ITEMID: 001-76177
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF RYLSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1 (length);Remainder inadmissible
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1960 and lives in Warszawa.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. In 1991 the applicant's wife filed with the Warsaw Regional Court (Sąd Wojewódzki) a petition for divorce, asking to be granted custody rights over her daughter and child maintenance from the applicant. On 12 July 1991 a mediation hearing was held, but the parties did not reach an agreement.
8. On 29 October 1991 and 13 December 1991 hearings were held. The court heard witnesses and ordered the applicant to file a declaration of means. In addition, it requested an opinion of an expert psychologist and a social inquiry report to be prepared.
9. On 3 February 1992 the court secured the claim and ordered the applicant to pay 500,000 old zlotys (PLZ) in monthly maintenance for his daughter. On 5 February 1992 the court dismissed the applicant's motion for exemption from court fees. On 19 February 1992 the applicant appealed against the decisions of 3 and 5 February 1992. His appeal was dismissed. On 20 February 1992 the applicant challenged the impartiality of the judge. His motion was dismissed.
10. On 5 October 1992 the court ordered another social inquiry report. On 28 October 1992 a psychologist's opinion concerning relations between the parents and the daughter was issued. On 16 March 1993 the court held a hearing. It heard an expert in psychology and one witness. The court regulated the frequency of the applicant's contacts with his daughter pending the divorce proceedings.
11. On 16 March 1993 the court imposed a fine on the applicant for offending the court.
12. On 26 April 1993 the plaintiff asked the court to increase the amount of child maintenance.
13. On 14 May 1993 the plaintiff submitted her pleadings.
14. On 26 May and 7 June 1993 the court yet again summoned the applicant to submit, within seven days, information regarding his financial situation. He complied with the summons on 11 and 22 June 1993.
15. On 11 June 1993 the applicant appealed against the decision of 15 April 1993 by which his previous appeal against the fine imposed on him had been rejected. On 22 June 1993 his appeal was rejected as having been lodged outside the prescribed time-limit.
16. On 27 July 1993 the court amended its decision concerning maintenance, increasing it to PLZ 900,000. It considered that as a construction engineer the applicant was able to earn approximately PLZ 3,000,000 per month. The applicant appealed.
17. On 2 September 1993 the applicant appealed against the decision imposing a fine on him. On 9 September 1993 his appeal was rejected as having been lodged after the prescribed time-limit. The applicant appealed against this decision and his appeal was rejected on 29 November 1993.
18. On 22 October 1993 the court ordered him to comply with the formal requirements in respect of his appeal against the decision of 27 July 1993. On 12 November 1993 the case file was sent to the Warsaw Court of Appeal (Sąd Apelacyjny). On 29 November 1993 that court dismissed the applicant's appeal against the decision of 27 July 1993.
19. On 30 November 1993 the applicant complained that the plaintiff had impeded his contacts with the child. On 16 May 1994 the plaintiff asked the court not to schedule hearings in July.
20. On 8 June 1994 the applicant was charged with having forced a witness in his divorce proceedings to withdraw her testimony. On 12 July 1994 the Warsaw District Prosecutor (Prokurator Rejonowy) submitted to the Warsaw District Court a bill of indictment concerning that charge.
On 20 June 1994 the prosecutor submitted to the District Court another bill of indictment against the applicant. The applicant was charged with domestic violence against his wife. On 15 September 1994 the Warsaw District Court joined those two cases.
On 27 November 1995 the Warsaw District Prosecutor submitted to the court another bill of indictment in which he charged the applicant with evading the payment of maintenance for his daughter. Apparently the case was joined to the earlier proceedings.
On 30 September 2003 the District Court convicted him of the first two charges and acquitted him of the third charge and sentenced him to two years' imprisonment. Upon his appeal, on 6 May 2004 the Warsaw Regional Court stayed the execution of the sentence for a probationary period of five years.
21. On 7 July 1994 the court ordered the parties to submit their pleadings within one month. On 22 August 1994 it urged them to comply with its summons. They submitted their pleadings on 21 September 1994.
22. On 12 October 1994 the case-file of the divorce proceedings was sent to the District Prosecutor upon his request. It was returned on 16 November 1994.
23. On 27 December 1994 the court scheduled a hearing for 24 February 1995. On 24 February and 19 May 1995 two hearings were held. The applicant did not appear and in consequence they were adjourned. On 15 September 1995 a hearing was heard. The applicant did not agree to a divorce.
24. On 13 and 27 September 1995 the applicant submitted pleadings in which he inter alia asked the court to order the plaintiff to pay him alimony.
25. On 24 November 1995 a hearing was held at which the court heard both parties. The Warsaw Regional Court dismissed the applicant's claim for alimony from his wife and refused his request to reduce the amount of the maintenance payable to his daughter. He appealed, but on 18 July 1996 the Warsaw Court of Appeal dismissed his appeal.
26. On 24 November 1995 the Warsaw Regional Court amended its decision of 16 March 1993 in that it increased the frequency of the applicant's meetings with his daughter. He and his wife appealed and on 18 July 1996 the Warsaw Court of Appeal quashed that decision. It considered that the contested decision was not supported by an opinion of psychologists.
27. The hearing scheduled for 23 February 1996 had to be adjourned until the appeals were examined. The hearing held on 13 December 1996 was adjourned. The court ordered a supplementary expert opinion of psychologists.
28. On 29 January 1997 the institution which was to prepare an expert opinion informed the court that it had started mediation between the parties and that the opinion would be submitted after 12 March 1997. The opinion was submitted on 30 March 1997. On 23 December 1997 a hearing was held at which the court heard the expert and the plaintiff. It decided to summon another witness – a Mr J.M.
29. On 23 December 1997 the Warsaw Regional Court issued an order concerning the applicant's contacts with his daughter pending the divorce proceedings. It decided that the meetings should take place on the first, second and third Saturdays of every month between 11 a.m. and 4 p.m. without the mother's presence. The court also ordered a guardian (kurator sądowy) to supervise those meetings. Having regard to the opinion of the psychologists, it considered that in the ongoing conflict between the parents, the daughter, who was emotionally attached to her mother, had become more and more unfriendly towards her father, which called for more frequent contacts with the father.
30. On 29 December 1997 the applicant requested the written grounds for the decision. They were sent to him on 5 February 1998. On 18 February 1998 he appealed against the decision. On 25 February 1998 he was summoned to pay a court fee. On 3 April 1998 a hearing was held but it was adjourned pending the examination of the applicant's appeal. On 18 June 1998 the Warsaw Court of Appeal dismissed the applicant's appeal against the decision of 23 December 1997.
31. On 30 September 1998 the applicant requested the court to increase the frequency of his contacts with the child.
32. On 15 January 1999 the court held a hearing and dismissed the motion to call the witness J.M. The court heard the parties. The applicant asked the court to hear another witness as well as all the witnesses who had already been heard. He also requested a stay of the proceedings pending the outcome of the criminal proceedings. The court dismissed those motions.
33. On 29 January 1999 the Warsaw Regional Court gave judgment, granting a divorce based on the applicant's fault, and deciding on the daughter's custody and child maintenance. On 19 March 1999 the court served the written grounds of the judgment on the applicant. He appealed and requested an exemption from the appeal fee on 7 April 1999.
34. On 5 May 1999 the court dismissed the applicant's motion for an exemption from court fees. The applicant appealed on 18 May 1999. On 17 June 1999 his appeal was dismissed. The court based its decision on the fact that the applicant had not submitted the necessary documents to confirm his financial situation.
35. On 2 August 1999 the applicant was summoned to pay the appeal fee. On 20 August 1999 he asked the court to exempt him from that fee. On 7 September 1999 the court dismissed his motion. The applicant appealed on 30 September 1999. On 18 November 1999 the Court of Appeal rejected the applicant's appeal.
36. On 4 January 2000 the applicant requested the court to exempt him from the court fee. On 18 January 2000 his motion was dismissed. The applicant appealed on 1 March 2000. On 14 April 2000 his appeal was dismissed by the Court of Appeal. The courts emphasised that the applicant had persistently repeated his request without providing any new circumstances to justify a new motion and without submitting relevant documents.
37. On 28 April 2000 the applicant again requested to be exempted from the court fee.
38. On 2 June 2000 the court again ordered the applicant to pay the court fee for his appeal, amounting to 400 PLN.
39. On 16 June 2000 the applicant asked for exemption from the court fee. This motion was dismissed on 28 June 2000 for the same reasons as given previously. On 19 July 2000 the applicant appealed against this decision. It was dismissed by the Court of Appeal on 27 October 2000.
40. On 28 June 2000 the applicant's appeal against the judgment of 29 January 1999 was rejected on formal grounds for non payment of the appeal fee. The Regional Court noted that the applicant's repeated and unsubstantiated motions for exemption had been dismissed several times and he had failed to pay the fee despite two summonses. The court emphasised that the applicant's only intention was to delay the proceedings, to the detriment of the plaintiff. The applicant appealed on 19 July 2000.
