ITEMID: 001-67696
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: VITTERS v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Dirk Pieter Vitters, is a Netherlands national, who was born in 1948 and lives in Rotterdam. He is represented before the Court by Mrs T.C. Ten Rouwelaar-Hoogland, a lawyer practising in Amsterdam.
On 21 November 1995, the applicant's wife drowned and, shortly after, the applicant was arrested and detained on suspicion of having killed her. In the criminal proceedings that were subsequently brought against the applicant, the Court of Appeal (gerechtshof) of The Hague – on 1 April 1997 and following proceedings on appeal – convicted the applicant and sentenced him to twelve years' imprisonment. Following subsequent proceedings in cassation, the Supreme Court (Hoge Raad) quashed the judgment of 1 April 1997 and remitted the case to the Amsterdam Court of Appeal. In the course of the proceedings before the Amsterdam Court of Appeal and on an unspecified date, the applicant was released from pre-trial detention. On 6 April 1999, the Amsterdam Court of Appeal acquitted the applicant of the charges brought against him.
After the applicant had been arrested and placed in detention, his five – then still minor – children were placed under supervision (ondertoezichtstelling) of the child welfare authorities and away from their family home (uithuisplaatsing).
In a ruling handed down on 27 November 1997, the Rotterdam Regional Court (arrondissementsrechtbank), acting on a request filed on 10 July 1997 by the Rotterdam Child Care and Protection Board (Raad voor de Kinderbescherming – “the Board”), relieved the applicant of his parental authority (ontheffing ouderlijk gezag) over four of his children, namely those who at that time were still a minor, and appointed the Rotterdam Juvenile Care Foundation (Stichting Jeugdzorg – “the Foundation”) as their guardian (voogdes).
The applicant's appeal against his ruling was dismissed on 18 September 1998 by the Court of Appeal of The Hague. The Court of Appeal noted that the criminal proceedings against the applicant had been remitted by the Supreme Court to the Amsterdam Court of Appeal and that the proceedings before this court had been stayed until 7 September 1998 on medical grounds. As regards the two oldest of the four children – who were born in 1980 and 1983, respectively, and who had been heard before the Court of Appeal – the Court of Appeal noted that they had indicated that they did not wish to have any contacts with their father anymore and that the applicant, respecting the wishes of these two children, no longer objected to being relieved of his parental authority over them.
As regards the two youngest children – twins born in 1992 – the Court of Appeal noted that they were staying with a foster family and that the initial arrangement for the applicant's access to them, i.e. once per month, had been reduced by the Juvenile Care Foundation to 75 minutes every even month in the applicant's home and contact by telephone every uneven month. The Court of Appeal held in their respect as follows:
“The Board is of the opinion that [their] placement under supervision and away from [their] home do no longer suffice to protect the children against physical and moral ruin (lichamelijke en zedelijke ondergang). On this point, the Board has submitted that the children require as soon as possible certainty about the place where they can grow up further. The Board considers it necessary that, noting what has occurred in their lives on account of their mother's death, the authority over the children is to be exercised by someone else than the father. In the course of the proceedings, the Board has added that after relieving [the father of his parental authority] – in particular since already for two years the father has not had any an active educational responsibility – the position of the father vis-à-vis the children will only become clearer. The Board did also emphasise that the children are being harmed in their development by the erratic course of the criminal proceedings in which still no definite decision has yet been taken, on which ground the Board now calls for a speedy decision.
Since April 1998 ... the Foundation has not noted any obstruction from the side of the father anymore; the contacts with the father run quite well. Nevertheless the Foundation subscribes to the Board's position that a relief of parental authority is in the children's interest; it would be beneficial for them to have their future clearly laid out in a safe and stable situation. Also the foster family, with whom the children have now stayed for 2½ years and who moreover offer favourable future prospects would benefit from clarity. Certainly when growing up, children must know where they stand. To this end it is important that it will become clear that now, but also later, someone else is responsible for their care and upbringing. The current situation around the father, whether or not detained, is too disruptive for the children; the children seek answers – that are as understandable as possible – to their questions. Parental authority must be separated from the [issue of] contacts with the father, which must be continued also [if the applicant is relieved of his parental authority]. The Foundation favours maintaining the current access arrangement; the former access arrangement was too burdensome for the foster family, who also had had to deal with access arrangements involving [the older siblings of the twins]. [The foster family] is prepared, after [the applicant has been relieved of his parental authority], to set up a broader access arrangement in consultation with the father.
The Court of Appeal adopts as its own the position taken by the Board and the Foundation. There is a founded fear that, owing to the unsuitability or incapacity (ongeschiktheid of onmacht) of the father, the placement under supervision, also in view of its temporary nature, is insufficient to avert the threat for the children.
Having regard to the father's health condition and the fact that he is currently staying at home, the Court of Appeal is of the opinion that the Foundation, as indeed already proposed by it, must in that framework give attention to the frequency of the access arrangement which now has been reduced from twelve to six times per year. The clarity that a relief of parental authority entails can create space for the Foundation to develop a further arrangement.”
The applicant's appeal in cassation against this ruling was rejected by the Supreme Court on 22 October 1999.
In the meantime, on 21 July 1999, the applicant had filed a request with the Rotterdam Regional Court to restore his parental authority over the twins or, alternatively – to determine a broader access arrangement, namely an arrangement under which he would have access to the twins from Friday 17.00 hours until Sunday 20.00 hours every fortnight.
On 9 September 1999, the Rotterdam Regional Court declared the applicant inadmissible in his request to restore his parental authority as the decision in which he had been relieved of his parental authority was not yet final as the proceedings on the applicant's appeal in cassation against the ruling of 18 September 1998 were still pending before the Supreme Court. It further decided to stay pro forma and until 1 March 2000 its examination of the applicant's request for a broader access arrangement. It requested the parties to submit information by that date to whom the parental authority had been entrusted and the Foundation to submit information about the running of the access arrangement.
The applicant filed an appeal against the decision of 9 September 1999 with the Court of Appeal of The Hague. On 17 November 1999, the Court of Appeal examined the applicant's appeal. After having heard the parties, the Court of Appeal decided to adjourn its further examination pending the submission of a report by the Psychiatric Pedagogical Advice Bureau Randstad (Psychiatrisch Pedagogisch Adviesbureau Randstad – “PPAR”) on the access arrangement issue. It decided to adjourn pro forma until 29 January 2000 and, if the report had been submitted by then, to schedule a further hearing in February or March 2000 by which date the Foundation should have set a time frame for an investigation into the question whether to work on returning the twins into the care and custody of their father would be in their interest.
On 19 April 2000, a further hearing was held before the Court of Appeal. It adjourned its further examination of the appeal pending a further investigation by the Ambulant Bureau Juvenile Welfare Care (Ambulant Bureau Jeugdwelzijnszorg – “ABJ) on specific question points to be agreed upon between the parties. Failing such an agreement, the Court of Appeal would hand down an interim decision defining the scope of the further investigation by the ABJ.
In its decision of 2 August 2000, noting that the parties had been unable to reach an agreement and that they had requested the court to formulate the questions, the Court of Appeal ordered the ABJ to prepare a report dealing with the following points:
“a. how is the (social-emotional) development of the children and is the father's concern about their development justified;
b. what is the significance of the foster parents for the children;
c. how is the relationship between the children and the father; is there bonding;
d. what image do the children have of their father;
e. what are the father's possibilities in a pedagogical sense;
f. are the pedagogical and other capabilities of the father sufficient for taking on again the care and upbringing of the children;
g. what are the possibilities of the father in respect of realising contacts between the children and their two brothers and their sister;
h. is the father (mentally) capable to exercise access rights and/or parental authority in a responsible manner;
i. have other facts and circumstances become known during the investigation that might be of relevance for any decision to be taken by the court in relation to the parental authority and access?”
The Court of Appeal adjourned its further examination pending the submission of this report. On 16 January 2001, the requested report was submitted to the Court of Appeal.
In its decision of 18 April 2001, following a hearing held on 7 March 2001, the Court of Appeal declared the applicant inadmissible in his request for a broader access arrangement, quashed the decision of 9 September 1999 in so far as the applicant had been declared inadmissible in his request for restoring his parental authority, declared this request admissible and rejected it. This decision, in its relevant part, reads as follows:
“1. The Regional Court has declared the father inadmissible in his request to restore his parental authority over the minor children because, in the Regional Court's opinion, it was not clear whether or not the father had been relieved of his parental authority, because the proceedings on the appeal filed by the father against the decision of 27 November 1997 were still pending.
