ITEMID: 001-103866
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF VISTINS AND PEREPJOLKINS v. LATVIA
IMPORTANCE: 3
CONCLUSION: No violation of P1-1;No violation of Art. 14+P1-1
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Lech Garlicki;Luis López Guerra
TEXT: 6. By contracts signed in 1994, in respect of donations inter vivos, the applicants became the owners of a number of plots of land on the island of Kundziņsala. This island, situated close to the mouth of the Daugava River, is part of the city of Riga, to which it is connected by a road-bridge and a railway line. It mainly consists of port facilities, with a small residential area in its southern part.
7. The donors were the heirs of the legitimate owners of the land in question, which had been unlawfully expropriated by the Soviet Union after 1940. They had recovered ownership in the context of the “denationalisation” process in the early 1990s. According to the applicants’ explanations, not contested by the Government, all the donations had been made in return for certain personal services that the applicants had rendered to the donors. Thus, the second applicant became the owner of four plots of land measuring 18,620, 11,000, 10,970 and 7,150 sq.m respectively. The donor of the first plot of land gave it to him by way of remuneration for having helped her to complete the formalities to obtain restitution of her nineteen properties located throughout Latvia. The donor of the second plot had apparently been a longstanding friend of the second applicant, whilst the other two plots were given to him as a token of gratitude because he had covered the cost of expensive heart surgery for the donor. As to the first applicant, he obtained a plot of land measuring 17,998 sq.m. in return for undisclosed services rendered.
8. Each of the above-mentioned contracts stipulated the value of the land in question. The parties agree that the said value was not the cadastral value (that is to say the reference value for the calculation of land tax), but merely an indicative sum solely for the purposes of calculating the registration tax, which at the time represented 10% of the property’s value. The contracting parties thus valued each plot of land at 500 Latvian lati (LVL; about 705 euros (EUR)), except for that of 10,970 sq.m., which was valued at LVL 1,000 (about EUR 1,410). In addition, the applicants paid LVL 0.25 in notary’s tax. However, they were not obliged to pay income tax, as gifts between individuals were not liable for such tax.
9. Shortly afterwards, in 1994, the Land Registry Division of the city of Riga (Rīgas pilsētas Zemesgrāmatu nodaļa) entered the applicants in the land register as owners of the plots of land in question. In addition, in accordance with the law applicable at the time (see paragraph 49 below), they were exempted from the payment of land tax (zemes nodoklis) for a period of six months following the acquisition, that is to say until the end of 1994.
10. On 15 August 1995 the Council of Ministers adopted Regulation no. 278 fixing the perimeter of the Port of Riga (Noteikumi par Rīgas ostas robežu noteikšanu). In accordance with that Regulation, all the plots of land owned by the applicants were included within the port’s perimeter. That inclusion was confirmed by the Free Commercial Port of Riga Act (Rīgas tirdzniecības brīvostas likums), enacted on 6 November 1996. Under that Act, all the privately-owned land situated within the port’s boundaries became subject to a servitude for the benefit of the public corporation responsible for the port’s management. In return, the corporation was to pay the owners an annual compensation of not more than 5% of the cadastral value of the plots of land.
11. In January 1996 the applicants requested the Real Estate Valuation Centre of the State Land Authority (Valsts Zemes dienesta Nekustamā īpašuma vērtēšanas centrs) to determine the current cadastral value of their respective plots of land. In five letters of 15 January 1996, the Centre certified that the value amounted to LVL 564,410 (about EUR 900,000) for Mr Vistiņš; as for Mr Perepjolkins, the cadastral value of his plots of land amounted to LVL 285,830, 767,724, 769,824 and 1,303,102 respectively, representing a total of LVL 3,126,480 (about EUR 5,010,000).
12. On 11 June 1997 the administration of the Free Commercial Port of Riga applied, in turn, to the Valuation Centre, requesting it to calculate the amount of compensation that would have to be paid to the applicants in the event of expropriation of their land, in accordance with Article 2 of the Supreme Council’s decision on the arrangements for the entry into force of the law on the expropriation of real estate in the public interest (the “General Expropriation Act”, enacted in 1923). That Article – which was applicable inter alia to the applicants – limited the amount of the compensation to be paid to the owners of certain land that was to be expropriated; the compensation would not exceed the cadastral value of the land as fixed on 22 July 1940, multiplied by a conversion coefficient.
13. On 12 June 1997 the Centre issued two certificates stating that the first applicant would receive LVL 548.26 (about EUR 850) for his 17,998 sq.m. of land, and the second LVL 8,616.87 (about EUR 13,500) for his land, of which the total surface area came to 47,740 sq.m.
14. By Regulation no. 273 of 5 August 1997, which was adopted in the context of delegated legislative authority (see paragraph 31 below) and which entered into force on 9 September 1997, the Council of Ministers ordered the expropriation of all the land in question for the benefit of the State. On 30 October 1997 that measure was confirmed by Parliament, which enacted a special law for that purpose (see paragraph 42 below). Under that law Mr Vistiņš and Mr Perepjolkins were to be paid compensation for the expropriation, which would be deemed completed once the sums had been paid into their current accounts.
15. On 8 May 1998 the Latvian Land and Mortgage Bank (Latvijas Hipotēku un zemes banka) opened current accounts in the names of each of the applicants. On 14 October 1998 that bank officially certified that the above-mentioned sums of LVL 548.26 and LVL 8,616.87, awarded to the applicants by way of compensation, had actually been paid into the two accounts. The applicants, however, refused to make use of those sums in any way. Following the payment, by two orders of 17 and 20 November 1998 the Riga Land Registry Court (zemesgrāmatu tiesnesis) ordered that the title to the expropriated land be registered in the name of the State. No tax was levied on the above-mentioned sums.
16. In 1998 the second applicant brought two sets of proceedings to obtain rent arrears for the use of his land. In the first proceedings, against the Riga Port Authority and the Free Commercial Port of Riga, he requested the payment of sums due under the lease for the period from 21 April 1994 to 31 March 1996. In a judgment of 15 October 1998, upheld in cassation proceedings on 6 January 1999, the Regional Court of Riga ordered the Free Port to pay the second applicant LVL 278,175 (about EUR 448,150) for the use of his land during the period in question.
17. The second applicant subsequently filed a new claim against the Free Port seeking the payment of rent arrears for the period after 1 April 1996, together with compensation for a servitude imposed on his property. On 18 March 1999 the Civil Division of the Supreme Court partly upheld his claim, awarding the applicant the sum of LVL 90,146.84 (about EUR 145,000 ) on that basis, as the rent represented 2% of the current cadastral value of the land. In fixing that amount the Civil Division particularly took into account the fact that the second applicant had not invested in any development of the land in question. It further indicated that the applicant’s title to the property had ceased on 9 September 1997, when the expropriation had become effective. In a judgment of 12 May 1999 the Senate of the Supreme Court upheld the judgment of the Civil Division.
18. The first applicant, Mr Vistiņš, brought similar proceedings. In a judgment of 9 June 1999 the Civil Division ordered the Free Port to pay him LVL 53,036 (about EUR 85,000) in rent arrears for the period from 1994 to 1997.
19. In January 1999 the applicants sued the Transport Ministry (Satiksmes ministrija) before the Regional Court of Riga. In their pleadings they requested the annulment of the cadastral registration of the State’s title, and the restoration, in the land registers, of the previous entries attesting to their ownership of the land in question.
20. In support of that claim, the applicants alleged that the General Expropriation Act provided for a uniform procedure: after the enactment of the special law of 30 October 1997, the Transport Ministry was required first to start negotiations with them with a view to reaching a friendly settlement as to the amount of the compensation (section 5 of the General Expropriation Act); if those negotiations failed, the Ministry would have to refer the matter to the court of competent jurisdiction for settlement of the dispute (section 9). That procedure had not been followed in the present case. The applicants particularly emphasised the fact that they were not satisfied about the sums paid by way of compensation and that they were deprived of their right to challenge those sums before a court. In this connection, the applicants pointed out that the orders of the Land Registry Court had been made in the absence of any prior final judgment concerning the amount of the compensation; they thus argued that the orders did not comply with section 18 of the General Expropriation Act. The applicants submitted that the expropriation in general and the transfer of title in particular had been carried out in breach of that Act, thus directly entailing a violation of Article 1 of Protocol No. 1.
