ITEMID: 001-85253
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF BUCZKIEWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 5. The applicants’ legal predecessors owned a plot of land with a surface area of 3,625 sq. m. located in the municipality of WarszawaWłochy, listed in a land register under entry no. 29552. In 1993 the applicants inherited this property as coowners. The property was designated, by an administrative decision given on an undetermined date, apparently prior to 1993, for agricultural use.
6. By a letter of 30 October 1991 the first applicant was informed by the WarszawaOchota Muncipal Office that the starting date for the development foreseen by the draft land development plan for the municipality had not yet been yet fixed, but that it was most likely that work would begin after 1995.
7. According to the relevant local development plan, which was adopted in 1992 and later amended in 1995, the entire property had been designated for construction of a major roadway, connecting the municipality with Warsaw, and various commercial buildings. As a result, the applicants could continue to use their property for gardening or agricultural purposes, but could not carry out any development. A number of owners lodged objections against this plan, which were ultimately dismissed by the Supreme Administrative Court.
8. In June 1992 the applicants requested the municipality to specify the use to which their property would be put under the land development plan and to indicate timelimits for the works to begin. They also requested the municipality to acquire the property from them. This offer apparently remained unanswered.
9. On 13 May 1999 the applicants made an enquiry with the municipality as to the development plans in respect of their property.
10. In a reply of 14 June 1999 they were informed that their property remained covered by the development plan adopted in 1992 under which it was designated for construction of a roadway and for various commercial buildings.
11. On 12 November 2001 the applicants renewed their request for the municipality to acquire their plot. This was refused on 21 December 2001.
12. On 27 December 2001 the applicants complained to the municipal authorities that the local land development plan had not been implemented and that no timeframe for its implementation had been foreseen, even tentatively. As a result, they could not carry out any development of the property and had been left in a prolonged state of uncertainty as to its future fate. It could not be used for leisure purposes as it was situated in a rather unattractive area. They had been contacted by many potential buyers who, having learnt about the lack of possibilities to develop the land immediately, had lost interest in buying the property. Their requests that the municipality acquire their land had been unsuccessful. As a result of the legal situation of the property, their ownership had been stripped of all economic value.
13. On 7 January 2002 the applicants were informed by the Municipal Office that their land would be acquired in the future by a company which would construct the roadway foreseen under the 1992 development plan.
14. On 11 April 2002 the applicants requested, for the first time, that an initial approval of a development project (decyzja o warunkach zabudowy) be issued for the construction of a small house on their land.
15. In a reply of 20 May 2002 the WarszawaWłochy Municipal Office informed them that such a decision could not be issued as it would not be compatible with the local land development plan adopted in 1992.
16. In a further letter of 2 August 2002 the WarszawaWłochy Municipal Office informed the applicants that the mere fact that their property had been foreseen for future expropriation for the purposes of the construction of the roadway did not entail for the municipality an obligation to acquire their land from them. Accordingly, there were no immediate plans to purchase the properties designated in the local development plan for the construction of the roadway. They were also informed that a new land development plan was being prepared by the municipality.
17. On 27 March 2003 the applicants complained to the Supreme Administrative Court about the local administration’s failure to adopt a new land development plan. They referred to the restrictions which the 1992 plan imposed on the exercise of their ownership.
18. On 16 April 2003 the Supreme Administrative Court rejected their complaint, holding that a complaint against the administration’s failure to act could not be made in respect of proceedings concerning elaboration of local land development plans.
19. On 31 December 2003 the relevant local development plan expired, pursuant to the Local Planning Act 2003 (see paragraph 23 below). Apparently to date no new land development plan has been adopted by the municipality.
20. From 1984 to 1 January 1995 questions of land development were governed by the Local Planning Act of 12 July 1984.
21. On 7 July 1994 a new Local Planning Act was enacted. It entered into force on 1 January 1995.
22. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994.
23. On 27 March 2003 a new Local Planning Act was enacted which repealed the 1994 Act.
24. Under the Local Planning Act of 12 July 1984 owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date.
25. Section 36 of the Local Planning Act enacted in 1994 created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities. The municipalities were obliged to buy such property, replace it with other land within six months of an owner’s request, or provide compensation for the damage caused by the designation.
26. However, pursuant to section 68 § 1 of the Act, these obligations and the corresponding claims of the owners applied only to plans adopted after the Act had entered into force, i.e. to plans adopted by local municipalities after 1 January 1995.
27. Pursuant to the 1994 Act, plans adopted before its entry into force were to expire on 31 December 1999.
28. In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years until 31 December 2001. Again, on 21 December 2001, Parliament passed a law amending the Local Planning Act 1994 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995.
29. Under section 87 of the 2003 Act (see paragraph 23 above), all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003.
30. Compensation entitlements for owners, provided for by the 1994 Act (see paragraph 25 above), were in essence maintained by the 2003 Act. Pursuant to section 36 of that Act, when, following the adoption of a new local land development plan, the use of property in the manner provided for by a previous plan has become impossible or has been restricted, it is open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts. It would appear that the operation of section 36 is not retroactive, thus limiting the scope of any such claims to the period after the adoption of the 2003 Act.
31. Other relevant legislative provisions are extensively set out in the Court’s judgment of 14 November 2006 in the case of Skibińscy v. Poland (no. 52589/99, §§ 2853).
