ITEMID: 001-80404
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BAZ AND OTHERS  v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3
TEXT: 4. The applicants were born in 1984, 1970, 1964, 1958, 1962 and 1961 respectively and live in Diyarbakır.
5. The applicants were active members of HADEP in Diyarbakır at the time of the events giving rise to the present application.
6. In 2001, on various dates, the applicants were arrested and taken into police custody on suspicion of their involvement in the activities of an illegal armed organisation, namely the PKK (the Kurdistan Workers' Party).
7. The periods spent by the applicants in police custody are as follows:
8. According to official documents, Mahrem Bulut and Mehmet Akbalık were arrested for the first time on the basis of statements of Mr S.D., Mr M.A., Mr B.E., Mr H.I. and Mr T.G., who alleged that the applicants were involved in PKK-related activities. As to the applicants' arrest in August 2001, the case file reveals that the police had been informed that there would be illegal violent acts and demonstrations to celebrate the anniversary of the beginning of the armed struggle of the PKK and that the names of the applicants came up as possible organisers.
9. Subsequent to these events, criminal proceedings were instigated against the applicants for membership of the PKK by the public prosecutor at the Diyarbakır State Security Court, with the exception of Sedrettin Dinar and Tahsin Aktaş.
10. On 11 June 2002 the Diyarbakır State Security Court acquitted Abdulkadir Baz and Yusuf Sebuk of the charges against them. The criminal proceedings against Mahrem Bulut and Mehmet Akbalık were pending at the time of their application to the Court.
11. A description of the relevant domestic law at the material time can be found in the Daş v. Turkey judgment (no. 74411/01, § 18, 8 November 2005).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-61942
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF SIDABRAS AND DŽIAUTAS v. LITHUANIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 14+8;Not necessary to examine Art. 8;No violation of Art. 10 or 14+10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 10. The first applicant was born in 1951 and lives in Šiauliai. The second applicant was born in 1962 and lives in Vilnius.
The facts of the case, as submitted by the parties, may be summarised as follows.
11. In 1974 the first applicant graduated from the Lithuanian Physical Culture Institute, qualifying as a certified sports instructor.
12. From 1975 to 1986 he was an employee of the Lithuanian branch of the Soviet Security Service (the KGB). After Lithuania declared its independence in 1990, he found employment as a tax inspector at the Inland Revenue.
13. On 31 May 1999 two authorities – the Lithuanian State Security Department and the Centre for Research into the Genocide and Resistance of the Lithuanian People – jointly concluded that the first applicant was subject to the restrictions provided under section 2 of the Law on the evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the present activities of former permanent employees of the organisation (“the KGB Act” – see paragraph 24 below). The conclusion confirmed that the first applicant had the status of a “former KGB officer” (see paragraphs 26-27 below). On 2 June 1999 the first applicant was dismissed from the Inland Revenue on the basis of that conclusion.
14. The first applicant brought an administrative action against the security intelligence authorities, claiming that he had been engaged only in counterintelligence and ideology work while employed by the KGB, and that he had not been involved in the violation of individual rights by that organisation. He argued that his dismissal under section 2 of the KGB Act and the resultant inability to find employment were therefore unlawful.
15. On 9 September 1999 the Higher Administrative Court found that the conclusion of 31 May 1999 had been substantiated and that the first applicant was subject to the restrictions provided under section 2 of the KGB Act. In this respect, the court held that the applicant had the status of a “former KGB officer” within the meaning of the KGB Act, since he had occupied one of the positions mentioned in the list of 26 January 1999.
16. On 19 October 1999 the Court of Appeal dismissed the first applicant’s appeal. It found that he had not occupied a KGB position dealing only with criminal investigations and could not therefore benefit from the exceptions listed under section 3 of the KGB Act.
17. On an unspecified date in the 1980s, the second applicant graduated from Vilnius University as a qualified lawyer.
18. From 11 February 1991 he worked as a prosecutor at the Office of the Prosecutor General of Lithuania, investigating primarily cases of organised crime and corruption.
19. On 26 May 1999 the Lithuanian State Security Department and the Centre for Research into the Genocide and Resistance of the Lithuanian People jointly concluded that from 1985 to 1991 the second applicant had been an employee of the Lithuanian branch of the KGB, that he had the status of a “former KGB officer” and that he was thereby subject to the restrictions provided under section 2 of the KGB Act. On 31 May 1999 the second applicant was dismissed from his job at the Office of the Prosecutor General on the basis of that conclusion.
20. The second applicant brought an administrative action against the security intelligence authorities and the Office of the Prosecutor General. He claimed that from 1985 to 1990 he had merely studied at a special KGB school in Moscow and that from 1990 to 1991 he had worked in the KGB as an informer for the Lithuanian security intelligence authorities and should therefore be entitled to benefit from the exceptions under section 3 of the KGB Act. He claimed that his dismissal under the Act and his resultant inability to find employment were unlawful.
21. On 6 August 1999 the Higher Administrative Court allowed the second applicant’s claim, quashed the conclusion of 26 May 1999 and ordered him to be reinstated. The court found that the period of the second applicant’s studies at the KGB school from 1985 to 1990 was not to be taken into account for the purposes of the KGB Act, that he had worked in the KGB for a period of five months in 1990-91, that he had not occupied a KGB position dealing with political investigations and that, in any event, he had been a secret informer for the Lithuanian authorities. The court concluded that the exceptions under section 3 of the KGB Act applied to the second applicant and that his dismissal had therefore been unlawful.
22. Following an appeal by the security intelligence authorities, on 25 October 1999 the Court of Appeal quashed the judgment of 6 August 1999. It held that, although the first-instance court had properly found that the second applicant had worked at the KGB for only five months, it had not been established that he had worked there as a secret informer for the Lithuanian authorities. Accordingly, he could not benefit from the exceptions under section 3 of the KGB Act.
23. The second applicant appealed against the Court of Appeal’s judgment. By a decision of 28 January 2000, the President of the Supreme Court allowed the appeal. However, by a final decision of 20 April 2000, the full Supreme Court refused to examine the appeal and discontinued the proceedings for lack of jurisdiction.
24. The Law on the evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the present activities of former permanent employees of the organisation (Įstatymas dėl SSRS valstybės saugumo komiteto (NKVD, NKGB, MGB, KGB) vertinimo ir šios organizacijos kadrinių darbuotojų dabartinės veiklos – “the KGB Act”) was enacted on 16 July 1998 by the Seimas (the Lithuanian parliament) and promulgated by the President of the Republic. The KGB Act reads as follows:
“The USSR State Security Committee (NKVD, NKGB, MGB, KGB – hereinafter ‘the SSC’) is recognised as a criminal organisation which was responsible for war crimes, genocide, repression, terror and political persecution in the territory of Lithuania when occupied by the USSR.”
“For a period of ten years from the date of entry into force of this Act, former employees of the SSC may not work as public officials or civil servants in government, local or defence authorities, the State Security Department, the police, the prosecution, courts or diplomatic service, customs, State supervisory bodies and other authorities monitoring public institutions, as lawyers or notaries, as employees of banks and other credit institutions, on strategic economic projects, in security companies (structures), in other companies (structures) providing detective services, in communications systems, or in the educational system as teachers, educators or heads of institutions[;] nor may they perform a job requiring the carrying of a weapon.”
“(1) The restrictions provided for in section 2 shall not be applied to former permanent employees of the SSC who, while working at the SSC, investigated only criminal cases and who discontinued their work at the SSC not later than 11 March 1990.
(2) The Centre for Research into the Genocide and Resistance of the Lithuanian People and the State Security Department may [recommend by] a reasoned application that no restrictions under this law be applied to former permanent employees of the SSC who, within three months of the date of the entry into force of this Law, report to the State Security Department and disclose all information in their possession ... about their former work at the SSC and their current relations with former SSC employees and agents. A decision in this respect shall be taken by a commission of three persons set up by the President of the Republic. No employees of the Centre for Research into the Genocide and Resistance of the Lithuanian People or the State Security Department may be appointed to the commission. The commission’s rules shall be confirmed by the President of the Republic.”
“The procedure for implementation of the Act shall be governed by [a special law].”
“This Act shall come into force on 1 January 1999.”
25. Following the examination by the Constitutional Court of the compatibility of the KGB Act with the Constitution (see paragraph 28 below), on 5 May 1999 section 3 of the KGB Act was amended to the effect that even those individuals who had worked for the KGB after 11 March 1990 could be eligible for the exceptions under section 3 of that Act.
26. On 16 July 1998 a separate law on the implementation of the KGB Act was enacted. Under that law, the Centre for Research into the Genocide and Resistance of the Lithuanian People and the State Security Department were empowered to reach a conclusion on an individual’s status as a “former permanent employee of the KGB” (“former KGB officer”) for the purposes of the KGB Act.
