ITEMID: 001-109986
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ZABOTIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicant, Mr Aleksandr Petrovich Zabotin, is a Russian national who was born in 1954 and lives in Kovrov, Vladimir Region. He is represented before the Court by Mr S. Shenkman, a lawyer practising in Kovrov. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 9 February 2005 the applicant and his late wife sued the military unit No. 55034 claiming compensation of non-pecuniary damage and various costs resulting from serious bodily injuries caused to their son during his military service in Chechnya and his ensuing death.
4. On 25 October 2005 the Kovrov Town Court of the Vladimir Region granted their claim in part. The defendant military unit was ordered to pay the claimants a total of 58,465.80 Russian roubles (RUB) in compensation of the non-pecuniary damage and funeral costs. On 11 November 2005 the judgment became final.
5. Since that time the claimants lodged repeated requests for enforcement of the judgment with various State authorities including the commander of the defendant military unit, the Ministry of Defense, the bailiffs and the State Treasury. However, the judgment in their favour remained unenforced.
6. On 2 April 2009 the applicant’s wife died.
7. On an unspecified date the defendant military unit was dismantled and the applicant reapplied to the Kovrov Town Court requesting an order for the awarded sums to be paid by the Ministry of Defence.
8. On 31 March 2010 the Kovrov Town Court ordered that the judicial awards of 25 October 2005 be paid to the applicant by the Ministry of Defense. The award of RUB 58,465.80 was credited to the applicant’s bank account on 9 July 2010.
9. The applicant brought a claim seeking compensation for the lengthy failure to enforce the judgment in his favour. On 22 November 2010 the Vladimir Regional Court ruled in favour of the applicant and acknowledged a violation of his right to enforcement of the judgment of 25 October 2005 within a reasonable time and his right to peaceful possession of property. The Ministry of Finance was ordered to pay RUB 80,000 (2011 euros (EUR)) in compensation and RUB 2,935.65 (EUR 73) in costs and expenses. The court took account of the enforcement delay, the nature of the award, its significance for the applicant, and the efforts made to obtain the payment.
10. On 18 February 2011 the Supreme Court of the Russian Federation upheld the judgment on appeal.
11. The compensation of EUR 2011 and costs and expenses of EUR 73 were transferred to the applicant’s bank account on 3 March and 11 April 2011 respectively.
12. On 15 January 2009 the Court delivered the Burdov (no. 2) v. Russia pilot judgment (no. 33509/04, ECHR 2009 (extracts)). It ordered the respondent State to set up an effective domestic remedy which would secure adequate and sufficient redress for non-enforcement or delayed enforcement of domestic judgments.
13. Federal Law № 68-ФЗ of 30 April 2010 (“Compensation Act”), which entered in force on 4 May 2010, was adopted in response to the abovementioned judgment. It provides that in case of a violation of the right to enforcement of a final judgment within a reasonable time, the Russian citizens are entitled to seek compensation of non-pecuniary damage in Russian courts. Federal Law № 69-ФЗ adopted on the same day introduced the relevant changes in the Russian legislation.
14. Section 6 § 2 of the Compensation Act provides that everyone who has a pending application before the European Court of Human Rights concerning a complaint of the nature described in the law has six months to bring the complaint to a domestic court, provided the European Court did not declare the application admissible or decide it on the merits.


ITEMID: 001-61682
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF HULEWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant is a Polish national who was born in 1952 and lives in Lębork, Poland.
9. On 23 May 1990 the applicant acquired the right to a long-term lease of a flat (spółdzielcze lokatorskie prawo do lokalu) in a building owned by the Lębork Housing Co-operative (Spółdzielnia Mieszkaniowa).
10. On 22 July 1993 the co-operative sued the applicant in the Lębork District Court (Sąd Rejonowy), seeking payment. On 25 October 1993 the court gave judgment and granted the claim. The applicant appealed against this judgment. On 19 January 1994 the Słupsk Regional Court (Sąd Wojewódzki) amended the first-instance judgment.
11. Subsequently, the applicant twice requested the Minister of Justice to grant her leave to file an extraordinary appeal with the Supreme Court (Sąd Najwyższy). Her first request was rejected on 10 October 1994.
12. On 31 January 1997, upon the applicant’s second request, the Minister of Justice filed a cassation appeal on the applicant’s behalf, contesting the judgment of the Słupsk Regional Court of 19 January 1994.
13. On 29 April 1997 the Supreme Court quashed both judgments given in the applicant’s case and remitted the case to the court of first instance. It held that the lower courts had committed serious errors of fact and law.
14. On 28 October 1997 the Lębork District Court joined the applicant’s case with similar proceedings against seven other members of the cooperative.
15. On 19 March 1998 the court held a hearing.
16. On 8 May 1998 the court ordered that expert evidence be obtained.
17. On 9 June 1998 the court exempted the applicant from half of the court fees due. The applicant appealed. On 29 December 1998 the Słupsk Regional Court rejected her appeal.
18. On 29 February 2000 the trial court ordered that further expert evidence be obtained. On 19 May 2000 the expert submitted his report to the court. On 4 October 2000 the applicant challenged the expert’s opinion of 19 May 2000.
19. On 5 October 2000 the court held a hearing and listed the next hearing for 17 October 2000.
20. On 1 March 2002 the District Court gave judgment. On 8 April 2002 the applicant appealed against this judgment.
21. It appears that the proceedings are pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78159
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BUTA v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 5-3
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1975 and lives in Poznań.
