ITEMID: 001-101815
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MILEVA AND OTHERS v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 7. The applicants in application no. 43449/02, Ms Pepa Vladimirova Mileva and Ms Meri Vladimirova Mileva, were born in 1934 and 1936 respectively and live in Sofia. They are sisters.
8. The applicants in application no. 21475/04, Mr Hristo Ivanov Evtimov, Ms Lilia Kirilova Evtimova and Ms Kalina Hristova Evtimova, were born in 1939, 1943 and 1977 respectively and live or lived in Sofia. The first two were husband and wife, and the third is their daughter. As mentioned in paragraph 2 above, Mr Hristo Evtimov died in 2007.
9. At the material time the applicants in application no. 43449/02 (“the Milevi sisters”), both of whom are retired, owned a flat on the first floor of entrance “B” of a Ushaped block of flats in the centre of Sofia. Both of them had lived in that flat since 1963. They submitted that as a result of the events described below, they were forced to move out of the flat. On 11 March 2004 they sold it to a limited liability company for 61,000 euros. On 22 April 2004 they bought a smaller flat in another neighbourhood, and on 15 June 2004 went to live there.
10. The applicants in application no. 21475/04 (“the Evtimovi family”) own and live in a flat on the first floor of entrance “C” of the same block of flats. Ms Kalina Evtimova’s daughter, born on 28 September 2000, also lives there.
11. In May 2000 a company rented a flat on the ground floor of entrance “B” of the block, below the flat of the Milevi sisters. It started operating a computer club there, without obtaining the necessary permits.
12. In March 2002 the club moved into a flat situated opposite the original one, again on the ground floor of entrance “B”. That flat was located diagonally below both the flat of the Milevi sisters and that of the Evtimovi family.
13. According to four affidavits, the first of which was drawn up by Mr Hristo Evtimov and Ms Lilia Evtimova, and the rest by witnesses asked by the applicants to describe the situation, the club had fortysix computers and two vending machines. It was open twentyfour hours a day, seven days a week. The services it offered were chiefly computer gaming and Internet surfing. The club’s clients, mostly teenagers and young adults, often gathered in front of the building, chatting loudly and shouting, drinking alcohol, and smoking cigarettes and allegedly even narcotic drugs. They would often break the door of the building and enter the passageway, where they drank and smoked. The noise and the vibrations generated by them, both while inside the club and while entering or leaving the premises, could be clearly heard and felt in the flats of the Milevi sisters and of the Evtimovi family.
14. The Milevi sisters produced a certificate in which their general practitioner attested that from the middle of 2002 both of them started complaining of constant headaches, insomnia, irritability and anxiety, had high blood pressure, and had lost weight. In 2003 Ms Meri Mileva developed a sinus tachycardia. As a result of her increasingly frequent cardiac crises, she had to be hospitalised. According to the doctor, those health problems were due to the constant disturbance and noise caused by the club’s operations, and gradually subsided after the Milevi sisters went to live elsewhere in June 2004.
15. On 28 June 2002 the general meeting of the block’s occupants resolved, by twelve votes and three abstentions, that the club’s operations should be stopped, and that no commercial activities should be allowed in the building. It stated that the club’s operations caused serious disturbances to all inhabitants. The club’s manager, who was present at the meeting, said that he disagreed and would do everything necessary to keep the club open.
16. Having earlier made numerous complaints by telephone, the applicants made written complaints to the police on 28 May, 13 and 20 June, and 19 and 20 November 2002. They submitted that those complaints had prompted only a cursory inspection of the club, which had produced no tangible results.
17. On 21 February 2003 the head of the local police station told the applicants that when asked to do so, the club’s manager had been able to produce all necessary permits, and that no breaches of public order had been found. The manager had been warned not to allow breaches of public order and had undertaken to inform the police of any disturbances. The head of the local station further said that the police had no power to shut down commercial premises. On 26 February 2003 the applicants protested against the passiveness of the police.
18. On 8 November 2004 the club’s manager called at the Evtimovi’s flat and allegedly threatened Mr Evtimov with violence if he persisted in his efforts to have the club’s operations stopped. The same day Mr Evtimov complained to the police, but apparently nothing ensued.
19. On 27 May 2002 the applicants asked the borough mayor to order the cessation of the club’s operations. The same day the municipal services wrote to the police, informing them that the club was operating without the requisite licence.
20. On 7 June 2002 municipal inspectors visited the premises and noted that the club was operating unlawfully. On 24 June 2002 the municipality sent the file to the Sofia Regional Building Control Directorate.
21. However, on 26 June 2002 the chief architect of the municipality approved a plan for the conversion of the flat into commercial premises. On 1 July 2002 Mr Hristo Evtimov, acting in his capacity as chairman of the condominium, contested that decision before the Sofia Regional Building Control Directorate. On 23 August 2002 the Directorate, while noting that section 38 of the 2001 Territorial Organisation Act (see paragraphs 50 and 51 below) had not been complied with, said that that did not constitute grounds for invalidating the legalisation of the conversion under section 156(2) of the Act (see paragraph 52 below) and upheld the mayor’s decision.
22. Despite the applicants’ repeated complaints to the municipal authorities, they took no further action.
23. On 28 November 2003 the chief architect of the municipality granted the club an operating permit, on the condition that its clients entered through the back door and not through the passageway used by the building’s residents. On 7 July 2004 the applicants challenged that decision before the Sofia Regional Building Control Directorate, arguing that the condition imposed by the mayor was impossible to comply with, as the only access to the back door was through the passageway. They requested that the permit be set aside and that the club be closed. It does not seem that the permit was annulled.
24. On 28 May 2002 the applicants requested the Sofia Regional Building Control Directorate to prohibit the use of the flat.
25. In a decision of 2 July 2002 the Directorate prohibited the use of the flat. It also ordered that its electricity and water supplies be cut off. It noted that the flat had been converted into a computer club without a building permit and that the club had started operating without a use permit, in breach of section 178(1) of the 2001 Territorial Organisation Act (see paragraph 53 below). It also observed, referring to section 217(1)(3) of the Act (ibid.), that any application for judicial review of the decision would not automatically suspend its enforcement.
26. The flat’s owner appealed to the National Building Control Directorate. On 4 November 2002 the Directorate rejected the appeal as inadmissible, noting that the impugned decision was not subject to an appeal to a higher authority but only to judicial review. On 7 November 2002 the National Directorate instructed the Regional Directorate to enforce the decision.
27. On 15 October 2002 the flat’s owner sought judicial review. She asked the court to suspend enforcement as an interim measure.
28. The same day the Sofia City Court (Софийски градски съд) granted her request. It noted that by law the decision was enforceable immediately, even if it had been challenged by way of judicial review. However, the courts could in their discretion suspend enforcement and it was justified in doing so because the file did not contain any indications that the conditions envisaged by section 16 of the 1979 Administrative Procedure Act, which governed the enforcement of nonfinal administrative decisions (see paragraph 70 below), were fulfilled. In addition, the court allowed the condominium and the company operating the computer club to intervene in the proceedings, and fixed a hearing on the merits of the case for 25 February 2003.
29. On 27 February 2003 the applicants appealed to the Supreme Administrative Court (Върховен административен съд). On 19 June 2003 it reversed the lower court’s ruling, saying that the courts could suspend the enforcement of the decision only if it would engender irreparable harm or frustrate the object of the proceedings. However, the flat’s owner had not shown that these prerequisites were satisfied, nor had the lower court made such a finding. It had merely referred to section 16 of the 1979 Administrative Procedure Act, which was not applicable.
30. The applicants subsequently asked the Sofia Regional Building Control Directorate to enforce the decision. It seems that they did not receive a reply.
31. On 10 July 2003 the Sofia City Court, acting pursuant to a fresh request by the flat’s owner, again suspended the enforcement of the decision. It held that its immediate enforcement would impede the proper course of the main proceedings and result in damage for the club’s owner. There was no indication that the life or health of others were at risk, that with time enforcement would grow more difficult or be blocked, or that important State interests were at stake.
32. On an appeal by the applicants, on 8 October 2003 the Supreme Administrative Court reversed that order. It found that in principle administrative decisions should be immediately enforced only if, inter alia, that was necessary to safeguard the life or health of others, or to protect important State or public interests. However, where the law specifically provided for the immediate enforcement of certain decisions, there was a presumption that such a need existed. Therefore, it was possible to suspend the enforcement of a decision which was immediately enforceable by operation of law only if that would put at risk an opposing interest of the same intensity as the one sought to be protected, which was not the case. Any pecuniary damage sustained by the club’s owner was not of such a nature, as it could be fully compensated for by the payment of money.
33. After that the applicants made numerous requests for the decision to be enforced. However, they were informed that on 28 November 2003 the local authorities had permitted the use of the club (see paragraph 23 above), and that therefore the decision could not be enforced. The applicants complained about that situation to the prosecuting authorities, but to no avail.
34. In the meantime, the Sofia City Court tried to hold a first hearing on the merits of the case on 25 February 2003. However, the flat’s owner had not been properly summoned and the court adjourned the proceedings. It fixed the next hearing for 26 March 2004. On 11 December 2003 the applicants complained about the delay to the Supreme Administrative Court. On 5 February 2004 that court, noting that according to section 219 of the 2001 Territorial Organisation Act (see paragraph 53 in fine below), the proceedings had to follow a fasttrack procedure, instructed the Sofia City Court to bring forward the date of its hearing. The Sofia City Court accordingly rescheduled the hearing for 9 March 2004. However, as the flat’s owner had again not been properly summoned, the hearing was adjourned.