27. On 26 January 1999 the Government adopted a list (“the list”) of positions in various branches of the KGB on Lithuanian territory attesting to a person’s status as a “former KGB officer” for the purposes of the KGB Act. A total of 395 different positions were listed in this respect.
28. On 4 March 1999 the Constitutional Court examined the issue of the KGB Act’s compatibility with the Constitution. The Constitutional Court held in particular that the KGB Act had been passed in order to carry out “security screening” measures on former KGB officers, who were deemed to be lacking in loyalty to the Lithuanian State. The Constitutional Court decided that the prohibition on former KGB officers occupying public posts was compatible with the Constitution. It further ruled that the statutory ban on the holding by former KGB officers of jobs in various branches of the private sector was compatible with the constitutional principle of a free choice of profession in that the State was entitled to lay down specific requirements for persons applying for work in the most important economic sectors in order to ensure the protection of national security and proper functioning of the educational and financial systems. The Constitutional Court also held that the restrictions under the KGB Act did not amount to a criminal charge against former KGB officers.
29. While the KGB Act does not specifically guarantee a right of access to a court to contest the security intelligence authorities’ conclusion, it was recognised by the domestic courts that, as a matter of practice, a dismissal from employment in the public service on the basis of that conclusion gave rise to an administrative court action (and a further appeal) under the general procedure governing industrial disputes and alleged breaches of personal rights by the public authorities, under Articles 4, 7, 8, 26, 49, 50, 59, 63 and 64 of the Code of Administrative Procedure, Article 222 of the Civil Code and Article 336 of the Code of Civil Procedure (as in force at the material time).
30. Restrictions have been imposed in many post-communist countries with a view to screening the employment of former security agents or active collaborators in the former regimes. In this connection, international human rights bodies have at times found fault with such legislation where it has lacked precision or proportionality, and have characterised it as discrimination in employment or the exercise of a profession on the basis of political opinion (see below). The possibility of appealing to the courts has been considered a significant safeguard, although not sufficient in itself to rectify shortcomings in the legislation.
31. Article 1 § 2 of the European Social Charter provides:
“With a view to ensuring the effective exercise of the right to work, the Parties undertake:
...
2. to protect effectively the right of the worker to earn his living in an occupation freely entered upon[.]”
This provision, retained word for word in the revised Charter of 1996 (which came into force with regard to Lithuania on 1 August 2001), has been consistently interpreted by the European Committee of Social Rights (ECSR) as establishing a right not to be discriminated against in employment. The non-discrimination guarantee is stipulated in Article E of the revised Charter in the following terms:
“The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.”
The question of the dismissal of public servants on account of their activities under totalitarian regimes has been addressed in the light of these provisions, at least as regards Germany. In its most recent examination of Germany’s compliance with Article 1 § 2 of the Charter (published in November 2002), the ECSR took note of the provisions of the reunification treaty that allow for the dismissal of public servants on the basis of their activities on behalf of the security services of the German Democratic Republic. It concluded that Germany was not complying with its obligations. This was expanded upon in the following terms:
“The Committee observes that there is no precise definition of the functions from which individuals can be excluded, either in the form of a refusal to recruit or a dismissal, on the grounds of previous political activities or activities within the former GDR institutions competent in security matters.
The Committee has examined the conformity of these provisions in the light of Article 31 of the Charter. Under this provision, restriction of a right enshrined in the Charter is permitted if it is prescribed by law, is necessary in a democratic society and serves one of the purposes listed in the Article. Whilst recognising that the provisions were prescribed by law within the meaning of Article 31 and served one of the purposes listed therein, namely the protection of national security, the Committee considered that they were not necessary within the meaning of Article 31 in that they did not apply solely to services which had responsibilities in the fields of law and order and national security or to functions involving such responsibilities.”
The ECSR adopted its conclusions in regard to Lithuania’s implementation of the revised Charter on 28 May 2004. They will be made public at a later date.
32. The International Labour Organisation (ILO) has also adopted a number of relevant international legal instruments. The most pertinent text is ILO Convention no. 111 on Discrimination (Employment and Occupation) of 1958. In its 1996 General Survey, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) restated its interpretation of Convention no. 111, drawing upon examples taken from national law. Regarding Germany, the CEACR’s position was the following (§ 196):
“The Committee does not accept the argument that in cases in which persons had been accused of having carried out political activities in the former German Democratic Republic, the more the person had, by the assumption of certain functions, identified himself or herself with that unjust regime, the more incriminated he or she was, and the less reasonable it was that this person hold a position in the current administration.”
More recently, however, the CEACR has expressed satisfaction with the German courts’ observance of the principle of proportionality in cases where civil servants challenge their dismissal (see paragraph 3 of the Individual Observation to Germany under Convention no. 111 in 2000).
A 1996 survey identifies comparable provisions in the domestic law of a number of other European States.
In Bulgaria, section 9 of the Preceding and Concluding Provisions of the Banks and Credit Activity Act of 1992 excluded persons who had served the previous regime in certain capacities from employment in banks. The Bulgarian Constitutional Court ruled in 1992 that this provision was in violation of the Constitution and of ILO Convention no. 111.
In the former Czechoslovakia, the so-called Screening Act was passed in 1991, preventing persons who had served the previous regime in a number of capacities from taking up employment in the civil service or parts of the private sector. This legislation was declared unconstitutional by the Slovak Constitutional Court in 1996, which further found it to be incompatible with Convention no. 111. However, it remained in force in the Czech Republic, while the CEACR urged the Czech authorities to have due regard to the principle of proportionality in the application of the Act.
In Latvia, the State Civil Service Act of 2000 and the Police Act of 1999 prohibit the employment of persons who worked for or with the KGB. In 2003 the CEACR expressed its dissatisfaction with the above texts in the following terms:
“6. The Committee recalls that requirements of a political nature can be set for a particular job, but to ensure that they are not contrary to the Convention, they should be limited to the characteristics of a particular post and be in proportion to its labour requirements. The Committee notes that the above-established exclusions by the provisions under examination apply broadly to the entire civil service and police rather than to specific jobs, functions or tasks. The Committee is concerned that these provisions appear to go beyond justifiable exclusions in respect of a particular job based on its inherent requirements as provided for under Article 1 (2) of the Convention. The Committee recalls that for measures not to be deemed discriminatory under Article 4, they must be measures affecting an individual on account of activities he or she is justifiably suspected or proved to be engaged in which are prejudicial to the security of the State. Article 4 of the Convention does not exclude from the definition of discrimination measures taken by reason of membership of a particular group or community. The Committee also notes that in cases where persons are deemed to be justifiably suspected of or engaged in activities prejudicial to the security of the State, the individual concerned shall have the right to appeal to a competent body in accordance with national practice.
7. In the light of the above, the Committee considers the exclusions from being a candidate for any civil service position and from being employed by the police are not sufficiently well defined and delimited to ensure that they do not become discrimination in employment and occupation based on political opinion ...”
VIOLATED_ARTICLES: 14
8
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-57523
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1986
DOCNAME: CASE OF LINGENS v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo
TEXT: 8. Mr. Lingens, an Austrian journalist born in 1931, resides in Vienna and is editor of the magazine Profil.
9. On 9 October 1975, four days after the Austrian general elections, in the course of a television interview, Mr. Simon Wiesenthal, President of the Jewish Documentation Centre, accused Mr. Friedrich Peter, the President of the Austrian Liberal Party (Freiheitliche Partei Österreichs) of having served in the first SS infantry brigade during the Second World War. This unit had on several occasions massacred civilians behind the German lines in Russia. Mr. Peter did not deny that he was a member of the unit, but stated that he was never involved in the atrocities it committed. Mr. Wiesenthal then said that he had not alleged anything of the sort.
10. The following day, Mr. Bruno Kreisky, the retiring Chancellor and President of the Austrian Socialist Party (Sozialistische Partei Österreichs), was questioned on television about these accusations.
Immediately before the television interview, he had met Mr. Peter at the Federal Chancellery. Their meeting was one of the normal consultations between heads of parties with a view to forming a new government; it had aroused great public interest because before the elections on 5 October the possibility of a Kreisky-Peter coalition government had been canvassed.
At the interview, Mr. Kreisky excluded the possibility of such a coalition because his party had won an absolute majority. However, he vigorously supported Mr. Peter and referred to Mr. Wiesenthal’s organisation and activities as a "political mafia" and "mafia methods". Similar remarks were reported the next day in a Vienna daily newspaper to which he had given an interview.
11. At this juncture, the applicant published two articles in the Vienna magazine Profil.
12. The first was published on 14 October 1975 under the heading "The Peter Case" ("Der Fall Peter"). It related the above events and in particular the activities of the first SS infantry brigade; it also drew attention to Mr. Peter’s role in criminal proceedings instituted in Graz (and later abandoned) against persons who had fought in that brigade. It drew the conclusion that although Mr. Peter was admittedly entitled to the benefit of the presumption of innocence, his past nevertheless rendered him unacceptable as a politician in Austria. The applicant went on to criticise the attitude of Mr. Kreisky whom he accused of protecting Mr. Peter and other former members of the SS for political reasons. With regard to Mr. Kreisky’s criticisms of Mr. Wiesenthal, he wrote "had they been made by someone else this would probably have been described as the basest opportunism" ("Bei einem anderen würde man es wahrscheinlich übelsten Opportunismus nennen"), but added that in the circumstances the position was more complex because Mr. Kreisky believed what he was saying.