41. On 27 December 2000 the applicant asked to be exempted from all court fees, in particular from the appeal fee. On 8 January 2001 his motion was sent to the Regional Court.
42. On 12 March 2001 the court called on the applicant to pay the court fee of 80 PLN for his appeal against the decision of 28 June 2000 (see paragraph 40 above).
43. On 27 March 2001 the court refused to exempt the applicant from the court fees. It underlined that the applicant had requested to be exempted from the court fees on several occasions but had once again not indicated any new circumstances justifying his request. On 24 April 2001 the applicant appealed. On 28 May 2001 his appeal was dismissed.
44. On 28 June 2001 the Regional Court ordered the applicant to pay the court fee due for his appeal against the decision rejecting his appeal against the judgment (see paragraph 42 above).
45. On 12 July 2001 the defendant informed the court that he had paid the court fee for the appeal against the judgment (amounting to 400 zlotys) and requested the court to reinstate the time-limit for paying the fee.
46. On 19 July 2001 the Warsaw Regional Court issued two decisions, in which it rejected the applicant's appeal against the decision of 28 June 2000 and rejected the applicant's motion to be granted retrospective leave to pay the appeal fee.
47. The judgment of 29 January 1999 became final on 8 August 2001.
48. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State's liability in tort.
In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:
“1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.”
49. Article 418 of the Civil Code, as applicable until 18 December 2001, provided for the following exception in cases where damage resulted from the issue of a decision or order:
“1. If, in consequence of the issue of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person.
2. The inability to establish guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude the State Treasury's liability for damage if such proceedings cannot be instituted in view of a [statutory] exception to prosecution or disciplinary action.”
50. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury's liability for tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and the imposition on the State of tortious liability for its omission to enact legislation (the so-called “legislative omission”; “zaniedbanie legislacyjne”) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings.
Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows:
“3. If damage has been caused by failure to give a ruling (orzeczenie) or decision (decyzja) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.”
51. However, under the transitional provisions of Article 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 shall apply to all events and legal situations that subsisted before that date.
52. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Article 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Articles 64 and 77 § 1 of the Constitution.
On the same day the Constitutional Court gave judgment (no. SK 18/00) and held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by the unlawful action of a State official carried out in the course of performing his duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it linked the award of compensation for such damage with the personal culpability of the State official concerned, established in criminal or disciplinary proceedings.
53. On 18 December 2001, the date on which the Constitutional Court's judgment took effect, Article 418 was repealed. The Constitutional Court's opinion on the consequences of the repeal read, in so far as relevant:
“The elimination of Article 418 of the Civil Code from the legal system ... means that the State Treasury's liability for the actions of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the State liability laid down in Article 417 of the Civil Code. This, however, does not rule out the application in the present legal system of other principles of State liability laid down in specific statutes and not necessarily only those listed in the Civil Code.”
54. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under Article 2 read in conjunction with Article 5(1) of the 2004 Act.
Article 2, in so far as relevant, reads as follows:
Article 5 provides, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
55. Article 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of Article 18 in the following terms:
“A party which has not lodged a complaint about the unreasonable length of the proceedings under Article 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.”
56. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads:
“1. A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage occurred.”
57. Article 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.
3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5337
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SHESTJORKIN v. ESTONIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is an Estonian citizen, born in 1935 and living in Tartu. He is represented before the Court by Ms Maia Ploom, a lawyer practising in Tartu.
A.
In December 1991 the applicant went to the Tartu City Goverment (Tartu Linnavalitsus) in order to file an application for restitution of property which had previously belonged to his father. The property - a plot of land together with an industrial building - was nationalised in 1940. He alleges that his application was not accepted on the ground that he had not submitted a proof of ownership.
On 17 January 1992 the deadline stipulated in section 16 of the Property Reform Act for filing applications for restitution of property expired.
The applicant thereafter repeatedly requested the City Government to accept his application nevertheless and reinstate the deadline. In its letters of 9 December 1994, 5 June 1995, 29 March 1996 and 25 October 1996 the City Government stated that he had not submitted an application by the set deadline and had therefore lost his right to claim the restitution of property.
In March 1998 the applicant obtained, after several requests, a certificate from an archive proving that the nationalised property had belonged to his father. It appears that in the preceding period the archive was unable to locate the necessary document.
On 17 April 1998 the applicant asked the City Government to accept his application.
On 6 May 1998 the City Government stated that it lacked competence to reinstate the deadline of 17 January 1992. Pursuant to the “Law concerning the procedure for reinstatement of time-limits for submission of applications for return or compensation of unlawfully expropriated property” the body competent to reinstate the deadline in respect of applications submitted until 31 March 1993 was the Central Commission on the Return and Compensation of Unlawfully Expropriated Property.
The applicant filed a complaint with the Tartu Administrative Court (Tartu Halduskohus) concerning the refusal of the City Government to accept his application in December 1991 arguing that its officials had failed to provide him with adequate information and assistance.
By judgment of 10 November 1998 the Administrative Court declared the actions of the City Government officials unlawful and suggested that the competent body accept the applicant’s restitution application. It found that the City Government officials had failed to comply with the requirements of sections 8 and 11 of the “Procedure for filing and examination of applications concerning unlawfully expropriated property and for submission and evaluation of evidence.”
In its appeal against the judgment the City Government argued that the applicant had, in fact, not lodged an application for restitution of property at the relevant time and that, in visiting the City Government buildings in December 1991, he had addressed himself to a department which had no competence to decide on the matter. It also contended that, under the procedure in force, proof of ownership was not required for the initial submission of restitution applications. Such proof could be furnished later.
On 18 January 1999 the Tartu Court of Appeal (Tartu Ringkonnakohus) revoked the judgment of the first instance court on the ground that the rejection of the applicant’s complaint by the City Government officials had not been established.
On 3 March 1999 the Supreme Court (Riigikohus) refused to grant the applicant leave to appeal.
B. Relevant domestic law
The Property Reform Act (Omandireformi aluste seadus) was adopted on 13 June 1991 and entered into force on 20 June 1991.
Pursuant to its section 16 applications for restitution of unlawfully expropriated property can be filed until 17 January 1992. Such applications are to be accompanied by documents that the applicants have concerning the ownership, form and value of property.
The applications are reviewed by city or county commissions established by county governors or city governments. The decisions of the local commissions can be appealed to the Central Commission on the Return and Compensation for Unlawfully Expropriated Property.
It further provides that the Government of Estonia is to fix the procedure for filing and review of applications as well as for filing and assessment of evidence.
The Procedure for Filing and Examination of Applications Concerning Unlawfully Expropriated Property and for Submission and Evaluation of Evidence (Õigusvastaselt võõrandatud vara tagastamise ja kompenseerimise avalduste esitamise ja läbivaatamise ning tõendite esitamise ja hindamise kord), was approved by the decree of the Government of Estonia of 28 August 1991.
According to its provisions, the authorities handling restitution applications are to inform the applicants of the procedure for restitution of property and establish possibilities for collecting further evidence. They are to provide the applicants with legal and other assistance necessary for the exercise of their rights (sections 8 and 11).
The Law Concerning the Procedure for Reinstatement of Time-limits for Submission of Applications for Return or Compensation of Unlawfully Expropriated Property (Seadus avalduste esitamise tähtaegade ennistamise korrast õigusvastaselt võõrandatud vara tagastamisel ja kompenseerimisel) was adopted on 11 June 1992 and amended on 17 February 1993.
It provides that time-limits for submission of applications for restitution of property can be reinstated by the Central Commission on the Return and Compensation of Unlawfully Expropriated Property which would accept such applications until 31 March 1993. Its decision refusing an application can be appealed against to a court (sections 1(1), 2(3) and 5).


ITEMID: 001-93434
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: BUDINA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev
TEXT: The applicant, Ms Antonina Dmitriyevna Budina, is a Russian national who was born in 1948 and lives in Moscow. She is represented before the Court by Mr M. Rachkovskiy, a lawyer practising in Moscow. The Russian Government (“the 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.
At the age of six the applicant had bone tuberculosis. A resident of Pushkino (a town in the Moscow Region), in 1995 she was assigned disability status and started to receive a disability allowance. In 2003 the applicant reached retirement age, and on her request the disability allowance was replaced with an old-age pension.
Considering the pension inadequate, in October 2004 the applicant asked the Presnenskiy District Court of Moscow to oblige the Government to upgrade it. On 3 March 2005 the court rejected the applicant’s request, because her pension had been calculated in accordance with the law. On 26 May 2005 the Moscow City Court upheld this judgment on appeal.
In 2006 and 2007 the applicant applied to the Constitutional Court. She attacked the Law on Pensions insofar as it allowed pensions below the established subsistence level. The court considered these applications beyond its competence because they required a factual assessment of the applicant’s welfare and suggested legislative improvements.
In November 2007 the applicant moved from Pushkino to Moscow.
During her life in Pushkino in 2004–07, the applicant’s monthly income included:
– a pension (1,460 Russian roubles (RUB));
– social aid (RUB 590); and
– compensation for limited ability to work (RUB 410).
