ITEMID: 001-57839
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF SAÏDI v. FRANCE
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1+6-3-d;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;John Freeland;R. Pekkanen
TEXT: 6. Mr Fahrat Saïdi, a Tunisian national born in 1951, is a bricklayer and lives in Nice.
7. On 29 May 1986 the Nice police arrested him in connection with an inquiry concerning two deaths - of Mrs Jovet (24 May) and Mr Molinie (26 May) - caused by the injection of heroin; the police were acting on information received from drug users and small-time dealers.
8. The following day a detective questioned the applicant concerning, inter alia, a number of persons:
"Q [question]: Do you know Allala le boiteux [Lame Allala]?
R [reply]: I don’t know him. I’d have to see him.
Q: Do you ever go to the Claridge?
R: Yes, I go there regularly.
Q: A person who was present during a conversation between you and Allala le boiteux says that it was you who took the order for ten grammes at the Claridge on 26 May last. What do you have to say?
R: I don’t know whether I met this lame bloke. I’d have to be able to see him to say yes ...
...
Q: Do you know a Tunisian, quite an old man, whose first name is Sadok?
R: I don’t know him. I’d have to be able to see him ...
Q: A young man who only got his supplies directly from you also died in the last few days following an overdose. His friend, who is also a drug addict and who gets his drugs only from you, accuses you directly of being the person who sold them the drugs which led to his friend’s death. What do you have to say for yourself!
R: I’ve never touched drugs and I’ve never supplied anyone with them. I would like to be confronted with this person.
SI [sur interpellation - on examination]: The person who you’ve just shown to me and whom you say is called Allala le boiteux does go to the Claridge. I only know him by sight. I haven’t had any special dealings with him.
..."
9. On the same day the police showed Mr Saïdi and two other persons who had been arrested (Mr Bousselmi and Mr Hamza), through a two-way mirror, to three drug addicts - Mrs Bentaieb and Mr Hamdi Pacha, who were facing charges of possession, supply and use of heroin, and Mr Trihan; the three addicts identified him categorically.
10. Still on 30 May 1986 an investigating judge at the Nice tribunal de grande instance charged Mr Saïdi with possession and supply of heroin and involuntary homicide. He remanded him in custody by an order which gave the following reasons:
"The alleged offences are very serious; inquiries still have to be made; confrontations are to be organised;"
11. On the instructions of the investigating judge, the police obtained statements from several witnesses, drug addicts or former drug addicts: Mr Happe and Mrs Evrard on 2 June 1986, Mr Mazoyer on 5 June and Mrs Pothier on 10 June. The officers showed them photographs and they all identified Mr Saïdi and the two other persons charged as drug dealers.
12. On 6 June 1986 the applicant’s lawyer sent to the investigating judge the following letter:
"May I request you, on behalf of Mr Fahrat Saïdi, whom I saw at Nice remand prison, to consider organising as soon as possible a confrontation between him and the persons who have denounced him.
Fahrat Saïdi denies the charge of drug trafficking and would like to be able to prove his innocence."
13. On 5 November 1986 the judge in question interviewed Mr Nenouchi, a friend of one of the victims - Mr Molinie -, who had come forward spontaneously to testify against Mr Saïdi, whom he described as his former supplier of drugs.
14. When questioned on 14 November 1986 by the investigating judge, Mr Saïdi stated, inter alia, as follows:
"SI: You tell me that I’ve been accused by Trihan ..., Mazoyer ..., Nenouchi ..., who are all drug addicts and who claim that I sold them drugs. It’s untrue, I want to be confronted with them."
15. On 24 November 1986 Mr Saïdi’s lawyer again wrote to the investigating judge, in the following terms:
"Following the interview which you conducted on 14 November, I would ask you, as my client has already himself done directly, to organise a confrontation between him and the persons who accuse him."
16. By an order of 4 December 1986, the investigating judge decided that the applicant should remain in custody.
17. On the same day the judge committed Mr Saïdi and four other persons for trial on the following charges:
"Bentaieb and [Hamdi] Pacha:
that they did in Nice in the course of 1985 and 1986, contravene the legislation on dangerous drugs by possessing, supplying and making unlawful use of heroin, a class B drug;
Bousselmi, Sadok Hamza, Fahrat Saïdi:
that they did in the same place and over the same period as the aforementioned
(a) contravene the legislation on dangerous drugs by possessing and supplying heroin, a class B drug;
(b) by inadvertence, imprudence, lack of care, negligence or failure to respect the legislation involuntarily cause the death of Corinne Jovet and Patrick Molinie."
18. On 3 February 1987 the Nice Criminal Court sentenced Mr Saïdi and Mr Bousselmi to ten years’ imprisonment for infringement of the dangerous drugs legislation and involuntary homicide, Mr Hamza to three years for possession and supply of heroin, and Mrs Bentaieb and Mr Hamdi Pacha, who had not appeared at the trial, to three years for supply and use of drugs.
The court based its decision on the following grounds:
"...
On the evening of 29 May 1986 Fahrat Saïdi and Allala Bousselmi were arrested. Allala Bousselmi made possible the arrest in his turn of his intermediary, Sadok Hamza, by giving the latter’s address and his first name.
The three men were formally identified by the couple Abdel Hamdi Pacha and Saïda Bentaieb; Fahrat Saïdi was also identified by Jean-Pierre Trihan.
In the course of their interrogations, the aforementioned Allala Bousselmi, Fahrat Saïdi and Sadok Hamza denied all the accusations levelled against them, although they were concurring and had been made by persons who did not know each other.
The first witnesses to be heard subsequently explained the role played by each of the accused.
Thus Alain Happe and Michèle Evrard formally identified from a plate of photographs Allala Bousselmi, Sadok Hamza and Saïdi and specified that Bousselmi sold the drugs through the intermediary of Sadok Hamza, Fahrat Saïdi being the "wholesale" supplier. Later other witnesses implicated the same three individuals.
Christian Mazoyer, well known to the police as a drug addict, claimed to have bought between February and April 1986 from one and a half to two grammes of heroin from Fahrat Saïdi. He stated that Saïdi was the regular supplier of drugs to the prostitute and transvestite community.
Valérie Pothier, also a drug addict, affirmed that in the course of 1985 she had bought drugs from the Boiteux. She stated that at the time Allala Bousselmi supplied the addicts directly. She also knew Fahrat Saïdi by his first name, as a drugs dealer.
Nevertheless, the three men, Fahrat Saïdi, Allala Bousselmi and Sadok Hamza continued to deny all the accusations levelled against them, both before the investigating judge and at the trial.
...
Allala Bousselmi and Fahrat Saïdi were formally implicated by some of their regular customers (Alain Happe ..., Michèle Evrard ..., Christian Mazoyer ..., Valérie Pothier ..., Patricia Rogowicz ...) and by the very people who carried out some of their deliveries (Bentaieb ..., Abdel Hamdi Pacha ...); their different roles were precisely described by several witnesses, Bousselmi, the central figure in the traffic, who took the orders, received payment and gave instructions for the delivery, Saïdi, Bousselmi’s supplier and identified as a dealer in large quantities of heroin;
It has been formally established by the statements of the immediate circle of the drug addicts who died of an overdose that the fatal dose had been sold by Bousselmi, who had been supplied by Saïdi; the findings of the pathologists from examining the victims’ bodies leave no room for doubt as to the direct causal connection between the taking of the drug in question and the death which occurred within a very short time of the injections."
The court also made in respect of the applicant and Mr Bousselmi and Mr Hamza, who were likewise Tunisian nationals, an order permanently excluding them from French territory.
19. On appeals by Mr Saïdi and Mr Bousselmi, and by the public prosecutor, the Aix-en-Provence Court of Appeal gave judgment on 1 October 1987. It found the accused guilty on only one count of involuntary homicide - in relation to Mr Molinie - and reduced Mr Saïdi’s sentence to eight years’ imprisonment and that of Mr Bousselmi to six years. However, it confirmed the permanent exclusion from French territory.
Its judgment included the following reasoning:
"...
