ITEMID: 001-102762
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF ZHUKOVSKIYE v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: Anatoly Kovler;George Nicolaou;Sverre Erik Jebens
TEXT: 4. The applicants were born in 1930 and 1932 respectively and live in Moscow.
5. In 2000 the applicants bought a flat in a block of flats under construction from ZAO Otdelstroy, a private company.
6. On 6 June 2002 the applicants sued ZAO Otdelstroy claiming that the flat had a number of construction defects. They requested repairs to be done and claimed damages.
7. On 9 July 2002 the Lyublinskiy District Court of Moscow (“the District Court”) dismissed their claims.
8. On 28 October 2002 the Moscow City Court examined the applicant’s appeal, set the judgment aside and remitted the case for fresh examination.
9. At the hearing of 17 December 2002 the applicants further specified their claims, following which the court adjourned the hearing to enable the respondent to familiarise itself with the changes.
10. The hearing of 21 January 2003 did not take place as one of the applicants failed to appear.
11. On 6 February 2003 the respondent motioned for involvement of three co-respondents which included two private companies and a municipal agency.
12. The hearing of 19 February 2003 did not take place due to the judge’s illness.
13. On 18 March 2003 the court granted the above motion and the applicant’s motion for filing of some additional documents and adjourned the hearing.
14. The applicants again specified their claims on 14 April 2003.
15. On 22 April 2003 the proceedings were adjourned to enable one of the co-respondents to study the case file.
16. The hearing of 28 May 2003 was adjourned at the request of one of the respondents in order to enable it to draw up an act for elimination of the defects in the applicants’ flat. The applicants did not object.
17. On 17 June 2003 the court scheduled a construction expert examination. The proceedings were resumed on 23 September 2003 when the court again adjourned the hearing following additional specification of the applicants’ claims.
18. On 10 October 2003 the District Court granted the claims in part, following which the parties appealed. On 18 December 2003 the appeal court sent the case back to the first instance for consideration of the applicants’ objections to the hearing minutes. On 4 February 2004 the hearing at the appeal court did not take place following lack of due notification and the resulting default in appearance of the respondents. On 24 February 2004 the Moscow City Court overturned the judgment of 10 October 2003 and ordered new examination at the trial court.
19. The hearing of 12 May 2004 did not take place due to the respondents’ default in appearance.
20. The hearings scheduled for 3 August, 24 September and 15 November 2004 did not take place as the applicants and one of the respondents failed to appear.
21. On 20 December 2004 the court decided that the defaulting parties had been duly summoned and left the claims without consideration.
22. Neither of the parties provided a copy of the above decision or the hearing minutes recorded between 12 May and 20 December 2004.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86607
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF IBRAGIMOV AND OTHERS v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicants are:
1) Mr Umtazh Supyanovich Ibragimov, born in 1938;
2) Ms Tamara Saidovna Ibragimova, born in 1953;
3) Ms Zulikhan Umtazhovna Ibragimova, born in 1974;
4) Ms Yakha Umtazhovna Ibragimova, born in 1985;
5) Mr Magomed Umtazhovich Ibragimov, born in 1987; and
6) Ms Ayznat Umtazhovna Ibragimova, born in 1988.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. The first and second applicants are the parents of Mr Rizvan Umtazhovich Ibragimov, born in 1977, and of the third, fourth, fifth and sixth applicants. At the material time the Ibragimovs lived at 26 Bezymyannaya Street, Urus-Martan, the Chechen Republic. Their house had burned down, and the family lived in a refurbished cattle shed consisting of two rooms. Since 1999 Rizvan Ibragimov had been working as a construction worker in the town of Malgobek, Ingushetiya. In December 2002 he came to visit his parents in Urus-Martan because he needed to complete some formalities with the military commissariat.
8. On the night of 28 to 29 December 2002 the Ibragimovs were sleeping at home, except for the third and fourth applicants. The first applicant was sleeping in the front room, while the second, fifth and sixth applicants and Rizvan Ibragimov slept in the next room. They were sleeping on the floor because all their furniture had been burned in the fire.
9. At about 2 a.m. a group of five men in camouflage uniforms forcibly entered the house. Three of them were wearing balaclava masks. They did not produce identity papers or any documents to justify their actions and gave no explanations. The applicants assumed that they were federal military or security servicemen because they spoke Russian without accent, their faces as far as the applicants could see had Slavic features and also because of their arrival during curfew hours, which was only possible with the military commander’s permission.
10. Three servicemen walked straight to the back room, and two others stayed in the front room. The first applicant was told to stay still on his bed and a machine gun was pointed at him. One serviceman then announced that it was an “identity papers check”. Another serviceman in the back room pointed at Rizvan Ibragimov and ordered him to get dressed. The first applicant handed a pullover to the serviceman to pass to Rizvan Ibragimov, but the serviceman threw it aside. Rizvan Ibragimov was asked where his identity papers were; when he answered that they were on the windowsill, the servicemen took them, with his driving licence. Two servicemen took Rizvan Ibragimov out to the courtyard. He did not put up any resistance. The second applicant was crying and asking the servicemen who they were and where they were taking her son. The first applicant was also asking them to what authority they belonged and where to make enquiries. The servicemen did not answer but told the first and second applicants to remain inside the building. When the first applicant tried to follow them into the courtyard, one of the servicemen ordered him to stop, threatening to shoot.
11. The first applicant nonetheless followed the servicemen, but one of them squatted down, put a bullet into his gun and told the first applicant that he would shoot. Having realised the seriousness of the threat, the first applicant stopped.
12. More than ten armed men in camouflage uniforms were standing in the courtyard, all of them unmasked but wearing bullet-proof jackets. More military were waiting outside the gates and across the street.
13. Across the street from the applicants’ courtyard there was a bakery which had a lamp above the entrance. One of the military shot the light out. His weapon made no sound, and the applicants concluded that it was equipped with a silencer. The street lamp was also off, but the moonlight enabled the servicemen’s movements to be seen.
14. The first applicant could see that the military were walking down the street in groups of four or five, taking Rizvan Ibragimov with them. The first applicant followed the servicemen until they crossed the bridge over the Martanka River, turned left and then right. They took Kuybysheva Street in the direction of Trudovaya Street.
15. Two armoured personnel carriers (“APCs”) and an Ural vehicle were parked at the corner of Kalanchatskaya Street and Trudovaya Street, 600-700 metres from the applicants’ house.
16. According to written statements by two eyewitnesses about the events of the night of 28 to 29 December 2002, at about 2 a.m. two APCs and one Ural vehicle, all with illegible registration numbers, stopped at the corner of Trudovaya Street, then around forty armed men in camouflage uniforms crossed the bridge, moving away from the town centre, and returned some 20-25 minutes later, bringing back a man who looked like Rizvan Ibragimov. The vehicles then drove away towards the centre of Urus-Martan.
17. The Government submitted that the Prosecutor General’s Office had established that at about 2.20 a.m. on 29 December 2002 unidentified persons armed with machine guns and wearing camouflage uniforms and masks had entered the house at 14, Beregovaya Street, Urus-Martan, the Chechen Republic, and kidnapped Rizvan Ibragimov, and that the latter’s whereabouts had not been established.
18. Since 29 December 2002 the applicants, primarily the first applicant, have been searching for Rizvan Ibragimov. They applied to various official bodies both in person and in writing, trying to find out his whereabouts and what had happened to him, arguing that he must have been detained by some representatives of State agencies, because the armed men had arrived in a large group during curfew hours and had worn uniforms similar to those used by the Russian troops. The applicants retained copies of some of their letters to authorities and the answers, which they submitted to the Court. Their attempts to find out the whereabouts of Rizvan Ibragimov can be summarised as follows.
19. In the morning of 29 December 2002 the first applicant visited the department of interior of the Urus-Martan District (“ROVD”), the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”) and the local administration. He was told there that they did not know who had detained his son or where he was. While visiting the ROVD, the first applicant filed a written declaration concerning the disappearance of his son and attached a description of the events.