In addition, she enjoyed the following benefits:
– 50% discount on utility bills;
– free public urban and suburban transport;
– 50% discount on interurban rail and air transport;
– 50% discount on telephone and radio bills;
– free medical assistance;
– 50% discount on medical prescriptions;
– free sanatorium treatment; and
– free suburban and interurban transport to the place of the treatment.
Once the applicant received an indigence aid of RUB 500. The applicant’s family also benefited from the discount on utility bills. On her request, part of the benefits were monetised.
During her life in Moscow from 2007 onwards, the applicant’s monthly income included:
– a pension (RUB 2,250);
– social aid (RUB 3,500);
– compensation for limited ability to work (RUB 490).
In addition, she enjoyed the following benefits:
– 50% discount on utility bills;
– free public urban and suburban transport;
– 50% discount on interurban rail and air transport;
– 50% discount on telephone and radio bills;
– free medical assistance;
– free dental prosthetics (except precious metals and cermets); and
– free suburban and interurban transport to the place of treatment.
Once the applicant received an indigence aid of RUB 500. On her request, part of the benefits were monetised.
In Russia each region has its own subsistence level (прожиточный минимум). In the Moscow Region and Moscow these levels are fixed by the Moscow Region’s Law no. 13/98-03 of 28 April 1998 and Moscow’s Law no. 23 of 15 May 2002 respectively.
In the Moscow Region in 2004–07 the subsistence level for pensioners was RUB 2,540 per month. In Moscow in 2007–08 the subsistence level for pensioners was RUB 4,220 per month. There was no special subsistence level for disabled pensioners.


ITEMID: 001-5622
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: VIDACAR S.A. and OPERGRUP S.L. v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant companies are Spanish commercial companies whose registered offices are in Palma de Mallorca (Spain). They are represented before the Court by Mr A. Salva Martín of the Palma de Mallorca Bar.
The facts of the case, as presented by the applicant companies, may be summarised as follows.
The applicant companies operate gaming concerns equipped, in particular, with fruit machines. They are consequently required to pay duty – known as “gaming duty” – in the form of an annual lump sum on each fruit machine. The amount is reviewed each year in Spain’s annual budget.
In the present case, the amount of duty payable on each fruit machine for 1990 was set at 141,750 pesetas (ESP) by Article 39 § 2 of the Legislative Decree of 24 December 1989. However, an additional increase for 1990, raising the annual duty for each fruit machine to ESP 283,250, was imposed by section 38(2)(2) of Law no. 5/90 of 29 June 1990 on the adoption of urgent budgetary measures.
The first applicant company paid the Treasury ESP 19,359,750 in duty for 1990, and the second ESP 12,608,000.
The applicant companies, who did not accept the additional increase and had unsuccessfully attempted to obtain its reimbursement by the Treasury, brought applications for judicial review in the Balearic Isles Higher Court of Justice maintaining, inter alia, that there had been a violation of the principle that increased penalties should not be applied with retrospective effect, a failure to ensure legal certainty and a breach of the principle that rates of duty should be consistent with those imposed on other gaming activities. To that end, they invited the court to refer the issue whether section 38(2)(2) of Law no. 5/90 was compatible with Articles 9 § 3, 14 and 31 of the Constitution to the Constitutional Court before deciding their application for judicial review.
In a judgment of 17 December 1993 the Balearic Isles Higher Court of Justice refused to refer the constitutionality issue to the Constitutional Court and dismissed the application on the merits. As regards its refusal to make a referral, it cited a decision of 16 July 1987 in which the Constitutional Court had held that a statute of 29 June 1983 imposing an additional increase in duty on fruit machines was not unconstitutional; it observed, too, that the Constitutional Court had decided that the Constitution did not preclude retrospective effect being given to tax legislation.
The applicant company lodged an amparo appeal against that judgment with the Constitutional Court. It contended that the refusal of the Balearic Isles Higher Court of Justice to make a constitutionality referral regarding section 38(2)(2) of Law no. 5/90 infringed its right to the protection of the courts and to a fair hearing (Article 24 of the Constitution). It complained, too, that it had been the victim of discriminatory treatment when compared to other firms engaged in the gaming sector (Article 14 of the Constitution). It also argued that another Spanish court, the Catalonia Higher Court of Justice, had decided to refer to the Constitutional Court the issue of the constitutionality of section 38(2)(2) of Law no. 5/90 in the context of an application for judicial review lodged by another gaming company. In the light of that referral, the Constitutional Court decided to adjourn consideration of the applicant company’s appeal until it had decided the issue that had been referred to it by the Catalonia Higher Court of Justice. In the latter proceedings the Constitutional Court declared section 38(2)(2) of Law no. 5/90 unconstitutional and therefore null and void as its effect was to cause an unforeseeable and insufficiently justified increase in tax liability that amounted to a violation of the principle of legal certainty.
Notwithstanding that decision, the Constitutional Court, sitting as a full court, decided on 2 October 1997, by seven votes to four, to dismiss the applicant company’s amparo appeal.
The complaint regarding the failure to observe the non-discrimination principle was rejected by the Constitutional Court, inter alia, on the ground that a finding that section 38(2)(2) of Law no. 5/90 was unconstitutional could not be founded on the basis of the principle of equality stated in Article 14 of the Constitution but on objectively established factors showing inequality contrary to Article 31 § 1 of the Constitution. While any such inequality could be remedied by other constitutional procedures – such as an appeal or a referral of a constitutionality issue – it could not be remedied through an amparo appeal.
As to the complaint under Article 24 of the Constitution, the Constitutional Court reiterated that under its settled case-law it was solely for trial courts to decide whether to make a constitutionality referral and their decision was final. Consequently, a refusal to make a referral did not in principle entail a violation of any fundamental right, even if other courts had decided to make a referral regarding the constitutionality of the same provision of Law no. 5/90. In the instant case, the Constitutional Court observed that the applicant company had been in a position to put to the Balearic Isles Higher Court of Justice all the arguments it considered appropriate in support of its case that the relevant provisions of Law no. 5/90 were unconstitutional and that that court had carried out a reasoned analysis of the merits of those arguments before rejecting them. As regards the argument that the Constitutional Court itself had in the meantime declared section 38(2)(2) of Law no. 5/90 unconstitutional, it held that the fact that a specific provision had been declared unconstitutional could not be used by itself in amparo appeals since the scope of such appeals was restricted by the Constitution to certain fundamental rights and freedoms. It added that where a decision on an amparo appeal came after another decision, in proceedings regarding constitutionality, the Constitutional Court was not always able to refer to the earlier decision in deciding the amparo appeal even where both sets of proceedings concerned the same statutory provision; that applied especially where, as in the instant case, the decision on the constitutionality issue was based on Article 9 § 3 of the Constitution (principles of legal certainty and of the rule of law), since that provision was not included in the rights and freedoms that were covered by amparo appeals. The Constitutional Court added that, as no reduction of a sentence or penalty was at stake, a subsequent declaration that a statutory provision was unconstitutional could not have any effect on proceedings that had ended in a final judgment. It concluded by saying that the Balearic Isles Higher Court of Justice had applied the impuned provision of Law no. 5/90 after finding that it was consistent with the Constitution and, accordingly, that there was no point in making a constitutionality referral to the Constitutional Court.
The applicant company submitted that, unlike other firms in the gaming sector, it had been prevented by that decision from claiming reimbursement of the increases in duty it had paid on its fruit machines pursuant to section 38(2)(2) of Law no. 5/90.
In a judgment of 16 September 1996 the Balearic Isles Higher Court of Justice refused to refer the constitutionality issue to the Constitutional Court and dismissed the second applicant company’s application on the same grounds as those set out in its judgment of 17 December 1993 in the first applicant company’s case.
The second applicant company lodged an amparo appeal against that judgment with the Constitutional Court. It contended that the refusal of the Balearic Isles Higher Court of Justice to make a referral regarding the constitutionality of section 38(2)(2) of Law no. 5/90 had infringed its rights to the protection of the courts and to a fair hearing (Article 24 of the Constitution). It complained, too, that it had been the victim of discriminatory treatment when compared to firms engaged in other areas of the gaming sector (Article 14 of the Constitution).
In a decision (auto) of 16 December 1997 the Constitutional Court decided to dismiss the second applicant company’s appeal and in so doing referred to the grounds set out in its decision of 2 October 1997 on the first applicant company’s appeal.
The second applicant company submitted that, unlike other firms in the gaming sector, it had been prevented by that decision from claiming reimbursement of the increases in duty it had paid on its fruit machines pursuant to section 38(2)(2) of Law no. 5/90.
The relevant Articles of the 1978 Constitution provide:
“The Constitution guarantees the rule of law, the application of norms according to rank, their publication, the non-retrospective nature of provisions laying down increased penalties or restricting individual rights, legal certainty, the accountability of public authorities and the prohibition of any arbitrary act on their part.”
“Spanish nationals shall be equal before the law and may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.”
