ITEMID: 001-95799
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF IEREMEIOV v. ROMANIA (No. 2)
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 10;Non-pecuniary damage - award
JUDGES: Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicant was born in 1967 and lives in Timişoara.
6. At the material time he was a journalist at the newspaper Ziua de Vest in Timişoara.
7. On 23 June 2000, following the local elections, the newspaper Ziua de Vest published an article by the applicant accusing A.V.I., the newly elected mayor of Buziaş, of having collaborated with the Securitate (the intelligence service during the communist period). The article, featured on the third page of the newspaper, was announced on the front page by the headline: “Mayor with file” (Primar cu dosar).
8. The relevant parts of the article read as follows:
“Citizens' safety above State security
The newly elected mayor, [A.V.I.], is suspected of having collaborated with the Securitate
The first scandal concerning the Securitate files is about to burst in the town of Buziaş. The elected mayor, [A.V.I.] is suspected by some citizens – whose names will not be made public for obvious reasons – of having collaborated with the Securitate. Based on information from inside the Romanian Secret Service, our sources said that [A.V.I.] was under surveillance until 1989 as an irredentist chauvinist, which made it impossible for him to obtain a history teaching post in Buziaş... During the same period [A.V.I.] was allegedly persuaded to collaborate with the Securitate, and a file allegedly exists on this matter...
Before the local elections, [A.V.I.] lodged a written statement with the Electoral Bureau... declaring that he had not been part of the former Securitate. He informed us yesterday that what he had written in that statement was true and that he had never collaborated in any way with the secret police before 1990.”
9. On 21 August 2000 A.V.I. lodged a criminal complaint for insult and defamation against the applicant with Timişoara District Court. His complaint also included the company which published the newspaper.
10. The District Court heard testimonies from two witnesses who confirmed that they had told the applicant about the rumours concerning the victim's collaboration with the Securitate.
11. On 31 October 2000 the applicant gave a statement to the court. He pleaded not guilty and relied in his defence on the right to freedom of expression and the right to provide information about public figures.
12. On 20 February 2001 the District Court gave judgment in the case. It considered that the applicant had not committed defamation, as he had not referred to any specific offences allegedly committed by the victim. It found that the expressions used by the applicant, including the headline on the front page, were manifestly insulting to the victim. However, the District Court noted that the applicant had not described any of the rumours as fact and that he had also presented the victim's point of view in the article.
It further considered that a certain degree of aggressiveness was common in journalism and that therefore, although the facts met the legal criteria to constitute the and their consequences were not severe enough to come within the sphere of criminal law.
The District Court acquitted the applicant of both defamation and insult and imposed an administrative fine of 500,000 Romanian lei (ROL). The court also found that the conditions had been met for the applicant's civil liability and that of the company publishing the newspaper, in respect of the prejudice caused to the victim. It thus ordered the applicant and the company to pay ROL 3,000,000 to A.V.I. as compensation for non-pecuniary damage. Lastly, the applicant was ordered to pay ROL 350,000 to the State in court fees.
13. All parties appealed. The victim contested the acquittal and sought to have the amount of damages increased. The company publishing the newspaper argued that the prejudice had not been proven by the victim. The applicant claimed that the legal requirements had not been fulfilled either for the existence of the offence of defamation or for the existence of insult.
14. On 27 April 2001 the parties' representatives presented the grounds for appeal orally before Timiş County Court. The applicant was invited to speak only before the end of the hearing (ultimul cuvânt al inculpatului). In his address he requested that A.V.I.'s appeal be dismissed.
15. The final decision was adopted on the same day. The County Court allowed the appeal lodged by A.V.I. It acquiesced in the statement of facts established by the District Court but considered that the first-instance court had failed to interpret them correctly. It found that the expressions used by the applicant, in particular, “the mayor is suspected of having collaborated with the Securitate”, “was allegedly persuaded to collaborate with the Securitate, and a file allegedly exists on this matter” and “was under surveillance as an irredentist chauvinist”, were manifestly defamatory and, if true, would expose the victim to public opprobrium at the least. It considered that the applicant's intention to denigrate was proved and that he was not therefore covered by the Constitution and the Convention, which guaranteed the right to freedom of expression only when it was exercised in good faith. However, for and their consequences were not severe enough to come within the sphere of criminal law. It therefore acquitted the applicant on both accounts and imposed on him an administrative fine of ROL 1,000,000.
16. The court also considered that the prejudice incurred by the victim had not been correctly evaluated by the District Court and increased the amount to be paid by the applicant and the newspaper company to ROL 20,000,000. It awarded A.V.I. ROL 5,000,000 for costs, to be paid jointly by the applicant and the company. Lastly, the court ordered the applicant to pay ROL 500,000 to the State for court fees.
17. On 3 October 2001 the applicant paid the administrative fine.
18. The relevant provisions of the Civil and Criminal Codes concerning insult and defamation and liability for paying damages in force at the material time are described in Barb v. Romania, no. 5945/03, §§ 19-20, 7 October 2008.
19. The Criminal Code has been amended repeatedly and in 2006 the Articles on insult and defamation were repealed (for details, see Cuc Pascu v. Romania, no. 36157/02, §§ 12-14, 16 September 2008).
20. However, in decision no. 62 of 18 January 2007 the Constitutional Court declared unconstitutional the removal from the Criminal Code of the Articles concerning insult and defamation.
21. Law no. 356/2006 amended the Criminal Code and made it mandatory for an appeal court to hear the accused where the first-instance court had acquitted him or her. Currently, where an appeal court quashes a judgment given by a first-instance court, it must decide on the evidence to be adduced and set a date on which it will take statements from the accused if the latter was not heard or if he or she was acquitted by the first-instance court (Articles 38514 § 11 and 38516, as amended).
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70235
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: C. B. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, C.B., is a British national who was born in 1994 and lives in Frome. She is represented before the Court by FDC Solicitors, practising in Frome.
The applicant was born on 9 December 1994.
On 31 November 1995, the applicant was assaulted by her mother’s boyfriend. She suffered severe injury – left hemiplegia, blindness and severe mental impairment. She required full time care provided by her grandparents who were appointed her legal guardians.
On 16 October 1997, the applicant’s grandparents made an application on her behalf to the Criminal Injuries Compensation Authority ("CICA"). They instructed solicitors to present her claims to the Authority. The solicitors obtained inter alia medical reports and reports as to her future needs (care, accommodation, transport, holiday etc). The fees exceeded GBP 35,000. Pursuant to the Criminal Injuries Compensation Scheme 1995, costs of representation in pursuing a claim were not recoverable (paragraph 18).
By letter dated 20 November 2002, CICA informed the applicant that they were minded to make an interim award of GBP 320,000. The applicant’s solicitors responded by insisting that they issue a final award.
By letter dated 28 February 2003, CICA informed the applicant that they had made a final award of GBP 406,246. They rejected the large claim for future costs once she became an adult on the basis that these would be largely met by the local authority.
In June 2003, CICA informed the applicant that they had reviewed the award and would increase it to the statutory maximum of GBP 500,000. The applicant’s solicitors and CICA have been in subsequent negotiation concerning the type of trust that should be set up to administer the fund. Apparently the money has yet to be transferred.
Meanwhile, in August 2002 an action was taken on her behalf challenging the compatibility of paragraph 18 of the Scheme with Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1.
On 22 May 2003, the High Court rejected the applicant’s claims. Mr Justice Mitting noted:
"It has never been in doubt that her claim is well-founded and cannot be subject to any reduction on the grounds of her conduct or character. The only issue for the Authority to decide has been the amount of compensation which should be awarded to her. On any view it was always going to be substantial."
He found that the obligation for an applicant to make out his case did not require him to obtain at his own expense all the professional reports necessary to prove the nature and extent of his injuries and their impact upon his life and the cost of alleviating it. Once he had demonstrated significant injury and that cost would be incurred in alleviating it, the burden of investigating both elements fell on the Authority. Under paragraph 18, the Authority were, however, under no obligation to reimburse costs of representation, including drafting and submitting the application, advising on the application, negotiating with the Authority and responding to the Authority’s queries. Although a well-founded claim to compensation under the Scheme was acknowledged by all parties to be a "civil right" under Article 6, he did not consider that the requirement under the scheme for applicants, who chose to obtain legal representation to assist in their claims, to bear those costs either restricted their ability to apply to the Authority or deprived them of a fair determination of their claim. He rejected the claim of the discriminatory effect on the applicant’s pecuniary rights due to her position as a severely handicapped child, considering that the applicant was in the same situation as anyone with a complex claim who would be likely to want to seek some professional legal advice. Further the applicant’s grandparents could make any decisions which an adult could make.
On 11 February 2004, after a hearing, the Court of Appeal rejected the applicant’s appeal. It noted that meanwhile the Authority had accepted that they should pay for various medical and expert reports and commented strongly on the delay in making a final award, where the severity of her injuries plainly fell in the highest tariff category. It seemed to have been principally because of the Authority’s dilatoriness that the applicant’s solicitors became engaged in establishing each element of her claim and bespoke specialists’ reports and counsel’s advice in order to do so.