20. On 15 January 2003 the first applicant complained of his son’s disappearance to the Office of the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic. Later his letter was forwarded to the district prosecutor’s office.
21. On 28 January 2003 the district prosecutor’s office opened criminal investigation file no. 34005 into the abduction of Rizvan Ibragimov by unknown armed persons.
22. On 4 February 2003 the first applicant was granted victim status in the criminal proceedings.
23. On 4 February 2003 the first applicant wrote to the prosecutor’s office of the Chechen Republic, the military prosecutor’s office of the Chechen Republic, the local military commander and to the head of the administration of the Chechen Republic, Mr Kadyrov, and asked for their assistance in finding his son. On 7 February 2003 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s letter to the district prosecutor’s office.
24. In March 2003 the district prosecutor’s office informed the first applicant that the investigation had been suspended.
25. On 3 April 2003 the first applicant complained to the prosecutor’s office of the Chechen Republic about inaction by the district prosecutor’s office’s. He requested that all requisite investigative measures be taken to establish Rizvan Ibragimov’s whereabouts.
26. On 4 April 2003 the first applicant asked the district prosecutor’s office for an update on the progress of the investigation.
27. On 5 April 2003 the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”) forwarded the first applicant’s complaint to the military prosecutor of military unit no. 20102 (“the unit prosecutor’s office”).
28. On 9 April 2003 the district prosecutor’s office informed the first applicant of the suspension of the investigation.
29. On 15 April 2003 the district prosecutor’s office replied to the first applicant’s letter of 4 April 2003, reiterating that the investigation had been suspended on 28 March 2003.
30. On 21 April 2003 the unit prosecutor’s office informed the first applicant that there were no grounds to claim involvement of the military in the kidnapping of Rizvan Ibragimov.
31. On 4 May 2003 the first applicant, as part of a group of people whose relatives had disappeared, asked the district prosecutor’s office for assistance in obtaining documents certifying the past involvement or non-involvement of their disappeared relatives in the hostilities in the Chechen Republic.
32. On 12 May 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that the investigation in case no. 34005 had been resumed on 6 May 2003. The case was referred to as having been opened on 29 December 2002 and suspended on 29 February 2003 (as opposed to the earlier dates given, 28 January and 28 March 2003). It was acknowledged that the investigation conducted previously had not been comprehensive.
33. On 22 May 2003 the unit prosecutor’s office informed the first applicant that there was no involvement of the military in his son’s kidnapping.
34. On 7 June 2003 the district prosecutor’s office informed the first applicant that the investigation in case no. 34005 had been suspended for failure to identify those responsible.
35. On 18 June 2003 the first applicant sent a letter to the head of the Federal Security Service (“FSB”) alleging the involvement of federal forces, so-called “power structures” (силовые структуры), in the abduction of his son and requesting assistance in establishing his whereabouts.
36. On 30 June 2003 the first applicant wrote to the prosecutor’s office of the Chechen Republic alleging the involvement of the federal “power structures” in the abduction of his son and requesting that the investigation be resumed and measures taken to ensure the security of the applicants.
37. On 15 July 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that the investigation had again been resumed, that the investigation conducted previously had not been comprehensive and that instructions had been given as to which investigative steps were to be taken.
38. On 1 August 2003 the first applicant asked the district prosecutor’s office for an update on the progress of the investigation and requested them to transfer the case to a military prosecutor’s office.
39. On 15 August 2003 the Department of the FSB of the Chechen Republic informed the first applicant that they were taking all necessary steps to investigate the circumstances of Rizvan Ibragimov’s disappearance and to establish his whereabouts. It was stated that he had not been arrested by the FSB, that there had been no legal grounds for his arrest and that he was not suspected of any crime.
40. On 15 September 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that the investigation had been resumed on 12 September 2003.
41. On 24 December 2003 the first applicant complained to the prosecutor’s office of the Chechen Republic of inaction by the district prosecutor’s office and requested that the investigation be accelerated. On 13 January 2004 the prosecutor’s office of the Chechen Republic forwarded that request to the district prosecutor’s office and ordered them to consider it on the merits, to intensify the investigation and to provide the first applicant with a detailed written report on the progress in the case.
42. On 15 January 2004 the district prosecutor’s office informed the first applicant that his complaint had been included in the case file and that since 12 October 2003 the investigation had been adjourned as the identities of the perpetrators had not been established.
43. On 18 February 2004 the first applicant requested the district prosecutor’s office to take certain investigative measures. On 23 April 2004 they replied that those measures had already been taken before the first applicant’s request.
44. On 21 June 2004 the first applicant requested the district prosecutor’s office to allow him access to the investigation file.
45. On 4 July 2006 the district prosecutor’s office resumed the investigation.
46. On 11 September 2006 the applicants requested the district prosecutor’s office to update them on the progress of the investigation.
47. On 14 September 2006 the district prosecutor’s office informed the applicants that all requisite measures had been taken to solve the crime and that the investigation had been suspended on 4 August 2006.
48. On 29 December 2002 the first applicant complained of his son’s abduction to the district prosecutor’s office.
49. On 31 December 2002 the district prosecutor’s office forwarded the first applicant’s complaint for a preliminary inquiry to the ROVD.
50. On 28 January 2003 the district prosecutor’s office instituted criminal proceedings related to the disappearance of Rizvan Ibragimov under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned number 34005.
51. On 4 February 2003 the first applicant was granted victim status. He was questioned on several occasions and submitted that on the night of 29 December 2002 unknown masked men armed with machine guns had entered his house and kidnapped his son.
52. Between 28 March 2003 and 11 September 2004 the investigation in case no. 34005 was suspended three times for failure to identify those responsible and then resumed. In particular, it was resumed on 7 May 2003. The first applicant was informed promptly of all decisions.
53. On 4 February 2003 the district prosecutor’s office questioned the second applicant as a witness. She submitted that at about 2 a.m. on 29 December 2002 armed men in masks had ordered her son to get ready and taken him away. She had not seen any cars or APCs.
54. On 15 April 2003 the prosecutor’s office of the Chechen Republic received a complaint by the first applicant of the district prosecutor’s office’s inaction, which stated that the unknown armed persons had arrived in two APCs, two Ural vehicles and a UAZ vehicle.
55. On 15 May 2003 Ms D., the applicants’ neighbour, questioned as a witness, submitted that at about 3 a.m. on the night of 28 to 29 December 2002 she had seen from her window around forty armed men in camouflage uniforms and masks who were escorting a man whose arms were tied. She had not seen any vehicles.
56. The district prosecutor’s office repeatedly requested information on Rizvan Ibragimov’s abduction from various law-enforcement agencies. On 28 February 2003 the Department of the FSB of the Chechen Republic replied that Rizvan Ibragimov had not been arrested by the FSB and no criminal proceedings against him had been instituted. The military commander of the Urus-Martan District and various branches of the Ministry of Interior of the Chechen Republic submitted that their servicemen had not arrested Rizvan Ibragimov and that the latter had not been kept in any temporary detention facilities.
57. In the course of the investigation the perpetrators were not identified and the hypothesis of involvement of special forces’ servicemen in the crime was not proved.
58. On 11 October 2004 the district prosecutor’s office once again suspended the investigation.
59. On 4 July 2006 the district prosecutor’s office quashed the decision of 11 October 2004 and resumed the investigation due to the need to verify some newly-established facts. The proceedings were being supervised by the Prosecutor General’s Office.
60. On 5 July 2006 the district prosecutor’s office questioned the third, fifth and sixth applicants. They submitted that on the night of 28 to 29 December 2002 they had seen five armed men in camouflage uniforms and masks who had taken their brother away. They had not heard any APCs.
61. On 5 July 2006 the district prosecutor’s office dismissed the applicants’ request to institute criminal proceedings in relation to the events of 29 December 2002 under Article 139 § 2 (unlawful violent intrusion into one’s dwelling) for expiry of the statutory limitation period.
62. On 7 July 2006 the local administration of Urus-Martan informed the district prosecutor’s office that there had never been any street named “Beregovaya” in the town of Urus-Martan and that the first applicant resided at 26 Bezymyannaya Street .