32. In its judgment of 5 December 1995 (K 6/95), the Constitutional Court examined the request submitted to it by the Ombudsman to determine the compatibility with the Constitution of section 68 § 1 of the Land Planning Act 1994 insofar as it excluded the application of section 36 of that Act to land development plans adopted before 31 December 1994. The court referred to its established case-law to the effect that ownership could not be regarded as ius infinitivum. Consequently, its exercise was normally restrained by many legal and practical considerations, including the necessity of balancing the owners’ interests against those of other persons. Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of ownership. In particular, owners of properties “frozen” for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans. This did not amount to such an interference with ownership that it could be regarded as being incompatible with the constitutional protection of ownership.


ITEMID: 001-83850
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KRIVONOS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1937 and lives in Novovoronezh in the Voronezh Region.
5. In 2003 and 2004 the applicant sued the local Social Security Committee for unpaid allowances and commodity benefits.
6. By judgment of 1 July 2003, the Novovoronezh Town Court of the Voronezh Region awarded her 19,315.50 Russian roubles (RUB) for the period from 1 July 2002 to 30 June 2003. On 2 September 2003 the judgment became final. The applicant received the monies on 8 June 2005.
7. By judgment of 27 February 2004, the Town Court awarded the applicant RUB 16,765.50 for the period between 1 July and 31 December 2003. On 9 March 2004 the judgment entered into force. The applicant received the monies on 3 August 2005.
8. On 15 March 2004 the Town Court awarded the applicant RUB 4,973.57. It appears that the judgment was not enforced.
9. On 7 May 2004 the Town Court awarded the applicant RUB 9,494.54 for the period from 1 January to 31 March 2004 and increased her monthly allowance to RUB 5,664.85 from 1 April 2004 with subsequent indexation. On 17 May 2004 the judgment entered into force. The applicant received the lump sum on 11 November 2005.
10. On 4 June 2004 the Town Court awarded the applicant RUB 1,772.30 in arrears, increased her monthly commodity benefits to RUB 679.78 from 1 April 2004 and ordered the Social Security Committee to adjust the applicant's annual disability allowance starting from 2005 in line with inflation. It appears that the judgment was not enforced.
11. On 6 October 2004 the Town Court awarded the applicant RUB 12,659.40 for the period from 1 April to 31 July 2004. On 18 October 2004 the judgment entered into force. The applicant received the monies on 11 November 2005.
VIOLATED_ARTICLES: 6


ITEMID: 001-82742
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF OSINSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1973 and lives in Gdańsk.
5. On 31 March 1999 the applicant was arrested on suspicion of armed robbery. On 1 April 1999 the Gdańsk District Court remanded him in custody in view of the reasonable suspicion that he had committed armed robbery. It held that there was a reasonable risk that the applicant might abscond and attempt to induce witnesses to give false testimonies.
6. On 24 June 1999 the Gdańsk Regional Court prolonged the applicant's detention until 30 September 1999. It found that the prolongation was justified by the need to obtain and secure evidence from many sources and interrogate a number of other persons who could be charged together with the applicant.
7. On 15 September 1999 the Gdańsk Court of Appeal extended the applicant's detention until 31 December 1999. It found that it was highly probable that he had committed the offence in question. It also relied on the need to obtain various expert reports. Lastly, it held that the severity of the anticipated penalty justified the prolongation of the applicant's detention.
8. Later, several other persons were detained and charged in connection with the same investigation conducted by the Department of Organised Crime of the Gdańsk Regional Prosecutor's Office. The applicant was charged with the commission of 35 robberies and armed robberies.
9. On 8 December 1999 the Court of Appeal ordered that the applicant be kept in custody pending investigation until 30 March 2000. It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged. In that respect, it referred to evidence given by A.Ł., a member of the same criminal group, who acted as a witness against the other suspects. The Court of Appeal further relied on the need to obtain and secure evidence, in particular from experts in ballistics, biology and fingerprints. It stressed that it was also necessary to carry out a reconstruction of the crime and to confront the suspects with each other. It also considered that the scale and nature of the offences in question justified the applicant's continued detention.
10. On 30 March 2000 the Supreme Court prolonged the applicant's detention pending investigation – which had meanwhile exceeded the one-year time-limit set for detention pending the investigation under Article 263 § 2 of the Code of Criminal Procedure – until 30 June 2000. It considered that the case was “particularly complex” given the volume of evidence and the number of charges against the numerous suspects. It also held that there was a reasonable risk that the applicant and other suspects might obstruct the investigation.
11. On 24 May 2000 the Supreme Court ordered that that term should be prolonged further until 15 December 2000. It reiterated the previous grounds given for the applicant's detention and added that the case was very complex, given that six further suspects had in the meantime been charged and detained in the case and that several other potential suspects were still being sought.
12. Further prolongations of the applicant's detention pending the investigation were ordered by the Gdańsk Court of Appeal on 13 December 2000 (up to 31 March 2001) and 7 March 2001 (up to 31 May 2001). In its decision of 13 December 2000, the Court of Appeal reiterated the original grounds given for his detention. Taking into account the nature of the offences, the Court of Appeal added that the fact that the charges against all nine suspects were closely interrelated gave substance to the risk that, once released, they might obstruct the proceedings. It also referred to the particular complexity of the case. Furthermore, it noted that the prolongation of the investigation was due to the fact that new suspects had been identified in the course of the investigation. In its decision of 7 March 2001, the Court of Appeal added that the prolongation of detention was justified by the need to obtain DNA evidence.