2. As the decision of 27 November 1997 was declared as being immediately enforceable (uitvoerbaar bij voorraad), it did have legal effects for the father, so that he was admissible in his request to the Regional Court. The Court of Appeal must therefore examine on appeal and anew the father's request for restoring his parental authority.
3. From the examination at trial and from the ABD report inter alia the following has appeared.
4. Although the children are involved with the father in a positive way, this involvement is limited. The children indicate that they do not wish to live with the father. The father wishes to be restored in his parental authority in order to be able to claim a more central role in the provision of aid to the children.
5. The children have now lived for more than 4 years with the foster parents. The children have difficulties, noting everything that has happened in the past, with bonding [with others], they have been harmed in their ability to bond [with others] (hechtingsbeschadigd), also because in the past their mother was only to a limited extent emotionally available to the children. The children's bonding with the foster parents has only just begun. This bonding development (hechtingsontwikkeling) is in the interest of a healthy personality development. The father has little sight on the children's problems. His wish to care for the children appears to flow mainly from a sense of duty. He can give little substance to that. He overlooks the children's interests. A termination of the bonding process would have serious negative consequences for the children's emotional development.
6. Although the Court of Appeal understands the wish of the father who, owing to the sad course of events surrounding his wife's death, has lost his parental authority, the Court of Appeal finds, in view of the above considerations, that it is of the utmost importance for the children that the bonding process set into motion is continued, in which it is also of importance to create now clarity about the authority over them; it is beneficial for them to have clarity for the future in a safe and stable situation.
7. In addition the children have regular contacts with [two older siblings], who play a big role in the process of dealing with the loss of the mother. The father has already since 5 years no contacts anymore with [these two siblings]. The children have a great interest in a continuation of their contact with [these two siblings] which would be jeopardised if the father were to be restored in his parental authority.
8. In view of the above, the Court is not convinced that the minor children should be entrusted again to the father and it will therefore reject the father's request to this effect.
9. As regards the father's request to determine an access arrangement, the Court of Appeal notes that, in the impugned decision, the Regional Court has stayed [its examination of] this request. Consequently, the father is inadmissible in his appeal against this interim decision.”
The applicant's subsequent appeal in cassation was rejected by the Supreme Court on 11 January 2002.
The duties of the Child Care and Protection Board, as set out in Article 1:238 of the Civil Code (Burgerlijk Wetboek – “the CC”), include keeping itself informed of developments affecting child welfare, promoting cooperation between institutions concerned with child welfare and giving advice, upon request or of their own motion, to authorities and institutions. It has competence to take action in the interests of minors (Article 1:239 § 1 of the CC).
Parental authority over minor children born in wedlock is exercised jointly by both parents (Articles 1:245 § 3 and 1:251 § 1 of the CC). It comprises the duty and the right of parents to care for and bring up their child (Article 1:247 § 1 of the CC). Under caring for and bringing up is also to be understood the care and responsibility for the mental and physical well-being of the child and the furtherance of the development of its personality (Article 1:247 § 2 of the CC). A parent invested with parental authority is the child's statutory representative (wettelijk vertegenwoordiger) and administers its possessions (Article 1:245 § 4 of the CC). If parental authority is exercised by both parents jointly and one of them dies, the parental authority will be exercised by the surviving spouse alone if that spouse had parental authority when the other spouse died (Article 1:253f of the CC).
According to Article 1:254 of the CC, the juvenile court judge (kinderrechter) may, on the application of inter alia the Child Care and Protection Board, order a minor child's placement under supervision of a family supervision institution (gezinsvoogdij-instelling) within the meaning of Article 60 of the Juvenile Care Services Act (Wet op de Jeugdhulpverlening), if the child is growing up under such conditions that it is threatened with moral or physical ruin (zedelijke of lichamelijke ondergang). Such an order can be given for a maximum period of one year, but may be prolonged by a maximum of one year on each occasion (Article 1:256 of the CC).
If necessary in the interest of the child's care and upbringing or for the purposes of an examination of the child's mental or physical health condition, the juvenile court judge can further authorise that the child be placed away from its family home (Article 1:261 of the CC). Also such an authorisation can only be given for a maximum period of one year, with the possibility of subsequent prolongations by a maximum of one year on each occasion (Article 1:262 § 1 of the CC).
Under Netherlands law, a parent invested with parental authority can be deprived of this authority by a decision of the Regional Court either by being relieved of it (ontheffing) under Article 1:266 of the CC – like the applicant in the present case – or by removal from it (ontzetting) under Article 1:269 of the CC. Relief of parental authority – which can only be pronounced upon a request by the Regional Court by the Child Care and Protection Board or the public prosecution department (openbaar ministerie) – is based on a parent's unsuitability or incapacity (ongeschiktheid of onmacht) to fulfil his/her duty of care and upbringing. Removal from parental authority – which can only be pronounced upon a request by the other parent, one of the relatives by marriage or blood up to and including the fourth degree of consanguinity, the Child Care and Protection Board or the public prosecution department – is based on an imputable and wilful dereliction of duty or on an imputable unworthiness in the assumption of the task of mentor and care provider.
A decision to relieve a parent from his or her parental authority cannot be taken if opposed by the parent concerned (Article 1:268 § 1 of the CC). However, this rule does not apply where it appears after a placement under supervision of at least six months, or where after a placement away from the family home of more than one year and six months there is a founded fear, that this measure – by the unsuitability or incapacity of a parent to fulfil his or her duty of care and upbringing – is insufficient to avert the threat with moral or physical ruin (Article 1:268 § 2 of the CC).
Both forms of deprivation of parental authority entail a full loss of the authority over underage children. A request to be restored in parental authority may be filed with the Regional Court by the parent concerned or by the Child Care and Protection Board. If the Regional Court is convinced that a minor can be entrusted again to the parent who has been relieved or removed from his/her parental authority, it may restore this parent in his/her authority (Article 1:277 of the CC). In the determination of such a request, the Regional Court is to balance the interests of both the child and the parent. Pending this determination, both the Child Care and Protection Board and the parent concerned can request the Regional Court to stay its determination pending a probationary period of maximum six months during which period the child is to stay with the parent seeking restoration of parental authority (Article 1:278§ 2 of the CC).
Access rights are regulated by Articles 1:337a-h of the CC. Article 1:377a of the CC, in so far as relevant, provides as follows:
“1. The child and the parent who does not have custody are entitled to have access to each other (omgang met elkaar).
2. The judge shall, at the request of the parents or of one of them, establish an arrangement, for a definite or indefinite period, for the exercise of the right of access or shall deny, for a definite or indefinite period, the right of access.
3. The judge shall only deny the right of access if:
a. access would seriously impair the mental or physical development of the child; or
b. the parent must be deemed to be manifestly unfit for or manifestly incapable of access; or
c. the child, being at least twelve years old, when being heard has manifested serious objections against allowing the parent access; or
d. access would for another reason be contrary to the weighty interests (zwaarwegende belangen) of the child.”


ITEMID: 001-22320
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: JAVANMARDI and AHMADI v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Mrs Marjan Javanmardi and Mr Ahad Ahmadi, are Iranian nationals, who were born in 1972 and 1968 respectively and live in Umeå, Sweden. They are represented before the Court by Ms L. Isaksson, a lawyer practising in the same town.
The applicants left Iran and arrived in Sweden on 14 April 1999 with a visa authorising them to remain in Sweden for 30 days. On 18 May 1999 they applied for political asylum and a residence permit, invoking the following circumstances. The first applicant had, as a midwife at the Iranian Navy Muslim Hospital in Shiraz, carried out an illegal abortion at the hospital on a friend of hers, who was unmarried and politically active. For a few years the applicants had supported this friend financially in her political activities. The friend held views which were close to those of the Moujahadin and obtained help from the applicants for the printing of a political publication. As the first applicant’s superior found out about the abortion she was reported to the police. Allegedly, she was arrested and detained for 48 hours. She claims that she was beaten during that period. She was released on bail following the payment of a large sum by her father. Both applicants then left Iran for Sweden. Thereafter, the security guards visited her parents’ home on several occasions and looked for her at the hospital and at the university where she had obtained her degree. Her father was interrogated for 5 hours by the police in order to obtain information about her whereabouts.
