ITEMID: 001-100659
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KOROGODINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2 (procedural aspect)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1931 and lives in Orel.
6. On 21 October 2000 the applicant called an ambulance for her son, who was forty-two years old at the time. He had a fever and was complaining of chest pains. The paramedic examined him, and, assuming that he was suffering from intercostal neuralgia, administered a pain-killing injection.
7. On 22 October 2000 Mr Korogodin was examined by a general practitioner, who believed him to be suffering from pyelonephritis and advised him to go to hospital. At the hospital Mr Korogodin underwent a medical examination including an ECG of his kidneys and liver and an Xray of his lungs. The doctors who examined him confirmed the diagnosis of intercostal neuralgia. Mr Korogodin was discharged from hospital.
8. On 23 October 2000 the general practitioner examined Mr Korogodin again and diagnosed him with osteochondrosis. Subsequently, M., a doctor whom the applicant's family knew, examined Mr Korogodin, diagnosed him with pneumonia and urged him to go to hospital. Upon arrival at the Zheleznodorozhniy Hospital in Orel, Mr Korogodin was taken to an intensive care unit.
9. On 27 October 2000 Mr Korogodin died in hospital. According to the autopsy, the cause of his death was cardiovascular deficiency provoked by pneumonia and purulent pleurisy.
10. On 24 November 2000 and 10 January 2001 the applicant asked the local prosecutor's office to open a criminal investigation into the matter, alleging that the doctors' negligent failure to diagnose her son correctly at the onset of his disease had caused his death.
11. In response to the applicant's complaints, the assistant prosecutor of the town of Orel, conducted an inquiry. Within its framework, the regional department of public health formed a commission which comprised specialists from the medical institutions where the applicant's son had undergone treatment. The commission questioned the doctors who had treated Mr Korogodin and concluded that the doctors had provided competent medical service.
12. On 21 January 2001 the applicant submitted Mr Korogodin's medical history file and X-ray examination results. An additional inquiry ensued. On 24 January 2001 the applicant lodged another complaint with the prosecutor's office.
13. On 6 March 2001 the assistant prosecutor refused to open a criminal investigation against the doctors for lack of corpus delicti. He noted that the death of the applicant's son had resulted from the rapid development of pneumonia coupled with weakened immunity. The assistant prosecutor referred to the findings made by the commission set up by the regional department of public health. The applicant appealed to a superior prosecutor.
14. On 16 April 2001 the regional prosecutor in charge of the investigation quashed the decision of 6 March 2001 and ordered a criminal investigation into the matter. The prosecutor noted, in substance, that the commission had not been impartial. He referred to the commission's findings as inconclusive and contradictory.
15. On 7 May 2001 the applicant was recognised as a victim of the crime under investigation. She was advised of her rights, including the right to submit a civil claim against the hospital.
16. On 19 June 2001 the investigator commissioned a forensic medical expert report to determine whether Mr Korogodin had received proper medical treatment.
17. On 16 July 2001 the investigator found it impossible to identify those responsible and suspended the investigation into the matter. On 4 February 2002 the district prosecutor declared the decision of 16 July unlawful and quashed it.
18. On an unspecified date the forensic medical experts completed the report and submitted their findings to the prosecutor's office. The experts discerned no causal link between Mr Korogodin's death and the treatment administered.
19. On 11 March 2002 the investigator discontinued the criminal proceedings for lack of corpus delicti. He based his findings on the medical expert report and statements made by the doctors who had treated Mr Korogodin. The applicant appealed to a superior prosecutor.
20. On 29 March 2002 the town deputy prosecutor quashed the decision of 11 March 2002. The deputy prosecutor found that the experts had failed to examine the issue of whether the medical treatment that Mr Korogodin had undergone had been adequate. He referred to the experts' statement that a prompt diagnosis at an early stage of a severe disease could prevent a patient's death. He further noted that the medical expert, P., opined that the X-ray examination had not been properly conducted. Finally, the prosecutor indicated which steps the investigator should now take, including, but not limited to, examining the circumstances of the X-ray examination that Mr Korogodin had undergone.
21. On 7 May 2002 the investigator yet again discontinued the criminal proceedings for lack of corpus delicti.
22. On 19 June 2002 the regional prosecutor in charge of the investigation quashed the decision of 7 May 2002 owing to the investigator's failure to fully determine the circumstances of Mr Korogodin'
23. On 7 August 2002 a new report was prepared by a forensic medical expert bureau in Kursk. The experts noted certain errors committed by the doctors prior to Mr Korogodin's committal to hospital. They further opined that he had received adequate treatment in hospital albeit that certain additional measures could have been taken by the hospital's personnel.
24. On 14 January 2003 the investigator found it impossible to identify those responsible and suspended the investigation into the matter.
25. On 21 April 2003 the inter-district prosecutor quashed the decision of 14 January 2003 as unsubstantiated. The investigation was resumed the next day.
