ITEMID: 001-115714
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: CHAGOS ISLANDERS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 1. The applicants are natives of, or descendants of natives of the Chagos Islands, sometimes referred to as “Ilois” or “Chagossians”. They are resident largely in Mauritius, the Seychelles and the United Kingdom. Letters of authority have been received from 1,786 applicants and are contained in the file. They were represented before the Court by Mr Gifford, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The Chagos Islands are in the middle of the Indian Ocean, comprising three main island groups (Diego Garcia the largest with a land area of about 30 km², Peros of about 13 km² and Salomon of about 5km²) and consisting of 65 islands in total. Since the nineteenth century they have been part of a colony of the United Kingdom. Until 8 November 1965 they were administered as part of the Colony of Mauritius, which is some 1,200 miles to the south-south-west.
4. According to materials in the file, the first visitors to the islands were Malaysians, Arabs and Portugese in 1743. There were at that time no human inhabitants. The first settlers, probably French, began coconut (copra) plantations, which were to be the basis of the islands’ economy for the future. The islands passed to British rule from 1814. At the beginning of the twentieth century there was a floating population of some 426 families of African, Malagasy and Indian origin, although most regarded themselves as permanent residents. The copra production company provided living quarters but the Ilois people as they were known generally preferred to build their own thatched cottages. There was no electricity, sanitation or other infrastructure. The men and women who worked on the plantations received a monetary wage but the chief payment was barter. Copra workers also fished and most families had small kitchen gardens and reared chickens and ducks. During the decades which followed there was movement of workers between the islands and Mauritius and the Seychelles under contract to the plantation company, while there were other inhabitants who had been born on the island and whose families went back several generations. By the early 1960s the islands’ population was in decline, due to low wages, monotonous work, the lack of facilities and the great distance from Mauritius and the Seychelles, while the plantations were suffering from a lack of investment. In 1962, when the Chagos Agalega Company Ltd acquired the plantations, the settlement population was a very small community of less than a thousand, settled on the three main islands. No one had lived on the outer islands for years.
5. In 1964 discussions started between the Governments of the United States of America and the United Kingdom over the establishment of American defence facilities in the region. It was envisaged from the beginning that any inhabitants would be transferred or resettled.
6. On 8 November 1965, the British Indian Ocean Territory (BIOT) Order in Council (SI 1965/120) established a new colony, which included the Chagos Islands and other islands formerly part of the Colony of Mauritius and of the Seychelles. The order created the office of the Commissioner of BIOT and bestowed on him the power to “make laws for the peace, order and good government of the Territory”. Those inhabitants of BIOT who had been citizens of the United Kingdom and Colonies by virtue of their birth or connection with the islands when they were part of Mauritius retained their citizenship.
7. On 20 December 1966, the United Kingdom and United States Governments agreed that the latter should have use of the islands of BIOT for defence purposes for an indefinite period with provision for a review in 2016. The United Kingdom Government acquired the land and interests held by the plantation company that owned most of the property on the islands. Internal documents indicated that it was considered expedient to treat the islands as having no "permanent population" with a view to avoiding difficulties with the United Nations as regards, inter alia, obligations under the United Nations Charter to protect the population and foster independence. The company continued to run the plantations under a lease until the United States needed vacant possession. After obtaining congressional approval, the US Defence Department gave notice that Diego Garcia would be required in July 1971.
8. The evacuation of the islands was effected between 1967 and 1973. Some islanders were prevented from returning after visits elsewhere, others were transferred either to Mauritius or to the Seychelles. For a while some islanders were given alternative accommodation on outlying islands. In 1971, the US construction teams arrived on Diego Garcia. Houses were demolished. No force was used but the islanders were told that the company was closing down its activities and that unless they accepted transportation elsewhere, they would be left without supplies.
9. In the various bodies of the United Nations where the matter was discussed, the United Kingdom Government claimed that the population had consisted of migrant workers, that their position had been fully protected and that they had been consulted in the process.
10. On 16 April 1971, the BIOT Commissioner enacted the Immigration Ordinance 1971, No. 1 of 1971 which made it unlawful, and a criminal offence, for anyone to enter or remain in the territory without a permit.
11. The islanders suffered miserable conditions on being uprooted, having lost their homes and livelihoods. In 1973, the United Kingdom paid 650,000 pounds sterling (GBP) to the newly independent Government of Mauritius to assist with the costs of resettlement. This sum was distributed, with interest, by the Mauritius authorities in 1977 after discussions on how best to use the money. The islanders rejected a proposed resettlement plan in favour of a cash distribution to 595 families. No compensation was paid to the evacuees on the Seychelles.
12. In February 1975, Michel Ventacassen, a Chagossian, brought a case in the High Court in London concerning the expulsions (“the Ventacassen case”). In February 1978, the Government made an open offer to settle the claims of all the islanders. In March 1982, a settlement was reached in which the Government agreed to pay GBP 4,000,000 to the Mauritian Government, which in turn agreed to put in land to the value of GBP 1,000,000. A trust fund (“the Fund”) was set up by the Mauritius Government and between 1982 and 1984 payment was made to 1,344 Chagossians in Mauritius of GBP 2,976 each. The Mauritius Government provided some low cost housing. Nothing was paid to the Chagossians on the Seychelles, who numbered around 500 and who apparently played no part in the negotiations. The applicants later claimed that they were unaware that the settlement involved any renunciation of their rights to return to their homeland. On the receipt of the last tranche of money, all but 12 of the identified islanders or the descendants who refused, had signed or thumbprinted renunciation forms in English.
13. In August 1998, Olivier Bancoult, a Chagos Islander, brought an action in London, challenging the validity of the 1971 Immigration Ordinance which had the effect of excluding the islanders from BIOT (“Bancoult 1 case”).
14. On 3 November 2000, the Divisional Court in its judgment noted inter alia that none of the islanders owned any land or held any right to permanent use of the land, which was held by the Crown. It went on however to find that the Ordinance was ultra vires the 1965 Order, since the power to make legislation for "peace, order and good government" did not permit legislation to exclude the population from the territory. It issued a declaration that the Ordinance was invalid. There was no appeal.
15. On 3 November 2000, the Foreign Secretary announced that they were examining the feasibility of resettlement of the islanders and that they intended to issue a new immigration ordinance which would allow them to return to the outer islands while observing their treaty obligations with the United States.
16. On the same date, the Commissioner of BIOT revoked the 1971 Immigration Ordinance and made the BIOT Immigration Ordinance 2000, which largely repeated the provisions of the previous ordinance but contained a new section 4(3) which provided that restrictions on entry or residence should (with the exception of Diego Garcia) not apply to anyone who was a British Dependent Territories Citizens by virtue of connection with BIOT. Entry to Diego Garcia remained subject to permit.
17. Despite the lifting of the immigration bar, none of the islanders went to live in the islands. A few made visits to outer islands to tend family graves or see their former homes, such visits being funded by BIOT.
18. In April 2002, islanders (a total of 4,466 claimants) commenced group litigation against the Attorney-General, to secure compensation for past and continuing wrongs and to seek a declaration of their right to return to Diego Garcia (“the Chagos Islanders case”).
19. On 9 October 2003, Mr Justice Ouseley struck out the action on the grounds that the claim to more compensation after the settlement in the Ventacassen case was an abuse of process, that the facts did not give rise to any arguable causes of action in private law and in any event all the claims were statute-barred. He rejected arguments that the Limitation Act 1980 did not apply as the applicants had been subject to a disability (for instance, impoverishment or being outside the jurisdiction) and considered that there had been no deliberate concealment of facts relevant to the individual causes of action which could affect the calculation of the time-limit. He also accepted the defendant’s arguments that the islanders who had accepted money from the Fund and signed a form renouncing further claims would be in abuse if they continued the proceedings. He held that it was generally known in Mauritius at the time that the 1982 Agreement was final and did not consider that they had reasonable prospects of showing that the Government had acted in a morally culpable manner leading to an oppressive transaction from which the claimants should be relieved. The islanders had had at the time legal representation or access to legal representation. He also found that the Seychelles Chagossians knew the same relevant facts at the same time as their counterparts in Mauritius. The islanders had owned no immovable property nor owned their houses. Even if any property rights had existed, he noted that these would have been extinguished twelve years after events by operation of section 17 of the Limitation Act.