Lord Justice Sedley noted that the parties agreed that Article 6 applied to the scheme but considered that as the scheme had operated in this case no violation of the applicant’s rights arose:
"... ought the Scheme, in order to comply with C.’s Article 6 § 1 right to a fair hearing provide for the reimbursement of her solicitor’s full bill of costs? This now exceeds GBP 28,500; it covers a wide range of inquiries and the fees of leading and junior counsel. C. has never faced the prospect of being unable to pay these costs, and because of the willingness of her solicitors to defer payment her lack of funds and that of her grandparents has not impeded her access to the CICA. I am less impressed by Mr Crow’s argument (though it found favour with Mitting J) that, so long as she has competent adults to act for her, C. is at no disadvantage at all. Given the unnecessarily complex course taken by the CICA, the grandparents were as much in need of advice and representation as C. was.
But C.’s situation, even so, is not analogous with Mrs Airey’s, nor with that of an impecunious claimant needing to establish a primary entitlement. Her situation is that of a person whose right of access to the CICA is recognised and effective (though impeded by prevarication) but whose carers, very reasonably, want to ensure that the award she obtains is as full as it should be. To that end they have committed a part of the eventual fund to obtaining representation. It is the intent of the Scheme that where this happens it is not to be at the CICA’s expense. That the Scheme could have provided otherwise is clear; but it does not follow that it was bound to provide otherwise in order to give effect to C.’s Convention right ...
In my judgment it has not been shown that the Scheme invades C.’s human rights in this regard. It diminishes her award by the cost of her representation; but while many people would regard this as unfair, it does not deprive her of the possibility of a fair hearing within the meaning of Article 6 § 1..."
On 26 July 2004, written confirmation was received that the House of Lords refused leave to appeal finding no arguable point of law of general public importance.
Compensation for persons who suffered criminal injuries was provided for originally by an exercise of the Royal Prerogative. The modern statutory scheme was set up under the Criminal Injuries Compensation Act 1995.
Under section 1(1), it is provided that:
“The Secretary of State shall make arrangements for the payment of compensation to, or in respect of, persons who have sustained one or more criminal injuries.”
At the relevant time, the Criminal Injuries Compensation Scheme 1995 laid out the applicable rules.
Paragraph 18:
"It will be for the applicant to make out his case ... Where an applicant is represented, the costs of representation will not be met by the Authority."
Paragraph 20:
“Where a claims officer considers that an examination of the injury is required before a decision can be reached, the Authority will make arrangements for such an examination by a duly qualified medical practitioner. Reasonable expenses incurred by the applicant in that connection will be met by the Authority.”
Section 6(1) provides:
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
Section 8 provides:
“(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy or make such order, within its powers, as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.”


ITEMID: 001-100517
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF KONENKOVA and other "Privileged pensioners" v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou
TEXT: 4. The applicants are pensioners who live in the Moscow Region. Before retirement, they used to work in hazardous industries. They had a dispute with a pension authority about the scope of their privileged pensions and appealed to the Region’s town courts.
5. In 2006 the courts held for the applicants and ordered the pension authority to recalculate the pensions. The courts based their findings on the Law on Labour Pensions. These judgments became binding and were executed.
6. On the pension authority’s request, in 2008 the town courts quashed their judgments due to discovery of new circumstances. The courts found, in particular, that the judgments had ignored the interpretation of the Law on Labour Pensions given by the Supreme Court in December 2005 and March 2007.
7. The applicants’ cases were remitted for a rehearing and eventually dismissed.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80962
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SERGEY ZOLOTUKHIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of P7-4;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1966 and lives in Voronezh.
7. On 4 January 2002 the applicant was arrested for having brought his girlfriend into the military compound without authorisation. At 9.45 a.m. he was taken to police station no. 9 of the Department of the Interior of the Leninskiy District of Voronezh-45 (the “police station”).
8. According to reports by Captain S. and Lieutenant-Colonel N., the applicant was drunk, behaved insolently and verbally abused police officers using obscene language. He ignored the rebukes and warnings issued to him. After he attempted to escape, the officers handcuffed him.
9. Major K., the officer in charge of the police station, drew up an administrative offences report, noting that the applicant had committed offences under Articles 158 (“Minor disorderly acts”) and 165 (“Persistent refusal to comply with lawful police orders”) of the RSFSR Code of Administrative Offences. The report was then submitted to the court.
10. On the same day the Gribanovskiy District Court found the applicant guilty of an offence under Article 158 of the Code of Administrative Offences and sentenced him to three days’ administrative detention. The judgment was not amenable to appeal and took immediate effect.
11. On 23 January 2002 criminal case no. 81 was opened against the applicant on suspicion of his having committed disorderly acts, an offence under Article 213 § 2 (b) of the Criminal Code, on 4 January 2002 at the police station. The investigation was assigned to Major V.
12. On 24 January 2002 Major K. ordered the applicant’s detention on remand for “disorderly acts, including resisting a public official dealing with a breach of public order”.
13. On 1 February 2002 two further cases (nos. 82 and 83) were opened against the applicant. In case no. 82 he was suspected of a violent sexual assault against minors. In case no. 83 the applicant was charged with the theft of a tape recorder.
14. On 6 February 2002 all three cases were joined under the number 81 and assigned to Major V.
15. On 26 February 2002 the joined case file was transferred to an investigator with the Voronezh town prosecutor’s office.
16. On 5 April 2002 the applicant was formally indicted on all the above charges. His actions on 4 January 2002 were additionally characterised as threatening violence against a public official (Article 318 § 1 of the Criminal Code) and insulting a public official (Article 319).
17. On 2 December 2002 the Gribanovskiy District Court delivered its judgment. It found the applicant guilty of aggravated rape of minors, relying on statements by two victims, the victims’ mother (the victims were sisters), the applicant’s wife and the applicant’s girlfriend, and on the results of a forensic examination of the victims.
18. The District Court acquitted the applicant of the offence under Article 213 § 2 for the following reasons:
“On the morning of 4 January 2002 in ... police station no. 9 [the applicant], in an inebriated state, swore at ... Ms Y. and Mr S., threatening to kill the latter. He refused to comply with a lawful request by Captain S. ..., behaved aggressively, pushed S. away and attempted to leave. Having examined the evidence produced at the trial, the court considers that [the applicant’s] guilt has not been established. On 4 January 2002 [the applicant] was subjected to three days’ administrative detention for the same actions [characterised] under Articles 158 and 165 of the Code of Administrative Offences. No appeal was lodged against the judicial decision, nor was it quashed. The court considers that there is no indication of a criminal offence under Article 213 § 2 (c) in the defendant’s actions and acquits him of this charge.”
19. The District Court further found the applicant guilty of insulting a State official under Article 319 of the Criminal Code. It established that the applicant had sworn at Major K. and threatened him while the latter had been drafting the report on the administrative offence under Articles 158 and 165 in his office at the police station. Major K.’s statements to that effect were corroborated by depositions from Captain S., LieutenantColonel N. and Ms Y., who had also been present in K.’s office.
20. Finally, the District Court pronounced the applicant guilty of threatening violence against a public official under Article 318 § 1 of the Criminal Code. On the basis of the statements by Major K., LieutenantColonel N. and the applicant’s girlfriend it found that, after the administrative offence report had been finalised, the applicant and his girlfriend had been taken by car to the Gribanovskiy district police station. In the car the applicant had continued to swear at Major K. He had also spat at him and said that, once released, he would kill him and abscond. Major K. had perceived the threat as a real one because the applicant had a history of abusive and violent behaviour.
21. The applicant was sentenced to five years and six months’ imprisonment in a correctional colony and to mandatory treatment for alcohol addiction.
22. On 15 April 2003 the Voronezh Regional Court upheld the judgment in its entirety on the applicant’s appeal.
23. The relevant provisions of the RSFSR Code of Administrative Offences of 20 June 1984 (in force at the material time) read as follows:
“Minor disorderly acts, that is, utterance of obscenities in public places, offensive behaviour towards others and other similar acts that breach the public order and peace, shall be punishable by a fine of between ten and fifteen months’ minimum wages or by one to two months’ correctional work combined with the withholding of twenty percent of the offender’s wages, or – if, in offender’s character, these measures are not deemed to be adequate – by up to fifteen days’ administrative detention.”
“Persistent refusal to comply with a lawful order or a request by a police officer ... shall be punishable by a fine of between ten and fifteen months’ minimum wages ... or by one to two months’ correctional work combined with the withholding of twenty percent of the offender’s wages, or – if, in offender’s character, these measures are not deemed to be adequate – by up to fifteen days’ administrative detention.”
24. The relevant provisions of the Criminal Code of the Russian Federation (version in force at the material time) read as follows:
“1. Disorderly acts, that is, serious breaches of the public order or flagrant displays of disrespect to the community, combined with the use of violence towards individuals or a threat to use violence or to destroy or damage the property of others, shall be punishable ... by up to two years’ deprivation of liberty.
2. The same acts, if committed:
...
(b) [“б” in the original] while resisting a public official or another person fulfilling his or her duty to maintain the public order or dealing with a breach of the public order;
(c) [“в” in the original] by a person with a previous conviction for disorderly acts,
– shall be punishable by between 180 and 240 hours’ mandatory work or by one to two years’ correctional work or up to five years’ deprivation of liberty.”
“1. The use of violence not endangering life or health, or a threat to use such violence, against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of between 200 to 500 months’ minimum wages ... or by three to six months’ detention or up to five years’ deprivation of liberty...”
“Publicly insulting a public official in the performance of his or her duties or in connection with the performance thereof shall be punishable by a fine of between 50 and 100 months’ minimum wages, ... 120 to 180 hours’ mandatory work or six months to a year’s correctional work.”