13. On 15 May 2001 the prosecution filed a bill of indictment with the Gdańsk Regional Court. The applicant was charged with several dozen counts of armed robbery which had been committed in an organised armed criminal group. The bill of indictment specified that the applicant was subject to the rules on recidivism. It listed 118 charges brought against 19 defendants, who were all detained on remand. The case file comprised 114 volumes. The prosecution asked the court to hear evidence from 366 witnesses.
14. The trial began on 28 December 2001. However, as of April 2002 the reading out of the bill of indictment by the prosecution had still not been concluded. Initially, the trial court held three hearings per month.
15. During the trial, the Gdańsk Court of Appeal prolonged the applicant's detention several times. The relevant decisions were given on 23 May 2001 (extending his detention up to 31 October 2001), 24 October 2001 (ordering his continued detention until 31 March 2002), 13 March 2002 (prolonging that period until 30 September 2002), 11 September 2002 (extending his detention until 31 December 2002), 18 December 2002 (prolonging his detention until 30 June 2003), 25 June 2003 (prolonging his detention until 31 December 2003), 17 December 2003 (extending that term until 30 June 2004), 23 June 2004 (extending that term until 31 December 2004), 15 December 2004 (ordering his continued detention until 31 March 2005), 30 March 2005 (extending that period until 30 June 2005) and 22 June 2005 (prolonging his detention until 30 October 2005).
16. In all those decisions the Court of Appeal considered that the original grounds given for the applicant's detention were still valid. It stressed that the applicant's detention was the only measure which could secure the proper conduct of the proceedings in such a particularly complex case, given the nature of the charges, the number of defendants and the connections between them. In addition, it referred to the volume of evidence to be heard.
17. In its decision of 13 March 2002 prolonging the applicant's detention, the Court of Appeal considered that the trial could be terminated by 30 September 2002. In addition to the grounds previously invoked, it found that the prolongation of detention was justified under Article 263 § 4 of the Code of Criminal Procedure by the particular complexity of the case. It further observed that the delays in the trial were partly attributable to some of the defendants who had attempted to disrupt the proceedings and, consequently, had to be removed from the court room. It instructed the trial court to hold more than 3 hearings per month. Furthermore, it held that no other preventive measure could secure the proper conduct of the trial. In that respect, the Court of Appeal observed that there was a reasonable risk that the applicant and other defendants might interfere with the proceedings, given the nature of the charges, the severity of the anticipated penalty and the fact that such attempts had been made in the course of the investigation.
18. On 15 January 2003 the Gdańsk Regional Court dismissed the applicant's and his 17 co-defendants' request for the judges and lay members of the trial court to withdraw.
19. In its decision of 25 June 2003 extending the applicant's detention, the Court of Appeal observed that the trial could not be terminated due to obstructiveness of the defendants who had filed numerous requests challenging the trial court. It further observed that although the applicant and other defendants were free to make use of their procedural rights, the abuse of those rights had undoubtedly led to delays in the trial. It also noted that the trial court had taken various procedural steps in order to accelerate the proceedings.
20. In its decision on the applicant's detention of 23 June 2004, the Court of Appeal observed that up to April 2003 the main reason for the delays during the trial was the obstructiveness of the defendants and the abuse of the rights of the defence. It also observed that the trial could be concluded by the end of 2004 provided that the Regional Court endeavoured to organise the trial efficiently.
21. In its decision of 18 January 2005 dismissing the applicant's appeal against the decision of 15 December 2004 prolonging his detention, the Court of Appeal held that Article 258 § 2 of the Code of Criminal Procedure established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings. It added that the risk of absconding or tampering with witnesses which existed in the present case did not have to be supported by concrete facts, but resulted from the above presumption.
22. In its decision of 22 June 2005 the Court of Appeal again referred to the presumption established by Article 258 § 2 of the Code of Criminal Procedure. In its decision of 27 July 2005 dismissing the applicant's appeal against the decision of 22 June 2005 prolonging his detention, the Court of Appeal held that that presumption alone justified the applicant's continued detention. It also held that keeping the applicant in custody was necessary in order to prevent him from interfering with the trial, given the reasonable risk of such interference which flowed from the fact that he had been charged with the commission of the offences in an organised criminal group.
23. During the trial the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. He maintained that the length of his detention was excessive and that the charges against him lacked a sufficiently strong basis.
24. On 21 March 2005 the Gdańsk Regional Court made a severance order with a view to expediting the proceedings, and thereafter four defendants (J.N., G.P., Z.S. and Z.C.), who in the meantime had been released, were to be tried separately.
25. After 20 June 2005 no hearing was held due to the serious illness of the judge rapporteur. On 21 September 2005 the President of the Criminal Section IV of the Gdańsk Regional Court assigned a new judge rapporteur. Consequently, the trial had to commence de novo.
26. On 20 September 2005 the Court of Appeal prolonged the applicant's detention until 31 January 2006. The applicant appealed against that decision. On 18 October 2005 a different panel of the Court of Appeal quashed the impugned decision and ordered the applicant's release under police supervision. It also imposed on him a prohibition on leaving the country. The Court of Appeal had regard to the fact that the trial had to commence de novo and that the applicant had already spent a few years in pre-trial detention.
27. The applicant was released on 19 October 2005.
28. On 24 November 2005 the trial court made a further severance order and split the case into eleven separate cases.
29. By March 2006 the trial court had held some 135 hearings of the 162 which had been scheduled. It heard more than 400 witnesses.