20. On 22 July 2004, the Court of Appeal refused permission to appeal. While it was accepted that there were arguments of disability and unconscionability, nonetheless from 1983 onwards those circumstances no longer applied. Nor had the applicants succeeded in showing any deliberate concealment since that time. It rejected the arguments of the islanders that the renunciation forms could not be relied on by the Government as they were unable to compromise or renounce their fundamental rights. It concluded:
"This judgment brings to an end the quest of the displaced inhabitants of the Chagos Islands and their descendants for legal redress against the state directly responsible for expelling them from their homeland. They have not gone without compensation, but what they have received has done little to repair the wrecking of families and communities, to restore their self-respect or to make amends for the underhand official conduct now publicly revealed by the documentary record. Their claim in this action has been not only for damages but for declarations seeking their right to return. The causes of action, however, are geared to the recovery of damages and no separate claims to declaratory relief have been developed before us. It may not be too late to make return possible, but such an outcome is a function of economic resources and political will, not adjudication. "
21. Newspaper articles appeared in Mauritius suggesting that the Chagossians and their supporters were planning some form of direct action by landings on the island. As later described in domestic court judgments, the participants had varying aims; for one group known as LALIT it was part of an anti-American campaign to close the base at Diego Garcia. Others did not want the base closed as it might offer employment but since permanent resettlement on the islands was not practicable without substantial investment, the landings, even if they led to temporary camps, would largely be gestures in furtherance of respective political aims, designed to attract publicity and embarrass the Governments of the United Kingdom and the United States. Contacts with the United States authorities made it clear that their view was that any attempt to resettle any of the islands would severely compromise Diego Garcia’s security, and have a deleterious impact on military operations. To them Diego Garcia was a vital and indispensable platform for global U.S. military operations, as demonstrated by its important role in Operations Enduring Freedom and Iraqi Freedom as well as its continuing role in the Global War on Terrorism; in particular it had unique and exceptional security from armed attack, intelligence collection, surveillance and monitoring and electronic jamming.
22. On 10 June 2004, the BIOT (Constitution) Order 2004 was issued. It declared that no person had the right of abode in the territory or the right to enter it except as authorised. The same day there passed into law the BIOT (Immigration) Order 2004, repealing the 2000 Ordinance. This prohibited anyone from entering the territory without a permit from the immigration officer (members of the armed forces, public officers and contractors working on the American base were exempt or deemed to hold a permit).
23. On 15 June 2004, the Government issued a statement announcing the abandonment of the feasibility study into resettlement. It stated that the report by independent experts had concluded that:
"whilst it may be feasible to resettle the islands in the short-term, the costs of maintaining long-term inhabitation are likely to be prohibitive. Even in the short-term, natural events such as periodic flooding from storms and seismic activity are likely to make life difficult for a resettled population ... Human interference within the atolls, however well managed, is likely to exacerbate stress on the marine and terrestrial environment and will accelerate the effects of global warming. Thus resettlement is likely to become less feasible over time. "
24. With reference to climate change the report was quoted as stating that "the main issue facing a resettled population on the low-lying islands will be flooding events, which are likely to increase in periodicity and intensity and will not only threaten infrastructure, but also the freshwater aquifers and agricultural production. Severe events may even threaten life." It also highlighted the implications on such low-lying islands of the predicted increase in global sea levels.
25. The statement concluded that anything other than short-term resettlement on a purely subsistence basis would be highly precarious and involve expensive underwriting by the Government for an open-ended period, probably permanently. Accordingly, the Government considered that there was no further purpose in pursuing the study and it would be impossible to promote or even permit resettlement to take place. It was for this reason that the Orders in Council were issued to restore full immigration control over all the islands in BIOT, making it clear that no person had the right of abode in the territory or unrestricted access to it.
26. Much of the area had meanwhile apparently been declared an Environmental Zone, with Special Conservation Areas and Strict Nature Reserves.
27. One of the applicants, Mr Bancoult, instituted judicial review proceedings seeking to challenge the 2004 Orders barring their return to the islands as unlawful ( the “Bancoult 2 case”).
28. In its judgment of 11 May 2006, the Administrative Court upheld his claims, finding that the provisions of the Orders were invalid as not being in the interests of the Chagossians. The Secretary of State for Foreign and Commonwealth Affairs appealed, claiming that legislation precluded any attack on the validity of colonial orders in council and that the orders as a sovereign act of the Crown were only challengeable on ground of incompatibility with imperial legislation.
29. On 23 May 2007, the Court of Appeal dismissed the appeal, finding that the prerogative power of colonial governance enjoyed no generic immunity from judicial review and that the permanent exclusion of an entire population from its homeland for reasons unconnected with their collective well-being could not have the character of a valid act of governance. Lord Justice Sedley considered that while resettlement would be difficult if not impossible without capital expenditure, it had not been suggested on either side that the United Kingdom was under any obligation to fund it. It was the bolting of the door to the Chagossians’ home, not the failure to provide transport there or to refurbish it which was in issue. Indeed the Crown had rights as a landowner which were capable of answering any attempt to resettle there.
30. The Secretary of State obtained leave to appeal to the House of Lords. In its judgment of 22 October 2008, the House of Lords upheld the appeal by three votes to two. The majority considered that there had been no legitimate expectation that the islanders would be allowed to resettle on the islands. The Human Rights Act had no application to BIOT, as the declaration made in respect of Mauritius lapsed when it became independent. There was no basis for holding that the prerogative power of the Crown was limited to acts in the interests of the inhabitants and there was nothing irrational about the orders. Seen in the context of the present day, rather than 1968, any right of abode of the islanders was purely symbolic. None had gone to live on the islands in the four years when the 2000 ordinance had been in force. The islanders’ way of life had been irreparably destroyed and the practicalities were such that they would be unable to exercise any right to live on the outer islands without financial support which the Government were not willing to provide. Any attempt to exercise the right of abode by setting up some camp on the islands would be a symbol or gesture aimed at putting pressure on the Government. Thus, when considering the rights in issue in the case, which had to be weighed against the defence and diplomatic interests of the state, it was essentially about the right to protest in a particular way and it was not unreasonable of the Government to seek to avoid an unauthorised settlement on the islands which could be used as a means of exerting pressure to compel it to fund a resettlement. Funding had been the subtext of the case.
31. Lord Bingham, in the minority, considered that legal precedent negated the existence of a prerogative power to exile an indigenous population from its homeland. The orders were also irrational in the sense that there was no good reason for making them, the security arguments being weak and vague. The argument that the islanders were deprived of a right of little practical value provided no justification, since the right was of intangible value and the smaller its practical value the less reason to take it away. Additionally, in his view, the orders contradicted a clear representation by the Secretary of State in his statement of 3 November 2000, from which the Government could not resile without compelling reason, which had not been shown.


ITEMID: 001-85262
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KARPOW v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 4. The applicant was born in 1935 and lives in Warsaw.
5. On 25 March 1987 the applicant filed for a no-fault divorce.
6. On 22 April 1987 the Warsaw District Court (Sąd Rejonowy) held a reconciliation session with the participation of the applicant and his wife.
7. On 11 May 1987 the applicant modified his petition and requested that the divorce be granted on the grounds of his wife’s fault.
8. The Warsaw District Court held two more reconciliation sessions. On 30 December 1987 it decided on the applicant’s contact rights with his minor child.
9. On 8 March 1988 the Warsaw District Court ordered the applicant to undergo a psychiatric observation.
10. Forty-five hearings were scheduled between November 1988 and March 1997. However, twenty-four of them were adjourned and one was cancelled. Two hearings were adjourned due to the applicant’s stay in a psychiatric hospital for observation. Two hearings were adjourned in connection with the examination of the applicant’s challenge to the impartiality of the presiding judge. One hearing was adjourned at the parties’ request. One hearing was adjourned because the applicant’s wife was abroad. Eighteen hearings were adjourned due to the absence of one of the parties. Finally, one hearing was cancelled since the presiding judge was ill.
11. On 16 May 1990 the Warsaw District Court issued an order determining the use of the matrimonial home and payment of child maintenance.
12. On 7 June 1993 the court referred the spouses for counselling at the Family Diagnostic and Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny).
13. On 26 March 1997 the Warsaw District Court granted a divorce on the ground of the fault of both spouses. The court also ruled on custody rights and child maintenance. The applicant appealed.
14. On 6 November 1997 the Warsaw Regional Court (Sąd Okręgowy) quashed the first-instance judgment and remitted the case to the District Court.
15. Following amendments to the applicable law, the Regional Court assumed jurisdiction to examine the case. The total number of hearings held in the renewed proceedings has not been specified by the applicant. It appears that the applicant lodged two challenges to the impartiality of a judge. They were dismissed by the Warsaw Regional Court on 10 and 25 September 2002 respectively.
16. On 29 January 2004 the Warsaw Regional Court granted a divorce on the ground of the fault of both spouses. The applicant appealed.
17. On an unspecified date the applicant asked for an exemption from court fees in the appeal proceedings. On 23 April 2004 the Warsaw Regional Court refused his request. On 9 June 2004 the applicant lodged an interlocutory appeal against that decision and asked for a full or partial exemption from court fees. It appears that the applicant was asked to complete his appeal and that, ultimately, he was granted the exemption sought.
18. On 9 February 2006 the Warsaw Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal against the first-instance judgment.