63. Despite specific requests by the Court the Government did not disclose most of the contents of criminal case no. 34005, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of several notifications to the relatives of the suspension and resumption of the proceedings. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning witnesses or other participants in criminal proceedings.
64. On 27 June or July 2004 (the exact date was disputed between the parties) the first applicant brought proceedings before the Urus-Martan Town Court (“the town court”) challenging the failure on the part of the district prosecutor’s office to carry out the investigation and requested that the investigative measures be carried out and that he be allowed access to the investigation file.
65. According to the Government, on 19 August 2004 a lawyer lodged on the first applicant’s behalf a similar complaint with the town court.
66. On 27 September 2004 the town court found that the investigation had already been resumed on 11 September 2004 and dismissed the first applicant’s complaint of the district prosecutor’s office’s inactivity. As for the alleged lack of access to the case file, the town court found that the right to have access to the materials of a criminal case file did not arise before the completion of the investigation.
67. On 8 October 2004 the first applicant appealed to the Supreme Court of the Chechen Republic, which upheld the town court’s judgment on 3 November 2004.
68. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-97016
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: WOJCIECH PIECHOWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Wojciech Piechowicz, is a Polish national who was born in 1978 and is currently detained in Włodawa Prison. The Polish Government (“the Government”) were represented by their Agent, 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 9 February 2005 the applicant was arrested by the police on suspicion of robbery of a jewellery store together with three other persons.
On 10 February 2005 the Lublin District Court remanded him in custody. It relied on the reasonable suspicion that he had committed the offence in question and the need to secure the proper conduct of the investigation. It referred to the likelihood of a severe prison sentence being imposed on him.
On 5 May 2005 the Lublin Regional Court extended the applicant’s detention until 9 August 2005 relying on the original grounds given. It further made references to the actions already taken in the investigation and indicated the evidence that still had to be taken. The court also found that there were no special grounds, as specified in Article 259 § 1 of the Code of Criminal Procedure, that would justify lifting the detention and imposing a less severe measure.
The applicant’s detention was subsequently extended on 2 August and 2 November 2005 and 13 February, 19 April, 29 June, 8 September and 21 November 2006. The court referred to the grounds for detention listed in the previous decisions. The applicant did not appeal against any of the decisions.
On 25 November 2005 a bill of indictment was filed with the Lublin Regional Court against the applicant and three accomplices. It comprised of charges of six offences. The prosecutor requested that twenty-two witnesses be heard and statements from 432 witnesses read out. Further, he stressed that an extensive body of evidence consisting, inter alia, of seventy-nine documents, had to be considered.
On 7 February 2007 the Lublin Court of Appeal, on an application from the trial court, extended the applicant’s detention until 30 April 2007. The court relied on a strong suspicion that the applicant had committed the offences in question, which was supported by evidence from witnesses and expert reports. It considered that the severity of the anticipated penalty could by itself be a sufficient ground for continuing the detention in order to secure the proper course of the proceedings.
Upon an appeal by the applicant, filed on an unspecified date, the Lublin Court of Appeal upheld that decision on 28 February 2007.
On 10 March 2007 the Lublin Regional Court convicted the applicant as charged and sentenced him to ten years’ imprisonment. The applicant appealed. His detention was subsequently further extended on 9 March, 29 August, 3 October and 6 December 2007 and 27 February 2008.
On 15 May 2008 the Lublin Court of Appeal upheld the first-instance judgment. It appears that the applicant failed to lodge a cassation appeal, despite its availability.
On 15 January 2007 the applicant lodged a written complaint concerning the proceedings in question. The court treated it as a complaint under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
At a hearing of 26 January 2007 the applicant declared that he did not wish to lodge a complaint about a breach of the right to a trial within a reasonable time but a complaint about alleged shortcomings of the pending proceedings. Hence his complaint was not examined under the 2004 Act.
The relevant domestic law and practice concerning the imposition of detention during judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) 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.


ITEMID: 001-89008
LANGUAGEISOCODE: ENG
RESPONDENT: ISL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BERGSSON AND OTHERS v. ICELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants are Mr Þorlákur Örn Bergsson (born in 1952), Mr Guðjón Bergsson (1939), Mrs Anna Sigríður Jóhannsdóttir (1949) of Hverhamri, Mr Knútur Bruun (1935), Mrs Ásdis Gunnarsdóttir (1944), Mr Sigurður Magnússon (1948), Mr Sigríður Stefánsdóttir (1916), Mr Sigurjón Gunnarsson (1943) and Mr Gunnar Sigurjónsson (1966). They are the respective owners of estates described as Hof, Hof I and II and of Litla-Hof, located in Öræfum, and of Hverhamri in Hveragerði. They claim to be the owners of an estate named Fjall, which is the subject of their application under the Convention.
A further applicant is Kvísker ehf. (Ltd.), a private limited-liability company, incorporated under the laws of Iceland, registered at Kvisker, in Öræfum, and whose executive director is Mr Gisli Sigurjón Jónsson (1955), Öræfum. The applicant company's complaints under the Convention relate to its claim to be the owner of ½ of an estate named Breiðamörk.
The applicants are represented by Mr Ragnar Aðalsteinsson and Mr Ólafur Björnsson, who are both lawyers practising in Selfoss.
On 1 July 1998 a new Act (no. 58/1998) on public lands and the determination of the boundaries of private land, public land and upland ranges (hereinafter referred to as the “1998 Act”), entered into force. Prior to this all land that had not been subject to private ownership was regarded as res nullius. The purpose of the 1998 Act was to change this. Thus, its section 2 provided that the Icelandic State was the sole owner of any land which was not the private property of any natural or legal person. Moreover, a Wasteland Commission (Óbyggðanefnd) was established (section 6), vested with powers to determine the boundaries between land that was regarded as the private property of a natural or legal person and land that was not, and was therefore the property of the State. In the latter event the Commission would also rule on whether a natural or legal person had any rights of use in respect of the land in question.
On 13 July 2000 the Wasteland Commission announced its intention to examine a certain area within the commune of Hornafjörður. Subsequently the Minister of Finance published the claims of the Icelandic State to all land that the Minister of Finance regarded as not being private property owned by any natural or legal person.
In the proceedings before the Wasteland Commission, the applicants claimed that they were the legal owners of the disputed land, arguing:
(i) that the disputed land was their property and was protected by Article 72 of the Icelandic Constitution and Article 1 of Protocol No. 1 to the Convention;
(ii) that the disputed land had been the private property of individuals since the settlement of Iceland in the 9th and 10th centuries and therefore the conditions of section 2 of the 1998 Act had not been fulfilled;
(iii) that their ownership, or the ownership of former owners, had never been challenged by the Icelandic State or others. On the contrary, before the entry into force of the 1998 Act, the Icelandic State had on several occasions treated the applicants and former owners of the disputed land as being the private owners of the land in question; in particular they had paid taxes in respect of their properties and they held written title deeds for the properties which had been acknowledged by the Icelandic State;
(iv) that they and the former owners of the land had for many centuries made use of the disputed land by all feasible means at any given time, e.g. herding sheep out on to the disputed land to graze.
In the alternative, the applicants relied on adverse possession as a means of establishing their ownership.
In the further alternative the applicants called for a declaratory decision to the effect that they owned the grazing rights to the disputed land.
On 14 November 2003 the Wasteland Commission found in favour of the applicants and held that the boundaries of public lands and private lands in the region should follow the edge of the glacier Vatnajökull in its state on the entry into force of the 1998 Act and that all land above this limit should be considered as public land and all land below as private land.
Subsequently, the Icelandic State, appealed against the Wasteland Commission's decision to the District Court of Austurland (Héraðsdómur Austurlands), claiming that the disputed land should be regarded as State property in accordance with section 2 of the 1998 Act.
In a judgment of 26 July 2005, the District Court upheld the Wasteland Commission's decision. Although it did not find it established that the applicants held direct title to the land at issue, the District Court was satisfied that they had fulfilled the conditions for adverse possession in respect of the land (section 2 of the Act No. 46/1905 on Adverse Possession).