26. On 21 May 2003 the inter-district prosecutor discontinued the criminal proceedings for lack of corpus delicti. His findings were based on witnesses' testimonies, including those provided by the applicant and the doctors who had treated Mr Korogodin, and the results of the medical expert reports. The prosecutor concluded that Mr Korogodin had not recovered from previous illnesses which had negatively affected his immune system and the rapid development of pneumonia could not have been prevented in the circumstances.
27. On 31 October 2003 the General Prosecutor's Office of Russia sent a letter to the Orel Regional Prosecutor noting that the investigation into Mr Korogodin's death had not been complete. It was further recommended that a new forensic medical evaluation be commissioned in order to reconcile the differences in the opinions contained in two earlier medical forensic expert reports.
28. On 18 November 2003 the regional deputy prosecutor quashed the decision of 21 May 2003.
29. On 24 December 2003 the investigator commissioned a new forensic medical expert report.
30. On 25 April 2005 the Russian Centre for Forensic Medical Expert Evaluations of the Federal Agency for Public Health and Social Development completed a comprehensive forensic medical expert report. The experts noted that Mr Korogodin had been wrongly diagnosed prior to his committal to hospital. They opined, nevertheless, that the errors in question had not been the cause of his death. Mr Korogodin had died as a result of the “severity, aggressiveness and rapid development of the disease”. Lastly, they did not discern that the doctors and paramedics at the medical institutions providing treatment to Mr Korogodin had failed to duly perform their professional duties.
31. On 6 July 2005 the investigator discontinued the criminal proceedings for lack of corpus delicti on the basis of the witnesses' testimonies and medical expert reports. The applicant appealed.
32. On 2 December 2005 the General Prosecutor's Office of Russia allowed the applicant's complaint and ordered the local prosecutor's office to resume the investigation into the matter.
33. On 12 December 2005 the regional deputy prosecutor found the investigation to be incomplete and quashed the decision of 6 July 2005.
34. On 11 January 2006 the investigator discontinued the proceedings for lack of corpus delicti. The investigator based his findings on statements made by twelve witnesses, including the applicant, the doctors who had treated Mr Korogodin, their superiors and the medical experts, and on medical documents, including three forensic medical expert reports. The applicant appealed.
35. Her complaints were dismissed by the Orel Regional Prosecutor's Office and the General Prosecutor's Office of Russia on 20 January and 11 October 2006 respectively.
36. On 4 March 2004 the applicant brought a civil claim for damages against the medical institutions where her son had undergone medical treatment. She alleged, inter alia, that her son had died due to the doctors' failure to diagnose him correctly.
37. On 21 September 2004 the court commissioned a forensic medical expert report. The report was completed on 28 June 2006. The experts concluded that there was no causal link between the deficiencies in the medical treatment Mr Korogodin had received and his death. They further opined that the medical treatment had not caused any harm to Mr Korogodin's condition. His death had resulted from the pathological development of pneumonia.
38. On 17 April 2006 the Sovetskiy District Court of Orel dismissed the applicant's claims. The court found that the doctors' failure to diagnose Mr Korogodin correctly on 22 October 2000 and a delay in his committal to hospital had not had an adverse impact on his condition. The diagnostics methods and treatment employed by the doctors had been correct but could not have prevented Mr Korogodin's death. The court based its findings on the testimonies given by the applicant, the medical professionals involved in her son's treatment, the four forensic medical expert reports and the materials of the criminal investigation.
39. On 14 June 2006 the Orel Regional Court upheld the judgment of 17 April 2006 on appeal.
40. On 27 January 2004 the applicant sued the Orel Regional Prosecutor's Office for damage caused allegedly by the inadequate and lengthy investigation into her son's death.
41. On 20 May 2004 the Sovetskiy District Court of Orel dismissed the applicant's claims.
42. On 7 July 2004 the Orel Regional Court upheld the judgment of 20 May 2004 on appeal.
43. The relevant provisions on liability provide as follows:
Article 66. Grounds for health damage compensation
Those liable for causing damage to persons' health shall pay the latter compensation for damage in the amount and pursuant to the procedure as set forth by legislation of the Russian Federation...
Article 68. Liability of medical professionals and pharmacists for infringement of persons' rights in the domain of public health
In the event of a violation of persons' rights in the domain of public health caused through the negligent failure of a medical professional or a pharmacist to carry out their professional duties and resulting in harm to health or death, compensation for damage shall be recovered in accordance with Article 66...
The compensation of the damage shall not excuse the medical professionals and pharmacists from disciplinary, administrative or criminal liability as provided for in [federal and regional] legislation.
44. The general provisions on liability for damage read as follows:
Article 1064. General grounds for liability for causing harm
“1. Damage inflicted on a person or on the property of an individual... shall be compensated in full by the tortfeasor ...
2. The tortfeasor shall be released from liability to compensate the damage if he proves that the damage was inflicted through no fault of his own ...”