6. On 14 April 1999 the applicant was detained on suspicion of robbery and deprivation of liberty with aggravated violence.
7. On 15 April 1999 the Wałcz District Prosecutor’s Office requested the Wałcz District Court to remand the applicant in custody. He indicated that the crimes the applicant was charged with had been committed with exceptional cruelty and that there was a risk that he would influence the witnesses and his co-accused if released.
8. On 15 April 1999 the Wałcz District Court remanded the applicant in custody for 3 months. In its decision the court underlined that there was a strong likelihood that the applicant had committed the crimes and, moreover, had done so soon after he had been released from prison. In addition, since the applicant was charged with a crime against a person who had refused to testify in his favour, the court considered that there was a reasonable fear that the applicant would obstruct the proceedings.
9. On 9 July 1999 the District Court prolonged the applicant’s detention. In its reasons for this decision it stated, inter alia, that there was a need to extend the scope of the investigation in the applicant’s case and at the same time to prevent him from contacting other suspects. The applicant’s appeal against this decision was dismissed on 21 July 1999. The Poznań Regional Court found that the applicant’s detention pending trial was fully justified bearing in mind the severity of the charges, the likely penalty and the applicant’s recidivism. The court agreed with the District Court’s view that there was a possibility that the applicant would collude with his co-accused or try to influence witnesses. No grounds for release listed in the Code of Criminal Procedure were established by the court.
10. In the course of the investigation the suspects and 18 witnesses were heard.
11. On 29 October 1999 the investigation was closed and a bill of indictment against the applicant and four other persons was lodged with the Wałcz District Court. The applicant was charged with six offences. The prosecutor named 25 witnesses to be summoned for the hearing and 6 persons were identified as victims of the crimes. A local inquiry (wywiad środowiskowy) was concluded.
12. By decisions of 7 December 1999 and 12 April 2000 the applicant’s detention pending trial was further prolonged. The courts stated, inter alia, that the grounds for applying this measure remained valid. They found that there was a need to secure the proper conduct of the proceedings, bearing in mind the severity of the charges against the applicant, his recidivism and the fact that he had committed the offences within two months of his release from prison. The circumstances of one of the offences - deprivation of liberty - pointed to the risk that the applicant would attempt to pervert the course of justice. No special circumstances dictated the lifting of the detention. The court also took into account the complicated nature of the case, which related to numerous persons and criminal acts. On 24 May 2000 the decision of 12 April 2000 was upheld by the Poznań Regional Court. The court considered that the evidence gathered in the proceedings indicated a strong likelihood that the applicant had committed the crimes with which he had been charged. In addition, the applicant’s continued detention pending trial was found to be necessary, bearing in mind the seriousness of the charges, the severity of the anticipated penalty and the applicant’s criminal record. His attempts to influence the testimonies of a witness in another case and the fear of the applicant expressed by some of the victims justified the perceived risk of collusion. At the same time the Poznań Regional Court underlined that the trial court should make every effort to conduct the proceedings promptly and swiftly.
13. In a subsequent decision of 5 October 2000 prolonging the applicant’s detention the District Court indicated, inter alia, that despite the fact that the victims had already been heard there was still a risk of collusion and unlawful obstruction of the proceedings by the applicant, bearing in mind in particular his behaviour during the previous hearing. The court considered that police supervision would not be enough to secure the proper conduct of the proceedings.
14. In the reasons for the decision of 9 January 2001 prolonging the applicant’s detention for a further three months, the court underlined, inter alia, that there was a risk that the applicant would influence witnesses, especially bearing in mind his aggressive attitude during the hearings, and that no other preventive measure would sufficiently secure the proper conduct of the proceedings. The court also stressed the need to examine the witnesses requested by the applicant’s defence counsel. The applicant appealed against this decision on 19 January 2001. On 31 January 2001 the Poznań Regional Court upheld the decision and ruled that the District Court had correctly indicated both the general and specific circumstances which justified the extension of the applicant’s detention pending trial. At the same time the appellate court drew the trial court’s attention to the need to accelerate the proceedings.
15. On 27 March 2001 the District Court granted the co-accused’s request to undergo a psychiatric examination and at the same time decided to request the Poznań Court of Appeal to prolong the applicant’s detention until 12 October 2001. Since the applicant had reacted violently and declared that he too was mentally ill and should therefore be examined by a psychiatrist, the court decided to order a psychiatric expert opinion to be prepared on him.
16. In the reasons for the decision of 3 April 2001 on prolongation of the applicant’s detention the Poznań Court of Appeal considered, inter alia, that the conditions laid down in Article 263 § 4 of the Code of Criminal Procedure were met and that the prolongation of the detention pending trial was necessary in order to allow for the completion of the complicated procedure for the taking of evidence. It was also necessary because the applicant and the co-accused had deliberately prolonged the proceedings by requesting a psychiatric examination at a time when the proceedings had almost been concluded. The court also noted other important obstacles beyond the court’s control, such as the illness of the referring judge and the need to conduct the proceedings again. In the court’s opinion, the Wałcz District Court could not be held responsible for the excessive length of the proceedings. The applicant’s defence counsel appealed on 18 April 2001. On 8 May 2001 the Poznań Court of Appeal upheld the impugned decision.
17. In the course of the proceedings, the applicant lodged several applications for the lifting of his detention pending trial or the imposition of a more lenient preventive measure. His applications were dismissed by the court on 24 May, 2 September and 27 September 1999, 28 October, 30 November 2000, 14 February and 28 June 2001. The applicant unsuccessfully appealed against these decisions.