19. On 14 March 2005 the applicant complained about the length of the proceedings under the Act of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
20. On 12 May 2005 the Warsaw Court of Appeal dismissed the complaint. The court held that the 2004 Act did not have retroactive effect and, consequently, it examined the applicant’s claim only in respect of the period between the date of entry into force of the 2004 Act (17 September 2004) and the date on which the applicant filed the complaint (14 March 2005). The Warsaw Court of Appeal found that the impugned proceedings were progressing without any undue delays. It was noted that on 29 January 2004 the Warsaw Regional Court had delivered a judgment and that the case was pending on appeal. It was emphasised that any delay in the appeal proceedings was attributable to the applicant who had twice applied for an exemption from court fees on the basis of incomplete information.
21. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6


ITEMID: 001-90963
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF CEBOTARI AND OTHERS v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 7. The applicants, Mr Nicolai Cebotari, Mr Nicolai Gorbatîi, Ms Zinaida Curganov, Mr Ion Nedin and Mr Petru Anin, are Moldovan nationals, who were born in 1936, 1942, 1931, 1957 and 1939 respectively and live in Chişinău.
8. The facts of the case, as submitted by the parties, may be summarised as follows.
9. The applicants were employees of a private company (“the company”) and were entitled to receive invalidity benefit. Since the company stopped paying them benefit in 1998, the applicants jointly brought an action against it, seeking payment of benefit arrears and requiring the former to pay the benefit for the rest of their lives.
10. On 23 October 2001 the Botanica District Court ruled in favour of the applicants. It ordered the company to pay each of them invalidity benefit for the period 1 April 2000 to 1 November 2001 as follows: 9,507 Moldovan lei (MDL) (823 euros (EUR)) to Mr Nicolai Cebotari; MDL 6,245.4 (EUR 541) to Mr Nicolai Gorbatii; MDL 6,320.33 (EUR 548) to Mrs Zinaida Curganov; MDL 6,345.61 (EUR 550) to Mr Ion Nedin; and MDL 8,123.61 (EUR 550) to Mr Petru Anin. It also ordered the company to recalculate their respective benefits periodically and to pay it for the rest of their lives. On the same date the court issued enforcement warrants. The company’s appeal was dismissed on 8 May 2002 by the Chişinău Regional Court and on 13 June 2002 by the final judgment of the Court of Appeal.
11. The enforcement warrants were sent to the bailiff on 5 January 2002.
12. Between 2001 and 2004 the applicants lodged numerous complaints with various authorities about the non-enforcement of the judgment in their favour. In its replies the Ministry of Justice informed the applicants about the actions taken by the Bailiff’s Office to enforce the judgment. On several occasions a bailiff made enquiries of the Tax Authority, the Land Registry and the Vehicle Registration Department about the company’s assets. He was informed that the company held numerous bank accounts which had been frozen by the Tax Authority, that the company did not have any real estate and that it owned several vehicles, later found to have been dismantled and allegedly to be of no value.
13. In order to enforce the judgment in favour of the applicants, on 5 February 2002 a bailiff seized a building, which, according to a certificate of 22 February 2002 issued by the Land Registry, belonged to a third company. On 25 February 2002 a court annulled the sale by auction of that building.
14. On 22 July 2002 the company proposed to pay to each applicant MDL 1,300 (EUR 94), but they refused the offer.
15. On 13 August 2002 a bailiff seized four items of the company’s machinery and arranged for their sale at auction. On 22 August 2002 a third party bank (“the bank”) sought annulment of the bailiff’s actions on the ground that the machinery had been mortgaged by the company in 1996 in order to guarantee a loan. Although the company’s machinery was auctioned on 18 December 2002, following a request from the bank, on 26 December 2002 the Botanica District Court annulled the auction. On 13 February 2003 the Botanica District Court ordered a stay of the enforcement proceedings in respect of the seized machinery, relying on a judgment of the Economic Court of 18 March 1999 by which a judicial dispute between the company and the bank had been determined in favour of the latter.
16. By judgments of 21 May 2002 and 31 March 2003 the Economic Court dismissed a third party bank action for the institution of insolvency proceedings against the company, relying on the company’s financial report for the first quarter of 2002 and its annual report for 2002, revealing assets worth MDL 88,291,286 (EUR 7,047,235) and MDL 83,590,250 (EUR 5,373,263), respectively.
17. On 3 March 2003 a bailiff made an enquiry of the Centre for Fighting Economic Crimes and Corruption (“CFECC”) and was informed that the company had been inactive since 1999 and held no assets and that on 14 June 2002 the company’s accounting records had been destroyed by fire.
18. On 5 September 2003 the company became the subject of insolvency proceedings and all enforcement proceedings against it were suspended.
19. On an unspecified date in 2004 the applicants brought an action against the Bailiff’s Office and complained that the measures taken to enforce the judgment in their favour were inefficient. By a decision of 11 March 2004 the Botanica District Court upheld their action and held that the Bailiff’s Office had failed to take effective action to enforce the judgment in favour of the applicants and ordered it to seize the company’s assets recorded in the financial reports of 2002 (see paragraph 16 above).
20. On 12 March 2004 a representative of the company informed the bailiff in charge of the enforcement about a change of the company’s address and about the fact that it did not possess any assets in the Botanica District. According to a report drawn up by a bailiff on 26 April 2004 the company was not located at the newly indicated address.
21. On 24 September and 7 October 2004 a bailiff requested CFECC, the Tax Authority, the Land Registry and the Prosecutor’s Office for assistance in enforcing the judgment in favour of the applicants. According to the information from the Department of Information Technology (“the Department”) the company owned three trucks, and on 24 December 2004 the Botanica District Court ordered the traffic police to search and to seize the vehicles. The decision however remained inoperative.
22. On 14 December 2004 the applicants lodged with the Botanica District Court a complaint against the bailiff’s failure to comply with the decision of the Botanica District Court of 11 March 2004. They also sought MDL 8,000 (EUR 484) each in compensation for pecuniary and non-pecuniary damage suffered as a result of the inefficiency of the bailiff’s actions. On 18 February 2005 the Botanica District Court dismissed their complaint on the ground of lack of jurisdiction ratione materiae and instructed them to initiate contentious proceedings against the bailiff.
23. On 13 December 2005 the applicants complied with the court’s ruling and initiated contentious proceedings against the bailiff. On the same date, the Botanica District Court dismissed their action on the ground of res judicata, referring to the decision of the Botanica District Court of 11 March 2004.
24. In the meantime, in May 2005, a bailiff seized 49% of the company’s shares in the statutory capital of a third company as well as eighteen items of machinery. In June and August 2005 he requested the National Institute of criminology and judiciary (“the Institute”) to evaluate the seized shares and assets. On both occasions the Institute refused to comply with the bailiff’s request, stating that it had to be paid for the valuation in advance and that it had not been provided with certain documents. On 21 November 2005 the Institute informed the bailiff that it could not comply with the request to evaluate the shares since it did not have qualified personnel for that purpose.
25. On 5 April 2006 a private company performed an evaluation of the shares and machinery. It estimated the value of the latter at MDL 582,422 (EUR 36,780), but the shares could not be evaluated since it did not have qualified personnel.
26. On several occasions a bailiff requested the creditors of the company, including the applicants, to bear the fees for the announcement of an auction. On 7 June 2006 an auction to sell the machinery took place but there were no buyers.
27. On 19 August 2006 a bailiff fixed another date for the auction. Since the debtors, including several State authorities, did not comply with the bailiff’s request to bear the fees for the announcement of the auction, it has not taken place to date.
28. On an unspecified date in 2006 a bailiff enforced a 2003 judgment in favour of the company, according to which it had to be paid by private third parties MDL 25,353 (EUR 1,643). Since the company had debts worth MDL 429,727 (EUR 24,580), on 8 December 2006 a bailiff distributed the amount recovered from the third parties between several of the company’s creditors, including Mr Nicolai Gorbatii, Mrs Zinaida Curganov and Mr Ion Nedin, who received MDL 1,419.43 (EUR 81), MDL 1,409.42 (EUR 80) and MDL 1,442.20 (EUR 82), respectively.
29. On 18 July 2007 a bailiff evaluated 49% of the company’s shares in the statutory capital of the third company at MDL 300,000 (EUR 17,930) and seized it. The company’s appeal against the bailiff’s decision was dismissed on 1 August 2007. On the same date, the third company appealed against the bailiff’s decision of 18 July 2007. The outcome of the proceedings is unknown.
30. On 16 February 2008 a bailiff issued a decision according to which the following amounts were to be distributed to the applicants: MDL 821.32 (EUR 50) to Mr Nicolai Cebotari; MDL 528.43 (EUR 32) to Mr Nicolai Gorbatii; MDL 524.70 (EUR 32) to Mrs Zinaida Curganov; MDL 536.91 (EUR 33) to Mr Ion Nedin; and MDL 687.35 (EUR 42) to Mr Petru Anin.
