ITEMID: 001-85357
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF DENISOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1939 and lives in the town of Novovoronezh in the Voronezh Region.
6. He sued the Welfare Office of Novovoronezh and the local department of the Federal Treasury for unpaid social benefits and obtained seven judgments in his favour.
7. On 25 October 2000 the Novovoronezh Town Court of the Voronezh Region (“the Town Court”) awarded the applicant 1,064.55 Russian roubles (RUB) in arrears relating to a disability allowance and RUB 815.16 in arrears relating to a food allowance. The judgment entered into force on 5 November 2000. On 30 September 2003 the applicant received RUB 1,064.55. It appears that the remaining part of the judgment debt has not been paid to the applicant.
8. On 19 December 2002 the Town Court held that as of 1 January 2001 the applicant had been entitled to a monthly disability allowance in the amount of RUB 3,449.31 and recovered in his favour arrears in the amount of RUB 14,337.48. On 6 February 2003 the Voronezh Regional Court (“the Regional Court”) upheld the judgment. It was fully enforced on 17 December 2004.
9. On 31 May 2005 the Town Court awarded the applicant RUB 3,565.57 in penalties for the lengthy non-enforcement of the judgment of 19 December 2002. The judgment entered into force on 14 June 2005. It has not been enforced to date.
10. On 9 June 2003 the Town Court awarded the applicant RUB 26,649.69 in arrears relating to a disability allowance. On 10 July 2003 the Regional Court upheld the judgment. It was enforced in full on 17 December 2004.
11. On 31 May 2005 the Town Court awarded the applicant RUB 4,421.33 in penalties for the lengthy non-enforcement of the judgment of 9 June 2003. The judgment acquired legal force on 14 June 2005. It has not been enforced to date.
12. On 16 February 2004 the Town Court awarded the applicant RUB 23,131.68 in arrears relating to a disability allowance. On 22 April 2004 the Regional Court upheld the judgment. It was enforced in full on 24 August 2005.
13. On 6 May 2004 the Town Court awarded the applicant RUB 13,099.83 in arrears relating to a disability allowance. The court furthermore held that as of 1 April 2004 the applicant had been entitled to a monthly disability allowance in the amount of RUB 7,815.92, to be indexlinked in accordance with legislation. On 17 May 2004 the judgment entered into force. It was enforced in full on 11 November 2005.
14. On 27 February 2006 the Town Court awarded the applicant RUB 8,385.82 in penalties for the delayed enforcement of the judgments of 16 February and 6 May 2004. The judgment acquired legal force on 10 March 2006. It has not been enforced to date.
15. On 15 March 2004 the Town Court awarded the applicant RUB 4,973.57 in arrears relating to a food allowance and to an annual disability allowance. The judgment acquired legal force on 25 March 2004. It has not been enforced to date.
16. On 26 August 2004 the Town Court awarded the applicant RUB 1,772.30 in arrears relating to a food allowance and to a disability allowance. The court furthermore held that as of 1 April 2004 the applicant had been entitled to a monthly food allowance in the amount of RUB 679.78 and as of 2005 he was entitled to an annual disability allowance in the amount of RUB 1,132.97, both to be index-linked in accordance with legislation. The judgment acquired legal force on 6 September 2004. It has not been enforced to date.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-57588
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1986
DOCNAME: CASE OF UNTERPERTINGER v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1+6-3-d;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;Gaukur Jörundsson
TEXT: 8. Mr. Unterpertinger, who is an Austrian national born in 1938, lives in Wörgl.
He complains of criminal proceedings brought against him for causing actual bodily harm to his step-daughter on 14 August 1979 and to his wife on the following 9 September.
9. The incident on 14 August 1979 was reported to the Wörgl police (Gendarmeriepostenkommando) that day, first by a neighbour at the applicant’s request and then by the applicant himself. According to him, his wife and step-daughter - who had that morning called him a "convict" (Zuchthäusler) - attacked him at about midday during a quarrel. In particular, he claimed that his wife had inflicted several head wounds with a paper-knife and gashed his forehead close to his eyebrow. He had needed treatment by a doctor.
