ITEMID: 001-22897
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: KORELLIS v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Achilleas Korellis, is a Cypriot national, who was born in 1953 and lives in Nicosia. He was represented before the Court by Mr M. Pikis, a lawyer practising in Nicosia.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was accused of rape and committed for trial before the Assize Court. It was alleged that the applicant had raped the complainant at his surgery during a urological examination.
According to the applicant, during the investigation proceedings, the police did not believe the complainant’s allegations. This led to a strong reaction from the complainant’s lawyer, a person with political connections who, in a letter dated 22 August 1996 to the Chief of Police, called for the immediate replacement of the investigating officer, which was done without informing the applicant.
The applicant contends that the new investigating officer carried out a search at the applicant’s surgery – where the alleged offence took place – without a search warrant, in the presence of the complainant and her lawyer, but in the absence of the applicant and his lawyer who were not even notified of the search. The new investigating officer took a statement from the complainant which was different from an earlier one in which she had said that she was not certain that she had actually been raped.
The police investigations in respect of the rape for which the applicant was convicted started on the day of the incident, i.e. 22 August 1996. The applicant was interrogated by the police about his involvement in this incident during the afternoon of the same day. He was acting on legal advice. The knickers and other objects connected with the case against the applicant were taken by the police also that day and were delivered on 29 August 1996 to the Government forensic expert (who testified during the trial as a prosecution witness).The expert proceeded to make scientific tests in order to discover whether there was Vaseline on any of the objects delivered to her by the police.
At the pre-trial stage, the defence asked for the discovery of a number of documents and the knickers of the complainant, which were in the prosecution’s possession. The defence wished to submit the knickers to scientific examination by its own experts in order to challenge the finding of the prosecution expert, a civil servant, that there was Vaseline on the knickers. When the prosecution refused, the defence successfully applied on 23 December 1997 to the Assize Court which, on 19 March 1998, ordered discovery on condition that the knickers remained in the prosecution’s possession with access being arranged for the defence examination.
On an ex parte application for certiorari by the Attorney General before a single judge of the Supreme Court, enforcement of the order was suspended. Then on 15 May 1998, after hearing the parties, the single judge granted judicial review and quashed the Assize Court order on the grounds of an excess of jurisdiction.
The applicant appealed. On 24 September 1998 the appeal was dismissed by a majority of 7 to 2 in the Supreme Court. It held that, in the absence of a specific provision in the law of criminal procedure, the trial court lacked jurisdiction to issue an order for discovery, and that neither Articles 12(5)(b) and 30(2) of the Constitution nor Article 6 §§ 1 and 3(b) of the Convention, empowered the court to issue such an order. The Supreme Court considered that the handing over of the knickers to the defence might lead to their destruction and thus deprive the prosecution of the possibility of presenting its case fairly in court. The court also held that whether the denial of a scientific examination would render the proceedings unfair was a matter which could only be examined at the end of the trial, but that the Assize Court could not take positive measures to ensure the fairness of those proceedings.
The Supreme Court, inter alia, stated:
“The issue of the orders in questions, and in particular the order for the handing over of exhibits, may possibly lead to other complications, damaging to the proper administration of justice.
Such a possibility – the destruction or alteration of an object relevant to the proof of the case – will have devastating consequences on the prosecution case, and the orders in question, intended to render the trial fair, will produce the opposite result...
There is no legislative or procedural authorisation for dealing before the trial with issues of what is disclosable, substantial, relevant or irrelevant. The course adopted by the Assize Court does not safeguard the right to a fair trial. On the contrary, it offends the principle of equality of arms and only contributes to delays, in violation of Article 30(2) of the Constitution. ...”
Thereafter the hearing before the Assize Court commenced. On 29 October 1998 the prosecution began with the production of evidence before the court. Prosecution witness 1 was the complainant herself. During the first day of her testimony she was asked by the prosecution to view the knickers and she identified them as those she had worn at the time of the rape. Expert evidence in relation to the knickers was produced by the prosecution on 3 February 1999, with the testimony of prosecution witness 11, Ms Konari, an expert at the State Forensic Laboratory. The knickers became evidence at the trial on 5 February 2000. She stated that a few days after the offence she had “washed” the pants in certain chemical liquids, thus managing to extract all the Vaseline from it, which she then preserved in a tube which was also produced as an exhibit in court.
Furthermore the expert excluded the possibility of there being a substance in the material out of which the knickers were made which was of the same chemical composition as Vaseline and the possibility of a finding, after a further examination of the knickers, that Vaseline had existed on them. No evidence contradicting this opinion or creating doubts as to its correctness was produced by the defence.
On 10 March 1999, the Assize Court found the applicant guilty and sentenced him to three years’ imprisonment. The Court based its decision mainly on the credibility of the complainant in respect of whom the court stated the following:
“Our global view is that [the complainant] is completely credible. Her evidence has all those elements which characterise and determine the credibility of evidence and we note the consistency, completeness, accuracy, naturalness and cogency of her whole relation, beyond, as we have already observed, the very good impression she made in the witness box. We also find nothing with reference to the matters discussed above, which affects or weakens this view of ours. On the contrary, [the complainant’s] evidence has passed the test of trial with reference to its contents and the rest of the evidence as well as with reference to the question of any motive. We would simply mention the fact that no motive was attributed to [the complainant] and no submission was made that her version is made up and no such suggestion was made by [the applicant] in his unsworn statement, but she was only cross-examined as we have noticed in relation to those parts of her version which concerned her statements to the police...”.
The Assize Court found that the evidence of the complainant was further corroborated by the fact that she made the first complaint to two persons whose testimony was accepted by the court. The court also took into account in corroboration of the complainant’s allegations the fact that, according to a prosecution expert, evidence of Vaseline was found on the knickers which the complainant had been wearing at the material time, thus supporting her claim that the applicant had put Vaseline on her. In defence, it was argued that it had not been proved that the knickers in question were the pair worn by the complainant at the material time. However, the Assize Court was satisfied from the evidence that the knickers on which Vaseline had been found were those of the complainant.
It appears that the defence did not argue before the Assize Court that the non-discovery of the knickers had the effect of depriving the applicant of a fair trial.
Regarding the complaint of the defence that the police and the prosecuting authorities did not perform their duties impartially, the Assize Court stated that the case had to be determined on the basis of the evidence and that “to the extent that any actions of the police or other persons involved in the case concerned the evidence, we do not find anything which could affect our view regarding the credibility of [the complainant]”. The Supreme Court also dismissed this complaint, on appeal, as being unsubstantiated.
The Assize Court further held that the allegation of the applicant that he had had an unfair trial because the prosecution failed to disclose to the defence a number of statements made by the complainant to the police which might have been relevant to the defence, was not substantiated, given the fact that this matter was neither pursued nor clarified during the cross-examination of the complainant.
As regards the defence argument that, soon after the incident, the complainant’s lawyer addressed a letter to the Attorney General’s Office and the Head of Police in which no clear reference to the offence of rape was made, the court found this to be “fully understandable in view of the circumstances, the letter itself explaining the reason for the lack of certainty as to whether there was rape or only attempted rape in view of the fact that the difference between the two is, as was meant to be, of legal significance and many times this is not easy to define”.
The applicant appealed against his conviction to the Supreme Court.
On 18 January 2000 the Supreme Court dismissed the appeal and confirmed the applicant’s conviction.
Sections 7(1) and 175 of the Criminal Procedure Law Cap. 155 provide as follows:
“When the accused pleads “not guilty” then, through a written request to the prosecution, he is entitled to be supplied with copies of the written statements and the documents which were obtained during the investigation of the criminal offence with which he is charged.”
“At every preliminary enquiry and at every trial, the court shall have the discretionary power to regulate the course of the proceedings in any way which may appear desirable and which is not inconsistent with the provisions of this Law.”
Where the offence is of a sexual nature, the evidence of the complainant must be corroborated. By virtue of an express statutory provision Section 10 of the Evidence Law, Cap. 9 a first complaint constitutes corroborative evidence per se.


ITEMID: 001-4662
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: BOYD AND McCOLM v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: A.
On 9 July 1989 the applicants’ father, James McColm, was knocked down by a taxi. He died in hospital on 11 July 1989, without having regained consciousness.
On 2 August 1989 the applicants met with the Procurator Fiscal who was investigating their father’s death. On 11 September 1989 the Procurator Fiscal wrote to the applicants informing them that he was entering a verdict of “no proceedings”.
On 17 November 1989 the applicants obtained from the police the “Abstract of Road Occurrence Report”, containing the names and addresses of two witnesses to the accident, namely the taxi-driver and a fourteen-year-old boy, and three police officers who attended the scene after the accident. The applicants’ solicitor took statements from the first two witnesses, but the applicants were unable to understand how the accident had taken place.
On 13 December 1989 the Lord Advocate wrote to the first applicant’s Member of Parliament as follows:
“I have carefully considered the report and statements which were submitted by the Procurator Fiscal in relation to the death of James McColm and I do not consider it appropriate to instruct a Fatal Accident Inquiry in this particular case. The matter has been fully investigated by the police and the Procurator Fiscal and all eye witnesses have been precognosced by the Procurator Fiscal.
