ITEMID: 001-58117
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF SAKIK AND OTHERS v. TURKEY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection rejected (estoppel);Violation of Art. 5-5;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 6. The applicants are former members of the Turkish National Assembly who were elected at the general election of 20 October 1991. At that time they were members of the People’s Labour Party (Halkın Emeği Partisi), which was founded in June 1990 but proscribed and dissolved by the Constitutional Court on 14 August 1993 on account of what were held to be separatist activities. By that date the applicants had joined the Democracy Party (Demokrasi Partisi), which had been set up in the meantime.
7. On 2 March 1994 the National Assembly lifted their parliamentary immunity on an application, first lodged in November 1992 and subsequently resubmitted on several occasions, by the public prosecutor attached to the Ankara National Security Court (Ankara Devlet Güvenlik Mahkemesi Cumhuriyet savcısı – “the public prosecutor”). He accused them of committing the offences defined in Article 125 of the Criminal Code (see paragraph 20 below), which were classified as terrorist crimes in the Prevention of Terrorism Act (Law no. 3713 – see paragraph 21 below) and thus came within the jurisdiction of the national security courts (see paragraph 22 below).
8. On the same day, as they were leaving the parliament building, Mr Dicle and Mr Doğan were arrested on the public prosecutor’s orders and taken into police custody at the headquarters of the anti-terrorist section of the Ankara security police. On the following day their lawyers asked for their clients to be brought promptly before a judge and asked the public prosecutor for permission to speak to them. The written authorisation issued by the public prosecutor for that purpose specified that the interview – to be conducted under supervision – was to concern preparation of the appeal the applicants were intending to lodge against the lifting of their parliamentary immunity.
9. The other four applicants had refused to leave the parliament precinct, but on 4 March they suffered the same fate as their two colleagues.
On that day the public prosecutor extended the six applicants’ detention in police custody until 16 March 1994 on the ground that further investigations were needed; his decision was based on section 30 of Law no. 3842 governing procedure before the national security courts (see paragraph 23 below). While in police custody the applicants refused to make any statement.
10. On 11 March the lawyer acting for Mr Dicle and Mr Doğan, referring to his request of 3 March that they be brought promptly before a judge (see paragraph 8 above), made another application to the same effect, relying on Articles 5 and 6 of the Convention, inter alia.
11. On 21 March 1994 the Constitutional Court dismissed appeals lodged by the applicants against the lifting of their parliamentary immunity.
12. In the meantime, on 17 March 1994, a single judge of the National Security Court had issued an order for the MPs’ detention pending trial, giving as the reasons the “character and nature” of the offence concerned and the “evidence obtained”.
13. On appeal by the applicants, a bench of three judges of the same court upheld the above order on 22 March 1994, holding that it was necessary “on account of the classification and nature of the offences [concerned], the charges already preferred, the length of [the applicants’] detention and the fact that the case [was] still at the investigation stage”.
14. On 12 April the applicants lodged a further application for release, which was dismissed by the National Security Court on 13 May on the ground that the case was “still at the investigation stage” and that to date there had been “no change in the detained MPs’ favour”.
15. On 21 June 1994 the public prosecutor filed submissions accusing the applicants of separatism and undermining the integrity of the State, which are capital offences under Article 125 of the Criminal Code (see paragraphs 7 above and 20 below).
16. On 8 December 1994 the National Security Court delivered its judgment. Applying section 8 of the Prevention of Terrorism Act (Law no. 3713 – see paragraph 21 below), it sentenced Mr Sakık and Mr Alınak to three years and six months’ imprisonment for separatist propaganda and Mr Türk, Mr Dicle, Mr Doğan and Mrs Zana to fifteen years’ imprisonment for membership of an armed gang (Article 168 of the Criminal Code – see paragraph 20 below).
17. On appeal by the applicants and the public prosecutor, the Court of Cassation quashed Mr Türk’s conviction on 26 October 1995 and ordered his release, on the ground that he had contravened section 8 of the Prevention of Terrorism Act (Law no. 3713) but not Article 168 of the Criminal Code. It upheld the other applicants’ convictions.
18. Article 19 of the Constitution provides:
“Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law:
…
The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days … These time-limits may be extended during a state of emergency …
…
A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.
Compensation must be paid by the State for damage sustained by persons who have been victims of treatment contrary to the above provisions, as the law shall provide.”
19. Article 90 § 5 of the Constitution provides: “International treaties lawfully brought into force shall have the force of law ...”
20. The relevant provisions of the Criminal Code read as follows:
Article 125
“It shall be an offence, punishable by the death penalty, to commit any act aimed at subjecting the State or any part of the State to domination by a foreign State, diminishing the State’s independence or removing part of the national territory from the State’s control.”
Article 168
“Any person who, with the intention of committing the offences defined in Article 125 ..., forms an armed gang or organisation or takes leadership … or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.
The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”
21. Section 3 of the Prevention of Terrorism Act (Law no. 3713) classifies the offences defined in Articles 125 and 168 of the Criminal Code as terrorist crimes.
Before being amended on 27 October 1995, section 8 (1) of the Act provided:
“Written and oral propaganda, meetings, assemblies, and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of its people are forbidden, regardless of the methods or intentions behind such activities. Those conducting such activities shall be punished with a sentence of between two and five years’ imprisonment and a fine of between 50 million and 100 million liras ...”
22. Under section 9 of Law no. 2845 on procedure in the national security courts, only these courts can try cases involving the offences defined in Articles 125 and 168 of the Criminal Code.
23. At the material time section 30 of Law no. 3842 of 18 November 1992, amending the legislation on criminal procedure, provided that, with regard to offences within the jurisdiction of the national security courts (see paragraph 22 above), any arrested person had to be brought before a judge within forty-eight hours at the latest, or, in the case of offences committed by more than one person, within fifteen days. In provinces where a state of emergency had been declared, these time-limits could be extended to four days and thirty days respectively.
24. Section 1 of Law no. 466 on the payment of compensation to persons unlawfully arrested or detained provides:
“Compensation shall be paid by the State in respect of all damage sustained by persons
(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;
(2) who have not been immediately informed of the reasons for their arrest or detention;
(3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;
(4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;
(5) whose close family have not been immediately informed of their arrest or detention;
(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial …, or are acquitted or discharged after standing trial; or
(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only.”
25. On 6 August 1990 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe the following notice of derogation:
“1. The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to [amount] to a threat to the life of the nation in the meaning of Article 15 of the Convention.
During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces.
2. The threat to national security is predominantly [occurring] in provinces of South East Anatolia and partly also in adjacent provinces.
3. Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights.