13. The second article, published on 21 October 1975, was entitled "Reconciliation with the Nazis, but how?" ("Versöhnung mit den Nazis - aber wie?"). It covered several pages and was divided into an introduction and six sections: "‘Still’ or ‘Already’", "We are all innocent", "Was it necessary to shoot defenceless people?", "Why is it still a question for discussion?", "Helbich and Peter" and "Politically ignorant".
14. In the introduction Mr. Lingens recalled the facts and stressed the influence of Mr. Kreisky’s remarks on public opinion. He criticised him not only for supporting Mr. Peter, but also for his accommodating attitude towards former Nazis who had recently taken part in Austrian politics.
15. Under the heading "‘Still’ or ‘Already’" the applicant conceded that one could not object to such attitudes on grounds of "Realpolitik". According to him "the time has passed when for electoral reasons one had to take account not only of Nazis but also of their victims ... the former have outlived the latter ...". Nevertheless Austria, which had produced Hitler and Eichmann and so many other war criminals, had not succeeded in coming to terms with its past; it had simply ignored it. This policy risked delivering the country into the hands of a future fascist movement.
With regard to the then Chancellor, he added: "In truth Mr. Kreisky’s behaviour cannot be criticised on rational grounds but only on irrational grounds: it is immoral, undignified" ("In Wahrheit kann man das, was Kreisky tut, auf rationale Weise nicht widerlegen. Nur irrational: es ist unmoralisch. Würdelos"). It was, moreover, unnecessary because Austrians could reconcile themselves with the past without seeking the favours of the former Nazis, minimising the problem of concentration camps or maligning Mr. Wiesenthal by exploiting anti-Semitism.
What was surprising was not that one "still" spoke about these things thirty years later but, on the contrary, that so many people were "already" able to close their eyes to the existence of this mountain of corpses.
Finally, Mr. Lingens criticised the lack of tact with which Mr. Kreisky treated the victims of the Nazis.
16. The second section commented on the attitude of Austrian society in general with regard to Nazi crimes and former Nazis. In the author’s opinion, by sheltering behind the philosophic alternative between collective guilt and collective innocence the Austrians had avoided facing up to a real, discernible and assessable guilt.
After a long disquisition on various types of responsibility, he stressed that at the time it had in fact been possible to choose between good and evil and gave examples of persons who had refused to collaborate. He concluded that "if Bruno Kreisky had used his personal reputation, in the way he used it to protect Mr. Peter, to reveal this other and better Austria, he would have given this country - thirty years afterwards - what it most needed to come to terms with its past: a greater confidence in itself".
17. The third and fourth sections (which together amounted to a third of the article) also dealt with the need to overcome the consciousness of collective guilt and envisage the determination of real guilt.
Under the title "Was it necessary to shoot defenceless people?", Mr. Lingens drew a distinction between the special units and the regular forces in the armies of the Third Reich; he pointed out that no one was forcibly enlisted in the former: one had to volunteer.
In the following section he stressed the difference between individuals guilty of criminal offences and persons who, morally speaking, had to be regarded as accomplices; he maintained that if Austria had tried its Nazis earlier, more quickly and more thoroughly, it would have been able to view its past more calmly without complexes and with more confidence. He then set out the reasons why that had not been possible and defended Mr. Wiesenthal from the charge of belonging to a "mafia". Finally, he considered the possibility of showing clemency after so many years and concluded: "It belongs to every society to show mercy but not to maintain an unhealthy relationship with the law by acquitting obvious murderers and concealing, dissembling or denying manifest guilt."
18. The fifth section of Mr. Lingens’ article compared the Peter case with another affair of a more economic nature relating to Mr. Helbich, one of the leaders of the Austrian People’s Party (Österreichische Volkspartei), and compared Mr. Kreisky’s different reaction in each case. The author argued that the circumstances of the first case made Mr. Peter unfit to be a member of parliament, a politician and a member of the government, and added: "This is a minimum requirement of political ethics" ("ein Mindesterfordernis des politischen Anstandes"). The "monstrosity" ("Ungeheuerlichkeit") was not, in his opinion, the fact that Mr. Wiesenthal had raised the matter, but that Mr. Kreisky wished to hush it up.
19. The article ended with a section criticising the political parties in general owing to the presence of former Nazis among their leaders. The applicant considered that Mr. Peter ought to resign, not to admit his guilt but to prove that he possessed a quality unknown to Mr. Kreisky, namely tact.
20. On 29 October and 12 November 1975, the then Chancellor brought two private prosecutions against Mr. Lingens. He considered that certain passages in the articles summarised above were defamatory and relied on Article 111 of the Austrian Criminal Code, which reads:
"1. Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine.
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine.
3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true."
Under Article 112, "evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the correctness of the statement or his good faith ...".
21. On 26 March 1979, the Vienna Regional Court found Mr. Lingens guilty of defamation (üble Nachrede - Article 111 para. 2) for having used the expressions "the basest opportunism", "immoral" and "undignified". However, it held that certain other expressions were not defamatory in their context ("minimum requirement of political ethics", "monstrosity"). It fined him 20,000 Schillings, considering as mitigating circumstances the fact that the accused intended to voice political criticism of politicians on political questions and that the latter were expected to show greater tolerance of defamation than other individuals. In view of the defendant’s good faith it awarded Mr. Kreisky no damages but, on his application, ordered the confiscation of the articles complained of and the publication of the judgment.
22. In its decision, which contained a lengthy statement of reasons, the Regional Court first examined the objectively defamatory character of each of the passages complained of. It held that the expressions "basest opportunism", "immoral" and "undignified" were defamatory and were directly or indirectly aimed at Mr. Kreisky personally, whereas the words "minimum requirement of political ethics" and "monstrosity" did not go beyond the accepted limits of political criticism.
According to Mr. Lingens, the first three expressions were value-judgments and therefore as such not contrary to Article 111 of the Criminal Code. However, the Regional Court considered that the unfavourable conclusions drawn with regard to the then Chancellor’s behaviour fell within the scope of that provision. Nor could the defendant rely on his right to freedom of expression, since the relevant provisions of the Constitution and Article 10 (art. 10) of the Convention authorised limitations of this right: a balance had to be struck between this right and the right to respect for private life and reputation. In the instant case the applicant had gone beyond the permissible limits.
23. As regards Mr. Kreisky’s use of a private prosecution, the Regional Court pointed out that he had been criticised not in his capacity as Federal Chancellor but as a leading member of his party and a politician. Article 117 para. 2 of the Criminal Code therefore did not apply in the instant case : it made defamation of an office-holder punishable, but solely by means of a public prosecution commenced with the consent of the person concerned, who could not bring a private prosecution unless the prosecuting authorities refused to act.
24. The Regional Court then considered the question of proving truth (preuve de la vérité) (see paragraph 20 above). It held that as the applicant had not provided evidence to justify the expression "basest opportunism", that was sufficient to lead to his conviction.
With regard to the words "immoral" and "undignified", the accused had used them in relation to Mr. Kreisky’s attitude consisting in minimising Nazi atrocities, referring to Mr. Wiesenthal’s activities as being of a mafia-type and insinuating that the latter had collaborated with the Gestapo. On this last point the Regional Court admitted evidence produced by Mr. Lingens in the form of a court decision finding a journalist guilty of defamation for having made a similar allegation.
In so far as Mr. Kreisky had spoken of "mafia methods" and "mafia", the Regional Court pointed out that these expressions normally referred to an organised form of criminal behaviour but were sometimes used in a different sense. Even if one did not accept the argument put forward by the private prosecutor, his conception of the "mafia" was a possible one and deserved to be examined. It was not for the prosecutor to prove the truth of his allegations but for Mr. Lingens to prove the truth of his. Mr. Wiesenthal himself had conceded that in order to attain his various aims he relied on an organisation with numerous ramifications. Moreover, the then Chancellor’s statements (see paragraph 10 above) must be seen in the context of a political struggle between political opponents, each of them using such weapons as were at his disposal. Seen from this angle they did not reflect an absence of morality or dignity but constituted a possible defence and were in no way unusual in the bitter tussles of politics.
In truth, Mr. Kreisky’s attitude towards Nazi victims and Nazi collaborators was far from clear and unambiguous; it appeared in a form which allowed different conclusions. It was therefore logically impossible for the defendant to establish that the only possible interpretation of this attitude was the one he put on it.
