ITEMID: 001-4943
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: DE BRUYN v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicant is a Dutch national, born in 1959, and resides in Oudewater. He is represented by Mr L.J.L. Heukels, a lawyer practising in Haarlem, the Netherlands.
a. Particular circumstances of the present case
On 15 November 1991, in the context of an inspection by the General Inspection Service (Algemene Inspectie Dienst) of the Ministry of Agriculture, Nature Conservancy and Fisheries (Ministerie van Landbouw, Natuurbeheer en Visserij), urine samples were taken from cattle on the applicant’s farm and two plastic bottles containing a suspect liquid found on the farm were seized. Subsequent tests of the urine samples indicated that nine cows had been administered the illegal substance clenbuterol. The two plastic bottles seized were found to contain clenbuterol.
The applicant was summoned to appear before the single-judge chamber for economic offences (economische politierechter) of the Regional Court (Arrondissementsrechtbank) of Utrecht to answer charges of possession of beef cattle to which clenbuterol had been administered, of illegal possession of clenbuterol and of illegally administering that substance to animals. A hearing was held on 7 October 1993 in the course of which the applicant gave evidence.
By judgment of 21 October 1993, the applicant was convicted of the first two charges and sentenced to payment of a fine of NLG. 600. The nine cows and the two plastic bottles were declared forfeit. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam.
On 23 June 1995, a hearing was held before the Court of Appeal. According to the formal record (proces-verbaal) of this hearing, the applicant’s lawyer submitted his memorandum of oral pleading (pleitnota) to the Court of Appeal and this document was added to the case-file.
In its judgment of 4 July 1995, the Court of Appeal quashed the judgment of 21 October 1993, convicted the applicant of the first two charges and sentenced him to payment of a fine of NLG. 4,500 in respect of the first charge and a fine of NLG. 500 in respect of the second charge. The nine cows and the two plastic bottles were declared forfeit.
Insofar as the applicant complained that the technical manner in which the samples at issue had been taken, packed, sealed, transported and tested was contrary to his rights under Article 8 of the Convention in that this provision is aimed at protecting individuals against arbitrary acts by public authorities, the Court of Appeal held that no concrete doubts had arisen as regards the taking, packing, sealing, transporting and the testing of these samples. The Court of Appeal added that it did failed to see the connection between Article 8 of the Convention and the manner in which these samples were obtained and subsequently handled.
It considered that the mere speculations expressed by the applicant’s lawyer at the hearing on appeal were insufficient to invoke the unreliability of the taking and subsequent handling of the samples at issue. It accepted the method used by the General Inspection Service as containing sufficient guarantees.
The Court of Appeal further rejected arguments raised by the applicant in relation to the findings of the Court of Justice of the European Communities in its judgment in case No. C - 143/91 and the EEC Council Directive 86/469 of 16 September 1986. It held that these arguments did not alter the fact that the first charge against the applicant constituted a punishable offence.
The Court of Appeal further rejected a request by the defence to seek a preliminary ruling from the Court of Justice of the European Communities as regards the alleged incompatibility of the Dutch rules in respect of growth inducing hormones with the EEC Council Directive 86/469 of 16 September 1986. It held that no necessity to do so had appeared, as Member States of the European Communities are at liberty to issue stricter rules than those set by the Directive concerned.
The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad) and, by letter of 26 February 1996, his lawyer submitted the applicant’s complaints in cassation to the Supreme Court. On 11 June 1996 a hearing was held before the Supreme Court in the course of which it considered the applicant’s complaints in cassation and the advisory opinion of the Procurator-General (Procureur-Generaal) to the Supreme Court.
By letter of 18 June 1996 to the Supreme Court, the applicant’s lawyer reacted to the advisory opinion of the Procurator-General.
At some unspecified point in time, the Procurator-General submitted an additional advisory opinion to the Supreme Court, to which the applicant’ lawyer reacted in his letter of 13 March 1997 to the Supreme Court. In this letter, the applicant’s lawyer further requested to be informed of the hearing date in order to submit further oral explanations. He did not substantiate this request.
In its judgment of 6 May 1997, the Supreme Court stated that it had noted the contents of the applicant’s letters of 18 June 1996 and 13 March 1997, which had been submitted after the hearing on which the Procurator-General had submitted his advisory opinion and additional advisory opinion respectively.
The Supreme Court rejected the applicant’s complaints in cassation, but following an ex officio examination of the case, quashed the judgment of 4 July 1995 as regards the qualification of the first charge of which the applicant had been convicted and the pertaining part of the sentence, corrected this qualification itself and determined the sentence for this charge at payment of nine separate fines of NLG. 500 each, the payment of NLG. 250 of each fine being suspended pending a probation period of two years.
Referring to Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie, "RO"), the Supreme Court rejected as not prompting a determination of legal issues in the interest of legal unity and legal development without stating any further reasons the applicant’s complaints that certain arguments raised in connection with the application of EEC Directive 86/469 and which were stated in his memorandum of oral pleadings submitted to the Court of Appeal in the course of the hearing held on 23 June 1995 were incorrectly reproduced in the formal record of this hearing and that as a result thereof the Court of Appeal had not dealt with these arguments in its judgment of 4 July 1995.
