ITEMID: 001-59060
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF EDOARDO PALUMBO v. ITALY
IMPORTANCE: 4
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of P1-1;Violation of Art. 6-1;No violation of Art. 14+P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: András Baka;Luigi Ferrari Bravo;Vitaliano Esposito
TEXT: 10. The applicant is the owner of a flat in Rome, which he had let to Mrs A.B. The lease had been extended until 31 December 1983 by the operation of Law no. 392 of 12 July 1978.
11. In a writ served on the tenant on 13 October 1983, the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.
12. By a decision of 7 October 1983, which was made enforceable on 27 October 1983, the Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1984.
13. On 6 March, 8 April, 9 May, 17 June, 22 July, 1 October and 5 November 1986, the bailiff unsuccessfully attempted to evict the tenant without police assistance.
14. Pursuant to Law no. 899 of 23 December 1986, the enforcement proceedings were suspended until 31 March 1987.
15. On 6 March 1987 the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.
16. On 21 April and 28 May 1987, the bailiff made two other unsuccessful attempts to evict the tenant.
17. On 24 June 1987 the applicant was granted police assistance in evicting his tenant; on that day, however, the latter claimed to be ill and no officially appointed doctor was available to check her allegations. The bailiff arranged to make his next visit to the premises on 14 July 1987. However, on this occasion the applicant was not granted the police assistance and the tenant refused to vacate the premises.
18. Pursuant to law-decree no. 551 of 30 December 1988 and to Laws no. 108 of 8 April 1988 and no. 61 of 21 February 1989 the enforcement of the order for possession was suspended until 31 April 1989.
19. In June 1992, after a number of unsuccessful attempts by the bailiff, the applicant recovered possession of his flat.
20. The relevant domestic law is described in the judgment Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-102412
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SOFRANSCHI v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant, Mr Eugen Sofranschi, was born in 1946 and lives in Briceni.
6. After the dissolution of the Soviet Union, the land and property of the former collective farms (kolkhozes) were divided among the villagers who had been members of the collective farms. In some localities new collective farms were formed, to which the villagers contributed their land and other goods inherited from the former collective farms. The collective farms were headed by leaders. In some cases the villagers worked in the collective farms, whereas in other cases they merely received a part of the revenue of the farm at the end of the year. At the time of the events in question, the applicant was a member of such a collective farm and had a tense relationship with its leader, V.P., whom he suspected of abusing his position. It does not appear that the applicant and V.P. had an employer-employee relationship.
7. In May 2003 during a local election campaign, the applicant, who was a member of the electoral staff of one of the candidates, wrote a letter to the President of Moldova, the Speaker of Parliament and the local Prosecutor's Office which was critical of V.P., who was also a candidate for the position of mayor of their village. In the letter, the applicant accused V.P. of numerous abuses. The applicant requested that the State authorities intervene in order to solve the problems of: (i) access to a lake and pasture on the part of local villagers; and (ii) V.P.'s abusive behaviour.
8. In August 2003 V.P. initiated civil defamation proceedings against the applicant and claimed compensation of 20,000 lei (MDL). He argued, in particular, that the following passages from the applicant's letter had been defamatory of him:
“[1] V.P. who, as a matter of coincidence, was the leader of the collective farm is shameless ... [2] He has no education and only attended primary school... He obtained false diplomas and cannot even read properly... [3] He illegally possesses shares in the collective farm ... [4] The property [of the collective farm] which was gathered by the people over a very long period of time is now used by shameless people. [5] He has guns and threatens people with them ...”
V.P. also submitted that the applicant had been spreading such rumours in the village and that because of this he had lost the elections for the position of mayor.
9. In his written defence before the Briceni District Court, the applicant rejected V.P.'s accusations and stated that the information concerning V.P.'s education and diplomas had been provided to him and to many other villagers by a person named N.C. and that it had been common knowledge in the village. As to V.P.'s reading skills, the applicant submitted that all the members of the collective farm could confirm that V.P. had had difficulty reading a text during a meeting. As to V.P.'s threatening people with guns, the applicant stated by way of example that during a village festival V.P. had fired twice from a gun into the air in order to intimidate two people. As to the allegation that V.P. had abusively limited the villagers' access to the lake, the applicant submitted that a court had deprived V.P. of possession of the lake in the interim.
10. On 28 November 2003 the Briceni District Court found in favour of V.P. and ordered the applicant to pay him MDL 10,000 in compensation for non-pecuniary damage and MDL 500 for costs and expenses. The judgment was upheld by the Court of Appeal but quashed by the Supreme Court of Justice, which ordered a fresh examination of the case. In so doing, the Supreme Court instructed the inferior courts to determine: (i) when and on exactly which occasion the impugned expressions were made by the applicant; and (ii) whether the impugned expressions had constituted value judgments.