25. Mr. Kreisky and Mr. Lingens both appealed against the judgment to the Vienna Court of Appeal. On 30 November 1979, the Court of Appeal set the judgment aside without examining the merits, on the ground that the Regional Court had failed to go sufficiently into the question whether the then Chancellor was entitled to bring a private prosecution in spite of the provisions of Article 117 of the Criminal Code (see paragraph 23 above).
26. The Vienna Regional Court, to which the Court of Appeal had returned the case, gave judgment on 1 April 1981.
After examining the circumstances surrounding the statements by the then Chancellor, it came to the conclusion that he had been criticised not in his official capacity but as head of a party and as a private individual who felt himself under an obligation to protect a third person. It followed therefore that he was entitled to bring a private prosecution.
As regards the legal definition of the acts imputed to Mr. Lingens, the Regional Court confirmed its judgment of 26 March 1979.
With regard to the defence of justification, it again noted that the accused had not produced any evidence to prove the truth of the expression "the basest opportunism". As regards the expressions "immoral" and "undignified", the evidence he had produced related solely to the allegations of collaboration with the Nazis made against Mr. Wiesenthal. These, however, were not relevant because Mr. Kreisky had made them after the publication of the articles in question.
In so far as these expressions were directed at other behaviour and attitudes of the Chancellor, the Regional Court maintained its previous findings unchanged. It considered that Mr. Lingens’ criticisms went far beyond the question of Mr. Kreisky’s attacks on Mr. Wiesenthal. The fact that the former had been able to prosecute the applicant but could not himself be prosecuted for defamation by Mr. Wiesenthal was due to the existing legislation on parliamentary immunity. The obligation to prove the truth of his statements was also based on the law and it was not for the courts but for the legislature to make this proof less difficult. Nor was the Regional Court responsible for the lack of tolerance and the litigious tendencies of certain politicians.
It therefore passed the same sentence as in the original judgment (see paragraph 21 above).
27. Both sides again appealed to the Vienna Court of Appeal, which gave judgment on 29 October 1981; it reduced the fine imposed on the applicant to 15,000 Schillings but confirmed the Regional Court’s judgment in all other respects.
28. Mr. Kreisky disputed the statement that different criteria applied to private life and to political life. He argued that politicians and private individuals should receive the same treatment as regards the protection of their reputation.
The Court of Appeal, however, pointed out that Article 111 of the Criminal Code applied solely to the esteem enjoyed by a person in his social setting. In the case of politicians, this was public opinion. Yet experience showed that frequent use of insults in political discussion (often under cover of parliamentary immunity) had given the impression that statements in this field could not be judged by the same criteria as those relating to private life. Politicians should therefore show greater tolerance. As a general rule, criticisms uttered in political controversy did not affect a person’s reputation unless they touched on his private life. That did not apply in the instant case to the expressions "minimum requirement of political ethics" and "monstrosity". Mr. Kreisky’s appeal was therefore dismissed.
29. The Court of Appeal then turned to Mr. Lingens’ grounds of appeal and first of all examined the evidence taken at first instance, in order to decide in what capacity Mr. Kreisky had been subjected to his criticism. It too found that he was criticised in his capacity both as a party leader and as a private individual.
The expression "the basest opportunism" meant that the person referred to was acting for a specific purpose with complete disregard of moral considerations and this in itself constituted an attack on Mr. Kreisky’s reputation. The use of the words "had they been made by someone else" (see paragraph 12 above) could not be understood as a withdrawal of the criticism. As the defendant had not succeeded in proving the truth of it, the court of first instance had been right to find him guilty of an offence.
According to the applicant, the expressions "immoral" and "undignified" were his personal judgment of conduct which was not disputed, a judgment made in exercise of his freedom of expression, guaranteed by Article 10 (art. 10) of the Convention. The Court of Appeal did not accept this argument; it pointed out that Austrian law did not confer upon the individual an unlimited right to formulate value-judgments and that Article 10 (art. 10) authorised limitations laid down by law for the protection, inter alia, of the reputation of others. Furthermore, the task of the press was to impart information, the interpretation of which had to be left primarily to the reader. If a journalist himself expressed an opinion, it should remain within the limits set by the criminal law to ensure the protection of reputations. This, however, was not the position in the instant case. The burden was on Mr. Lingens to establish the truth of his statements; he could not separate his unfavourable value-judgment from the facts on which it was based. Since Mr. Kreisky was personally convinced that Mr. Wiesenthal used "mafia methods", he could not be accused of having acted immorally or in an undignified manner.
30. The appeal judgment was published in Profil on 22 February 1982, as required by the accessory penalty imposed on Mr. Lingens and his publisher.
VIOLATED_ARTICLES: 10


ITEMID: 001-98937
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SPRINGETT and OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The first applicant, Mr Robert Charles John Springett, is a British national who was born in 1925 and lives in Roquefort, France. The second applicant, Mr Gerald Thomas Easto-Brigden, is a British national who was born in 1926 and lives in Barcelona, Spain. The third applicant, Mrs Vivien Sheffield, is a British national who was born in 1943 and lives in Tenerife, Spain.
s, may be summarised as follows.
On 14 August 2002 the applicant's claim for payment under the Winter Fuel Payment (“WFP”) scheme was rejected by the Pensions Service, on the ground that as he had left the United Kingdom in 1982, before the scheme was introduced, he had “never acquired entitlement to the benefit.”
On 13 August 2003 an appeal against the Pensions Service's decision was refused on the same grounds as the original decision.
The applicant submitted a further complaint to the Commission of the European Union and was informed by a letter dated 9 September 2004 that the policy of the British Government to restrict the WFP to individuals who had “acquired entitlement” by receiving the payment before leaving the United Kingdom created a difference in treatment between pensioners, depending on when or how old they were when they moved abroad. However, the policy was not contrary to European Union (EU) Law and the matter could not, therefore, be taken further.
In 2004 the second applicant applied to be considered for WFP. On 24 February 2005 his application was turned down on the basis that he had never acquired entitlement to the payment because he had left the United Kingdom in October 1993. On 8 April 2005 a final confirmation that he would not be eligible was issued by the Pensions Service. The applicant challenged that decision, but never received a reply from the Winter Fuel Office.
On 10 July 2003, the third applicant applied to be considered for WFP in respect of the winter of 2002/3. On 6 November 2003 this claim, and her claim for 2003/4, were turned down on the basis that she had left the United Kingdom in December 1997, before acquiring entitlement. She claims that she was not resident outside the United Kingdom before 1 January 1998.
On 9 March 2004 her appeal was rejected on the same grounds, by the Appeals Tribunal. On 28 June 2004 the Social Security Commissioner refused her leave to appeal. This matter was revised because a second pensioner in a similar position had his case considered in the light of EU law before the Commissioner, in October 2004. This latter case was dismissed. Consequently, on 23 May 2005 the Commissioner refused to set aside his refusal to grant the applicant leave to appeal.
WFP is a non-contributory, non-means tested benefit of between GBP 100 and GBP 200 or, for a person aged 80 or over, GBP 300 per annum paid, since 5 January 1998, to residents of the United Kingdom aged 60 or more.
European Regulation 1408/71 on the co-ordination of social security schemes for people who move within the EU provides that a person may “export” to another Member State a social security benefit he or she is entitled to in their home Member State. However, the regulation leaves it to the Member States to determine the conditions of entitlement to social security benefits, and requires Member States only to “export” benefits to people who are subject to its legislation.
Following complaints to the European Commission about the non-availability of WFP to those living outside the United Kingdom, in 2000 domestic law was amended so that individuals residing in other EU Member States could also receive the winter fuel payment as long as they had received it before leaving the United Kingdom.
According to the 2002 legislation, claimants had the choice to leave the United Kingdom before reaching the age of 60 with no WFP or remain until reaching the age of 60, receive one payment and thereby export their WFP yearly thereafter.


ITEMID: 001-85606
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KORANDOVA AND OTHERS v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
TEXT: The applicants, Ms Marta Korandová, Mr Stanislav Sedlatý, Ms Marie Prášilová, Ms Blažena Hrušovská, Ms Jarmila Junová and Ms Manuela Krausová, were six Czech nationals born in 1935, 1924, 1926, 1933, 1944 and 1994 respectively. They reside in Hejnice, Lázně Libverda, Jablonec nad Nisou, Frýdlant and Liberec, respectively.
The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants’ mother owned a share in an agricultural cooperative in Lučany. On 12 August 1993 she died.
On 11 May 1995 bankruptcy proceedings concerning assets of the cooperative were instituted before the Ústí nad Labem Regional Court (krajský soud).
On 30 October 1995 the Liberec District Court (okresní soud) approved an agreement on the distribution of the assets of the applicants’ mother, including her share in the cooperative, among her heirs. The decision became final on 21 February 1996.
It appears that the bankruptcy proceedings are still pending
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-122453
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: DEVECİOĞLU AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
TEXT: A list of the applicants is set out in the Appendix. Additionally, the case and decision numbers of the impugned proceedings appear in the Appendix.
