ITEMID: 001-84785
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BESPALOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
TEXT: The applicant, Mr Yuriy Borysovych Bespalov, is a Ukrainian national who was born in 1951 and lives in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
In 1995 the applicant entered into a civil contract, agreeing to solicit clients for A.N., a private company. Following expiration of the contract in January 1998, the Company was to pay the applicant a certain percentage of the revenue brought by the clients referred by him. Additionally, under the contract the Company was obliged to cover the applicant’s travel and accommodation expenses, and, in the event the Company would protract the payment, to pay default interest. By way of determining the method of calculating the default interest, the contract referred to a statute, which, in fact, did not exist. At the material time there existed, instead a Cabinet of Ministers regulation concerning calculation of the default interest, which was replaced by a statute in 1996.
In May 1996 the applicant rented an apartment in Kyiv from Mr K. (a private person). The lease agreement was not registered with the authorities and the parties settled the payments in cash.
In 1996 the applicant solicited for the Company a contract with Z.E.M., a commercial enterprise, which transferred the contractual payment directly to the Company’s Russian partner in Russian rubbles. The Russian partner transferred a certain payment back to the Company in karbovantsi (a transitional currency of Ukraine in circulation at the material time).
Later that year a new Ukrainian currency (hryvnya) was introduced.
On 30 April 1998, following expiration of the applicant’s contract with the Company, the parties co-signed an agreement on completion of the contract (акт прийняття-передачі), in which the Company acknowledged that the applicant had referred to it a certain list of clients, including Z.E.M., in pursuance of the contract of 1995, and fixed the amount of his remuneration in the United States dollars, to be converted into the hryvnya currency at the time of settlement.
By December 1998 the Company had paid the applicant only a fraction of the payment due.
On 2 December 1998 the applicant instituted civil proceedings against the Company, seeking various payments. In particular, he claimed the balance of remuneration under the agreement of 30 April 1998 and default interest allegedly accrued on this payment pursuant the contract. In the course of the ensuing proceedings, the applicant recalculated the amount of the compensation claimed on some ten occasions, taking account for the lapse of time, modifications of applicable financial and banking regulations and exchange rates. He further maintained that he had a labour relationship with the Company and sought salary arrears and various compensations based on labour law.
The Company lodged a counter-claim, maintaining that Z.E.M. had defaulted on its payment, hence causing significant damages, which should be covered by the applicant, as he had solicited a contract with Z.E.M.
On 11 December 1998 the Radyansky District Court of Kyiv (“the District Court”; Радянський районний суд м. Києва) disjoined the applicant’s claims based on labour law from his civil ones. There is no information on the outcome of the labour limb of the proceedings.
As to the civil limb, the case was re-examined by the courts several times.
On 7 April 1999 the District Court allowed the applicant’s claim for payment of commission balance and default interest. The court found that, having signed the agreement of 30 April 1998, the Company had undertaken a lawful obligation to settle the payment. The court further dismissed the counterclaim as unsubstantiated.
The Company appealed in cassation, referring, inter alia, to numerous inconsistencies between the agreement of 30 April 1998, the contract of 1995, applicable legal norms and the Company’s financial and other documents and arguing that the agreement as such was not final and could not serve as a source of a civil law obligation. It further disputed the method of calculation employed by the applicant. On 2 June 1999 the Kyiv City Court (“the City Court”; Київський міський суд) quashed this judgment and remitted the case for a fresh consideration, instructing the District Court to explore further whether, in light of all the evidence adduced, the Company could be obliged to pay the remuneration as fixed in the agreement of 30 April 1998.
In summer 1999 the applicant amended his statement of claim, additionally seeking compensation of his rental expenses under the lease agreement with Mr K.
On 20 December 1999 the court ordered an auditor’s assessment of the financial documents submitted by the parties and Z.E.M., to clarify various inconsistencies between them. By the end of April 2000 the assessment was completed.
On 28 July 2000 the District Court awarded the applicant commission balance in respect of all clients, listed in the agreement of 30 April 1998, except for Z.E.M. The court found that the applicant’s contract with the Company made him ineligible to a commission in respect of a non-paying client. The court further found that the applicant could not claim default interest, since the relevant contractual language lacked requisite clarity and the Company could not claim damages on account of Z.E.M.’s default, since the applicant had not been responsible for it. Lastly, the court dismissed the applicant’s claim for rental expenses, noting that the lease agreement had not been registered with the authorities as required by law and no documentary evidence of the rental expenses having in fact been incurred was available. The applicant appealed in cassation.
On 1 October 2000 the City Court quashed the judgment to the extent that the applicant’s claims had been dismissed and remitted the case for a fresh consideration in this regard. The court instructed the District Court, in particular, to determine whether the contractual language making the applicant’s remuneration conditional on the receipt by the Company of payment from the clients could be deemed fair under applicable law.
On 4 April 2001 the District Court dismissed the remainder of the applicant’s claims. In particular, the court noted that the applicant had wilfully accepted a contractual term conditioning his remuneration on the receipt of payment from clients and that he had not brought an express claim seeking to annul this provision. In other regards, the court essentially relied on the reasoning adduced in its judgment of 28 July 2000.
The applicant appealed in cassation. In his cassation appeal he emphasized, inter alia, that Z.E.M. had transferred the payment to the Company’s Russian partner and that the Company itself had never attempted to institute judicial proceedings against Z.E.M. to collect the alleged debt. He maintained that the signing of the agreement of 30 April 1998 constituted sufficient basis for payment of the commission.
On 20 June 2001 the City Court allowed the applicant’s cassation appeal and remitted the case for a fresh consideration, in particular, having found unpersuasive the District Court’s analysis as to the fairness and lawfulness of the conditions concerning the remuneration, in particular, in view that the Company had never claimed Z.E.M.’s debt by way of judicial proceedings.
On 24 September 2001 the District Court found that the contractual provision making the applicant responsible for the clients’ non-payment significantly undermined his lawful interests and, consequently, awarded the applicant compensation on account of having solicited a contract with Z.E.M. The court further found it unfair to make the applicant responsible for his landlord’s failure to register the lease and ruled that the applicant’s claim for rental expenses was sufficiently substantiated by witness testimonies and other evidence. The Company appealed pursuant a newly introduced appeal procedure.
On 22 November 2001 the City Court quashed this judgment, having remitted the case for a fresh consideration. In particular, the court instructed the District Court to give further regard to certain inconsistencies between various documents and witness testimonies and to determine to what extent the parties’ dispute concerning the default interest could be covered by the new statute of 1996.
The applicant lodged a cassation appeal against this decision with the Supreme Court.
On 22 February 2002 the Supreme Court rejected the applicant’s request for leave to appeal in cassation.
On 13 September 2002 the District Court awarded various payments to the applicant. In particular, the court attached weight to the fact that Z.E.M. had transferred the payment to the Company’s Russian partner. It further found that, although the parties had mistakenly referred in the contract to a non-existing statute in determining the method of calculation of default interest, the subsequent relevant legislation could be applied in the present case. Lastly, it found that the applicant could not be held responsible for his landlord’s failure to register the lease agreement with the authorities, especially since the relevant legal rules had also changed after the lease had been signed. The Company appealed.
On 15 November 2002 the City Court reversed the judgment. Dismissing the applicant’s claims, it gave weight to the fact that the Company itself had never received Z.E.M.’s payment. If further ruled that the calculation of the default interest had to be governed by the regulations in place at the time, when the contract had been concluded, which gave the applicant no entitlement to the payment claimed, and that the failure of the parties to the lease agreement to register the lease, coupled with lack of documentary evidence of settling the payments, made it impossible to award the claimed reimbursement. The applicant appealed in cassation before the Supreme Court.
On 28 May 2003 the panel of twenty judges of the Supreme Court heard the merits of the case and, having disagreed with both previous judgments (of 13 September and 15 November 2002), remitted the case for a fresh consideration. In particular, the Supreme Court found that the City Court had unfairly disregarded the fact that Z.E.M. had made the payment to the Company’s Russian partner and that the District Court had incorrectly calculated the final award due to the applicant, taking into account various currency exchange issues.
On 3 February 2004 the District Court allowed the applicant’s claims in part. It found him entitled to the commission on account of having solicited a contract with Z.E.M. and calculated the amount due in hryvnya based on the dollar award previewed by the agreement of 30 April 1998. It further awarded the applicant rental expenses, but dismissed his claims for default interest as lacking proper basis on either statutory or contractual provisions. Both parties appealed.
On 5 April 2004 the City Court amended the judgment, having dismissed the applicant’s claims for reimbursement of rental expenses. The court further diminished the amount of the commission due to the applicant, having taken into account the amount of Z.E.M.’s payment in Russian rubbles to the Company’s partner, the amount of payment in karbovantsi received by the Company in return, and a respective hryvnya rate. The applicant appealed in cassation.
On 28 September 2004 the Supreme Court rejected the applicant’s request for leave to appeal in cassation.
Subsequently, the applicant unsuccessfully sought to re-open the proceedings and have his claims reconsidered.