4. To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10 1990 the decrees with force of law [nos.] 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention [on] Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13. A descriptive summary of the new measures is attached hereto ...”
The descriptive summary of the content of Legislative Decrees nos. 424 and 425 reads as follows:
“A. By virtue of the decrees having force of law [nos.] 424 and 425 on the state of emergency region, the state of emergency region governorship has been empowered with the following additional powers.
1. The Ministry of Interior, upon the proposal of the Governor of the state of emergency region can temporarily or permanently ban the publication (regardless of the location of the printing press), which is prone to cause a serious disruption in the public order of the region or excitement of the local people or to handicap the security forces in performing their duties by misinterpreting the regional activities. This also includes, if necessary, the power to order the closure of the printing press concerned.
2. The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Ministry of Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency. At their request, the persons concerned may receive financial aid from the Development and Support Fund. The particulars for this assistance shall be determined by the Ministry of Interior.
3. The Governor of the state of emergency region (or the delegated provincial Governor) can suspend (up to 3 months) or require prior permission for certain labor disputes related activities like strike and lockout.
4. The Governor can also ban, or take preventive measures against certain activities like destruction, looting, boycotting, slowing down of work, restricting the freedom of work and closing down of business.
5. The Governor of the state of emergency region can order the temporary or permanent evacuation, change of place, regrouping of villages, grazing fields and residential areas for reasons of public security.
6. The Governor of the state of emergency region can order the relevant public institutions in the state of emergency region to transfer permanently or temporarily to other positions their public officials who are deemed to be harmful to general security and public order, the concerned public official shall remain subject to the provisions of the special law on civil service applicable to him.
B. No legal claims of criminal, pecuniary or legal nature can be brought against, nor can any legal steps be taken with the judicial authority for this purpose in respect of any decision taken or any act performed by the Minister of Interior, the Governor of the emergency region and other governors, when exercising the power under the decree no. 424 having force of law.
C. No interim decision to suspend the execution of an administrative act can be taken during proceedings of an administrative suit which has been filed against the act(s) performed when exercising the power given by the law of emergency no. 2935 to the Minister of Interior, the Governor of the state of emergency region and the provincial governors.
D. The suit of nullity can not be filed against administrative acts performed by the Governor of the emergency region when exercising the power given to him under the decree having force of law no. 285.”
According to a note in the notice of derogation, “the threat to national security [was] predominantly occurring” in the provinces of Elazığ, Bingöl, Tunceli, Van, Diyarbakır, Mardin, Siirt, Hakkâri, Batman and Şırnak (see paragraph 28 below).
26. In a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Legislative Decree no. 424 had been replaced by Legislative Decree no. 430, promulgated on 16 December 1990. An appendix to the above letter, containing a descriptive summary of the decree, reads as follows:
“1. The powers of the Governor of the state of emergency under Decree with Force of Law no. 425 have been limited to the region where a state of emergency is in force. Thus, the adjacent provinces have been excluded from the competence of the Governor.
2. The special powers given to the Governor of the state of emergency by virtue of Decree with Force of Law no. 425 have been restricted to measures dealing with terrorist activities aiming at the destruction of fundamental rights and freedoms.
3. The powers of the Minister of Interior [to] ban any publication or order the closure of the printing press (regardless of the location) is restricted. According to the new provision, the Minister of Interior has at first to issue a warning to the owner or the publisher of the publication. If the owner or the publisher continues to print or distribute the controversial issue, then the Minister concerned may temporarily or permanently ban the publication and, if necessary, may also order the closure of the printing press for a maximum period of 10 days, which may, however, be extended to one month in case of repetition. No maximum period for closure of the printing press has been stipulated by the (abrogated) Decree no. 424 (Compare § A (1) of the Descriptive Summary attached to the Notice of Derogation of August 6, 1990).
4. The authority of the Governor of the state of emergency to order persons to settle at a specified place outside the state of emergency region has been restricted by virtue of the new Decree. The persons who are expelled from the state of emergency region are not obliged to settle in a specified place. Hence, they will be free to choose their residence out of the region except when they request financial aid. In this case they have to settle at a specified place (See § A (2) of previous Descriptive Summary).
5. Referring to the paragraphs A (3, 4, 5 and 6) of the Descriptive Summary of August 6, 1990 (which are related to strikes, lockout and some other activities of labor unions, evacuation and regrouping of villages, transfer of public officials to other posts or positions), it should be noted that the adjacent provinces have been excluded by virtue of the new decree.
6. As to paragraph 8 of the previous Descriptive Summary, a new clause has been included in the new Decree safeguarding the right to file an action against the administration (State) for loss or damages arising out of the performance of the acts taken under the emergency measures.”
27. On 12 May 1992 the Permanent Representative of Turkey wrote to the Secretary General in the following terms:
“As most of the measures described in the decrees which have the force of law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention, are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention only. The derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention is no longer in effect; consequently, the corresponding reference to these Articles is hereby deleted from the said Notice of Derogation.”
28. On 6 April 1993 the Permanent Representative of Turkey informed the Secretary General that by legislative decrees of 9 March 1993, which had entered into force on 19 March, the state of emergency had been lifted in the province of Elazığ and proclaimed in the province of Bitlis.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4
5-5
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-110719
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MAGO AND OTHERS v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Possessions);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Possessions);Pecuniary and non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 5. Flats represented nearly 20% of the pre-war housing stock of Bosnia and Herzegovina (around 250,000 housing units out of 1,315,000). By local standards, they were a particularly attractive type of home, equipped with modern conveniences and located in urban centres. Practically all flats were under the regime of “social ownership” – a concept which, while it does exist in other countries, was particularly highly developed in the former Socialist Federal Republic of Yugoslavia (“the SFRY”). They were generally built by socially owned enterprises or other public bodies for allocation to their employees, who became “occupancy right holders”. All citizens of the SFRY were required to pay a means-tested contribution to subsidise housing construction. However, the amount an individual had contributed was not amongst the legal criteria taken into account in the waiting lists for allocation of such flats.