45. Article 109 § 2 of the Criminal Code provides that a person who negligently causes the death of another person through the failure to duly carry out his professional responsibilities, shall be criminally liable and may be sentenced to a restriction of liberty or imprisonment for up to three years with or without a forfeiture of the right to practise the profession during the said period.
46. If criminal proceedings are discontinued at the investigation stage, an aggrieved person who joined the proceedings as a civil party may lodge a separate civil claim unless the proceedings were discontinued on the ground that (a) the alleged offence had not been committed (otsutstvie sobytiya prestupleniya) or (b) the suspect had not been involved in its commission (Article 213 § 4 and Articles 24 § 1 (1) and 27 § 1 (1)).
47. If the defendant is acquitted by the trial court on the ground that (a) the alleged offence was not committed or (b) the defendant was not involved in its commission, the trial court will dismiss the civil claim. If the defendant is acquitted for lack of corpus delicti (Article 24 § 1 (2)), the trial court will disallow the civil claim but it may be lodged again in civil proceedings (Article 306 § 2).
VIOLATED_ARTICLES: 2


ITEMID: 001-72146
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ÜLKE v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
TEXT: 9. The applicant was born in 1970 and lives in İzmir.
10. Until 1985 he lived in Germany, where he completed part of his schooling. He subsequently moved to Turkey, where he continued his education, eventually going on to university.
11. In 1993 he became an active member of the Association of Opponents of War (Savaş Karşıtları Derneği – “the SKD”), founded in 1992. Until late 1993 he represented the SKD at various international conferences in different countries. After the SKD was dissolved in November 1993 the İzmir Association of Opponents of War (İzmir Savaş Karşıtları Derneği – “the ISKD”) was founded and the applicant served as its chairman from 1994 to 1998.
12. In August 1995 the applicant was called up. Invoking his pacifist convictions, he refused to perform military service and publicly burned his call-up papers at a press conference in İzmir on 1 September 1995.
13. On 8 October 1996 he was arrested. On 18 October 1996 he was indicted by the military prosecutor attached to the Ankara Military Court of the General Staff (“the General Staff Court”), under Article 155 of the Criminal Code and Article 58 of the Military Penal Code, on a charge of inciting conscripts to evade military service.
14. In a judgment of 28 January 1997 the Ankara General Staff Court sentenced the applicant, on the basis of the indictment of 18 October 1996, to six months’ imprisonment and to a fine. The court also found that the applicant was a deserter and made an order requesting the military prosecutor attached to that court to enlist him.
15. On 3 March 1997 the applicant lodged an appeal on points of law. In his grounds of appeal he relied on, among other provisions, Articles 9 and 10 of the Convention, claiming that he was a conscientious objector.
16. In a judgment of 3 July 1997 the Military Court of Cassation upheld the first-instance judgment.
17. In the meantime, on 22 November 1996, the applicant was transferred to the 9th Regiment, attached to the Bilecik gendarmerie command. He refused to wear military uniform or carry out the orders of the regiment’s commanding officer. He was detained in the regimental prison, where he refused to wear prison uniform.
18. On 26 November 1996 the military prosecutor at the Court of the Eskişehir Tactical Air Forces Command (“the Command Court”) indicted the applicant on a charge of “persistent disobedience” and sought his conviction under Article 87 of the Military Penal Code.
19. Ruling on the applicant’s refusal to wear prison uniform, the Command Court, in a judgment of 2 December 1996 after urgent proceedings, restricted his right to receive visitors for fifteen days, as a disciplinary measure.
20. Ultimately, in a judgment of 6 March 1997, the Command Court sentenced him to five months’ imprisonment for persistent disobedience.
21. On 4 July 1997 the Military Court of Cassation upheld the judgment of 6 March 1997.
22. In the meantime, the applicant had failed to rejoin his regiment after being released on 27 December 1996. He was arrested and remanded in custody.
23. He was indicted on 7 March 1997 by the military prosecutor at the Command Court, on charges of desertion and “persistent disobedience”.
24. In a judgment of 23 October 1997 the Command Court sentenced the applicant to ten months’ imprisonment and to a fine.
25. In the meantime, on 29 May 1997, he had been released on the condition that he rejoined his regiment on 31 May to perform his military service. As he failed to do so he was arrested on 9 October 1997 and transferred to Eskişehir prison to serve the sentence imposed by the Command Court on 6 March 1997.
26. In an indictment of 16 October 1997 the military prosecutor at the Command Court called for the applicant’s conviction for desertion between 31 May 1997 and 9 October 1997.
27. In a judgment of 22 January 1998 the Command Court sentenced the applicant to ten months’ imprisonment on the basis of the charges in the bill of indictment.
28. In a judgment of 30 September 1998 the Military Court of Cassation upheld the judgment of 22 January 1998.
29. On 26 January 1998 the applicant was escorted to his regiment at Bilecik. He was arrested for refusing to wear military uniform.