ITEMID: 001-58847
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF MAAOUIA v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6
JUDGES: Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Pieter Van Dijk
TEXT: 9. The applicant, who was born in 1958 in Tunisia, entered France in 1980 at the age of 22. On 14 September 1992 he married a French national, an invalid whose disability had been assessed at 80%, with whom he had been living since 1983.
10. On 1 December 1988 the Alpes-Maritimes Assize Court sentenced the applicant to six years' imprisonment for armed robbery and armed assault with intent for offences committed in 1985. He was released on 14 April 1990.
11. On 8 August 1991 the Minister of the Interior made a deportation order against him. The order was served on the applicant, who had been unaware of its existence, on 6 October 1992, when he attended the Nice Centre for Administrative Formalities in order to regularise his status.
12. He refused to travel to Tunisia and was prosecuted for failing to comply with a deportation order. On 19 November 1992 the Nice Criminal Court sentenced him to one year's imprisonment and made an order excluding him from French territory for ten years. That decision was upheld on appeal by the Aix-en-Provence Court of Appeal on 7 June 1993. An appeal on points of law was dismissed by the Court of Cassation on 1 June 1994 on the ground that the applicant had failed to challenge the legality of the deportation order in the courts below.
13. On 22 July 1994 the applicant applied to the Criminal Cases Review Board of the Court of Cassation for a review of the criminal proceedings that had resulted in his being imprisoned for one year and banned from French territory for ten years. In a judgment of 28 April 1997, which was served on 22 September 1997, the Court of Cassation dismissed that application.
14. In December 1992 the applicant sought judicial review of the deportation order. In a judgment of 14 February 1994 the Nice Administrative Court quashed the deportation order of 8 August 1991, inter alia, on the ground that no notice had been served on the applicant requiring him to appear before the Deportation Board. That judgment became final on 14 March 1994 after being served on the Minister of the Interior.
15. On the strength of the administrative court's judgment of 14 February 1994 quashing the deportation order, the applicant applied to the Principal Public Prosecutor's Office at the Aix-en-Provence Court of Appeal on 12 August 1994 for rescission of the ten-year exclusion order made by the Nice Criminal Court on 19 November 1992. He contended that he was married to a French national and held a provisional residence permit.
16. In a letter of 6 July 1995 the applicant reminded the Principal Public Prosecutor's Office of the terms of his application for rescission. Noting that the application had been outstanding for some time, he asked the office to arrange for it to be heard and a ruling given. On 12 July 1995 the Principal Public Prosecutor's Office requested the Public Prosecutor's Office at the Nice tribunal de grande instance for its opinion on the merits of the application and any information that would assist the court in deciding whether the exclusion order should be rescinded. On 19 September 1995 Nice Central Police Station sent the Principal Public Prosecutor's Office the results of an inquiry concerning the applicant.
17. On 3 November 1997 the Principal Public Prosecutor's Office at the Court of Appeal informed the applicant that the case would be heard on 26 January 1998. On that date the Aix-en-Provence Court of Appeal granted the applicant's application and rescinded the exclusion order on the ground that the Nice Administrative Court had quashed the deportation order.
18. The applicant also sought to regularise his status with the immigration authorities. He initially obtained acknowledgment forms for applications for provisional residence permits (not work permits) for renewable three-month periods. On 4 September 1995, however, he was given a new three-month residence permit incorporating the right to seek employment.
19. On 14 September 1995 the applicant applied to the prefect for the Alpes-Maritimes département for a residence permit allowing him to live and work in France for a prolonged period, as he was married to a French citizen. On 9 April 1996 the applicant received notice of a decision dated 2 April 1996 refusing him a residence permit. He appealed to the Nice Administrative Court, but his appeal was dismissed on 27 September 1996.
20. The applicant appealed on 24 December 1996 to the Lyons Administrative Court of Appeal. On 29 August 1997 the President of that court ordered the transfer of the file to the Marseilles Administrative Court of Appeal – the court with jurisdiction – where the case is currently pending.
21. On 21 July 1998 the applicant obtained a temporary residence permit valid for one year (from 13 July 1998 to 12 July 1999). Recently he obtained a ten-year residence permit with the right to seek employment.
22. Article 27 of the Ordinance of 2 November 1945 as amended, concerning the conditions of entry and residence of aliens in France reads as follows:
“Any alien who has evaded or attempted to evade the execution of an order refusing him leave to enter France, a deportation order or a removal order or who, having been deported or being subject to an exclusion order, re-enters the national territory without authorisation shall be liable to a term of imprisonment of from six months to three years.
The same penalty may be imposed on any alien who fails to present to the relevant administrative authority travel documents enabling any of the measures mentioned in the first sub-paragraph to be executed or who does not have such documents and fails to supply the information necessary to allow such execution.
The court may in addition issue an order banning a person so convicted from re-entering the territory for a period not exceeding ten years.
A ban on re-entering the territory automatically entails the convicted person's removal from French territory, on completion of his prison sentence where appropriate.”
23. Article 702-1 of the Code of Criminal Procedure reads as follows:
“Any person subject to a ban, forfeiture or incapacity or any measure whatsoever by operation of law following a criminal conviction or imposed as an additional penalty on sentencing may request the court which convicted him, or, if more than one, the last court to convict him, to end all or part of it, including provisions relating to the length of such ban, forfeiture or incapacity. ...”
24. Article 703 of the Code of Criminal Procedure reads as follows:
“Applications by convicted persons for the ending of a ban ... shall contain particulars of the date of conviction and the places where the applicant has been living since his conviction or release.
Applications shall be sent to the Public Prosecutor's Office or, as the case may be, the Principal Public Prosecutor's Office, which shall obtain all relevant information and, if appropriate, the opinion of the judge responsible for the execution of sentences, and shall refer the application to the relevant court.
The court shall decide applications in private after considering the submissions of the prosecution. It shall hear the applicant or his or her lawyer, but may decide the application in their absence provided due notice has been served on them to attend ...
A reference to the order ending all or part of a ban, forfeiture or incapacity ... shall be entered on the judgment of the court of trial or retrial and the convicted person's criminal record.”
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-22827
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: MARZARI v. ITALY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national, born in 1944 and currently residing in Trento.
The facts of the present case, as submitted by the parties, may be summarised as follows.
The applicant started suffering from a rare and serious illness called metabolic myopathy in 1965. Metabolic myopathy provokes physical exhaustion, severe myalgia, difficulties in breathing, loss of the power of speech. The applicant in particular suffers from a "thermal disability" i.e. cold temperatures and changes in temperature cause him intense muscular pain. He is often forced to use a wheelchair.
However, the applicant’s illness was not diagnosed until 1979. Prior to that date, the applicant was thought to be a psychopath.
In 1980 the applicant was recognised as 100% disabled and started receiving a pension as a result.
The applicant embarked on a series of actions and demonstration, including hunger strikes, in order to obtain the removal of architectural obstructions (barriere architettoniche) and to obtain some form of social help.
On an unspecified date in 1989, as a consequence of one of these actions, the applicant was allegedly ill-treated by the police. On 28 December 1989 the applicant filed a criminal complaint against the police in relation to the above facts, which was however dismissed.
The applicant’s detention
On an unspecified date the applicant requested the President of the Province of Trento to enforce provincial law no. 43 of 17 December 1993, which, inter alia, imposes certain obligations upon the provincial social security service to help those suffering from metabolic myopathy. The President of the Province of Trento filed a criminal complaint against the applicant for extortion, on the ground that he had tried to force the administrative authorities to favour him. On 29 June 1995, the applicant was arrested.
On 14 August 1995, after two medical experts’ reports had established that the applicant’s physical condition was not compatible with detention, he was released. The charge against him was then converted from extortion into "arbitrary and violent exercise of his rights" (esercizio arbitrario delle proprie ragioni con violenza alle persone), but later dropped, no formal complaint having been lodged against him on this charge (non doversi procedere per difetto di querela).
On 20 June 1997 the Trento Court of Appeal awarded the applicant compensation (7,000,000 Italian lira) for the 58-day unfair detention (ingiusta detenzione), on the ground that the charge against him had been dropped and in consideration of his poor state of health.
However, on 18 July 1997 the Ministry of the Treasury lodged an appeal against this decision to the Court of Cassation. These proceedings are currently pending.
The applicant’s accommodation
Since 1973 the applicant had lived in a privately rented apartment in via Suffragio no. 53 (hereinafter referred to as “the first apartment”), which he had adapted, at his own expense, to his needs in view of his pathology.
In 1988 the Trentino Institute for Housing (Istituto Trentino per l’Edilizia Abitativa, hereinafter referred to as "ITEA") expropriated the building. ITEA intended to renovate the building, and tried therefore to find another suitable accommodation for the applicant, who demanded the respect of certain criteria and technical characteristics.
On 8 August 1991, an apartment located in via Suffragio no. 63 (hereinafter referred to as “the second apartment”) was allocated to the applicant by ITEA; the applicant moved into it, despite the fact that he considered it to be inadequate to his needs.