21. In a judgment of 29 March 2000 the Regional Court dismissed the applicants’ claims. According to the judgment, the expropriation was not based on the General Expropriation Act, as the applicants had claimed: since the measure in question had been decreed in the context of the Latvian land reform, the special law of 30 October 1997 was to be applied. Section 4 of that special law provided for two elements – the law itself and the payment of the compensation – which, taken together, formed a statutory basis for the transfer of title to the State. As the corresponding sums had been paid into the applicants’ accounts, both of those elements were present, and by registering the State as the new owner of the land in question, the Land Registry Court had acted in accordance with the law.
22. Moreover, the Regional Court pointed out that section 3(1) of the Law of 30 October 1997 on the calculation of compensation referred to Article 2 of the Supreme Council’s decision on the arrangements for the entry into force of the General Expropriation Act; that decision had been declared compliant with Article 1 of Protocol No. 1 by the Constitutional Court.
23. The applicants appealed before the Civil Division of the Supreme Court. In their appeal, they emphasised at the outset that they did not object to the expropriation as such, provided that the statutory formalities were observed and the amount of the compensation was reasonable. This had not been the case, however; in particular, no expert’s report had been ordered for the purpose of determining the actual value of the disputed land (section 16 of the General Expropriation Act). The applicants did not challenge the Regional Court’s finding that the Law of 30 October 1997 constituted a lex specialis in relation to the general law; they argued, however, that the said law could not be interpreted as derogating from the normal expropriation procedure. Consequently, by recognising the State’s title without having received a copy of a judgment determining the amount of the compensation, the Land Registry Court had acted illegally.
24. In a judgment of 28 September 2000 the Civil Division dismissed the appeal, essentially endorsing the reasoning and findings of the judgment appealed against. Since the applicants had criticised the compensation awarded, it pointed out that the sums had been determined in accordance with Article 2 of the above-mentioned Supreme Council decision. If the applicants had considered that the calculation by the State’s Land Authority had been erroneous and that the relevant coefficients had been incorrectly applied, they could have challenged the calculation in separate proceedings, but had not done so.
25. The applicants lodged a cassation appeal before the Senate of the Supreme Court. In their appeal, they submitted that the direct and immediate object of their claim was not to challenge the calculation of the compensation as such, but rather the fact that they had not been able to have the sum fixed through fair judicial proceedings, as required by the General Expropriation Act. If such proceedings had taken place, they would have been able to provide the court with evidence of their investments in respect of the land in question. Moreover, the applicants pointed out that they were not entitled to initiate such proceedings themselves, as section 9 of that Act reserved that right for the authorities.
26. In a judgment of 20 December 2000 the Senate dismissed the applicant’s appeal on the same grounds as the Civil Division.
27. In the meantime, on 17 August 2000, the State had granted the use of all the plots of land in question to a private transport company, B., from which it has been receiving rent to date.
28. On 9 December 1999 the Finance Department of the Municipal Council of Riga notified the first applicant of a tax re-assessment, requesting him to pay the sum of LVL 18,891 in land tax in respect of the land in question, plus penalties, for the period from 1 January 1997 to 30 October 1997, the date of the expropriation. The first applicant challenged this before the Court of First Instance for the district of Ziemeļu, which upheld his claim and annulled the re-assessment. The Municipal Council appealed before the Regional Court of Riga, which, in a judgment of 10 January 2003, upheld the annulment of the re-assessment. According to that judgment, the land tax was attached to a plot of land and not to a specific individual; therefore, it could be paid by someone other than the owner. In that case, to the extent that it was the first applicant’s land, the tax had already been paid by the public corporation that was responsible for the port’s management and was using the land on the basis of a servitude. The Municipal Council lodged a cassation appeal with the Senate of the Supreme Court, which dismissed it in a judgment of 19 March 2003.
29. As to the second applicant, on 22 January 1999 the Finance Department of the Municipal Council of Riga notified him of a tax re-assessment for LVL 78,382, penalties included, for the year 1997. The applicant brought annulment proceedings before the court of competent jurisdiction, which upheld his claim. The Municipal Council appealed and on 26 February 2002 the Regional Court of Riga annulled the judgment of the Court of First Instance, finding that the second applicant’s land was not part of that for which the public corporation had paid land tax. That judgment was upheld at cassation level. However, in September 2003 the Senate of the Supreme Court re-opened the proceedings on account of newly discovered facts. The case file was sent to the Administrative Court of Appeal, which, in a judgment of 15 July 2005, upheld the second applicant’s claim and annulled the disputed re-assessment on the ground that the port management company had already paid land tax for the land in question. On 7 February 2006 the Senate of the Supreme Court, ruling on a cassation appeal, upheld that judgment. The second applicant was therefore not obliged to pay any supplementary tax on his land.
30. Article 105 of the Latvian Constitution (Satversme) provides as follows:
“Everyone has a right of property. Property may not be used for purposes contrary to the interests of society. Property rights may be restricted only as provided by law. Forced deprivation of property for the need of society shall be authorised only in exceptional cases, on the basis of a special law and in return for fair compensation.”
31. Article 81 of the Constitution (repealed in 2007) entrusted the Council of Ministers with delegated and limited legislative power. At the time of the expropriation of the land in question, this provision read as follows:
“Between two legislative sessions, the Council of Ministers shall be entitled, in cases of pressing need, to adopt regulations with statutory force. Such regulations may not amend either the law on parliamentary elections, the laws on judicial organisation and procedure, the Budget Act or budgetary law, or laws enacted by the sitting legislature; nor may they regulate amnesty, the issuance of Treasury bills, taxes levied by the State, Customs, railway fares and loans, and they lapse if they are not submitted to Parliament no later than three days after the opening of the following legislative session.”
32. The first paragraph of section 12 of the Law of 20 November 1991 on land reform in the cities of the Republic of Latvia (Likums “Par zemes reformu Latvijas Republikas pilsētās”) originally read as follows:
“In all ... cases, where the original owner’s land has [in the meantime] been built upon, or where, in accordance with urban planning and construction projects it is intended to erect thereon constructions necessary to satisfy the needs of society, the former owners of the land or their heirs shall be entitled, as they choose:
to claim restitution of their property title and to obtain from the owner of the building or construction ... the payment of rent, of which the maximum amount shall be fixed by the Council of Ministers ...; or
to request that they be granted the right of ownership or use of another plot of land of the same value, situated within the administrative boundaries of the same town, depending on the type of use projected for the said land; or
to receive compensation in accordance with the statutory conditions.”
33. A law of 31 March 1994 imposed restrictions on the restitution of land on which certain constructions or facilities have been erected. It thus amended the above-mentioned wording as follows:
“Former property owners or their heirs shall recover their title to land that previously belonged to them, except:
...
(3) Where, on the land of the former owners, there can be found ... facilities or infrastructures of civil engineering and transport ..., [for example] of ports. The title to the land is then registered in the name of the State or the local authority concerned; as to the former owners and their heirs, they shall be entitled, as they choose, to request that they be granted title to another plot of land of the same value and situated within the administrative boundaries of the same town, or otherwise to receive compensation in accordance with the statutory conditions.”
34. A law of 24 November 1994 amended that provision as follows:
“Former property owners or their heirs shall recover their title to land that previously belonged to them, except:
...
(3) Where, on the land of the former owners, there can be found ... facilities or infrastructures of civil engineering and transport ..., [for example] of ports. The title to the land is then registered in the name of the State or the local authority concerned, after the former owners or their heirs have, as they choose, and in accordance with the statutory conditions, received land of the same value situated elsewhere ... or [monetary] compensation. If it is impossible to reach an agreement with the former owner of the land, or his or her heir, as to the compensation or to the allocation of another plot of land of the same value, the land shall then be expropriated in accordance with the conditions laid down in the law on the expropriation of real estate on public interest grounds.”
35. The law of 12 October 1995 reformulated the above-mentioned provision, deleting the last sentence concerning the expropriation of land. The next law, which was enacted on 8 May 1997 and which entered into force on 6 June 1997, added to the said paragraph a note that read as follows (having the same statutory force as the provision itself):
“Note: Where the former owners of the land or their heirs possess dwellings on the territory of a port, they are entitled to recovery title to that land to the extent that they have the lawful use thereof; [the surface area of such land] must not, however, exceed 1,200 square metres, except for the residential area of Kundziņsala Island which forms part of the territory of the Free Commercial Port of Riga and where the former owners and their heirs are granted restitution of their title in respect of the entire surface area of the land that belonged to them in the past.”