30. In a judgment of 11 June 1998 the Command Court sentenced him to seven months and fifteen days’ imprisonment on account of incidents that had occurred on 28 January 1998.
31. On 7 October 1998 the Military Court of Cassation upheld the judgment of 11 June 1998.
32. After being escorted back to his regiment on 20 March 1998, the applicant was arrested on 21 March 1998 for refusing to wear his military uniform.
33. In a judgment of 4 May 1998 the Command Court sentenced him to seven months and fifteen days’ imprisonment for “persistent disobedience” on 20 and 21 March 1998.
34. In a judgment of 7 October 1998 the Military Court of Cassation upheld the judgment of 4 May 1998.
35. In the meantime, on 4 May 1998, the applicant was sent back to his regiment, where he refused to wear military uniform.
36. In a judgment of 11 June 1998 the Command Court sentenced him to seven months and fifteen days’ imprisonment on account of the incidents of 4 May 1998.
37. In a judgment of 7 October 1998 the Military Court of Cassation upheld the first-instance judgment of 11 June 1998.
38. The applicant was released on 24 November 1998 and transferred to his regiment, but once again refused to wear military uniform.
39. He was prosecuted and arrested on account of the incidents of 24 November 1998, and on 26 November 1998 the Command Court sentenced him to seven months and fifteen days’ imprisonment.
40. In a judgment of 22 September 1999 the military Court of Cassation upheld the judgment of 26 November 1998.
41. The applicant served a total of 701 days in prison as a result of the above sentences, with the exception of the prison sentence imposed after his last conviction. He is wanted by the security forces for the execution of his sentence and is currently in hiding. He is no longer active in the association or in any other political activity. He has no official address and has broken off all contact with the authorities. He has been accommodated by his fiancée’s family. He has been unable to marry her legally or to recognise the son born to them.
42. Article 72 of the Constitution provides:
“Patriotic service is a right and a duty for every Turkish citizen. The conditions in which that service shall be performed or deemed to have been performed in the armed forces or civil service shall be laid down by law.”
43. The legal provisions currently in force govern only the performance of national service in the armed forces. No alternative civil service is provided for by law.
44. Section 1 of the Military Service Act (Law no. 1111 of 17 July 1927) reads:
“... every man of Turkish nationality shall be obliged to perform military service.”
45. Under section 10(2) of the Military Service Act, when the number of conscripts exceeds the requirements of the armed forces, they may be allowed, after carrying out basic military training, to perform military service for a shorter period in return for the payment of a tax, or to finish their service in the public sector.
46. The Military Penal Code stipulates that once they have been placed on the muster rolls for military service, conscripts are required to report to the designated military unit, failing which they will be regarded as unlawfully absent and liable to a criminal penalty under Article 63 of the Military Penal Code. Any additional act of disobedience is regarded as “persistent disobedience” and falls under Article 87/1 of the Military Penal Code.
47. The relevant passage from Article 155 of the Criminal Code reads as follows:
“... Incitement to evade military service.
It shall be an offence punishable by imprisonment of two months to two years and a fine ... – except in the cases provided for in the preceding Articles – to incite ... conscripts to evade military service ...”
VIOLATED_ARTICLES: 3


ITEMID: 001-59216
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF CANKOÇAK v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 9. On 24 November 1978 the applicant was arrested by the police for being in possession of a firearm. He was taken into custody at the Ankara Security Directorate and accused of having taken part in an armed attack on a bank.
10. On 5 December 1978 a magistrate ordered the applicant’s provisional detention.
11. Subsequently, the public prosecutor attached to the Ankara Martial Law Court charged the applicant with being an accessory to the crime of murder and with having taken part in an armed robbery of a bank and having fired shots into a café. According to the prosecutor, the offences were committed as part of a terrorist campaign aimed at overthrowing the constitutional order, a campaign conducted by an illegal organisation, DevYol (Devrimci Yol - the Revolutionary Way).
12. In its judgment of 26 September 1979 the Ankara Martial Law Court found the applicant guilty as charged. Although the applicant could have faced the death penalty for the offences at issue, the court commuted this to life imprisonment.
13. The applicant and the prosecutor appealed to the Court of Cassation.
14. In its decision of 20 August 1980 the Military Court of Cassation quashed the lower court’s judgment on the ground that the facts of the case had not been properly established.
15. On 28 April 1986 the applicant was released on parole.
16. In its judgment of 3 July 1986 the Ankara Martial Law Court complied partially with the Court of Cassation’s decision of 20 August 1980 and sentenced the applicant to a term of imprisonment of fifteen years on the accessory to murder charge as well as on the charge of membership of an armed gang.
17. The applicant and the prosecutor lodged an appeal against the judgment. The prosecutor sought the applicant’s conviction in respect of the armed robbery charge and his acquittal in respect of the accessory to murder charge.
18. On 23 December 1987 the Military Court of Cassation confirmed the applicant’s conviction on the murder charge and quashed the judgment of the Ankara Martial Law Court insofar as it acquitted the applicant of the armed robbery charge.