This was not the first time the applicants had sought entry into Sweden. The first applicant had unsuccessfully applied for a visa once in 1996, once in 1997 and once again in 1998. The second applicant applied twice in 1993, but without success. A further application for a visa had been rejected in 1994 but a second application made in the same year had been granted. The second applicant applied for a residence permit in order to settle with his mother and brothers and sisters. The application was rejected. He avoided returning to Iran but, following his arrest on suspicion of shop lifting, he was expelled in November 1994. His applications for a visa in 1996 and 1997 were rejected.
On 19 November 1999 the National Immigration Board (Statens invandrarverk) refused the applicants’ above-mentioned application of 18 May 1999 for asylum and residence in Sweden and ordered their expulsion to Iran. The couple were prohibited from re-entering Sweden for 2 years. The National Immigration Board observed that the first applicant did not appear to have been of significant interest to the Iranian authorities since the couple had left Iran lawfully with passports issued in their own names. The couple only applied for asylum 5 weeks after arriving in Sweden. The applicants had never been active in any political party or organisation. While they asserted that they had contributed financially to the printing of a political publication, they were not able to identify the party or organisation, nor the contents of the publication. Nor had they claimed that the Iranian authorities knew of this. Although abortion was illegal in Iran, it was a frequent occurrence and was seldom pursued by the Iranian authorities and prosecution could be avoided by paying bribes. In any event, the offence in question was only liable to punishment by fines or imprisonment. An appeal by the applicants to the Aliens Appeals Board (Utlänningsnämnden) was rejected on 22 December 2000.
The applicants then requested a fresh examination of their application by the Aliens Appeals Board, claiming that the first applicant suffered from a psychotic health condition, which had its background in her experience in Iran. She had been treated at a psychiatric hospital in November and was readmitted on 29 December 2000. The applicants relied on a medical certificate of 2 January 2001, which stated that the first applicant had had psychological problems over the past six months. She described herself as being persecuted and monitored by Iranian spies and had given a strong impression that she was suffering from anxiety and desperation, with a paranoid psychotic character. She had hallucinated in particular about her superior at the hospital who had reported her to the police. On the whole, she displayed unequivocal psychotic symptoms which could have been caused by stress and pressures and was in need of acute psychiatric care. Her condition pointed to a distinct risk of suicide. The doctor recommended that the first applicant continue to undergo psychiatric care and advised against burdensome transportation. On 19 January 2000 the first applicant was discharged as she was no longer considered suicidal and since her husband could look after her.
On 29 January 2001 the Aliens Appeals Board rejected the renewed request, finding that neither the information in the medical certificate nor the other material submitted in the case were of such a character as to warrant granting the couple a residence permit on humanitarian grounds.
On 1 February 2001 the applicants lodged an application complaining that, if expelled to Iran, the first applicant would risk the death penalty, corporal punishment, torture and other forms of ill-treatment and detention. Her mental health was such that expulsion would violate Article 3. Moreover, they requested the Court to indicate to the Swedish authorities not to execute the order to expel them to Iran.
On 4 February 2001 the first applicant was again committed to the psychiatric ward on her husband’s initiative since she was suffering from a depressive psychosis.
On 16 February 2001 the parties were informed that the acting President had decided not to grant the Rule 39 request with respect to the husband and was not minded to apply Rule 39 with respect to the wife in the absence of more specific documentary evidence in support of her account about the abortion, her detention, the payment of bail by her father or the proceedings (investigation/charges) against her.
In response, the applicants submitted two statements dated 9 and 12 February 2001 by Professor J. Hjärpe of the Department of Religious History, Section of Islamology, at the University of Lund, Sweden. They also supplied a medical certificate dated 5 February 2001. According to the medical certificate, the first applicant’s condition had worsened despite being given appropriate medication. When examined on 4 February she was found to be autistic and suffering from hallucinations. She was also deeply depressed. In conclusion, the Chief Doctor stated that the patient suffered from an illness of a depressive nature with strong psychotic symptoms. Despite treatment with adequate medication, her condition had lately worsened. The patient was in need of care at a closed psychiatric ward and was at great risk of committing suicide. New forms of treatment were being considered beginning with electro-treatment, which needed to be carried out urgently.
On 8 March 2001 the first applicant was diagnosed as suffering from severe depression. She was found to be in a therapy-resistant condition and required continuing specialist care. There was an imminent risk of suicide but, thanks to her husband, it was possible to treat her as an outpatient. She was last discharged on 23 March 2001.
On 12 April 2001 the Chamber considered the above Rule 39 request with respect to the first applicant, Mrs Marjan Javanmardi. The Chamber found it desirable to continue the deliberations at a later date and, to this end, decided to apply provisionally Rule 39 until its next meeting to be held on 3 May 2001. On the latter date the Chamber rejected the Rule 39 request with respect to the first applicant.


ITEMID: 001-89825
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KOSTIC v. SERBIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Non-pecuniary damage - award;Pecuniary damage - Government to enforce a demolition order
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 6. The applicants are spouses. They were both born in 1947 and currently live in Belgrade.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. The applicants and a certain M.P. were co-owners of a house and five other buildings in Belgrade.
9. On 21 May 1998 M.P. obtained a building permit for the partial reconstruction of the house co-owned by the applicants, authorising him to convert his flat into a duplex and enlarge it by approximately 100 meters squared.
10. M.P. started with the construction work immediately thereafter.
11. On 7 August 1998, on the basis of an on-site intervention, the Inspectorate of the Voždovac Municipality (“the Municipality”) concluded that M.P. was not performing the construction work in line with the building permit. It therefore ordered him to stop all work and to file a request for a new permit.
12. On 2 September 1998 the Inspectorate ordered M.P. to demolish, within three days, that part of the construction which had been erected contrary to the building permit.
13. On 11 September 1998 the Inspectorate issued an enforcement order in this respect.
14. Meanwhile, M.P. filed a request for a new building permit.
15. On 24 September 1998 the Municipality issued a favourable interim decision.
16. On 15 December 1998 the second-instance authority quashed this decision, remitting the case for re-consideration.
17. On 13 July 1999 the Municipality dismissed M.P.'s request for a new building permit, finding that his plan did not satisfy the requirements prescribed by the relevant domestic legislation.
18. On the same date, a technical report noted that “following the recent precipitation” and the construction work undertaken by M.P. the applicants' property had been seriously damaged. In particular, mortar had fallen, walls had cracked, and extensive damp and leakages had appeared throughout the premises.
19. On 27 March 2001 and 20 June 2002 the applicants filed criminal complaints against unidentified officials employed with the Municipality, alleging abuse of office.
20. On 25 November 2003 this complaint was rejected by the Fifth Municipal Public Prosecutor's Office (Peto opštinsko javno tužilaštvo) in Belgrade.
21. Following the entry into force of the new Planning and Construction Act in May 2003, M.P filed a request with the Municipality for the “legalisation” of the reconstruction of his flat (see paragraphs 32-34 below).
22. On 22 May 2003 and 11 June 2004 the applicants lodged submissions opposing the said legalisation.
23. On 11 February 2005 the Municipality informed the applicants that M.P. had filed a request for legalisation.
24. On 14 December 2005 M.P. supplemented this request.
25. Over the years, the applicants had repeatedly requested enforcement of the demolition order dated 2 September 1998, but to no avail.
26. Article 39 defines a party to an administrative case as a person at whose request the proceedings have been instituted, a person against whom the proceedings have been brought, or, indeed, any other person who is entitled to participate in the proceedings with a view to protecting his or her rights or interests.
27. Article 261 § 2 provides that an administrative decision shall be executed once it becomes enforceable.
28. Article 268 § 1 provides, inter alia, that the authority in charge of the enforcement of an administrative decision shall, ex officio or at the request of a party, issue an enforcement order. Such an order shall declare that the decision has become enforceable and determine the means and object of the enforcement.
29. Article 271 provides, inter alia, that enforcement proceedings shall be terminated ex officio if the enforcement title itself has been repealed in the meantime. These proceedings shall, however, be stayed “if it is established” that an interim decision, which was being executed, has subsequently been replaced by a contradicting separate “decision in respect of the main issue”.
30. Article 5 provided, inter alia, that an area's development was to be carried out in such a way as to: (i) protect its natural and man-made characteristics; (ii) respect the relevant planning regulations; (iii) preserve its natural resources; and (iv) protect the environment, as well as the public interest in general.
