ITEMID: 001-117684
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF I.K. v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Russia);Non-pecuniary damage - finding of violation sufficient
JUDGES: Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
TEXT: 7. The applicant, a Russian national of Chechen origin, was born in 1976 and lives in Vienna.
8. The applicant left Chechnya for Kyrgyzstan and Poland in April 2004, with his mother. They arrived in Austria in November 2004 and lodged an asylum request there.
9. He claimed in his asylum proceedings that in 2001 his father had been shot before his eyes. The applicant’s father had worked in the security services of former President Maskhadov, a separatist leader, which was why he and his family had been persecuted. Furthermore, the applicant had been arrested four times and only released after the payment of a ransom. The applicant stated that he had been ill-treated during those arrests and also that in 2004 Russian soldiers had brutally beaten him in the course of an identity check.
10. On 5 March 2007 the Federal Asylum Office (Bundesasylamt) dismissed the applicant’s asylum request as unfounded. It found the applicant’s story contradictory and unconvincing and also found that he had failed to substantiate the existence of any real risk to himself.
11. It seems that the applicant’s mother’s asylum request was also dismissed, for the same reasons.
12. The applicant and his mother appealed. However, after an oral appeal hearing, the applicant withdrew his appeal on 28 April 2009 due to allegedly wrong legal advice he received at the time.
13. On 12 May 2009 the Asylum Court (Asylgerichtshof) allowed the applicant’s mother’s appeal and granted her the status of a recognised refugee. As regards her flight story it found as follows:
“The following has been established concerning the appellant and her reasons for fleeing:
The appellant claims to be a Russian Federation national of Chechen ethnic origin and, prior to fleeing, lived in the village of Kurchaloy in Chechnya.
It is credible that in the event of her return to her country of origin, the appellant would be under threat from State authorities or third parties on account of her membership of a particular social group. The appellant alleged that she was under threat from Russian and Chechen security forces because of her husband’s previous activities.
It has been found plausible that the appellant’s husband was an officer for a Chechen security agency and was murdered by the security forces on 5 November 2001 in the village of Kurchaloy.
The findings as to the appellant and her reasons for fleeing result from the descriptions given by the persons examined at the hearing, which – in this respect – are consistent and credible. The appellant was able to give a description of her husband’s murder that was clear and consistent with her previous statements, thereby conveying the impression of having actually experienced what she was talking about. The witness C.S. gave a convincing statement confirming that the appellant’s husband worked for a Chechen security agency.”
14. After referring to a number of general country reports on Russia and the north Caucasus region, the Asylum Court continued its legal assessment of the facts of the applicant’s mother’s case, as follows:
“Regard being had to the findings concerning the situation of Chechens in the Russian Federation, the appellant faces an objective risk of persecution in view of the facts established as to her reasons for seeking asylum. The appellant’s husband was murdered in his homeland because of his work for a Chechen security agency. Accordingly, the appellant is already known to the Russian and pro-Russian authorities and has come specifically to their attention. This means that she is in particular danger of being arrested by the security forces in Chechnya, and in such an eventuality there is a significant probability that she would be at risk of suffering human rights violations. Moreover, in view of the situation in Chechnya and the fact that the appellant is known by name to the authorities, it cannot be assumed with sufficient certainty that she would not be exposed in other parts of the Russian Federation, for example, to attacks of any kind warranting asylum or that she could expect effective protection from the authorities against such attacks. Accordingly, the appellant – who, moreover, is suffering from post-traumatic stress disorder – has no reasonable internal flight alternatives available either.”
15. On 4 June 2009 the applicant lodged a new asylum request. In interviews conducted in the course of those asylum proceedings, the applicant repeated the initial reasons he had given for leaving Chechnya, and informed the authorities that he had married a Russian national in March 2008 and that the couple had two children together, born in 2009 and 2010. When asked if his mother was alive, the applicant stated his mother’s name and that she lived with him and his family in the same apartment. He explained that his family therefore all lived in Austria and that he would like to be with them and work there. When the applicant was notified that he had not lodged any new facts, he stated that he knew that, but that he did not have any new facts to offer or information in that regard.
16. The applicant confirmed that he still had relatives and friends in Chechnya and that a cousin of his had returned to Chechnya from Austria in 2010. A brother of his father lived in Ingushetia. Referring to his criminal convictions (see paragraphs 25 and 26 below) the applicant stated that he regretted his mistakes. Finally, in the interview on 5 January 2011 the applicant stated, when asked whether he was taking any medication at the moment, that he was not.
17. On 11 January 2011 the Federal Asylum Office rejected the applicant’s subsequent asylum request as res judicata. It established the applicant’s identity and reiterated the proceedings in his respect. In the context of the applicant’s private and family life in Austria, the Federal Asylum Office referred to his mother, wife and children, confirming that they were all recognised refugees in Austria and citing their file numbers. Indicating various country reports, inter alia by the German Federal Foreign Office of 2010, the United States Department of State Report on Russia of 2010, the Office for Foreigners (Poland), CEDOCA, the Documentation and Research Centre of the Office of the Commissioner General for Refugees and Stateless Persons (Belgium) and the country of origin information available to the Federal Asylum Office, it noted that the general security situation and the protection of human rights in the north Caucasus region had deteriorated again in 2008 and 2009. In some cases of individuals who had decided to follow rebel groups, the authorities were reported to have retaliated by burning down the houses of their relatives. The numbers of abductions had also increased again, to seventy-four cases in the first half of 2009. The Federal Asylum Office further referred to the amnesty regime introduced in 2006 and the surge of house burnings in 2008 and 2009.
18. In conclusion and as regards the applicant’s submissions, the Federal Asylum Office stated that the applicant’s initial reasons for leaving had already been considered unconvincing in the first proceedings and that the applicant had not forwarded any new relevant information in the new proceedings.
19. An appeal by the applicant against this decision was granted suspensive effect. In his appeal the applicant claimed deficiencies of the proceedings and a wrong legal assessment of the established facts by the Federal Asylum Office. He claimed that, because he was still at real risk of persecution if he returned to Chechnya and because of the deterioration of the security situation there, his subsequent asylum request could not be considered a res judicata.
20. On 1 April 2011 the Asylum Court dismissed the appeal as unfounded. In the summary of the facts of the case, it referred to the applicant’s mother, wife and children, while again citing the file numbers of their asylum proceedings.
21. As regards the nature of a res judicata, it reiterated that a new decision on the merits of an application could only be based upon a change of circumstances which was significant enough to allow the conclusion, either alone or in combination with other facts, that those reasons for which the former application had been dismissed were to be evaluated differently in the present proceedings. Referring to long-standing administrative jurisprudence, it further stated that the credibility of the alleged new facts had to be evaluated anew in the context of all former investigation results in the event that those alleged new facts could prima facie lead to a different outcome of the proceedings.
22. The Asylum Court went on and established that the applicant’s reasons for leaving Chechnya presented in the subsequent proceedings had already been deemed unconvincing by the previous final decision. It therefore confirmed that the applicant had not presented any relevant new information with regard to his asylum request. Furthermore, the applicant was not suffering from any severe psychological or physical illness, and still had friends and family living in Chechnya.
23. With regard to the applicant’s right to respect for his family life, it considered that the applicant’s removal to Russia would constitute an interference with his family life, since the applicant lived with his mother, wife and two minor children, who were all recognised refugees, but found that the applicant had never had secure residence status in Austria, even when he had married, and that he had not shown that he had substantially integrated into Austrian society. On the other hand, the applicant had been convicted four times of criminal offences such as theft and aggravated bodily harm, and an exclusion order in respect of residence until September 2013 had been issued in 2007, which had led to the conclusion that the public interest in the applicant’s removal outweighed his private interest in respect of his family life in Austria.
24. On 10 June 2011 the Constitutional Court (Verfassungsgerichtshof) dismissed the applicant’s application for legal aid to enable him to lodge a complaint. That decision was served on the applicant’s counsel on 18 July 2011.
25. The applicant was convicted of theft and attempted theft on 29 November 2005 and 29 March 2006, fined 100 euros (EUR) and sentenced to one month’s imprisonment, suspended with probation. On 22 May 2007 the Krems Regional Court (Landesgericht Krems) convicted the applicant of trafficking under the 2005 Aliens Police Act (Fremdenpolizeigesetz) and of aggravated bodily harm, and sentenced him to ten months’ imprisonment. Finally, on 6 February 2008, the Vienna Regional Court (Landesgericht Wien) again convicted the applicant of aggravated bodily harm and sentenced him to an additional two months’ imprisonment.
26. On 27 June 2007 the Vienna Federal Police Authority (Bundespolizeidirektion) issued an unlimited residence ban (unbefristetes Rückkehrverbot) against the applicant. Due to an amendment of the 2005 Aliens Police Act, the validity of the residence ban was later reduced to ten years, i.e. until 24 July 2017.
27. On 2 August 2011 the Vienna Federal Police Authority summoned the applicant to arrange for his removal. It seems that a travel certificate had been requested.