On various dates, the applicants initiated actions before various civil courts or civil proceedings were brought against them before the civil courts. The procedures are still pending before the domestic courts.
A description of the relevant domestic law may be found in Müdür Turgut and Others ((dec.), no 4860/09, §§ 19-26, 26 March 2013).


ITEMID: 001-57489
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1982
DOCNAME: CASE OF FOTI AND OTHERS v. ITALY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (ex officio examination);Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Not necessary to examine Art. 13;Just satisfaction reserved
JUDGES: C. Russo
TEXT: 10. The applicants, who are all Italian nationals, live in Reggio Calabria. They were prosecuted for acts committed in the course of demonstrations that took place in Reggio Calabria between 1970 and 1973. The popular unrest, which was particularly heightened between July 1970 and April 1971, was triggered off by the decision to transfer the capital of the province of Calabria from Reggio (its traditional site) to Catanzaro, and became particularly widespread on account of the economic situation in this part of the region. It took the form of general strikes, dynamite bombings and clashes with the police. It led to hundreds of arrests, about 1,200 charges and, in 1970 and 1971 alone, to 459 prosecutions; 94 of these were transferred, for serious reasons of public policy (Article 55 of the Code of Criminal Procedure - see paragraph 31 below), to a court in another town, including 86 to the Potenza Regional Court.
11. As to the exact dates of the facts concerning each applicant, the evidence in the case-file contains numerous contradictions and uncertainties which the efforts of the Court, and in particular the questions it put to the persons appearing before it, have not entirely succeeded in removing. Subject to this reservation, the facts may be summarised as follows:
12. Mr. Benito Foti was born in 1932 and is a clerk. He complains of three different proceedings instituted against him.
13. On 9 October 1970, the applicant was charged, together with three other persons, with obstructing the public highway and seditious assembly. The preliminary investigation commenced before the Reggio Calabria Regional Court had to be suspended by reason of the election to the Chamber of Deputies on 7 May 1972 of one of the applicant’s co-accused, Mr. Fortunato Aloi. In 1975, the Chamber of Deputies authorised Mr. Aloi’s parliamentary immunity to be waived (Article 65 of the Constitution), following which, on 22 March 1976, the investigating judge committed the persons concerned, including Mr. Foti, for trial.
14. On 17 May 1976, the public prosecutor ( procuratore della Repubblica ) of Reggio requested the public prosecutor ( procuratore generale ) attached to the Catanzaro Court of Appeal to apply for the case to be remitted to a court other than the Reggio Regional Court, for serious reasons of public policy. By order of 20 December 1976, registered on 12 January 1977, the Court of Cassation granted the application made by the latter public prosecutor on 22 May and transferred the case to the Potenza Regional Court, which received the case-file on 17 January 1977.
15. On 21 December 1977, the Potenza Regional Court summoned the applicant to appear. On 15 February 1978, it delivered a judgment acquitting the applicant, which was entered in the court registry on 27 February.
16. In September 1971, Mr. Foti was arrested and charged, together with another person, with obstructing the public highway, seditious assembly, illegal possession of weapons (tear-gas grenades) and "serious resistance" to the police.
In November 1971, the Reggio investigating judge committed the applicant for trial. The committal decision included a discharge on one of the counts. In January 1976, the investigation chamber of the Reggio Regional Court declared inadmissible the appeal that the public prosecutor’s office (pubblico ministero) had brought on that point.
17. In February 1976, the Reggio public prosecutor requested the public prosecutor attached to the Catanzaro Court of Appeal to apply for the case to be remitted to a court other than the Reggio Regional Court, for serious reasons of public policy. By order of 11 June 1976, registered at the beginning of September, the Court of Cassation granted the application made in March 1976 by the latter public prosecutor and transferred the case to the Potenza Regional Court.
18. The Potenza public prosecutor’s office received the case-file on 1 October and transmitted it to the Regional Court on 26 November. The applicant, after being summoned on 9 December 1976 to appear on 1 February 1977, received a four months’ suspended sentence and a fine for illegal possession of weapons but was acquitted on the remaining charges.
On 2 June 1977, the Potenza Court of Appeal upheld this decision against which Mr. Foti had appealed. The applicant’s subsequent appeal on a point of law to the Court of Cassation was dismissed on 25 June 1979.
19. On 21 March 1973, the applicant was arrested and charged, together with two other persons, with obstructing the public highway.
20. On 27 February 1976, the Reggio public prosecutor requested the public prosecutor attached to the Catanzaro Court of Appeal to apply for the case to be remitted to a court other than the Reggio Regional Court, for serious reasons of public policy. By order of 14 June 1976, which was registered the following day, the Court of Cassation granted the application made by the latter public prosecutor on 5 March 1976 and transferred the case to the Potenza Regional Court.
21. The applicant was committed for trial on 14 January 1977. The Regional Court summoned Mr. Foti to appear on 29 March 1977, but had to adjourn the hearings until 7 June. On that date, it delivered a decision, which became final, acquitting the applicant.
22. Mr. Felice Lentini was born in 1939 and is a carpenter. In September 1970, together with eight others, he was arrested and charged with resisting the police.
23. The Reggio Calabria public prosecutor conducted the investigation according to the "summary" procedure (Article 389 of the Code of Criminal Procedure) and committed the applicant for trial on 18 September 1972.
On 24 May 1974, however, he requested the public prosecutor attached to the Catanzaro Court of Appeal to apply for the case to be remitted to a court other than the Reggio Regional Court, for serious reasons of public policy. By order of 16 June 1975, the Court of Cassation granted the application made by the latter public prosecutor on 14 June 1974 and transferred the case to the Potenza Regional Court.
24. The Potenza Regional Court, at its first hearing on 26 May 1976, concluded that the ordinary procedure should be followed and consequently referred the case-file to an investigating judge for examination. After once more being committed for trial approximately two months later, Mr. Lentini was acquitted by the Regional Court on 18 January 1977 for lack of evidence by a decision which became final.
25. Mr. Demetrio Cenerini was born in 1942 and is a messenger. He was arrested on 15 July 1970 and charged on 18 July, together with seventeen other persons, with insulting the police. He was released from custody on 31 July 1970. The Reggio Calabria investigating judge committed him for trial on 18 October 1972.
26. On 27 May 1974, the Reggio public prosecutor requested the public prosecutor attached to the Catanzaro Court of Appeal to apply to the Court of Cassation for the case to be remitted to a court other than the Reggio Regional Court, for serious reasons of public policy. The latter public prosecutor did so on 3 June 1974, but did not forward the case-file until each of the eighteen persons charged had been served with judicial notification (see paragraphs 33-36 below). By order of 17 January 1975, which was registered approximately three months later, the Court of Cassation granted the application and transferred the case to the Potenza Regional Court.
27. The Potenza Regional Court, before which proceedings had been commenced by the public prosecutor’s office in April 1976, summoned the applicant on 22 September to appear before it on 30 November. At that hearing, the defence objected, under Article 439 of the Code of Criminal Procedure, that the committal order was void because it had not been notified of the lodging of the preliminary investigation documents at the court registry before closure of the investigation proceedings. On 30 November 1976, the Court allowed the objection. Consequently, it sent the case-file back to the investigating judge, who on 12 May 1977 made a new committal order.
A first hearing fixed for 16 January 1978 had to be postponed because some important witnesses did not attend. At the following hearing on 15 March 1978, the case had to be adjourned again because the composition of the chamber had changed. Finally, on 7 June 1978, the Court discharged Mr. Cenerini, finding that the period of limitation had expired on 15 January 1978 (Articles 157 and 160 of the Penal Code).
28. Mr. Giovanni Gulli was born in 1952 and is a labourer. He was arrested on 16 July 1970 and charged on 18 July, together with fifty-three others, with resisting and insulting the police, obstructing the public highway and seditious assembly. The Reggio Calabria investigating judge committed him for trial on 3 March 1973.
29. On 16 November 1974, the Reggio public prosecutor requested the public prosecutor attached to the Catanzaro Court of Appeal to apply to the Court of Cassation for the case to be remitted to a court other than the Reggio Regional Court, for serious reasons of public policy. The latter public prosecutor did so on 3 December 1974, but did not forward the case-file until 15 December 1975, after service of judicial notification on each of the fifty-four accused (see paragraphs 33-36 below). By order of 26 January 1976, which was lodged in the registry on 12 March 1976, the Court of Cassation granted the application and transferred the case to the Potenza Regional Court.
30. The Potenza Regional Court, before which proceedings had been commenced by the public prosecutor’s office in June 1977, summoned the applicant on 2 February 1978 to appear before it on 29 March. At the hearing on that date, the consideration of the case had to be adjourned until 2 October because it had proved impossible to serve judicial notification on some of the accused.
On 2 October 1978, the Regional Court discharged Mr. Gulli, finding that the period of limitation had expired on 15 January 1978 (Articles 157 and 160 of the Penal Code).
