ITEMID: 001-77661
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MARTIN v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The facts of the case, as submitted by the parties, may be summarised as follows.
10. The applicant was born in 1976 and, at the time of the introduction of his application, was serving a sentence of life imprisonment in England.
11. In February 1994 the applicant was living with his family in Germany, where his father was an Army Corporal serving in the Support Unit of the Rhine Garrison. On 8 February 1994 the applicant was charged with the murder of a young civilian woman who had been working in the Support Unit and whose body had been found in woods near to the army base.
12. As a family member residing with a member of the Armed Forces, the applicant was subject to military law (see paragraph 25 below). The German authorities waived jurisdiction pursuant to the NATO Status of Forces Agreement 1951 (see paragraph 21 below).
13. On 8 February 1994 the Commander of the Support Unit was appointed to act as the applicant’s Commanding Officer. The latter decided to refer the case to the Higher Authority with a view to the applicant being tried by general court-martial. The Higher Authority submitted the case for trial by general court-martial, and the court-martial was convened by the Commanding Officer (henceforth, “the Convening Officer”). The applicant obtained military legal aid on 10 February 1994.
14. In the meantime, the applicant’s father was posted to England and returned there on 24 March 1994. Despite his father’s return, the applicant remained subject to military law as the proceedings had already commenced (see paragraph 26 below). The applicant returned to England in April 1994 where he was detained. His father was discharged from the army in November 1994.
15. The applicant was returned to Germany in time for his court-martial which commenced on 21 April 1995. The court-martial board was composed of a President, who was not a permanent president, and six ordinary members. Four of the members were senior officers, all of whom were subordinate in rank to the Convening Officer and the President and one of whom was within the Convening Officer’s chain of command. Two members were civilian civil servants, who came from the United Kingdom solely for the purpose of the trial, and were placed under the Convening Officer’s command while in Germany, although they were not in his reporting chain.
16. The applicant’s representative submitted, inter alia, that the trial of a young civilian by court-martial was inherently unfair and oppressive and thus an abuse of process. The atmosphere in a military court would be very different from that of a civilian court and the applicant would not do himself justice. In particular, it was unfair and oppressive that he should be returned to stand trial in Germany after he had spent many months in detention in England and after his father had ceased to be subject to military law. Lastly, if tried by jury, a majority of 10 to 2 votes would be necessary to convict him, whereas a simple majority vote would suffice in a trial by court-martial.
17. These submissions were considered by the Vice-Judge Advocate General and were rejected, as was an application for an adjournment to allow proceedings for judicial review to commence. The trial ended with the applicant’s conviction on 3 May 1995. In accordance with the provisions of the Army Act 1995, the verdict of the court-martial was confirmed by a Confirming Officer (see paragraph 28 below).
18. The applicant appealed to the Courts-Martial Appeal Court, which had the power to quash the conviction if it considered it unsafe. The Lord Chief Justice, Lord Bingham of Cornhill, giving judgment on 30 July 1996, held, dismissing the appeal:
“... We have some considerable sympathy with the appellant’s complaint. With the benefit of hindsight, it seems plain that the trial could have been conducted in England without undue difficulty. It would in our view have been preferable if this young appellant, whose subjection to military law was purely vicarious and involuntary, had been tried here with all the procedural safeguards which procedure in the ordinary criminal courts affords. We cannot, however, stigmatise these proceedings as abusive. They were strictly in accordance with a procedure prescribed by Parliament to apply in such cases. There was not, as is accepted, any attempt to over reach or oppress or prejudice the appellant. He had all the safeguards which a defendant in any court-martial is entitled to enjoy. Steps were taken to ensure that all members of the tribunal save one were not under the command of the convening officer, and also to ensure that the convening officer and the confirming officer were not the same person. Had the appellant been held in Germany to await trial, as he could have been, his claim to trial in England would have appeared weaker. Whether or not it proved necessary in the event to adduce the oral evidence of German factual witnesses, the greater availability of such witnesses as a trial in Germany was a legitimate reason for favouring trial there.
We are satisfied that these proceedings were not an abuse of process.”
19. The appeal court certified a question of law for the House of Lords as to whether proceedings conducted in accordance with the 1955 Act could be considered abusive. On 9 July 1997 the House of Lords granted leave to appeal. Having heard the applicant’s legal representatives, on 16 December 1997 the House of Lords unanimously dismissed the appeal. Lords Slynn of Hadley and Hope of Craighead expressed the view that at first sight the decision to prosecute the applicant—a civilian aged only 17 at the time of the murder—by court-martial had been inappropriate. However, as Lord Hope explained:
“It is not difficult to understand the utility of [section 209 of the Army Act 1955: see paragraph 24 below], in view of the greatly increased opportunities which were by then available for families and other civilian personnel to accompany the forces when serving overseas. Had the law not been changed in this respect, civilians and followers would have had to have been brought to trial in the local civil courts in the language and according to the procedures in use in those courts and, if sentenced to imprisonment, to serve the sentence in a local prison. ...
Fundamental to the appellant’s argument in the present case is the proposition that the purpose of [the extension of jurisdiction in section 9 of the 1861 Act: see paragraph 29 below] was to extend to murders committed abroad the right of every person in this country who is accused of murder to have his or her guilt declared by means of a jury trial. ... It seems to me that another, and more likely, explanation is that the legislation was enacted to ensure that the grave offences with which it deals should not go unpunished when committed abroad by a British citizen. ...
In view of what I have said above I do not believe that the proceedings by way of court-martial in this case can be said in themselves to have been an abuse of process. ... The question to which I now turn is whether there is any basis in the information which is available to us for describing any of the decisions taken by those in authority at the various stages in this case as so unfair and wrong as to show that the conviction in this case was unsafe. ...”