11. On 7 July 2004 the Briceni District Court again found in favour of V.P. and ordered the applicant to pay him MDL 12,000 in compensation for non-pecuniary damage and MDL 500 for costs and expenses.
The court heard several witnesses, who declared that they had heard the applicant spreading the impugned rumours among the villagers. The applicant objected and argued that all the witnesses put forward by V.P. had been his relatives. The applicant also submitted that the impugned statements had only been made in the letter addressed to the Prosecutor's Office, the President and the Speaker of Parliament.
On the basis of the evidence before it, the court found the impugned passage from the letter of May 2003 to be defamatory. It did not find the applicant guilty of spreading the impugned statements by any other means. The court found the first statement to be false and defamatory because V.P. had been legally elected as the leader of the collective farm. The court also held the second statement to be defamatory because V.P. had been able to present a diploma from a university in the Russian Federation. In so far as the third statement was concerned, in declaring it defamatory the court relied on a letter of the Prosecutor's Office in reply to the applicant's letter of May 2003, in which the Prosecutor's Office stated that V.P.'s title to the shares was legitimate. As to the fourth statement, the court found that since V.P. had been the leader of the collective farm, he had had the right to administer its property and, therefore, the statement “used by shameless people” was defamatory of V.P. Finally, the court also found the last statement to be defamatory on the basis of a document issued by the police, according to which V.P. did not possess any registered guns. The court did not refer in its reasoning to the submissions of a witness put forward by the applicant, who claimed to have been threatened with a gun by V.P. In calculating the compensation for the non-pecuniary damage suffered by V.P., the court held that the fact that the impugned letter had been written during the election campaign and that the applicant had been a member of the electoral staff of the candidate running against V.P. in the elections were aggravating factors on the part of the applicant.
12. The applicant appealed and submitted, inter alia, a document issued by the Mayor's Office of his village, according to which V.P.'s use of a barn belonging to the collective farm had not had a legal basis. The applicant also attached to his appeal a letter from the Prosecutor's Office indicating that a criminal investigation was pending against V.P. in respect of his possession of a false diploma. It appears that in September 2004 the mayor's office of the applicant's village had made an inquiry of the university in the Russian Federation which V.P. had stated that he had graduated from. According to a letter signed by the president of the university dated 9 September 2004, no person named V.P. had graduated from that university in the year indicated on V.P.'s diploma. It is not clear from the parties' submissions whether this document was part of the case file in the defamation proceedings. It would appear that it was part of the case file in the criminal proceedings pending against V.P.
13. On 7 December 2004 the Bălţi Court of Appeal dismissed the applicant's appeal. The court held, inter alia, that the pending criminal proceedings against V.P. for possession of a false diploma were not a sufficient ground for quashing the judgment of the first-instance court. Only a final judgment finding V.P. guilty which had been adopted before the impugned letter had been written would have justified such an accusation being made against him.
14. The applicant lodged an appeal on points of law and reiterated, inter alia, that his letter of May 2003 had not been made public but rather had only been sent to a limited number of people.
15. On 23 March 2005 the Supreme Court of Justice upheld the judgment of the Court of Appeal but reduced the amount awarded in respect of compensation for non-pecuniary damage from MDL 12,000 to MDL 3,000.
16. The relevant part of Article 16 of the Civil Code reads as follows:
“(1) Every person has the right to the respect for his or her honour, dignity and professional reputation.
(2) Every person has the right to request the renunciation of information which affects his or her honour, dignity and professional reputation if the person circulating such information cannot prove that it corresponds to reality.
...
(4) Where information which affects a person's honour, dignity and professional reputation is circulated in a mass medium, the court shall order [that medium] to publish a disclaimer in the same column, page, programme or series of programmes, within a maximum of 15 days of the date of entry into force of the court judgment.
...
(7) A person whose rights and lawful interests have been violated by a publication in a mass medium has the right to publish a reply in the medium in question, at the latter's expense.
(8) Every person about whom information has been published [thereby] violating his or her honour, dignity and professional reputation has the right to request compensation for pecuniary and non-pecuniary damage in addition to the publication of a renunciation.”
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-82867
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF CAZACU v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (application not properly submitted by the applicant but rather by a lawyer who claimed to be associated with the Helsinki Committee for Human Rights);Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1950 and lives in Cimişlia.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. From 1986 the applicant was employed by the Bureau of Architecture, Projects and Production of the Chief Architect of Cimişlia Region (“the Cimişlia Bureau”), a State service. In 1993 the Bureau adopted new by-laws, which were approved by the Ministry of Architecture and Construction. Under these by-laws, the Bureau was registered as an independent legal person with the rights of a State company and governed by the Regulations of State companies. It was created within the organs of local public administration and on the basis of municipal property but was financed exclusively from the income it generated from selling a variety of services to the local administration and to the population.