31. Article 55, first paragraph, of the Code of Criminal Procedure provides (translation from Italian):
"At any time during or at any stage of the proceedings on the merits, on application by the public prosecutor attached to the Court of Appeal or the Court of Cassation, the Court of Cassation may transfer the preliminary investigation or trial proceedings to a different court, on serious grounds of public policy or on grounds of legitimate suspicion."
Article 56, second paragraph, specifies that the application is to be communicated to the accused (imputato) by the registry of the public prosecutor’s office. The transfer proceedings suspend neither the preliminary investigation nor the trial, unless the Court of Cassation, which gives its ruling on the application by means of an order (Article 58), directs otherwise (Article 57).
32. Under Article 45 of the Code of Criminal Procedure (translation from Italian):
"There is a close connection between proceedings in the following cases:
1. Where the prosecutions concern offences (reati) committed on the same occasion by several persons gathered together ...;
...
4. If the evidence of an offence or of one of its circumstances is material for the evidence of another offence or one of its circumstances."
Where a close connection exists, Article 413 of that Code provides that proceedings may be joined provided this serves to expedite the procedure.
33. Notifications in criminal cases are governed by the rules laid down by Articles 166 to 179 of the Code of Criminal Procedure.
34. As regards the initial notification of an accused person who is not in custody and where it is impossible to effect service on the person concerned, a copy shall be left at his domicile or normal place of work, with a third party living with him, even temporarily, or, failing that, with a caretaker or equivalent. If both places are unknown, a copy of the document shall be served on one of these persons wherever the accused resides or has an address. Where there are no such persons, or where they are unable or unwilling to accept service of a copy of the document, the latter shall be lodged in the town hall of the municipality in which the accused lives or, failing that, in which he has his normal place of work; notice that the document has been lodged shall be posted on the door of the accused’s home or normal place of work (Article 169).
35. If notification is nevertheless impossible, the official responsible for serving it shall so inform the competent judicial or prosecuting authority. That authority, after having ordered further searches, in particular at the accused’s place of birth or his last place of residence, shall draw up a declaration to the effect that the accused is untraceable (decreto di irreperibilità), assigning him a defence lawyer if he does not already have one and requiring that the notification which could not be served and any future notifications be lodged with the registry of the judicial authority ( ufficio giudiziario ) conducting the proceedings (Article 170).
36. Under Article 171, the accused is asked, in the first formal document in the proceedings to elect a domicile for notification purposes; he is required to report any change of domicile. According to the legislation applicable at the time (amended by Act no. 534 of 8 August 1977), where the information provided on this matter by the person concerned proved incomplete, further searches had to be conducted pursuant to Articles 169 and 170.
37. By virtue of Article 152 of the Code of Criminal Procedure, a court is obliged, at any stage of the proceedings, to take notice of its own motion of the extinction of an offence; statutory limitation takes effect by operation of law.
The statutory limitation period varies from eighteen months to twenty years, according to the seriousness of the potential penalty (Article 157 of the Penal Code); in calculating the period, account has to be taken of any suspension or interruption that may have occurred (Articles 159 and 160 of the Penal Code). Thus, in the case of Mr. Cenerini and Mr. Gulli, the period was seven and a half years (see paragraphs 27 and 30 above).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91645
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MARTIN v. ROMANIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial
JUDGES: Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1949 and lives in Tulcea.
5. The applicant worked in the Deltapan company (“the company”) until 30 November 1998, when she was dismissed from her job, together with some eighty-seven other employees, owing to a decrease in the company’s activity. Her post was abolished, the company being unable to offer her another job.
6. In 1995 the employees and managers of the company created the PAS Deltapan association (“the association”), with the aim of acquiring shares in the company, which was being privatised. The applicant was elected to the board of directors with a two-year mandate. In 1997 the association’s general assembly elected a new board of directors, to which the applicant was not elected.
7. On 9 December 1998 the applicant lodged an action seeking to have a decision of 12 October 1998 of the association’s general assembly overturned. She alleged that the meeting of the general assembly which modified the statute and leadership of the association had not been legally convened.
8. On 2 March 1999 the Tulcea County Court (“the County Court”) allowed the action.
9. On 28 October 1999 the Constanţa Court of Appeal (“the Court of Appeal”) allowed an appeal by the association, quashed the previous judgment and sent the case back for a fresh examination. It found that while the applicant had lodged the action against the association, the procedural acts had been performed in respect of the company.
10. This decision was confirmed on 20 November 2001 by the Supreme Court of Justice, which considered null and void a further appeal by the applicant because she had submitted her reasons out of time.
11. During the retrial on 25 April 2002 the County Court held that, in accordance with Government Ordinance no. 26 of 30 January 2000 regarding associations and foundations, it had no jurisdiction ratione materie to examine the case, which came within the competence of the Tulcea Court of First Instance (“the Court of First Instance”).
12. The proceedings were stayed between 1 July and 17 October 2002 at the applicant’s request, as she had lodged an appeal against the refusal to exercise jurisdiction.
13. On 3 October 2002 the Court of Appeal, by a final decision, dismissed as groundless the appeal against the judgment of 25 April 2002. On 23 January 2003 the court further dismissed, by an interlocutory decision, a request by the applicant to rectify factual errors.
On 12 February 2003 the applicant lodged a further appeal against the interlocutory decision and, considering that it could influence the trial, on 14 August 2003 she requested adjournment of the main proceedings. On 21 January 2004 the High Court of Cassation and Justice declared the applicant’s appeal against the interlocutory decision inadmissible.
14. On 30 November 2005 the Court of First Instance dismissed the applicant’s action as groundless.
15. On 12 May 2006 the County Court confirmed that judgment by a final decision.
16. On 4 January 1999 the applicant challenged the dismissal decision, seeking reinstatement and payment.
17. On 5 April 1999 the Court of First Instance dismissed the action, considering the dismissal decision lawful and well-founded.
18. The applicant appealed. Of thirteen hearings held between 15 July 1999 and 12 September 2003 seven were adjourned at the applicant’s request. This includes a stay of proceedings for non-appearance of both parties before the court between 15 July 1999 and 26 June 2000, when the applicant requested the reopening of the proceedings.
The proceedings were also stayed between 6 October 2000 and 28 March 2003, when the applicant requested their adjournment pending investigations brought about by her criminal complaints against certain employees of the company.
19. On 12 September 2003 the County Court dismissed her appeal. On 4 October 2004 the court, by an interlocutory decision, dismissed a request by the applicant to rectify factual errors in the judgment. On 29 November 2004 it also dismissed, by a final decision, a further appeal by the applicant against the interlocutory decision.
20. The applicant lodged an appeal on points of law. After the changes introduced in the Code of Civil Procedure by Law no. 195/2004, the file was sent to the Court of Appeal.
21. On 15 July 2004 the Court of Appeal, after raising on its own motion a plea of incompatibility ratione materiae, allowed the appeal on points of law and referred the case back to the County Court, considering that the dispute was one of labour law and therefore it was in the latter’s jurisdiction to hear the case as a first-instance court.
22. During the trial by the County Court, of the eight hearings held between 22 September 2004 and 3 May 2006 three were adjourned at the applicant’s request. This includes a stay of proceedings between 13 October 2004 and 15 June 2005, as the applicant raised a plea of unconstitutionality in respect of a legal provision establishing a transitional application of certain rules regarding the courts’ competence. The Constitutional Court eventually dismissed the request on 17 March 2005 and on 26 May 2005 returned the file to the County Court.
On 13 June 2005 the County Court, by interlocutory decisions, granted three requests by judges to abstain from taking part in the proceedings and refused another such request. On 12 and 22 July 2005 and 4 May 2006 the court dismissed, by interlocutory decisions, requests by the applicant to challenge either individual judges or the whole section.
The proceedings were also stayed between 18 August 2005 and 20 April 2006 at the applicant’s request, following her demand that the judgment of 15 July 2004 be set aside.
23. On 6 July 2005 the Court of Appeal rejected as groundless the applicant’s request for the final decision of 15 July 2004 to be set aside and on 21 November 2005 the High Court of Cassation and Justice declared a further appeal by the applicant inadmissible.
24. On 8 May 2006 the County Court dismissed the applicant’s action, considering the dismissal decision lawful and well-founded.
25. The applicant appealed alleging, inter alia, that in her capacity as the chairman of the company’s trade union she was under the protection of Law no. 54/1991 which prohibited dismissal from their jobs within one year of the end of their mandate of those involved in the leadership of a trade union.
26. On 12 September 2006 the Court of Appeal confirmed the solution by a final decision. It held that the applicant’s activity as chairman of the trade union had ceased on 17 December 1996.
On 13 February 2007 the court dismissed as groundless the applicant’s request for the final decision to be set aside. On 21 November 2007 the High Court of Cassation and Justice, by a final decision, declared a further appeal by the applicant inadmissible.
27. On 4 October 1999 the applicant brought proceedings to recover salary between 1 October 1996 and 8 December 1998 in the amount of 6,221,883 old Romanian lei (ROL).