20. Lord Hope went on to examine the factors which would have had to have been taken into account when considering whether to prosecute the applicant by court-martial in Germany or by jury trial in England:
“The timing of any consideration of the matter by the Director of Public Prosecutions would, in my view, have been of critical importance to a decision as to whether there was any unfairness in this case which might be said to render the conviction unsafe. It cannot be assumed that the Director would have been willing to take proceedings in England without knowing more about the factors which he would have wished to take into account. One obvious factor, I would have thought, was the availability of witnesses. In his letter of 14 June 1994 to the Attorney General the Director of Army Legal Services had stated that many of the witnesses were German and that they could not be forced to attend a trial in England. Further details were provided at the request of the Attorney General in a letter by the Director of Army Legal Services dated 25 November 1994. In this letter it is stated that there were 13 German witnesses who could be divided into three categories—those who saw the appellant in the woods near the scene of the murder, those concerned with the finding of the body and police and forensic experts. The defence had not yet indicated what evidence would be agreed. The Director thought that, while some of their evidence might be agreed, it was unlikely that this would include the police and forensic experts. He believed that they were the witnesses who would be most unlikely to cause difficulties if asked to travel to England to give evidence. He added that one of the forensic scientists who was responsible for examining secretions and bloodstains—a matter which was of crucial importance in this case as there were no eyewitnesses—was being difficult to deal with and would only attend meetings if they were arranged through the German public prosecutor in the nearest large town. He explained that these witnesses were German because the police investigation was commenced by the German civil police as it was initially assumed that a German civilian had committed the crime. ...
I have not forgotten that Lord Bingham of Cornhill CJ [see paragraph 18 above] said in his judgment that it was clear, with the benefit of hindsight, that the trial could have been conducted in England without due difficulty. But the Director of Public Prosecutions would have had to have taken his decision well before the trial, in view of the arrangements which would have had to have been made for the appellant to be transferred into the hands of the civil authorities in England and for the attendance of the witnesses. In the event, as the respondent has recorded in his written case, no agreement was reached, despite several written requests and reminders, about any of the evidence until the commencement of the trial when the evidence of the witnesses was agreed piecemeal during the opening days. This account of what happened strongly suggests that at the stage when the Director of Public Prosecutions would have had to have taken his decision he would have had to assume that the important evidence of the German witnesses would not be agreed before the trial and that the attendance of the German witnesses would be necessary. ...
Conclusion
... The proceedings were conducted within the rules laid down by Parliament. There is no sound basis for thinking that, at the time when a decision about this would have had to have been taken, a prosecution in the English courts within a reasonable time would have been seen to be practicable. The alternatives lay between taking proceedings by way of court-martial in Germany, leaving the matter in the hands of the German public prosecutor or taking no proceedings at all. ...”
21. The 1951 agreement, as supplemented by the Supplementary Agreement of 1959 (subsequently amended in 1971, 1981 and 1993) provides in Article VII(1):
“1. Subject to the provisions of this Article,
the military authorities of the sending State shall have the right to exercise within the receiving State all criminal and disciplinary jurisdiction conferred on them by the law of the sending State over all persons subject to the military law of that State;
the authorities of the receiving State shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving State and punishable by the law of that State.
22. Article VII(3)(a) provides:
“3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:
(a) The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or a civilian component in relation to
(i) offences solely against property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that state or of a dependent;
(ii) offences arising out of an act or omission done in the performance of official duty.”
23. Section 70 of the 1955 Act provides:
“(1) Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against this section. ...
A person shall not be charged with an offence against this section committed in the United Kingdom if the corresponding civil offence is ... murder.”
24. Section 209(2) of the Act states:
“Subject to the modifications hereinafter specified, Part II of this Act shall at all times apply to a person of any description specified in the Fifth Schedule to this Act who is within the limits of the command of any officer commanding a body of the regular forces outside the United Kingdom, and is not subject to military law ... apart from this section ... as the said Part II applies to persons subject to military law ...”
25. The Act identifies in its Fifth Schedule the civilians outside the United Kingdom who are subject to Part II of the Act when not on active service. They include, at paragraph 5:
“Persons forming part of the family of members of any of Her Majesty’s Naval, Military, or Air Forces and residing with them or about to reside or departing after residing with them.”
26. The trial of those who have ceased to be subject to military law is expressly provided for by section 131 of the Act:
“Subject to the provisions of the next following section, where an offence under this Act triable by Court-Martial has been committed ... by any person while subject to military law, then in relation to that offence he shall be treated, for the purposes of the provisions of the Act relating to ... trial and punishment by Court-Martial ... as continuing subject to military law and notwithstanding his ceasing at any time to be subject thereto.”
27. Since the Armed Forces Act 1976, where a civilian defendant is to be tried, civilian Crown servants can be detailed as members of the court-martial. In practice, most criminal offences allegedly committed by a civilian dependent would be tried by a Standing Civilian Court (similar to a Magistrates’ Court), with trial by court-martial reserved for the most serious offences.
28. The law and procedures which applied generally to the applicant’s court-martial were contained in the Army Act 1955, the Rules of Procedure (Army) 1972 and the Queen’s Regulations 1975 (for which, see Findlay v. the United Kingdom, judgment of 25 October 1997, Reports of Judgments and Decisions 1997-I, §§ 32-51). From 1 April 1997 (after the conclusion of the applicant’s court-martial) the Armed Forces Act 1996 came into force which modified certain provisions of the Army Act 1955 (see, generally, Cooper v. the United Kingdom [GC], no. 48843/99, § 104, ECHR 3003-XII; Grieves v. the United Kingdom [GC], no. 57067/00, § 69, ECHR 2003-XII).
29. The basic rule of the common law is that the jurisdiction of the criminal courts in the United Kingdom is confined to crimes committed within the territory of each court. An exception is provided by section 9 of the 1861 Act, which gives jurisdiction to British courts in respect of alleged murders and manslaughters committed by British citizens anywhere in the world.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97435
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF PUZAN v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-4;No violation of Art. 34;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1980 and is currently detained in Simferopol pre-trial detention centre (the “Simferopol SIZO”) awaiting his extradition to Belarus.