On 21 January 1992 the applicant and ITEA entered into the relevant lease contract; the rent was fixed at 64,500 lira per month.
In 1992 provincial law no. 21/1992 was enacted, according to which ITEA has an obligation to provide persons who are recognised as 100% disabled with accommodation meeting their specific needs.
In 1993 the applicant ceased the payment of the rent, demanding that certain works be carried out in the apartment with a view to making it fit for his needs.
On 30 April 1993 ITEA instructed a lawyer to commence proceedings with a view to recovering the arrears of rent from the applicant and to recovering possession of the apartment. On an unspecified date, the Trento Magistrate’s Court formally confirmed the notice to quit and set the date of the applicant’s eviction at 22 July 1993.
On 26 May 1993 ITEA submitted to the applicant a plan of payments of the arrears over twelve instalments; this proposal was refused.
On 14 July 1993 ITEA decided to refrain from requesting the enforcement of the Magistrate’s Court’s order for possession for six months, in consideration of the applicant’s health condition and of his alleged credit towards ITEA on account of the expenses he had incurred in order to adapt the apartment to his needs.
On 29 September 1993 ITEA acknowledged part of the amounts claimed by the applicant.
On 13 December 1993, the applicant paid part of his outstanding debt to ITEA.
In connection with the remainder of the applicant’s debt and for the legal costs and expenses incurred by ITEA, the enforcement of the eviction order was pursued and fixed at 24 June 1994.
On 11 March 1994 the applicant, after having occupied as a protest the hall of the Province Building, poured 400 litres of petrol around the building where his flat is. He was arrested and subsequently convicted. In the meantime, the other occupants of the building had to vacate it for a week.
On 17 March 1994 ITEA submitted to the applicant another plan of payment of the arrears of rent and legal costs and expenses. The applicant replied that he was ready to pay for the arrears of rent but not for the legal costs and expenses.
On 16 June 1994 ITEA instructed its lawyer to pursue the applicant’s eviction.
On 21 June 1994 ITEA requested the assistance of the Provincial Body for Health Services of the Autonomous Province of Trento (Azienda Provinciale per i Servizi Sanitari della Provincia Autonoma di Trento), which accepted.
The eviction was postponed until 12 September 1994. The applicant’s lawyer requested ITEA to refrain form the eviction so that he could find a solution. The new date for the eviction was fixed at 22 November 1994.
On 16 and 23 November 1994, however, ITEA decided to stay the eviction until 30 June 1995.
On 5 January 1995 ITEA requested the applicant to demolish certain parts he had illegally built on his balcony, in pursuance of an order issued by the municipality on 29 December 1994.
On 21 June 1995 and 10 October 1995 ITEA decided to stay the applicant’s eviction.
On 29 May and 28 August 1996 ITEA decided to stay the applicant’s eviction for six more months, pending the proceedings opened by the Trento municipality with a view to withdrawing the allocation of the second apartment to the applicant.
On 4 November 1996 the Trento City Council revoked the allocation of the apartment to the applicant pursuant to provincial law no. 21/92, on account of the repeated breaches of the terms of contract by the applicant.
The applicant alleges that he was not served notice of this decision. The Government maintain that he received notification of it on 30 December 1996 and submit that the applicant failed to lodge an appeal to the competent Provincial Committee (Commissione Provinciale di Vigilanza) and was thus informed, on 5 February 1997, that the decision on withdrawal was final but that he had the possibility of requesting that its enforcement be suspended.
In a report issued on 5 September 1997 by the Provincial Body for Health Services of the Autonomous Province of Trento it was stated that the second apartment did not meet the requirements laid down in the relevant legislation. In particular: a) access to the WC is difficult for a disabled person; b) the bathtub is inadequate for the hydrotherapy needed by the applicant; c) the windows are not triple glazed; d) there is no structural separation between the apartment and the loft; d) the roof is not adequately insulated due to the presence of cracks.
On 1 October 1997 the applicant’s eviction was stayed for six more months. ITEA inquired whether the decision on withdrawal could be suspended but the Province informed it that it was not possible in the absence of a request by the applicant. By a note of 26 January 1998, the Trento Municipality confirmed that the applicant had never requested the suspension of the decision on withdrawal.
On 28 January 1998 the applicant was evicted. He went to live in a camper van parked in the main square of Trento.
On 25 February 1998 the Trento Municipality informed the Provincial Body for Health Services of the Autonomous Province of Trento to be ready to allocate to the applicant, upon his request, a place in a home for the sick and to request the Commission for the study of metabolic diseases (Commissione di studio delle malattie metaboliche), set up by the Province of Trento and composed of six medical doctors, to express its opinion as to whether the applicant needed to be accommodated in one of these homes.
On 28 February 1998 the applicant filed an application with the Magistrate’s Court of Trento requesting, inter alia, that the second apartment be adapted to his needs and that he be reinstated in it. However, by an ordinance issued on 11 April 1998 the Trento Magistrate’s Court declared its incompetence to grant the applicant’s requests and thus rejected them. The court pointed out that it was for the administrative courts to order ITEA to comply with its obligation and to provide the applicant with an adequate apartment.
On 3 March 1998 the Commission for the study of metabolic diseases issued a report on the applicant’s case listing the requirements which the applicant’s accommodation should meet.
In connection with the arrears of rent, on 5 March 1998 the Trento Magistrate’s Court issued an injunction of payment.
On 9 March 1998 the provincial body on residential housing (Servizio Edilizia Abitativa della Provincia autonoma di Trento) stated that it would not be possible to allocate another apartment to the applicant, on account of his insolvency.
On 19 March 1998 the applicant was hospitalised in Trento; his condition has dramatically deteriorated on account of his living in an inadequate environment (camper van). On 26 April 1998 the applicant went on hunger strike. In a report issued on 15 June 1998 by a commission of doctors from the hospital, it was stated that the applicant should be discharged from hospital due to the lack of facilities adequate to his illness and that therefore a solution to his housing problem was urgently needed.
On 1 July 1998 the applicant’s moveable items were seized from the second apartment with a view to recovering the arrears of rent owed by the applicant.

On 2 July 1998 the health and social affairs councillor’s office (assessorato alla sanità e attività sociali) of Trento Province decided that it would try to find an institution which would accept to bear the costs for the rent and maintenance of the apartment for the applicant, pursuant to Article 30 of Law no. 21/92. The apartment would thus be formally allocated to this institution, which would then make it available for the applicant. On 27 July 1998 a representative of the councillor’s office was formally appointed to this task.
In co-operation with the Trento municipality, six apartments owned by ITEA were found; the Commission for the study of metabolic diseases was requested to inspect them with a view to finding a suitable one.
By a note of 11 August 1998, the Commission for the study of metabolic diseases stated to have found that the one in Aldeno (hereinafter referred to as “the third apartment”) was suitable. The applicant was informed accordingly.
By a decision of 18 February 1999, the Comprensorio Valle dell’Adige of the Trento Province allocated the third apartment to the applicant. The Commission for the study of metabolic diseases pointed out that certain works needed to be carried out in the third apartment with a view to making it fully adequate to the applicant’s medical condition, and the Comprensorio stated that it would proceed with the works after the applicant’s formal acceptance of the apartment.
The applicant however refused to accept the third apartment and to leave the hospital.

On 18 March 1999 the Director of the Trento Hospital, having learned that a suitable apartment had been put at the applicant’s disposal, requested the latter to leave the hospital, as his presence there was not needed any more and the place he occupies in the hospital was necessary for other patients.
On 24 March 1999 the applicant was formally discharged from hospital. The Director of the Hospital has requested the police to evict the applicant.


ITEMID: 001-105677
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GUBIYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Remainder inadmissible;Pecuniary damage and non-pecuniary damage - award
JUDGES: Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 6. The applicant was born in 1934 and lives in Chechen-Aul.
7. He is the sole founder, director and owner of a limited liability company called Voskhod (Общество с ограниченной ответственностью «Восход», “the company”).
8. According to the applicant, at the material time the company owned a mill complex and a petrol station.
9. In late 1999 the Russian Government launched a counter-terrorism operation in Chechnya.
10. On 18 July 2000, during a special operation in the vicinity of the village of Chechen-Aul, servicemen of military unit no. 3660 of the Russian Ministry of the Interior blew up the mill belonging to the company, with the result that it was completely destroyed and the petrol station situated nearby was damaged.
11. In 2000-2001 the applicant complained on behalf of the company to a number of public officials, including the commander of military unit no. 3660, the head of the administration of the Chechen Republic and prosecutors at various levels, about the damage inflicted.