36. At the same time a new paragraph was inserted into section 12. It reads as follows:
“Where the former owners of the land or their heirs have recovered title to land on which are erected any facilities referred to in point 3 of the first paragraph of the [present] section ..., the annual amount of the rent for the land shall not exceed five per cent of the land’s cadastral value”.
37. Section 19(5) of the Ports Act of 22 June 1994 (Likums par ostām) reads as follows:
“Restrictions on the restitution of property title, as established by section 12 of the law on land reform in the cities of the Republic of Latvia, shall not apply to land incorporated within the territory of the Port de Riga after 20 April 1994 ... Former owners (or their heirs) who, as at 21 July 1940, possessed a plot of land situated on the current territory of the port, and whose title to the land has been recognised ... but has not been restituted on account of the statutory restrictions, shall be entitled to receive a plot of land of the same value or to be compensated in the form of property compensation certificates, in accordance with the legal instruments governing land reform.”
38. Regulation no. 171 of 6 May 1997 on the calculation of compensation to be awarded to former landowners and their heirs, and on the fixing of payments in respect of land of which ownership has been transferred in cities (Noteikumi par kompensācijas aprēķināšanu bijušajiem zemes īpašniekiem vai viņu mantiniekiem un maksas noteikšanu par īpašumā nodoto zemi pilsētās) was adopted on the basis of the law on land reform in the cities of the Republic of Latvia. Article 8 of the Regulation reads:
“Where persons claiming compensation are not satisfied with the compensation amount calculated [by the State Land Authority], they shall be entitled to submit their complaint to the courts”.
39. At the material time, and up to 1 January 2011, measures of expropriation were governed by the Expropriation (Public Interest) Act (Likums “Par nekustamā īpašuma piespiedu atsavināšanu valsts vai sabiedriskajām vajadzībām”), which was first enacted in 1923 and which re-entered into force on 15 September 1992. The relevant sections of that Act read as follows:
“Expropriation of real estate in the public interest shall be authorised only in exceptional cases, always with payment of compensation and on the basis of a special law.”
“The proposal to expropriate ... shall be made by the government on the basis of an opinion by the relevant administrative body or local authority, where the institution in question is unable to acquire the real estate by means of an agreement with the owner. The proposal must include information about the real estate to be expropriated and the justification for the expropriation.”
“After the [expropriation] law has been enacted, the institution that proposed the expropriation shall approach the owner with a view to entering into a [friendly] agreement for the transfer of the real estate, and, as the institution sees fit, shall either offer compensation or propose to exchange [the real estate] for property of the same value.”
“Where compensation is determined by friendly agreement, or where the value of the expropriated real estate is compensated for by exchanging it for other property, the parties shall enter into a contract ...”
“Where [the parties] fail to reach an agreement, the case shall be examined by a court upon an application by the institution concerned.
After receiving the application, the court shall assign a bailiff to assess the value of the real estate, in the presence of the representative of the institution for whose needs the property is to be expropriated, together with the owner and three experts chosen by joint agreement between the parties ...”
“The institution by which the expropriation has been proposed shall submit to the court a statement indicating and justifying its assessment of the value of the real estate to be expropriated. Copies of the statement shall be served on the owner of the real estate and to any mortgage creditors of the owner ...”
“The value shall be assessed according to local prices and the specific circumstances of the relevant property. Should the owner so request, the assessment shall also take into account its profitability.
The profitability of real estate shall be assessed on the basis of information supplied by its owner. In such cases, the price of the real estate is determined by adding five per cent to the average net income from the real estate over the past five years, or, where the owner has held it for less than five years, over the entire period of possession.”
“Before examining the case, the court shall summon the owner, the representative of the authority having proposed the expropriation and any mortgage creditors.
The court shall determine the compensation to be paid on the basis of experts’ opinions, either according to local prices or, where the owner so requests and the court finds such request reasonable, according to the profitability [of the property].
The court’s decision may be appealed against in accordance with the statutory procedure.”
“After the court’s decision pertaining to the expropriation of the real estate takes effect, the owner shall be paid the compensation determined and any interest at the rate fixed by the court; the interest rate shall not be lower than 6% per annum from the date of transfer of the property until the date of payment.”
“After the payment of compensation ..., the institution concerned shall transmit to the Land Registry Division a copy of the court’s decision together with a description of the real estate, for the purposes of its registration in the name of the State or local authority.”
40. The use of the term “a special law” in Article 105 of the Constitution and in section 1 of the 1923 Act indicates that each individual expropriation measure falls within the exclusive remit of the legislature, that is to say Parliament. As the Constitutional Court observed in its judgment of 16 December 2005, this is a specific feature of the Latvian legal system in comparison with that of other countries (see paragraph 48 below). In other words, there are always two legislative instruments: the general law, determining the rules of expropriation in general, and a special targeted law by which Parliament orders the expropriation of designated property in a specific case. As to the sum to be paid in compensation, it is fixed by friendly agreement or, failing that, by the courts (section 9 of the General Expropriation Act of 1923).
41. The relevant parts of Article 2 of the Supreme Council’s decision of 15 September 1992 on the conditions of the entry (or in reality, the re-entry) into force of the above-mentioned Act (Lēmums “Par Latvijas Republikas likuma ‘Par nekustamā īpašuma piespiedu atsavināšanu valsts vai sabiedriskajām vajadzībām’ spēkā stāšanās kārtību”), as inserted by the law of 19 December 1996, read as follows:
“Where, in the course of the land reform, an expropriation ... concerns real estate that is necessary for ... the maintenance and operation of ... transport infrastructures, [and where the object of the expropriation] is or must be subject to restitution to the former owner (or to the heirs thereof), the amount of the compensation shall be determined as a sum of money, according to the statutory procedure; however, it shall not exceed the value of the said real estate as fixed by the land registers or by cadastral records drawn up before 22 July 1940 and including an indication of the property’s value. The conversion coefficients to be applied to the value of the property, [converting] the prices from 1938-1940 (in pre-war lati) into current prices ..., shall be determined by the State Land Authority.
Where, after the restitution of title the owner has increased the value of the real estate, any investments related to the increase in value must also give rise to compensation. Similarly, compensation must be paid for any expenses reasonably incurred by the owner (heir) related to the restitution of the title (surveying, obtaining of information from records, etc.). Any expenses incurred in respect of the services of a representative must be restituted within the limits of the amounts actually paid; however, they must not exceed the scales of lawyers’ fees.
The expropriation procedures laid down by the present Article shall apply also to owners who have acquired property from the former owner (or heirs thereof) by way of donation.”
42. Regulation no. 273 of 5 August 1997 on the expropriation of land for the needs of the State within the Free Commercial Port of Riga was promptly submitted to Parliament, as required by Article 81 of the Constitution as then in force. On 30 October 1997 Parliament enacted the law on expropriation for the needs of the State of land within the Free Commercial Port of Riga (Likums “Par zemes īpašuma atsavināšanu valsts vajadzībām Rīgas tirdzniecības brīvostas teritorijā”), which used almost the exact wording of the Regulation. The law reads as follows:
“The expropriation, for the needs of the State, shall concern land within the territory of the Free Commercial Port of Riga, on Kundziņsala, along the bank of the Daugava, belonging to:
(1) Mr Genādijs Perepjolkins:
(a) for a surface area of 1.8620 hectares ...,
(b) for a surface area of 1.1000 hectares ...,
(c) for a surface area of 1.0970 hectares ...,
(d) for a surface area of 0.7150 hectares ...;
(2) Mr Jānis Vistiņš – for a surface area of 1.7998 hectares ...”
“The Transport Ministry shall be responsible for having the land referred to in section 1 hereof ... entered in the land register in the name of the State, represented by the Transport Ministry.”
“1o A current account shall be opened with the public corporation Latvijas Hipotēku un zemes banka [Latvian Land and Mortgage Bank] in the name of each of the landowners referred to in section 1 hereof; the compensation sums shall be paid into such accounts in accordance with Article 2 of the Supreme Council’s decision on the conditions of the entry into force of the Expropriation (Public Interest) Act.