The Icelandic State appealed against the District Court's judgment to the Supreme Court, which by a judgment of 11 May 2006 overturned the District Court's finding that the applicants had acquired ownership of the land in question by way of adverse possession, but held that they possessed the right to customary use of grazing land in the disputed areas (section 5 of the 1998 Act).
In its examination of the case, the Supreme Court relied on its earlier case-law expounded in a judgment of 21 October 2004 (case No. 48/2004). According to that judgment, it was not in the power of land owners to use a boundary deed to extend their land or other rights; a boundary deed was therefore not in itself sufficient but had to be supported by other evidence in order for ownership to be established.
Thus, in relation to one group of respondents before it (other than the applicants), the Supreme Court found that their title to a specific area of disputed land, in addition to being supported by a boundary deed from 1890, was corroborated by certain public acts. This included a deed of conveyance, issued by owners to the Minister for Education in 1966 in connection with the creation of a national park and the determination of boundaries for division of land by an arbitration tribunal in 1969, according to which a large part of the disputed land was allocated to the owners (and where the State, as a party, had not made objections to title). It also comprised a declaration of 1987 by the Council of Nature Conservation in connection with the establishment of a new farm in the area. The Supreme Court therefore upheld the District Court's finding that the respondents in question should be exempted from the State's claim in respect of the relevant land.
As regards the first nine applicants' claim regarding the farm Fjall, the Supreme Court extensively considered a number of sources, notably accounts in the Book of Settlements (Landnámabók - old Icelandic manuscript describing in detail the settlement of Iceland by the Norse in the 9th and 10th centuries A.D), chartularies of Klemens Church at Hof from 1343 and 1570; entries made in 1641, 1706 and 1748 in episcopal visitations books; the Farm Register of a Mr Ísleifur Einarsson of 1709, Farm Register Jarðatal á Íslandi by a Mr Jón Johnsen, published in 1847; the book of records of the land assessors in the Skaftafell counties dating from 1849; an official declaration of title by the owners of Hof dated 7 April 1851, the protest by the owners of the farm Fell in Suðursveit and the ensuing settlement of 8 June 1854 between the owners of Hof and Fell respectively.
The Supreme Court also took note of the records of the Real Estate Assessment Committee in Austur Skaftafellssýsla from 1916 stating the following about Hof:
“The farm owns grazing land [Upprekstrarland]: Breiðamerkurfjall, which is far away, rising up from central Breiðamerkursandur, surrounded by glacier. ... “The farm owns driftage shores: The shores of Hof and Tangi, and in addition the shore of Fjall below Breiðamerkursandur.”
In addition, the Supreme Court had regard to a boundary deed of 1922 and reasoned as follows:
“A boundary deed was then prepared for Hof on 15 July 1922, which stated, inter alia, the following: 'Furthermore the farm owns all of Breiðamerkurfjall and land on the Breiðármörk Sand, in the west the boundaries are as follows: The top of the peak Miðaftanstindur on Breiðamerkurfjall to bear on the cleft in Eiðnatindur on the same mountain.' It also says: 'The farm owns these shores: ... The shore of Fjall between these boundaries: In the west: The top of the peak Miðaftanstindur on Breiðamerkurfjall shall bear on the cleft in Eiðnatindur on the said mountain. In the east: The higher mound of Mávabyggðir shall bear east on Múlahöfuð which is foremost to the east on Breiðamerkurfjall and the land boundaries shall be the same.' This boundary deed was endorsed as regards 'the shore and boundary between Tvísker and the land of Fjall' by an Ari Hálfdánarson, who at that time appears to have been the head of the Parish of Hofshreppur, together with two men who are said to be 'the owners of 5/6 of Kvísker' and by the said Ari 'as regards the eastern boundary between the lands of Fjall and Breiðamörk.'
In the case there are no further earlier or more recent officially registered sources of evidence concerning title to this land other than the last-mentioned boundary deed for Hof dating from 1922. The value of such sources as evidence is discussed earlier in this judgment as regards the boundaries of private land with other land, and the same must apply to the value of boundary deeds as evidence of title to land. In assessing whether any other factors have emerged which could support the claim of the respondents in this part of the case to Fjall, it should be noted that in their pleadings before the court it was maintained that the church at Hof was from the beginning a farm-owned church and therefore subject to the custodianship of the landowners, but that its possessions accrued to the farm no later than 1916, when the church as such became the possession of the congregation. As this was not contested by the appellant, equal account must be taken of the cited sources concerning the ownership rights of the Hof Church and the owners of the farm in the land of Fjall.
When the sources concerning the ownership rights to this land are considered it can be assumed from the cited chartularies for the Hof Church from the years 1343 and 1387 that it came into the possession of the farm of Fjall during this period and this may have occurred at about the time that the farm was abandoned, as surmised pursuant to the above. It can only be assumed from the phrasing of the earlier chartulary that direct ownership of the farm was involved. After the writing of this chartulary, however, almost two centuries passed until the next available source of evidence, Gíslamáldagi, was written. It includes no reference to the ownership by the church at Hof of the farm of Fjall, but it is specified that the church owned driftage and other easements from ancient times. The cited phrasing in the visitation book of Bishop Brynjólfur Sveinsson dating from 1641 can only be understood to mean that it is discussing only the easements of Hofskirkja in the land of Fjall, which, more specifically, included the littoral rights, together with grazing rights in Fjallsfit [the Fjall meadow] and Breiðamerkurfjall. The two later visitations, dating from 1706 and 1748, cite the earliest visitation record to the effect that Hofskirkja 'owns' Fjallsfit and Breiðamerkurfjall, in addition to littoral rights. In light of the fact that these are based on the substance of the earliest visitation record, which in this context referred to easements, it cannot be maintained that the later sources provide independent support for the direct ownership rights of the Church at Hof. In this context it must also be kept in mind that the rights are said to concern two delimited parts of the land together with the shore, not the land as a whole, as would have been most logical if the farm as such had been considered the property of the church. The same applies to the discussion of the abandoned farm of Fjall in the Farm Register of 1709, although it says that 'its entire property' accrued to the church at Hof, but that of this property only Breiðamerkurfjall remained, surrounded by glacier and of little use, together with Fjallsfit and Fjallsfjara [the Fjall meadow and shore]. The Farm Register also says of the farm Hof, that to it was attributed 'Fjall and Fjallsfit in the land of Breiðármörk', together with Fjallsfjara [the Fjall shore], but from the context it can only be surmised that 'fjall' [mountain] in that context referred to the mountain Breiðamerkurfjall. The Farm Register dating from 1847 referred to the fact that a Farm Register dating from 1805 referred to Fjall as 'an abandoned smallholding' of Hof. This account can hardly have any significant value as evidence when it is kept in mind that it is clear from the Farm Register of 1709 that houses and cultivated land at Fjall had at that time already disappeared and that use of other land was virtually non-existent, and from the available information it can only be surmised that the glacier advanced still further after that down to the end of the 19th century. When the owners of Hof publicly declared their rights of title in 1851, their rights to the land of Fjall were entered among easements, but their agreement with the owners of Fell in 1854 said that the former should 'enjoy the full use' of that land 'as far west as they trust themselves to stake a claim'. These last cited words are not consistent with the assumption that the discussion concerns the use of land which is subject to the direct ownership of the owners of Hof. Finally, it should be noted that in 1890, the boundary deed for Kvísker was endorsed for the owners of Hof as regards the approval of littoral boundaries, but not the boundaries of Kvísker and Fjall, and that a real estate assessment in 1916 refers only to the grazing rights [uppresktrarrétt]of Hof on Breiðamerkurfjall and the littoral rights to Fjallsfjara, as in the land assessment of 1849.