35. On 14 April 2004 the applicants made a new complaint about delays. On 17 May 2004 the Supreme Administrative Court rejected it, finding that the Sofia City Court had made all possible efforts to allow the proper progress of the proceedings and that, in view of that court’s busy calendar, the listing of a hearing for 6 July 2004 did not amount to an unjustified delay.
36. At the hearing on 6 July 2004 the Sofia City Court started to examine the merits of the case. At the next hearing, held on 21 September 2004, the flat’s owner declared that she wished to withdraw her application for judicial review, and the court accordingly discontinued the proceedings.
37. On 8 November 2004 the Sofia Regional Building Control Directorate found that the computer club was operating in breach of the condition laid down in the permit of 28 November 2003 (see paragraph 23 above), as its clients were entering through the passageway used by the building’s residents and not through a separate entrance.
38. On 16 November 2004 the flat’s owner informed the authorities that the computer club had ceased its operations. On 25 November 2004 the Sofia Regional Building Control Directorate, having found after an inspection on 19 November 2004 that the vending machines and two computers had still not been taken out of the club, again prohibited its use and ordered that its electricity and water supplies be cut off.
39. Some time after that the flat was rented by another company, which apparently used it as an office until January 2008.
40. In the meantime, on 1 September 2003, the Milevi sisters asked the Sofia City Court to exempt them from paying court fees for a tort claim which they intended to bring against the persons operating the club. On 12 September 2003 the court’s president refused to examine the request, saying that it could be made only if a claim had already been brought, or if it had been lodged concomitantly with the statement of claim. That ruling was later upheld by the Sofia Court of Appeal and the Supreme Court of Cassation. It seems that the Milevi sisters did not bring a claim against the persons operating the club.
41. Having obtained a building permit on 11 May 2002, in August 2003 the owner of the flat occupied by the computer club until March 2002 (see paragraph 12 above) started transforming it into an electronic games club. The works involved pulling down internal walls, installation of highvoltage cables and changing the flat’s windows.
42. On 29 August 2003 the Milevi sisters complained about that to the Sofia Regional Building Control Directorate, saying that no assent had been sought from them under section 38 of the 2001 Territorial Organisation Act (see paragraphs 50 and 51 below). On 29 September 2003 the Directorate replied that the works were lawful as they had been carried out under a permit.
43. The Milevi sisters then complained to the National Building Control Directorate. On 2 December 2003 it instructed the Regional Directorate to check the lawfulness of the works. Apparently nothing ensued.
44. In the meantime, on 13 October 2003, the Milevi sisters contested the building permit before the Sofia Regional Building Control Directorate. On 26 November 2003 the Directorate rejected the challenge as being out of time. On an appeal by the Milevi sisters, on 5 April 2004 the Sofia City Court set that decision aside and instructed the Directorate to examine the challenge on the merits. The Directorate appealed against that ruling, but on 26 October 2004 the Supreme Administrative Court upheld it.
45. In the meantime, the Milevi sisters made numerous complaints about the conversion to both the building control authorities and the police, apparently to no avail.
46. In 2002 a company rented the flat adjacent to the flat of the Milevi sisters and started using it as an office. The Milevi sisters asserted that after that they could hear telephones ringing and conversations, loud voices, moving of furniture and banging of doors.
47. On 18 April 2002 the applicants complained to the municipality, stating that the company had not sought their assent for using the flat as an office, in breach of section 38(3) of the 2001 Territorial Organisation Act (see paragraph 50 below). On 17 June 2002 municipal inspectors visited the building and noted that the flat was being used as an office. However, the owner was not present and the inspectors were not allowed access to the premises to make more detailed findings. They sent a summary of their findings to the Sofia Regional Building Control Directorate.
48. After repeated complaints by the Milevi sisters, on 15 November 2002 the Directorate instructed the municipality to gather more evidence that the flat was indeed being used as commercial premises entailing regular visits by outsiders. As a result, on 30 January 2003 the inspectors made a second visit. However, they were refused access to the flat and the police, who had been called in aid, did not show up.
49. Apparently the office continued operating undisturbed throughout that period.
50. Section 38(3) of the 2001 Territorial Organisation Act (Закон за устройство на територията) provides that a flat in a condominium may be converted into an office, entailing visits by outsiders, if it is on the ground floor and if all sanitary, hygienic, fireprotection and technical requirements have been complied with. The conversion must be approved expressly, in writing and before a notary by all immediate neighbours of the premises whose conversion is proposed. Exceptionally, a flat on a higher floor may also be converted into an office, but in that case the conversion must be approved not only by the immediate neighbours but also by the condominium’s general meeting.
51. Section 38(4) provides that a flat on the ground floor of a condominium may be converted into a shop or other commercial premises, if all sanitary, hygienic, fireprotection and technical requirements have been complied with and if a separate entrance which does not affect the passageway to the residential part of the building is made possible. The conversion must be approved by the condominium’s general meeting and requires the express written assent, certified by a notary, of all immediate neighbours of the premises whose conversion is proposed.
52. Under section 149(1) and (2)(2), a permit allowing the reconstruction of an existing building must be brought to the attention of the persons whose approval is required under section 38. They may challenge it before the Regional Building Control Directorate (section 149(3)). Under section 156(1), as worded between January 2001 and July 2003, building permits could, as a rule, be revoked only before the works had started. They could be revoked after that only if they were contrary to the zoning plan, substantially deviated from the building regulations and norms as regards distances to neighbouring buildings, or substantially deviated from the applicable safety requirements (section 156(2), as in force between January 2001 and July 2003).
53. Under section 178(1), as in force at the material time, it was prohibited to use a building or a part of it before the issuing of a use permit. If a building or a part of it was being used without such permit, the National Building Control Directorate had to ban the use and order that the building’s electricity and water supplies and heating be cut off (section 178(5), as in force at the material time). Applications for judicial review of such decisions do not have suspensive effect (section 217(1)(3)). Since such decisions cannot be appealed against before a higher administrative authority, they are immediately enforceable. However, their enforcement may be suspended by the court (section 217(2)). Under section 219, as in force at the material time, the courts had to examine applications for judicial review of such decisions in special fasttrack proceedings under Articles 126b126e of the 1952 Code of Civil Procedure.
54. Under section 222(2)(2) (now section 222(2)(4)), the National Building Control Directorate enforces decisions prohibiting the use of buildings or parts of them. In so doing, it may use technical devices and means (section 222(3)). If it encounters resistance, it may enlist the help of the police (section 222(5)).
55. Section 50 of the 1951 Property Act (Закон за собствеността) provides that the owner of a piece of immovable property cannot carry out actions which impede, in more than the usual way, the use of the neighbouring properties.
56. Under section 45(1), the owner of a flat in a condominium may be evicted by resolution of the general meeting of the condominium if he or she, among other things, systematically breaches the internal regulations of the building or the resolutions of the general meeting for the internal order of the building, or acts contrary to good morals. However, the owner may request the district court to annul the resolution (section 46(1)). The eviction may take place only if the owner has not stopped the breach despite having been warned in writing that he or she will be evicted (section 45(2)). The district court may issue a writ of execution pursuant to the resolution, once it has become final (section 46(2)). According to a 1959 decision of the former Supreme Court, that does not preclude the owner from challenging his eviction in subsequent enforcement proceedings (реш. № 4028 от 23 ноември 1959 г. по гр. д. № 5667/1959 г., ВС, I г. о.). There is no reported caselaw on the application of those provisions in recent decades. In May 1957 the former Supreme Court described that procedure as a means of last resort, to be used only where the owner persisted in his breach (реш. № 1260 от 9 май 1957 г. по гр. д. № 3231/1957 г., ВС, IV г. о.).
57. Under section 109(1), an owner may request the cessation of any “unjustifiable activity” which hinders him in the exercise of his rights.
58. In an interpretative decision of 6 February 1985 (тълк. реш. № 31 от 6 февруари 1985 г. по гр. д. № 10/1984 г., ОСГК на ВС) the former Supreme Court explained that this claim (actio negatoria) provided protection against unjustified interferences – whether direct or indirect – which prevented an owner from using fully his property. It can be used to declare such interferences unlawful and enjoin the persons concerned to stop them and remove their effects (for instance, demolish a building in a neighbouring property). Unlike decisions of the building control authorities, the courts’ judgments pursuant to such claims finally determine the disputes between the aggrieved owner and the perpetrator of the interference, and may be executed by force.
59. The claim may be brought by the owner against any person, irrespective of whether or not they are owners of an adjoining property (реш. № 1544 от 30 октомври 2002 г. по гр. д. № 18899/2001 г., ВКС, IV г. о.). It may be brought by the owner of a flat in a condominium against the owner of another flat (реш. № 1818 от 13 ноември 2002 г. по гр. д. № 2183/2001 г., ВКС, ІV г. о.). It may be joined to a tort claim in respect of any past loss (реш. № 1272 от 16 септември 2004 г. по гр. д. № 660/2003 г., ВКС, ІV г. о.).
60. Noise nuisance is actionable under section 109(1) (реш. № 133 от 29 декември 1988 г. по гр. д. № 100/1988 г., ОСГК на ВС).
61. For the purposes of section 109(1), a distinction needs to be made between buildings on neighbouring properties and activities taking place there; while the former may be lawful and thus not actionable, the latter may unduly impinge on neighbours’ rights and thus be subject to injunctive relief (реш. № 216 от 4 март 1985 г. по гр. д. № 43/85 г., ВС, IV г. о.).