28. On 28 March 2000 the Court of First Instance dismissed the action as groundless, considering that the applicant’s salary had been adapted to her qualification and that the amounts stopped out of her wages had been justified either by disciplinary sanctions, unchallenged before the courts, for systematic failure to fulfil her duties, or by the fact that she had ceased to be the leader of the trade union on 13 January 1997. The court ordered the applicant to pay the company ROL 3,500,000 for the cost of proceedings.
29. On 29 March 2001 the County Court upheld in part an appeal by the applicant and, on the basis of an accounting expert report, ordered the company to pay the amount of ROL 3,657,262, noting that the rest of money to which the applicant was entitled had already been returned to her. The court also ordered the company to pay the applicant ROL 3,000,000 for the cost of the proceedings at first instance and on appeal.
That judgment became final on 24 August 2001.
30. The applications for review of the judgment of 29 March 2001 and of the final decision of 24 August 2001 lodged by the applicant were rejected as groundless and her further appeals were either dismissed as groundless or declared inadmissible.
31. On 13 August 2003 the applicant requested enforcement of the judgment of 29 March 2001. The Court of First Instance declared that the judgment had become enforceable and that it could be enforced.
32. On 18 February 2004, at the company’s request, the Court of First Instance, by an interlocutory decision, declared that the judgment of 28 March 2000 became enforceable. The court then found that in spite of the fact that that judgment had been declared enforceable, it could not be enforced because it had been varied by a hierarchically superior court.
33. The applicant contested the interlocutory decision of 18 February 2004. On 26 April 2004 the Court of Appeal allowed the action, varied the interlocutory decision and rejected the company’s request to declare the judgment of 28 March 2000 enforceable, as the latter had been changed by a subsequent appeal.
34. On 24 May 2004 the bailiff informed the applicant that the enforcement of the judgment of 29 March 2001 in respect of due salaries by the company had been effected by offsetting the salaries that the company should had paid her with the amounts due by the applicant to the company for costs in domestic proceedings subsequent to that judgment (paragraph 30 above).
35. On 17 February 2005 the High Court of Cassation and Justice, by a final decision, dismissed a complaint by the applicant against the prosecutor’s refusal to commit for trial three judges and a clerk from the County Court as groundless.
36. On 16 June 2005 the High Court of Cassation and Justice, by a final decision, dismissed a complaint by the applicant against the prosecutor’s refusal to commit for trial two judges from the Court of First Instance, a judge from the County Court and a bailiff as groundless.
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-22589
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: JOHANNISCHE KIRCHE & PETERS v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Antonio Pastor Ridruejo
TEXT: The first applicant [Johannische Kirche] is a Christian religious community (Free Church) with public-law corporation status (Körperschaft des öffentlichen Rechts) whose governing board (Vorstand) is based in Berlin. The second applicant [Horst Peters] is a German national, born in 1926 and living in Waischenfeld (Germany). They were represented before the Court by Mr Arsène Verny, a lawyer practising in Prague (Czech Republic).
In July 1991 the first applicant requested a permit to build a chapel and cemetery on land belonging to it.
Its request was rejected by the administrative authorities, whereupon the first applicant lodged an application with the Bayreuth Administrative Court. At the public hearing before that court it requested an adjournment of the proceedings concerning the cemetery.
On 20 December 1993, after visiting the site of the planned building, the Administrative Court rejected the application concerning the chapel on the grounds that the site where it was to be built was in an undeveloped protected zone (Außenbereich) and that it was not certain that public services (Erschließung) could be installed.
On 10 August 1994, after hearing submissions from, among others, the public-health department, the water resources office (Wasserwirtschaftsamt), the town of Waischenfeld (on whose territory the first applicant’s land was) and other departments which had not given their consent or had done so only on certain conditions, the Bayreuth administrative authorities rejected the request concerning the cemetery, in respect of which the proceedings had been resumed after the Administrative Court had given judgment, on the ground that the proposed site was in an undeveloped protected zone and it was not certain that services could be installed on the land because the town of Waischenfeld refused to grant the first applicant a right of access over the adjoining municipal land to the site of the planned cemetery.
On 15 December 1994 the Bayreuth Administrative Court dismissed the application mainly on the same grounds as those set out in the judgment of 20 December 1993, to which it referred at length moreover.
On 4 July 1996, after visiting the site of the planned cemetery, the Bavaria Administrative Court of Appeal upheld the judgment of the Bayreuth Administrative Court of 15 December 1994. It noted, among other things, that construction of the planned cemetery was incompatible with the nature of the environment surrounding the site in question, particularly as, since the entry into force on 14 July 1995 of the legislative decree on the creation of Franconian Switzerland Wildlife Park (Naturpark Fränkische Schweiz), any act such as to disfigure the character of the wildlife park – even locally – was prohibited. The fact that the first applicant was a religious community did not alter that finding because it could build the cemetery on other land less affected by environmental restrictions. The Court of Appeal also noted that the lack of services on the land in question was an additional factor militating against the first applicant’s project.
The Court of Appeal also decided not to grant leave to appeal on points of law. The first applicant appealed against that decision.
On 7 March 1997 the Federal Administrative Court dismissed the appeal on the ground that it did not raise an issue of fundamental importance. It noted that freedom of religion was limited by the values laid down in the Constitution itself. Among those constitutional values was the protection of life’s natural sources (natürliche Lebensgrundlagen), as declared in section 20(a) of the Basic Law, which included the creation of protected zones. Additionally, the provisions relating to planning matters applied to everyone without distinction and did not impose more restrictions on religious communities than on other persons or groups of persons. As far as the provisions relating to cemeteries were concerned, it was indisputable that the creation of a cemetery was subject to laws relating to public health and the management of water resources. The freedom of a religious community subject to public law to practise its religion did not compel the authorities to grant that community an exemption from the statutory restrictions relating to the protection of the environment and the countryside. Besides that, the question as to whether such an exemption should have been granted, under the legislative decree of 14 July 1995 relating to the creation of Franconian Switzerland Wildlife Park, concerned provisions adopted by the Bavarian legislature, that is to say by a Land, and could not therefore be relied on before the Federal Administrative Court.
On 14 October 1997 the Federal Constitutional Court, ruling as a panel of three judges, decided not to uphold the first applicant’s constitutional appeal. It noted, inter alia, that freedom of religion and freedom to manifest it was not unlimited and could be balanced against other constitutional values, of which section 20(a) of the Basic Law was one. It also noted that the first applicant could build the cemetery on other land which was less affected by regulatory restrictions.


ITEMID: 001-90957
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: STUMPE v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Gerhard Stumpe, is a German national who was born in 1929 and lives in Eppendorf. He is represented before the Court by Mr T. Gertner, a lawyer practising in Bad Ems.
A summary account of historical events in which the present application originated can be found in the Court’s decision on admissibility in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (see Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (dec.), no. 47550/06, 7 October 2008, §§ 4-5, ECHR-2008-...).
The applicant submits that he and his family were forced to leave their 7.96 hectare farm in Falkenhain (at present Sokołowiec in Poland). Each person was allowed to take only the barest personal essentials that they could hold in their hands.
This region before and during the Second World War belonged to the German Reich. After the defeat of Germany at the end of the war, when the border between Germany and Poland was drawn along the Oder-Neisse line, it was included in the territory of Poland (see Preussische Treuhand Gmb & CO. Kg A. A., cited above, § 3).
Afterwards, they were interned in Jelenia Góra where they were required to perform forced labour and seriously ill-treated by the Polish militia. Finally, they were expelled from Poland. On 6 December 1945 they reached the Soviet occupation zone. The family’s property was confiscated by the Poles.
The applicant has still not been allowed to return to his home and has been refused restitution of his family’s property.
A detailed description of the relevant international and domestic law is set out in the above-mentioned case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (ibid. §§ 31-41).


ITEMID: 001-58269
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF ZUBANI v. ITALY
IMPORTANCE: 4
CONCLUSION: Preliminary objection rejected (out of time);Preliminary objection rejected (non-exhaustion);Violation of P1-1;Just satisfaction reserved
JUDGES: C. Russo;John Freeland;N. Valticos
TEXT: I. Circumstances of the case
7. The applicants, three sisters and a brother, own a farmhouse and adjoining land, which they use for agricultural purposes.
8. On 21 August 1979, as part of the implementation of the general development plan adopted pursuant to Law no. 167/62, the Municipality of Brescia ("the Municipality") issued an order, under an expedited procedure, for the possession of the applicants' land, which was located in a zone intended for the construction of low-cost and social housing ("edilizia economica e popolare").
9. On 16 July 1980 the Municipality took physical possession of the land, aided by the police. On 6 October 1981 the Lombardy Regional Council issued an expropriation order.
10. From the outset the applicants challenged the lawfulness of the measures taken by the authorities; they brought several actions in the administrative courts and in the ordinary civil courts.