“1. Everyone has the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests; in no circumstances may there be any denial of defence rights.
2. Likewise, everyone has the right to [be heard by] an ordinary judge determined beforehand by law; everyone has the right to defend himself and to be assisted by a lawyer, to be informed of the charge against him, to have a trial in public without unreasonable delay and attended by all the safeguards, to adduce the evidence relevant to his defence, not to incriminate himself or to admit guilt and to be presumed innocent.
...”
“Everyone shall contribute towards the financing of public expenditure according to their financial means through a fair tax system based on the principles of equality and graduation and which, under no circumstances, shall incorporate a power to confiscate.”
The jurisdiction of the Constitutional Court is defined as follows:
“The Constitutional Court shall have jurisdiction for the whole of Spanish territory and is competent to hear:
(a) appeals against the alleged unconstitutionality of laws and regulations having the force of law ...;
(b) individual appeals for protection (recurso de amparo) against infringements of the rights and liberties referred to in Article 53 § 2 of the Constitution, in the circumstances and manner laid down by law;
(c) disputes between the State and an autonomous community or between different autonomous communities over the scope of their powers.
...”
Amparo appeals lie only in respect of the rights guaranteed under Articles 14 to 29 of the Constitution; the principles of the rule of law and legal certainty guaranteed by Article 9 § 3 are therefore beyond the scope of such appeals.
“If in the course of proceedings a judicial body considers that a provision which has the status of law and is applicable in the proceedings and upon whose validity its decision depends might be contrary to the Constitution, it shall refer the issue to the Constitutional Court in the circumstances and manner and with the effects – which shall under no circumstances include suspensive effect – to be laid down by law.”
“1. Judgments of the Constitutional Court shall be published in the Official State Gazette together with any dissenting opinions. They shall be final with effect from the day after their publication and no appeal shall lie against them. Judgments declaring a law or a rule having the force of law unconstitutional and all judgments that are not merely in personam shall be binding on everyone.
2. Unless stated otherwise in the judgment, parts of the law not declared unconstitutional shall remain in force.”
Chapter III of Title II of the Institutional Law on the Constitutional Court is entitled “Questions of constitutionality referred by judges and courts” and is worded as follows:
“1. When a judge or court, of his or its own motion or at the request of a party, considers that a provision which has the status of law and is applicable in the proceedings and upon whose validity its decision depends might be contrary to the Constitution, he or it shall refer the matter to the Constitutional Court, in accordance with the provisions of the present Law.
2. The judge or court concerned shall make the referral only when the case is ready for trial and within the time allowed for giving judgment. It shall identify the laws or provisions having the status of law in issue and the articles of the Constitution that are considered to have been violated and shall indicate and explain why the outcome of the proceedings depends on the validity of the provisions concerned. Before taking a final decision on whether to refer an issue to the Constitutional Court, the judge or court shall first hear any representations the parties and a representative of State Counsel’s Office may wish to make regarding the relevance of the issue within a ten-day non-extendable time-limit that shall apply to each of them. The judge shall give his decision within three days thereafter, no further action being required. No appeal shall lie against that decision. However, the constitutionality issue may be raised again in subsequent proceedings until such time as the judgment shall have become final.”
“A judge or court shall refer constitutionality issues to the Constitutional Court by sending a certified copy of the main case file and any representations made under the preceding Article.”
“1. On receipt of the case file the Constitutional Court shall follow the procedure laid down in paragraph 2 of this Article. However, it may in a reasoned decision declare the referral inadmissible after hearing representations by the Attorney General alone if the procedural requirements have not been complied with or the referral is manifestly ill-founded.
2. The Constitutional Court shall inform the Chamber of Deputies and the Senate (through their respective speakers), the Attorney General and the Government (through the Ministry of Justice) of the referral. If it concerns a law or a provision having the status of law adopted by an Autonomous Community, the legislative and executive authorities shall also be informed. Each of these bodies shall be entitled to appear before the Constitutional Court and to make representations on the constitutionality issue within a non-extendable fifteen-day time-limit that shall apply to each of them. Once that period has expired, the court shall give judgment within fifteen days, unless it gives a reasoned decision explaining why it considers a longer period – not exceeding thirty days – to be necessary.”


ITEMID: 001-99039
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SCHUITEMAKER v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: The applicant, Ms Lidwina Geertruida Monica Schuitemaker, is a Dutch national who was born in 1958 and lives in Groningen.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, a philosopher by profession, is currently unemployed and was in receipt of benefits pursuant to the Social Assistance Scheme for the Unemployed (Rijksgroepregeling werkloze werknemers) from 1 September 1983. As of 1 August 1996 she received benefits pursuant to the General Welfare Act (Algemene Bijstandswet). Both the Social Assistance Scheme and the General Welfare Act stipulated that an unemployed person was eligible for benefits provided he or she attempted to obtain and was willing to accept employment “deemed suitable” (passende arbeid) for him or her.
On 1 January 2004, the General Welfare Act was replaced by the Work and Social Assistance Act (Wet Werk en Bijstand).
By letter of 4 March 2005 the applicant was informed that, as from 1 April 2005, she had to fulfil the obligations pursuant to this Act, including the obligation to obtain and be willing to take up “generally accepted” employment (algemeen geaccepteerde arbeid). Non-compliance would lead to a reduction of the applicant's benefit payments.
On 4 April 2005, the applicant raised an objection against the letter, which was rejected on 12 July 2005 by the Mayor and Aldermen (Burgemeester en Wethouders) of Groningen.
By judgment of 1 December 2006 the Groningen Regional Court upheld the applicant's appeal against the decision of the Mayor and Aldermen, but only because it considered that those authorities should have declared the objection against the letter of 4 March 2005 inadmissible since the contents of that letter were not intended to have any legal consequences but served only to inform the applicant – as a recipient of benefits pursuant to the Work and Social Assistance Act – of the obligations she had to comply with; it was therefore not possible to lodge an objection against the letter. Doing what the authorities should have done, the Regional Court declared the objection inadmissible.
The applicant lodged an appeal to the Central Appeals Tribunal (Centrale Raad van Beroep). In a decision of 8 January 2008, the Central Appeals Tribunal confirmed the judgment of the Regional Court.
Under the General Welfare Act all persons between the ages of 18 and 65 and lawfully residing in the Netherlands were eligible for benefits under this Act if they had no other means of subsistence. General welfare beneficiaries were – apart from certain exceptions – obliged to make demonstrable efforts to obtain and accept suitable employment.
On 1 January 2004, the General Welfare Act was replaced by the Work and Social Assistance Act. In common with the old Act, persons between the ages of 18 and 65 and lawfully residing in the Netherlands are eligible for benefits under this Act. However, contrary to the contents of the previous Act, general welfare beneficiaries are now obliged to make demonstrable efforts to obtain and take up generally accepted employment. It appears from the Explanatory Memorandum (Memorie van Toelichting) to this Act that this new requirement has a much wider scope, as it also includes employment with which the beneficiary has no affinity and only excludes employment which is not generally socially accepted (algemeen maatschappelijk aanvaard). Furthermore, the beneficiary is not obliged to obtain or accept work in respect of which he or she has conscientious objections.


ITEMID: 001-58160
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF DOUSTALY v. FRANCE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos
TEXT: 7. Mr Michel Doustaly, who lives in Nîmes, was formerly in practice as an architect.
8. On 9 January 1984 Nîmes City Council awarded him a contract for work on the design and construction of a general-purpose senior high school to be built as part of the State school system. While the work was in hand he received advances on the agreed fees totalling 1,336,643.53 French francs (FRF) as stipulated in the contract.
9. In a letter of 12 April 1984 the Council asked the applicant to carry out a further study and prepare the plans for a building to be used as boarding accommodation that had not been included in the original invitation to tender.
10. When the work was completed the Council decided to reduce by half the amount of the agreed fees, alleging, among other matters, breaches by the applicant of his contractual obligations. It also refused to pay his fees for drawing up the plans for the boarding unit and, taking into account the official classification and the complexity of the work that had actually been done, asked him to repay FRF 494,370.06 of the interim payments he had received.
11. On 26 July 1985 Mr Doustaly lodged an application with the Montpellier Administrative Court, which registered it on 29 July 1985. He sought an order requiring Nîmes City Council to pay him FRF 669,100.39, and the interest to which he was legally entitled, as final settlement of the fees agreed in the contract.
12. The Council filed its defence on 30 September 1985.
13. On 21 January 1988 the applicant filed an additional pleading. On 24 February and again on 24 March 1988 he sent letters to the President of the Administrative Court requesting that a date be fixed for the hearing. On 29 February 1988 he filed further documents.
14. On 20 October 1988 the applicant again requested the President of the Administrative Court to fix a date for the case to be tried.
15. In an interlocutory decision of 19 December 1988 the Administrative Court ordered an expert opinion to establish whether the work had been correctly carried out by Mr Doustaly and gave the expert appointed four months in which to submit his report.