Insofar as the applicant complained that the Dutch rules at issue, i.e. the complete prohibition of possession of cattle treated with growth inducing hormones, are incompatible with the EEC Council Directive 86/469 of 16 September 1986 and that the Court of Appeal should have sought a preliminary ruling on the matter from the Court of Justice of the European Communities, the Supreme Court noted that this Directive had in the meantime been replaced by Directive 96/23 of 23 April 1996. It rejected this complaint, holding that, according to the judgment of the Court of Justice of the European Communities of 8 October 1992 (No. C - 143/91) invoked by the applicant, one may possess animals to which - in strict compliance with the Directives concerned - substances have been administered for the purpose of therapeutic treatment. However, in the present case it had not been submitted or established before the trial courts that the substance at issue had been administered for that specific purpose.
The Supreme Court also rejected the applicant’s complaints under Article 8 of the Convention in respect of the manner in which the inspection was carried out on 15 November 1991, including that the officials involved had started to take samples in the applicant’s absence and without prior notification, holding that in cassation proceedings no complaints can be raised concerning facts and circumstances which have not been established and which have not been invoked before the trial courts.
b. Relevant domestic law and practice
The 1991 Ordinance on substances with a sympathomimetic effect (Verordening stoffen met sympathico mimetische werking) makes it illegal to administer animal medicines with a sympathomimetic effect containing clenbuterol to beef cattle older than 14 weeks.
Pursuant to Article 3 para. 1 of that Ordinance it is illegal to have in stock, sell or purchase beef cattle to which such substances have been administered, and Article 4 para. 1 makes it illegal to have in stock, sell or purchase their meat.
Clenbuterol is, moreover, an unregistered animal medicine the use or possession of which is prohibited by Article 2 of the Animal Medicines Act (Diergeneesmiddelenwet).
The offences here described are economic offences for the purposes of the Economic Offences Act (Wet op de Economische Delicten), which Act lays down particular rules for the prosecution and punishment of economic offences. Insofar as procedure is concerned, it is a lex specialis in relation to the Code of Criminal Procedure (Wetboek van Strafvordering, "CCP"), the provisions of the latter remaining applicable in so far as the Economic Offences Act does not provide otherwise.
A person convicted by the highest competent trial court may file an appeal in cassation with the Supreme Court (Article 427 CCP). An appeal in cassation is limited to points of law and procedural conformity (Article 99 RO).
An appellant in cassation has the right to submit written grounds of appeal within one month of lodging his appeal on points of law (Article 447 para. 3 CCP), but an appeal in cassation is not automatically declared inadmissible if this has not been done. An appellant in cassation may further submit at the hearing before the Supreme Court grounds of appeal not filed at an earlier stage (Article 433 CCP).
Following the Court’s judgment in the case of Borgers v. Belgium (Eur. Court HR, judgment of 30 October 1991, Series A no. 214 - B), the Supreme Court takes note, before determining an appeal in cassation, of the contents of any reaction from the side of the appellant in cassation to the advisory opinion of the Procurator-General or Advocate-General to the Supreme Court.


ITEMID: 001-97957
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MUSTAFA AND ARMAĞAN AKIN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicants were born in 1957 and 1988 respectively and live in Ödemiş.
6. On 30 September 1999 the first applicant's wife instituted divorce proceedings and asked for the custody of their two children; Armağan (the second applicant) and his younger sister Damla who was born in 1993.
7. The Ödemiş Civil Court of First Instance (“the Ödemiş Court”) granted the couple's divorce on 23 June 2000. Having regard to the “parties' incomes and the ages of the two children”, the Ödemiş Court awarded custody of Armağan to the first applicant and that of Damla to her mother. It also decided that the parents would exchange the children between 1 and 15 February every year, during the month of July and for a total period of four days during the two religious holidays.
8. On 30 November 2000 the first applicant requested the Ödemiş Court to grant an interim measure to the effect that he would have both children one weekend and his ex-wife would have them the next. This way, he argued, the children would not lose contact with each other and he would have the opportunity to spend every other weekend with both his children. This request was rejected on 19 December 2000 by the Ödemiş Court which considered that its decision concerning the custody issue had been correct.
9. The appeal lodged by the applicant against the Ödemiş Court's decision of 23 June 2000 was rejected by the Court of Cassation on 8 December 2000. A request made by the first applicant for a rectification of that decision was rejected on 8 February 2001.
10. On 11 September 2001 the first applicant brought a court case on behalf of his son and on his own behalf against his ex-wife. He claimed that although he and his son were living in the same town and very close to his ex-wife and his daughter, the decision of the Ödemiş Court had prevented the two children from seeing each other and him from spending time with both his children. This, he claimed, was causing irreversible psychological problems for the children. Even when the children saw each other in the street they were prevented from talking to each other by their mother. He requested that the children be able to see each other every weekend.