ITEMID: 001-57845
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF ISTITUTO DI VIGILANZA v. ITALY
IMPORTANCE: 2
CONCLUSION: Preliminary objection allowed (out of time)
JUDGES: C. Russo;N. Valticos
TEXT: 7. Istituto di Vigilanza is a security firm whose headquarters are in Turin.
On 26 October 1978 Mrs Figus Milone, a former employee, brought proceedings against it in the Turin magistrate’s court (pretore) for unfair dismissal.
8. At the first hearing, on 28 November 1978, the magistrate raised of his own motion the question whether certain legislative provisions were compatible with the constitutional principle of equality between men and women in the field of employment. On 19 December 1978 he stayed the proceedings pending the decision of the Constitutional Court (Article 295 of the Code of Civil Procedure).
The Constitutional Court gave judgment on 16 January 1987; the text of its judgment was filed at the registry on 22 January.
9. The plaintiff resumed the proceedings on 16 February 1987 and they ended on 28 May with a friendly settlement.


ITEMID: 001-104807
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: KOLU v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: The applicants, Mr Eero Martti Ensio Kolu and Alli Heleena Kolu, are Finnish nationals who were born in 1945 and 1947 respectively and live in Nukari.
The applicants own real estate which is burdened by a servitude (a road crossing it) (tierasite, vägservitut). They wanted to have the road transferred to the neighbouring estate and initiated administrative proceedings to that effect. On 20 November 2007 their application was rejected by the District Survey Office (maanmittaustoimisto, lantmäteribyrå).
By letter dated 19 December 2007 the applicants appealed to the Land Court (maaoikeus, jorddomstolen), requesting that the decision of the District Survey Office be quashed and the road transferred to the neighbouring estate.
On 5 September 2008 the Land Court rejected their appeal. It found, inter alia, that the servitude had already been confirmed by the Supreme Court in 2000 and that the situation had not considerably changed since then. As the nuisance caused to the applicants was modest, there was no reason to transfer the road elsewhere. One of the lay judges gave a dissenting opinion.
By letter dated 3 November 2008 the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Land Court.
On 16 March 2009 the Supreme Court refused the applicants leave to appeal.
By letter dated 18 June 2009 the applicants lodged an application for the reopening of the case (tuomion purku, återbrytande) with the Supreme Court. They claimed that the earlier judgment and decisions were manifestly based on a misapplication of the law.
On 1 April 2010 the Supreme Court refused the request. It found that the applicants had not given any grounds on the basis of which the Land Court judgment or the Supreme Court decision could be reversed.
According to Chapter 31, section 7, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken, Act no. 4/1734, as amended by Act no. 109/1960):
“A final judgment in a civil case may be reversed:
(1) if a member or official of the court or a representative or counsel of a party has, in connection with the case, been guilty of criminal conduct that may be assumed to have influenced the result of the case;
(2) if a document that has been used as evidence was false or its contents did not accord with the truth and the person who presented the document was aware of the same, or if a party heard under affirmation or a witness or expert witness has deliberately given a false statement and it may be assumed that the document or the statement has influenced the result;
(3) if reference is made to a circumstance or piece of evidence that has not been presented earlier, and its presentation would probably have led to a different result; or
(4) if the judgment is manifestly based on a misapplication of the law.
A judgment shall not be reversed on the grounds referred to in subsection (3), unless the party can establish a probability that he or she could not have referred to the fact or piece of evidence in the court that passed the judgment or on appeal, or that he or she has had another justified reason not to do so.”
A request for the reversal of a judgment in a civil case shall be made within one year of the date on which the requester became aware of the circumstance upon which the request is based. If the request in a civil case is based on the circumstance referred to in section 7, subsection (4), the period shall be calculated from when the judgment became final. A request for the reversal of a final judgment shall be filed with the Supreme Court.


ITEMID: 001-105715
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF UJ v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1969 and lives in Budaörs.
6. On 2 January 2008 the applicant, a journalist, published an article in a column entitled “Opinion” of a national daily paper. The subject of the article was the quality of a well-known Hungarian wine variety, a product of T. Zrt, a State-owned corporation, which was, in the applicant’s view, bad and its popularity with Hungarian consumers unjustified. The article contained the following passage:
“On nine out of ten occasions, it is a product of T. Zrt, available below 1,000 [Hungarian forints] per bottle, that represents the world’s best wine region, the Hungarian National Pride and Treasure... [and that could make me cry]. Not only because of the taste – although that alone would easily be enough for an abundant cry: sour, blunt and over-oxidised stuff, bad-quality ingredients collected from all kinds of leftovers, grey mould plus a bit of sugar from Szerencs, musty barrel – but because we are still there ...: hundreds of thousands of Hungarians drink [this] shit with pride, even devotion... our long-suffering people are made to eat (drink) it and pay for it at least twice ([because we are talking about a] State-owned company); it is being explained diligently, using the most jerk-like demagogy from both left and right, that this is national treasure, this is how it is supposed to be made, out of the money of all of us, and this is very, very good, and we even need to be happy about it with a solemn face. This is how the inhabitants (subjects) of the country are being humiliated by the skunk regime through half a litre of alcoholised drink.
And once again, I would remind everybody of how people were whining back then, saying that foreigners were coming to destroy [T.], buy up the market and make everything multinational and alien-hearted; and then it turned out that those foreigners made gorgeous wine, just like some lucky, resolute and very talented Hungarian family wineries, that they tried to make [T.] world-famous again, because this was their business interest (profit, ugh!); while we as a community are trying to destroy their achievements using State money, lest something finally could be a success. ...”
7. T. Zrt filed a criminal complaint against the applicant. On 2 June 2009 the Budapest II/III District Court convicted him of defamation (rágalmazás). The court held that the criticism expressed in the applicant’s article went beyond the boundaries of journalistic opinion and amounted to stating a fact susceptible of harming the reputation of the producer of the wine variety in question. The court refrained from imposing a sentence for a probationary period of one year.
8. On appeal, on 5 November 2009 the Budapest Regional Court reversed this judgment, holding that the incriminated statement was a value judgment and that therefore the applicant was to be convicted for libel (becsületsértés) under section 180(1)b of the Criminal Code. The court held that although the applicant was entitled to express his opinion about the wine in question, by characterising it as “shit” – an expression unduly insulting – he had infringed the producer’s right to a good reputation. The court reduced the sanction to a reprimand.
9. On 10 May 2010 the Supreme Court upheld the applicant’s conviction and sentence.
VIOLATED_ARTICLES: 10


ITEMID: 001-24038
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: GRISHCHENKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Ms Lyudmila Leonidovna Grishchenko, is a Russian national, who was born in 1959 and lives in Cherkessk in the Karachayevo-Cherkessia Republic. She is represented before the Court by Mr R. Sarkitov, a lawyer practising in Cherkessk. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 June 1992 the applicant obtained a special-purpose settlement order (целевой расчетный чек). By its terms the Government undertook to give her a Russian-made VAZ passenger car within four months.
As no cars were available, the applicant was placed on the waiting list under no. 177. She renewed her request on several occasions, but it could not be granted for want of cars.
On 5 May 1998 the Convention entered into force in respect of Russia.
In January 1999 the applicant was offered a Moskvich car or compensation of RUR 60,500. She turned the offer down because a Moskvich was cheaper than a VAZ and the compensation was inadequate.
On 8 February 2000 the applicant brought a civil action against the Russian Government. She sought to be granted a VAZ car or to recover the market value thereof.
On 26 February 2001 the Cherkesskiy District Court (Черкесский районный суд КЧР) allowed the applicant’s claim and awarded her RUR 77,206 (EUR 2,700) for the value of the car and RUR 3,000 (EUR 115) in court fees.
Unhappy about the amount of the award, the applicant appealed against the judgment. She submitted, in particular, that the court assessed the value of the car on the basis of the amount agreed between the car manufacturer and the federal government, whereas the car price at her local dealership was at least RUR 20,000 higher.
On 3 April 2001 the Supreme Court of the Karachayevo-Cherkessia Republic upheld the judgment of 26 February 2001.
On 24 April 2001 the applicant obtained a writ of execution and forwarded it to the Ministry of Finance of the Russian Federation. According to the Government, on an unspecified date the writ was returned to the applicant as the debtor’s name was indicated incorrectly.
On 27 February 2002 the applicant resubmitted the writ, together with copies of the necessary documents. On 28 March 2002 its receipt was acknowledged.
On 23 May 2002 the Russian Treasury enforced the judgment and credited RUR 80,206 to the applicant’s bank account.
The Federal Law “On State commodity bonds” (no. 86-FZ of 1 June 1995, ФЗ «О государственных долговых товарных обязательствах») provided that the State commodity bonds, including special-purpose settlement orders, were to be recognised as the State internal debt (section 1). They were to be enforced in accordance with the general principles of the Russian Civil Code (section 2). The relevant parts of section 3 read as follows:
“The Government of the Russian Federation shall draft the State Programme for the redemption of the State internal debt... The Programme shall provide for the terms of redemption of State commodity bonds that would be convenient for citizens, including, of their choice: provision of goods indicated in... special-purpose bonds for the purchase of passenger cars...; redemption of State commodity bonds at consumer prices prevailing at the moment of the redemption...”