62. In some cases (реш. № 1291 от 16 ноември 1992 г. по гр. д. № 1038/1992 г., ВС, ІV г. о., реш. № 1506 от 9 февруари 1993 г. по гр. д. № 1364/1992 г., ВС, ІV г. о.) the former Supreme Court has associated the existence of “unjustifiable activity” resulting from constructions in neighbouring properties with failure to observe the building regulations. However, in other cases the former Supreme Court and the Supreme Court of Cassation have held that the question whether a reconstruction amounts to “unjustifiable activity” does not automatically hinge on whether it complies with the building regulations or has been approved by the authorities. The decisive factor appears to be whether it unduly interferes with the neighbours’ enjoyment of their properties (реш. № 1245 от 4 юли 1994 г. по гр. д. № 2149/1992 г., ВС, ІV г. о.; реш. № 411 от 2 март 1999 г. по гр. д. № 2190/98 г. , ВКС, V г. о.; реш. № 1190 от 2 юли 1999 г. по гр. д. № 2042/1998 г., ВКС, ІV г. о.; реш. № 1319 от 5 юли 1999 г. по гр. д. № 501/1998 г., ВКС, ІV г. о.; реш. № 1446 от 26 юли 1999 г. по гр. д. № 256/1999 г., ВКС, ІV г. о.; реш. № 7 от 24 февруари 2000 г. по гр. д. № 1440/1999 г., ВКС, ІV г. о.; реш. № 1803 от 11 ноември 2002 г. по гр. д. № 2124/2001 г., ВКС, ІV г. о.; реш. № 1818 от 13 ноември 2002 г. по гр. д. № 2183/2001 г., ВКС, IV г. о.; реш. № 366 от 5 април 2004 г. по гр. д. № 2866/2002 г., ВКС, ІV г.о.; реш. № 316 от 18 февруари 2005 г. по гр. д. № 2746/2003 г., ВКС, ІV г. о.; реш. № 20 от 29 януари 2009 г. по гр. д. № 6259/ 2007 г., ВКС, ІV г. о.; реш. № 1039 от 2 октомври 2008 г., по гр. д. № 4390/2007, ВКС, г. о.; опр. № 945 от 26 август 2009 г. по гр. д. № 751/2009 г. на ВКС, І г. о.).
63. The Regulations for Management, Order and Supervision in Condominiums (Правилник за управлението, реда и надзора в етажната собственост), adopted in 1951, at the material time dealt with the internal organisation of condominiums. They contained detailed rules on the internal order of the buildings and the use of the common parts.
64. Regulation 12(1) provided that the resolutions of the condominium’s general meeting were immediately enforceable. The chairman of the condominium’s management council could apply to the competent district court to obtain a writ of execution. The resolutions for evicting an owner under section 45 of the 1951 Property Act (see paragraph 56 above) were not immediately enforceable. To obtain a writ of execution, the condominium had to show that it had warned the owner under section 45(2) of the Act (regulation 12(2)).
65. Under section 268 of the 1997 Ministry of Internal Affairs Act, the organs of the Ministry of Internal Affairs could stop the use of buildings, installations, etc., as well as stop all other activities which, among other things, posed a risk for public order.
66. Regulations on Public Order and the Preservation of Municipal Property on the Territory of the Municipality of Sofia (Наредба № 1 за обществения ред и опазването на общинските имоти на територията на Столична голяма община), issued by the Sofia City Council in May 1993 and superseded by similar regulations in March 2009, dealt with public order on the territory of the Municipality of Sofia. Regulation 3(1) prohibited noisy social events in residential buildings. Under regulation 3(3), noisy commercial activities in residential buildings were allowed only if their inhabitants agreed in writing. Under regulation 3(4), if no effective noise protection could be secured, the use of noisy devices and machines was allowed only from 9 a.m. to 2 p.m. and from 4 p.m. to 9 p.m.
67. Breaches of the Regulations were punishable by a fine (regulation 24(1)). Repeat offenders were liable to an increased fine (regulation 24(4)). If the repeated offence was connected to a profession or a trade, the penalty could also be a prohibition on engaging in such profession or trade for a period ranging from one month to two years (ibid.).
68. The supervisory organs, which included the police and officials authorised by the mayor (regulation 29(1)), had to note down every breach of the regulations (regulation 29(2)).
69. The Regulations on the Manner of Carrying On Commercial Activities on the Territory of the Municipality of Sofia (Наредба за реда на провеждане на търговска дейност на територията на Столичната община), issued by the Sofia City Council on 27 July 2001 and superseded by new regulations in January 2005, subjected commercial operations on the territory of Sofia to a licence requirement. Regulation 10(3) provided that when giving a licence the borough mayor had to fix the working hours of the operation in a way that ensured the tranquillity of others and public order. Under regulation 34(3) the borough mayors had to take all necessary steps to stop and punish breaches of the regulation. Such breaches were punishable by a fine and, in case of repetition, a ban on commercial activities for a period of six months (regulation 36(1)).
70. Section 16 of the 1979 Administrative Procedure Act, as in force at the material time, provided that administrative authorities could direct that a decision be immediately enforceable, if that was necessary to protect the life or health of individuals, prevent losses for the economy, or safeguard other material State or public interests, or if there was a risk that the enforcement would subsequently be frustrated or seriously hindered.
71. Section 1(1) of the 1988 State Responsibility for Damage Caused to Citizens Act (on 12 July 2006 its name was changed to “State and Municipalities Responsibility for Damage Act”) provides that the State is liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants committed in the course of or in connection with the performance of their duties. Section 1(2) provides that compensation for damage stemming from unlawful decisions may be claimed after the decisions concerned have been annulled in prior proceedings.
VIOLATED_ARTICLES: 8


ITEMID: 001-91899
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VALENTIN v. DENMARK
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 6. The applicant was born in 1944 and lives in Copenhagen.
7. He was a partner in a commercial partnership, a banking and stockbroking firm called Vekselerfirmaet Hugo Petersen I/S (hereafter “the Partnership”). In addition to the applicant, the Partnership had five other partners: VL, FVM, CHN, and two private limited companies, namely Hugo Petersen Børsmæglerselskab A/S and Kejpe A/S. Subsequently, in legal proceedings it was established that a further partner, CEN, had not formally resigned from the Partnership and therefore was also to be considered a partner.
8. On 29 March 1988, due to financial difficulties, proceedings were initiated before the Bankruptcy Court (Skifteretten under Sø- og Handelsretten) concerning the Partnership and the partners for suspension of payments.
9. On 29 August 1988, the Bankruptcy Court decided to discontinue the suspension of payments. At the same time, having heard two bankruptcy petitions against the applicant, who did not object to the claim that the bankruptcy conditions had been met, the Bankruptcy Court commenced bankruptcy proceedings against his estate. A trustee in bankruptcy was appointed to sort out the estate and to settle the accounts and the applicant was divested of the right to administer or to deal with his assets.
10. The Bankruptcy Court formally commenced the examination of claims on 17 November 1988, but found that it was appropriate to wait until the claims against the Partnership had been lodged and examined.
11. On 8 December 1988, bankruptcy proceedings commenced against the Partnership and by the end of 1988 bankruptcy notices regarding all the copartners had been issued as well. The Partnership’s assets, including the individual partners’ assets, were estimated at about 8 million Danish kroner (DKK), while its liabilities were estimated at DKK 15 million. The Partnership estate was closed on 5 December 1995 with distribution of dividends.
12. In the meantime, as regards the applicant’s bankruptcy estate, in the period between 1988 and 1990 various court sessions were held with a view to determining the applicant’s assets and considering creditor claims.
13. In the beginning of 1991 a new trustee was appointed. Court hearings were held in April and December 1991.
14. Moreover, the trustee held several meetings with the applicant and the partners in 1991 and 1992.
15. During 1993 and 1994 it appears that no court hearings as such were held. Nevertheless the Bankruptcy Court and the trustee regularly examined claims in this period.
16. In a report of 9 February 1995, the trustee stated, inter alia, that the applicant’s estate could not be dealt with until the closure of the Partnership estate.
17. Court sessions were held on 6 November, 6 and 21 December 1995, 14 February and 17 April 1996. On the latter date, the Bankruptcy Court adjourned the proceedings pending the preparation of accounts.
18. In a report of 5 November 1996, the trustee stated that full coverage for the Partnership creditors was expected in connection with the closing of the partners’ estates. He was therefore endeavouring to obtain a compulsory composition so that the bankruptcy proceedings could be finalised pursuant to section 144 of the Bankruptcy Act. The accounts of the applicant’s bankruptcy estate could not be prepared, however, until formal accounts were available in the estates of the co-partners Hugo Petersen’s Børsmæglerselskab A/S, CHN and FVM. At the relevant time, those accounts were being prepared, but could not be completed until, inter alia, the outcome of proceedings initiated by the Ministry of Taxation against Hugo Petersen’s Børsmæglerselskab A/S in bankruptcy was known. The latter proceedings were finalised in 1999.
19. On 4 April 1997, the trustee informed the Bankruptcy Court that the draft accounts and report had been prepared and sent to the applicant for his comments. On 29 August 1997 the trustee reminded the applicant that his comments were awaited.
20. On 2 September 1997, a hearing was held at the Bankruptcy Court during which a representative for the applicant stated that before the accounts could be approved, the applicant needed to examine certain matters in detail. Accordingly, the Bankruptcy Court decided to postpone the approval of the accounts. Moreover, it appointed a lawyer as counsel for the applicant to help him with the matters raised.