He also asked the court to order his ex-wife to pay maintenance to him in respect of Armağan.
11. The Ödemiş Court refused the applicants' requests on 1 February 2002. It held that, although diligence had to be shown to satisfy the needs of the parents and their children and to improve the ties between them, ordering Damla to spend every weekend with her father would mean a continual change of environment for her and would confront her with variations in discipline.
12. The applicants appealed and referred in their appeal to a number of decisions of the Court of Cassation. According to those decisions, the applicable law and procedure required domestic courts to ensure that access arrangements do not prevent the children of divorced parents from seeing each other. The applicants maintained that ensuring this was a matter for a court of law to consider of its own motion. They also argued that the children's best interests should be given paramount importance. They drew the Court of Cassation's attention to the fact that the two siblings had not seen each other for two years.
13. The appeal was rejected by the Court of Cassation on 29 April 2002 which considered that the Ödemiş Court had “adequately examined the evidence available to it and that its conclusion had been in accordance with the applicable legislation”. A subsequent rectification request lodged by the applicants was rejected on 15 July 2002. In their request for rectification the applicants submitted that the two children had not seen each other for almost three years and that their request for rectification was their last chance of seeing each other.
VIOLATED_ARTICLES: 8


ITEMID: 001-57462
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1985
DOCNAME: CASE OF COLOZZA v. ITALY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award
JUDGES: C. Russo
TEXT: 9. Mr. Giacinto Colozza was born in 1924 and died in 1983. He was an Italian citizen and lived in Rome.
10. On 20 June 1972, the carabinieri reported the applicant to the Rome public prosecutor’s office for various alleged offences, including fraud, committed before November 1971. They said that they had not questioned the suspect because they had failed to contact him at his last-known address. In fact, his flat, in via Longanesi, had been closed and his furniture seized by the judicial authorities; the manager of the building, who was also the administrator appointed by the court in the attachment proceedings, was unaware of Mr. Colozza’s new address.
On 4 October 1973, the investigating judge issued a "judicial notification" (comunicazione giudiziaria) intended to inform the applicant of the opening of criminal proceedings against him. A bailiff attempted to serve it on Mr. Colozza at the address - via Fonteiana - shown in the Registrar-General’s records, but without success: he had moved - about ten years earlier according to the carabinieri and five years earlier according to the police - and had omitted to inform the City Hall of his change of residence as required by law.
11. Meanwhile Mr. Colozza, when renewing his driving licence in September 1973, had given, as his current address, that shown in the Registrar-General’s records (via Fonteiana).
12. On 14 November 1973, after unsuccessful searches at the latter address, the investigating judge declared the accused untraceable (irreperibile), appointed an official defence lawyer for him and continued the investigations. Thereafter, in pursuance of Article 170 of the Code of Criminal Procedure (see paragraph 19 below), all the documents which had to be served on the applicant were lodged in the registry of the investigating judge, the defence counsel being informed in each case.
On 12 November 1974 and 30 May and 3 June 1975, the investigating judge issued three arrest warrants which were not executed because the competent authorities still did not know where Mr. Colozza was living. It should, however, be noted that the address indicated on the warrants was via Longanesi. On each occasion, the carabinieri drew up a report of fruitless searches (vane ricerche). Mr. Colozza was thenceforth regarded as "latitante", that is as a person wilfully evading the execution of a warrant issued by a court (see paragraph 20 below).
13. By a decision of 9 August 1975, the applicant was committed for trial.
A first hearing was held by the Rome Regional Court on 6 May 1976. Although he had been informed of the lodging of the summons to appear (see paragraph 12 above), the accused’s officially-appointed defence counsel did not appear, with the result that the court had to appoint a replacement and postponed the hearings until 26 November. On that date, a new lawyer was officially assigned, because the one appointed on 6 May did not appear either. The court adjourned the trial and concluded it on 17 December 1976, after appointing, during the sitting and again for the same reason, another official defence lawyer. It sentenced Mr. Colozza to six years’ imprisonment (reclusione) and a fine (multa) of 600,000 Lire. The public prosecutor had called for sentences of five years’ imprisonment and a fine of 2,000,000 Lire and the officially-appointed defence counsel had agreed with his submissions.
The judgment was lodged in the registry on 29 December 1976 and a copy was served on the lawyer. It became final on 16 January 1977, as he had not entered an appeal.
14. On 20 May 1977, the public prosecutor’s office issued an arrest warrant. The applicant was arrested at his home in Rome, 31 via Pian Due Torri, on the following 24 September. On the next day, he raised a "procedural objection" (incidente d’esecuzione) as regards this warrant and at the same time filed a "late appeal" (appello apparentemente tardivo; see paragraph 23 below). He appointed a lawyer and instructed him to draft the grounds of appeal. However, he submitted them himself on 24 December 1977 and lodged a supplementary memorial on 25 July 1978. On 15 November and 28 December 1977, he appointed new lawyers.