31. This Act was repealed on 13 May 2003.
32. Articles 160-162 provide, inter alia, that the owner of a building, a flat or, indeed, of any other object erected or reconstructed in the absence of a valid building permit shall have to inform the competent administrative authority (“the authority”) of this situation by 13 November 2003. This authority shall have sixty days to advise the owner about the relevant conditions for the “legalisation” of the construction in question, as well as the documents needed in this regard. The owner himself shall then have another sixty days to comply with this instruction. Should he do so and depending on whether the relevant conditions have been met, the authority shall accept the legalisation sought. In the event, however, that the owner does not abide by the set deadlines, the authority shall adopt a demolition order in respect of the said construction.
33. Article 171 provides, inter alia, that requests concerning the “issuance of building permits”, as well as those to do with “other individual rights and obligations”, lodged before the entry into force of this Act, shall be dealt with on the basis of prior legislation.
34. The Planning and Construction Act entered into force on 13 May 2003.
35. Article 154 defines different grounds for claiming civil compensation.
36. Article 172 § 1 provides that a legal entity is liable for any damage caused by one of “its own bodies”.
37. On 17 May 2005 the First Municipal Court (Prvi opštinski sud) in Belgrade ordered the Municipality of Stari Grad to pay the plaintiff a specified amount of compensation on account of the lost rent. The court relied, inter alia, on Article 172 of the Obligations Act and explained that the plaintiff had been unable to lease his flat for a certain period of time as a result of the Municipality's failure to evict a protected tenant from the flat in question (XVIII P br. 9031/04). On 16 March 2006 this judgment was upheld by the District Court (Okružni sud) in Belgrade (Gž. br. 12872/05).
38. On 21 February 2006 the Municipal Court in Novi Sad ordered the respondent State to pay the plaintiff a specified amount of compensation for the breach of his rights guaranteed under Article 5 of the Convention (P br. 1848/05). On 8 November 2006 this judgment was upheld by the District Court in Novi Sad (Gž. br. 3293/06). Based on such jurisprudence, the Government maintained that the Serbian courts were willing to directly apply the Convention, as well as the Protocols thereto.
39. Under Article 25 § 1 if a builder was aware of the fact that he was building on land owned by another, or was not aware of this but the land's owner had immediately expressed his opposition to the work undertaken, the latter shall have the right to: (i) seek recognition of his ownership of the building erected; (ii) request that this building be demolished; or (iii) seek compensation from the builder for the usurped land, based on its market price.
40. Under Article 43, inter alia, a co-owner shall be entitled to file a claim for the protection of his or her rights in respect of an entire property, as well as the protection of that individual's stake therein.
41. Under Articles 61 and 201-212, should a Public Prosecutor reject a criminal complaint filed in respect of a crime prosecuted ex officio, the victim may personally take over the prosecution of his own case before a court and simultaneously file a claim for any civil damages suffered.


ITEMID: 001-71742
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF OLEYNIK AND BAYBARZA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - Government to pay outstanding judgment debts;Non-pecuniary damage - financial awards
TEXT: 4. Mr Vladimir Oleynik (the first applicant) and Mr Dmitriy Baybarza (the second applicant) were born in 1935 and 1941 respectively, and live in Zhovti Vody, the Dnipropetrovsk Region.
5. On 26 October 2000 the Zhovti Vody City Court awarded the first applicant UAH 7,929.74 against the Electron-Gaz Company (a State owned entity; hereafter “the Company”) in salary arrears. On 18 October 2000 the second applicant was awarded 7,040.03 against the Company. Both judgments became final and were sent to the Zhovti Vody City Bailiffs’ Service (hereafter “the Bailiffs”) for compulsory enforcement.
6. On 2 April 2002 the Zhovti Vody City Prosecutor informed the second applicant that the delay in the execution of numerous court judgments against the Company was due to the moratorium on the forced sale of the property of State-owned enterprises, which significantly limited the resources for refunding the Company’s salary arrears.
7. On 19 April 2002 the Department of Industry, Transportation and Communications of the Dnipropetrovsk Regional State Administration issued a letter, stating that improvement of the Company’s financial performance (including that of its salary payments) was a matter of concern for various State authorities. In particular, the State Property Fund was preparing the Company’s development plan which was to be presented at the next stockholders’ meeting.
8. On 7 March 2003 the Dnipropetrovsk Regional Commercial Court (hereafter “the Commercial Court”) instituted bankruptcy proceedings against the Company and issued an injunction barring any debt recovery. On 10 October 2003 the Commercial Court approved a rehabilitation proposal and appointed a trustee to rehabilitate the Company’s business.
9. The judgments given in the applicants’ favour remain unenforced.
10. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004) and Trykhlib v. Ukraine (no. 58312/00, §§ 25-32, 20 September 2005).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85105
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PSHENICHNYY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
TEXT: 5. The applicant was born in 1957 and lives in Stavropol.
6. A private company sued the applicant on a claim of unjust enrichment not related to his salary. It submitted a document showing that the applicant had received money from the company. The applicant counterclaimed that the document had been void.
7. On 20 June 2002 the Leninskiy District Court of Stavropol rejected the applicant’s claim, partly allowed the company’s claim and ordered that the applicant repay 295,176 Russian roubles (RUB) to the company.
8. By a supplementary judgment of 28 June 2002, the Leninskiy District Court ordered that the applicant pay the court fee of RUB 4,371.77.
9. On 18 September 2002 the Stavropol Regional Court quashed the judgments and remitted the case.
10. On 10 October 2002 the Leninskiy District Court allowed the applicant’s claim. It declared the voucher void, confirmed the applicant’s title to the disputed money, ordered that the company pay the applicant RUB 4,916 in legal costs and expenses and ordered that the applicant pay the company RUB 112.
11. In its grounds of appeal the company complained that the first-instance and appeal courts had erred in the establishment of the facts.
12. On 27 November 2002 the Stavropol Regional Court reversed the award of RUB 112, rejected the company’s claims in full, and upheld the remainder of the judgment.
13. On 16 June 2003 the company filed an application for supervisory review of the judgments of 10 October and 27 November 2002. It reiterated its argument that that the first-instance and appeal courts had erred in the establishment of the facts and asked the Presidium of the Stavropol Regional Court to quash their judgments and to remit the case to the first-instance court.
14. On 28 July 2003 the applicant filed comments on the application for supervisory review. He maintained his claims and asked the Presidium of the Stavropol Regional Court to reject the application.
15. On 4 August 2003 the Presidium of the Stavropol Regional Court quashed the judgments of 18 September, 10 October and 27 November 2002 because the courts had incorrectly established the facts. It reinstated the judgment of 20 June 2002. Counsel for the applicant was present at the hearing.
16. On an unspecified date the applicant repaid RUB 295,176 to the company.
17. On 29 September 1999 the Supreme Commercial Court gave a binding interpretation of the provisions governing legal fee agreements. It indicated, inter alia, that contingency fee agreements were not enforceable. On 23 January 2007 the Constitutional Court confirmed that approach.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-4985
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: N.L. v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national born in 1966 and currently residing in Rome.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 January 1992, pending proceedings for the applicant's parents' judicial separation, counsel for the applicant's father in a letter addressed to counsel for the applicant's mother stated that the applicant had assaulted and injured his father.
The applicant, who firmly denied these accusations, requested his father and his counsel to rectify the above statement, failing which he would file a complaint for defamation.
On 22 April 1992, the applicant filed a criminal complaint against his father and the latter’s lawyer with the Public Prosecutor’s Office attached to the Rome Magistrate’s Court, reserving his possibility to lodge a civil party application.
On 12 November 1992, the Rome Public Prosecutor, noting that the facts as alleged by the applicant might have raised an issue under Article 595 of the criminal code (defamation), invited the applicant, his father and the latter’s lawyer to appear before him on 13 January 1993 with a view to trying to settle the case pursuant to Article 564 of the Code of Criminal Procedure.
The parties having failed to appear before the Public Prosecutor on the scheduled date, the latter invited them to appear before him on 9 March 1993. Once again, the parties did not respond to the invitation.
On 31 July 1996, the Public Prosecutor requested the Rome Magistrate to fix a date for the trial.
On 25 June 1998 the applicant was officially informed that, by an act of 21 December 1996, the Public Prosecutor had summoned the applicant’s father and the latter’s lawyer to appear before the Rome Magistrate on 18 September 1998 and requested that they be committed to trial for defamation against the applicant. He was also informed that the date of the hearing had later been changed to 19 October 1998.
On 19 October 1998 the Rome Magistrate ruled that the proceedings be discontinued, the prosecution being time-barred.