28. On 17 January 2012 the Court applied an interim measure under Rule 39 and requested the Austrian Government to stay the applicant’s removal to Russia until further notice.
29. From 28 June to 6 July 2011 the applicant was treated as an inpatient at Otto Wagner Hospital in Vienna for a depressive episode. The discharge letter of 7 July 2011 stated that he had been admitted suffering from a severe depressive episode and suicidal thoughts, so that his medication could be adjusted. He was prescribed Cipralex and Mirtabene when he was released. For his health to continue to improve it was recommended that he should continue to have his family’s support and that removal to Russia would be irresponsible from a psychiatric point of view.
30. On 27 June 2011 and after one consultation, Vienna General Hospital confirmed that the applicant was suffering from post-traumatic stress disorder and a medium-level depressive episode and recommended pharmacological and psychotherapeutical treatment. It also advised against removing him to Russia.
31. A diagnostic letter from Wilhelminen Hospital in Vienna dated 12 May 2010 stated that a CT scan had shown a facial bone conversion in his right ventral maxilla that would correspond with the applicant’s statement that he had been physically abused in Chechnya.
32. Section 68 § 1 of the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz) provided that submissions from individuals who request modification of a ruling which is not, or is no longer, subject to appeal, shall be rejected as res judicata. In this context the 2005 Asylum Act (Asylgesetz 2005) included in its section 75 § 4 a reference to section 68 of the Code of General Administrative Procedure that
“Decisions rejecting or dismissing a request under the [former versions of the] Asylum Act ... shall constitute res judicata in proceedings under this Federal Act concerning the same facts.”
33. The Austrian Administrative Court has observed in its jurisprudence as follows (see judgment of the Administrative Court of 21 November 2002, no. 2002/20/0315):
“An alleged change in circumstances may entitle and require the authority to give a fresh decision on the merits – once it has carried out any necessary investigations of its own motion under section 28 of the 1997 Asylum Act – only where such a change, by itself or in combination with other facts, would be of legal relevance to the question of asylum; a different legal assessment of the request must not be prima facie inconceivable. Furthermore, the alleged change in circumstances must have at least a credible basis which is relevant to the question of asylum and to which to the above-mentioned prospect of a positive decision can be linked. To that end, as soon as it begins to examine the admissibility of the (fresh) asylum request, the authority must address the credibility of the asylum-seeker’s allegations and, where appropriate, the evidential value of any certificates. Should the authority’s investigations conclude that, contrary to the party’s allegations, a change in circumstances which is prima facie capable of giving rise to a different assessment has not in fact occurred, the asylum request must be rejected in accordance with section 68(1) of the Code of General Administrative Procedure (see decision of 19 July 2001, no. 99/20/0418, with further references; see also the case-law recapitulated in Walter/Thienel, Verwaltungsverfahrensgesetze I, 2nd ed., notes 73 et seq. on section 68 of the Code of General Administrative Procedure).”
34. This section gives a short overview of selected reports from various easily accessible sources on the security and human rights situation in Chechnya available at the time of the applicant’s subsequent asylum proceedings in Austria.
35. The Commissioner stated that the north Caucasus has been a region of major interest and concern from the very beginnings of the office of the Commissioner of Human Rights in 1999.
36. The Commissioner noted that the lifting of the decade-long counterterrorist operation in the Chechen Republic had not been accompanied by a diminution in the activities of illegal armed groups. Federal and Chechen authorities had carried out over 100 special operations in the first half of 2009 (see paragraphs 21-23). The report further noted an increase in the number of abductions and disappearances in Chechnya since the end of 2008. In some cases, the involvement of law-enforcement officials had been alleged (see paragraph 30). Finally, the lack of effective investigations of repeated human rights violations, the alleged involvement of law-enforcement officials in crimes, and the deficiencies of the judiciary, were concerns which had been raised by both the current Commissioner and his predecessor (see paragraph 39).
37. He concluded the report with regret, in view of the fact that stability in the north Caucasus region had yet to be achieved. Increased activity by illegal armed groups, the lack of effective investigations of disappearances and killings, and murders of human rights activists were of particular concern. Patterns of impunity persisted, even though there were indications of serious efforts to reinforce the rule of law. The difficult economic situation was one of the destabilising factors, and the need for economic development and further social reconstruction was evident (see paragraph 64).
38. This report described the north Caucasus region of Russia as remaining an area of particular concern. The government’s poor human rights record in the north Caucasus worsened as the government fought insurgents, Islamist militants, and criminal forces. Local government and insurgent forces reportedly engaged in killing, torture, abuse, violence, politically motivated abductions, and other brutal or humiliating treatment, often with impunity. In Chechnya, Ingushetia and Dagestan, the number of extrajudicial killings and disappearances increased markedly, as did the number of attacks on law-enforcement personnel. Authorities in the north Caucasus appeared to be acting outside federal government control. Although the Chechen government announced a formal end to counterterrorist operations, there was an increase in violence during the summer, which continued through the remainder of the year. Federal and local security forces in Chechnya, as well as the private militia of Chechen president Ramzan Kadyrov, allegedly targeted families of suspected insurgents for reprisals and committed other abuses. There were also reports of rebel involvement in bombing civilian targets and of politically motivated disappearances in the region. Some rebels were allegedly involved in kidnapping for ransom. According to the Internetbased news agency Caucasian Knot, 342 members of law-enforcement agencies lost their lives and 680 were injured during the year in actions involving insurgents. Thousands of internally displaced persons were living in temporary centres in the region: the centres failed to meet international standards.
39. Under the heading “Use of Excessive Force and Other Abuses in Internal Conflicts”, it was noted that during the year complex and inter-connected insurgencies caused continuing instability in the north Caucasus, with a marked upsurge in incidents committed by government and insurgent forces during the year. Overall, there were increases in disappearances, killings, and other abuses. There were reports that federal and local security forces seeking to quell the insurgencies were continuing to use excessive force and to engage in human rights abuses, including torture, summary executions, disappearances, and arbitrary detentions. Authorities in the north Caucasus were reportedly acting with impunity, and some observers alleged that the federal government had ceded de facto control of the region to local authorities. Rebels were also continuing to commit human rights abuses, including major acts of terrorism and summary executions.
40. As regards abductions, the report stated that Government personnel, rebels and criminal elements were continuing to engage in abductions in the north Caucasus. Officials and observers disagreed on the numbers involved. Human rights groups believed that the numbers of abductions were under-reported, due to the reluctance of detainees’ relatives to complain to authorities for fear of reprisals. The Memorial NGO reported that during the year there were ninety kidnappings in Chechnya, while the MAShR NGO reported 234 disappearances in Ingushetia and thirty-one disappearances in Dagestan. It stated that there was no accountability for government forces involved in abductions. There were continued reports that abductions were followed by beatings or torture to extract confessions, and that abductions were conducted for political reasons. Criminal groups in the region, possibly with links to rebel forces, frequently resorted to kidnapping.
41. Finally, under the heading “Physical Abuse, Punishment and Torture”, it could be read that armed forces and police units were reported to have frequently abused and tortured people in holding facilities where federal authorities took them to separate fighters and those who were suspected of aiding rebels from ordinary civilians.
42. The Amnesty International report stated that there were continuing reports of human rights violations, including arbitrary detention, torture and ill-treatment, and extrajudicial executions, by law-enforcement officials in Chechnya, Dagestan and Ingushetia. There was also an ongoing concern that investigations of these violations were not effective, resulting in widespread impunity.
43. The present report was an update to the organisation’s report of 2007 and used sources from human rights organisations, such as the Human Rights Centre of the Russian NGO Memorial, Amnesty International and Human Rights Watch, as well as the results of a meeting with six human-rights activists from the north Caucasus and a Chechen human-rights specialist. The report stated that the security situation in the whole north Caucasus region had deteriorated. In summer 2009 the number of those killed in “special operations” conducted by security services or in terrorist attacks had doubled. The Centre for Strategic and International Studies CSIS reported 442 deaths between May and August 2009 in the whole region (see page 4).
44. The report cited arbitrary arrests, secretive detention, torture and ill-treatment, disappearances and abductions, death in detention and extrajudicial executions, the burning of houses, displacements and forced recruitments as the most severe violations of human rights (see page 10 et seq.).
45. Members of non-governmental organisations, journalists, members of the political opposition, victims and their relatives, witnesses and lawyers, relatives of armed rebels or of members of the security services, young religious men and internally displaced persons were considered to be those most at risk of being subjected to serious human rights violations in the region. Furthermore, returnees from abroad were, according to a member of Memorial, at particular risk. They were under suspicion of having fled because of their membership of the armed opposition and of having returned with considerable financial resources.
46. In this context the report referred to a letter from the Austrian office of the United Nations High Commissioner for Refugees (“the UNHCR”) of 7 April 2009 that stated, as regards asylum requests by refugees from Chechnya, that while the military and security situation in Chechnya had significantly improved, there were still instances of human-rights violations that could lead to well-founded asylum requests by Chechens. Such requests should therefore be fairly and efficiently examined by the authorities. As regards those who had already been recognised as refugees, the UNHCR recommended that they should in any event be able to keep their legal status. Any return to the Russian Federation should be done on an exclusively voluntary basis (see page 20, including a link to the cited document by the UNHCR office in Austria).