31. On 18 March 2008 Mr Gorbatii and Mr Nedin received MDL 1,947.86 (EUR 115) and MDL 1,979.11 (EUR 117), respectively.
32. The judgment of 23 October 2001 in favour of the applicants has not been fully enforced to date.
33. The relevant domestic law has been set out in Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts)).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-22047
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: JAHNKE and LENOBLE v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The three applicants are French nationals, born in 1954, 1955 and 1956 respectively. The first applicant is a technical salesman and lives in Paris. The second applicant is an electromechanical engineer. He is the husband of the third applicant, who is a sales representative. They live in Vitry-sur-Seine (Val-de-Marne).
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were hired in 1986, 1978 and 1985 respectively by a company called Mole Richardson France whose object was the manufacture, sale and hire of lighting and cinematographic equipment. The collective agreement applicable to the three applicants was the one for the metalworking industry.
In 1989 Mole Richardson France transferred its manufacturing department and part of its sales department to a company called Raccetec. The employment contracts of the staff employed in connection with the activities which had not been transferred, including the applicants’ contracts, were transferred to Mole Richardson International Ltd.
In 1991 Mole Richardson International Ltd transferred its Montrouge branch to a company called Panavision France, which was not subject to any collective agreement. The following year Panavision France closed down its Montrouge establishment.
On 28 December 1992 the second applicant was made redundant. On 7 January 1993 the company obtained administrative authorisation to serve a redundancy notice on the other two applicants, who, in their capacity as staff representatives, were protected employees. On 13 January 1993 the company made them redundant on the ground that the establishment employing them had been closed down.
On 25 June 1993 the applicants lodged an application with the Boulogne-Billancourt Industrial Tribunal for an order requiring their former employer to pay them all the sums due under their contract, pursuant to the provisions of the collective agreement for the metalworking industry.
On 24 November 1993 the Industrial Tribunal dismissed the applicants’ claims in their entirety and awarded costs against them. The tribunal found, inter alia, that while Panavision France had taken over Mole Richardson’s assets and the employment contracts had been transferred to the new employer, the latter was not subject to the application of any collective agreement, “the transfer of a contract under ... Employment Code [not entailing] the preservation of all previously obtaining advantages”.
The applicants appealed to the Versailles Court of Appeal. They submitted in their grounds of appeal that Panavision France was obliged to apply the collective agreement for the metalworking industry because, in accordance with the provisions of an Act of 3 January 1985, that agreement continued to be effective for one year following the transfer. They also submitted that their redundancies had breached the European Directive of 14 February 1977 relating to the information to be given to employees in the event of transfers of undertakings (Directive no. 77/187, Official Journal of 5 March 1977). The applicants complained, in particular, that, in breach of the directive, it was only their salary slips that had officially informed them, at the end of December 1991, of the transfer of Mole Richardson International to Panavision France.
On 26 June 1995 the Court of Appeal upheld the Industrial Tribunal’s decision that there had been genuine and substantial grounds for making the applicants redundant. It went on to hold that the applicants could not rely on the application of the collective agreement for the metalworking industry at the time of their redundancy because the transfer to Panavision France of Mole Richardson International’s activity and equipment had taken place on 1 July 1991, that is, before they had been made redundant. Accordingly, the Court of Appeal concluded that the applicants could not rely on the collective agreement for the calculation of their redundancy pay because their right to compensation had arisen when the agreement had ceased to be effective. Consequently, it dismissed the applicants’ claims and awarded costs against them. The Court of Appeal did not deal with the ground of appeal relating to a breach of the European directive.
The applicants lodged an appeal on points of law with the Court of Cassation. In their grounds of appeal they complained, inter alia, that the Court of Appeal’s judgment had not dealt with “important points of law based on French obligations with regard to the European Community”. They submitted that, accordingly, the Court of Appeal had failed to comply with its obligations under Article 455 of the new Code of Civil Procedure.
In its defence pleadings, Panavision France, replying to the arguments put forward by the applicants – and after noting that “the appellant complains that the decision did not deal with his objection based on a breach of the European Directive of 14 February 1977” – submitted:
“... apart from the fact that it is not clear in which pleadings this point was raised, it should be reiterated that the judges of fact have a duty to deal only with genuine grounds, defined as the statement of a fact on the basis of which, using legal reasoning, the party intends to demonstrate the merits of a claim or defence. Even supposing that the employee did raise the point, he did not draw any legal inference from the alleged breach of the directive. It was therefore a mere argument which the judges of fact did not have to deal with”.
In a judgment of 10 July 1997 the Court of Cassation dismissed the applicants’ appeals. In particular, the ground of appeal based on a breach of the European directive was declared inadmissible on the ground “that it does not appear either from the impugned decision or the pleadings that [the applicants] relied, before the judges of fact, on a breach of the European Directive of 14 February 1977 on the information to be given to employees in the event of transfers of undertakings; it is therefore a new ground of appeal and one of mixed fact and law ...”.
New Code of Civil Procedure
Article 619
“... new grounds of appeal shall not be admissible before the Court of Cassation. Subject to any contrary provision, the following may, however, be raised for the first time:
1. Points of pure law;
2. Grounds of appeal arising out of the decision being challenged.”
That provision enshrines traditional case-law according to which the Court of Cassation was instituted only to assess, from a legal perspective, judgments delivered at last instance. It is thus impossible to raise before the Court of Cassation new grounds which have not been dealt with before the judges of fact. According to the established case-law of the Court of Cassation, a ground which has not been raised before the judges of fact and is of mixed fact and law is a new ground (see, to that effect, Cass. App. 22 November 1942, JPC 43 II 2444; Court of Cassation, 1st Civil Division, 22 May 1979, JPC 79 IV 244; Cass. 2nd Civ., 17 July 1991, GP 93 summ. 2).
Article 954
“... Appeal submissions shall formulate expressly the parties’ claims and the grounds on which each of those claims is based.”
Article 455
“The judgment shall set out succinctly the respective claims of the parties and the grounds on which they rely; it shall give reasons. The decision shall be set out in the operative provisions of the judgment.”
Case-law has interpreted those provisions to mean, inter alia, “that the requirements of that Article are satisfied where the judgment has stated and dealt with the factual circumstances, and the legal inferences drawn from them, on which the decision is based” (see Comm. 5 January 1976, Bull. civ. IV, p. 2, and 2nd Civil Division, 12 May 1980, ibid. II, p. 77).


ITEMID: 001-85632
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HUMPHRIES 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 Arthur Humphries, is a British national who was born in 1944 and lives in Lancashire. 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 26 June 1991. On 7 August 2001 the applicant applied for widows’ benefits. On 13 August 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant appealed but received no reply. 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 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: 001-103290
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: EREL AND DAMDELEN v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Stelios Nathanael
TEXT: The applicants, Mr Ali Erel and Mr Mustafa Damdelen, are Cypriot nationals of Turkish-Cypriot origin, who were born in 1951 and 1952 respectively and live in Nicosia, in the northern part of Cyprus which in November 1983 was proclaimed as the Turkish Republic of Northern Cyprus” (the “TRNC”). They were represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia.
and as derived from the documents in the file, may be summarised as follows.
On 28 February 2006, before the parliamentary elections of the Republic of Cyprus to be held on 21 May 2006, the applicants submitted seventy-eight applications on behalf of other Turkish Cypriots and themselves to the Minister of the Interior of the Republic of Cyprus (“the Minister”) requesting to be placed on a separate electoral list, namely, a Turkish electoral list, in order to vote and stand for the parliamentary elections. The applicants claimed that section 3 (1) of the Law on the Exercise of the Right to Vote and be Elected by Members of the Turkish community with Habitual Residence in the Free Areas of the Republic (Temporary Provisions) (“Law 2(I)/2006”) was contrary to the Constitution and the Convention.
Their applications were refused by the Minister on 12 April 2006. In his decision the Minister stated that the above-mentioned Law had been enacted in compliance with the Court’s ruling in the case of Aziz v. Cyprus (no. 69949/01, ECHR 2004V) in order to enable Turkish Cypriots residing in the government-controlled areas of the Republic to exercise their individual right to vote and stand for election. It did not provide, however, for the exercise of these rights as a community. Due to the irregular situation, the relevant Constitutional provisions concerning separate elections had become impossible to implement in practice. The Law applied as long as the irregular situation in Cyprus continued to exist. It was therefore of a temporary nature and did not deprive the Turkish community of their constitutional rights. Until a comprehensive settlement was reached, however, the exercise of these rights in the manner provided by the Constitution was not possible.