19. The public prosecutor attached to the Military Court of Cassation sought the rectification of the judgment of 23 December 1987 and requested that the initial charges be lifted and that the charge against the applicant be categorised as one of active membership of an armed gang.
20. In its decision of 22 September 1988, the Military Court of Cassation quashed the applicant’s conviction for being an accessory to the crime of murder but considered that he was guilty of armed robbery. The court remitted the case file to the Ankara Martial Law Court.
21. On 27 February 1990 the Ankara Martial Law Court issued a new arrest warrant against the applicant.
22. On 18 November 1993 the Ankara Martial Law Court sentenced the applicant to a period of imprisonment of three years and two months for membership of an armed gang and acquitted him of the remaining charges.
23. By a judgment dated 22 December 1993 and notified to the applicant’s lawyer on 3 August 1994, the Military Court of Cassation declared that the criminal proceedings against the applicant were now time-barred.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59703
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF POTOCKA AND OTHERS v. POLAND
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1 with regard to temporal limitation on jurisdiction;No violation of Art. 6-1 with regard to scope of jurisdiction
JUDGES: Georg Ress
TEXT: 7. In 1947 Roman Potocki, acting on behalf of his brother Józef, lodged an application under Article 7 of the Decree of 26 October 1945 on real property in Warsaw for temporary ownership of two plots of land located in Krakowskie Przedmieście Street, Warsaw, to be awarded to Józef Potocki, the former owner. This application remained unanswered.
8. On 3 December 1990 the Warsaw District Court declared that the estate of Józef Potocki had been inherited, pursuant to the relevant provisions of the Polish Civil Code, by his wife Pelagia-Maria Potocka for four sixteenths, and by each of his children, Piotr Potocki-Radziwiłł, Anna Potocka, Dorota Potocka-Radziwiłł and Izabela d’Ornano, for three sixteenths.
9. On 20 December 1990 the second applicant lodged a request with the Governor of Warsaw for restitution of the two plots, indicating that they were listed in the Warsaw Land Register under nos. 415 and 9048.
10. By a decision of 5 August 1991 the Director of the Warsaw District Office discontinued the administrative proceedings relating to the applicants’ request of 20 December 1990.
11. On 8 September 1991 the Warsaw Regional Office quashed the decision to discontinue the proceedings. It stated that it had been established during the proceedings that the plots concerned were situated in Warsaw. By virtue of the Decree on real property in Warsaw of 26 October 1945, all real property situated in Warsaw had been expropriated. However, under Article 7 of that decree, former owners had a right to lodge an application for temporary ownership of their plots. The authorities competent to deal with these applications could award temporary ownership if it was established that the plots concerned had not been designated for public use and that the award would not be incompatible with such use. In the applicants’ case, such an application had been lodged in 1947, but it had remained unanswered. The first-instance administrative authority, when dealing with the applicants’ request of 20 December 1990, had overlooked that fact. When reconsidering the case, that authority was required, in particular, to examine whether granting the applicants the right to perpetual use of the plot under the Land Administration and Expropriation Act of 1985, the provisions of which had replaced the procedural rights afforded to former real-property owners by Article 7 of the 1945 decree, would conflict with the public use of the plots concerned, as determined in relevant local land-development plans.
12. On 27 December 1991 the Director of the Warsaw District Office refused to return the plots to the applicants and to grant them the right to their perpetual use. He stated that it had been established during the proceedings that in 1947 the applicants’ predecessor in title had submitted an application for temporary ownership of the plots, which had then been listed in the Warsaw Land Register under entries nos. 415 and 9048. This application had remained unanswered, but the administrative authority had duly examined it in the course of the current proceedings. It was established that the palace built on the plots had been destroyed at 70 to 75% during the Second World War, as was pointed out in a letter of the Regional Conservator of Historical Monuments of 28 November 1991. The palace had subsequently been rebuilt by the Ministry of Culture. Thus it had been the State Treasury which had borne the costs of rebuilding the palace. Accordingly, restitution of the property concerned would have been unjustified, and the administrative authority found no grounds on which the 1947 application and the request lodged by the applicants in 1990 should be granted.
13. The applicants lodged an appeal against that decision. They argued that the decision was not in conformity with the applicable laws, in particular as the first-instance authority had failed to establish beyond reasonable doubt that the palace had indeed been destroyed during the Second World War. They also complained that no sound arguments had been advanced in the decision to show that restitution of the property to the applicants would be incompatible with its public use.
14. On 27 February 1992 the Governor’s Office rejected the applicants’ appeal, finding that it had been lodged one day after the expiration of the fourteen-day time-limit provided for in the Code of Administrative Procedure.
15. The applicants filed an appeal with the Supreme Administrative Court. They argued that the appeal had been posted on 20 January 1992, that is on the last day of the time-limit, as was shown by a post-office receipt. The fact that the postmark on the envelope was dated 21 January 1992 was due exclusively to the incomprehensible negligence of the postal services and could not be held against the applicants.
