ITEMID: 001-72950
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF PEKOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 5-3;No violation of Art. 5-4 (pre-trial detention);Violation of Art. 5-4 (house arrest);Violation of Art. 6-1;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 5. The applicant was born in 1959 and, at the time of the latest information from him, lived in Burgas.
6. In 1993 the applicant became the chairman of the board of a credit and savings cooperative (popular bank) – Popular BankPekov – having its registered office in Burgas.
7. In 1994 the applicant became the chairman of the board of the Union of the Popular Banks, having its registered office in Burgas.
8. On an unspecified date in mid-1995 criminal proceedings were opened against the applicant in relation with his duties as chairman of the board of Popular BankPekov.
9. On 15 August 1995 the investigation authorities requested the Nesebar District Court to attach certain assets belonging to the applicant and to Popular BankPekov, with a view to securing their forfeiture in the event the applicant was convicted. In a decision of 21 August 1995 the Nesebar District Court allowed that request.
10. On 25 August 1995 an investigator at the Burgas Regional Investigation Service attached further property belonging to Popular Bank-Pekov.
11. On 29 August 1995 the applicant was charged with having engaged in banking business without the requisite licence, contrary to Article 252 § 2 of the Criminal Code (“the CC”).
12. On 3 January 1996 new charges were preferred against the applicant. It was alleged that he had misappropriated 65,000,000 old Bulgarian levs (BGL) from the deposits made in Popular BankPekov, contrary to Article 203 § 1 of the CC.
13. It seems that witnesses were questioned on 4 January, 30 and 31 July, 17 and 23 September, 17 and 22 October, 4 November, and 6, 9, 10 and 15 December 1996, 14 and 18 January, 20 and 28 February, 20 March, and 4 and 7 August 1997. On an unspecified date an accounting expert report was drawn up.
14. On 4 February 1998 the applicant was charged anew under Articles 202 § 2, 219 § 1, 252 § 2 and 282 § 2 of the CC.
15. On 7 July 1998 the Burgas Regional Prosecutor’s Office decided to drop the charges under Articles 203 § 1 and 219 § 1 of the CC. On 15 December 1998 its decision was quashed by the Burgas Appellate Prosecutor’s Office insofar as it concerned the charges under Article 219 § 1 of the CC, and upheld, insofar as it concerned the charges under Article 203 § 1 of the CC.
16. On 10 July 2001 the applicant was charged anew under Articles 201, 202 §§ 1 and 2, 219 § 1, 252 §§ 1 and 2, and 282 § 2 of the CC.
17. On 18 December 2001 the charges against the applicant were amended once again to include counts under Articles 201, 202 §§ 1 and 2, 219 § 1, 252 §§ 1 and 2, and 282 § 2 of the CC.
18. On 3 July 2003 the applicant was charged anew under Articles 202 § 2, 219 § 4, 252 § 2 and 282 § 2 of the CC.
19. On 8 July 2003 the Burgas Regional Prosecutor’s Office submitted an indictment against the applicant to the Burgas Regional Court.
20. The first hearing, listed for 27 October 2003, was adjourned at the request of the applicant, who presented a doctor’s note to the effect that he was ill and could not attend, and argued that the copy of the indictment which had been sent to him had pages missing. Another reason for the adjournment was that most of the prosecution’s witnesses did not show up.
21. A hearing scheduled for 12 January 2004 was adjourned by reason of the failure of a number of witnesses to show up. The court ordered a new accounting expert report to be drawn up by three experts.
22. A hearing planned for 5 April 2004 could not take place because the accounting expert report had not yet been drawn up and a number of witnesses were absent. The court fined some of the missing witnesses and ordered that they be brought by force to the next hearing.
23. At the next hearing, which took place on 12, 13 and 14 July 2004, the applicant requested that the case be remitted for the correction of alleged procedural mistakes made during the preliminary investigation. His request was denied. The court heard the applicant and approximately fifteen witnesses. However, as a number of other witnesses were absent, the court adjourned the case. It gave leave to the parties to ask the experts additional questions.
24. A hearing took place on 15 November 2004. The court heard several witnesses, but as a number of others were absent, it adjourned the case.
25. A hearing listed for 7 February 2005 was adjourned at the request of the applicant, who presented a doctor’s note to the effect that he was ill and could not attend.
26. A hearing took place on 25 April 2005. The court heard several witnesses. The prosecution stated that certain amounts allegedly misappropriated and squandered by the applicant had been wrongly noted down in the indictment by reason of an error in the calculations. In reply the applicant submitted that the correction of the mistakes in the indictment constituted an amendment of the charges against him and requested an adjournment in order to prepare his defence. The court agreed and adjourned the case to 27 April 2005.
27. On 27 April 2005 the court heard one witness and adjourned the case at the request of the applicant, holding that in view of the large volume of written evidence, he should be given more time to prepare his defence after the amendment of the charges, even though this amendment consisted only in the correction of an error in the amounts noted down in the indictment.
28. At the time of the latest information from the parties (10 May 2005) the criminal proceedings against the applicant were still pending before the Burgas Regional Court; a hearing had been listed for 20 June 2005.
29. On 29 August 1995, when the applicant was first charged, the investigator dealing with his case ordered him to pay bail in the amount of BGL 500,000. The applicant appealed to the Burgas District Prosecutor’s Office, stating that this sum was too high and he could not pay it. In a decision of 11 September 1995 the Burgas District Prosecutor’s Office dismissed his appeal, reasoning that he owned sufficient assets and that the amount was justified in view of the gravity of the offence alleged against him. On the appeals of the applicant that decision was upheld by the Burgas Regional Prosecutor’s Office, but later, on 28 November 1995, varied by the Chief Prosecutor’s Office, which reduced the bail amount to BGL 250,000.
30. On 3 January 1996, when preferring new charges of misappropriation of funds against the applicant, the investigator of the Burgas Regional Investigation Service in charge of the case ordered his pretrial detention. She noted, without providing further detail, that the offence alleged against him was particularly serious, and that there was a risk that he could imperil the investigation. The investigator’s decision was confirmed by a prosecutor of the Burgas Regional Prosecutor’s Office the same day.
31. On the appeal of the applicant, on 5 January 1996 the Burgas Regional Prosecutor’s Office decided to release him on bail, citing his bad health requiring special medical treatment. It seems that the applicant paid the bail amount – BGL 250,000 – the same day and was released.
32. On 6 May 1996 the investigator in charge of the applicant’s case once again ordered his pretrial detention. She reasoned that he had failed to show up for questioning despite having been duly summoned on 26 March 1996. Moreover, on 2, 3 and 4 April 1996 it had proved impossible to find him at the address indicated by him in Sofia. The applicant had also failed to report to the Burgas Regional Investigation Service every second Thursday of the month, as ordered by the investigator. It could thus be inferred that he had failed to show up without good cause and that it was therefore necessary to take him into custody. That decision was confirmed by a prosecutor of the Burgas Regional Prosecutor’s Office on 16 May 1996.
33. In May and June 1996 the police conducted initially a local and afterwards a nationwide search for the applicant.
34. On 5 July 1996 the applicant was arrested. It was found that on 16 May 1996 he had changed his address without notifying the investigation authorities.
35. The applicant appealed against his pretrial detention to the Burgas Regional Prosecutor’s Office. In her observations in reply to the appeal the investigator in charge of his case stated that the his pre-trial detention was mandatory, as he had been charged with a “serious intentional offence” and there were no reasons to apply the exception provided for by paragraph of 2 of Article 152 of the Code of Criminal Procedure (“the CCP”).
36. On 6 August 1996 the Burgas Regional Prosecutor’s Office upheld the decision to keep the applicant in custody. It found that he had failed to notify the investigator in charge of his case of his change of address and to report to the Burgas Regional Investigation Service on several dates despite the instructions to that effect. On the other hand, the applicant’s state of health did not require his release. In consideration of this and of the fact that the applicant had been charged with an offence under Article 203 § 1 of the CC, i.e. a serious intentional offence, it was justified to maintain him in detention.
37. On the appeal of the applicant, the Chief Prosecutor’s Office upheld this decision on 13 September 1996.
38. During the following months the applicant underwent treatment in the prison hospital and was examined several times by medical doctors.
39. On 2 October 1996 the Burgas Regional Prosecutor’s Office decided to release the applicant from pretrial detention and place him under house arrest. It found that his remaining in custody could have an irreversible negative impact on his health. The attempts to treat him in the prison hospital had proved futile, whereas his state of health required immediate specialised hospital treatment.
40. On 10 October 1996 the applicant informed the investigator in charge of his case that he had to be admitted to a hospital in Sofia. He advised the investigator of his address in Sofia and obliged to report to the Burgas Regional Investigation Service every second and fourth Thursday of the month.
41. On 4 February 1998 and 10 July and 18 December 2001 the investigator in charge of the applicant’s case confirmed his house arrest of her own motion, without giving reasons.