On 28 April 2006 the applicants filed an application, in the Turkish language, at the Registry of the Supreme Court for a declaration that the Minister’s decision was null and void. The applicants relied on Articles 62 and 63 of the Constitution as they were before the amendment whereby the number of seats in the House of Representatives was increased (see domestic law part below). The document did not comply with any of the procedures concerning the drafting of special proceedings whereby the various competences of the Supreme Court are evoked. The officers of the Registrar, taking into account the fact that the applicants were seeking the annulment of the Minister’s decision in order to enable them to exercise their right to vote and to stand for election, filed the case under the category of electoral applications and submitted it to the Plenary of the Supreme Court which has exclusive jurisdiction to adjudicate finally on any election petition, made under the provisions of the Electoral Law (Article 145 of the Constitution).
The Supreme Court, after considering the application, decided that in substance it constituted a recourse under Article 146 of the Constitution by which the applicants challenged the Minister’ decision dismissing their application.
On 30 April 2007 the Supreme Court, sitting as a full bench, dismissed the recourse.
In its judgment the Supreme Court noted, firstly that the applicants wished to be registered as voters in a separate electoral list, namely that of the Turkish-Cypriot citizens of the Republic of Cyprus. It followed therefore that they also sought the right to be elected by the Turkish-Cypriot voters, who were on a separate list, in order to take a parliamentary seat from the separate number of seats that the Constitution allocated to the Turkish community. As such the applicants’ demand touched upon the very continuation of the existence of the Republic of Cyprus which constituted the internationally-recognised legal state established in 1960. The Supreme Court noted that after the withdrawal of the Turkish community from the State organs in 1963 following a decision of its leadership, the relevant Articles of the Constitution providing for separate elections by the two communities had become impossible to implement in practice. From 1963/1964 the State based its legal existence and its continuing functioning on the Law of Necessity, as laid out in the case of The Attorney-General of the Republic v. Mustafa Ibrahim and others, (1964) C.L.R. 195). The Supreme Court stated that this fundamental legal decision stood side by side with the Constitution which contained the consummate rule of law governing the continuing existence and functioning of the State as a legal and democratic entity and referred in detail to the situation and the reasons which led unavoidably to the adoption and prevalence of the Law of Necessity. The Supreme Court pointed out that these reasons became even more pressing after the Turkish invasion in Cyprus in the summer of 1974 and the occupation of northern Cyprus by Turkish troops. At present only a small number of Greek Cypriots lived in the occupied part of Cyprus and very few Turkish Cypriots lived in the territory controlled by the Republic of Cyprus.
The Supreme Court stated that the above realities were confirmed in a series of judgments by the European Court of Human Rights (“the Court”) in which, inter alia, the international recognition of the Republic of Cyprus as the legitimate and lawful State was considered an indisputable fact, while at the same time the regime which existed in the northern part of Cyprus, where Turkey exercised effective control, was held to be illegal. In this connection, the Supreme Court referred to the Court’s findings in the case of Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001IV), Loizidou v. Turkey ((preliminary objections), 23 March 1995, Series A no. 310), Xenides-Arestis v. Turkey (no. 46347/99, 22 December 2005) and Aziz (cited above). With regard to the latter case, the Supreme Court pointed out that the Court had found a violation of Article 3 of Protocol No. 1 in that although the relevant constitutional provisions had been rendered ineffective there had been a manifest lack of legislation resolving the ensuing problems; namely that members of the Turkish-Cypriot community, living in the government-controlled area of Cyprus, had been completely deprived of any opportunity to express their opinion in the choice of the members of the House of Representatives of the country of which they were nationals and where they had always lived. Following this judgment, Law 2(I)/2006 was enacted enabling Cypriot nationals who belong to the Turkish-Cypriot community and had their habitual residence in the government-controlled areas of Cyprus to vote and to stand for election. The Supreme Court noted, however, that the applicants had and still had their permanent residence in the northern part of Cyprus, which was occupied by and under the control of Turkish troops. They could not therefore claim a right to vote or to stand for election on the basis of the Court’s ruling in the Aziz case and Law 2(I)/2006.
Article 31 of the Constitution safeguards the right to vote. It provides as follows:
“Every citizen has, subject to the provisions of this Constitution and any electoral law of the Republic or of the relevant Communal Chamber made thereunder, the right to vote in any election held under this Constitution or any such law.”
Articles 62 and 63 of the Cypriot Constitution concern the composition of the House of Representatives and the right to be registered in the electoral lists for parliamentary elections. They provide as follows:
“1. The number of representatives shall be fifty:
Provided that such number may be altered by a resolution of the House of Representatives carried by a majority comprising two-thirds of the Representatives elected by the Greek Community and two-thirds of the representatives elected by the Turkish Community.
2. Out of the number of Representatives provided in paragraph 1 of this Article seventy per centum shall be elected by the Greek Community and thirty per centum by the Turkish Community separately from amongst their members respectively, and in the case of a contested election, by universal suffrage and by direct and secret ballot held on the same day. ...”
“1. Subject to paragraph 2 of this Article every citizen of the Republic who has attained the age of twenty-one years and has such residential qualifications as may be prescribed by the Electoral Law shall have the right to be registered as an elector in either the Greek or the Turkish electoral list:
Provided that the members of the Greek Community shall only be registered in the Greek electoral list and the members of the Turkish Community shall only be registered in the Turkish electoral list.
2. No person shall be qualified to be registered as an elector who is disqualified for such registration by virtue of the Electoral Law.”
Article 64 of the Constitution sets out the eligibility requirements to stand for election to the House of Representatives. It provides as follows:
“A person shall be qualified to be a candidate for election as a Representative if at the time of the election that person-
(a) is a citizen of the Republic;
(b) has attained the age of twenty-five years;
(c) has not been, on or after the date of the coming into operation of this Constitution, convicted of an offence involving dishonesty or moral turpitude or is not under any disqualification imposed by a competent court for any electoral offence;
(d) is not suffering from a mental disease incapacitating such person from acting as a Representative.”
Following the withdrawal of the Turkish community from the State organs in 1963, a number of Constitutional provisions, including the Articles providing for the parliamentary representation of the Turkish community and the quotas to be adhered to by the two communities, became impossible to implement in practice.
In 1985, by decision of the House of Representatives, the number of seats in the House of Representatives was increased from fifty to eighty; fifty-six seats were allotted to representatives to be elected by the Greek community and twenty-four seats to representatives to be elected by the Turkish community. The twenty-four seats remain vacant.
According to Section 5 of Law on the Election of Members of the House of Representatives Law (Law 72/79, as amended), the right to elect belongs to those who have the qualifications provided for under Article 63 of the Constitution. The residential requirement is that of habitual residence in Cyprus for a period of six months immediately before the date fixed by the Minister, by publication in the Official Gazette of the Republic, as the date of acquisition of the electoral qualifications. Section 19 (1) of the same Law provides that a candidate for parliamentary elections should have the qualifications set out in Article 64 of the Constitution.
Following the Court’s judgment in the case of Aziz v. Cyprus (cited above), Law 2(I)/2006 was enacted and entered into force on 10 February 2006. Law 2(I)/2006 applies to citizens of the Republic who are members of the Turkish community and had, at the time of entry into force of the Law or subsequently, their habitual residence in the free areas of the Republic (section 3) and enables them to exercise their right to vote in presidential elections and their right to vote and to be elected in parliamentary, municipal and community elections. As regards parliamentary elections, this relates to the filling of the fifty-six seats allotted to the Greek community. Section 6 provides that Cypriot nationals of Turkish origin are to be registered on a supplementary electoral list which is then incorporated into the main electoral list in accordance with the Civil Registry Law (Law 141(I) 2002, as amended). Further, in respect of the right to vote, the requirement is that of habitual residence for a term of six months immediately before the date of acquisition of the electoral qualifications (section 5).
Law 2(I)/2006 does not apply to citizens of the Republic who are members of the Turkish community and reside in the free areas occasionally, from time to time or temporarily (section 3).
According to section 4 the provisions of the Electoral Legislation are also applicable to members of the Turkish community who come within the scope of the Law [Civil Registry Law (Law 141 (I)/2002 as amended); the Law on the Election of Members of the House of Representatives Law (Law 72/79 as amended); the Municipalities Law (Law 111 of 1985 as amended); the Communities Law (Law 86(I) of 1999 as amended) and the Election (President and Vice President of the Republic) Law (Law 37 of 1959 as amended)].
Following the entry into force of Law 2(I)/2006, members of the Turkish community with their habitual residence in the government-controlled areas, were able to participate in the parliamentary elections of 21 May 2006. From the information given by the respondent Government to the Committee of Ministers about the measures to comply with the Court’s judgment in the case of Aziz, two hundred and seventy Turkish Cypriots cast their vote in those elections while one Turkish Cypriot was a candidate MP (appendix to Resolution CM/ResDH(2007)77 of 20 June 2007).
In accordance with Article 145 of the Constitution, the Supreme Court has exclusive jurisdiction to adjudicate finally on any election petition, made under the provisions of the Electoral Law, with regard to the elections of the President or the Vice-President of the Republic or of members of the House of Representatives or of any Communal Chamber.