8. On 16 December 1999 Lăpuşna County Council decided to merge several bureaux, including the Cimişlia Bureau, into one service at the County level. The Lăpuşna Bureau thus became the legal successor of the Cimişlia Bureau in which the applicant had worked. Before this merger, the Cimişlia Bureau decided to reduce the number of personnel employed and as a result the applicant was made redundant by an order of 29 December 1999.
9. On 12 January 2000 he acknowledged the dismissal notice in writing, as requested by law. In accordance with the relevant labour legislation, he requested redundancy payments (namely redundancy compensation worth one month's average salary, his average monthly salary during the three months when he would be looking for a new job, payment for unused leave for 1999 and payment of his salary for December 1999 and part of January 2000).
10. The employer refused to pay because it had set aside no money for redundancy payments. According to a certificate issued by the Cimişlia employment office on 9 June 2000, the applicant had been unemployed from 21 January 2000 to the date of the issue of the certificate.
11. The applicant initiated court proceedings, claiming redundancy payments, namely one month's salary on dismissal, the continuing payment of his salary for the three subsequent months when he would be looking for another job and monetary compensation for untaken leave. On 5 July 2000 the Cimişlia District Court partly accepted his claims. He appealed and the Cahul Regional Court quashed that judgment, ordering a full re-hearing of the case.
12. On 27 April 2001 the Cimişlia District Court rejected all his claims as unfounded.
13. On 14 August 2001 the Cahul Regional Court upheld that judgment. It found, among other things, that the applicant had missed the two-month deadline for making his claim against the Cimişlia Bureau, since the decision to reorganise the bureau had been published in January 2000 and the complaint had been lodged in May 2000.
14. Notwithstanding the fact that the applicant had missed the above-mentioned time-limit, on 26 April 2002 the Court of Appeal examined the substance of his appeal and upheld the judgment of the Regional Court. The court reasoned that no compensation was due because the Cimişlia Bureau, in which the applicant had worked, was self-financed; it had not set aside any resources for compensation but had distributed all the money obtained from its activity to its employees, after paying taxes. Since it had been an independent legal person, its legal successor, the Lăpuşna Bureau, could not be held liable for any outstanding debts. The court also found that the applicant had not offered any new services after October 1999 and thus could not claim his salary for November-December 1999. He had been warned in April 1999 of impending dismissal and instructed to complete all outstanding work by 29 December 1999. Finally, the court found that he had not registered with the Lăpuşna employment office as unemployed and could therefore not claim redundancy compensation.
15. The relevant provisions of the Labour Code of 25 May 1973, in force until 28 March 2003, read as follows.
“Article 3. Sphere of application of labour legislation.
The labour legislation regulates work relations of employees employed in enterprises, institutions and organisations on the territory of Moldova, regardless of the type of property and form of management ...
Article 6. Nullity of contract clauses making the conditions of employees worse.
Contractual clauses making the conditions of employees worse than those provided for by law are null and void.
...
Article 45/3. Indemnities and compensation for employees made redundant.
Employees made redundant by enterprises, institutions and organisations because of a reduction of the number of personnel or status of personnel:
1) shall be paid a redundancy indemnity worth one month's average salary;
2) shall continue to receive the average salary during the period needed to find a new job, but for no longer than two months from the date of redundancy, taking into account the payment of the redundancy indemnity;
3) exceptionally, shall continue to receive the average salary during the third month from the date of redundancy, based on a decision of the employment office, subject to the employee's timely request to that authority (within two weeks of redundancy) and if not offered a job in the meantime.
...
Article 80. Prohibition of granting of monetary compensation in lieu of untaken leave
It is prohibited to grant monetary compensation in lieu of untaken leave, save in the case of dismissal of an employee who has not used his or her leave days”.
16. The relevant provisions of the Code of Civil Procedure (in force until 12 June 2003) read as follows:
“Article 296. Scope of appeal proceedings.
The court which examines the appeal shall verify whether the first-instance court's judgment is lawful and well-grounded, on the basis of the information in its possession, as well as any new written evidence submitted to the court.
The court may re-evaluate the evidence in its possession and examine any new evidence submitted by the parties in accordance with the present Code.
The court shall deal with each ground of appeal invoked.”


ITEMID: 001-111394
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GENDERDOC-M v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 13+11 - Right to an effective remedy (Article 13 - Effective remedy) (Article 11 - Freedom of assembly and association;Article 11-1 - Freedom of peaceful assembly);Violation of Article 14+11 - Prohibition of discrimination (Article 14 - Discrimination) (Article 11 - Freedom of assembly and association;Article 11-1 - Freedom of peaceful assembly)
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 6. The applicant, Genderdoc-M, is a non-governmental organisation based in Moldova whose object is to provide information and to assist the LGBT community.