18. The hearings in the proceedings were held on 27 January, 15 May, 12 June, 21 August, 20 September 2000, 14 February, 27 March, 18 September, 25 October, 26 November 2001, 7 January, 6 February, 11 March, 23 May, 25 June, 5 September 2002, and 28 January, 4 March and 28 August 2003.
19. At a hearing held on 15 May 2000 three of the co-accused did not appear and in consequence it had to be adjourned. The court decided to remand the co-accused in custody for 3 months. In addition, the court received information that one of the witnesses had moved away and it ordered that her new whereabouts be established. The court also refused to allow the motions of the applicant’s and the co-accused’s counsel to have their cases examined separately. It observed that all the offences were closely linked and that the co-accused had acted together and in concert. Consequently, conducting the proceedings separately for each of the coaccused would be contrary to the principle of promptness of proceedings.
20. The applicant was released from detention on 12 October 2001.
21. On 6 September 2005 the Wałcz District Court found the applicant guilty of three of the four robberies with which he had been charged and one of the two kidnappings and acquitted him of the charge of drug trafficking. The applicant was sentenced to three years and six months’ imprisonment.
22. The relevant domestic law concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in 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.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-59604
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF PELLEGRINI v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 11. On 29 April 1962 the applicant married Mr A. Gigliozzi in a religious ceremony which was also valid in the eyes of the law (matrimonio concordatario).
12. On 23 February 1987 the applicant petitioned the Rome District Court for judicial separation.
13. In a judgment dated 2 October 1990 the District Court granted her petition and also ordered Mr Gigliozzi to pay the applicant maintenance (mantenimento) of 300,000 Italian lira per month.
14. In the meantime, on 20 November 1987, the applicant was summoned to appear before the Lazio Regional Ecclesiastical Court of the Rome Vicariate on 1 December 1987 “to answer questions in the Gigliozzi-Pellegrini matrimonial case”.
15. On 1 December 1987 the applicant went alone to the Ecclesiastical Court without knowing why she had been summoned to appear. She was informed that on 6 November 1987 her husband had sought to have the marriage annulled on the ground of consanguinity (the applicant’s mother and Mr Gigliozzi’s father being cousins). She was questioned by the judge and stated that she had known of her consanguineous relationship with Mr Gigliozzi but did not know whether, at the time of her marriage, the priest had requested a special dispensation (dispensatio).
16. In a judgment delivered on 10 December 1987 and deposited with the registry on the same day, the Ecclesiastical Court annulled the marriage on the ground of consanguinity. The court had followed a summary procedure (praetermissis solemnitatibus processus ordinarii) under Article 1688 of the Code of Canon Law. That procedure is followed where, once the parties have been summoned to appear and the defensor vinculis (defender of the institution of marriage) has intervened, it is clear from an agreed document that there is a ground for annulling the marriage.
17. On 12 December 1987 the applicant was notified by the registry of the Ecclesiastical Court that on 6 November 1987 the court had annulled the marriage on the ground of consanguinity.
18. On 21 December 1987 the applicant lodged an appeal with the Roman Rota (Romana Rota) against the Ecclesiastical Court’s judgment. She submitted first that she had never received a copy of the judgment in question and complained that the court had not heard her submissions until 1 December 1987, which was after it had delivered its judgment of 6 November 1987. The applicant also alleged a breach of her defence rights and of the adversarial principle on account of the fact that she had been summoned to appear before the Ecclesiastical Court without being informed in advance either of the application to have the marriage annulled or the reasons for that application. She had therefore not prepared any defence and, furthermore, had not been assisted by a lawyer.
19. On 26 January 1988 the registry of the Ecclesiastical Court informed the applicant that there had been a clerical error in the notification sent to her on 12 December 1987 and that the judgment was dated 10 December 1987.
20. On 3 February 1988 the defensor vinculis submitted observations to the effect that the applicant “had acted correctly in appealing against the judgment” (la convenuta aveva agito giustamente facendo appello contro la sentenza) of the Lazio Court. Accordingly, in a summons of 9 March 1988 the reporting judge of the Rota summoned the parties and the defensor vinculis to appear.
21. On 10 March 1988 the applicant was informed that the Rota would examine her appeal on 13 April 1988 and that she had twenty days in which to submit observations. On 29 March 1988 the applicant, who was still unassisted by a lawyer, submitted her observations, in which she complained, inter alia, that she had not had adequate time and facilities for the preparation of her defence. She gave details of the financial arrangements between herself and her ex-husband and stressed that the annulment of the marriage would have substantial repercussions on her ex-husband’s obligation to pay her maintenance, which was her only source of income.
22. In a judgment of 13 April 1988, which was deposited with the registry on 10 May 1988, the Rota upheld the decision annulling the marriage on the ground of consanguinity. The applicant received only the operative provisions of the judgment, her request for a full copy of it having been refused.
23. On 23 November 1988 the Rota informed the applicant and her ex-husband that its judgment, which had become enforceable by a decision of the superior ecclesiastical review body, had been referred to the Florence Court of Appeal for a declaration that it could be enforced under Italian law (delibazione).
