ITEMID: 001-88377
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ATALAY v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1956 and lives in Istanbul.
6. At approximately 11 p.m. on 24 August 1995, a police car stopped outside the shop run by the applicant in Istanbul’s Beyoğlu district. Three police officers got out of the car and asked the applicant to remove the letters “DHKP/C” (the abbreviation for the Revolutionary People’s Liberation Party/Front, an illegal organisation) written on a wall, two shops down the road from the applicant’s shop.
7. When the applicant refused to comply with that request and told the police officers that it was not his wall and therefore he had no obligation to clean it up, the police officers started to beat him. A number of other police officers, who were driving in the area at the time, also stopped and took part in the beating. The police officers then took the applicant into custody where they continued to beat him in order to force him to sign statements, confessing to the offence of obstructing the police in the course of their duty.
8. According to the incident report prepared by the three police officers who had beaten the applicant, the letters “DHKP/C” had been on the wall of the applicant’s shop and the applicant had told them that he would “rather die than wipe them away” and had then run away. When the police officers gave chase, the applicant had thrown stones at them and had kicked and punched them, injuring one of them in the process. Consequently, the officers had taken the applicant to the police station.
9. The following day the applicant was taken to the First Aid Hospital in Istanbul’s Taksim district where a medical report was prepared. According to this report, the applicant’s body bore a number of ecchymoses and lacerations.
10. The applicant was then brought to the office of the public prosecutor in Beyoğlu district where he told the prosecutor that the police officers had tortured him.
11. The same day the prosecutor referred the applicant to the Beyoğlu branch of the Forensic Medicine Institute where he was examined by a doctor. The following injuries are recorded in the medical report prepared at the end of that examination: a one centimetre long abrasion on the left side of the rear parietal region; a thirty centimetre long ecchymosed area stretching from the back of the left shoulder to the right scapular area; an ecchymosed area measuring fifteen by three centimetres below the left scapular region; an ecchymosed area, measuring fifteen by five centimetres, on the left lumbar; two ecchymosed areas, measuring seven by three and seven by fourteen centimetres, on the right side of the chest; four one centimetre long bleeding grazes and two ecchymosed areas, each measuring three centimetres in diameter, on the inside of the left arm; two ecchymosed areas, each measuring two centimetres, on the left cheek; and another ecchymosed area on the right tibial region. The report concluded that the applicant would be unable to work for a period of ten days.
12. The same day the prosecutor ordered the applicant’s release.
13. On 10 October 1995 the applicant lodged a formal complaint with the Beyoğlu prosecutor, seeking the prosecution of the three police officers responsible for the ill-treatment.
14. The following day the Beyoğlu prosecutor rendered a decision of non-jurisdiction, under the Law on the Trial of Civil Servants, and transferred the case file to the governor’s office in Beyoğlu for the “necessary action to be taken”.
15. On 21 July 1997 the Beyoğlu District Administrative Council, presided over by the Beyoğlu governor, granted authorisation for the prosecution of the three officers.
16. In its decision of 29 February 2000, the Beyoğlu Criminal Court of First Instance (hereinafter “the trial court”) convicted the three police officers of the offence of ill-treatment contrary to Article 245 of the Criminal Code, and sentenced each of them to three months’ imprisonment. The trial court also ordered their suspension from duty for a period of three months. Considering that the applicant’s “refusal to wipe away the writing on the wall and his attacks on the police officers” amounted to a “provocation”, within the meaning of Article 51 § 1 of the Criminal Code, the trial court reduced the prison sentences by a quarter and sentenced each officer to two months and seven days’ imprisonment. Taking into account the way in which the incident had taken place and the unlikelihood of police officers committing offences, the trial court was of the opinion that these particular officers would not reoffend if their sentences were suspended. Accordingly, it suspended their sentences under Article 6 of Law no. 647.
17. Two of the three police officers lodged appeals against the judgment. The judgment became final in so far as it concerned the third police officer, who did not appeal.
18. On 30 January 2002 the judgment was quashed by the Court of Cassation in so far as it concerned the two appellant police officers. The Court of Cassation held that the provisions of Law no. 4616 should be applied to them.
19. On 26 April 2002 the trial court suspended the proceedings against the two police officers in accordance with Law no. 4616, which had entered into force on 22 December 2000 and which provides for the suspension of criminal cases in respect of certain offences committed before 23 April 1999.
20. The applicant lodged an objection with the Beyoğlu Assize Court against the trial court’s decision, pointing out that the Court of Cassation had waited two years before rendering its judgment, and had only quashed the judgment following the entry into force of Law no. 4616. In any event, criminal proceedings concerning the offence of torture were outside the scope of that Law and could not, therefore, be suspended. Since, under Turkish law, ill-treatment could only be classified as torture if it was inflicted with the aim of extracting information from the victim (the offence defined in Article 243 of the Criminal Code), the trial court had no choice but to apply Article 245 of the Criminal Code in the present case. Nevertheless, the fact remained that the ill-treatment to which he had been subjected constituted “torture” within the meaning of the United Nations Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.
21. On 28 May 2002 the Beyoğlu Assize Court rejected the applicant’s objection.
22. The relevant provisions of the Criminal Code, in force at the material time, were as follows.
“If a person commits an offence in a fit of anger or under the influence of a strong grievance caused by unjust provocation...the punishment prescribed for the offence shall be reduced by a quarter.”
“Any public servant ... who inflicts torture or cruel, inhuman or degrading treatment on accused parties to make them confess their crimes shall be sentenced to up to five years’ imprisonment and temporarily or permanently barred from public service.”
“Any law-enforcement officer ... who, in the course of duty ... and in circumstances other than those prescribed by law ..., ill-treats, injures or strikes a person or does them bodily harm shall be sentenced to between three months’ and five years’ imprisonment and temporarily barred from public service. ...”
23. Pursuant to Article 153 of the Code of Criminal Procedure, in force at the material time, a public prosecutor who was informed by any means whatsoever of a situation that gave rise to the suspicion that an offence had been committed was obliged to investigate the facts in order to decide whether or not there should be a prosecution.
24. Under Law no. 4616, which entered into force on 21 December 2000, criminal proceedings in respect of offences committed before 23 April 1999 can be suspended for a period of five years. Suspended criminal proceedings can subsequently be discontinued if no offence of the same or a more serious nature is committed by the offender within the five-year period. Article 5 (a) of Law no. 4616 stipulates that criminal proceedings concerning the offence proscribed by, inter alia, Article 243 of the former Criminal Code cannot be suspended.
25. Pursuant to the Law on the Trial of Civil Servants, in force at the material time, if the alleged perpetrator of an offence was an agent of the State, permission to prosecute had to be obtained from the local administrative council. An appeal against the local council’s decision lay to the Supreme Administrative Court; a refusal to prosecute was subject to an automatic appeal of this kind.
VIOLATED_ARTICLES: 3


ITEMID: 001-58595
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF CARBONARA AND VENTURA v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Just satisfaction reserved;Preliminary objection dismissed (victim)
JUDGES: András Baka
TEXT: 6. The first three applicants and the fourth applicant's late mother owned agricultural land in Noicattaro. In 1963 the Noicattaro Town Council began the building of a school on adjoining land. While the works were under way, it became apparent that an additional plot of land would be needed to complete the construction.
7. By a decree issued on 27 May 1970, the Prefecture of Bari authorised the Noicattaro Town Council to take possession, under an expedited procedure, of 2,649 sq. m. of land belonging to the applicants for a maximum period of two years with a view to expropriating it in the public interest. The land was recorded on the cadastral register as “partita” no. 10653, folio no. 34, parcel no. 590.
8. On 30 June 1970 the Noicattaro Town Council took physical possession of the land and started the building works.
9. The case file shows that the school was not completed until 28 October 1972, by which time the authorised period of possession had expired.
10. The applicants say that they waited in vain for several years for their land to be formally expropriated and for compensation.
11. By a writ served on 3 May 1980 the applicants brought an action in damages against the Noicattaro Town Council before the Bari District Court. They submitted, inter alia, that the authorities were in possession of their land illegally as the authorised period had expired without any formal expropriation or the payment of compensation.
12. The respondent council argued, in particular, that the action in damages was time-barred.
13. On 14 April 1989 the Bari District Court dismissed the objection raised by the council that the action in damages was time-barred, finding that the council had not stated when the works had been completed. Referring to the Court of Cassation's case-law on constructive expropriation (occupazione acquisitiva), the District Court said that the applicants' right of property had been extinguished on completion of the public works. However, since the transfer of property had been linked to the unlawful taking of possession of the land, the applicants were entitled to damages calculated on the basis of the market value of the land, namely 26,490,000 Italian lire (10,000 lire per sq. m.), which, with index-linking to the date the judgment was delivered, came to 68,900,000 lire, plus interest.
14. On 21 July 1989 Noicattaro Town Council appealed against that judgment. It submitted in particular that the applicants' right to damages was time-barred.