42. During the period when the applicant was under house arrest, he changed his address several times for health reasons and because of difficulties in finding employment, each time notifying the investigator in charge of his case by mail.
43. The applicant was released from house arrest on 3 July 2003.
44. Article 201 of the CC makes it an offence for an official or a manager to misappropriate public or private funds which are in his or her possession in his or her professional capacity or which he or she has been entrusted with to keep secure or administer. By Article 202 § 2 (1) of the CC, as in force at the relevant time, if the misappropriated funds were in large amounts, between three and fifteen years’ imprisonment could be imposed. If the misappropriated funds were in particularly large amounts and the case was particularly aggravated, the punishment ranged between ten and thirty years’ imprisonment (Article 203 § 1 of the CC, as in force at the relevant time).
45. Article 219 § 1 of the CC makes it an offence for an official or a manager to fail to take due care in managing or keeping secure the assets entrusted to him or her, provided this failure results in substantial losses, destruction or dissipation of these assets, or other substantial damage to the undertaking or the economy. At the relevant time the punishment could be up to three years’ imprisonment.
46. Article 252 § 1 of the CC makes it an offence to engage in, inter alia, banking business without the requisite licence. By paragraph 2 of that Article, as in force at the relevant time, if the perpetrator had obtained substantial illegal gains therefrom, between one and six years’ imprisonment could be imposed.
47. Article 282 § 1 of the CC makes it an offence for an official or a manager to, inter alia, abuse his powers or rights in order to provide a financial benefit to himself or another, provided that this leads to nonnegligible harmful consequences. By paragraph 2 of that Article, as in force at the material time, if the harmful consequences were substantial, the punishment ranged between one and eight years’ imprisonment.
48. At the relevant time and until the reform of the CCP of 1 January 2000 an arrested person was brought before an investigator who decided whether or not he or she should be remanded in custody. The investigator’s decision was subject to approval by a prosecutor. The role of investigators and prosecutors under Bulgarian law has been described in paragraphs 2529 of the Court’s judgment in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999II).
49. The relevant provisions of the CCP and the relevant case-law of the Bulgarian Supreme Court have been summarized in paragraphs 38 and 39 of the Court’s judgment in the case of Shishkov v. Bulgaria (no. 38822/97, ECHR 2003I (extracts)).
50. A summary of the relevant domestic law may be found in paragraphs 5155 of the Court’s judgment in the case of Vachev v. Bulgaria (no. 42987/98, ECHR 2004VIII (extracts)).
51. The provisions governing judicial review of pretrial detention at the time when the applicant was held in such are summarised in paragraphs 7276 of the Court’s judgment in the case of Assenov and Others v. Bulgaria (judgment of 28 October 1998, Reports of Judgments and Decisions 1998VIII) and paragraphs 33-36 of the Court’s judgment in Nikolova (cited above).
52. Article 152a of the CCP, as enacted in August 1997 and in force until the end of 1999, read as follows:
“1. The detainee shall be immediately provided with a possibility of filing an appeal with [the competent court] against the [imposition of detention]. [The appeal must be filed] not later than seven days after the [imposition of detention]. The court shall consider the appeal in an open hearing to which the [detainee] shall be summoned. The hearing shall take place not later than three days after the receipt of the appeal at the court.
2. The appeal shall be filed though the organ which has ordered the detention ... .
3. The court[‘s ruling shall not be] subject to appeal ...”
53. On 21 March 1997 the Assembly of the Criminal Divisions of the Supreme Court of Cassation decided to request the Constitutional Court to rule on the compatibility of Article 152 of the CCP, governing pretrial detention, with, inter alia, Article 5 of the Convention. It reasoned that by virtue of Article 5 § 4 of the Constitution the Convention was incorporated into Bulgarian law and that all statutory provisions should therefore be in compliance with it. It also stated that when deciding cases before them the Bulgarian courts should take into account the caselaw of the European Court of Human Rights (опред. № 1 от 21 март 1997 г. по н.д. № 1/ 1997 г. на ОСНК на ВКС).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-4912
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: PANCENKO v. LATVIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Ukrainian citizen, born in 1941. At present she lives in Liepājā in Latvia.
She represented before the Court by Mr G. Kotov, a lawyer practising in Riga.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.
The applicant lived in Ukraine until her marriage in Potsdam (Germany) in 1963. Thereafter, together with her husband, a Soviet military officer, the applicant briefly lived in the Kaliningrad enclave of Russia where she gave birth to her son. In 1967 the applicant came to Latvia for the first time, when her husband was appointed to a military post in Liepājā. She stayed there until 1968, when the family moved to the far north of Russia, where the husband continued his military service. The applicant remained in Russia until 1985, when she came back to Liepājā separately from her spouse. Ever since she has been living in Latvia alone. Following the formal divorce in 1994, her former husband died in Ukraine in 1996. Her son and granddaughter live in Ukraine.
In 1992, under the Status of the Former USSR Citizens Act, the applicant was entered on the Register of Latvian Residents (hereinafter referred to as “the Register”) on the basis of her status as “an ex-USSR citizen”, a particular category of stateless persons under the Latvian law (see the Relevant domestic law part below). The applicant had no specific citizenship at that point.
On 10 October 1994 the applicant adopted citizenship of Russia. She submits that she did so to be able to leave the territory of Latvia and to go abroad on occasional commercial trips with a view to earning money.
On 17 February 1995 the Latvian Citizenship and Migration Authority (hereinafter referred to as “the CMA”) annulled the applicant's entry in the Register and, upon her request, issued her with a temporary residence permit valid until 21 February 1996.
On 6 March 1995 the applicant complained to the CMA, alleging a CMA official had misled her in offering to apply for temporary residence. The applicant stated that she was in fact entitled to the entry on the Register as a permanent resident of Latvia.
On 7 July 1995 she brought court proceedings, alleging that the decision of the immigration authorities to annul her entry in the Register was void.
On 17 January 1996 the applicant denounced her Russian citizenship.
On 18 March 1996 the Liepājā City District Court rejected the applicant's claim.
On 3 July 1996, on the applicant's appeal, the Kurzeme Regional Court transmitted the case back to the District Court for new examination on the ground of technical defect relating to the composition of the court at first instance.
On 10 December 1996 the Liepājā City District Court again dismissed the applicant's action. The Court held that the applicant had been a Russian citizen, and that her entry had been lawfully withdrawn by the CMA from the Register as she had lost her special status as “an ex-USSR citizen”. The Court also noted that the applicant had herself filed an application for a temporary residence permit, which had been granted.
On 9 April 1997, on the applicant's appeal, the Kurzeme Regional Court confirmed the decision of the District Court. The appellate court held that, having obtained Russian citizenship, the applicant became subject of Russia, and that her entry could not remain in the Register.
The applicant appealed to the Supreme Court.
She also presented her problems to various parliamentary, executive and non-governmental institutions, but without success.
As the applicant failed to extend her temporary residence permit following its expiry on 21 February 1996, she was presented with an expulsion order on 23 May 1997. She refused to sign the deportation order pending her cassation appeal.
On 18 June 1997 the Supreme Court dismissed the cassation appeal, finding that the lower courts had properly decided the case.
By a letter of 8 July 1997 the Ministry of Interior informed the applicant that her stay in Latvia was illegal.
The applicant again approached the immigration authorities, requesting registration as a permanent resident. This was refused. She did not request an extension of her temporary residence permit.
On 4 November 1997 the applicant introduced a fresh court action, asking to be re-registered.
On 20 January 1998 the Riga City Central District Court rejected the application, finding that the matter had already been decided in the first set of court proceedings which had ended by a final decision of the Supreme Court on 18 June 1997. The applicant appealed, stating that the action was in fact new. On 11 May 1998 the Riga Regional Court dismissed the appeal.
By a letter of the CMA of 16 July 1998 the applicant was informed that her continued stay in Latvia was illegal, and that she was required to leave the country. She was warned that, otherwise, she would be served with a deportation order.
In a letter to the CMA of 8 October 1998 the applicant stated that, following the entry into force of the amended Registration of Residents Act on 10 September 1998, she became entitled to be registered as a permanent resident of Latvia.
On 26 March 1999 the applicant took up Ukrainian citizenship.
On 19 April 1999 the CMA Director authorised the immigration authorities to issue the applicant with a permanent residence permit in Latvia on the basis of her status as a foreign citizen. By the above decision the deportation order in respect of the applicant was quashed.
On 22 April 1999 the applicant was issued with a permanent residence permit in Latvia.

B. Relevant domestic law
There are three categories of permanent residents of Latvia:
a) Latvian citizens;
b) stateless persons who have the special status of “ex-USSR citizens”;
c) foreign citizens or other stateless persons who obtain permanent residence permits.
Categories a) and b) have the right to be entered on the Register of Residents by sole operation of, respectively, the Citizenship Act and the Status of the Former USSR Citizens Act. The persons in subparagraph c) can be granted permanent residence permits by decision of a competent authority or by virtue of the Entry and Residence of Foreign Citizens and Stateless Persons Act.