47. The Court summarised newer relevant country reports only recently in its judgement Bajsultanov v. Austria (see Bajsultanov v. Austria, no. 54131/10, §§ 38 et seq, 12 June 2012). Where available, updated information once more depicts the following situation:
48. The report for 2011 identified as one of the most significant problems during that year in its executive summary that the rule of law was particularly deficient in the north Caucasus, where the conflict between the government and insurgents, Islamist militants and criminal forces had led to numerous human rights abuses by security forces and insurgents, who were reportedly engaging in killing, torture, physical abuse and politically motivated abductions. In addition, the government of Ramzan Kadyrov in Chechnya was continuing to violate fundamental freedoms, engage in collective retribution against families of suspected militants, and foster an overall atmosphere of fear and intimidation.
49. More precisely, the report stated under the heading “Use of Excessive Force and Other Abuses in Internal Conflicts” that violence was continuing in the north Caucasus republics, driven by separatism, inter-ethnic conflict, jihadist movements, vendettas, criminality and excesses by security forces. Dagestan continued to be the most violent area in the north Caucasus; Kabardino-Balkaria also saw an increase in violence compared with the previous year, while violence continued to decrease in Chechnya, Ingushetia and North Ossetia.
50. It further noted that government personnel, rebels and criminal elements were continuing to engage in abductions in the north Caucasus. The head of the prosecutor general’s office for the north Caucasus stated in June that more than 2,100 disappearances remained unsolved in the north Caucasus republics. Security forces in Chechnya, Dagestan and Ingushetia frequently abducted or detained individuals for several days without immediate explanation or charge. Human rights groups believed the number of abductions was under-reported because victims’ relatives were reluctant to complain to authorities due to fear of reprisals. Generally, there was no accountability for government security personnel involved in abductions. Memorial reported at the beginning of the year that at least eight Russian citizens from the north Caucasus had been kidnapped since September 2010. According to Caucasian Knot, in the first eleven months of 2011 there were sixty-four disappearances, twenty-eight of which took place in Dagestan, twenty in Chechnya, thirteen in Ingushetia and three in Kabardino-Balkaria. Human rights groups alleged that security forces under the command of Kadyrov played a significant role in abductions, either on their own initiative or in joint operations with federal forces, including abductions of family members of rebel commanders and fighters.
51. Under the heading “Physical abuse, punishment and torture” the paper mentioned that armed forces and police units in the region reportedly abused and tortured both rebels and civilians in holding facilities. The burning of homes of suspected rebels, a mechanism of collective punishment in use since 2008, was reportedly continuing.
52. As regards the security situation in the north Caucasus, the report found that it remained volatile, and serious human rights abuses were being committed by both armed groups and security officials. The rapid post-conflict reconstruction of Chechnya continued with high levels of federal funding, though unemployment remained a problem. Activity by armed groups declined compared to other regions in the north Caucasus. Law-enforcement operations continued to give rise to reports of serious human rights violations. In a letter to the human rights NGO The Interregional Committee Against Torture, a senior Chechen prosecutor acknowledged that investigations of enforced disappearances in Chechnya were ineffective.
53. As regards the north Caucasus the report stated that according to official statements, the number of insurgent attacks in the north Caucasus doubled in 2010 compared to 2009. In 2011 the Islamist insurgency remained on the rise, especially in the Republic of Dagestan. The authorities’ use of torture, abduction-style detention, enforced disappearances and extrajudicial killings in the course of their counter-insurgency campaign, coupled with impunity for these abuses, had antagonised the population of the north Caucasus.
54. Chechen law-enforcement and security agencies under Ramzan Kadyrov’s de facto control were continuing to resort to collective punishment of relatives and suspected supporters of alleged insurgents. Memorial documented eleven abductions of local residents by security forces between January and September 2011. Five of those abducted subsequently “disappeared”.
55. Increasingly, victims refused to speak about violations due to fear of official retribution. In a letter to a Russian NGO in March 2011 federal authorities stated that police in the Chechen Republic sabotaged investigations of abductions of local residents, and sometimes covered up for perpetrators. The letter marked the first public acknowledgment of the importance of federal investigative authorities in investigating abuses in Chechnya.
VIOLATED_ARTICLES: 3


ITEMID: 001-57510
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1978
DOCNAME: CASE OF KLASS AND OTHERS v. GERMANY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (victim);No violation of Art. 8;No violation of Art. 13;No violation of Art. 6
TEXT: 10. The applicants, who are German nationals, are Gerhard Klass, an Oberstaatsanwalt, Peter Lubberger, a lawyer, Jürgen Nussbruch, a judge, Hans-Jürgen Pohl and Dieter Selb, lawyers. Mr. Nussbruch lives in Heidelberg, the others in Mannheim.
All five applicants claim that Article 10 para. 2 of the Basic Law (Grundgesetz) and a statute enacted in pursuance of that provision, namely the Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and Telecommunications (Gesetz zur Beschränkung des Brief-, Post- under Fernmeldegeheimnisses, hereinafter referred to as "the G 10"), are contrary to the Convention. They do not dispute that the State has the right to have recourse to the surveillance measures contemplated by the legislation; they challenge this legislation in that it permits those measures without obliging the authorities in every case to notify the persons concerned after the event, and in that it excludes any remedy before the courts against the ordering and execution of such measures. Their application is directed against the legislation as modified and interpreted by the Federal Constitutional Court (Bundesverfassungsgericht).
11. Before lodging their application with the Commission, the applicants had in fact appealed to the Federal Constitutional Court. By judgment of 15 December 1970, that Court held that Article 1 para. 5, sub-paragraph 5 of the G 10 was void, being incompatible with the second sentence of Article 10 para. 2 of the Basic Law, in so far as it excluded notification of the person concerned about the measures of surveillance even when such notification could be given without jeopardising the purpose of the restriction. The Constitutional Court dismissed the remaining claims (Collected Decisions of the Constitutional Court, Vol. 30, pp. 1 et seq.).
Since the operative provisions of the aforementioned judgment have the force of law, the competent authorities are bound to apply the G 10 in the form and subject to the interpretation decided by the Constitutional Court. Furthermore, the Government of the Federal Republic of Germany were prompted by this judgment to propose amendments to the G 10, but the parliamentary proceedings have not yet been completed.
12. As regards the applicants’ right to apply to the Constitutional Court, that Court held, inter alia:
"In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ..." (ibid, pp. 16-17).
13. Although, as a precautionary measure, the applicants claimed before both the Constitutional Court and the Commission that they were being subjected to surveillance measures, they did not know whether the G 10 had actually been applied to them.
On this point, the Agent of the Government made the following declaration before the Court:
"To remove all uncertainty as to the facts of the case and to give the Court a clear basis for its decision, the Federal Minister of the Interior, who has competence in the matter, has, with the G 10 Commission’s approval, authorised me to make the following statement:
At no time have surveillance measures provided for by the Act enacted in pursuance of Article 10 of the Basic Law been ordered or implemented against the applicants. Neither as persons suspected of one or more of the offences specified in the Act nor as third parties within the meaning of Article 1, paragraph 2, sub-paragraph 2, of the G 10 have the applicants been subjected to such measures. There is also no question of the applicants’ having been indirectly involved in a surveillance measure directed against another person - at least, not in any fashion which would have permitted their identification. Finally, there is no question of the applicants’ having been subjected to surveillance by mistake - for example through confusion over a telephone number -, since in such cases the person concerned is notified of the surveillance measure."
The contested legislation
14. After the end of the Second World War, the surveillance of mail, post and telecommunications in Germany was dealt with by the occupying powers. As regards the Federal Republic, neither the entry into force on 24 May 1949 of the Basic Law nor the foundation of the State of the Federal Republic on 20 September 1949 altered this situation which continued even after the termination of the occupation régime in 1955. Article 5 para. 2 of the Convention of 26 May 1952 on Relations between the Three Powers (France, the United States and the United Kingdom) and the Federal Republic - as amended by the Paris Protocol of 23 October 1954 - specified in fact that the Three Powers temporarily retained "the rights ... heretofore held or exercised by them, which relate to the protection of the security of armed forces stationed in the Federal Republic". Under the same provision, these rights were to lapse "when the appropriate German authorities (had) obtained similar powers under German legislation enabling them to take effective action to protect the security of those forces, including the ability to deal with a serious disturbance of public security and order".
15. The Government wished to substitute the domestic law for the rights exercised by the Three Powers and to place under legal control interferences with the right, guaranteed by Article 10 of the Basic Law, to respect for correspondence. Furthermore, the restrictions to which this right could be subject appeared to the Government to be inadequate for the effective protection of the constitutional order of the State. Thus, on 13 June 1967, the Government introduced two Bills as part of the Emergency Legislation. The first sought primarily to amend Article 10 para. 2 of the Basic Law; the second - based on Article 10 para. 2 so amended - was designed to limit the right to secrecy of the mail, post and telecommunications. The two Acts, having been adopted by the federal legislative assemblies, were enacted on 24 June and 13 August 1968 respectively.