15. On 29 April 1978, the Rome Regional Court dismissed the "procedural objection" and ordered that the papers be sent to the Rome Court of Appeal for a ruling on the "late appeal".
Mr. Colozza maintained that he had been wrongly declared "latitante" and that the notifications of the summons to appear and of the extract from the judgment rendered by default were therefore null and void.
He explained that, as he had received notice to quit from his landlord at the end of 1971, he had left his flat in via Fonteiana and, before finding a new one, had lived in a hotel. He pointed out that his new address (via Pian Due Torri) was known to the police since, on 12 March 1977, they had summoned him to the local police station for questioning; the same applied both to the Rome public prosecutor’s office, which, on 7 October 1976 (that is to say, almost two months before adoption of the judgment), had sent him a "judicial notification" concerning other criminal proceedings, and to various public authorities, which had served documents on him, using the notification service of the Rome City Hall.
16. Mr. Colozza’s appeal was examined together with an appeal that had been entered by his co-accused. The Court of Appeal heard Mr. Colozza both on the merits of the case and on the fact that he had been treated as "latitante".
The public prosecutor attached to the Court of Appeal also submitted that the judgment of 17 December 1976 should be set aside; in his view, Mr. Colozza should not have been regarded as "latitante".
On 10 November 1978, the Court of Appeal confirmed the conviction of the co-accused. As to Mr. Colozza, it held that his appeal was inadmissible for failure to observe time-limits. It ruled that the time-limit for filing the grounds of appeal - twenty days, under Article 201 of the Code of Criminal Procedure - had begun to run on 13 October 1977, the date on which the arrest warrant had been served, whereas the memorial had not been submitted until 24 December 1977.
17. Mr. Colozza lodged an appeal on points of law but it was dismissed by the Court of Cassation on 5 November 1979. It accepted that the Court of Appeal had wrongly declared the "late appeal" inadmissible for failure to file the grounds in time: it should first have determined whether, as the appellant alleged, the first-instance proceedings were void. However, the Court of Cassation concluded that this was not so: it considered that Mr. Colozza had rightly been declared first to be "irreperibile" and then to be "latitante". It added that the Court of Appeal should have declared the appeal inadmissible as out of time, since it had been lodged at a time when the judgment under appeal had already become final.
Mr. Colozza, who had been in custody since 23 September 1977 to serve his sentence, as well as other suspended sentences previously passed on him, died in prison on 2 December 1983 (see paragraph 6 above).
18. The Code of Criminal Procedure lays down the methods for notifying an accused person who is not in custody of the various documents pertaining to the investigations and the trial.
When the first procedural step involving the presence of such an accused is taken, the court, the public prosecutor’s office or the official of the criminal investigation department must ask the accused to indicate the place where notifications should be made or to elect an address for service (Article 171, first paragraph). If he does not do so, Article 169 applies; this provides, inter alia, that if the first notification cannot be made to the party concerned in person, it is to be delivered, at his place of residence or of work, to a person living with him or to the caretaker. If those two places are not known, notification is to be left where the party concerned is living temporarily or has an address, by delivery to one of the above-mentioned persons.
19. The Code of Criminal Procedure does not define the concept of "irreperibile". Nevertheless, according to the relevant rules, it may apply to any person on whom a document concerning criminal proceedings opened against him has to be served and whom it has not been possible to trace because his address was unknown. The mere establishment of this fact - the question whether there has been a wilful evasion of the investigations being irrelevant in this context - is enough for this purpose. According to Article 170, the bailiff has to inform the judge who ordered the notification. The latter, after directing that further searches be conducted at the place of birth or last residence, will then issue a decree (decreto) to the effect that notifications shall be effected by being lodged in the registry of the court before which proceedings are in progress. The defence lawyer must be informed immediately whenever a document is so lodged; if the accused has no lawyer, the court has to assign one to him officially.
20. This system of notification is also used if the accused is "latitante" (Article 173).
According to the first paragraph of Article 268, any person wilfully evading execution of, inter alia, an arrest warrant shall be regarded as being "latitante". The third paragraph states that whenever classification as "latitante" entails legal consequences, these are to extend to the other proceedings instituted against the person in question. If he does not have a lawyer of his own choosing, an official appointment will be made.
The Court of Cassation has consistently held that an intention to evade arrest is to be presumed where adequate searches by the criminal investigation police have been unsuccessful. This presumption exists even if the person in question, after moving and failing to make the statutory declaration of change of residence, has not resorted to any special subterfuges to avoid arrest (3rd Criminal Chamber, 12 March 1973, no. 559, Repertorio 1974, no. 3440; 6th Criminal Chamber, 20 October 1971, no. 3195, Repertorio 1973, no. 4897; Massimario delle decisioni penali, 1972, no. 1959). In its judgment no. 98 of 2 June 1977, the Constitutional Court specified, however, that the presumption can be rebutted and is thus not irrefutable.