21. In a letter of 22 September 1997 to the creditors, the trustee stated that the approval could not be given pending the review of various matters by the applicant’s counsel and clarification of the applicant’s tax affairs.
22. By 1997 the bankruptcy proceedings against the other partners of the Partnership were terminated.
23. On 6 February 1998 having received several reminders, the applicant’s counsel replied as to the matters that needed to be examined and he recommended that resources be applied to seek a settlement with both the creditors of the bankruptcy estate and the tax authorities.
24. By letter of 4 March 1998, the trustee requested that the Bankruptcy Court schedule another meeting of creditors to close the estate. He referred to the fact that no objections had been filed against the accounts and that the applicant’s dispute with the tax authorities did not affect the assets available for distribution.
25. On 26 March 1998, the Bankruptcy Court declared that the estate would be closed.
26. At a hearing on 5 May 1998, the Bankruptcy Court approved the accounts of the applicant’s bankruptcy estate. Thereafter, the proceedings were adjourned pending the preparation of draft distribution accounts to be presented at a meeting of creditors on 14 July 1998. On that day, due to lack of agreement between the trustee and the Bankruptcy Court, the proceedings were adjourned. Another hearing was held on 22 July 1998.
27. In accordance with the draft distribution accounts, preferential claims would be fully covered. Moreover, an amount of approximately DKK 5.4 million remained for distribution to so-called section 98 claims (section 98 of the Bankruptcy Act, which included deferred claims for interest).
28. On 25 August 1998, a distribution on account was made in respect of the ordinary claims. During the period between November 1998 and October 1999 an amount of DKK 750,000 was made available to the applicant.
29. Before the final deadline for notifying claims in the estate, which the Bankruptcy Court fixed at 1 October 1998, thirty-two Partnership creditors lodged claims for interest in the estate. The applicant’s counsel negotiated with the creditors with a view to reaching a settlement on the claims for interest, but in vain.
30. Thus, on 30 August and 5 October 1999 hearings were held at the Bankruptcy Court. On the latter date the deferred claims for interest were examined. The creditors, who appeared before the court, objected to the trustee’s recommendation concerning the calculation of the claims for interest, and the parties therefore concluded a litigation agreement on the filing of a pleading to the Bankruptcy Court by 6 December 1999 at the latest.
31. In addition, the applicant objected to the trustee’s recommendation concerning certain claims. He and the trustee therefore concluded a litigation agreement to select one or more suitable lead cases.
32. The examination of the other claims, which were not objected to by the creditors, but contested by the applicant, was adjourned pending the outcome of the lead cases. Eight creditors then issued a writ against the bankruptcy estate, and the applicant intervened as a third party.
33. On 2 May 2001, the Bankruptcy Court passed judgment in the eight lead cases, and at a meeting of creditors on 22 May 2001 the creditors declared that they did not wish to appeal against the judgments unless the applicant did so. The applicant subsequently appealed against the judgments to the High Court of Eastern Denmark (Østre Landsret), hereafter the High Court.
34. On 26 June 2001, the Bankruptcy Court invited the applicant and the creditors to consider whether the estate could be closed under section 144 of the Bankruptcy Act by setting aside funds to cover the contested claims pursuant to section 149. According to the former provision, the estate could be finalised and the surplus assets handed over to the debtor if the creditors had obtained full payment. The latter provision, however, provided for the possibility of finalising the estate even though there were disputed claims, if an amount equal to those claims had been set aside. At the relevant time it was not legally possible to combine section 144 and section 149, unless the parties agreed to do so.
35. On 20 November 2001, at a hearing at the Bankruptcy Court, the trustee recommended that final distribution accounts be prepared in respect of the deferred claims comprised by section 98 of the Bankruptcy Act, which were not the subject of the pending appeal proceedings. In respect of the disputed claims, the distribution could be postponed until after the closing of the estate, as provided for by section 149 of the Bankruptcy Act. The Bankruptcy Court approved this recommendation and scheduled a meeting of creditors.
36. At the scheduled meeting of creditors, which took place on 29 January 2002, the applicant objected to the Bankruptcy Court closing the estate. In support thereof he argued that “the length of the proceedings had been unreasonable [anyway] and that therefore the closing of the estate ought to await [also] the outcome of the appeal proceedings before the High Court”. Despite the applicant’s objection, the Bankruptcy Court decided to approve the accounts and to make contributions in respect of the claims, which were not the subject of the pending appeal proceedings. It was also decided to make an amount of DKK 100,000 available to the applicant pursuant to section 106 of the Bankruptcy Act, then applicable. Finally, the estate was finalised by setting aside the remaining funds to cover the disputed claims.
37. The applicant appealed against the finalisation of the estate in accordance with section 149 to the High Court, which found against him on 22 March 2002. It appears that the applicant failed to request leave to appeal against this decision to the Supreme Court (Højesteret).
38. On 24 January 2003, in the appeal proceedings concerning the disputed deferred claims for interest, the High Court passed judgment against the applicant.
39. On 27 March 2003 the Bankruptcy Court held a meeting of creditors to produce additional distribution accounts concerning the disputed deferred claims for interest. However, since the applicant had requested that the Appeals Permission Board (Procesbevillingsnævnet) grant him leave to appeal to the Supreme Court, the Bankruptcy Court adjourned the proceedings.
40. On 14 October 2003, the Appeals Permission Board informed the parties that the applicant would be granted leave to appeal against the judgment to the Supreme Court.
41. On 19 September 2005, the Supreme Court passed judgment finding against the applicant.
42. On 20 December 2005, concluding that all creditors had been satisfied, the Bankruptcy Court closed the estate and approved the handing over of the remaining assets of the estate, minus the costs of administration of the estate, to the applicant pursuant to section 144 of the Bankruptcy Court.
43. Before the Court the applicant submitted that on numerous occasions, in vain, he had requested that the bankruptcy proceedings be expedited. This was disputed by the Government.
44. By letter of 12 October 2006 the Ministry of Justice (Justitsministeriet) invited the applicant to raise his complaints about the length of the bankruptcy proceedings before the court, where the case was pending.
The Bankruptcy Act (Konkursloven), Consolidation Act no. 588 of 1 September 1986, which comprised the rules relevant to the administration of the applicant’s bankruptcy estate, stated in as far as relevant:
Upon the pronouncement of the bankruptcy order, the debtor is deprived of his right to assign or to abandon his property, to accept payments and other services rendered, to accept terminations, complaints and similar declarations, to incur debts or to deal in any other way with his property with any effect as regards the estate.
(1) Where the debtor is unable to provide for his own and his family’s needs by his own work, the estate may award maintenance to the debtor or to his dependents.
(2) The estate may grant the debtor a right of use to real property or chattels.
...
(3) Where specific grounds so justify, the Bankruptcy Court may reject the election of a trustee or remove him later. ...
Where the trustee or meeting of creditors acts to the detriment of the estate, or where rights vested in mortgagees, the debtor or other parties are infringed upon, the Bankruptcy Court may set aside the decisions made, give directions to the trustee, and take any other requisite steps.
(1) Where the debtor obtains a compulsory composition, cf. section 196, and where the creditors of the bankruptcy estate who, under section 158(2), are not comprised by the composition have been satisfied or adequately secured, or where the debtor, after the expiry of the period allowed for proof of claims, produces a consent from all creditors or proof of their having been satisfied, the bankruptcy proceedings must be finalised promptly, and the assets of the estate must be handed over to the debtor, subject to deduction of any costs inclined in connection with the bankruptcy proceedings.
(2) Where the debtor, after the bankruptcy proceedings have been completed, substantiates that the creditors have been satisfied or have waived their claims, the Bankruptcy Court shall issue a certificate to such effect to him.
On the basis of a recommendation from the trustee, the bankruptcy court may decide that the preparation of the final accounts, and distribution, if any, of an amount not yet collected, of any amount set aside pursuant to section 147(2), or of any other specifically limited parts of the estate, will be deferred to the period after finalisation of the bankruptcy proceedings.
Section 127(a) of the Bankruptcy Act (Consolidation Act no. 1259 of 23 October 2007), now in force, reads as follows:
The debtor or a creditor may demand that the Bankruptcy Court make use of its authorities set out in section 16, subsection 2, and that it fix a hearing pursuant to section 143 or 150 [with a view to finalising the estate], if such proves necessary due to the requirement in Article 6 of the Convention concerning a fair trial within a reasonable time.
A partnership is an association formed by several natural or legal persons for the purpose of promoting the partners’ (members’) financial interests through business activities.
A partnership is a form of business enterprise in which all members are liable personally, without limitation and jointly and severally for the obligations of the enterprise (see section 2(1) of Consolidation Act no. 651 of 15 June 2006 on certain business enterprises). This implies that the members are liable with their entire personal property, that the individual member is liable for the entire debt, and that the creditors of the partnership have a direct claim against the individual member without first having to raise a claim against the partnership.
The partnership and its members are liable to the creditors of the partnership. Under applicable Danish law, it is therefore a prerequisite for administration of the bankruptcy estate of a partnership that all partners are subject to bankruptcy proceedings. A co-partner’s bankruptcy estate is thus of importance to the closing of the other co-partners’ bankruptcy estates. By contrast, the partnership is not liable to the partners’ personal creditors. Hence, personal creditors cannot seek satisfaction from partnership assets, but only in the surplus distributed to the partners.
There are few rules of law regulating partnerships. In the absence of a rule of law regulating the matter, the legal position depends on an interpretation of the partnership agreement and on what may be inferred from non-mandatory rules.