24. On 25 September 1989 the applicant’s ex-husband summoned her to appear before the Florence Court of Appeal.
25. The applicant appeared before that court and requested it to set aside the Rota’s judgment for infringing her defence rights. She stated that she had not received a copy of the application to have the marriage annulled and had been unable to examine the documents filed in the proceedings, including the observations of the defensor vinculis. She requested the court to refuse to declare the Rota’s judgment enforceable, submitting that, in any event, the proceedings would have to be reopened in order to allow her to examine and reply to the documents filed in the proceedings under canon law. She requested, in the alternative, in the event that the court should declare the judgment enforceable, that her ex-husband be ordered to pay her monthly maintenance for the rest of her life.
26. In a judgment of 8 November 1991, deposited with the registry on 10 March 1992, the Florence Court of Appeal declared the judgment of 13 April 1988 enforceable. The court found that the opportunity given to the applicant on 1 December 1987 to answer questions had been sufficient to ensure that the adversarial principle had been complied with and that, moreover, she had freely chosen to bring the proceedings before the Rota and had been able to exercise her defence rights in those proceedings “irrespective of the special features of proceedings under canon law”. The court went on to hold that it did not have jurisdiction to award her maintenance “for the rest of her life”; as far as a possible award of interim maintenance (assegno provvisorio) was concerned, which was a provisional arrangement, the court pointed out that the applicant had not in any event proved that she needed the money.
27. The applicant appealed on points of law, repeating her submission that her defence rights had been infringed in the proceedings before the ecclesiastical courts. She submitted, among other things, that the Court of Appeal had omitted to take account of the following features of the proceedings before the ecclesiastical courts: the parties cannot be represented by a lawyer; the respondent is not informed of the reasons relied on by the petitioner for having the marriage annulled until he or she is questioned; the defensor vinculis, who acts as the respondent’s guardian, is not obliged to lodge an appeal; an appeal must be lodged personally by the party in question and not by their lawyer; the ecclesiastical court is not particularly autonomous. She repeated that she had not been informed in detail of the application to have the marriage annulled or of the possibility of being assisted by a lawyer. Furthermore, the proceedings at first instance had been too quick. The applicant also criticised the fact that the Court of Appeal appeared to have omitted to examine the case file relating to the proceedings before the ecclesiastical courts, which might have yielded evidence in the applicant’s favour. Besides that, the applicant submitted that she had shown herself to be in financial need and was therefore entitled to maintenance.
28. During the proceedings the applicant had requested the registry of the Ecclesiastical Court to give her a copy of the documents filed in the annulment proceedings in order to produce them before the Court of Cassation, but the court clerk had refused to grant her request on the ground that the parties could receive only the operative provisions of the judgment, “which should be sufficient to allow them to exercise their defence rights”.
29. In a judgment of 10 March 1995, deposited with the registry on 21 June 1995, the Court of Cassation dismissed the appeal. It held, first of all, that the adversarial principle had been complied with in the proceedings before the ecclesiastical courts; moreover, there was case-law authority to support the view that while the assistance of a lawyer was not a requirement under canon law, it was not forbidden: the applicant could therefore have taken advantage of that possibility. The court also held that the fact that the applicant had had a very short time in which to prepare her defence in November 1987 did not amount to an infringement of her defence rights because she had not indicated why she had needed more time. With regard to the request for maintenance, the Court of Cassation held that the Court of Appeal could not have decided otherwise, given that the applicant had mistakenly referred to maintenance “for the rest of her life” and, furthermore, had failed to show that she was entitled to maintenance and needed it. The Court of Cassation did not rule on the fact that the case file relating to the proceedings under canon law had not been examined by the Court of Appeal.
30. From June 1992 the applicant’s ex-husband ceased paying her maintenance. The applicant therefore began enforcement proceedings for payment of the maintenance by serving notice (precetto) on him to pay it. On 6 November 1994 her ex-husband lodged an objection with the Viterbo Court, which, in a judgment of 14 July 1999, upheld his objection and ruled that he no longer had to pay maintenance because the Florence Court of Appeal had declared that the decision annulling the marriage was enforceable. The applicant did not appeal against that judgment because on 19 June 2000 she reached an agreement with her ex-husband (under the terms of that agreement she also withdrew another set of proceedings that she had instituted in the Viterbo Court claiming joint title to property).
31. Under Article 8 § 2 of the Concordat between Italy and the Vatican, as amended by the Agreement of 18 February 1984 revising the Concordat, ratified by Italy under Law no. 121 of 25 March 1985, a judgment of the ecclesiastical courts annulling a marriage, which has become enforceable by a decision of the superior ecclesiastical review body, may be made enforceable in Italy at the request of one of the parties by a judgment of the relevant court of appeal.
32. The court of appeal must check:
(a) that the judgment has been delivered by the correct court;
(b) that in the nullity proceedings the defence rights of the parties have been recognised in a manner compatible with the fundamental principles of Italian law; and
(c) that the other conditions for a declaration of enforceability of foreign judgments have been satisfied.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-75291
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: YILDIZ AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr Hüseyin Aygün and Mr Özgür Ulaş Kaplan, lawyers practising in Tunceli.
The facts of the cases, as submitted by the parties, may be summarised as follows.
Until 1994 the applicants lived in Eskigedik, Eğimli, Şahverdi, Yakatarla, Çambulak, Işıkvuran, Yalmanlar, Koruköy, Kalecik and Kurukaymak villages, in the districts of Ovacık and Hozat, in Tunceli province, where they own property.
It is to be noted that the title deeds to the property that some of the applicants used in aforementioned villages bear their fathers’ name. Furthermore, Ahmet Özer and Kazım Gündüz did not submit any certificate to the Court attesting their ownership of the property.