30. It appears that the proceedings are still pending before the first-instance court.
31. On 19 November 2004 the applicant filed with the Gdańsk Court of Appeal a complaint about a breach of his right to a trial within a reasonable time and asked for compensation. He relied on section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”).
32. The applicant submitted that the charges against all the defendants had been unjustifiably joined in one set of proceedings. He claimed that numerous hearings had been cancelled and that the process of taking evidence from witnesses had been lengthy. He also submitted that he had been detained on remand throughout the proceedings and that his applications challenging the trial court had been made in accordance with the provisions of criminal procedure.
33. On 12 January 2005 the Court of Appeal dismissed his complaint as unfounded, having regard to the criteria set out in section 2 § 2 of the 2004 Act, namely the conduct of the court and of the parties, the nature of the case, its factual and legal complexity and what was at stake in the proceedings for the complainant.
34. Replying to the applicant's submissions, the Court of Appeal held that the joint examination of the charges against the defendants who had collectively committed a crime was justified under the domestic law. Furthermore, it considered that it could not be said that the exceptional cancellations of some hearings pointed to inactivity on the part of the trial court, bearing in mind the number of hearings held and the fact that they had been scheduled in advance.
35. The Court of Appeal also found that the applicant's complaint relating to the allegedly lengthy process of taking evidence from witnesses was unsubstantiated. It pointed out in this respect that the trial court had disciplined the witnesses who had failed to comply with the summons. The court further held that the defendants had contributed to the length of the proceedings by multiplying their applications in respect of procedural issues that had already been determined. It found that the fact that the applicant had been remanded in custody was not a relevant consideration for the determination of his complaint concerning the allegedly excessive length of proceedings.
36. In conclusion, having regard to the nature of the case and its complexity, the Court of Appeal held that delays in the proceedings could not be attributed to the trial court. On the contrary, the trial had been conducted in a diligent manner.
37. The relevant domestic law and practice regarding the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) at the material time are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
38. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII, and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-109028
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: TORRI AND OTHERS v. ITALY
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 1. The applicants, Ms Laura Torri, Ms Patrizia Tomage, Mr Carlo Caino Rosa, Ms Piera Albanese, Mr Roberto Iodice, Mr Andrea Camera, Ms Loredana Pappada, Mr Antonino Casciolo and Mr Carmine Bucchiarelli, are Italian nationals who live in Rome (see Annex for dates of birth). They were represented before the Court by Mr M. de Stefano, a lawyer practising in Rome. The Italian Government (“the Government”) were represented by their Co-Agent, Ms Paola Accardo.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicants as employees of AGENSUD (Agenzia per la promozione dello sviluppo nel Mezzogiorno) had by 12 October 1993 accumulated a certain length of service and had been paying contributions towards their old-age pension into the INPS (Istituto Nazionale della Previdenza Sociale), the primary Italian welfare entity. Thus, according to the law in force at the time, on 12 October 1993, even assuming they became unemployed in the future, all the applicants had already accrued all the necessary years of contributions to obtain an old age-pension on attaining pensionable age (sixty for men and fifty-five for women) (see annexed table).
4. AGENSUD had previously been called Cassa per il Mezzogiorno (Cassa), a public entity having its own juridical personality. Thus, according to the applicants, on 12 October 1993 they were civil servants and all the relevant guarantees applied to them, including Article 29 of Law no. 646 of 10 August 1950 (Law no. 646/50) (the law which had instituted the Cassa), providing that on the date of cessation of the Cassa or its dissolution, all the rights and obligations of the latter would be transferred to the State.
5. By means of Law no. 488 of 19 December 1992 (Law no. 488/92) AGENSUD was dissolved. However, the working relationship between employer and employee with its duties and obligations was not transferred to the State as had been provided. Instead, this working relationship ceased to have effect and the employees acquired a right to an “end-of-service payment” (TFR). They were further given the option to undertake new employment with a new civil service entity. This employment, however, provided for lower salaries than the ones they had previously received, contrary, according to the applicants, to consolidated principles of the public service (Presidential decree no. 3 of 10 January 1997 – see relevant domestic law). The Government noted that this salary corresponded to that of Administrative State employees in equal grades of service.
6. Eventually, in 1995, the applicants were employed within the Ministry for Forest and Agricultural Policies (the Ministry) with retroactive effect from 13 October 1993. Thus, they had chosen to remain in employment and accepted lower salaries, together with the implications for their future social welfare coverage and pensions, in respect of contributions to be paid during this new employment.
7. At the time, the law (Article 14 bis of Law no. 96/1993) provided for two options, one of which (hereinafter referred to as joining) entailed that previous contributions paid by the applicants, viz by AGENSUD to the INPS, be joined to those that would subsequently be paid by the Ministry to a different welfare entity, namely the INPDAP (Istituto Nazionale di Previdenza per I Dipendenti dell’Amministrazione Pubblica).
8. According to the applicants, on the basis of Article 14 bis paragraph 1 (b) of Law no. 96/1993, any benefits acquired had to remain untouched and the change of system should have occurred without any disbursements or losses on their part. Thus, the applicants accepted the relevant employment offer and the joining of their contributions, believing that, in accordance with the case-law as it stood at the time (see Title C below), they would receive back any payments in excess which would not go towards the calculation of their pension.