6. The rights of both the allocation right holders (public bodies which nominally controlled the flats) and the occupancy right holders were regulated by law (the Housing Act 1984, which is still in force in Bosnia and Herzegovina). In accordance with this Act, an occupancy right, once allocated, entitled the occupancy right holder to permanent, lifelong use of the flat against the payment of a nominal fee. When occupancy right holders died, their rights transferred, as a matter of law, to their surviving spouses (indeed, spouses held occupancy rights in common) or registered members of their family households who were also using the flat (sections 19 and 21 of this Act). Furthermore, in the event of a divorce, the spouses were free to choose which one of them would continue to use the flat; in the absence of an agreement, either of them could apply to a court for a transfer of the occupancy right (section 20 of this Act). In practice, these provisions on transfer meant that occupancy rights originally allocated by public bodies to their employees could pass, as of right, to multiple generations for whom the initial employment-based link to the allocation right holder no longer existed. Occupancy rights could be cancelled only in court proceedings (section 50 of this Act) on limited grounds (sections 44, 47 and 49 of this Act), the most important of which was failure by occupancy right holders to physically use their flats for their own housing needs for a continuous period of at least six months without justified grounds. Although inspections were foreseen to ensure compliance with this requirement (section 42 of this Act), occupancy rights were rarely, if ever, cancelled on these grounds prior to the 1992-95 war. Moreover, on 24 December 1992 the Constitutional Court of Bosnia and Herzegovina annulled the inspection provisions.
7. Following its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. On 15 May 1992 the United Nations Security Council, acting under Chapter VII of the United Nations Charter, adopted its Resolution 757 urging that all units of the JNA, the armed forces of the SFRY, and all elements of the Croatian Army either be withdrawn from Bosnia and Herzegovina, or be subject to the authority of the Government of Bosnia and Herzegovina, or be disbanded and disarmed with their weapons placed under effective international monitoring. While the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the United Nations Secretary General (report of 3 December 1992, A/47/747, § 11) and the International Criminal Tribunal for the former Yugoslavia (see its judgment in the Tadić case of 15 July 1999, § 151) later established that JNA members born in Bosnia and Herzegovina actually remained there with their equipment and joined the VRS forces and only those born in Serbia and Montenegro left and joined the VJ forces. As regards the participation by foreign armed forces in the 1992-95 war in Bosnia and Herzegovina, see Đokić, cited above, §§ 16-17.
8. The concept of “social ownership” was abandoned during the 1992-95 war. Socially owned flats were thus effectively nationalised. As regards the administration of such flats during and after the war, see “Relevant domestic law and practice” below.
9. The applicant was born in 1959. She lives in Banja Luka, Bosnia and Herzegovina.
10. In 1983 her husband, a JNA sergeant, was allocated a military flat in Sarajevo. As the JNA formally withdrew from Bosnia and Herzegovina in 1992, he decided to continue his military career in Serbia. The applicant also moved to Serbia, where she was granted refugee status.
11. The applicant’s husband’s military service was terminated in 1998.
12. In 1998 the applicant made an application for the restitution of the flat in Sarajevo. Shortly thereafter, she filed a petition for divorce in Serbia and returned to Bosnia and Herzegovina. She was granted a divorce on 2 March 2000.
13. On 25 March 2000 her restitution claim was rejected pursuant to section 3a of the Restitution of Flats Act 1998 (“section 3a”; see paragraph 54 below). On 28 September 2000 the competent Cantonal Ministry upheld that decision.
14. On 29 June 2001 the applicant lodged an application with the Human Rights Chamber, a domestic human-rights body set up by Annex 6 to the General Framework Agreement for Peace in Bosnia and Herzegovina (“the Dayton Peace Agreement”).
15. On 27 June 2002 the Sarajevo Cantonal Court, on an application for judicial review, quashed the decisions of 25 March and 28 September 2000 and remitted the case for reconsideration.
16. On 9 July 2002 the restitution commission set up by Annex 7 to the Dayton Peace Agreement (“the CRPC”), before which the applicant pursued parallel proceedings, held that the applicant’s husband was neither a refugee nor a displaced person and declined jurisdiction.
17. On 22 November 2002 the competent housing authorities rejected again the applicant’s claim pursuant to section 3a. On 23 September 2003 the competent Cantonal Ministry upheld that decision.
18. On 9 September 2004 the Human Rights Commission, the successor of the Human Rights Chamber, held that the applicant shared the fate of her former husband as to the restitution of their flat and found no breach of the Convention owing to her former husband’s service in the VJ forces.
19. On 20 January 2006 the Sarajevo Cantonal Court, on an application for judicial review, quashed the administrative decisions of 22 November 2002 and 23 September 2003 and remitted the case for reconsideration.
20. On 5 October 2006 the authorities rejected again the applicant’s claim pursuant to section 3a. On 8 December 2006 the competent Cantonal Ministry upheld that decision. The decision of 8 December 2006 was served on the applicant on 30 September 2007. The applicant did not appeal.
21. On 17 November 2008 the Constitutional Court found a breach of Article 6 of the Convention in consideration of the length of the restitution proceedings and awarded the applicant 1,200 convertible marks (BAM) for non-pecuniary damage. Regardless of the excessive length of the restitution proceedings, it held that the applicant should have nevertheless lodged an application for judicial review against the administrative decision of 8 December 2006 and rejected her substantive complaints on non-exhaustion grounds.
22. The applicant was born in Serbia in 1934. He lives in Serbia.
23. In 1978, as a JNA medical officer, he was allocated a military flat in Sarajevo. Whilst he was transferred to Belgrade in 1989, his wife stayed in that flat until 1994. His military service was terminated on 31 October 1992.
24. On an unknown date, after having renounced his occupancy right on the flat in Sarajevo, the applicant was allocated a tenancy right of unlimited duration on a military flat in Serbia. In addition, he was provided a loan, cofinanced by the military authorities, for another flat in Serbia (see paragraph 59 below).
25. In 1998 the applicant made an application for the restitution of the flat in Sarajevo.
26. On 8 August 2000 his restitution claim was rejected pursuant to section 3a. On 12 March 2001 the competent Cantonal Ministry upheld that decision.
27. On 15 August 2002 the Sarajevo Cantonal Court, on an application for judicial review, quashed the decisions of 8 August 2000 and 12 March 2001 and remitted the case for reconsideration.
28. On 17 September 2002 the applicant lodged an application with the Human Rights Chamber.
29. On 22 November 2002 the competent housing authorities rejected again the applicant’s restitution claim pursuant to section 3a. The decision was delivered on 30 December 2002. The applicant did not appeal.
30. On 7 July 2004 the Human Rights Commission, the successor of the Human Rights Chamber, found that there was no breach of the Convention. That decision was delivered on 11 November 2004.
31. The applicant was born in Croatia in 1944. He lives in Serbia.
32. In 1983, as a JNA officer, he was allocated a military flat in Mostar. When the JNA formally withdrew from Bosnia and Herzegovina in 1992, he decided to continue his military career in Serbia. His military service was terminated in 2000.
33. In 1998 the applicant made an application for the restitution of the flat in Mostar. On 4 September 2001 his application was rejected pursuant to section 3a. The decision was upheld by the competent Cantonal Ministry, the Mostar Cantonal Court and the Supreme Court of the relevant Entity on 22 December 2003, 29 December 2004 and 11 October 2006 respectively.