15. In a judgment of 14 November 1990, the Bari Court of Appeal allowed the Noicattaro Town Council's appeal and declared that the applicants' right to damages was time-barred.
16. The Court of Appeal held that the works had been completed on 28 October 1972. As that was after the expiry of the two-year period stipulated by the Prefecture in its expedited possession order, it followed that the possession of the land was by then unlawful. However, under the constructive-expropriation rule, as established by the courts, the Noicattaro Town Council had acquired ownership of the land from the date the building works were completed. Since the council had acquired the property unlawfully, the applicants were entitled to seek damages; however, in the instant case, the applicants' right to damages was time-barred because the five-year limitation period had started to run from the date of completion of the works.
17. On 22 January 1992 the applicants appealed to the Court of Cassation. They argued that the retrospective application of the constructive-expropriation rule established by the Court of Cassation in 1983, coupled with the retrospective application of a limitation period, infringed both their right of property and the non-discrimination principle, as guaranteed by the Constitution. Up to 1983, landowners had retained ownership throughout the period of unlawful occupation of their land. Accordingly, although a five-year limitation period applied to actions in damages, the fact that the effects of the unlawful occupation were permanent meant that the landowner was entitled to seek damages at any time, as the occupation of the land remained unlawful. However, after 1983, owners deprived of their land by the authorities lost ownership from the date the works were completed and the limitation period started to run from that point. The applicants also contested the applicability of the five-year limitation period, arguing that the Court of Cassation's decisions on the issue were conflicting.
18. In a judgment of 1 April 1993, lodged at the registry on 26 November 1993, the Court of Cassation dismissed the applicants' appeal. As regards which limitation period was applicable, it observed that on 22 November 1992 the full court of the Court of Cassation had resolved that issue finally, holding that the five-year period must apply. In the instant case, the applicant's right to damages was therefore time-barred. As to the complaint that the retrospective application of the constructive-expropriation rule and the five-year limitation period was unconstitutional, since it infringed the applicants' right to the peaceful enjoyment of their possessions and the non-discrimination principle, the Court of Cassation held that it was manifestly ill-founded.
19. This statute governs the expedited expropriation procedure, which permits authorities to start building before expropriation. Once a scheme has been declared to be in the public interest and the plans adopted, the authorities may make an expedited possession order, for a limited period not exceeding five years, in respect of the land to be expropriated. The order will lapse if physical possession of the land is not taken within three months after its issue. After the land has been possessed, a formal expropriation order must be made and compensation paid.
20. During the 1970s, a number of local authorities took possession of land using the expedited procedure but failed subsequently to issue an expropriation order. The Italian courts were confronted with cases in which the landowner had de facto lost use of the land as it had been possessed and building works in the public interest had been undertaken. The question arose whether the mere fact that works had been carried out meant that the owner had also lost title to the land.
21. There was a substantial divergence in the decisions of the Court of Cassation over the effects of carrying out building works in the public interest on land where possession had been taken unlawfully. Unlawful possession means possession that is unlawful from the start, in other words obtained without authority, or that is initially authorised but subsequently became unlawful, either because the authority is quashed or because possession continues beyond the authorised period without an expropriation order being made.
22. Under one line of case-law, the owner of land that had been possessed by the authorities did not lose ownership after completion of the works in the public interest. However, he could not request reinstatement of the land; his only remedy was to bring an action in damages for wrongful possession. No limitation period applied to such actions as the unlawful nature of the possession was continuing. The authorities could at any time issue a formal expropriation order. If they did so, the action in damages was transformed into a dispute over the compensation for expropriation, with damages for the loss of enjoyment of the land being due only for the period prior to the making of the expropriation order (see, among other authorities, the judgments of the Court of Cassation nos. 2341 of 1982; 4741 of 1981; and 6452 and 6308 of 1980).
23. Under a second line, the landowner did not lose property in the land and could request its reinstatement if the authorities had acted other than in the public interest (see, for example, the Court of Cassation's judgments nos. 1578 of 1976 and 5679 of 1980).
24. Under a third line, an owner dispossessed by the authorities automatically lost title to the land as soon as it had been altered irreversibly, that is to say on completion of the works in the public interest. He was entitled to claim damages (the sole authority is the Court of Cassation's judgment no. 3243 of 1979).
25. In a judgment of 16 February 1983, the Court of Cassation, sitting as a full court, resolved the conflict between the case-law authorities and adopted the third solution. In so doing, it established the constructive-expropriation rule (accessione invertita or occupazione acquisitiva). Under the rule, the public authorities acquire title to the land from the outset before formal expropriation if, after taking possession of the land and irrespective of whether such possession is lawful, the works in the public interest are performed. If, initially, the land is possessed without authority, the transfer of property takes place when the works in the public interest are completed. If the taking of possession was authorised from the outset, property is transferred on the expiry of the authorised period of possession. In the same judgment, the Court of Cassation stated that, on a constructive expropriation, the owner is entitled to compensation in full as the acquisition of the land has taken place without title (sine titulo). However, compensation is not paid automatically: the owner must lodge a claim for damages. In addition, the right to compensation is subject to a five-year limitation period that applies to actions in tort; the starting-point is the date the land is irreversibly altered.
26. Initially, it was held that no limitation period applied, since possession of the land without title was a continuing unlawful act (see paragraph 22 above). In its judgment no. 1464 of 1983, the Court of Cassation stated that the right to compensation was subject to a five-year limitation period (see paragraph 25 above). Subsequently, the First Division of the Court of Cassation said that a ten-year limitation period should apply (judgments nos. 7952 of 1991 and 10979 of 1992). On 22 November 1992 the full court of the Court of Cassation decided the issue finally, holding that the limitation period is five years and starts to run from the date the land is irreversibly altered.
27. Recent developments in the case-law show that the mechanism whereby carrying out building works in the public interest operates to transfer property in the land to the authorities is subject to exceptions.
28. In its judgment no. 874 of 1996, the Consiglio di Stato stated that there was no constructive expropriation where resolutions of the authorities and an expedited possession order had been quashed by the administrative courts, as otherwise the judicial decision would be devoid of purpose.
29. In judgment no. 1907 of 1997, the Court of Cassation, sitting as a full court, said that the authorities did not acquire ownership of the land if their resolutions and the declaration that expropriation was in the public interest were deemed to have been null and void from the outset. In such cases, the owner retained title to the land and could claim restitutio in integrum. In the alternative, he could seek damages. The unlawful nature of the possession in such cases was continuing and no limitation period applied.
30. In judgment no. 6515 of 1997, the Court of Cassation, sitting as a full court, said that there was no transfer of property where the declaration that expropriation was in the public interest had been annulled by the administrative courts. In such cases, therefore, the constructive-expropriation rule did not apply. The owner, who retained ownership of the land, was entitled to claim restitutio in integrum. If he brought an action in damages, that entailed a waiver of his right to restitutio in integrum. The five-year prescription period started to run from the date when the decision of the administrative court became final.
31. In judgment no. 148 of 1998, the First Division of the Court of Cassation followed the decision of the full court and held that there was no transfer of property by constructive expropriation where the declaration that the building works were in the public interest was deemed to have been invalid from the outset.
32. In this judgment, the Constitutional Court was called upon to decide firstly whether the constructive-expropriation rule was compatible with the Constitution. The court declared that question inadmissible on the ground that it had jurisdiction to examine statutory provisions only, not rules established by the courts. Secondly, it held that the application to an action for compensation of the five-year limitation period laid down by Article 2043 of the Civil Code for claims in tort was compatible with the Constitution. The fact that the authorities had become owners of the land by taking advantage of their own unlawful conduct did not pose any difficulty under the Constitution, since the public interest in the preservation of works for the public good outweighed the individual's interest in the right of property.
33. Under the Court of Cassation's case-law on constructive expropriations, compensation in full, that is to say damages for the deprivation of the land, is due to the owner in consideration for the loss of ownership caused by the unlawful taking of possession.
34. The Finance Law of 1992 (Article 5 bis of Legislative Decree no. 333 of 11 July 1992) superseded that case-law by providing that the compensation payable on constructive expropriations could not exceed the amount due on formal expropriations. In judgment no. 369 of 1996, the Constitutional Court declared that provision unconstitutional.
35. Under Finance Law no. 662 of 1996, which amended the provision that had been declared unconstitutional, compensation in full cannot be awarded for dispossessions effected before 30 September 1996. In such cases, compensation cannot exceed such amount, plus 10%, but without applying the 40% reduction, as would have been payable on a formal expropriation (one-half of the sum of the market value plus the income from the land, less 40%). In a judgment no. 148 of 30 April 1999, the Constitutional Court held that that provision was compatible with the Constitution. However, in the same decision, it said that compensation in full, up to the market value of the land, could be claimed where the dispossession and deprivation of the land were not in the public interest.
36. The Government maintained that the applicants no longer had an interest in pursuing the application and asked the Court to dismiss it.