16. On 31 December 1988 Mr Doustaly permanently gave up his architect’s practice on account of financial difficulties.
17. On 21 May 1991 the expert filed his report, in which he assessed the balance of the fees owed at FRF 363,600, plus FRF 160,000 in fees for preparing the plans of the boarding unit.
18. On 4 September 1991 the applicant asked the court to order Nîmes City Council to pay him FRF 363,671.28 under the contract and FRF 160,000 in payment for the plans of the boarding unit, plus default interest on both sums from 5 November 1984. He further claimed FRF 760,000 in damages.
19. On 3 December 1991 the Administrative Court put the Council on notice to produce their pleading.
20. On 16 January 1992 the applicant filed a supplementary pleading in which he repeated his submissions of 4 September 1991 (see paragraph 18 above) and sought an order requiring the Council to pay FRF 867,350 in compensation for the extra costs of drawing up the plans.
21. In a letter of 27 January 1992 he pointed out to the President of the Administrative Court that the time-limit given to the Council on 3 December 1991 for the production of their pleading (see paragraph 19 above) had expired with no reply forthcoming.
22. On 11 February and 5 June 1992 Mr Doustaly filed further observations.
23. In letters of 17 July and 14 December 1992 to the President and the registry of the Administrative Court the applicant again asked for a date to be fixed for the hearing. This was held on 14 January 1993.
24. On 21 January 1993 the Administrative Court ordered Nîmes City Council to pay the applicant the sum of FRF 470,301.28, FRF 310,301.28 of which was to bear default interest as from 27 November 1984 and FRF 160,000 from 20 October 1991. A sum of FRF 53,370, which was to bear default interest as from 27 November 1984, had been deducted from the fees owed to the architect on account of the unsatisfactory quality of the work done by his sub-contractor. With regard to the damage to Mr Doustaly’s professional reputation, the judgment stated that he had not proved “that the fall in his practice’s turnover was the direct consequence of conduct imputable to Nîmes City Council…”.
25. On 17 May 1993 the applicant, considering that the sum awarded was insufficient, appealed to the Bordeaux Administrative Court of Appeal.
26. As the appeal did not have suspensive effect, Mr Doustaly applied on 16 July 1993 to the Report and Research Division of the Conseil d'Etat. However, after the Council had made a first payment the case was closed on 11 October 1993 on the ground that execution of the judgment was currently in progress. The Council’s two further payments were made in December 1993 and February 1994.
27. Nîmes City Council filed its defence on 28 September 1993.
28. On 4 July 1994 the Administrative Court of Appeal upheld the Administrative Court’s judgment regarding the capital sum but ordered the Council to pay interest on the interest awarded at first instance which had accrued since 17 May 1993.
29. In letters of 30 January, 3 May and 10 May 1995 the applicant applied to the prefect of the Gard département to secure compliance by the Council with the above judgment. The sum owed to the applicant, FRF 778,127.27, was paid on 18 May 1995.
30. In a judgment delivered by the Nîmes Court of Appeal on 22 May 1997 in connection with the litigation between the applicant and his sub-contractor, Mr Doustaly was awarded the sum of FRF 53,370, together with default interest calculated from 27 November 1984 and payable in the form of compound interest from 20 October 1993, that sum having been deducted from the outstanding fees he was owed by Nîmes City Council on account of the unsatisfactory quality of the work done by his sub-contractor (see paragraph 24 above).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82675
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SKOCAJIC AND BJELIC v. SERBIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Aleksandar Skočajić and Mrs Tatjana Bjelić, are Serbian nationals who were born in 1945 and 1943, and live in Beograd and Zemun Polje, respectively. The Serbian Government (“the Government”) were represented by their Agent, Mr. S. Carić.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 27 February 1989 the Beograd Fourth Municipal Court stayed inheritance proceedings after the death of M.J., one of the applicants’ maternal uncles, and instructed the applicants’ mother, S.K., to institute regular civil proceedings in order to realise her claim.
On 19 July 1989 S.K. and her other two siblings brought a civil action in the Beograd First Municipal Court against M.J.’s widow, claiming their right to a share of his estate.
Following S.K.’s death, on 25 December 1992 the Beograd Third Municipal Court recognised the applicants as her heirs in the proceedings. The first applicant is representing himself and the second applicant in the proceedings.
Subsequently, the other two plaintiffs in the case died, and the court stayed the case pending the outcome of the respective inheritance proceedings and the determination of the heirs.
The proceedings resumed on 18 April 2004. The hearing scheduled for 20 May 2004 was adjourned, inter alia, due to the applicants’ absence.
The next hearing was held on 5 October 2004, when the first applicant objected to the fact that the court had changed the case number. The first applicant did not attend the next hearing, scheduled for 28 December 2004.
He had meanwhile filed another submission, which the court considered pointless and irrelevant.
At the next hearing held on 17 March 2005, the first applicant again complained about the new case number. The hearing scheduled for 22 June 2005 was adjourned because the court had not succeeded in serving the summons on the applicants.
At the hearing held on 16 September 2005, the two other plaintiffs withdrew their action. The first applicant requested the court to give him time to decide whether to maintain the action. It appears that, at the end of that hearing, the first applicant refused to sign the minutes thereof because they had been written on three pages, whereas he claimed they could have been written on two.
The next hearing scheduled for 1 December 2005 was adjourned due to the unsuccessful service of the summons on the applicant.
Since neither of the duly summoned parties appeared at the next hearing, pursuant to section 296 (2) of the Civil Procedure Act on 12 January 2006 the court concluded that the action had been withdrawn.
In a submission sent to the court by the first applicant on 17 January 2006, he explained that he had been unable to attend the hearing of 12 January 2006 because of heavy traffic. However, he did not request the full restoration of the case (povrat u pređašnje stanje) pursuant to section 111 of the Civil Procedure Act.
The court attempted to serve its decision of 12 January 2006 on the applicant on 23 and 24 February, 3 and 5 April, 4 and 8 May, 15, 22 and 26 June, 4, 5 and 26 September and 2 October 2006. Each time, the bailiff instructed the first applicant to be present at a certain place at a certain time with a view to service, but he never appeared.
The court subsequently decided to serve the said decision through its bulletin board, pursuant to section 140 of the Civil Procedure Act. It did so on 6 November 2006. The notice was removed on 14 November 2006, which date constituted service of the decision on the applicants.
On 2 February 2007, following an examination of the case file, the first applicant appealed against the decision of 12 January 2006.
On 6 February 2007 the court declared his appeal inadmissible. Since the decision had been served on him through the bulletin board on 14 November 2006, the statutory time-limit for filing the appeal had elapsed.
On 28 February 2007, when the court bailiff attempted to serve the decision of 6 February 2007 on the first applicant, he refused to accept it. The bailiff noted the time and date of the first applicant’s refusal, which, pursuant to section 138 of the Civil Procedure Act, constituted service of the decision on him.
On 12 March 2007 the first applicant appealed against the first-instance court’s decision of 6 February 2007. The case file was forwarded to the Beograd District Court, being the second-instance court, where it is apparently still pending.
The relevant provisions of the Civil Procedure Act 2004 (Zakon o parničnom postupku; published in OG RS no. 125/04) read as follows:
“If a party does not appear at a hearing or fails to observe a time-limit for undertaking a certain action and thereby loses the right to that action, the court shall, upon that party’s request and if there exists a valid reason, allow for the subsequent resumption of that action (restitutio in integrum).”
“When the addressee of a letter... without a legal reason, refuses to accept the letter, the bailiff shall leave it in the flat... or hang it on the door of the flat... [The bailiff] shall indicate on the service receipt the date, time and reason for refusal of service, as well as where the letter was left, and thereby it shall be deemed served.”
“1. When during the course of the proceedings it is impossible to serve a letter, this shall be executed through the [court’s] bulletin board.
2. The letter shall be deemed served on the eighth day following its announcement on the bulletin board.”
“If both the plaintiff and the respondent unjustifiably fail to appear at the main hearing, the action shall be deemed to have been withdrawn.”


ITEMID: 001-83967
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ŠAKANOVIČ v. SLOVENIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: 6. The applicant was born in 1956 and lives in Jesenice, Slovenia.
7. On 18 February 1995 the applicant's alleged common law partner (izvenzakonski partner), S.A.K., died.
8. On 21 March 1995 the Jesenice Local Court (Okrajno sodišče na Jesenicah) received the coroner's certificate (smrtovnica). S.A.K. was survived by three daughters – one of them, K.Š., was also a daughter of the applicant.
9. On 12 June 1995 the applicant was given notice of the court's intention to hold a hearing and an invitation to attend it. The hearing took place on 28 June 1995. It appears from the records of the hearing that the applicant participated in the proceedings on her own behalf – as the potential heir – and also represented her juvenile daughter.
10. The second hearing fixed for 21 January 1998 was cancelled at the applicant's request.
11. At the third hearing, held on 28 February 1998, the court stayed the inheritance proceedings and instructed the applicant to institute separate civil proceedings with a view to determining the legal nature of her relationship with S.A.K.