On 2 June 2000, section 3 of the law was amended to read, in the relevant parts, as follows:
“To establish that the repayment of the State internal debt of the Russian Federation under State commodity bonds... is carried out in 2001-2004 in accordance with the State Programme...
To set, in the above-mentioned Programme, the following sequence and terms of redemption of State commodity bonds, depending on the type of the bond:
...in respect of bearers of special-purpose settlement orders that gave the right to purchase passenger cars in 1991 and 1992 – payment of monetary compensation equal to the value of the car described in the order, as determined in co-ordination with car manufacturers at the moment of redemption. The redemption period runs from 1 January 2001 to 31 December 2002.”
According to the Protocol on co-ordination of market sale prices for VAZ cars signed by the Deputy Ministers of Industry, Finance and Economic Development and the executive director of the AvtoVAZ car plant, the price of a VAZ-2107 car was 77,206 Russian roubles during the period between 1 January and 31 March 2001.
On 27 December 2000 the Government approved, by Resolution no. 1006, the State Programme for the redemption of the State internal debt of the Russian Federation arising from State commodity bonds in the period of 2001-2004. Paragraph 2 of the Programme set out that the State commodity bonds were to be redeemed by way of payment of pecuniary compensation.


ITEMID: 001-113291
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KNECHT v. ROMANIA
IMPORTANCE: 3
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 7. The applicant was born in 1967. After numerous previous failed attempts, the applicant became the mother of a child, conceived as the result of an in vitro fertilisation (IVF) procedure with donated gametes. The procedure was performed in S. Medical Centre in Bucharest; and produced nineteen embryos, three of which were implanted on 8 June 2008.
The remaining sixteen embryos obtained on the same occasion were frozen until the applicant was considered fit by her physician to undergo another pregnancy. A protocol was concluded between the applicant and S., in which the applicant acknowledged that she had been informed that in 15-20% of cases, after thawing, the embryos proved not to be viable, and that if that were the case the embryo transfer would be impossible.
8. According to a document issued by the National Transplant Agency (“the NTA”), on 15 July 2009 the S. Medical Centre was authorised to function as a bank for genetic material. However, the circumstances in which that document was issued are currently under the scrutiny of the domestic criminal court, in view also of the fact that it was the Ministry of Public Health, and not the NTA, which had exclusive competence to give such authorisations.
9. On 24 July 2009, the Directorate for the Investigation of Organised Crime and Terrorism attached to the Prosecutor General’s Office (DIICOT) closed the S. Medical Centre, seized all the genetic material found there and deposited it at the Mina Minovici Institute of Forensic Medicine (IFM). This decision was not contested before the courts.
10. On 25 August 2009, the applicant wrote to DIICOT in her capacity as “owner of the sixteen embryos”, expressing concerns as to the state of her frozen embryos and asking to be informed of the practical procedure to be followed in order to urgently retrieve her embryos.
11. On 7 September 2009, the applicant was informed by DIICOT that it was not aware of any technical means of identifying the embryos in question, given that an inventory was still being made of all the material seized and no document relating to the applicant’s embryos had been identified.
In any event, in order to be able to retrieve her genetic material from the Institute, the applicant was advised to appoint a doctor specialising in embryology, who would then contact the IFM for that purpose.
12. In attempts to find an embryologist the applicant addressed her request to the Ministry of Health, the Embryologists’ Association and the National Doctors’ Association.
In its reply, the Ministry of Health gave the applicant a list of the medical institutions accredited as banks for genetic material, by virtue of ministerial Order no. 1225 of 1 July 2008; the S. Medical Centre and the IFM were not mentioned in the list. The Ministry also informed the applicant that it could not intervene in any way in the contractual relationship between her and S., assuming that such a contract existed and included specific provisions as to who could retrieve the embryos and under what circumstances. Referring to the letter of 7 September 2009 from DIICOT, the Ministry suggested that the applicant should contact S. and, on the basis of the contract she had concluded with the clinic, ask for support in identifying and retrieving her embryos.
The Embryologists’ Association replied to the applicant on 12 October 2009, informing her that an embryo transfer could be performed only by a specialist in assisted reproduction, and that such transfers could not be carried out until the relevant embryos had been properly identified.
13. The applicant finally contacted two doctors from the P. Clinic in Sibiu (300 km from Bucharest). On 2 November 2009, in accordance with the legal requirements, the P. Clinic requested the authority of the NTA to perform the retrieval, but received no answer. The request was reiterated on 29 January 2010; on 1 February the NTA informed the P. Clinic that it could not grant the requested authority, since such authority could only be given in respect of a tissue and cell bank accredited by the NTA, which the IFM was not.
14. On 10 February 2010, DIICOT informed the applicant that the NTA’s refusal was not binding on DIICOT; the IFM had been appointed as the legal custodian of the genetic material pending a criminal investigation. Once the investigation was terminated and the S. Clinic was indicted, the file was to be sent before the criminal courts on 24 February 2010. Consequently, an order was issued authorising the applicant to retrieve her embryos by 25 February 2010, since after that date the Institute for Forensic Medicine would cease to act as a deposit bank appointed by the investigating authorities. The applicant was required to be accompanied by an embryologist and to provide a special container with liquid nitrogen for the transfer.
15. The applicant managed to obtain from a clinic in Austria a special container with liquid nitrogen of the kind required for such transfers and asked the clinic to carry out the transfer.
On 12 February 2010, the P. Clinic informed the applicant that the NTA had refused to consent to the transfer for the following reasons: the IFM had never been authorised by the NTA to store such materials and therefore there could be no guarantee as to the quality of the material stored there (against contamination, deterioration, and so on); moreover, the storage of such material in the Institute did not comply with the legal requirements (Order of the Minister of Public Health no. 1763/2007) concerning the traceability of the genetic material.
In view of the NTA’s refusal, of the fact that the P. Clinic carried out its activities under the authority of the NTA, and in so far as it could not guarantee the quality and security of the genetic material, the clinic informed the applicant that it could not proceed with the retrieval.
16. On 19 February 2010 the applicant wrote again to DIICOT, asking it to issue an order allowing the IFM to continue to store her embryos until the NTA had consented to their retrieval. As justification of the need for such an urgent measure, the applicant pointed out that an inability to transfer the embryos would have serious repercussions on the right to life of her embryos and on her right to have a family.
On the same day, the applicant sent a similar letter to the NTA, asking it to re-evaluate the circumstances of her case and consequently to authorise the transfer of her embryos to the P. Clinic.
17. The NTA replied on 23 February 2010, informing the applicant as follows: the IFM had been appointed as custodian in complete disregard of the legal provisions of Directive 2004/23/EC and of Article 148 (4) of the Health Reform Act (Law no. 95/2006); the IFM had never been accredited, nor had it been given approval by the NTA to operate as a bank for genetic material; the S. Medical Centre had been accredited to operate as a bank of genetic material only on 15 July 2009, and not in June 2008, when the embryos had been frozen and stored; the Code of Criminal Procedure, invoked by DIICOT, did not provide any safeguards as to the security and safety of the embryos while they were stored at S. (for one year) and subsequently at the IFM (for six months).
The NTA also contended that it did not have any information regarding the way in which the embryos had been transported from S. to the IFM, and was thus unable to guarantee that the minimum sanitary conditions had been complied with.
The NTA could therefore not authorise the transfer of the embryos from the IFM to another clinic, either within Romania or internationally; furthermore, according to the provisions of Article 19 (3) of Directive 2004/23/EC, “all tissue and cells that do not comply with [the legal] provisions shall be discarded.”
18. On 18 February 2010, the applicant requested the Court under Rule 39 of the Rules of Court to direct the Romanian authorities to allow her to retrieve her sixteen embryos stored at the Institute of Forensic Medicine.
19. On 22 February 2010, the President of the Chamber to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Romania, under Rule 39 of the Rules of Court, that the embryos should not be destroyed after 25 February 2010, for the duration of the proceedings before the Court.
The President also decided to request the Government, under Rule 54 § 2 (a) of the Rules of Court, to submit information as to the legal status of the embryos after 25 February 2010 and on the domestic law and procedure which would allow the applicant to obtain a court transfer order quickly.
20. In reply, the Government informed the Court as follows.
21. In its letter of 26 February 2010, the IFM informed the Government that it was merely the authorised depository of a receptacle seized by DIICOT from S., and that its only obligation was to make sure that the receptacle was preserved at a temperature of -80 degrees Celsius. The IFM therefore could not dispose of the biological material stored in the receptacle in any way.
22. The Ministry of Public Health informed the Government on 8 March 2010 that they had asked the IFM to take all necessary measures to adequately preserve the applicant’s embryos. The Ministry also asked the NTA to share with the IFM all relevant information concerning the appropriate procedure for preserving the above-mentioned embryos.
23. With regard to the information required under Rule 54 § 2 (a), the Government appended the letter of 8 March 2010 from DIICOT, which stated that the applicant’s request to have her genetic material returned had already been granted by the prosecutor on 12 November 2009. The decision had been taken after the applicant’s embryos had been identified on 5 November 2009; the applicant had been given until 25 February 2010 to retrieve her embryos, the same deadline having been set for four other individuals who were in a situation similar to the applicant’s, in view of the necessity of avoiding repeated interferences with the contents of the receptacles and the fact that since an indictment had already been issued, the investigation authorities could no longer pay the IFM the cost of storage.