5. The applicant has already been convicted twice in Belarus for drug-related offences. The second time, in 2004, he was sentenced to four years' and three months' imprisonment. After having served part of his sentence, he was granted early release.
6. On 1 April 2006 the Sovetskyy District Police Department of Minsk instituted criminal proceedings against the applicant on suspicion that he had illegally purchased a psychotropic substance (Section 328 § 1 of the Belarus Criminal Code).
7. On 12 June 2006 the Belarus authorities issued an international arrest warrant for the applicant.
8. On 29 September 2008 the Head of the Sovetskyy District Police Department of Minsk sent a request to the Crimea Police Department for the applicant to be arrested and detained pending extradition to Belarus.
9. On the same day the applicant was arrested by officers of the Zheleznodorozhnyy District Police Department of Simferopol.
10. On 30 September 2008 the Zheleznodorozhnyy District Court of Simferopol (the “District Court”) ordered the applicant's detention for forty days pending his extradition to Belarus.
11. On 17 October 2008 the Deputy General Prosecutor of Belarus requested the General Prosecutor's Office of Ukraine to extradite the applicant to Belarus. The request contained the following assurances: that the applicant would not be prosecuted for a crime committed prior to extradition without the consent of the General Prosecutor's Office of Ukraine; that he would not be removed to a third country without the consent of the General Prosecutor's Office of Ukraine; that he would not be subjected to torture, inhuman or degrading treatment or punishment; that after the termination of the criminal proceedings or after serving his sentence, if one was imposed, the applicant would be free to leave Belarus; and that the applicant would not be prosecuted for political, racial, religious or ethnic reasons.
12. On 26 October 2008, during a meeting with his lawyer, the applicant signed a power of attorney for the purpose of bringing his case to the Court.
13. On 28 October 2008 the applicant was questioned by the assistant prosecutor of the Zheleznodorozhnyy Prosecutor's Office as to whether he or his lawyers had made any claims or complaints to the State authorities or institutions alleging violation of his rights and freedoms. The applicant replied that his lawyer had told him to ask for an authority form and explained that he would be further defended by the Kharkiv group of lawyers, which intended to lodge a complaint with the “European Commission on Human Rights”. He said that he had signed no other documents and made no complaints or petitions to any other institutions. If his lawyers had done so, he would learn about it later. The minutes of this interview also mentioned that the applicant was informed of his right to remain silent under Article 63 of the Constitution.
14. On the same date, 28 October 2008, the President of the Chamber indicated to the Ukrainian Government, under Rule 39 of the Rules of Court, that they should not extradite the applicant to Belarus.
15. On 7 November 2008 the General Prosecutor's Office of Ukraine informed the Government's Agent that no decision on the applicant's extradition would be taken prior to the examination of his case by the Court.
16. The same day the District Court ordered the applicant to be detained pending his extradition to Belarus, without indicating any time-limit for such detention.
17. On 20 November the Crimea Court of Appeal upheld the decision of 7 November 2008, stating that the applicant had been lawfully detained pending his extradition.
18. On 26 December 2008 the District Court rejected the applicant's lawyer's request to change the preventive measure in respect of his client. The applicant appealed against this decision. By letter of 16 January 2009, the Deputy President of the Crimea Court of Appeal replied to the applicant that the appellate court had previously examined his appeal concerning lawfulness of detention and would not examine the same issue again. The applicant is still in detention.
19. The relevant international and domestic law and practice are summarised in the judgment in the case of Soldatenko v. Ukraine, no. 2440/07, §§ 21-31, 23 October 2008.
20. The Country Reports on Human Rights Practices of the US Department of State (hereafter “the Reports”) for 2007, released on 11 March 2008, noted with respect to Belarus:
“c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits such practices; however, the Belarusian Committee for State Security (BKGB), the Special Purpose Detachment riot police (OMON), and other special forces on occasion beat detainees and demonstrators.
Police also occasionally beat individuals during arrests and in detention for organizing or participating in demonstrations or other opposition activities. On January 12, police severely beat opposition youth activist Ales Kalita as he was arranging legal representation for a fellow youth activist, who had refused to act as a BKGB informant. Two days later, police kicked and hospitalized opposition activist Anastasiya Shashkova, a minor, after detaining her for participating in a protest against the country's fraudulent January 14 local elections.
On March 23, Mogilyov police incarcerated activist Kristina Shatikova in a local psychiatric hospital as she was coordinating preparations for a major Freedom Day opposition demonstration. During her three-day detention, Shatikova reported that she was drugged and interrogated about her connections to political prisoners Dmitriy Dashkevich and Artur Finkevich.
On August 16, police officers beat 18-year-old Tatyana Tyshkevich as she and other opposition youth activists gathered in Minsk to show solidarity with the jailed political prisoners. She was treated at a local hospital for head and stomach injuries. According to credible sources, a policeman visited Tyshkevich at the hospital and pressured her not to file a complaint against police.
On December 12, after violently dispersing a peaceful opposition demonstration on Minsk's October Square, police severely beat opposition youth leader Dmitriy Fedaruk and abandoned him unconscious on a sidewalk. Fedaruk was hospitalized for eight days and treated for serious head trauma.
Credible sources and eyewitnesses reported that, during demonstrations following the March 2006 presidential elections, OMON riot police and other special forces, such as the antiterrorist unit ALMAZ, beat demonstrators in custody and threatened others with death or rape.