Article 1 § 3 of the Status of the Former USSR Citizens Act 1998 provides that only those stateless persons who “are not or have not been citizens of another State” can have the special status of an “ex-USSR citizen”.
Other foreign citizens or stateless persons must obtain limited (temporary) residence permits or visas in order to stay in the country legally in accordance with the Entry and Residence of Foreign Citizens and Stateless Persons Act.


ITEMID: 001-96614
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KAYRIAKOVI v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of P1-1;Pecuniary and non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 6. The applicants were born in 1944, 1946 and 1973 respectively and live in Sofia.
7. The first and the second applicants are husband and wife and the third applicant is their daughter.
8. In 1974 the first and the second applicants bought from the Sofia municipality an apartment of 95 square metres, which had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following years.
9. In the beginning of 1993 the heirs of the former pre-nationalisation owner of the property brought proceedings against the first and the second applicants under section 7 of the Restitution Law.
10. The proceedings ended by a final judgment of the Supreme Court of Cassation of 8 January 2001. The courts restored the former owners’ title, finding that the first and the second applicants’ title had been null and void ab initio on three grounds: 1) the sale contract had not been signed by the mayor, as required by law, but by another official of the municipality. Although the mayor had been authorised to delegate the power to sign contracts, he had not made a valid delegation in the case at hand; 2) the initial decision to sell the property had not been signed by the mayor of the region, as required by law, but by another official; and 3) the disputed apartment had been a part of a bigger apartment, which had on an unspecified date before 1974 been divided into two smaller ones; this division had not been carried out in accordance with the respective construction rules.
11. The first and the second applicants could apply, within two months following the judgment of the Supreme Court of Cassation of 8 January 2001, for compensation bonds from the State. Those bonds could be used in privatisation tenders or sold to brokers. The first and second applicants did not avail themselves of this opportunity.
12. By 2001 the three applicants were living in the apartment. In May 2001 they vacated the property.
13. In June 2001 the heirs of the former owner brought an action for damages against them for having used the apartment unlawfully, as they had not been its owners. The claim concerned the period from 1996 to 2001 as for the preceding years it was barred by the general five-year statutory limitation.
14. In a judgment of 31 May 2004 the Sofia District Court allowed the claim accepting that as the first and second applicants’ title had never been valid, the former owners’ title had been restored as of the date of entry into force of the Restitution Law in 1992. After that date, the applicants had had no right to use the apartment.
15. On 7 March 2006 the Sofia City Court upheld that judgment. The applicants did not submit a cassation appeal considering that it would stand no chances of success.
16. In June 2007 the first and second applicants paid to the former owners of the apartment 31,265 Bulgarian levs (BGN), the equivalent of approximately EUR 16,000, and the third applicant paid BGN 15,632, the equivalent of EUR 8,000.
17. The relevant background facts and domestic law and practice concerning the effect on third parties of the denationalisation legislation adopted in Bulgaria in the 1990s have been summarised in the Court’s judgment in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007.
18. In a judgment of 10 July 2003 (judgment no. 1127 in case no. 891/2002) the Supreme Court of Cassation dismissed an appeal by defendants whose title to an apartment had been found to be null and void under the terms of section 7 of the Restitution Law and who had been ordered by the lower courts to pay damages to the property’s former owners, for having used it on an invalid ground. The Supreme Court of Cassation rejected an objection by the defendants that prior to the final judgment under section 7 they had lawfully possessed the apartment at issue pointing out that their title had been null and void ab initio. It held that
“[a]s a legal category, the nullity of a legal action results in its complete incapability of producing the legal consequences sought. This incapability exists from the beginning, in other words, the contract, which has been subject to the action under section 7 [of the Restitution Law], was null and void, irrespective of when this nullity was declared by the courts.”
The Supreme Court of Cassation went on to conclude:
“... as from the date of entry of the [Restitution Law] into force, [the defendants] possessed the property on no valid legal ground and that is why this date has rightly been accepted as a starting date of [their] liability for damages.”


ITEMID: 001-58142
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF CLOOTH v. BELGIUM (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Costs and expenses award - domestic proceedings
JUDGES: C. Russo
TEXT: 1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 12 October 1990, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 12718/87) against the Kingdom of Belgium lodged with the Commission under Article 25 by a Belgian national, Mr Serge Clooth, on 12 February 1987.
2. The facts of the case are to be found in the principal judgment delivered on 12 December 1991 (Series A no. 225, pp. 7–12, §§ 7–31). In that judgment the Court held that the length of the applicant’s detention on remand had exceeded the reasonable time referred to in Article 5 § 3 of the Convention.
3
4. The Court accordingly reserved the whole of the question and invited the Government and the applicant to submit, within three months, their written observations on the matter and, in particular, to notify the Court of any agreement they might reach (ibid., p. 17, §§ 50–52, and point 2 of the operative provisions).
5. Subsequently Mr R. Bernhardt, the Vice-President of the Court and substitute judge in the Chamber, replaced Mr R. Ryssdal, who was unable to take part in the further consideration of the case, as President of the Chamber, and Mr B. Walsh, substitute judge, replaced Mrs Palm, who was likewise unable to take part in the further consideration of the case (Rules 21 § 6, second sub-paragraph, and 22 § 1 of Rules of Court A).
6. After the failure of an attempt to reach a friendly settlement, the applicant and the Government brought Mr Clooth’s claim before the Brussels tribunal de première instance by means of an application to appear voluntarily that was filed on 8 April 1992. The applicant sought 1,758,000 Belgian francs (BEF) in respect of non-pecuniary damage, BEF 698,150 in respect of pecuniary damage and BEF 1,283,698 for the costs of his defence, plus compensatory interest. The Belgian State requested the court to declare that its offer to pay the applicant the sum of BEF 300,000, covering all heads of compensation, was “sufficient”.
On 20 January 1995 the tribunal de première instance ordered the Belgian State to pay the applicant BEF 100,000 in respect of non-pecuniary damage and BEF 500,000 for the costs of his defence.
7. On 13 February 1995 Mr Clooth asked the Court to rule on the application of Article 50. On 24 March 1995 he lodged an appeal with the Brussels Court of Appeal against the judgment of 20 January 1995. On 31 March and 4 April 1995 respectively the Government and the Delegate of the Commission submitted observations. On 3 May 1995 the Court decided that as the case was still before the Belgian courts and that there was no reason to suppose that their final decision would be long in coming, it did not have to rule for the time being on the application of Article 50.
8. On 7 November 1997 the Brussels Court of Appeal delivered a judgment in which it increased the compensation for non-pecuniary damage to BEF 125,000, inclusive of compensatory interest, and upheld the judgment of 20 January 1995 as to the remainder.
9. In the light of that judgment, the Delegate of the Commission, the applicant and the Government submitted observations on the application of Article 50 on 12 and 13 February 1998.


ITEMID: 001-112321
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF D. J. v. CROATIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant was born in 1979 and lives in Croatia.
6. The applicant took a job working on the boat E. On the night of 22 August 2007, whilst the boat was berthed in M. harbour, the applicant called the police, telling them that she had been raped by D.Š. in the boat’s lounge area.
7. A police officer soon arrived and found the applicant, D.Š., A.R. (the owner of the boat), and some other people on the boat. The applicant told him that she had been raped, while the others said that she had been disturbing public order. The police interviewed witnesses M.B., I.R. and A.R., and the suspect D.Š.
8. The relevant part of a police report drawn up by officer I.Z. indicates as follows:
“Since D. was in a state of shock I could not conduct a detailed interview with her ...
The waiter D.Š. said that it was true that he had put his fingers in D.’s private parts, but that he had not taken off her underwear ...”
9. The police drove the applicant and D.Š. in the same vehicle to the B. Police Station. At 6 a.m. on 23 August 2007 the applicant was taken to the S. Medical Centre, where she remained until 12.30 p.m. on the same day. She was seen by a gynaecologist, who established that she did not have injuries on her genitals but had a few lacerations on her body, without noting any further details.
10. On the same day the B. Police Station lodged a criminal complaint with the S. County State Attorney against D.Š. on the basis of the applicant’s allegations of rape. The State Attorney’s Office lodged a request with the S. County Court for an investigation in respect of D.Š. on the basis of the allegations of rape. D.Š. was arrested and brought before S.G, an investigating judge at the S. County Court.
11. Also on the same day, Judge S.G. heard evidence from D.Š., who denied raping the applicant. He explained that the applicant had become very drunk and he had taken her to her cabin on the boat. The judge then issued a decision expressing his disagreement with the request for an investigation. The relevant part of his decision reads:
“...
After the investigating judge had heard evidence from the suspect and consulted the case file, he established with certainty, on the basis of the documents enclosed with the criminal complaint, that before the event at issue the injured party had been in the company of several persons, including the suspect, in bar “F.” in M., where she had consumed a large quantity of alcohol, which was recorded by the breathalyser, and then they had all gone to the ship E. berthed in the close vicinity, on which the suspect, the injured party and other persons were employed and where the guests were asleep in their cabins.