The Three Powers had come to the view on 27 May that these two texts met the requirements of Article 5 para. 2 of the above-mentioned Convention. Their statements declared:
"The rights of the Three Powers heretofore held or exercised by them which relate to the protection of the security of armed forces stationed in the Federal Republic and which are temporarily retained pursuant to that provision will accordingly lapse as each of the above-mentioned texts, as laws, becomes effective."
16. In its initial version, Article 10 of the Basic Law guaranteed the secrecy of mail, post and telecommunications with a proviso that restrictions could be ordered only pursuant to a statute. As amended by the Act of 24 June 1968, it now provides:
"(1) Secrecy of the mail, post and telecommunications shall be inviolable.
(2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that legal remedy through the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people’s elected representatives."
17. The G 10, adopting the solution contemplated by the second sentence of paragraph 2 of the above-quoted Article 10, specifies (in Article 1 para. 1) the cases in which the competent authorities may impose the restrictions provided for in that paragraph, that is to say, may open and inspect mail and post, read telegraphic messages, listen to and record telephone conversations. Thus, Article 1 para. 1 empowers those authorities so to act in order to protect against "imminent dangers" threatening the "free democratic constitutional order", "the existence or the security of the Federation or of a Land", "the security of the (allied) armed forces" stationed on the territory of the Republic and the security of "the troops of one of the Three Powers stationed in the Land of Berlin". According to Article 1 para. 2, these measures may be taken only where there are factual indications (tatsächliche Anhaltspunkte) for suspecting a person of planning, committing or having committed certain criminal acts punishable under the Criminal Code, such as offences against the peace or security of the State (sub-paragraph 1, no. 1), the democratic order (sub-paragraph 1, no. 2), external security (sub-paragraph 1, no. 3) and the security of the allied armed forces (sub-paragraph 1, no. 5).
Paragraph 2 of Article 1 further states that the surveillance provided for in paragraph 1 is permissible only if the establishment of the facts by another method is without prospects of success or considerably more difficult (aussichtslos oder wesentlich erschwert). The surveillance may cover only "the suspect or such other persons who are, on the basis of clear facts (bestimmter Tatsachen), to be presumed to receive or forward communications intended for the suspect or emanating from him or whose telephone the suspect is to be presumed to use" (sub-paragraph 2).
18. Article 1 para. 4 of the Act provides that an application for surveillance measures may be made only by the head, or his substitute, of one of the following services: the Agencies for the Protection of the Constitution of the Federation and the Länder (Bundesamt für Verfassungsschutz; Verfassungsschutzbehörden der Länder), the Army Security Office (Amt für Sicherheit der Bundeswehr) and the Federal Intelligence Service (Bundesnachrichtendienst).
The measures are ordered, on written application giving reasons, either by the supreme Land authority in cases falling within its jurisdiction or by a Federal Minister empowered for the purpose by the Chancellor. The Chancellor has entrusted these functions to the Ministers of the Interior and of Defence each of whom, in the sphere falling within his competence, must personally take the decision as to the application of the measures (Article 1 para. 5, sub-paragraphs 1 and 2).
Measures ordered must be immediately discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary (Article 1 para. 7, sub-paragraph 2). The measures remain in force for a maximum of three months and may be renewed only on fresh application (Article 1 para. 5, sub-paragraph 3).
19. Under the terms of Article 1 para. 5, sub-paragraph 5, the person concerned is not to be notified of the restrictions affecting him. However, since the Federal Constitutional Court’s judgment of 15 December 1970 (see paragraph 11 above), the competent authority has to inform the person concerned as soon as notification can be made without jeopardising the purpose of the restriction. To this end, the Minister concerned considers ex officio, immediately the measures have been discontinued or, if need be, at regular intervals thereafter, whether the person concerned should be notified. The Minister submits his decision for approval to the Commission set up under the G 10 for the purpose of supervising its application (hereinafter called "the G 10 Commission"). The G 10 Commission may direct the Minister to inform the person concerned that he has been subjected to surveillance measures.
20. Implementation of the measures ordered is supervised by an official qualified for judicial office (Article 1 para. 7, sub-paragraph 1). This official examines the information obtained in order to decide whether its use would be compatible with the Act and whether it is relevant to the purpose of the measure. He transmits to the competent authorities only information satisfying these conditions and destroys any other intelligence that may have been gathered.
The information and documents so obtained may not be used for other ends and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (Article 1 para. 7 sub-paragraphs 3 and 4).
21. The competent Minister must, at least once every six months, report to a Board consisting of five Members of Parliament on the application of the G 10; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board (Article 1 para. 9, sub-paragraph 1, of the G 10 and Rule 12 of the Rules of Procedure of the Bundestag). In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered (Article 1 para. 9). In practice and except in urgent cases, the Minister seeks the prior consent of this Commission. The Government, moreover, intend proposing to Parliament to amend the G 10 so as to make such prior consent obligatory.
The G 10 Commission decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately (Article 1 para. 9, sub-paragraph 2). Although not required by the Constitutional Court’s judgment of 15 December 1970, the Commission has, since that judgment, also been called upon when decisions are taken on whether the person concerned should be notified of the measures affecting him (see paragraph 19 above).
The G 10 Commission consists of three members, namely, a Chairman, who must be qualified to hold judicial office, and two assessors. The Commission members are appointed for the current term of the Bundestag by the above-mentioned Board of five Members of Parliament after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions.
The G 10 Commission draws up its own rules of procedure which must be approved by the Board; before taking this decision, the Board consults the Government.
For the Länder, their legislatures lay down the parliamentary supervision to which the supreme authorities are subject in the matter. In fact, the Länder Parliaments have set up supervisory bodies which correspond to the federal bodies from the point of view of organisation and operation.
22. According to Article 1 para. 9, sub-paragraph 5, of the G 10:
"... there shall be no legal remedy before the courts in respect of the ordering and implementation of restrictive measures."
The official statement of reasons accompanying the Bill contains the following passage in this connection:
"The surveillance of the post and telecommunications of a certain person can serve a useful purpose only if the person concerned does not become aware of it. For this reason, notification to this person is out of the question. For the same reason, it must be avoided that a person who intends to commit, or who has committed, the offences enumerated in the Act can, by using a legal remedy, inform himself whether he is under surveillance. Consequently, a legal remedy to impugn the ordering of restrictive measures had to be denied ...
The Bill presented during the 4th legislative session ... provided for the ordering (of such measures) by an independent judge. The Federal Government abandoned this solution in the Bill amending Article 10 of the Basic Law, introduced as part of the Emergency Legislation, mainly because the Executive, which is responsible before the Bundestag, should retain the responsibility for such decisions in order to observe a clear separation of powers. The present Bill therefore grants the power of decision to a Federal Minister or the supreme authority of the Land. For the (above-)mentioned reasons ..., the person concerned is deprived of the opportunity of having the restrictive measures ordered examined by a court; on the other hand, the constitutional principle of government under the rule of law demands an independent control of interference by the Executive with the rights of citizens. Thus, the Bill, in pursuance of the Bill amending Article 10 of the Basic Law ..., prescribes the regular reporting to a Parliamentary Board and the supervision of the ordering of the restrictive measures by a Control Commission appointed by the Board ..." (Bundestag document V/1880 of 13 June 1967, p. 8).
23. Although access to the courts to challenge the ordering and implementation of surveillance measures is excluded in this way, it is still open to a person believing himself to be under surveillance pursuant to the G 10 to seek a constitutional remedy: according to the information supplied by the Government, a person who has applied to the G 10 Commission without success retains the right to apply to the Constitutional Court. The latter may reject the application on the ground that the applicant is unable to adduce proof to substantiate a complaint, but it may also request the Government concerned to supply it with information or to produce documents to enable it to verify for itself the individual’s allegations. The authorities are bound to reply to such a request even if the information asked for is secret. It is then for the Constitutional Court to decide whether the information and documents so obtained can be used; it may decide by a two-thirds majority that their use is incompatible with State security and dismiss the application on that ground (Article 26 para. 2 of the Constitutional Court Act).
The Agent of the Government admitted that this remedy might be employed only on rare occasions.
24. If the person concerned is notified, after the measures have been discontinued, that he has been subject to surveillance, several legal remedies against the interference with his rights become available to him. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court declaration, the legality of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law.
25. Article 2 of the G 10 has also amended the Code of Criminal Procedure by inserting therein two Articles which authorise measures of surveillance of telephone and telegraphic communications.
Under Article 100 (a), these measures may be taken under certain conditions, in particular, when there are clear facts on which to suspect someone of having committed or attempted to commit certain serious offences listed in that Article. Under Article 100 (b), such measures may be ordered only by a court and for a maximum of three months; they may be renewed. In urgent cases, the decision may be taken by the public prosecutor’s department but to remain in effect it must be confirmed by a court within three days. The persons concerned are informed of the measures taken in their respect as soon as notification can be made without jeopardising the purpose of the investigation (Article 101 para. 1 of the Code of Criminal Procedure).