B. Relevant domestic law
According to Article 2043 of the Italian Civil Code, “whoever, intentionally or negligently, commits a wrongful act, must compensate for any unjust damage thereby caused”.
According to Articles 2059 of the Civil Code and 185 of the Criminal Code, compensation for moral damage can only be sought if the facts which have caused it constitute a criminal offence.
According to the established case-law (cf., inter alia, Court of Cassation, judgment no. 1474 of 11 February 1988; Milan District Court, judgment of 13 May 1982, Micciantuono v. Ist. Osp. Prov. Maternità), when the offence is time-barred, the civil courts are competent to assess and award the moral damage on the basis of the facts of the case.
According to the first paragraph of Article 90 of the Code of Criminal Procedure, the injured party is entitled, at any stage of the proceedings and before any level of jurisdiction, to submit memorials and also, except before the Court of Cassation, to seek to adduce evidence.
According to Article 564 of the Code of Criminal Procedure, in cases in which the prosecution is conditional upon a relevant request by the injured party, the public prosecutor can summon the latter and the accused to appear before him with a view to enquiring whether the injured party would withdraw the criminal complaint and the accused would accept such withdrawal. The parties can be assisted by a lawyer.


ITEMID: 001-22770
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: ZAPLETAJ v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Ernest Zapletaj, is a Slovakian national, who was born in 1941 and lives in Levice.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1971 the applicant was dismissed from the army for political reasons. In 1991 he was again admitted as a professional soldier. In accordance with the governmental Regulation No. 249/1992, in conjunction with the ExtraJudicial Rehabilitations Act of 1991, the period during which the applicant had been prevented, for political reasons, from serving as a professional soldier was to be considered as a period of service in the army when determining his salary and pension entitlements.
On 1 January 1998 the Pecuniary Entitlements of Soldiers Act of 1997 entered into force. It provided, in Section 79, that the above Regulation No. 249/1992 should not be applicable in respect of professional soldiers. As a result, the applicant’s salary and pension entitlements were considerably diminished since their amount depended on the period of time during which he had served in the army.
On 27 February 1998 the Ministry of the Defence confirmed to the applicant, with reference to the Pecuniary Entitlements of Soldiers Act of 1997, that the period during which he had been prevented from serving in the army could no longer be taken into account when determining his salary and pension rights.
On 24 March 1998 the president of a parliamentary committee confirmed the position to the applicant. The letter further stated that the members of the committee would consider the possibility of initiating an amendment to the relevant law.
On 9 July 1998 the applicant complained to the Constitutional Court that the relevant statutory provisions were discriminatory. On 17 August 1998 a constitutional judge informed the applicant that individuals lacked standing to bring proceedings with a view to having the conformity of a law with the Constitution or with an international treaty determined. The letter concluded that the Constitutional Court could not entertain the applicant’s complaint.
On 25 August 1998 a judge of the Supreme Court informed the applicant that the Supreme Court lacked jurisdiction to make general comments on legal rules.
On 9 September 1998 the Office of the Government admitted, in reply to the applicant’s complaint, that there was an inconsistency between the Pecuniary Entitlements of Soldiers Act of 1997 and Section 180 of the Military Service Act of 1997, and that the relevant provisions had to be brought into conformity with the Constitution. The applicant was further informed that it was expected that the Ministry of the Defence would initiate a legislative amendment with a view to resolving the problem.
The applicant requested the General Prosecutor’s Office to bring proceedings with a view to having the alleged conflict between the Pecuniary Entitlements of Soldiers Act of 1997 and the Constitution determined by the Constitutional Court. On 5 October 1998 the General Prosecutor’s Office informed the applicant that his request had been transmitted to the Principal Military Prosecutor’s Office.
On 31 December 1998 the applicant retired from the army.
Regulation No. 249/1992
In accordance with Section 16 of Regulation No. 249/1992 governing the salaries of persons employed by public organisations, employers are entitled to take into account the period during which a person was prevented from exercising his or her profession for reasons of political persecution as a period of activity in the relevant field for the purpose of determining the length of the professional experience of the person concerned.
Pecuniary Entitlements of Soldiers Act of 1997
Section 79 of the Act on Pecuniary Entitlements of Soldiers (Zákon o peňažných náležitostiach vojakov) provided that Regulation No. 249/1992 ceased to be applicable in respect of professional soldiers from the moment of the entry into force of that Act on 1 January 1998.
As from 1 January 2002 the Act was amended. As a result, Section 10 (4) provides that the time which is to be considered as period of employment under special laws, such as the Extra-Judicial Rehabilitations Act, shall be included, in case of professional soldiers, in the overall duration of their service in the army.
The Military Service Act of 1997
The Military Service Act (Zákon o vojenskej službe) was adopted on 21 November 1997 and it entered into force on 1 January 1998. It governs the legal aspects of the exercise of military service and its cessation.
Section 180 (1) provides that all periods of time during which a person was considered to have served in the army under rules in force prior to the enactment of the Military Service Act of 1997 shall be included in the overall duration of such a person’s military service when determining his or her entitlements under that Act.
Constitutional provisions and practice
Pursuant to Article 127 of the Constitution, as in force at the relevant time, the Constitutional Court shall review the challenges to final decisions made by central government authorities, local government authorities and local self-government bodies in cases concerning violations of fundamental rights and freedoms of citizens, unless the protection of such rights falls under the jurisdiction of another court.
Article 130 of the Constitution, as in force at the relevant time, provides as follows:
“1. The Constitutional Court shall commence proceedings upon a proposal submitted by:
a) no less than one fifth of all members of the National Council of the Slovak Republic;
b) the President of the Slovak Republic;
c) the Government of the Slovak Republic;
d) a court;
e) the General Prosecutor;
f) any person whose rights shall be adjudicated pursuant to Article 127.
...
3. The Constitutional Court may commence proceedings upon a petition submitted by legal entities or individuals claiming a violation of their rights.”
In accordance with its established practice, the Constitutional Court lacks jurisdiction to examine a petition under Article 130 (3) of the Constitution when the determination of the point in issue involves the preliminary question of conflict of legal rules (for example, I. ÚS 106/93, decision of 12 October 1993).


ITEMID: 001-88367
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: WOHL v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Michael Wohl, is a British national who was born in 1947 and lives in London. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 1 June 1996. His claim for widows’ benefits was made on 9 October 2000 and was rejected on 20 October 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-5697
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: SMITH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1935 and living in South Bedfordshire. She is represented before the Court by Ms White, a solicitor practising in Berkhamsted.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, a gypsy born in Luton, started travelling at the age of 21 years when she married a gypsy who travelled. After the marriage ended, the applicant married John Smith, a romany gypsy who had travelled with his parents widely. During their travelling together, they and their three children were moved on by the police many times for parking their caravan on the road side. They were frequently moved on week after week and escorted by the police outside the county.
In the 1970’s, the applicant and her family found a pitch on an official site at Stopsley, Luton. Her children and their caravan were attacked by other gypsies, and there were quarrels between the applicant and other gypsy parents. She and her husband decided to move off the pitch. After some years of travelling and making short term stays on gypsy sites, the applicant moved onto a private gypsy site in Wellingborough, Northamptonshire, where they stayed for six years. After this period, a new gypsy family moved onto the adjacent pitch, who were drunkards and kept the applicant and her family awake with brawls and quarrels. A neighbouring caravan was set on fire and another caravan vandalised. The applicant’s husband grew very depressed and in 1989 he developed a heart condition requiring quiet and rest.
After many years looking for a piece of land on which to settle, they found an affordable site at Half Moon Lane, Pepperstock, Bedfordshire. This was close to the applicant’s family and in a quiet lane full of mobile homes and adjacent to an official gypsy site. They purchased the site in summer 1996. A planning application was put in on 15 August 1996 for two mobile homes and two tourers.
The application was refused by South Bedfordshire District Council (‘the Council’) on 11 October 1996. An enforcement notice was issued on 12 December 1996. The applicant and her husband’s appeal against the refusal of planning permission and the enforcement notice was heard by a planning inspector on 14 and 15 October 1997.