Even though it can be regarded as adequately demonstrated that the farm Fjall came into the possession of the church at Hof during the period between 1343 and 1387, there is in general principle no firm evidence of anything other than easements belonging to the church or the owners of Hof after that time until a boundary deed was prepared for Hof in 1922. The possibility cannot be excluded that in the period from 1387 to 1570 the church may have divested itself of the farm Fjall while retaining littoral and grazing rights. Whatever the case may be, sources dating from about 1570 down to the third decade of the last century can only be understood to mean that the owners of Hof themselves, for a number of centuries, considered themselves only to possess rights of use to the land of Fjall and ceased to assume direct ownership of the land and thereby relinquished it, if indeed the ownership was not disposed of in another manner. For this reason, the boundary deed of 15 July 1922 cannot be said to provide sound evidence of the direct title of the respondents in this part of the case to the land in question. There is no evidence to support the contention that these respondents had any possession of the land of Fjall which could result in their direct title through adverse possession. Since no other parties have made any claim to such rights to the land, and nothing in the documents of the case gives any indication that any such claim could be made by anyone, it must be assumed that pursuant to section 1 of Act No. 58/1998 the land is public land subject, however, to the customary grazing and littoral use by the respondents of the land in accordance with section 5 of the same Act. As regards the boundaries of the public land, this is laid down in the adjudication, but in light of the limited rights of use declared in favour of the respondents, there is no reason to specify its boundary with the public land on the glacier.”
As regards the tenth applicant's claim regarding half of the farm of Breiðamörk, the Supreme Court again extensively assessed the evidence before it, including a number of items, notably the Njáls saga (Icelandic epic from the 13th century) containing the earliest accounts of habitation at Breiðamörk, the Book of Settlements, chartularies of the church of Maríukirkja at Breiðá from 1343 and 1387. The Supreme Court further observed that one half of the farm had apparently accrued to the King, according to a judgment of the court of law, Lögrétta, in 1646. Regard was also had to a Farm Register of a Mr Ísleifur Einarsson of 1709, another Farm Register of 1805, a Farm Register of a Mr Jón Johnsen of 1847, records of the land assessors in the counties of Skaftafell dating from 1849; the above-mentioned public declaration made by owners of Hof on 7 April 1851 and the subsequent settlement of 8 June 1854, a deed of conveyance of 1670 and another such deed of 7 March 1857 issued on behalf of the owners of “Skálholt Church and lands by a Mr Vilhjálmur Finsen (who held the combined offices of Country and County Sherriff [Land- og bæjarfógeti]); and a deed of conveyance of 31 May 1891.
The Supreme Court went on:
“Included in the case documents is a boundary record for the farm Fell, prepared by the aforementioned Eyjólfur on 1 May 1922, where boundaries and shore boundaries in the west were described as being located on a further specified parish boundary. These are the same boundaries as those referred to as the eastern boundary of the farm Breiðármörk. This boundary record was not endorsed as regards the boundaries with Breiðármörk. Also included in the case documents is a 'boundary record between Fell in the Parish of Borgarhöfn and Breiðamörk in the Parish of Hof', which is signed on 13 May 1922 by the heads of both parishes, Ari Hálfdanarson and Stefán Jónsson. In this record the boundary of land and shore between Fell and Breiðármörk is once again described in the same manner, and it is stated that the boundaries of the two parishes are also the same. This document is not endorsed by any other parties.
A deed of conveyance was issued on 26 February 1937 for half of Breiðármörk and half of the Breiðármörk shore, which includes the following passage: 'In that I, the undersigned, former commissioner Björgvin Vigfússon of Efri-Hvoll, have since 1910, without objection, collected rent from the land of half of Breiðamörk in the Parish of Hof in the County of Austur-Skaftafellssýsla, as it was in ancient times, as well as rent from half of the Breiðamörk shore, which is nine hundred [i.e. 1080] fathoms in length – from the tenant, Björn Pálsson at Kvísker, an agreement has been reached between myself and him last year that he should come into possession of this land, together with half of the shore of Breiðármörk with driftage rights, for the sum of 100 – one hundred – krónur.' The persons who appear to have derived their rights from Björn Pálsson issued on 20 June 2002 a deed of conveyance for the same property to the defendant Kvísker ehf.
According to the documents of the case, the cited boundary records dating from 1922 were officially registered, as well as the deeds of conveyance dating from 1937 and 2002, on which the defendant Kvísker ehf. bases its rights. From the ruling of the Wasteland Commission it can be inferred that the cited deed of conveyance to Eyjólfur Runólfsson for the shares of his cousins in the Breiðamerkur shore was officially registered with a proviso relating to title rights to the sold property. It can also be inferred that the descendants of Eyjólfur [Runólfsson] and the parties deriving their rights from him officially registered certain declarations concerning rights to the Breiðamörk shore, and to some extent the land of Breiðármörk, in the years from 1933 to 1997, but these documents were variously registered with a proviso concerning defects in rights of title or without such provisos. Evidence of this is not available in the case in other respects. The respondents in this part of the case, other than Kvísker ehf., as recounted earlier, apparently derive their rights from Eyjólfur Runólfsson. This has not been specifically contested by the appellant, even though there is no evidence in the case in support of this contention. The respondents have also submitted documents confirming that they are registered as the owners of the Breiðamörk shore in the Iceland Land Registry.
Looking at the evidence concerning the title to the land of Breiðármörk it is clear that the farm was for a long time a possession of the Church and that it was administered by the Bishop at Skálholt until it was sold in 1525. On that sale, a part of the littoral rights relating to major driftage was separated from the land and retained for the Episcopal See at Skálholt, while minor driftage remained attached to the farm. Before the farm was abandoned in 1698, half of it had become a possession of the king, while the other half was referred to as a farmers' holding. The share of the king is believed to have been sold in 1836, but there is no record of who might have come into possession of it. From the mid-19th century there are records that a half share of Breiðármörk was believed to be attached to Hof, and it appears to have been surmised that his part was previously the king's possession. A public declaration of title to Hof dating from 1851, however, referred to the right to Breiðármörk only in the enumeration of easements. In a settlement made in 1854 for the resolution of a dispute resulting from this declaration of title, the boundaries between the land of Breiðármörk and the farm Fell in Suðursveit were determined. Since the time of the conclusion of this settlement there is no evidence that the owners of Hof claimed title to the land or interests in the land. No evidence has been submitted in the case to indicate that the owners of Fell felt that by this settlement they came into possession of a part of Breiðármörk from the owners of Hof, and indeed later sources do not indicate that the former conducted themselves as if they were the owners of the land in part or in full. There is therefore no further evidence in the case concerning the fate of the half of the land which purportedly belonged to the king until the year 1836.
In 1857, the owners of Fell, the Reverend Þorsteinn Einarsson and Gísli Þorsteinsson purchased the major driftage rights from the Church at Skálholt. It must be assumed that Eyjólfur Runólfsson later, by contract with the descendants of Þorsteinn Einarsson and Gísli Þorsteinsson in the closing decade of the 19th century, came into possession of the major driftage rights, but there is no evidence that he thereby acquired any other rights to the land of Breiðármörk, as it is clear from the letter from Einar Gíslason of 31 March 1876 that the attempts of Gísli Þorsteinsson to purchase such rights several decades earlier had proved fruitless. The respondents in this part of the case, other than Kvísker ehf., derive their rights from Eyjólfur Runólfsson. Accordingly, they cannot claim the rights to the land of Breiðármörk other than a part of the Breiðamörk shore, and it appears to be undisputed in the case that this corresponds to a half share.