DIICOT also informed the Government that the seizure, transport and handover of the genetic material to IFM had been carried out with the agreement of the Ministry of Public Health, whose representative – the manager of the NTA at that time – had cooperated directly with the investigation authorities.
24. In conclusion, the Government contended that the applicant already had a decision allowing the transfer of the embryos, which could be carried out at any time provided the applicant was accompanied by an embryologist and had the appropriate receptacle.
25. In response to the Government’s reply, the applicant asked the Court to note that it was not specified whether the applicant would be able to retrieve her embryos in the absence of authorisation from the NTA. In practice, as she had already shown, the embryo transfer was not possible unless the NTA authorised it.
26. On 20 April 2010, the applicant formulated before the Bucharest County Court civil claims in the criminal proceedings pending before the domestic courts following the indictment issued by DIICOT (see paragraph 14 above); she thus asked the court to allow an embryo transfer from the IFM to a Romanian or foreign authorised clinic.
The applicant’s request was dismissed on 6 July 2010; the court considered that given that the prosecutor’s decision of 12 November 2009 had already granted her claim, the actual implementation and enforcement of the decision exceeded the framework of the criminal trial. The court also held that the applicant had the opportunity, if she so wished, to contest the NTA’s refusal to authorise the embryo transfer before the civil courts.
The applicant contested this ruling; on 23 July 2010 her appeal was dismissed as inadmissible by the Bucharest Court of Appeal. In the court’s reasoning it was stated that there was no legal basis to respond to her request within the criminal proceedings, the civil courts having jurisdiction to examine her complaints.
In his dissenting opinion, Judge D.D. estimated that the applicant’s request was well founded, in so far as, in spite of the prosecutor’s decision ordering the restitution of her embryos, the authorities were refusing to implement the decision. Having regard to the fact that the confiscation of the embryos was carried out within criminal proceedings, it was only natural that the restitution should also be carried out within the same proceedings. At the same time, considering that the applicant could not be held responsible for the confiscation, which had been ordered by the investigating authorities in the absence of any authorisation from the NTA, it was excessive to ask the applicant to pursue yet another set of proceedings in order to be able to obtain authorisation for transfer from the NTA.
27. On 28 July 2010 the applicant lodged with the Bucharest Court of Appeal a request seeking to obtain, in accordance with the provisions of Law no. 554/2004 regulating administrative proceedings, the NTA’s authorisation for the transfer of her embryos to a specialised and authorised clinic, whether in Romania or abroad.
In their defence, the NTA reiterated their arguments, according to which the fact that the embryos had been deposited firstly at S., and then at the IFM, where they had been transported under unknown conditions, neither of the two institutions being at the time accredited as banks for genetic material, created uncertainty with regard to the safety and quality of the embryos (see also paragraph 17 above). In such circumstances, it was not possible to authorise transfer under the relevant legislation. Furthermore, if any clinic from Romania agreed to deposit the sixteen embryos, the NTA would have to revoke that clinic’s accreditation for non-compliance with the law.
The applicant’s request was dismissed as ill-founded on 10 December 2010. The court considered that in view of the relevant legislation, requiring specific standards of quality and safety with regard to the genetic material and in so far as neither the S. Clinic at the time of the original deposit of embryos nor the IFM, was accredited or authorised to function as banks of genetic material, the NTA’s refusal was justified and in accordance with the law.
28. The applicant contested this judgment before the High Court of Cassation and Justice, reiterating that according to the Government’s submissions before the Court, the transfer of the embryos from the S. Clinic into the IFM was carried out with the approval of the Ministry of Health and of the NTA’s manager; in that respect, the NTA’s refusal to authorise a further transfer appeared unjustified. Furthermore, the applicant’s few visits to the IFM for the purposes of checking the state of her embryos revealed that the embryos were being kept in precarious conditions, in the absence of any trained staff able to properly supervise their preservation.
29. The High Court gave its ruling on 17 May 2011, allowing the applicant’s request and obliging the NTA to authorise the transfer of the sixteen embryos from the IFM to an authorised clinic in Romania or abroad.
In its reasoning, the court mainly held that in so far as the NTA’s attribution was to coordinate the activities of procurement, processing, preservation, storage, validation and distribution of human tissue and cells in Romania, there was no legal ground for it to interfere in the implementation of the prosecutor’s decision to restore the embryos.
The fluctuating attitude of the NTA concerning its participation and/or cooperation with the criminal investigation authorities, namely, confirming that the retrieval of the embryos from S. had been done with the approval of the NTA’s manager, while also holding that the transfer had been made without its consent, proved once more that the NTA was confused and uncertain about the scope of its own authority. The NTA’s cooperation with the criminal investigation authorities was certain, as it came out especially from the observations submitted by the Government’s Agent before the Court (see paragraph 23 above). Such cooperation was, in any event, natural, having regard to the specific nature of the confiscated goods. In this context, the NTA should have advised the investigation authorities to deposit the embryos in an authorised clinic, which they did not do. On the contrary, the NTA proved to be excessively formalistic only when it came to the restitution of the embryos to the applicant, considering, unfoundedly, that it was within its competence to intervene in the enforcement of the prosecutor’s decision:
“This behaviour on the part of the NTA breached the applicant’s right to retrieve her embryos and to make use of them as urgently as possible, in view of the special characteristics of the genetic material and also of the applicant’s age, in the context of her desire to become a mother.”
30. The NTA’s allegations, that in 2008, when the applicant underwent the IVF, she did not comply with the relevant legal requirements, were not in themselves relevant, in so far as the criminal proceedings regarding the activity of the S. Clinic were still pending; moreover, in 2008, when the applicant deposited her embryos at S., the clinic was in the process of being accredited, as shown by the inspections organised to that end on 24 June 2008, and 15 April and 13 July 2009 by the NTA and the Department for the Control of Public Health, culminating with the accreditation apparently having been granted to the clinic by the NTA on 15 July 2009.
In spite of all these factors, and of the fact that the prosecutor decided that the embryos should be given back to the applicant, the NTA unjustifiably intervened and blocked the restitution procedure; the NTA unlawfully arrogated to itself an authority it did not have, while also threatening any medical institution which could have received the embryos even without the NTA’s authorisation that in such a case their licence would be suspended or even revoked.
Furthermore, the NTA could not cite any doubt as to the security and quality of the genetic material because it had been deposited at the IFM, an unauthorised clinic, having regard to the fact that at the moment of the deposit their agreement had been given, and afterwards, following the Court’s request that the embryos should be preserved and protected pending the proceedings before this Court, the NTA was expressly solicited by the Ministry of Health to provide expertise so as to satisfy the Court’s request.
Referring to the case of Ternovszky v. Hungary (no. 67545/09, 14 December 2010), the High Court held that when there was no domestic law able to adequately define the specific circumstances in the relationship between an individual and the state, the latter was bound to protect fundamental human rights, such as, in the present case, the right to respect for private life and the right to life.
For this reason, the court considered that:
“By its obstructive attitude, the NTA infringed the applicant’s rights and interests linked to the right to a private life and the right to life, by not properly balancing the public interest that the NTA is bound to protect and the legitimate interests of the applicant.”
It therefore allowed the applicant’s claims as formulated, holding that
“the NTA was obliged to authorise the transfer of the sixteen embryos from the IFM to an authorised and specialised clinic in Romania or abroad, a clinic which would be able to receive the embryos in its bank and which would be able to assist the applicant with the desired embryo transfer.”
31. In accordance with the High Court’s ruling, on 15 June 2011 the NTA issued a decision in which it “authorised the transfer of the sixteen embryos from the IFM Mina Minovici to an authorised clinic in Romania, in accordance with the relevant legal framework”.
The NTA further held that the second alternative mentioned in the High Court’s judgment, namely that the transfer could also be authorised abroad, could not be implemented, in so far as the appropriate authorisation for a transfer abroad was not an ordinary authorisation for transfer, but “an authorisation for export”, which was never requested as such by the applicant; moreover, authorisation for export had a very particular character, and in its absence the export of human tissues and cells was prohibited.
32. Subsequently, the applicant unsuccessfully attempted to transfer her embryos to the B. clinic (a private clinic in Bucharest). In their response to the Government on why the transfer was not possible, on 6 October 2011 the B. Clinic informed that they could not proceed with the transfer without relevant medical information concerning the embryos and their medical history, including data on how they had been preserved from the very beginning. Consequently and having regard to the fact that the clinic did not have the special quarantine conditions needed for deposit of the embryos, the transfer could not be carried out in compliance with the applicable legal provisions.
33. On 12 October 2011, a DIICOT prosecutor issued a decision, in which it was held that having regard to the High Court’s ruling and to the fact that the only State medical institutions accredited to function as “human cells and/or tissue banks” were respectively the Prof. Dr. Panait Sârbu Obstetrics and Gynaecology Hospital in Bucharest and the Emergency County Hospital in Cluj, for reasons of efficiency the first institution was to become the new custodian of the applicant’s embryos. The embryo transfer was to be carried out by a specialist transport company, the costs being borne by the DIICOT. All documents regarding the maintenance of the embryos were to be transferred to the new custodian.
The prosecutor’s decision was not contested by the applicant.
34. In accordance with this decision, on 19 October 2011 the embryo transfer was carried out and the embryos placed in the Assisted Reproduction Laboratory within the Prof. Dr. Panait Sârbu Hospital, the newly appointed custodian. According to a letter sent by the Ministry of Health to the Government on 15 December 2011, the new custodian was accredited as a genetic bank and human cell and tissue bank, and was also authorised to assist the applicant with any procedure related to artificial insemination.