If a member of a partnership is declared bankrupt, section 61 of the Bankruptcy Act applies. This provision enables the estate to release the relevant partner’s share of the net assets of the partnership with a suitable notice so that all his assets are applied to satisfy his creditors.
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-69204
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF HEFKOVA v. SLOVAKIA
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: 4. The applicant was born in 1970 and lives in Snina.
5. On 9 January 1997 the applicant gave birth to a girl. She stated to the authorities that the father of the child was a Yugoslav national living in Switzerland.
6. On 18 April 1997 the Humenné District Court heard the applicant on the issue of the paternity of her child.
7. On 22 December 1997 the Prešov District Court appointed the Snina District Office as guardian to the child for the purpose of bringing paternity proceedings on her behalf and representing her in such proceedings. The decision stated that it had been taken as the applicant had not filed a paternity action. The District Office received the decision on 23 December 1997, but it did not bring paternity proceedings. On 3 June 1999 the Prešov Regional Office admitted, in reply to the applicant’s complaint, that the Snina District Office by its failure to file an action had delayed the case.
8. On 17 August 1998 paternity proceedings were instituted, at the applicant’s request, before the Prešov District Court. On 17 September 1998 the applicant paid the court fee.
9. On 25 January 1999 the Prešov District Court heard the applicant and decided to transfer the case to the Humenné District Court for reasons of jurisdiction. The file was submitted to the latter court on 8 March 1999.
10. A hearing before the Humenné District Court was held on 28 June 1999.
11. On 6 October 1999 the case was assigned to a different judge.
12. On 1 December 2000 the District Court ordered an official translation of the relevant documents as it was necessary to seek the assistance of Swiss authorities. The request for assistance was sent to the competent Swiss court on 21 January 2001.
13. The District Court received the reply from the Swiss court on 26 March 2001. According to it, the defendant had denied the paternity of the applicant’s child. He declared himself ready to undergo a DNA test. The defendant had also explained that he had been granted asylum in Switzerland and that he could not travel abroad.
14. On 23 May 2001 the District Court held a hearing at which the applicant maintained her claim. On the same day the District Court appointed an expert in genetics. On 9 July 2001 the expert informed the applicant that he had not yet made a blood analysis of her daughter as the District Court had failed to pay an advance on his costs. The letter further stated that the expert had informed the District Court how to obtain a blood sample from the alleged father in Switzerland. The District Court sent the relevant request to the Swiss court on 29 June 2001.
15. On 31 January 2002 the expert informed the District Court that he had not yet received the blood sample from his Swiss counter-part. On 6 December 2002 the District Court informed the applicant that the Swiss authorities had not yet obtained a blood sample from the alleged father of the child.
16. After having made an inquiry from the expert on 11 February 2003, the District Court again requested the Swiss authorities for assistance on 13 March 2003. In a reply delivered on 14 April 2003 the competent Swiss court informed the Humenné District Court that the files relating to its request had already been sent to it. The Swiss court enclosed copies of those documents to its reply. It was later established that the original mail from the Swiss court had been lost prior to its delivery.
17. On 18 June 2003 the District Court scheduled a hearing for 10 September 2003. It unsuccessfully attempted to have the defendant summoned. On 10 September 2003 the case was adjourned as the defendant’s whereabouts were unknown.
18. On 16 September 2003 the Humenné District Court again requested the competent Swiss court for assistance in establishing the defendant’s whereabouts and in obtaining a blood sample from him. It further authorised the expert to proceed with the analysis of samples from the applicant and the child.
19. On 27 October 2003 the District Court received information about the new address of the defendant.
20. On 9 December 2003 the District Court again asked the Swiss court for assistance in obtaining a blood sample as well as further information about the defendant’s situation.
21. On 19 December 2003 the expert submitted a DNA analysis of the applicant and her daughter.
22. On 6 July 2004 the District Court received a reply from the Swiss court. It stated that the Swiss court had heard the defendant on 15 March 2004 who had agreed to an analysis of his blood. However, the defendant subsequently had not complied with repeated requests to this effect and had failed to appear for a sample to be taken from him. Under Swiss law the defendant could not be obliged to submit a blood sample without his consent. According to the letter, the Swiss court could take no further action in that respect. The Humenné District Court obtained a translation of the above reply on 31 August 2004.
23. A hearing before the District Court was scheduled for 1 December 2004.
24. On 25 September 2002 the applicant complained about the length of the paternity proceedings before the Constitutional Court.
25. On 2 July 2003 the Constitutional Court dismissed the complaint as being manifestly ill-founded. The decision stated that the complaint concerned the proceedings before the Humenné District Court. The Constitutional Court found undue delays in the proceedings between November 1999 and November 2000. However, after that period the District Court had proceeded with the case in an appropriate manner. In particular, it had sent several requests to a court in Switzerland on 29 January 2001, 19 June 2001, 12 June 2002 and on 13 March 2003. It had further ordered an expert opinion, sent a request for a blood sample to be obtained from the defendant and had the documentary evidence translated. In addition, it had encountered difficulties resulting from the loss of files abroad and the fact that summonses could not be served on the defendant.
26. The Constitutional Court concluded that the overall length of the proceedings could not be imputed to the District Court as its proceeding with the case had depended on co-operation with the Swiss authorities.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23447
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: CEKIC and OTHERS v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants, Ms Ljuba Čekić, Ms Kata Nenadić, Ms Ljubica Micin, Ms Miljka Kovačević and Mr Janko Španović are Croatian citizens, who were born in 1935, 1942, 1924, 1948 and 1928, respectively and live in Šaš, Kostajnica, Madjari, Sisak and Petrinja. They are represented before the Court by Mr Erih Fridrih and Ms Sandra Fridrih-Knez, lawyers practising in Sisak, Croatia.
The applicant and her husband lived in Šaš. The husband received his pension until August 1991 when the payments stopped. Šaš is situated in a part of Croatia which was occupied from the summer of 1991 until August 1995.
In August 1995 the applicant and her husband left Croatia, due to the military operation “Storm” (Oluja), and went to live in Serbia.
On 26 January 1996 the husband died.
In April 1997 the applicant returned to Croatia.
It appears that the applicant requested the Croatian Pension Fund to grant her payments related to her late husband’s pension. The applicant’s right to a family pension was recognised as from 1 July 1998 and the applicant has continued to receive payments of her pension from that date.
The applicant then filed an action with the Sisak Municipal Court (Općinski sud u Sisku) seeking payments of her late husband’s pension for the period between August 1991 and January 1996.
On 20 March 2000 the court rejected the applicant’s claim. It found that the applicant and her husband had lived in an occupied part of Croatia and that the husband had received a pension from the authorities which controlled that territory. According to the Pensions Act a person was allowed to receive only one pension and since the applicant’s husband had received a pension from the authorities of the occupied territory he had no right to another pension from the Croatian authorities.
On 19 May 2000 the applicant appealed against the first instance judgment.
On 19 October 2000 the Sisak County Court (Županijski sud u Sisku) upheld the first instance judgment.
The applicant lived in Hrvatska Kostajnica. She received a family pension until August 1991 when the payments stopped. Hrvatska Kostajnica is situated in a part of Croatia which was occupied from the summer of 1991 until August 1995.
In August 1995 the applicant left Croatia, due to the military operation “Storm”, and went to live in Serbia.
In 1997 the applicant returned to Croatia.
It appears that the applicant requested the Croatian Pension Fund to provide her with a pension. The applicant’s right to a family pension was recognised as from 1 May 1997 and the applicant has continued to receive payments of her pension from that date.
The applicant then filed an action with the Sisak Municipal Court seeking payments of her pension for the period between 1 September 1991 and 1 May 1997.
On 20 April 2000 the court rejected the applicant’s claim. It found that the applicant had lived in an occupied part of Croatia and that she had received a pension from the authorities which controlled that territory. According to the Pensions Act a person was allowed to receive only one pension and since the applicant had received a pension from the authorities of the occupied territory she had no right to another pension from the Croatian authorities.
On 19 May 2000 the applicant appealed against the first instance judgment.
On 26 October 2000 the Sisak County Court upheld the first instance judgment.
The applicant lived in Mađari. She received a pension until June 1991 when the payments stopped. Mađari is situated in a part of Croatia which was occupied from the summer of 1991 until August 1995.
In August 1995 the applicant left Croatia, due to the military operation “Storm”, and went to live in Serbia.
In July 1997 the applicant returned to Croatia.
It appears that the applicant requested the Croatian Pension Fund to pay her pension. The applicant’s right to a family pension was recognised as from 1 May 1997 and the applicant has continued to receive payments of her pension from that date.
The applicant then filed an action with the Sisak Municipal Court seeking payments of her pension for the period between 1 September 1991 and 1 May 1997.
On 20 April 2000 the court rejected the applicant’s claim. It found that, according to Section 87 § 2 of the Pensions Act, it was possible to seek pension instalments only for the past twelve months. Since it was established that the applicant had received a pension for the past twelve months before she had filed her claim with the Municipal Court, the period for which the applicant had sought the pension instalments fell within the statutory limitation.
On 19 May 2000 the applicant appealed against the first instance judgment.
On 12 October 2000 the Sisak County Court upheld the first instance judgment.
The applicant lived in Sisak. She received a pension until July 1991 when the payments stopped and the applicant left Croatia and went to live in Bosnia and Herzegovina until June 1992. Then she returned to Croatia and settled in Petrinja, a town situated in a part of Croatia which was occupied from the summer of 1991 until August 1995.