It then remains to be resolved what became of the rights to the half of Breiðármörk which apparently continued to be farmer-owned after the other half accrued to the king. Following the sale of the major driftage rights from the Church at Skálholt, where Vilhjálmur Finsen, Country and County Sherriff, had represented the seller, he recounted in the letter cited above to the Reverend Þorsteinn Einarsson of 6 September 1858 that he could not provide 'the least information' who could have owned half of the land against the king, then or later. As recounted earlier, it is specified in the land assessment of 1804-1805 that this half was owned by Gísli Halldórsson. From the cited letter from Einar Gíslason of 31 March 1876, it does not appear to have been regarded as certain that Gísli did not subsequently dispose of this share, but, on the other hand, it can be inferred from the letter that his descendants still believed themselves to own rights to the land, which were referred to as an easement. There is no further information as to who these descendants were. Björgvin Vigfússon, who issued the cited deed of conveyance to the owners of Kvísker on 26 February 1937 for half of the land of Breiðármörk and half of the shore of Breiðármörk, apparently was Einar Gíslason's son in law. There is no evidence available that Björgvin owned any rights to the sold property, nor that his wife, who was not involved in the contract, could in this respect have had any precedence over other descendants of Gísli Halldórsson. Accordingly, this proof of title, to which the defendant Kvísker ehf. traces its rights, is entirely untenable. For all of these reasons it cannot be seen that anyone can claim direct title to this half of the Breiðármörk, and there is no evidence to support the contention that the owners of Kvísker must be regarded as having had the control of it which could lead to such ownership by adverse possession. The appellant, on the other hand, has not protested that the defendant, Kvísker ehf., and the parties from whom Kvísker ehf. derives its right, have had the use of half of the Breiðamörk shoreline in addition to using the land of Breiðármörk for grazing for the time required to acquire ownership of these rights by adverse possession. It must therefore be assumed that the defendant owns such rights of use to the land, as there is no evidence that any other parties could have earned such rights.
According to the above, and with reference to Article 1 of Act No. 58/1998, the land of Breiðármörk is public land, but subject to the rights of the defendant Kvísker ehf. to its customary use of the land as grazing land and subject to the littoral rights of all the respondents, as provided in Article 5 of the same Act. As regards the delimitation of the public land, this is laid down in the adjudication, but in light of the limited rights of use declared for the respondents, there is no reason to specify its boundary with the public land on the glacier.”
Article 72 of the Constitution of the Republic of Iceland no. 33, 17 June 1944, as amended on 5 July 1995, stated:
“The right of private ownership shall be inviolate. No one may be obliged to surrender his property unless required by public interests. Such a measure shall be provided for by law, and full compensation shall be paid.
The right of foreign parties to own real property interests or shares in business enterprises in Iceland may be limited by law.”
The 1998 Act contained the following provisions that were relevant:
Section 1
“In this legislation the follow definitions apply:
Private land: An area of land subject to the right of private ownership, to which the owner has all regular property rights within the limits imposed by the law at any time.
Public land: An area of land outside private lands, even though private individuals or legal persons may enjoy limited rights of ownership there.
Upland range: An area of land in an uninhabited area, which has generally been used as summer pasture for livestock.”
Section 2
“In public lands, the Icelandic State is the owner of the land and of all entitlements and natural harvests from it that are not governed by property law.
The Prime Minister is responsible for matters involving public lands which are not assigned to other ministries by law.”
Section 5
“Those who have utilised land within a public land area as pasture for livestock or had other traditional use of it which is attached to the ownership of upland ranges shall retain such rights in accordance with the provisions of law in that respect.”
The same applies to other rights which are established.”
Section 7
“The role of the Wasteland Commission shall be:
a. To examine and rule on which land constitutes public lands, and where their boundaries with private lands lie.
b. To rule on the boundaries of any part of public land which is utilised as an upland range.
c. To rule on property rights within public lands.”
The 1919 Act (which replaced the Act on land boundaries etc. no. 5/1882), as amended by Act no. 92/1991, provided in relevant parts:
Section 2
“The owner or administrator of a land shall prepare a clear record of boundaries to the best of his knowledge. The record shall specify easements and benefits on the land, as well as any attached easements and benefits in the land of others. This boundary description shall be presented to anyone owning or administering land adjacent to his land, as well as parties to the easements and benefits pursuant to the above. They shall enter their consent on the boundary record unless they consider it to be wrong, in which case it shall be stated if any of them refuses to grant his consent. Thereafter the boundary record shall be delivered to the head of the parish together with a registration and stamp tax. The head of the parish shall ascertain whether all the parties have entered their consent and note this in the record. The head of the parish shall promptly send the record to the Commissioner for official registration.
If a boundary record has been lawfully prepared and registered prior to the entry into force of this Act, the record need not be prepared again, provided that the boundaries then established were clear and undisputed.”
Section 6
“Immediately on the entry into force of this Act, [Commissioners], in their respective districts, shall ascertain whether the boundary records there have been officially registered. If it is revealed that boundary records have not been officially registered, or the consent of any parties is missing on an officially recorded boundary record, the [Commissioner] shall invite the land owner, or his administrator, to prepare a boundary record within a specified time and have it officially registered pursuant to this Act.
Commissioners and heads of parishes shall monitor compliance with the provisions of this Act concerning the establishment of boundaries, boundary records and maintenance of boundaries. If a parish head becomes aware of any discrepancies in this regard he shall notify the Commissioner.
When a Commissioner receives notification pursuant to Paragraph 2, he shall summon the person or persons involved and instruct them to make amends. If it is revealed that there is a dispute concerning boundaries the Commissioner shall seek to achieve a reconciliation of the dispute. If the lands subject to uncertainty as regards boundaries are located on the borders of Commissioners' districts, or the boundaries lie through more than one district, the Minister of Justice shall decide which of them shall undertake the task.”


ITEMID: 001-61379
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF CEGIELSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1933 and lives in Bielsko-Biała, Poland.
5. In 1993 the Szczecin Regional Court annulled the decision given in 1947 by the Szczecin Military Court which had convicted the applicant’s father and had sentenced him to imprisonment and the forfeiture of his property.
6. On 25 September 1995 the Szczecin Regional Court (Criminal Chamber) awarded the applicant compensation for his father’s imprisonment.
7. On 20 July 1995 the applicant initiated before the Szczecin Regional Court (Sąd Wojwódzki w Szczecinie) civil proceedings against the State Treasury. He claimed compensation for the forfeited estate and farm machinery.
8. On 25 September 1995, upon the trial court’s request, the applicant called as defendant the State Treasury represented by the Bydgoszcz Regional Court.
9. In January 1996 the trial court requested the Criminal Chamber of the same court to provide the applicant’s case-file. It received the file in September 1996.
10. On 10 February 1999 the trial court held the first hearing at which it heard the applicant. It further decided that three witnesses would be heard by the Myslibórz District Court.
11. On 23 March and 13 April 1999 the Myslibórz District Court held hearings at which it heard the witnesses.
12. On 4 August 1999 the applicant applied to the trial court to give a partial judgment relating only to the pecuniary damage sustained by his father in respect of loss of income which, according to him, was fully justified by the provided documents.
13. On 14 February 2000 the trial court joined as a co-defendant the Minister of Finance. Three months later the trial court joined as another codefendant the Minister of the Treasury.
14. On 6 September 2000 the court held hearing at which it asked for an expert opinion concerning the value of the farm machinery.
15. On 8 May 2001 the expert opinion was submitted to the trial court.
16. On 18 May 2001 the court requested another expert opinion concerning the value of the land and buildings.
17. On 17 October 2001 the trial court held a hearing.
18. On 29 October 2001 the Szczecin Regional Court gave a partial judgment. It awarded the applicant PLN 21,105 as compensation for the confiscated machinery. The remaining part of the action was to be examined at the later date. The Minister of the Treasury appealed against this judgment.
19. On 21 May 2002 the Poznań Court of Appeal dismissed the Minister’s appeal against the Szczecin Regional Court’s partial judgment. The Minister of the Treasury lodged a cassation appeal with the Supreme Court. This part of the proceedings is pending before the Supreme Court.
20. The proceedings relating to the part of the applicant’s action which was not examined by the Szczecin Regional Court in its partial judgment, are still pending before the trial court.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70092
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BEKIR YILDIZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 5. The applicant was born in 1964 and lives in Ankara.
6. The applicant was the mayor of the Sincan District in Ankara at the time of the events. In January 1997, the Culture and Education Department of the Sincan District Council, which was in charge of organising public activities and events during religious and national days, prepared a thirty-day programme for the month of Ramadan. The draft programme was submitted to the applicant for his approval. Upon his authorisation, the organising committee started the necessary preparations.