7. On 7 April 2005 the applicant association applied to Chişinău Municipal Council for authorisation to hold a peaceful demonstration in front of the Parliament on 27 May 2005, to encourage the adoption of laws to protect sexual minorities from discrimination.
8. On 27 April 2005 the Chişinău Municipal Council rejected the application on the ground that the applicant association’s demonstration was baseless, since a law on the protection of national minorities had already been adopted.
9. On 6 May 2005 the Mayor’s Office also refused permission for the proposed demonstration, on the grounds that there was a law on the protection of national minorities already in place and that there were legal provisions which dictated which individuals had the power of legislative initiative required to promote laws.
10. The applicant association contested the decision of the Chişinău Mayor’s Office of 6 May 2005. It argued that the ban on their demonstration was illegal and discriminatory.
11. On 2 June 2005 the Chişinău Court of Appeal allowed the applicant association’s action and declared the Chişinău Mayor’s Office decision of 6 May 2005 void. Chişinău Court of Appeal found the following:
“...The court considers legally ungrounded the arguments relied on by the defendant to justify its refusal to authorise the assembly, as the law does not provide such grounds for the non-authorisation of an assembly. The decision as to whether to authorise or not to authorise an assembly should not be made conditional either on the nature of the problems the participants intend to bring to society’s attention, or on the status of those problems.
Under these circumstances the court concludes that the decision of the Mayor’s Office dated 6 May 2005 was issued contrary to the provisions of Article 26 (1) of the Law regarding administrative complaints, and was thus illegal and void. As to the plaintiff’s other complaints, including the Mayor’s Office’s noncompliance with the time-limit of forty-eight hours for notification of the refusal of authorisation for the assembly required under section 14 of the Law regarding the organisation and conduct of assemblies, the court declares them illfounded.”
12. The Chişinău Mayor’s Office appealed against the decision of the Chişinău Court of Appeal of 2 June 2005. The Mayor’s Office argued that they had received many requests from individuals and associations which were vehemently against the authorisation of the demonstration, and who opposed the adoption of any law legalising homosexual partnerships. The requests had laid emphasis on various legal provisions that concerned the protection of marriage and the family.
13. On 7 September 2005 the Supreme Court of Justice allowed the appeal lodged by the Mayor’s Office, quashed the Chişinău Court of Appeal decision of 2 June 2005 and decided to send the case to the Court of Appeal for re-examination.
14. In their submissions to the Court of Appeal, the Mayor’s Office argued that the holding of an assembly for the promotion of the rights of sexual minorities would endanger public order and social morality and, moreover, that the organisers had not assumed any responsibility as regards the demonstration’s good management.
15. The applicant association argued that the ban was illegal and discriminatory.
16. On 14 June 2006 the Court of Appeal found against the applicant association. The applicant association appealed against this decision.
17. On 18 October 2006 the Supreme Court of Justice upheld the decision of the Court of Appeal of 14 June 2006. It found that the applicant association had failed to give undertakings as regards a number of obligations required by the law in respect of assemblies, such as: to respect the law; to designate a person or persons in charge of the conduct of the demonstration; to create together with the police a group of people responsible for the maintenance of public order; to mark the site of the demonstration with special signs; to pay the Municipal Council any fees related to the arrangement of the site of the demonstration; to establish the route to and from the site of the demonstration; to provide the police with unfettered access to the site of the demonstration; and to forbid the participation of certain persons. Moreover, the court considered that there was a risk that the demonstration would cause a breach of public order.
18. Law no. 560-XIII of 21 July 1995 regarding the organisation and conduct of assemblies provides, as relevant, the following:
Assemblies may be held only after the organisers have duly notified the urban mayor’s (municipal) or rural offices.
(1) The organiser of an assembly must lodge a notification with the mayor’s office at least fifteen days before the chosen date, according to the model provided in the appendix which is part of the present law.
(2) The preliminary notification should indicate:
(a) the name of the organiser, the aim of the assembly;
(b) the date and time the assembly is to begin and end;
(c) where the assembly will take place and the routes to and from the place;
(d) the form the assembly will take;
(e) the approximate number of participants;
(f) those appointed to ensure the good conduct of the assembly and to be responsible for it;
(g) the services the organisers require from the mayor’s office.
(3) The Mayor’s Office may in justified cases modify, with the organiser’s consent, elements of the preliminary notification.
After examining the preliminary declaration, the Mayor’s Office shall issue one of the following decisions and inform the organiser about it:
(a) grant permission;
(b) refuse permission under section 12 (6).