In 1994, security forces forcibly evacuated Eskigedik, Eğimli, Şahverdi, Yakatarla, Çambulak, Işıkvuran, Yalmanlar, Koruköy, Kalecik and Kurukaymak on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to İzmir,Bursa, Tekirdağ, Erzincan, Ovacık, Tunceli, Istanbul, Elazığ, Bilecik and Eskişehir where they currently live.
On 12, 14 and 17 May 2002 the representatives of the applicants filed petitions, on behalf of the applicants, with the offices of the Tunceli Governor, Ovacık and Hozat District Governors requesting permission to return to their villages and compensation for the damage they had suffered.
On 7 June 2002 the State Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicants’ representatives:
“...
The Eskigedik, Eğimli, Şahverdi, Yakatarla, Çambulak, Işıkvuran, Yalmanlar, Koruköy, Kalecik and Kurukaymak villages are being considered under the ‘Return to the Village and Rehabilitation Project’. Thus, the residents of those villages can reside in Hanuşağı, Arslandoğmuş, Burnak, Kızık, Koyungölü, Söğütlü, Topuzlu, Ziyaret, Mollaaliler, Çakmaklı, Cevizlidere, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages in Ovacık district or Sarısaltık, Çaytaşı, Karaca, Tavuklar, Karabakır, Geçimli, İnköy, Beşelma, Dalören, Akpınar, Yenidoğdu, Kavuktepe and Türktaner villages in Hozat district.
...
Your petition containing requests of permission to return to village will be considered under the ‘Return to Village and Rehabilitation Project’.”
On 11 September 2002 the representative of the applicants lodged a petition with the Public Prosecutor’s office in Tunceli complaining about the dereliction of duty by the Tunceli Governor and the Hozat and Ovacık District Governors(görevi ihmal).
On 18 September 2002 the Tunceli Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Public Prosecutor’s office at the Court of Cassation.
On 30 September 2002 the Public Prosecutor’s office at the Court of Cassation decided not to start the proceedings into the allegation of dereliction of duty against the Tunceli Governor (dilekçenin işleme konulmaması).
On 23 June 2003 the Tunceli Administrative Council decided not to conduct an investigation into the applicants’ allegations of dereliction of duty against the Hozat and Ovacık District Governors.
On 7 July 2003 the representatives filed an objection with the Malatya Regional Administrative Court against the decision of the Tunceli Administrative Council.
On 2 October 2003 the Malatya Regional Administrative Court rejected the objection.
On 30 October 2003 the Tunceli Public Prosecutor decided not to conduct investigation into the applicants’ allegations against the Hozat and Ovacık District Governors.
On 20 November 2003 the representative of the applicants filed an objection with the Elazığ Assize Court against the decision of the Tunceli Public Prosecutor.
On 4 December 2003 the Elazığ Assize Court rejected the objection.
The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village.
The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).


ITEMID: 001-81086
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BALCI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Yaşar Mehmet Balcı, is a Turkish-Cypriot national who was born in 1932 and lives in Mersin (in the “TRNC”). He was represented before the Court by Ms Kaya, a lawyer practising in London. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was the owner of three plots of land (plot nos. X11/22 E2-348, 357 and 358-1) situated along the east coast of Girne (Kyrenia). Since 1974 these plots have been used by the Turkish military forces for a military base.
On 15 July 1998 the applicant petitioned the Ministry of Defence of Turkey requesting compensation for his land. On 22 October 1998 he was informed that the “TRNC” authorities had commenced the procedure to expropriate the land in question pursuant to the Compulsory Acquisition of Property Law.
On 11 August 1999 Notice no. 487 was published in the Official Gazette of the “TRNC”, pursuant to Section 4 of the Compulsory Acquisition of Property Law. According to the Notice, plot nos. X11/22 E2 348, 357 and 3581 were to be compulsorily acquired for national security reasons. The Notice provided that any objections should be addressed to the Ministry of Labour, Settlement and Social Security within fifteen days of the publication.
On 4 November 1999 Notice no. 673 was published in the Official Gazette of the “TRNC”, pursuant to Section 6 of the Compulsory Acquisition Law. According to this Notice, as there had been no objections, the Government ordered the compulsory acquisition of the plots of land referred to in Notice no. 487.
The applicant claims that he learned of the existence of Notice no. 487 on 15 December 1999, verbally, from an official at the Girne Land Registry office.
On 14 January 2000 the Girne Land Registry sent an offer of compensation to the applicant, amounting to 162,500 pounds sterling (GBP) to be converted into Turkish liras.
On 14 February 2000 the applicant filed an action for compensation with the Girne District Court, sitting as the Compensation Assessment Court (Takdiri Tazminat Mahkemesi).
During the proceedings, the applicant claimed that the market value of property in the area was between GBP 80,000 and GBP 90,000 per dönüm. The experts called by the applicant confirmed that the market value of the land in question was GBP 80,000 per dönüm. The court also heard from the experts called by the defendant party, who in turn alleged that the market value was GBP 11,000 per dönüm. The evaluation by the defendant party’s experts was based on the declarations made to the Land Registry office. On 31 May 2005 the Girne District Court rendered its decision. It expressed its concerns about the amount stated by the defendant party’s experts, stating that buyers tended to undervalue their property at the Land Registry office in order to reduce the fees and charges. As a result, it awarded the applicant GBP 80,000 per dönüm. In sum, the applicant was granted GBP 1,300,000 (approximately 1,916,000 euros) by way of compensation for 16 ¼ dönüms of land.