12. Consequently, on 9 March 1998 the applicant lodged a claim with the Jesenice Local Court, which, due to lack of jurisdiction, referred the case to the competent Kranj District Court (Okrožno sodišče v Kranju).
The first hearing, scheduled for 13 September 1999, was called off at the request of the applicant. The Kranj District Court afterwards held three hearings between 10 February 2000 and 5 December 2000.
Between 13 September 1999 and 3 November 2000 the applicant lodged five preliminary written submissions.
At the hearing on 5 December 2000 the court issued a judgement rejecting the applicant's claim. The court found that she could not be considered S.A.K.'s common law partner at the time of his death and thus had no inheritance rights in respect of his estate.
The applicant appealed to the Ljubljana Higher Court (Višje sodišče v Ljubljani) in January 2001. On 6 March 2002 the court dismissed her appeal. The Ljubljana Higher Court's judgment was served on the applicant on an unspecifed day in March 2002.
13. Subsequently, the inheritance proceedings continued before the Jesenice Local Court. The latter issued a decree of distribution (sklep o dedovanju) on 12 February 2003. Relying on the judgments of 5 December 2000 and 6 March 2002 (paragraph 12 above), the court did not include the applicant as one of S.A.K.'s heirs. The decision was served on the parties to the proceedings on 28 February 2003.
14. Section 164 of the Inheritance Act (Official Gazette SRS, no. 15-645/1976, with amendments, – Zakon o dedovanju) provides that inheritance proceedings should begin ex officio as soon as the court learns that somebody has died or has been pronounced dead. In inheritance proceedings the court should establish the heirs, the property which is to be included in the deceased's estate and the rights of heirs, beneficiaries and others (section 162).
15. According to section 199, after receiving the coroner's certificate (a document concerning personal data about the deceased and his estate and information relevant for the inheritance, normally prepared by a registrar – matičar), the court examines whether it is competent to hold a hearing and, if not, sends the case to the competent court. According to sections 203 and 205, the court must hold a hearing if the deceased owned immovable property. It is the court's obligation to invite those who might be affected to the hearing (section 205).
16. The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) has been implemented since 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings.
“(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney's Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney's Office within two months of the date of receipt of the proposal of the State Attorney's Office. The State Attorney's Office shall decide on the proposal as soon as possible and within a period of four months at the latest. ...
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney's Office and the party fail to negotiate an agreement within four months after the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months after receiving the State Attorney's Office reply that the party's proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney's Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5788
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: TRACIA v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national, born in 1920 and living in Rome. He is represented before the Court by Mr A.G. Lana, a lawyer practising in Rome.
The applicant was an employee of the Italian Tax Revenue whose duty was to supervise the validity of payments made to taxpayers. On 8 July 1976, the applicant authorised to pay a company its tax credit although it was not entitled to it.
On 13 November 1987, the Principal State Counsel at the Court of Audit summoned the applicant to appear before the Court of Audit with a view to ascertaining his liability jointly with other employees for the damages caused to the State.
By a decision of 9 December 1987, the Court of Audit ordered the seizure of the applicant’s property.
By a judgment of 28 September 1991, the Court of Audit found the applicant liable and ordered him to pay compensation to the State. Two judges of that Court (D.R. and M.) had also decided in the seizure proceedings.
The applicant’s appeal against this judgment was dismissed by the Appellate Court of Audit on 25 May 1995.
Pursuant to Article 395 No. 4 of the code of civil procedure, on 13 September 1995 the applicant lodged an application with the Appellate Court of Audit to recall the above-mentioned judgment of 25 May 1995 by reasons of errors of facts (revocazione). Two judges of that Court (G. and A.) had already participated in the appeal proceedings. The application was declared inadmissible by a decision of 9 September 1996.
Pursuant to Article 1 quinquies of Law No. 20/1994, on 30 December 1997 the applicant lodged a second application with the Appellate Court of Audit to recall the judgment of 9 September 1996 in order to be excluded from his joint liability. By a judgment of 16 July 1998, the Appellate Court of Audit declared that application inadmissible.
Under Article 26 of Royal Decree No. 1038 of 13 August 1933 and Article 52 of the code of civil procedure, the party in the proceedings before the Court of Audit can challenge the judge where there are reasons to doubt his impartiality.
Under Article 1218 et seq. of the civil code, civil servants are responsible for damages caused to the State during the performance of their duties.
Under Article 395 No. 4 of the code of civil procedure, final judgments can be recalled if they are based on errors of fact which result from the acts and documents of the case.
Under Article 1 quinquies of Law No. 20 of 14 January 1994, final judgments can be recalled with a view to excluding a person from his joint liability.


ITEMID: 001-77789
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF RADOVICI AND STANESCU v. ROMANIA [Extracts]
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Pecuniary and non-pecuniary damage - financial award (global);Costs and expenses partial award - domestic proceedings
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;John Hedigan;Vladimiro Zagrebelsky
TEXT: 8. The applicants were born in 1930 and 1933 respectively and live in Bucharest.
9. The facts of the case specific to each application, as submitted by the parties, may be summarised as follows.
10. In 1996 the applicants brought before the Bucharest District Court an action for recovery of possession in respect of property that had been nationalised by Decree no. 92/1950. Situated in Bucharest, at 184-B Calea Griviţei, the property consisted of a house divided into flats and the land on which it was built. At the time, one of the flats was occupied by E.D. under a tenancy agreement entered into with the State in 1986 and extended until 8 April 1999 pursuant to Law no. 17/1994 of 18 April 1994.
11. In a final judgment of 2 April 1997, the court allowed the applicants’ action on the ground that the nationalisation of the property had been illegal and ordered the competent administrative authorities to return the property to them. On that date the applicants began to pay the rates and land taxes levied on their property.
12. On 26 August 1998 the applicants notified E.D. of the judgment of 2 April 1997 through the intermediary of a bailiff and by registered letter with return receipt, in accordance with Law no. 114/1996 of 11 October 1996. In their notice, the applicants requested E.D. to enter into a tenancy agreement with them, as the new owners of the flat that E.D. occupied, and informed her, for the payment of the rent, of the details of a bank account in their names with the Savings Bank.
13. In May 1999, after the entry into force of Government Emergency Ordinance no. 40/1999 of 8 April 1999, the applicants visited E.D., who had declined to respond to their request, with a view to entering into a tenancy agreement with her; they were faced with a categorical refusal on the part of E.D.
14. On 25 August 1999 the applicants brought proceedings for the eviction of E.D. in the Bucharest District Court. They claimed that E.D. was occupying their property without any right of tenancy and had refused to enter into a tenancy agreement with them or to pay them rent in that connection. They further complained that E.D. had been breeding pigs in the basement of the house, thus damaging it and rendering it insalubrious.
15. In a judgment of 9 January 2000, the District Court granted their application and ordered the eviction of E.D. from the disputed property. It found that E.D. had not requested an extension of her tenancy of the flat occupied by her and her family, which she had been entitled to do under Article 2 of Government Emergency Ordinance no. 40/1999 and which would have enabled her to enter into an agreement with the new landlords. The court further observed that the applicants had not complied with the obligation under Article 10 § 1 of the Ordinance to notify the tenant, within a period of thirty days from the entry into force of the Ordinance, through the intermediary of a bailiff and by registered letter with return receipt, of the date and place fixed for the signing of a tenancy agreement.
16. Whilst the court observed that, under Article 11 § 1 of the Ordinance, failure by a landlord to comply with those formalities resulted in the extension of the previous tenancy until the signing of a new agreement, it nevertheless considered that this provision was not applicable in the present case in view of the exception provided for by Article 13 (d) of the Ordinance whereby there was no extension in the event of a dispute arising from a tenant’s refusal to enter into a tenancy agreement with the new landlord. The court thus considered that the applicants had adduced evidence of the refusal by E.D. to enter into such an agreement. Accordingly, it held that that existing tenancy agreement had not been extended and that E.D. was occupying the applicants’ property without any right of tenancy.
17. In a judgment of 11 May 2000, the Bucharest County Court upheld the merits of that judgment on appeal. It considered that the court below had correctly applied Article 13 (d) of the Ordinance, finding that the existing tenancy agreement had not been extended in view of the refusal by E.D., as proven by the applicants, to enter into a new agreement with them as the new landlords.
18. In a final judgment of 26 September 2000, the Bucharest Court of Appeal granted an appeal by the defendant and dismissed the applicants’ action. It found that the applicants had failed to comply, when serving their notice on E.D. requesting her to enter into a tenancy agreement, with the conditions and formalities laid down in Article 10 § 1 of the Ordinance, and accordingly held that the existing tenancy agreement between E.D. and the State had been automatically extended pursuant to Article 11 § 1 of the Ordinance. The reasoning in the judgment made no mention of the applicability in the present case of Article 13 (d) of the Ordinance.
19. On 9 August 2001 the applicants brought proceedings against E.D. seeking from her the payment of compensation for having deprived them of the enjoyment of the flat in their house that the defendant had occupied since 1998 without paying them any rent.