The accused, as they had done throughout the police inquiry, the judicial investigation and the first-instance trial, formally denied that they had committed the alleged offences;
They argued for their acquittal and stressed the inadequacy of the investigation and in particular the fact that there had been no confrontation between them and their accusers.
...
After Fahrat Saïdi was arrested, he was shown to Trihan behind a two-way mirror and the latter stated word for word as follows: ‘That’s the person to whom I go to buy powder when I’m in Nice. He’s the one who supplied us, Patrick Molinie and myself, on the evening of 24 May 1986.’
In the course of the investigation and on the instructions of the investigating judge the police officers showed photographs of various individuals to Alain Happe ... and Michèle Evrard ...
The latter formally identified from these photographs Allala Bousselmi, Sadok Hamza and Fahrat Saïdi.
According to Happe, Allala Bousselmi supplies drugs to him and to Corinne Jovet. He had them delivered by Sadok Hamza. Fahrat Saïdi was indeed the ‘wholesaler’ who supplied Bousselmi and Hamza.
Michèle Evrard affirmed that Bousselmi had supplied her with drugs through the intermediary of Saïda Bentaieb.
Sadok Hamza acted as ‘drug-keeper’ for Allala Bousselmi and Fahrat Saïdi was a heroin ‘wholesaler’.
Other drug addicts, Christian Mazoyer, known as ‘Barbara’ ..., Valérie Pothier ... and Marcel Nenouchi, known as ‘Sabrina’..., also implicated Fahrat Saïdi and Allala Bousselmi.
The autopsy of the bodies of the two victims, Patrick Molinie ... and Corinne Jovet ..., revealed their drug addiction and there were recent marks, consistent with the time of death, of intravenous injections.
In both cases the cause of death was, according to the experts, acute oedema of the lung, of toxic origin, probably the result of a massive injection of heroin.
...
As regards the offence of infringement of the dangerous drugs legislation, the court agrees with the relevant reasons on which the first-instance court based its decision and finds Allala Bousselmi and Fahrat Saïdi guilty;
The concurring and repeated statements of the people who sold the drugs supplied by them, Saïda Bentaieb and Abdel Hamdi Pacha, and those who bought the drugs, Alain Happe, Michèle Evrard, Patricia Rogowicz, Jean-Pierre Trihan, Christian Mazoyer, Valérie Pothier and Marcel Nenouchi, are sufficiently convincing to establish the offence of which they are accused and also the role which they played in the heroin traffic in Nice;
Although the police officers and the investigating judge did not organise a confrontation with their accusers, the methods of identification which were used (identification through a two-way mirror or examination of photographic plates bearing their photograph) show sufficiently that, for their own personal reasons, the dealers and the drug addicts who gave evidence did not wish to be physically confronted with the accused;
Even if confrontations had led to statements being retracted, that would not have deprived of their weight the repeated affirmations of the dealers and users;
It has been sufficiently established by the police inquiry and the judicial investigation that Fahrat Saïdi did indeed sell to Jean-Pierre Trihan and Patrick Molinie the heroin, the injection of which led to Trihan being taken ill and Molinie’s death.
..."
20. Mr Saïdi appealed on points of law. His sole ground of appeal was worded as follows:
"Violation of the general principles of criminal procedure and of Article 6 para. 3 (d) (art. 6-3-d) of the Convention ...;
in that the Court of Appeal convicted the accused of drug dealing and involuntary homicide;
whereas, firstly, in order to determine the accused’s guilt the lower courts relied solely on his being identified indirectly by the witnesses who viewed him from behind a two- way mirror; this method offends against the fairness of the investigation and cannot furnish admissible evidence under criminal procedure;
whereas, secondly, by refusing to organise a confrontation between the accused and the persons who accused him and whom he had never seen and never been able to examine, the contested judgment infringed the accused’s right to examine the witnesses against him."
21. On 19 August 1988 the Criminal Division of the Court of Cassation dismissed the appeal on the following grounds:
"It appears from the impugned judgment that in finding Fahrat Saïdi guilty of heroin trafficking and the involuntary homicide of Patrick Molinie, who died as a result of a massive injection of that drug, the Court of Appeal noted that two methods of identification had been used by the investigating police officers, identification through a two- way mirror and by means of photographs; these had enabled various witnesses, named in the judgment, to identify Saïdi as the person who had supplied the heroin; the Court of Appeal held that the concurring and repeated statements of the dealers and users of the drugs supplied by Saïdi and the evidence from the police inquiry and the judicial investigation were sufficiently convincing to establish the role of the accused and his guilt as charged;
In the light of these findings and conclusions arrived at by the lower courts in the exercise of their unfettered discretion to assess the weight of the evidence adduced in court at an adversarial hearing and given that neither the contested judgment nor any properly made submissions show that the accused requested the courts to organise a confrontation, the Court of Appeal, without disregarding the general principles of criminal procedure and the provisions of Article 6 para. 3 (d) (art. 6-3-d) of the ... Convention ..., set out grounds for its decision and gave a legal basis to the contested judgment;"
22. On 5 January 1990 the Aix-en-Provence Court of Appeal declared inadmissible an application by Mr Saïdi for the lifting of the order imposed by the first and second-instance courts permanently excluding him from French territory. The applicant filed an appeal on points of law against that decision.
He was released on 17 August 1991, after serving five years, two months and seventeen days. The same day he refused to comply with an order for his expulsion (reconduite à la frontière), which led to his being convicted in the Créteil Criminal Court. On appeal the Paris Court of Appeal sentenced him to six months’ imprisonment, together with a ten-year prohibition on residing on French territory. Mr Saïdi applied to the same court to have the prohibition lifted. His application was heard on 22 January 1993 and the proceedings were adjourned to 7 May.
23. The Court has no information as to the outcome of the appeal on points of law and of the application to have the prohibition lifted.
24. As far as the investigating judge is concerned, three provisions of the Code of Criminal Procedure are relevant in the present case:
"The investigating judge shall summon to appear before him, through a bailiff or a police officer, any persons whose testimony he considers would be useful ...
The witnesses may also be summoned by ordinary letter, by registered letter or through administrative channels; they may also appear of their own accord."
"They shall be heard separately, not in the presence of the accused, by the investigating judge assisted by his clerk; a formal record shall be drawn up of their statements.
..."
"The accused and the civil complainant may be heard or confronted only in the presence of their lawyers or after the latter have been duly summoned, unless they expressly waive this right.
..."
25. On appeal the investigation is governed by equivalent rules laid down in the Code of Criminal Procedure:
"The indictment division may, in all cases, at the request of the principal public prosecutor, of one of the parties or even of its own motion, order any additional investigative measure which it considers useful.
..."
"Additional investigative measures shall be effected in accordance with the provisions relating to the preliminary investigation either by one of the members of the indictment division or by an investigating judge which it delegates to this effect.
..."
26. The rules governing the examination of witnesses differ according to whether the court is hearing the case at first instance or on appeal.
27. The principal provision of the Code of Criminal Procedure which was applicable in the instant case is to be found in Article 427, which is worded as follows:
"Unless otherwise provided by statute, any type of evidence shall be admissible to substantiate a criminal charge, and the court shall reach its decision on the basis of being satisfied beyond reasonable doubt (intime conviction).
The court may only base its decision on evidence which has been adduced during the trial and discussed before it inter partes."
28. The rules of procedure laid down for the Criminal Court also apply in principle to the court of appeal, but subject to an important proviso in the second paragraph of Article 513 of the Code of Criminal Procedure, which reads:
"Witnesses shall be heard only if the court of appeal so orders."
29. This provision gave rise to a line of decisions by the Criminal Division of the Court of Cassation, which appears to have departed from those precedents in 1989, that is to say after the events in the present case.