These provisions are not, however, in issue in the present case.
NON_VIOLATED_ARTICLES: 13
6
8


ITEMID: 001-79442
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF PONOMARENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 and P1-1
JUDGES: Loukis Loucaides
TEXT: 4. The applicant was born in 1933 and lives in Chernyakhovsk, the Kaliningrad Region.
5. On 27 March 2002 the Chernyakhovsk Town Court of the Kaliningrad Region (the Town Court) allowed the applicant's claim against the Chernyakhovsk housing authority of the Ministry of Defence (квартирно-эксплуатационная часть Министерства Обороны РФ г.Черняховска) for provision of accommodation. The Town Court ordered that the housing authority:
“...provide Mrs Ponomarenko, whose family comprises one member, with another well-equipped dwelling premises for permanent use having a living surface of no less than established standards of living surface for one person (12 square metres), corresponding to the established sanitary and technical standards and well-equipped in accordance with the standards applied in Chernyakhovsk...”
6. The Town Court also awarded the applicant 1,000 Russian roubles (RUR) in respect of non-pecuniary damage.
7. On 3 April 2002 the housing authority allocated to the applicant a one-room flat. However, she did not accept the flat as it did not meet sanitary standards.
8. No appeal was brought against the judgment of 27 March 2002 and it entered into force on 9 April 2002.
9. On 12 April 2002 the bailiffs' service of the Chernyakhovsk District initiated enforcement proceedings and on 30 April 2002 the defendant executed the judgment of 27 March 2002 as regards the compensation for non-pecuniary damage.
10. A special commission of the housing authority visited the flat allocated to the applicant on 3 April and concluded, on 12 September 2002, that it was only equipped in part and occupied by another person.
11. On 23 May 2003 the housing authority unsuccessfully applied to the Town Court for the re-opening of the proceedings due to the newly discovered circumstances. They claimed that according to the decision of the Government of the Russian Federation of 11 October 2001, the housing premises of the Ministry of Defence had been handed over to the local administration. Therefore it was not possible to enforce the judgment of 27 March 2002.
12. On 17 May 2004, following the bailiff's request, the Town Court noted that the housing authority had handed over to the local administration only some housing premises. The court ordered the bailiff to establish which premises were left at the disposal of the housing authority and to provide the applicant with one of them.
13. On 21 March and 6 April 2005 the bailiff fined the Head of the housing authority for the failure to enforce the judgment of 27 March 2002.
14. On 26 January 2006 the housing authority and the applicant's representative concluded a social tenancy agreement by which a flat was allocated to the applicant. On 9 February 2006 the applicant signed a document by which she accepted the proposed accommodation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85635
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: COURTNEY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Reginald Courtney, is a British national who was born in 1938 and lives in Bristol. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 10 May 1989. On 4 April 2001 the applicant applied for widows’ benefits. On 26 April 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The applicant was not entitled to child benefit at the time of his claim.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-80964
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: YAKIMENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Yuriy Vladimirovich Yakimenko, is a Russian national who was born in 1937 and lives in the town of Novozybkov in the Bryansk Region. The Russian Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant lived in the town of Zlynsk in the Bryansk Region which had been affected by the Chernobyl nuclear plant disaster. In 2000 he decided to move to the village of Vily and sought a resettlement allowance. On 10 January 2001 the Zlynkovskiy District Court of the Bryansk Region ordered the town council to pay the applicant 125,670 Russian roubles (RUR). On 1 March 2001 the Bryansk Regional Court upheld the judgment. On an unspecified date the applicant submitted his writ of execution to the Zlynsk Bailiff Office.
As the judgment of 10 January 2001 remained without enforcement, the applicant brought a civil action for compensation for the depreciation of the award. On 10 February 2005 the Zlynkovskiy District Court awarded the applicant RUR 97,690 as compensation for the continued non-enforcement of the judgment in the period up to 31 January 2005. These monies were paid to the applicant on 16 December 2005.
In the meantime, on 8 November 2005 the principal debt under the judgment of 10 January 2001 was paid to the applicant.
On 7 March 2006 the Zlynkovskiy District Court awarded a further compensation of RUR 19,252. It appears that the applicant received it in August 2006.


ITEMID: 001-57843
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF SIBSON v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits (non-exhaustion of domestic remedies);No violation of Art. 11
JUDGES: C. Russo;John Freeland
TEXT: 7. Mr Sibson, who was born in 1929, was employed by Courtaulds Northern Spinning Ltd, formerly Courtaulds Northern Textiles Ltd, ("CNS") from November 1973 as a heavy goods vehicle driver. He was based at its depot at Greengate, Lancashire, together with between forty and fifty other drivers. His services gave complete satisfaction at all times.
8. Until the events giving rise to the present case, the applicant was a member of the Transport and General Workers Union ("TGWU"); from 1981 to 1984 he was its branch secretary. In 1985 all the other non-managerial employees at Greengate save one belonged to that union. At that time, however, that depot was not a "closed shop" (see paragraph 17 below). Indeed, the later of two statements of his terms of employment furnished to the applicant specified that he had the right to be a member of no trade union and that he would be informed if this right came to be modified by the conclusion of a closed shop agreement.
9. In March 1985 a fellow driver, Mr D., allegedly accused Mr Sibson of having "milked the funds" of the union whilst he was branch secretary. The applicant subsequently lodged with the local TGWU branch a complaint to the effect that Mr D. had "disseminated false statements tending to depreciate" him as one of its officers, but it was dismissed by the branch adjudication panel on 20 July 1985.
Mr Sibson was so dissatisfied with that decision that he resigned from TGWU by letter of 24 July and joined the United Road Transport Union instead. Some of his fellow drivers immediately ostracised him and others obstructed him in the performance of his work.
10. Between July and October 1985 CNS attempted in vain to resolve the dispute. After a period of "uneasy peace", a substantial majority of the TGWU members at Greengate voted, on 12 October, in favour of (a) a closed shop agreement with CNS and (b) industrial action if Mr Sibson continued in employment at that depot after 25 October.
At a meeting on 21 October between Mr Dear, the personnel manager of CNS, and the branch committee of the union it was agreed that the strike threat would be lifted if the applicant either rejoined TGWU or was employed on driving work not based at Greengate. On 22 October the applicant told Mr Dear that he would rejoin the union only if he received an apology from Mr D. and that he would not accept the alternative proposed by Mr Dear, namely a move to Chadderton, a depot about 1½ miles away from Greengate. In a letter of the same date to the applicant, Mr Dear summarised the discussions to date; stated that CNS were contractually entitled to transfer the applicant to Chadderton, where his earnings would be similar to those at Greengate; denied that the move would be a demotion; and expressed the hope that the applicant would give serious thought to his position because "[his] dismissal [was] a possibility".
11. Further meetings were then held, with the participation of a senior official of the Advisory, Conciliation and Arbitration Service. The applicant declined to accept as an apology a certain statement to be signed by Mr D. As regards a transfer to Chadderton, the applicant expressed concern about conditions there, in particular his fear - which Mr Dear assured him was groundless - of losing his current lorry and allowances for nights spent away from home; he also said that he could not face the aggravation from other drivers which he was sure would continue at that depot.
At a final meeting on 8 November 1985 the applicant declined to accept either of the alternatives then put before him - working at Greengate after rejoining TGWU or moving to Chadderton - and suggested that the management should dismiss him. Mr Dear refused to do that, and added that if the applicant reported to Greengate for work, he would be sent home without pay. Mr Sibson, citing his solicitor’s advice that that would constitute constructive dismissal (see paragraph 19 below), then said that he would resign with immediate effect, which he did by letter of the same date. He did not take up Mr Dear’s further offer, dated 14 November, of employment at Chadderton with the same opportunity for earnings and expenses as previously.
12. Mr Sibson then lodged with the Industrial Tribunal a complaint of unfair dismissal (see paragraph 18 below) against CNS and TGWU. In the grounds for his application he stated that he had "been ‘constructively dismissed’ for refusing to accept ‘action short of dismissal’" (see paragraph 20 below). His representative in these proceedings was not legally qualified, legal aid not being available for this purpose.
CNS and TGWU contended that a closed shop agreement was in existence (which would have made any dismissal fair; see paragraph 18 below). CNS also denied that there had been either constructive dismissal or action short of dismissal. Mr Dear admitted in cross-examination the absence of any operational reason for moving the applicant to Chadderton, the sole purpose being to avoid a strike; had a strike not been threatened, CNS would have retained him at Greengate and not put any pressure on him to rejoin TGWU.
By decision of 21 July 1986, the Industrial Tribunal unanimously accepted the complaint of unfair dismissal; it did not deal with the merits of the allegation of action short of dismissal. It found that Mr Sibson was entitled to refuse to rejoin TGWU because there was no closed shop agreement in force; that the request that he move to Chadderton was not reasonable since it was not made for genuine operational reasons but solely to avoid a strike; that CNS had no right to suspend the applicant without pay; that he was therefore entitled to treat himself as dismissed; and that the dismissal was unfair because its only motive was his exercise of his express right not to belong to a union. The tribunal reserved the question of remedies for further consideration, the applicant having opted for re-engagement (see paragraph 18 below).
