ITEMID: 001-70560
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ANHEUSER-BUSCH INC. v. PORTUGAL
IMPORTANCE: 2
CONCLUSION: No violation of P1-1
TEXT: 9. The applicant is an American public company whose registered office is in Saint Louis, Missouri (United States of America). It produces and sells beer under the brand name “Budweiser” in a number of countries around the world.
10. On 19 May 1981 the applicant company applied to the National Institute for Industrial Property (NIIP) to register “Budweiser” as a trade mark on the industrial-property register. The NIIP did not grant the application immediately because it was opposed by a company incorporated in Czechoslovakia, Budejovicky Budvar, which had already registered “Budweiser Bier” as an appellation of origin.
11. According to the applicant company, negotiations then took place between it and Budejovicky Budvar concerning the use of the “Budweiser” trade mark. As the parties could not come to an agreement, the applicant company applied to the Lisbon Court of First Instance on 10 November 1989 for an order cancelling Budejovicky Budvar’s registration. In a judgment of 8 March 1995, which became final, the Lisbon Court of First Instance granted that application on the ground that the product to which the registration referred, namely the beer known as “Budweiser Bier”, did not have the requiriste characteristics to be considered an appellation of origin or indication of source. The registration was therefore cancelled.
12. In a decision of 20 June 1995, which was published on 8 November 1995, the NIIP registered the “Budweiser” trade mark in the applicant company’s name, despite a prior objection by Budejovicky Budvar. On 8 February 1996 Budejovicky Budvar appealed to the Lisbon Court of First Instance against the NIIP’s decision on the strength of an agreement between the Governments of the Portuguese Republic and the Czechoslovak Socialist Republic for the protection of indications of source, appellations of origin and other geographical and similar designations (“the 1986 Agreement”), which was signed in Lisbon on 10 January 1986 and entered into force on 7 March 1987 after publication in the Official Gazette. In accordance with the law, the applicant company was invited by the court to take part in the proceedings as an interested party.
13. In a judgment of 18 July 1998, the Lisbon Court of First Instance dismissed the application. It found that the only intellectual property eligible for protection under Portuguese law was the appellation of origin “Ceskebudejovicky Budvar”, not the trade mark “Budweiser”. In addition, it found that there was no risk of confusion between that appellation of origin and the applicant company’s trade mark, which the vast majority of consumers tended to identify as an American beer.
14. Budejovicky Budvar appealed against that decision to the Lisbon Court of Appeal. In a judgment of 21 October 1999, the Lisbon Court of Appeal overturned the impugned judgment and ordered the NIIP to refuse to register “Budweiser” as a trade mark, as it considered that such a registration would infringe the 1986 Agreement and, consequently, Article 189 § 1 (j) of the Industrial-Property Code.
15. The applicant company appealed on points of law to the Supreme Court, alleging inter alia that the impugned decision contravened the agreement of 15 April 1994 on the Trade-Related Aspects of Intellectual Property Rights (“the TRIPs Agreement”), which establishes the rule that registration confers priority, and in particular Articles 2 and 24 § 5 of that agreement. The applicant company also alleged that, in any event, the protected appellation of origin “Ceskebudejovicky Budvar” did not correspond to the German expression “Budweiser”, so that the 1986 Agreement could not be used to challenge its application for registration. Even supposing, however, that the German expression “Budweiser” were an accurate translation of the Czech appellation of origin, the applicant argued that the 1986 Agreement applied only to translations between Portuguese and Czech, not into any other languages. It submitted, lastly, that a formal defect in the 1986 Agreement made it unconstitutional, as it had been adopted by the Government, not Parliament, in breach of Articles 161 and 165 of the Constitution governing parliamentary sovereignty.
16. In a judgment of 23 January 2001, which came to the applicant company’s knowledge on 30 January 2001, the Supreme Court dismissed the appeal on points of law.
With regard to the TRIPs Agreement, the Supreme Court began by noting that the provision of that agreement relied on by the applicant company required it to have acted in good faith. However, the applicant company had not indicated in its application for registration any factual element that demonstrated its good faith. In any event, the Supreme Court noted that by virtue of Article 65 of the TRIPs Agreement, it had not become binding under Portuguese law until 1 January 1996, that is to say after the 1986 Agreement had entered into force. The TRIPs Agreement could not, therefore, take precedence over the 1986 Agreement.
As regards the interpretation of the 1986 Agreement, the Supreme Court considered it undeniable that the two contracting States had intended by that agreement to protect, through reciprocal arrangements, their respective national products, including in circumstances in which a translation of the names concerned was used. The appellation of origin “Ceskebudejovicky Budvar”, which translated into German as “Budweis” or “Budweiss”, indicated a product from the České Budějovice region in Bohemia. It was therefore protected by the 1986 Agreement.
Lastly, the procedure whereby the Agreement had been adopted did not contravene Articles 161 and 165 of the Constitution, since it did not concern a sphere that was within the exclusive competence of Parliament.
17. The agreement was signed in Lisbon in 1986 and came into force on 7 March 1987. In a note dated 21 March 1994, the Czech Minister of Foreign Affairs indicated that the Czech Republic would be succeeding Czechoslovakia as a contracting party to the Agreement. The Portuguese Minister of Foreign Affairs agreed thereto on behalf of the Portuguese Republic in a note dated 23 May 1994.
18. Article 5 of the 1986 Agreement provides, inter alia:
“1. If a name or designation protected under this Agreement is used in commercial or industrial activities in breach of the provisions of this Agreement for products ... all judicial or administrative remedies available under the legislation of the Contracting State in which protection is sought to prevent unfair competition or the use of unlawful designations shall, by virtue of the Agreement, be deployed to restrain such use.
2. The provisions of this Article shall apply even when translations of the said names or designations are used...”
Appendix A to the Agreement lists the designations “Ceskobudejovické pivo” and “Ceskebudejovicky Budvarà” among the protected appellations of origin.
19. The Paris Convention of 20 March 1883 for the protection of industrial property, as subsequently revised on numerous occasions (most recently in Stockholm on 14 July 1967, [1972] 828 United Nations Treaty Series, pp. 305 et seq.), to which Portugal, the Czech Republic and the United States of America are parties, sets up a Union for the protection of industrial property, an expression understood to cover industrial designs, trade marks, appellations of origin and indications of source. The purpose of the Paris Convention is to prevent discrimination against non-nationals and it lays down a number of standards of a very general nature dealing with the procedural and substantive aspects of industrial-property law. The Convention enables owners of marks to obtain protection in various member States of the Union through a single registration.
20. The relevant parts of Article 4 of the Paris Convention provide:
“A. (1) Any person who has duly filed an application for ... the registration of ... an industrial design, or of a trademark, in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed.
(2) Any filing that is equivalent to a regular national filing under the domestic legislation of any country of the Union or under bilateral or multilateral treaties concluded between countries of the Union shall be recognized as giving rise to the right of priority.
(3) By a regular national filing is meant any filing that is adequate to establish the date on which the application was filed in the country concerned, whatever may be the subsequent fate of the application.
B. Consequently, any subsequent filing in any of the other countries of the Union before the expiration of the periods referred to above shall not be invalidated by reason of any acts accomplished in the interval, in particular, another filing, ... the use of the mark, and such acts cannot give rise to any third-party right or any right of personal possession. Rights acquired by third parties before the date of the first application that serves as the basis for the right of priority are reserved in accordance with the domestic legislation of each country of the Union
C. (1) The periods of priority referred to above shall be ... six months for industrial designs and trademarks.
...”
21. The Madrid Agreement of 1891 Concerning the International Registration of Marks and the Madrid Protocol of 27 June 1989, establish and govern a system for the international registration of marks that is administered by the International Bureau of the World Intellectual Property Organization (WIPO) in Geneva (Switzerland). The Madrid Agreement was revised in Brussels (1900), Washington (1911), The Hague (1925), London (1934), Nice (1957) and Stockholm (1967). The 1989 Madrid Protocol established the “Madrid Union” composed of the States that were parties to the Madrid Agreement and the contracting parties to the Protocol. Portugal became a party to the Agreement on 31 October 1893. The United States of America have not ratified the Agreement. They ratified the Protocol on 2 November 2003.
22. The system set up by the Madrid Agreement is applicable to the members of the Madrid Union and affords owners of a mark a means of securing protection in various countries through a single application for registration in the national or regional registry. Under the system the registration of an international mark has the same effect in the countries concerned as an application to register the mark or registration of the mark by the owner directly in each individual country. If the trade-mark registry of a member State does not refuse protection within a set period, the mark enjoys the same protection as if it had been registered directly by that registry.
23. The Agreement on Trade-Related Aspects of Intellectual Property Rights (“the TRIPs Agreement”) was concluded in the Uruguay Round of the negotiations that resulted in the signature in April 1994 of the World Trade Organization Agreements in Marrakesh, which came into effect on 1 January 1995.
24. The provisions of the TRIPs Agreement of relevance to the present case are as follows:
“1. In respect of Parts II [standards concerning the availability, scope and use of intellectual property rights], III [enforcement of intellectual property rights] and IV [acquisition and maintenance of intellectual property rights and related inter-partes procedures] of this Agreement, Members shall comply with Articles 1 through 12, and Article 19, of the Paris Convention (1967).
