 1996 and 1998 all these provisions were superseded by rules giving enhanced protection to expropriated owners. However, the new legislation provides that the above provisions, although repealed, continue to govern pending expropriation proceedings which were commenced under TUPA or section 102 of the Property Act and in which the State has taken possession of the expropriated property before 30 October 1998 (paragraph 3(1) of the Act for Amending TUPA of February 2000 and paragraph 9(1) of the transitional and concluding provisions of the Territory Planning Act of 2001).
80. Section 1 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“), which entered into force on 1 January 1989, provides that the State is liable for damage suffered by private persons as a result of unlawful acts or omissions by civil servants, committed in the course of or in connection with the performance of their duties. The State's liability is strict, i.e. no fault is required on the part of the civil servant in the commission of the unlawful acts or omissions (section 4 in fine). Section 7 of the Act provides that the action in responsibility must be brought against the authority employing the civil servant concerned. Section 4 of the Act provides that compensation is due for all damage which is the direct and proximate result of the unlawful act or omission of the civil servant. Section 8(2) of the Act provides that if another statute provides for a special manner of indemnification, the Act does not apply.
81. By paragraph 2 of Article 399 of the Code of Civil Procedure, a person who has an enforceable pecuniary claim (e.g. a judgment debt) against the State or a state body receives payment out of funds earmarked for that purpose under the institution's budget.
82. The writ of execution evidencing the claim must be submitted to the financial department of the institution. If there are no funds available under the budget of the state body concerned, the higher administrative body should undertake the necessary steps to ensure that funds become available under the budget for the following year.
83. Enforcement proceedings and judicial review of the execution of a judgment are not possible where the debtor is a state institution. Until December 1997 paragraph 1 of Article 399 of the Code expressly prohibited enforcement proceedings against state institutions. Although that provision was repealed in December 1997, the legal regime remained unchanged, as paragraph 2 of Article 399 was not amended.
84. According to data published by the Bulgarian National Bank, the average exchange rate of the United States dollar in February 1991 (the first month for which such data is available), was BGL 24.32. In July 1998, when the municipality carried out a fresh valuation of Ms Metodieva's house (see paragraph 49 above), the average rate was BGL 1,799.15. In June 2000, when the municipality again reassessed the value of the house (see paragraph 52 above), the rate was BGN 2.06. In August 2002, when the third valuation was carried out (see paragraph 55 above), the average rate was BGN 2.00. In February 2005 (the latest month for which such data is available), the average rate was BGN 1.50.


ITEMID: 001-90364
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF LUTSENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1977 and lives in Makiyivka.
6. At about 6.30 a.m. on 13 November 1995 Mr O.M. was found in a cultivated forest near a railway station, with four gunshot wounds, from which he died the same day in a hospital some two hours later.
7. On 17 November 1995 the applicant was arrested on suspicion of having murdered Mr O.M. In the course of a subsequent search of the applicant’s house 1,500 dollars (USD) were seized.
8. Between 17 November 1995 and 13 December 1996 the applicant was held in custody in the Donetsk Investigative Isolation Unit (SIZO). According to the applicant, the conditions in which he was held were inhuman and degrading. Furthermore, the police allegedly tortured him to obtain a confession.
9. The applicant consistently denied any involvement in the murder. He acknowledged that on 12 November 1995 his classmate Mr A.F. had driven him to the site of the incident, as he had wanted to see the place, where he had planned a business meeting for 13 November 1995 with a certain Andrey, whose other details he did not know. The following day Mr A.F again accompanied the applicant to the same place along with his father in their car and waited for him nearby. The applicant met Andrey on the railroad bridge as agreed. Andrey took the applicant’s jacket. When the applicant saw two men fire at a passer-by, he became scared and ran through the forest to Mr A.F.’s car and they drove away. During the trip, the applicant threw away his boots and his gloves, as he had realised that other passers-by could have seen him and implicated him in the incident.
10. On 18 November 1995 Mr N.L., the applicant’s acquaintance, who was a shareholder and a driver in a company managed by Mrs O.M., the victim’s widow, was questioned by the police concerning the murder. As he was questioned as a witness, Mr N.L. was warned of his obligation to provide all the information known to him on pain of criminal sanctions and was not offered the option to consult with a lawyer. He confessed to having hired the applicant to kill Mr O.M. and to having paid him USD 2,000 in advance and USD 10,000 post factum. He also testified that on the eve of the murder the applicant had shown him the gun he had acquired to kill Mr O.M. Soon afterwards Mr N.L. was indicted for incitement to murder. Following his indictment and purportedly a consultation with a lawyer, he retracted his confession and subsequently consistently denied his or the applicant’s involvement in the events throughout the course of the proceedings.
11. On 21 November 1995 Mr N.L. complained to the prosecutor’s office that the police officers who had questioned him had put him under severe psychological pressure, including threats to accuse him of a capital offence, to have him beaten and raped and to harm his wife and daughter unless he identified the applicant as the killer of Mr O.M. On an unspecified date Mr N.L. also complained that two unknown individuals had attacked him on the porch of his house and told him to confess to his involvement in the murder if he wanted to spare his family serious trouble. The parties did not provide any information concerning the authorities’ reaction to these complaints.
12. On an unspecified date the case against the applicant and Mr N.L. was referred for trial to the Donetsk Regional Court. According to the prosecution, the applicant was guilty of murder for profit, unlawful possession of firearms and unlawful transactions in foreign currency. According to the prosecution’s version of events, Mrs O.M., grossly upset about her husband’s inappropriate behaviour towards her, had requested Mr N.L. to find somebody to talk to him, threaten and, if necessary, beat him. She allowed him to take some money from 1.5 billion karbovantsi which she had earlier given him for safekeeping, to hire a suitable person. Mr N.L., who was on bad personal terms with Mr O.M. and was afraid to lose his job in his wife’s company, decided to use the money to have Mr O.M. killed. On an unknown date Mr N.L. gave the applicant USD 2,000 for preparation of the murder, including the purchase of a gun, and informed him of the usual time and route by which Mr O.M. walked to work. On an unknown date the applicant acquired from an unknown source a 7.65-calibre foreign gun of an unknown make, and on 13 November 1995 he fired several shots into the victim. On 15 November 1995 Mr N.L. gave the applicant another USD 10,000 in payment for the murder.