37. The Government said that two parcels of land had been expropriated from the applicants by the Noicattaro authorities. The land forming the subject matter of the application covered 2,649 sq. m. and was entered on the cadastral register as parcel no. 590; the land concerned by the other expropriation had a surface area of 6,037 sq. m. On 21 April 1997 the applicants reached a settlement agreement with the Noicattaro Town Council at the end of the proceedings concerning that other parcel of land. The Government maintained that the sum paid by the authorities pursuant to that agreement also included compensation for the loss of the 2,649 sq. m. of land forming the subject matter of the application.
38. In support of their case, the Government referred to the recitals of the settlement agreement, in which it was stated that at the origin of the agreement was the taking of possession – with a view to building a covered market – of 6,037 sq. m. of the Carbonara and Ventura estate, registered on the cadastral plan as folio no. 34, parcels nos. 323, 344 and 590.
39. The applicants contested the Government's submission, arguing that the settlement agreement related only to the 6,037 sq. m. of land expropriated for the building of a market. They said that, along with other parcels, parcel no. 590 had been included in the 1976 order authorising possession of the 6,037 sq. m. of land by mistake, as the entire plot had already been used for the building of the school. That error had consequently also appeared in the recitals to the settlement agreement. The applicants invited the Court to examine side by side the settlement agreement and the report lodged on 6 October 1986 by the expert appointed by the Bari District Court in connection with the dispute over the land intended for the building of a market. They said that that would enable the Court to see that the settlement agreement did not relate to the 2,649 sq. m. of land forming the subject matter of the application.
40. The Court has examined the settlement agreement and the expert's report of 6 October 1986.
41. On pages 9 and 10 of the 1986 report, the expert stated that the land originally belonging to the applicants could be divided into three sections in the light of the changes that had been made:
(i) a first section that had not been expropriated;
(ii) a second section of 2,649 sq. m. corresponding to parcel no. 590 which had been used for a school;
(iii) a third section of 6,037 sq. m. corresponding to other parcels of land forming the subject matter of the litigation for which the expert had been appointed. Possession of that section had been taken on 16 September 1976, a market and a road had been built on it and gardens planted.
42. Although parcel no. 590 is indeed referred to in the recitals to the settlement agreement, that same agreement also states that the compensation paid by the authorities relates to other parcels of land – all recorded on folio no. 34 of the cadastral register – with a total surface-area of 6,037 sq. m.
43. Having perused those documents, the Court considers that the Government have not shown that the amount paid to the applicants pursuant to the settlement agreement related to the land forming the subject matter of the application.
44. Consequently, the Government's preliminary objection must be dismissed.
45. The applicants complained that they had been deprived of their land in circumstances that were incompatible with the requirements of Article 1 of Protocol No. 1, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
46. The applicants asked the Court to declare that the application of the constructive-expropriation rule in the instant case did not comply with the requirement of lawfulness.
47. They referred to the notion of a legal norm and observed that the constructive-expropriation rule was an anomaly in the Italian legal system. It was considered by the domestic courts as being an expression of the “living law”, yet did not have the same effects as statutory provisions as, firstly, it was not binding on the courts and, secondly, its constitutionality could not be reviewed. Even if they were to accept the idea that the rule constituted a legal norm, the applicants, referring to the Kruslin v. France case (judgment of 24 April 1990, Series A no. 176-A), observed that it had to be accessible, its effects had to be foreseeable and it had to be compatible with the principle of the rule of law.
48. In that regard, the applicants maintained that the uncertainties and changes in the case-law to which the constructive-expropriation rule had given rise, combined with the way in which it had been applied in their case, amounted to a violation of the principle of the rule of law. In their submission, it had been impossible for them to foresee that their right of property would be considered by the courts to have been extinguished. Furthermore, by the time the Court of Cassation established in 1983 that the five-year limitation period had to apply, the applicant's case had been pending for three years. Moreover, the Court of Cassation's judgment of 1992, which finally resolved the issue of which limitation period should apply, was delivered when the applicants' appeal on points of law was pending.
49. The applicants went on to observe that constructive expropriations were effected not after proceedings in due form but following the physical taking of possession by the authorities. The latter became owners of the land and thus extinguished the landowners' right of property despite the unlawful nature of their conduct. The applicants pointed out that the onus was on the landowner if he wished to obtain compensation, as he was required to make a claim for damages. Moreover, a ceiling had been placed on the measure of damages by the finance laws, such that landowners could no longer obtain reparation in full for the loss sustained.
50. Referring to the Commission's report, the applicants also argued that the deprivation of their land contravened the principle that a fair balance should be struck.
51. The applicants concluded by requesting the Court to find that there had been a violation of Article 1 of Protocol No. 1.
52. The Government reiterated their observations before the Commission in which, referring to the Constitutional Court's judgment no. 188 of 1995, they had maintained that the situation complained of by the applicants was compatible with Article 1 of Protocol No. 1.
53. In their memorials lodged with the Court, the Government observed that constructive expropriation was provided for “by law”, even though not set out in any statutory provision. As a principle established by the case- law, the constructive-expropriation rule formed part of Italian positive law but, unlike statutory provisions, there was no need for it to come into force formally as it was formulated over the course of time and the courts were not bound to apply it. The Government contested the Commission's view that the constructive-expropriation rule was not in existence at the time possession of the land was taken, that is to say before the Court of Cassation's judgment no. 1464 of 1983. The Government maintained that the rule had, at the material time, already been established by the courts.
54. The Government maintained that three conditions had to be satisfied for a transfer of property by constructive expropriation to be lawful: the works had genuinely to be in the public interest; the landowner had to have access to the courts for review of the public-interest issue; and compensation had to be paid for the deprivation of the property.
55. The Government noted that the applicants had not suggested that either of the first two conditions had not been satisfied. As to the third, the Government maintained that the applicants had received compensation as part of the settlement agreement concerning the expropriation of another parcel of land (see paragraphs 36-38 above). The Government consequently considered that the applicants were seeking to obtain unjust enrichment through the Court.
56. The Government concluded by asking the Court to declare the application unfounded.
57. In its report, the Commission expressed the view that the applicants had been deprived of their land through the retrospective application of the constructive-expropriation rule and that their right to compensation had been declared time-barred as a result of the retrospective application of the relevant limitation period. Having found that no compensation had been paid to the applicants, it considered that that finding sufficed for it to conclude that there had been a violation of Article 1 of Protocol No. 1.
58. The Court reiterates that Article 1 of Protocol No. 1 contains three distinct rules: “the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest ... The three rules are not, however, 'distinct' in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule” (see, among other authorities, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, pp. 29-30, § 37, partly following the terms of the Court's analysis in the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 24, § 61; see also the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, p. 31, § 56, and Iatridis v. Greece [GC], no. 31107/96, § 55, ECHR 1999-II).
59. The Court notes that it is common ground that there has been a deprivation of possessions.
60. In order to determine whether there has been a deprivation of possessions within the meaning of the second rule, the Court must not confine itself to examining whether there has been dispossession or formal expropriation, it must look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are “practical and effective”, it has to be ascertained whether that situation amounted to a de facto expropriation (see the Sporrong and Lönnroth judgment cited above, pp. 24-25, § 63).
61. The Court notes that in the present case the Court of Cassation held, in a decision that was final and in which it applied the constructive-expropriation rule, that there had been a transfer of property in favour of the Noicattaro Town Council; as a consequence of that decision the applicants were deprived of the possibility of obtaining damages. In those circumstances, the Court finds that the effect of the judgment of the Court of Cassation was to deprive the applicants of their possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 (see Brumărescu v. Romania [GC], no. 28342/95, § 77, ECHR 1999-VII).
62. In order to be compatible with Article 1 of Protocol No. 1, such an interference must be “in the public interest”, “subject to the conditions provided for by law and by the general principles of international law” and must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see the Sporrong and Lönnroth judgment cited above, p. 26, § 69). Furthermore, the issue of whether a fair balance has been struck “becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary” (see Iatridis cited above, § 58, and Beyeler v. Italy [GC], no. 33202/96, § 107, ECHR 2000-I). Accordingly, the Court does not consider it appropriate to base its decision solely on the finding that the applicants received no compensation.
63. The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Iatridis cited above, § 58) and entails a duty on the part of the State or other public authority to comply with judicial orders or decisions against it.
64. The Court does not consider it necessary to decide in the abstract whether the role in the continental-law system of a rule, such as the constructive-expropriation rule, established by the courts is comparable to that of statutory provisions. However, it reiterates that the requirement of lawfulness means that rules of domestic law must be sufficiently accessible, precise and foreseeable (see the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, pp. 19-20, § 42, and the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 47, § 110).
65. In that connection, the Court observes that the case-law on constructive expropriations has evolved in a way that has led to the rule being applied inconsistently (see paragraphs 21-35 above), a factor which could result in unforeseeable or arbitrary outcomes and deprive litigants of effective protection of their rights and which, as a consequence, is inconsistent with the requirement of lawfulness.