2o The number of the current account shall be notified, by registered letter, to each of the beneficiaries of the compensation payment.”
“The land referred to herein shall be entered in the land register in the name of the State on the basis of the present Act and having regard to the confirmation from the Latvijas Hipotēku un zemes banka that the sums determined as compensation for the value of the properties have [effectively] been paid into the accounts of the persons mentioned in section 1 hereof.”
43. The law of 5 February 1997 on the expropriation of land for the needs of the State within the territory of the “Riga” State airport corporation (Likums “Par zemes īpašumu atsavināšanu valsts vajadzībām valsts lidostu uzņēmuma ‘Rīga’ teritorijā”) is almost identical in structure to that of the law mentioned previously. Sections 1 and 2 order the expropriation of the specific plots of land enumerated in the annexes to the law. Section 3 requires the Transport Ministry to have the State’s title entered in the land register, while the last two sections concern the conditions of payment of the compensation and the effective transfer of title.
44. To the extent that it is relevant to the present case, section 6 of the law of 6 November 1996 on the Free Commercial Port of Riga (Rīgas tirdzniecības brīvostas likums) provided as follows:
“(1) There shall be established hereby a personal servitude for the benefit of the public corporation ‘Commercial Port of Riga’, affecting the land of natural and legal persons ... that is occupied by the Free Port.
...
(6) The user of the land shall pay to its owner compensation for the use of the servitude; the amount of that compensation shall be determined by joint agreement, but it may not exceed five per cent per annum of the cadastral value of the land.”
...”
45. On 9 March 2000 Parliament enacted a new law pertaining to the Free Port of Riga (Rīgas brīvostas likums). It entered into force on 11 April 2000, superseding the previous one. Section 4(8) of this new law is identical to section 6(6) of the previous law.
46. Under Article 994, first paragraph, of the Civil Code (Civillikums), “[o]nly the person who is recorded in the land register as owner of real estate shall be recognised as such”. However, Article 1477, second paragraph, stipulates that “[r]ights in rem based on a law shall be effective even in the absence of an entry in the land registers”.
47. In a judgment of 30 April 1998 given in case no. 09-02(98), the Constitutional Court declared Article 2 of the Supreme Court’s decision on the conditions of entry into force of the General Expropriation Act (paragraph 41 above) compliant with Article 1 of Protocol No. 1. It observed, in particular, as follows:
“... 7. The second and fourth paragraphs of Article 2 of the decision do not deprive owners whose property has been expropriated in the public interest of their right to apply to the courts for a review of the determination of compensation. The second paragraph of Article 2 of the decision only establishes the upper limit of such compensation. Therefore, the argument ... that such persons are deprived of their right to judicial protection and to equality before the courts is unfounded. ...”
48. In a judgment of 16 December 2005, given in case no. 2005-12-0103, the Constitutional Court declared unconstitutional, null and void, the amendments to the General Expropriation Act in 2005. The relevant parts of that judgment read as follow:
“... (22) ...
(22-2) The fourth sentence of Article 105 of the Constitution provides that forced deprivation of property shall be allowed only in exceptional cases on the basis of a ‘special law’.
Expropriation not only on the basis of a law but ‘on the basis of a special law’ is to a certain extent a specific feature of the Latvian Constitution. Most Constitutions of European States envisage only that expropriation must be carried out on the basis of a law or in accordance with a procedure established by law.
The aim of Article 105 of the Constitution, pertaining to expropriation on the basis of a special law, is to protect the fundamental rights of the individual against any arbitrariness on the part of the administrative authorities. The word ‘specific’ here must not only be interpreted literally and grammatically, but must primarily be given a substantive meaning. When enacting such a ‘specific’‘exceptional case’ and whether it serves the needs of State or society; it must also ensure that the expropriation gives rise to fair compensation.
...”
49. Under section 9, first paragraph, of the law of 20 December 1990 on land tax (Likums “Par zemes nodokli”), as in force at the material time, a person acquiring land was exempt from the payment of land tax for six months from the date of acquisition.
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-58844
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF LAUNIKARI v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Georg Ress
TEXT: 8. The applicant is a minister of the Evangelical Lutheran Church of Finland. He held office as head of division in the Centre for Foreign Affairs of the Church (kirkon ulkomaanasiain keskus, kyrkans utrikescentral), when the National Church Board (kirkkohallitus, kyrkostyrelsen) began disciplinary proceedings and, on 19 February 1987, dismissed him from his office for having acted in breach of his official duties. The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) which, on 21 September 1987, rejected the appeal.
9. The applicant was impeached before the Helsinki City Court (raastuvanoikeus, rådstuvurätt) for an offence in office concerning the events that had been the grounds for his dismissal. The City Court and the Helsinki Court of Appeal (hovioikeus, hovrätt) rejected the charges on 15 December 1988 and 2 October 1990, respectively. None of the parties sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen).
10. On 17 October 1991, the applicant requested the Supreme Administrative Court to annul its decision of 21 September 1987 and to quash his dismissal from office. On 29 January 1993, the Supreme Court annulled its aforementioned decision, annulled the decision of the National Church Board of 19 February 1987 and returned the matter to the National Church Board.
11. On 1 April 1993 the National Church Board began to reconsider the disciplinary case and, on 11 June 1993, after having received a written statement from the applicant, decided as follows:
“1. the National Church Board decides that the disciplinary proceedings against [the applicant] will no longer be pursued and, thus, these proceedings expire;
2. the National Church Board finds that the termination of [the applicant’s] service, which became final on 21 September 1987, can no longer be considered as a disciplinary punishment;
3. the National Church Board finds that the office of head of division in the Centre for Foreign Affairs of the Church has been filled and, therefore, [the applicant] can no longer be reinstated in his former office;
4. the National Church Board finds that there is no possibility to offer [the applicant] another equivalent office;
5. the National Church Board finds that when it took its decision on 19 February 1987, there were weighty grounds as regards [the applicant’s] performance of duties for giving him a notice according to Section 14, subsection 2, points 3 and 4, of the Official Regulations Concerning the Officials in Special Duties of the Church (kirkon erityistehtävissä olevien viranhaltijain virkasääntö, tjänstestadga för anställda i specialuppgifter inom kyrkan 6.5.1981);
6. the National Church Board decides to pay [the applicant] compensation equivalent to the salary and other benefits of period of notice at the date of the termination of his service, i.e. 19 February 1987, with sixteen per cent annual interest;
7. the National Church Board finds that there is no need to hold an oral hearing, which [the applicant] had requested, nor to receive further observations from [the applicant].”
12. The above decision did not contain any notice of appeal. On 22 June 1993, the applicant’s lawyer was sent a separate notice of appeal with the instructions referring to the possibility of lodging an appeal with the Supreme Administrative Court.
13. On 16 July 1993, the applicant appealed against the points 2-7 to the Supreme Administrative Court claiming, inter alia, that the continuation of his service as well as his right to be reinstated in his former office or an office equivalent to it be confirmed and that the National Church Board be ordered to indemnify him for his loss of earnings.
14. In its decision of 1 March 1995, the Supreme Administrative Court firstly stated that the National Church Board was not competent to give the applicant notice and, thus, the applicant’s service had not been terminated on the basis of a notice. The Supreme Administrative Court also stated that it lacked competence to decide at first instance questions concerning the applicant’s status and his right to an indemnity. It added that the Cathedral Chapter (tuomiokapituli, domkapitalet) would be the competent body in this respect, dismissing the appeal without considering its merits.
15. On 6 March 1995 the applicant asked the National Church Board for reinstatement in his former office.
16. On 11 April 1995, the applicant filed an application with the Cathedral Chapter of the Helsinki Diocese (hiippakunta, stift) claiming that the National Church Board be ordered to pay him the unpaid salary of a head of division from 1 May 1987 onwards with sixteen per cent annual interest. He asked for the decision to be made urgently.
17. On 30 May 1995, the Board sent a letter to the applicant indicating that the Board’s answer to the applicant’s request for reinstatement in his former office was included in its response to the Cathedral Chapter on the applicant’s above-mentioned application.
18. On 1 August 1995, the Cathedral Chapter ordered the National Church Board to pay the applicant the difference between the salary of a head of division and the salary the applicant had earned as a parish minister between 1 May 1987 and 30 April 1995, and from 1 May 1995 onwards a certain amount per month (with interest) until the applicant recommenced his official duties as head of division or his service was terminated. The Cathedral Chapter also stated that the applicant’s service as head of division must be considered to continue.