13. On 16 January 1987 the Employment Appeal Tribunal, by a majority, dismissed an appeal by CNS on points of law. It found that the Industrial Tribunal had not erred in law, misdirected itself or reached an unreasonable conclusion.
14. On 25 March 1988 the Court of Appeal unanimously upheld an appeal by CNS on a point of law, confined to the question whether Mr Sibson had been constructively dismissed. It found that there was an implied term in his contract that his employer could - for any reason - direct him to work at any place within reasonable daily reach of his home; the Industrial Tribunal had erred in law in holding that this right could be exercised only if the direction were reasonable and that this condition would not be satisfied unless the direction was made for genuine operational reasons. Lord Justice Slade stated, as regards this implied "mobility term":
"I cannot see how Mr Sibson could reasonably have objected to a term giving the contract this limited degree of flexibility when he entered the employment in 1973. If the evidence had disclosed any special circumstances which as at that time made it a matter of importance to him that he should be based at ... Greengate ... rather than at (say) Chadderton, the Industrial Tribunal would no doubt have said so."
The Court of Appeal concluded that CNS had acted within its contractual rights in requiring the applicant to transfer to a nearby depot and that he could not be regarded as having been constructively dismissed. No question of unfair dismissal therefore arose.
15. On 15 April 1988 Mr Sibson applied for legal aid to appeal to the House of Lords. On 30 June legal aid was granted for the purpose of obtaining counsel’s opinion on the merits of an appeal. On 8 August counsel advised that there were no reasonable prospects of success and that leave to appeal would not be given. Further legal aid was therefore refused on 19 August.
16. The relevant domestic law in force at the time of the events giving rise to the present case may be summarised as follows.
17. A closed shop is an undertaking or workplace where there is in existence a "union membership agreement", that is an agreement or arrangement between one or more trade unions and one or more employers or employers’ associations having the effect in practice of requiring employees of a certain class to be or become members of a specified union (section 30 of the Trade Union and Labour Relations Act 1974, as amended).
18. The Employment Protection (Consolidation) Act 1978 ("the 1978 Act") provided that, subject to exceptions not relevant to the present case, "every employee shall have the right not to be unfairly dismissed by his employer" (section 54); the remedies for unfair dismissal were compensation or, if the individual concerned so elected and if the Industrial Tribunal in its discretion so decided, reinstatement or re-engagement (section 68). In determining whether to make a reinstatement or re-engagement order, the tribunal had to take into account, inter alia, whether it was practicable for the employer to comply therewith (section 69).
Under section 58(1)(c) of the 1978 Act, as substituted by section 3 of the Employment Act 1982:
"Subject to subsection (3), the dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee -
...
(c) was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused or proposed to refuse to become or remain a member."
By way of exception to the foregoing, section 58(3) of the 1978 Act laid down the basic rule that, if a "union membership agreement" (i.e. a closed shop; see paragraph 17 above) was in existence, the dismissal of an employee for refusal to become or remain a member of a specified union was to be regarded as fair. With effect from 26 July 1988 - that is, after the events giving rise to the present case - this provision was repealed by the Employment Act 1988.
In determining whether or not a dismissal was unfair, an Industrial Tribunal was directed to take no account of pressure exercised on the employer to dismiss the employee, for example by threatening to strike; however, a third party, such as a trade union, which had exercised such pressure because the employee was not a member of a union could be joined as a party to the proceedings and ordered to pay the whole or part of any compensation awarded to the employee (sections 63 and 76A of the 1978 Act).
19. The notion of constructive dismissal was encapsulated in section 55(2)(c) of the 1978 Act, which provided:
"... an employee shall be treated as dismissed by his employer if ... the employee terminates [his] contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct."
It does not suffice, in this connection, that the employer’s conduct is unreasonable; it must amount to a significant breach going to the root of the contract of employment or showing that he no longer intends to be bound by one or more of its essential terms (per Lord Denning, Master of the Rolls, in Western Excavating (E.C.C.) Ltd v. Sharp [1978] Industrial Cases Reports 221, construing an earlier but identical provision).
20. Section 23(1)(c) of the 1978 Act, as amended by section 10(4) of the Employment Act 1982, conferred on an employee (defined by section 153(1) of the 1978 Act so as to include a person whose employment had ceased) a right "not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of compelling him to be or become a member of any trade union or a particular trade union ...".
The remedy in well-founded cases was compensation, which might extend beyond financial loss to such matters as injury to reputation and feelings, of such amount as the tribunal considered just and equitable in all the circumstances. Provisions relating to the existence of a closed shop and to the exercise of pressure on the employer, akin to those applicable in the context of unfair dismissal (see paragraph 18 above), also applied in this area.
NON_VIOLATED_ARTICLES: 11


ITEMID: 001-23651
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: BELLER v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs Joanna Beller, is a Polish national who was born in 1934 and lives in Warsaw. She was represented before the Court by Mr W. Hermeliński, a lawyer practising in Warsaw. The respondent Government were represented by Mr K. Drzewicki, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s father owned the so-called “Kraków Bishops’ Palace” situated in the centre of Warsaw and a plot of land under it. The Government submitted that 75 to 80 % of the building had been destroyed during the Second World War.
By virtue of the 1945 Decree on the Ownership and Use of Land in Warsaw (dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy) the Warsaw municipality (and after 1950 the State Treasury) became the owner of all plots of land located in Warsaw. The decree provided for a possibility to obtain the perpetual lease (after 1946 - temporary ownership) of a plot of land on request.
In 1947 the applicant’s father concluded before a public notary an agreement with a certain state institution, according to which that institution was to obtain the right of use of the property upon its declaration to reconstruct the palace. The use was supposed to last 36 years and be followed by a 10-year lease. The Government submitted that the agreement at issue had never been enforced because it was contrary to a number of provisions of law.
In 1948 the applicant’s father lodged, in accordance with the 1945 decree, a request to be granted the right of the temporary ownership of the plot of land formerly owned by him. It was refused by a decision issued in 1949, which was served neither on him, nor on his lawyer.
In 1951 the applicant’s father died.
In 1955 another decision refusing the request was issued and it was not served either.
On 14 March 1990 the applicant, as the sole heir to her father’s property (the inheritance proceedings completed in October 1990), filed with the Warsaw Śródmieście Quarter Office (urząd dzielnicowy) a petition in which she requested the restitution of her property.
Subsequently, the Social Security Board (Zakład Ubezpieczeń Społecznych), which occupied the property, requested the administrative authorities to grant it the right of management (zarząd) of that property, but to no avail.
On 16 September 1991 the applicant was served with the decision of 1955 refusing her father the right of temporary ownership of the land.
On 24 September 1991 she lodged with the Warsaw Governor (wojewoda) a request for the annulment of that decision.
On 11 October 1991 the Warsaw Regional Prosecutor (prokurator wojewódzki) joined the proceedings, considering that in the light of the gravity of the alleged breaches of the law the participation of the prosecutor was necessary.
On 27 July 1992 the applicant lodged with the Supreme Administrative Court (Naczelny Sąd Administracyjny) a complaint about the inactivity of the Governor, who had failed to issue a decision concerning her request.
On 11 December 1992 the court rejected the complaint, relying on ratione temporis limits on its jurisdiction.
On 24 December 1992 the Minister of Construction (minister gospodarki przestrzennej i budownictwa) quashed the decision of 1955. He found that the impugned decision did not contain any reference to the 1949 decision, whereas they concerned the same matter. The Minister further considered that the reasoning of the decision was not supported by any documents.
On 5 October 1993 the Head of the Warsaw District Office (kierownik urzędu rejonowego) refused to grant the applicant the right of perpetual use (użytkowanie wieczyste, which replaced the former temporary ownership) of the land. He relied, inter alia, on the fact that over 70 % of the palace had been destroyed during the Second World War, thus after reconstruction it could be considered as a new building. Therefore, having reconstructed it on its own land, the State became that building’s owner.
On 1 March 1994 the Warsaw Governor quashed that decision and discontinued the proceedings, considering that they were pointless, because the request of the applicant’s father had been already refused by the decision of 1949.
On 16 October 1995 the Supreme Administrative Court allowed the applicant’s appeal and declared the Governor’s decision null and void as having been issued in flagrant breach of the administrative procedure. It found that the Governor had overlooked the fact that the 1949 decision had probably never been served on the applicant’s father.
On 18 March 1996 the Governor quashed the decision of the Head of the District Office issued on 5 October 1993 and remitted the case for re-examination.
On 18 July 1997 Warsaw District Office sent a copy of the 1949 decision to the applicant. It informed her that no acknowledgement of receipt of that decision by her father had been found.
On 1 August 1997 the applicant requested the annulment of that decision.
On 25 August 1997 the Warsaw Governor quashed the 1949 decision and remitted the case for re-examination.