...”
“Where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith either:
(a) before the date of application of these provisions in that Member as defined in Part VI; or
(b) before the geographical indication is protected in its country of origin;
measures adopted to implement this Section shall not prejudice eligibility for or the validity of the registration of a trademark ... on the basis that such a trademark is identical with, or similar to, a geographical indication.”
“Subject to the provisions of paragraphs 2, 3 and 4[, which provide for longer periods], no Member shall be obliged to apply the provisions of this Agreement before the expiry of a general period of one year following the date of entry into force of the WTO Agreement.”
25. In accordance with the relevant international instruments in this sphere, the legislation of most of the member States of the Council Europe regards registration as the corollary to the acquisition of the right to the mark. However, the vast majority of the States also regard the application for registration of the mark as conferring certain rights. In most cases, the date the application is filed is taken as the beginning of the period of validity of the mark once it has been registered (retrospective protection through registration). The date of filing also determines priority in the system of international marks. Lastly, in some countries, an application to register a mark may itself be the subject of provisional registration, while in others it may be the subject of an assignment, security assignment or licence and (provided the mark is subsequently registered) create an entitlement to compensation in the event of fraudulent use by a third party.
26. In most countries, registration is preceded by publication of notice of the application and a procedure whereby interested parties can oppose registration in adversarial proceedings. However, in some countries, registration is automatic if the competent authority is satisfied that the application satisfies the formal and substantive requirements. In both cases, in accordance with the applicable international rules, an action to have a mark revoked or declared invalid may be brought within a set period. Such actions may be based on grounds such as valid prior title, prior application, right to international priority, or a failure to use the mark for a certain period.
27. The substantive and procedural law of industrial property at the material time was contained in two successive Codes of Industrial Property, the first introduced by legislative-decree no. 30679 of 24 August 1940 and the second by legislative-decree no. 16/95 of 24 January 1995. It was the latter (1995) code which was applied by the domestic courts in the instant case.
28. The Code recognised a like right of priority to that set out in the Paris Convention (Article 170). Priority was determined by reference to the date the application for registration was filed (Article 11). By virtue of Articles 29 and 30, the application for registration itself could be the subject of an assignment, with or without consideration, or a licence.
29. Article 189 § 1 (j) laid down that that registration was to be refused if the mark contained “expressions” that contravened domestic legislation. Subparagraph (l) also prohibited registration of a mark that contained elements that were liable to mislead the public.
30. Third parties who claimed that they were adversely affected by the registration of a mark had a right to appeal against the NIIP’s decision within three months from the date it was published (Article 39). The appeal had to be lodged with the Lisbon Civil Court (Article 2). The Code did not state whether such appeals had suspensive effect.
31. In a judgment of 10 May 2001 (Colectânea de Jurisprudência, 2001, vol. III, p. 85), the Lisbon Court of Appeal held that the mere filing of an application for registration conferred on the applicant a “legal expectation” (expectativa jurídica) that warranted the protection of the law. Article 5 of the New Code of Industrial Property, which was introduced by legislative-decree no. 36/2003 of 5 March 2003 and came into force on 1 July 2003, provides “provisional protection” of the mark even prior to registration and the applicant is entitled to bring an action in damages on the basis of that protection.


ITEMID: 001-72048
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF TRIBUNSKIY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1946 and lives in the town of Dniprodzerzhynsk.
5. In 2000 the applicant instituted proceedings in the Bagaliyskyy District Court of Dniprodzerzhynsk (the “Bagaliyskyy Court”) against the Bagaliyskyy Municipal Housing Enterprise, seeking the recovery of salary arrears.
6. On 18 December 2000 the court found for the applicant and ordered the entity to pay him UAH 2543.49 (around 421 euros – “EUR”).
7. On 23 December 2000 the Bagaliyskyy District Bailiffs’ Service of Dniprodzerzhynsk instituted enforcement proceedings.
8. On 18 June 2002 the Bailiffs’ Service informed the applicant that the judgment was not enforced due to the large number of enforcement proceedings against the debtor and its lack of funds.
9. On 6 June 2002 the Bailiffs’ Service applied to the Bagaliyskyy Court to have the debtor in the enforcement proceedings replaced, as the latter’s property had been transferred to the Dniprodzerzhynsk Housing Municipal Enterprise (the “DHME”) pursuant to the decision of the Dniprodzerzhynsk Town Council.
10. On 17 June 2002 the court granted the request of the Bailiffs’ Service and ruled that the DHME was responsible for the payment of the judgment debt of 18 December 2000 to the applicant.
11. On 29 September 2004 the DHME transferred the amount of the award to the deposit account of the Bailiffs’ Service.
12. On 30 September 2004 the Bailiffs’ Service requested the applicant to provide them with his bank account details in order that they transfer the amount of the award.
13. According to the Government, the applicant failed to provide the Bailiffs with the information requested.
14. The applicant did not contest this submission.
15. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99903
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF FUŞCĂ v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 8
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 5. The applicant was born in 1968 and lives in Câmpulung Muscel.
6. On 16 January 1999, the applicant married O.L.F. The couple had one son, born on 31 July 1999. In March 2005, O.L.F left the couple's home, taking her son with her, and since then both of them have been living with the maternal grandparents.
7. By a judgment of 17 November 2005, the Câmpulung District Court granted the couple's divorce and awarded the mother custody of the child. This judgment was upheld by a decision of the Argeş County Court of 10 April 2006 and by a final decision of the Piteşti Court of Appeal of 28 February 2007. A social investigation conducted in the framework of the divorce proceedings indicated that O.L.F. was not working and was receiving a monthly unemployment allowance of approximately 62 euros a month.
8. On 22 April 2005 the applicant brought an action for the establishment of his rights of contact with the child. The Câmpulung District Court, by a judgment of 9 June 2005, granted the applicant visiting rights for the first two Sundays of each month between certain hours, one week during the summer holidays and three days during the winter holidays. Allowing the applicant's appeal against that judgment, the Argeş County Court, by a decision of 30 September 2005, extended his visiting rights as follows: the first two weeks of each month from 4 p.m. on Friday until 2 p.m. on Sunday, during the summer holidays between 1st and 31st July, and during the winter holidays between 19th and 28th December. By a final decision of the Piteşti Court of Appeal of 19 January 2006, following the mother's appeal on points of law, the applicant's visiting rights were limited during the summer holidays to the period from 1st to 15th July and during the winter holidays to the period from 19th to 24th December and remained unchanged in respect of the weekends.
9. Faced with his ex-wife refusal to allow him to visit the child during the prescribed periods, on 8 December 2005 the applicant lodged an application with the bailiff for enforcement of the judgement of 9 June 2005. On the same date the bailiff sent a request to the Câmpulung District Court to issue an interlocutory order to have the said judgement declared enforceable. On 14 December 2005, the district court allowed the request.
10. Subsequently, the bailiff initiated the enforcement actions, by issuing a first summons to O.L.F. on 21 December 2005. Official records drawn up by the bailiff during the period from January to July 2006 record attempts to enforce the contact rights defined by the judgement of 9 June 2005 and modified by the final decision of 19 January 2006.
11. On 6 January 2006 the mother and the child were not present at their home and the bailiff issued a new summons for 13 January 2006. On that date the mother allowed the applicant to see the child at her home and refused to let the child leave the house, declaring that an appeal against the decision of 30 September 2005 was pending.
12. On 3 and 10 February and 3 March 2006, the mother was not at home and the grandparents refused to hand over the child, claiming that they had not received a copy of the final decision. On these occasions the bailiff issued a summons to the mother to comply with the judgment granting the applicant visiting rights.
13. Meanwhile, on 17 February 2006, the applicant lodged a new request for enforcement of the final decision of 19 January 2006. On 24 February 2006, the district court allowed the request and declared the said decision enforceable.
14. A new summons was therefore issued on 2 March 2006, inviting O.L.F. to comply with the final decision granting the applicant visiting rights. On 10 March 2006, the bailiff took note that the mother initially refused to hand over the child, stating that he did not want to join his father. She was asked by the bailiff to bring the child to the gate and persuade him to join his father. The child was taken outside into the courtyard and the mother invited the applicant to enter the courtyard and take the child. The applicant requested that the child be brought to the gate, but then the child went back into the house when he heard his mother crying. Then the mother started to reproach the applicant and the bailiff for causing distress to the child.
15. On 10 April 2006, the applicant took the child from kindergarten to his home. O.L.F. lodged a civil action to have the child returned to her. By a decision of 13 April 2006 of the Câmpulung District Court the applicant was ordered to return the child. On 17 April 2006 the same bailiff, accompanied by the mother, summoned the applicant to return the child. The applicant complied but he also requested that O.L.F. respect his right to maintain personal links with the child. On that occasion, the mother undertook to respect his visiting rights.
16. On 12 May and 2 June 2006, the grandparents refused to hand over the child, on the first occasion because he was sick and on the second occasion because he was not at home. The father handed over clothes, toys and fruit for the child. The bailiff gave notice of the fact that a summons would be issued for 9 June 2006 and he reminded the family of the obligation to allow the child to join his father during the period from 1st to 15th July.