After arriving on the ship, and while still in the bar, the injured party had disturbed public peace and order, saying that she was drunk, that somebody had drugged her, and [asking] that the police be called. She said all this to a minor [child], I.R., ... but did not say that anyone had raped her or had committed any acts equal to sexual intercourse. Moreover, in her statement to the police I.R. stated that she had refused to call the police when she had seen that the injured party was drunk, and that the injured party had then slapped her in the face.
After arriving on the ship, and this was confirmed by the statement of the ship owner, A.R., the injured party had shouted, entered the guests’ cabins and woken them up, to which A.R. had responded by asking her to stop shouting and disturbing the guests and she had then punched him in the stomach. After that, according to his statement, he had asked the captain of a ship berthed next to his to take D. off the ship, which they had done. The injured party had acted even more aggressively, shouting hysterically, especially when the owner of the ship, A.R., told her not to come back to his ship and that she had lost her employment. They had carried her away from the ship and made her sit on the seafront next to the ship until the police had come.
All of the above was confirmed by M.B., the owner of the bar “F.”, but the injured party did not mention the word ‘rape’ or any other indecent act; she only said that somebody had made her drunk and drugged her, all of which transpires from the police report on page six of the case-file. Her allegations are confirmed by the statement [given to the police] by A.R., as well as other eyewitnesses. The injured party asked for the police to be called, saying that she had been drugged while in the bar. She asked the same of all the eyewitnesses, and repeated her request while she was on the ship and when she was physically thrown off the ship, but during all that time she never mentioned any criminal acts.
The criminal complaint and the enclosures in the case-file show with certainty that the injured party was not, at any moment, alone with the suspect, nor did she mention to anyone after the alleged event that there had been any acts which could qualify as the criminal offence of rape.
...
A medical report drawn up at the S. Hospital, enclosed with the criminal complaint, does not mention any injuries on the genitals of the injured party but only lacerations on her body which were obviously caused when she refused to leave the ship but was dragged and carried from it before the police arrived, when she sustained these injuries.
In view of the statements given by the eyewitnesses, which were enclosed with the criminal complaint, the eyewitnesses all having been present throughout the events, the investigating judge is convinced that there was no reason for arresting D.Š., and after his questioning ... I have not established that there is a reasonable suspicion [on account of which] to open an investigation, ... and I do not agree with the request for opening an investigation ...”
12. The case file was then forwarded to a three-judge panel of the S. County Court, which on 24 August 2007 ordered an investigation in respect of D.Š. on the basis of the applicant’s allegations of rape. The investigation was conducted by Judge S.G.
13. A medical report drawn up by a doctor at the C. Hospital on 25 August 2007 records that the applicant had bruises on her genitals, a rash on the back of her upper legs and two smaller bruises on her buttocks.
14. A medical report drawn up by a doctor at the Rijeka Hospital on 30 August 2007 noted that the applicant was suffering from an acute reaction to stress.
15. On 30 August 2007 the applicant, on her own initiative, gave the skirt she had been wearing on the night in question to the police in C. as a piece of evidence. It was not given for forensic examination.
16. On 14 and 15 September 2007 the police interviewed M.V., I.R. T.Š., Ve.M. and F.B. Ve.M. said that M.V. had told him that she had found the applicant’s underwear on the boat and thrown it in the garbage. He further stated that D.Š. had commented that he would like to have sex with the applicant. F.B. also said that D.Š. had commented that he would like to have sex with the applicant.
17. At the request of the B. Police Station the applicant was interviewed at the C. Police Station, which was closer to her place of residence, on 19 September 2007.
18. On the same day the S. State Attorney’s Office asked that witnesses M.V., Z.B., T.Š., I.R., Ve.M. and F.B. be heard. They also asked for the forensic examination of possible biological traces on the clothes the applicant had been wearing during the critical event.
19. On 19 September 2007 the same Office asked that an examination of the applicant’s clothes be carried out in order to establish whether they had any traces of biological material on them.
20. On the same day Judge S.G. heard evidence from witnesses A.R., M.V. and M.B., and on 21 September 2007 from F.B.
21. On 2 October 2007 he heard evidence from the applicant. She said that D.Š. had raped her in the lounge of the boat where they had both been employed. She also said that the police officer who had arrived after her call had asked the men why they hadn’t thrown her into the sea. She alleged that her skirt had been torn and had had traces of blood on it, and she had told the officer that she had not being wearing any underwear because D.Š. had torn it and thrown it away in the boat’s lounge and told her that she had been drunk and not raped. The applicant had asked the officer to secure the evidence at the scene, such as her clothes, including her underwear, but he had replied that there was no need for that because she had been drunk and had not been raped. She had also heard the officer telling D.Š. not to worry and that “everything would be taken care of”. When the police had arrived D.Š. had already taken a shower.
She also said that some time after the incident Ve.M., had telephoned her to tell her that her underwear had been found and that one of the boat’s employees, M.V., had thrown it in the garbage. She had telephoned the police to inform them about this but they had hung up on her.
22. On 28 November 2007 the applicant’s lawyer asked the S. County State Attorney’s Office to lodge a request for the withdrawal of Judge S.G. on account of his bias against the applicant. She received no reply.
23. On 3 December 2007 Judge S.G. heard evidence from Z.B., the gynaecologist who had seen the applicant on 23 August 2007, after the incident. He said that he had not noticed any injuries on the applicant’s genitals but that she had had few scratches elsewhere on her body, which he had not recorded because they did not fall into the gynaecological sphere.
24. On 5 December 2007 the S. County State Attorney’s Office asked Judge S.G. to ask for the results of all the forensic examinations of biological traces available in respect of the applicant, as well as those concerning her injuries, and to hear evidence from a further witness, Ve.M.
25. On 7 January 2008 Judge S.G. commissioned a psychiatric report on the applicant in order to establish her ability to correctly interpret events. He also ordered that the applicant’s previous psychiatric records be provided. The psychiatric report of 25 January 2008 relied on the applicant’s previous records concerning the period between 29 September and 26 October 2001 and a telephone conversation with the applicant, without having met her.
26. On 8 January 2008, at the request of the B. Police Station, officers at the M.L. Police Station interviewed the applicant’s father about the applicant’s relationship with her family.
27. On 19 February 2008 Judge S.G. received the forensic report on the biological traces, which did not establish any connection between the biological traces taken from the applicant and D.Š. The skirt the applicant had worn on the critical event was not examined.
28. On 29 February 2008 Judge S.G. obtained the forensic report concerning the applicant’s injuries, which established that the medical report concerning the applicant drawn up on 23 August 2008 by the gynaecologist at the S. Hospital had mentioned a few scratch marks on her body but no injuries on her genitals. The medical report drawn up on 25 August 2007 by a physician at the C. Hospital established that she had three scratch marks on her genitals, a rash on the back of her thighs and three haematomas. Judge S.G. concluded that the injuries established by the physician at the C. Hospital had been recorded two days after the alleged rape and had not been established by the gynaecologist who had seen the applicant on the morning after the alleged rape; they could not therefore be connected with certainty with the event.
29. On 10 March 2008 Judge S.G. commissioned a medical report on the injuries sustained by the applicant. On 11 March 2008 a medical report drawn up by an expert in forensic medicine established that the applicant’s injuries had first been recorded on 25 August 2007 by a doctor at the C. hospital, while the gynaecologist who had seen the applicant on 23 August 2007 had not recorded any injuries. Therefore, the doctor concluded that the injuries recorded on 25 August 2007 could not be directly connected with the event of 23 August 2007.
30. On 11 March 2008 Judge S.G. issued a decision expressing his disagreement with the request by the S. County State Attorney’s Office of 19 September 2007 to hear evidence from witness Ve.M. on the ground that he was not available since he had not answered the summons of the investigating judge to appear and the police could not find him. The S. County State Attorney’s Office lodged an appeal. On 20 March 2008 a three-judge panel of the S. County Court upheld the decision of the investigating judge on the ground that the information in the case file showed that witness Ve.M. had no direct knowledge of the criminal offence allegedly committed against the applicant.
31. The applicant alleges that the police interviewed her father about her relationship with her family.
32. On 31 March 2008 the S. County State Attorney’s Office ceased to pursue the criminal prosecution of D.Š. for lack of evidence.
33. On 9 April 2008 the investigating judge terminated the criminal proceedings against D.Š.
34. On 28 April 2008 the applicant took over the prosecution and lodged a bill of indictment against D.Š. in the S. County Court on charges of rape. On 9 September 2009 the bill of indictment was sent to D.Š. for reply.