I understand that the Procurator Fiscal spent some considerable time with your constituent’s brother, Mr John McColm, and his wife, outlining to them the evidence of the various witnesses. The Procurator Fiscal also provided Mr John McColm with a list of the names and addresses of those witnesses to enable him to interview them personally if he wished to do so. Mr McColm was also permitted to read the autopsy report.
As you will appreciate the police report to the Procurator Fiscal and the Procurator Fiscal’s report to the Crown Office are confidential and, accordingly, your constituent cannot be provided with copies of these documents. ...”
On 19 January 1990 the applicants again met with the Procurator Fiscal, who refused the applicants’ request for a Fatal Accident Inquiry, and also refused to grant the applicants access to all the documentation relating to their father’s death. On 21 February 1990 the applicants obtained the post-mortem report relating to their father’s death.
On 2 March 1990 the Lord Advocate again wrote to the first applicant’s Member of Parliament:
“I understand that you telephoned ... enquiring as to the reasons for confidentiality attaching to the reports which your constituent, Mr Edward McColm, has requested copies of.
There is a long and unbroken line of judicial authority that reports by the police to the Procurator Fiscal and communications between the Procurator Fiscal and the Crown Office are very highly confidential and the Scottish Courts would only order their production to a third party where it is necessary for the ends of justice in view of some great and overwhelming necessity. In the circumstances of this case I cannot see that there is any great necessity. Indeed ... nothing material has been withheld.”
On 28 June 1990 the applicants were informed by their solicitor that “in view of all the facts, lack of witnesses and the policy of the authorities”, it would not be possible for them to proceed with a civil action or force a Fatal Accident Inquiry.
On 16 June 1992 an adjournment debate about the issues surrounding the applicants’ father’s death was held in the House of Commons. On behalf of the Government, the Parliamentary Under-Secretary of State for Scotland explained that:
“In the case of road traffic fatalities, a fatal accident inquiry would normally be held only if it was thought that there was a need to inquire into such matters as the layout of the road, the appropriateness of any speed limits at the locus, or the adequacy of street lighting. In other words, do the circumstances of the accident give rise to concerns about road safety? Where it is considered that the driver of a vehicle was at fault to the extent that his driving was thought to have been careless or reckless, the appropriate step is for criminal proceedings to be instituted. Where criminal proceedings are not appropriate and no issues of road safety are raised, a fatal accident inquiry will not usually be held, especially where the investigations by the police and fiscal have already clearly established the circumstances leading up to the accident.”
He continued:
“No material information was withheld from the family. They remained dissatisfied, however, because they had not been shown the police report or the fiscal’s report. The police report was simply a summary of the evidence, the details of which had already been provided to the family.
The fiscal’s report was accompanied by the statements of the witnesses but was itself an assessment of that evidence and a recommendation by the fiscal to Crown counsel as to whether a fatal accident inquiry should be held. The fiscal is clearly entitled to make an assessment of the evidence and offer his opinion to Crown counsel on a confidential basis. ...”
On 4 November 1996 the second applicant wrote to the Procurator Fiscal requesting the official police sketch of the scene of the accident and photographs taken by the police. The Procurator Fiscal replied on 20 November 1996, enclosing a copy of the sketch plan and advising the applicant to contact the police directly in respect of the photographs. On 13 January 1997 Strathclyde Police informed the applicant that the photographs had been disposed of. On 3 July 1997 the first applicant wrote to the newly-appointed Lord Advocate again requesting an inquiry into his father’s death. The Lord Advocate replied on 27 August 1997 stating that he had read the papers in the case and agreed with the decision not to carry out a Fatal Accident Inquiry.
B. Relevant domestic law and practice
The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (“the 1976 Act”) places an obligation on the Lord Advocate to hold an inquiry into any death in custody or following an accident at work, unless the circumstances of the death have been established in the course of criminal proceedings. As regards other deaths, it is at the discretion of the Lord Advocate to decide whether it is expedient in the public interest to hold an inquiry into the circumstances of the death on the ground that it was sudden, suspicious or unexplained, or occurred in circumstances such as to give rise to serious public concern.
In practice, the Procurator Fiscal investigates all sudden, suspicious, accidental and unexplained deaths, and informs the Crown Office where there are suspicious circumstances, where it appears that a crime has been committed and there is a possibility that proceedings might be instituted, where the circumstances point to suicide, or where there has been a request by an interested person that a Fatal Accident Inquiry be held. Crown Counsel then decides on behalf of the Lord Advocate whether the circumstances of the death give rise to serious public concern such as to justify the holding of an inquiry.


ITEMID: 001-98583
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KOTSARENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Eduard Fedorovich Kotsarenko, is a Ukrainian national who was born in 1938 and lives in the village of Andreevka, Donetsk Region, Ukraine. The respondent Government were represented by their Agent, Mr Y. Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 11 October 1999 the Slavyansk Court awarded the applicant 2,178 Ukrainian hryvnyas (UAH) in salary arrears, to be paid by his former employer, a private company, S. (“the company”).
The judgment in the applicant's favour was not appealed against, became final and the State Bailiffs' Service instituted enforcement proceedings.
The judgment remains unenforced.


ITEMID: 001-83265
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KHAMILA ISAYEVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Liberty of person;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: Loukis Loucaides
TEXT: 7. The applicant was born in 1961. She was a resident of the village of Alkhan-Kala (also known as Yermolovka) in the Grozny District, and currently lives in Grozny, Chechnya.
The applicant and her husband, Mr Sultan Isayev, born in 1961, lived in the village of Alkhan-Kala in the Grozny District. They have four children. The applicant is a bookkeeper and her husband was a welder by profession. He served in the Soviet army and became a commander of a tank platoon. From the middle of the 1990s he worked in construction as a bricklayer, and as a mechanic. In the 1990s Mr Sultan Isayev underwent two surgical operations, on his bowels and for appendicitis, and was in need of another one, on his spine, but could not afford it.
8. In early October 1999 the Russian Government launched a counter-terrorist operation in the Chechen Republic.
9. In November 1999 the applicant and her family went to Ingushetia, where they stayed in the village of Voznesenskoye. Mr Sultan Isayev's parents remained in Alkhan-Kala in their house at 65 Zheleznodorozhnaya Street.
10. On 27 April 2001 the applicant's husband returned to Alkhan-Kala to visit his parents and stayed at their house, as he had regularly done before. The applicant and their children remained in Voznesenskoye, and therefore she did not witness the events relating to her husband's arrest.
11. On 29 April 2001 the Russian military conducted a special (“sweeping”) operation involving several armoured personnel carriers (APCs) and military helicopters in the village of Alkhan-Kala.
12. On 29 April 2001 Mr Sultan Isayev went to visit his parents' neighbours, the Magomadovs, at 63 Zheleznodorozhnaya Street. Together with the owner of the house, they were taking a steam bath in the Magomadovs' bathhouse, a small building located in the courtyard of the house.
13. Mr Sultan Isayev's father was in his house at 65 Zheleznodorozhnaya Street, when at about 1.30 p.m. he saw around eight or ten heavily armed soldiers in the street. He was standing at the open gates of his house and asked them if they wanted to check inside. In reply they ordered him to get inside and fired in front of his feet. He obeyed and noticed that the soldiers then proceeded to the Magomadovs' house down the street, where his son was. Mr Sultan Isayev's father described the events as follows:
“Having entered my house, I began watching through the window into the street. Two APCs drove up to the same house where my son was bathing... About ten more people came out of the APCs; two of them stayed in the street and the rest went into the courtyard. There were about fifteen people. About half an hour later they came out quickly, and I saw two civilians, that is, the owner of the house, Mr Sherip Magomadov, who was dressed, and my son, who was half-naked, being shoved into the APC.
In the hands of a senior [serviceman] I noticed two or three passports. I recognised the dark blue cover of my son's passport among them.
When they drove off, I immediately ran to the house where my son had been, and there I saw the broken door to the bathhouse and my son's clothes – his jumper, shirt, trousers and shoes. The owner of the house wasn't there; things were strewn all over the place, on the floor.”
14. The applicant submitted several statements by neighbours who confirmed that about twenty armed soldiers who had arrived in two APCs had burst into the Magomadovs' house and detained the owner and Mr Sultan Isayev, who had been taken naked from the bathhouse. One of the neighbours stated that she had seen a man running away from the federal soldiers who had entered the Magomadovs' house and the soldiers pursuing the man and then detaining three men in the house. The witnesses also testified that they had heard shooting while the men were being detained.
15. According to the Government, on 29 April 2001 the federal forces conducted a special operation in Alkhan-Kala. During that operation a group of unidentified armed men arrived at the Magomadovs' house at 63 Zheleznodorozhnaya Street, put the applicant's husband and two other persons into APCs and took them away in an unknown direction.
16. In total ten men, aged between 25 and 45, were detained and taken away in Alkhan-Kala on 29 April 2001. The severely mutilated body of one of them was found two weeks later, whilst all the others have remained missing ever since.
17. On 1 May 2001 the Agence France-Presse news agency, referring to information from the Russian ITAR-TASS news agency, reported:
“Russian forces said ... they had wiped out a rebel unit led by warlord Arbi Barayev, one of the most ruthless gangs fighting in Chechnya. ... Seven rebels were killed and 20 arrested in the operation, in which the Russian forces surrounded the village of Yermolovka where the Barayev rebels were holed up. ... The unit was wiped out ... after several days of fighting and Barayev, 27, fled.”