17. On 9 June 2006, the mother refused to hand over the child, claiming that he was sick and refusing to bring him outside to talk to his father and to receive the fruit that the applicant had brought for him.
18. On 5 July 2006, the bailiff noted that the grandparents refused to hand over the child, as O.L.F was not at home and the child refused to join his father. The bailiff took note that the applicant did not insist on taking the child against his will.
19. On 12 July 2006, the bailiff reported that the mother wanted to hand over the child but the latter refused to join his father. The child was brought to the gate, but as he was crying and refused to join his father he was taken back into the house. The applicant did not insist on forcing the child to go with him and asked the bailiff to take note of the fact that the mother had not made any effort to persuade the child to join him.
20. On 4 August 2006, the next date for the enforcement of the visiting rights, the bailiff drew up a report which stated that the applicant did not present himself for the appointment and did not contact the bailiff beforehand, leading the latter to assume that the parties had reached an agreement. The bailiff, also taking into account the applicant's refusal to force the child to join him against his will, decided not to pursue the enforcement further until a new enforcement request was made by the applicant.
21. The applicant maintained that he had subsequently made further attempts to visit his child, but in the presence of witnesses, as the bailiff refused to accompany him any more due to the allegedly aggressive attitude of the mother and the grandparents. He also maintained that the procedure with the bailiff had become financially burdensome, especially taking into account the fact that no practical result could be achieved.
22. The applicant further submitted that subsequently he wanted to get information about the school results of the child, but that O.L.F. prevented him from being around the child or his school teacher. He maintains that he tried to meet the child at school or at his house, he brought gifts to him on his birthday on 31 July 2008 and for Christmas, but he was not allowed to see the child and the presents were refused. No supporting documents were submitted to the case file in this respect.
23 Faced with the constant refusal of the mother to comply with the decisions granting him visiting rights, on 15 December 2005 the applicant lodged a first criminal complaint against O.L.F. for noncompliance with measures regarding child custody and visiting rights.
24. On 27 February 2006 criminal investigations were initiated in respect of O.L.F. By a decision of 10 April 2006, the Prosecution Office attached to the Câmpulung District Court terminated the criminal proceedings and imposed on O.L.F. an administrative fine of 300 Romanian lei (RON). This decision was based on the reasoning that during the investigations O.L.F had acknowledged that she had prevented the applicant from meeting his child, but had done so because the judgment awarding him contact rights was not final, since appeal proceedings were still ongoing. The fact that the child did not want to go with his father was also taken into consideration.
25. According to the applicant, a second criminal complaint was lodged on 6 June 2006 and criminal investigations were initiated on 3 July 2006. Following the investigations, on 10 October 2006 the Prosecutor's Office attached to the Câmpulung District Court terminated the criminal proceedings against O.L.F. and imposed on her an administrative fine of RON 400. The prosecutor noted that O.L.F. admitted that the applicant could not see the child, but she submitted that this was mainly due to the child's reluctance. Moreover, O.L.F. did not have a criminal record and the two parents were in a conflict situation. All these elements led the prosecutor to consider that the attitude of O.L.F. did not present the danger to society that a crime would present. This decision was upheld by a resolution of the first prosecutor of 6 November 2006 and by a final decision of the Argeş County Court of 14 May 2007.
26. A third criminal complaint lodged by the applicant on 20 December 2006 was dismissed on 7 February 2007 by a decision of the prosecutor, taking into account that the matters invoked by the applicant had already been examined during the two previous criminal proceedings. From the information available in the case file, it does not appear that the applicant lodged a judicial complaint against the prosecutor's decision.
27. The relevant provisions of the Code of Family and of the Code of Civil Proceedings are stated in the Court's judgement in the case Lafargue v. Romania, (no. 37284/02, §§ 65 and 68-70, 13 July 2006). The role and responsibilities of the local public authorities for social assistance and child protection as well as the relevant provisions of the Law no 272/2004 on child protection are described in the judgement Amanalachioai v. Romania, (no. 4023/04, § 56 and 59, 26 May 2009).
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-95189
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VOLKAN ÖZDEMİR v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1986 and lives in İzmir.
5. On 30 March 2002 the applicant, together with Mr Z.K., was arrested by police officers at the Buca District Security Directorate Security Office and taken into police custody on suspicion of committing robbery.
6. According to the record of the arrest, drafted by three police officers on the same day at 7.10 p.m. and signed by the applicant and Mr Z.K., the police had received information that at about 1 p.m. two persons had been seen trying to break into three different houses in Buca Egekent. A unit was dispatched and at 7 p.m. arrested the suspects, who corresponded to the description given by eyewitnesses; in the course of the arrest, the applicant had sustained various injuries to his knees, back and forehead since he had fallen on stony ground while he was running.
7. On the same day (30 March 2002) at 7.30 p.m. an eyewitness identified the applicant and Mr Z.K. in the course of an identification parade.
8. According to a verbatim report, the applicant was not questioned since he was a minor.
9. In the application form the applicant submitted, in great detail, that he had been subjected to various forms of ill-treatment while he was held in police custody. In particular, he submitted that he had been taken to an interrogation room where one part of the wall was covered with sponge and that the officers had hit his head against this wall. He claimed that, in this room, he had been beaten and threatened, for example with electric shocks, by four plain-clothed police officers. He stated that, although he was blindfolded, he was able to see at one point and recognised them from their voices. The applicant further stated that the officers had later made him take a cold shower, stripped him naked and tied his hands. He claimed that all this had taken place at Buca central police station and not at the Ş. Çoşkun Erçin police station, where he had been taken for certain procedures before being brought before the court.
10. At 7.45 p.m. the applicant was examined by a doctor at the Buca medical clinic, Mr O.T., who found that he had a 1.5 cm slight skin lesion and oedema on his head, an elliptical area of redness of around 8 cm in the middle of his back resulting from rubbing or hitting, a slight bruise on the back towards the right shoulder and a slight abrasion on the right knee due to rubbing.
11. On 31 March 2002, at 2.35 p.m., the applicant was examined by a doctor, Mr B.G., at the Buca medical clinic, who found that he had an old bruise of 6 cm by 7 cm in the middle of his back. The doctor considered it to be around seven to eight days old.
12. According to the undated rights of suspects and accused form signed by the applicant and a police officer at the Ş. Çoşkun Erçin police station, the latter was arrested at 7 p.m. However, according to the transfer/release form, dated 31 March 2002, the applicant was arrested by the İzmir Buca Juvenile Service on 30 March 2002 at 1.30 p.m. and released on 31 March 2002 at 4 p.m. According to a report (fezleke) prepared by the police, on 31 March 2002, the applicant and Mr Z.K. were arrested at 7.10 p.m. by police officers from Buca Security Office (Asayiş Bürosu). In this report it is stated that at 2.56 p.m. on 30 March 2002 Ms E.C. arrived at the police station to complain about the theft.
13. It appears that on 31 March 2002 the police attempted to bring the applicant before the prosecutor and a judge. However, since it was too late, the prosecutor ordered the applicant to be brought before him early the next day. The applicant was transferred to the İzmir Buca Juvenile Service to be detained.
14. On 1 April 2002 the applicant was first brought before the İzmir public prosecutor’s office and later before the İzmir Magistrates’ Court, where he denied the accusations against him. The applicant was represented by a lawyer appointed by the Bar. The court remanded him in custody.
15. On 8 April 2002 the İzmir public prosecutor filed a bill of indictment with the İzmir Criminal Court of First Instance, accusing the applicant and Mr Z.K. of theft on 6 February 2002 and of attempted theft on 30 March 2002 in three different houses. The charges were brought under Articles 493 and 522 of the Criminal Code.
16. Criminal proceedings were instigated against the applicant and Mr Z.K. before the İzmir Criminal Court of First Instance. At the hearing held on 29 April 2002 the applicant stated that he did not know what Mr Z.K. had been doing during the first attempted theft and had only understood during the second attempted theft. The applicant, who was represented by a lawyer, maintained that he had never entered anyone’s house or stolen anything and that at the time of the events, once he had understood what his friend was doing during the second attempted theft, on being told to run he had done so. The court ordered the release of Mr Z.K. and the applicant pending trial.
17. On 20 May 2002 the applicant filed an official complaint with the İzmir public prosecutor’s office against eight police officers, whom he believed to be working at the Ş. Çoşkun Erçin police station. In his complaint, the applicant submitted that at that police station he had received punches and kicks to his stomach, his head had been hit against a wall and he had been stripped naked, hosed with cold water, threatened with electric shocks and made to wait in the cold. He further complained that he had been unlawfully deprived of his liberty, since he had been arrested at 1.30 p.m. on 30 March 2002 but brought before a judge only on 1 April 2002.
18. On 23 August 2002 the İzmir public prosecutor Mr C.Ç. decided not to prosecute three police officers from the Ş. Çoşkun Erçin police station, two police officers from the Buca Juvenile Service and three police officers from the Buca Security Office on the ground that there was no evidence to substantiate the applicant’s allegations of ill-treatment. In particular, the prosecutor, referring to the record of the arrest, considered that the findings of the medical report were consistent with the injuries sustained by the applicant when he had fallen during his arrest. He further noted that the medical report had stated that these bruises were old.