In his decision letter of 22 December 1997, the inspector held inter alia:
“7. The site is located within the predominantly open countryside to the south of the settlement of Slip End… It is irregular in shape and approximately 0.251 hectares in extent. It adjoins a former chapel to the east, which is now used as a day care centre, and on its western side it adjoins a residential property,… and an open field. Opposite is a purpose built local authority gypsy site, Timberlands, and to the south east is the Half Moon public house. It falls within the South Bedfordshire Green Belt. …
12. The site is clearly visible from both Half Moon Lane and Front Street…
13. You claim that the site is well-screened and does not intrude into the open countryside. To my mind, the number of caravans, structures, vehicles and trailers, etc. effectively urbanises the site and results in a material loss of openness. The use detracts from the visual amenity of the site. The land north of Half Moon Lane is largely open. Development of the site intrudes into the open belt of land, south of Slip End, and consolidates the sporadic development in Pepperstock. It contributes to the coalescence of Pepperstock and Slip End. It involves an encroachment of residential use into the open countryside contrary to one of the main purposes of the Green Belt.
15. The site has a 40m boundary with a private dwelling which is positioned close to the boundary. I consider that the occupants of the dwelling have experienced a material loss of amenity due to the loss of openness and increased noise and disturbance from the intensified activity on the site. ...There is evidence of on site business activities. The appeal site consolidates gypsy site provision in the locality and extends the use on both sides of Half Moon Lane. The change of use results in an ad hoc extension to the consciously located official gypsy site opposite. It has resulted in loss of natural features and does not complement and harmonise with the local surroundings contrary to policy BE11. In my view the use diminishes the rural quality of the landscape in this area.
19. …There are two purpose built gypsy sites in the district and three authorised sites. The Council claims that statistical evidence does not demonstrate a continuing or compelling need for further provision in the district, either permanent, temporary or transit. I note that a Designation Order for the district was made by the Secretary of State in 1982 as an area to which section 10 of the Caravan Sites Act 1968 applied. On the basis of official counts taken twice a year, the level of need in the district in recent years has been very low…
20. The Timberlands site opposite has recently been upgraded and accommodates twelve families. The other Council site, Eaton Bray, accommodates 29 families. There are three other local authority sites within the County. The current waiting list for Timberlands is three but there are eight vacancies at the Kempston Hardwick site. <The applicant’s husband> voluntarily moved to the site from an official gypsy site at Wellingborough, Northamptonshire. He has no local connections in Slip End or Pepperstock or particular links with South Bedfordshire. …
22. <The applicant’s husband> has a heart condition and is on pills for life, he had gout and a back problem… I appreciate that he needs a more peaceful and settled existence. Nevertheless, the site is not within easy reach of medical and pharmacy services. <He> is able to undertake some light work, such as erecting fencing and is able to drive; I am not persuaded that his medical condition amounts to such very special circumstances which would justify a breach of Green Belt policy.
23. <The applicant’s husband> approached other travellers to find a site and made informal inquiries about vacancies on the Timberlands site. His preference to live with his son complicates availability. He did not consult with the Council before he bought the site... the evidence indicates that the Council made every effort, both in writing and by personal visits, to inform <him> that planning permission was needed and that approval would be unlikely due to the site’s Green Belt status. …
25. The objections to the development in the Green Belt are serious ones which cannot be overcome by the imposition of planning conditions such as landscaping… The public interest can only be safeguarded by the cessation of the use...”
The Inspector granted a compliance period of one year in recognition that it might take some considerable time for a vacancy to be found on an appropriate site elsewhere.
Counsel advised that there was no error of law on which the applicant and her husband could appeal to the High Court. He did consider that the inspector had made an errors of fact, in particular, in setting out the local council criteria for gypsy sites. However, this did not assist the applicant as it was clear from the rest of the decision that the inspector would have found that the relevant criteria had not been met and would have reached the same result.
In 1995, the Secretary of State for the Environment approved the local plan for South Bedfordshire. This identified specific sites for 1,140 dwellings, planned to identify a further 8,500 dwelling sites and failed to identify a single site for gypsies. The local authority had zoned all rural land as Green Belt, excluding 80 hectares of quarries unsuitable for human habitation. Residential and agricultural land in the area was valued at between 300,000 and 500,000 pounds sterling (GBP) per acre.
In or about August 1999, the applicant’s husband was convicted of being in breach of an enforcement notice and fined 1000 GBP. He lodged a further application for planning permission which was dismissed after a public enquiry at a date unspecified.
The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601).
An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act).
The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State’s decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288).
If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act).
There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector.
Again there is a further right of appeal “on a point of law” to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector’s decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority.
Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act).
The purpose of Green Belts and the operation of the policy to protect them is set out in the national policy document PPG 2 (January 1995).
“1.1. The Government attaches great importance to Green Belts, which have been an essential element of planning policy for some four decades. …
1.4. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development.
1.5. There are five purposes in Green Belts:
– to check the unrestricted sprawl of large built-up areas;
– to prevent neighbouring towns from merging into one another;
– to assist in safeguarding the countryside from encroachment;
– to preserve the setting and special character of historic towns; and
– to assist in urban regeneration by encouraging the recycling of derelict and other urban land. …
2.1. The essential characteristic of Green Belts is their permanence. Their protection must be maintained as far as can be seen ahead. …
3.1. The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. …
3.2. Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.”


ITEMID: 001-97991
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF PETRENCO v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1954 and lives in Chişinău. He was, at the time of the events to which the present application pertains, the Chairman of the Association of Historians of the Republic of Moldova and a university professor and is the author of the 1996 school curriculum on “Universal History”.
6. On 4 April 2002 the official newspaper of the Moldovan Government, Moldova Suverană (“Sovereign Moldova”), published an article written by a historian and former deputy minister for education, S.N., headed “Commentary on Mr Petrenco's reply on the Internet” (Comentariul la răspunsul de pe Internet al domnului Petrenco). The article made negative remarks about the applicant's competence as a historian. It went on to suggest that the applicant's university place as a postgraduate student and his subsequent career as a historian were the result of his cooperation with the Soviet secret services. In particular, the article contained the following statements:
“That is, Mr Petrenco, it is not a political question but has to do with your 'feeble' memory or the lack of professional dignity.”
“But, you see, they did not properly understand this exorcising priest ...”
“... for his special merit (confirming the confidence of the AUCP (b) – KGB), [the applicant] was sent for postgraduate studies ...”
“... as a student, he excelled ... due to his 'special accomplishments' (he was a well-educated person who knew how to knock politely and respectfully at his superiors' doors: knock-knock-knock?!? [stuk-stuk-stuk]), and he became a member of CPSU – AUCP (b) during his student years ...”
“...the Party once sent a 'Volga' especially for [the applicant] (how much faith did those from the CC – KGB have in comrade Petrenco Anatolii Mihailovici!!) to take him to Chişinău ...”
7. On 18 April 2002, the applicant brought defamation proceedings against S.N. and the newspaper, seeking the publication of a retraction and compensation for non-pecuniary damage.
8. During the proceedings before the Centru District Court, the court heard evidence from a witness who was questioned about the allegation that, as a student, the applicant had collaborated with the Soviet secret services. The witness was unable to confirm whether the applicant had been involved with the secret services and merely stated that the KGB had been operating undercover.
9. In its judgment of 30 April 2003 the Centru District Court granted the applicant's claims in part. The court found that it had been confirmed that the applicant had been a member of the Communist Party. However, it held that the reference to the applicant's links with the secret services (“confirming the confidence of the AUCP (b) – KGB”) was defamatory as it had not been proved that he was an agent of the KGB. The court's judgment stated, inter alia:
“... S.N.'s assertion that A. Petrenco 'was sent for postgraduate studies' ... only for his 'special accomplishments' for the KGB and 'confirming the confidence of the AUCP (b) – KGB', cannot, in the court's opinion, be interpreted other than as meaning that the applicant had collaborated with the KGB, which is recognised as having been a repressive organisation during the Soviet period. Any such collaboration is seen as highly reprehensible by civil society. Taking into consideration that this fact has not been confirmed, the statements seriously affect the applicant's honour and dignity and cause him non-pecuniary damage and, therefore, should be retracted ...”
10. The court ordered the newspaper to publish a retraction, within 15 days, of some of the statements in the article of 4 April 2002, including the statement “confirming the confidence of the AUCP (b) – KGB”. It further ordered S.N. and the newspaper to pay the applicant 900 Moldovan lei (MDL) (the equivalent of 57 euros (EUR) at the time) and MDL 1,800 (EUR 114) respectively.
11. The court also found in favour of S.N. in a counter-claim in respect of an article allegedly published by the applicant. The applicant appealed the judgment.