35. On 17 January 2011 the S. County Court scheduled a hearing for 25 February 2011. On 15 February 2011 the lawyer representing the applicant informed the S. County Court that she was on maternity leave and was no longer able to represent the applicant in the proceedings at issue. She also informed the S. County Court that the applicant had instituted proceedings before the M.L. City Administration and was seeking legal aid.
36. On 24 February 2011 S. County Court scheduled a hearing for 14 April 2011, stating that it was expected that by that time a legal aid lawyer would have been allocated to the applicant.
37. On the same day the M.L. City Administration refused the applicant’s request for legal aid on the grounds that the purpose of legal aid was not to institute criminal proceedings and that the proceedings in question were not of essential importance for the applicant since she had not lodged a compensation claim in connection with them. This decision was upheld on 12 April 2011 by the Ministry of Justice and the applicant was instructed that she could institute proceedings in the Administrative Court within thirty days in order to challenge the administrative bodies’ decisions. She did not do so.
38. On 16 May 2011 the applicant informed S. County Court that she had not obtained legal aid and that, owing to lack of means, she could not continue the proceedings against D.Š.
39. On 27 May 2011 the S. County Court terminated the proceedings.
40. On 10 September 2007 the applicant lodged a complaint with the police by telephone, complaining about the police officers from the B. Police Station in connection with the event at issue. On 12 October 2007 the lawyer representing the applicant reiterated her complaint in writing.
41. On 5 November 2007 the Head of the B. Police Station instituted disciplinary proceedings against officers F.C. and I.Z. from the S.-D. Police Department.
42. On 9 November 2007 the Head of the S.-D. Police Department informed the lawyer representing the applicant about the disciplinary proceedings against the police officers.
43. On 21 December 2007 the First Instance Disciplinary Court of the S. Office of the Ministry of the Interior adopted a decision establishing the disciplinary responsibility of officers F.C. and I.Z. and fined them each ten per cent of one month’s salary. The relevant part of the decision reads as follows:
“Police officer F.C. ...
is responsible for failing to supervise and instruct officer I.Z., whom he had assigned to conduct the criminal enquiry in the case concerning the criminal offence of rape ... against D.J. ... by D.Š. ..., and for not informing the Head of the police station of the errors he had established when signing the criminal complaint (such as: the failure to carry out an in situ inspection and a detailed informative interview with the injured party, which resulted in a failure to draw up adequate reports; failure to collect clothes from the participants in the event at issue; and incomplete filling in of the required forms); also for not ordering the immediate rectification of the errors he had noted in the criminal complaint so as to order the conducting of a detailed interview with the injured party and the drawing up of adequate reports, and the seizure of her clothes and the clothes of the suspect ...
by which he committed a grave breach of his official duty ... defined as ‘failure to act or untimely or reckless conduct or conduct lacking diligence in the carrying out of his official duties’ ...
...
Police officer I.Z. ...
is responsible for ... failures in his official conduct when he was assigned to carry out the criminal inquiry in connection with the criminal offence of rape against D.J., because he did not order an in situ inspection; nor did he take a statement from the injured party or conduct a detailed informative interview with her ... nor did he take the clothes that the injured party and the suspect were wearing in order to give them for forensic examination ...
by which he committed a grave breach of his official duty defined as ‘failure to act or untimely or reckless conduct or conduct lacking diligence in the carrying out of his official duties’ ...
...”
44. The relevant articles of the Croatian Constitution (Ustav Republike Hrvatske) provide:
“No one shall be subjected to any form of ill-treatment ...”
“Respect for and legal protection of everyone’s private and family life, dignity, reputation and honour is guaranteed.”
45. Section 62(1) of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu, Official Gazette no. 29/2002) reads:
“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision (pojedinačni akt) of a State body, a body of local or regional self-government, or a legal person with public authority, which has decided on his or her rights and obligations, or on a suspicion or accusation in respect of a criminal act, has violated his or her human rights or fundamental freedoms, ... guaranteed by the Constitution (hereinafter: ‘constitutional right’) ...”
46. Article 188 of the Criminal Code (Official gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006) reads:
“Whoever forces another person into sexual intercourse or another sexual act of equal nature by using force or threatening that he or she will directly attack her life or body or the life or body of a person close to her shall be sentenced to imprisonment for a term of three to ten years.”
47. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide as follows:
“(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ...
(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor.
(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.
(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party may take his place under the conditions prescribed by this Act as a subsidiary prosecutor.”
Articles 47 to 61 of the Code of Criminal Procedure regulate the rights and duties of a private prosecutor and of an injured party acting as a subsidiary prosecutor. The Criminal Code distinguishes between these two roles. A private prosecutor (privatni tužitelj) is an injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (these are offences of a lesser degree). The injured party as a subsidiary prosecutor (oštećeni kao tužitelj) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities, for whatever reason, have decided not to prosecute.
Pursuant to Article 55(1) of the Code of Criminal Procedure, the State Attorney is under a duty to inform an injured party within eight days of a decision not to prosecute and of that party’s right to take over the proceedings, as well as to instruct that party on the steps to be taken in order to proceed with the prosecution.
“...
(2) Where the criminal proceedings are conducted upon a request by the injured party acting as a subsidiary prosecutor in respect of a criminal offence punishable by more than three years’ imprisonment, he or she may ask to have legal counsel appointed free of charge where this is in the interests of the proceedings and where the injured party lacks the means to bear the expenses of legal representation ...”
“(1) A [criminal] complaint shall be lodged with the competent State Attorney[‘s Office] in writing or orally.
...”
“(1) When the investigating judge receives a request for an investigation he or she shall examine the case-file and hear the person in respect of whom the investigation is requested, without delay ... If he or she agrees with the request he or she shall issue a decision on the opening of the investigation ...
...”
“...
(2) If the investigating judge does not agree with the request for the opening of an investigation, he or she shall ask a [three-judge] panel of the competent county court to decide upon it ...
...”
48. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005 and 42/2008) read as follows:
“(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act.
(2) The right to respect for one’s personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, and the right to respect for one’s name and the privacy of one’s personal and family life, freedom et alia.
...”
“Damage is ... infringement of the right to respect for one’s personal dignity (non-pecuniary damage).”
49. The relevant part of section 186(a) 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) reads as follows:
“A person intending to bring a civil suit against the Republic of Croatia shall first submit a request for a settlement to the competent State Attorney’s Office.
...
Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court.
...”
50. The relevant part of section 186(a) 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 reads as follows:
“A person intending to bring a civil suit against the Republic of Croatia shall beforehand submit a request for a settlement to the competent State Attorney’s office.
...
Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court.
...”
51. Section 13 of the State Administration Act (Zakon o ustrojstvu državne uprave, Official Gazette nos. 75/1993, 48/1999, 15/2000 and 59/2001) reads as follows:
“The Republic of Croatia shall compensate damage caused to a citizen, legal entity or other party by the unlawful or wrongful conduct of a State administrative body, or a body of local self-government or administration ...”
52. In decision no. U-III-1437/2007 of 23 April 2008 the Constitutional Court found that the conditions of detention of a prisoner, P.M., in Lepoglava State Prison amounted to inhuman treatment. It also addressed the question of P.M.’s claim for just satisfaction. The relevant parts of the decision read:
“In particular, the Constitutional Court finds the [lower] courts’ opinion that in this case an award for non-pecuniary damage cannot be made under section 200 of the Civil Obligations Act on the ground that such compensation claim is unfounded in law, unacceptable.
...
Section 1046 of the Civil Obligations Act defines non-pecuniary damage as infringement of the right to respect for one’s personal integrity. In other words, every infringement of the right to personal integrity amounts to non-pecuniary damage.
Section 19(2) of the Civil Obligations Act defines the right to personal integrity for the purposes of that Act as: the right to life, physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, freedom and other rights.
... it must be concluded that in this case there has been a violation of human, constitutional and personal rights because the applicant was placed in prison in conditions incompatible with the standards prescribed by the Enforcement of Prison Sentences Act, conditions also incompatible with the legal standards under Article 25(1) of the Constitution. For that reason the courts are obliged to award compensation for the infringement of the applicant’s dignity.
...”
VIOLATED_ARTICLES: 3
8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-88535
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF URBANOVICI v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1959 and lives in Oradea.
5. On 14 May 1999, the applicant lodged with the Oradea District Court an action for recovery of possession (acţiune în revendicare) of a plot of land that, although recorded in the land register (cartea funciară) as belonging to the Oradea Local Council, she claimed she had inherited it from E.S. who had received it from the State in exchange for another plot of land.
The three courts that dealt with the case found in favour of the applicant. The District Court gave its decision on 4 July 2000. Upon appeals by the Local Council, the Bihor County Court upheld it on 16 February 2001 and the Oradea Court of Appeal on 21 May 2001, the latter by means of a final and irrevocable decision.
6. Before all the courts that dealt with the case, the Local Council argued that certificate no. 10524 of 14 May 1955, used by the applicant in order to prove her ownership title, was false as it contained a series of irregularities.