19. On 23 December 2002 the applicant objected to the above decision.
20. On 6 January 2003 the Karşıyaka Assize Court dismissed the applicant’s objection concerning the alleged ill-treatment. In this connection, it held that, apart from the bruises sustained by the applicant while he had been running from the police and had fallen, there was no physical evidence of ill-treatment. On the other hand, it upheld the applicant’s objection regarding his deprivation of liberty on the ground that the applicant – a minor – had been brought before the prosecutor at 7.45 p.m. on 31 March 2002, whereas the prosecutor had asked at 1 p.m. that he be brought before him immediately. The court therefore decided that criminal proceedings should be instigated against the police officers for abuse of their position. That decision was served on the applicant’s lawyer on 21 January 2003.
21. In the meantime the Security Directorate initiated a disciplinary inquiry into the applicant’s allegations of wrongful deprivation of liberty as regards the length of his detention. On 10 September 2003 the Disciplinary Board, relying on the evidence in the case file, including the statements by the applicant and his mother, found that there was no need to impose a disciplinary penalty on the eight accused police officers from the İzmir Security Directorate. That decision was served on the applicant’s lawyer on 21 January 2003.
22. At a hearing held on 29 March 2004 the first-instance court heard evidence from the applicant. He submitted that he had been beaten at the police station by one dark-skinned police officer and that there had been others next to him. The applicant asserted that if he saw them he would be able to recognise them. He further stated that he had not lodged a complaint against the police officers.
23. In 2006 the first-instance court acquitted the police officers. The applicant appealed. The case is pending before the Court of Cassation.
24. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Okkalı v. Turkey (no. 52067/99, §§ 47-52, ECHR 2006-XII (extracts)), and Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96-100, 2004IV (extracts)).
VIOLATED_ARTICLES: 3


ITEMID: 001-90671
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BURDOV v. RUSSIA (No. 2)
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court;Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court;Reasonable time);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Respondent State to take individual measures (Article 46 - Pilot judgment;Individual measures);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant, Mr Anatoliy Tikhonovich Burdov, is a Russian national who was born in 1952 and lives in Shakhty, in the Rostov region of the Russian Federation.
7. On 1 October 1986 the applicant was called up by the military authorities to take part in emergency operations at the site of the Chernobyl nuclear plant disaster. The applicant was engaged in the operations until 11 January 1987 and, as a result, suffered from extensive exposure to radioactive emissions. He is entitled to various social benefits in this connection.
8. Considering that the competent State authorities failed to pay these benefits in full and in due time, the applicant repeatedly sued them in domestic courts from 1997 onwards. The courts repeatedly granted the applicant’s claims but a number of their judgments remained unenforced for various periods of time.
9. On 20 March 2000 the applicant first complained before the Court about non-enforcement of domestic judicial decisions (application no. 59498/00). In its judgment of 7 May 2002, the Court found that the Shakhty City Court’s decisions of 3 March 1997, 21 May 1999 and 9 March 2000 had remained unenforced wholly or in part at least until 5 March 2001, when the Ministry of Finance took the decision to pay in full the debt owed to the applicant. The Court accordingly held that there had been violations of Article 6 of the Convention and of Article 1 of Protocol No. 1 on account of the authorities’ failure for years to take the necessary measures to comply with these decisions (see Burdov v. Russia, no. 59498/00, §§ 37-38, ECHR 2002III).
10. Under the terms of Article 46 § 2 of the Convention, the Court’s judgment of 7 May 2002 in Burdov was transmitted to the Committee of Ministers for the supervision of its execution. The Committee invited the Government to inform it of the measures which had been taken in consequence of the Court’s judgment of 7 May 2002, having regard to the Russian Federation’s obligation under Article 46 § 1 to abide by it. On 22 December 2004 the Committee adopted Resolution ResDH(2004)85 in this case. The measures taken by the Russian authorities were summarised by the Government in the Appendix to this Resolution:
“... With regard to individual measures, the amounts due under the domestic judicial decisions were paid to the applicant on 5 March 2001. ... Subsequently, a fresh indexation of the monthly allowance was ordered by the Shakhty City Court on 11 July 2003 (final on 1 October 2003). The social authorities continue to comply with the domestic judicial decisions by regularly paying the sums awarded.
In addition, the following general measures were adopted by the Russian authorities to comply with the European Court’s judgment.
(a) Resolving similar cases
At the outset, the government paid the arrears accumulated as a result of the non-execution, as in the present case, of domestic judgments ordering the payment of compensation and allowances for the Chernobyl victims in the applicant’s position (a total of 2,846 million Russian roubles were paid between January and October 2002).
5,128 other domestic judgments concerning the indexation of the allowances for the victims of Chernobyl were executed by the authorities.
The government has also improved its budgetary process to ensure that the necessary budgetary means are allocated to social security bodies (2,152,071,000 Russian roubles were allocated for 2003, 2,538,280,500 Russian roubles for 2004, and 2,622,335,000 for 2005) to allow them continuously to meet their financial obligations arising, inter alia, from similar judgments. ...
(b) New indexation system introduced through legislation
As regards the obligation of continuous indexation of the amounts awarded by domestic courts, the legislation in force at the relevant time provided for the cost of living as an index for the calculation of allowances. By a decision of 19 June 2002, the Constitutional Court declared the relevant legislative provisions unconstitutional, in so far as this system was found to lack clarity and predictability; in this decision, the Constitutional Court referred, inter alia, to the conclusions of the European Court in the Burdov judgment. Consequently, on 2 April 2004, the Russian Parliament amended the legislation governing the social insurance of Chernobyl victims. The new law, which has been in force since 29 April 2004, provides for a new system of indexation of allowances, which is based on the inflation rate used for the calculation of the federal budget for the next financial year.
(c) Publication and dissemination of the judgment
The European Court’s judgment in [the] Burdov case has been published in Rossijskaia Gazeta (on 4 July 2002), the main official periodical publishing all laws and regulations of the Russian Federation and widely disseminated to all authorities. The judgment has also been published in a number of Russian legal journals and Internet databases, and is thus easily available to the authorities and the public.
(d) Conclusion
In view of the foregoing, the Russian government considers that the measures adopted following the present judgment will prevent new similar violations of the Convention in respect of the category of persons in the applicant’s position and that the Russian Federation has thus fulfilled its obligations under Article 46 § 1 of the Convention in the present case.
The government also believes that the measures adopted constitute, moreover, a noticeable step towards resolving the more general problem of non-enforcement of domestic court decisions in various areas, as highlighted in particular by other cases brought before the European Court against the Russian Federation. The government continues to take measures to remedy this problem, not least in the context of the execution, under the Committee’s supervision, of other judgments of the European Court.”
11. The Committee of Ministers was satisfied that on 16 July 2002, within the time-limit set, the Government had paid the applicant the sum of just satisfaction provided for in the judgment of 7 May 2002. It further noted, in particular, the measures taken in respect of the category of persons in the applicant’s position. Having regard to all the measures adopted, the Committee concluded that the Government had exercised its functions under Article 46 § 2 of the Convention in this case. The Committee noted at the same time that the more general problem of non-execution of domestic court decisions in the Russian Federation was being addressed by the authorities, under the Committee’s supervision, in the context of other pending cases.
12. On 17 April 2003 the Shakhty City Court ordered the Directorate of Labour and Social Development (Управление труда и социального развития) of Shakhty to pay the applicant 15,984.80 Russian roubles (RUB) as compensation for delays in payment of benefits in accordance with Article 208 of the Code of Civil Procedure. On 9 July 2003 the judgment was upheld by the Rostov Regional Court and became final.
13. During 2003-05 the applicant consecutively submitted the writ of execution to the defendant authority, to bailiffs, to the Federal Treasury and then again to the defendant authority. On 19 August 2005 the authorities transferred the amount of the court’s award to the applicant’s account.
14. On 4 December 2003 the Shakhty City Court ordered the Directorate of Labour and Social Development to pay the applicant RUB 68,463.54 as default interest for delays in payments between 1999 and 2001, in accordance with the Compulsory Social Insurance Act 1998 (no.125-ФЗ). The judgment was not appealed against and became final on 15 December 2003.
15. According to the applicant, he submitted the writ for execution to the respondent department on the same date. On an unspecified date the writ was submitted to the Shakhty Bailiffs’ Department; the latter decided on 30 June 2004 that the judgment was impossible to enforce as the debtor’s possessions could not be seized.
16. On 14 November 2005 the Shakhty City Court granted the defendant authority’s request for correction of an arithmetic error and reduced the award to RUB 68,308.42. On 9 March 2006 the same court granted the applicant’s request for correction of an arithmetic error and ordered the defendant authority to pay the applicant RUB 108,251.95. On 18 October 2006 the authorities paid the latter amount to the applicant.