13. On 29 May 1996 the Donetsk Regional Court referred the case for additional investigation, having found that the facts of the case were insufficiently established and the evidence of the defendants’ involvement in the incriminated offences was insufficient. On an unspecified date the case was referred back to the court for trial.
14. On 13 December 1996 the Donetsk Regional Court acquitted the defendants, having found, in particular, that the prosecution had failed to account for inconsistencies between the available sources of evidence and to secure sufficient proof of the defendants’ guilt. In particular, a number of facts, such as Mr N.L.’s alleged involvement in the crimes and the sums purportedly received by the applicant to commit the murder were lacking in any evidentiary basis save for Mr N.L.’s initial confessions, which he had subsequently retracted as given under duress. Accordingly, the court found the evidence unreliable and, as no other evidence was available, interpreted all the doubts in favour of the defence.
15. The applicant was released from custody on the day of his acquittal and soon afterwards left the country and settled in Uzbekistan, allegedly fearing reprisals on the part of the police. On an unspecified date Mr N.L. disappeared.
16. On 9 June 1997 the Donetsk Regional Court placed the applicant and Mr N.L. on the wanted list. According to the applicant, he was unaware of this fact and was never in hiding. He settled, worked, married, had a child and obtained a driver’s licence in his own name.
17. On 13 December 1997 the Supreme Court allowed the appeal in cassation by the prosecution and remitted the case for fresh consideration to the Donetsk Regional Court.
18. In 2002, when the applicant applied to the Ukrainian authorities to renew his expired passport, he was arrested and detained in Ukraine pending trial.
19. As Mr N.L. was not found, on 9 December 2002 the Donetsk Regional Court of Appeal (the former Donetsk Regional Court) solicited the applicant’s opinion about holding a trial in his absence, to which the applicant, represented by a lawyer, agreed. In the course of the trial, the prosecution requested the court to read out depositions by Mr N.L., to which the defence did not object. The court granted the request by the prosecution.
20. On 3 October 2003 the Donetsk Regional Court of Appeal accepted the prosecution’s version of events as filed in 1996. It convicted the applicant of murder for profit and unlawful possession of firearms and acquitted him of unlawful transactions in foreign currency, which was by then no longer a criminal offence.
21. The court found that the applicant’s guilt of having committed the murder as charged was apparent, in particular, on the strength of the following evidence:
- Mrs O.M.’s testimony that in October 1995 she had requested Mr N.L. to find a person to threaten her husband and had authorised him to pay that person out of 1.5 billion karbovantsi given to him for safekeeping. After her husband had been murdered, Mr N.L. had advised her to be quiet about the matter;
- Mrs A.L.’s (the applicant’s mother’s) testimony that on 12 November 1995 her son had bought gloves, tennis shoes and a sports bag. On 13 November 1995 her son had told her that he was going to play tennis in the morning, but had subsequently changed his plans and left the town for two days. The 1,500 USD which were seized from the house belonged to the entire family and were long-term savings;
- Mrs V.V.’s and Mrs O.O.’s testimony that on 13 November 1995, at about 6.30 a.m., they had heard several gunshots and then discovered Mr O.M. wounded near the railroad bridge, and that they had not seen any suspicious men around;
- Mr M.F.’s testimony that on 13 November 1995, at about 6.30 a.m., he had heard three gunshots and some 20 seconds later had seen a man running across the bridge. He was unable, however, to provide a description of the man and refused to speculate whether it could have been the applicant;
- Mr A.F.’s testimony that on 12 November 1995 he had driven the applicant to a market in his father’s car, where the applicant had bought a bag, a jacket, tennis shoes and gloves. Subsequently they had gone on to the neighbourhood where the murder would take place the following day, as the applicant had business there. The applicant went into the forest and was absent for some 10 to 12 minutes, after which they returned home and agreed that Mr A.F. would give the applicant a ride the following morning “to meet the boss”. They drove to the place the next day and Mr A.F. and his father waited for the applicant in the car. The applicant returned without his jacket, very agitated, and informed them that he had encountered suspicious individuals. During the trip the applicant threw away his boots and his gloves out of the window. Mr A.F.’s father gave an analogous statement;
- Mrs A.I.’s depositions, given during the pre-trial investigation, that on 13 November 1995 at 6:15 she had seen a man standing on the railroad bridge with a big dark bag near him, his hands in the pockets;
- an expert assessment of the bullets fired at Mr O.M., according to which the bullets could have been shot from a gun of one of some eight foreign models;
- an expert assessment that it was not impossible to fire one of those guns when wearing gloves similar to the ones which the applicant had had on him, as identified by Mr A.F. (his driver);
- two forensic assessments of the circumstances and causes of Mr O.M.’s death, which described his wounds and found that the shots had been fired from various distances;
- the testimony by the applicant’s boss, in charge of a currency exchange business, concerning the applicant’s low income;
- the record of the currency exchange transactions performed by the business in the relevant time, according to which nobody had exchanged any sum higher than USD 500 in a single transaction; and
- the applicant’s psychiatric assessment, according to which he suffered from no disorder and was answerable for his actions.
22. No reference in the text of the judgment was made to the confessional statements by Mr N.L. or to the applicant’s allegations that they had been given under duress.
23. Having recited the aforementioned evidence, the court concluded:
“Having assessed the evidence in the case, the court considers it established that [the applicant].... had committed murder for profit, which is to be qualified under Section 93(a) of the Criminal Code. His intentional actions, manifested in acquisition, carrying and storage of firearm and ammunition without a respective permit, which have been fully confirmed, fall under Section 222 paragraph 1 of the Criminal Code of Ukraine...”
24. The applicant appealed in cassation. He maintained, inter alia, that his conviction lacked evidentiary basis and de facto relied to a decisive extent on the initial depositions by Mr N.L., given by him in the absence of a lawyer when interrogated as a witness without privilege against self-incrimination, and which he had subsequently retracted as given under duress. He maintained that without a reference to those depositions all the other evidence was insufficient to establish the facts, in particular concerning the possession of the gun and the payment of money for the murder.