30. The Criminal Division decided very early on that appeal courts were not required to hear afresh witnesses who had already given evidence at the original trial, even where an application had been made for them to be re-examined; it did, however, consider that they were under an obligation to hear and determine any such applications made and to give reasons for any refusal (30 October and 13 December 1890, Bulletin criminel (Bull.) nos. 212 and 253; 20 October 1892, Recueil périodique Dalloz (D.P.) 1894, I, p. 140; 13 January 1916, D.P. 1921, I, p. 63; 20 December 1955, Dalloz 1956, sommaires, p. 29).
Where they deemed it useful or necessary, appeal courts could summon witnesses who had not testified in the Criminal Court; but if they refused to call such witnesses, it was sufficient by way of reasons if they stated in their judgment that there was no need for further inquiries into the facts (20 October 1892, Bull. no. 212; 9 February 1924, Bull. no. 70; 5 November 1975, Bull. no. 237, p. 629).
31. The Criminal Division’s approach seems to have changed markedly in its Randhawa judgment of 12 January 1989:
"By Article 6 para. 3 (d) (art. 6-3-d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ‘everyone charged with a criminal offence has the [right] ... to examine or have examined witnesses against him’. It follows that, unless it is impossible for reasons which they must specify, courts of appeal are bound, on a properly made application, to order the examination in the presence of the parties of prosecution witnesses who have not been confronted with the defendant at any stage of the proceedings.
Sarb Randhawa, who was charged with drug trafficking and a customs offence, made an application to the Court of Appeal for an examination inter partes of the witnesses Joris Suray and Catherine Guillaume, whom he had called and whose statements provided, he claimed, the sole basis for the finding of guilt. He said that he had not been able to have them examined at any stage of the proceedings.
In support of its refusal of this application, and although it based its finding of the defendant’s guilt solely on the statements of the aforementioned witnesses, the court below noted merely that the witnesses whose examination had been sought had been interviewed during the police inquiry and the judicial investigation and that the defendant had been informed of the prosecution evidence deriving from their statements.
But while a refusal to hear evidence from a prosecution witness does not, as such, infringe the aforementioned provisions of the Convention, since the court may take into account any special difficulties entailed by an examination of a given witness in the presence of the parties, for example the risk of intimidation, pressure or reprisals, such a refusal must nevertheless respect the rights of the defence and the court must explain why a confrontation is impossible.
This was not so in the present case, and the judgment must accordingly be set aside; ..." (Bull. 1989, no. 13, pp. 37-38)
This approach was confirmed in a judgment of 22 March 1989 (case of X, Bull. 1989, no. 144, pp. 369-371; see also the judgments of 23 January, 6 March and 9 October 1991, Bull. 1991, no. 40, p. 102, no. 115, p. 293, and no. 336, p. 840).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-106846
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF VISKUPOVA AND OTHERS v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 5. The applicants, Ms Viskupová, Ms Hermansová, Mr Stankovič and Ms Pichňová, were born in 1948, 1947, 1945 and 1952 respectively. They are siblings. The applicants live in Bratislava (Slovakia), and Ms Hermansová also lives in Voorschoten (the Netherlands).
6. The applicant Mr Stankovič owns a share in a plot of land. The applicants each have a share in the estate of their late mother, who owned the remaining share in that plot. The proceedings for the division and distribution of the estate would appear to be still pending.
7. The plot has been de facto occupied by the State in the guise of a State-owned enterprise (“the defendant”); the applicants have been seeking compensation for this occupation (see below).
8. The status and functioning of the defendant were regulated by the State-owned Enterprises Act (Law no. 111/1990 Coll., as amended).
9. On 1 November 1991 the defendant went into liquidation. According to a publicly available official source, the liquidation process is ongoing.
10. On 15 November 1996 and 1 July 1998 amendments (Laws nos. 317/1996 Coll. and 166/1998 Coll. respectively) to the State-owned Enterprises Act entered into force.
They provide, inter alia, that the liquidator of a liquidated State-owned enterprise has an obligation to publish in the Commercial Journal (Obchodný vestník) an announcement on commencement of the liquidation process and to invite those concerned to register their claims within a given period, on pain of extinction of those claims.
They also provide that, by virtue of the commencement of the liquidation process, any enforcement proceedings against the State-owned enterprise in question are stayed.
For details, see paragraphs 29 to 34 in the “Relevant domestic law” below.
11. On 21 October 1998 the Čadca District Court (Okresný súd) ruled that the defendant was to pay a sum of money to Mr Stankovič and to the applicants’ mother’s estate by way of compensation for unjustified enrichment arising from the defendant’s use of the property without valid title.
12. The defendant’s appeal having been declared inadmissible, the judgment became final and binding (právoplatnosť) on 15 November 1999.
13. Between 2000 and 2005 the applicants contacted the liquidator of the defendant, the municipality where the defendant has its seat and the mayor of that municipality, the Supreme Auditing Office, the National Property Fund, the Ministry for Administration and Privatisation of National Property, the Ministry of Finance, the Ministry of the Interior, the police and other public institutions with numerous requests and complaints, seeking to recover the adjudicated amounts.
These efforts included, in particular, a letter of 10 May 2000 to the liquidator, formulated as a final warning prior to a petition for enforcement, demanding compliance with the judgment in the applicants’ favour (see paragraph 11 above). However, they met with no success.
14. The applicants also made several submissions to the courts seeking judicial enforcement of the judgment.
These resulted, first, in a decision (uznesenie) of the District Court of 24 June 2002 to reject the applicants’ claim, on the ground that it was unclear and, despite the court’s written request, the applicants had failed to provide further and more specific details.
15. The applicants’ subsequent motion of 20 February 2003 resulted in the opening of enforcement proceedings against the defendant.
16. The District Court took a number of steps to establish the nature and details of the applicants’ motion. The applicants’ challenge to all of judges of the District Court, alleging bias, was also examined and dismissed.
17. As established by the Constitutional Court in its decision of 10 May 2006 (see paragraph 21 below), there are file-notes in the District Court’s case file, dated 5 and 13 May 2005, indicating (i) that the case file was to be submitted to the judge for determination as to whether the proceedings could continue in view of the provision in the amendments referred to in paragraph 10 above that the proceedings be stayed, and (ii) that the proceedings were to be stayed as they interfered with the functions of the liquidator.
On 12 July 2005, however, the District Court invited the liquidator to report on the progress of the liquidation.
18. The proceedings were eventually discontinued on 24 May 2006, in the procedural form of a decision (uznesenie), on the ground that, despite the court’s written request, the applicants had failed to request the transfer of the proceedings to a judicial enforcement officer (exekútor) following the entry into force on 1 September 2005 of an amendment (Law no. 341/2005 Coll.) to the Code of Civil Proceedings (Law no. 99/1963 Coll., as amended – “the CCP”), under which enforcement of ordinary claims could no longer be carried out by either the courts or judicial enforcement officers, but only by the latter (for details see paragraphs 25 and 26 in the “Relevant domestic law” below).
No appeal lay against the decision.
19. Meanwhile, on 25 January 2006, the applicants had filed a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) (see paragraph 23 below) with the Constitutional Court (Ústavný súd). They contested the length of the proceedings in their enforcement petitions and also invoked, in substance, their right of access to a court.
20. The applicants’ complaint was directed against the District Court; its President filed observations in reply on 22 February 2006.
It was submitted that under the amendments referred to in paragraph 10 above, there was a statutory bar on the enforcement proceedings, on account of which the District Court could not have taken any action at all in the matter.
21. On 10 May 2006 the Constitutional Court declared the applicants’ complaint inadmissible as being manifestly ill-founded.
The Constitutional Court observed that, pursuant to section 15c(8) of the State-owned Enterprises Act, proceedings for the enforcement of financial claims against State-owned enterprises in liquidation were stayed by operation of law. This provision also applied, by way of implication, to enforcement proceedings under the CCP. Creditors of such claims should pursue their claims in the liquidation procedure under section 15c(2)(a) of that Act and it was the liquidator’s responsibility under section 15c(2)(g) to settle their claims.
The applicants had thus chosen an incorrect course of action by seeking enforcement of the judgment of 21 October 1998 as opposed to registering their claim under that judgment with the defendant’s liquidator. The applicants ought to have known the applicable rules.