The term "adequate searches" leaves the criminal investigation police with a measure of discretion as to the steps to be taken; this discretion is however limited, in that the person concerned must be sought at the residence indicated in the arrest warrant (2nd Criminal Chamber, 19 October 1978, no. 12698, massima no. 140224).
21. Although trial by "contumacia" (by default; Articles 497 to 501 of the Code of Criminal Procedure) is classified as a special form of proceedings, the ordinary procedure is followed (Article 499, first paragraph). Such a trial is held when the accused, after being duly summoned, does not appear at the hearing and neither requests nor agrees that it take place in his absence.
22. Under Italian law, an accused who fails to appear (contumace) has the same rights as an accused who is present. He is, for example, entitled to be defended by a lawyer - who will be officially assigned to him by the court if he has not chosen one himself - and to lodge an ordinary appeal or an appeal on points of law against the judgment concerning him. The time-limit for entering such an appeal begins to run only from the day on which he was notified of the decision by means of service of an extract from the judgment. However, in the case of a person who has also been declared to be "irreperibile" or "latitante", time begins to run from the date of the lodging of the judgment in the registry of the court that rendered it.
23. According to Italian case-law, individuals who have not entered an appeal and who consider that the notification of the judgment was irregular can lodge a "late appeal". The time-limits to be observed are the same as for the ordinary appeal (three days for giving notice of appeal and twenty days for submitting the grounds), but both start to run from the date when the person in question had knowledge of the judgment. Nevertheless, in the case of a person regarded as "latitante" the court hearing the appeal can determine the merits of the criminal charge only if it finds that there has been a failure to comply with the rules governing declarations that an accused is "latitante" or governing service on him of the documents in the proceedings; in addition, it is for the person concerned to prove that he was not seeking to evade justice.
24. Article 185 of the Code of Criminal Procedure provides, inter alia, that proceedings shall be null and void if the rules on the participation, assistance and representation of the accused have not been observed. Failure to serve a summons to appear at the hearing and the absence, at that stage, of the accused’s defence counsel constitute grounds of incurable nullity, of which the court must take notice of its own motion at any point in the proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87280
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MATVIYETS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1926 and lives in Voronezh.
5. The applicant is a veteran of World War II. Under domestic law the State must subsidise his car’s running costs. Not having received the subsidy in 1996–99, the applicant applied to a court.
6. On 29 May 2001 the Tsentralnyi District Court of Voronezh awarded the applicant 3,666.67 Russian roubles against a regional authority. On 8 June 2001 the judgment became binding, and on 8 May 2007 it was enforced.
7. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a judgment must be enforced within two months.
VIOLATED_ARTICLES: 6


ITEMID: 001-68321
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: TUFANO v. ITALY**
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Mrs Maria Luisa Tufano, is an Italian national who was born in 1948 and lives in Naples.
She was represented before the Court by Mr F. Catapano, a lawyer practising in Naples.
The respondent Government were represented by their successive Agents, respectively Mr U. Leanza and Mr I.M. Braguglia, and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli.
The facts of the cases, as submitted by the parties, may be summarised as follows.
The applicant is the owner of three flats in Naples, which she had let respectively to F.T., A.S. and G.M., and V.R.
In a writ served on the tenant on 26 May 1983, the applicant informed the tenant of her intention to terminate the lease on expiry of the term on 31 December 1983 and summoned her to appear before the Naples Magistrate.
By a decision of 30 April 1985, which was made enforceable on 18 May 1985, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1985.
On 26 January 1990, the applicant served notice on the tenant requiring her to vacate the premises.
On 19 February 1990, she informed the tenant that the order for possession would be enforced by a bailiff on 29 March 1990.
Between 29 March 1990 and 1 September 2000, the bailiff made eight attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
In the meanwhile, on 9 June 1998, the applicant made a statutory declaration that she urgently required the premises as accommodation for her daughter as her residence.
On 1 September 2000, the applicant recovered possession of the flat.
In a writ served on the tenant on 26 April 1986, the applicant informed the tenants of her intention to terminate the lease and summoned them to appear before the Naples Magistrate.
By a decision of 13 February 1987, which was made enforceable on the same day, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 14 May 1987.
On 26 January 1990, the applicant served notice on the tenants requiring them to vacate the premises.
On 19 February 1990, she informed the tenants that the order for possession would be enforced by a bailiff on 29 March 1990.
Between 23 March 1990 and 1 September 2000, the bailiff made eight attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
In the meanwhile, on 9 June 1998, the applicant made a statutory declaration that she urgently required the premises as accommodation for her daughter as her office.
On 1 September 2000, the applicant recovered possession of the flat.
In a writ served on the tenant on 26 April 1986, the applicant informed the tenant of her intention to terminate the lease and summoned him to appear before the Naples Magistrate.
The tenant told the applicant that he would not leave the premises.
By a decision of 16 May 1988, which was made enforceable on 30 July 1988, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 4 March 1989.
On 26 January 1990, the applicant served notice on the tenant requiring him to vacate the premises.