25. The applicant’s lawyer lodged a separate cassation appeal in which he supported the applicant’s allegations concerning the insufficiency of the inculpating evidence. He noted, in particular, that there was no evidence whatsoever that the applicant had ever had a gun, much less fired it, or that the USD 12,000 allegedly given to the applicant had ever existed, much less been transferred to him as suggested, and submitted that it was not possible to establish exactly where the applicant had been at the time when Mr O.M. had been wounded.
26. On 11 March 2004 the Supreme Court upheld the judgment of 3 October 2003. In the text of its decision it summarised the evidence on which the conviction was based, as well as referring to the confession made by Mr N.L., as follows:
“During the hearing [the trial court] also examined the statement of [Mr N. L.] given during the pre-trial proceedings, in which he confirmed that after having talked with [Mrs O. M.] he informed [the applicant] about that, and the latter said that in order to prepare the murder he needed USD 2,000 and USD 10,000 for its committal. He gave [the applicant] USD 2,000, and the latter showed him a gun he had acquired. After the murder of [Mr O.M.], on 15 November 1995 he paid [the applicant] USD 10,000 and the latter told him that he had disposed of the gun, the jacket, the gloves and the boots.
The arguments of [the applicant] that [Mr N.L.] had falsely accused him and himself under physical pressure by police officers had also been examined and had been found unsubstantiated...”
27. In concluding its reasoning, the Supreme Court stated:
“Therefore, the [trial] court has examined all the the premeditated murder for profit of [Mr O.M.] and correctly qualified it as an offence defined in Article 93 (a) of the 1960 Criminal Code.”
28. Section 93 (Aggravated murder), paragraph (a), defined “murder for profit” as an offence punishable by a term of imprisonment of up to life and by confiscation of property;
29. Section 94 (Murder) defined “murder committed in the absence of the aggravating circumstances listed in Section 93”, as an offence, punishable by a term of imprisonment of up to fifteen years;
30. Section 179 (Refusal of a witness to testify or of an expert or a translator to perform his duties) defined a witness’s refusal to testify as an offence punishable by correctional labour or a fine.
31. According to Sections 43 (An Accused and his Rights) and 43-1 (A Suspect) of the Code, a suspect and an accused have the right to refuse to testify and to consult a lawyer before being questioned for the first time;
32. Sections 70 (Duties of a Witness) and 71 (Liability of a Witness) provide no such guarantees. On 13 June 2000 the Code was supplemented with Section 69-1 (Rights of a witness), which enabled witnesses to refuse to testify against themselves, their family members and close relatives.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-92359
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF STEPHENS v. MALTA (no. 2)
IMPORTANCE: 3
CONCLUSION: Preliminary objection partially rejected (non-exhaustion of domestic remedies);Preliminary objection partially joined to merits (victim);Preliminary objection partially allowed (victim);No violation of Art. 5-3;No violation of Art. 5-4
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant was born in 1963 and is currently serving a prison sentence in Malta.
7. On 30 November 2004, pursuant to an arrest warrant issued by the Maltese authorities on 23 November 2004, the applicant was arrested and detained in Spain on suspicion of having conspired in the traffic of cocaine, ecstasy and cannabis.
8. On 3 May 2005 the applicant, through his legal counsel, challenged the lawfulness of his arrest and detention in so far as the arrest warrant had not been issued in accordance with the European Arrest Warrant requirements (in force on 7 June 2004).
9. In a judgment of 16 August 2005, the Constitutional Court of Malta rejected the applicant’s claim as the extradition request had been made prior to the new arrest warrant procedure with the result that the previous law applied.
10. On 9 September 2005 the applicant was extradited to Malta to stand trial on charges of drug trafficking.
11. On 10 September 2005 the applicant was brought before the Court of Magistrates as a Court of Criminal Inquiry. He challenged the legality of the arrest warrant of 23 November 2004. He claimed that the prosecution had to satisfy the Court of Magistrates that the arrest had been lawful and that this could not be assumed, given in particular that the accused had not been personally heard. The applicant argued that the procedure followed by the prosecution, whereby it simply confirmed on oath the report containing the legal provisions on which the charges were based, did not satisfy the requirements of Article 5 § 3 of the Convention. He made reference in this connection to the European Court’s judgment in Kadem v. Malta, (no. 55263/00, 9 January 2003).
12. The applicant pleaded not guilty. He also pointed out that he was contesting the Maltese courts’ jurisdiction to try him, claiming that the facts he was accused of did not constitute an offence under the laws of Malta.
13. The prosecution submitted that the applicant had been brought to Malta following the issue of an arrest warrant by the duty magistrate. Upon the applicant’s arrival and within six hours of the arrest, the duty magistrate was informed of the arrest and confirmed its continuation. Within fifteen hours of the arrest, during which time he was interrogated, the applicant was arraigned before the court. The prosecution further submitted that the case which carried a maximum punishment of life imprisonment was based on the testimony of various civilian witnesses and corroborating evidence.
14. At the hearing the Court of Magistrates took account of the applicant’s not-guilty plea. The hearing minutes read as follows:
“In regard to whether the accused is going to plead guilty or not guilty as charged the same accused would like to point out that first of all he is contesting the jurisdiction of the Maltese courts to try him and secondly that the facts do not constitute, in his regard, an offence under the laws of Malta and thirdly that he is not guilty of any fact alleged against him. To all intents and purposes of law, the Court [of Magistrates], having heard what has just been put down in the records of the proceedings, is considering the accused as pleading not guilty as charged.”
The Court of Magistrates did not require the arresting officer to justify why the applicant had been arrested or why his detention was necessary. It declared, without entering a minute to that effect in the records, that the warrant had been issued by a magistrate and confirmed by another magistrate and both sets of proceedings had been held in camera and the arrest had been authorised. Moreover, the case had been examined by the Spanish courts in the context of their consideration of Malta’s request for the applicant’s extradition. In the minutes it further referred to the fact that the validity of the warrant as regards its procedural aspects was affirmed by the Constitutional Court in a further set of proceedings which took place while the applicant was still in Spain. Thus, the warrant was sufficient to enable the arrest to be considered lawful at that stage of the proceedings. Nothing had been brought to the attention of the court which enabled it to say that the person charged was under arrest without justification.
15. Since the applicant insisted that his arrest was unlawful and unjustified no request for bail was made and he was remanded in custody. His case file was transmitted to another magistrate sitting in the Court of Magistrates in order to proceed with the committal stage.