18. The bulletin of the United Group Alignment of the Federal Forces (UGA) in Chechnya reported that at the beginning of May 2001 “during an operation in the vicinity of Alkhan-Kala special forces [had] severely mauled the 'Barayev fighters' and [that] a large group of 'brothers-in-arms' of the murderer [had been] detained and active members of the gang [had been] liquidated.”
19. On 29 April 2001 relatives of the detained men went to the office of the local military commander, who told them that the soldiers under his command had not taken part in the “sweeping-up” operation and that he had no information about the detainees. According to the applicant, the local military commander had taken no part in the planning or conduct of the operation, and it had been most likely that he himself had been detained by the federal military who had come to conduct it. Soon after the events the military commander had been transferred away from Alkhan-Kala.
20. On 2 May 2001 the applicant, who was then in Ingushetia, learnt of her husband's detention and immediately went to Chechnya to search for him.
21. She coordinated her efforts with the relatives of the other men who had disappeared. On numerous occasions, both in person and in writing, she applied to the prosecutors at various levels, the Ministry of the Interior, the administrative authorities in Chechnya, the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic, and to media and public figures. In her letters the applicant stated the facts of Mr Sultan Isayev's detention and asked for assistance and for details of the investigation.
22. The applicant was given hardly any substantive information from official bodies about the investigation into Mr Sultan Isayev's disappearance. On several occasions she and the relatives of the other detainees received copies of letters stating that their requests had been forwarded to different prosecutors' services.
23. On around 2 May 2001 the applicant went to the office of the mayor of Grozny and met with the deputy mayor, Mr Musa Dzhabrailov. According to the applicant, this official, who had claimed that he was an officer of the Federal Security Service (FSB), had been aware of the circumstances of her husband's detention, as, having heard her husband's name, he had allegedly cried out that, indeed, that man had been “the one with a can of beer in a bathhouse”. The applicant submitted that the deputy mayor had stated that criminal proceedings had been instituted in connection with the organisation of an illegal armed group and that her husband had been arrested in the context of those proceedings. He had also referred to a certain investigator who had been in charge of the investigation in the proceedings, but refused to disclose the investigator's name. The deputy mayor had further told the applicant that the detainees were being held at Khankala, the main Russian military base in Chechnya. He had allegedly assured her that her husband and six or seven others would be released once the mayor of Grozny came back after 10 May 2001.
24. Thereafter the applicant went to Alkhan-Kala and met her father-in-law, who, with other relatives of the missing persons, had hired a bus and travelled around visiting various officials in an attempt to find out about the detainees.
25. On 15 May 2001 the applicant was in Alkhan-Kala during another “sweeping-up” operation. The soldiers told the women in the village that there was a corpse in the river, and one of the women recognised a body which had no head and one leg as that of her son, Mr Aburakhman Lorsanov, who had been detained on 29 April 2001. She identified him by the clothes he had been wearing on the day of his arrest. He was buried two days later, without a medical or forensic examination. The applicant submitted that the body had had several stab and gunshot wounds.
26. After 15 May 2001 a number of relatives of those detained on 29 April 2001 wrote to the Prosecutor General. They referred to the discovery of Mr Aburakhman Lorsanov's body, asked for news of their missing family members and requested that an investigation of the arrests be carried out.
27. Later in May 2001 the relatives liaised with a person whom the applicant identified as a “middleman from Khankala”, the main federal military base in Chechnya, and offered to pay money for the release of the detained men. He was assisted by three other persons, whom the applicant also called “middlemen”.
28. According to the applicant, the middleman from Khankala confirmed that the persons detained on 29 April 2001 were being held at the military base and suggested that the relatives should collect 1,000 United States dollars (USD) per detainee to have them released. According to the applicant, during the negotiations the relatives had also paid 1,000 Russian roubles per day to the middleman, who had allegedly given the money to the guards of the detainees. Some time later he had said to the applicant and other relatives that he had been unable to arrange for their family members' release. Three weeks later the relatives had offered USD 1,500 per person to the same men and four weeks later one of the middlemen had brought news that Mr Sultan Isayev and Mr Sherip Magomadov would soon be released.
29. At the end of May 2001 the applicant and other relatives finally received confirmation from one of the middlemen, hired a bus and went to a pre-arranged location. According to the applicant, in view of the fact that rumours of the deal had been circulating, the prosecutor of the Chechen Republic and two investigators had come to the same place and the deal had been called off on account of this “publicity”. The “middleman from Khankala” had been arrested, but had been released several days later and had refused to be involved in the negotiations any further, having stated that the detainees had, in any event, been transferred to another place. One of the other middlemen had allegedly been killed several days later when his car had been shot at on a road.
30. On 4 May 2001 the Grozny District Prosecutor's Office instituted a criminal investigation into the disappearance of ten persons in Alkhan-Kala, including the applicant's husband, under Article 127 § 2 (d) and (f) of the Russian Criminal Code (unlawful deprivation of liberty of two or more persons committed with the use of arms). The case file was registered as no. 19051.
31. On 13 May 2001 the military prosecutor's office of military unit no. 20102 in Khankala stated in reply to a request from the Grozny District Prosecutor's Office that no special operations had been conducted by the forces of the Ministry of Defence or the Ministry of the Interior on 29 April 2001, and that the persons listed in the request had not been detained.
32. On 3 June 2001 the Grozny District Prosecutor's Office requested the nationwide Russian RTR channel to provide it with a copy of the news programme of 30 April 2001, which had reported on the operation of 29 April 2001 in Alkhan-Kala.
33. On 22 June 2001 the relatives of the detainees again wrote to the Prosecutor General. They referred to the news programmes that had announced that a special operation had taken place in Alkhan-Kala at the end of April and that General Baranov had been promoted and decorated for its success. They also enquired about the latest developments in the investigation.
34. On 23 June 2001 the Prosecutor's Office of the Chechen Republic replied to a request from the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic concerning the ten persons detained in Alkhan-Kala. The letter stated that a criminal investigation had been opened by the Grozny District Prosecutor's Office and that all measures were being taken to identify those responsible and to locate the whereabouts of the kidnapped persons.
35. On 1 August 2001 the head of the Alkhan-Kala administration, Ms Malika Umazheva, wrote to the head of the UGA. She stated that on 28 and 29 April 2001 there had been a special (“sweeping-up”) operation in the village, as a result of which several houses had been blown up and a number of men had been detained and taken away. She listed the numbers of the six APCs that had participated in the operation. She further stated that two weeks after the detention the body of one of the detainees had been discovered in the river, while the others had disappeared. She asked for assistance in finding the detainees. Malika Umazheva was killed in her house on 29 November 2002 by unidentified gunmen
36. On 3 September 2001 the Prosecutor General's Office replied to one of the relatives of the missing men that the investigation was being supervised by its department in the Southern Federal Circuit.
37. In September 2001 the 12th Interim Report by the Secretary General of the Council of Europe on the situation in Chechnya (SG/Inf (2002) 29) stated that “in the case of the disappearance of ten citizens of the village of Alkhan-Kala during the mop-up operation from 19-21 April 2001, the head of the local administration had requested from the military prosecutor information about the stage of the investigations, without success”. According to the applicant, there was a mistake in the dates of the operation given in the report.
38. On 4 October 2001 the applicant received a copy of a letter from the Prosecutor's Office of the Chechen Republic addressed to the Grozny District Prosecutor's Office, in which the latter was instructed to conduct an additional investigation in criminal case no. 19051, opened in relation to the unlawful detention of several residents of Alkhan-Kala. A criminal case file containing 123 pages was listed as an attachment.
39. On 15 October 2001 the applicant wrote a letter to the Prosecutor's Office of the Chechen Republic in which she restated in detail the circumstances of her husband's arrest. She asked for a criminal case to be opened in relation to Mr Sultan Isayev's disappearance and for information as to his whereabouts.
40. In a decision of 18 October 2001 the Oktyabrskiy District Court of Grozny established as a legal fact that the applicant's husband had been missing since 29 April 2001.
41. On 22 October 2001 the Prosecutor's Office of the Chechen Republic replied to the applicant that a criminal case had been opened and was being investigated by the Grozny District Prosecutor's Office. The letter contained no further details.
42. On 24 October 2001 the applicant was informed in a letter from the Government of the Chechen Republic that following her complaint the Chechen Department of the Interior had been instructed to take all measures necessary to establish Mr Sultan Isayev's whereabouts.
43. On 31 October 2001 the applicant contacted the Chechen Department of the FSB, asking for help to locate her husband. She referred to the statements of the deputy mayor of Grozny, Mr Dzhabrailov, to the effect that he was an FSB officer and was aware of the criminal case in connection with her husband's detention.
44. On 6 November 2001 the Chechen Department of the FSB replied to the applicant that it had no information about the ten missing persons and that Mr Musa Dzhabrailov was not one of its officers.
45. On 3 December 2001 the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic requested information on the applicant's behalf about the investigation from the Prosecutor's Office.
46. In April 2002 Human Rights Watch issued a report entitled “Last Seen...: Continued 'Disappearances' in Chechnya”. It contained an account of the detention and disappearance of several men from Alkhan-Kala and referred to the absence of any results from an allegedly pending investigation.