66. The Court also notes that, under the rule established by the Court of Cassation in its judgment no. 1464 of 1983, every constructive expropriation follows the unlawful taking of possession of the land. The unlawfulness may exist at the outset, if the taking of possession is unauthorised, or arise subsequently, if the authorities remain in possession beyond the authorised period. The Court has reservations as to the compatibility with the requirement of lawfulness of a mechanism which, generally, enables the authorities to benefit from an unlawful situation in which the landowner is presented with a fait accompli.
67. It notes, finally, that compensation for deprivation of property is not paid automatically by the authorities, but must be claimed by the landowner within five years. That may prove to be inadequate protection.
68. In any event, the Court is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention.
69. In the instant case, the Court notes that, pursuant to the constructive-expropriation rule, the Court of Cassation held that the applicants had been deprived of their land from 28 October 1972. That transfer of property to the authorities therefore occurred during the period of possession without title (sine titulo), automatically, following completion of the public works. The Court considers that that situation could not be regarded as “foreseeable” as it was only in the final decision, the judgment of the Court of Cassation, that the constructive-expropriation rule could be regarded as being effectively applied. On that point, the Court refers to the evolution of the case-law (see paragraphs 21-31 above) and to the fact that a case-law rule does not bind the courts as regards its application (see paragraph 53 above). The Court consequently finds that the applicants did not become certain that they had been deprived of their land until 26 November 1993, when the Court of Cassation's judgment was lodged with the registry.
70. Secondly, the Court observes that the situation in issue enabled the authorities to derive a benefit from taking possession of land which they had held without title since 30 June 1972.
71. Furthermore, the Court notes that the Court of Cassation applied the five-year limitation period from the date of completion of the works (28 October 1972). As a result, the applicants were denied the possibility that had, in principle, been available to them of obtaining damages.
72. The Court considers that such interference can only be described as arbitrary and consequently is not compatible with Article 1 of Protocol No. 1.
73. Accordingly, there has been a violation of Article 1 of Protocol No. 1.
74. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
75. The applicants claimed 364,790,000 Italian lire (ITL) for pecuniary damage – the value of the land as assessed in an expert's report of 20 September 1986 – plus interest and index-linking from 30 June 1972. In the alternative, they sought ITL 161,589,000 – the value of the land as assessed in an expert's report of October 1986 – plus interest and index-linking from 30 June 1972. The applicants stated that they would be willing to accept the conclusions of a further expert valuation if the Court were minded to seek one.
76. As regards non-pecuniary damage, the applicants claimed ITL 100,000,000 each.
77. The applicants sought reimbursement of ITL 163,896,627 for the costs incurred before the national courts and of ITL 124,783,114 for the costs incurred in the proceedings before the Commission and the Court.
78. The Government made no observations on that point.
79. The Court considers that the issue of the application of Article 41 is not ready for decision and should be reserved having regard to the possibility of an agreement between the respondent State and the applicants (Rule 75 §§ 1 and 4 of the Rules of Court).


ITEMID: 001-60513
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF IGDELI v. TURKEY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 9. On 5 June 1995 police officers from the anti-terrorist branch of the İstanbul Security Directorate arrested the applicant, who was a student at the time, on suspicion of membership of an illegal organisation, the PKK.
10. On 6 June 1995 the head of the anti-terrorist branch of the İstanbul Security Directorate wrote a letter to the Chief Public Prosecutor at the İstanbul State Security Court requesting permission for an extension of the applicant's detention in police custody until 12 June 1995. On the same day the Public Prosecutor no. 23783 granted the extension requested.
11. On 12 June 1995 the Public Prosecutor no. 16429 at the İstanbul State Security Court questioned the applicant in relation to his actions within the PKK and submitted a petition to the İstanbul State Security Court requesting an order for the applicant's detention on remand.
12. On the same day, the applicant was brought before the İstanbul State Security Court which ordered his detention on remand.
13. On 23 August 1995 the Chief Public Prosecutor filed an indictment with the İstanbul State Security Court charging the applicant with membership of the PKK. The charges were brought under Article 168 § 2 of the Turkish Criminal Code and Article 5 of Law no. 3713 as well as Article 19 § 2 of Law no. 2918 (Traffic Act).
14. On 9 August 1996 the applicant was released pending trial.
15. On 18 November 1998 the applicant was sentenced to three years' imprisonment in accordance with Article 168 § 2 of the Turkish Criminal Code.
16. Article 168 of the Criminal Code provides:
“Any person who, with the intention of committing the offences defined in Articles..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years' imprisonment.
The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years' imprisonment.”
17. Under Article 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in section 168 of the Criminal Code is classified as a “terrorist” act.
18. Pursuant to Article 5 of Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in Articles 3 and 4 of the Act are increased by one half.
19. Article 19 of the Constitution provides:
“Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law:
...
The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days ... These time-limits may be extended during a state of emergency...
...
A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.
Compensation must be paid by the State for damage sustained by persons who have been victims of treatment contrary to the above provisions, as the law shall provide.”
20. Under Article 9 of Law no. 3842 on procedure in state security courts, only these courts can try cases involving the offences defined in Articles 125 and 168 of the Criminal Code.
21. At the material time Article 30 of Law no. 3842 of 18 November 1992, amending the legislation on criminal procedure, provided that, with regard to offences within the jurisdiction of state security courts, any arrested person had to be brought before a judge within 48 hours at the latest, or, in the case of offences committed by more than one person, within 15 days.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-96693
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MASTEPAN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1975 and lives in Rubtsovsk, a town in the Altay Region.
6. On an unspecified date the economic crimes bureau of the Barabinsk Town Police (Отдел по борьбе с экономическими преступлениями Барабинского городского ОВД по Новосибирской области – “the economic crimes bureau”) obtained information concerning the circulation of counterfeit money in town. Based on the above information and pursuant to Section 10 of the Operational-Search Activities Act the economic crimes bureau instituted operational proceedings (дело оперативного учета).
7. In the course of the operational proceedings at issue the economic crimes bureau discovered incidents of forgery of official documents.
8. Following the approval of the report on the operational-search activities conducted within the framework of the operational proceedings at issue, on 9 February 2002 in accordance with Section 8 of the Operational-Search Activities Act the Deputy Head of the Barabinsk Town Police decided to carry out a test purchase in the applicant’s flat. The reason for that decision had been the information that the applicant was involved in unlawful activity consisting in forgery of banknotes and official documents entitling its holders to certain benefits or exonerating them of duties and obligations. On the same day criminal proceedings were instituted against the applicant on suspicion of counterfeiting.
9. On 10 February 2002 two plain-clothes police officers, K. and B., came to the applicant’s flat to carry out the test purchase. The officers said that they were a husband and wife wishing to obtain a copy of a high-school graduation certificate. The applicant invited the visitors to come in, scanned the documents handed over by the “husband”, then, at the “clients’” request, changed the name of the holder and certain grades. Then he made colour printouts and asked for 500 Russian roubles by way of payment.
10. According to the applicant, when the “clients” were on their way out, a police squad and an investigator who had been waiting outside in the meantime burst into the applicant’s flat.
11. According to the Government, after the test purchase had been completed the applicant saw the “clients” to the door, opened it, and the police officers who had been waiting outside in the meantime entered the flat. They showed their identification documents and informed the applicant of the purpose of their visit. After that the forgery of a document was reported to an investigator of the investigative department of the Barabinsk Town Police. When the investigator arrived to the applicant’s flat, the applicant’s wife opened the door. Upon her permission the investigator entered the flat. The applicant did not object to the investigator’s presence. After the attesting witnesses had been invited the investigator explained to the applicant and those present that there were reasons to believe that the applicant had committed forgery of an official document and expressed his will to conduct an investigative action – inspection of the crime scene. The applicant and his wife gave their consent.
12. The investigator inspected the applicant’s flat as a crime scene and seized material evidence. In accordance with Article 182 of the RSFSR Code of Criminal Procedure he drew up a record of the inspection. The record attests to the fact that on 10 February 2002 from 6 p.m. to 9 p.m. in accordance with Articles 178-179 of the Code and in the presence of two attesting witnesses, the applicant and his wife, the investigator carried out the inspection of the applicant’s flat. The record set out in detail the descriptions of the flat and the seized evidence (computer gear).
13. Thereafter the applicant was taken to the police station where he was detained until 2 a.m. on 11 February 2002.
14. On 15 February 2002 the investigator opened another criminal case against the applicant and charged him with forgery of official documents.