In August 1995 the applicant left Croatia, due to the military operation “Storm”, and went to live in Serbia.
In June 1998 the applicant returned to Croatia.
It appears that the applicant filed a request for payment of her pension. The applicant’s right to a family pension was recognised as from 1 July 1998 and the applicant has continued to receive payments of her pension from that date on.
The applicant then filed an action with the Sisak Municipal Court seeking payments of her pension for the period between 1 July 1991 and 1 July 1998.
On 20 March 2000 the court rejected the applicant’s claim. It found that, according to Section 87 § 2 of the Pensions Act, it was possible to seek pension instalments only for the past twelve months. Since it was established that the applicant had received a pension for the past twelve months before she had filed her claim with the Municipal Court, the period for which the applicant had sought payments of her pension fell within the statutory limitation.
On 19 May 2000 the applicant appealed against the first instance judgment.
On 6 November 2000 the Sisak County Court upheld the first instance judgment.
The applicant lived in Petrinja. He received a pension until July 1991 when the payments stopped. Petrinja is situated in a part of Croatia which was occupied from the summer of 1991 until August 1995.
In August 1995 the applicant left Croatia, due to the military operation “Storm”, and went to live in Serbia.
On 1 June 1997 the applicant returned to Croatia.
It appears that the applicant filed a request for payment of his pension for the period between September 1991 and July 1997 with the Croatian Pension Fund, Sisak Office (Hrvatski zavod za mirovinsko osiguranje, Područna služba u Sisku). On 29 March 2000 that authority issued a decision stating that payment of the applicant’s pension had been stopped on 31 August 1991 due to the war in Croatia. Since the applicant had lived in the occupied territory the Croatian authorities had been unable to verify his address. It also stated that the applicant had received a pension from the authorities that had controlled that territory. The applicant’s right to receive again the payments of his pension from the Croatian authorities was recognised as from 1 July 1997.
The applicant then filed an action with the Sisak Municipal Court seeking payments of his pension for the period between 1 September 1991 and 1 July 1997.
On 13 April 2000 the court rejected the applicant’s claim. It noted that the Croatian Pension Fund, Sisak Office had decided that the applicant had had no right to a pension for the period in question and found that a regular civil court had no competence to set aside such a decision issued by an administrative body, but only to determine the applicant’s civil claim for payment. However, such a claim had no legal ground as the applicant’s right to receive a pension in the period from September 1991 until July 1997 had not been recognised by the competent authority.
On 18 May 2000 the applicant appealed against the first instance judgment.
On 12 October 2000 the Sisak County Court upheld the first instance judgment.
On 28 December 2000 all five applicants filed together a constitutional complaint. They recalled that they had requested payment of the pension instalments for the respective periods during which no pension had been paid and alleged that the Croatian Pension Fund refused to pay, contrary to the law. Thus, their right to the peaceful enjoyment of their property had been violated.
Furthermore, they alleged that their right to equality before the courts was violated because in other proceedings concerning similar claims, other courts in Croatia had granted such claims. Also, the exact amount of the pension instalments that they claimed had never been established.
They argued furthermore that the lower courts had erred in the application of laws because they had applied the Pensions Act retroactively and also wrongly interpreted the rules regulating statutory limitation.
In respect of the first four applicants the Constitutional Court rejected the complaint on 12 July 2001 and in respect of the fifth applicant the complaint was rejected on 13 September 2001.
It found that, in essence, the constitutional complaint was of a fourth instance nature since the applicants complained that the lower courts wrongly established the facts and erred in their application of the laws. It concluded that the lower courts’ decisions were based on law and well reasoned and that the rights complained of were not violated.
In respect of the first applicant, Ms Ljuba Čekić the Constitutional Court stated as follows:
... The applicant is treating her constitutional complaint as a regular legal remedy and is asking the Constitutional Court to act as a court of appeal in respect of the courts that gave the impugned judgments.
However, according to the constitutional definition of the Constitutional Court’s jurisdiction, as regulated by Article 128 § 1 (4) of the Constitution as well as by Section 59 of the Constitutional Court Act, a constitutional complaint is a remedy established for the protection of human rights and fundamental freedoms and may be filed against an act (and the proceedings that preceded such an act) that has violated an applicant’s human rights or fundamental freedoms guaranteed by the Constitution (constitutional rights).
The applicant asks the Constitutional Court to rule that the contested judgments violated her rights guaranteed in Article 14 § 2, Article 16 § 1, Articles 19, 26 and 32, Article 48 § 1 and Article 56 § 1 of the Constitution in connection with Articles 3, 5 and 89 and Article 117 § 3 of the Constitution.
More specifically, the applicant alleges an infringement of her constitutional rights under Article 14 § 2 and Article 26 of the Constitution, in that her right to equality before the law and before the courts had been violated because the first-instance court failed to ask the defendant to certify the exact amount of the pension instalments that had not been paid to the applicant during the material period.
However, the first-instance court established that the late applicant’s husband had received a pension from a “para-fund”, whose acts were recognised on the basis of Section 1 of the Validation Act (Official Gazette no. 104/97). According to Section 134 § 1 of the former Pensions and Invalidity Act (Official Gazette nos. 26/83, 5/86, 42/87, 34/89, 40/90, 9/91, 26/93, 96/93, 44/94 and 59/96) and Section 89 of the Pensions Act (Official Gazette no. 102/98) a beneficiary who has acquired the right to two or more pensions is allowed to receive only one pension. Accordingly, the first-instance court established that the late applicant’s husband had chosen to receive in the relevant period a pension based on the act that that court recognised pursuant to Section 1 of the Validation Act; it further established that the applicant had no legal basis to claim for the same period another pension on a different basis.
The applicant herself indicated the value of her claim. In rejecting the applicant’s request that the exact amount of the pension instalments that she sought be established, having already ruled that her claim had no legal basis, the first-instance court did not violate her right to equality before the law and the courts.
Lastly, the second-instance judgment accepted the defendant’s objection based on the statutory limitation in Section 87 § 2 of the Pensions Act, which provides that all outstanding payments under § 1 of that provision (pensions and other monetary instalments) that have not been paid owing to circumstances caused by a beneficiary can be sought only for the twelve months preceding the day when the claim for payment has been filed, noting that the applicant had filed her claim on 19 July 1999 but had been in receipt of her family pension since 1 July 1998, a period of more than twelve months before the time when she filed her claim.
The facts relevant in the proceedings in which the impugned judgments were given, and on which the applicant based her constitutional complaint, are not relevant for the assessment whether the applicant’s constitutional rights were violated. Presentation of evidence and the establishment of facts fall within the competence of the courts that conducted those proceedings.”
In respect of the other four applicants the Constitutional Court gave very similar reasoning.
The relevant parts of the Pensions Act (Zakon o mirovinskom osiguranju - Official Gazette no. 102/1998) provide in its Section 87 § 2 that pension instalments which have not been paid owing to circumstances caused by a beneficiary can be sought only for the past twelve months, and that the period before that falls within the statutory limitation.
Section 89 provides that a person who, according to Croatian law, is entitled to two or more pensions under the compulsory national retirement pension scheme may receive only one of those pensions.
Section 1 of the Validation Act (Zakon o konvalidaciji, Official Gazette no. 104/97) provides that all individual acts and decisions issued by various bodies or legal persons exercising public authority in matters of a judicial or administrative nature in the parts of the Republic of Croatia that were under the protection and authority of the United Nations, are to be validated by that Act, according to the Constitution, the Constitutional Act on human rights and freedoms and the rights of ethnic and national communities or minorities in Croatia and other statutes.


ITEMID: 001-95073
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KRIVENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 4. The applicant was born in 1963 and lives in the city of IvanoFrankivsk, Ukraine.
5. The applicant, a former military serviceman brought proceedings against military unit A-3339, where he had served before retirement, claiming compensation for his uniform. On 2 October 2003 the IvanoFrankivsk Court found for the applicant and awarded him 2,393.62 Ukrainian hryvnias (UAH).
6. On 13 November 2003 the Ivano-Frankivsk Bailiffs' Service initiated enforcement proceedings.
7. On an unspecified date the above military unit was liquidated and the judgment debt was transferred to its legal successor, military unit A-1807.
8. Following this event the enforcement writ was transferred to the Yaremcha Bailiffs' Service. On 11 February 2008 the latter instituted enforcement proceedings in respect of the judgment.
9. On 24 June 2008 the enforcement writ was returned to the applicant. The judgment has not been enforced due to the debtor's lack of funds.
10. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-61634
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF THAMPIBILLAI v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3
TEXT: 9. The applicant was born in 1973 and currently resides in Oosterbeek.
10. On 9 January 1995 the applicant arrived in the Netherlands, where, on 10 January 1995, he applied for asylum or, alternatively, a residence permit for compelling reasons of a humanitarian nature (klemmende redenen van humanitaire aard). In support of his claim for asylum he submitted the following.
11. He belonged to the Tamil population group and came from a farming family in the town of Vavuniya in the north of Sri Lanka, bordering on the area controlled by the Tamil Tigers (the “LTTE”), a Tamil terrorist organisation, engaged in an armed struggle for independence. LTTE members would often visit Tamils living in the area in order to obtain food. The Sri Lankan army was therefore quick to suspect local farmers of supporting the LTTE.