9. Indeed, at the time, the system of joining entailed that only part of the previous contributions (paid to INPS) was used for the calculation of the pensions. However, it eventually resulted that any contributions in excess were to the benefit of the INPDAP and were not given back to the INPS or to the applicants. It followed that a future pension would also not have benefited from the entirety of the contributions paid. Thus, through this move the applicants suffered two disadvantages: firstly, any future pensions would be lower and secondly a good share of the already paid contributions would be lost.
10. In consequence, the legislator provided for a derogation (Article 14 bis paragraph 4) applicable to a limited number of employees of the AGENSUD, namely personnel who had left the civil service after 13 October 1993 and before the entry into force of Article 14 bis paragraph 1 (b) of Law No. 96/1993. The derogation entailed the restitution of the paid contributions which had not been calculated for the purposes of joining the social security periods. The applicants did not fall within this category.
11. Initially, the civil service started paying up all the AGENSUD employees, without distinction, either spontaneously or as a result of a number of court cases successful at first instance. However, eventually, the civil service limited this payment only to persons who had left the civil service after 13 October 1993 and before the entry into force of Article 14 bis paragraph 1 (b) of Law No. 96/1993, thus excluding the applicants, who had accepted to take up new employment and agreed to the joining of their contributions into one entity.
12. In 1995 the Italian welfare system introduced a new pension calculation, namely the Sistema Contributivo (calculation of pension by reference to contributions paid throughout a life-time and revalorisation factors) as opposed to the Sistema Retributivo (based on the salaries applicable to employees in their last years of service). The change in system has been gradual and while for young employees the system is obligatory, for older ones it is only optional.
13. In 2000 the applicants instituted judicial proceedings to ascertain their right to the restitution of the contributions they had paid to the INPS and which had not been used to calculate their pensions. They contended that if Article 14 bis had to be interpreted as not implying the right for them to take back their contributions, it would be discriminatory vis-à-vis both a) other AGENSUD employees and/or b) other employees in general who had previously been transferred and had been reimbursed the excess contributions. They requested the reimbursement of the relevant sums.
14. By a judgment of 21 August 2003, the Lazio Administrative Tribunal (TAR) declared the application inadmissible on formal and procedural grounds.
15. On appeal, by a judgment delivered on 15 September 2006 in the relevant registry of the plenary (Adunanza Plenaria), the Supreme Administrative Court (Consiglio di Stato) rejected the claims on the merits. It held that the contributions which had been paid to INPS but had not been used for pension calculation could validly be vested in the INPDAP. In the ambit of a welfare system based on the principle of solidarity, the circumstances that social benefits do not reflect the contributions paid did not amount to unjust enrichment of the entity receiving the contributions. Lastly, the restitution of contributions was an exceptional measure not regulated by uniform norms and only applicable to a certain category of people. In consequence, in the absence of any specific norm to that effect, the applicants did not have a right to the reimbursement of contributions paid in excess. Moreover, the applicants had accepted to take up new employment with the civil service and requested the joining of their contributory periods.
16. In 1992 the plenary (Adunanza Plenaria) of the Supreme Administrative Court (Consiglio di Stato) had held that it was possible to reimburse contributions in excess to civil servants. The same was reiterated again in 1997 in analogous cases relating to the dissolution of the National Health Service (enti mutualistici), whose employees were transferred to another organ of the civil service.
17. Subsequently, numerous ex-employees of the AGENSUD instituted court proceedings complaining about the lower salaries and social coverage. By a judgment of the Constitutional Court of 19 June 1998 it was held that persons in the applicants’ position had acquired a new status equal to their colleagues. Thus, since they had been given the option either to retire and maintain the old welfare regime or to continue in employment and join the contributions into one (at the State’s expense and for certain others with the recovery of such contributions), the system was in conformity with constitutional principles.
18. Again in relation to AGENSUD employees, the Supreme Administrative Court had originally by an opinion of 30 June 1999, delivered in the framework of its consultative competence, expressed itself in favour of reimbursement being made to all AGENSUD employees, including the ones in the applicants’ situation. On the same lines, a number of decisions at first instance, some of which had become final, were delivered (for example Antognoni Alberto v the Ministry for transport and Infrastructure, INPS and INPDAP, judgment of the Lazio Administrative Tribunal of 9 October 2002 and D’Agostino Caterina v Presidente del Consiglio dei Ministri, Ministry of Economy and Finance, INPS and INPDAP judgment of the Lazio Administrative Tribunal of 6 April 2004). It was only the Supreme Administrative Court Plenary formation which reversed this jurisprudence in 2006 in the applicants’ domestic case.
19. In accordance with the law in force up to 31 December 1992, persons were eligible to receive an old-age pension on attaining pensionable age, namely sixty for men and fifty-five for women, after fifteen years of welfare contributions. As from 1 January 1993 to 31 December 1993, sixteen years of welfare contributions were necessary to obtain the said benefit. This applied even if persons had been unemployed up to the date when they reached pensionable age. As from 1 January 1994 to 31 December 1994, sixteen years of welfare contributions were necessary to obtain the said benefit; however, pensionable age was increased to sixty-one for men and fifty-six for women. As from 1 January 1995 to 31 December 1995, seventeen years of welfare contributions were necessary to obtain the said benefit when reaching pensionable age, which remained sixty-one for men and fifty-six for women.
20. Article 29 of Law no. 646/50, in so far as relevant, reads as follows:
“On the date of cessation of the Cassa or its dissolution, all the rights and obligations of the latter are transferred to the State.”