7. The first-instance court and the appeal court rejected the argument on the ground that the defendant had not brought evidence to prove the allegations. Moreover, the courts noted that, according to the information in their possession, no criminal proceedings had been started on the matter.
8. The court of last resort rejected the Local Council’s request that the proceedings be stayed until the courts had ruled on the nullity of the certificate (procedure described at paragraphs 10 to 12 below). On the merits, it noted as follows:
“The [defendant’s] allegations about the existence of irregularities in certificate no. 10524 of 14 May 1955 ... seem well-founded. However, this certificate established a prima facie case [început de probă scrisă] which entitled the firstinstance court to examine additional evidence; witness testimonies confirmed that the property title in dispute had been transferred from the State to E.S., who exercised public and peaceful possession without causing any nuisance ... This situation is also confirmed by the evidence on the consolidations of land that had taken place. The fact that the exchange of land occurred is undoubtedly proved by letter no. 28182 of 18 October 1949, issued by the Ministry of Agriculture ..., which cannot be contested...”
It also noted that the criminal investigation into the alleged forgery of the 1955 certificate had been terminated on 17 March 2001 as the time-limits for criminal responsibility had expired. However, the Court of Appeal considered that the evidence adduced, in particular the letter of 18 October 1949, rendered that investigation devoid of relevance in any case.
9. On an unspecified date the applicant’s ownership title was recorded in the land register.
10. On 19 April 2001 the Oradea Local Council lodged with the Oradea District Court an action against the applicant, seeking that the 14 May 1955 certificate above be set aside because it contained irregularities. The applicant argued that the issue was res judicata in so far as the courts ruling on the action for recovery of possession had already dealt with the matter.
11. The case was transferred to the Arad District Court which, on 28 March 2002, allowed the action, established that the document was false and set it aside.
12. Appeals by the applicant were rejected successively by the Arad County Court, on 10 July 2002, and by the Timişoara Court of Appeal, in a final decision of 3 December 2002.
13. Following the ruling of the Timişoara Court of Appeal, the Oradea Local Council sought the revision of the final decision of 21 May 2001 (cerere de revizuire). It also asked the Procurator General to lodge an application with the Supreme Court of Justice to have that decision set aside (recurs în anulare).
14. In a final decision of 19 February 2003, the Supreme Court of Justice allowed the Procurator General’s request, noted that the 1955 certificate had been declared false, quashed all the decisions rendered in the action for recovery of possession and, ruling on the merits, rejected the initial action on the ground that the applicant had failed to prove her ownership title.
The Supreme Court considered as follows:
“Although according to Article 129 (5) of the Civil Procedure Code the judges have an obligation to use all legal means in order to prevent any error in establishing the truth, by a correct determination of facts and application of law, the court of last resort rejected as ill-founded the request for a stay in the proceedings, although the ruling in the [parallel] action for nullity was essential for adopting a lawful decision.”
15. On 20 March 2003, at the Local Council’s request, the Oradea District Court took note of the Supreme Court’s decision and struck off the request for revision.
16. The relevant provisions of the Code of Civil Procedure read as follows:
“A final decision ... shall be revised in the following cases:
...
4. ... if the decision was adopted based on an act which was declared false either during or after the proceedings.”
“The Procurator General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for a final decision to be quashed on any of the following grounds: ...
2. when the decision in question has seriously infringed the law by giving a wrong solution on the merits of the case, or when the decision is manifestly illfounded; ...”
17. Article 330 has been repealed by Article I § 17 of the Government’s Emergency Ordinance no. 58 of 25 June 2003.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-82568
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GALKIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1939 and lives in Barnaul, the Altay Region.
5. On 20 December 1998 police searched the applicant's house.
6. On 20 June 2000 the Industrialnyy District Court of Barnaul found, upon the applicant's complaint, that the search had been unlawful. The judgment was not appealed against and acquired legal force ten days later. On 8 May 2001 the Presidium of the Altay Regional Court rejected the Prosecutor's application for supervisory review and upheld the judgment of 20 June 2000.
7. On 18 December 2003 the Oktyabrskiy District Court of Barnaul granted the applicant's action against the Ministry of Finance of the Russian Federation for compensation of non-pecuniary damage sustained as a result of the unlawful search and awarded the applicant 5,000 Russian roubles. By a decision of 24 March 2004 the Altay Regional Court upheld the judgment on appeal. On 29 July 2004 the Oktyabrskiy District Court issued a writ of execution.
8. On 15 October 2004 the applicant forwarded the writ of execution to the Ministry of Finance, but on 10 November 2004 the Ministry of Finance returned it to the applicant on the ground that he had failed to submit a duly certified copy of the judgment of 18 December 2003 and a payment request with indication of his bank account.
9. On 6 December 2004 the applicant re-submitted the enforcement materials to the Ministry of Finance. However, on 12 January 2005 the Ministry of Finance returned them to the applicant for the reason that the date of delivery of the judgment had been indicated incorrectly.
10. On 8 February 2005 the enforcement documents were once again forwarded to the Ministry of Finance.
11. The date on which the judgment was enforced is disputed by the parties. According to the Government, the judgment was fully enforced on 2 May 2005. From the applicant's submissions it follows that he had received the amount awarded by the judgment of 18 December 2003 on 2 May 2006.
VIOLATED_ARTICLES: 6


ITEMID: 001-110023
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF KOTOV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Possessions)
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Ann Power-Forde;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Guido Raimondi;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Kristina Pardalos;Nicolas Bratza;Peer Lorenzen;Sverre Erik Jebens
TEXT: 12. The applicant was born in 1948 and lives in Krasnodar.
13. On 15 April 1994 the applicant made a deposit in a savings account with the commercial bank Yurak (“the bank”). After the bank announced that it was changing the interest rate, the applicant requested the closure of his account in August 1994, but the bank informed him that it was unable to repay his capital plus interest as its funds were insufficient. The applicant sued the bank, seeking repayment of the capital he had deposited, together with interest, a penalty payment and compensation for pecuniary and non-pecuniary damage.
14. On 20 February 1995 the Oktyabrskiy District Court of the town of Krasnodar partly upheld the applicant’s claims and ordered the bank to pay him a total of 10,156 Russian roubles (RUB) (which included the capital of the deposit, interest accrued, compensation for non-pecuniary damage and penalties). That decision was upheld and became final on 21 March 1995. In a judgment of the Oktyabrskiy District Court of 5 April 1996 the above-mentioned award was recalculated in line with the inflation rate. The award was thus raised to RUB 17,983.
15. In the meantime, on 16 June 1995, at the request of the Central Bank and the Russian Savings Bank, the Commercial Court of the Krasnodar Region declared the bank insolvent. On 19 July 1995 the insolvency procedure was opened by that court and a liquidator was appointed by the court to oversee the bank’s administration in that connection.
16. On 11 January 1996 the Commercial Court approved the provisional statement of affairs based on the bank’s financial situation at 28 December 1995. As a result of the sale of the bank’s assets, RUB 2,305,000 had been accumulated on the bank’s account. According to the Government, the bank had incurred debts against 7,567 first-class creditors, whose claims amounted to RUB 24,875,000.
17. Under the law which defined the order of distribution of assets of insolvent entities, the applicant belonged to the first class of creditors, whose claims were to be satisfied before others. However, on 18 January and 13 March 1996 the creditors’ body of the bank created a special group of “privileged” creditors within the first class. That privileged group included disabled persons, war veterans, persons in need and persons who had actively assisted the liquidator within the insolvency proceedings. Those categories of creditors were to receive full satisfaction of their claims before other creditors belonging to the same class (the first). As a result, almost all of the funds collected during the liquidation process were used for repayment to those “privileged” creditors: they were reimbursed by the liquidator at 100% of the amounts due to them. On 6 April 1998 the applicant received the sum of RUB 140 (i.e. less than 1% of the amount of RUB 17,983 owed to him by the bank under the 1996 judgment).
18. On 22 April 1998 the applicant challenged, before the Commercial Court, the fact that other creditors had received repayment at 100%, whereas he had received less than 1% of the amount due to him. Relying on sections 15 and 30 of the Corporate Insolvency Act 1992 (“the 1992 Act”), he claimed that he belonged to the same class as the “privileged” creditors, and that the bank’s assets should have been distributed evenly. He sought repayment of the remainder of the sum owed to him, in accordance with the principle of proportional distribution of the assets of the bank amongst creditors of the same class.
19. On 6 July 1998 the applicant’s action was dismissed at first instance. On 26 August 1998 the Commercial Court of the Krasnodar Region reversed the judgment of the first-instance court and held that, in deciding to repay certain categories of creditors at 100%, the creditors’ body had overstepped the limits of its powers under section 23 of the 1992 Act. By enforcing that decision and distributing the assets at 100% to the “privileged” creditors, the liquidator had, in turn, disregarded the requirements of sections 15 and 30 of the Act. Pointing out that section 30 of the Act was not open to broad interpretation, the Commercial Court of the Krasnodar Region ordered the liquidator to redress the violations thus observed within one month and to inform it of the measures taken in that connection.