16. In the meantime, on 19 September 2005, the applicant applied for bail.
17. On 27 September 2005 the Court of Magistrates in the committal stage heard the parties. The applicant advanced once again his argument that the Maltese authorities lacked jurisdiction to try him.
18. On 29 September 2005 the Court of Magistrates rejected the application for bail, which had been lodged on 19 September 2005, on the grounds that there was a real danger that the applicant might abscond, leave the island or interfere or attempt to interfere with witnesses. It further held that it was not competent to give a ruling on the question of jurisdiction and decided that there were enough grounds to commit the applicant for trial.
19. On 3 October 2005 the applicant applied to the Civil Court (First Hall) in its constitutional jurisdiction, alleging that both at his first hearing and at the committal stage, Article 5 §§ 3 and 4 of the Convention had been violated. The Court of Magistrates had failed to assess the lawfulness of the arrest by refusing to decide on the defence’s objections, namely that the Maltese courts did not have jurisdiction to try the defendant and that the facts alleged against him did not constitute a criminal offence under Maltese law. The applicant therefore requested the Civil Court to declare that his arrest and continued detention were unlawful and to order his release and provide him with adequate redress.
20. In a judgment of 12 January 2006, the Civil Court rejected the applicant’s claim. It held that the Court of Magistrates as a Court of Criminal Inquiry was bound to examine solely the lawfulness of the arrest and, if necessary, to order release on bail according to Article 412B of the Criminal Code (see paragraph 41 below). The question of jurisdiction related to the merits of the case and therefore could be examined only by the Criminal Court. This was not in violation of the Convention.
21. The applicant appealed to the Constitutional Court. He reiterated his claims and emphasised that Article 412B of the Criminal Code was not an effective remedy as it provided only for provisional release under guarantee or against payment of bail and not unconditional release as required by Article 5 § 4 of the Convention.
22. The Constitutional Court heard submissions on 7 and 9 February 2006.
23. In a judgment of 14 February 2006, the Constitutional Court upheld the applicant’s appeal in part. It first held that at the hearing of 10 September 2005 the Court of Magistrates had satisfied its duty under Article 5 §§ 3 and 4 of the Convention as provided by Article 574A of the Criminal Code (see paragraph 40, in fine, below). In particular, it had heard the parties’ submissions regarding the lawfulness of record) and because it would have substantially amounted to a plea that the facts of the case did not constitute a crime. Thus, further evidence would have been necessary in order to decide the matter.
24. The Constitutional Court did, however, find a violation of Article 5 § 4 of the Convention in so far as on 29 September 2005 the Court of Magistrates at the committal stage (Article 401 (2) of the CC) had abstained from deciding the issue of jurisdiction, thus disregarding its duty to determine the lawfulness of the applicant’s detention under the Convention. Even though questions of jurisdiction would, in principle, be dealt with by the Criminal Court, in the applicant’s case this issue was interconnected with the factual requirements of the criminal offence. In the absence of solid factual grounds against the defendant, the Court of Magistrates could not commit him for trial. The Constitutional Court annulled the Court of Magistrates’ order of 29 September 2005 committing the applicant for trial as well as all subsequent acts. It remitted the case to the Court of Magistrates to be decided afresh after taking cognisance of the applicant’s plea of lack of jurisdiction. It awarded the applicant 400 Maltese Liras (MTL – approximately 960 euros (EUR)) for just satisfaction, and ordered the payment of the costs of the proceedings to be divided between the parties.
25. On 2 December 2005 the applicant applied for bail before the Criminal Court, the competent court at the time. On the same date the Attorney General sent the records of the proceedings back to the Court of Magistrates. Thus, on 6 December 2005 the Criminal Court refused to take cognisance of the request as it no longer had jurisdiction in the matter.
26. On 9 December 2005 the same application was filed with the Court of Magistrates.
27. On 14 December 2005 the Court of Magistrates refused to release the applicant, having regard to the nature and seriousness of the offence, the real danger of the accused absconding or leaving the island and obstructing or attempting to obstruct the course of justice.
28. On 14 February 2006 the President of Malta issued a warrant extending the legal time-limit for concluding the proceedings to 6 March 2006.
29. On 15 February 2006 the applicant, still under arrest, was brought before the Court of Magistrates. He alleged that the law imposed a peremptory time-limit of twenty days for the conclusion of the committal proceedings. In the applicant’s view, this time-limit could not be extended by the Constitutional Court, as had occurred in his case. Furthermore, the applicant challenged the magistrate sitting in his case on the ground that she had already sat in the hearings preceding the constitutional proceedings. He invoked the principles laid down by the Court in Ferrantelli and Santangelo v. Italy (see judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III). He also raised once again his plea based on the Maltese authorities’ lack of jurisdiction to try him.
30. On 23 February 2006 the Court of Magistrates considered that the twenty day time-limit had not been exceeded since the Constitutional Court had placed the applicant in a status quo ante. Moreover, the warrant of the President of Malta extending the term of the inquiry had been valid according to law. It rejected the challenge to the magistrate on the ground that that court had refrained from giving a definitive judgment on the merits of the case, thus satisfying the objective impartiality test. The Court of Magistrates further stated that the interpretation of Article 22(1) (f) of the Dangerous Drugs Ordinance extended the principle of territorial jurisdiction and that it therefore had jurisdiction to proceed against the applicant. It decided to commit the applicant for trial.
31. On 27 February 2006 the applicant filed an application with the Criminal Court, the competent court at the material time, to challenge the lawfulness of his detention according to Article 412 B of the Criminal Code. He requested it to order his release from custody. He also complained that the committing magistrate, who delivered the decision of 29 September 2005, had erred when she refrained from stepping down once she had been challenged.
32. On 3 March 2006 the Criminal Court dismissed the application as being unfounded for the purposes of Article 412 B. It held that even if the magistrate had erred, this did not render the detention unlawful. Moreover, the proceedings leading to the decision of 23 February 2006 appeared to have been properly initiated and conducted, as indicated by the Constitutional Court’s judgment of 14 February 2006, which upheld only the applicant’s complaint about the irregularity related to the refusal to consider the plea of jurisdiction.
33. On 13 March 2006 the applicant filed a new application with the Court of Magistrates, claiming that the Attorney General had exceeded the time-limit allowed for filing the bill of indictment. On an unspecified date the Magistrates’ Court rejected the claim.