Furthermore, under Article 146 of the Constitution the Supreme Court has exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person (Article 146(1)).


ITEMID: 001-68254
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: MATHEIS v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Ms Erna Matheis, is a German national, who was born in 1923 and lives in St. Ingbert in Germany. She is represented before the Court by the law firm Walter & Kollegen, practising in Saarbrücken in Germany.
The applicant used to work as a bank employee. Since her retirement at the age of 60 on 31 July 1983, she receives a pension under the statutory old-age insurance scheme (gesetzliche Rentenversicherung), an additional pension under a supplementary insurance scheme for bank employees (Zusatzversicherung) and an additional monthly allowance granted by her former employer (Ruhegeld).
On 21 December 1983 the applicant married a retired civil servant of 73 years of age who - since January 1975 - received a pension under the old-age pension scheme for civil servants (Beamtenversorgung).
On 23 January 1994 the applicant's husband died. According to Articles 19 and 22 of the Civil Servant's Pension Act (Beamtenversorgungsgesetz, see relevant domestic law below) a civil servant's widow, whose marriage has been celebrated after the civil servant has entered retirement, is not allowed to a regular survivor's pension (Witwengeld), but to a maintenance allowance (Unterhaltsbeitrag), which is meant to ensure that her overall monthly income reaches at least the amount of the regular survivor's pension. It is calculated as follows: From the amount of the regular survivor's pension the competent authorities deduce the widow's own earned income (Erwerbseinkommen) and income replacements (Erwerbsersatzeinkommen), with the exception of an allowance (Freibetrag) which amounts to 30 % of the minimum survivor's pension.
In the applicant's case the competent authority deduced the applicant's whole other income, including her pension, her supplementary pension and the additional payments from the original widow's allowance. After adding the above-mentioned allowance, this resulted in a remaining monthly payment of 246.36 DEM [approximately 125 EUR].
On 20 November 1995, following administrative proceedings, the applicant lodged a claim with the Saarland Administrative Court (Verwaltungsgericht) with the aim to be awarded a higher maintenance allowance. She argued that her own supplementary pension and additional payments could not be regarded as income replacements within the meaning of Article 22 of the Civil Servant's Pension Act and could therefore not be taken into account when calculating her monthly allowance as a widow. She further pointed out that under the statutory old-age insurance scheme, additional payments deriving from a private insurance scheme did not diminish the survivor's pension, and that the same should apply under the Civil Servant's Pension Act.
On 8 October 1997 the Saarland Administrative Court rejected her claim.
On 5 November 1998, following the applicant's appeal, the Saarland Administrative Court of Appeal (Oberverwaltungsgericht) quashed the Administrative Court's judgment and fully granted the applicant's claim, finding that the term “income replacement” had to be interpreted in the same way as in the relevant provisions on the statutory old-age insurance scheme and therefore did not include the additional payments received under a private pension scheme.
On 21 October 1999 the Federal Administrative Court (Bundesverwaltungsgericht) quashed the Court of Appeal's judgment and rejected the applicant's claim. According to that court, the relevant provisions had to be interpreted autonomously, because they differed considerably. The statutory old-age insurance only pays pensions and no allowances to widows. Considering the wording as well as the aim of the provision, which was to secure that the widow's overall income did reach at least the amount of the regular survivor's pension, that court found that all of the applicant's monthly income, including her claims under private pension schemes, had to be taken into account. The Federal Administrative Court pointed out that the widow's allowance was merely meant to prevent hardships arising from the fact that the applicant was not entitled to a regular survivor's pension. It would be in contradiction to this aim not to take payments under a private pension scheme into account.
On 20 December 1999 the applicant lodged a constitutional complaint. She argued that the Federal Administrative Court had misinterpreted the relevant provisions and that its judgment violated her property rights and her right to equal treatment under the German Basic Law. On 11 April 2000 the applicant requested the Federal Constitutional Court to seek a preliminary ruling by the Court of Justice of the European Communities as to whether the national legal practice on the assessment of income replacements complied with Community law, in particular with the law on equal treatment.
On 18 August 2000 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the applicant's complaint, finding that it was up to the lower instance courts to interpret the law and that the decision in question did not violate any of the applicant's rights under the Basic Law. This decision was served on the applicant on 25 August 2000.
Pensions of civil servants and their surviving spouses are governed by the Civil Servant's Pension Act, the relevant provisions of which at the material time read as follows:

Article 19
“A civil servant's widow ...receives a survivor's pension. This does not apply, if
...2. the marriage was celebrated after the civil servant had entered retirement and had reached the age of 65...”
Article 22
“If Article 19 § 1 No. 2 applies...the widow has to be granted a maintenance allowance amounting to the survivor's pension. Earned income and income replacements have to be taken into account to an appropriate degree...”
The administrative regulations for implementing the Civil Servant's Pension Act (Verwaltungsvorschriften) provide that an amount of 30 % of the minimum widow's pension has to be deduced from the widow's other income when calculating the maintenance allowance.
According to Article 18 (a) subsections 2 and 3 of the fourth volume of the Social Law book (SGB IV) - which provides the general definitions for pensions under the statutory old-age insurance scheme - pensions paid under a private insurance scheme are not to be regarded as income replacements and are therefore not to be taken into account when assessing a survivor's pension under the statutory old-age insurance scheme.


ITEMID: 001-117683
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF NOVAYA GAZETA AND BORODYANSKIY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information)
JUDGES: Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 5. The first applicant, Novaya Gazeta Editorial and Publishing House, is an autonomous non-governmental organisation registered under Russian law in Moscow on 24 June 1998. It edits and publishes a daily national newspaper with circulation of 500,000 copies under the name Novaya Gazeta.
6. The second applicant, Mr G. Borodyanskiy, was born in 1959 and lives in Omsk. He is one of the regional journalists of Novaya Gazeta in Omsk, Tomsk, and Tyumen Regions.
7. In 2006 Novaya Gazeta published a series of articles by the second applicant.
8. On 27 November 2006 the newspaper published in both its printed and online versions an article by the second applicant entitled ‘Personalities received loans’ («Кредиты выдали под лица») (“the article”). It concerned alleged irregularities in the issuance of large unpaid loans by Sberbank (Savings Bank). The text described several fraudulent schemes which were used to obtain up to 147,000,000 euros (EUR) in loans from Sberbank, and listed certain individuals allegedly involved in these schemes. Among others the article mentioned Mr R.M., a politician and businessman from Kazakhstan with significant business interests in agricultural production in Omsk Region. A brief update on the criminal inquiry into the alleged loan fraud concluded the article.
9. The article contained, in particular, the following four fragments:
“[1] In this case the interests of an important politician – the President of the Agrarian Party of Kazakhstan, which is the second most influential party [in that country] after the Otan Party headed by Mr Nazarbayev [the President of Kazakhstan], [Mr R.M.], were involved.
[2] In Omsk [Mr R.M.] controls the Kirovskiy Grain Elevator, the biggest flour producer in the Omsk Region, [limited liability company] M, a bread factory and dozens of successful enterprises.
[3] It would be inconceivable for anyone to achieve such success in our region without the benevolence (благоволение) of the Governor [Mr P.] who has held senior public office in Kazakhstan for more than twenty years. And this biographical fact of [Mr P.], naturally, has linked the republic [of Kazakhstan] and the [Omsk] region ever closer with ‘fraternal bonds’.
[4] The Kirovskiy Grain Elevator sent forged certificates to Sberbank confirming that different companies [had] grain which actually never existed. Those certificates were issued by its CEO, Ms Zh. According to the investigators, each certificate cost fifty to seventy thousand roubles. Loans were given on the basis of those certificates in the amount of half a billion roubles.”
10. On 11 December 2006 Mr P., the Governor of Omsk Region, lodged a libel action against the first and second applicants with the Kuybyshevskiy District Court of Omsk (the District Court). He sought recognition of statements about him as libellous, publication of a rectification in Novaya Gazeta, and 500,000 Russian roubles (RUB) in non-pecuniary damages.
11. The court proceedings started on 20 December 2006.
12. On 26 December 2006 the applicants were notified about the next hearing on 11 January 2007, which was subsequently adjourned to 15 January 2007. The applicants were notified of the change of date.
13. On 14 January 2007 the first applicant requested the trial court to adjourn the hearing by three more weeks in order to prepare its written comments on the lawsuit.
14. On 15 January 2007 the District Court refused to further adjourn the hearing, because the applicant newspaper did not advance any reasons why its representative could not appear for the hearing and why it did not submit its written comments on the lawsuit between 20 December 2006 and 15 January 2007.
15. The trial court held a hearing in the defendants’ absence and allowed Mr P.’s action in part. The relevant part of the judgment read as follows:
“... In accordance with Article 23 of the Constitution protection of every citizen’s good name is guaranteed.