A. Action for possession in the ordinary civil courts
11. On 1 October 1980 they applied to the Brescia Magistrate's Court (pretore) seeking the restitution of their land on the ground that the order for possession under the expedited procedure of 21 August 1979 had been executed after the expiry of the statutory time-limit (three months).
By an interim decision of 10 January 1981, the Magistrate's Court found for the applicants. The Municipality did not comply with the decision.
On 16 March 1983 the Magistrate's Court reversed its earlier interim decision because in the meantime the expropriation order of 6 October 1981 (see paragraph 9 above) had legalised the occupation of the land. It ruled nevertheless that the taking of possession of the land on 16 July 1980 had been unlawful and amounted to an act of theft. It ordered the Municipality to pay compensation for the damage sustained by the applicants on this account.
12. The Municipality contested its liability to pay compensation and, on 13 June 1983, appealed to the Brescia District Court, which, on 18 December 1985, upheld the impugned decision. The text of the judgment was deposited in the registry on 13 June 1986.

13. In the meantime, on 16 April 1981, the two cooperatives responsible for carrying out the building work (see paragraph 18 below) had brought an action against the applicants seeking compensation for the damage deriving from the delay to the property development scheme caused by the proceedings brought by the applicants.
B. Proceedings on the merits in the administrative courts
14. By a writ served on 12 November 1979, the applicants instituted proceedings in the Lombardy Regional Administrative Court ("the RAC") seeking judicial review of the expedited order for possession of 21 August 1979.
On 22 July 1980 they filed a new action contesting the occupation of the land and on 6 January 1982, in the same court, they challenged the expropriation order of 6 October 1981.
15. Following the joinder of these different proceedings, the RAC quashed, on 15 June 1984, the various administrative measures - including the expropriation order -, but found that it lacked jurisdiction to rule on the lawfulness of the taking of possession of the applicants' land on 16 July 1980; it took the view that this question was a matter for the ordinary courts. The text of its decision was deposited in the registry on 30 July 1984.
16. The Municipality appealed to the Consiglio di Stato, which, in a judgment of 21 November 1985, deposited in the registry on 17 January 1986, upheld the RAC's decision.
C. Enforcement proceedings
1. In the administrative courts
17. As the Municipality failed to comply with the latter decision, the applicants instituted proceedings in the Consiglio di Stato.
18. On 10 June 1986 the Consiglio di Stato found that it lacked jurisdiction and remitted the case to the Lombardy RAC.
On 16 July 1986 the applicants applied to the RAC, which, on 24 October 1986, found partly in their favour, holding in substance that the annulment by the Consiglio di Stato of the contested expropriation measures had the effect of imposing a duty on the Municipality to return immediately the part of the land that it had occupied on which no buildings had been erected, namely 12,000 square metres. It accordingly ordered that the land in question be returned
to the applicants within thirty days. In respect of the remaining parcels of land, on which residential accommodation had been built in the meantime, the RAC held that it had no jurisdiction to order enforcement, because even before the annulment of the expropriation, the Municipality had transferred the land in question to two building cooperatives. As a result physical possession of the property had passed to the members of the two cooperatives. As the latter were private citizens, neither the Municipality nor the RAC was empowered to make any order whatsoever in regard to enforcement. It referred the applicants to the ordinary courts.
This decision was deposited in the registry on 31 October 1986; it was not complied with.
2. In the ordinary courts
19. On 29 July 1986 the applicants served notice on the Municipality calling on it to comply with the decision of the Lombardy RAC of 15 June 1984, upheld by the Consiglio di Stato on 21 November 1985.
20. By a writ served on 5 August 1986, the Municipality brought proceedings against the applicants in the Brescia District Court seeking a declaration that the applicants' notice to comply was invalid or inoperative because the judgment in question did not constitute a proper basis for initiating enforcement proceedings.
The applicants filed a cross-action seeking, in addition to the restitution of their land, an order from the District Court for the demolition of the buildings constructed on part of it and the erection of a fence. They also claimed compensation for the damage sustained.
21. At the hearing on 26 March 1987 judgment was reserved. On 2 April 1987 the District Court declared the notice served on the Municipality invalid on the ground that although the RAC judgment had quashed the measures adopted in connection with the expropriation, it was not automatically enforceable. At the same time the court partly allowed the applicants' cross-action in so far as it related to compensation for damage and the restitution of the land.
22. By a writ served on 12 June 1987, the Municipality appealed.
On 19 October 1988 judgment was reserved. On 9 November 1988 the Brescia Court of Appeal partly set aside the impugned decision pursuant to Law no. 458 of 27 October 1988 ("the 1988 Law" - the socalled "Legge Zubani"). This law, which came into force on 3 November 1988, gave legislative force to a principle laid down by the Court of Cassation (in plenary session) in its judgment no. 1464 of 16 February 1983, namely that property on which public work had been carried out making it impossible to restore it to its owner was to be the subject of compulsory transfer to the public authorities. In such circumstances the person concerned was entitled to full compensation.

Thus the appeal court dismissed the applicants' claim for the restitution of the land. However, it confirmed their right to compensation for the damage sustained. The text of its judgment was deposited in the registry on 15 November 1988.
23. At a date that has not been specified, the applicants appealed on points of law, challenging, among other things, the retrospective application of the 1988 Law. On 18 September 1989 the Court of Cassation adjourned the hearing to a later date.
24. In a judgment of 6 November 1989, deposited in the registry on 3 April 1990, the Court of Cassation dismissed the appeal on the ground that the appeal court had correctly applied the 1988 Law in the case before it because the applicants had not yet obtained a final decision ordering the Municipality to return the land which had been built on.
25. In addition, on 15 November 1989, in connection with the proceedings instituted by the cooperatives in 1981 (see paragraph 13 above) the Brescia District Court raised, on the applicants' motion, an objection based on the unconstitutional nature of section 3 of the 1988 Law. This objection was dismissed by the Constitutional Court on 12 July 1990 (judgment no. 384 - see paragraph 35 below).
On 28 November the District Court dismissed the plaintiffs' claims and held that the Municipality should compensate the applicants for the damage sustained, but that this issue should be the subject of separate proceedings.
26. On 4 and 5 March 1993 the applicants issued a writ against the cooperatives and the Municipality in the District Court for a decision fixing the amount to be reimbursed to them.
27. On 26 April 1995 the District Court, finding that the Municipality alone was liable for the occupation and the resulting damage, awarded the applicants 599,605,830 Italian lire less the 100,000,000 lire (reassessed at 139,650,600 to take account of monetary depreciation) paid by the defendant as an advance in 1988. They were also awarded 22,300,000 lire for lawyers' fees and expenses. The judgment was deposited in the registry on 2 August 1995. It was declared enforceable on 11 October and was served on the Municipality on 13 October.
28. On 29 September 1995 the Brescia Municipal Council decided that the sums in question should be paid to the applicants. The first sum plus statutory interest up to the probable date of payment (31 October 1995) totalled 1,015,255,000 lire.
29. On 20 October 1995 the applicants served a notice to comply on the Municipality, which, on the following 29 November paid them 751,164,000 lire.

30. On 17 January 1996, they issued a writ under Article 543 of the Code of Civil Procedure requiring the Municipality and its bank to appear on 26 March 1996 before the enforcement judge so that he could order the attachment of funds belonging to the Municipality with a view to securing payment of the outstanding amount. On 18 January 1996 a bailiff attached 250,000,000 lire.

II. Relevant domestic law
A. Legislative provisions
31. Section 20, paragraph 1, of Law no. 865 of 22 October 1971 provides:
"The occupation of land under the expedited procedure with a view to its expropriation shall be authorised by the Prefect. Such an order shall lapse if possession of the land is not taken within three months of the date on which it was issued."
32. Section 3 of Law no. 458 of 27 October 1988 states:
"Any person who owns land which is used for the construction of public buildings or social housing shall be entitled to compensation for damage sustained where the expropriation has been declared unlawful by a court decision which has become final, but such person may not claim restitution of his property.
Further, such a person is entitled, in addition to compensation for damage, to sums payable in respect of monetary depreciation and to any other sums mentioned in Article 1224 § 2 of the Civil Code, such amounts being calculated from the date of the unlawful taking of possession."
33. Article 1224 § 2 of the Civil Code provides:
"Any creditor who establishes that he has suffered greater loss is entitled to be compensated therefor. There is no such entitlement in cases where it has been agreed that interest would be paid in case of delay."
34. Article 543 of the Code of Civil Procedure is worded as follows:
"The attachment of a debtor's funds held by third parties ... shall be effected by a writ served in person on the third party and the debtor ..."
B. Case-law
35. Interpreting section 3 of the 1988 Law, the Constitutional Court held in its judgment (no. 384) of 12 July 1990:
"In the impugned provision, the legislature has given preference, as between the owner's interest in obtaining restitution of his unlawfully-expropriated land, and the public interest - in this case the allocation of such land for building public, low cost or subsidised housing - to this latter interest."