34. On an unspecified date the Attorney General filed the bill of indictment. As a consequence, the Criminal Court became competent to take cognisance of any application for release.
35. On 4 April 2006 the applicant applied for bail, making reference to Labita v. Italy ([GC], no. 26772/95, ECHR 2000-IV).
36. On 7 April 2006 the applicant was granted bail against payment of a deposit of MTL 12,000 (approximately EUR 28,800). He was put under house arrest at his mother’s home. He was only allowed to go out for two hours in the morning to report to the police station.
37. On 2 December 2006, the Criminal Court had started examining the plea of lack of jurisdiction. The applicant was still under house arrest.
38. On an unspecified date the applicant made another request for his detention arrangements to be alleviated. On 5 February 2007 the Criminal Court rejected his request, emphasising that it could not be said that the applicant was under arrest but was simply confined and limited in the hours during which he could leave his house as a condition of his being granted provisional liberty.
39. By a judgment of the Criminal Court of 18 July 2007, confirmed by the Criminal Court of Appeal on 18 January 2008, the applicant was found guilty of the charges against him and sentenced to a term of imprisonment.
40. According to recent amendments to the Criminal Code adopted in 2002, a police inspector may no longer arrest a suspect under his own authority but has to apply to a magistrates’ chamber for an arrest warrant.
Article 355V
“Where there are lawful grounds for the arrest of a person, the police may request a warrant of arrest from a magistrate, unless in accordance with any provision of law the arrest in question may be made without a warrant.”
41. Following amendments adopted in 2002 and 2006, the Articles of the Criminal Code, in so far as relevant, read as follows:
Article 401 (2)
“(2) On the conclusion of the inquiry, the court shall decide whether there are or not sufficient grounds for committing the accused for trial on indictment.”
Article 409A
“(1) Any person who alleges he is being unlawfully detained under the authority of the police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to the Court of Magistrates, which shall have the same powers which that court has as a court of criminal inquiry, demanding his release from custody. Any such application shall be appointed for hearing with urgency and the application together with the date of the hearing shall be served on the same day of the application on the applicant and on the Commissioner of Police or on the public authority under whose authority the applicant is allegedly being unlawfully detained. The Commissioner of Police or public authority, as the case may be, may file a reply by not later than the day of the hearing.
(2) On the day appointed for the hearing of the application the court shall summarily hear the applicant and the respondents and any relevant evidence produced by them in support of their submissions and on the reasons and circumstances militating in favour of or against the lawfulness of the continued detention of the applicant.
(3) If, having heard the evidence produced and the submissions made by the applicant and respondents, the court finds that the continued detention of the applicant is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the applicant it shall allow the application. Otherwise the court shall refuse the application.
(4) Where the court decides to allow the application the record of the proceedings including a copy of the court’s decision shall be transmitted to the Attorney General by not later than the next working day and the Attorney General may, within two working days from the receipt of the record and if he is of the opinion that the arrest and continued detention of the person released from custody was founded on any provision of this Code or of any other law, apply to the Criminal Court to obtain the re-arrest and continued detention of the person so released from custody. The record of the proceedings and the court’s decision transmitted to the Attorney General under the provisions of this sub-article shall be filed together with the application by the Attorney General to the Criminal Court.”
Article 412B
“(1) Any person in custody for an offence of which he is charged or accused before the Court of Magistrates and who, at any stage other than that to which Article 574A applies, alleges that his continued detention is not in accordance with the law may at any time apply to the court demanding his release from custody. Any such application shall be appointed for hearing with urgency and together with the date of the hearing shall be served on the same day of the application on the Commissioner of Police or, as the case may be, on the Commissioner of Police and the Attorney General, who may file a reply thereto by not later than the day of the hearing.
(2) The provisions of Article 574A(2) and (3) shall apply mutatis mutandis to an application under this article.
(3) Where the application is filed in connection with proceedings pending before the Court of Magistrates as a court of criminal inquiry before a bill of indictment has been filed and the record of the inquiry is with the Attorney General in connection with any act of the proceedings, the application shall be filed in the Criminal Court and the aforegoing provisions of this Article shall apply mutatis mutandis thereto.”
(4) The provisions of Article 409A(4) shall apply to a decision of the Court of Magistrates under this Article.”
Article 574A
“(1) When the person charged or accused who is in custody is first brought before the Court of Magistrates, whether as a court of criminal judicature or as a court of criminal inquiry, the Court shall have the charges read out to the person charged or accused and, after examining the person charged as provided in Article 392 as the proceedings may require, shall summarily hear the prosecuting or arraigning officer and any evidence produced by that officer on the reasons supporting the charges and on the reasons and circumstances, if any, militating against the release of the person charged or accused.
(2) After hearing the prosecuting or arraigning police officer and any evidence produced as provided in sub-article (1) the court shall inform the person charged or accused that he may be temporarily released from custody on bail by the court under conditions to be determined by it and shall ask him what he has to say with respect to his arrest and his continued detention and with respect to the reasons and the circumstances militating in favour of his release.
(3) Where any of the offences charged consists in any of the offences mentioned in Article 575(2) the court shall, after hearing the person charged or accused as provided in sub-article (2) of this article, ask the prosecuting or arraigning officer whether he has any submissions to make on the question of temporary release from custody on bail of the person charged or accused and the latter shall be allowed to respond.
(5) At the end of submissions as provided in the preceding sub-articles of this Article the court shall review the circumstances militating for or against detention.
(6) If the court finds that the continued detention of the person charged or accused is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the person in custody it shall unconditionally release that person from custody.
(7) If the court does not find cause to release unconditionally the person charged or accused ... it may nevertheless ... release that person from custody on bail subject to such conditions as it may deem appropriate.
(8) If the court does not find cause to release unconditionally the person charged or accused and refuses to grant that person bail the court shall remand that person into custody ...”
42. The European Convention Act, in so far as relevant, reads as follows:
Article 3
“(4) The Constitutional Court shall ... have jurisdiction to hear and determine all appeals under this Act and exercise all such powers as are conferred on it by this Act.”
Article 4
“(1) Any person who alleges that any of the Human Rights and Fundamental Freedoms, has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress.