Under Article 152 of the Civil Code an individual may apply to a court with a request for rectification of statements that are damaging to his honour, dignity or professional reputation if the person who disseminated such statements can not prove their truthfulness ...”
The trial court also established that the statements about Mr P. (reproduced above in paragraph 9) were disseminated by the applicants in printed and online versions of Novaya Gazeta, and thus became known to an indeterminate number of readers. It continued:
“... In consideration of defamation disputes the following must be established: whether the defendant had disseminated statements about the plaintiff, whether those statements were discrediting, and whether those statements were false.
The statements about the plaintiff had been disseminated ...”
The defendants did not present any evidence that Mr P. had engaged in activities aimed at providing certain businessmen and commercial organisations with privileges, or that he had in fact abused his powers to further certain individuals’ interests ...
The author of the article referred to benevolence (благоволение) on the part of the Governor towards a renowned politician, the President of the Agrarian Party of Kazakhstan, [Mr R.M.]
“Benevolence” is to be understood as good will, a favourable attitude, approval, expression of satisfaction, and gratitude ...
The statement that “in our region ... the Governor”, by using his office, shows benevolence [or] approval of the actions of [Mr R.M.] in ‘control of the Kirovskiy Grain Elevator’, is not compatible with the office of a state official. These statements, taken in conjunction with other paragraphs of the article (about [Mr R.M.], about issuance of false certificates to procure loans), create a negative image of the plaintiff, and could generate scepticism as to the plaintiff’s compliance with the ethical principles expected of the head of the executive authority in the region ... [T]hese statements characterise the plaintiff’s actions as aimed at providing certain businessmen and commercial organisations with privileges, and as an abuse of his powers to further the interests of certain individuals ...”
The trial court concluded that the statements were defamatory, and that rectification of the disseminated statements must be published in printed and online versions of Novaya Gazeta. It further stated:
“... When determining the level of non-pecuniary damages the court considers the degree of distress caused to the plaintiff by the extent of the dissemination of false statements. The newspaper is distributed in nine regions of Russia and in two foreign countries. The article was also published on line ... [on a website] with at least 91,369 readers weekly ... Having regard to these circumstances, the court orders the defendants to pay RUB 60,000 [in compensation] ...”
It addition to RUB 60,000 (EUR 1,623) in non-pecuniary damages the plaintiff was also awarded RUB 100 (EUR 2.5) in court fees, to be paid by the applicants jointly.
16. On 9 March 2007 the first applicant appealed, claiming, in particular, that the article contained value judgments not susceptible of proof and that the District Court had failed to duly notify it of the date and time of the hearing. According to the heading of the appeal statement, the second applicant was a co-defendant.
17. On 25 July 2007 the Omsk Regional Court, in the presence of the parties to the proceedings and hearing their statements, upheld the lower court’s judgment. It reasoned that the District Court had correctly concluded that the information in the article had tarnished the plaintiff’s reputation, and dismissed the first applicant’s description of it as a value judgment. The relevant part of the judgment read as follows:
“The following claims in the defendants’ appeal are not justified: that the statements are not discrediting, that they may not be regarded as assertions, and that they are merely opinions, value judgments by the author and thus not susceptible of proof.
The [trial] court rightly noted that the author of the article, by claiming that the Governor has “benevolence” towards [Mr. R.M.], alleged approval of [his] control over the Kirovskiy Grain Elevator ...”
At the same time the Regional Court ruled that the statement in paragraph 4 of the article reproduced above was not defamatory, as it did not refer to any abuse of powers by Mr P. Further, it dismissed the first applicant’s claim that it had not been summoned to the district court hearing, stating that several notifications had in fact been sent to the defendants.
18. The Regional Court ruled in the final judgment that the first applicant was to publish a rectification of the statements contained in paragraphs 1-3 of the article reproduced above, and that the applicants were to pay Mr P. jointly RUB 60,100 in non-pecuniary damages and court fees.
19. Following this judgment, the first applicant published a rectification in the printed and online versions of Novaya Gazeta and paid Mr P. non-pecuniary damages and court fees.
20. Article 23 guarantees protection of private life, privacy of personal and family affairs, good name and honour. Article 29 protects freedom of thought and expression, together with freedom of the mass media.
21. Article 152 provides that an individual may apply to a court with a request for rectification of statements (сведения) that are damaging to his honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements. The same rules are applicable in cases where the plaintiff is a legal entity.
22. The Supreme Court clarified to the lower courts that a defamation action may be allowed only if a defendant has disseminated statements about the plaintiff, if those statements are discrediting, and if those statements are false. It required the courts hearing defamation claims to distinguish between statements of facts, which can be checked for veracity, and evaluative judgments, opinions and convictions which are not actionable under Article 152 of the Civil Code since they are an expression of the defendant’s subjective opinion and views and cannot be checked for veracity.
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-75870
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: DMITRIJEVS v. LETTONIE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Mr Sergejs Dmitrijevs, is a “non-citizen” of Latvia, who was born in 1960 and lived in Valmiera (Latvia). Sentenced to fifteen years’ imprisonment, he is serving his service in Jelgava Prison. The Latvian Government (“the Government”) are represented by their Agent, Ms I. Reine.
The facts of the case, as submitted by the parties, may be summarised as follows.
From 1992 to 1995 a number of killings, attempted killings and burglaries were committed in the Riga district by a four-person organised gang.
On 11 May 1995, two individuals assaulted M.G., a well-known Riga businessman, for the purpose of stealing his car. After following the victim and meticulously tracking his movements around the city, the criminals lay in wait for M.G.’s car near a house which he visited regularly. Once the car had stopped in front of the house, one of the assailants, wearing a cap, gloves and sunglasses, ran towards the vehicle, opened the door and pointed a pistol at the victim, ordering him to get out. M.G. also pulled a pistol from his pocket, at which point the assailant fired seven times, killing him immediately. A few seconds later, having noticed the victim’s adult daughter D.G. approaching the scene, the killer fled on foot.
During the pre-trial investigation, D.G. was questioned three times: on 11, 17 and 25 May 1995.
On 14 July 1995 the applicant was arrested by police officers from the anti-crime unit as a suspect in the above-mentioned crime and placed in police custody.
During the period in police custody, the applicant was questioned by the police on several occasions. During those interviews, which took place without a lawyer, the applicant admitted that he had participated in six incidents of theft and hold-up as a member of the gang of robbers. He also confessed that he had been responsible for killing M.G.
On 10 August 1995 the applicant was placed under investigation on a charge of aggravated murder and banditry. In the meantime, three other individuals suspected of belonging to the same gang were charged with burglary, robbery and murder. They thus became the applicant’s co-defendants.
During questioning in August 1995, the applicant informed the prosecution service that all the confessions he had previously made were false, as they had been forced out of him by police officers from the anti-crime unit while he had been held in police custody. In the presence of his counsel, the applicant alleged that a specific police officer, whom he named, had threatened him and had offered him money and a reduction in his sentence in return for a confession; this statement was recorded in the minutes of the interview. In consequence, the applicant asked the prosecution service not to take into consideration the content of the preceding interviews and to acquit him.
On 9 April 1997 the prosecution service submitted a final bill of indictment (apsūdzības raksts) against the applicant and his co-defendants. The applicant was charged with aggravated murder and banditry; the second charge included six hold-ups. With particular regard to M.G.’s murder, the prosecution service considered that the applicant’s guilt was sufficiently proven by the co-existence of inferences arising from the following evidence:
– the statements by the victim’s adult daughter, who was questioned during the pre-trial investigation on 11, 17 and 25 May 1995 and confirmed that she had seen her father’s killer leaving the crime scene. On 11 May 1995 she gave the following description of the criminal:
“...A twenty to twenty-five- year old man, dark hair, wearing a dark cap and sunglasses covering his eyes, he was wearing gloves. I do not remember his clothes. He resembled the pop-singer “Titomir”. ...”
On 17 May 1995 D.G. gave the following description of the criminal:
“...He could be thirty-year old, his height 170-175 cm, he was wearing dark clothes, a cap and sunglasses. ... I think his hair was not long ...”
– a statement by two motorcyclists who had passed the crime scene a few seconds after the killing; those two witnesses claimed that they had followed a man who was running away for about a hundred metres; his physical characteristics corresponded to those of the applicant;
– a statement by a person who had seen a man resembling the applicant running towards the crime scene a minute or two before the sound of gunfire;
– the cap and sunglasses found hanging on the branches of a bush near the site of the killing, which resembled those worn by the killer;
– statements made by the applicant himself during the initial interview and the scene-of-crime reconstruction to the effect that, after fleeing the scene of the crime, he had removed the cap and sunglasses and had thrown them towards a bush while running; the location indicated by the applicant corresponded to the exact spot where the two objects had been found;
– the results of biological analysis of hair and traces of sweat taken from the cap and glasses and of osmological tests, confirming that it was highly probable that those two items had been worn by the applicant;
– the applicant’s initial statements, which were concurring and corresponded to the results of other investigative measures, particularly the scene-of-crime reconstruction, carried out on-site on 25 July 1995;
– statements by an anonymous witness, referred to in the case file by the pseudonym “Oleg”, alleging that he had met the applicant on the evening of the killing and that the latter had admitted to him that he had killed M.G.