17. On 24 March 2006 the Shakhty City Court ordered the Department of Labour and Social Development (Департамент труда и социального развития) of Shakhty to index-link the monthly food allowance due to the applicant as of 1 January 2006. The court set the amount of monthly payments at RUB 1,183.73 with subsequent indexation and ordered a one-off payment of RUB 36,877.06 for compensation for shortfalls in previous monthly payments. In addition, as of 1 January 2006 the Department was ordered to proceed with monthly payments of RUB 1,972.92 with subsequent indexation in respect of compensation for health damage. The court further ordered the defendant authority to pay the applicant RUB 4,980.24 and RUB 13,312.46 as compensation for shortfalls in monthly payments made between 2000 and 2005 for health damage and food allowance respectively and an additional indexation payment of RUB 1,652.35 for health damage. On 22 May 2006 the judgment was upheld by the Rostov Regional Court and became final.
18. On 20 July 2007 the Shakhty City Court corrected an arithmetic error in its judgment and changed the initially awarded amount of RUB 4,980.24 to RUB 5,222.78.
19. On 2 November 2006 the judgment of 24 March 2006 was executed in its major part: a total of RUB 67,940.56 was credited to the applicant’s account. At the same time, the Ministry of Finance did not upgrade the monthly payments as ordered by the court’s judgment and the applicant continued to receive such payments at a lower level. On 1 July 2007 the Ministry decided to upgrade them. On 17 August 2007 the applicant received RUB 9,112.26 as compensation for shortfalls in monthly payments accumulated until that date.
20. On 22 May 2007 the Shakhty City Court decided that the Department of Labour and Social Development was to pay the applicant as of 1 June 2007 the amount of RUB 17,219.43 monthly, with subsequent indexation, in respect of compensation for health damage. In addition, the Department was to pay the applicant RUB 188,566 as compensation for shortfalls in previous monthly payments. The judgment was not appealed against and became final on 4 June 2007. It was enforced on 5 December 2007.
21. On 21 August 2007, the Shakhty City Court ordered the Federal Labour and Employment Agency to pay the applicant RUB 225,821.73 as compensation for certain delayed payments in respect of health damage between 2000 and 2007. The judgment was not appealed against and became final on 3 September 2007. It was enforced on 3 December 2007.
22. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 (no. 119-ФЗ), as in force at the material time, provided that a bailiff was to set a time-limit of up to five days for the defendant’s voluntary compliance with a writ of execution. The bailiff was also to warn the defendant that coercive action would follow should the defendant fail to comply with the time-limit. Under section 13 of the Law, the enforcement proceedings had to be completed within two months of the receipt of the writ of execution by the bailiff.
23. In 2001-05 the judgments delivered against the public authorities were executed in accordance with a special procedure established, inter alia, by the Government’s Decree no. 143 of 22 February 2001 and, subsequently, by Decree no. 666 of 22 September 2002, entrusting execution to the Ministry of Finance (see further details in Pridatchenko and Others v. Russia, nos. 2191/03, 3104/03, 16094/03 and 24486/03, §§ 33-39, 21 June 2007). By a judgment of 14 July 2005 (no. 8-П), the Constitutional Court considered certain provisions governing the special execution procedure to be incompatible with the Russian Constitution. Following the judgment, the Law of 27 December 2005 (no. 197-ФЗ) introduced a new Chapter in the Budget Code modifying this special procedure. The Law notably empowered the Federal Treasury to execute judgments against legal entities funded by the federal budget and the Ministry of Finance to execute judgments against the State. Under Article 242 § 2 (6) of the Budget Code, the judgments must be executed within three months after receipt of the necessary documents.
24. Further special procedures governing payment of social benefits to persons who suffered from exposure to radioactive emissions in the Chernobyl disaster were set by Law no. 1244-1 of 15 May 1991 with subsequent amendments and by the Government’s Decrees no. 607 of 21 August 2001, no. 73 of 14 February 2005 and no. 872 of 30 December 2006. In 2002-04 compensation for health damage was ensured by the Ministry of Labour within the limits of the budgetary allocations provided for the relevant fiscal year. In 2005-06 such compensation was ensured by territorial departments of the Federal Labour and Employment Agency and in 2007-08 by the Agency itself on the basis of registers submitted by social welfare bodies and within the limits of the budgetary allocations provided to that effect.
25. The 2007 Activities Report of the Commissioner for Human Rights of the Russian Federation pointed out that the perception of domestic judgments as what one might call “non-compulsory recommendations” was still a widespread phenomenon not only in society but also in State bodies. It noted that the non-enforcement problem had also arisen in respect of judgments of the Constitutional Court. According to the report, the problem had been discussed between December 2006 and March 2007 at special meetings in all federal circuits involving regional authorities and representatives of the President’s Administration. An idea thus emerged of setting up a national filter mechanism that would allow for examination of Convention complaints at the domestic level. The Commissioner concluded that joint efforts should be deployed with a view to eliminating the roots of the problem rather than simply reducing the number of complaints.
26. Chapter 25 of the Code of Civil Procedure provides a procedure for challenging State authorities’ acts or inaction in courts. If a court finds that the complaint is well-founded, it orders the State authority concerned to remedy the breach or unlawfulness found (Article 258).
27. Article 208 of the Code of Civil Procedure provides for “indexation” of judicial awards: the court which made the award may upgrade it upon a party’s request in line with the increase in the official retail price index until the date of effective payment. Default interest and other compensation for pecuniary damage may in addition be recovered from the debtor for non-compliance with a monetary obligation and use of another person’s funds (Article 395 of the Civil Code).
28. Damage caused by unlawful action or inaction of State or local authorities or their officials is subject to compensation from the Federal Treasury or a federal entity’s treasury (Article 1069). Compensation for damage caused to an individual by unlawful conviction, prosecution, detention on remand or prohibition on leaving his or her place of residence pending trial is granted in full regardless of the fault of the State officials concerned and following the procedure provided for by law (Article 1070 § 1). Damage caused by the administration of justice is compensated if the fault of the judge is established by a final judicial conviction (Article 1070 § 2).
29. A court may hold the tortfeasor liable for non-pecuniary damage caused to an individual by actions impairing his or her personal non-property rights or affecting other intangible assets belonging to him or her (Articles 151 and 1099 § 1). Compensation for non-pecuniary damage sustained through an impairment of an individual’s property rights is recoverable only in cases provided for by law (Article 1099 § 2 of the Civil Code). Compensation for non-pecuniary damage is payable irrespective of the tortfeasor’s fault if damage was caused to an individual’s life or limb, sustained through unlawful criminal prosecution, dissemination of untrue information and in other cases provided for by law (Article 1100 of the Civil Code).
30. Article 315 of the Criminal Code provides for sanctions for persistent failure by any State official or civil servant to comply with a judicial decision that has entered into legal force. The sanctions include a fine, temporary suspension from service, community service (обязательные работы) for a maximum term of 240 hours or deprivation of liberty for a maximum term of two years.
31. By Ruling no. 1-P of 25 January 2001, the Constitutional Court found that Article 1070 § 2 of the Civil Code was compatible with the Constitution in so far as it provided for special conditions on State liability for damage caused by the administration of justice. It clarified, nevertheless, that the term “administration of justice” did not cover judicial proceedings in their entirety but only judicial acts touching upon the merits of a case. Other judicial acts – mainly of a procedural nature – fell outside the scope of the notion “administration of justice”.
32. State liability for the damage caused by such procedural acts or failures to act, such as a breach of the reasonable time for court proceedings, could arise even in the absence of a final criminal conviction of a judge if the fault of the judge had been established in civil proceedings. The Constitutional Court emphasised, however, that the constitutional right to compensation by the State for the damage should not be tied in with the individual fault of a judge. An individual should be able to obtain compensation for any damage incurred through a violation by a court of his or her right to a fair trial within the meaning of Article 6 of the Convention.
33. The Constitutional Court held that Parliament should legislate on the grounds and procedure for compensation by the State for the damage caused by unlawful acts or failures to act of a court or a judge and determine territorial and subject matter jurisdiction over such claims.
34. On 26 September 2008 the Plenum of the Supreme Court adopted a decision (no. 16) to submit to the State Duma of the Russian Federation a draft constitutional law on compensation by the State of damage caused by violations of the right to judicial proceedings within a reasonable time and of the right to the execution within a reasonable time of judicial decisions that have entered into legal force (hereinafter “the Compensation Bill”). The Supreme Court also decided to submit to the State Duma a second draft law introducing changes in certain legal acts in connection with the adoption of the Compensation Bill. Both drafts were formally tabled in the State Duma on 30 September 2008.
35. The purpose of the Compensation Bill is to set up in Russia a domestic legal remedy in respect of violations of the rights to judicial proceedings within a reasonable time and to the execution of an enforceable judicial decision within a reasonable time (section 1(1)). It is also provided that the applicants in cases which have not yet been declared admissible by the Court may apply for compensation of damage under the Bill within six months after its entry into force planned for 1 January 2010 (section 19). The Bill empowers courts of general jurisdiction to consider cases brought against the State on alleged violations of the above-mentioned rights (section 3(1)) and provides for specific rules to govern the proceedings in such cases. The State is represented in the proceedings by the Ministry of Finance (section 3(3)). The latter has to prove that there was no violation of the reasonable-time requirement, while the plaintiff has to prove the existence of pecuniary damage (section 11(1)). To decide a case, the court assesses its complexity, the behaviour of the parties and other actors in the proceedings, and the acts or inaction of judicial or prosecution authorities, the parties to enforcement proceedings or the enforcement authorities. The court also assesses the duration of the violation and the importance of its consequences for the person affected (section 12). If the court finds a violation, it makes a monetary award for damage to be determined taking account of the e Convention standards (section 14). The court may take a separate decision finding a breach of law by a court or State official and order specific procedural actions to be taken, with a request to report back within a month (section 15).