19. On 30 August 1995, the National Church Board appealed to the Supreme Administrative Court against the decision of the Cathedral Chapter. On 1 September 1995, the applicant appealed against the same decision, as far as the indemnity for loss of earnings and other compensation were concerned. The Supreme Administrative Court gave its decision on 12 June 1996. It upheld the Cathedral Chapter’s decision, except for the part concerning interest rates and the obligation to pay interest.
20. On 18 January 1996, the applicant appealed to the Supreme Administrative Court against a decision made by the National Church Board on 7 December 1995 by which the applicant was given notice of the termination of his service as head of division with four months’ period of notice. The applicant asked for the decision to be taken urgently. On 12 June 1996 the Supreme Administrative Court gave its decision also in that set of proceedings. The Supreme Administrative Court upheld the national Church Board’s decision. Its reasoning read as follows:
“According to Section 14, subsection 3, point 4, of the Official Regulations Concerning the Officials in Special Duties of the Church, a civil servant may be given notice for … particularly weighty grounds concerning his or her performance of official duties. Such grounds may be based on the civil servant’s performance or on other circumstances in relation to performance of official duties. The office of head of division in the Centre for Foreign Affairs of the Church … has been filled while [the applicant] was dismissed. Considering that the National Church Board, at the end of 1995, still was under the impression that [the applicant’s] service as head of division had terminated and considering that the National Church Board cannot be obliged to establish a new office equivalent to [the applicant’s] former office, the Supreme Administrative Court, in these circumstances, finds no reason to change the conclusion reached by the National Church Board.”
21. The Church Act of Finland (kirkkolaki, kyrkolag 635/64, as from 1 January 1994 replaced by Act no. 1054/93) regulates the activities of the Evangelical Lutheran Church of Finland. Regulations concerning the civil servants of the Church are also given in collective agreements on the terms of employment in the civil service (virkaehtosopimus, tjänstekollektivavtal) and in official regulations confirmed by the Church (virkasääntö, tjänstestadga).
22. According to Section 491 of the 1964 Church Act and Chapter 22, Section 2, of the 1993 Church Act, the National Church Board is the general administrative body of the Church. Under Section 494 of the 1964 Church Act and Chapter 24, Section 6 (2), of the 1993 Church Act, a decision of the National Church Board can be appealed against to the Supreme Administrative Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95197
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF CANADY v. SLOVAKIA (No. 2)
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The applicant was born in 1956 and lives in Turany. At the relevant time he was attached, as a soldier by profession, to the Military Academy in Liptovský Mikuláš.
6. On 6 May 2002 the dean of the Faculty of Logistics at the above-mentioned military academy issued a disciplinary order with reference to sections 179(2) and 78(2) of the Military Service Act 1997. In it the applicant was found guilty of a disciplinary offence in that he had grossly offended another person in the context of administrative proceedings before the District Office in Martin. The decision stated that his action constituted a minor offence under section 49(1)(d) of the Minor Offences Act 1990.
7. The decision stated that the case related to a disagreement between the applicant and his neighbours and that similar problems had occurred previously. With reference to section 81(c) of the Military Service Act 1997, the applicant was fined 1,500 Slovakian korunas (SKK), which was then the equivalent of approximately 37 euros (EUR). That sanction was considered appropriate in view of the danger for society of the applicant's action. With reference to Regulation 393/1990, the applicant was ordered to reimburse the costs of the proceedings.
8. The applicant appealed, arguing that the decision in question was premature and arbitrary as it had been taken in disregard of the relevant facts.
9. On 24 June 2002 the rector of the military academy dismissed the appeal and upheld the decision in issue. The rector's decision stated that it was final and that it could not be challenged by means of an ordinary remedy.
10. On 27 August 2002 the applicant lodged a complaint with the Constitutional Court. He alleged that the decisions given by the military authorities were arbitrary and that his right to judicial protection had been violated as those decisions could not be reviewed by the courts. He relied, inter alia, on Article 6 § 1 of the Convention.
11. The Constitutional Court rejected the complaint for lack of jurisdiction on 11 December 2002. It referred to Article 144 and Article 46 § 2 of the Constitution and to its decision II. ÚS 50/01 and held that administrative decisions which had a bearing on fundamental rights and freedoms could not be excluded from the jurisdiction of the courts. The decision stated that the applicant alleged a violation of his right to judicial protection without having sought protection of his specific rights before an ordinary court. Had the applicant brought an action in an ordinary court, the latter would have been obliged to comply with the Constitution when dealing with it.
12. Article 46 § 2 provides that any person whose rights have been affected as a result of a decision given by an administrative authority can have the lawfulness of such a decision determined by a court unless the law provides otherwise. However, the review of decisions concerning fundamental rights and freedoms cannot be excluded from the jurisdiction of the courts.
13. Article 144 § 1 provides that judges are independent and bound only by law. Under paragraph 2 of Article 144, judges are also bound by international instruments where the Constitution or the law so provides.
14. In judgment I. ÚS 37/95 of 20 December 1995 the Constitutional Court held that, in the event of doubt about the power of an ordinary court to review administrative decisions, Article 152 § 4 of the Constitution must be applied, pursuant to which the interpretation and application of laws must be in accordance with the Constitution. It must in particular be examined whether the contested administrative decision concerns a person's fundamental rights and freedoms as such decisions cannot be excluded from the jurisdiction of the courts.
In that particular case the Constitutional Court found that an ordinary court's decision to discontinue proceedings, which resulted from an erroneous legal assessment of its power to deal with an action against an administrative decision, amounted to a breach of the right to judicial protection as guaranteed by Article 46 § 2 of the Constitution.
15. In decision II. ÚS 55/99 of 3 June 1999 the Constitutional Court dismissed a complaint in which the present applicant complained about the ordinary courts' refusal to review his superiors' decision to fine him for a minor offence under section 49(1)(d) of the Minor Offences Act 1990. The Constitutional Court held that, since the ordinary courts' refusal to review the decisions on the fine had been taken in accordance with the law in force at the relevant time, they did not interfere with the applicant's constitutional right to judicial protection (for further details see Čanády v. Slovakia, no. 53371/99, §§ 14-16, 16 November 2004).
16. In judgment PL. ÚS 14/98 of 22 June 1999 the Constitutional Court held that under Article 11 of the Constitution, the public authorities were obliged to apply international treaties where such treaties guaranteed a broader scope of fundamental rights and freedoms than national laws.
17. In decision I. ÚS 9/00 of 22 March 2000 the Constitutional Court pointed out that the ordinary courts were primarily responsible for respecting the fundamental rights and freedoms which the Constitution and international treaties guaranteed to individuals.
18. In judgment II. ÚS 50/01 of 11 October 2001 the Constitutional Court found that the ordinary courts had violated the plaintiff's rights under Article 46 § 2 of the Constitution. The plaintiff complained that the ordinary courts had discontinued proceedings concerning his action challenging a decision of the Minister of Defence by which he had been dismissed as a professional soldier. The courts based their decision on the fact that review of the decision in issue was excluded from their jurisdiction under Article 248 § 2(d) of the Code of Civil Procedure. The Constitutional Court held that Article 46 § 2 of the Constitution was complied with only where a court examined whether an administrative decision contested by the plaintiff had a bearing on any of his or her fundamental rights and freedoms, regardless of whether or not the relevant law permitted a judicial review of such decisions. In the case under consideration the ordinary courts had discontinued the proceedings on the ground that the law excluded judicial review of the relevant decision, without considering whether or not that decision concerned the plaintiff's fundamental rights and freedoms. In doing so, the ordinary courts concerned had violated Article 46 § 2 of the Constitution.
Decision II. ÚS 50/01 was included in the Collection of Judgments and Decisions of the Constitutional Court which was published on an unspecified date in 2002.
19. Section 10(1)(a) provides that, where a person falling under military disciplinary rules acts in a manner which fulfils the constituent elements of a minor offence, such action is to be examined under a special law.
20. Section 49 (as in force at the relevant time) governs minor offences against civic propriety. Paragraph 1(d) provides that a minor offence is committed by a person who deliberately offends against civic propriety by threatening bodily harm, by causing minor bodily injury, by unjustifiably accusing another person of a minor offence, by causing annoyance or by other rude behaviour. Under section 49(2), such a minor offence is punishable with a maximum fine of SKK 3,000.