15. The applicant brought a complaint against the police squad and the investigator, alleging that they had conducted an unlawful search of his premises, thus violating his right to respect for his home, and that they had frisked him and seized his belongings. In particular, the applicant complained that when police officers K. and B. were on their way out an armed squad burst into his flat, shouting and threatening. He was thrown to the floor his hands tightly tied behind his back and dealt several blows to his side and the lower part of his back. The squad frisked him and handcuffed him. Afterwards the applicant was informed that the armed persons were police. The attesting witnesses were called, and what the applicant believed to have been a search began, without any prior approval by the prosecutor. The “search” lasted about three hours. From the conversation of the police officers the applicant understood that they were searching for drugs and arms. After the “search” was over some of the applicant’s belongings were put in boxes and seized. Later the applicant was informed with the record of the investigative action in question, from which he learned that it had been an inspection of the crime scene.
16. On 3 July 2002 the Barabinskiy District Court of the Novosibirsk Region rejected the applicant’s complaint as unsubstantiated. The court found as follows:
“... On 10 February 2002 the investigator [name] arrived at [the applicant’s address] in connection with information about the crime, where he conducted, with attesting witnesses, the inspection of the scene of the crime. The investigative action in question was registered in the record of inspection of the crime scene ... The above circumstance is confirmed by the record dated 10 February 2002; a statement by [the head of the police squad] in which he confirmed that ... following a signal from [police officer K.] the police squad arrested [the applicant]. [The investigator] arrived ten to fifteen minutes later and inspected the scene of the crime. [The above circumstance is further confirmed] by: statement of [police officer K.] in which he confirmed that after the test purchase was completed he informed the police squad accordingly through a radio transmitter, following which he came to the door, opened it, the police squad entered the flat and arrested [the applicant]; then [the investigator] was called and conducted the inspection of the scene of the crime; a statement by [a member of the police squad] who confirmed that on 10 February 2002 a test purchase was carried out; he and [two other members of the squad] were waiting for a signal from [police officer K.] to arrest [the applicant]. After the signal was received they entered the flat, then called the investigator, who entered the flat and conducted the inspection of the scene of the crime five minutes later; statements of [two attesting witness] who assisted at the inspection of [the applicant’s] flat.
On the basis of the above, taking into account that [the investigator] arrived at [the applicant’s address] at the scene of the crime, the actions of [the investigator] do not indicate that there was an unlawful entry to a dwelling.
The RSFSR Code of Criminal Procedure did not oblige the investigator to hand over the record of the inspection to [the applicant].
In accordance with Articles 178 and 179 of the RSFSR Code of Criminal Procedure during the inspection [the investigator] had the right to seize the uncovered traces of crime and other physical evidence. At that [the applicant’s] participation was not obligatory.
It has not been established that [the investigator] body-searched [the applicant].
...”
As regards the applicant’s allegations in so far as they concerned the actions of the police squad, the court indicated that the applicant had failed to follow the procedure established by law for challenging police actions (namely, the Police Act and the Law on complaints about actions and decisions impinging upon the rights and freedoms of citizens) and refused to examine the relevant part of the complaint on the merits.
17. On 11 September 2002 the Novosibirsk Regional Court upheld the decision of 3 July 2002 on appeal.
18. On 23 August 2007 the Barabinskiy District Court of the Novosibirsk Region convicted the applicant. It is unclear whether the applicant appealed against the judgment.
19. The Constitution of the Russian Federation establishes that the home is inviolable. No one shall enter a dwelling against the will of those living there, unless otherwise established by a federal law or in accordance with a court order (Article 25).
20. The Constitution further provides that everyone shall be guaranteed judicial protection of his rights and freedoms. Decisions and actions (or inaction) of bodies of state authority and local self-government, public associations and officials may be appealed against in court (Article 46).
21. The RSFSR Code of Criminal Procedure (Law of 27 October 1960, in force until 1 July 2002) replicated the constitutional principle that no one should penetrate into a home against the will of those living there without legal grounds. Search, seizure and inspection of residential premises could be carried out only on the grounds, and in accordance with the procedure, provided by the Code (Article 12).
22. The Code provided specifically that an investigator could carry out an inspection of a crime scene, location, premises, physical objects or documents in order to detect traces of a crime or other physical evidence, to clarify the scene of the crime and other relevant circumstances. In urgent cases the inspection could be carried out before opening a criminal case. In such cases, the case was to be opened immediately after the inspection of the crime scene (Article 178).
23. The inspection of the crime scene had to be carried out in the presence of attesting witnesses. The investigator could also solicit the participation of an accused, a suspect, a victim, a witness and an expert. When carrying out the inspection the investigator could take measurements, photos, use video recording, draw plans and schemes, and make moulds and take impressions of footprints. If necessary, the investigator could seize the evidence discovered (Article 179 of the Code).
24. A record of the inspection had to be drawn up by the investigator and signed by all persons who took part in the investigative measure (Articles 141 and 182 of the Code).
25. The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, in force as from 1 July 2002) provides for judicial review of decisions of investigators that might infringe the constitutional rights of participants in the proceedings or prevent a person’s access to court (Article 125).
26. The Operational-Search Activities Act (Law no. 144-FZ of 12 August 1995) lists a number of techniques that may be used by law-enforcement or security authorities for the purposes of, inter alia, investigating and preventing offences (section 6). In particular, the police may carry out a “test purchase” (проверочная закупка) where, inter alia, a criminal case has been opened or information concerning the preparation or commission of an offence has become known to the police and the available data are insufficient to bring criminal proceedings (section 7). The taking of operational-search measures which interfere with individuals’ constitutional rights to respect for their correspondence, telephone communications and home is allowed if authorised, as a general rule, by a court (section 8). The “test purchase” of goods, the free sale of which is prohibited, and certain undercover operations by agents or persons assisting them, are carried out on the basis of a decision sanctioned by the head of an agency engaged in operational-search activities (section 8). The agencies charged with operational-search activities may create and use information systems and institute operational proceedings. The operational proceedings are instituted on the grounds listed in section 7 of the Act for the purposes of collection and systematisation of information, verification and evaluation of the results of the operational-search activities, and taking the relevant decisions by the agencies charged with operational-search activities. The institution of operational proceedings may not serve as a ground for restriction of constitutional rights and freedoms and lawful interests of an individual and a citizen (section 10). Results of operational-search activities can serve as a basis for bringing criminal proceedings and can be used as evidence in accordance with the legislation on criminal procedure (section 11).
27. The Police Act (Law no. 1026-I of 18 April 1991) provides that the police may enter the dwelling against the will of those living there if there is a reason to believe that a crime has been committed there (section 11). Actions or inaction on the part of a police officer can be appealed against to a higher police official, a prosecutor or a court (section 39).
28. The Law on complaints about actions and decisions impinging upon the rights and freedoms of citizens (Law no. 4866-I of 27 April 1993) provides that a court of general jurisdiction may hear complaints about actions or decisions of State and public officials which infringe citizens’ rights or freedoms or prevent citizens from exercising their rights and freedoms. It is incumbent on the officials concerned to demonstrate the lawfulness of their actions or decisions (section 2).
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-96739
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF FELIX BLAU SP. Z O.O. v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The applicant company is a limited liability company which at the material time carried on a business of buying debts.
6. On 14 February 2002 the applicant company instituted civil proceedings before the Wrocław Regional Court (Sąd Okręgowy) against the Dolnyśląsk Sickness Fund (Dolnośląska Regionalna Kasa Chorych). The applicant company had agreed to buy from four hospitals the debts owed by the Sickness Fund to the hospitals in the amount of 60,000,000 Polish zlotys (PLN) provided that the company won its case against the Fund. The applicant company sought payment of the above-mentioned sum together with interest, which amounted to PLN 89,316,240 (approximately 22,000,000 euros (EUR)). The hospitals claimed that the Fund should be liable for paying the cost of medical treatment that had exceeded the contract that every hospital had negotiated with the Fund but which had been necessarily sustained by them in providing medical services to insured persons.
7. The applicant company also asked for exemption from court fees, submitting that it had been involved in several court disputes in order to claim debts for medical services.
8. On 12 March 2002 the Wrocław Regional Court partly allowed the claim and exempted the company from court fees in excess of PLN 50,000 (EUR 12,000). The court examined the profit generated by the company and found that the assets deposited in its bank account amounted to PLN 50,000. Moreover, in December 2001 the president of the board had received PLN 43,000 as payment for an unknown service. The court thus concluded that the company had been able to pay this amount of court fees without damaging its operation.
9. On 27 September 2002 the Wrocław Regional Court dismissed the action. The court agreed with the arguments of the defendant, who had refused liability for costs in excess of the amounts agreed in the contracts between the Fund and the hospitals. The court established that the contracts had not been renegotiated and had remained valid, which excluded the Fund’s liability for expenses sustained by the hospitals that exceeded the contracts.
10. The applicant company lodged an appeal against the judgment.
11. On 4 November 2002 the Wrocław Regional Court ordered the applicant company to pay a further PLN 50,000 in court fees for pursuing its appeal. On 8 November 2002 the applicant company applied for an exemption from those fees, claiming that the company had already been exempted from fees and should not be ordered to pay any more at the appeal stage. In its supplementary documents the applicant company submitted that the company did not have the required sum of money in its bank account and that previously it had had to borrow from a private individual. The company was small and new on the market, thus it would not be able to obtain a bank loan. In sum it had not been possible for it to pay a further PLN 50,000 and the refusal to exempt it from court fees would amount to a violation of its right to court.