(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub-article (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, of the Human Rights and Fundamental Freedoms to the enjoyment of which the person concerned is entitled:
Provided that the court may, if it considers it desirable so to do, decline to exercise its powers under this sub-article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law.
...
(4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.”
Consequently, a complaint must be lodged with both instances before it is introduced with the Strasbourg Court. However, in Sabeur Ben Ali v. Malta, (no. 35892/97, 29 June 2000, § 40) and Kadem v. Malta, (cited above, § 53), the Court held that this procedure was rather cumbersome and therefore lodging a constitutional application would not have ensured a speedy review of the lawfulness of the applicant’s detention. Consequently in the cited cases the applicants had not had at their disposal, under domestic law, a remedy for challenging the lawfulness of their detention under Article 5 § 4.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-85865
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HARTLEY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr John Hartley, is a British national who was born in 1942 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 15 November 2000. In December 2001, the applicant made a claim for widows’ benefits. On 19 December 2001 and 4 January 2002 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-108222
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: SHARRA v. ALBANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Besnik Sharra, is a Belgian national who was born in 1959 and lives in Brussels. He was represented before the Court by Mr A. Hajdari, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agents, Ms S. Mëneri and Mrs E. Hajro.
The facts of the case, as submitted by the parties, may be summarised as follows.
2. On 7 September 1995 the applicant entered into a loan contract with a private company, UCMK, through one of its shareholders, G.M. He agreed to lend the amount of 250,000 US dollars from 7 September 1995 to 7 December 1995, with an interest rate of six per cent per month. When the company defaulted, the applicant lodged an action with the Vlora District Court to recover the debt under the loan contract.
3. On 13 August 1996 the Vlora District Court (“the District Court”) ordered UCMK, which was represented by G.M. to pay back the principal amount, including the interest accrued. In the absence of an appeal, the District Court’s decision became final and enforceable.
4. A writ of execution was issued for the enforcement of the District Court decision on 3 September 1996, as a result of which UCMK’s property – a light bulb factory – was seized by the Vlore Bailiff’s Office. There is no information regarding any developments in the proceedings following the seizure.
5. On an unspecified date in the beginning of 1997 the applicant fled the country and was granted political asylum in Belgium. He did not return to Albania until 2002.
6. By a request of UCMK shareholders which had reached the registry on 29 September 1997, the District Court declared bankruptcy proceedings open in respect of UCMK on 3 March 1998. In the light of reports and inspections conducted by the general assembly of creditors, the court decided that no reorganisation plan could be considered viable as the company did not have the financial means by which to satisfy the requests of its creditors.
7. By a decision of 17 April 1998, the District Court approved the list of creditors that had been drawn up by the assembly of creditors, including the outstanding amounts due. It would appear that UCMK shareholders omitted the applicant’s name from the list of creditors that they had submitted to the District Court pursuant to section 6 of the Bankruptcy Act 1995. Consequently, the applicant’s name was not included in the list of creditors approved by the District Court.
8. The District Court further declared the company bankrupt and recognised the creditors as the shareholders of its assets. It assigned an administrator (administrator), who, together with the creditors, was to proceed with the assessment of the company’s assets.
9. In 2002 the applicant returned to Albania for a visit and enquired about the enforcement of the District Court decision. He was informed that none of UCMK’s property had been seized on his behalf and that, consequently, the 1996 decision had not been enforced. The applicant returned to Belgium on an unspecified date without taking any action.
10. In 2005 the applicant returned to Albania and on 5 September lodged a request for the enforcement of the District Court decision.
11. On 6 October 2005 the bailiff ordered the seizure of G.M.’s property without specifying it.
12. On 13 October 2005 UCMK’s property, the light bulb factory, was seized.
13. On 23 November 2005 the bailiff attempted to sell the light bulb factory at a public auction. It transpires that the bailiff’s office was not aware of the District Court’s decision of 17 April 1998 regarding the bankruptcy of the company and the appointment of an administrator.
14. A letter of 23 December 2005 was sent by a lawyer to the Vlora tax authorities enquiring about UCMK’s registration as a commercial entity. A handwritten note in the bottom right-hand corner indicated that no such company was registered with the tax authorities.
15. On an unspecified date the administrator lodged a complaint with the Vlora District Court requesting leave to appeal out of time to enable him to challenge the District Court decision of 13 August 1996. The administrator maintained that he had not been aware of that court decision or of the fact that the applicant was one of UCMK’s creditors, since the applicant’s name did not appear on the list of creditors drawn up by UCMK’s shareholders.
16. By a decision of 30 March 2006 the District Court granted the administrator’s action for leave to appeal out of time in accordance with section 16 § 2 of the 1995 Bankruptcy Act. After having initially summoned him to attend the proceedings, the District Court proceeded in the applicant’s absence pursuant to Article 192 of the Code of Civil Procedure (“CCP”) as he was not resident in Albania. The applicant became aware of the decision on an unspecified date in 2006 and alleged that all time-limits for lodging an appeal had expired by that time.
17. On 16 May 2006 the bailiff’s office decided to discontinue enforcement of the writ of execution of 3 September 1996 on the ground that the granting of leave to appeal out of time in the administrator’s favour had stripped the District Court’s 1996 decision of its res judicata effect. The bailiff’s office indicated that the District Court’s 1996 decision did not constitute an enforceable title under the CCP.
18. On 12 April 2006 the administrator lodged an appeal with the Vlora Court of Appeal (“the Court of Appeal”), claiming that there had been serious procedural irregularities in the proceedings that had led to the 1996 court decision.
19. Unable to locate the applicant in order to summon him to the hearing, on 2 March 2007 the Court of Appeal issued a public notice for the hearing of 30 March 2007 pursuant to Article 133 of the CCP.
20. On 30 March 2007 the Court of Appeal decided to quash the District Court decision of 18 March 1996 on account of serious procedural irregularities. It found that the District Court had failed to notify and summon the other two shareholders of the company. It finally remitted the case for fresh examination. The relevant parts of the decision read as follows.
“By not properly determining the parties to the proceedings and by not notifying the parties of the time and date of the hearing, the examination of this case was in serious breach of procedural rules and violated the provisions of Article 467 (ç) and (d) of the CCP.