20. The liquidator appealed on points of law to the Federal Commercial Court for the North Caucasus, arguing that he had distributed the assets pursuant to a decision of the creditors’ body, that the distribution had complied with Article 64 of the Civil Code and that it had not therefore been in breach of the requirements of section 30 of the 1992 Act. On 12 November 1998 his appeal on points of law was dismissed. Upholding the decision of 26 August 1998, the court stated that the liquidator should not have enforced a decision by the creditors’ body that was in breach of the law.
21. It appears that the enforcement of the decision of 26 August 1998 (upheld at last instance on 12 November 1998) and, in particular, the redressing of the applicant’s financial situation, were not possible on account of the bank’s lack of assets.
22. In view of the failure to enforce the decision of 26 August 1998, on 2 September 1998 the applicant filed a complaint with the Commercial Court (supplemented by him on 27 January 1999). He requested that the liquidator in person repay him the remainder of his 1995 award of RUB 17,983, with interest, plus compensation for non-pecuniary damage and loss of time, representing a total of RUB 22,844.
23. By a ruling of 4 February 1999 the Commercial Court rejected the applicant’s request. The complaints in question were examined in the context of the insolvency procedure opened against the bank; within the same procedure the court examined the bank’s balance sheet, as submitted by the liquidator. A representative of the Central Bank of Russia was present at the hearing. The Commercial Court found that on 20 February 1995 and 5 April 1996 the Oktyabrskiy District Court had already awarded the applicant the sum of RUB 17,983 to cover his deposit, plus penalties and damages, and that it was not possible to rule on the same request for a second time. The Commercial Court further established that the applicant appeared in the list of creditors as number 519 and that, in respect of the actual capital originally deposited, the bank owed him a residual amount of RUB 8,813. The court pointed out that this sum could be paid to him under the conditions laid down in Article 64 of the Civil Code. The court also rejected the claims for loss of time, as the relevant legislation did not provide for such compensation. Furthermore, the applicant [had] “failed to prove that the losses were caused by the liquidator’s actions”.
24. On 31 March 1999 the Commercial Court of the Krasnodar Region, hearing the case on appeal, upheld the decision of 4 February 1999. The court of appeal held, firstly, that the applicant’s claims against the liquidator were “stand-alone claims, examined by the court of first instance and ... rightly rejected”. The court of appeal’s reasoning read as follows:
“The law in force does not envisage satisfaction of claims which did not arise during the period of the bank’s operations but only during the period of the insolvency procedure ... On a bank’s insolvency, its debt obligations are declared due, but the insolvency procedure is initiated with a view to amassing liquidation assets which must be allocated among the debts owed to creditors and arising prior to the insolvency.
Furthermore, [the applicant’s] right to recover [the original court award] from the bank already exists; therefore, satisfaction of his claims [against the liquidator] would lead to repeated recovery of the same amount, but this time in the form of damages, which is unfounded.
[In the original court award the applicant] was also awarded a sum for non-pecuniary damage, and in light of the above such damages cannot be awarded for a further period.
The existing provisions of civil legislation make no provision for compensation for loss of time.
The court of appeal also takes into account the fact that the failure to pay the amounts [due to the applicant] is a result of the absence [of funds], since, following the court of appeal’s judgment of 26 August 1998 ... the assets of the bank in liquidation did not increase ..., as is evident from the report provided by the liquidator on the work of the liquidation committee and the documents appended to the report”.
25. The applicant lodged a cassation appeal against that judgment. On 9 June 1999 the Federal Commercial Court for the North Caucasus dismissed the applicant’s appeal on points of law on the following grounds:
“The decision of the creditors’ body and the liquidator’s action ... admittedly breached the principle of proportional payment to creditors at the same level of priority, but did not cause [the applicant] the damage he alleged, because the 100% satisfaction of all first-level creditors was not possible on account of the lack of assets available for distribution. The sum repaid to [the applicant] was thus calculated in proportion to the amount of his claim and to the assets realised in the course of the liquidation. Taking into account the fact that the insolvency procedure was ongoing when the dispute was examined, the courts of first and appellate instance rightly referred to the possibility of [the applicant’s] receiving the outstanding debt owed to him under Article 64 of the Civil Code of the Russian Federation.
The claims for non-pecuniary damage and compensation for loss of time were rightly refused by the court as unjustified on the grounds set out in the earlier judicial decisions.
In view of the above [the court of cassation] finds that the refusals by the courts of first and appellate instance to grant [the applicant’s] claims were justified. There are no grounds for overruling or modifying the judicial decisions taken.”
26. On 17 June 1999 the Regional Commercial Court confirmed the statement of affairs as presented by the liquidator and approved by the creditors’ body, and closed the insolvency procedure on grounds of insufficient assets. The applicant did not attempt to bring any new claims against the liquidator.
27. After the Government had been given notice of the application, the President of the Supreme Commercial Court of the Russian Federation lodged, on 31 January 2001, an application for supervisory review (protest) against the judgments of 4 February, 31 March and 9 June 1999, on the ground that they had been given in breach of Article 22 of the Code of Commercial Procedure, which determined the jurisdiction of the commercial courts. Among other things, he stated that examination of the applicant’s complaints against the liquidator within the context of the insolvency procedure opened against the bank had been contrary to the 1992 Act governing such procedures. Since those complaints had concerned a dispute between the applicant and the liquidator, they were not related to the insolvency procedure as such and the applicant should have submitted them to the courts of general jurisdiction. On those grounds the President sought the annulment of the decisions at issue and discontinuance of the proceedings concerning the above-mentioned complaints.
28. On 17 April 2001 the Presidium of the Supreme Commercial Court of the Russian Federation granted those requests in full, endorsing the arguments raised in the application for supervisory review. The Presidium concluded that the commercial courts had not had jurisdiction to hear the case against the liquidator in person, annulled the decision rendered in 1999 and closed the proceedings.
29. On 1 June 2001 the applicant submitted a request for supervisory review of the 17 April 2001 decision to the same Presidium. On 4 July 2001 his request was dismissed as ill-founded by the Vice-President of the Supreme Commercial Court.
30. The Draft Articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission (ILC) in 2001 (Yearbook of the International Law Commission, 2001, vol. II, Part Two), and their commentary, codified principles developed in modern international law in respect of the State’s responsibility for internationally wrongful acts. In that commentary the ILC stated, inter alia, as follows (see paragraph (6) of the commentary to Chapter II):
“In determining what constitutes an organ of a State for the purposes of responsibility, the internal law and practice of each State are of prime importance. The structure of the State and the functions of its organs are not, in general, governed by international law. It is a matter for each State to decide how its administration is to be structured and which functions are to be assumed by government. But while the State remains free to determine its internal structure and functions through its own law and practice, international law has a distinct role. For example, the conduct of certain institutions performing public functions and exercising public powers (e.g. the police) is attributed to the State even if those institutions are regarded in internal law as autonomous and independent of the executive government.”
31. The ILC, in its commentary, described the phenomenon of “parastatal entities”. It noted as follows (see paragraph (3) to the commentary to Article 5):
“The fact that an entity can be classified as public or private according to the criteria of a given legal system, the existence of a greater or lesser State participation in its capital, or, more generally, in the ownership of its assets, the fact that it is not subject to executive control – these are not decisive criteria for the purpose of attribution of the entity’s conduct to the State. Instead, article 5 [of the Articles] refers to the true common feature, namely that these entities are empowered, if only to a limited extent or in a specific context, to exercise specified elements of governmental authority.”
32. As the ILC also recognised:
“Beyond a certain limit, what is regarded as ‘governmental’ depends on the particular society, its history and traditions. Of particular importance will be not just the content of the powers, but the way they are conferred on an entity, the purposes for which they are to be exercised and the extent to which the entity is accountable to government for their exercise” (see paragraph (6) of the commentary to Article 5).
33. Under Article 63 of the Civil Code, after expiry of the period within which creditors must file their claims, the liquidation committee draws up a provisional statement of affairs containing information on the bankrupt company’s estate, the claims filed by the creditors and the results of the examination of those claims. The statement must be approved by the body that has taken the decision to wind up the company. If the company’s monetary assets are insufficient to satisfy the creditors’ claims, the liquidation committee will sell off the estate by auction. The distribution of assets to the creditors may begin in accordance with the interim statement once it has been approved, except in respect of fifth-level creditors who will be unable to receive any money owed to them for one month following that approval. Once all the payments have been made, the final statement of affairs is drawn up and approved in the same manner. Should the assets prove insufficient, unsatisfied creditors may request the courts to order the owner of the company to honour their claims out of his own personal funds.
34. Article 64 of the Civil Code, as in force prior to 20 February 1996, made a distinction between five categories of creditors, providing that payment could be made to a given class only when the creditors at the previous level had been satisfied. According to this classification the applicant belonged to the fifth class of “other creditors”. Article 64 made no mention of a category of creditors who were pensioners, war veterans, persons in need or persons assisting the liquidator in the insolvency proceedings.