34. In 2003 the applicant lodged an application with the Human Rights Chamber. In 2006 the Human Rights Commission found a breach of Article 6 of the Convention in view of the length of the restitution proceedings and awarded the applicant BAM 1,000 for non-pecuniary damage. Given their excessive length, the Human Rights Commission held that the restitution proceedings did not constitute a remedy which would have to be used as a condition for the examination of the applicant’s substantive complaints. It then held, in line with its well-established jurisprudence, that the applicant’s occupancy right constituted “possessions” within the meaning of Article 1 of Protocol No. 1 and that his inability to repossess his flat amounted to an interference with the enjoyment of that rights. As regards the proportionality of the interference, the Commission held that the applicant’s service in the VJ forces had shown his disloyalty to Bosnia and Herzegovina. It concluded that the interference was therefore justified and found no breach of Article 1 of Protocol No. 1. Lastly, it considered that it was unnecessary to examine the discrimination and Article 8 complaints.
35. The applicant was born in Serbia in 1952. He lives in Serbia.
36. In 1988, as a JNA medical officer, he was allocated a military flat in Sarajevo. When the JNA formally withdrew from Bosnia and Herzegovina, he decided to pursue his military career in Serbia.
37. After having renounced his occupancy right on the flat in Sarajevo, on 1 June 1999 the applicant was provided a mortgage loan, co-financed by the military authorities, for a flat in Serbia (see paragraph 59 below).
38. In 1999 the applicant made an application for the restitution of the flat in Sarajevo. On 22 June 2004 his application was rejected pursuant to section 3a. That decision was upheld by the competent Cantonal Ministry, the Sarajevo Cantonal Court and the Supreme Court on 1 November 2004, 24 September 2007 and 15 January 2010 respectively.
39. In the meantime, on 9 July 2002, the CRPC mentioned in paragraph 16 above, before which the applicant pursued parallel proceedings, held that he was neither a refugee nor a displaced person and declined jurisdiction.
40. The applicant’s military service was terminated in 2003.
41. The applicant was born in 1942. He lives in Serbia.
42. In 1987, as a JNA officer, he was allocated a military flat in Mostar. Although the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, he stayed in Mostar. On paper, however, he was a member of the newly-established VJ forces, the armed forces of the neighbouring Federal Republic of Yugoslavia, until 31 July 1992. On 3 August 1992 the HVO forces arrested the applicant. He was detained at Dretelj internment camp until 18 August 1992 and then deported to the area controlled by the VRS forces. Shortly thereafter, the Red Cross Society of Montenegro transferred the applicant to the former Yugoslav Republic of Macedonia. On 26 August 1992 he was examined at Skopje Military Hospital. According to the medical report, the applicant was subjected to serious ill-treatment at Dretelj internment camp.
43. In 1998 the applicant made an application for the restitution of the flat in Mostar. On 9 October 2002 his claim was rejected pursuant to section 3a. On 7 November the competent Cantonal Ministry upheld that decision. On 16 April 2003 the Mostar Cantonal Court, on an application for judicial review, quashed both decisions and remitted the case for reconsideration.
44. On 11 February 2004 the housing authorities rejected again the applicant’s restitution claim under section 3a. On 5 July 2004 the competent Cantonal Ministry upheld that decision. On 2 December 2004 the Mostar Cantonal Court quashed both decisions and remitted the case to the housing authorities.
45. On 16 April 2007 the housing authorities rejected for a third time the restitution claim pursuant to section 3a. That decision was upheld by the competent Cantonal Ministry and the Mostar Cantonal Court on 11 February and 2 December 2008 respectively.
46. On 26 April 2007 the Serbian authorities terminated the proceedings for the allocation of a flat in Serbia because the applicant had not renounced his occupancy right on the flat in Mostar (see paragraph 59 below). On 6 October 2009 the applicant was placed in an old people’s home in Serbia, as he had no other place to live.
47. The applicant was born in Montenegro in 1941 where he now lives.
48. In 1981, as an economist employed at a military facility, he was allocated a military flat in Sarajevo. When the JNA formally withdrew from Bosnia and Herzegovina, he accepted a similar job at a military facility in Montenegro.
49. In 1999 the applicant made an application for the restitution of the flat in Sarajevo. On 17 March 2003 his restitution claim was accepted. On 27 November 2003 the competent Cantonal Ministry quashed that decision and rejected the restitution claim pursuant to section 3a.
50. Meanwhile, on 24 April 2003, the CRPC mentioned in paragraph 16 above, before which the applicant pursued parallel proceedings, held that he was neither a refugee nor a displaced person and declined jurisdiction.
51. In November 2005 he retired. After having renounced his occupancy right on the flat in Sarajevo, he was allocated a tenancy right of unlimited duration on a military flat in Montenegro in December 2005 (see paragraph 59 below).
52. On 6 February 2006 the Sarajevo Cantonal Court, on an application for judicial review, quashed the decision of 27 November 2003 and remitted the case to the Cantonal Ministry. On 29 March 2006 the Cantonal Ministry quashed the decision of 17 March 2003 and remitted the case to the housing authorities. On 10 April 2007 the housing authorities rejected the restitution claim under section 3a. The Cantonal Ministry and the Sarajevo Cantonal Court upheld that decision on 5 June 2007 and 24 June 2008 respectively. The last decision was delivered on 10 December 2008.
53. During the 1992-95 war in Bosnia and Herzegovina more than 2.2 million people left their homes as a consequence of “ethnic cleansing” or generalised violence. As a rule, they fled to areas controlled by their own ethnic groups. All parties to the conflict quickly adopted procedures allowing the flats of those who had fled to be declared “abandoned” and allocated to new occupants. While the alleged rationale for the allocation of “abandoned” flats was to provide humanitarian shelter to displaced persons, particularly attractive flats were often awarded to the military and political elites. In some cases, occupancy rights were cancelled pursuant to section 47 of the Housing Act 1984, because of failure by the pre-war occupancy right holders to use their flats for a continuous period of at least six months. In most cases, however, the authorities applied legislation specially enacted for those purposes: the Abandoned Flats Act 1992, the Abandoned Flats Decree 1993, the Refugee Accommodation Decree 1993, the Refugee Accommodation Act 1995 and the Abandoned Property Act 1996. In the immediate aftermath of the war, legislation on abandoned flats remained in force in both Entities of Bosnia and Herzegovina (namely, the Federation of Bosnia and Herzegovina and the Republika Srpska) and reallocation of flats continued nearly unabated, which further reinforced ethnic separation.