12. On 25 May 2001 the prosecutor’s office of military unit no. 20102 took a decision to dispense with criminal proceedings in connection with the incident of 18 July 2000. The decision stated that, on the date in question, the servicemen of military unit no. 3660 had been carrying out a special operation in the vicinity of Chechen-Aul, and that, in order to destroy a place which was supposed to be a terrorist arms and ammunition store, and which the terrorists had transformed into a base from which they had strafed a federal checkpoint, the servicemen, following their commanding officers’ order, had blown up the mill complex belonging to the company, with the result that it had been completely destroyed. The decision further stated that the actions of the commanding officers and servicemen of military unit no. 3660 had been based on section 21 of the Federal Law on Suppression of Terrorism (“the Suppression of Terrorism Act”), had been rendered absolutely necessary by unlawful actions of unidentified illegal fighters putting the federal servicemen’s lives in real danger, and had been aimed at eliminating that danger. The decision went on to note that the danger could not have been eliminated by any other means, and therefore the destruction of the company’s property had not constituted a criminal offence. It thus concluded that there had been no evidence of a crime in the servicemen’s actions. The decision also stated that, taking into account the aforementioned circumstances and the fact that the pecuniary damage had been inflicted on a third person who had not performed any actions that would have rendered the infliction of damage absolutely necessary, a question of compensation for that damage should be resolved by a civil procedure.
13. In 2002 the applicant, acting on the company’s behalf, issued proceedings against military unit no. 3660 before the Commercial Court of the Rostov Region. He sought compensation for losses sustained in the amount of 13,483,299 Russian roubles (RUB, approximately 335,000 euros, EUR).
14. On 2 July 2002 the court rendered its judgment. Throughout the judgment the court referred to the mill complex and petrol station as the company’s property. It established the circumstances of the incident of 18 July 2000 as they had been presented by the claimant company and confirmed that the damage inflicted corresponded to the amount indicated in the court claim. In this latter respect, the court based its finding on a working estimate (see paragraph 33 below) and a letter from the State Agency for Construction, Architectural and Housing Policy, according to which the original amount should be adjusted in line with the index of prices in the first quarter of the year 2002.
15. The court further held as follows:
“... The military prosecutor’s office of military unit no. 20102 carried out an inquiry into the incident. In a decision of 25 May 2001 reflecting the result of the inquiry it had been established that on 18 July 2000, pursuant to a combat order, servicemen of military unit no. 3660 were pursuing a special operation in the village of Chechen-Aul and its adjacent territory.
The materials of the case reveal that the mill belonging to the Voskhod company was a convenient position to direct fire on the outpost of Interior troops stationed nearby, and that the lives and health of the servicemen were put under constant risk as a result. Since section 21 of the Suppression of Terrorism Act permitted deliberate infliction of damage on the legally protected interests of a person, society, or the State, the commanding officers of military unit no. 3660 took a decision on the basis of which the servicemen of that unit blew up the mill complex belonging to the Voskhod company. As a result of the explosion the building was completely destroyed.
...
... In accordance with section 21 of the Suppression of Terrorism Act ..., on the basis of the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally protected interests, in the course of a counter-terrorism operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.
By virtue of Article 1067 of the Russian Civil Code, damage inflicted in a situation of absolute necessity, and notably for elimination of a danger threatening the tortfeasor or third parties, if the danger, in the circumstances, could not be eliminated by any other means, shall be compensated for by the tortfeasor.
Having regard to the circumstances in which the damage was caused, a court may impose an obligation to compensate for such damage on a third party in whose interests the tortfeasor acted, or release from such an obligation, partially or in full, both the third party and the tortfeasor.
The court, taking into account the absence of unlawfulness in the defendant’s actions and the fact that those actions were performed in a situation of absolute necessity, holds that they were lawful. Such actions are socially useful as they are aimed at protecting an individual, his rights and freedoms, the interests of society and the State from impending danger.
Taking into account the circumstances in which the damage was caused and the fact that [it was inflicted on] a person who had not committed any unlawful acts but had become a victim of a seriesobligation to compensate for the losses.”
16. The court thus dismissed the claimant company’s claims in their entirety and ordered the company to pay a court fee in the amount of RUB 100,000 (approximately EUR 2,500).
17. On 29 August 2002 the Commercial Court of the Rostov Region, sitting as an appellate court, upheld the first-instance judgment, having in essence restated its reasoning. In its decision the court described the mill complex and petrol station as the company’s property.
18. On 25 November 2002 the Federal Commercial Court of the NorthCaucasus Circuit (“the Federal Commercial Court”) dismissed the company’s appeal, stating, in particular:
“According to certificates issued by the Bureau of Technical Inventory of the Ministry of Housing Maintenance and Utilities and dated 20 March and 13 June 1996 [the mill and the petrol station] are registered in the name of the Voskhod company (зарегистрированы за ООО «Восход») on the basis of decisions of the Chechen-Aul local council dated 26 February 1992 and 26 December 1993 respectively. However, the claimant company has not submitted to this court documents confirming that the mill complex and petrol station were properly transferred into the company’s ownership (переданы на баланс ООО «Восход»), or proof of any other legal grounds for the company to acquire the property title to the mill complex and petrol station. There is no documentary evidence to confirm the condition and value of [the property in question] before it was destroyed.
... The claimant company confirmed [the amount of losses] by estimates of costs for the construction of a new mill complex and petrol station.
The Voskhod company did not offer proof that it had acquired the property, or of its value at the moment of destruction, and therefore the court rightly dismissed the claimant company’s action.”
19. The court also upheld the reasoning of the two lower courts, stating, in particular, that the servicemen’s actions had been based on the Suppression of Terrorism Act and relevant presidential decrees and had aimed at restoring constitutional order in the Chechen Republic. It also noted that there had been no evidence in the materials of the case that the servicemen had acted ultra vires or that their actions had been unlawful, and therefore the servicemen should be exempt from responsibility for their actions.
20. Thereafter the applicant, acting on the company’s behalf, sought to have the amount of the court fee imposed on him by the first-instance court reduced. His request was dismissed.
21. Both parties submitted various documents confirming that the applicant was the sole founder, owner and director of the company.
22. A certificate issued by a tax authority confirmed that the company had been registered with that authority on 3 May 2001 and had been given an identification number as a taxpayer.
23. An extract of 1 July 2008 from the Uniform State Register of Legal Entities (Единый государственный реестр юридических лиц) provided various details concerning the Voskhod company. It indicated, in particular, that the company’s principal business activity was the retail sale of motor fuel, and its subsidiary activity was the production of flour, flour blends and pastry preparations for baking.
24. By a decision of 26 February 1992 the local council of the village of Chechen-Aul (“the Chechen-Aul local council”) assigned to the applicant, in his capacity as director of the Voskhod company, a plot of land measuring 300 square metres, and authorised the company to build a petrol station on that plot.
25. A certificate of 13 April 1993 issued by a competent authority attested that the construction of the petrol station had been completed and that that authority had accepted it as commissioned and fully operational.
26. In a decision of 26 December 1993 the Chechen-Aul local council, at the applicant’s request, gave him permission to build a mill complex and assigned him a plot of land measuring 1,500 square metres for that purpose.
27. A certificate of 20 March 1996 issued by the Republican Bureau of Technical Inventory of the Russian Ministry of Housing Maintenance and Utilities confirmed that the mill complex had been registered as the Voskhod company’s property on the basis of the decision of 26 December 1993 by the Chechen-Aul local council. A similar certificate was issued by the Republican Bureau of Technical Inventory on 13 June 1996 in respect of the petrol station.
28. Under a contract of 10 April 1999 the company agreed to purchase various equipment for the mill complex and to pay RUB 125,000 (approximately EUR 3,100).
29. A certificate of 13 December 2005 attested to the State registration of the property title to a petrol station belonging to the Voskhod company.
30. An extract of 18 July 2008 from the Uniform State Register of Rights to Immovable Property and Transactions therewith (Единый государственный реестр прав на недвижимое имущество и сделок с ним) confirmed that the Voskhod company was the owner of a petrol station. Another extract of the same date stated that there was no entry in the aforementioned Register in respect of any property rights of the Voskhod company to any mill complex.
31. A report of 19 July 2000 stated that on that date a commission of the Chechen-Aul local council had examined, at the applicant’s request, the mill complex belonging to the Voskhod company. The commission had established that the mill, which had had a production capacity of 100 tons of flour per day and had consisted of a permanent three-floor building measuring 20 x 30 metres, had been completely destroyed. The report then gave a more detailed description of the damage inflicted. It also stated that the commission had examined the mill complex in May 2000 and had drawn up an evaluation report attesting to some damage inflicted on the building during the previous military actions. The report then certified that the complete destruction of the mill complex, established by the commission on that date, had been carried out by federal forces on 18 July 2000 during a special operation in Chechen-Aul, this being confirmed by objective evidence and witness statements to the effect that representatives of the federal forces had planted explosive devices and then set off explosions in at least eight parts of the mill building. The commission also indicated in the report that the Voskhod company should apply to specialised agencies for assessment of the damage inflicted.
32. By a certificate it issued on 5 November 2008 the Chechen-Aul local council attested that on 18 July 2000 the mill complex with equipment belonging to the Voskhod company had been destroyed and the petrol station had been damaged.