On 12 July 2005, considering the amount of compensation excessive, the Attorney General filed an appeal against this decision. The proceedings are still pending before the Court of Appeal.


ITEMID: 001-119969
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF OOO 'VESTI'  AND UKHOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)
JUDGES: Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
TEXT: 6. The first applicant had its registered office in Kirov. The second applicant was born in 1951 and lives in Kirov.
7. The first applicant was a limited liability company founded by the State Property Department of the Kirov Regional Government and registered as a legal entity in 1997.
8. On an unspecified date the Kirov Regional Legislative Assembly and the Kirov Regional Government founded the Gubernskie Vesti, Kirov newspaper. On 23 August 2001 it was officially registered as a regional news medium. The official address of its editorial board was the same as that of the first applicant.
9. According to the applicants, the editorial board of the Gubernskie Vesti, Kirov newspaper was not registered as a legal entity and did not have articles of association. The first applicant was the publisher of the Gubernskie Vesti, Kirov newspaper. The applicants were, however, unable to submit a publishing agreement.
10. According to its articles of association, as amended on 24 May 2002, the first applicant’s main activity consisted in issuing the Gubernskie Vesti, Kirov newspaper. It also carried out publishing and advertising activities. The first applicant was managed by its executive body, the editor-in-chief. That position was occupied at the material time by the second applicant, who was at the same time the editor-in-chief of the Gubernskie Vesti, Kirov newspaper.
11. On 16 August 2002 the Gubernskie Vesti, Kirov newspaper published an article under the headline “The Chief Federal Inspector has brought the media to its knees. But not the businessmen” («ГФИ поставил на колени прессу. Но не коммерсантов»). The article was written by the second applicant, who signed it using his pen-name, Semyon Volkov.
12. The article concerned a joint press conference held by Mr P., the Chief Federal Inspector for the Kirov Region, and Mr K., the Mayor of Kirov. The press conference was about the media coverage of the regional project “Kirov, cultural capital of the Volga region for 2002”. The article was critical of the cultural value of the events connected with the project and spoke ironically about Mr P.’s “accomplishments” in that field. Mr P. was further quoted as saying that the allotted funds were insufficient to finance the work of the project’s organising committee and as criticising local businesses for their unwillingness to sponsor the project, allegedly because the project had not received the Governor’s explicit endorsement. The article then went on as follows:
“Curiously enough, just before that meeting, I had a chance to talk to some businessmen I know. They told me that the chief federal inspector’s office had literally pestered them with ‘offers’ for them to become sponsors. However, they do not respond to such ‘offers’, not because they fear the Governor, but because they do not want to give money. Some say that [Mr P.] is too deeply involved in political games, of which they want no part. Others are, for some reason, concerned that their money might be wasted on the lovers of the collector of funds rather than spent on cultural events.”
13. On 30 August 2002 Mr P., in his official capacity as the Chief Federal Inspector, brought an action for defamation against the editorial board of the Gubernskie Vesti newspaper and the author of the article, Semyon Volkov. According to his statement of claim, the final paragraph of the contested article had asserted that he was in charge of the collection and distribution of funds for the project, that he was capable of committing a crime by embezzling the funds entrusted to him, and that he had lovers, thereby violating moral and ethical norms. Considering that those statements were untrue and damaging to his honour, dignity and professional reputation, he sought a retraction and compensation for non-pecuniary damage.
14. Mr P. also enclosed the text of the retraction statement that he wished the editorial board of the Gubernskie Vesti newspaper to publish. It contained an apology and an acknowledgement that the last sentence of the paragraph cited above was untrue and damaging to his honour and reputation, a promise to discipline the author of the article and an undertaking to respect the domestic law on the media in the future.
15. On 9 September 2002 Mr G., deputy editor-in-chief of the first applicant, signed a power of attorney appointing Mr K. and Mr R. to act as its counsel in the defamation proceedings.
16. On 13 September 2002 Judge S. of the Leninskiy District Court of Kirov decided to sever the claim against the author of the article for adjudication in separate proceedings because the first applicant had refused to disclose his identity. The proceedings against the author were stayed.
17. On 13 September 2002 the Leninskiy District Court of Kirov, sitting in a single-judge formation comprising Judge S., held a hearing. Counsel, Mr K. and Mr R., asked that the hearing be adjourned because the second applicant, the newspaper’s editor-in-chief and the only person acquainted with the circumstances relating to the contested publication, was on annual leave until 6 October 2002. The court refused the request.
18. Mr K. and Mr R. further submitted that the contested statements did not concern Mr P., who was not the collector of funds for the cultural project. The funds were being collected by the Kirov Town Administration.
19. Counsel for Mr P. submitted that the article had been entirely devoted to Mr P. It stated, in particular, that he had “pestered” local businessmen with requests to become sponsors of the cultural project. The last sentence of the article, which concerned the collector of funds, could easily be interpreted as directed at Mr P. Such an interpretation had indeed been made by a number of local newspapers, which had also understood the last sentence of the article as referring to Mr P.
20. On 13 September 2002 the Leninskiy District Court of Kirov granted Mr P.’s claim against the editorial board of the Gubernskie Vesti newspaper in full. The court found that the final paragraph of the article contained false information about the plaintiff, who it had falsely alleged was the collector of funds that might have been wasted on lovers rather than spent on cultural events. The court noted that the defendant had not produced any proof of the truthfulness of that information. It ordered the editorial board to pay the plaintiff 20,000 Russian roubles (RUR) (approximately 650 euros (EUR)) in compensation for non-pecuniary damage, and RUR 1,000 in court fees. It further ordered an immediate publication of the retraction statement as drafted by Mr P.