54. All such legislation was repealed under international pressure in 1998, enabling pre-war occupants to claim restitution. However, that right was limited in time and failure to make a timely application led to the cancellation of occupancy rights. The general deadline in the Federation of Bosnia and Herzegovina was 4 July 1999, but in some cases an application could have been made by 4 October 1999 or, for damaged flats, by 29 June 2002 (sections 5 and 18e of the Restitution of Flats Act 1998). Occupancy rights on military flats can be cancelled also under section 3a of that Act on the following grounds. First, if the pre-war occupancy right holder served in foreign armed forces after 19 May 1992 (when the JNA formally withdrew from Bosnia and Herzegovina). Since those who were granted refugee or equivalent status in a country outside the former SFRY are exempted, the restriction affects only those who served in the forces of the successor States of the SFRY and, in reality, almost exclusively those who served in the VJ forces. The second category is those who acquired an occupancy or equivalent right to a military flat in a successor State of the SFRY. On 22 September 2004 the Constitutional Court, on an application for abstract constitutionality review, declared that provision constitutional (decision U 83/03, published in Official Gazette of Bosnia and Herzegovina no. 60/04 of 27 December 2004). It has afterwards rejected numerous individual cases raising the issue of inability to return to military flats.
55. Once occupancy right holders have repossessed their pre-war flats, they are entitled to purchase them under very favourable terms pursuant to the Privatisation of Flats Act 1997.
56. Upon the cancellation of a pre-war occupancy right on a civilian flat, due to failure to make a timely application, the flat in issue may be given to another person provided that his or her housing needs have not already been met (see section 18d of the Restitution of Flats Act 1998). In accordance with sections 11 and 11a of that Act, it is deemed that one’s housing needs have already been met when that person or his or her spouse, child or parent has another habitable flat or house; the person concerned has sold his or her pre-war home; the person concerned earns as a minimum one quarter of the average consumer basket per member of his or her household plus BAM 200; or falls into any other category specified therein.
57. Different rules apply to military flats. Upon the cancellation of a pre-war occupancy right, due to failure to make a timely application or due to a final decision rejecting a restitution claim pursuant to section 3a of the Restitution of Flats Act 1998, the flat may be allocated to current and retired military officials, current and retired staff of the Ministry of Defence, war veterans, war invalids or families of killed members of the former ARBH or HVO forces provided that their housing needs have not otherwise been met (see section 30 of the Military Flats Allocation Ordinance 1996). Section 31 of that Ordinance also provides that a person cannot be allocated a military flat if he or she or his or her spouse or minor child had a house or a flat in Bosnia and Herzegovina before the war (even if it has meanwhile been sold or gifted). Other conditions set out in paragraph 56 above, such as one’s income, do not apply to the allocation of military flats. Pursuant to section 30 of the Military Flats Allocation Ordinance 1996, 45% of flats should be allocated to senior officers and the highest Ministry officials; 15% to junior officers; and 10% to non-commissioned officers, other soldiers and Ministry staff. The remaining flats should be allocated to war veterans, war invalids or families of killed members of the former ARBH or HVO forces. During and immediately after the war many military flats were reportedly allocated to the highest military and civilian officials whose housing needs had otherwise been met (see Đokić, cited above, § 10). In 2002 the High Representative therefore requested the local authorities to ensure that all flats be allocated in accordance with the law. It would appear that during that process, which led to some evictions and which was monitored by the High Representative and the Organisation for Security and Cooperation in Europe, the deficiencies mentioned above were for the most part remedied.
58. Applications for restitution are dealt with under an administrative procedure. First-instance decisions are, as a rule, subject to appeal within 15 days of delivery (section 227 of the Administrative Procedure Act 1998). Second-instance decisions are, as a rule, subject to judicial review within 30 days of delivery (section 18 of the Administrative Disputes Act 2005). Decisions on applications for judicial review were earlier subject to appeal to the Supreme Court of the Federation of Bosnia and Herzegovina within 15 days of delivery (section 42 of the Administrative Disputes Act 1998, replaced by the Administrative Disputes Act 2005 in March 2005), but they are no longer subject to appeal. An administrative decision enters into effect when upheld by the competent Ministry, the competent Cantonal Court and, until March 2005, by the Supreme Court; when the parties declare that they will not use either of those remedies; or when the time-limit for any of them expires.
59. It has no longer been possible to acquire occupancy rights in Serbia since 1992 (see section 30(1) of the Housing Act 1992). Instead, current and retired members of the armed forces and current and retired staff of the Ministry of Defence have afterwards been entitled to an equivalent tenancy right of unlimited duration on military flats or, in case of a lack of suitable flats, mortgage loans co-financed by the State on condition that they or their spouses or children do not have an occupancy or equivalent right on a flat in any of the former Republics of the SFRY (the Military Housing Ordinances 1994, 1995, 2002 and 2005 and the Military Pensioners Ordinances 1994 and 2010). Therefore, those who occupied military flats in Bosnia and Herzegovina before the war have as a rule been required to give up their rights on those flats in order to qualify for a military flat or a loan in Serbia or Montenegro (see sections 6-7 and 87 of the Military Housing Ordinance 1994; sections 7-8 and 74 of the Military Pensioners Ordinances 1994; and sections 6-7 and 85 of the Military Housing Ordinance 1995).
60. Section 39(2) of the Housing Act 1992 provides that the holder of a tenancy right of an unlimited duration on a flat may purchase that flat under the same conditions as an occupancy right holder.
61. While the number of people who left their homes in Serbia after the dissolution of the former SFRY is far from the number of such people in Bosnia and Herzegovina (see paragraph 53 above), there were nevertheless some cases. For example, in 1992 a number of Muslims left Mali Zvornik, a Serbian town bordering on Bosnia and Herzegovina, as the local authorities were unable to protect them from militias from across the border. Although their flats were allocated to other people immediately after their departure, some of them have subsequently been reinstated by the Serbian courts (see decisions of the Supreme Court of Serbia Rev/3160/02 of 4 December 2002 and Rev/1856/07 of 4 October 2007 and decisions of the Loznica Municipal Court in those cases). The Serbian courts held that the flats in issue should not have been considered as abandoned as the persons concerned had left them under duress. However, some other persons in a similar situation have not been able to repossess their flats (see decision of the Supreme Court of Serbia Rev/2053/08 of 28 November 2008 finding that the restitution claim should have been made much earlier than in June 2005).
62. Between 1992 and 2003 Montenegro was a constituent unit of the Federal Republic of Yugoslavia and then, until its independence in 2006, of the State Union of Serbia and Montenegro. Since Serbia and Montenegro had common armed forces throughout that period, the ordinances mentioned in paragraph 59 above applied also in Montenegro until 2006.