33. A working estimate of repair costs of 15 September 2001 indicated that it was necessary to invest an overall amount of RUB 9,356,308 (approximately EUR 234,000) to restore the mill complex and petrol station.
34. A report of 11 September 2002 drawn up by a State agency of expert examinations stated that this latter authority had, at the applicant’s request, carried out an expert evaluation of the aforementioned estimate of repair costs and established that they should total RUB 13,677,294 (approximately EUR 340,000), taking into account the index of prices in the third quarter of the year 2002.
35. In a certificate of 20 September 2000, issued at the applicant’s request, the Chechen-Aul local council confirmed that on 18 July 2000, the date on which the mill complex belonging to the Voskhod company had been blown up, the federal forces had been carrying out a special operation in Chechen-Aul to blow up oil refining facilities. The operation in question had been conducted by military unit no. 3660.
36. In his explanation given on 27 June 2008 to the prosecutor’s office of the Chechen Republic the applicant confirmed that he was the sole founder, owner and director of the Voskhod company. He further stated that the Chechen-Aul local council in its decision, of 26 February 1992, (see paragraph 24 above), had authorised the company to build a petrol station, that the construction had been completed on 13 April 1993, and that the petrol station had been acknowledged by a competent State authority as commissioned and fully operational (see paragraph 25 above). The applicant pointed out that the company had duly registered the property title to the petrol station with the Bureau of Technical Inventory (see paragraph 27 above), but no documents confirming the formal transfer of the title in respect of the petrol station to the company had ever been drawn up. The applicant also stated that on 26 December 1993 the Chechen-Aul local council had also authorised the company to build a mill complex (see paragraph 26 above). According to him, the construction had been completed in late 1993 [apparently a mistake, should read 1994] and the mill complex started functioning with a production capacity of 100 tons of flour per day. The applicant stated that he had been unable to comply with the procedure whereby a new construction should be accepted by an appropriate State authority as commissioned and fully operational, because of the beginning of military actions in the Chechen Republic at that time. He also stated that the company had registered the property title to the mill complex with the Bureau of Technical Inventory (see paragraph 27 above), but no documents confirming the formal transfer of the title to the mill complex to the company had ever been drawn up. The applicant further claimed, with reference to the contract of 10 April 1999 (see paragraph 28 above), that the company had purchased various equipment for the mill. He went on to state that from late 1999, when the second counter-terrorism operation in the Chechen Republic started, until late 2001, military unit no. 3660 had been stationed on the Voskhod company site, including in the mill complex, and that servicemen of that unit had disassembled the equipment. After military unit no. 3660 had been transferred to another location, the servicemen of that unit had blown up the mill complex building. According to the applicant, prior to the events in question no survey of the petrol station and mill complex had been done. The applicant further referred to an estimate of 15 September 2001 (see paragraph 33 above) and stated that at present the amount necessary to restore the petrol station and mill complex was considerably higher than that indicated in the estimate.
37. In a certificate of 5 November 2008 the Chechen-Aul local council confirmed that for several months, from early 2000 until July 2000, federal servicemen had been stationed within the territory and on the Voskhod company site, of which the applicant was the founder and director.
38. The Russian Constitution provides as follows:
“1. The right of private property shall be protected by law.
...
3. No one may be deprived of property otherwise than by a court decision. Expropriation of property for State needs may only be carried out subject to preliminary and equivalent compensation.”
“...
3. The rights and freedoms set forth in the Constitution may only be limited by the federal law to the extent necessary for the protection of the fundamental principles of the constitutional system, morality, health, the rights and lawful interests of other people, or for ensuring the defence of the country and security of the State.”
39. Article 131 of the Russian Civil Code states that the title to and other proprietary interests in immovable property, limitations of those rights, their creation, transfer and termination shall be subject to State registration in a single State register by the relevant authorities. The State registration procedure was established in the Federal Law On Registration of Property Rights to Immovable Property and Transactions with such Property (“the State Registration Act”).
40. Article 1064 provides that damage caused to the property of an individual or of a legal entity shall be compensated for in full by the person who inflicted such damage. The latter may be released from the obligation to pay compensation if he or she can prove that the damage was not inflicted through his or her own fault; however, the law may provide for compensation in respect of damage even in the absence of fault by the person who caused it. Damage inflicted by lawful actions shall be compensated for in cases established by law.
41. By virtue of Article 1067, damage inflicted in a situation of absolute necessity, and notably for elimination of a danger threatening the tortfeasor or third parties, if the danger, in the circumstances, could not be eliminated by any other means, shall be compensated for by the tortfeasor. Having regard to the circumstances in which the damage was caused, a court may impose an obligation to compensate for such damage on a third party in whose interests the tortfeasor acted, or may release from such an obligation, partially or in full, both the third party and the tortfeasor.
42. Article 1069 stipulates that a State agency or a State official will be liable towards a citizen for damage caused by their unlawful actions or failure to act. Compensation for such damage will be awarded at the cost of the federal or regional treasury.
43. Article 25 of the Russian Code of Commercial Procedure establishes that actions must be brought in the courts at the location of the defendant.
44. The Federal Law on Suppression of Terrorism of 25 July 1998 (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом», “the Suppression of Terrorism Act”), as in force at the relevant time, provided as follows:
“For the purposes of the present Federal Law the following basic concepts shall be applied:
... ‘suppression of terrorism’ shall refer to activities aimed at the prevention, detection, suppression and minimisation of the consequences of terrorist activities;
‘counter-terrorist operation’ shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts;
‘zone of a counter-terrorist operation’ shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted;...”
“On the basis of the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally protected interests, in the course of a counter-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.”
45. The Federal Law On Registration of Property Rights to Immovable Property and Transactions with such Property (Федеральный закон от 21 июля 1997 г. № 122-ФЗ «О государственной регистрации прав на недвижимое имущество и сделок с ним, “the State Registration Act”) in its sections 2 and 4 provides that the title to and other proprietary interests in immovable property shall be subject to State registration, and that the latter shall be the only proof of the existence of a right of property.


ITEMID: 001-23735
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: ERDEMLI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Mr Hasan Erdemli, is a Turkish national, who was born in 1960 and was serving a prison sentence at the time of the application. He was represented before the Court by Mr M. Erdemli, his father.
On 30 November 1994 the Ankara State Security Court convicted the applicant of membership of an illegal organisation, THKP/C-DEV-SOL, under Article 168 §1 of the Criminal Code.
On 4 January 1995 the applicant lodged an appeal against the Ankara State Security Court's judgment.
On 15 June 1995 the Court of Cassation upheld the judgment of 30 November 1994.
On 13 October 1995 the applicant introduced an application with the European Commission of Human Rights. He complained under Article 6 § 1 of the Convention that he was deprived of his right to a fair trial in that he had not been assisted by a lawyer during his questioning by the police, the public prosecutor and the magistrate.
On 21 August 2001, after an exchange of correspondence, the Registrar suggested to the parties that they should attempt to reach a friendly settlement within the meaning of Article 38 § 1 (b) of the Convention. On 13 September 2001 and on 17 September 2001 the Government and the applicant's representative respectively submitted formal declarations accepting a friendly settlement of the case.
On 30 October 2001 the Court struck the case out of the list.
On 23 January 2003 Law no. 4793 came into force, which provided, inter alia, re-opening of the criminal proceeding if the European Court of Human Rights holds in a final judgment that a decision in criminal proceedings has violated the European Convention on Human Rights or its protocols.
On 31 March 2003 the applicant requested the 1st Chamber of the Ankara State Security Court to re-open the criminal proceedings against him.
On 9 April 2003 the 1st Chamber of the Ankara State Security Court dismissed the applicant's request holding that the European Court of Human Rights had not found a violation of the European Convention of Human Rights concerning the criminal proceedings against the applicant.
On 28 April 2003 the applicant filed an objection with the 2nd Chamber of the Ankara State Security Court against the decision of 9 April 2003.
On 8 May 2003 the 2nd Chamber of the Ankara State Security Court dismissed the applicant's objection on the same grounds with the 1st Chamber of the Ankara State Security Court.
Article 327 of the Code of Criminal Procedure lists the circumstances in which “a person convicted in a judgment that has become final may be granted a re-trial”.
It was amended by Article 3 of Law no. 4793, which added a sixth set of circumstances in which the proceedings could be re-opened:
“where it has been held in a final judgment of the European Court of Human Rights that a decision in criminal proceedings was given in breach of the Convention for the Protection of Human Rights and Fundamental Freedoms or its Protocols. In such cases, an application to re-open the proceedings may be lodged within one year of the date on which the judgment of the European Court of Human Rights became final.”
Law no. 4793 came into force on 4 February 2003. By provisional Article 1 of the Law, Article 3 is applicable in only two sets of circumstances: where the Court has delivered a judgment that became final before the Law came into force, and where the Court delivers a final judgment on an application lodged after the Law came into force.


ITEMID: 001-75155
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF LASZLO KOCSIS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1957 and lives in Ács, Hungary.
5. In April 1993 criminal proceedings were instituted against the applicant and his accomplices on charges of counterfeiting money and of other offences.