47. On 8 September 2002 the criminal proceedings in case no. 19051 were suspended on the ground that it was impossible to identify the perpetrators.
48. On 9 October 2002 the Grozny District Prosecutor's Office issued the applicant with a certificate in which she was described as a victim in criminal case no. 19051, opened in connection with her husband's disappearance on 29 April 2001. According to the applicant, no formal decision granting her victim status had been taken.
49. On 15 February 2003 the applicant wrote to the Grozny District Prosecutor's Office, the Chechen Republic Prosecutor's Office, the Prosecutor General's Office, the Grozny District military commander's office and the Federal Department for Rights and Freedoms in Chechnya. She stated that her husband had been taken away during a “sweeping-up” operation on 29 April 2001 and that the criminal proceedings instituted in that connection had been suspended on two occasions. The applicant also requested the public bodies concerned to assist her in her continued search for her husband.
50. In a letter of 18 March 2003 the Prosecutor's Office of the Chechen Republic informed the applicant that on 4 May 2001 the Grozny District Prosecutor's Office had instituted criminal proceedings in connection with “the unlawful detention by servicemen of the federal forces” of a number of residents of Alkhan-Kala, including Mr Sultan Isayev, “during a special operation”. The letter further stated that the investigating authorities had been unable to establish which State agencies had participated in the detention of the villagers and that the investigation had therefore been adjourned on 8 September 2002; however, on 26 February 2003 it had been resumed and at present measures were being taken to find the missing persons and to identify those responsible. The letter then invited the applicant to apply to the Grozny District Prosecutor's Office for explanations concerning the investigation.
51. On 5 April 2003 the applicant applied in writing to the Prosecutor's Office of the Chechen Republic asking to be granted victim status.
52. On 17 April 2003 the SRJI requested the Grozny Prosecutor's Office on the applicant's behalf to provide information concerning the results of the investigation following its reopening on 26 February 2003. It also requested that the applicant be sent a copy of a decision declaring her to be a victim. In the absence of a reply, the request was sent again on 26 June and 27 August 2003.
53. On an unspecified date the investigation into the disappearance of Mr Sultan Isayev and several other residents of Alkhan-Kala was suspended; it was resumed on 24 April 2003.
54. On 6 May 2003 the Chechen Republic Prosecutor's Office referred the applicant's query to the Grozny District Prosecutor's Office, informed her of the latest decision to resume the investigation and stated that the search for the men detained on 29 April 2001 and those involved in that offence was currently under way.
55. On 26 June and 2 and 27 August 2003 the applicant and the SRJI, on her behalf, requested the Grozny District Prosecutor's Office to grant the applicant victim status and to update her on the results of the investigation.
56. In a letter of 22 September 2003 the Chechen Republic Prosecutor's Office notified the applicant that the criminal proceedings in case no. 19051 had been resumed on 17 September 2003 and that the investigation was being carried out by the Chechen Republic Prosecutor's Office. The letter also stated that on 31 July 2003 victim status had been granted to the applicant's father-in-law, that she herself had never requested to be declared a victim in the case and that she should apply to the same prosecutor's office so that a decision on granting victim status could be taken.
57. On 31 October 2003 the applicant requested the Chechen Republic Prosecutor's Office to grant her victim status in criminal case no. 19051. In reply, the prosecutor's office stated in a letter of 11 December 2003 that she should report in person to the Chechen Republic Prosecutor's Office so that she could be declared a victim, and that the criminal proceedings in case no. 19051 had been adjourned on account of the failure to identify the perpetrators, but that the search for her husband was in progress.
58. According to the applicant, throughout the investigation she had received only two summons from the Grozny District Prosecutor's Office, dated 15 and 18 October 2002, although she had repeatedly visited the prosecutor's office on her own initiative. She submitted that during her visits she had unsuccessfully requested to be granted victim status.
59. In January 2004, upon receipt of the letter of 11 December 2003, the applicant had visited the Chechen Republic Prosecutor's Office and requested to be declared a victim. She had allegedly been told that the investigator in charge was absent and that no other person had the power to take such a decision. The applicant had visited the Chechen Republic Prosecutor's Office again in February 2004 and talked to the investigator in charge. The latter had allegedly refused to grant her victim status, referring to the fact that the criminal case concerning her husband's disappearance had been transferred to the military prosecutor's office of military unit no. 20102 in Khankala. The investigator had allegedly refused to inform the applicant of the date of the transfer or to issue her with any document attesting to her visit.
60. In late April or early May 2004 the applicant went to the military prosecutor's office of military unit no. 20102. According to the applicant, officials from that prosecutor's office had at first refused to talk to her or let her in. Some time later the applicant had been allowed to enter the premises of the military prosecutor's office and had managed to talk to Colonel Evgeniy Poddubny, an assistant prosecutor from the military prosecutor's office attached to the UGA. According to the applicant, Colonel Poddubny had expressed surprise that she had not yet been recognised as a victim in case no. 19051 and had stated that it was now 2004, whereas the criminal proceedings had been instituted in 2001, and it was therefore highly unlikely that she would now be granted victim status or that the investigating authorities would be able to identify those involved in Mr Sultan Isayev's abduction, given that the term of those persons' military service in Chechnya had expired long ago and they had left for their permanent place of service. Then Colonel Poddubny, at the applicant's request, wrote on a piece of paper that the case file had been received by the military prosecutor's office of the UGA on 8 April 2004. The applicant furnished the Court with a copy of that statement.
61. The applicant had also submitted a written request to the registry of the prosecutor's office to be granted victim status and to be updated on the results of the investigation. She stated that she had been told that a reply would be sent to her place of work, but she had not received any letters to date. During their conversation Colonel Poddubny had stated that the applicant should have been grateful that she had met him at the prosecutor's office, because no other official would have given her any explanations, and because he would help her out of the premises. He had also stated that she had been lucky to enter the premises of the military prosecutor's office but would also need luck to get out, and that next time it would be better if she refrained from coming to Khankala. Colonel Poddubny then ordered another officer to accompany the applicant out of the territory of Khankala and to report back to him afterwards.
62. The applicant stated that she was afraid to visit the military prosecutor's office of military unit no. 20102 ever again, even though she had not received any letters from it informing her of the investigation.
63. The Government submitted the following information concerning the progress of the investigation.
64. On 30 April 2004 the investigation was again suspended since it had been impossible to find those responsible for the offence. It was subsequently resumed on 22 November 2004.
65. On 6 December 2004 the Prosecutor's Office of the Chechen Republic took up the case. On the same date the investigator ordered the seizure of certain documents from the archives of the FSB, the Ministry of the Interior, the Ministry of Defence and of unspecified other documents which related to the special operation conducted in Alkhan-Kala between 28 and 29 April 2001 and to the persons detained.
66. On 7 December 2004 the investigator instructed the Moscow city military prosecutor and the military prosecutor of Podolsk garrison to seize the documents. The prosecutors were also instructed to question former serviceman L. (the Government submitted neither his full name nor why his statements could be relevant) and servicemen of military unit no. 74507 about their participation in the special operation.
67. On 8 December 2004 the investigating authorities watched the tape submitted by the RTR TV channel with their report of 30 April 2001. The report provided no new information about the special operation in Alkhan-Kala.
68. On 8 and 20 December 2004 the investigator instructed the Military Prosecutor's Office of the UGA, the Chief Military Prosecutor and the Military Prosecutor of the North Caucasus Military District to question the servicemen of military unit no. 74507.
69. On 18 December 2004 the Military Prosecutor's Office of the Vladikavkazsky Garrison questioned U. (the Government submitted neither his full name nor exact position held). U. stated that the division he had been in charge of had sealed off Alkhan-Kala and had remained outside its limits. He had no information about any detention of the village's residents.
70. On 22 December 2004 the Prosecutor's Office of the Kamyshinskiy Garrison questioned S. and K., who provided no relevant information (the Government submitted neither their full names nor anything about their identity).
71. On 23 December 2004 the Chechen Republic Prosecutor's Office questioned E., a resident of Alkhan-Kala, whose son had been detained on 29 April 2001 along with the other nine persons. He submitted that he had received information that his son had been held in a correctional facility. However, on investigation by the authorities the information proved to be incorrect.
72. On 6 January 2005 the investigation was suspended because of the failure to identify any person to be charged with the offence.
73. The applicant submitted that on 16 May 2005 she had sent identical applications to the President and the Prime Minister of the Chechen Republic asking for assistance in establishing her husband's whereabouts. On 20 June 2005 she was informed that her application to the President had been forwarded to the military prosecutor of the UGA.
74. On 26 July 2005 the prosecutor's office of military unit no. 20102 sent a response to the applicant. The response stated that criminal case no. 19051, on unlawful deprivation of her husband's liberty by unidentified armed men, had been opened on 4 May 2001. Should it be established that servicemen had been involved in the crime, the applicant would be notified immediately. The applicant was further advised to address all queries concerning the investigation to the Gudermes Prosecutor's Office.
75. According to the Government, on 27 December 2006 the Chechen Republic Prosecutor's Office quashed the decision of 6 January 2005 and resumed the investigation.
76. It is not clear whether the applicant was eventually granted victim status in the criminal proceedings.
77. When the application was communicated to the respondent Government the Court requested it to submit a copy of the entire investigation file no. 19051. However, despite the specific request from the Court the Government did not submit any documents from the file in case no. 19051, having quoted the reply from the Prosecutor General's Office to the effect that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure since the file contained information of a military nature and personal data concerning the witnesses and other participants in the criminal proceedings.