63. The Dayton Peace Agreement was initialled in the United States on 21 November 1995 and entered into force when it was signed in France on 14 December 1995. It put an end to the war in Bosnia and Herzegovina.
64. The relevant part of Article II § 5 of Annex 4 to the Agreement reads as follows:
“All refugees and displaced persons have the right freely to return to their homes of origin.”
65. Article I § 1 of Annex 7 to the Agreement provides:
“All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them. The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina. The Parties confirm that they will accept the return of such persons who have left their territory, including those who have been accorded temporary protection by third countries.”
66. The Agreement on Succession Issues was the culmination of nearly ten years of intermittent negotiations under the auspices of the International Conference on the former Yugoslavia and the High Representative. It entered into force between Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (succeeded in 2003 by the State Union of Serbia and Montenegro and in 2006 by Serbia), Slovenia and the former Yugoslav Republic of Macedonia on 2 June 2004.
67. Under Articles 2 and 7 of Annex A to that Agreement, immovable State property of the SFRY situated in Bosnia and Herzegovina passed to that State on the date on which it proclaimed independence. With regard to occupancy rights, Article 6 of Annex G to that Agreement provides:
“Domestic legislation of each successor State concerning dwelling rights (‘stanarsko pravo/ stanovanjska pravica/ станарско право’) shall be applied equally to persons who were citizens of the SFRY and who had such rights, without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
68. The relevant principles, endorsed by the United Nations Sub-Commission on the Promotion and Protection of Human Rights in 2005 (E/CN.4/Sub.2/2005/17), are the following:
“1.1 The Principles on housing and property restitution for refugees and displaced persons articulated herein are designed to assist all relevant actors, national and international, in addressing the legal and technical issues surrounding housing, land and property restitution in situations where displacement has led to persons being arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence.
1.2 The Principles on housing and property restitution for refugees and displaced persons apply equally to all refugees, internally displaced persons and to other similarly situated displaced persons who fled across national borders but who may not meet the legal definition of refugee (hereinafter ‘refugees and displaced persons’) who were arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence, regardless of the nature or circumstances by which displacement originally occurred.”
“2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal.
2.2 States shall demonstrably prioritize the right to restitution as the preferred remedy for displacement and as a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to housing, land and property restitution.”
“7.1 Everyone has the right to the peaceful enjoyment of his or her possessions.
7.2 States shall only subordinate the use and enjoyment of possessions in the public interest and subject to the conditions provided for by law and by the general principles of international law. Whenever possible, the ‘interest of society’ should be read restrictively, so as to mean only a temporary or limited interference with the right to peaceful enjoyment of possessions.”
“16.1 States should ensure that the rights of tenants, social-occupancy rights holders and other legitimate occupants or users of housing, land and property are recognized within restitution programmes. To the maximum extent possible, States should ensure that such persons are able to return to and repossess and use their housing, land and property in a similar manner to those possessing formal ownership rights.”
“21.1 All refugees and displaced persons have the right to full and effective compensation as an integral component of the restitution process. Compensation may be monetary or in kind. States shall, in order to comply with the principle of restorative justice, ensure that the remedy of compensation is only used when the remedy of restitution is not factually possible, or when the injured party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation.
21.2 States should ensure, as a rule, that restitution is only deemed factually impossible in exceptional circumstances, namely when housing, land and/or property is destroyed or when it no longer exists, as determined by an independent, impartial tribunal. Even under such circumstances the holder of the housing, land and/or property right should have the option to repair or rebuild whenever possible. In some situations, a combination of compensation and restitution may be the most appropriate remedy and form of restorative justice.”
69. The relevant part of the Resolution reads as follows:
“9. In the light of the above, the Assembly calls on member states to resolve post-conflict housing, land and property rights issues of refugees and IDPs, taking into account the Pinheiro Principles, the relevant Council of Europe instruments, and Recommendation Rec(2006)6 of the Committee of Ministers.
10. Bearing in mind these relevant international standards and the experience of property restitution and compensation programmes carried out in Europe to date, member states are invited to:
...
10.4. ensure that previous occupancy and tenancy rights with regard to public or social accommodation or other analogous forms of home ownership which existed in former communist systems are recognised and protected as homes in the sense of Article 8 of the European Convention on Human Rights and as possessions in the sense of Article 1 of the First Protocol to the Convention;
10.5. ensure that the absence from their accommodation of holders of occupancy and tenancy rights who have been forced to abandon their homes shall be deemed justified until the conditions that allow for voluntary return in safety and dignity have been restored;”
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1
NON_VIOLATED_ARTICLES: P1
NON_VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-67204
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF PIŠTOROVÁ v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Effective domestic remedy);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
TEXT: 4. The applicant was born in 1935 and lives in Prague.
5. The applicant's parents owned a house with a garden and private road. On 24 April 1967 they donated their property to the State. The property was then administered by the Humpolec Municipality (město Humpolec).
6. On 24 April 1991 the applicant requested the Municipality to conclude a restitution agreement with her, pursuant to the Extra-Judicial Rehabilitation Act (hereinafter “the Act”). The Municipality refused.
7. On 10 February 1993 the Pelhřimov District Court (okresní soud), after having held two hearings on 17 June 1992 and 9 February 1993, dismissed the applicant's action for restitution of the property in question, introduced on 31 March 1992 and completed on 8 and 16 June 1992, stating that the contract of donation had not been concluded under pressure, as envisaged by the Act.
8. On 13 May 1993 the České Budĕjovice Regional Court (krajský soud), upon the applicant's appeal of 17 March 1993, quashed this judgment and remitted the case to the District Court.
9. On 20 October and 10 December 1993 and on 26 and 29 July 1994 the District Court held hearings.
10. On 29 July 1994 it ordered the Municipality to restore the property to the applicant. The court, having assessed certain additional evidence, found that the applicant's parents had signed the contract of donation under pressure.
11. On 8 December 1994 the Regional Court, on the defendant's appeal of 28 August 1994, to which the applicant had made her comments on 4 September 1994, modified the District Court's judgment, dismissing the applicant's claim for restitution. It found that the Municipality had not owned the house on 1 April 1991, as provided for in the Act, and that it had not been transferred to the Municipality after the entry into force of Act no. 172/1991 with the obligation to restore it to the former owners.
12. On 13 February 1995 the judgment was notified to the applicant who, on 27 February 1995, filed an appeal on points of law (dovolání) with the Prague High Court (Vrchní soud), raising the question of the position of the Municipality as defendant.