22. The Constitutional Court concluded that, for the above-mentioned reasons, there had not been any undue delays in the proceedings before the District Court and that there had been no infringement of the applicants’ right of access to a court.
23. Article 127 provides:
“1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such a decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.”
24. Until 31 August 2005, if a judgment debtor failed to comply with his or her adjudicated obligation, the creditor had two essentially equipollent options of seeking enforcement, by a court under the CCP and by a judicial enforcement officer under the Judicial Enforcement Code (Law no. 233/1995 Coll., as amended).
25. With effect from 1 September 2005, Article 251 and other related provisions of the CCP were amended by Law no. 341/2005 Coll. in that, with certain exceptions that are not relevant to the present case, enforcement of adjudicated claims was henceforth to take place under the Judicial Enforcement Code.
26. Under Article 372m §§ 1 and 3 of the CPP, as amended by Law no. 341/2005 Coll., creditors seeking enforcement of their claims before courts had six months from the entry into force of the amendment to initiate enforcement proceedings under the Judicial Enforcement Code and to inform the enforcement court accordingly. Should they fail to do so, enforcement before the courts was to be discontinued.
27. The status of judicial enforcement officers and the procedures for enforcement by judicial enforcement officers are governed by the Judicial Enforcement Code. Under its Article 2 § 1, a judicial enforcement officer is a person designated and entrusted by the State with obtaining forcible compliance with judicial and other decisions.
28. The Act regulates the status and functioning of State-owned enterprises (section 1).
29. Law no. 317/1996 Coll. amended the Act with effect from 15 November 1996. It introduced, inter alia, sections 15a to 15e, providing for detailed rules concerning the liquidation of State-owned enterprises.
30. Section 15c(2)(a) of the amended Act provides:
“In the course of liquidation the liquidator has an obligation to publish in the Commercial Journal a notice on commencement of the entry of the [State-owned] enterprise into liquidation, together with a call for all creditors and other persons and bodies which are concerned by the enterprise’s entry into liquidation, to register their claims or other rights within a period which cannot be shorter than 90 days from the enterprise’s entry into liquidation, failing which [such claims or rights] become extinct”.
31. Under Section 15c(2)(g) of the amended Act:
“In the course of liquidation the liquidator has a duty to settle obligations and claims”.
32. Section 15c(7) of the amended Act provided:
“Liquidation of a [State-owned] enterprise cannot be interrupted by other proceedings under special statute [such as, for example, enforcement proceedings under the Judicial Enforcement Code].”
33. Law no. 166/1998 Coll. amended the Act with effect from 1 July 1998. Among other things, it amended the wording of Section 15c(7) of the Act as follows:
“Proceedings under special statute [such as, for example, enforcement proceedings under the Judicial Enforcement Code] shall be stayed by the [State-owned] enterprise’s entry into liquidation.”
34. Section 15c (7) of the Act was subsequently renumbered as section 15c (8), without any change in its wording.
35. Under Article 228 § 1 (d) of the CCP, civil proceedings may be reopened where the Court has found a violation of the requesting party’s Convention rights and where any serious consequences arising from the violation have not been adequately redressed by the award of just satisfaction. In principle, however, only proceedings which have been concluded by means of a judgment (rozsudok) can be reopened.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70249
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF MARINOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1965 and lives in Požega.
5. On 20 June 1991 the applicant sustained an injury in a traffic accident caused by a certain A.P., member of the Yugoslav People’s Army (“the YPA”).
6. On 10 August 1993 the applicant brought a civil action against the State in the Požega Municipal Court seeking non-pecuniary damages in the amount of 150,000 Croatian kunas (HRK).
7. On 21 June 1995 the Požega Municipal Court partly ruled in the applicant’s favour by awarding her HRK 26,530. The State appealed.
8. In August 1996 the Požega County Court (Županijski sud u Požegi) quashed the first instance judgment and remitted the case.
9. In the resumed proceedings, on 6 February 1998 the Požega Municipal Court delivered an interim judgment (međupresuda) finding the State liable for the damage. It held that the State had taken over not only the rights and property of the former Yugoslavia, but also its obligations. The State appealed.
10. On 9 July 1998 the Požega County Court reversed the interim judgment finding that the State was not liable for the damage as it was not a legal successor of the former Yugoslavia and had not taken over any liability for damages caused by members of the YPA.
11. On 9 September 1999 the applicant lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske) alleging that the County Court wrongly applied the substantive law.
12. On 6 November 1999 the Amendments to the Civil Obligations Act (“the 1999 Amendments”) entered into force.
13. On 23 January 2002 the Supreme Court returned the case-file to the Požega Municipal Court with the instruction to stay the proceedings, pursuant to the above Act.
14. On 10 May 2002 the Požega Municipal Court decided to stay the proceedings. On 18 July 2002 the Požega County Court dismissed the applicant’s appeal against that decision.
15. On 31 July 2003 the Act on the Liability of the Republic of Croatia for Damage Incurred in the Former Yugoslavia for which the Former Yugoslavia was Liable (“the 2003 Liability Act”) entered into force.
16. Pursuant to the 2003 Liability Act, the proceedings resumed.
17. On 3 September 2003 the Supreme Court upheld the applicant’s appeal on points of law, quashed the County Court judgment of 9 July 1998 and the Municipal Court’s judgment of 6 February 1998 and remitted the case to the first instance court.
18. In the resumed proceedings, on 28 April 2004 the Municipal Court gave judgment partly accepting the applicant’s claim and awarded her HRK 101,000. The applicant appealed.
19. On 15 February 2005 the County Court dismissed the applicant’s appeal and upheld the first instance judgment, which thereby became final.
20. Meanwhile, on 14 May 2002 the applicant lodged a constitutional complaint concerning the length of the proceedings. On 27 May 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint.
21. Section 184 (b) of the Amendments to the Civil Obligations Act (Zakon o dopunama Zakona o obveznim odnosima, Official Gazette no. 112/1999 of 29 October 1999) provided that all proceedings concerning compensation for damage incurred in the former Yugoslavia and instituted against the State, as one of its legal successors, were to be stayed pending the enactment of new legislation on the subject.
The 1999 Amendments also imposed an obligation on the Government to submit special legislation to Parliament regulating liability for such damage within six months of the Act entering into force.
22. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03), as in force at the material time, provided:
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
“Parties may lodge an appeal on points of law [revizija] against res judicata judgment given by the second instance court within 30 days following the date of service of a copy of the judgment.”
“An appeal on points of law shall not postpone the enforcement of res judicata judgment against which it has been lodged.”
Section 385 provides that an appeal on points of law may be lodged on grounds of certain procedural errors or wrong application of the substantive law but not for factual shortcomings.
Sections 394 - 396 specify the cases, in which the Supreme Court may, if it finds an appeal on points of law well-founded, quash the second instance judgment and remit the case, as well as those in which it may reverse such a judgment.
23. The 2003 Act on the Liability of the Republic of Croatia for Damage Incurred in the Former Yugoslavia for which the Former Yugoslavia was Liable (Zakon o odgovornosti Republike Hrvatske za štetu nastalu u bivšoj SFRJ za koju je odgovarala bivša SFRJ, Official Gazette no. 117/2003 of 23 July 2003) regulates circumstances in which compensation for such damage may be claimed from the State.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4666
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: EBRAHIMZADEH MOGHADAM YAZDI v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant, born in 1964, is an Iranian national and lives in Hagen (Germany). In the proceedings before the Court he is represented by Mr K.-H. Bartens-Winter, a lawyer practising inWuppertal.
On 3 May 1991 the applicant arrived in the Federal Republic of Germany. On 16 May 1991 he applied for asylum. In support of his request he submitted that, as a member of the People's Mujahedin movement, his father had been arrested and killed. The applicant further submitted that when distributing leaflets together with a friend, his friend had been arrested. Thereafter he himself had been arrested three times and detained for one to two days. His whole family, i.e. his mother and his three sisters, had fled from Iran. They had all been recognised as political refugees in Germany.