(1) The organiser can contest the refuse to authorise an assembly.
(2) The relevant judicial body shall decide upon the organiser’s contestation within 5 days from its lodging.”
19. Section 34 of Law no. 123 of 18 March 2003 regarding local public administration provides that:
“(1) ... the Mayor undertakes the following functions over... administered territory:
1. in the field of legal order:
...
(f) Undertakes legal measures regarding the conduct of public assemblies: ...
(g) Undertakes measures forbidding or suspending shows, presentations and other public demonstrations which contradict legal order and morals.”
20. The Moldovan Constitution contains the following relevant provisions:
(1) The exercise of certain rights or freedoms may be restricted only under the law and only as required for: the defence of national security, of public order, health or morals, of citizens’ rights and freedoms, the carrying out of investigations in criminal cases, the prevention of the consequences of a natural calamity or of a technological disaster.
(2) The restrictions enforced must be in proportion to the situation that caused them, and may not affect the existence of that right or liberty.”
21. The Moldovan Civil Code stipulates in Article 184:
“An association is a non-commercial organisation established voluntarily by associated individuals and legal entities under provisions of the law on the basis of community of interests, which are consistent with public order and good morals, for the purpose of meeting various non-material needs.”
VIOLATED_ARTICLES: 11
13
14
VIOLATED_PARAGRAPHS: 11-1


ITEMID: 001-4722
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: HUBNER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1943 and living in Vienna.
He is represented before the Court by Mr S. Holter, a lawyer practising in Grieskirchen.
A.
16 June 1994 the Grieskirchen district authority (Bezirkshauptmannschaft) issued a "sentence order" (Straferkenntnis) imposing on the applicant, as manager of the F company, fines for five administrative offences (Verwaltungsübertretungen) under section 31(2)(k) and (p) of the Industrial Safety Act (Arbeitnehmerschutzgesetz), in conjunction with further provisions of the Industrial Safety Act, as well as other industrial safety regulations (Allgemeine Arbeitnehmerschutzverordnung; Allgemeine Dienstnehmerschutzverordnung) and the Code of Administrative Offences (Verwaltungsstrafgesetz). Having regard to the results of an inspection by the Wels Works Inspection (Arbeitsinspektorat), it found that
(1) no appointment had been made of a person responsible for security matters (Sicherheitsvertrauensperson) or a deputy, although the F. company had more than 50 employees;
(2) there was not the requisite number of employees who could prove that they had been sufficiently trained in first aid;
(3) two emergency exits were defective and could not be used;
(4) a gate was defective and did not close safely; and
(5) three cranes had not been regularly checked by the Works Inspection.
The authority imposed fines amounting to (1) ATS 5,000 with two days’ imprisonment in default; (2) ATS 7,000 with three days’ imprisonment in default; (3) and (4) ATS 10,000 with four days’ imprisonment in default for each offence; and (5) ATS 7,000 with three days’ imprisonment in default. In these and the following proceedings the applicant was assisted by counsel.
On 16 November 1995 the Upper Austria Independent Administrative Tribunal (Unabhängiger Verwaltungssenat), following two days of hearings, dismissed the applicant’s appeal.
In its decision, the Tribunal mentioned that it had consulted the administrative files which sufficiently indicated the relevant facts. However, upon the applicant’s express request, it had ordered an oral hearing and the taking of evidence from two witnesses named by him. Neither the applicant, nor the witnesses K and N, who had been summoned at the F. company’s address, had appeared at the two day court hearing. The applicant’s counsel had explained the applicant’s absence with his workload, and the absence of the witness K with his illness although no medical certificates were presented. Counsel had further stated that the witness N could no longer be reached at the F company’s address without indicating any new address, contrary to his undertaking in court.
As regards the legal assessment, the Tribunal considered that the objective facts could be established from the Works Inspection report, and were not challenged in the applicant’s appeal except for the offence of failing to appoint a person responsible for security matters or a deputy. In the latter respect, the Tribunal, having regard to the material before it, considered that the applicant’s statements were untrue. As regards the applicant’s guilt, the Tribunal, referring to section 5(1) of the Code of Administrative Offences, found that, in his appeal submissions, the applicant had failed to show that no fault lay with him for the contravention of the provisions of administrative law. If he had shown the necessary care in complying with industrial safety rules and an earlier report of the Works Inspection on various shortcomings, the facts constituting the offences would not have occurred.
On 3 January 1996 the applicant lodged a complaint with the Administrative Court (Verwaltungsgerichtshof).