13. On 17 December 1998 the Supreme Court, to which the applicant's case had been transferred for reasons of material competence on 2 January 1996, dismissed the applicant's appeal, endorsing the reasons given by the Regional Court.
14. On 23 March 1999 the applicant lodged a constitutional appeal (ústavní stížnosti) claiming that the proceedings had been unreasonably long, and that her right to a fair and public hearing respecting the principle of equality of arms had been violated.
15. On 3 August 2000 the Constitutional Court (Ústavní soud) dismissed her appeal, stating inter alia that there had been no unjustified delays in the proceedings. It considered that any delay in the proceedings before the Supreme Court had been caused by the amendments to the Code of Civil Procedure (občanský soudní řád). The decision was notified to the applicant's lawyer on 14 August 2000.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80795
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KORENJAK v. SLOVENIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: 1. The applicant, Mr Matej Korenjak, is a Slovenian national who was born in 1983 and lives in Braslovče. He was represented before the Court by the Verstovšek lawyers practising in Celje.
2.
3. On 16 December 1996 the applicant was injured in his primary school while climbing on a roof of a gymnasium under construction.
4. On 16 July 1997 the applicant, who was a minor at that time, instituted civil proceedings in the Celje District Court (Okrožno sodišče v Celju) against the Adriatic Insurance Company (“the AIC”) claiming compensation amounting to 6,200,000 Slovenian tolars (SIT). He also sought an exemption from court fees.
5. On 19 March and 1 July 1998 the applicant made requests for a hearing.
6. On 31 July and 8 September 1998 the applicant filed pleadings.
7. On 11 September 1998 a hearing was held. The court decided to appoint three medical experts, namely, a surgeon, an orthopaedist and a urologist.
8. On 16 September 1998 the court issued three decisions appointing the above-mentioned medical experts.
9. On 29 September, 27 October 1989 and 2 February 1999 the applicant filed pleadings. On 26 February 1999 he requested a copy of the expert opinions and on 13 September 1999 he filed pleadings.
10. On 10 November 1999 he requested the court to set a hearing and on 13 June 2000 he filed pleadings.
11. On 13 September 2000 a hearing was held. The court heard witnesses and adjourned the hearing in order to call other witnesses.
12. On 25 October 2000 the applicant lodged additional evidence.
13. On 31 January 2001 a hearing was held and adjourned in order to summon two witnesses.
14. On 5 February 2001 the applicant filed pleadings.
15. On 2 April 2001 a hearing was held. The witnesses were heard and the court decided to appoint an expert in workplace safety.
16. On 4 and 6 April 2001 the applicant filed pleadings.
17. On 13 April 2001 the Celje District Court issued a decision appointing the expert.
18. On 10 January 2002 the applicant filed pleadings.
19. On 21 January 2002 a hearing was held. The court decided to summon the workplace safety expert.
20. On 11 February 2002 the Celje District Court issued a decision concerning an appointment.
21. On 22 February 2002 the applicant filed pleadings.
22. On 6 March 2002 a hearing was held. The court examined the workplace safety expert and decided to appoint another expert, namely a clinical psychologist. On 25 March 2002 the applicant filed additional evidence. On 3 September 2002 the Celje District Court issued a decision concerning the appointment of the clinical psychologist.
23. On 16 October 2002 the Celje District Court handed down a judgment granting the applicant’s claim in part.
24. On 26 January 2003 the applicant lodged an appeal. The proceedings are pending before the Celje Higher Court.
25. In a letter of 9 October 2006 the State Attorney General officially informed the Court that, further to its judgment in Lukenda v. Slovenia (no. 23032/02, §§ 93 and 95, ECHR 2005X) binding the Slovenian State to adopt appropriate legal measures and administrative practices in order to secure the right to a trial within reasonable time, the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”) had been enacted on 26 April 2006. The 2006 Act came into force on 27 May 2006 and became operational on 1 January 2007.
26. The following provisions of the 1991 Constitution are relevant here:
“Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law.
“Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a state or local authority or as a holder of public office. ...”
“The Constitutional Court shall hear:
... constitutional appeals in which specific acts are alleged to have infringed a human right or fundamental freedom; ...
Unless otherwise provided by law, the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted. The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures.”
27. Following the judgment in Lukenda (cited above) and decision no. U-I-65/05 of the Constitutional Court (22 September 2005), both binding the Slovenian State to establish conditions in which the right to a trial without undue delay must be afforded, the Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the so-called Lukenda Project. Its goal is the elimination of backlogs in Slovenian courts and prosecutor’s offices by the end of 2010, by providing for structural and managerial reform of the judiciary.
28. The preparation of the 2006 Act was part of the Lukenda Project.
29. The 2006 Act has been implemented since 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings.
30. Section 3 provides for two remedies to expedite pending proceedings - a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog) - and, ultimately, for a claim for just satisfaction in respect of damage sustained because of the undue delay (zahteva za pravično zadoščenje).
31. Section 4 defines the criteria that domestic authorities should take into account when assessing the complaints:
“When deciding on the legal remedies under this Act, the circumstances of the particular case shall be taken into account, namely: its complexity in terms of facts and law; actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings; compliance with rules on the set order for resolving cases, or with statutory deadlines for fixing preliminary hearings or for giving court decisions; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged; the nature and type of case and its importance for a party.”
32. The supervisory appeal is governed by sections 5 and 6, which provide as follows:
“(1) If a party considers that the court is unduly protracting the decision-making, he or she may lodge a supervisory appeal in writing before the court hearing the case; the decision thereon is taken by the .... president of the court (hereinafter ‘the president of the court’).
(2) For the purposes of decision-making concerning the protection of the right to a trial without undue delay, the supervisory appeal shall contain the following elements:
– personal name or company name or any other name of the party, its address of permanent or temporary residence or registered office;
– personal name or company name or any other name of the representative or legal representative and its permanent or temporary residence or registered office;
– indication of the court hearing the case;
– reference number of the case or date on which the case was filed in the court;
– indication of circumstances or other particulars concerning the case, which demonstrate that the court is unduly protracting the decision-making;
– handwritten signature of the party, representative or lawyer.”
“(1) If the supervisory appeal is manifestly unfounded having regard to the timetable for resolving the case concerned by the supervisory appeal, the president of the court shall dismiss the appeal by a ruling.
(2) If the supervisory appeal does not contain all the required elements referred to in section 5(2) of this Act, the president of the court shall dismiss it by a ruling. No appeal shall lie against that ruling.