78. On 24 October 2006 the Court declared the application admissible and reiterated its request for a copy of the investigation file no. 19051. The Court also requested information on the progress of the investigation after November 2004.
79. In response, the Government submitted an update of the investigation but no documents from the investigation file. They reiterated that disclosure of the documents would violate Article 161 of the Code of Criminal Procedure since the file contained information related to military operations as well as personal data of participants in the criminal proceedings.
80. The applicant submitted the following witness statements concerning the events of 29 April 2001: witness statement by Mr Sultan Isayev's father concerning the arrest of his son on 29 April 2001, the relevant part of which is quoted in paragraph 13 above. Also provided were witness statements by Mr S. Kh., Ms A. and Ms S., who resided at Zheleznodorozhnaya Street in Alkhan-Kala and were neighbours of Mr Sultan Isayev and Mr Sherip Magomadov, and witness statements by Mr S. Kh., Mr Kh. Kh. and Ms L. Sh., residents of Zheleznodorozhnaya Street in Alkhan-Kala.
81. According to Mr S. Kh's statement, a “sweeping-up” operation was conducted in the village on that date. The operation involved five helicopters and twenty APCs. He could hear shooting all day and several houses were blown up by the federal forces. When the shooting came closer to their street, everybody tried to hide in their basements. Mr Sherip Magomadov's mother hid in the same basement as Mr S. Kh. She said that her son was taking a bath and did not know about the “sweeping-up” operation. When she (apparently with the mother of Mr Sultan Isayev) tried to approach their sons, the servicemen fired at their feet and ordered them to leave, so they had to return to the basement. When the servicemen left, those who were hiding went to the bathhouse, but neither Mr Sultan Isayev nor Mr Sherip Magomadov were there, only their clothes were left. Then their relatives and neighbours went to the local military commander's office, where they were told that Sultan and Sherip had been taken to Khankala and that after enquiries they would be back tomorrow.
82. According to Ms A.'s statement, around 12 noon on 29 April 2001 she saw two APCs going down their street. They stopped at the Magomadovs' gate. Through the fence, behind which she was hiding with her sister, she saw eighteen servicemen getting out of the APCs. Her sister then saw three men being shoved into the APC. After the servicemen had left, it appeared that they had taken with them Mr Sultan Isayev, Mr Sherip Magomadov and another villager who escaped later.
83. According to Ms S.'s statement, a “sweeping-up” operation was conducted in the village on 29 April 2001. When two APCs appeared in their street and started shooting, all the women and children ran to hide in their basements. She did not head to the basement because her baby was in her house. Instead, she hid behind a fence. Through the fence she saw about twenty armed servicemen breaking into her neighbours' house and smashing everything inside. Then they threw Mr Sultan Isayev and Mr Sherip Magomadov out of the bathhouse and, kicking them, shoved them into the APC. Other men were also taken by the servicemen during the operation.
84. According to Mr S. Kh., Mr Kh. Kh. and Ms L. Sh., after Mr Sultan Isayev had arrived at Alkhan-Kala on 27 April 2001 to visit his parents he had been apprehended by federal servicemen during a special operation on 29 April 2001 along with several other villagers and the reasons for the apprehension had not been stated. The statements were verified by the Head of the Administration of Alkhan-Kala on 15 October 2001.
85. The applicant submitted copies of her applications to various State authorities and of their responses referred to in the Facts section above.
86. The applicant submitted copies of the media reports referred to in paragraphs 17-18 above. She also submitted reports concerning the situation in the Chechen Republic at the relevant period by the Secretary General of the Council of Europe, Memorial Human Rights Centre and Human Rights Watch.
87. The Government enclosed a number of letters from various courts in Russia, stating that the applicant had never lodged any complaints about the allegedly unlawful detention of her husband or challenged in court any actions or omissions of the investigating or other law-enforcing authorities.
88. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR (Russian Soviet Federative Socialist Republic). On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation.
89. Article 161 of the new Code of Criminal Procedure establishes the rule that data from the preliminary investigation cannot be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in the criminal proceedings without their permission.
90. Article 46 of the Russian Constitution guarantees to everybody judicial protection of their rights and freedoms. It further provides that decisions and actions (or inaction) of bodies of State authority and local self-government, public associations and officials may be appealed against to a court.
91. The Law on Complaints to Courts against Actions and Decisions Violating the Rights and Freedoms of Citizens (as revised by the Federal Law of 14 December 1995) provides that any citizen has the right to lodge a complaint with a court when he or she considers that his or her rights have been infringed by an unlawful action or decision of a State agency, local self-government body or an institution, enterprise or association, non-governmental organisation or official or State employee. Complaints may be lodged either directly with a court or with a higher State agency, which must review the complaint within one month. If the complaint is rejected by the latter or there has been no response on its part, the person concerned has the right to bring the matter before a court.
92. Under section 5 of the Law on Operational Search Activities, an individual who considers that his rights and freedoms have been violated by the bodies carrying out the operational search activities can complain of those actions to a higher body carrying out the operational search activities, a prosecutor or a court.
VIOLATED_ARTICLES: 13
2
3
38
5
VIOLATED_PARAGRAPHS: 2-1
5-1


ITEMID: 001-57978
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: GRANDCHAMBER
DATE: 1996
DOCNAME: CASE OF LOBO MACHADO v. PORTUGAL
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (adversarial trial);Not necessary to examine P1-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: John Freeland;N. Valticos;R. Pekkanen
TEXT: 10. Mr Pedro Lobo Machado is a Portuguese national who lives in Lisbon. In 1955 he joined the Sacor company as an engineer. Following its nationalisation in 1975, Sacor was absorbed into Petrogal-Petróleos de Portugal, EP ("Petrogal"), a State-owned concern. On 4 April 1989 Petrogal became a public limited company, in which the State is still the majority shareholder. In the meantime, on 1 January 1980, the applicant had retired.
11. On 5 February 1986 Mr Lobo Machado brought proceedings against Petrogal in the Lisbon industrial tribunal; the company was represented by a lawyer appointed by the chairman of its board of directors. Mr Lobo Machado sought recognition of the occupational grade of "director-general" instead of that of "director" which had been assigned to him by his employer. As that classification had an effect on the amount of his retirement pension, he also sought payment of the sums that, under the collective labour agreement (acordo colectivo de trabalho), should have been paid him since 1980.
12. The Lisbon industrial tribunal dismissed his claims in a judgment of 7 October 1987. That decision was upheld by the Lisbon Court of Appeal in a judgment of 1 June 1988.
13. The applicant appealed to the Supreme Court (Supremo Tribunal de Justiça).
14. After the parties had exchanged pleadings, the case file was sent to the representative of the Attorney-General’s department at the Supreme Court, a Deputy Attorney-General, on 20 February 1989. On 28 February 1989 that representative delivered an opinion in which he recommended that the appeal should be dismissed, as follows:
"1. Seen.
2. The appellant reiterates the arguments already presented to the Court of Appeal and seeks to have that court’s judgment and the one of the court of first instance set aside and to have his action allowed. Those arguments, however, were duly considered in the judgment appealed against, which is sufficient in itself as regards the reasons given for it. No further consideration is therefore necessary.
3. I am consequently of the opinion that the appeal must be dismissed."
15. On 19 May 1989 the Supreme Court, sitting in private, considered the appeal. Three judges, a registrar and the member of the Attorney-General’s department were present at the deliberations. The parties had not been asked to attend. At the end of the deliberations the court adopted a judgment in which it dismissed the appeal and this was served on the applicant on 22 May 1989.
16. The independence and status of the Attorney-General’s department are similar to those of the judiciary. In Article 221 paras. 1 and 2 of the Constitution its functions are laid down as follows:
"1. The duties of the Attorney-General’s department are to represent the State, to act as prosecuting authority and to uphold the democratic legal order and the interests determined by law.
2. The Attorney-General’s department shall have its own status and shall be autonomous, in accordance with law."
17. Law no. 47/86 of 15 October 1986 defines the scope of the powers of the Attorney-General’s department and lays down the manner in which it is to intervene - as plaintiff or defendant or else in an "associated" (acessória) capacity - in judicial proceedings. The following provisions are relevant to the instant case:
"By law, the Attorney-General’s department is the body responsible for representing the State, acting as prosecuting authority and upholding the democratic legal order and the interests assigned to it by law."
"It shall be the duty of the Attorney-General’s department in particular to:
(a) represent the State ...;
(b) act as prosecuting authority;
(c) represent workers and their families in defence of their social rights;
(d) uphold the independence of the courts, within the limits of its responsibilities, and ensure that the judicial function is discharged in accordance with the Constitution and statute law;
(e) further the execution of court decisions in respect of which it is so empowered;
(f) direct criminal investigations, even where they are carried out by other bodies;
(g) promote and cooperate in campaigns for the prevention of crime;
(h) monitor the constitutionality of legislation;
(i) intervene in bankruptcy and insolvency proceedings and in any other proceedings of public interest;
(j) act in an advisory capacity, as provided in this Law;
(l) supervise police proceedings;
(m) lodge appeals against decisions resulting from collusion between the parties with the intention of evading the law or which have been given in breach of an express statutory provision; and
(n) discharge all the other functions assigned to it by statute."