12. In August 1990 the applicant's father was shot dead on his land by the Sri Lankan army because they suspected him of providing material assistance to the LTTE. The day after his father's killing, the applicant's mother sent him to the town of Jaffna, which was under LTTE control at the time, where he stayed for two months with his uncle. Following the death of his father, the applicant's brother became a fighter with the LTTE and neither the applicant nor his mother have heard from him since.
13. On 12 January 1991 the applicant was arrested in his home by the Sri Lankan army and detained in the Joseph military camp for two weeks. Every other day he was questioned about the whereabouts of his brother. The soldiers told him that his father had been an LTTE member and that the applicant must know other LTTE members. During these interrogations soldiers beat him with their fists and sticks. He was also hung from the ceiling by his thumbs. Upon the arrival of new detainees, the applicant had to identify LTTE members among them.
14. After two weeks, he was released on condition that he report to the camp daily. The ill-treatment to which he had been subjected had resulted in internal injuries requiring hospital treatment for two weeks.
15. Every time he reported to the camp he was ill-treated, and often questioned. Sometimes he was made to accompany soldiers driving through Vavuniya so that he could point out LTTE members. After a month of reporting to the camp daily, he was told to report on a weekly basis. However, a daily reporting duty was once again imposed on him from May 1993 when a large number of LTTE members was said to have arrived in Vavuniya; the soldiers said that the applicant's brother might be among them and the applicant was to point him out to them. According to the soldiers, his brother was an important LTTE member who was responsible for many bomb attacks.
16. Because the applicant could no longer cope either physically or mentally with the daily reporting duty, the interrogations, the ill-treatment and having to identify LTTE members, he decided to leave the country. In addition, he knew of other persons who had a similar reporting duty who had disappeared. He feared the same thing could happen to him.
17. On 19 May 1994 the applicant travelled to Colombo by train with his mother. During this trip, he was in possession of an identity card which his mother subsequently took back with her to Vavuniya. On 20 May 1994 the applicant, using a passport bearing his name, flew to Singapore and then, the next day, on to Moscow. He travelled from Moscow to the Netherlands in a van on 5 January 1995. His passport had been taken from him by an intermediary in Moscow.
18. Whilst in Moscow he received two letters from his mother stating that she had been arrested and detained for two days by the army, and that the army were searching for him because he had failed to report. The applicant did not keep these letters.
19. On 11 May 1995 the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant's requests, considering that it had not been established that the applicant had shown himself to be an opponent of the regime in Sri Lanka or that he was known as such by the authorities. Given that his arrest in 1991 had obviously not constituted a reason for him to leave the country immediately, and that he had been able to leave Sri Lanka unhindered through the normal channels, it could not be said that at the time of departure he had been in such a dangerous situation that he could not have been expected to remain in his country of origin. The applicant was also notified that he would not be allowed to remain in the Netherlands when any objection (bezwaar) he might submit was being considered.
20. The applicant lodged an objection on 9 June 1995 and also requested an interim measure (voorlopige voorziening) from the Regional Court (arrondissementsrechtbank) of The Hague sitting in Zwolle. The request for an interim measure was declared inadmissible by the President of the Regional Court on 16 August 1995 because no grounds had been submitted for the objection. The objection itself was rejected by the Deputy Minister for Justice on 8 August 1996 for the same reason. The Deputy Minister held in addition that, even if grounds for the objection had been submitted, merely invoking the general situation in Sri Lanka was insufficient to justify the conclusion that the applicant would be subjected to either persecution or treatment contrary to Article 3 of the Convention if returned to that country.
21. On 18 September 1996 the applicant appealed to the Regional Court of The Hague sitting in Amsterdam. Finding that the Deputy Minister had been correct in rejecting the applicant's objection, the Regional Court dismissed the appeal by a final decision of 27 June 1997.
22. The applicant did not, however, leave the Netherlands and neither was he forcibly expelled. On 29 September 1997 he lodged a new request for a residence permit for compelling reasons of a humanitarian nature. This request was rejected by the Deputy Minister for Justice on 30 October 1997 who considered that, even though recent developments in Sri Lanka continued to give cause for concern, the general situation there had not changed to such an extent that it required the Netherlands Government to amend their policy relating to Tamil asylum seekers. The applicant had failed to show that concrete reasons, related to facts and circumstances affecting him personally, existed which could justify the conclusion that he would be exposed to a real risk of treatment contrary to Article 3 of the Convention if returned to Sri Lanka. The Deputy Minister further informed the applicant that he would not be allowed to remain in the Netherlands pending the examination of any objection he might wish to lodge.
23. On 27 November 1997 the applicant submitted an objection to the decision of the Deputy Minister, and on 26 January 1998 he requested an interim measure from the Regional Court of The Hague sitting in Amsterdam in order to prevent his expulsion. On 4 March 1998 the President of the Regional Court granted the interim measure, considering that the applicant belonged to one or more of the so-called “categories at risk”: categories of people who ran the risk of being detained in Colombo for more than 48 hours pursuant to the Emergency Regulations in force.
24. The applicant was given the opportunity to comment on his application for a residence permit before an official committee (ambtelijke commissie) on 13 May 1998.
25. The applicant's objection was rejected by the Deputy Minister for Justice on 2 December 1998. Given that the applicant's claim for asylum had already been finally and conclusively rejected, and that he had failed to adduce any new facts or circumstances but had only made references to the general situation in Sri Lanka, the Deputy Minister considered that the request for a residence permit was no more than an attempt to frustrate his departure from the Netherlands. In any event, the fact that the applicant had not left Sri Lanka until 1994, even though the problems he had allegedly suffered stemmed from alleged events in 1991 and 1992, militated against the assumption that he would currently run a real risk of treatment contrary to Article 3 of the Convention.
26. The Deputy Minister further informed the applicant that any appeal lodged by him would be dealt with expeditiously, and the applicant's departure from the Netherlands would be deferred pending such an appeal.
27. The applicant lodged an appeal with the Regional Court of The Hague sitting in Amsterdam on 23 December 1998. He argued that the information from the Ministry of Foreign Affairs, used by the Deputy Minister for the determination of asylum claims of Tamils from Sri Lanka, was seriously lacking. Referring to information from Amnesty International, the applicant submitted that the group of persons who ran the risk of being detained for more than a week and tortured during that time was far greater than assumed by the Ministry of Foreign Affairs. Moreover, the Ministry's official report (ambtsbericht) of 6 November 1998 itself stated that, if a detainee was held for more than one week, during which time he was questioned about LTTE involvement, there was a great likelihood that the detainee would be ill-treated. In addition, according to the same official report, a Tamil with a relative known to be an LTTE member ran the risk of being detained for more than a week.
28. At the hearing of his appeal before the Regional Court on 11 January 2000, the applicant further submitted that he ran an extra risk of detention now that an amendment to the Immigrants and Emigrants Act had entered into force, given that he had left Sri Lanka on an unofficial passport.
29. The Regional Court rejected the appeal by judgment of 22 February 2000. It considered that where Sri Lankan Tamils belonging to one of the categories at risk were concerned, it should in general be readily accepted that a real risk of treatment in breach of Article 3 existed. Nevertheless, not every Tamil belonging to one of the categories ran a real risk of treatment contrary to Article 3. The likelihood of such Tamils being apprehended for checks on a more or less regular basis upon their return to Colombo as a result of the security situation in Sri Lanka was in itself insufficient to conclude that unacceptable risks existed, even if the persons concerned encountered a certain heavy-handedness in the process. As regards the applicant, the Regional Court saw no reason to come to a different assessment from that made on the applicant's request for asylum. The applicant's argument that the Sri Lankan authorities held a file on him was only an assumption and had not been shown to be plausible. Even though the Regional Court considered it likely that persons returning would be interviewed by the Sri Lankan authorities at Colombo airport in order to establish whether or not they had left the country through illegal channels, this did not lead to a considerably increased risk of treatment in breach of Article 3. Neither was it contrary to Article 3 to prosecute and sentence persons who had contravened the Immigrants and Emigrants Act. In any event, the applicant had stated that his uncle had obtained a passport for him from the Immigration Office in Colombo, and it was therefore unlikely that the applicant had left Sri Lanka on a passport which the authorities of that country knew to be forged.
30. On 12 September 2000, i.e. following the introduction of the present application to the Court, the applicant lodged a new request for asylum. This was refused on 16 September 2000. His objection against that decision, as well as his request for an interim measure, was rejected by the President of the Regional Court of The Hague sitting in Zwolle on 4 October 2000. In this decision the President based himself on information contained in official reports from the Ministry of Foreign Affairs of 28 July and 22 August 2000, the accuracy of which, according to the President, had not been sufficiently disproved by the applicant. The President concluded that the security situation in Colombo for rejected Tamil asylum seekers was not such that they had to fear treatment contrary to Article 3. The President further referred to a letter of the UNHCR (United Nations High Commissioner for Refugees) of 22 June 2000 in which the latter organisation stated its opinion that the expulsion of rejected Tamil asylum seekers was acceptable as long as they were in possession of identity documents issued by the Sri Lankan authorities. The President noted that the applicant would be provided with an identity document by the Sri Lankan Embassy in the Netherlands which he could use, even after its expiry, until such time as a new national identity card was issued to him.
31. Under Article 15 § 1 of the Aliens Act 1965 (vreemdelingenwet, hereinafter “the Act”), in force at the relevant time, aliens coming from a country where they have a well-founded reason to fear persecution on account of their religious or political conviction, or of belonging to a particular race or a particular social group, could be admitted by the Minister of Justice as refugees.