21. Article 202 of Presidential decree no. 3 of 10 January 1997, provides as follows:
“In the case of career changes in the same or a different administration, employees having higher salaries than those provided on such change are awarded a personal cheque, relevant to pensions, equal to the difference between the two salaries, without prejudice to future salary increases.”
22. Article 14 bis paragraph 1 (b) of Law no. 96/1993 provided that Article 6 of Law no. 29 of 1979 was applicable to the persons in the applicants’ positions for the purposes of welfare coverage. The latter read as follows:
“The joining of social security periods related to service rendered with suppressed public entities, in relation to which there has been a transfer of personnel to other public entities, occurs ex officio through the receiving welfare entity, without any charges on the employees.”


ITEMID: 001-76555
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: WEGRZYN v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Bogdan Węgrzyn, is a Polish national, who was born in 1962 and lives in Tarnów, Poland. He was represented before the Court by Mr Z. Cichoń and subsequently by Mr. T. Jabłoński, lawyers practising in Kraków. The respondent Government were represented by Mr K. Drzewicki and subsequently by Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 October 1995 the applicant and other suspects were arrested on suspicion of assault. By a decision of 11 October 1995 of the Tarnów District Prosecutor, the applicant was remanded in custody. His detention was ordered for a period of three months, i.e. until 10 January 1996.The prosecutor referred to the strong probability of the applicant’s guilt, the gravity of the charges against him and the high risk of his hindering the proper conduct of the proceedings by exerting pressure on witnesses.
On 3 January 1996 the Tarnów Regional Court prolonged the applicant’s detention until 10 February 1996. The court noted that the investigation had not yet been completed since one of the co-accused had lodged a complaint concerning an anonymous witness and, in addition, some of the witnesses whose whereabouts were unknown had still to be heard. The court further noted that, in spite of the fact that the victims of the assault had changed their initial testimony, there were still serious grounds for believing that the applicant had committed the offences in question. The court also observed that the law did not require that the evidence in support of detention had to be such as to justify a conviction.
On 7 February 1996 the bill of indictment was lodged with the Tarnów Regional Court.
On 5 April 1996 the Ombudsman informed the applicant that he could not intervene in the pending proceedings because this might constitute an interference with judicial independence.
On 19 August 1996 the applicant lodged a motion, requesting suspension of the criminal proceedings due to the fact that the whereabouts of the victims of the alleged assault were unknown and he was unable to put questions to them. The applicant relied on his right to be given an opportunity to question witnesses on his behalf on the same conditions as those against him, as guaranteed by the European Convention on Human Rights.
On 23 August 1996 the Tarnów Regional Court refused to release the applicant, observing that he had failed to indicate any new circumstances justifying his request.
By a decision of 6 September 1996 the Tarnów Regional Court dismissed the applicant’s motion for the suspension of the proceedings, finding that Article 337 § 1 of the Code of Criminal Procedure allowed for a possibility of using indirect testimony in case the witnesses could not be examined at a hearing.
On 24 September 1996 the Tarnów Regional Court convicted the applicant and sentenced him to three years’ imprisonment. On the same date the court decided to uphold the applicant’s and other defendants’ detention, finding that all of them had been sentenced to at least three years’ imprisonment and that the grounds for release provided by Article 218 of the Code of Criminal Procedure were insufficient.
In a letter of 28 March 1997 to the applicant’s lawyer, the Kraków Court of Appeal observed that the appeal against the first-instance judgment submitted by him was not entirely consistent with the appeal prepared by his client and asked him to respond to the applicant’s allegations that he had failed in his duties as a legal counsel by not discussing with him the issue of the appeal.
On 27 May 1997 the Kraków Court of Appeal quashed the judgment of 24 September 1996 and referred the case back to the Regional Court, concluding that the reasoning of the first-instance court, which had led to the applicant’s conviction, contained a number of flaws regarding both fact and law and was thus not entirely satisfactory. The court also expressed its concern that the rights of the defence had been violated. On the same date the court decided to uphold the applicant’s detention on remand, considering that there was still a strong probability of his guilt and that it was necessary to ensure the proper conduct of the proceedings. The court found no circumstances justifying the applicant’s release under Article 218 of the Code of Criminal Procedure.
On 9 July 1997 the Kraków Court of Appeal dismissed the applicant’s request for release, considering that his detention was necessary to ensure the proper conduct of the proceedings and finding no particular family circumstances requiring his release. The court observed that burdensome effects on a detainee’s family were inherent in detention. On 28 July 1997 the Tarnów Regional Court refused to release the applicant, invoking the same arguments as above.
In a letter of 4 August 1997 the President of the Tarnów Regional Court confirmed the view expressed in his letter of 11 July 1997 to the applicant concerning the question of determining the period of detention on remand once a first-instance judgment had been rendered. The fact that the first-instance judgment had been quashed did not affect his opinion. He further stated that it was not his function to assess the evidence gathered in the proceedings. Concerning the complaint about the excessive length of the proceedings, the President noted that the case file had been transferred back to the Tarnów Regional Court and that the case would be allocated to a judge rapporteur after he was back from holidays.
On 8 August 1997 the Tarnów Regional Court, referring to the resolution I KPZ 23/97 of 2 September 1997 by the Supreme Court, informed the applicant that the period of detention on remand was limited only until the delivery of the first-instance judgment even though it was to be quashed by the second-instance court.
On 19 August 1997 the Supreme Court informed the applicant that it examined complaints concerning detention on remand only in accordance with the procedure prescribed under the Code of Criminal Proceedings
On 12 September 1997 the Tarnów Regional Court dismissed the applicant’s request for release. The court expressed the opinion that the applicant’s concerns as regards his family’s situation were premature.