12. On 23 December 2003 the Chişinău Court of Appeal quashed the judgment of the Centru District Court on grounds of procedural error and remitted the case for a fresh judgment by the Centru District Court.
13. Pending the re-hearing of the case, on 1 April 2004, Moldova Suverană published an article headed “Moldova Suverană does not tolerate accusations and primitivisms”, which stated, inter alia, that:
“... S.N.'s article of 4 April 2002 ... and the inappropriate language used do not represent the editorial policy of this newspaper. Epithets like 'feeble memory' or 'lack of personal dignity' [sic], 'exorcising priest' used by the scientist [S.]N. towards the scientist Petrenco are alien to us.
Moreover, we recall that the article was published two years ago and since then, the editorial board has changed, starting with its editor at the time, I.G., and continuing with the political department of the newspaper.
Therefore, we regret the disparaging remarks and immoderate language directed at the historian Mr Petrenco, even if we assume our right not to share his political opinions and ideas.”
14. In the subsequent proceedings before the Centru District Court, S.N. stated that during the Soviet era nobody would have been sent to Moscow for postgraduate studies without the support of the Communist Party and the KGB. However, he accepted that not all those sent for postgraduate studies had been KGB agents.
15. On 12 May 2004 the Centru District Court dismissed the applicant's action, finding, inter alia:
“... According to the author of the article, he published it in good faith and had no intention to humiliate or defame his former colleague [Mr Petrenco]. On the contrary, he said in evidence that, in his personal opinion, Mr Petrenco had been a brilliant student and a committed activist, who was well-mannered and respected his elders. The fact that he had become a member of the CPSU was not a secret and did not disclose any intention to defame, because everyone has the right to become a member of a political party ...
... the court finds that both [the author and the applicant] were former colleagues at the history faculty and had published articles in the press without any intention to defame the other.”
16. The applicant appealed.
17. On 28 September 2004 the Chişinău Court of Appeal dismissed the appeal, finding that S.N. could not be held responsible for expressing his opinions. It considered the distinction between statements of fact and value judgments and stated:
“... [the Court of Appeal] considers that the phrases written in the article represent the author's own subjective opinion of Mr Petrenco ...
In a democratic society a person cannot be held responsible for expressing his own views ...
The notion of a 'value judgment' has also to be taken into consideration, which means that a person cannot be held responsible for his opinions or his views on certain events or circumstances ..., the veracity of which cannot be proved.”
18. The applicant lodged an appeal on points of law. He mainly contended that:
“... the said article was published by the newspaper in bad faith and the first-instance court wrongly found that S.N. publishes articles in the press without any intention to defame the applicant. The defendants knowingly published the article with the aim of damaging the applicant's honour, dignity and professional reputation.
... the applicant does not object to the author's right freely to express his views, but he objects to the derogatory remarks in the article, which are not true and, in substance, damage the applicant's honour, dignity and professional reputation.
The courts disregarded the fact that the defendants had disseminated information which was damaging to [the applicant's] honour and did not apply the provisions of sections 7 and 7/1 of the Civil Code...”
19. The applicant attached to his appeal a linguistic report on the author's statements prepared by the National Centre of Terminology of the Department of Interethnic Relationships. The report concluded that S.N. had directly insulted the applicant and that the article had damaged his honour, dignity and professional reputation.
20. On 1 December 2004 the Supreme Court of Justice held that the applicant's appeal was inadmissible as it reiterated the arguments advanced at first instance and before the Court of Appeal. The court nonetheless briefly considered the issues arising in the case and found, inter alia, that:
“... Article 10 of the European Convention on Human Rights and Article 32 of the Moldovan Constitution guarantee the right to freedom of expression, including the right to communicate information and ideas.
Under these circumstances, by dismissing the applicant's action, the courts have correctly found that a distinction must be drawn between facts and 'value judgments'.
As the lower courts found in their judgments in the present case, the author's statements must be treated as 'value judgments', a circumstance which excludes liability on the part of the newspaper Moldova Suverană for the opinion it has expressed on certain events and circumstances, the veracity of which is impossible to prove.
In the light of the above and taking into consideration that the impugned statements are, in substance, 'value judgments' ... the appeal on points of law must be dismissed.”
21. The Court made no comment on the report attached to the appeal.
22. According to the applicant, he was not summoned to attend the hearing before the Supreme Court of Justice.
23. Article 32 of the Constitution guarantees freedom of expression and provides, in so far as relevant, as follows:
“(1) The freedom of expression of all citizens ... is guaranteed.
(2) Freedom of expression must not damage the honour, dignity or rights of others ...
(3) Defamation ... is prohibited by law and incurs sanctions.”
24. The relevant provisions of the Civil Code in force at the material time read:
Article 7 Protection of honour and dignity
“(1) Any natural or legal person shall be entitled to apply to the courts to seek [an order for] the retraction of statements which are damaging to his or her honour and dignity and do not correspond to reality, as well as statements which are not damaging to honour and dignity, but do not correspond to reality.
(2) When the media organisation which disseminated such statements is not capable of proving that they correspond to reality, the court shall compel the publishing office of the media organisation concerned to publish, not later then 15 days after the judicial decision becomes effective, a retraction of the statements in the same column, on the same page or in the same programme or series of broadcasts.”
Article 7/1 Compensation for non-pecuniary damage
“The non-pecuniary damage caused to a person as a result of the dissemination through the mass media or by organisations or natural persons of statements which do not correspond to reality, or statements concerning his or her private or family life without his or her consent, shall give rise to an award of financial compensation in an amount to be determined by the court.
The amount of the award determined by the court in each case shall be equal to between 75 and 200 times the minimum wage if the information has been disseminated by a legal entity and between 10 and 100 times the monthly wage if it has been disseminated by a natural person.
The immediate publication of an apology or retraction ... before a judgment is handed down in the matter constitutes a reason to reduce the value of any compensation or to exempt the party from the requirement to make a payment.”
25. On 12 June 2003 a new Civil Code entered into force, Article 16 of which reads as follows:
“(1) Everyone shall have the right to respect for his or her honour, dignity and professional reputation.
(2) Everyone shall have the right to seek [an order for] the retraction of statements which are damaging to his or her honour, dignity and professional reputation, if the person who disseminated them is unable to prove their truthfulness.
...
(8) Anyone whose honour, dignity or professional reputation has been damaged as a result of disseminated information shall have the right to claim compensation for pecuniary and non-pecuniary damage ...”
26. The relevant provisions of Government decision no. 305 of 17 May 2004 on the launch of the Government newspaper, Moldova Suverană, read as follows:
“(1) The Government newspaper Moldova Suverană shall be launched with effect from 1 July 1994.
The editor of the Government newspaper shall be appointed by a decision of the Government ...”
27. The relevant provisions of Government decision no. 587 of 20 June 2005 on the winding up of Moldova Suverană read as follows:
“With the purpose of fulfilling the State's obligation to prevent and to limit a State monopoly in media ...
(1) The State newspaper Moldova Suverană ... shall be wound up with effect from 1 July 2005 ...”
28. The Code of Civil Procedure of 12 June 2003 set out the procedure before the Supreme Court. Article 440 provides, in so far as relevant, as follows:
“Procedure for the examination of the admissibility of an appeal
(1) Once the court has established the existence of one of the reasons cited in Article 433, a chamber of three judges shall decide, in a non-reasoned and non-appealable judgment, on the admissibility of the appeal. In such cases, a report on the inadmissibility shall be prepared which, together with a copy of the appeal and the judgment, shall be held by the court in the relevant case file.
(2) The admissibility of an appeal is decided without summoning the parties.”
29. Article 442(1) provides that:
“In examining the appeal introduced ... the court shall verify, on the basis of the material in the case, the legality of the decision against which the appeal has been lodged, without taking any new evidence.”
VIOLATED_ARTICLES: 8


ITEMID: 001-91146
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VONTAS AND OTHERS v. GREECE
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicants are the owners of a house and a surrounding plot of land with a surface area of 769 square metres, located on the island of Spetses. The plot is adjacent to the promenade of the Port of Spetses. The title deeds relating to this property, duly deposited in the Land Registry, date back to 1912.
5. In particular, on 11 September 1912 G.P. bought the plot at a public auction conducted by the Registrar of the Spetses Magistrates’ Court. On 5 January 1914 G.P. sold the plot to K.D., who sold it to her daughter F.V. on 8 April 1921. The latter donated a part of the plot to her daughter, the third applicant, on 16 June 1965. On 29 April 1975 F.V. donated the remaining part of the plot to her son, the first applicant. On 9 March 1990 the first applicant granted himself a life interest in the property and settled the remainder on his daughter, the second applicant.