7. One of the events, which had been foreseen for 31 January 1997, was called the “Jerusalem Night”. The aim of this event was to protest against the genocide and oppression of Muslims in Israel and Palestine. The Ambassador to Iran and a journalist called Nureddin Şirin were invited to the event as speakers. Furthermore, a five-minute play was written for that evening. The play took the form of a conversation between a father and his son about life in Palestine and the struggle of the Palestinian people.
8. The event was announced months in advance and representatives of several embassies as well as important personalities living in the district were invited. The meeting hall was decorated with posters of martyrs who had given their lives for the liberation of Jerusalem. The applicant made the opening speech.
9. On 6 February 1997 the applicant was taken into police custody. He was accused of disseminating propaganda in support of an armed illegal organisation, namely the Hezbollah, and of provoking hatred and hostility on the basis of a distinction between races and regions.
10. In his statement taken at the police station, the applicant stated that the “Jerusalem Night” was organised as part of a thirty-day programme during the month of Ramadan and it was an activity of the Sincan District Council. He explained that the posters portrayed Muslim leaders who had given their lives for the liberation of Jerusalem. The applicant denied having connections with any illegal organisation.
11. On 13 February 1997 the applicant was brought before the public prosecutor. During his questioning, he repeated the statements he had made at the police station. He pointed out that his speech did not contain any elements that would provoke hatred amongst those who did not wear headscarves.
12. On the same day the applicant was brought before the investigating judge attached to the Ankara State Security Court. In his statement taken by the investigating judge, the applicant explained that he supported the secular system and did not approve of the regime in Iran. He stated that he had no connections with any terrorist organisation. He was subsequently placed in detention on remand.
13. In an indictment dated 7 March 1997, the public prosecutor attached to the Ankara State Security Court initiated criminal proceedings against the applicant. It was alleged that he had disseminated propaganda in support of an armed, illegal organisation and that his actions had amounted to incitement to hatred and hostility on the basis of distinctions between races and regions. The prosecution called for the applicant to be sentenced pursuant to Articles 169 and 312 of the Criminal Code and Article 5 of the Prevention of Terrorism Act.
14. Before the Ankara State Security Court, which was composed of three judges including a military judge, the applicant contested the charges against him. He argued that the “Jerusalem night” was part of the social activities of the Sincan District Council and that he did not intend to incite people to hatred and enmity. He had emphasised the importance of unity and solidarity during his speech. He stated that he was joking when he said that the Shariah would be forcibly injected into secularists.
15. On 2 July 1997 the applicant was released from detention on remand pending trial.
16. Before delivering its judgment, the Ankara State Security Court firstly established the status of Hezbollah in Turkey. In this respect, it relied on a report prepared by the National Intelligence Organisation (MIT), dated 30 April 1997, which referred to the structure and goals of Hezbollah. The court further based itself on another report prepared by the General Directorate of Security, dated 24 October 1996. In this report, it was stated that Hezbollah had been involved in many terrorist attacks throughout Turkey. Finally, the court examined a report from a book called “the Eurasia File” (Avrasya Dosyası), which was published by the International Relations and Strategic Studies Centre. In the light of all the evidence before it, the court rejected the applicant's assertions that Hezbollah was not active in Turkey and that it was solely a national movement which operated in Palestine.
17. On 15 October 1997 the Ankara State Security Court concluded that the applicant had aided and abetted a terrorist organisation, by making propaganda for it and by inciting persons to hatred and enmity by discriminating against class, religion and region. It found the applicant guilty as charged and sentenced him to four years and seven months' imprisonment. The court further disbarred the applicant from public service for three years.
18. The applicant appealed to the Court of Cassation. In his submissions to the Court of Cassation, the applicant defended himself against the charge of incitement to hatred and enmity, contrary to Article 312 of the Criminal Code, and argued that he had called for unity and solidarity in his speech.
19. On 21 September 1998 the Court of Cassation dismissed the applicant's appeal, upholding the Ankara State Security Court's assessment of evidence and its reasons for rejecting the applicant's defence.
20. A full description of the domestic law may be found in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77757
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SAHIN AND SURGEC v. TURKEY
IMPORTANCE: 4
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 6. The applicants were born in 1979 and 1973 respectively and were detained in Malatya prison at the time of the lodging of their applications with the Court.
7. On 1 November 2001 the applicants were arrested and taken into police custody on suspicion of their involvement in the activities of the PKK (The Kurdistan Workers’ Party). On 9 November 2001 the Tunceli Magistrates’ Court ordered their remand in custody.
8. The public prosecutor at the Malatya State Security Court in his indictment, dated 7 December 2001, accused the first applicant of membership of the PKK and the second applicant of aiding and abetting that organisation. The charges were brought under Articles 168 and 169 of the Criminal Code and Article 5 of Law no. 3713.
9. On 10 September 2002 the Malatya State Security Court convicted the applicants as charged and sentenced the first applicant to twelve years and six months’ imprisonment and the second applicant to three years and nine months’ imprisonment and a fine of 177,957,000 Turkish liras.
10. The parties did not submit any documents pertaining to the outcome of the criminal proceedings. However, in their submissions on just satisfaction, dated 21 July 2005, the applicants stated that the Malatya State Security Court, pursuant to Law no. 4959 of 29 July 2003 on rehabilitation (topluma kazandırma), had decided not to sentence the applicants (ceza tertibi) and suspended the proceedings. They further submitted that this decision was upheld by the Court of Cassation.
11. A description of the relevant domestic law at the material time can be found in Daş v. Turkey judgment (no. 74411/01, § 18, 8 November 2005).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-75290
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: BULUT v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Hayriye Bulut, Emin Çelik and Zora Demirhan, are Turkish nationals. They are represented before the Court by Mr Mahmut Vefa, a lawyer practising in Diyarbakır.
Until 1994 the applicants all lived in Akçabudak and Kabakaya villages, in the district of Lice in the Diyarbakır province, where they own property.
It is to be noted that Zora Demirhan did not submit any certificate to the Court attesting his ownership of the property in Akçabudak.
In May 1994 security forces forcibly evacuated Akçabudak and Kabakaya on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Diyarbakır where they currently live. Following the evacuation of their villages, the applicants filed petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces. However, the Public Prosecutor did not commence an investigation into the applicants’ allegations.
On unspecified dates, the applicants filed petitions with the offices of the Governor of the state-of-emergency region, the Diyarbakır Governor, the Lice District Governor, the Ministry of Agriculture and Rural Affairs, the military authorities in the region and the President of the Republic and requested permission to return to their village. They further requested, as an alternative to permission to return, that they be allowed to cultivate their lands. The administrative authorities sent a reply to the mayor of Akçabudak and rejected his request of permission to return to his village.
It is to be noted that the applicants failed to submit a copy of these petitions to the Court.
On 9 September 2001 the Commander of the District Gendarmerie Headquarters in Lice sent letters to the mayors of the villages in Lice and informed them that access to some villages of Lice would only be possible during daytime in summer. The Commander further stated that the villagers would be allowed to work in their farms but would not be allowed to spend the nights in their village. It was noted that permission for access to village should be sought from local gendarmerie stations. The applicants’ villages, Akçabudak and Kabakaya, were not listed among the villages to which access would be allowed under aforementioned conditions.
On 11 September 2001 the 2nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office in Lice informing him that the military operations against terrorists would continue to be carried out in the district. The commander requested the District Governor’s office to warn the inhabitants in the region that the security forces would not be responsible for any casualties that might occur in the course of the operations.
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: 001-59605
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF RUTTEN v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 9. On 13 August 1992, following proceedings on appeal, the Arnhem Court of Appeal (Gerechtshof) convicted the applicant of attempted homicide and sentenced him to eight months’ imprisonment with deduction of the time spent in pre-trial detention. In addition, the Court of Appeal imposed a TBS order (terbeschikkingstelling) with confinement to a secure institution (met bevel tot verpleging van overheidswege). The TBS order took effect on 4 September 1992 and expired two years later, on 4 September 1994.
10. By decision of 9 September 1994, the Arnhem Regional Court (Arrondissementsrechtbank) of Arnhem prolonged the TBS order by one year. It was consequently due to expire on 4 September 1995.