35. In a letter of 11 November 2011, the applicant submitted that the transfer of the embryos had once more been carried out without her consent and even without her being consulted or informed in advance. She further stated that in the Prof. Dr. Panait Sârbu Hospital she had had bad experiences, in so far as in 2007 she underwent two unsuccessful IVF procedures there and therefore she could no longer trust the professional capacity of those doctors. She considered that she was entitled to be assisted for future IVF by doctors of her choice, in whom she trusted; therefore the transfer of her embryos into the above-mentioned clinic had denied her that right.
The applicant requested the opportunity to transfer her embryos to a clinic of her choice, at the expense of the Romanian authorities, who were responsible for the situation created and also for the well-being of her embryos.
36. By a letter of 23 December 2011, the Prof. Dr. Panait Sârbu Hospital informed the applicant’s representative that from 16 January 2012 they could be contacted to set a date on which the applicant, in the presence of an embryologist, could come to take possession of her genetic material in order to transfer it elsewhere, in accordance with the applicable rules and regulations set by the NTA.
By a letter sent to the Court on 3 March 2012, the applicant stated that she had found a clinic outside Bucharest “willing to help” her and that a date of transfer was “hopefully” imminent. In the meantime, she had also tried to set up a new procedure in the hope of a new pregnancy. She further stressed the trauma she had gone through on account of the State’s successive interferences with her right to have another child by IVF.
37. On 14 May 2012, the applicant alleged that she had contacted many clinics in Romania regarding the transfer of her embryos, but in spite of the fact that they were open to the idea at the beginning, “after further evaluation, the risk for them seemed to high” and no transfer was agreed.
38. The Government replied that on one hand, the applicant’s assertions were too vague and unsubstantiated, and on the other hand, that she had not acted with specific diligence to transfer her embryos from Prof. Dr. Panait Sârbu clinic, either to start an IVF procedure or at least to get more information about how her embryos were being taken care of in that clinic.
On 19 June 2012, the Government sent a document issued by the Prof. Dr. Panait Sârbu clinic in which it was confirmed that the applicant could initiate an IVF procedure in that clinic, with the assistance of a doctor and an embryologist of her choice, whether from Romania or from abroad, in so far as these two had a license to practice in Romania. Furthermore, a letter from the private clinic M.N.L. in Bucharest was appended, stating that the clinic was willing to take the applicant’s embryos while its doctors would monitor both the patient and the embryo-transfer.
On 22 June 2012, the applicant met the manager of the M.N.L. clinic; following their discussion, she wrote a letter to the clinic in which she asked for more information concerning the concrete stages envisaged for the embryo transfer, as well as a precise date on which such a transfer could be accomplished.
39. The Act is divided into seventeen titles, covering a wide array of subjects specific to the public health area. Title VI contains provisions covering the procurement and transplant of organs, tissues and cells of human origin used for therapeutic purposes, the donors of organs, tissues and human-origin cells, the donation and transplant thereof and the financing of transplant activity. It transposes into national legislation Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissue and cells. It also defines the role and responsibilities of the National Transplant Agency, as the main competent authority in the field of the procurement and transplant of organs, tissues and cells of human origin, including the accreditation, designation, authorization or licensing of tissue establishments and tissue and cell preparation processes.
The National Transplant Agency shall be responsible for the coordination, supervision, approval and implementation of any provisions regarding transplant activities.
(4) Any transplant of tissue and cells of human origin may be processed only from the banks accredited or approved by the National Transplant Agency...
(9) Imports or exports of tissue and cells shall be possible only if specifically authorised by the National Transplant Agency.
40. This sets out provisions governing the mechanisms to be put into place to ensure the quality and safety of tissues and cells and their traceability, in compliance with the relevant European law requirements.
41. This lists the tissue establishments accredited, designated, authorized or licensed to function as tissue and human cell banks and/or users. Neither the clinic S., nor the IFM appear in this Act.
42. In its relevant parts concerning the procedure on the sequestration of goods pending criminal investigation, the code reads as follows:
(1) The authority that enforces the sequestration (sechestru) must identify and evaluate the goods in question; it may, if need be, make recourse to experts. [...]
(9) If there is the danger of estrangement, other movables sequestered will be sealed or taken away, and a custodian can be appointed.
(1) The body that enforces the sequestration draws up an official report on all acts performed under Section 165, including a detailed description of the goods sequestered and specifying their value...
(1) Against this measure taken and of its enforcement means, the defendant, the party bearing the civil responsibility, as well as any other interested person may complain to the criminal investigation body who ordered the measure or to the prosecutor who supervises the criminal investigation, before summoning the court, after which the complaint is addressed to the relevant court.
(2) The court decision may be appealed against separately. The appeal does not suspend the execution.
(3) After the final settlement of the criminal trial, if no complaint has been lodged against the enforcement of the assurance measure, it may be contested under the civil law.
(1) If the criminal investigation body or the court finds that items taken away from the defendant, or from any other person who received them in custody, are the property of the victim or have been wrongly taken away from him/her, it orders the return of those items to the victim. Any other person who claims a right over the things taken away may ask under Article 168 for enforcement of this right and return of the items taken.
(2) The items taken away are returned only if this does not impede the revealing of the truth and the just settlement of the cause, and imposes upon the person to whom they are returned the obligation to keep them until the decision is declared final.
43. An overview of the law and practice concerning artificial procreation in general and on the standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissue and cells in Europe is included in S. H. and Others v. Austria ([GC], no. 57813/00, §§ 35-44, 3 November 2011).
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-107378
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: J. v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Mr J., is an Afghan national who was born in 1965 and lives in Eindhoven.
The facts of the case, as submitted by the applicant, may be summarised as follows.
2. The applicant fled his native Afghanistan in 1998 and applied for asylum in the Netherlands. Under the provisions of the Aliens Act 1965 (Vreemdelingenwet 1965), he was issued a provisional residence permit (voorwaardelijke vergunning tot verblijf) on 26 May 1999 which was valid from 31 December 1998 until 31 December 1999. Its validity was later prolonged until 31 December 2001.
3. On 1 April 2001, pursuant to the terms and the transitory arrangements under the Aliens Act 2000, which entered into force on that date and replaced the Aliens Act 1965, the applicant’s provisional residence permit was automatically transformed into a temporary residence permit for asylum purposes (verblijfsvergunning asiel voor bepaalde tijd).
4. On 31 October 2001, the applicant filed a request for a residence permit for asylum purposes for an indefinite period (verblijfsvergunning asiel voor onbepaalde tijd).
5. On 2 June 2003 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie), rejected the applicant’s request by holding Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Convention”) against him. The Minister based this decision on the applicant’s statements about his career as an officer in the Khadimat-e Atal’at-e Dowlati/Wezarat-e Amniyat-e Dowlati (“KhAD/WAD”) – the intelligence service during the former communist regime in Afghanistan – and the general official country assessment report (algemeen ambtsbericht) on Afghanistan, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs.
6. On 30 June 2003 the applicant filed an appeal against this decision with the Regional Court (rechtbank) of The Hague. In its judgment of 22 December 2005, that Regional Court, sitting in Haarlem, accepted the appeal and quashed the impugned decision. Referring to a ruling given on 2 June 2004 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), the Regional Court held that the Minister should also have examined whether Article 3 of the Convention constituted a sustained obstacle to the applicant’s expulsion to Afghanistan and , the Minister’s examination had been incomplete.
7. On 21 January 2010, the Deputy Minister of Justice (Staatssecretaris van Justitie; the successor to the Minister for Immigration and Integration) took a fresh decision on the applicant’s request, retroactively withdrawing the applicant’s residence title as from 31 December 1998 and holding, inter alia, that while Article 3 of the Convention opposed the applicant’s return to Afghanistan, it had not appeared that Article 3 constituted a sustained obstacle for his removal from the Netherlands as the applicant had not demonstrated that a departure to a country other than Afghanistan, such as for instance Pakistan where he had stayed for a year in 1992-1993, was impossible.
8. The applicant’s appeal against this decision was rejected on 9 November 2010 by the Regional Court of The Hague sitting in Roermond. It noted at the outset that, since no appeal had been filed against the judgment of 22 December 2005, the decision to hold Article 1F of the 1951 Convention had obtained the force of res iudicata. It further noted that it was not in dispute that the applicant – if expelled to Afghanistan – would be exposed to a real risk of being subjected to treatment proscribed by Article 3 of the Convention and that, for that reason and for the time being, he was not going to be expelled to Afghanistan. It agreed with the Minister that the applicant had not demonstrated that it would be impossible for him to go to Pakistan and found that the applicant did not find himself in a situation in which Article 3 opposed his expulsion from the Netherlands in a sustained manner and, furthermore,
9. In so far as the applicant invoked his right to respect for his family life within the meaning of Article 8 of the Convention with his spouse and with his brother and the latter’s spouse and children, the Regional Court held that – given the strict separation between asylum-based and regular residence permits – asylum proceedings offered no scope for these arguments to be entertained by the court. The Regional Court further rejected the applicant’s arguments based on his right to respect for his private life guaranteed by Article 8 of the Convention in that, during his eleven-year stay in the Netherlands in the course of which he had worked for six years, he had established social ties with colleagues and neighbours. On this point, the Regional Court held that the circumstances relied on by the applicant were outweighed by the Minister’s general interest considerations. It noted that the duration of the applicant’s (legal) stay in the Netherlands was considerably shorter than the duration of the aliens in the cases of Slivenko v. Latvia ([GC], no. 48321/99, ECHR 2003X) and Sisojeva and Others v. Latvia ([GC], no. 60654/00, ECHR 2007I) and held that the Minister could attach great weight to the fact that the applicant should be regarded as responsible for very serious offences.