On 30 October 1992 the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge) dismissed the applicant’s request on the ground that his submissions were not credible and invited him to leave the German territory within one month.
On 28 June 1994 the Arnsberg Administrative Court (Verwaltungsgericht) dismissed the action filed by the applicant against the refusal of asylum and his envisaged expulsion.
On 21 December 1995 the applicant renewed his request to be granted asylum (Asylfolgeantrag). When interviewed on 6 February 1996 at the Federal Office for Refugees, the applicant repeated the statements he had made in the first asylum proceedings, adding some more details. He further submitted that in the meantime he had engaged in political activities in Germany in favour of the People's Mujahedin movement, such as distributing leaflets, organising information stands, taking part in demonstrations and working in the movement’s office in Bochum. The media, in particular television, had published information about these activities which thus came to the knowledge of the Iranian authorities. An Iranian witness called by the applicant stated, when also heard on 6 February 1996 before the Federal Office for Refugees, that he had met the applicant in the beginning of 1991 in front of the Teheran University near a bookshop with a third person called A. The latter had talked to the applicant and handed him a shoe box. According to the witness, he was not informed about the contents of the box for security reasons. The applicant did not remember A.’s first name, nor did the witness.
On 1 March 1996 the Federal Office for Refugees dismissed the asylum request on the grounds that the applicant’s statements did not appear to be credible and that they were in contradiction with the statements made in the first proceedings and that his political activities in Germany were not important enough to establish a real and substantial fear of persecution in Iran.
On 11 March 1996 the applicant filed an action with the Arnsberg Administrative Court.
On 21 August 1998 the Arnsberg Administrative Court dismissed the applicant’s action. According to the court, there was no indication that the applicant was persecuted when he had left his country, nor was there a sufficient likelihood that he would be persecuted if he were to return to his country. His earlier and his new submissions concerning his arrests in Iran were unsubstantiated. Accordingly, there was no need to take further evidence in this respect. As to the statements of the Iranian witness concerning the circumstances of the meeting with the applicant in front of the Teheran University, the court observed that there were contradictions between the applicant’s and the witness’s declarations. Furthermore, the witness could not confirm that the applicant was involved in the People's Mujahedin movement, since he had met him only once. The court added that the applicant’s activities in Germany did not go beyond a mere presence at demonstrations and other events, and that they would not expose him to political persecution in Iran. Finally there was no reason to believe that the applicant would face persecution in Iran on the ground that he had requested asylum in Germany.
On 13 October 1998 the Administrative Court of Appeal (Oberverwaltungsgericht) of the Land of North Rhine-Westphalia rejected the applicant’s request for leave to appeal (Antrag auf Zulassung der Berufung). In its decision it stated that the Administrative Court had correctly assessed the evidence and rejected the applicant’s requests to take further evidence in a convincing manner. The Administrative Court had not acted arbitrarily in concluding that the applicant’s submissions were unsubstantiated.
On 19 February 1999 the Hagen Administrative Authorities informed the applicant that following the final decision in his asylum proceedings, his residence permit was no longer valid and invited him to submit two passport photographs for the purpose of a provisional residence permit (Duldung) to be issued for the period during which the expulsion order could not be implemented for legal or practical reasons.
On 3 March 1999 the Parliament of the of the Land of North-Rhine Westphalia rejected a petition brought by the applicant on the ground that his submissions did not justify the granting of political asylum.


ITEMID: 001-5974
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: McBRIDE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Nicolas Bratza;Simon Brown
TEXT: The applicant, Juliet Imogen McBride, is a United Kingdom national, born in 1949 and living in Southampton. She is represented before the Court by Ms M. Cunneen of Liberty, London. The respondent Government are represented by Ms R. Mandal, Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 September 1993 the applicant attended a demonstration organised by the Campaign Against the Arms Trade ("CAAT") in Aldershot. The demonstration had been arranged to coincide with an arms fair for the procurement of sales of arms and weapons at a military base about 10-15 minutes walk from the site of the demonstration.
The applicant, who is not a member of CAAT, attended this demonstration to show her support. Shortly after 10.40 a.m. she left the site accompanied by a friend. The applicant and her friend were about to walk up a footpath but were told by a policeman not to proceed along the footpath as he believed it to be military land. The applicant then proceeded, with her friend, to walk along the road which led to the arms fair. A woman police constable told them that they could not go down that road as it was military land. The applicant replied that that road was a public highway. She was told that if she continued she would be arrested for breach of the peace. The applicant’s friend turned back and the applicant continued alone. The applicant was arrested by the woman police constable at 10.52 a.m. The custody record log states:
"... 11.10 During demonstration prisoner was warned to stay away from certain areas of military land. She refused and was arrested to prevent a breach of the peace and for causing an obstruction. Detention authorised until such time as it is unlikely that a breach of the peace will occur and to obtain evidence by questioning and to preserve and secure evidence through other enquiries."
The applicant was detained until 12.25 p.m. when she was released without charge.
She subsequently brought a civil action for wrongful arrest against the Chief Constable of Hampshire. The case was dismissed on 22 November 1994, the judge finding, inter alia, as follows:
"... It is common ground that the plaintiff was told more than once that she would be arrested for breach of the peace. The ‘whole tenor’ of the defence evidence was that this arose from a fear of contact between the demonstrators and those attending the exhibition, leading to a confrontation which sadly occurs that when those with strong views come up against those who practice what they find utterly offensive. Nor do I see in WPC Drake’s cross-examination anything to suggest that WPC Drake had not carried out the arrest on the basis of apprehending a risk of a breach of the peace involving violence.
The plaintiff had expressed an intention to proceed in the direction of the arms fair. It seems to me to make no difference that the plaintiff claims, as may well be the case, to be a lady of pleasant disposition, self-disciplined and with no wish to damage property or indulge in violence. In the judgment of the police arrest was appropriate. By definition, the police have to make judgments as to whether violence would occur. To WPC Drake, all the indications were that the precise purpose why her colleagues were on duty was about to be thwarted, giving rise to a risk of a violent confrontation which it was wished to avoid.
Nor do I accept that it was incumbent upon WPC Drake to enter into more detailed explanation of her basis for apprehending a breach of the peace. I bear in mind that the plaintiff’s clear stance was that she was going along Wellesley Road, and that she was not to be deterred short of arrest...
The authorities clearly show that the possibility of a breach of the peace must be ‘real’ and it must be sufficiently close in proximity in time and place. There must be an anticipation of violence in the immediate future or a real risk of it occurring...
I am reminded of everything I said earlier about the background. There was a high degree of security. The basis of the police operation was to keep the groups apart. Experience sadly shows that violent confrontations can take place...
It seems to me that to ask who would apprehend a risk of violence from the nature of the characteristics of the plaintiff confuses the plaintiff personality to those known to her with the position as it would appear to the police at the time. They had not means of knowing whether the plaintiff was peaceful or not...
It was entirely reasonable to proceed on the basis that the groups should be kept apart. Only arrest was an option for the police once the plaintiff had made clear her intention. In my judgment the risk of a violent confrontation was a very real one. The plaintiff was determined to proceed up Wellesley Road.
Mr Ford urges that the plaintiff’s evidence was not clear as to her intention, and I accept this as far as she felt she was being restrained from using a public highway. I do not accept that she was unaware [where the exhibition was], nor that she had a mixed purpose [in continuing]...
My finding is that there was a very real, a high risk of violence. There was nothing in place or distance to suggest that [the breach of the peace] was not in sufficient proximity in place and time. It seems to me entirely coincidental whether [the applicant] was arrested 5, 10 or 15 minutes from the arms fair, given that she had openly expressed an intention to proceed in that direction.
The relevance of the decision not to allow demonstrators to go on military land is that this was a decision to keep the groups apart, an operational requirement in the context of stopping demonstrators approaching close to the exhibition. I see nothing in the defendants’ evidence to suggest that WPC Drake considered an irrelevant or improper matter, or that she failed to consider all relevant circumstances.
Therefore I am persuaded that there was a reasonable and probable cause for arrest, and the case is dismissed..."