32. The expression “refugee” in this provision was construed to have the same meaning as in Article 1 of the Convention relating to the Status of Refugees of 28 July 1951 (decision of the Judicial Division of the Raad van State of 16 October 1980, Rechtspraak Vreemdelingenrecht – Immigration Law Reports – 1981, no. 1).
33. Aliens, other than refugees, wishing to reside in the Netherlands for any length of time had to hold a residence permit (Article 9 of the Act). Such a permit was to be requested from, and granted by, the Minister of Justice (Article 11 § 1 of the Act).
34. Given the situation obtaining in the Netherlands with regard to population size and employment, Government policy was – and is – aimed at restricting the number of aliens admitted to the Netherlands. In general, aliens are only granted admission for residence purposes if:
(a) the Netherlands are obliged under international law to do so, as in the case of citizens of the European Union or Benelux member States and refugees covered by the above-mentioned Geneva Convention; or
(b) this serves the “essential interests of the Netherlands”, e.g. economic or cultural interests; or
(c) there are “compelling reasons of a humanitarian nature”.
35. An alien not, or no longer, qualifying for admission to the Netherlands could be expelled (Article 22 § 1 of the Act). However, aliens claiming that their removal from the Netherlands would compel them to travel to a country where they have reason to fear persecution on one of the grounds set out in Article 15 § 1 (see paragraph 31 above) could not be expelled except by a specific order of the Minister of Justice (Article 22 § 2).
36. An objection (bezwaar) against the refusal to grant refugee status or a residence permit lay to the Deputy Minister of Justice (Articles 6:4 and 7:1 of the General Administrative Law Act (Algemene Wet Bestuursrecht), Article 29 of the Aliens Act). An appeal against the rejection of an objection lay to the Administrative Law Section of the Regional Court of The Hague (Article 8:1 of the General Administrative Law Act; Article 33a of the Aliens Act). No further appeal was allowed (Article 33e of the Act).
37. At the time of the decision on the applicant's objection (2 December 1998), as well as in the period leading up to the introduction of the present application, Netherlands policy was based on country reports issued by the Ministry of Foreign Affairs on 24 March and 6 November 1998.
38. To assess whether a person ran a real risk of being treated in a manner contrary to the provisions of Article 3 of the Convention, the following factors were taken into account:
- All young Tamils in Colombo who speak little Sinhalese and whose documents reveal that they were born in the north ran the risk of being taken to a police station for questioning following an identity check. Most were released within 48 to 72 hours once their identity had been established and they had explained their reasons for being in the city.
- People who had recently come to Colombo from a war zone and had no identity documents or “valid” reason for being in Colombo, ran the risk of being held for longer than 48 to 72 hours so that further enquiries could be made. People who failed to register on arrival also lay themselves open to suspicion.
- Tamils suspected of LTTE activities on the basis of police files or information from other sources ran the risk of being held for more than a week. This also applied to people whom the authorities believed could provide information on the LTTE, such as people known to have a relative who is an LTTE member.
- People could be detained for 3, 12 or 18 months under the Emergency Regulations or the Prevention of Terrorism Act if there was firm evidence that they were involved in the LTTE. Such evidence included arms caches or suspect documents.
39. Persons held for longer than 48 to 72 hours for further questioning could be treated roughly (beatings). Where the person concerned was held for more than a week, and questioned about LTTE involvement, the risk of illtreatment was considerable.
40. The mere fact that a Tamil belonged to one or more of the above categories of persons, who in theory ran the risk of longer detention, did not necessarily mean that there was a real risk of their being subjected to treatment prohibited by Article 3 of the Convention. According to the country report of 6 November 1998, it could be assumed that, in any event, no such risk existed in the case of Tamils falling into the first two categories.
41. A country report of 30 September 1999 stated that an amendment to the Immigrants and Emigrants Act had entered into force on 28 July 1998, pursuant to which the penalty for using forged travel documents was increased. According to the report, at the time of a person's return to Sri Lanka there was generally insufficient evidence of use having been made of forged documents for the outward journey.
This country report also contained information on the procedure followed by police in respect of persons apprehended at the airport or in the course of a round-up. The list of names of the arrested persons was passed to the National Intelligence Bureau to see if any of the names featured in the database held by the Bureau. All persons suspected of violating the Prevention of Terrorism Act or the Emergency Regulations were included in the files of wanted persons. However, the police did not in all cases have information concerning that person. Information was only available if the person concerned had either been arrested previously or been denounced by another detainee.
42. The Netherlands policy in force at the time of the most recent decision of the Deputy Minister of Justice (16 September 2000, see paragraph 30 above), was based on the country reports of 28 July and 22 August 2000. These reports indicated that Tamils fleeing the war could find an alternative place of residence in Government-controlled areas, including Colombo. Tamils were subject to frequent identity checks in Government-controlled areas, especially on or around public holidays, after attacks and if the military position of Government troops had deteriorated. Tamils who could not identify themselves on the spot or who were believed to come from the north or east of Sri Lanka could be arrested. Most were released within 48 to 72 hours, after their identity and background had been checked. As to the factors which could occasion longer detention, the report of 28 July 2000 referred to that of 6 November 1998.
43. The country report of 15 May 2002 included information on the developments of the peace process that was started in 2000, stating that a formal cease-fire agreement (CFA) between the Government and the LTTE had been signed on 22 February 2002. It further stated that during the period under review one suicide attack had taken place in Colombo, which had not been followed by the usual round-ups, large-scale identity checks and arrests. After the installation of Ranil Wickremasinghe as prime minister in December 2001, the security situation in Colombo had improved considerably and the atmosphere in the city was relaxed and had normalised. Most roadblocks and checkpoints were removed. The number of identity checks had been drastically reduced and there were no reports of arrests of LTTE suspects.
44. The most recent country report, of 28 May 2003, confirmed that the security situation in Sri Lanka had significantly improved as had freedom of movement. Tamils were free to travel through the whole of the country without requiring prior permission to enter certain areas. As a result, it was now far simpler for Tamils fleeing LTTE-controlled areas to go to areas under Government control. In Colombo, no restrictions on freedom of movement applied. During the period under review, the Sri Lankan authorities had in general respected human rights, in line with the provisions of the CFA. No arbitrary arrests had been made. Ill-treatment and torture to which persons who had been arrested on suspicion of membership of, or involvement in, the LTTE had been subjected in the past, no longer occurred.
45. As of 2001, returning rejected asylum seekers were for the most part allowed to leave the airport after their identity documents had been checked. In a few cases, returnees had been handed over to the Criminal Investigation Department (CID), usually within 24 but sometimes within 48 to 72 hours, and subsequently transferred to a Magistrates Court. The Magistrates Court judge decided whether, on the basis of the information provided by the CID, the person concerned should be remanded in prison, released on bail pending the conclusion of the investigation, or simply released. During the period under review, all returnees were released the same day, either on or without bail. Unless they tried to enter the country using forged travel documents, returning rejected asylum seekers generally did not have to fear prosecution under the terms of the Immigrants and Emigrants Act.
46. In its Annual Report 2003, covering events from January to December 2002, Amnesty International noted with respect to Sri Lanka:
“There was a major improvement in the human rights situation in the context of a cease-fire and peace talks between the Government and the LTTE. However, torture in police custody continued to be reported frequently...
Unilateral cease-fires declared by both the Government and the LTTE in late 2001 were followed by a formal cease-fire agreement (CFA) that came into force on 23 February. Peace negotiations, facilitated by the Norwegian Government, started in September in Thailand. A Sri Lanka Monitoring Mission (SLMM) consisting of representatives of Nordic countries was set up to verify the implementation of the agreement through on-site monitoring. By November, about 180,000 of the estimated 800,000 internally displaced persons (IDPs) had returned home...
As part of the CFA, the Government made a commitment not to arrest anyone under the PTA.”
47. On 31 March 2003 the US Department of State released the Sri Lanka Country Report on Human Rights Practices for 2002. It stated:
“In the past, arbitrary arrest and detention were problems; however, there were no reports of arbitrary arrests or detentions during the year...
Unlike in previous years, there were no large-scale arrests of Tamils during the year...
The ... reports of regular mistreatment by security forces largely ceased...
The reconciliation also has led to a sharp reduction in roadblocks and checkpoints around the country, the return of approximately 150,000 IDPs to their points of origin in the north and east, and to the opening of numerous investigations into actions by security force personnel...
The Government restricted the movement of displaced Tamils due to possible security, economic, and social concerns. These restrictions have been lifted with the onset of the peace process.”
48. The Operational Guidance Note on Sri Lanka, issued on 23 July 2003 by the Immigration and Nationality Directorate (Asylum and Appeals Policy Directorate) of the United Kingdom Home Office reported:
“The authorities in Sri Lanka will no longer be concerned with those individuals with past low-level support for the LTTE (e.g. digging trenches, providing food/shelter to LTTE fighters), those with no police/criminal record or those who may have been arrested in the past and subsequently released. Those individuals who may be of continuing interest to the authorities would be ... “those wanted in a relatively serious fashion”. This could mean high-profile members of the LTTE who are still active and influential, and wanted by the authorities.”
49. On 4 November 2003, the Sri Lankan President Chandrika Kumaratunga suspended parliament and sacked three senior ministers. The President accused the Government of making too many concessions to the LTTE. On 14 November 2003, Norwegian mediators said, after talks with the LTTE, that the peace process was on hold until the country's political crisis was resolved. The mediators had passed on to the LTTE guarantees from both the President and the Prime Minister that they would abide by the CFA. The LTTE stated that they would be patient during the political upheaval.
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