36. The Supreme Court’s explanatory memorandum sets out the needs for additional budgetary allocations to ensure the implementation of the Compensation Bill. The average compensation per case is estimated at 3,050 euros (EUR) having regard to the fact that the just satisfaction amounts awarded by the European Court of Human Rights in non-enforcement cases have usually ranged between EUR 1,200 and EUR 4,900.
37. The second draft law introduces amendments to other legal acts. Under new Article 1070 § 1 of the Civil Code, damage caused by violations of the reasonable-time requirement by State authorities in judicial proceedings or in the execution of judgments is compensated from the Federal Treasury. Under new Article 242 § 2 of the Budget Code, judicial decisions granting such compensation must be enforced within two months.
38. In his Address to the Federal Assembly delivered on 5 November 2008, the President of the Russian Federation stated in particular that it was necessary to establish a mechanism for compensation of damage caused by violations of citizens’ rights to trial within a reasonable time and to the full and timely implementation of court decisions. The President stressed that the execution of court decisions was still a huge problem, which concerned all courts, including the Constitutional Court. He further stated that the problem was notably due to the lack of real accountability of officials and citizens who fail to execute court decisions and that this accountability was to be established.
39. On 3-5 December 2007 the Committee of Ministers resumed consideration under Article 46 § 2 of the Convention of the group of the Court’s judgments against Russia concerning failure to enforce or delays in the enforcement of domestic judgments (Timofeyev and Others, CM/Del/OJ/DH(2007)1013). The following decision was adopted by the Committee on 19 December 2007 (CM/Del/Dec(2007)1013 FINAL):
“The Deputies, ...
1. recalled that these judgments reveal various structural problems in the Russian legal system which, by their nature and scale, severely affect its effectiveness and cause very numerous violations of the Convention an increasing number of which are complained of before the Court;
2. took note, with interest, of various measures adopted or being taken by certain competent authorities to prevent new similar violations and to remedy those that have already occurred by setting up or improving appropriate domestic procedures, measures which remain to be taken;
3. emphasised anew that the problems revealed by the judgments require urgent solutions in order to ensure that the relevant Convention rights are adequately protected at the domestic level, thus preventing an exceedingly high number of similar applications to the Court;
4. invited the competent authorities to continue bilateral consultations with the Secretariat with a view to establishing a proper strategy for adoption of the necessary measures, including the setting up of effective domestic remedies;
...”
40. The problems underlying the non-enforcement of domestic judgments in Russia and various measures taken or considered by the authorities in the context of the implementation of the Court’s judgments were addressed in detail in the Committee of Ministers’ documents CM/Inf/DH(2006)45 of 1 December 2006 and CM/Inf/DH(2006)19 rev3 of 4 June 2007. The latter document presented the progress so far achieved by the Russian authorities, pointed at a number of outstanding questions and proposed further measures, with a view to a comprehensive solution of the problem. The main avenues of action proposed were summarised as follows (see CM/Inf/DH(2006)19 rev3, cited above, p. 1):
“– Improvement of budgetary procedures and of practical implementation of the budget decisions;
– Identifying a specific State authority as a defendant;
– Ensuring effective compensation for delays (indexation, default interest, specific damages, penalties for delays);
– Increasing the effectiveness of domestic remedies for proper enforcement of judicial decisions;
– Improvement of the legal framework governing compulsory execution against the public authorities;
– Ensuring effective liability of civil servants for non-enforcement;
Special consideration is given to possible ways of ensuring coherence of the present execution mechanisms by allowing the Treasury and the bailiffs to act in a complementary manner in their respective fields of competence and under appropriate judicial review. A strong emphasis is also put on possible ways of preventing litigation against the State through improved budgetary proceedings, which would allow the State to timely comply with its pecuniary obligations.”
41. In Recommendation Rec(2004)6 to member States on the improvement of domestic remedies adopted on 12 May 2004, the Committee of Ministers recommended, inter alia:
“... that member States ... review, following Court judgments which point to structural or general deficiencies in national law or practice, the effectiveness of the existing domestic remedies and, where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court ...”
42. The Appendix to the Recommendation further stated, inter alia:
“Remedies following a ‘pilot’ judgment
13. When a judgment which points to structural or general deficiencies in national law or practice (‘pilot case’) has been delivered and a large number of applications to the Court concerning the same problem (‘repetitive cases’) are pending or likely to be lodged, the respondent State should ensure that potential applicants have, where appropriate, an effective remedy allowing them to apply to a competent national authority, which may also apply to current applicants. Such a rapid and effective remedy would enable them to obtain redress at national level, in line with the principle of subsidiarity of the Convention system.
14. The introduction of such a domestic remedy could also significantly reduce the Court’s workload. While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter, there may exist a category of people who have already been affected by this problem prior to its resolution. ...
...
16. In particular, further to a pilot judgment in which a specific structural problem has been found, one alternative might be to adopt an ad hoc approach, whereby the State concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation.
...
18. When specific remedies are set up following a pilot case, governments should speedily inform the Court so that it can take them into account in its treatment of subsequent repetitive cases.”
43. In Resolution 1516 (2006) on implementation of judgments of the European Court, adopted on 2 October 2006, the Parliamentary Assembly noted with grave concern the continuing existence in several States of major structural deficiencies which cause large numbers of repetitive findings of violations of the Convention and represent a serious danger to the rule of law in the States concerned. The Assembly listed among those deficiencies some major shortcomings in the judicial organisation and procedures in the Russian Federation, including chronic non-enforcement of domestic judicial decisions delivered against the State (see paragraph 10.2 of the Resolution). The Assembly urged the authorities of the States concerned, including the Russian Federation, to resolve the issues of particular importance mentioned in the Resolution and to give this action top political priority.
44. In the report of the Committee on Legal Affairs and Human Rights, the rapporteur, Mr Erik Jurgens, called for an urgent solution to the above-mentioned problems as they affect a very large number of people in Russia. He also warned that the influx of numerous clone cases in the Court was likely to undermine the effectiveness of the Convention mechanism (Doc. 11020). He further stated:
“ 58. The rapporteur welcomes the frank and open position of most of the Russian officials and institutions he met in Moscow as well as their clear understanding that the above problems put at stake the effectiveness of the Russian judicial system, and indeed, of the State as a whole. It is perhaps indicative that especially the presidents of the Constitutional Court and of the Supreme Court showed a very constructive attitude, as both of them recognised the problems and encouraged the rapporteur in his endeavours to help find a solution for them.
59. The authorities provided assurances that the most important problems would be addressed as a matter of priority and that appropriate steps would be taken to ensure rapid adoption of reforms required by the European Court’s judgments.
60. The Russian officials’ clear willingness to come to grips with the above-mentioned important problems is most welcome. The rapporteur stresses that the complexity of these issues is such as to require enhanced and concerted efforts of all actors within the Russian legal system.
61. Thorough reform strategies in this respect, however, still remain to be established. In view of the present problems raised in the judgments and others still to come, the rapporteur has strongly recommended to the authorities to set up a special mechanism of interagency cooperation in the implementation of Strasbourg Court judgments. Constant involvement of Parliament and the Russian delegation to the Assembly in the implementation process is also necessary. The rapporteur is convinced that his Russian parliamentary colleagues will seriously consider his recommendation to set up a specific mechanism and procedure for parliamentary oversight to implement Strasbourg Court judgments, as well as other relevant proposals made in the draft resolution. The rapporteur also trusts that the members of the Russian delegation to the Assembly will promote and follow up the adoption of the specific measures required by certain judgments (for details, see Appendix III, Part III).”
45. In the preliminary observations following a visit to Russia from 19 to 29 May 2008, the United Nations special rapporteur on the independence of judges and lawyers, Mr Leandro Despouy, voiced “important concerns at the fact that an important percentage of judicial decisions, including those against State officials, were not implemented”. He added that “problems with the implementation of judicial decisions in Russia had contributed to the poor image of the judiciary in the eyes of the population”.
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1
NON_VIOLATED_ARTICLES: 6
P1
NON_VIOLATED_PARAGRAPHS: 6-1
P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-100307
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF RUMPF v. GERMANY
IMPORTANCE: 2
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1951 and lives in Ingelheim.
7. Since 1979 the applicant has operated a personal security service (Personenschutzunternehmen).
8. On 1 June 1992 he lodged an application for gun licences (waffenrechtliche Erlaubnis) with the county of Querfurt (Saxony-Anhalt), which was granted. Subsequent requests for a renewal of these licences in May and October 1993 were only provisionally granted and were finally dismissed on 23 November 1993.