12. On 26 November 2002 the Wrocław Regional Court dismissed the application for exemption from the court fees. The court established that the monthly turnover of the company had reached PLN 30,000 (EUR 7,500) although in its bank account it only had PLN 3,000. The court, in one point of its reasoned decision, found that the company had generated over PLN 230,000 gross income (przychód), but it had then taken this amount to be net profit (dochód). The court also acknowledged that the applicant company had declared costs and expenses in the amount of about PLN 500,000, and thus generated a net loss. In sum, the court concluded that the company must have had other sources of revenue which would make it possible to pay the court fees.
13. The applicant company appealed against the decision, pointing to the difference between gross and net income. The applicant company maintained that it had been generating no profits but high net losses. The sum of PLN 230,000 was gross income, from which costs and expenses should be subtracted to yield the net loss. It had been a mistake on the part of the court to take this sum to be the net profit.
14. On 19 December 2002 the Wrocław Court of Appeal (Sąd Apelacyjny) dismissed the applicant company’s appeal. The court considered that the applicant company had been conducting its business activity and producing gross income. The fact that the company declared high costs for its activity had not justified exemption from court fees as it had freedom to spend its gross income as it chose. The court fees should be considered as one of the costs of its business activity.
15. On 30 April 2003 the Wrocław Regional Court rejected an appeal by the applicant company on grounds of inability to pay the court fees. An appeal by the applicant company against this decision was dismissed on 30 May 2003.
16. On 16 April 2003 the applicant company lodged a constitutional complaint against the provisions governing the imposition of court fees and exemptions from them.
17. On 3 September 2003 the Constitutional Court refused to hear the constitutional complaint.
18. On 4 February 2004 the Constitutional Court dismissed an appeal by the applicant company against the above decision.
19. The applicant company made another unsuccessful attempt to challenge the constitutionality of the provisions governing court fees. However, on 5 May 2004, the Constitutional Court, in a final decision, refused to hear the second constitutional complaint.
20. On 20 December 2002 the Olsztyn Regional Court dismissed a civil claim for payment lodged by the applicant company against the National Health Fund (Narodowy Fundusz Zdrowia). The applicant company lodged an appeal.
21. On 30 June 2003 the Bialystok Court of Appeal dismissed the applicant company’s appeal.
22. On 14 January 2004 the Supreme Court dismissed a cassation appeal lodged by the applicant company.
23. The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland, no. 73547/01, §§ 2939).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-115463
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: WEINZINGER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 1. The applicant, Mr Johann Weinzinger, is an Austrian national who was born in 1950 and lives in Katsdorf. He is represented before the Court by Mr B. Scharmuller, a lawyer practising in Linz.
2. The Austrian Government (“the Government”) are represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant worked for the V. company as head of the customs duties department from 1999 to 2001.
5. In 1999 and 2000 the Linz Main Customs Office (Hauptzollamt) carried out inspections at three subsidiary companies owned by the V. Company because it suspected irregularities in connection with the payment of customs duties.
6. By letters dated 30 June 2000 and 5 February 2001, the Main Customs Office notified the applicant that criminal proceedings for financial offences had been instituted against him on suspicion of negligent evasion of customs and import duties. As the applicant was responsible for the customs declarations of the V. company and its subsidiaries, the proceedings were directed against him. The applicant was asked to submit written statements within two weeks.
7. The applicant gave information in an oral statement and had his lawyer submit two written statements, that included the applications to discontinue the proceedings, on 31 July 2000 and 19 February 2001. The Main Customs Office did not respond to these statements.
8. By a letter dated 15 April 2008 the applicant was summoned to a hearing before the Linz and Wels Main Customs Office as the criminal authority of first instance in financial matters (Zollamt Linz Wels als Finanztrafbehörde I. Instanz). The subject matter concerned the alleged financial criminal offences notified to the applicant on 30 June 2000 and 5 February 2001.
9. The hearing was held on 15 May 2008 before the panel dealing with the case (Spruchsenat beim Zollamt Linz Wels als Organ des Zollamtes Linz als Finanzstrafbehörde I. Instanz). Certain of the customs duties the applicant was charged with having negligently evaded were found to be time-barred. As regards the remainder of the charges, the panel decided to discontinue the proceedings having found that the applicant had neither acted negligently nor against the law. The decision was served on the applicant’s counsel on 17 June 2008.
10. Under Article 130 of the Federal Constitution (Bundes-verfassungsgesetz), the Administrative Court rules on, inter alia, applications (Beschwerden) in which it is alleged that the administrative authorities have breached their duty to decide.
11. Article 132 of the Federal Constitution, in its relevant part, reads as follows:
“An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty. An action for breach of the duty to decide is inadmissible in administrative criminal proceedings, except private prosecutions and prosecutions in respect of tax offences.”
12. Section 73 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) deals with the administrative authorities’ duty to decide. Its relevant part reads as follows:
“(1) Subject to any contrary provision in the administrative regulations, the authorities must give a decision on applications by parties ... and appeals without unnecessary delay and at the latest six months after the application or appeal has been lodged.
(2) If the decision is not served on the party within this time-limit, jurisdiction will be transferred to the competent superior authority upon the party’s written request ...”
In proceedings under the Tax Offences Act an application for transfer of jurisdiction to the superior authority is not possible.
13. Section 27 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), relating to applications against the administration’s failure to decide reads as follows:
“An application under Article 132 of the Federal Constitution for breach of the duty to decide (application against the administration’s failure to decide) can be lodged only when the highest authority to which an application can be made in administrative proceedings, either by way of an appeal or an application for transfer of jurisdiction, ... has been applied to by a party and has not made a decision on the matter within six months ...”
14. According to a judgment of the Constitutional Court of 30 September 1989 (published in the official collection of that court’s decisions, VfSlg 12167/89), the Administrative Court may also receive applications against the administration’s failure to decide under Article 132 of the Federal Constitution, taken in conjunction with section 27 of the Administrative Court Act, where an authority of first instance has failed to give a decision within the statutory six-month time-limit, provided that no other remedy (such as a request for a transfer of jurisdiction) lies against the failure to decide (see Basic v. Austria, no. 29800/96, § 27, ECHR 2001-I).
15. The competence of the tax authorities as regards proceedings relating to tax offences and the conduct of these proceedings are regulated by the Tax Offences Act (Finanzstrafgesetz).
16. Section 57 of the Tax Offences Act, as in force at the relevant time, stated that proceedings regarding tax offences had to be conducted by the authorities proprio motu and that evidence on behalf of the defendant had to be taken into consideration as much as evidence against the defendant. It further stated that defendants not represented by counsel had to be properly advised and supported by the tax authority conducting the proceedings.
17. On 1 January 2008 an amended section 57 of the Tax Offences Act entered into force that added a new paragraph 6 stating that proceedings regarding tax offences had to be conducted speedily and without any unnecessary delays and had to be terminated within a reasonable time. It further introduced a remedy against delays of the first-instance authority in deciding: the defendant could lodge an application with the chairman/chairwoman of the competent appeal panel of the Independent Finance Panel (Unabhängiger Finanzsenat) for the setting of a reasonable time-limit for the first instance tax authority to proceed.


ITEMID: 001-76097
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF COKAN v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1946 and lives in Ponikva.
6. On 25 January 1996 the applicant was injured in an accident at work. The applicant’s employer had taken out insurance with the insurance company ZT.
7. On 4 November 1996 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,304,324 tolars (approximately 9,600 euros) for the injuries sustained.
At an undetermined time in 1998, the judge presiding the case was appointed to the Celje Higher Court and the case was transferred to a new judge.
On 12 November 1997 and 19 January 1998, the applicant requested that a date be set for a hearing.
Between 4 May 1998 and 24 May 2000, the applicant lodged four preliminary written submissions and/or adduced evidence.
Of the six hearings held between 5 May 1998 and 30 May 2000, none was adjourned at the request of the applicant.
During the proceedings, the court appointed three medical experts.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 13 July 2000.
8. On 25 July 2000 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed.
On 4 July 2001 the court dismissed both appeals.
The judgment was served on the applicant on 29 august 2001.