16. On 24 July 1992 the Supreme Administrative Court quashed the decision appealed against, considering that it was not established that the applicants had lodged their appeal against the decision of 27 December 1991 outside the time-limit provided for by the Code of Administrative Procedure, in particular because the applicants had submitted the post-office receipt to the court, showing clearly that their appeal had been posted on 20 January 1992.
17. On 9 September 1993 the Office of the Governor of Warsaw, having examined the applicants’ appeal of 20 January 1992, upheld the decision of 27 December 1991. It pointed out that the administrative authority had established that the property of the applicants’ predecessor-in-title had been designated by relevant land-development plans adopted in 1947, 1983 and 1992 for use by the Ministry of Culture and Arts. That designation had not been changed by any subsequent decision, as was certified by a letter of 19 August 1993 from the Director of the Land Administration Department of the Warsaw District Office. The Governor further held that the palace built on the plots had been destroyed at 70 to 75% during the Second World War, as was certified by a letter of the Regional Conservator of Historical Monuments of 28 November 1991. The palace had been rebuilt in the late 1940s by the Ministry of Culture and Arts. As it had been the State Treasury that had borne the rebuilding costs, it had acquired ownership of the property concerned. Moreover, at the time when Roman Potocki had lodged the application for temporary ownership, the buildings on the plot had not existed, as they had been destroyed. The administrative authority concluded that, in the light of the above considerations, granting the applicants the right to perpetual use would be unjustified.
18. On 12 October 1993 the applicants lodged an appeal with the Supreme Administrative Court against that judgment, complaining that the impugned decision was not in conformity with applicable substantive law. They first submitted that the decision was in breach of Article 7 of the 1945 decree in that the administrative authorities had failed to establish with sufficient clarity that the applicants’ intentions as to the future use of the palace had not been compatible with the local land-development plan. The applicants emphasised that the authorities had disregarded their argument that they did not plan to alter the public nature of the palace. They had only wanted to reserve a small part of it for their exclusive use, whereas the remainder would be used for cultural and leisure purposes and would be accessible to the general public. Therefore, no issue arose, in fact, regarding the designation of the property for public use as its use was to remain unchanged. Moreover, the authorities had failed to indicate why the restitution of the property to the applicants would be incompatible with its continued public use.
19. The applicants further stressed that the authorities had failed to establish beyond reasonable doubt that the buildings on the plots had been destroyed during the Second World War and subsequently rebuilt by the State, and that they should therefore be considered the State’s property. The findings made in this respect were superficial and based on insufficient evidence. The applicants emphasised in particular that the letter from the Regional Conservator of Historical Monuments of 28 November 1991 could not reasonably be regarded as credible, as the conservator operated under the supervision of the Ministry of Culture and thus could not be expected to act against the ministry’s interests. In view of that flaw, the authorities should have requested a report by an expert on construction technology in order to verify the information in the conservator’s letter. In conclusion, the applicants requested that the decision under appeal should be set aside and that the case should be re-examined.
20. The applicants submitted that Articles 7, 8, 10, 12, 35 §§ 1 and 3, 75 § 1, 77 § 1, 78 § 1 and 107 § 3 of the Code of Administrative Procedure had been breached in the course of the proceedings and that those procedural shortcomings had had a bearing on the outcome of the case.
21. On an unspecified date a hearing was held before the Supreme Administrative Court in the appeal proceedings. The applicants’ lawyer submitted that their application of 20 December 1990 was to be seen both as a reiterated application for temporary ownership, lodged in 1947, and as a new application for restitution of the property concerned and for having a right to perpetual use of the land awarded.
22. By a judgment of 22 June 1995 the Supreme Administrative Court rejected the applicants’ appeal in so far as it concerned the application for temporary ownership, which had been submitted by Roman Potocki in 1947. In doing so, the court recalled that, pursuant to Article 14 of the Supreme Administrative Court Act of 31 January 1980, as amended, it was not competent to deal with appeals against administrative decisions given in cases in which proceedings had been instituted before 1 September 1980. Accordingly, the court could not review the lawfulness of that part of the contested second-instance administrative decision, given that the relevant proceedings had been instituted in 1947.
23. In so far as the decision under appeal concerned the applicants’ application of 20 December 1990 for restitution of their former property and for the right to perpetual use of the land under the provisions of the Land Administration and Expropriation Act of 1985, the Supreme Administrative Court first considered that the authorities had failed to show why restitution of the property to the applicants would be incompatible with public use of the plot and the palace, and had therefore breached Article 107 § 3 of the Code of Administrative Procedure, under which an administrative authority, when issuing a decision, was required to point out the facts on which it had relied, to refer to evidence which had served as a basis for its factual findings, and to indicate the grounds on which other evidence had not been considered credible.