The applicant was advised not to appeal: Counsel accepted that there was some prospect of an appeal court concluding that the risk of violence in the case was not sufficiently "real" to warrant arrest, but underlined that the test of whether there was a "real possibility" of violence inevitably leaves a great deal of discretion to the judge. He pointed out that unlike the case of Percy (Percy v. DPP, see below), those who might have responded to the applicant’s acts were not confined to trained personnel, and there was therefore every likelihood of an appeal judge taking the view that the trial judge was the person best placed to assess the factual context of the events.
Breach of the peace – which does not constitute a criminal offence (R. v. County Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 260) – is a common-law concept dating back to the tenth century. However, as Lord Justice Watkins, giving judgment in the Court of Appeal in the case of R. v. Howell ([1982] 1 Queen’s Bench Reports 416), remarked in January 1981:
“A comprehensive definition of the term ‘breach of the peace’ has very rarely been formulated...” (p. 426)
He continued:
“We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” (p. 427)
In October 1981, in a differently constituted Court of Appeal giving judgment in R. v. Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board ([1982] Queen’s Bench Reports 458), which concerned a protest against the construction of a nuclear power station, Lord Denning, Master of the Rolls, defined “breach of the peace” more broadly, as follows:
“There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker – by lying down or chaining himself to a rig or the like – he is guilty of a breach of the peace.” (p. 471)
In a subsequent case before the Divisional Court (Percy v. Director of Public Prosecutions [1995] 1 Weekly Law Reports 1382), Mr Justice Collins followed Howell, rather than ex parte Central Electricity Generating Board, in holding that there must be a risk of violence before there could be a breach of the peace. However, it was not essential that the violence be perpetrated by the defendant, as long as it was established that the natural consequence of his behaviour would be to provoke violence in others:
“The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.” (p. 1392)
In another case before the Divisional Court, Nicol and Selvanayagam v. Director of Public Prosecutions ([1996] Justice of the Peace Reports 155), Lord Justice Simon Brown stated:
“... the court would surely not find a [breach of the peace] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course, it would be if the defendant’s conduct was not merely lawful but such as in no material way interfered with the other’s rights. A fortiori, if the defendant was properly exercising his own basic rights, whether of assembly, demonstration or free speech.” (p. 163)
A person may be arrested without warrant by exercise of the common-law power of arrest, for causing a breach of the peace or where it is reasonably apprehended that he is likely to cause a breach of the peace (Albert v. Lavin [1982] Appeal Cases 546 at 565). This power was preserved by the Police and Criminal Evidence Act 1984 (sections 17(6) and 25(6)).


ITEMID: 001-102106
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF URBANEK v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of 6-1
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1943 and lives in St Pölten.
6. At the material time the applicant, who has retired in the meantime, was a practising lawyer. For many years he represented company H., which traded in cars. In 2001 insolvency proceedings were commenced before the St Pölten Regional Court (Landesgericht) in respect of company H.
7. In these proceedings the applicant asserted claims totalling 2,453,283.23 euros (EUR). The liquidator only acknowledged claims in the amount of EUR 47,908.79 and refused to admit the remaining claim of EUR 2,405,374.44 to the insolvency proceedings. According to the Government, the liquidator acknowledged the applicant's claims insofar as they related to services rendered to the insolvent company H. He rejected the remainder of the applicant's claim as it related to services rendered to other entities within the group of companies.
8. The applicant brought proceedings under section 110 of the Insolvency Act (Konkursordnung) before the St Pölten Regional Court, requesting a declaratory decision that he was entitled to claim EUR 2,405,374.44 from the company's assets. He estimated the amount in dispute (Streitwert), which serves as the basis for calculating court fees, lawyers' fees and other procedural costs, at EUR 36,000. Apparently this amount was what he expected to obtain as his quota in the insolvency proceedings. On the basis of this estimated amount in dispute, the applicant paid court fees of EUR 551.
9. By decision of 15 October 2002 the St Pölten Regional Court, of its own motion, fixed the amount in dispute at EUR 2,405,374.44, holding that the claim was of a pecuniary nature and could not therefore be the subject of an estimate.
10. The applicant appealed claiming, inter alia, that the fixing of the amount in dispute violated his right of access to a court. He argued that since the liquidator had contested his claim, he had no choice other than to request a declaratory decision under section 110 of the Insolvency Act in order to participate in the insolvency proceedings, in which he could at best hope to obtain a small percentage of the overall amount claimed. It was excessive to take the overall amount claimed as the amount in dispute, because the ensuing court fees would exceed the amount he could realistically expect to obtain. The contested decision therefore prevented him in practice from pursuing his claims.
11. On 29 November 2002 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal. It referred to its own established case-law and to the Supreme Court's case-law which confirmed the view that in proceedings under section 110 of the Insolvency Act the amount the claimant wished to assert in the insolvency proceedings had to be taken as the amount in dispute, without regard to the quota likely to be obtained.
12. On 21 January 2004 the Supreme Court rejected the extraordinary appeal on points of law lodged by the applicant, without examining the merits.
13. At some later stage the applicant and the liquidator agreed to suspend the proceedings, apparently in order to reach an out-of-court settlement. On 21 July 2009 the liquidator, noting that it had not been possible to resolve the matter, requested the St. Pölten Regional Court to resume the proceedings. A hearing took place on 15 February 2010. The proceedings are currently still pending.
14. On 9 March 2004 the costs officer (Kostenbeamter) of the St Pölten Regional Court ordered the applicant to pay court fees of EUR 29,829.50 pursuant to section 32 of the Court fees act (see paragraph 22 below).
15. Subsequently, the applicant filed an application for rectification. He claimed that EUR 36,000 and not EUR 2,405,374.44 should be taken as the basis for calculating the court fees. He repeated his argument that the request for a declaratory decision under section 110 of the Insolvency Act had been aimed solely at establishing whether he was entitled to participate in the insolvency proceedings, in which he could at best expect to obtain a small percentage of the overall amount claimed. The court had therefore wrongly found that the claim at issue was of a pecuniary nature and that the amount in dispute should be equal to the amount claimed.
16. By decision of 10 May 2004 the President of the St Pölten Regional Court dismissed the applicant's request for rectification, stating that the costs officer was bound by the decision of 15 October 2002 which had fixed the amount in dispute.
17. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof), in which he repeated his allegation that the fixing of the amount in dispute and the ensuing costs order violated his right of access to a court.
18. On 13 October 2004 the Constitutional Court dismissed the applicant's complaint for lack of prospects of success.
19. On 17 March 2005 the Administrative Court (Verwaltungsgerichtshof) dismissed the applicant's complaint as being unfounded. It referred to its established case-law according to which, in proceedings concerning a pecuniary claim, the amount of the claim was to be taken as the amount in dispute. Consequently, there was no scope for an assessment of the amount in dispute by the claimant. The court noted that this case-law also applied to proceedings under section 110 of the Insolvency Act. Again referring to its established case-law, the Administrative Court confirmed that the costs officer and the President of the Regional Court were bound by the decision of 15 October 2002 which had fixed the amount in dispute.
20. The decision was served on the applicant on 11 April 2005. The applicant paid the court fees in their entirety on 13 April 2005.
21. The Court Fees Act (Gerichtsgebührengesetz) deals with court fees in civil proceedings. According to section 14 of that Act, the amount in dispute serves as the basis for calculation of the court fees, unless otherwise provided.
22. Under Section 32 of the Court Fees Act, court fees are fixed as a lump sum depending on the value in dispute. For an amount in dispute exceeding EUR 363,360 they are fixed at 1.2% of the amount in dispute, plus EUR 1,509, for first-instance proceedings.