10
11. In its ruling of 7 September 2011, the Administrative Jurisdiction Division upheld the impugned judgment, finding that the appeal did not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden) and that, having regard to article 91 § 2 of the Aliens Act 2000, no further reasoning was called for as the arguments submitted did not raise questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision.


ITEMID: 001-69444
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: LAPAINE v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Ms Marijana Lapaine, is a Croatian citzen, who was born in 1938 and lives in Zagreb. She is represented before the Court by Mr Marko Lapaine and Ms Vlatka Ostrogonaj, lawyers practising in Varaždin. The respondent Government are represented by their Agents, Ms L. Lukina-Karajković and Ms Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1947 several plots of agricultural land were confiscated from the applicant's father.
On 11 October 1996 Parliament passed a law, which enabled former owners of confiscated or nationalised property to seek either restitution of or compensation for the property taken from them (“the Compensation Act”). It also provided that within a year from its enactment the competent ministers were to issue relevant instructions on the implementation of that Act.
The Compensation Act entered into force on 1 January 1997.
On 20 March 1997 the applicant filed a request with the Zagreb County, Department for Property Affairs, Zaprešić Office (“the Office”), seeking restitution of, or compensation for, property taken from her late father.
On 28 February 2001 the Office accepted the applicant's request in part granting her state bonds as compensation for the property taken. The exact amount of the indemnities offered to the applicant was to be established after the enactment of the competent instructions. However, no such instructions had been adopted by the competent minister at that time.
On 3 October 2001 the applicant appealed against that decision. On 23 September 2003 the Ministry of Justice (Ministarstvo pravosuđa) dismissed the applicant's appeal in part. The first instance decision thereby became final.
The applicant subsequently filed an administrative action against the Ministry's decision. On 19 February 2004 the Administrative Court (Upravni sud Republike Hrvatske) accepted the applicant's action and quashed that decision. It appears that the case is still pending before the Ministry of Justice as the second instance authority.
Meanwhile, on 22 December 2003 the Ministry of Finance (Ministarstvo financija) adopted the Rules on the Criteria for the Determination of the Compensation for Confiscated Building Land and Business Premises (Pravilnik o mjerilima za utvrđivanje naknade za oduzeto građevinsko zemljište i poslovni prostor, Official Gazette no. 204/03, 03/04; “the Rules”). The Rules have been applicable since 1 April 2004.
Section 9 of the Act on Compensation for, and Restitution of, Property Taken under the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette nos. 92/96, 39/99, 42/99, 92/99, 43/00, 131/00, 27/01, 65/01, 118/01, 80/02 and 81/02) provides that the Act applies to former owners and their statutory heirs who are relatives of the first degree.
Sections 63 and 64, inter alia, oblige the Minister of Finances to issue further instructions for the assessment of value of the property for which compensation is to be granted within one year from the enactment of the Compensation Act.
Section 270 § 1 of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette no. 53/1991) provides that an administrative decision is executed once it becomes enforceable. Paragraph 2 of the same provision provides the cases in which a first instance decision exceptionally may become enforceable, whereas paragraph 3 provides that a second instance decision become enforceable on the day of the service on the party.


ITEMID: 001-71424
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ABDILLA v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Salvatore Abdilla, is a Maltese national, who was born in 1925 and lives in Birzebbuga (Malta). He is represented before the Court by Mrs M.A. Farrugia and Mr P. Lofaro, two lawyers practising respectively in St. Venera and in Valletta (Malta). The respondent Government were represented by their Agent, Mr S. Camilleri, Attorney General.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant owned a farm and an adjacent portion of land in Zebbug, close to a road called Notabile Road. According to the original Government development schemes, a small part of this land should have been expropriated in order to widen the road with 60 centimetres.
In 1985 the Maltese authorities entered into the property of the applicant, demolished parts of it and took 136.1 square meters of it.
By a Presidential Declaration of 27 January 1986 (no. 78), issued in terms of the Land Acquisition Public Purposes Ordinance (Chapter 88 of the Laws of Malta), it was declared that the property taken from the applicant was required for a public purpose.
The Presidential Declaration was published in the Government Gazette of 4 February 1986, as required by Article 9(1) of Chapter 88 of the Laws of Malta. At the relevant time, this publication did not transfer the ownership of the land to the Government. In particular, it was provided that the Commissioner of Lands should serve a copy of the Presidential Declaration on the owner of the land, together with a “notice to treat” informing him or her about the amount that the Commissioner was willing to pay. The owner subsequently had 21 days to state the amount which he claimed as compensation.
If the owner and the Commissioner agreed on the amount of the compensation due, either party could request the Land Arbitration Board to make an order carrying the agreement into effect. In case of disagreement between the owner and the Commissioner, the latter should file an application with the Land Arbitration Board requesting it to determine the amount of compensation due. In either case, a public deed of transfer had to be signed by the Government and the owner.
In the present case, until 2002 the Commissioner of Lands did not serve on the applicant the Presidential Declaration and the notice to treat. Therefore, the procedure to compensate the applicant and to transfer the legal ownership of the land was not initiated.
In 2002 Chapter 88 of the Laws of Malta was amended. Under the new Article 22 of this Chapter, ownership of the property is transferred upon publication of the Presidential Declaration in the Government Gazette. According to the new rules, the Presidential Declaration should state the amount that the Government will pay as compensation, to be deposited in an interest-bearing bank account. If the owner of the land does not consider this amount adequate, he may institute proceedings before the Land Arbitration Board.
According to a transitory provision of law, when, as in the applicant’s case, a Presidential Declaration had been issued before the entry into force of the 2002 amendments, the President should issue a fresh declaration wherein he shall state the amount of compensation which the Commissioner of Lands is willing to pay. According to the information provided for by the applicant on 24 March 2005, on that date no such fresh Presidential Declaration had been served on him. As a consequence, the applicant is still the legal owner of the land.
The applicant alleged that in the meantime one of his neighbours, Mr Z., had been planning to develop his property into a petrol station and had been preparing the necessary infrastructures to do so. According to the applicant, Mr Z. was known as being very well connected with the then current administration. The applicant’s allegations were disputed by the Government on the ground that they were unsubstantiated.
The original Government development schemes were not followed, and Notabile road, Zebbug was widened and re-aligned differently. According to the applicant, the result of these changes was that motor vehicles were driven into the planned petrol station and evasive action should be taken if a vehicle did not want to enter into it. If a vehicle had continued straight, it would have collided into the wall of Mr Z.’s property. Since 1989 the Traffic Control Board had requested the road department to re-locate the wall in issue, which was eventually demolished and moved backward.
The applicant produced a plan which was annexed to the Presidential Declaration. According to the applicant, this document showed that the land was expropriated in such a way to make the main road lead directly into the property of Mr Z., thus creating an unnatural series of S bends. The re-alignment and widening of the road directed the traffic into three deviations, one to the left into the applicant’s property, then to the right to meet the roundabout alignment and finally to the left again to continue on the main road.
The Government disputed these allegations. They argued that the description given by the applicant was “charged with poetic licence and substantially misleading”. Relying on seven photographs and on an aerial view of the area in question, they challenged the view that the taking of part of the applicant’s land was done also in order to facilitate access to the petrol station.
The allegedly planned petrol station was never opened.
On 3 April 1992 the applicant instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction against the Parliamentary Secretary for the Environment and Lands and against the Commissioner of Lands. He claimed that he had been deprived of his property illegally and without compensation and alleged a violation of Articles 37 and 38 of the Constitution of Malta as well as of Article 8 of the Convention and Article 1 of Protocol No. 1. The applicant submitted that the Presidential Declaration of 27 January 1986 was null and void and requested to be reinstated in his possession and to be granted a financial compensation for the loss suffered.
In a judgment of 24 November 1995 the Civil Court dismissed the applicant’s claims. It held that as the acts complained of took place before 30 April 1987 (date of the incorporation of the Convention into the Maltese legal system), it had no power to decide on the alleged breach of the applicant’s rights under Article 8 of the Convention and Article 1 of Protocol No. 1. As far as the Constitution of Malta was concerned, there was no doubt that the applicant could have invoked the alleged breach of Article 38 (right to the protection of home) in front of the ordinary courts, asking them to impede the authorities from demolishing his farm.
The same could not be said with regard to Article 37 of the Constitution (protection of property); however, it was apparent that the expropriation was done for a “public purpose”. This did not exclude the possibility that the expropriation might have involved the interest of third parties, provided that the use made by the said parties was connected with or ancillary to the public interest or utility. In the present case, in 1975 the architect of the Department of Lands had expressed the view that the realignment of the road was inevitable and in 1977 the Department of Lands had written to the Departments of Works to confirm that the expropriation had to be done. The latter was part of a project involving the entire road linking Zebbug and the town of Mdina.