In March 2006 special forces and OMON riot police used truncheons and tear gas to break up a peaceful march to Okrestina prison to protest the detention of 250 demonstrators. Ministry of Interior Colonel Dmitriy Pavlichenko, who was implicated in the 1999 disappearances and presumed deaths of opposition activists, personally beat opposition presidential candidate Aleksandr Kozulin before he was tied up and transported by ALMAZ forces to a pretrial detention center. Kozulin suffered head and spine injuries from the beatings by Pavlichenko and ALMAZ officers. Neither Pavlichenko, ALMAZ officers, nor other special forces were punished for their actions. In July 2006 Kozulin was sentenced to five and one- half years in prison on politically motivated charges of alleged hooliganism and disturbing the public peace. He remained in prison at year's end.
Hazing of new army recruits by beatings and other forms of physical and psychological abuse continued, according to official sources; however, the number of reported cases declined.
Other parts of this report contain information related to this subsection; see subsections 1.d, 1.e, 2 and 2.b and section 3.
Prison and Detention Center Conditions
Prison conditions remained austere and were marked by occasional shortages of food and medicine and the spread of diseases such as tuberculosis and HIV/AIDS. In March Leila Zerrougui, chairperson of a UN working group on arbitrary detention, reported that conditions in detention centers were worse than those in prisons because of poor sanitary and living conditions and restrictions on visitation, phone, and mail privileges. According to domestic human rights monitors, prison conditions have somewhat improved over the past 10 years. However, these groups reported that prisoners did not receive adequate food or warm clothing and were often denied a bed, sheets, change of clothes, and restroom privileges. As a result, tuberculosis, pneumonia and other diseases remained widespread. Former prisoners reported that medical check-ups were rare and conducted by under-qualified medical personnel and that examination results were often fabricated. Dental services were even less available.
The law permits family and friends to bring detainees food and hygiene products, but in many cases authorities did not respect this law.
Overcrowding in prisons, detention centers, and in work release prisons, also known as "khimya," was a serious problem. Persons sentenced to khimya, which is a form of internal exile, live in prison barracks and are forced to work under conditions set by the government. According to the government, the total number of confined persons in the country was more than 38,000, which included 30,000 inmates in prisons and nearly 8,000 convicts in open-type correctional facilities. In addition an estimated 7,000 persons were awaiting trials in detention centers.
Some former political prisoners reported that they were treated worse than murderers, subjected to psychological abuse and often had to share a cell with violent criminals. They also reported that their legal rights were neither explained nor protected. Prisoners who complained about abuse of their rights often were threatened with death, humiliation, or other forms of punishment.
Credible reports indicated that police and prison officials continued to mistreat, torture, and blackmail prisoners. Numerous credible sources claimed that applications for parole frequently depended on bribing prison personnel. While standard bribes were generally between $200 to $300 (430,000 to 646,000 Belarusian rubles) high-profile prisoners were often asked to pay larger sums. For example, on June 5, the independent Belarusian Committee for Protection of Prisoner's Rights, Nad Baryerom, reported that a parole board denied Dmitriy Korolyov, a former intelligence officer, early release in March after Korolyov refused to pay $2,000 (4.3 million Belarusian rubles) to a fellow inmate who claimed to be demanding the bribe on behalf of prison officials.
Authorities frequently kept persons arrested for political activities in the Okrestina jail or the Volodarskogo detention center in Minsk. Many former detainees described food and medical conditions in Volodarskogo as inadequate but better than those in Okrestina, where demonstrators were usually held for short-term, pretrial detention.
There were reports that Aleksandr Kozulin's health seriously deteriorated in prison. Although his living conditions were said to be decent, associates claimed that he did not receive adequate medical attention after he was severely beaten by police during his March 2006 arrest and following a 53-day hunger strike to protest his jailing and the fraudulent results of the presidential election. Authorities denied Kozulin's wife and attorney visitation rights during the hunger strike.
During the year there were no reported instances of the government permitting independent monitoring of prison conditions by local or international human rights groups, independent media, or the International Committee of the Red Cross. However, the government granted some international experts access to the general prison population. In September an official German delegation visited inmates in three correctional facilities in and around Minsk. On occasion, authorities granted foreign diplomats access to political prisoners in the presence of officials; however, most requests to visit political prisoners were denied.”
21. The relevant parts of the report read as follows:
“IV. THE SITUATION OF THE BASIC FREEDOMS AND HUMAN RIGHTS
A. Civil and political rights; mechanisms of protection
10. Systematic violations of civil and political rights and the deprivation of Belarusian citizens' right to effectively take part in the conduct of public affairs continue to be observed. Human rights protection mechanisms remain extremely weak, and there is no national human rights institution. The judicial system is still subservient to the executive branch and there is no genuine independent legislative branch...
Administration of justice and law enforcement, the death penalty, disappearances and summary executions
13. Since his last report, the Special Rapporteur has remained concerned that Belarus is the last country in Europe to apply the death penalty. The situation in the country is still characterized by harsh conditions of pretrial detention, the practice of torture and other inhuman treatment, and excessive use of force by the police.
14. Furthermore, it is alleged that judges virtually never refer to the Constitution or international treaties when they hand down rulings and that the decisions of the Constitutional Court are often ignored. Trials are often held behind closed doors without adequate justification, and representatives of human rights organizations are denied access to courts to monitor hearings. Punishments are often totally disproportionate. The right to appeal is limited as the Supreme Court acts in many cases as the court of first instance, leaving no possibility for appeal. Before and after the presidential elections, over 150 people were reportedly summarily put on trial without access to a defence lawyer. Concerns were expressed regarding respect for their right to a fair trial.”
22. PACE Resolution No. 1671 reads insofar as relevant as follows:
“1. The situation in Belarus has been the focus of close attention by the Parliamentary Assembly since 1992, when the Belarusian parliament was granted Special Guest status. Belarus' lack of progress in the field of democracy, human rights and the rule of law, however, led to the suspension of this status in 1997, and to the freezing of Belarus' membership application to the Council of Europe the following year. The Assembly continues to look forward to the time when Belarus meets the conditions to be a member of the Council of Europe and its authorities undertake a firm commitment to live up to the standards of the Organisation and embrace its values.