21. Section 79(1) provides that citizens who have been found guilty of a minor offence are liable to reimburse the costs of the proceedings to the State. The details are to be fixed by the Ministry of the Interior.
22. Section 72 lists the principal duties of a soldier. Subsection 1(j) obliges soldiers to abstain from behaviour which may harm the authority of the armed forces or threaten citizens' trust in them.
23. Section 78(1) defines a disciplinary offence as a wilful breach of a soldier's principal duties unless it constitutes a criminal offence or a minor offence.
Section 78(2) provides that where a soldier's action is qualified as a minor offence under the Minor Offences Act 1990, it is to be examined as a disciplinary offence within the meaning of the Military Service Act 1997.
24. Section 79(1) provides that a disciplinary punishment may be imposed on a soldier who has committed a disciplinary offence. Such punishments may be imposed under the Military Service Act 1997 or pursuant to a special law in cases falling under section 78(2). Among such special laws, reference is made to the Minor Offences Act 1990.
25. Section 81 lists disciplinary punishments which may be imposed on professional soldiers. They include (a) a reprimand; (b) a strict reprimand; (c) a fine; (d) a prohibition on performing a certain activity; (e) confiscation of a particular item; and (f) a protective measure.
26. At the relevant time section 94(1) provided that final decisions on disciplinary matters were not reviewable by courts, with the exception of cases where the sanction imposed involved deprivation of liberty of the person concerned.
Under Section 94(2), as amended with effect from 1 January 2004, final decisions imposing a fine are reviewable by courts.
27. Section 179(2) provides that the military authorities implement the law by issuing personal orders, disciplinary orders, military orders and decisions on compensation for damage.
28. Article 248 § 2(f), as in force at the relevant time, excluded judicial review of administrative decisions imposing sanctions on members of the armed forces unless such sanctions restrained the latter's personal liberty or resulted in the termination of their service.
That provision was repealed with effect from 1 January 2004.
29. The Ministry of the Interior's Regulation 393/1990 governs sums which are to be charged in respect of costs of proceedings under the Minor Offences Act 1990.
30. Under section 1(1), as in force at the relevant time, the lump sum which citizens are obliged to pay within the meaning of section 79(1) of the Minor Offences Act 1990 corresponds to SKK 150.
VIOLATED_ARTICLES: 6


ITEMID: 001-110749
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: BASHCHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: The applicant, Mr Borys Vasylyovych Bashchenko, is a Ukrainian national who was born in 1938 and lives in Bendyugivka.
On 21 January 2009 the applicant lodged a civil claim with the Kagarlyk Local Court against the Kagarlyk Local Administration, seeking to be issued title to a plot of land to which he was entitled as a member of the D. collective farm.
On 18 December 2009 the court found against the applicant, determining that there was no evidence that the applicant was on the list of those entitled to a plot of land on the D. farm. It noted in particular that the decision of the D. farm management of 30 March 1996 did not prove the applicant’s entitlement to a plot of land.
On 15 April 2010 the Kyiv Regional Court of Appeal upheld the decision of the first-instance court.
On 30 June 2010 the applicant lodged an appeal on points of law with the Supreme Court. In his appeal the applicant requested an extension of the time-limit for lodging the appeal, without indicating any reasons for the request.
On 12 July 2010 the applicant lodged a supplement to his appeal of 30 June 2010, in which he also requested an extension of the time-limit without indicating any reasons for the delay.
On 16 July 2010 the Supreme Court rejected the applicant’s appeal as out of time, noting that the applicant had not requested an extension of the timelimit for lodging the appeal.
On 9 August 2010 the applicant sent a letter to the Supreme Court pointing out that he had included a request for an extension in his appeal. In reply, the court repeatedly informed the applicant that his appeal had been rejected as out of time, as it contained no request for an extension.
“1. An appeal on points of law may be lodged within two months of the date of entry into force of the decision (ruling) of the court of appeal.
2. If the time-limit set forth in paragraph one of this Article is not respected for reasons which have been found valid, a cassation court judge may renew the timelimit at the request of the person who lodged the appeal.
3. An appeal on points of law which has been lodged outside the time-limit for such an appeal shall be returned to the person who has lodged it, if that person has not raised the issue of renewal of the time-limit, or if renewal of the time-limit has been refused.
4. Renewal of the time-limit for an appeal on points of law and return of an appeal on points of law shall be decided by a judge rapporteur, who will issue a ruling in this respect.”
2. A judge rapporteur shall return an appeal on points of law lodged outside the time-limit for such an appeal to the person who lodged it, unless he or she requests the renewal of the time-limit...”


ITEMID: 001-4917
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: S.T. v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is a Turkish national, born in 1971 and living in Diyarbakır.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a member of the Diyarbakır Bar and practises as a lawyer in Diyarbakır.
On 18 January 1993 the applicant was arrested and taken to the Diyarbakır Security Directorate for interrogation. He was detained for a period of seven days before appearing before the State Prosecutor.
On 25 January 1993 the prosecutor charged the applicant with being a member of an armed gang, the PKK (Article 169 of the Turkish Penal Code), and applied for him to be detained on remand. The applicant was also accused of participating in the activities of the PKK, forming committees on its behalf, trying to recruit new militants for their mountain guerrilla teams and possessing illegal documents and two guns.
On the same day the applicant was detained on remand.
At a hearing on 15 March 1993 before the Diyarbakır State Security Court, the applicant denied all the charges and claimed that he was forced to sign a confession statement prepared by the police while being blindfolded. He maintained that he was not a member of PKK. He stated that one of the guns in question belonged to his father who held a licence for it and that the other was unlicensed and belonged to him. He also submitted that it was not he but his brother who tried to recruit new militants for the PKK’s mountain guerrilla teams and possessed the illegal documents on behalf of the armed gang at their house. He stated that after his brother’s death, he still kept these illegal documents on account of his fear of the gang and his brother’s warnings that these documents should be delivered to the gang in the future.
On 19 April 1993 the Diyarbakır State Security Court released the applicant on bail.
In a judgment dated 31 December 1993, the court found the applicant guilty of an offence under Article 169 of the Turkish Criminal Code. It sentenced the applicant to three years’ and nine months imprisonment. It also decided to prohibit him from entering the public service for three years. The court held that although the applicant had denied all the accusations, he had confirmed before the court that he was in possession of documents in order to deliver them to the gang sometime in the future. The court considered this acknowledgement as evidence of the applicant’s aim of becoming a member of the armed gang.
The applicant appealed against this judgment. He reiterated the defence which he had made before the State Security Court. On 26 October 1994 the Court of Cassation upheld the decision of the lower court.


ITEMID: 001-91584
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: PODRUGINA AND YEDINOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicants, Ms Lidiya Aleksandrovna Podrugina and Mr Anatoliy Aleksandrovich Yedinov, are Russian nationals who were born in 1937 and 1933 respectively and live in the town of Petrozavodsk in the Kareliya Republic. They were represented before the Court by Mr S. Dickmann, a lawyer practising in Moscow. The respondent Government were represented by Ms V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants sought judicial recognition of the fact that they had been prisoners of war during World War II. Such a declaration was a precondition for claiming a statutory monthly allowance from the State. The State was represented by a local Social Assistance Centre in those proceedings.
By judgment of 1 July 1998, the Petrozavodsk Town Court of the Kareliya Republic granted the applicants’ claim. The court found that at the time the applicants had been forced to work and had not been allowed to leave the territory of the village.
On an unspecified date, the President of the Supreme Court of the Kareliya Republic lodged a request for supervisory review of the above judgment. On 22 May 2002 the Presidium of the Supreme Court granted his request, quashed the judgment and rejected the applicants’ claims. The Presidium court found that in the absence of documentary evidence, including archive sources, or other evidence the above circumstances were insufficient for concluding that the village had served as a concentration camp. The court concluded that the applicants could not be considered as prisoners of war. The applicants were not present at the supervisory review hearing.
From July 1998 to 1 July 2002 the applicants received the allowance, varying from 500 to 1,000 Russian roubles per month. After the annulment of the judgment in their favour, they were not required to reimburse the monies received during that period.