6. All these transactions were executed by deeds of public notaries duly deposited in the transcription registry. The applicants have always declared the property to be in their ownership and have paid the relevant taxes on it.
7. In autumn 1991 the first applicant applied to the Planning Office of the municipality of Spetses for a permit to start minor building works.
8. On 5 September 1991 the municipality of Spetses claimed that the northern part of the land in question constituted land for public use. On 6 July 1992 the Planning Office rejected the first applicant’s request on the ground that the topographical survey submitted by the applicants was inaccurate, as it wrongly included public land among their property.
9. On 24 June and 15 December 1993 the municipality of Spetses and the applicants filed opposing claims with the Piraeus Court of First Instance, each asking to be declared the owners of the disputed piece of land.
10. In 1994 the Piraeus Court of First Instance delivered an interlocutory judgment ordering a number of expert assessments. In particular, the court appointed T.A., a civil engineer, to conduct an expert assessment in order to clarify whether the disputed land was included in the applicants’ title deeds (decision no. 464/1994).
11. On 8 March 2002 T.A. took into consideration the applicants’ title deeds, the planning legislation in force and the official topographical and planning charts of the Planning Office of the Piraeus Prefecture and produced his expert report. After having prepared a topographical survey, he concluded that the disputed land was included in the applicants’ title deeds.
12. On 25 September 2003 the Piraeus Court of First Instance dismissed the applicants’ claims, holding that an area of 220 square metres on the northern side of the applicants’ garden constituted public land (judgment no. 4328/2003). In particular, the Piraeus Court of First Instance took into account several witnesses’ testimonies and aerial photographs and attached particular importance to the fact that the applicants had never exercised any ownership rights over that part of the land, since they had never cultivated it or planted trees or erected a fence there.
13. On 24 November 2003 the applicants appealed to the Piraeus Court of Appeal.
14. On 28 February 2005 the Piraeus Court of Appeal dismissed the applicants’ appeal (judgment no. 213/2005). In particular, it held that according to a rule of Byzantine-Roman law (vetustas), which had been applied in Greece before the introduction of the Civil Code in 1946, a property could be considered to be “for public use” (κοινόχρηστο) if it had been in common use for “an indefinite number of years in human memory” (αμνημονεύτου χρόνου αρχαιότητα). It further explained that, for this rule to be applied, two generations of people, each one spanning forty years had to remember that the disputed land had been in public use in the past. This eighty-year period in human memory must had to have been completed by 23 February 1946, the date on which the Civil Code had come into force, since the Code did not provide for such a rule.
15. Subsequently, the Piraeus Court of Appeal applied the above rule and found that it was proved from the testimonies of the witnesses put forward by the municipality of Spetses that the disputed land had been freely used by local people from 1866 to 1946 and had thus become public. It concluded that, independently of the question whether the disputed land was included in the applicants’ title deeds, it had become land “for public use”, and thus part of the municipality’s property. Furthermore, it considered that the fact that the land in issue did not appear as public property in the official planning charts of the island of Spetses was of no importance since the land had become public because of its public use.
16. On 14 June 2005 the applicants appealed to the Court of Cassation.
17. On 15 February 2006 the Court of Cassation dismissed the appeal. It held that the Piraeus Court of Appeal had correctly applied Byzantine-Roman law to the facts of the case. It accepted that it had been proved that the disputed land had been in common use since 1866 and concluded that the applicants had never become its owners (judgment no. 299/2006). Its judgment was “finalised” (καθαρoγραφή) on 12 April 2006.


ITEMID: 001-82290
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF NOWAK v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1971 and lives in Brzeg.
5. On 21 May 1999 the Brzeg District Court (Sąd Rejonowy) issued a “wanted” notice in respect of the applicant and several other men in connection with an investigation into allegations made by six women, some of whom were minors, that a group of several men had raped them, threatened them, beaten them and forced them to take drugs. The warrant for arrest was issued after the prosecution service had established that the applicant had gone into hiding and the police had unsuccessfully attempted to arrest him.
6. On 21 July 1999 the police attempted to arrest the applicant. However he managed to escape trying in the process to run over police officers while driving away. Two other men sought under the arrest warrant issued in connection with the same investigation were apprehended and arrested.
7. On 9 August 1999 the applicant was arrested by the police. At the time of arrest he was in possession of a firearm and a forged identification document. On 13 August 1999 the Opole District Court ordered that the applicant be remanded in custody in view of the reasonable suspicion that he had committed the following offences: repeated group rape with aggravated cruelty while acting in an organised criminal gang; leading an organised gang; supplying minor victims with drugs; forging an identification document; and destroying a police car. The court also found that, given that he had absconded in the past, there was a risk that the applicant might go into hiding again and try to influence the victims.
8. The applicant appealed against the decision ordering his detention on remand but his appeal was dismissed on 3 September 1999 by the Opole Regional Court (Sąd Okręgowy).
9. On 18 October 1999 the Opole Regional Court prolonged the applicant's detention relying on the reasonable suspicion of his having committed the offences and on the complexity of the investigation which had not yet been terminated by the prosecutor.
10. On 13 December 1999 the court decided that the applicant's detention should be prolonged. It considered that, in addition to the strong suspicion against the applicant, the severity of the sentence that might be imposed and the risk of his tampering with evidence and influencing witnesses justified holding him in custody. In addition, the court relied on the risk that, given that he had absconded in the past, he might go into hiding again. The court also observed that only detention on remand would secure the applicant's appearance at the trial.
11. On 16 December 1999 the applicant was indicted before the Opole Regional Court. It appears that the first hearing was held on 26 April 2000. In 2000 the trial court held in total 13 hearings.
12. Subsequently, the applicant's detention was prolonged by decisions of 12 June and 13 November 2000 and 15 May 2001. The decisions were based on the reasons given for his detention on previous occasions.
13. Afterwards, as the length of the applicant's detention had reached the statutory timelimit of 2 years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego), the Regional Court applied to the Wrocław Court of Appeal (Sąd Apelacyjny) asking for the applicant's detention to be prolonged beyond that term. On 28 June 2001 the Wrocław Court of Appeal allowed the application and prolonged his pretrial detention. The Court of Appeal based its decision on the reasonable suspicion that the applicant had committed serious offences and on the risk that he might interfere with the course of justice. The court further considered that the complexity of the case constituted a special circumstance justifying his remaining in custody.
14. On 7 November 2001 the Wrocław Court of Appeal again decided to prolong the pre-trial detention of the applicant, finding that the initial reasons for the detention were still valid. Furthermore, the court examined the course of the proceedings before the Opole Regional Court and agreed that the case was particularly complex and time-consuming, given the number of accused and the considerable amount of evidence which had to be examined. It considered that the trial court had acted diligently as it had taken evidence from nineteen witnesses during the last seven hearings.
15. On 13 February 2002 the Court of Appeal prolonged the applicant's detention until 15 May 2002
16. Nevertheless, the trial court again applied to prolong the applicant's detention. On 8 May 2002 the Court of Appeal granted the application. However, it criticised the Regional Court for the delay in the case and requested the trial court “to take adequate and more intensive action to finish the trial”. The court further took into account that the accused were partly responsible for the length of the proceedings because they had lodged vexatious applications for new evidence to be heard and had not complied with time-limits for filing new submissions.
17. The applicant's numerous applications for release and appeals against decisions prolonging his detention were to no avail.
18. The Opole Regional Court held 23 hearings in 2001 and 21 hearings in 2002. On 31 July 2002 the Opole Regional Court gave a judgment in which it found the applicant guilty of several counts of repeated group rape with aggravated cruelty and false imprisonment committed while acting in an organised criminal gang. The applicant was also convicted of administering an unknown psychotropic substance to some of the victims and use of a forged identity document. The court acquitted the applicant of being the leader of the organised criminal gang. The applicant was sentenced to 11 years' imprisonment. The applicant and other coaccused appealed.
19. On 2 June 2003 the Wrocław Court of Appeal gave a judgment. It amended the first-instance judgment with respect to the applicant reducing his prison sentence to 10 years and 8 months. The applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy).
20. On 11 March 2005 the Supreme Court dismissed the cassation appeal as manifestly ill-founded.
21. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, socalled “preventive measures” (środki zapobiegawcze) are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3