6. On 6 December 1994 a bill of indictment was preferred.
7. The Tatabánya District Court held hearings on 20, 21 April, 9 May and 13 June 1995. On the latter date it ordered that the investigation be resumed. The time-limit for the completion of the investigation was prolonged on 7 September and 27 October 1995, and also at the hearings on 7 December 1995, 4 June and 13 November 1996. Simultaneously, legal assistance was being sought from the Slovak authorities.
8. Further hearings took place on 17 April, 7 October, 13 November and 11 December 1997. At the hearing on 22 January 1998 the case against two co-defendants was separated since they were abroad. Another hearing was held on 29 January 1998.
9. On 4 February 1998 the District Court convicted the applicant of abuse of explosives and sentenced him to ten months’ imprisonment, suspended for two years.
10. On 20 March 2000 the Komárom-Esztergom County Regional Court quashed this judgment, essentially for procedural shortcomings, and remitted the case. It ordered that the case be given priority.
11. In the resumed proceedings the case fell within the Regional Court’s jurisdiction acting at first instance due to a legislative change.
12. The Regional Court held hearings on 7 February and 26, 27 and 28 June 2001. On the latter date it appointed a medical expert. A further hearing was held and another expert appointed on 27 September 2001.
13. Additional hearings took place on 1 March, 12 April, 30 August, 22 November and 20 December 2002.
14. After further hearings on 22 January, 25 February and 9 May 2003, on 22 May 2003 the court convicted the applicant of abuse of explosives and sentenced him to eight months’ imprisonment, suspended for one year. For the applicant, the judgment became final on the same day.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80800
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: HOMANN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Jürgen-Peter Homann, is a German national who was born in 1945 and is currently detained in Diez.
On 30 April 1985 the Koblenz Regional Court convicted the applicant of two counts of rape and sentenced him to twelve years’ imprisonment. Furthermore, the court ordered the applicant’s placement in preventive detention pursuant to section 66 of the Criminal Code (see ‘Relevant domestic law’, below).
Since 25 August 1999 the applicant, having served his full prison sentence, has been remanded in preventive detention.
In the course of proceedings for review of whether the further execution of the applicant’s placement in preventive detention should be suspended on probation, the Arnsberg Regional Court summoned the applicant to a hearing on 22 May 2002.
By fax of 21 May 2002 the applicant lodged a motion with the Arnsberg Regional Court to revoke the designation of his court-appointed defence counsel. He argued that following the counsel’s visit in prison on that day, there was no longer a relationship of trust between him and his counsel. He informed the court that he would not appear at the hearing scheduled for 22 May 2002 as no proper defence had been set up. He further objected to the report submitted by expert K. on the risk of his being recidivist as the expert had not been able to consult the complete case-files.
On 22 May 2002 the president of the Arnsberg Regional Court dismissed the applicant’s request to revoke the appointment of his counsel as illfounded. He argued that under section 143 of the Code of Criminal Procedure (CCP), it was possible to revoke the designation of an officially appointed defence counsel if the mutual trust between the defendant and the lawyer was seriously disturbed. However, the applicant failed to substantiate this since he had not given any reasons for his allegation that there was no longer a relationship of trust between him and his counsel.
On 22 May 2002 the Arnsberg Regional Court refused to suspend the applicant’s placement in detention on probation following a hearing on the same day. At the hearing the applicant’s court-appointed defence counsel and the expert were present. As announced in his fax to the court, the applicant himself did not attend the hearing. Having regard to the report submitted by expert K., the Regional Court found that it could not be assumed that the applicant would not commit further offences if released from prison. It stated that the expert had convincingly argued that the applicant, as shown by his offence, was still dangerous for the public. Even though he had committed his last offence eighteen years ago, there were no signs that the applicant, who kept claiming to have been wrongfully convicted, was no longer likely to be recidivist.
On 28 May 2002 the applicant received a copy of the decisions taken by the Arnsberg Regional Court and its president by post. The Regional Court informed him that the decisions had been formally served on his defence counsel. Other than the letter to his counsel served on the same day, the letter to the applicant did not contain instructions about his available legal remedies (Rechtsmittelbelehrung).
By submissions dated 10 and 11 June 2002, which reached the Hamm Court of Appeal on 14 June 2002, the applicant lodged an appeal against the aforementioned decisions of the Arnsberg Regional Court and its president.
On 26 September 2002 the Hamm Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision not to suspend his placement in preventive detention on probation as inadmissible. The court found that the applicant had not lodged his immediate appeal (sofortige Beschwerde) with the Regional Court as prescribed by section 306 § 1 CCP (see ‘Relevant domestic law’, below), but directly with the Court of Appeal. The Court of Appeal had not been obliged to forward the appeal to the Regional Court, as it had already been lodged out of time when received by the Court of Appeal. Pursuant to sections 311 § 2 and 35 § 2 CCP (see ‘Relevant domestic law’, below), the applicant had to lodge his immediate appeal within one week after the Regional Court’s decision, including instructions about the available legal remedies, had been served on his lawyer on 28 May 2002. The applicant had, however, failed to lodge his appeal until 4 June 2002 at the latest with the Arnsberg Regional Court.
The Hamm Court of Appeal further dismissed the applicant’s appeal against the refusal of the president of the Regional Court to revoke the designation of his court-appointed defence counsel as ill-founded. Endorsing the reasons given by the Regional Court, it argued that the applicant failed to substantiate that there were circumstances warranting the conclusion that the relationship of trust between him and his courtappointed lawyer was considerably and irrevocably disturbed to an extent which rendered the conduct of a proper defence impossible. In particular, it had been objectively justified for the defence counsel to refuse to lodge motions aimed at challenging the applicant’s conviction in 1985. The lawfulness of this conviction was not at issue in the proceedings concerning the necessity of the applicant’s continued placement in preventive detention.
On 13 October 2002 the applicant filed a remonstrance (Gegenvorstellung) against the decision of the Hamm Court of Appeal dated 26 September 2002 dismissing his immediate appeal against the Regional Court’s decision not to suspend his placement in preventive detention on probation. He complained that the Regional Court’s letter of 28 May 2002 to him had not contained instructions about the available legal remedies. He had not been in contact with his officially appointed counsel after 21 May 2002. He further argued that the Regional Court had been obliged to give him an opportunity to supplement the reasons why there was no longer a relationship of trust with his lawyer.
On 29 October 2002 the Hamm Court of Appeal, interpreting the applicant’s remonstrance as a request for reinstatement of the proceedings (Wiedereinsetzung in den vorigen Stand), dismissed this request. It found that the applicant had not substantiated that he had been prevented from observing the one-week time-limit for lodging an immediate appeal without fault of his own (section 44 CCP, see ‘Relevant domestic law’, below). Instructions about the available legal remedies were and had to be given solely to the applicant’s lawyer, on whom the Regional Court’s decision had been formally served (sections 35a and 145a § 3 CCP, see ‘Relevant domestic law’, below). There was no obligation under the Code of Criminal Procedure to enclose such instructions also in the letter sent to the applicant (section 145a § 3 CCP, see ‘Relevant domestic law’, below). In that letter, the Court of Appeal had informed the applicant of the contents of the Regional Court’s decision and of the fact that it had been served on his counsel. He should therefore have contacted his lawyer without undue delay in order to be informed about the further course of the proceedings or to mandate him to lodge an appeal.
On 14 November 2002 the Hamm Court of Appeal rejected the applicant’s further remonstrance against its decision of 29 October 2002.
On 8 April and 19 August 2003 the Hamm Court of Appeal dismissed the applicant’s further requests for reinstatement of the proceedings.
On 6 May 2003, 16 October 2003 and 11 November 2003 the Hamm Court of Appeal rejected the applicant’s further remonstrances.
On 10 December 2003 the applicant lodged a complaint with the Federal Constitutional Court against the aforementioned decisions taken by the Regional Court and the Court of Appeal. He argued, in particular, that the failure to grant him access to the Court of Appeal in order to complain about the refusal of the Arnsberg Regional Court to suspend his placement in preventive detention on probation had violated his right to a fair trial as guaranteed by the Basic Law. The Regional Court had notably failed to inform him about the available legal remedies against its decision of 22 May 2002. Moreover, his right to a fair hearing had been breached in that the Regional Court had not revoked the designation of his court-appointed counsel without giving him an opportunity further to substantiate why there was no longer a relationship of trust between him and his counsel.
On 11 February 2004 the Federal Constitutional Court, without giving reasons for its decision, refused to admit the applicant’s constitutional complaint.
Decisions which are not taken in the presence of the person concerned shall be notified by service thereof (section 35 § 2 of the Code of Criminal Procedure – CCP).
The court-appointed defence counsel is considered authorized to accept service of documents on behalf of the defendant (section 145a § 1 CCP). If a decision is served on counsel for the defence, the defendant shall be informed thereof; at the same time he shall be provided informally with a copy of the decision (section 145a § 3 CCP).