On 1 January 2005 the Pensions Authority (the “Authority”), a specialised State agency, took over responsibility for making allowance payments.
In 2005 the applicants brought new proceedings before the Town Court asking for a judicial confirmation of the fact that between 1941 and 1944 they had been living in a village occupied by the Finnish Army and thus indeed been prisoners of war. The State was represented by the Social Assistance Centre in those proceedings.
By judgments of 24 February and 16 March 2005, the Town Court granted the second and first applicants’ claims respectively. In Mr Yedinov’s case, the court heard two persons who had resided at the time in the same village, and had regard to an expert opinion.
No appeal was lodged and the above judgments became final. On the basis of those judgments, on unspecified dates the applicants applied to the Pensions Authority for a statutory allowance, which they subsequently received until March and January 2007 respectively.
In July 2006 the Pensions Authority applied for supervisory review of the judgments of 24 February and 16 March 2005, contending that it had not been aware of them in good time and thus could not request their supervisory review within the statutory period of one year. The Authority contended that the above judgments concerned the same matter that had already been determined in the 2002 proceedings.
By a decision of 26 September 2006, the Town Court extended the timelimit for lodging of the Authority’s request for supervisory review. The court accepted the Authority’s argument that it had learnt about the 2002 proceedings on 25 April 2006, when the Social Assistance Centre had provided it with the lists of persons no longer entitled to an allowance. The Social Assistance Centre and not the Authority had been involved in the 2002 proceedings.
On 29 November 2006 the Presidium of the Supreme Court of the Kareliya Republic quashed the judgment of 16 March 2005 and discontinued the proceedings. The court found that the matter had already been examined in 1998 and had been finally determined by the judgment of 22 May 2002. Apparently, the first applicant was not present at the supervisory-instance hearing and obtained a copy of its ruling on an unspecified date. According to the Government, a copy of the supervisory review ruling was dispatched to her on 5 December 2006.
The applicant was not required to reimburse the monies received in 2005 and 2006.
By a decision of 15 August 2006, the Town Court refused to extend the time-limit for bringing supervisory review proceedings. The court found that the Authority should have been aware of the judgment of 24 February 2005 since it had been making regular payments to the applicant on that basis; a copy of that judgment had been in the applicant’s pension file since March 2005. Hence, the Authority could have challenged the judgment by way of supervisory review within the one-year time-limit.
On 22 September 2006 the Supreme Court of the Kareliya Republic quashed the decision of 15 August 2006 and remitted the matter to the Town Court. It held that the Authority had learnt about the relevant fact, namely the existence of two contradictory judgments (dated 22 May 2002 and 24 February 2005), only in April 2006.
On 17 October 2006 the Town Court extended the time-limit for lodging of the Authority’s’ request for supervisory review. The applicant did not appeal.
On 14 February 2007 the Presidium of the Supreme Court quashed the judgment of 24 February 2005 and discontinued the proceedings. The court found that the matter had already been examined in 1998 and had been finally determined by the judgment of 22 May 2002.
The applicant was not required to reimburse the monies received in 2005 and 2006.
Article 134 § 1 of the Code of Civil Procedure provides that a judge should refuse to deal with a claim if there is a final judgment between the same parties on the same subject-matter and on the same legal grounds (по тем же основаниям). In such a situation, a claimant cannot bring new proceedings against the same respondent in relation to the same subject-matter and on the same legal grounds.
Under Article 376 of the Code, judicial decisions that have become legally binding, with the exception of judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by the judicial decisions concerned (§ 1). Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding (§ 2). By its ruling of 5 February 2007, the Constitutional Court interpreted Article 376 § 1 as allowing the above-mentioned persons to apply for supervisory review only after having exhausted all available ordinary appeals.


ITEMID: 001-76015
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KAKAMOUKAS AND OTHERS v. GREECE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: Loukis Loucaides
TEXT: 9. On 7 April 1925 the Greek State expropriated an area of land measuring 534,892 m², located on the outskirts of the town of Salonika (Mikra district), for the purpose of building an airport. This area, which now falls within the jurisdiction of Kalamaria Town Council, included plots of land which belonged to the applicants' ascendants.
10. The amount of expropriation allowance was set by judgments nos. 1321/1926 and 703/1929 of the Salonika Court of First Instance, no. 9/1930 of the Salonika Appeal Court and no. 116/1931 of the Court of Cassation.
11. By judgment no. 293/1936 of the President of the Salonika Court of First Instance, the applicants' ascendants were recognised as being entitled to the compensation in question. However, the State refused to pay it. The airport was ultimately constructed elsewhere.
12. On 22 June 1967, by a joint decision of the Minister of Finance and the Minister of Public Works (no. E.17963/8019), the State went ahead with expropriation of the above-mentioned area, which included the disputed plots of land, with a view to building housing for workers. As the decision did not fulfil a public-interest aim, however, it was revoked on 6 July 1972.
13. On 29 June 1972 a royal decree designated the land for the construction of a sports centre.
14. On 14 May 1987 the Salonika prefect modified the development plan (ρυμοτομικό σχέδιο) for the area, which he designated as a “green area” and “sports and leisure zone”. This decision was confirmed by a decision of the Minister of the Environment and Public Works dated 31 July 1987 and by a presidential decree of 22 August 1988.
15. On 28 June 1994 the applicants or their ascendants applied to the Salonika Prefecture requesting that the development plan in force be amended to have the encumbrance affecting their land removed. The prefecture did not reply.
16. On 20 November 1994 the applicants or their ascendants applied to the Supreme Administrative Court, seeking to have set aside the authorities' implicit refusal to remove the encumbrance affecting their land.
17. On 11 January 1996 the Kalamaria Town Council filed its observations on the case. A hearing was held on 26 March 1997.
18. On 20 October 1997 the Supreme Administrative Court granted the applicants' request. In particular, it found that, having failed for a long time to proceed with the expropriation of the land in question in furtherance of the project provided for in the development plan, the authorities were duty bound to lift the encumbrance on the disputed properties. The Supreme Administrative Court sent the case back to the authorities, asking them to take the necessary measures to make available the applicants' land (judgments nos. 4445/1997, 4447/1997 and 4448/1997). Those judgments were finalised and certified as authentic on 25 February 1998.
19. On 30 September 1998 Kalamaria Town Council lodged a third-party appeal (τριτανακοπή) against the above-mentioned judgments by the Supreme Administrative Court. This form of appeal, open to persons who have been neither parties to nor represented in proceedings, enables them to contest a decision which adversely affects them. Where the third-party appeal – which does not have suspensive effect – is found to be valid, the impugned judgments are set aside retrospectively and the application to the administrative court is re-examined. In the instant case, as the third-party appeal did not have suspensive effect, judgments nos. 4445/1997, 4447/1997 and 4448/1997 thus remained immediately enforceable.
20. On 28 November 2001 the Supreme Administrative Court declared the third-party appeal inadmissible (judgments nos. 4148/2001, 4149/2001 and 4150/2001). It held that Kalamaria Town Council could not rely on this form of appeal since it had already had an opportunity to submit its observations on the case. The above-mentioned judgments were finalised and certified as authentic on 17 April 2002.
21. On 13 May 1999 the Minister for the Environment and Public Works modified the urban development plan of Kalamaria municipality in order to designate the land in question as the site for a sports and leisure centre (decision no. 12122/2761).
22. On 9 September 1999 the applicants or their ascendants applied to the Supreme Administrative Court seeking to have the above-mentioned decision set aside. On 11 September 2002 they submitted various documents in support of their application, including the title deeds to the properties. The hearing, initially scheduled for 8 November 2000, was postponed several occasions times. It was finally held on 29 October 2003. The Supreme Administrative Court has not yet delivered its judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-118729
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF YEVGENIY IVANOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses)
JUDGES: Dmitry Dedov;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 5. The applicant was born in 1979 and lives in Cheboksary.
6. On 20 September 2002 the applicant was charged with manslaughter, an offence under Article 111 § 4 of the Criminal Code. The charge was based, in particular, on the investigator’s interviews with Mr M., Mr O. and Mr I., eyewitnesses to the incident.