The court further considered that despite those procedural shortcomings the decision under appeal had, in any event, been lawful. The court noted that the crux of that part of the case was to assess whether the applicants could, under the Land Administration and Expropriation Act of 1985, claim to have a right to perpetual use of the plots concerned conferred on them by way of compensation for the expropriation carried out under the 1945 decree.
The court observed that under section 82(2) of the Land Administration and Expropriation Act, a right to perpetual use of land could only be conferred in cases where real property was given back to its former owners. However, that entitlement had been limited to certain categories of real property, namely one-family houses or small apartment blocks. The property concerned in the present case did not belong to any of those categories. Moreover, the 1985 Act had laid down a time-limit for the submission of such claims, and that limit had expired on 31 December 1988. The applicants’ application of 20 December 1990 to have their former property restored to them and for the right to perpetual use of the property had been lodged outside that time-limit. Accordingly, the restitution could not have been ordered. The Supreme Administrative Court therefore dismissed the remainder of the applicants’ appeal.
24. The Decree of 26 October 1945 on real property in Warsaw expropriated real property situated in Warsaw and transferred ownership to the municipality of Warsaw.
25. Pursuant to section 33(2) of the Local State Administration Act of 20 March 1950, ownership of property situated in Warsaw was assigned to the State Treasury.
26. The Local Self-Government Act of 10 May 1990 re-established local self-government. Pursuant to section 5(1), ownership of land which had previously been held by the State Treasury and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality.
27. Under Article 7 of the 1945 decree, former owners had the right to lodge an application for temporary ownership of their plots (własność czasowa). The authorities competent to deal with such applications first had to examine whether the plots concerned had not been designated for public use. If they considered that granting temporary ownership to former owners would not be incompatible with public use, a decision could be made in favour of the former owner.
28. The Land Administration and Expropriation Act was enacted in 1985. Under section 82(2) of that Act, former owners of real property were entitled to apply for restitution of property which had been expropriated and to claim the right to perpetual use of the property. However, that entitlement was limited to certain categories of real property, namely one-family houses or small apartment blocks. Moreover, this Act laid down a time-limit for such claims. That limit expired on 31 December 1988.
29. The right to perpetual use of land owned by municipalities is regulated in Book Two of the Civil Code (Property and other rights in rem, Title two: Right to perpetual use). It follows from the relevant provisions that this right consists in an entitlement to exclusive use, by a natural or legal person, of land owned by a municipality or by the State for ninety-nine years against annual payment of certain rates. A person having such a title can construct buildings on the land, of which he will be the owner. An administrative decision by a municipality to confer the right to perpetual use on a given individual is necessary and sufficient for a final contract to this effect to be concluded between the parties. The contract between the municipality and the perpetual user must be in the form of a notarial deed. A right to perpetual use can be sold or bequeathed.
30. Under Polish law no special provisions have been enacted whereby redress may be obtained for wrongs relating to expropriations carried out within the framework of the agrarian reforms. There is therefore no specific legal framework to mitigate the effects of certain infringements resulting from the deprivations of property. However, persons whose property was expropriated, or their legal successors, may institute administrative proceedings under Article 155 of the Code of Administrative Procedure, in order to claim that the expropriation decisions should be declared null and void as having been in breach of the laws laying down criteria for expropriation, as applicable at the material time. If it is established that the contested decision was contrary to the legislation applicable at the time of the expropriation, the administrative authority shall declare it null and void. Administrative decisions may ultimately be appealed against in the Supreme Administrative Court.
31. Under Article 7 of the Code of Administrative Procedure, in administrative proceedings the competent authorities take all measures necessary to make detailed findings of fact, having due regard to the public interest and to justified individual interests. According to Article 8, they are obliged to conduct proceedings in such a manner as to strengthen the confidence which citizens are entitled to have in the State authorities.
32. Article 10 of the Code requires the administrative authorities to ensure that the respective parties to the proceedings have an opportunity to participate actively therein, to adopt, before a decision is given, a position concerning the evidence gathered in the case and other material in the case file, and to submit comments on their own claims.
33. According to Article 75 § 1 of the Code, any lawful material which could serve as a basis for factual findings is admissible as evidence in administrative proceedings. In particular, documents, witnesses’ testimonies, expert reports and inspections may be so admitted. Under Article 78 § 1 of the Code, a request to take evidence should be allowed, if the circumstances which are to be established are relevant to the decision to be given.
34. Article 196 § 1 of the Code of Administrative Procedure, as applicable at the material time, provided that an appeal on points of law against an administrative decision could be lodged with the Supreme Administrative Court. Article 207 § 2 stated that the court should set the decision aside wholly or in part if it established that the decision was in breach of substantive law or that the proceedings leading to the decision had contained a flaw which made the decision null and void, or that procedural shortcomings in the proceedings were such as to justify the re-opening of the latter.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-93915
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PERDIGAO v. PORTUGAL
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 5. The applicants were born in 1932 and 1933 respectively and live in Lisbon.