2. In recent months, important developments have taken place in Belarus: between January and August 2008, nine opposition figures considered as political prisoners were released, including former presidential candidate Alexander Kozulin. As a result, since then, in Belarus, there have been no internationally-recognised political prisoners. The Assembly welcomes this tangible progress and calls for it to be made irreversible.
3. The Assembly also welcomes the registration of the opposition movement For Freedom!, as well as the possibility for three independent media outlets – Narodnaya Volya, Nashe Niva and Uzgorak – to be published in Belarus and their inclusion in the state distribution network. However, media freedom is far from being respected in Belarus, especially with regard to broadcasting.
4. It also considers as a positive development the setting up of a number of Consultative Councils, under the aegis of the Presidential administration and other state bodies, as fora where the authorities can engage in a constructive dialogue with representatives of non-governmental organisations and civil society. The Assembly hopes that the outcome of the discussions taking place in the Consultative Councils will lead to inform legislative and policy measures.
5. Concerning the disappearance of four political opponents in 1999/2000, the Assembly notes with satisfaction that none of the senior officials named in Resolution 1371 (2004) as being strongly suspected of involvement either in the disappearances themselves or in their cover-up still occupies a position of responsibility. But it strongly regrets that the investigations into these crimes have still not been allowed to progress any further, despite the elements provided in the Assembly's report.
6. What adds to the importance of these developments is that they respond to precise demands coming from European organisations, and that they have been undertaken in the context of the resumption of political dialogue with the Belarusian leadership.
7. In effect, following the release of all political prisoners in Belarus, in October 2008 the European Union took the decision to resume contacts with the Belarusian leadership at the highest level and to suspend, even if partially and temporarily, the visa-ban against a number of high-ranking Belarusian officials, including President Lukashenko. This suspension was extended for an additional nine months in April 2009. The willingness of the European Union to normalise relations with Belarus was epitomised by the visit of the European Union High Representative for Common Foreign and Security Policy, Mr Javier Solana, to Minsk and his meeting with President Lukashenko on 19 February 2009.
8. Belarus is also one of the six countries that will participate in the Eastern Partnership, a new instrument designed to strengthen political and economic co-operation between the European Union and its Eastern and Caucasian neighbours, with a view to enhancing their stability and supporting democratic and market-oriented reforms. The level of Belarus' participation will depend on the overall development of its relations with the European Union. In this context, Belarus attended the Eastern Partnership summit in Prague, on 7 May 2009. The European Union also intends to establish a Human Rights Dialogue with Belarus.
9. The Council of Europe, for its part, has recently intensified its contacts with the Belarusian authorities: following a visit by a delegation of the Assembly's Political Affairs Committee in February 2009, Minister Miguel Angel Moratinos conducted an official visit to Minsk, in March 2009, in his capacity as Chair of the Committee of Ministers. A few weeks earlier, the Belarusian authorities had finally given their consent to the opening of an infopoint on the Council of Europe in Minsk, an idea initiated by the Assembly itself and developed by the Slovak Chairmanship of the Committee of Ministers. The opening ceremony of the Infopoint took place in June 2009.
10. Furthermore, in December 2008, the Congress of Local and Regional Authorities of the Council of Europe decided to grant observer status to the Council for Co-operation of Local Self-Government Bodies of the Council of the Republic of the National Assembly of the Republic of Belarus.
11. Despite recent positive developments, however, and the resumption of contacts with European organisations, the situation in Belarus continues to be a cause for concern.
12. Firstly, the parliamentary elections of September 2008 were a missed opportunity for a decisive change towards democracy, as they failed to meet European standards of freedom and fairness. As highlighted by the OSCE/ODIHR, serious shortcomings affected all stages of the electoral process, from the availability of pluralist information for voters to the lack of transparency of the vote count. These shortcomings inevitably cast a doubt over the representativeness of the present Parliament, where no single opposition candidate managed to gain a seat. It is, however, to be welcomed that, following the final OSCE/ODIHR assessment, the Belarusian authorities agreed to work with the OSCE/ODIHR on the reform of the country's electoral legal framework and practice, in order to align them with Belarus' OSCE commitments.
13. As regards respect for political freedoms, harassment and intimidation of opposition activists, in particular youth, continue to take place through various means, such as unwarranted searches of private houses, unlawful requisition of equipment, police brutality during demonstrations and forced conscription into the military service despite previous declarations of being unfit for service. In addition, a number of political activists are under house arrests and the criminal record of those political prisoners who were released has not been erased, with the result that they face limitations in the exercise of some rights, including the right to run for elections.
14. The Assembly also takes note of the fact that, as of today, three entrepreneurs, who are currently in detention, as well as other persons who are subjected to limitations of personal liberty, are considered by the Belarusian opposition as political prisoners or, at least, as victims of an abuse of the criminal justice system for political reasons. The Assembly calls for an independent investigation to be conducted into these cases, in order to clarify whether they are political prisoners and, if so, to secure their release.
15. The situation regarding freedom of association also gives rise to concerns: even if the political opposition movement For Freedom! was finally registered in December 2008, other opposition and human rights organisations continue to face obstacles in obtaining registration by the Ministry of Justice, the latest example being the human rights organisation Nasha Viasna, and its members risk prosecution for membership in a non-registered organisation, under Article 193,1 of the Criminal Code.
16. The Assembly regrets that, despite the inclusion of three independent publications in the state distribution network, the other independent media outlets cannot benefit from this scheme and cannot even be printed in Belarus. Absolute governmental control over the printing and the distribution of the press as well as over broadcasting is a flagrant violation of media freedom. Similarly, the Assembly expresses concern at the difficulties encountered by foreign journalists in obtaining press accreditation and by foreign media, such as the satellite channel Belsat, in obtaining registration by the Ministry of Foreign Affairs. It takes note, however, of the numerous statements emanating from the Belarusian leadership on their willingness to ensure that the new media law is not implemented in such a way as to restrict freedom of expression. The Assembly wishes that the same could be said for the implementation of the Law on counteraction against Extremism, which has recently led to the suspension of the publication of the magazine Arche, later withdrawn following international pressure.