Upon notification of a decision the appeal against which is subject to a time-limit, the person concerned shall be given instructions about the options for contesting the decision and the prescribed time-limits and forms (section 35a CCP).
An appeal against a decision (Beschwerde) shall be lodged with the court which took the contested decision, either orally to be recorded by the court’s registry or in writing (section 306 § 1 CCP).
An immediate appeal (sofortige Beschwerde) shall be lodged within one week; the time-limit shall start running upon notification (section 35 CCP) of the decision (section 311 § 2 CCP).
Section 44 provides that if a person was prevented from observing a time-limit without fault of his own, he shall be granted reinstatement of the proceedings (Wiedereinsetzung in den vorigen Stand). Failure to observe the time-limit for lodging an appeal shall be considered as not due to his fault if the instructions pursuant to section 35a CCP have not been given.
The sentencing court may, at the time of the offender’s conviction, order his preventive detention in addition to his prison sentence if the offender is sentenced for an intentional offence to at least two years’ imprisonment, has previously been convicted and detained (for certain periods fixed by law) and proved dangerous for the public (section 66 of the Criminal Code).
The court dealing with the execution of sentences may review at any time whether the further execution of the placement of a convicted person in preventive detention should be suspended on probation. It is obliged to do so every two years (section 67e of the Criminal Code).


ITEMID: 001-57927
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF WELCH v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 7;Costs and expenses award - Convention proceedings;Pecuniary damage - reserved
JUDGES: Gaukur Jörundsson;John Freeland;N. Valticos;R. Pekkanen
TEXT: 7. On 3 November 1986 Mr Welch was arrested for suspected drug offences. On 4 November he was charged in respect of offences concerning the importation of large quantities of cannabis. Prosecuting Counsel advised, prior to February 1987, that there was insufficient evidence to charge Mr Welch with possession of cocaine with intent to supply.
8. After further investigations, including forensic examinations, further evidence came to light and on 24 February 1987 the applicant was charged with the offence of possession with intent to supply cocaine alleged to have been committed on 3 November 1986. Subsequently, on 5 May 1987, he was charged with conspiracy to obtain cocaine within intent to supply in respect of activities which occurred between 1 January 1986 and 3 November.
9. On 24 August 1988, Mr Welch was found guilty on five counts and was given an overall sentence of twenty-two years’ imprisonment. In addition, the trial judge imposed a confiscation order pursuant to the Drug Trafficking Offences Act 1986 ("the 1986 Act") in the amount of £66,914. In default of the payment of this sum he would be liable to serve a consecutive two years’ prison sentence. The operative provisions of the 1986 Act had come into force on 12 January 1987. The Act applies only to offences proceedings for which were instituted after this date.
10. On 11 June 1990 the Court of Appeal reduced Mr Welch’s overall sentence by two years. In addition it reduced the confiscation order by £7,000 to £59,914.
11. The intended purpose of the 1986 Act was to extend existing confiscation powers to enable the court to follow drug trafficking money which had been "laundered" into legitimate property. In the words of the Secretary of State who introduced the Bill in the House of Commons:
"By attacking the profits made from drug trafficking, we intend to make it much less attractive to enter the trade. We intend to help guard against the possibility that the profits from one trafficking operation will be used to finance others, and, not least, to remove the sense of injury which ordinary people are bound to feel at the idea of traffickers, who may have ruined the lives of children, having the benefit of the profits that they have made from doing so.
...
We need the legislation because the forfeiture powers in existing law have proved inadequate. The courts cannot order the forfeiture of the proceeds of an offence once they have been converted into another asset - a house, stocks and shares, or valuables of any sort. The Operation Julie case was the most notorious example of the courts being unable to deprive convicted traffickers, as they wished, of the proceeds of their offences ... the Bill is designed to remedy those defects. It will provide powers for courts to confiscate proceeds even after they have been converted into some other type of asset." (Hansard of 21 January 1986, Cols 242 and 243)
12. The relevant parts of the 1986 Act provide as follows:
"1. Confiscation orders
(1) ... where a person appears before the Crown Court to be sentenced in respect of one or more drug trafficking offences (and has not previously been sentenced or otherwise dealt with in respect of his conviction for the offence or, as the case may be, any of the offences concerned), the court shall act as follows:
(2) the court shall first determine whether he has benefited from drug trafficking.
(3) For the purposes of this Act, a person who has at any time (whether before or after the commencement of this section) received any payment or other reward in connection with drug trafficking carried on by him or another has benefited from drug trafficking.
(4) If the court determines that he has so benefited, the court shall, before sentencing ... determine ... the amount to be recovered in his case by virtue of this section.
(5) The court shall then in respect of the offence or offences concerned -
(a) order him to pay that amount ...
...
2. Assessing the proceeds of drug trafficking
(1) For the purposes of this Act -
(a) any payments or other rewards received by a person at any time (whether before or after the commencement of section 1 of this Act) in connection with drug trafficking carried on by him or another are his proceeds of drug trafficking, and
(b) the value of his proceeds of drug trafficking is the aggregate of the values of the payments or other rewards.
(2) The court may, for the purpose of determining whether the defendant has benefited from drug trafficking and, if he has, of assessing the value of his proceeds of drug trafficking, make the following assumptions, except to the extent that any of the assumptions are shown to be incorrect in the defendant’s case.
(3) Those assumptions are -
(a) that any property appearing to the court -
(i) to have been held by him at any time since his conviction, or
(ii) to have been transferred to him at any time since the beginning of the period of six years ending when the proceedings were instituted against him,
was received by him, at the earliest time at which he appears to the court to have held it, as a payment or reward in connection with drug trafficking carried on by him,
(b) that any expenditure of his since the beginning of that period was met out of payments received by him in connection with drug trafficking carried on by him, and
(c) that, for the purpose of valuing any property received or assumed to have been received by him at any time as such a reward, he received the property free of any other interests in it ...
...
4. Amount to be recovered under confiscation order
(1) Subject to subsection (3) below, the amount to be recovered in the defendant’s case shall be the amount the Crown Court assesses to be the value of the defendant’s proceeds of drug trafficking.
(2) If the court is satisfied as to any matter relevant for determining the amount that might be realised at the time the confiscation order is made ... the court may issue a certificate giving the court’s opinion as to the matters concerned and shall do so if satisfied as mentioned in subsection (3) below.
(3) If the court is satisfied that the amount that may be realised at the time the confiscation order is made is less than the amount the court assesses to be the value of his proceeds of drug trafficking, the amount to be recovered in the defendant’s case under the confiscation order shall be the amount appearing to the court to be the amount that might be so realised."
13. In determining the amount of the confiscation order the trial judge may take into consideration the degree of culpability of the offender. For example, in R. v. Porter ([1990] 12 Criminal Appeal Reports (sentencing) 377) the Court of Appeal held that where more than one conspirator was before the court the total proceeds of a drug trafficking conspiracy could be unequally allocated as their respective share of the proceeds if there was evidence that the defendants had played unequal roles and had profited to a different extent. Similarly, in the present case, the trial judge made a much smaller order in respect of the applicant’s co-defendant in recognition of his lesser involvement in the offences.
14. After a confiscation order has been made, the Crown Court decides upon the period of imprisonment which the offender has to serve if he fails to pay. The maximum periods of imprisonment are provided for in section 31 of the Powers of Criminal Courts Act 1973. The maximum period for an order between the sums of £50,000 and £100,000 is two years.
15. Prior to the passing of the 1986 Act, Lord Salmon expressed the view that forfeitures of money had both a punitive and deterrent purpose (House of Lords decision in R. v. Menocal, [1979] 2 Weekly Law Reports 876).
16. The domestic courts have commented in various cases on the draconian nature of the confiscation provisions in the 1986 Act and have occasionally referred to the orders, expressly or impliedly, as constituting penalties (R. v. Dickens [1990] 91 Criminal Appeal Reports 164; R. v. Porter [1990] 12 Criminal Appeal Reports 377; In Re Lorenzo Barretto, High Court decision of 30 November 1992 and Court of Appeal decision of 19 October 1993).
In the Court of Appeal decision in the last-mentioned case, which concerned the question whether a power to vary confiscation orders introduced by the Criminal Justice (International Co-operation) Act 1990 could be applied retrospectively, the Master of the Rolls (Sir Thomas Bingham) stated as follows (at p. 11):
"While it is true that a confiscation order is made before sentence is passed for the substantive offence, and the term of imprisonment in default is passed to procure compliance and not by way of punishment, these are in a broad sense penal provisions, inflicting the vengeance of society on those who have transgressed in this field."
17. However, the domestic courts have also referred to the confiscation provisions as not being punitive but reparative in purpose (Re T (Restraint Order; Disclosure of Assets) [1992] 1 Weekly Law Reports 949).
VIOLATED_ARTICLES: 7


ITEMID: 001-98163
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KULNEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Sergey Alekseyevich Kulnev, is a Russian national who was born in 1951 and lives in Voronezh. He is a former military prosecutor and head of the legal firm “Kulnev and Partners”. The respondent Government are represented by Mrs V. Milinchuk, 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.