On 12 November 1997 the Head of the Warsaw District Office re-examined the request lodged by the applicant’s father in 1948. He granted the applicant the perpetual use of the land and declared that she retained the ownership of the building located there, in accordance with the 1947 agreement. The Head of the District Office found that a project for the future use of the building, prepared by the applicant, complied with the town planning scheme.
On 25 February 1998 the Warsaw Regional Prosecutor raised an objection (sprzeciw) to that decision. She mentioned that the clause concerning the ownership of the building made in that decision was only of a declaratory nature, i.e. it confirmed something that had been stipulated already in the 1945 decree. Following that objection the Warsaw Governor instituted ex officio proceedings for the annulment of that decision.
On 3 April 1998 the Governor rejected an appeal against the decision of 12 November 1997 lodged by the Social Security Board, considering that the Board had no standing in the proceedings. The Board appealed to the Supreme Administrative Court.
On 6 April 1998 the Governor stayed the enforcement proceedings in respect of the decision of 12 November 1997.
On 12 April 1999 the Supreme Administrative Court quashed the Governor’s decision of 3 April 1998, pointing out that the Governor, having found that the Social Security Board had no standing in the proceedings, should have issued a decision discontinuing the proceedings.
On 31 August 1999 the Regional Prosecutor withdrew her objection and subsequently the proceedings concerning the annulment of the decision of 12 November 1997 were discontinued. However, the proceedings concerning the appeal lodged by the Social Security Board were still pending.
On 15 December 1999 the Governor discontinued the appeal proceedings, relying on the Social Security Board’s lack of standing in the proceedings. The Board appealed that decision, submitting that the buildings occupied by it were constructed in such a way that their walls did not run along the boundary between the plots of land underneath and, therefore, the 1997 decision was impossible to enforce. The Board also argued that, being a State-owned entity occupying the property, it should take part in the proceedings in order to ensure the proper representation of the interests of the State and pointed out that it was involved in administrative proceedings relating to its petitions to be granted the right of management of the disputed plot of land and the neighbouring ones.
On 7 January 2000 the applicant summoned a representative of the State Treasury to appear before a specified public notary for the purpose of concluding an agreement concerning the grant of perpetual use of the land, but to no avail.
On 24 January 2000 the applicant requested the Supreme Administrative Court, before which the Board’s appeal against the decision of 15 December 1999 was pending, to dismiss the Board’s petition to have the enforcement of that decision stayed. In reply, the court informed the applicant that the enforcement was stayed ex lege and there was no need to issue any specific decision in this respect.
On 21 November 2000 the Supreme Administrative Court allowed the Social Security Board’s appeal and quashed the decision of 15 December 1999. It noted that in 1984 the Board had been granted the use of a neighbouring plot of land and, on the strength of a law enacted in 1998, became the owner of that plot. The court found that it was necessary to establish whether the plot owned by the Board overlapped the plot covered by the 1997 decision. If so, the Board should be allowed to take part in the proceedings as a party.
On 23 July 2001 the Governor quashed the decision of 12 November 1997 and remitted the case for re-examination. He pointed out that in the course of further proceedings the line of the boundary in question should be established and, consequently, it should be decided whether the Board had standing. The applicant appealed that decision to the Supreme Administrative Court, submitting that it was not necessary to remit the case for re-examination and that the Governor could have ruled on the Board’s rights in the proceedings himself on the basis of the material already contained by the case-file.
Meanwhile, on 26 November 1999 the President of the Office for the Housing and Urban Development (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast) on the request of the Ministry of Labour instituted proceedings aimed at the annulment of the decision of 25 August 1997 (quashing the above-mentioned 1949 decision).
On 19 October 2001 the applicant lodged with the Supreme Administrative Court a complaint about the inactivity of the President of that office. She submitted that despite her two requests to expedite the examination of the case the authority concerned had not taken any action.
On 13 December 2001 the President of the Office for the Housing and Urban Development annulled the decision of 25 August 1997. He considered that the Governor had not been competent to issue that decision.
On 18 December 2001 the Supreme Administrative Court asked the applicant whether she was pursuing her complaint about inactivity, despite the fact that the authority concerned had given a decision. She withdrew her complaint.
On 30 April 2002 the President of the Office for the Housing and Urban Development, after the re-examination of the case requested by the applicant, upheld his own decision of 13 December 2001.
The applicant lodged an appeal with the Supreme Administrative Court.
The proceedings are still continuing.
In 1990 the applicant enquired about the legal status of the disputed property. She received a certificate from a public notary office stating that in the land-and-mortgage register her father was mentioned as the owner of property no. 496. Although in 1983 the State authorities requested that an entry be made in the register declaring that the State Treasury was the owner, the request was not granted, as they failed to submit the 1955 decision refusing the applicant’s father the right to temporary ownership with a clause confirming its legal force. In 1985 the proceedings concerning that request were stayed. Another entry in the register concerned the 1945 decree, following which the State Treasury became the owner of the land. The certificate contains a clause stating that it does not concern the ownership rights to the buildings located on the plot.
On 28 January 1991 the public notary office refused the applicant’s request to make an entry replacing the name of her father by her name in the land register. The office pointed out that, as long as the issue of the perpetual use was not decided, it could not make any amendments to the register.
Similar information is contained in a certificate issued on 4 April 1996 by the land-and-mortgage register department of the Warsaw District Court (sąd rejonowy).
According to the Code of Administrative Procedure cases shall be handled without undue delay and the time of their examination, even if they are complex, shall not exceed two months (Article 35 § 3). Having failed to comply with the time-limit prescribed by the Code, the administrative organ must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit.
Article 37 of that Code provides:
“§ 1. A complaint about failure to handle a case within the time-limit set forth in Article 35 or fixed under Article 36 can be lodged with an administrative organ of a higher level.
§ 2. [That] organ, having found the complaint to be well-founded, shall fix an additional time-limit for the completion of the case ...”
Further remedies in respect of inactivity on the part of an administrative organ are provided for by the Law on the Supreme Administrative Court. Under Section 17 of that Law a party to administrative proceedings may lodge with the Supreme Administrative Court a complaint about such inactivity.
Section 26 of the Law provides that the Court, having found such a complaint to be well-founded, shall oblige the administrative organ concerned to issue a decision or to perform an activity. Section 31 reads in so far as relevant:
“1. In case of establishing that the administrative organ, to ... the inactivity of which the court’s judgment relates, has not ... carried out that judgment, the court can decide to impose a fine on that organ. ...
2. In the instance referred to in § 1 the court can, in addition, rule on the existence or non-existence of a right or obligation, if the nature of the case and its uncontested facts ... make this possible.
3. The court shall apply the provisions of §§ 1 and 2 in case of granting a complaint lodged by an entitled entity, which has previously applied to the organ concerned with a written notice to carry out the court’s judgment.
4. A compensation claim is vested in a person sustaining damage as a result of failure to carry out the court’s judgment ...”
Section 34 of the Law on the Supreme Administrative Court sets out the requirement of the exhaustion of available remedies before lodging a complaint with that court. Accordingly, a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level, pursuant to the above-mentioned Article 37 of the Code of Administrative Procedure. In its case-law the Supreme Administrative Court has stated that that requirement does not apply to complaints concerning the inactivity of administrative organs of the highest level, such as the President of the Office for the Housing and Urban Development (see the Supreme Administrative Court’s judgment of 29 August 2000, no. I SAB 52/00).
According to the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw (dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy) the ownership of all land was transferred to the municipality. The decree provided in so far as relevant:
“Article 5. Buildings and other objects located on the land being transferred to the municipality’s ownership remain the property of those who have owned them so far, unless specific provisions provide otherwise.
Article 7. (1) The owner of a plot of land (...) can within 6 months after the taking of possession of the land by the municipality file a request to be granted (...) the right to a perpetual lease (wieczysta dzierżawa) with a peppercorn rent (czynsz symboliczny). ...
(2) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan (plan zabudowania). ...
(4) In case the request is refused, the municipality shall offer the person entitled, as long as it has spare land in its possession, the perpetual lease of land of equal value to use, on the same conditions, or the right to construct on such land.
(5) In case no request, as provided for in paragraph (1), is filed, or the former owner is for any other reasons not granted a perpetual lease or the right to construct, the municipality is obliged to pay compensation pursuant to article 9.
Article 8. In case the former owner is not granted the right to a perpetual lease or the right to construct, all buildings located on the land become the property of the municipality, which is obliged to pay, pursuant to article 9, compensation for the buildings which are fit to be used or renovated.
Article 9. ... (2) The right to compensation begins to apply 6 months after the day of taking the land into possession by the municipality of Warsaw and expires 3 years after that date. ...”
According to article XXXIX of the Decree of 11 October 1946 introducing the Property Law (prawo rzeczowe) and the Law on Land and Mortgage Registers, the right to construct and the right to a perpetual lease could be transferred into temporary ownership (własność czasowa).
Section 40 of the Law of 14 July 1961 on Administration of Land in Towns and Estates (ustawa o gospodarce terenami w miastach i osiedlach) replaced temporary ownership with perpetual use (użytkowanie wieczyste).