"1. The Attorney-General’s department shall intervene in proceedings as plaintiff or defendant:
(a) where it represents the State; ...
(d) where it represents workers and their families in defence of their social rights;
...
4. The Attorney-General’s department shall intervene in proceedings in an `associated’ capacity:
(a) where none of the cases provided for in subsection (1) applies and where the parties concerned in the case are autonomous regions, local authorities, other public entities, charities and other institutions promoting the public interest, persons lacking legal capacity or missing persons; and
(b) in all other cases provided for by law."
"1. Where the Attorney-General’s department intervenes in an `associated’ capacity, it shall watch over the interests entrusted to it by taking all necessary measures.
2. The intervention shall be made in the manner laid down in procedural law."
"[The Attorney-General’s department] shall be represented [in the supreme courts] by Deputy Attorneys-General ..."
"The Minister of Justice may:
(a) give specific instructions to the Attorney-General concerning civil cases in which the State has an interest;
(b) authorise the Attorney-General’s department ... to admit the other side’s case, conclude settlements or discontinue proceedings in civil cases to which the State is a party;
..."
18. The relevant provisions of the Code of Civil Procedure, which are also applicable to cases falling within the jurisdiction of the industrial tribunals, are the following:
"1. The State shall be represented by the Attorney-General’s department.
2. If the case concerns State property or State rights but the property is managed or the rights exercised by autonomous bodies, the latter may instruct counsel, who shall act conjointly with the Attorney-General’s department in the proceedings. In the event of disagreement between the Attorney-General’s department and counsel, the view of the Attorney-General’s department shall prevail."
"1. After inspecting the case file, each judge shall append his signature and the date, together with any comments. At the end of this process, the registry shall enter the case in the court’s list.
2. On the day on which the court sits to adopt its judgment, the reporting judge shall read out the draft judgment, after which each of the other judges shall vote in the order in which they have inspected the case file. Where possible, a photocopy or a manuscript or typescript copy of the draft judgment shall be distributed to the presiding judge and the other judges of the court at the beginning of the sitting.
3. ..."
"Where the Attorney-General’s department must intervene [in proceedings], the case file shall be sent to it [for observations] for a period of seven days, after which the file ... shall be sent to the reporting judge and the other non-presiding judges for the purposes of a final decision; the reporting judge may keep the file for fourteen days and the other judges for seven days."
19. Under the Constitution and the Institutional Law governing the Attorney-General’s department, the latter must intervene in all proceedings in which the public interest (interesse público) is at stake.
In labour-law cases the practice of the Employment Division of the Supreme Court is for the representative of the Attorney-General’s department at that court (a Deputy Attorney-General) to be given the file so that he can express an opinion on the merits of the appeal. As a general rule, that representative also takes part in the sitting held to consider the appeal.
20. The Government cited the following provisions of the Code of Labour Procedure:
"The representatives of the Attorney-General’s department must automatically represent:
(a) workers and their families;
(b) ..."
"Where a legal representative is appointed, the automatic representation by the Attorney-General’s department shall cease, without prejudice to that department’s intervention in an `associated’ capacity."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86088
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ŞAHİN KARAKOÇ v. TURKEY
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial;Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Antonella Mularoni;Ireneu Cabral Barreto;Nona Tsotsoria
TEXT: 4. The applicant was born in 1957 and lives in İstanbul.
5
6. On 5 July 1993 Başbağlar village in Erzincan was raided by terrorists. They burned numerous houses and killed 33 villagers. The applicant, who was living in the neighbouring village, was suspected of having participated in the so-called “Başbağlar Massacre”.
7. The applicant and twenty other individuals were charged under Article 125 of the Criminal Code.
8. On 24 January 1996 the applicant was arrested and remanded in custody. On 18 February 1997 the İzmir State Security Court ordered his release pending trial.
9. On 23 October 1997 the applicant was acquitted.
10. On 12 February 1999 the applicant lodged a complaint under Law no. 466 with the Bakırköy Assize Court against the Treasury, requesting 1,000,000,000 Turkish liras (TRL) in respect of pecuniary damage and TRL 4,000,000,000 for non-pecuniary damage by way of compensation for unjustified detention between 24 January 1996 and 18 February 1997.
11. The Bakırköy Assize Court appointed one of its members as judge rapporteur (naip hakim) to investigate the case and draft a report. The applicant was heard by the judge rapporteur on 8 June and 12 October 2000. He stated that he did not have a regular job at the time but was unofficially working for a dairy merchant six months a year, collecting cheese from local farmers, and in return was paid TRL 100,000,000 per month.
12. On 6 November 2001 the Bakırköy Assize Court found that the applicant’s unjustified detention on remand for 384 days qualified for compensation. In its judgment, the court took note of all the complaints set out by the applicant’s lawyer, as well as the content of the judge rapporteur’s report and the written submissions of the public prosecutor. The court further referred to the minimum wage at the time and the expert report which had estimated the applicant’s income loss to be TRL 168,114,000. The court concluded in line with the expert report and awarded the applicant TRL 168,114,000 for pecuniary damage. Considering the applicant’s economic and social position, the seriousness of the charges brought against him and the time that he had spent in detention as well as the intensity of his emotional suffering, the court additionally awarded the applicant TRL 1,000,000,000 for non-pecuniary damage.
13. The applicant’s lawyer appealed and claimed that the amount of compensation for non-pecuniary damage was insufficient reparation for the wrongful detention of the applicant and the subsequent suffering that he had endured. He further maintained that, considering the length of the proceedings, the compensation for pecuniary damage awarded by the court was not sufficient either. He also complained about the lack of interest on the compensation.
14. On 4 March 2002 the Court of Cassation quashed the decision on the ground that the defendant had not been notified of the applicant’s claim and had not been invited to submit replies.
15. The case was resumed before the Bakırköy Assize Court. On 18 September 2002 the judge rapporteur heard the applicant who repeated his previous statements and was paid TRL 100,000,000 per month. A new expert report estimated the applicant’s income loss, on the basis of the net minimum wages in force at the time, to be TRL 113,266,974.
16. On 21 October 2002 the Bakırköy Assize Court awarded the applicant TRL 113,266,974 for pecuniary damage and TRL 2,000,000,000 for non-pecuniary damage. The court refused the applicant’s claim for interest which was not covered by Law no. 466.
17. On 14 January 2003 the applicant appealed.
18. The written opinion of the Public Prosecutor was submitted to the Court of Cassation and notified to the applicant.
19. On 21 October 2003 the Court of Cassation upheld the decision of the Bakırköy Assize Court, with a minor amendment regarding the costs and expenses.
20. On 5 October 2004 the applicant was paid TRL 2,113,266,974 plus TRL 1,233,300,000 in statutory interest, applied with effect from 21 October 2002.
VIOLATED_ARTICLES: 6
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-78738
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: HEIBL v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mrs Maria Katharina Heibl, is an Austrian national who was born in 1951 and lives in Linz. She was represented before the Court by Mr T. Fritzsche, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of premises of 7,565 square meters registered in the land register under the no. 1183 and situated in Linz. At the time of the events, this property was designated as building land and used for agricultural purposes.
In December 1994 the applicant requested the parcelling of this property and the issuing of a permit for a building site (Bauplatzbewilligung) with the Linz Municipality (Magistrat) as she wished subsequently to sell the land. As the Linz Municipality did not deal with this request, the applicant filed, on 12 June 1995, a request for the transfer of jurisdiction (Devolutionsantrag) with the Linz Municipal Council (Stadtsenat).
On 5 July 1995 the Municipal Council, referring to a building prohibition (Bausperre) concerning the applicant’s premises issued under the Upper Austria Building Regulations Act (Bauordnung) on 13 June 1995, dismissed the applicant’s request. On 12 September 1995 the Upper Austria Regional Government (Landesregierung) dismissed the applicant’s appeal. On 23 October 1995 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof) arguing in essence that the building prohibition was unlawful. On 27 February 1996 the Constitutional Court declined to deal with the applicant’s complaint. By decisions of the Linz Municipal Council the building prohibition was twice extended until 13 June 1999.
Meanwhile, in April 1999, the Linz Municipal Council decided a new building scheme (Bebauungsplan) under the Upper Austria Planning Act (Raumordnungsgesetz) which designated a strip of land of approximately 4,770 square meters of the applicant’s property as public traffic area (öffentliche Verkehrsfläche). In May 1999 this scheme became final. In the respective proceedings the applicant had been consulted and had filed objections. However, she did not challenge the building scheme and its underlying legislation by lodging an individual request for review (Individualantrag) before the Constitutional Court.
The city intended to use the concerned strip of land for the urban construction project SolarCity Linz, a planned new city area in line with the principles of eco-solar and modern construction. Part of the applicant’s land should serve, more specifically, the future extension of the street running along the applicant’s property which was to be developed into a broad avenue constituting the middle rib of this new city area.