On 12 November 1998 the Military Prosecutor of the Siberian Military Circuit instituted criminal proceedings against the applicant and two other persons on suspicion of several counts of aggravated bribery. The applicant appears to have been immediately notified of the charges against him. In October 1999 the investigation was completed and the applicant was served with the bill of indictment and committed to stand trial before the Military Court of the Sretenskiy Garrison.
On 24 January 2000 the Military Court of the Sretenskiy Garrison found the applicant guilty of bribery and sentenced him to four years’ imprisonment. The judgment was not appealed against and became final.
The applicant was released on probation by a decision of the Karymskiy District Court of the Chita Region on 6 April 2001.
On 21 February 2002 the Military Section of the Supreme Court of the Russian Federation quashed the judgment of 24 January 2000 by way of supervisory-review proceedings and remitted the case for fresh examination to the Military Court of the Chita Garrison.
On 26 March 2002 the Military Court of the Chita Garrison received the case file. The first hearing was scheduled for 8 May 2002.
Of the five hearings fixed between 8 May and 2 July 2002, two were adjourned because witnesses failed to appear and two hearings were postponed because a new prosecutor had been assigned to the case and he needed time to study the case file.
On 2 July 2002 the Military Court of the Chita Garrison held that since the new Code of Criminal Procedure had entered into force on 1 July 2002 it no longer had competence to examine the applicant’s case and it sent the case to the Military Court of the East-Siberian Command. On 7 August 2002 that decision was quashed on supervisory review by the Presidium of the Military Court of the East-Siberian Command. The case was then sent back to the Military Court of the Chita Garrison for trial.
On 24 December 2002 the Military Section of the Supreme Court of the Russian Federation, by way of supervisory review, decided that the case was within the competence of the Military Court of the East-Siberian Command, quashed the decision of 7 August 2002 and restored the decision of 2 July 2002.
On 26 February 2003 the Military Court of the East-Siberian Command scheduled a preliminary hearing for 12 March 2003. In the meantime, the applicant had asked the trial court to stay the proceedings, citing his poor state of health and lack of resources to travel to Chita where trial hearings were to take place. The Military Court re-scheduled the hearing for 26 March 2003.
On 19 March 2003 the applicant again informed the Military Court that he was unable to attend and made another request for a stay. A week later the Military Court examined his request and decided to proceed with the examination of the case. The hearing was fixed for 9 April 2003.
Between 9 April and 9 July 2003 the Military Court held twenty-nine hearings. The applicant failed to appear once.
On 9 July 2003 the Military Court of the East-Siberian Command acquitted the applicant.
On 6 November 2003 the Supreme Court of the Russian Federation quashed that judgment and remitted the case for re-examination.
On 29 January 2004 the Military Court scheduled a hearing for 25 February 2004 and sent a telegram to the applicant, who resided in Voronezh, informing him of the date and time of the hearing. In addition, summonses to the hearing were sent by registered mail. The telegram reached the applicant’s home on the following day. The summonses were served on him on 11 February 2004. Ten days later the Military Court received a telegram from the applicant’s father notifying the trial court that the applicant had been admitted to hospital for treatment and that he was therefore unable to get to Chita to take part in the trial. Medical documents confirming the applicant’s father’s statement were sent to the Military Court by mail.
On 25 February 2004 the Military Court stayed the proceedings until 23 March 2004 because the applicant had not appeared for the hearing and his presence was mandatory. Two days later a telegram was sent to the applicant informing him that a hearing was scheduled for 23 March 2004. He was also notified that his presence was required and that he would be forcibly escorted to the court if he failed to attend.
On 10 March 2004 the Military Court received a telegram from the applicant’s father informing it that the applicant was undergoing treatment in a hospital in Voronezh and that he could not get to Chita to participate in the trial. Two weeks later the Military Court received medical documents confirming that information.
The next hearing was scheduled for 12 May 2004 and the applicant was duly summoned to it. The Military Court also sent telegrams to the Military Prosecutor of the Voronezh Garrison and the head of the Voronezh Town Hospital enquiring about the applicant’s state of health and his ability to participate in the trial.
The applicant did not attend the hearing on 12 May 2004, citing his admission to hospital, and a hearing was scheduled for 15 June 2004.
On 8 June 2004 the Military Court received a telegram from the applicant notifying it that he had been discharged from hospital on 2 June 2004. At the same time the applicant stressed that he required out-patient treatment for three months and would therefore be unable to get to Chita until October 2004. A week later the court received copies of medical documents corroborating the applicant’s assertion. The applicant also submitted copies of letters from the European Court of Human Rights showing that his application form and subsequent letters had been received by the Court.
On 15 June 2004 the Military Court held a hearing. When the applicant did not appear for the hearing the trial court rescheduled the hearing for 1 July 2004. On 23 June 2004 the Military Court received a copy of the applicant’s medical history. The applicant did not attend the hearing on 1 July 2004 and the proceedings were stayed until the end of September 2004.
On 20 September 2004 the applicant informed the Military Court that a military medical commission had examined him and had found that he needed to continue medical treatment for an additional two months. The applicant sent a copy of the commission’s report to the trial court by mail.
In response to the information received from the applicant, the Military Court stayed the proceedings until 16 November 2004 and sent a letter to the Health Department of the Voronezh Town Council and Voronezh Town Hospital asking them to confirm the applicant’s assertion that he was unfit to take part in the proceedings. On 28 September 2004 the Voronezh Town Hospital replied that the applicant required hospital treatment for another two months.
The Military Court rescheduled the hearing for 7 December 2004 and once again requested information on the applicant’s health. In addition, it asked the head of the Voronezh Regional Bar Association and the head of the Ministry of Justice of the Voronezh Region to provide assistance in securing the applicant’s presence at the trial hearings.
On 6 December 2004 the Military Court received a letter from the head of the Health Department of the Voronezh Region. The letter read as follows:
“In response to your [letter] about [the applicant’s] failure to attend the hearing in Chita, [I] inform you that:
[The applicant] was treated in [hospital] from 16 to 20 February 2004, from 24 February to 12 March 2004 and from 6 May to 2 June 2004. The admissions to hospital were well-founded; the copies of the medical documents issued by [the hospital] and presented to you are authentic.
Subsequently [the applicant] continued to be monitored by [the hospital]. This monitoring was done without his being granted sick leave, as the hospital did not record any acute attacks of his chronic diseases during the monitoring period. The copies of documents issued by [the hospital] and submitted by you are authentic; however, they do not indicate that [the applicant] was incapacitated only temporarily. [The applicant’s] state of health and his out-patient treatment did not prevent his presence at the hearings in Chita. [The applicant] is not currently being monitored by [the hospital].”
On 7 December 2004 the Military Court held a hearing which the applicant attended. Between 8 December 2004 and 25 January 2005 the Military Court scheduled fifteen hearings, of which three were adjourned because the applicant failed to appear and one was postponed at the request of a co-defendant who had to attend the funeral of a close relative.
Of the twenty-nine hearings fixed between 25 January and 20 April 2005, four hearings were postponed because the applicant did not attend, two were adjourned because a co-defendant did not attend, and one was rescheduled so that one of the witnesses could attend.
On 13 May 2005 the Military Court of the East-Siberian Command discontinued the criminal proceedings against the applicant and relieved him of criminal liability as the statutory limitation period had expired. The judgment was not appealed against and became final.


ITEMID: 001-82997
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: CSESZKA v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Sándor Cseszka, is a Hungarian national who was born in 1941 and lives in Komárom. He is represented before the Court by Mr T. Kiss, a lawyer practising in Komárom. The Hungarian Government (“the Government”) are represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 2000 the applicant brought an action in trespass before the Komárom District Court alleging that his neighbour’s very noisy activities with a heavy lorry at all hours interfered with his right to the peaceful enjoyment of his property. In April 2001 the court found for him, ordering the neighbour to refrain from manoeuvring his lorry in his yard between 10 p.m. and 6 a.m. On appeal, on 27 June 2001 the Komárom-Esztergom County Regional Court upheld the first-instance decision on the merits, but dismissed the applicant’s additional claim to have his neighbour prohibited from parking his lorry in his own garden. The applicant requested the execution of this judgment on 31 August 2001.
On 15 November 2001 an enforcement order was issued. On 27 February 2002 the District Court called on the applicant to state whether or not the neighbour had complied with the judgment. In reply, the applicant alleged that the neighbour had breached the injunction on several occasions.
On 11 April 2002 the District Court imposed a fine on the neighbour in order to secure his observance of the injunction.
On 14 May 2002 the neighbour appealed. On 8 October 2002 the Regional Court quashed the decision of 11 April 2002 and remitted the case to the District Court.
In the resumed proceedings, on 9 January 2003 the District Court held a hearing. It heard evidence from the applicant, the neighbour and five witnesses. Relying on the evidence thus obtained, on 14 March 2003 the court found against the applicant, holding that his neighbour had observed the injunction.
The applicant did not appeal.