20. In a judgment of 30 November 2001, the Bucharest District Court dismissed their application on the ground that the defendant had a tenancy agreement with the State, which had been extended automatically as the applicants had failed to comply with the formalities provided for in Article 10 § 1 of the Ordinance. That judgment became final on an undetermined date, after being upheld by the Bucharest County Court on an appeal by the applicants.
21. On 8 August 2001 the applicants brought eviction proceedings against E.D. in the Bucharest District Court on the ground that she had been occupying a flat, of which they were the owners, without paying them any rent, and that her conduct was such that her cohabitation with the other occupants of the building had become impossible. The applicants indicated that, after they had been granted the return of their property by the final judgment of 2 April 1997, they had made a number of attempts to enter into a tenancy agreement with the defendant, who had constantly behaved aggressively towards them, but had been unsuccessful. They referred to a number of complaints that they had filed against E.D. with law-enforcement agencies. They relied on section 24(b) of Law no. 114/1996 taken in conjunction with Article 13 (i) of the Ordinance.
22. In a judgment of 14 September 2001, the Bucharest District Court dismissed their action as manifestly ill-founded. It considered that, as it concerned the termination of a tenancy agreement, they should have proved that they had entered into such an agreement with the defendant and that there were circumstances which rendered her cohabitation with the other occupants of the building impossible, but that they had failed to adduce such evidence. The reasoning in this judgment made no reference to the applicants’ complaint concerning E.D.’s failure to pay rent.
23. The applicants appealed against that judgment. In a final judgment of 15 February 2002, the Bucharest County Court granted their application. It held that E.D. had been occupying their property without any right of tenancy, taking into account the fact that the defendant had prevented the connection of the flat to the town gas network and had impeded the use by the other tenants of the common parts of the building, as a result of which her tenancy agreement was not being automatically extended. The court consequently ordered her eviction from the flat that she had been occupying in the applicants’ building.
24. On 13 September 2002 the applicants lodged an action for eviction against the members of E.D.’s family who had been living with her in the flat. Their application was granted by a final judgment of 11 November 2002, which ordered the eviction from the flat of the members of E.D.’s family.
25. On 23 September 2003 a bailiff from the Bucharest District Court’s service for the execution of judgments went to the applicants’ flat and restored possession of the premises to them after breaking the locks on the front door to gain access. The bailiff noted in the record drawn up that day that serious damage had been done to the flat, in which several window panes were missing or broken.
26. The applicants never received any rent for the flat which E.D. had occupied in their building between 2 April 1997 and 23 September 2003.
...
53. The relevant provisions of domestic law read as follows at the material time.
54. Section 24 of Law no. 5/1973 provided:
“The tenant shall lose the right to occupy the leased accommodation and shall be evicted in the following cases:
...
(d) If, in bad faith, he or she has failed for a period of three consecutive months to pay the rent or the service charges.
The tenant’s eviction, in the cases provided for in this section, shall be ordered by a decision of the courts.”
55. Section 1 of Law no. 17/1994 read as follows:
“Regardless of the type of landlord, any residential tenancy agreement concerning housing of which the lease is governed by Law no. 5/1973 ... , and which is in progress at the time of the entry into force of the present Law, shall automatically be extended for a period of five years under the same conditions [as those laid down in Law no. 5/1973].”
56. The relevant sections of Law no. 114/1996 read as follows:
“The lease of residential premises shall be granted under an agreement between landlord and tenant recorded in writing and registered with the local tax authorities ...”
“Should the parties fail to agree on the renewal of the tenancy agreement, the tenant shall be required to vacate the premises on the expiry of his or her tenancy.”
“Tenancy agreements shall be terminated prior to their expiry date in the following cases:
...
(b) at the request of the landlord, should the tenant fail to pay the rent for three consecutive months;
...
(i) when the tenant’s conduct renders impossible his or her cohabitation with the other occupants of the building or prevents the normal use of the premises;
...”
57. The relevant Articles of the Ordinance read as follows:
“The term of a residential tenancy agreement ... concerning premises that have been returned to their former owner shall be extended at the request of the tenant for a maximum period of three years from the date on which the present Ordinance comes into force.”
“A new tenancy agreement shall be entered into between the landlord and the tenant at the tenant’s request. The private landlord shall register the new tenancy agreement with the local tax authorities. The legal entity that previously possessed or administered the property shall inform the tenant under the existing tenancy agreement, by letter with return receipt, within a period of fifteen days after the return of the property, that he or she may from that date onwards enter into a new tenancy agreement with the landlord to whom the property has been returned.”
“The landlord shall notify the tenant, within a period of thirty days following the entry into force of the present Ordinance and through the intermediary of a bailiff, of the date and place fixed for the signing of a new tenancy agreement. The notice shall be served by registered letter with return receipt. ...”
“Failure by the landlord to comply with the provisions of Article 10 § 1 shall lead to the automatic extension of the existing tenancy agreement until the parties have entered into a new agreement. Failure by the tenant to pay rent until the signing of the new agreement may not be relied upon by the landlord as a ground for eviction.
In the event that, within a period of sixty days following the date of receipt of the notice, the tenant fails to reply in writing or refuses without justification to enter into a new tenancy agreement, the landlord shall be entitled to seek the unconditional eviction of the tenant ... by presidential decree.”
“The tenancy agreement shall not be extended:
...
(d) in the event of a dispute resulting from the refusal of the tenant, after being notified pursuant to Law nos. 17/1994, 112/1995 or 114/1996, to enter into a new tenancy agreement with the landlord;
...
(i) where the tenant renders cohabitation impossible or impedes the normal use of the dwelling;
...”
“The amount of the rent shall be fixed by negotiation between the tenant and the landlord at the time they enter into the new tenancy agreement. The rent shall not exceed 25% of the monthly net income of the household if this income does not exceed the average monthly net salary nationwide.”
58. Law no. 241/2001 of 16 May 2001 approved Government Emergency Ordinance no. 40/1999 and amended its Article 2, raising to five years the term of the tenancy agreement extended at the request of the tenant where the property had been returned to its former owner. The Law also amended Article 32 of that Ordinance by providing that the rent to be paid by the tenant could not exceed 15% of the monthly net income of his household.
59. Government Emergency Ordinance no. 40/1999 ceased to be in effect on 8 April 2004. Under Government Emergency Ordinance no. 8/2004, only tenancy agreements concerning premises belonging to the State could be extended by five years, at the request of the tenant.


ITEMID: 001-105096
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF HEGYI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Paulo Pinto De Albuquerque
TEXT: 4. The applicant was born in 1949 and lives in Martonvásár.
5. On 28 August 1995 the applicant filed for divorce with the Székesfehérvár District Court. After obtaining several forensic expert opinions, it dissolved the applicant’s marriage, established the amount of child maintenance and divided the matrimonial property on 4 February 2000.
6. On 19 October 2000 the Fejér County Regional Court brought a partial judgment concerning the sum of child maintenance, and remitted the remainder of the case.
7. In the resumed proceedings the Székesfehérvár District Court delivered a judgment on 5 November 2005. On appeal, the Fejér County Regional Court finally divided the matrimonial property on 22 June 2006. This judgment was served on the applicant on 10 August 2006.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81409
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF LEVOCHKINA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1941 and lives in Novosibirsk.
7. The applicant receives an old-age pension. The Law of 21 July 1997 on the Calculation and Upgrading of State Pensions (“the Pensions Act”) introduced, from 1 February 1998 onwards, a new method for calculating pensions. The idea behind this method, based on what is known as an “individual pensioner coefficient”, was to link the pension to the pensioner's previous earnings.
8. The authority in charge of the applicant's pension, the Pension Fund Agency of the Kirovskiy District of Novosibirsk (“the Agency”), fixed the applicant's coefficient at 0.525. The applicant challenged the Agency's decision in the Kirovskiy District Court of Novosibirsk. She argued that her coefficient should be 0.7.
9. On 31 August 1999 the District Court found for the applicant, considering that the Agency had misinterpreted the Pensions Act. In particular, it held as follows:
“... Article 4 [of the 1997 Pensions Act] fixes an individual pensioner coefficient at the maximum rate of 0.7. This rate is subject to changes hereafter by a federal law at the adoption of a federal law on the budget of the RF PF [Pension Fund] for a next financial year.”
The District Court decided that the Agency was to recalculate the applicant's pension using a coefficient of 0.7 from 1 February 1998 “until a change in the legislation”.
10. The Agency appealed against the judgment. On 7 October 1999 the Novosibirsk Regional Court upheld the judgment, which became enforceable on the same day. The judgment was never executed.
11. On 29 December 1999 the Ministry of Labour and Social Development (“the Ministry”) issued an Instruction on the “Application of Limitations” established by the Pensions Act (“the Instruction”). The Instruction clarified how to apply the Pensions Act.
12. On 23 August 2000 the Agency lodged an application with the District Court for the reconsideration of the applicant's case owing to newly discovered circumstances. They asked the court to take account of the Instruction, which supported their arguments that had been rejected by the court during the initial examination of the case.