The applicant offered the Linz Municipality to buy the concerned land for 2,000 Austrian Schillings (ATS) (approximately 145 Euros (EUR)) per square meter. She argued that this price corresponded to the amount offered by building companies for the parcelled land before the issuing of the building prohibition. In August 2000 the Linz Municipality declined this offer. It proposed to acquire the part of the applicant’s property designated as public traffic area at the price of 450 ATS (approximately 33 EUR) per square meter and to pay later, namely at the time of the actual extension of the street, the differences between this amount and the then prevailing market value for public traffic areas. Furthermore, should the applicant build on her remaining property, she was to transfer another part of her property to the Linz Municipality without compensation.
The applicant declined this offer and, on 6 September 2000, instituted civil proceedings against the Linz Municipality. She submitted that the building prohibition concerning her property had been unlawful and had hindered her to sell it. Furthermore, by the designation of parts of her property as public traffic area, the Linz Municipality had expropriated the area de facto and hindered her to dispose of these and the adjacent plots. As the Municipality had not realised the town planning project and declined to buy the concerned premises for an adequate price, the applicant claimed 820,750 ATS (approximately 59,650 EUR) in damages (Schadenersatz) for foregone interests. She further based her claim on the title of unlawful enrichment (Bereicherung).
On 19 April 2001 the Linz Regional Court (Landesgericht) dismissed the applicant’s claim. It found that the building prohibition had been lawful. Furthermore, the Linz Municipality was under no obligation to buy the concerned premises. Thus, the applicant attempted to obtain compensation for the re-designation of her land although this was not possible according to constant Austrian case-law.
The applicant appealed and argued that the Linz Municipality acted unfairly because, on the one hand, it had put itself in the position of the exclusive potential purchaser and, on the other hand, had not offered any adequate conditions for a sale. On 7 September 2001 the Linz Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal.
The applicant filed an extraordinary appeal with the Supreme Court. She submitted inter alia that, in violation of her right to peaceful enjoyment of her property, she had been restricted in the use of it without any compensation. She referred to the case Sporrong and Lönnroth v. Sweden (judgment of 23 September 1982, Series A no. 52). Furthermore, the restriction had lasted for a long time, it was not foreseeable and it had not been checked when and whether the town planning project would finally be realised. She requested the Supreme Court to institute proceedings with the Constitutional Court to review the constitutionality of the relevant provisions of the Upper Austria Building Regulations Act and Planning Act as they did not provide any compensation for loss of value suffered by the issuing of a building prohibition or re-designation of land.
On 29 January 2002 the Supreme Court rejected the applicant’s extraordinary appeal. It found that the building prohibition and the subsequent modification of the building scheme were lawful. Furthermore, it was a normal feature that after re-designation the value of the concerned property changed and there was no reason for special treatment in the present case. The Linz Municipality was under no obligation to enter into a contract with the applicant. If parts of the applicant’s property should be used for the construction of the planned road and the parties could not reach an agreement on the sale of these premises, the rules concerning expropriation were to be applied in which proceedings the amount of compensation was to be determined. Finally, the Supreme Court refused to institute proceedings reviewing the constitutionality of the Planning Act as it found this to be irrelevant for the proceedings at issue. This decision was served on the applicant’s counsel on 12 March 2002.
In a meeting with the Mayor of Linz and the municipal councillor (Stadtrat) competent for town planning matters in August 2005, the applicant was informed that the planned course of the avenue in question might be changed. Until now no further steps have been taken by the competent authorities in this matter. The concerned land is still used for agricultural purposes.
In Upper Austria land planning is governed by the Upper Austria Land Planning Act (Raumordnungsgesetz). Building schemes (Bebauungsplan) and any amendments thereto are regarded as decrees (Verordnung). Decrees are addressed to the general public. The lawfulness of decrees can only be reviewed by the Constitutional Court (Verfassungsgerichtshof). A person, who is affected by a decree, may seize the Constitutional Court with an individual request for review of the lawfulness of a decree, if the decree has direct consequences for the situation of the person without it being necessary that an administrative decision is taken (Individualantrag, Article 139 of the Federal Constitution). There is no specific period of time within which such request may be filed.
Section 38 of the Upper Austria Land Planning Act provides that the Municipality has to compensate a land owner for the loss of value caused by the issuing or changing of a building scheme, if his or her parcel is not designated as building land although it is suited for building purposes and is surrounded by building land. Furthermore, it has to compensate a land owner the disbursements he/she made to prepare his/her land for building if, because of subsequent changes of the respective building scheme, building later becomes impossible.
Section 45 of the Upper Austria Building Regulations Act (Bauordnung), in the version applicable to the present case, stipulated that the Muncipal Council can apply by decree a building prohibition (Bausperre) on an area if the respective area zoning plan or the building scheme is to be amended and the issuing of a building prohibition is in the interests of an appropriate and controlled building development. The building prohibition was valid until the establishment of the area zoning plan or building scheme, for a maximum period of two years. It could, in principle, be extended twice for another year by decree of the Municipal Council. The Building Regulations Act did not provide any compensation to the land owner concerned in case a building prohibition was issued.
Proceedings concerning the expropriation of land and subsequent compensation are regulated in ss.10-15 of the Upper Austria Building Regulations Act. These proceedings are instituted upon request of the concerned authority.


ITEMID: 001-86572
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LADBROKES WORLDWIDE BETTING v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Päivi Hirvelä
TEXT: The applicant, Ladbrokes Worldwide Betting, is a betting and gaming company based in Harrow, United Kingdom. It is represented before the Court by Mr S. Widmark and Ms T. Cabander, lawyers practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 11 December 2003 the applicant applied to the Government, under section 45 of the Lotteries Act (Lotterilagen, 1994:1000), for a permit to provide betting and gaming services in Sweden.
By a decision of 18 March 2004, the Government rejected the application. The decision, prepared by the Ministry of Finance in consultation with the Prime Minister’s Office (Statsrådsberedningen) and several other ministries, was signed by Mr Bosse Ringholm, the Minister for Finance, on behalf of the Government. The Government noted that betting and gaming in Sweden was essentially reserved for the State, certain non-profit making organisations (folkrörelserna) and the equestrian sports, and that the profits should be to the benefit of the public or for public utility purposes. They did not find that there were reasons to deviate from those principles and grant a permit to the applicant by way of an exception under section 45.
On 16 June 2004 the applicant applied to the Supreme Administrative Court (Regeringsrätten) for a judicial review of the Government’s decision under the Act on Judicial Review of Certain Administrative Decisions (Lagen om rättsprövning av vissa förvaltningsbeslut, 1988:205). The applicant claimed that the impugned decision should be quashed as it was contrary to Articles 43 and 49 of the EC Treaty, the latter guaranteeing the free movement of services. It also requested the court to hold an oral hearing.
On 8 December 2004 the Supreme Administrative Court, sitting with five judges, decided not to hold a hearing in the case.
Stating that three of the judges had previously, at the Ministry of Finance and the Court of Justice of the European Communities, dealt with the question whether the Lotteries Act was in conformity with Community law, the applicant, on 19 January 2005, challenged their impartiality and moved for their disqualification from the case. One of the challenged judges was later replaced and, before the Court in the instant proceedings, the applicant stated that it had been clarified that there were no grounds to question the impartiality of another judge. Of relevance to the present case is thus only the alleged partiality of one of the judges, Mr Nils Dexe. The applicant stated in its plea for disqualification that he had been Director-General for Administrative and Legal Affairs (expeditions- och rättschef) in the Ministry of Finance between 1992 and 2001, when he had allegedly been responsible for the preparation and enactment of the Lotteries Act as well as a new rule which criminalised violations of that Act’s prohibition on the promotion of foreign lotteries. Within the scope of that work, the question whether Swedish lottery legislation was contrary to EU law had been investigated, leading to the Ministry taking the view that it was not.
It is true that Mr Dexe held the above-mentioned position in the Ministry of Finance between 1992 and 2001. However, responsibility for the Lotteries Act was transferred to that ministry only on 1 July 1996, about three years after it had been prepared. The new rule on criminalisation was, however, elaborated and introduced during Mr Dexe’s period of service within the Ministry of Finance. In its proposal for introducing, inter alia, this rule, the Government investigated its conformity with EU law. The decision to propose the amendment was taken by 14 ministers of the Government, none of whom was Mr Ringholm, at a Government meeting held on 29 October 1998. Mr Ringholm was Minister for Finance between 1999 and 2004. Previously, he had not been a member of the Government or employed in the Government offices.
On 4 February 2005 the Supreme Administrative Court, sitting without the challenged judges, rejected the applicant’s plea for disqualification. It stated the following:
“Decisions concerning Government bills are political decisions. Being a civil servant and not a political appointee, the Director-General for Legal Affairs at a Government Ministry has no decisive influence on the contents of the proposals that the Government presents. Consequently, the contents of a Government bill do not reflect the personal opinion of the Director-General for Legal Affairs on a legal issue; indeed, his opinion may differ from that of the Government. Accordingly, the duty of the Director-General for Legal Affairs to see to the drafting of legislative proposals, on the basis of positions taken by politicians, cannot be held to mean that he has thereby concerned himself with the matter in a manner that could provide grounds for disqualification when dealing with cases relating to the application of the legislation. In light of these considerations, the Supreme Administrative Court finds that Nils Dexe’s previous employment as Director-General for Administrative and Legal Affairs at the Ministry of Finance does not constitute a circumstance that entails disqualification in the case. Nor has any other circumstance come to light that disqualifies Nils Dexe. The objection that he is disqualified must therefore be dismissed.”