On 29 March 1996 the Administrative Court quashed the decision of 16 November 1995 regarding the conviction on the first offence as being unlawful due to a violation of procedural rules. In this respect, the Administrative Court found that the Administrative Tribunal had failed to hear the witness K, as requested by the applicant, on the question whether or not the applicant had appointed persons responsible for security matters. This witness had been cited to give evidence on a relevant issue. The witness’ absence due to health reasons, albeit without medical certificates, had not been sufficient to discharge the Tribunal of its duty to ensure and, if necessary, enforce the witness’ presence and testimony. Referring to section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz), the court declined to deal with the remainder of the applicant's complaints. The decision was served on 13 May 1996.
In the resumed proceedings, on 14 October 1996, the Independent Administrative Tribunal again dismissed the applicant’s appeal and confirmed the administrative fine on the first offence. As to the taking of evidence, the Tribunal noted that it had scheduled two hearings and summoned the witness K, who had not been able to attend the hearings for health reasons and who had subsequently died. Thereupon, a further hearing had been fixed and the witness N had been heard. Having regard to the statements made by N, the Tribunal found that no-one had been appointed to handle security matters at the company.
B. Relevant domestic law
Pursuant to Article 129 of the Federal Constitution, administrative courts called "independent administrative tribunals" (Unabhängige Verwaltungssenate) were set up in the Länder with effect from 1 January 1991. The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences. According to Articles 129a and 129b, their members are lawyers, appointed by the Regional Government for a term of office of at least six years. They are independent and must not receive instructions. They can only be dismissed from office upon a decision of the Independent Administrative Panel itself. The Upper Austria Regional Act on the Independent Administrative Panel (Gesetz über den Unabhängigen Verwaltungssenat des Landes Oberösterreich) repeats to a large extent the provisions of the Federal Constitution.
By Article 130 § 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful.
Section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz), as in force from 1 January 1991, reads as follows:
"The Administrative Court may decline to deal with a complaint against a decision of an Independent Administrative Panel in an administrative criminal case, if no prison sentence or a fine exceeding AS 10,000 has been imposed and the Administrative Court's decision would not involve the determination of a legal question of fundamental importance. A legal question of fundamental importance is involved in particular if the challenged decision of the Independent Administrative Panel is at variance with the Administrative Court's case-law, if no such case-law exists or if the legal questions at issue have not been answered uniformly in the Administrative Court's case-law."
By section 42(2) of that Act,
"The Administrative Court shall quash the impugned decision if it is unlawful
1. by reason of its content, [or]
2. because the respondent authority lacked jurisdiction, [or]
3. on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or
(b) the facts require further investigation on an important point, or
(c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority."
If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law (Rechtsanschauung)" (section 63(1)).


ITEMID: 001-81318
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: CHERNYKH v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Vladimir Ivanovich Chernykh, is a Russian national, who was born in 1957 and lives in Salsk, the Rostov Region. The Russian Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant lived with his wife and six-year-old son in the goldmining settlement “Leningradskiy” of Shmidtovskiy District of the Chukotskiy Autonomous Region (Chukotka), the region in the Extreme North of Russia.
In 1998 the Government decided to close down a number of industrial settlements in Chukotka, including “Leningradskiy”. On 2 February 1998 the Government issued the Decree No. 128 “On Social Protection of Residents of Goldmining Settlements to be Liquidated in the Chukotskiy Autonomous Region”. According to the conditions of the closure programme the inhabitants were entitled to replacement housing and compensation of removal expenses. In the alternative, they could apply for housing subsidies. The applicant was entitled to free shipment of up to 5,000 kg of his household possessions.
On 1 October 1998 the heating, electricity and water supply in part of “Leningradskiy” were cut off. At that time, the Administration of the Shmidtovskiy District offered the applicant to be relocated to the settlement Mys Shmidta, while the containers with the household belongings were to be shipped later by land after the seasonal winter trails were opened. The applicant refused to leave on the grounds that he could not leave the container with his household possessions behind for fear of looting. As an alternative, the applicant was offered to send his son to the boarding school in Mys Shmidta, should the applicant and his wife decide to wait in “Leningradskiy”, for the shipment, which the applicant also declined.
The applicant and his family stayed in “Leningradskiy” for another three months during which they had to stay at other people’s homes whose flats still had heating.
On 30 December 1998 the applicant and his family with their belongings were relocated to Mys Shmidta. According to the Government, the applicant’s family was given temporary dwelling at the address 16 Naberezhnaya Street, apt. 27. The applicant denies having stayed at these premises, but it appears that correspondence sent to this address reached him. His own letters of the relevant period indicated his address as 41/5 Naberezhnaya Street, Mys Shmidta.
Subsequently the applicant was offered to temporarily move with his family into a room in a former military hospital, because it allegedly had a better functioning heating system, but he refused because it would be necessary to share common sanitary facilities there.