After forwarding the investigation file to the defendants, the prosecution service sent the case to the Riga Regional Court, the court of first instance in the case.
The Riga Regional Court began examining the merits of the case on 20 October 1997. The applicant pleaded not guilty at the hearing, and repeated his allegation that the confessions had been forced from him by a police officer who promised money and a reduced sentence in exchange for an admission of guilt. After questioning the police officer named by the applicant and several of his colleagues and hierarchical superiors, the court found that that officer had questioned the applicant on only one occasion and that he was not part of the investigation team responsible for the case. As he had not been present at the crime-scene reconstruction on 25 July 1995, he could not therefore have guided the applicant’s actions or helped him to falsify the results of that investigatory measure. Accordingly, the court dismissed the applicant’s allegations in this connection. At the hearing, the Regional Court questioned the witnesses and examined all the other evidence submitted by the public prosecution service.
On 3 December 1997 a neurologist issued a medical certificate, prohibiting D.G. to participate in court hearings and proceedings because of the state of her health.
With regard to M.G.’s killing in particular, the court summoned and questioned several witnesses, but not, however, the victim’s daughter. Her statements, made during the preliminary investigation of the case, were submitted and read out at the trial on 5 January 1998, in accordance with Article 285 of the Criminal Procedure Code.
In a judgment delivered on 15 May 1998, the Regional Court convicted the applicant of aggravated murder and banditry; with regard to M.G.’s killing, the court established the applicant’s guilt on the basis of the coexistence of inferences arising from the afore-mentioned evidence established by the prosecution service. Under Article 99 of the Criminal Code in force at the material time, the applicant was sentenced to death.
The applicant himself and his legal counsel appealed against the judgment of 15 May 1998 to the Criminal Division of the Supreme Court. In their respective memorials, they reiterated the applicant’s argument that the confessions had been forced from him by a police officer who had offered him a trade-off, and challenged the manner in which the evidence had been assessed by the Regional Court.
On 5 June 1998 a Latvian weekly newspaper published an interview with a forensic expert, a director of the Centre of Ballistic Examinations. In a part of the interview he said the following:
“... When leaving a gun next to a dead body, a killer “gives” it [the gun] to the police. And all ends break – where is the gun from, who is the owner of the gun – go and find it. But if a killer takes TT [a type of gun] with himself – one can find it in a search. If one will try so sell a gun to someone else – then the gun will move from hand to hand and will appear in the police together with its present owner, but it is not the link to the real killer. ...”
These statements were followed by the illustration of the two examples:
“...The well-known murder of the Vice-President of “Interpegro” M[...] G[...] was detected exactly because the guns used in committing the murder M[...] G[...] were found in searching the persons arrested in the course of a completely different case. The killers of V[...] L[...] did it more professionally. All around, including Riga, requests were sent out about bullets used in the murder. No tracks...”
The applicant submitted this article to the Criminal Division, without requesting to summon the expert for examination.
In a judgment of 21 June 1998 the Criminal Division dismissed the applicant’s arguments. After re-examining all the evidence available to it, the Division confirmed the validity of the Regional Court’s findings. Furthermore, like the first-instance court, the Division dismissed the applicant’s request that M.G.’s daughter be summoned and questioned in court. The Division dismissed the allegation that the confessions had been obtained through extortion; having watched the video recording of the scene-of-crime reconstruction, which took place on 25 July 1995, it found that the applicant’s actions in demonstrating what had happened were authentic and very precise and that any attempt to manipulate or rig the event would have been impossible. However, the Division quashed the applicant’s conviction on the charge of banditry; this charge was reclassified as armed robbery with violence. Equally, the Division noted that as Protocol No. 6 to the Convention had entered into force with regard to Latvia on 17 May 1999, the death penalty could no longer be implemented. Accordingly, the Division commuted the death sentence to fifteen years’ imprisonment, unsuspended.
As the applicant’s defence counsel had chosen not to represent the applicant in subsequent proceedings, the latter drew up an appeal on points of law himself and submitted it to the Senate of the Supreme Court. In his memorial, the applicant complained primarily of errors in assessment of the facts which he alleged had been made by the lower courts. He also submitted that the presiding judge in the Criminal Division had interrupted him several times during his statement, that the appeal judges had refused to grant all of his procedural requests and that the rights of the defence had been seriously infringed. Equally, the applicant complained about the Division’s refusal to summon and question in court the forensic expert who had informed the press that he was in possession of the murder weapon, and also M.G.’s daughter. The applicant stressed that cross-examination of this second witness would have enabled the defence to focus on the visual difference between the portraits of the criminal and of the applicant, and thus to show that the killer had been someone else.
By an order of 9 December 1999, served on the applicant on 12 January 2000, the Senate declared inadmissible the applicant’s appeal on points of law as lacking legal grounds. According to the order, the Riga Regional Court and the Criminal Division had carried out a full and very detailed examination of all the evidence available to them. Equally, the decisions by the trial and appeal courts had been fully reasoned in terms of fact and law. As to the establishment of the factual circumstances in the case, the Senate pointed out that that question did not fall within the jurisdiction of the Supreme Court, which dealt with appeals on points of law. Finally, the Senate considered the applicant’s various allegations of procedural violations to be unfounded.
According to Article 87 of the Criminal Procedure Code, a transcript report of the court proceedings includes, inter alia, the information about case-related applications and petitions.
The relevant part of Article 88 provides that within the period of three days after signing a transcript report of the court proceedings, the defence counsel and accused may submit remarks there on its accuracy. The remarks shall be considered and accordingly added to the transcript report.
In accordance with Article 243 § 3, the parties enjoy rights in terms of summoning and questioning witnesses during the trial.
The defence is entitled to cross-examine the victims and witnesses on the same conditions as the prosecution service (Articles 281 and 282). If one of the parties requests that a new witness be summoned or any new evidence be submitted to the court, it must explain to the court the reasons for such a request and, in particular, what it intends to prove through this new evidence. Dismissal of such a request does not prevent the party from resubmitting it during the examination of the case (Article 275 §§ 1 and 2).
Where a witness or a victim submits good reasons for failure to attend the trial, the statements made by them during the preliminary investigation of the case are read out to the court (Article 285 § 1).
The defendant may also be cross-examined by his or her co-defendants and their lawyers (Article 278 § 2).
Article 449 states that examination of a judgment by the cassation court is permissible only if it is based on a violation of the criminal law or substantial violation of the Criminal Procedure law.


ITEMID: 001-88515
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: NENASEVA AND OTHERS v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants, Ms Valentina Nenaşeva, Ms Galina Vier, Ms Tatyana Zimovna and Ms Valentina Maler, are Moldovan nationals, who live in Chişinău. They were represented before the Court by Mr Ştefan Urîtu from the “Helsinki Committee for Human Rights”, a non-governmental organisation based in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were all employees of a private company (“the company”). On different dates in 1998 they were dismissed.
Since the company had failed to pay them their salaries for the last six months of their employment, in August 1998 the applicants lodged with the Botanica District Court an action against their former employer, seeking payment of their salary arrears.
The Botanica District Court found in favour of the applicants and by judgments of 16 October 1998, 28 September and 8 October 1999 ordered the company to pay them the following amounts: 5,290 Moldovan lei (MDL) (the equivalent of 926 euros (EUR) at the time) to Ms Maler; MDL 5,893 (EUR 514) to Ms Nenaşeva; MDL 5,025 (EUR 429) to Ms Vier and MDL 6,143 (EUR 524) to Ms Zimovna. No appeals were lodged and the judgments became final 15 days later.
The applicants obtained enforcement warrants which were sent to a bailiff on 11 and 30 November 1999. Because the bailiff did not enforce the warrants, the applicants sent numerous complaints to various authorities asking for the judgments to be enforced.
On 28 May 2001 a bailiff issued a decision and discontinued the enforcement proceedings on the ground that the company had been insolvent and handed over the enforcement warrants to the applicants. The applicants did not lodge an appeal against this decision, nor did they repeatedly submit the enforcement warrants to the Bailiff’s Office for enforcement.
The judgments in favour of the applicants have not been enforced to date.
The relevant provisions of domestic law have been set out in this Court’s judgment in the case of Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts), § 31).
Article 426 of the Code of Civil Procedure, in force between 26 December 1964 and 12 June 2003, reads as follows:
“The creditor or the debtor against whom enforcement proceedings are pending may lodge an appeal against the acts carried out or the refusal to carry out such acts by a bailiff within the enforcement proceedings. (...)”