On 15 February 2005 the Supreme Administrative Court altered its decision of 8 December 2004 and granted the applicant’s renewed request for an oral hearing. The hearing was held on 2 June 2005.
By a judgment of 20 June 2005, the Supreme Administrative Court, sitting with five judges, including Mr Dexe, upheld the Government’s decision. The court stated that, in a judgment of 26 October 2004 (RÅ 2004 ref. 95), it had already examined the conformity of the Swedish lottery legislation with EU law, as interpreted by the jurisprudence of the European Court of Justice, and considered that there were no reasons to come to a different conclusion in the applicant’s case. The court had noted in the earlier case that, as regards betting, the Court of Justice had accepted extensive restrictions on the freedom to provide services on the territory of other EU member states. The court had found therefore that the Swedish lottery legislation, which required a permit for essentially all forms of betting and gaming, and its main objectives, namely the protection of the individual and the public, and the principle that profits should benefit the public or be for public utility purposes, were acceptable to the Court of Justice. The court had further considered that the implementation of the lottery legislation met the requirements laid down by the Court of Justice for restrictions on the freedoms enshrined in the EC Treaty. Thus, while the court considered that the Government’s reasoning in the decision of 18 March 2004 could be seen as misleading and incomplete in light of the object and purpose of the Lotteries Act and the examination made by the court in the above-mentioned judgment, the challenged decision was contrary neither to the Lotteries Act nor to EC law as it had been developed thus far through the jurisprudence of the Court of Justice.
The Lotteries Act is applicable to lotteries, including betting, which are arranged for the general public.
Section 9 of the Act provides that, save for some exceptions not relevant to the present case, the organisation of betting and gaming requires a permit. Under section 15, a permit to arrange betting and gaming of the type provided by the applicant may be given to a Swedish non-profit making association which fulfils certain requirements, inter alia that it conducts activities whose main objective is to support public utility purposes within the country. If there are special reasons, a permit may be granted also to a legal person which is not a non-profit making association or to a legal person whose main objective is to support public utility purposes outside the country. Further conditions are laid down in section 16.
According to sections 39-41, applications for a permit to organise betting and gaming are determined by a municipal committee and, in some cases, the country administrative board and the National Gaming Board (Lotteriinspektionen).
The Government may grant a permit by virtue of section 45:
“The Government may grant a special permit to arrange a lottery in other cases and according to other procedures than as provided in this Act. ...”
The Government is thus authorised to grant a permit in situations where the requirements of section 15 are not fulfilled. The preparatory works mention the need to issue permits in specific situations. As examples of permits issued under section 45, reference is made to lotteries arranged by the savings banks in order to encourage savings and to the two companies wholly or partially controlled by the Swedish State, AB Svenska Spel and AB Trav och Galopp, which have obtained permits to arrange certain games, including sports and horse betting. The preparatory works do not provide any other directives on how to apply this provision (Government Bill 1993/94:182, pp. 79-80).
The Swedish lottery legislation’s compliance with EC law, notably Article 49 of the EC Treaty, is under investigation by the European Commission. On 27 June 2007 the Commission issued a reasoned opinion, the second step of the procedure laid down in Article 226 of the Treaty.


ITEMID: 001-69579
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TETERINY v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Partly inadmissible;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 4. The applicants were born in 1954 and 1955 respectively, and live in Syktyvkar in the Komi Republic. They are both retired judges.
5. On 26 September 1994 the Ezhvinskiy District Court of the Komi Republic allowed the first applicant's claim against the Yemva Town Council for provision of State housing, for which he was eligible as a judge. The court ordered the town council to:
“...grant or purchase for Mr Teterin, whose family comprises five members, a separate well-equipped flat or house taking account of the plaintiff's entitlement to one additional room or having a habitable surface of no less than 65 square metres, located near the Knyazhpogostskiy District Court in the town of Yemva”.
6. No appeal was brought against the judgment and it became final and enforceable ten days later.
7. In October 1994 enforcement proceedings were instituted. However, the judgment could not be enforced because the town authorities did not possess any available housing or the financial resources to purchase a flat.
8. The applicants complained to the Courts Administration Department at the Supreme Court of the Russian Federation, the Court Bailiffs' Department of the Ministry of Justice of the Russian Federation and the Court Bailiffs' Department of the Komi Republic Department of Justice. The responses received by the applicants in 2001 and 2002 indicated that the judgment could not be enforced as the town authorities had no available housing.
9. In 2002 the first applicant applied to the Ezhvinskiy District Court with a request to change the method of execution of the judgment of 26 September 1994. He asked that the value of the flat be paid to him in cash.
10. On 24 April 2002 the Ezhvinskiy District Court closed the proceedings for the amendment of the judgment as the first applicant had withdrawn his request.
11. On 23 August 2002 a court bailiff reopened enforcement proceedings and ordered the Knyazhpogostskiy District Council to execute the judgment.
12. On 30 January 2003 the enforcement proceedings were closed because enforcement was not possible. On the following day the writ of execution was returned to the first applicant.
13. Further to the applicants' complaint, on 3 March 2003 the Knyazhpogostskiy District Court quashed the bailiff's decision to terminate the proceedings.
14. The proceedings were resumed on 7 May 2003. The bailiff collected information on the cash flows and funds of the Yemva Town Council.
15. On 7 July 2003 the bailiff discontinued the enforcement proceedings on account of the town council's lack of funds for the construction or purchase of housing. The writ of execution was returned to the Ezhvinskiy District Court. The first applicant submits that a copy of that decision was not served on him and that he first became aware of it upon receipt of the Government's memorandum of 1 December 2003, to which it was attached.
16. On 19 January 2004 the Yemva Town Council offered the first applicant a two-room flat of 25 square metres with central heating. It noted that no State housing had been constructed since 1994 and that it was therefore not in a position to offer a flat with full amenities. The applicants did not accept the offer. On 17 December 2004 the enforcement proceedings were re-opened and they are now pending.
17. The judgment of 26 September 1994 has not been enforced to date.
18. Section 9 of the Enforcement Proceedings Act (Law no. 119-FZ of 21 July 1997) provides that a bailiff's order on institution of enforcement proceedings must fix a time-limit for the defendant's voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow should the defendant fail to comply with the time-limit. Pursuant to section 13, the enforcement proceedings must be completed within two months of the receipt of the writ of execution by the bailiff.
19. The RSFSR Housing Code (Law of 24 June 1983, effective until 1 March 2005) provided that Russian citizens were entitled to possess flats owned by the State or municipal authorities or other public bodies, under the terms of a tenancy agreement (section 10). Certain “protected” categories of individuals (disabled persons, war veterans, Chernobyl victims, police officers, judges, etc.) had a right to priority treatment in the allocation of flats.
20. A decision on granting a flat was to be implemented by way of issuing the citizen with an occupancy voucher (ордер на жилое помещение) from the local municipal authority (section 47). The voucher served as the legal basis for taking possession of the flat designated therein and for the signing of a tenancy agreement between the landlord, the tenant and the housing maintenance authority (section 51, and also Articles 672 and 674 of the Civil Code).
21. Members of the tenant's family (including the spouse, children, parents, disabled dependants and other persons) had the same rights and obligations under the tenancy agreement as the tenant (section 53). The tenant had the right to accommodate other persons in the flat (section 54). In the event of the tenant's death, an adult member of the tenant's family succeeded him or her as a party to the tenancy agreement (section 88).
22. Flats were granted for permanent use (section 10). The tenant could terminate the tenancy agreement at any moment, with the consent of his or her family members (section 89). The landlord could terminate the agreement on the grounds provided for by law and on the basis of a court decision (sections 89-90). If the agreement was terminated because the house was no longer fit for living in, the tenant and family were to receive a substitute flat with full amenities (section 91). Tenants or members of their family could be evicted without provision of substitute accommodation only if they “systematically destroyed or damaged the flat”, “used it for purposes other than residence” or “systematically breached the [generally accepted rules of conduct] making life with others impossible” (section 98).
23. The tenant had the right to exchange the flat for another flat in the State or municipal housing, including across regions (section 67). An exchange involved reciprocal transfer of rights and obligations under the respective tenancy agreements and became final from the moment of issuing new occupancy vouchers (section 71). “Speculative” or sham exchanges were prohibited (section 73(2)).
24. The Federal Housing Policy Act (Law no. 4218-I of 24 December 1992) provides that the payments for a flat comprise (i) a housing maintenance charge, (ii) a housing repair charge, and, in the case of tenants only, (iii) rent (section 15). The maintenance and repair charges do not depend on the flat's ownership, whether private or State. Rent is fixed by regional authorities, taking into account the surface area and quality of the housing. It is usually considerably lower than free-market rent. For example, the highest monthly rent for municipal housing in Moscow is 80 kopecks (0.02 euro) per square metre (Resolution of the Moscow Government no. 863-PP of 7 December 2004).
25. In 1991, the Privatisation of Housing Act (Law no. 1541-I of 4 July 1991) was adopted (it will remain effective until 31 December 2006). It grants Russian citizens the right to acquire title to State and municipal-owned flats of which they have taken possession on the basis of a social tenancy agreement (section 2). The acquisition of title does not require any payment or fee (section 7). The right to privatisation can be exercised once in a lifetime (section 11) and requires the consent of all adult family members.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1