On 8 January 1999 the Administration of the Shmidtovskiy District advised the applicant that his relocation allowance of 105,259.50 roubles (RUR) had been deposited at the cashier’s office of the municipal communal enterprise and that it would become payable upon his relocation. He was also advised that he could request an advance payment.
On 9 February 1999 the applicant filed an application for housing subsidies or a replacement dwelling in the central regions of the Russian Federation.
On 5 May 1999 the applicant was allotted a three-room flat in Salsk, a town in the Rostov Region, and he was due for relocation. However, due to an error it turned out that this flat was not available.
On 27 October 1999 the applicant was allocated a two-room flat in Mys Shmidta at the address 4 Shkolnaya Street, apt. 32.
On 17 April 2000 the applicant was allotted another three-room flat in Salsk and he accepted it. He and his family have been living there since.
On 19 March 1999 the applicant instituted proceedings against the Administration of the Shmidtovskiy District. He argued that he had been unlawfully deprived of his home and claimed replacement housing or housing subsidies, as well as non-pecuniary damages.
At the preparatory stage of proceedings the applicant requested the court to obtain a number of official documents for the case file. On 30 April 2000 the court ordered the applicant to provide certain evidence for the file by 1 June 2000. On 22 August 2000 the court sent the applicant a reminder thereof. On 9 November 2000 the applicant submitted his comments.
On 5 December 2000 the Shmidtovskiy District Court examined the case and dismissed the applicant’s claim having found that the applicant had already received the replacement housing. In so far as he claimed damages allegedly caused in the period before the housing was granted, the court found that the applicant had had temporary housing in Mys Shmidta and provided no details, such as dates when he was deprived of any housing at all, to substantiate his allegations.
The applicant did not attend the proceedings because he had already left for Salsk, and the judgment was posted to him on 8 December 2000. However in 2002 he claimed that he had not received it and applied to the court for a leave to appeal out of time.
On 18 November 2002 the Regional Court of Chukotka granted the applicant’s request and accepted his appeal for examination.
On 13 March 2003 the Regional Court of Chukotka examined the appeal and upheld it. It remitted the case for a fresh examination before the court of first instance.
On 31 March 2003 the Shmidtovskiy District Court ruled to prepare the case for examination and required the applicant to provide certain documents for the file. Pending his reply the case was not scheduled for a hearing. In December 2004 the court concluded that the applicant had failed to submit the required information and fixed a hearing for 13 January 2005.
On the latter date the court examined the case and rejected the applicant’s claims. On the point concerning the non-pecuniary damage allegedly caused to the applicant by the late provision of housing, the court found the applicant’s submissions unsubstantiated, in particular in view of his failure to indicate the periods when he was deprived of temporary housing.
The parties submitted no information as to whether an appeal was lodged against this judgment.
On 28 January 1999 the applicant instituted proceedings against his former employer for recovery of his salary and damages caused by delays in its payment. On 12 February and 9 March 1999 the applicant amended his claims.
On 22 April 1999 the Shmidtovskiy District Court granted the applicant’s claims in part. The applicant appealed.
On 15 July 1999 the Regional Court of Chukotka reversed the first instance judgment and remitted the case for a rehearing.
On 21 September 1999 the Shmidtovskiy District Court granted the applicant’s claims in part. The judgment was executed on 28 November 1999.
On 27 December 1999 the applicant instituted proceedings for damages against a financial authority of the village Mys Shmidta (администрация расчетно-кассового центра поселка Мыс Шмидта) claiming that there had been a delay of payments for which they were responsible.
On 24 March 2000 the Shmidtovskiy District Court examined the applicant’s claims and granted them in part. The applicant lodged an appeal, however the proceedings were stayed until the applicant paid the court fees on 30 January 2001.
On 29 March 2001 the applicant’s appeal was examined and upheld. The court remitted it for a fresh examination by the first instance court.
On 24 April 2001 the District court required the applicant to provide certain information by 1 July 2001. The applicant made the necessary submissions and amended his claims on 18 July 2001. He accepted to substitute the Central Bank for the original defendant. The defendant’s observations were submitted on 13 September 2001. Then the hearing could not be scheduled, first, because for five months the court building was closed due to the heating problems in the town, then because the judge was on a five months’ leave and afterwards the court had to deal with the accrued backlog of cases.
A hearing was fixed for 27 November 2002, but the defendant requested an adjournment until February 2003.
On 21 February 2003 the Shmidtovskiy District Court examined the applicant’s claims and rejected them. The applicant appealed, but the proceedings were stayed until the applicant paid the court fees. The applicant failed to do so, and on 8 August 2003 the court ruled to discontinue the appeal proceedings.