On 19 September 1997, in reply to the applicant’s letter of 5 August 1997, the Tarnów Regional Prosecutor observed that all the applicant’s motions with regard to quashing his detention on remand could be only examined by the court at the disposal of which he was placed.
On 22 September 1997 the President of the Tarnów Regional Court sent an explanatory letter to the Ministry of Justice. It transpires from this report that the courts refused to quash the applicant’s detention on remand on 12 February 1996, 28 February 1996, 20 March 1996, 16 April 1996, on 3 and 23 July 1996, 23 August 1996 and 6 September 1996, 16 January 1997, 3 April 1997, on 9 and 28 July 1997 and on 12 September 1997. The President admitted that the problem of the indefinite time-limit of the detention on remand after the delivery of the first-instance judgment, until it was decided by the Supreme Court, might be a controversial one. In his view, the notion of “the judgment” under Article 222 § 3 of the Code of Criminal Procedure covered the notion of “the judgment quashed by a second-instance court” since “lege non distinguente nec nostrum est distinguere”. The phrase “delivery of the first-instance judgment” must have been used by the legislator knowingly and clearly indicated the date until which the court was obliged to determine the time-limit of the detention on remand.
At the hearing of 2 October 1997 the Tarnów Regional Court refused to release the applicant, considering that in view of the seriousness of the charges, his detention was warranted. The court also noted that the time-limits for detention on remand set out in Article 222 § 4 of the Code of Criminal procedure did not apply to the applicant’s case. As regards the applicant’s family’s situation, difficult as it might be, it was not so critical as to justify his release.
On the same date the president of the Kraków Court of Appeal informed the applicant that the detention order given by the prosecutor was in compliance with the then (i.e. in 1995) applicable provisions of procedural law. The entry into force of the new provisions on 4 August 1996 did not result in the unlawfulness of the detention orders issued prior to that date. In addition, the preventive measure imposed on the applicant had been repeatedly examined by the courts, i.e. on 20 October 1995, 3 January 1996, 24 January 1996, 28 February 1996, 26 April 1996, 17 June 1996, 23 July 1996, 4 November 1996, 24 September 1996, 14 October 1996, 24 January 1997, 27 May 1997, 9 and 28 July 1997 and 12 September 1997. He further stated that he was not in a position to interfere with the decisions of independent courts, including those concerning the imposition of preventive measures and determining the time-limit of the detention on remand. He finally observed that the applicant could at any time apply to the court to be released.
On 3 October 1997 the Chancellery of the President explained to the applicant that the President could not interfere with court proceedings since, in accordance with the constitutional principle of division of powers, the judicial authorities were independent of the executive organs.
At a hearing of 15 October 1997 the Tarnów Regional Court dismissed the applicant’s request for release, considering that his detention was justified by the strong evidence of his guilt. The court reiterated that the obligation to determine the period for which detention could be prolonged existed only until the judgment of the first-instance had been given.
In a letter of 21 October 1997 the Minister of Justice shared the view put forward by the President of the Tarnów Regional Court in his letter of 4 August 1997, as regards the interpretation of the notion of “the judgment” in the phrase: “until the date of the delivery of the first-instance judgment”, arguing that it also referred to “the judgment quashed by a higher instance”. He further stated that he was not empowered to review the grounds on which the courts ordered detention on remand and that the applicant could at any time file a request for release.
In a letter of 23 October 1997 the applicant complained about the refusal of the Tarnów Regional Court at the hearing on 22 October 1997 to allow his request for his release and the suspension of the proceedings. He observed that the alleged victims had given contradictory testimony and had left Poland. Further, the applicant stated that the proceedings served mainly the purpose of establishing the truth and therefore, reading out the indirect evidence at the hearing would be in breach of his defence rights and contrary to the requirements of a fair trial. The applicant relied on his rights guaranteed by the Polish Constitution and the European Convention on Human Rights.
At the hearing of 22 October 1997 the Tarnów Regional Court dismissed the applicant’s request for release, which had been submitted by his lawyer, reiterating its position as regards the time-limits for the detention on remand after the delivery of the first-instance judgment. The court invoked the resolution no. I KPZ 435/96 OSNKW of 6 February 1997 of the Supreme Court.
On 28 October 1997 the Tarnów Regional Court dismissed the applicant’s request for release, considering that he had failed to indicate any new circumstances justifying his request.
In a letter of 4 November 1997 the President of the Tarnów Regional Court informed the applicant that on 27 May 1997 the Kraków Court of Appeal had quashed the first-instance judgment of 24 September 1996 and upheld the applicant’s detention without fixing the date up until which the detention was to last. On 10 October 1997 the applicant had been in detention for two years. The case had been referred to the Tarnów Regional Court for re-examination. The Regional Court had not found it necessary to determine the point until which the detention should last or to file a request with the Supreme Court to prolong the applicant’s detention on remand, considering that there were no time-limits for the detention on remand after the delivery of the first-instance judgment. The court admitted that there was a legal problem as regards the interpretation of Article 222 § 3 of the Code of Criminal Procedure, which should be resolved by the Supreme Court in order to establish common practice. The court maintained its position on this matter, declaring that the period of detention on remand was limited only until the delivery of the first-instance judgment even though it was quashed by the second-instance court.