7. Mr M. and Mr O. stated that on 28 August 2002 they and their friend Mr S. had had a fight with three strangers. Mr S., drunk, had kicked a red VAZ car which was passing by. The driver and two passengers had emerged from the car and the driver had hit Mr S. twice in the face. Seven or eight people had then joined in with the strangers and started to hit them. Mr M., Mr O. and Mr. S. had all lost consciousness. On the next day, 29 August 2001, Mr S. had been found lying in the street by a passer-by and had been taken to hospital, where he had died from the wounds received during the fight.
8. During subsequent interviews with the investigator, Mr M. and Mr O. changed their testimony slightly, stating that Mr S. had fallen immediately after the driver had hit him in the face. They had not seen whether Mr S. had been hit by any of the other persons involved in the fight.
9. Mr I. stated to the investigator that on 28 August 2002 he had been sitting in a bar. He had seen a red VAZ car stop near the bar and three people get out of it. Two of them had entered the bar, while the driver had approached a group of three people outside. They had started to argue and then to fight. He had left immediately.
10. The trial started on 21 January 2003 before the Kalininskiy District Court of Cheboksary. The applicant pleaded not guilty. He admitted that on 30 August 2002 he had had a quarrel with three strangers. He had hit one of them twice in the chest and retreated to a nearby bar. He had seen the men leave the scene. He insisted that the incident had happened on 30 August 2002 rather than on 28 August 2002. He was sure of the date because he had taken his mother to the tax office on that day. He requested the court to hear the tax inspector, Ms Sh., who could confirm that his mother had paid her taxes on 30 August 2002. His request was rejected on the ground that a statement by Ms Sh. would not be relevant.
11. Several witnesses attended the trial. One of them stated to the court that he had seen the applicant in the bar during the evening of 28 August 2002. He had not, however, seen the fight. Another witness testified that during the evening of 28 August 2008 he had seen Mr M. with bruises on his face, and that on the next day Mr O. had told him that he, Mr M. and Mr S. had been beaten up by three strangers. Mr S.’s wife and brother testified that they had seen Mr S. for the last time on the morning of 28 August 2002. Another witness told the court that he had found Mr S. badly injured and unconscious in the street not far from the bar one morning at the end of August 2002. Another witness stated that during the evening of 28 August 2002 he had driven three men to a bar in his red VAZ car. Another red VAZ car had been parked near the bar and three persons had been standing nearby talking among themselves. He had overheard them saying that they had hit someone who had kicked the wheel of their car. Some time before that, he had seen a man carrying another man.
12. The trial court also examined an expert medical report submitted by the prosecutor. The finding of the medical experts was that Mr S. had died of a craniocerebral injury. They also recorded numerous bruises on his head and body and found that he had received no fewer than nine blows.
13. Finally, a police report stating that Mr S. had been discovered lying in the street on 29 August 2002 was also examined.
14. The witnesses Mr O., Mr M., and Mr I. did not attend the trial. On 21 January 2003 the Kalininskiy District Court ordered bailiffs to ensure their appearance in court on 22 January 2003.
15. It can be seen from the bailiff’s report of 22 January 2003 that between 7.45 and 9.35 a.m. on that day he visited the addresses for Mr O. and Mr I. provided during the preliminary investigation. It was confirmed by the new occupants of the flat that Mr O. no longer lived at that address. Mr I. was at work and the bailiffs left the summons to appear with his daughter.
16. On 22 January 2003 the witnesses did not attend. The applicant insisted that the court obtain their attendance. The Kalininskiy District Court adjourned the hearing until 3 February 2003 and again ordered the bailiffs to ensure the witnesses’ appearance in court.
17. It can be seen from the bailiffs’ reports dated 31 January and 3 February 2003 that Mr O. no longer lived at the address indicated in the case file, as confirmed by the owner of the flat. They visited Mr O.’s mother, who stated that her son lived in Cheboksary but that she did not know either his home address or the address of his employer. According to Mr M.’s mother, Mr M. lived on the university campus in Cheboksary. When the bailiffs visited the campus, Mr M. was not at home. They left the summons to appear with the campus guard. According to Mr I.’s daughter, Mr I. was at his country house. She agreed to pass the summons onto him.
18. The witnesses did not attend the hearing of 3 October 2003. The Kalininskiy District Court ordered the bailiffs to ensure the witnesses’ appearance in court on 7 February 2003.
19. The bailiffs’ report dated 7 February 2003 states that on that day the bailiffs visited the addresses for Mr I. and Mr O. provided during the preliminary investigation. According to his daughter, Mr I. was on a business trip outside the Chuvashiya Republic and she did not know when he was to return. Mr O. no longer lived at the address indicated in the case file.
20. On 7 February 2003 a new decision was issued by the Kalininskiy District Court, ordering bailiffs to ensure the witnesses’ attendance on 11 February 2003.
21. On 10 February 2003 the bailiffs went again to Mr I.’s address and discovered that he had not yet returned from his business trip. They then went to the address for Mr O. indicated in the case file and the new occupants of the flat told them for a fourth time that Mr O. had moved out. The bailiffs then visited Mr O.’s mother, who told them that she did not know her son’s address in Cheboksary. They also visited Mr M.’s mother, who stated that her son did not live with her.
22. On 11 February 2003 the witnesses did not attend. The prosecutor asked for the transcript of the statements given by Mr O., Mr M., and Mr I. to the investigator to be read out. The applicant and his counsel did not object. The transcript was read out. On the same day, the Kalininskiy District Court ordered the bailiffs to ensure the witnesses’ attendance on 12 February 2003.
23. On 12 February 2003 the bailiffs went to the addresses for Mr I. and Mr O. indicated in the case file. Neither of them was at home. The bailiffs noted in their report of the same date that in any event it had long been known that Mr O. did not live at that address and that Mr I. was on an extended business trip.
24. At the hearing of 12 February 2003, the applicant insisted that the court obtain the attendance of Mr O., Mr M., and Mr I., and objected to the termination of the trial as long as those witnesses had not been questioned. The Kalininskiy District Court nevertheless decided to terminate the trial on the ground that all attempts to obtain the attendance of the witnesses had been unsuccessful.
25. On 13 February 2003 the Kalininskiy District Court of Cheboksary convicted the applicant of manslaughter, finding that his guilt was sufficiently established by the statements made by Mr O., Mr M., and Mr I. during the pre-trial investigation, the statements of the other witnesses made during the trial, and the medical and police reports. The court rejected the applicant’s arguments that he had hit Mr S. on the chest rather than on the head and that Mr S. had left the scene uninjured, finding that they were refuted by the testimony of Mr O. and Mr M., who had witnessed the incident. The applicant was sentenced to eleven years and six months’ imprisonment.
26. In his grounds of appeal the applicant complained, in particular, that the District Court had not secured the attendance of Mr O., Mr M., and Mr I. at the trial. He submitted that he had been misled into agreeing to the reading out of the transcript of their statements to the investigator. The judge had not warned him that the reading out of the transcript would substitute for the questioning of the witnesses in court. Throughout the trial he had insisted that those witnesses should be questioned. He had also objected to the termination of the trial as long as the witnesses had not been questioned.
27. On 26 February 2003 the Kalininskiy District Court held that Mr O., Mr M., and Mr I. had not been questioned in court because, despite the efforts of the bailiffs, they could not be traced. In such circumstances it was permissible for the witnesses’ statements made at the pre-trial stage to be read out at the trial by virtue of Article 281 of the Code of Criminal Procedure.
28. On 27 March 2003 the Supreme Court of the Chuvashiya Republic upheld the judgment on appeal. The appeal court remained silent on the issue of the attendance of witnesses.
29. Manslaughter – that is, the premeditated infliction of serious injuries resulting in accidental death – carries a punishment of five to fifteen years’ imprisonment (Article 111 § 4 of the Criminal Code).
30. The Code of Criminal Procedure of the Russian Federation provides that witnesses are to be examined directly by the trial court (Article 278). Statements given by the victim or a witness during the pre-trial investigation can be read out with the consent of the parties in two cases: (i) if there is a substantial discrepancy between those statements and the testimony before the court; or (ii) if the victim or witness has failed to appear in court (Article 281).
31. If a witness fails to comply with a summons to appear without a good reason, the court may order the police or bailiffs to bring him to the courtroom by force (Article 113).
32. Article 413 of the Code of Criminal Procedure provides for a possibility to reopen criminal proceedings on the basis of a finding of a violation of the Convention by the European Court of Human Rights.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d