17. It also regrets that capital executions can still be carried out in Belarus, despite the reduction of the categories of crimes for which they can be inflicted, a decrease in the number of death sentences handed down in such cases and the fact that no executions have been carried out since October 2008 according to official statements. The Assembly recalls that, in the current Constitution, the death penalty is considered as a transitional measure and that no legal impediment prevents either the President or the Parliament from introducing a moratorium on executions. While no public statistics are available, the Assembly also takes note of the information provided by the authorities that currently there are no capital sentences whose execution is pending.
18. Considering that, although Belarus is far from Council of Europe standards in the field of democracy, the rule of law and human rights, its authorities have recently taken important steps in the right direction, the Assembly resolves to encourage the continuation of this process by engaging in a political dialogue with the authorities, while at the same time continuing to support the strengthening of democratic forces and civil society in the country...”
23. “Amnesty International Concerns in 2006” in respect of Belarus noted, in particular, disregard for political freedoms, including police violence and arrest of political activists.
24. The International Helsinki Federation for Human Rights in its 2006 Report on Human Rights in the OSCE Region noted that the most frequent victims of ill-treatment were participants in peaceful demonstrations who were taken to police stations and placed in pre-trial custody. With respect to the judiciary, the Report said that “the judicial system remained dependent on the executive power and the courts acted as executors of state ideology...The political engagement of the judiciary was confirmed in their rulings on politically motivated cases.”
As to prison conditions, the Report observed:
“In many cases, conditions in pre-trial facilities ... were poor enough to amount to cruel, inhuman or degrading treatment.
As a rule, the average floor area per inmate in pre-trial facilities and prisons was less than two square metres (including bed), in dirty, poorly ventilated cells without necessary hygiene facilities. It was reported that inmates sometimes had to sleep in turns, for lack of a bed for everyone. The inmates also lacked sufficient nutrition and were not always provided with the necessary medical care and medication.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4
NON_VIOLATED_ARTICLES: 34


ITEMID: 001-72199
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KRANC v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Not necessary to examine under P1-1;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1929 and lives in Ciechanów, Poland.
5. On an unspecified date in 1988 a certain T.M. lodged a claim against the applicant with the Rzeszów District Court (Sąd Rejonowy). She sought a division of property.
6. On 26 April 1989 the court held a hearing.
7. On 24 January 1992 the court ordered that expert evidence be obtained. The expert’s report was submitted to the court on 26 May 1992.
8. On 21 April 1993 the court gave judgment.
9. The applicant appealed on 26 June 1993.
10. On 22 April 1994 the Rzeszów Regional Court (Sąd Okręgowy) quashed the first-instance judgment and remitted the case to the District Court.
11. On 6 February 1996 the applicant sent a letter to the court, asking for a hearing date to be set.
12. On 3 October 1997 the court decided that new expert evidence be obtained.
13. The court held hearings on 4 May 1998 and 22 December 2000.
14. On 28 February 2001 the Rzeszów District Court gave judgment.
15. The applicant appealed on 5 April 2001.
16. On 26 June 2001 the Rzeszów Regional Court upheld the first-instance judgment.
17. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort.
In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:
“1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.”
18. Article 418 of the Civil Code, as applicable until 18 December 2001 (see “C. Constitutional Court’s judgment of 4 December 2001 below) provided for the following exception in cases where damage resulted from the issue of a decision or order:
“1. If, in consequence of the issue of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person.
2. The absence of the establishment of guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude the State Treasury’s liability for damage if such proceedings cannot be instituted in view of the [statutory] exception to prosecution or disciplinary actions.”
19. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – which included adding a new Article 4171 and the institution of the State’s tortious liability for its omission to enact legislation (the so-called “legislative omission”; “zaniedbanie legislacyjne”) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings (see paragraphs 38-41 below).
Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows:
“3. If damage has been caused by failure to give a ruling (orzeczenie) or decision (decyzja) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.”
20. However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 (see paragraph 34 above) shall apply to all events and legal situations that subsisted before that date.
21. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Article 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Articles 64 and 77 § 1 of the Constitution.
On the same day the court gave judgment (no. SK 18/00) and held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by the unlawful action of a State official carried out in the course of performing his duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it linked the award of compensation for such damage with the personal culpability of the state official concerned, established in criminal or disciplinary proceedings.
22. On 18 December 2001, the date on which the Constitutional Court’s judgment took effect, Article 418 was repealed. The Constitutional Court’s opinion on the consequences of the repeal read, in so far as relevant:
“The elimination of Article 418 of the Civil Code from the legal system ... means that the State Treasury’s liability for an action of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the State liability laid down in Article 417 of the Civil Code. This, however, does not rule out the application in the present legal system of other, not necessarily only those listed in the Civil Code, principles of the State liability laid down in specific statutes.”
23. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act.
Section 2, in so far as relevant, reads as follows:
Section 5 provides, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
24. Section 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of section 18 (see paragraph 46 below) in the following terms:
“A party which has not lodged a complaint about the unreasonable length of the proceedings under section 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.
25. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads:
“1. A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage had occurred.”
26. Section 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.
3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103100
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: CHRYSOSTOMOS II v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Chrysostomos II, is a Cypriot national, born in 1945. He is Archbishop of the Greek Orthodox Autocephalous Church of Cyprus and New Justinian and states that he is acting on behalf of the above Church as well as on behalf of other persons not listed or identified in the application form, namely the church’s parishioners. The applicant lives in Nicosia. He is represented before the Court by Mr A. Angelides, a lawyer practising in Nicosia.