The detailed table for court fees for civil proceedings at first instance as in force at the material time reads as follows:
amount in dispute court fee
up to 150 euro 17 euro
above 150 euro up to 360 euro 34 euro
above 360 euro up to 730 euro 47 euro
above 730 euro up to 2,180 euro 79 euro
above 2,180 euro up to 3,630 euro 127 euro
above 3,630 euro up to 7,270 euro 233 euro
above 7,270 euro up to 36,340 euro 551 euro
above 36,340 euro up to 72,670 euro 1,082 euro
above 72,670 euro up to 145,350 euro 2,165 euro
above 145,350 euro up to 218,020 euro 3,249 euro
above 218,020 euro up to 290,690 euro 4,332 euro
above 290,690 euro up to 363,360 euro 5,415 euro
above 363,360 euro 1,2% of the amount in dispute
plus 1,509 euro
23. A creditor who wishes to participate in the proceedings must register his claims, indicating the facts and evidence on which they are based and their ranking (section 103). A claim is deemed to be established if the trustee in bankruptcy or liquidator has acknowledged it and no other creditor has contested it.
24. If a claim is contested, the creditor has to bring an action under section 110 of the Insolvency Act which, in so far as material, reads as follows:
“Creditors whose claims continue to be contested as to their accuracy and ranking may seek have them established ... by means of a complaint directed against all the contesting parties.”
25. According to the Supreme Court's case-law (see, as a leading case, 8Ob288/99g, judgment of 8 June 2000), the amount in dispute for the purposes of an action under section 110 of the Insolvency Act is the amount of the claim which the creditor seeks to have admitted in the insolvency proceedings. In the above-mentioned case, the Supreme Court dealt with the claimant's argument that it would be more appropriate to make an estimate of the amount in dispute. The court noted that as a general rule there was no scope for making an estimate of the amount in dispute where the subject of the action for a declaratory decision was a pecuniary claim. The question of whether a claim was recoverable or not was not material for fixing the amount in dispute, and in that respect there was no difference between proceedings under section 110 of the Insolvency Act and other civil proceedings. Moreover, an action under section 110 also had effects outside the insolvency proceedings.
26. Regarding the costs of proceedings concerning the admission of claims, section 112 of the Insolvency Act provides as follows:
“The procedural costs are to be met from the estate in so far as the trustee in bankruptcy or liquidator has participated in the contesting of claims. The court may, however, require the trustee or liquidator to repay the procedural costs to the estate if he or she has contested claims or conducted the proceedings in a vexatious manner.”
27. Legal aid can be obtained under Article 63 § 1 of the Code of Civil Procedure (Zivilprozeßordnung) which, in so far as relevant, provides as follows:
“Natural persons who are a party to proceedings shall be granted full or partial legal aid to the extent that they are unable to pay the cost of participating in the proceedings without adverse effects on their capacity to meet necessary expenditure, and the intended action or defence is not manifestly vexatious or without prospects of success. Necessary expenditure shall be taken to mean the expenditure required to provide the person concerned and his or her dependants with a basic standard of living.”
28. Section 64 § 1 of the Code of Civil Procedure enumerates the costs which can be covered by legal aid:
“Legal aid in respect of a specific set of proceedings may cover ... the following:
(1) provisional exemption from:
(a) court fees ...”
29. Regarding the collection of court fees, section 9 of the Judicial Collection Act (Gerichtliches Einbringungsgesetz), in so far as material, provides:
“(1) A request for extension of the time-limit for payment, or for payment in instalments, may be granted if collection would cause particular hardship to the person concerned ...
(2) A request for fees and costs to be reduced may be granted if their collection would cause particular hardship to the person concerned ...”


ITEMID: 001-24044
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: KANOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms Helena Káňová, is a Slovakian national, who was born in 1944 and lives in Dubnica Nad Váhom. She is represented before the Court by Mr T. Kamenec, a lawyer practising in Bratislava. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák as from 1 April 2003.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1987 the applicant sustained an injury at work. As her health was damaged, she was granted a partial disablement pension in 1990.
In 1997 the applicant was injured in a road traffic accident. On 2 February 1998 she claimed a full disablement pension.
On 12 February 1998 the applicant’s health and ability to work were assessed by a commission established by the Považská Bystrica branch office of the Social Insurance Office (Sociálna poisťovňa). On 9 March 1998 the Bratislava central administration of the Social Insurance Office dismissed the request with reference to the conclusion reached by the above commission.
In April 1998 the applicant sought a judicial review of the decision delivered by the Bratislava central administration of the Social Insurance Office on 9 March 1998. She argued that her health was permanently damaged.
Subsequently the applicant’s health was re-assessed by a commission established by the central administration of the Social Insurance Office. In a record drawn up on 23 October 1998, the commission reached the conclusion that the applicant was only partially disabled. The report of the commission was submitted to the Trenčín Regional Court before which the case was pending.
Before the Regional Court the applicant argued that the conclusions of the social security commissions by which her health had been assessed were contrary to the findings of doctors of the Faculty Hospital in Bratislava where she had been treated. She also requested that further evidence should be taken by ordering her examination by means of magnetic resonance.
On 30 March 1999 the Trenčín Regional Court upheld the administrative decision of 9 March 1998 after having heard the applicant. The Regional Court also had regard to documentary evidence including the above report of 23 October 1998 which, as the judgment stated, had been submitted in accordance with Section 118 of the Social Security Act of 1998 and pursuant to Section 14(b) of the Social Security State Administration Act of 1990.
In its judgment the Regional Court noted that the commission had examined both the applicant and the documents concerning her health. The court held that special medical knowledge was required for determining the point in issue, namely whether or not the applicant’s health had deteriorated to such an extent that she could not carry out any professional activity. In proceedings concerning social security claims the assessment of a person’s health was within the competence of special commissions established in accordance with the relevant law. The Regional Court held that the commission by which the applicant had been examined had assessed the applicant’s health in a comprehensive manner and that in its report of 23 October 1998 it had given relevant and sufficient reasons for its conclusions which, in the court’s view, were not contradictory.
As to the applicant’s request for her examination by means of magnetic resonance, the Regional Court noted, with reference to the case file, that the medical institution which possessed the relevant equipment had refused such examination to the applicant. The refusal was based on the fact that the post-surgery ultra-sound examination of the applicant clearly showed that there was no resistance in the area concerned. The Regional Court noted that the applicant did not raise any new argument unknown to the commission which had assessed her health and her ability to work. It therefore did not consider the taking of further evidence to be necessary.
On 27 April 1999 the applicant appealed. She claimed that the commission which had assessed her health had been biased and that there were inconsistencies between its conclusions and the existing documents relating to her health. She argued, in particular, that the Regional Court had exclusively relied on the conclusions of a commission established within the Social Insurance Office and that the latter was the defendant in the case.
On 9 July 1999 the Ministry of Health informed the applicant that it lacked power to interfere with the activities of the Social Insurance Office. The letter stated that further examinations of the applicant’s health could only be carried out upon the recommendation of a social security commission of the Social Insurance Office or, as the case might be, after the appointment of an independent expert by the court dealing with her case.
On 29 September 1999 the Supreme Court upheld the Regional Court’s decision. In its judgment the Supreme Court held, inter alia:
“Special medical knowledge is required to assess to what extent a person’s health has deteriorated. Social security commissions are empowered to carry out such assessment in the context of social security issues and also for the purpose of judicial proceedings (Section 118 of the Social Security Act and Section 14(b) of the Social Security State Administration Act). Opinions of the social security commissions are subsequently considered by courts as any other piece of evidence, that is individually and in the context of the other evidence within the meaning of Article 132 of the Code of Civil Procedure.
When assessing the evidence taken in the context of judicial proceedings, a court takes into consideration also opinions submitted by social security commissions pursuant to the statutory provisions referred to above and there is therefore no ground to consider them as being biased as such.”
The Supreme Court noted that the commission by which the applicant had been examined had taken into account all relevant facts, including documents which the applicant had joined to her appeal against the Regional Court’s judgment. The opinion addressed the health problems of which the applicant complained and it traced the changes of her health since 1990. The social security commission gave sufficient reasons for its conclusion which, in the Supreme Court’s view, was comprehensive and without bias. The Supreme Court dismissed as unsubstantiated the applicant’s argument about alleged inconsistencies in the opinion.