On 19 February 1990, she informed the tenant that the order for possession would be enforced by a bailiff on 29 March 1990.
Between 29 March 1990 and 25 May 2001, the bailiff made sixteen attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
In the meanwhile, on 29 September 1997, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.
On 20 July 2001, the applicant recovered possession of the flat.
On an unspecified date, the applicant applied to the Rome Court of Appeal, claiming compensation under the Pinto Act for the length of the three eviction proceedings. She sought redress for non-pecuniary and pecuniary damage.
In three decisions of 12 April 2002, filed with the registry on 26 June 2002, the Rome Court of Appeal rejected the claims on the ground that the delay in the eviction was due either to legislative choices or to the lack of police assistance and therefore the administration of justice could not be held responsible.
The applicant did not appeal to the Court of Cassation. The decisions became final, at the latest, on 15 September 2003.
The relevant domestic law and practice is described in the decision Provvedi c. Italie (no 66644/01, of 2 December 2004).


ITEMID: 001-88175
LANGUAGEISOCODE: ENG
RESPONDENT: MDA;RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KIREEV v. MOLDOVA AND RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi
TEXT: The applicant, Mr Ilja Kireev, is a Russian national who was born in Konskoe and lives in Tighina/Bender (a town on the territory of Moldova, but which, since 1991, is under the control of the self-proclaimed “Moldavian Republic of Transdniestria” (the “MRT”, see more details in Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-31 and 87-91, ECHR 2004VII)).
The facts of the case, as submitted by the applicant, may be summarised as follows.
Starting from 1962 the applicant deposited 16,582 Soviet roubles in the Savings Bank situated in Tighina/Bender. He claimed that the value of his personal savings, which he had deposited with the Savings Bank, had dropped significantly following economic reforms, and that the State had not properly discharged its obligation to revalue the deposits in the Savings Bank in order to offset the effects of inflation.
The applicant lodged an action with the “MRT Supreme Court” asking for compensation for the loss of value of his deposits. On 26 October 2004 the court informed him that it was not competent to deal with such actions and that he should address the regular “MRT courts”.
The applicant lodged an action with “Bender county court” (which is part of the “MRT court system”; there exists another Tighina/Bender county court under Moldovan jurisdiction and located in Varniţa village). On 21 December 2004 the court left the action unexamined, finding that it was incomplete since he had failed to fully identify the respondents and to provide evidence in support of his action, and omitted other necessary information. Following the applicant’s failure to submit the missing documents, on 17 January 2005 his action was returned to him unexamined.
The applicant complained to the Supreme Court of Justice of the Republic of Moldova, which on 6 July 2004 informed him of his right to lodge an action with the Tighina/Bender county court located in Varniţa village. On an unknown date the applicant lodged an action with that court. On 6 January 2005 the court informed him that his action was incomplete, in particular lacking the necessary documentary evidence and proof of payment of court fees. It appears that the applicant submitted no further documents to the Tighina/Bender District Court.
The applicant also complained to the Prosecutor General’s Office of the Republic of Moldova about the loss of value of his deposits. His complaint was forwarded to the Tighina/Bender prosecutor’s office. On 29 March 2004 the Tighina/Bender prosecutor’s office informed the applicant that Moldova and the unrecognised “MRT” had separate budgetary systems and that he should address any claim for compensation to the “MRT authorities” under applicable local legislation.
The applicant states that in 2005 he attempted to obtain compensation for the loss of value of his deposits from a Russian bank in Kirov. This was refused since the law did not allow the payment of compensation to persons who had deposited money in the Savings Bank outside Russia.
As concerns Moldovan legislation regarding compensation for losses caused by inflation, on 12 December 2002 Parliament adopted the Act “Concerning the indexing of citizens’ savings in the Savings Bank of Moldova” (Legea nr.1530-XV din 12 decembrie 2002 privind indexarea depunerilor băneşti ale cetăţenilor în Banca de Economii) (hereinafter “the Moldovan Savings Act 2002”).
Article 1 of that law reads as follows:
“Article 1. Object of the law.
The present law establishes the State’s obligations in respect of citizens of the Republic of Moldova who had savings in the Savings Bank of Moldova as of 2 January 1992, and establishes the basic principles regarding the indexation, quantum and manner of payment of indexed amounts.”
As concerns Russian legislation concerning compensation for losses caused by inflation, the Law on Revaluation and Protection of the Savings of Citizens of the Russian Federation was enacted on 10 May 1995 (Федеральный закон «О восстановлении и защите сбережений граждан Российской Федерации») (hereinafter “the Russian Savings Act 1995”).
Article 1 of that law reads as follows:
“Article 1. The State guarantees the restoration and preservation of the value of financial assets created by citizens of the Russian Federation by depositing monies with the Savings Bank of the Russian Federation (before that the State savings banks of USSR which worked on the territory of the Russian Soviet Socialist Federal Republic) before 20 June 1991; ...”