21. On 18 September 2002 enforcement proceedings were opened. On the same day, the first applicant applied to the Leninskiy District Court for a stay in the enforcement proceedings. It submitted that the court had ordered the enforcement of the judgment against the editorial board of the Gubernskie Vesti newspaper, which had no legal entity status and, accordingly, could not be a defendant in civil proceedings. Furthermore, the order for immediate enforcement was unlawful and violated the first applicant’s right to know the reasons for the judgment (at that time, the full text of the judgment was unavailable) and to lodge an appeal against it.
22. On 19 September 2002 Judge S. issued two interim decisions. By the first decision he refused the first applicant’s request for a stay of enforcement as unsubstantiated. No further reasons were given. The second decision rectified an error in the operative part of the judgment. It held that the defendant’s name was “the limited liability company The Editorial Board of the Vesti Newspaper” rather than “the editorial board of the Gubernskie Vesti newspaper”.
23. On 20 September 2002 the Gubernskie Vesti, Kirov newspaper published the retraction statement as drafted by Mr P. and endorsed in the judgment of 13 September 2002.
24. On 24 September 2002 the first applicant lodged an appeal against the judgment of 13 September 2002, submitting that the article had not named the collector of funds for the project or suggested that it was Mr P. who had collected the funds. Nor had it stated that Mr P. had lovers or that he had embezzled any funds entrusted to him. It was clear from the text that the contested sentence did not concern Mr P. at all. The first applicant further complained about the District Court’s unreasoned refusal to adjourn the hearing until the second applicant had returned from leave. The second applicant was the only person who knew the identity of the author of the article and who was able to give an informed response to the statement of claim.
25. The second applicant lodged a statement in support of the appeal. He disclosed that he was the author of the article and stated that the judgment of 13 September 2002 had been poorly reasoned. Although Mr P. had failed to prove that the contested sentence concerned him personally, the District Court had accepted his claim without analysing whether the impugned statements were indeed directed at him.
26. On an unspecified date the proceedings against the author of the article were resumed and the second applicant was summoned to appear before the Leninskiy District Court as the defendant in Mr P.’s defamation case instituted on 30 August 2002. His case was heard by a bench composed of the presiding judge S. and two lay assessors. The second applicant lodged an objection against Judge S. on the ground that he had already expressed his position in the judgment against the editorial board. Lay assessors examined and rejected the objection, finding that the second applicant’s fears as to Mr S.’s impartiality were not justified.
27. At the hearing on 2 October 2002 the second applicant was represented by Mr R. as counsel. The second applicant and his counsel both argued that the last sentence of the article did not concern Mr P. It concerned the collector of funds, who had not been identified in the article. The fact that other newspapers had interpreted the last sentence as directed at Mr P. was irrelevant because the second applicant could not be held responsible for the actions of other people. They further submitted that the second applicant had simply repeated the reservations expressed by businessmen with regard to the distribution of the funds collected for the project.
28. Counsel for Mr P. repeated the arguments he had advanced at the hearing of 13 September 2002, in particular the reasons why Mr P. believed that the contested statements were directed at him. He submitted, in particular, that the title and the structure of the article showed that it was entirely about Mr P. and that other people had understood the last sentence of the article as concerning Mr P., and this had been proved by articles in other newspapers.
29. On 3 October 2002 the Leninskiy District Court issued a judgment against the second applicant. The court found that the article read as a whole gave the impression that the contested statements concerned Mr P. The same interpretation had been arrived at by other newspapers, which had been unanimous in considering that the last sentence had been about Mr P. The contested statements, which accused Mr P. of spending public funds on lovers, were damaging to his honour, dignity and professional reputation. The second applicant had failed to prove the truthfulness of his statements about Mr P. The second applicant was ordered to pay RUR 2,500 (approximately 80 euros) in compensation for non-pecuniary damage, and RUR 10 in court fees.
30. The second applicant appealed. He repeated the arguments advanced in his statement in support of the first applicant’s appeal. He further argued that the outcome of his case had been predetermined by the judgment against the editorial board. Judge S., who had examined the case against the editorial board, was bound to have had a preconceived opinion on his case.
31. On 31 October 2002 the Kirov Regional Court adjourned the examination of the appeals. It established that the interim decision of 19 September 2002 rectifying an error in the judgment of 13 September 2002 had been issued in the absence of the interested parties. Moreover, the parties had not received a copy of that decision and had thereby been deprived of an opportunity to appeal. Until that omission had been remedied, the appeal against the judgment of 13 September 2002 could not be examined, nor could the appeal against the judgment of 3 October 2002. Because both cases were based on the same claim, the determination of one of them would prejudge the outcome of the other. On that ground, the Kirov Regional Court decided that the two cases should be joined and all appeals should be examined simultaneously.
32. On 14 November 2002 the first applicant lodged an appeal against the interim decision of 19 September 2002. It argued that that decision was unlawful for the following reasons: the rectification had been made by the District Court of its own motion; the decision had been taken in the absence of the parties; and, in substance, the decision was the disguised substitution of a defendant rather than a correction of a clerical error or an obvious mistake. The first applicant submitted that the limited liability company The Editorial Board of the Vesti Newspaper and the editorial board of the Gubernskie Vesti newspaper were two distinct entities: the first was registered as a legal entity, while the second was operating without State registration. The fact that the District Court had issued a judgment against the wrong entity demonstrated that the adjudication of the case had been superficial and the essential aspects of the case had not been examined properly.