Section 118 of the Social Security Act (Zákon o sociálnom zabezpečení) of 1988 provides that in matters relating to social security the citizens’ health and ability to work shall be assessed by the competent State authorities. When special knowledge is required and the relevant law so provides, such an assessment shall be carried out by the ministries of health and of social affairs.
Under Section 7(1) of the Social Security State Administration Act (Zákon o štátnej správe sociálneho zabezpečenia) of 1990, the Slovak administration of social security and the district administrations of social security shall establish commissions with a view to assessing citizens’ health and capacity to work for the purposes of the Act.
Section 8(2) provides, inter alia, that the Ministry of Health shall assess a person’s health and capacity to work when the commissions established by the administration of social security are biased.
Section 14(b) provides that the Slovakian administration of social security delivers, through commissions established for that purpose, opinions which may be required in judicial proceedings relating to social security claims.
Under Section 2(1) of the Social Insurance Office Act (Zákon o Sociálnej poisťovni) of 1994, the Social Insurance Office is a public law institution.
Pursuant to Section 9, its central administration is charged with carrying out health and pension insurance as well as providing expertise for the purposes of social security claims in accordance with Section 14 and the other relevant provisions of the Social Security State Administration Act of 1990.
Section 11 provides that the central administration and the branch offices of the Social Insurance Office carry out the State administration of social security in accordance with the Social Security State Administration Act of 1990.
Article 17(1) provides, inter alia, that the presiding judge decides whether a court’s clerk, an expert or interpreter should be disqualified.
Pursuant to Article 120(1), parties are obliged to indicate evidence in support of their allegations. Courts may also take evidence other than that which was proposed by the parties. Courts decide on the basis of facts resulting from the evidence taken.
Article 123 gives parties the right to comment on proposals to take evidence and on the evidence which a court has taken.
Pursuant to Article 125, any means permitting the establishment of the facts of a case can serve as evidence, in particular the hearing of witnesses, expert opinions, reports and statements by authorities and legal persons, documents, inspection and the examination of parties.
Under Article 127(1), courts shall appoint an expert, after having heard the parties, when their decision depends on the assessment of facts requiring special knowledge. Paragraph 2 of Article 127 provides that courts can order that an expert opinion be reviewed by a different expert or by a scientific institution. Pursuant to Article 127(4), courts can use, in lieu of an expert opinion, a certificate or an opinion submitted by the competent authority when there is no doubt that such a certificate or opinion is correct.
Article 132 provides that a court shall assess evidence in accordance with its own considerations. In doing so it shall take into account every piece of evidence individually as well as the evidence seen as a whole in its context. It shall thereby carefully consider all facts established in the course of the proceedings including the submissions of the parties.
Article 250q(1) provides that a court dealing with a remedy against the decision of an administrative authority shall, if need be, hold a hearing. In that context it can take evidence which may be necessary for reviewing the administrative decision in issue.
Under Article 250s(2), an appeal on points of law is available against an appellate court’s decision in matters relating to social security claims. When dealing with a party’s appeal on points of law, the Supreme Court is to adequately apply the provisions of Head Three, Part Four of the Code of Civil Procedure. Those provisions govern appeals on points of law and they comprise the following relevant rules:
“Head Three
Admissibility of an appeal on points of law
Article 236
1. A final decision of an appellate court can be challenged by means of an appeal on points of law in cases provided for by law...
Article 237
An appeal on points of law against any decision of the appellate court is admissible where
a) the decision concerns a subject-matter which falls outside the jurisdiction of courts,
b) a person acting as a party to the proceedings lacked capacity to do so,
c) a party to the proceedings lacked procedural capacity and was not duly represented,
d) the same matter has been earlier determined by a final decision or where other proceedings on the same matter started earlier,
e) no request for proceedings to be started was filed despite the fact that such a request was required by the law,
f) a party has been prevented, by the appellate court’s conduct, from acting before the court,
g) the case was decided upon by a disqualified judge or where the court’s composition was incorrect...
Article 238
1. An appeal on points of law is also admissible where it concerns an appellate court’s judgment which modified the first instance court’s judgment on the merits of the case.
2. An appeal on points of law is also available against a decision of the appellate court in which the appellate court did not follow the legal opinion earlier expressed by the court of cassation on the same matter.
3. An appeal on points of law is also admissible against appellate court’s judgment confirming the first instance court’s judgment where the appellate court
a) stated in the operative part of its judgment that an appeal on points of law was admissible as the case concerned a matter of particular legal importance,
b) upheld a judgment deciding on the matter in a different manner than an earlier delivered judgment because the first instance court had been bound by the legal view of the court which had quashed such an earlier judgment...
Filing of appeal on points of law
Article 240
1. A party to the proceedings can file an appeal on points of law within one month from the binding effect of the appellate court’s decision...
Article 241
1. An appeal on points of law shall indicate ... the reasons for which the decision in question is being challenged...
2. Only the following can be invoked as reasons for an appeal on points of law:
a) flaws in the proceedings as set out in Article 237 [of the Code of Civil Procedure],
b) other flaws in the proceedings which resulted in a wrong decision on the matter,
c) a court’s decision on the basis of a factual finding which, in its substantive part, is not supported by the evidence taken,
d) a court’s decision resulting from an erroneous legal assessment of the matter.”
In its decision No. 4 Cdo 6/92 of 26 March 1992 the Supreme Court held that a court’s failure to take evidence which the parties proposed could not be considered as conduct preventing the parties from acting before the court within the meaning of Article 237(f) of the Code of Civil Procedure. The decision stated that it was exclusively for the court dealing with the case to decide what evidence was to be taken. This conclusion was later confirmed in decision No. Obdo V. 56/98 of 27 November 1997.
In the above decision No. 4 Cdo 6/92 of 26 March 1992 the Supreme Court also stated that it would not examine the defendant’s objections relating to the appellate court’s failure to correctly establish the facts and to the errors of law allegedly committed by it as those were not reasons which alone rendered an appeal on points of law admissible.
In judgment No. Sdo 1/93 delivered on 1 April 1993 the Supreme Court held that, when determining the admissibility of appeal on points of law in matters relating to social security claims, Article 250s of the Code of Civil Procedure could not be interpreted without having regard to Articles 236 to 239 of the Code of Civil Procedure. The Supreme Court further examined whether the appeal on points of law in the case which related to a social security claim met the admissibility requirements laid down in Articles 237 and 238 of the Code of Civil Procedure.
Section 9(1) provides that an employee of an administrative authority is disqualified from dealing with a case and from deciding on it where there can be doubts about his or her impartiality because of his or her relation to the subject-matter of the case or to the parties to the proceedings or their representatives.
Under Section 12(1), read in conjunction with Section 11(1), the question whether an employee of an administrative authority is biased is to be determined by his or her hierarchical superior. Paragraph 2 of Section 12 provides that no appeal is available against the superior’s decision on this issue.
Section 1(1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom - “the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia, civil proceedings.
Section 18(1) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation can be granted where the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question.


ITEMID: 001-82889
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KOVACS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
TEXT: 4. The applicant was born in 1937 and lives in Budapest.
5. On 11 March 1996 the applicant brought an action in the Pest Central District Court, seeking the judicial review of a resolution adopted by the community of owners of the building in which her flat was located (közgyűlési határozat).
6. The District Court held hearings on 9 October 1997, 5 February, 10 June and 2 November 1998, 7 September 1999, 16 March, 23 May and 12 September 2000, 22 March 2001, 20 June and 1 October 2002 and 8 April 2003.
7. On 15 September 2003 the District Court appointed an expert. On 13 October 2003 it replaced him. On 29 December 2003 the new expert submitted his opinion, which was completed on 23 August 2004.
8. The District Court held further hearings on 23 March and 17 June 2004, 19 January, 27 April, 7 September, 25 November 2005, 21 April, 10 May, 23 June, 1 and 29 September, 18 December 2006 and 23 February 2007.
9. According to the information provided by the parties and the elements available in the case file to date, the case has not yet ended.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1