According to a letter from the Russian Ministry of Finance “Concerning the Transfer of Deposits from Countries of the Commonwealth of Independent States to the Russian Federation”, dated 20 April 1998 (no. 22-03-03):
“... Restoration shall apply to deposits, which by [20 June 1991] were kept in the Russian Savings Bank. However, the above-mentioned law [Russian Savings Act 1995] does not apply to deposits made with the savings banks of other States, which earlier were part of the former USSR.”


ITEMID: 001-101622
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: DELIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mrs Snježana Delić, is a Croatian national who was born in 1964 and lives in Split. She was represented before the Court by Mr S. Štimac, an advocate practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was working as a music teacher in M. Primary School in Split between 1 February and 28 June 1996. She was dismissed following a decision taken by the school's principal on 14 June 1996.
On 23 July 1996 the applicant brought a civil action in the Split Municipal Court (Općinski sud u Splitu) against her former employer challenging her dismissal and seeking reinstatement.
At a hearing held on 16 May 1997 the applicant submitted a power of attorney which authorised Mr M.B. (“M.B.”), who was not an advocate but a teacher in the respondent school, to represent her in the proceedings. The power of attorney read as follows:
“I, Snježana Delić, from Split, ..., authorise M.B. to represent me in the dispute with M. Primary School, Split. ”
On 15 April 1999 the Municipal Court dismissed the applicant's action.
Following an appeal by the applicant, on 14 April 2000 the Split County Court (Županijski sud u Splitu) quashed the first-instance judgment and remitted the case.
In the resumed proceedings, on 19 April 2001 the Split Municipal Court again dismissed the applicant's action.
Following an appeal by the applicant, on 19 April 2002 the Split County Court again quashed the first-instance judgment and remitted the case.
In the resumed proceedings, on 27 June 2003 the Split Municipal Court dismissed the applicant's action for a third time.
On 19 February 2004 the Split County Court dismissed an appeal by the applicant and upheld the first-instance judgment.
Throughout the first and the second-instance proceedings, pursuant to section 138(1) of the Civil Procedure Act, the court decisions and other documents were served on the applicant's representative and not on her personally. All the decisions stated that the applicant was represented by her “representative, M.B.”.
After having received the second-instance judgment of 19 February 2004, the applicant herself drafted and lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske).
On 13 June 2006 the Supreme Court dismissed the applicant's appeal on points of law. The Supreme Court's judgment stated that the applicant was represented by “M.B., an advocate from Split”. Under the Civil Procedure Act, all decisions in a case must be served through the first-instance court. So, on 8 November 2006, the Split Municipal Court served the Supreme Court's judgment on M.B. as the applicant's representative.
On 12 June 2007 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Supreme Court's judgment. In her constitutional complaint the applicant wrote, inter alia:
“Even though I had personally drafted my appeal on points of law and other submissions and had indicated my address, the Supreme Court sent the reply [that is, the judgment of 13 June 2006] to professor M.B. who did not serve the decision on me until a long time had passed because he did not want to make me sad. I consider that the Supreme Court was obliged to reply to the person who had sent [lodged] the appeal [on points of law]. ”
On 3 July 2007, of its own motion, the Supreme Court issued a decision rectifying its judgment of 13 June 2006 so as to specify that the applicant had not been represented in the proceedings before that court. The decision on rectification in its relevant part read as follows:
“Judgment no. Revr-831/05-2 of 13 June 2006 of the Supreme Court of the Republic of Croatia in Zagreb is hereby rectified. In the fourth line of its header ... the words “represented by M.B., an advocate from Split” shall be deleted.
The judgment remains unaltered in the remaining part.
Reasons
On 13 June 2006 judgment no. Revr-831/05-2 was rendered by this court, dismissing as unfounded an appeal of points of law by the plaintiff, Snježana Delić .
By a clerical error in the header of the judgment it was stated that the plaintiff was represented by her representative, M.B., an advocate from Split.
During the proceedings before the lower-instance courts, the plaintiff was represented by her representative, M.B., who is not an advocate.
However, the plaintiff lodged the appeal on points of law herself.
Therefore, it was necessary ... to rectify the judgment of this court in the fourth line of its header by omitting the reference to the plaintiff's representation. ”
The decision on rectification, but not the judgment of 13 June 2006, was served on the applicant personally on 20 February 2008.
On 19 March 2008 the Constitutional Court declared the applicant's constitutional complaint inadmissible as being lodged outside the statutory time-limit of thirty days, and on 8 April 2008 served its decision on the applicant personally. In so deciding, it held that the statutory time-limit for lodging a constitutional complaint had started running on the date that the Supreme Court's judgment of 13 June 2006 had been served on M.B. as the applicant's representative in the civil proceedings which had ended with that judgment. The relevant part of the Constitutional Court's decision read as follows:
“The complainant received the Supreme Court's judgment of 13 June 2006 through her representative M.B., an advocate from Split, on 8 November 2006 ... The constitutional complaint was lodged on 12 June 2007, that is, after the expiry of the time-limit of thirty days. The time-limit for lodging a constitutional complaint in the present [case] expired on Friday, 8 December 2006.”