9. On 30 November 1993 the applicant lodged an administrative appeal (Widerspruch) against the decision of 23 November 1993, which was dismissed on 18 March 1994.
10. The applicant also applied to the Administrative Court for interim measures. This application was dismissed in January 1994, which decision was confirmed on appeal by the Administrative Court of Appeal in August 1994.
11. On 22 April 1994 the applicant brought an action with Halle Administrative Court, initially without detailed reasoning.
12. On 30 June 1994 the statement of defence and the administrative files were submitted to the court. On 7 October 1994 the applicant appointed additional legal counsel, who resigned again in November 1994.
13. In June 1995 Halle Administrative Court ordered the applicant to reason his action within six weeks. After the applicant's lawyer had twice requested an extension of the time-limit set by the court he submitted the reasoning on 19 September 1995. In October 1995 the applicant appointed additional legal counsel.
14. On 5 March 1996 Halle Administrative Court scheduled a hearing for 11 April 1996, which was subsequently rescheduled for 30 May 1996 upon the defendant's request.
15. After the hearing on 30 May 1996 the judgment was delivered and on 4 and 5 July 1996 served on the applicant's counsel.
16. On 22 July 1996 the applicant appealed the judgment. On 5 August 1996 the files were transferred to the Administrative Court of Appeal. On 22 October 1996 the reasoning of the appeal was submitted. On 23 December 1996 and 21 February 1997 answers to the appeal were lodged.
17. On 2 July 1997 the Administrative Court of Appeal informed the applicant's counsel, at his request, that it was not foreseeable when a decision would be rendered.
18. On 10 September 1998 a hearing was scheduled for 18 November 1998. On 10 November 1998, after inspection of the files, the applicant's counsel informed the Administrative Court of Appeal that the files were incomplete. On the same day the court started an enquiry in this respect and informed counsel on 12 November 1998 that its investigations had been to no avail. On 16 November 1998 the applicant's counsel asked for the hearing to be postponed in order for the missing files to be reassembled. On 18 November 1998 the hearing took place; however, the case was adjourned.
19. On 8 December 1999 the Administrative Court of Appeal requested the missing files from the administrative authorities without success. In January and March 2000 the applicant's counsel enquired about the state of the proceedings. On 3 August 2000 the Administrative Court of Appeal requested the files from Halle Administrative Court, without success. On 29 May 2001 the court informed counsel that its efforts to locate the missing files had failed and that a hearing was planned for July 2001.
20. On 12 June 2001 a hearing was scheduled for 12 July 2001. On 9 July 2001 the applicant's counsel asked for the hearing to be postponed because he had not yet been able to reassemble the missing documents. The hearing was subsequently cancelled.
21. On 30 October 2002 new counsel for the applicant requested a hearing and repeated this request on 4 December 2002. On 13 February 2003 counsel again asked for an oral hearing to be scheduled and promised to try to reassemble the missing documents. On 18 March 2003, after counsel had inspected the files in early March, he informed the court that he did not deem the missing documents relevant and requested a hearing.
22. On 29 April 2003 the applicant's former counsel applied for legal aid. On 9 May 2003 the applicant's current counsel filed a motion for bias against the presiding judge because no hearing had been scheduled. On 9 July 2003 he enquired about the state of the proceedings.
23. On 30 July 2003 the court asked for a clarification of the applicant's representation and ordered the applicant's counsel to submit a power of attorney, which he submitted on 5 August 2003. On 19 September 2003 the applicant's counsel again enquired about the state of the proceedings. On 21 October 2003 the court asked whether a hearing could be scheduled for 11 December 2003. The parties agreed. On 3 December 2003 the court informed the parties that because of the motion for bias the hearing could not be held on the date agreed upon. On 8 December 2003 the motion for bias was dismissed.
24. On 5 February 2004 and 17 March 2004 applicant's counsel renewed his request for a hearing. On 31 March 2004 the request for legal aid was dismissed. On 7 April 2004 a hearing was scheduled for 13 May 2004. After the hearing the Administrative Court of Appeal dismissed the appeal and refused leave to appeal on points of law. On 30 June 2004 the reasoned judgment was served on the applicant's counsel.
25. On 16 September 2004 the applicant's counsel objected to the refusal to grant leave to appeal on points of law. On 5 January 2005 the Federal Administrative Court dismissed the objection; this was served on the applicant's lawyer on 21 January 2005.
26. On 7 March 2005 the applicant brought a constitutional complaint against, inter alia, the decisions of Halle Administrative Court of 30 May 1996, the Saxony-Anhalt Administrative Court of Appeal of 13 May 2004 and the Federal Administrative Court of 5 January 2005, as well as the decisions of the administrative courts with regard to the interim proceedings. He alleged, inter alia, a violation of his right under Article 6 of the Convention because of the length of the proceedings. At the same time he applied for restitutio in integrum because he had failed to comply with the one-month time-limit for constitutional complaints.
27. On 15 March 2005 the Registry of the Federal Constitutional Court informed the applicant about doubts as to the admissibility of his complaint and asked him to indicate within one month whether he wanted to pursue his complaint. On 14 April 2005 the applicant, who had in the meantime retained new counsel, requested an extension of the time-limit until 16 May 2005. In May 2005 the Registry of the Federal Constitutional Court informed the applicant's counsel that the case would not be registered as a case requiring a judicial decision but would remain in the general register until further submissions had been made. On 12 October 2005 counsel of the applicant submitted observations. On 22 November 2005 the case was registered as a case requiring a decision.
28. In a partial decision of 27 April 2006 the Federal Constitutional Court (file no. 1 BvR 2398/05) dismissed the constitutional complaint as inadmissible in part. The remainder, regarding the length of the proceedings, was forwarded to the Ministry of Justice of Saxony-Anhalt for comments on 11 May 2006.
29. On 30 August 2006 the Ministry of Justice of Saxony-Anhalt submitted its comments. On 25 April 2007 the Federal Constitutional Court refused to admit the remainder of the applicant's constitutional complaint for examination without examining the application for restitutio in integrum. On 7 May 2007 the applicant's lawyer received the Federal Constitutional Court's decision.
30. Section 82 of the Administrative Court Rules (Verwaltungsgerichtsordnung) specifies the requirements that every complaint lodged with the administrative court must comply with, one of which is that the facts and evidence on which the complaint is based should be specified. It further provides that the court shall request the applicant to furnish the necessary information within a determined period of time in the event that the complaint does not meet these requirements.
31. Section 86 (1) of the Administrative Court Rules provides that the court shall investigate the facts of its own motion. Furthermore, it is not bound by the submissions or requests of the parties.
32. Further relevant domestic law, applicable mutatis mutandis to proceedings before the administrative courts, is described in the Court's decision of Sürmeli v. Germany (see Sürmeli v. Germany [GC], no. 75529/01, §§ 62-74, ECHR 2006VII); regarding special complaints alleging inaction the Federal Administrative Court explicitly decided on 30 January 2003 (file no. 3 B 8/03) that the Administrative Court Rules do not provide for such a remedy.
33. The draft bill referred to by the respondent State in the case of Sürmeli (cited above, § 90), tabled in 2005, was abandoned in 2007. On 15 March 2010 the Government introduced a new draft, namely the Act on legal protection in the event of excessive length of judicial proceedings and preliminary proceedings under criminal statutes (Gesetz über Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren). Pursuant to this proposed legislation a complaint about a delay in the proceedings must first be lodged in the original proceedings. Where the domestic court subsequently does not provide redress, an action for damages can be brought.
34. The draft bill was forwarded to all affected institutions in April 2010; comments were expected by early June 2010. Afterwards necessary amendments will have to be agreed upon before the Cabinet deals with the draft bill for the first time. The draft bill will then be forwarded for comments to the Bundesrat, the upper house of the German parliament, before being presented to the Bundestag, the lower house.
35. The relevant Council of Europe documents are described in the Court's judgment of Yuriy Nikolayevich Ivanov v. Ukraine (see Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 35-37, ECHR 2009... (extracts)).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84262
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KARYAĞDI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Baka;Françoise Tulkens;Mindia Ugrekhelidze;Riza Türmen;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1981 and lives in Bursa. At the time of the events he was employed by S.İ and M.U.
5. In 1997 the applicant was injured in an occupational accident and lost the third and fourth fingers of his left hand.
6. On 22 December 1997 the applicant filed an action for compensation before the Bursa Civil Court of First Instance against S.İ., M.U and two other individuals who were allegedly responsible for the accident.
7. On 16 June 2000, an expert report assessing the extent of the damage suffered by the applicant was submitted to the court.
8. On 12 September 2000 the applicant lodged another case with the same court, claiming further damages. These two procedures were later joined.
9. On 16 January 2002 the Bursa Civil Court of First Instance decided that it did not have jurisdiction to examine the applicant's case.
10. On 20 February 2002 the defendants appealed against this decision.
11. On 23 May 2002 the Court of Cassation upheld the decision.
12. On 31 July 2002 the case was resumed before the Bursa Labour Court.
13. The first hearing was held on 21 November 2002. The court requested a report regarding the applicant's disability.
14. On 30 June and 20 October 2003, the court postponed the scheduled hearings as the report requested on 21 November 2002 had not yet been submitted.