13. Some time thereafter a group of individuals challenged the Instruction before the Supreme Court of the Russian Federation. On 24 April 2000 the Supreme Court dismissed the complaint. It found that, contrary to what the complainants had suggested, the Ministry of Labour had not acted ultra vires in issuing the Instruction, and that the Ministry's interpretation of the Pensions Act had been correct. On 25 May 2000 the Cassation Division of the Supreme Court upheld this judgment on appeal.
14. On 16 January 2001 the District Court examined the Agency's request. The District Court noted that by virtue of Article 333 of the Code of Civil Procedure enforceable judgments may be reconsidered owing to newly discovered circumstances which could not have been known at the time when the judgment had been delivered. The court further noted that the Instruction had been upheld by the Supreme Court which, therefore, had found it lawful to interpret article 4 of the Pensions Act so that the rate of 0.7 should not apply to an “individual pensioner coefficient”.
15. In a decision of 16 January 2001 the District Court granted the Agency's application, under Article 337 of the Code of Civil Procedure, quashed the judgment of 31 August 1999, as upheld on 7 October 1999, and ordered a fresh examination of the case. It stated that its decision was not subject to appeal.
16. As a result of the fresh examination of the case the District Court delivered a judgment of 31 January 2001 in which it rejected the applicant's claims in full. The applicant appealed. On 13 March 2001 the Novosibirsk Regional Court dismissed the applicant's appeal and upheld the judgment of 31 January 2001.
17. From 1 May 2001, following changes to the pension regulations, the applicant's pension was calculated based on a coefficient of 0.84.
18. The Code of Civil Procedure of 1964 (“CCivP”), in force at the material time, provided as follows:
“[Judgments] which have come into force may be reconsidered on the basis of newly discovered circumstances. The grounds for reconsideration ... shall be as follows:
1. significant circumstances which were not and could not have been known to the party who applies for reconsideration; ...
4. cancellation of a court [judgment] or of another authority's decision which served as legal basis for the [judgment] in question.”
“... [An application for reconsideration of a [judgment] owing to newly discovered circumstances] shall be lodged within three months after the discovery of the circumstances.”
“After examination of an application for reconsideration of a [judgment] owing to newly discovered circumstances, the court may either grant the application and quash the [judgment], or dismiss the application.
The court decision by which an application for reconsideration of a [judgment] owing to newly discovered circumstances is granted shall not be subject to appeal. ...”
19. On 2 February 1996 the Constitutional Court of the Russian Federation adopted a ruling concerning certain provisions of the Code of Criminal Procedure (“CCrP”). In that ruling the Constitutional Court decided that Article 384 of the CCrP (“Grounds for reconsideration of a [criminal] case on the basis of newly discovered circumstances”, which was in many respects similar to Article 333 of the CCivP) was unconstitutional in that it limited the grounds for the reopening of a criminal case to situations of “newly discovered circumstances”. In that ruling the Constitutional Court suggested that this provision of the CCrP prevented rectification of judicial errors and miscarriages of justice. In its ruling of 3 February 1998 the Constitutional Court came to the conclusion that Article 192 § 2 of the Code of Commercial Procedure was unconstitutional in so far as it had served as a basis for the dismissal of applications for reconsideration of judgments of the Presidium of the Supreme Commercial Court, where the judgment had been delivered as a result of a judicial error which had not been and could not have been established earlier.
20. The Instruction of the Ministry of Labour and Social Development of 29 December 1999 on the “Application of Limitations” established by the Pensions Act was registered by the Ministry of Justice on 31 December 1999 and became binding in February 2000, ten days after its official publication.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-93967
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: POKRZEPTOWICZ-MEYER (I) v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Ms Beata Monika Pokrzeptowicz-Meyer, is a Polish national who was born in 1967 and lives in Kwidzyn.
The
The applicant and her former husband have a son, born on 26 May 1999. After the separation of his parents in 2002 the child initially lived with the applicant in Bielefeld.
On 2 October 2003, the Bielefeld District Court advised the applicant that she was not allowed to take the child elsewhere without the father’s consent.
On 3 October 2003 the applicant took the child to Poland without the father’s consent, although she knew that the father did not agree.
On 24 June 2004 she returned the child to the father after a Gdansk Court had decided that the child had to be returned to his place of habitual residence. Since then the child has lived with his father and his new wife in Düsseldorf.
On 5 October 2004 a court-appointed expert submitted an opinion on the distribution of parental authority drawn up on the basis of information collected between August and October 2004. He found that the child, who had lived with his father in Düsseldorf since June 2004, was well integrated. The child’s primary attachment to his father, the latter’s ability to promote the child’s emotional development and to tolerate its attachment to the other parent, and continuity were arguments clearly in favour of the child staying with his father. The applicant’s ability to promote the boy’s linguistic competencies, even though it exceeded that of the father, was not as important for him as the father’s ability to promote his emotional development, which was greater than that of the applicant.
On 16 December 2004 the District Court held a hearing during which it heard the expert and the child.
On 15 March 2005 the District Court dismissed the applicant’s motion for bias against the expert, finding that the expert’s opinion did not contain any factual errors.
On 15 June 2005 the District Court transferred sole parental authority to the father. On the basis of the expert opinion it found that this was in the child’s best interests. Having regard to the parents’ difficulties in communicating, joint custody could not be awarded. There was no indication that the father had impaired the applicant’s access to the child to an extent as to merit a different result.
On 20 September 2005 the Hamm Court of Appeal dismissed the applicant’s request for legal aid for appeal proceedings for lack of prospects of success. The transfer of sole parental authority was in accordance with Section 1671 of the Civil Code, according to which a request to transfer sole parental authority is granted where this is in the best interests of the child. The Court of Appeal considered that nothing warranted uprooting the child from his current environment. According to the reliable findings of the expert the father was fully able to raise the child. He had strong empathy for the child. The child liked his father and had an at least equally good relationship with both parents. The father had meanwhile even become the child’s main reference person. Uniformity and regularity were factors in favour of the child remaining where he had lived for more than one year and where he was content. The Court of Appeal stressed in this respect that since the separation the applicant had exposed the child, no less than four times, to changes in his personal and social environment. After two moves in the area of her place of work in November 2001 and January 2003 she had moved with the child to Poland in October 2003, contrary to prior agreement and infringing upon the father’s co-parental authority. Thereby she accepted that the child had to be returned eight months later on the basis of return proceedings initiated by the father, which had been foreseeable to her. The child’s needs for stability would not be met by a further move. The Court of Appeal stressed that no meaningful weight could be attached to the fact that the applicant, who at the time worked part-time in contrast to the father, had more time to care for the child, since the applicant’s course of action in October 2003 raised at least doubts as to her ability to act in accordance with the child’s best interests and to thereby also appropriately take into account the father’s interests. The fact that she had departed from her word in order to carry out her plans probably called into question her capacity to act as a role model in one essential educational area.
On 22 December 2005 the Court of Appeal, without holding a hearing, dismissed the applicant’s appeal, referring to the reasoning in the decision at first instance and its decision of 20 September 2005. Having regard to the applicant’s allegation that living conditions in Düsseldorf were inadequate, the fact that the father had meanwhile moved with the child to Mönchengladbach was consistent and in line with the child’s best interests. Furthermore, it had not been necessary to appoint a curator ad litem. In the event of a conflict of interests between parents this was only necessary where the parents’ dispute was of such a nature that the child’s interests had to be defended against those of his parents. This could be the case where both parents predominantly sought to enforce their own interests. In the present case only the applicant had demonstrated such behaviour. Contrary to the applicant’s allegations the child had been heard at first instance as evidenced by the minutes of the hearing. It was irrelevant that this was not explicitly reflected in the decision at first instance as the hearing had not produced any findings deviating from those of the expert. The Court of Appeal explained that it had refrained from orally examining the parents and the child because the relevant facts had already been established and because the case file did not contain any indication that a renewed hearing would have provided the court with any additional information that could have been of importance to its adjudication.
On 17 January 2006 the Hamm Court of Appeal declared the applicant’s appeal on the ground that she had not had a sufficient opportunity to make submissions (Anhörungsrüge) inadmissible. It found that the applicant did not allege that she had not had an opportunity to comment on the arguments put forward during the proceedings or that her comments had not been taken into account. Rather, she only criticised the failure to conduct a renewed oral hearing at second instance. The Court of Appeal considered that the right to be heard did not principally comprise the right to an oral hearing. In its decision of 22 December 2005 it had given reasons for refraining from an oral hearing. The applicant had not submitted why the outcome of the proceedings might have been different if an oral hearing had been held.
On 19 April 2006 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for adjudication because it was inadmissible. It also refused to accept the applicant’s joint requests for an interim order for adjudication. It dismissed the applicant’s requests for legal aid and to be assigned an attorney.
On 9 November 2005 the Bielefeld Regional Court reprimanded the applicant for child abduction.
By decisions taken between September 2004 and March 2006 the domestic courts regulated the applicant’s access to her son.