On 28 April 2008 the applicant sent a letter to the Constitutional Court asking it to reconsider her case. She enclosed the Supreme Court's decision on rectification of 3 July 2007 with her letter. The applicant wrote, inter alia:
It would appear that, on 20 May 2008, the Constitutional Court requested the case file from the Split Municipal Court, which sent it on 9 March 2009. However, the Constitutional Court never replied to the applicant's letter.
The Government submitted that, after receiving the applicant's letter, the Constitutional Court had consulted the case file and established that the service of the Supreme Court's judgment of 13 June 2006 to M.B. constituted the proper service because the applicant had never revoked the power of attorney which she had given to him. Moreover, all decisions adopted during the civil proceedings had been served on him as her representative.
The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:
“Unless provided otherwise by this Constitutional Act, in the proceedings before it, the Constitutional Court shall apply mutatis mutandis the provisions of the relevant procedural laws of the Republic of Croatia as ancillary rules.”
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional self-government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or right to local or regional self-government, guaranteed by the Constitution (“constitutional right”)...
2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] are available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.”
“A constitutional complaint may be lodged within the time-limit of thirty days which begins on the day that the [contested] decision is received.”
“The Constitutional Court shall ... declare inadmissible a [belated] constitutional complaint ....”
The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) as in force at the material time provided as follows:
C h a p t e r f i v e
REPRESENTATIVES
Section 96
“If in the power of attorney the party did not specify the powers of the representative, the representative who is not an advocate, may, on the basis of such a power of attorney, undertake all actions in the proceedings, but shall always need an explicit authorisation to ... lodge extraordinary legal remedies [that is, an appeal on points of law or a petition for reopening of the proceedings].”
C h a p t e r e l e v e n
SERVICE OF DOCUMENTS AND CONSULTATION OF CASE FILES
Method of service
Section 138(1)
“When a party has ... a representative, court documents shall be served on the representative, unless this Act provides otherwise.”
C h a p t e r t w e n t y t h r e e
JUDGMENT
Res judicata
Section 334(2)
“A judgment shall not take effect on the parties until the day it is served on them.”
The relevant part of the Enforcement Act (Ovršni zakon, Official Gazette of the Republic of Croatia, nos. 57/1996, 29/1999, 42/2000, 173/2003, 194/2003, 151/2004, 88/2005, 121/2005 and 6720/08), as in force at the material time, provided as follows:
Certificate of enforceability
Section 33(2) and (3)
“(2) A certificate of enforceability shall be issued by the court or [another] authority which adjudicated the claim in the first instance
(3) A certificate of enforceability for the issuance of which the statutory conditions were not met, shall be cancelled by a decision of the same court or [another] authority, at the request [of a party] or sua sponte.”
Under the Supreme Court's case-law (see, for example, decision no. Rev 1458/1997-2 of 30 September 1997 adopted in the context of civil proceedings, decision no. Uzz 2/1998-2 of 9 June 2000 adopted in the context of administrative proceedings, and decision no. I Kž 905/1995-3 of 13 March 1996 and decision no. IV Kž 45/1993-5 of 29 July 1993 adopted in the context of criminal proceedings), if a party was not properly served with a decision, the time-limit for lodging remedies against it does not start to run and the decision cannot acquire the force of res judicata in respect of that party. In such cases, the date on which the party to whom the decision had not been properly served learned of the existence of the decision (decision no. Rev 969/01-2 of 23 May 2001) is irrelevant.
If such a decision nevertheless bears a stamp attesting that it acquired the force of res judicata, that is, the so-called certificate of finality (potvrda o pravomoćnosti, klauzula pravomoćnosti), a party to whom the decision had not been properly served may request the court which adjudicated the case in the first instance to cancel that certificate and serve the decision on that party in accordance with the law (see, for example, the Supreme Court's judgment no. Rev 673/05-2 of 8 February 2006). Such a request may be lodged at any time (see, for example, judgment no. Gž 1155/96 of Rijeka County Court of 30 December 1996). A request to restore the proceedings to their previous position (restiutio in integrum ob terminem elapsum, povrat u prijašnje stanje) may not be used in such a situation because it presupposes that a party missed a time-limit for undertaking a procedural action, whereas in a situation where a decision had never been properly served on a party, the time-limit for lodging a remedy against that decision had never started to run and thus could not have been missed (see the above cited Supreme Court's decision no. I Kž 905/1995-3 of 13 March 1996). The rules for cancelling the certificate of enforceability provided in legislation governing enforcement proceedings shall apply mutatis mutandis to cancelling the certificate of finality (see, for example, the Supreme Court's decisions nos. Gzz-6/1990-2 of 27 June 1990, Gž 19/1994-2 of 4 October 1994, Gž 14/1994-2 of 13 October 1994, Gr1 582/05-2 of 20 December 2005 and Gž 9/07-2 of 11 October 2007).