6. The applicants owned a piece of land measuring 128,619 m². By order of the Ministry of Public Works, published in the Official Gazette on 11 September 1995, the land was expropriated to build a motorway.
7. During the expropriation proceedings before the first-instance court, then before the Court of Appeal of Evora, the parties discussed whether the potential profit from exploiting a quarry located on the land concerned should be taken into account when calculating the amount to be paid in compensation for the expropriation. The applicants argued that they should be paid 20,864,292 euros (EUR) in compensation. Having examined several expert reports, one of which was ordered by the first-instance court of its own motion, the Evora Court of Appeal finally decided, in a judgment of 10 July 2003, that the potential profit from the quarry should not be taken into account, and awarded the applicants EUR 197,236.25 in compensation for the expropriation.
8. On 7 April 2005 the applicants lodged application no. 12849/05 with the Court, complaining about the lack of compensation regarding the quarry. The application was rejected by a committee on 30 August 2005 as being out of time.
9. On 4 February 2005 the applicants received notice of the court fees payable for the expropriation proceedings. The sum they were expected to pay amounted to EUR 489,188.42.
10. On 22 February 2005 the applicants filed a complaint about the fees, alleging in particular that they violated the principle of fair compensation and the right of access to a court. They also pointed out various inaccuracies and miscalculations.
11. On 1 April 2005, acting on information provided by the registry, the Evora court judge acknowledged the mistakes and ordered their rectification. The amount owed was reduced to EUR 309,052.71, leaving the applicants owing the State EUR 111,816.46 EUR in addition to the full amount of the compensation they had been awarded. The judge dismissed the applicants' complaint regarding the alleged violations.
12. The applicants appealed to the Evora Court of Appeal. In a judgment of 13 December 2005, of which they were notified on 19 December 2005, the Court of Appeal dismissed the appeal.
13. On 12 May 2006 the applicants lodged a constitutional appeal against that decision, alleging that the interpretation of the relevant provisions of the Court Fees Code, particularly Article 66 § 2, was contrary to the principles of fair compensation and the right of access to a court guaranteed in the Constitution. In their view, court fees should on no account exceed the sum awarded to them in compensation for the expropriation of their property.
14. In a judgment of 28 March 2007 the Constitutional Court dismissed their appeal. First it noted that it could only examine the constitutionality of Article 66 § 2 of the Court Fees Code, the only provision the courts below had applied. It then went on to hold that the provision concerned was not contrary to Articles 20 (access to a court) and 62 § 2 (fair compensation) of the Constitution. Concerning access to a court, it pointed out that while excessively high court fees could in some circumstances be an obstacle to access to a court, this was not the case in this instance as the applicants had to pay only EUR 15,000, a sum it considered reasonable. On the subject of fair compensation, the Constitutional Court found that compensation for the loss suffered as a result of expropriation was quite unrelated to the matter of court fees, and that there was accordingly no reason why court fees should not exceed the sum awarded in compensation.
15. On 20 April 2007 the applicants filed a request to have that judgment rectified, claiming that the Constitutional Court had made a mistake, in so far as it had considered in its reasoning that the applicants owed EUR 15,000 when they were in fact expected to pay court fees in the sum of EUR 111,816.46 .
16. In a judgment of 25 September 2007 the Constitutional Court acknowledged its mistake and the need to rectify the judgment in respect of Article 20 of the Constitution. It found that EUR 111,816.46 was a large enough sum to have affected the right of access to a court. It accordingly declared Article 66 § 2 of the Court Fees Code, as interpreted by the lower courts, contrary to Article 20 of the Constitution. As regards Article 62 § 2 of the Constitution, however, it held that its earlier decision needed no rectification.
17. On 6 November 2007 the applicants, wishing to know the exact sum they owed in court fees, filed a request for clarification of the judgment of 25 September 2007.
18. In a judgment of 13 November 2007 the Constitutional Court rejected that request, considering that it was for the lower court to determine the sum to be paid.
19. In an order of 4 January 2008, the Evora court, to which the case had been referred back, decided that the fees should not exceed the compensation awarded by more than EUR 15,000.
20. On 20 February 2008 the applicants paid the extra EUR 15,000.
21. Article 20 of the Constitution guarantees the right of access to a court. Article 62 of the Constitution guarantees the right of property and the right to fair compensation in the event of expropriation.
22. The general rule governing court fees is set forth in Article 446 of the Code of Civil Procedure, under the terms of which it is in principle for the losing party to pay the court fees, which are indexed to the sum in dispute in the proceedings.
23. Article 66 § 2 of the Court Fees Code (Código das Custas Judiciais), as applicable at the material time, stipulated that court fees owed by a person whose property had been expropriated were to be “deducted” (saem) from the compensation awarded for the expropriation.
24. Article 16 of the same code provided for the court, in certain circumstances, to be able to exempt a party from paying all or part of the court fees.