, may be summarised as follows:
In the course of the events in northern Cyprus of 1974, the applicant states that they had to leave behind property and flee places of worship. The property claimed consists of immovable property (monasteries, chapels, churches and graveyards etc) and movable property (ecclesiastical vessels, grails etc). Since 1974 the applicant states that they have been prevented from enjoying the church’s property. The applicant further claimed that many properties had been destroyed, vandalised, looted or stripped of their religious function and are now used as Muslim religious sites, museums, bars, clubs, barns etc. Ecclesiastical vessels etc have been destroyed or sold.


ITEMID: 001-5660
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: FAMILJEN DENEV PENSIONSSTIFTELSE and DENEV v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: The first applicant is a Swedish foundation. The second applicant, a Bulgarian and Swedish national, is a member of the board of directors of the first applicant. The Government are represented by Ms Eva Jagander, Ministry of Foreign Affairs.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 March 1990 the second applicant sold 30 pieces of real property to the first applicant, 14 of which were agricultural estates.
On 2 April 1990, pursuant to sections 1 and 4 of the Act on Foreign Acquisitions of Real Estate etc. (Lagen om utländska förvärv av fast egendom m.m., 1982:618; hereinafter “the 1982 Act”), the first applicant submitted a request to the County Administrative Board (länsstyrelsen) of the County of Kopparberg for a permit to retain the acquired properties.
On 11 April 1990 the request was submitted to the County Agricultural Board (lantbruksnämnden) for an opinion. The opinion of the County Agricultural Board was received at the County Administrative Board on 14 May 1990.
On 29 May 1990 the first applicant stated, inter alia, that the County Agricultural Board’s opinion was illegal and should therefore not be taken into account. Furthermore, the first applicant wanted immediately to obtain a decision regarding those property units which were not agricultural or forestry properties.
On 7 June 1990 the County Administrative Board informed the Municipal Executive Board (kommunstyrelsen) of the Municipality of Malung about the first applicant’s request and asked the Municipal Executive Board to inform the County Administrative Board not later than 28 June 1990 whether it was going to make use of its right to acquire the properties in accordance with the Pre-Emption Act (Förköpslagen, 1967:868; hereinafter “the 1967 Act”).
On 11 February 1992 the decision of the Municipal Executive Board of Malung not to use its right to acquire the properties arrived at the County Administrative Board. The decision was dated 25 June 1990.
On 21 April 1992 the first applicant submitted a request for a permit to retain 16 of the property units in the matter. It stated that the bill of sale of 30 March 1990, on which its earlier application was based, had become invalid due to the lengthy handling of the case. On 22 April 1992 the first applicant made additional submissions.
On 20 May 1992 the County Administrative Board decided to grant the first applicant’s request for acquisition permits with respect to several of the property units in question.
On 25 May 1992 the first applicant submitted to the County Administrative Board a request for a permit to retain six of the property units in the matter. The application was based on a deed of gift according to which the second applicant assigned the six units to the first applicant. The deed was dated 19 May 1992.
On 1 June 1992 the first applicant submitted a request for a permit to retain four property units. This request was based on two bills of sale, one of which was going to replace the deed of gift of 19 May 1992 with respect to one of the units. On 9 July 1992 the first applicant submitted further observations.
By a decision of 13 July 1992 the County Administrative Board, following a recommendation of the County Agricultural Board, rejected the first applicant’s request in respect of eleven of the agricultural estates. In so doing, the County Administrative Board relied on Chapter 1, Section 8 § 2 of the 1982 Act, according to which a permit to acquire a property shall be refused if such a permit would have been refused under the Land Acquisition Act (Jordförvärvslagen, 1979:230; hereinafter “the 1979 Act”).
On 27 July 1992 the first applicant appealed against the decision. On 1 September 1992 the County Administrative Board transmitted the case file to the Government. The first applicant submitted observations on 2 and 13 October 1992 and on 18 March 1993.
On 25 March 1993 the Government quashed the decision of 13 July 1992. They found that, as of 31 December 1992, the 1982 Act had been replaced by the 1992 Act on Approval of Certain Acquisitions of Real Estate (Lagen om tillstånd till vissa förvärv av fast egendom, 1992:1368; hereinafter “the 1992 Act”), the transitional rules of which stipulated that the new legislation was to be observed regardless of whether the acquisition had occurred before or after the entering into force of the 1992 Act. For this reason, so the Government stated, the first applicant’s request had to be considered on the basis of the 1992 Act. Finding that this should be done at first instance, they referred the case back to the County Administrative Board.
By decision of 17 May 1993, the County Administrative Board found that the 1992 Act – as opposed to the 1982 Act – did not apply to Swedish foundations. Thus, under the 1992 Act, no permit was required for the first applicant’s acquisition of the agricultural estates. The Board noted, however, that acquisitions by Swedish foundations of agricultural holdings were subject to public approval under other legislation, viz. the 1979 Act. Being the competent authority to deal also with requests for acquisition permits according to the 1979 Act, the Board decided to consider the first applicant’s request on the basis of the said act. In the decision of 17 May 1993 the request was rejected. The Board stated the following:
(Translation)
“Under Section 5 of the [1979] Act ..., a legal person may only be issued an acquisition permit if
1. the legal person relinquishes or can be expected to relinquish land which is of significance for the rationalisation of agriculture or forestry and, in terms of
size or value, is equivalent or almost equivalent to the land acquired by the legal person,
2. the acquisition has the consequence that land already belonging to the legal person becomes more suitable for its purpose,
3. the land is intended for other purposes than agriculture or forestry,
4. there are other particular reasons.