On 19 November 1997 the Tarnów Regional Court dismissed the applicant’s request for release, relying on the grounds invoked in the previous decisions.
By a judgment of 10 December 1997 of the Tarnów Regional Court, the applicant was found guilty of the charges against him and sentenced to three years’ imprisonment. On the same date the court decided to release the applicant, observing that the judgment had been pronounced and there was no further need for the applicant’s continuing detention. The court observed that the family situation of the applicant and the co-accused was difficult and that they had been already detained for over two years.
On 22 December 1997 the Ombudsman informed the applicant that the stance on the issue of time-limits for detention on remand taken by the President of the Tarnów Regional Court as well as the Ministry of Justice was in line with the jurisprudence of the Supreme Court at that time. As regards the preventive measure imposed on the applicant, he did not consider it contrary to Article 5 § 1 of the European Convention on Human Rights. In addition, under Article 214 of the Code of Criminal Procedure, the applicant could at any time apply to have a preventive measure quashed or altered. As to the applicant’s complaint relating to the length of the proceedings, the Ombudsman had requested the Tarnów Regional Court to inform him about the state of the proceedings.
Apparently on 28 April 1998 the applicant was again detained on remand in connection with certain investigative proceedings concerning unspecified charges.
On 17 June 1998 the Kraków Court of Appeal, having examined the applicant’s appeal against the judgment of 10 December 1997 acquitted him of all charges. The prosecutor filed a cassation appeal against this judgment.
At the hearing of 24 April 2002 the Supreme Court decided not to examine the cassation appeal due to the fact that the public prosecutor had withdrawn it.
At the material time the domestic provisions governing detention on remand were contained in the Code of Criminal Procedure of 1969, which is no longer in force as it was repealed and replaced by the Code of Criminal Procedure of 6 June 1997 (currently referred to as the “New Code of Criminal Procedure”).
The Code of Criminal Procedure of 1969 listed detention among the so-called “preventive measures” (those measures were, inter alia, detention on remand, bail and police supervision). Until 4 August 1996 (i.e. the date on which the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes came into force) a prosecutor was empowered to order all preventive measures as long as the investigation lasted. Also, at the material time the national law did not set out any statutory time-limits concerning the length of detention on remand in court proceedings; however, under Article 210 § 1 of the Code of Criminal Procedure a prosecutor was obliged to determine in his decision the period for which detention was ordered.
That Article stated (in the version applicable at the material time):
“Preventive measures shall be ordered by the court; before a bill of indictment has been lodged with the competent court, those measures shall be ordered by the prosecutor.”
Article 222 of the Code of Criminal Procedure (in the version applicable until 4 August 1996), insofar as relevant, stated:
“1. The prosecutor may order detention on remand for a period not exceeding three months.
(1) the court competent to deal with the case, upon the prosecutor’s request, for a period not exceeding one year;
(2) the Supreme Court, upon request of the Prosecutor General, for a further fixed term required to terminate the investigations.”
Article 222 of the Code of Criminal Procedure, as applicable after 4 August 1996, provided, insofar as relevant:
“3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years.
4. In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the case (...) prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.”
The courts, when ruling on a prosecutor’s request under Article 222 § 2 of the code, were obliged to determine the precise period for which detention should be prolonged. If they refused to prolong detention or if the prosecutor failed to submit a request for a further prolongation before or on the expiry of the last detention order (regardless of whether it had been made by him or by a court), the detainee had to be released immediately.
Article 213 § 1 of the Code of Criminal Procedure provided:
“1. A preventive measure (including detention on remand) shall be immediately quashed or altered if the basis therefor has ceased to exist or new circumstances have arisen which justify quashing or replacing a given measure with a more or less severe one.”
Article 217 § 1 (2) and (4) (in the version applicable at the material time) provided:
“1. Detention on remand may be imposed if:
...
(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means;
...
(4) an accused has been charged with an offence which creates a serious danger to society.”
In its resolution no. I KZP 23/97 of 2 September 1997, the Supreme Court stressed that:
“... the ratio legis of the amendments to criminal legislation is based on the precept that a suspect (accused) should in no case be detained indefinitely until the first-instance judgment is rendered in his case ...
It should be noted that, from the point of view of procedural safeguards for an accused, what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings, but the total period of his detention and whether his detention and its length are subject to review. If there is such a review at the investigation stage (Article 222 §§ 1 and 2), there is no reason why there should not be one at the stage of the court proceedings ...”
Also, at the time, the code set out three different legal avenues whereby a detainee could challenge the lawfulness of his detention: an appeal to a court against a detention order made by a prosecutor; proceedings in which courts examined requests for prolongation of detention submitted by a prosecutor; and proceedings relating to a detainee’s application for release.
On 1 September 1998 the Code of Criminal Procedure of 1997 replaced the 1969 Code.
Article 263 of the 1997 Code, insofar as relevant, provides:
“§ 1. During investigation the court which decides about detention on remand shall impose it for a period not longer than 3 months.
§ 2. If the special circumstances of a case make it impossible to conclude the investigation within the time-limit provided in § 1, detention on remand may be prolonged, at the request of the prosecutor and when it is necessary, by:
the trial court – for up to 6 months,
the appeal court – for a further fixed period necessary to conclude the investigation but not longer than 12 months.
§ 3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed 2 years.
§ 4. Detention on remand may be prolonged for a fixed period exceeding the periods provided in §§ 2 and 3 only by the Supreme Court at the request of the court dealing with a case (...) – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome. ”