The right to perpetual use is regulated by the Civil Code. An individual or a legal entity may be granted such a right on land owned by the State or local self-government. The right comprises a right to use the land to the exclusion of others for ninety-nine years, on payment of a yearly fee. A person entitled to the right can dispose of it.
In 1997 there was enacted the Law on Transforming Perpetual Use Vested in Individuals into Ownership (ustawa o przekształceniu prawa użytkowania wieczystego przysługującego osobom fizycznym w prawo własności). The law guarantees individuals who acquired perpetual use of property before 31 October 1998 the right to have that right transformed into ownership. Article 6 § 1 (6) of that law provides that individuals who acquired the right to perpetual lease under article 7 of the 1945 decree are entitled to such transformation free of charge, regardless of when they acquired their right to a perpetual lease. Requests for the transformation could be submitted until the end of 2002.


ITEMID: 001-86449
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ILIYA STEFANOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Remainder inadmissible;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: 5. The applicant is a practising lawyer. He has been a member of the Sofia bar since 1994. His office is located in the centre of Sofia.
6. On 23 November 2000 a Mr R.S. lodged a complaint with the Second Regional Police Department in Sofia. He alleged that the previous day, 22 November 2000, he had been abducted by several persons working for his former employer, a company called MIG Group AD. He had been taken to a certain Mr K.G., an employee of that company, who had threatened him and his family with violence on account of his failure to repay certain money which he owed to the company. He had later been taken to the applicant’s office, where he had been coerced into signing written promises to pay money, as well as a contract to hand over his car. All these documents had been drafted by the applicant.
7. On 24 November 2000 Mr R.S.’s complaint was referred to the First Regional Police Department in Sofia, which on 29 November 2000 opened a criminal investigation against an unknown perpetrator on allegations of extortion contrary to Article 214 § 1 of the 1968 Criminal Code.
8. At about midday on 29 November 2000 the police brought Mr K.G. and two other individuals in for questioning. The applicant, who was the legal counsel of MIG Group AD, was informed of Mr K.G.’s arrest. He called the police officer in charge of the case, offering to assist by going to the police station.
9. The applicant went to the police station at about 2 p.m. on 29 November 2000. Once on the premises, he was taken to a room where he saw several other persons called for questioning, and was apparently not allowed to leave. However, no warrant was issued for his arrest, whereas at 4 p.m. the police decided to detain Mr K.G. and the two other individuals for twentyfour hours.
10. Between 6.30 p.m. and 7 p.m. the same day the officer in charge of the investigation interviewed the applicant as a witness. The applicant said that he knew Mr R.S., because he had been an employee of MIG Group AD. However, he said that he had not seen him on 22 November 2000 and completely denied the allegations that on that day Mr R.S. had been coerced into signing certain documents in the applicant’s office. He also said that he had a computer in his office and that Mr K.G. was a client of his. After the interview the applicant was allowed to leave the police station.
11. At 8 p.m. the same day several police officers sealed the door of the applicant’s office and left a guard in front of the door.
12. The applicant alleged that shortly after that his mobile telephone was tapped, as evidenced by the constant noise on the line. The Government denied this, saying that the investigation case file did not contain a single document relating to such tapping. In support they produced an inventory of all documents in the file.
13. At 2.40 p.m. the next day, 30 November 2000, the police officer in charge of the case organised a confrontation between the applicant and Mr R.S., in their capacity as witnesses, with a view to eliminating the discrepancies between their versions of the events of 22 November 2000. Both stuck to their original accounts. The confrontation ended at 2.45 p.m.
14. At 4 p.m. on 30 November 2000 the police officer in charge of the case applied to the Sofia District Court for a search warrant for the applicant’s office. He said, without giving further particulars, that on the basis of the available evidence there were grounds to believe that objects and documents which would be relevant for the investigation would be found there. He also said that the proposed search would be conducted on the same day.
15. At approximately 4.30 p.m. that day the onduty judge at the Sofia District Court, having reviewed the evidence gathered up to that point, issued a search warrant for the applicant’s office. She held that there existed evidence which was sufficient to enable the court to make a plausible supposition that the office contained objects which would be relevant to the case. In particular, the victim of the alleged offence had given information about the office and had asserted that evidence of that offence could be found there.
16. Between 6.30 p.m. and 9.40 p.m. the same day the police officer in charge of the case, helped by two other police officers, executed the search warrant for the applicant’s office. They seized his computer, monitor, printer and other peripherals, thirtythree floppy disks, a piece of paper noting five motor vehicle registration numbers, and a certificate from a language school saying that Mr R.S. had completed a course in English and German. The computer and the disks were found on a desk opposite the front door, and the papers were found in a filing cabinet beside a window. The search was carried out in the presence of two certifying witnesses, neighbours of the applicant. The applicant arrived on the premises after the beginning of the search. The police drew up a record containing an inventory of the seized items. The record was signed without comment by the certifying witnesses. The applicant wrote that he objected to the search, as it had been carried out in breach of the 1991 Bar Act (see paragraph 25 below). After the search the applicant’s office was sealed.
17. On 6 December 2000 the officer in charge of the case asked an expert to determine whether the seized computer’s hard drive and the floppy disks had any files on them relating to the investigation. He delivered the computer with all its peripherals and the floppy disks to the expert. On 15 December 2000 the expert informed the officer that, despite having searched the content of the hard drive and of the floppy disks with a special programme using keywords, she had found no such files.
18. In the meantime, on 13 December 2000, the applicant asked the prosecution authorities to return the seized items to him.
19. On 5 February 2001 a prosecutor of the Sofia District Prosecutor’s Office decided to stay the investigation. He reasoned that despite the steps which had been taken, the identity of the alleged perpetrator had not been established. He also ordered that the applicant’s computer, monitor, printer, peripherals and floppy disks be returned to him.
20. On 2 March 2001 the applicant asked the chairman of the Sofia City Court to inform him whether between 1 October and 31 December 2000 that court had issued a warrant for the tapping of any of his telephones. In a letter of 6 March 2001 the chairman of the Sofia City Court told the applicant that his request had been left unexamined, because his legal interest in the matter should have been satisfied by the existence of the 1997 Special Intelligence Means Act and Article 111 et seq. of the 1974 Code of Criminal Procedure (“the CCP”) (see paragraph 26 below).
21. Article 134 § 1 of the CCP, as in force at the material time, provided that where there existed sufficient grounds to believe that certain premises contained objects or documents which might be relevant to a criminal investigation, the authorities could carry out a search and seizure there.
22. According to Article 135 § 1 of the CCP, as in force at the material time, during the preliminary investigation a search and seizure could be carried out only pursuant to a warrant issued by a judge of the competent firstinstance court. The warrant was issued in ex parte proceedings, without notification or participation of the persons concerned. An exception to the warrant requirement was only possible in exigent circumstances; in that case the record of the search had to be produced for approval before a judge within twentyfour hours (Article 135 § 2 of the CCP).
23. As a rule, the search and seizure had to be carried out during the day and in the presence of the person using the premises, as well as of two certifying witnesses (Articles 136 § 1 and 137 § 1 of the CCP). The officers carrying out the search could not undertake any actions which were not necessary for the search (Article 137 § 4 of the CCP).
24. In April 2006 these provisions were replaced by Articles 15963 of the 2005 Code of Criminal Procedure.
25. Section 18(1) of the 1991 Bar Act, presently superseded by section 33(1) of the 2004 Bar Act, provided that a lawyer’s files and papers were inviolable and could not be checked or seized.
26. The domestic law regulating secret surveillance is described in detail in paragraphs 751 of the Court’s judgment in the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007).
27. Article 95 § 1 of the CCP, as in force at the material time, provided that witnesses in criminal proceedings had a duty to appear for questioning when called and to remain at the disposal of the authorities until necessary for this purpose.
28. Section 1(1) of the 1988 State Responsibility for Damage Caused to Citizens Act („Закон за отговорността на държавата за вреди, причинени на граждани“ – this was the original title; on 12 July 2006 it was changed to the State and Municipalities Responsibility for Damage Act, „Закон за отговорността на държавата и общините за вреди“), as in force at the material time, provided that the State was liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of administrative action. According to the Supreme Court of Cassation’s caselaw, the actions of the investigation and the prosecution authorities in the context of a criminal investigation do not amount to administrative action and they are therefore not liable under section 1 of the Act (реш. № 615 от 10 юли 2001 г. на ВКС по гр. д. № 1814/2000 г.; тълк. реш. № 3 от 22 април 2004 г. на ВКС по тълк.д. № 3/2004 г., ОСГК).
29. Section 2 of the Act provides for liability of the investigation and prosecution authorities and the courts in six situations: unlawful pretrial detention; bringing of charges or conviction, if the proceedings have later been abandoned or if the conviction has been overturned; coercive medical treatment or coercive measures imposed by a court, if its decision has later been quashed as being unlawful; and serving of a sentence over and above its prescribed duration.
VIOLATED_ARTICLES: 13
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