In the County Administrative Board’s opinion, none of the conditions stated in [Section 5] has been fulfilled in the instant case. The agricultural holdings are situated in areas where the partition of land is inappropriate and where efforts are being made to improve the general layout of estates. For this reason, all of the holdings, regardless of size, are of significance to agriculture and forestry. The fact that holdings may have been given low rateable values [taxeringsvärden] does not constitute particular reasons within the meaning of [Section 5]. Thus, a permit to acquire the properties shall be refused.”
Following the first applicant’s appeals, the County Administrative Board’s decision was upheld by the National Board of Agriculture (Statens jordbruksverk) on 13 July 1993 and the Administrative Court of Appeal (kammarrätten) in Sundsvall on 8 November 1993.
On 26 November 1993 the first applicant lodged an appeal with the Supreme Administrative Court (Regeringsrätten). On 8 December 1993 the first applicant was requested to submit its appeal petition in the original. This was done on 14 March 1994. On 26 April and 26 July 1994 and on 13 June 1995 the first applicant submitted further observations. It stated, inter alia, that the Supreme Administrative Court would commit a deliberate crime of omission against the will of Parliament if it did not quash the criminal judgment of the Administrative Court of Appeal.
On 5 September 1995 the Supreme Administrative Court refused the first applicant leave to appeal. Thus, on the same day, the County Administrative Board’s decision of 17 May 1993 gained legal force. As a consequence, the first applicant’s purchase of the eleven agricultural estates became invalid.
B. Relevant domestic law
a. Permission to acquire certain real property
At the time of the first applicant’s acquisition of the land in question, a permit was required for acquisition of land in accordance with the 1982 Act. Without such a permit the purchase became null and void. Thus, according to Section 1 of the 1982 Act, potential purchasers of real property, with respect to which the 1982 Act applied, could not acquire real property without an acquisition permit. With certain exceptions, not relevant to the present case, the 1982 Act was applicable to Swedish foundations like the first applicant.
An application for an acquisition permit was to be submitted not later than three months after the acquisition (Chapter 1, Section 4 of the 1982 Act). The acquisition was invalid if a permit had not been applied for within the prescribed time or if a permit was refused (Chapter 1, Section 7). Questions relating to acquisitions were examined by the County Administrative Board (Chapter 1, Section 3). A permit was not granted if it would have been refused in connection with an examination in accordance with the 1979 Act.
The 1982 Act was repealed on 31 December 1992 when the 1992 Act entered into force. According to the transitional provisions of the 1992 Act, this Act shall apply even when the acquisition took place before its entry into force, except in cases where the acquisition did not require a permit under the Act in force at the time of the acquisition. Under the 1992 Act, an acquisition permit is required in certain cases in connection with the acquisition of real property which for taxation purposes is to be regarded as a small house or as agricultural property. However, a permit is not required under the 1992 Act when the purchaser is a Swedish legal entity (Section 1 § 2(6)). On the other hand, as regards agricultural property, there is a permit requirement under the 1979 Act.
The 1979 Act is applicable, inter alia, in connection with acquisition of agricultural property by purchase, exchange or gift (Section 2). Under the Act, an acquisition permit is required, inter alia, when the acquirer is a legal entity (Section 3a). As a rule, permit matters are examined by the County Administrative Board of the county within which the property is situated.
The material rules for granting permits are found in Sections 4–8 of the 1979 Act. Section 5 contains provisions on granting an acquisition permit to a legal entity. As examples of when a permit may be granted could be mentioned cases where the acquisition means that the land already in the purchaser’s possession will become more functional (§ 1(2)) or that the property is intended for purposes other than agriculture or forestry (§ 1(3)).
An application for an acquisition permit shall be submitted not later than three months after the acquisition took place (Section 12 § 2). The question of granting a permit based on a purchase or an exchange may not be decided until it has been clarified whether pre-emption according to the 1967 Act will be exercised, unless it is obvious that pre-emption will not be exercised (Section 12 § 3). The acquisition becomes null and void if the application is not submitted within the prescribed time, or if the permit is refused (Section 13).
According to the 1967 Act a local municipality may, under certain circumstances, exercise the right of pre-emption in respect of an agreed purchase of a piece of real property which is needed for certain purposes in the public interest.
b. Appeal procedure
Under Chapter 4, Section 1 of the 1982 Act an appeal could be lodged with the Government against decisions in permit matters made by public authorities other than the Government.
Under Section 18 of the 1979 Act an appeal may be lodged with the National Board of Agriculture against decisions made by a County Administrative Board. A decision by the National Board of Agriculture may be appealed against to an administrative court, i.e. the County Administrative Court and then to the Administrative Court of Appeal. Prior to 1 April 1995 an appeal could be lodged directly with the Administrative Court of Appeal. An appeal may be lodged with the Supreme Administrative Court against decisions made by the Administrative Court of Appeal. However, by virtue of Section 33 of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291), leave to appeal is required.
c. Provisions pertaining to expeditious processing
The 1982 Act and the 1982 Ordinance on Foreign Acquisitions of Real Property (Förordningen om utländska förvärv av fast egendom m.m., 1982:879) contain no provisions concerning the procedure as far as demands for speediness are concerned, nor do the 1992 Act or the 1992 Ordinance on Permission to Acquire Certain Real Property (Förordningen om tillstånd till vissa förvärv av fast egendom, 1992:1374). However, with respect to cases examined under the 1979 Act, Section 9 of the Land Acquisition Ordinance (Jordförvärvsförordningen, 1991:736) stipulates that questions concerning acquisition permits shall be examined without delay and that decisions in the matter shall be rendered not later than three months after the application was made, unless there are special reasons.
Section 7 of the Administrative Procedure Act (Förvaltningslagen, 1986:223), which contains general rules governing the procedure before the administrative authorities and which is applicable to the procedure before the County Administrative Board and the National Board of Agriculture, prescribes that cases shall be handled as simply, rapidly and economically as is possible without jeopardising legal security (Section 7). There are no special provisions concerning how rapidly cases are to be handled before the administrative courts in the Administrative Court Procedure Act.