The first-instance court started the examination of the case without notifying the defendant [that is, the company]. It erred in the determination of the parties to the proceedings, because it failed to obtain important evidence such as the [company’s] articles of association, its statute and the court decision, from which it could have found out who to summon to the hearing and the exact address of the company’s seat. The court only summoned G.M., who was one of the shareholders. There is no evidence in the case file that he was authorised, or had any other prerogative, to represent the company or take actions in its name.”
21. On 21 June 2007 the Court of Appeal issued a public notice stating the outcome of its decision.
22. Following three unsuccessful attempts to summon the applicant to a hearing, on 19 November 2007 the District Court issued a public notice to notify the applicant of the hearing of 3 December 2007 pursuant to Article 133 of the CCP.
23. On 3 December 2007 the District Court decided in the applicant’s absence to terminate the proceedings in accordance with Article 179 § 1 of the CCP.
24. On 9 March 2006 the administrator requested the prosecutor’s office to institute criminal proceedings against G.M. for the criminal offence of drawing up false statements, having regard to the incorrect information he had submitted in the course of the bankruptcy proceedings (see paragraph 7 above).
25. On 13 March 2006 the prosecutor’s office declined the request on the strength of the statute of limitations and the Amnesty Act 2002.
26. By note verbale of 4 March 1997, which was registered at the Secretariat General on 10 March 1997, the Albanian Ministry of Foreign Affairs, in accordance with Article 15 of the Convention, informed the Secretary General of the Council of Europe of the Government’s intention to derogate from its obligations under the Convention. The relevant parts of the note verbale read as follows (extracted from the original in English).
“I. In compliance with Article 16 of Law No 7491, dated 29.04.1991, "On Principal Constitutional Provisions", on the proposal of the Government, the People’s Assembly of the Republic of Albania took the decision to declare a state of public emergency. Such a situation will be general, covering the entire territory of the Republic of Albania. It started from March 2nd, 1997, 17.35 hours, and will continue up to the moment of the full reinstatement of constitutional and public order.
II. The imposition of the state of public emergency was forced because of the very extraordinary situation that was created in recent days in Albania. Some forces, making use of the protests and the despair of citizens who lost their money from the failure of financial pyramid schemes, organised groups of terrorists to perform violent actions. Without organising peaceful gatherings, these groups violated the law, the constitutional order, the life of the citizens, institutions and the territorial integrity of the country, creating thereby conditions to plunge Albania into a civil war. Being faced with these attacks of extreme violence, the police forces have preserved selfcontrol, by taking only defensive positions and making no use of firearms, which avoided the prospect of a conflict with unpredictable consequences. A few days later, the situation had become extremely complicated, and reached a climax at the moment when the imposition of the state of emergency was being discussed.
Though the Government made a proposal, the People’s Assembly, after a wide and public discussion, with the intervention of the President of the Republic, refused the proclamation of a public emergency and ordered the temporary placement of some army troops to help the police forces. With a view to having a dialogue and awaiting the response of the protestors, the Government resigned.
On March 1st, 1997, a communist armed rebellion broke out in Vlora and adjacent regions organised by the former Albanian communists and the former Albanian secret police, in collaboration with foreign secret services. Terrorist groups attacked the Southern cities to take power by force of arms. The target of their attacks were innocent people, municipalities, and the headquarters of the police; jails were broken and ordinary criminals and killers were armed, hundred of thousands millions of Leks were robbed from the banks; the houses of citizens and the shops of the businessmen were attacked. The clear aim was to terrorise the population, to paralyse and to take over power by force.
...
IV. According to the Law No. 8194, dated 02.03.1997 ‘For the State of Public Emergency in Case of Grave Infringement of the Constitutional and Public Order’, in the event that the state of public emergency is announced, a regime of special measures is to be established. The Council of Defence lead all State activity to be aimed at dealing with the state of public emergency. Under that state of public emergency, the Republic of Albania took several measures derogating from its international obligations. Those derogations are made to the extent strictly required by the exigency of the situation, not inconsistent with our constitutional law ‘For the Principal Constitutional Provisions’, nor with international treaties to which the Albanian State is a party, in particular the ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ and the ‘International Covenant on Civil and Political Rights’. They were made only for a restricted period of time. These derogations consist of restricting some human rights and fundamental freedoms of individuals. With regard to that issue, Article 41 of Law No. 7692, dated 31.03.1993 "For the Human Rights and Fundamental Freedoms", provides that "The exercise of some specific rights may be temporarily restricted by law in a situation of national emergency or war, with the exclusion of the rights provided for in Articles 1 (right to life) ..., 3 (abolition of torture), 6 (no enforcement to confess one’s guilt), 19 (freedom of conscience and religion), 25 (equality before the law), 39 (judicial restitution of the right), and 40 (guarantee of a fair trial)".
According to the Law No. 8194, dated 02.03.1997 ‘For the State of Public Emergency in Case of Grave Infringement of the Constitutional and Public Order’, as well as the Law ‘On Some Measures in the Context of the State of Emergency’, the specific restrictions on human rights and fundamental freedoms, entailed by these derogations from our international legal obligations, are as follows:
1. All armed rebels must hand over arms, munitions and explosives by March 3, 1997, 14.00 hours. After this deadline, the armed rebels in the battlefield will be shot without warning (Article 1).
2. All the gatherings in public places are forbidden (Article 6)
3. All activities of political, sport, cultural or trade union nature are forbidden (Article 6).
4. The free movement of people is forbidden during defined hours of the day (between 20.00 and 07.00 hours) (Article 7).
5. Illegal gatherings in public places shall be dispersed. In the event that it is impossible to carry out such dispersal by other means, the police units are entitled to use tear-gas, as well as firearms, to the extent indispensable to carry out their own duty according to the law (Article 6).
6. Limits are imposed on the freedom of press and information. Publication and distribution in the press and broadcasts on the radio of reports which stir up and call for violent actions against national security, the constitutional law, public security and the life of the individual are prohibited. Daily press and media are obliged to publish the full text of the official reports which are directly related to the state of emergency. Press organs are obliged to obtain an approval, prior to sale, of the material intended to be published, from the local staff responsible for execution of the state of emergency. The local staff has the right to suspend any publication which violates this provision (Article 4).
...”
27. By note verbale of 26 July 1997, which was registered at the Secretariat General on 24 October 1997, the Albanian Ministry of Foreign Affairs informed the Secretary General of the Council of Europe that the Government were withdrawing their notice of derogation under Article 15 of the Convention. The relevant parts of the note verbale read as follows.