9. On 14 September 2001 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 4 July 2002 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 10 September 2002.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5238
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: UNION NATIONALE (TOURISM AND SEA RESORTS) LTD and OTHERS v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants are thirty-three enterprises and individuals who are the owners and operators of hotel units and hotel apartments in Limassol. Their names are as follows : Kanika Hotels Ltd, Pavemar Hotel and Tourist Enterprises Ltd, Serendipity Ltd, C. Kynigis Hotels Ltd, Amathous Navigation Co. Ltd, Delkirtzis Tourist Enterprises Ltd, Nikolaou Bros Tourist Enterprises Ltd, Blue Med Hotels Ltd, Tamasos Hotel Enterprises Ltd, N. Karantokis Holdings Ltd, Stelios Mylonas, Xenodohiakai Epiheiriseis Plaza Ltd, Georgios F. Sykopetritis, Lanitis Tourist Enterprises Ltd, Suncoast Management Ltd, S. Akarnitis and Kyriakou Co. Ltd, Christis Doritis, Galatia Michael, Kachiricon Ltd, E.O.E. Tourist Enterprises Ltd, Lordos and Anastasiades Ltd, Lordos and Florentides Ltd, Lordos and Kasinos Ltd, Dimitris Lordos Ltd, Lordos and Epiphaniou Ltd, Union Nationale (Tourism and Sea Resorts) Ltd, the Chartered House Estate Ltd, Avenida Tourist Enterprises Ltd, Spyros Neocleous (Romios), Christakis Charalambous, K. and L. Estates Ltd, Old Bridge Hotel Apartments Ltd and Best Leisure Hotels Ltd.
They are represented before the Court by Mr M. A. Triantafyllides, Mr G. P. Kakoyiannis and Mr P. Pavlou, lawyers practising in Nicosia.
s, may be summarised as follows.
Under the Limassol-Amathounta Sewage Regulations 99/91 of 1991 and Appendix I thereto, based on Article 49 of the Sewage System Law 1/71 of 1971, hotels and hotel apartments were charged with sewerage fees at the rate of 7/100 of a cent for every pound of the assessed value of each building, whereas all other buildings in the same area were charged with fees at the rate of only 1,8/100 of a cent for every pound of the assessed value.
Thirty-nine owners of hotels in Limassol, including the applicants, lodged an application with the Supreme Court, sitting at first instance, seeking a ruling that Regulations 99/91, and in particular Rule 32, as well as the decision of the Board of the Sewage System of Limassol-Amathounta (SALA) rendering the applicants liable to pay their contribution for 1991, were unconstitutional, illegal and invalid. The applicants argued that SALA acted ultra vires because Rules 32 and 33 and Appendix I fell outside the scope of Law 1/71.
By a judgment of 20 December 1991, the Supreme Court rejected the application considering that the above matter was a regulation and not an administrative decision concerning specific individuals, and thus could not be subject to judicial review according to Article 146 of the Constitution.
The applicants appealed to the Supreme Court, sitting as an appeal court, which on 29 March 1996 quashed the judgment of 20 December 1991. The Supreme Court considered that Appendix I to Regulations 99/91 constituted an executory administrative act which could be challenged under Article 146 of the Constitution.
On 17 January 1997 the Supreme Court, ruling on the merits of the case, considered that the applicants’ submission that Article 30 of Law 1/71 was limited to contributions of a repayment character was unfounded. The court referred to a previous judgment (Loizou v. the Board of the Sewage System of Nicosia) in which it had held that “the rates in this case were plainly a tax. They constituted a compulsory exaction of money by a public authority for public purposes, enforceable by Law and were not a payment for services rendered”. Article 30 did not link the power to levy a charge with the immediate availability of sewage services but expressly extended this levy to owners or occupants of immovable property which would benefit in the future from such services. Thus by levying a charge, after the initiation of works for a sewage system but before its completion, SALA had not acted ultra vires. The distinction made by the Rules between owners of hotels and hotel apartments, on the one hand, and owners of apartments in ordinary blocks of flats on the other was triggered by Article 30 of the Law 1/71, which permitted the imposition of different fees according to the nature of the property. This difference had been acknowledged in the case of Philippa Estates Ltd and Others v. SALA. The Supreme Court had then held that such a distinction was not only legally justified but also fair, having regard to the use and the benefits derived from the sewage system. Moreover, the number of tenants per square meter in hotel accommodation was, in comparison with other immovable property, much higher and, in proportion, the use of the sewage system was more extensive.
The case of Phillipa Estates Ltd and Others had been brought by certain hotel owners (including some of the applicants) who claimed that the decision on their liability to pay sewage charges for 1992 was unconstitutional. SALA had sent them notification of the charge and the hotel owners had refused to pay. They claimed that as SALA had not determined the fee due for 1992, it could not expect payment. Further, some parts of Law 1/71 were unconstitutional because they conflicted with Article 28 of the Constitution which provides for non-discrimination.


ITEMID: 001-72892
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: OSOIAN v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Lilian Osoian, is a Moldovan national who was born in 1973 and lives in Chişinău.
On 12 November 2002 the applicant lodged an action against the Ministry of Internal Affairs (the Ministry) with the Centru District Court, seeking compensation for damage to his health during his service.
On 11 February 2003 the Centru District Court ruled in favour of the applicant and ordered the Ministry to pay him 13,965 Moldovan lei (MDL) (the equivalent of 910.6 euros (EUR) as of 11 February 2003). The Ministry did not appeal and after fifteen days the judgment became final and enforceable.
On 3 June 2003 the applicant complained about the non-enforcement of the judgment in his favour to a bailiff. On 17 June 2003 the latter informed the applicant, inter alia, that the enforcement warrant had been sent to the Ministry on 13 March 2003 and it could not be enforced due to lack of money.
On 30 September 2003 the applicant brought a new action against the Ministry of Internal Affairs, seeking compensation for inflation for the period of non-enforcement.
During the proceedings, on 5 December 2003, the Ministry complied with the judgment of 11 February 2003 and paid the applicant MDL 13,965.
On 19 December 2003 the Centru District Court dismissed the applicant’s action. It found, inter alia, that since the judgment in his favour had been enforced, the State could not be made subject to an additional obligation to pay him compensation. He appealed against it.
On 17 March 2004 the Chişinău Court of Appeal dismissed the applicant’s appeal. He did not lodge an appeal on points of law with the Supreme Court of Justice.
The relevant domestic law was set out in Sîrbu and Others v. Moldova, nos. 73562/01, 73565/01, 73712/01, 73744/01, 73972/01 and 73973/01, § 12, 15 June 2004.


ITEMID: 001-81910
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF CHEPELEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;No violation of P7-5
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1972 and lives in Uglich, Yaroslav Region.
7. On 22 December 1993 the applicant's wife gave birth to a daughter A.
8. In October 1995 the applicant moved from the City of Murmansk to Uglich in the Yaroslav Region to live with his parents.
9. In May 1996 the applicant's wife, still residing in Murmansk, began living together with another man, S.A., and in September 1996 brought divorce proceedings against the applicant.
10. On 12 November 1996 the competent court dissolved the marriage and awarded custody of their daughter to the mother.
11. On 21 February 1997 the applicant's former wife married S.A. On 14 December 1998 they had a child together.
12. At the end of 1998 or in the beginning of 1999 S.A. instituted proceedings before the Lenin District Court of the City of Murmansk (Ленинский районный суд г. Мурманска) seeking adoption of A. The court invited the applicant to join the proceedings as a third party and to submit his views on the matter.
13. In his reply to the adoption request, filed on 8 January 1999, the applicant stated that he was strongly opposed to the adoption. The child already had a father whom she knew. On three occasions he had sent money to support her and telegrams for holidays. Due to the distance of Uglich from Murmansk, as well as financial problems, he could not travel often to Murmansk to visit his daughter. After he had left Murmansk, he had seen her in January 1996. Furthermore, his former wife and mother-in-law had expressed their displeasure at his contacts with his daughter.
14. By a judgment of 9 March 1999 the District Court allowed S.A.'s application. The court observed:
“[S.A.] has lodged with the court an adoption request. In the reasons for his request, he stated that the underage child [A.], born on 22 December 1993, is living in Murmansk ... [S.A.] has been married to the child's mother, [O.A.] since 21 February 1997. They have one child from that marriage – a daughter ... who was born on 14 December 1998.
The child's father, [the applicant], has not lived with the child since September 1995. He lives in Uglich, in the Yaroslavl region. Since that time he has not participated in the child's upbringing or provided financial support. Since February 1997 the child's upbringing and financial support have been provided by [S.A.]. The child considers him her father, and is not aware of any other father.
[S.A.] requested authorisation to adopt the girl, who was to be assigned the first name [A.] and the patronymic [S.], and to be registered as her father.
He is aware of the consequences of adoption and the requirements made of an adoptive father.
At the court hearing, [S.A] spoke in support of his requests. He asked for authorisation to adopt [the child] without her father's consent, inasmuch as, without good reason, the latter was not providing for her upbringing or financial support. Throughout the entire period in issue, her father had sent a few telegrams with greetings, and in December 1997 he had sent 1,000 roubles, which he borrowed from his wife while travelling to Uglich. [S.A.] considers that adoption would be in the child's interests.