33. On 29 November 2002 the Leninskiy District Court, by a new interim decision, confirmed its earlier decision of 19 September 2002 on the rectification of the error regarding the defendant’s name. The first applicant lodged an appeal repeating the arguments advanced in the appeal statement of 14 November 2002.
34. On 24 December 2002 the Kirov Regional Court examined all the appeals. Both applicants were represented at the hearing by Mr R.
35. The Kirov Regional Court quashed the interim decision of 19 September 2002 on the ground that it had been issued in the absence of the parties, but upheld the interim decision of 29 November 2002, which, in its view, was lawful. Thus, it found that counsel who had taken part in the hearing of 13 September 2002 had represented the interests of the first applicant, the limited liability company The Editorial Board of the Vesti Newspaper. It was clear that the judgment of 13 September 2002 defined the rights of, and imposed obligations on, the first applicant, because no other organisation had been involved in the proceedings. The amendment of the defendant’s name had therefore been no more than a rectification of a clerical error not related to the merits of the case and having no effect on the substance of the judgment.
36. The Regional Court further upheld the judgments of 13 September and 3 October 2002 in substance. In particular, it found that the District Court had addressed the applicants’ arguments relating to the existence of an objective link between the contested statements and the plaintiff. It had analysed the tile, structure and contents of the impugned article and had correctly found that its last sentence concerned Mr P. Moreover, it had taken into account that Mr P. was not the only one to have understood that the sentence had been directed at him; other newspapers had also drawn the same conclusion. The District Court had therefore correctly required the defendants to prove the truthfulness of their allegations, which they had failed to do. Both applicants had been represented at hearings by counsel, and their procedural rights had therefore been respected. Finally, the Regional Court held that the severance of the claim against the second applicant from the proceedings “had not involved a substantially incorrect determination of the dispute”.
37. The Regional Court found, however, that the District Court had incorrectly required the first applicant to publish the retraction statement drafted by the plaintiff. The requirement for an apology, a promise to discipline the author and an undertaking to respect domestic law contained in the retraction statement had no basis in domestic law. The order for immediate enforcement had also been unlawful. The court ordered that the first applicant publish an amended retraction statement. It also reduced the award payable by the first applicant to RUR 10,000 (approximately 325 euros).
38. On 14 January 2003 the first applicant published the amended retraction statement.
39. On 6 August 2007 the first applicant was declared insolvent and dissolved.
40. Article 152 of the Civil Code provides that an individual may apply to a court with a request for the retraction of statements (svedeniya) that are damaging to his or her 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.
41. Ruling no. 11 of the Plenary Supreme Court of the Russian Federation, adopted on 18 August 1992 (as amended on 25 April 1995 and in force at the material time), provided that, in order to be considered damaging, statements had to be untrue and contain allegations of a breach of laws or moral principles (for example, the commission of a dishonest act, or improper behaviour in the workplace or in everyday life). Dissemination of statements was understood as the publication of statements or their broadcasting (paragraph 2). The burden of proof was on the defendant to show that the disseminated statements were true and accurate (paragraph 7).
42. On 24 February 2005 the Plenary Supreme Court of the Russian Federation adopted Ruling no. 3, requiring courts hearing defamation claims to distinguish between statements of facts which could be checked for veracity and evaluative judgments, opinions and convictions, which were not actionable under Article 152 of the Civil Code because they were expressions of a defendant’s subjective opinion and views and therefore could not be checked for veracity (paragraph 9). Furthermore, it prohibited the courts from ordering defendants to make an apology to a plaintiff, because that form of redress had no basis under Russian law, including Article 152 of the Civil Code (paragraph 18).
43. The Mass Media Act (Law no. 2124-I of 27 December 1991) defines an editorial board of a news medium as an organisation, citizen or group of citizens producing and issuing that news medium. An editorial board may start functioning after State registration of the news medium (section 8). An editorial board may – but is not required to – obtain legal entity status through State registration (section 19). An editorial board must have articles of association adopted by the general assembly of journalists and approved by the founder of the news medium (section 20).
44. A publisher of a news medium is defined in the Mass Media Act as a company or business person responsible for the technical, material and logistical aspects of a production process (section 2). The editorial board or the editor-in-chief and the publisher must conclude a publishing agreement (section 22). The functions of an editorial board and a publisher may be combined in one legal entity (section 21).
45. Founders, editorial boards, publishers and distributers of mass media, as well as journalists and authors of distributed statements may be held liable for a breach of the legal provisions governing mass media (section 56 of the Mass Media Act). Ruling no. 11 of the Plenary Supreme Court of the Russian Federation (cited in paragraph 41 above) provides that in cases where articles have been published in a newspaper, the defendants in an action for defamation must be the article’s author and the newspaper’s editorial board. If the author is not indicated, the editorial board will be the sole defendant. If the editorial board does not have legal entity status, the founder of the newspaper will be cited as the defendant (paragraph 6).
46. The RSFSR Code of Civil Procedure (in force up to 1 February 2003) provided that after pronouncing a judgment, a court could not quash or amend it. However, the court could, of its own motion or at the request of a party, rectify clerical errors or obvious errors in calculation. In such a case the court had an obligation to hold a hearing and notify the parties of its date. The parties could appeal against the rectification order (Article 204).
NON_VIOLATED_ARTICLES: 10
6
NON_VIOLATED_PARAGRAPHS: 10-1
6-1