11. On 18 July 1995 the public prosecutor filed a request for a further prolongation with the Arnhem Regional Court, where it was registered on 19 July 1995. This prolongation request was based on an advice of 6 July 1995 by the secure institution where the applicant was being treated. In this advice, a prolongation of the TBS order was recommended because the applicant was still considered capable of being seriously aggressive towards other people.
12. The Regional Court examined the request in the course of a hearing held on 22 September 1995. The applicant submitted that the public prosecutor’s request for a prolongation should be declared inadmissible since the Regional Court was no longer competent to prolong his TBS order as it had expired on 4 September 1995. The applicant further submitted that the Regional Court had failed to comply with Article 509t of the Code of Criminal Procedure (Wetboek van Strafvordering; hereinafter referred to as “CCP”) which provides that a decision on a request for prolongation has to be taken within two months after the submission of the request for prolongation.
13. In its decision of 6 October 1995, the Regional Court rejected the applicant’s arguments and prolonged his TBS order with confinement to a secure institution by one more year, taking into account the advice issued by the secure institution where the applicant was being treated and the testimony of an expert witness, recommending that the TBS order should be extended because the applicant was still considered capable of being seriously aggressive towards others. The Regional Court admitted that the examination of the request had not taken place within the time-limit contained in Article 509t CCP and that the reason therefor was the fact that during the holiday months it had not been able to hold sufficient hearings with judges having the specialised knowledge needed. However, it held that a failure to observe the time-limit in Article 509t CCP did not imply that the public prosecutor’s request should be declared inadmissible. It noted that the date of the hearing in the instant case had been fixed on 20 July 1995, i.e. within a period of two months after the submission of the prolongation request. It further noted that, by summons of 28 July 1995, the applicant had been invited to appear at the hearing of 22 September 1995 and that a copy of the summons had been sent to his representative. The Regional Court considered that, if the latter had objected to the fixing of that date, the hearing could have been rescheduled for an earlier date during the recess. The Regional Court concluded that in all these circumstances the general security of persons required a prolongation of the TBS order.
14. The applicant filed an appeal with the Arnhem Court of Appeal on 11 October 1995. In the course of a hearing held on 15 January 1996, the Court of Appeal heard the applicant and a psychologist working in the secure institution where the applicant was under treatment.
15. In its decision of 29 January 1996, the Court of Appeal noted that the decision of 6 October 1995 had been taken seventeen days after the expiry of the time-limit provided for in Article 509t CCP. It held that the Regional Court could and should have scheduled a hearing date before the expiry of the time-limit. Moreover, Article 509t CCP made the Regional Court responsible and not the applicant or his lawyer to see to it that the time-limit was observed. It further held that failure to observe the time-limit entailed neither the inadmissibility of the prosecution’s request, nor the incompetence of the Regional Court to examine this request, nor yet the expiry of the TBS order. On the basis of the failure to respect the time-limit referred to in Article 509t CCP and the unsatisfactory reasons therefor stated by the Regional Court, the Court of Appeal decided to quash the decision of 6 October 1995 and, on appeal, to determine itself the prolongation request.
16. After having noted the advice of the secure institution where the applicant was receiving treatment and an expert opinion concerning the applicant’s medical condition, the Court of Appeal decided to extend the TBS order with confinement to a secure institution by one year.
17. The applicant’s post-sentence confinement, the order was finally terminated on 9 December 2000.
18. Article 37a of the Netherlands Criminal Code (Wetboek van Strafrecht) enables courts, when dealing with certain serious crimes, to impose a TBS order on a defendant whose mental faculties were inadequately developed or pathologically disturbed as the time of the commission of the offence. If the safety of others or the general safety of persons or goods so requires, the court may further direct that such a person be confined to a secure institution in accordance with Article 37b of the Criminal Code. A TBS order with confinement to a secure institution can also be imposed in conjunction with a custodial sanction if the convicted person’s responsibility was merely diminished at the time of the commission of the offence. In such a situation, the TBS order will take effect after the convicted person has served the prison sentence imposed. A TBS order with confinement to a secure institution is not intended to have a punitive effect, but to protect society from any risk posed by the person concerned. A confinement order is subject to statutory time-limits, but there is in principle no restriction on the number of extensions that can be granted.
19. The provisions relating to the extension of a confinement order are set out in Articles 509o – 509x of the Code of Criminal Procedure (Wetboek van Strafvordering; “CCP”).
20. Article 509o § 1 CCP provides that the public prosecutor’s office (openbaar ministerie) may submit a request (vordering) for the prolongation of a confinement order no sooner than two months and no later than one month before the time at which the TBS order is due to expire. The request must be accompanied by a recent recommendation prepared by the institution in which the patient is being treated (Article 509o § 2 CCP). In accordance with the provisions of Article 509o § 6 CCP, the person concerned must be given a copy of the request as soon as possible.
21. The court competent to decide on such a request is the Regional Court that tried the person concerned at first instance for the crime that gave rise to the TBS order (Article 509p).
22. Article 509q CCP, in so far as relevant, reads:
“1. The TBS order shall remain in force as long as no final decision on the request <for its prolongation> has been taken (“zolang op de vordering niet onherroepelijk is beslist ...”). Where the request is granted after the day on which the TBS order, by passage of time, would have expired had no prolongation request been filed, the new period shall nevertheless start to run on that day. ...”
23. The Regional Court must immediately (onverwijld) set a date for the examination of the case, and the person concerned must be timely informed of this date (Article 509s § 1). The decision of the Regional Court must be rendered as soon as possible, but no later than two months from the date on which the request was lodged (Article 509t § 1). The Regional Court may, however, exceed this time-limit if it wishes to consider refusing the request – thus terminating the TBS order – and if it needs more information as to the way in which the person concerned might be released back into society. In such a case, the court has an additional three months to render its decision (Article 509t § 2).
24. Under Article 509t § 3 CCP, the time-limit referred to in Article 509t § 1 CCP does not apply where a circumstance has arisen on grounds of which the court cannot comply with its obligation pursuant to Article 509s CCP to hear the person concerned before deciding the request. In such a situation, the Regional Court must decide the prolongation request within a period of two months after the obstacle for hearing the person concerned has ceased to exist.
25. The Regional Court’s decision shall be reasoned. If it decides to prolong the TBS order, the decision must be pronounced publicly (Article 509t § 4). An appeal against a decision on a prolongation request lies with the Arnhem Court of Appeal, which must determine the appeal as soon as possible (Article 509x § 1 CCP). However, no appeal lies against a first decision to prolong the TBS order for one year (Article 509v).
26. There is no express provision requiring the release of the person concerned if the time-limits laid down by Articles 509o § 1 and 509t §§ 1 and 2 are not complied with, nor does the CCP impose any sanctions on exceeding these time-limits.
27. According to Netherlands case-law, summary civil proceedings (kort geding) may be instituted in cases where a person subject to a confinement order wishes to obtain a court judgment on the lawfulness of his detention.
28. In a judgment of the Supreme Court (Hoge Raad) of 14 June 1974 (Nederlandse Jurisprudentie (NJ) 1974, no. 436), it was held that a confinement order remains lawful even if the decision to prolong it has been taken after the expiry of the two months’ time-limit now provided for in Article 509t § 1 CCP, as this time-limit is merely of an exhortatory nature.
29. According to a judgment of the Supreme Court of 29 September 1989 (NJ 1990, no. 2), a failure to comply with the statutory two months’ time-limit does not in itself give rise to an obligation to terminate a confinement order and to release the person concerned. Only in certain circumstances would the State be obliged to terminate a confinement order after its statutory period had expired and no decision as to its prolongation had been taken. In order to determine whether such an obligation exists, the court should have regard to the extent to which the statutory time-limit had been exceeded, the reasons for which the time-limit had not been complied with and the personal and societal interests involved.
30. In decisions taken on 17 April 1989 and 21 December 1992, the Arnhem Court of Appeal held that a failure to respect the time-limit set out in Article 509t § 1 CCP does not affect the validity of the running confinement order since, in accordance with Article 509q CCP, it remains in force until a final decision has been taken on request for prolongation thereof.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1