It was true that according to the original plan, the applicant’s property was going to be only slightly affected. However, the project was changed and the road went much deeper into the applicant’s land, leading to a petrol station, owned by Mr Z. The Civil Court could accept that the expropriation was done also in the interests of third parties, but this did not exclude the existence of a public purpose, as there was no doubt that a petrol station was of utility to the public.
The applicant appealed to the Constitutional Court.
In a judgment of 30 May 2003, the Constitutional Court declared that the taking of the applicant’s property before the issuing of the Presidential Declaration of 27 January 1986 constituted a violation of the plaintiff’s right of property (guaranteed by Article 38 of the Maltese Constitution and Article 1 of Protocol No. 1) and granted him a compensation amounting to 100 Maltese Liras (Lm – approximately 240 euros (EUR)). The Constitutional Court confirmed the judgment of the Civil Court as to the remainder and decided that the legal expenses should be borne one-third by the applicant and two-thirds by the respondents.
The Constitutional Court first observed that the Presidential Declaration was only the commencement of the expropriation procedure, which entailed an interference with the right guaranteed by Article 1 of Protocol No. 1 lasting until the individual was unable to enjoy his possessions or until there was effective transfer of property. Thus, notwithstanding the fact that the Presidential Declaration was issued before 30 April 1987, the matter felt within the competence ratione temporis of the Constitutional Court.
As to the lawfulness of the expropriation, it was to be noted that the authorities had entered the applicant’s property and demolished his farm already in 1985. This action was illegal as it was taken prior to the issuing of the Presidential Declaration and without prior notification. Moreover, the applicant did not have at his disposal any adequate means of redress, as any judicial action he might have commenced would have been nullified by the issuing of the Presidential Declaration.
As far as the applicant was complaining that the expropriation was not done for a public purpose, but to serve the interests of Mr Z., the Constitutional Court observed that only a deprivation of property effected for no reason other than to confer a private benefit on a private party could not be “in the public interest”. As the European Court of Human Rights had pointed out in the case of James and Others v. the United Kingdom (judgment of 21 February 1986, Series A no. 98), the compulsory transfer of property from one individual to another might, depending upon the circumstances, constitute a legitimate aim for promoting public interest. The Constitutional Court therefore did not see any reason to depart from the Civil Court’s finding that, after the issuing of the Presidential Declaration, the expropriation pursued a legitimate aim.
The acquisition of land for public purposes is regulated by Chapter 88 of the Laws of Malta. As amended in 2002, the relevant provisions of this Chapter read as follows.
Article 7 § 2
"(a) With respect to land subject to a declaration by the President before the coming into force of this article ... article 12(3) of the Ordinance as amended by this article shall apply ... Provided that the interests as aforesaid shall be calculated on the value of the land on the date of the President’s Declaration or where no such Declaration was issued prior to the coming into force of this article on the date of taking over by Government of the land in question.
(b) (i) The President may in relation to any land subject of a Declaration issued before the coming into force of this article issue a fresh Declaration wherein shall be stated the amount of compensation which the competent authority is willing to pay for the land to which the Declaration refers. ... Provided that when such fresh Declaration is issued the compensation shall be determined on the basis of the value of such land on the date of the service of any notice to treat in respect of such land, and where no such notice to treat has been so served, on the date of the issue of the fresh Declaration by the President. ...”
Article 12 § 3
“(3) Simple interest at the rate of five per centum per annum shall accrue on a daily basis in favour of any person having a right to compensation in respect of any land acquired by the absolute purchase thereof under this Ordinance, from the date of the Declaration of the President up to the date when the compensation is paid or deposited in accordance with article 22. The interest due shall accrue on the amount of compensation as established in accordance with this Ordinance.”
Article 22 §§ 1, 2, 3, 6, 7 and 10
“(1) If the competent authority and the owner agree as to the amount of compensation for any land, the Board, on the application of any one of the parties, shall make an order carrying the agreement into effect ...
(2) Where the land is to be acquired by the absolute purchase thereof ..., the President’s Declaration ..., shall state the amount of compensation which the competent authority is willing to pay for the land to which the declaration refers. ...
(3) Within fifteen working days from the publication of the President’s Declaration as is referred to in subarticle (2) in the Gazette the Government shall deposit in an interest bearing bank account (which will guarantee a minimum of interest per annum as the Minister responsible for lands may by regulation under this subarticle prescribe) a sum equal to the amount of compensation offered in the President’s Declaration. Such sum shall be freely withdrawn together with any interests accrued thereon by the person or persons entitled to such compensation upon evidence to the entitlement thereto, in a manner satisfactory to the competent authority.
...
(6) Where the person entitled to compensation does not accept that the amount deposited is adequate, such person may apply to the Board for the determination of the compensation in accordance with the provisions of this Ordinance. Such application shall, on pain of nullity, state the compensation that in the opinion of the applicant is due.
(7) Such application shall be filed in the Registry of the Board ... The Board shall determine such compensation and shall give all necessary orders and directives in accordance with this Ordinance.
(10) Where the compensation payable in respect of land acquired by the absolute purchase thereof is determined, whether by agreement or by decision of the Board, any sum due as compensation over and above any sum deposited in accordance with this article together with interests thereon in accordance with article 12(3), shall be paid to the person entitled thereto by the competent authority not later than three months from the date on which such compensation was determined as aforesaid.”
Article 27 § 1
“(1) Without prejudice to any special provision contained in this Ordinance, in assessing compensation the Board shall act in accordance with the following rules:
(a) no allowance shall be made on account of the acquisition being compulsory;
(b) the value of the land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realize ...”


ITEMID: 001-90962
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HEUER v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Franz Heuer, is a German national who was born in 1941 and lives in Neu Isenburg. He was represented before the Court by Mr T. Gertner, a lawyer practising in Bad Ems.
A summary account of historical events in which the present application originated can be found in the Court’s decision on admissibility in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (see Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (dec.), no. 47550/06, 7 October 2008, §§ 3-5, ECHR 2008-...).
The applicant submits that he is an heir of Rudolf Graf von Ingenheim, who was the owner of an impressive art collection. According to the applicant, Mr von Ingenheim was killed by the Nazis in a mental hospital in 1943.
At the end of the Second World War the paintings belonging to the Ingenheim collection were stored in different places which are now within the Polish territory. They were confiscated by the Polish State under the Decree of 8 March 1946 on Abandoned or Post-German Property (dekret o majątkach opuszczonych i poniemieckich – “the March 1946 Decree”) as property belonging to Germans. At present the paintings are exhibited in various museums in Poland. The most important part of the Ingenheim collection included the following paintings:
1) Alessandro Allori, Portrait of Francesco I de Medici.
On 24 November 1944 the painting was taken to the Palace in Kuhna (at present Kunów in Poland). In 1946 the painting was transferred to the National Art Museum at the Wawel Royal Castle.
2) Sandro Botticelli, The Virgin with Child, St. John the Baptist and an Angel.
In 1940 the painting was on loan to the Silesian Museum of Fine Arts in Breslau (at present Wrocław). On 2 June 1942 it was taken to Kamenz (at present Kamieniec Ząbkowicki). After the war the Polish authorities confiscated it under the March 1946 Decree. It was taken to the Warsaw National Museum.
3) Giovanni Filippo Criscuolo, Madonna with Child, Angels and Saints.
Before the war the painting was in the Silesian Museum of Fine Arts in Breslau. In 1946 it was confiscated and taken to the Warsaw National Museum.
4) Fra Diamante, The Adoration of the Child and Crucifixion.
On 2 June 1942 the painting was transferred to Kamenz. The Polish authorities confiscated it under the March 1946 Decree and took it to the Warsaw National Museum.
5) Josef Anton Koch, The Grindelwald Glacier in the Alps.
The painting was on loan to the Silesian Museum of Fine Arts in Breslau. In 1942 it was transported to Kamenz. After the war the Polish authorities confiscated the painting and took it to Warsaw. In 1973 the painting was transferred to the National Museum in Wrocław.
6) Lorenzo Lippi, Archangel Raphael and Tobias.
The painting was loaned out to the Silesian Museum of Fine Arts in Breslau. The Polish authorities confiscated it and took it to the Warsaw National Museum. At present the painting is stored in the National Museum in Wrocław.
7) Sebastiano del Piombo, The Scourging of Christ at the Pillar.
The painting was on loan to the Silesian Museum of Fine Arts in Breslau. Since 1945 it has been exhibited in the National Museum in Wrocław.
8) Giovani Santi, Lamentation.
The painting was loaned out to the Silesian Museum of Fine Arts in Breslau. Since 1945 it has been exhibited in the National Museum in Wrocław.
9) Portrait of a Family made by a Lombard painter in the 15th century.
Before the war the painting was being restored in the Silesian Museum of Fine Arts in Breslau. After the war the Polish authorities confiscated it. It was taken to the Warsaw National Museum in 1946.
10) Della Vecchia, Portrait of a Doge.
During the war the painting was stored in Kuhna Palace. After the war it was confiscated by the Polish authorities. In 1946 it was taken to the National Art Museum at the Wawel Royal Castle.
Details concerning the former place of storage of other paintings are unknown. They were, however, recorded at the National Museum in Breslau as belonging to the former Ingenheim collection and are still there.
The applicant submits that he did not apply for restitution since under Polish law there is no possibility of challenging the validity and lawfulness of the confiscation and expropriation.
A detailed description of the relevant international and domestic law is set out in the above-mentioned case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (ibid. §§ 31-41).