On 28 January 1999 a judge of the Shmidtovskiy District Court ordered the applicant’s former employer, a municipal enterprise providing public utilities, to pay him salary arrears in the amount of RUR 11,203.79. The order was executed on 12 July 1999.
On 23 August 1999 the applicant instituted proceedings against the bailiffs for damages caused by their failure to enforce the order in due time. The first instance court’s judgment was delivered on 27 December 2001. The applicant was sent a copy of this judgment by post, but in 2003 he claimed that he had not received it. Upon his request of 7 July 2003, the court granted him leave to lodge an appeal out of time.
On 22 January 2004 the Regional Court of Chukotka examined the appeal and reversed the first instance judgment. The case was remitted for a fresh examination by the first instance court.
On 16 July 2004 the court required the defendant to submit additional comments. The case was then scheduled for 12 January 2005.
On the latter date the Shmidtovskiy District Court examined the case and rejected the applicant’s claims. The parties submitted no information as to whether an appeal was lodged against this judgment.
On 2 December 2001 the applicant instituted proceedings against the bailiffs for damages allegedly caused by their failure to enforce the judgment of 21 September 1999 in due time. On 7 December 2001 the court declined jurisdiction over the case, but upon the applicant’s appeal, on 25 April 2002 the Shmidtovskiy District Court accepted the case for examination. On 18 July 2002 the court required the applicant to submit additional observations and evidence. On 18 September and 2 October 2002 the court reiterated the request and invited the applicant to substitute the defendant.
The hearing was scheduled for 6 November 2002 but it was adjourned until 25 November 2002 because the defendant could not attend and due to the applicant’s filing additional submissions. On the latter date the court adjourned the hearing on the ground that there had been no confirmation of the applicant’s notification of the new date of the hearing.
On 27 January 2003 the Shmidtovskiy District Court examined the case and rejected the applicant’s claims.
On 8 April 2003 the applicant lodged an appeal, but the proceedings were stayed until the applicant filed a request for leave to appeal out of time. The applicant’s request reached the court on 29 July 2003 and was granted on 4 August 2003.
On 3 November 2003 the Regional Court of Chukotka began the examination of the appeal. However it held to remit the case to the district court for an additional judgment concerning the court fees. The additional judgment was delivered by the Shmidtovskiy District Court on 27 March 2004.
On 11 May 2004 the applicant filed an appeal against the additional judgment of 27 March 2004, which was stayed because the applicant lodged his appeal out of time and did not request leave for appeal out of time. On 18 June 2004 the applicant made such a request, and on 21 July 2004 the court granted it and accepted the appeal for examination.
On 21 October 2004 the Regional Court of Chukotka upheld the additional judgment of 27 March 2004.


ITEMID: 001-67132
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: ABOYMOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Nikolay Afanasyevich Aboymov, is a Russian national who was born in 1935 and lives in Blagoveshchensk in the Republic of Bashkortostan. The respondent Government were represented by Mr P. A. Laptev, the representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant receives an old age pension. As his pension due for the period from July 1998 to December 1998 had not been paid to him he applied to a court.
On 18 December 1998 the Blagoveshchensk District Court of the Republic of Bashkortostan found for the applicant, ordering the Blagoveshchensk Town Pension Fund to pay him 2,660.28 Russian roubles (RUR) in arrears as delayed pension payments and 767.64 RUR as inflation losses.
On 21 January 1999 the Supreme Court of the Republic of Bashkortostan, on the defendant's appeal, quashed the judgment in a part related to the court award for inflation losses, having confirmed the remaining part concerning the pension in arrears.
The applicant brought a second action against the Blagoveshchensk Town Pension Fund for non-pecuniary damages allegedly sustained as a result of the delay in pension payments.
On 19 February 1999 the Blagoveshchensk District Court of the Republic of Bashkortostan rejected the applicant's claim. The court found that the delay in payment of pension occurred on account of the failure of organizations and individuals to pay pension contributions in time for which the pension authority cannot be held responsible. The court further maintained that the claim had no basis in domestic law.
On 25 March 1999 the Supreme Court of the Republic of Bashkortostan dismissed the applicant's appeal against the judgment.
The applicant's subsequent requests to the Supreme Court of Russia pursuing the reopening of the case concerning non-pecuniary damages by way of supervisory review proceedings were unsuccessful, of which he was informed by letters of 9 December 1999, 31 January and 22 September 2000.
On 11 September 2002, following an application of the Prosecutor's Office of the Republic of Bashkortostan by way of supervisory review, the Presidium of the Supreme Court of the Republic of Bashkortostan quashed the decision of the appeal court of 21 January 1999 in a part concerning the inflation losses and upheld the original judgment of 18 December 1998 in this respect.