35. Under a new provision, inserted into this Article on 20 February 1996, when a bank or other lending institution is wound up, private persons having made deposits with it are to be repaid as a first priority.
36. Article 64 further provides that where a company in liquidation has insufficient assets, they must be distributed among creditors at the same level in proportion to their respective claims.
37. Under section 3(1) and (2) of the 1992 Act, insolvency cases fall within the jurisdiction of the commercial courts, which examine them in accordance with the rules laid down in the Act or, where no such rule exists, in accordance with the Code of Commercial Procedure of the Russian Federation.
38. Under section 15 of the Act, insolvency procedures are opened in order to satisfy the creditors’ claims on a pari passu basis, to declare the bankrupt company released from his obligations and to protect the parties from unlawful actions against each other.
39. Section 18(2) provides that, after a company has been declared insolvent and an insolvency procedure has been opened against it, any claims against the company’s assets may be submitted only in the context of such procedure.
40. Section 20 lists the various participants in insolvency proceedings as the liquidator, the general meeting of creditors, the creditors’ committee, the creditors, etc. The general meeting of creditors may form a creditor’s committee and define its functions (Section 23 (2)). The Court will use the term “the creditors’ body” as referring to either of these bodies, as the case may be.
41. The creditors’ body nominates a candidate to act as the liquidator before the commercial court for approval (Section 23(2) of the Act) which then appoints the liquidator (Section 19). Under section 21(1) the liquidator takes over the administration of the insolvent company, convenes a general meeting of creditors, takes control of the insolvent company’s property, analyses the financial situation, examines the merits of the creditors’ claims, accepts or rejects them, oversees the liquidation process to realise the assets, sets up and heads the liquidation committee.
42. In accordance with section 21(2), taken together with section 12(4), candidates for the office of liquidator must be economists or lawyers, or have experience of company management. They must not have a criminal record. No one holding a position of responsibility in a company that is a debtor or creditor may be appointed. Candidates for the office of liquidator must declare their income and assets.
43. In the situations referred to under the Act, the commercial court examines the lawfulness of all actions by the participants involved in the insolvency procedure (Section 19). Under section 21(3) the liquidator may challenge before the court any decisions of the creditor’s body when those decisions fall outside its remit.
44. Under section 27(1), after the expiry of a two-month period within which the creditors must submit their claims against the insolvent company, the liquidator will draw up a list of the claims that have been accepted and rejected, indicating the amounts for those that have been accepted and the level of priority for each. The list must be sent to the creditors within a period of two months.
45. Section 30 establishes the various levels of priority for the distribution of the proceeds of the liquidation. Payment of the sums due to creditors at a given level is made once those at the previous level have been satisfied (paragraph 3). If insufficient assets are realised to pay in full the creditors at a given level, the money that is available will be paid to them pari passu in proportion to the amounts of their respective claims (paragraph 4). Section 30 makes no mention of a category of creditors who are disabled, war veterans, persons in need, or persons assisting the liquidator. Paragraph 1 provides that any expenses arising from the liquidation, the liquidator’s fees and the expenses of the debtor company’s ongoing operations must take priority over the claims of first-level creditors.
46. Section 31 provides that a creditor may challenge before the commercial courts any decision of the liquidator which, in his view, breaches his rights and legitimate interests.
47. Under section 35(3), any claims that cannot be satisfied because the proceeds of the liquidation are insufficient will be regarded as extinguished.
48. Section 38 provides that the bankrupt company will be regarded as wound up from the time of its exclusion from the corresponding national register, pursuant to the decision of the commercial court closing the insolvency procedure.
49. On 8 January 1998 a new Insolvency Act was adopted (“the 1998 Act”). It replaced the 1992 Act and was applicable to insolvency procedures opened after 1 March 1998. Section 21(3) of the 1998 Act provided that creditors were entitled to seek compensation from the liquidator in respect of any damage that the latter might have caused to them by an action or omission in breach of the law. Section 114 provided for the same principles of distribution and pari passu repayment as section 30 of the 1992 Act.
50. In accordance with section 98(1), sub-paragraph 7, of this Act, claims against the bankrupt company may be submitted only in the context of the insolvency procedure (see also section 18(2) of the 1992 Act).
51. On 26 October 2002 the new Insolvency Act was adopted. It replaced the 1998 Act, and, in the following years, the 2002 Act underwent a number of changes. Section 20-4 (4) of the 2002 Act establishes liability of the liquidator for damage caused to the creditors by his failure to comply with his duties, if that failure was established by a final court decision. The 2002 Act provides that a liquidator should be covered by a professional liability insurance to cover his liability to the creditors (Section 20 of the Act). Sections 32 and 33 stipulate that bankruptcy cases are within the jurisdiction of the commercial court, irrespectively of the status of the creditors. Section 20 (12) stipulates that “disputes related to the professional activities of the [liquidators] ... are within the competence of commercial courts”. Pursuant to Section 60 of the Act creditors of a bankrupt company are entitled to complain to a commercial court about the liquidator’s acts or omissions within the bankruptcy proceedings.
52. Since the 1990s the Russian judicial system has been comprised of three elements – courts of general jurisdiction, commercial courts and constitutional courts. Under Article 25 § 1 of the Code of Civil Procedure of 1964 (in force at the material time), courts of general jurisdiction were competent to hear civil cases in which at least one party was a natural person (as distinct from a legal person, such as a company).
53. The Code of Commercial Procedure of 1995 (No. 70-FZ of 5 May 1995, in force at the material time) stated that the commercial courts could determine “economic disputes arising from civil, administrative and other legal relationships ... between legal persons ... and individual entrepreneurs...” (Article 22 § 1 of the Code). Article 22 § 3 stipulated that commercial courts were competent to hear other cases, namely “insolvency (bankruptcy) cases concerning legal entities and natural persons”. Article 22 § 4 stipulated that commercial courts were competent to hear cases involving natural persons (not having individual entrepreneur status) where this was provided for by the Code itself or by another federal law.
54. Article 31 of the Code of Commercial Procedure stipulated:
“... A creditor who considers that his rights and legitimate interests are breached by a decision of the liquidator can bring an application (zayavlenie) before the commercial court. Following the examination of such an application the commercial court should take an appropriate decision.”
55. Article 143 of the Code provided that insolvency cases were to be examined by commercial courts in accordance with the Code and with the specific provisions of the insolvency legislation.
56. Section 3 of the 1992 Insolvency Act stipulated that commercial courts had jurisdiction to hear insolvency cases.
57. The 1998 Insolvency Act contained similar provisions. Sections 5 and 29 of that Act provided that insolvency cases where the debtor was a company (as opposed to a natural person) fell under the jurisdiction of the commercial courts. Section 55 of the 1998 Act provided that the commercial courts were competent to hear creditors’ applications concerning a breach of their rights or legitimate interests by the liquidator.
58. Sections 5, 34 and 50 of the 1999 Banks Insolvency Act provided for the jurisdiction of commercial courts in the insolvency procedures concerning banks and also contained references to the Code of Commercial Procedure.
59. A judgment of 12 March 2001 by the Constitutional Court concerned, inter alia, questions of access to a court in insolvency procedures. Paragraph 4, concerning the constitutionality of section 18(2) of the 1992 Act (section 98(1) in conjunction with sections 15(4) and 55(1) of the 1998 Act), reads:
“... when examining the claims of creditors who are natural persons ..., the commercial courts do not have jurisdiction to issue binding directions of a pecuniary nature to the liquidator, acknowledging the existence of a claim or right in favour of creditors ... This limitation ... must not be interpreted as preventing the courts of general jurisdiction from examining on the merits the pecuniary claims ... of those creditors ..., in accordance with the legislation on insolvency.
Nor do the provisions at issue contain any clause that would prevent commercial courts from giving decisions that enable the persons concerned to secure in full their right to judicial protection in the context of insolvency procedures, especially as other provisions of the Federal Law on insolvency (bankruptcy) precisely provide for the settlement of disputes through the courts (sections 41, 44, 57, 107, 108 et seq.).
The refusal by a commercial court to examine a complaint on the grounds that it does not have jurisdiction ... does not prevent the creditor from applying to the courts of general jurisdiction in order to secure protection of his rights ... The right to judicial protection, as enshrined in the Constitution, must be upheld even in the absence of legislative norms establishing a division of jurisdiction between the commercial courts and the courts of general jurisdiction.
It follows from this interpretation that [the provisions at issue] do not prevent the courts of general jurisdiction from examining claims filed by non-corporate creditors against the liquidator and seeking ... compensation for damage, nor do they prevent the commercial courts from securing the enforcement, in accordance with the above-mentioned Federal Law, of the decisions taken by the courts of general jurisdiction ...”
NON_VIOLATED_ARTICLES: P1
NON_VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1