“The Ministry for Foreign Affairs of the Republic of Albania presents its compliments to the Secretary General of the Council of Europe and, referring to the content of Article 15.3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, has the honour of informing him that the People’s Assembly of the Republic of Albania, when adopting the Law No. 8225 of 24 July 1997 ‘On the lifting of the state of public emergency in the Republic of Albania’, decided to put an end to the state of public emergency in the whole territory of the country. As from that date, all the measures taken in application of the state of public emergency have ceased to have effect.”
28. The relevant parts of the Albanian Constitution read as follows.
State bodies shall comply with judicial decisions.”
29. The relevant case-law of the Constitutional Court concerning the breach of an appellant’s right of access to court on account of the nonenforcement of a final court ruling has been described in detail in the case of Gjyli v. Albania, no. 32907/07, §§ 21–27, 29 September 2009.
30. The relevant parts of the CCP read as follows.
“In the event that the receiver [of the summons] does not have a living abode, residence or temporary home in the Republic of Albania or has not provided an address or appointed a representative ..., he shall be notified of the [hearing] by way of posting a copy of the document at the tribunal of the location where the dispute shall be heard as well as on the notice board of the administrative entity where he used to reside and, when that is unknown, of that of his place of birth.
In the event that Albania has entered into bilateral or multilateral agreements, the above-cited provision shall apply only in so far as the notification is not possible in one of the ways envisaged in those agreements.”
“If the plaintiff or any of the parties do not attend either the preparatory meeting or the hearing after having been duly notified and without reasonable grounds, the court or the single judge shall decide to terminate the proceedings (vendos pushimin e gjykimit).
...”
“Each party may summon to the trial of the case a person with whom he or she believes he or she has a shared interest in the case or from whom a guarantee or compensation may be requested if necessary for the completion of the case.
....
A third party can be summoned when he or she has a known place of abode within the borders of the Republic of Albania and as long as the trial of the case is still pending at first instance.”
“A party which has forfeited the right to appeal on reasonable grounds may submit a request to the court which adopted the decision for leave to appeal out of time. ...”
The Court of Appeal may quash the decision of the first-instance court and remits the case for fresh examination in the event that:
...
ç) the case was heard in the absence of parties to the proceedings, without having been informed of the date of hearing;
d) the parties to the proceedings were improperly identified and determined;
...”
“Execution of a decision may only be enforced on the basis of an enforceable title. Enforceable titles include
...
(a) civil court’s decisions that have become final. ...”
“A valid title shall be executed at the request of the creditor. A writ of execution shall be issued for this purpose. It is issued
by the court which made the decision in the cases provided for in sub-sections (a) ... of the foregoing Article.”
“The writ of execution shall be enforced by the bailiff at the request of the creditor ...”
“A court decision or other valid title shall be enforced against the debtor’s immovable property by seizure of the property.
The seizure shall be registered at the Office for Registration of Immovable Property for the area where the writ of execution was issued. The entry in the register shall indicate the type, nature and [a description of] at least three borders of the immovable property, its location and any mortgage or other property rights attached to it.
A copy of the writ of execution shall be communicated to the debtor.”
“Once the property has been seized, the bailiff’s office shall inform the debtor that the property will be sold [at auction], if he does not fulfil his obligation within ten days. ....”
“The announcement for the sale at auction shall be posted at the bailiff’s office and at the site of the immovable property. ...”
“The parties may apply to the court executing the decision in order to challenge an act or failure to act by the bailiff’s office, within five days of the said act or omission where the parties were present or summoned when the act was committed and in other cases from the date when they were notified or received knowledge of the act or refusal to act.”
“The suspension of the enforcement, unless ordered by the court, as well as its discontinuation, shall be decided by the bailiff.
An appeal may be lodged against such decisions to the first-instance court ...”
31. The Bankruptcy Act 1995, as in force at the material time, provided that bankruptcy proceedings were to be conducted in court (section 3). Were the proceedings to start on the strength of a legal action by the creditor, he would need to prove that the debtor had defaulted on payment. In any event, the debtor could also file a similar action (section 5).
32. During the proceedings, the court could question witnesses, summon experts and hear evidence from the debtor (sections 5 and 7), who was obliged to submit to the court, inter alia, an accurate list of all his assets and their corresponding value, a list of creditors with their names and addresses and the amount owed to each of them and a list of any debtors with the corresponding amounts they owed to him. The debtor assumed criminal responsibility for the veracity of the lists (section 6).
33. The opening of bankruptcy proceedings took place on the strength of a court decision, which would, inter alia, fix a time-limit by which all creditors could submit their claims and the respective sums in Albanian leks, state the grounds that gave rise to their participation in the bankruptcy proceedings as well as give their accord for the distribution of sums obtained from the bankruptcy proceedings (section 9). The district court would also decide to place the debtor under compulsory administration by appointing an administrator.
34. By virtue of the opening of bankruptcy proceedings, the debtor lost the right to possess and administer all his present and future property. Any civil and arbitration proceedings in which the debtor was a party were suspended on the initiation of bankruptcy proceedings. Judicial rulings given before the initiation of bankruptcy proceedings in respect of the enforcement of a court decision were no longer binding at the start of bankruptcy proceedings (section 11).
35. In the course of the discharge of his duties, the administrator acted under the supervision of the court, which was empowered to replace him, stating reasons (section 14). In accordance with section 16, the administrator could lodge a civil claim against the debtor’s legal actions in the event that the debtor had intentionally made the position of one of the creditors worse and when this was known to the third party; or if, in the year preceding the opening of the bankruptcy proceedings, the debtor had intentionally made [the creditors’] position worse in favour of other persons, in so far as this can be proved and in so far as the administrator was unaware of the disadvantage suffered.
36. The Bankruptcy Act 1995 provided for the possibility of drafting a restructuring plan (plani i riorganizimit), with a view to final liquidation of the debtor. Such a plan required the court’s approval (section 26-32). The administrator then proceeded with the liquidation of the debtor and the distribution of the sums collected to the creditors in accordance with the table of outstanding dues that had been approved by the court (section 32).
37. The Bankruptcy Act 1995 was repealed by Law no. 8901, dated 23 May 2002.