[O.A.] supported the adoption request. She explained that [the applicant] has not brought up the child since September 1995, and had left for his parents' home when the child was not yet two years old. He had left her with the child in Murmansk. He had not, and did not, provide financial support. He had sent 1,000 roubles, which he had borrowed when visiting Murmansk in 1996. She had not prevented [the applicant] from meeting the child or being involved in her upbringing. The child knew the applicant as her real father, and a father-child relationship had developed between them.
She considers that adoption would be in the child's interest.
A third party, the Leninsky Education Department, also supported the [adoption] request. It considers that adoption would be in the child's interest.”
15. The court held:
“Having heard the parties and witness statements, examined the written evidence in the case and heard the opinion of the prosecutor, who proposed that the application be granted, the court finds the application to be lawful and deserving of being granted.
Under Article 124 of the Family Code, adoption is allowed in respect of minors and only if it is in their best interest, taking account of the possibilities for securing their full physical, mental, spiritual and moral development.
Under Article 130 of the Family Code, parental consent for adoption is not required where, for reasons deemed inadequate by the court, the parents have not been living together with the child for more than six months and have failed to take care of and support him or her.
In the course of the judicial investigation, it was established that [A.] was born to [O.A.] and [the applicant] on 22 December 1993. At that time the parents were married to each other. In September 1995 [the applicant] decided to move his permanent residence to his parents' home in Uglich, Yaroslavl region. He did not take his wife and child with him. [O.A.] remained alone with the child in Murmansk.
In September 1996 she applied to the court for a divorce. On 12 November 1996 the marriage was dissolved.
The mother did not apply for maintenance payments for the child.
From May 1996 [O.A. and S.A.] lived together as though married. Since that time, [S.A.] has in effect been responsible for the child's upbringing and has also supported her financially.
The child calls him father, and considers him to be her father; she does not know her real father.
On 21 February 1997 [O.A. and S.A.] married. [They] subsequently changed the child's surname to [A.] so that the entire family would have the same surname.
November 1997: [the applicant] did not agree to changing the child's surname; a statement from him to this effect is held in her personal file at the Education Department.
[O.A. and S.A.] have a child from their marriage - a daughter ..., who was born on 14 December 1998.
The report on the child's living conditions states that the ... family lives in a comfortable three-roomed flat, and that all conditions have been met for the child's upbringing. She has a separate bedroom. She calls [S.A.] father. [S.A.] is described positively, and is healthy and responsible; he has not been deprived of his parental rights. The description of [S.A.] ascribes him positive personal qualities.
There are no contra-indications to adoption of the child on the basis of his health.
He has not previously been deprived of his parental rights. He is aware of the child's state of health.
The salary report makes it clear that the applicant earns 1,700-2,000 roubles per month. From the statements of [O.A. and S.A.] it is clear that the family is financially provided for.
The court has not established circumstances that would prevent the child's adoption by [S.A.] under Articles 127 and 128 of the Family Code.
In November 1998 the Education Department sent [the applicant] a letter, informing him that the question of his child's adoption was being decided.
[The applicant] did not submit a reply to that letter.
[The applicant] was invited by the court to join the case as a third party. He was ordered to submit an opinion on the [adoption] request. [The applicant] expressed his disagreement with the child's adoption, on the ground that she had a father. He had provided financial assistance to the child insofar as he was able and had sent telegrams for holidays and festivals. He had seen the child in January 1996. He could not see her more frequently since he lived in Uglich.
In the course of the judicial investigation, witnesses who were acquainted with the Chepelev family were questioned. Witnesses [L.] and [K.] explained that in September 1995 [the applicant] suddenly moved to his parents' home in Uglich. He did not take his wife and child with him. He left her with the child. She was obliged to work in order to support herself and the child. He did not provide financial assistance. Since 1996 [S.A.] in effect supported the child and brought her up. [The applicant] had not been in Murmansk since 1995. The child called [S.A.] father. She and [S.A.] had developed a father-daughter relationship.
[The applicant] submitted receipts for money payments: December 1997 - 1,000,000 roubles; December 1998 - 250 roubles; 8 May, unknown year - 2,000 roubles. [O.A.] denies that 2,000 roubles were received.
Receipts for the sending of holiday and festive telegrams were also submitted.
In addition, in January 1996, [the applicant], having come to Murmansk on business, met the child; [O.A.] does not dispute this.
[The applicant] did not participate in any other way in the child's life.
[The applicant] was not prevented from communicating with his child. [The applicant's] arguments to the effect that [O.A.] and her mother had prevented him communicating with the child have not been confirmed. [O.A.'s] mother lives outside the Murmansk region.
Having analysed the evidence set out above, the court concludes that [the applicant] failed to participate in his daughter's upbringing for more than six months and without good reason. In the court's opinion, 3,250 roubles as maintenance payments for a period of more than three years was insufficient for the child's upkeep. Equally, financial assistance for the child was not in itself enough. It was essential that the child's father communicated with the girl, brought her up, taught her something and took responsibility for her physical, spiritual and moral development. This was the main purpose of the parent's role. [The applicant] has not fulfilled his responsibilities with regard to the child's upbringing. [The applicant's] responsibilities have been assumed by [S.A.].
At present the child does not know her biological father. She considers [S.A.] to be her father.
In the court's opinion, even although he lived outside the [Murmansk] region, [the applicant] had an opportunity to contribute to the child's upbringing in some way: he could have taken the child for the summer, or simply to stay with her for a while, or he could have sent various presents, etc. If the child's mother had prevented him communicating with the child, he would have been entitled to protect his parental rights. However, [the applicant] did not attempt to take part in the child's upbringing.
In such circumstances, the court is obliged to conclude that [the applicant], without good reason, failed to participate in the child's upbringing for more than six months, and that therefore the adoption may be authorised without his agreement.
With regard to the [adoption] request, it is appropriate to grant it, in that adoption of the child would be in her best interest, bearing in mind that [S.A.] is able and willing to secure the girl's upbringing and development in full.”
16. In the operative part of the judgment the court ordered:
“- to agree to the adoption by [S.A.] of the underage child [A.], with conferment of the patronymic [S.] and to register the adopter as the father of the adopted child;
- to leave the child's surname, first name and date and place of birth without change;
- to maintain the mother's judicial relationship with the child.
...”
17. The applicant appealed against the District Court's judgment. The Murmansk Regional Court (Мурманский областной суд) dismissed the appeal and upheld the lower court's judgment on 19 May 1999. The Regional Court held:
“[The applicant] appealed against the [district court's] judgment, requesting that it be set aside and that the matter be sent for a fresh examination. He referred to the court's violation of the standards of substantive law, and alleged that the court had not believed his arguments and had not taken them into consideration.
Having listened to [S.A.], who asked that the [district] court's judgment be left unchanged, the prosecutor's conclusions, proposing that the appeal be dismissed, and having re-examined the evidence in the case and weighed up the appeal arguments, the bench finds the [district] court's judgment to be lawful and well-founded.
The [district] court correctly identified the circumstances having legal significance and, on the basis of the established facts, reached the correct conclusion about the parties' mutual relations.
In authorising the requests ..., the court correctly applied Article 124 of the Family Code (“children whose adoption is authorised”) and acted in the underage child's best interests.
Convincing reasons are cited in the judgment in confirmation of the conclusions that [S.A.] is able to guarantee the child the conditions necessary for her full physical, psychological and spiritual development.
The bench considers legally unfounded the appellant's arguments regarding the application to his daughter of the adoption procedure set out in the Family Code, which concerns children who have been left without parental care, as [A.] did not fall into that category of children.
The appellant's arguments are based on an incorrect interpretation of the law.
In accordance with Article 130 of the Family Code, the [district] court also examined the reasons why the appellant “does not live jointly with the child and has neglected her upbringing and maintenance for more than six months”, and found them to be inadequate.
The reasons for the [district] court's conclusions are provided and confirmed by the evidence. The court evaluated the latter in accordance with the requirements of Article 56 of the Code of Civil Procedure.
[The applicant] did not submit persuasive evidence to the first-instance court in support of his objections to the request. In addition, the statements made to the appeal court by [V.] and [the applicant] do not meet the requirements laid down for evidence in civil proceedings.
Having failed to find grounds in the appeal arguments that would enable it to set aside the [district] court's judgment, and pursuant to Article 305 of the Code of Civil Procedure, the bench decides:
to leave unchanged the judgment of the Leninsky District Court, Murmansk, dated 9 March 1999, and to dismiss the appeal submitted by [the applicant].”
18. On 22 March 2000 a judge of the Supreme Court rejected the applicant's request for leave to file an extraordinary appeal.
19. According to Article 124(2) of the Family Code, adoption is allowed in respect of minors and only if it is in the best interest of the child, taking account of the possibilities to secure the child's full physical, mental, spiritual and moral development.
20. Article 130 of the Family Code provides that parental consent for adoption is not necessary if, for reasons deemed inadequate by the court, the parents have not been living together with the child for more than six months and have failed to take care of and support him or her.
NON_VIOLATED_ARTICLES: 8