15. On 11 March 2004 the report was submitted to the court. At the same hearing the court requested all the medical reports regarding the applicant. Furthermore, it requested that the applicant be re-examined by the Social Security Hospital.
16. The court held eight hearings after 11 March 2004, the last of which was on 19 October 2006.
17. According to the information in the case file, as submitted by the parties, the proceedings are apparently still pending before the Bursa Labour Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95473
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MATTERNE v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Hermann Matterne, is a German national who was born in 1967 and lives in Munich.
Of the forty-four domestic proceedings instituted by the applicant between 2000 and 2005 and referred to in his application, the applicant has submitted decisions by the Federal Constitutional Court with respect to the following three proceedings.
By a judgment of 23 January 2002 the Stuttgart District Court dismissed the applicant’s claim against his former partner regarding repayment of rent and compensation for expenses incurred in connection with the allegedly unlawful cancellation of the applicant’s sublease agreement and his eviction from the jointly occupied apartment located in Stuttgart.
On 28 March 2002 the applicant lodged an appeal with the Stuttgart Regional Court.
On the occasion of hearings that took place on 12 September 2002 and 3 April 2003 the Regional Court heard the parties and a witness.
By a judgment of 28 April 2003 the Stuttgart Regional Court granted the applicant’s claim in part, dismissed the remainder and amended the District Court judgment of 23 January 2002 accordingly.
On 25 June 2003 the applicant lodged a constitutional complaint against the judgment of the Regional Court with the Federal Constitutional Court and simultaneously requested to be reinstated in the statutory one-month time-limit for lodging such a complaint.
On 11 July 2003 the Registry of the Federal Constitutional Court by its presidential council (Präsidialrat) informed the applicant that there existed doubts as to the admissibility of his complaint since he had neither sufficiently substantiated his request to be reinstated nor the alleged violation of his rights guaranteed under the Constitution.
By a letter dated 25 August 2003 the applicant gave further reasons for his complaint and his request for reinstatement.
On 10 February 2004 the Federal Constitutional Court, notwithstanding the applicant’s request to be reinstated, declined to consider his constitutional complaint (file No. 2 BvR 1389/03).
By a judgment of 10 December 2002 the Munich District Court ordered the applicant to pay outstanding rent for an apartment located in Munich, to vacate the apartment and to bear the costs of the court proceedings.
On the applicant’s appeal the Munich Regional Court by a judgment dated 9 July 2003 set aside the judgment of the Munich District Court on the ground that the applicant’s right to be heard had been infringed and remitted the case to this court for fresh consideration.
On 15 June and 11 November 2004 the Munich District Court heard the parties and ordered the taking of evidence.
On 11 November 2004 the applicant objected to the participation of the acting judge in the proceedings on the ground of possible bias since the same judge had already conducted the proceedings resulting in the judgment of 10 December 2002.
By written submissions of 29 December 2004 the applicant lodged a counterclaim against the owner of the apartment regarding, inter alia, repayment of rent.
The Munich District Court by a partial judgment (Teilurteil) dated 3 May 2005 again ordered the applicant to vacate the apartment.
The applicant appealed on 4 May 2005 and lodged a further application for bias against the acting judge.
On 26 October 2005 the Munich Regional Court set aside the District Court decision of 3 May 2005 and ordered the owner of the apartment, in his capacity as underlying plaintiff, to bear the costs of the proceedings. By a decision of 28 October 2005 the Regional Court clarified that the plaintiff had to bear the costs of the appellate proceedings.
The applicant appealed against the decision of the Regional Court on the ground that the latter had ordered the plaintiff only to bear the costs of the appellate proceedings but not of the proceedings at first instance. On 16 December 2005 the Munich Regional Court dismissed his complaint. It found that since the partial judgment of the District Court of 3 May 2005 had not contained a decision on the costs of the proceedings at first instance the Regional Court could only decide on the costs of the appellate proceedings. The decision on the costs of the first-instance proceedings was reserved for the final decision (Schlussurteil) of the District Court in the first-instance proceedings.
On 9 June 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1273/06). The Federal Constitutional Court held that the complaint was inadmissible on the ground that the impugned decision of the Regional Court had not been rendered to the detriment of the applicant and that according to the information submitted there was nothing to establish that he would have to bear the costs of the proceedings at first instance.
On 23 June 2004 the applicant brought a claim against a construction firm before the Munich District Court regarding compensation for water damages caused in his cellar on the occasion of renovation works in a neighbouring building.
The District Court heard the parties on 24 August 2004 and by a decision dated 19 October 2004 ordered the taking of evidence and summoned witnesses for a hearing scheduled for 30 November 2004. On 29 October 2004 the District Court rejected the applicant’s request to adjourn the hearing as unsubstantiated.
The applicant did not attend the hearing on 30 November 2004 but was represented by counsel. The Court heard witnesses but rejected the applicant’s request to hear two further witnesses as belated in accordance with the related provisions of the German Code of Civil Procedure (Zivilprozessordnung).
By a judgment of 23 December 2004 the Munich District Court dismissed the applicant’s claim.
On 28 December 2004 the applicant lodged an appeal with the Munich Regional Court alleging that his right to be heard had been infringed on the ground that he could not attend the hearing on 30 November 2004. He also complained that his request to hear further witnesses had been dismissed by the court. He finally asked to be granted legal aid for the appellate proceedings.
By a letter dated 25 January 2005 the Munich Regional Court informed the applicant that his appeal was not signed by a lawyer as statutorily required and furthermore that it appeared to be ill-founded. On 15 February 2005 the applicant submitted written observations in reply.
On 17 February 2005 the Munich Regional Court rejected the applicant’s request for legal aid since his appeal was devoid of prospects of success. It held that the District Court had correctly assessed the evidence obtained and rightly rejected the applicant’s request to hear further witnesses as belated.
By a decision of 6 April 2005, which was served on the applicant on 15 April 2005, the Munich Regional Court dismissed the applicant’s appeal against the judgment of the Munich District Court as inadmissible, as he was not represented by counsel as statutorily required. The applicant lodged a complaint against this decision with the Regional Court on the same day.
On 9 May 2005 the applicant lodged a constitutional complaint which he further motivated by written submissions of 10 May 2005. By letter dated 18 May 2005 the Registry of the Federal Constitutional Court by its presidential council (Präsidialrat) informed the applicant that there existed doubts as to the admissibility of his complaint since he had not sufficiently substantiated a violation of his rights guaranteed under the Constitution. The applicant nevertheless pursued his constitutional complaint.
On 2 June 2005 the Munich Regional Court dismissed the applicant’s complaint of 15 April 2005 against its decision of 6 April 2005 on the ground that only the Federal Court of Justice (Bundesgerichtshof) would have been competent to deal with it.
On 3 February 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint of 9 May 2005 and imposed a fee of 250 euros (EUR) upon the applicant for abuse of process (file no. 2 BvR 33/06). It referred to its established case-law that the introduction of a constitutional complaint constituted abuse of process if one could reasonably assume that the complaint was devoid of any prospects of success. In the instant case the applicant, after receiving the letter of the presidential council of the Federal Constitutional Court dated 18 May 2005, could not have had any doubts that his constitutional complaint was not sufficiently substantiated and thus clearly inadmissible. The applicant had merely used the Federal Constitutional Court as an additional appellate instance without specifying any issues that were relevant under constitutional law in the manner required by the applicable procedural rules. The Federal Constitutional Court pointed out that it could not agree to be hindered in the performance of its tasks by unsubstantiated complaints.
By a letter to the Federal Constitutional Court dated 19 February 2006 the applicant contested that his complaint had been abusive and requested that the fee be revoked.
Pursuant to Article 34 § 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) the proceedings before the Federal Constitutional Court shall be free of charge. According to Article 34 § 2 of the said Act, the Federal Constitutional Court may charge a fee of up to EUR 2,600 if the lodging of a constitutional complaint constitutes an abuse of process.
In its established case-law the Federal Constitutional Court has consistently held that the lodging of an obviously inadmissible or unfounded complaint is considered to be abusive if one can reasonably expect the complaint to be devoid of any prospect of success. The Federal Constitutional Court held on several occasions that this was the case if an applicant merely used the Federal Constitutional Court as an additional appellate instance without raising issues that were relevant under constitutional law in compliance with the procedural requirements. The Federal Constitutional Court also has repeatedly held in this context that it could not agree to be hindered in the exercise of its functions by complaints that clearly did not have any prospect of success, thereby delaying the protection of the basic rights of other citizens.
In a decision of 9 October 2008 (file No. 1 BvR 1356/03) the Federal Constitutional Court held that fees charged in accordance with Article 34 § 2 of the Federal Constitutional Court Act had to be legally qualified as court fees notwithstanding that they also had a punitive character. While Article 34 § 1 established the rule that proceedings before the Federal Constitutional Court were free of charge, its paragraph 2 established the conditions under which an exception to this rule could apply. A fee imposed on this basis could be considered an appropriate consideration for costs triggered by an abusive resort to the Federal Constitutional Court.