(3) If no ruling as provided for in paragraphs 1 or 2 of this section is given, the president of the court shall, in the framework of his court management competence under the statute governing the court system, forthwith request the .... judge or chair of a court panel (hereinafter ‘the judge’) to whom the case has been assigned for resolution to submit a report indicating reasons for the duration of proceedings, not later than fifteen days after receiving the request of the president of the court or after obtaining the file, if necessary for drawing up the report. The report shall include the declaration in respect of criteria referred to in section 4 of this Act and the opinion on the time-limit within which the case may be resolved. The president of the court may also require the judge to submit the case file if he assesses that, in the light of allegations of the party indicated in the supervisory appeal, its examination is necessary.
(4) If the judge notifies the president of the court in writing that all relevant procedural acts will be performed or a decision issued within a time-limit not exceeding four months following the receipt of the supervisory appeal, the president of the court shall inform the party thereof and thus conclude the consideration of the supervisory appeal.
(5) If the president of the court establishes that in view of the criteria referred to in section 4 of this Act the court is not unduly protracting the decision-making in the case, he shall dismiss the supervisory appeal by a ruling.
If he orders that appropriate procedural acts be performed by the judge, he shall also set the time-frame for their performance, which may not be less than fifteen days and not longer than six months, as well as the appropriate deadline for the judge to report on the acts performed.
(7) If the president of the court establishes that the undue delay in decision-making in the case is attributable to an excessive workload or an extended absence of the judge, he may order that the case be reassigned. He may also propose that an additional judge be assigned to the court or order other measures in accordance with the statute governing the judicial service.
(8) A judge may be assigned by the annual schedule of allocation to act in place of or together with the president of the court in exercising the court management competence for decision-making in respect of the supervisory appeal.”
33. Sections 8, 9 and 11 define the motion for a deadline and provide for measures that may be applied by the court dealing with the motion. They read, in so far as relevant, as follows:
“(1) If, under section 6(1) or (5) of this Act, the president of the court dismisses the supervisory appeal or fails to respond to the party within two months or fails to send the notification referred to in section 6(4) of this Act within the said time-limit or if appropriate procedural acts have not been performed within the time-limit set in the notification or ruling of the president of the court, the party may lodge a motion for a deadline under section 5(1) of this Act with the court hearing the case.
...
(3) The party may lodge the motion for a deadline within fifteen days after receiving the ruling or after the time-limits provided for in paragraph 1 of this section.”
“(1) The president of the higher court in the judicial area covering the local court, district court or other court of first instance, shall be competent to decide on the motion for a deadline concerning cases heard by the local court, district court or other court of first instance.
...”
“(1) If the motion for a deadline is manifestly unfounded, having regard to the timetable for the resolution of the case and the actions of the party, the president of the court shall dismiss it by a ruling.
...”
(4) If the president of the court establishes that, in view of the criteria referred to in section 4 of this Act, the court is unduly protracting the decision-making in the case, he shall order, by a ruling, that the appropriate procedural acts be performed by the judge and shall also set the time-frame for their performance, which may not be less than fifteen days and not longer than four months, as well as set the appropriate deadline for the judge to report on the acts performed.
(5) The president of the court shall decide on the motion for a deadline within fifteen days after receiving it.”
34. Section 14 governs the competence of the Ministry of Justice in cases where a supervisory appeal has been lodged with the Ministry rather than with the court of competent jurisdiction:
“(1) If the supervisory appeal is lodged with the Ministry responsible for justice (hereinafter referred to as ‘the Ministry’), the Minister .... responsible for justice (hereinafter referred to as ‘the Minister’) shall refer it to the president of the court of competent jurisdiction to hear it in accordance with this Act and shall ask to be kept informed of the findings and decision.
...”
35. Further to section 15, just satisfaction may be provided by payment of monetary compensation, a written statement of the State Attorney’s Office or the publication of a judgment:
“(1) If the supervisory appeal lodged by the party was granted or if a motion for a deadline has been lodged, the party may claim just satisfaction under the present Act.
(2) Just satisfaction shall be provided by:
i. payment of monetary compensation for damage caused by a violation of the right to a trial without undue delay;
ii. a written statement from the State Attorney’s Office that the party’s right to a trial without undue delay was violated;
iii. the publication of a judgment that the party’s right to a trial without undue delay was violated.”
36. Section 16 provides for a compensatory remedy and fixes the maximum amount that could be awarded:
“(1) Monetary compensation shall be payable for non-pecuniary damage caused by a violation of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia.
(2) Monetary compensation for individual finally decided cases shall be granted in the amount of 300 up to 5,000 euros.
(3) When deciding on the amount of compensation, the criteria referred to in section 4 of this Act shall be taken into account, in particular the complexity of the case, actions of the State, actions of the party and the importance of the case for the party.”
37. Sections 19, 20 and 21 govern just satisfaction proceedings and proceedings in respect of pecuniary damage:
“(1) Proceedings to enforce a claim for just satisfaction, provided that the condition referred to in section 15(1) of this Act is met, shall be instituted by a party by means of a motion for settlement lodged with the State Attorney’s Office with a view to reaching an agreement on the type or amount of just satisfaction. The party may lodge such motion within nine months after the final resolution of the case. The State Attorney’s Office shall rule on the motion of the party within a period of three months if it establishes that the just satisfaction claim is substantiated. Until the expiry of the above-mentioned period, the party may not assert any claim for monetary compensation by way of just satisfaction by bringing an action before the competent court.
(2) If, in accordance with paragraph 1 of this section, the agreement has been reached with the party, the State Attorney’s Office shall enter into an out-of-court settlement with the party.”
“(1) If no agreement under section 19 of this Act is reached upon the motion for settlement, or the State Attorney’s Office and the party fail to negotiate an agreement within three months of the date of the motion being lodged, the party may bring an action for damages.
(2) An action for damages against the Republic of Slovenia shall be brought not later than eighteen months after the final resolution of the party’s case.
...”
“(1) Action in respect of pecuniary damage caused by a violation of the right to a trial without undue delay may be brought by the party within eighteen months of the final ruling of the court on the party’s case in accordance with the provisions of the Obligations Code concerning pecuniary damage.
...”
38. Sections 22 and 23 further provide for payment of compensation:
“(1) The State Attorney’s Office shall pay monetary compensation on the basis of the settlement referred to in section 19(2) of this Act and for all appropriate costs incurred by the party in connection therewith.
(2) The State Attorney’s Office shall pay monetary compensation and the party’s costs of the proceedings on the basis of a final court decision which has established the violation of the right to a trial without undue delay in the proceedings, under section 20 or section 21 of the present Act.”
“Funds ... shall be earmarked in the Budget of the Republic of Slovenia within the framework of the financial plan of the State Attorney’s Office.”
“(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within a period of four months at the latest. ...
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months after the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months after receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”