He admitted that he had pushed his wife at the time and had tried unsuccessfully to slap his step-daughter in the face.
10. On 22 August 1979, the police questioned the applicant’s wife as a "suspect" (Verdächtige) and his step-daughter, Miss Tappeiner, as a "person involved" (Beteiligte).
Mrs. Unterpertinger stated that she had been slapped in the face and beaten by her husband, who had grabbed her daughter by the hair to stop her running away; both of them had then fought back. She had been holding a paper-knife and had, she said, probably struck him with it, but neither she nor her daughter had deliberately caused him any wounds to the head or face.
Miss Tappeiner admitted having called her step-father a "convict" that morning, and said that he had responded by slapping her in the face, but without injuring her. During the quarrel at midday, he had hit her mother several times, once in the face. When she herself had tried to escape, he had grabbed her by the hair and scratched her just below the right eye. He had also grabbed her mother by the hair and by the scruff of the neck. The two women had therefore fought back, and she had pulled her step-father’s hair but had not hit him; she had not seen her mother strike him with the paper-knife. Her step-father’s forehead was bleeding, but she had not seen a wound on the back of his head. She added that a doctor she had consulted had issued a certificate in respect of her own injury.
11. On 28 August 1979, the Wörgl police sent the Kufstein District Court (Bezirksgericht) a report (Strafanzeige) "concerning Alois Unterpertinger and Rosi Unterpertinger, suspected of causing actual bodily harm (Körperverletzung)".
According to the police, Mrs. Unterpertinger and her daughter had attacked the applicant in the course of a quarrel, during which the former had probably (vermutlich) struck him several times with a paper-knife, causing a laceration on the back of his head and again close to his eyebrow. He himself had allegedly (angeblich) hit his step-daughter in the face and scratched her slightly just below the right eye.
Under the heading "Evidence", the report referred to the statement by the above-mentioned neighbour of the Unterpertingers to the effect that the applicant, whose face was covered in blood, had asked her to alert the police. The applicant had appeared in person at the police station ten minutes later holding a paper-knife; he had explained that his wife had struck him on the head with it several times. Since Mr. Unterpertinger seemed to need first aid, the officer on duty had suggested that he should see a doctor.
The police went on to say that they had already had to intervene in several quarrels in the household. They added that the three protagonists had given conflicting accounts of the incident on 14 August. Miss Tappeiner, who had been questioned as an informant (Auskunftsperson), had clearly taken her mother’s side.
The report indicated that the applicant’s injuries had been described as "slight" by the doctor.
Under the heading "Information given by the suspects", the police summarised Mr. and Mrs. Unterpertinger’s statements.
The report was accompanied by several documents, including the statements made by the applicant, his wife and his step-daughter and the certificate issued by the doctor who had examined Miss Tappeiner.
12. The second incident, which took place on 9 September 1979, was reported to the Wörgl police on 14 September by Mrs. Unterpertinger. She stated that her husband, who was slightly drunk, had kicked her right arm during a quarrel, causing her acute pain. An X-ray at the hospital next day had shown that her right thumb was broken, and this had left her unfit for work for a period of four weeks. She added that she had started divorce proceedings against her husband.
On 11 September, the hospital in Wörgl had sent the police a report stating that the injury, inflicted by the complainant’s "own husband", should be regarded as serious.
13. The police took a statement from Mr. Unterpertinger on 17 October. He denied injuring his wife on 9 September, saying that her hand had already been bandaged when he had come home. She had actually attempted to hit him on the head with a hairbrush, but had missed and collided with the stair-rail instead. This might have aggravated the thumb injury, but the accusation she had made against him was a complete fabrication.
The applicant confirmed that divorce proceedings had been pending for some time.
14. On 20 October, the Wörgl police sent the Kufstein District Court a report "concerning Alois Unterpertinger, suspected of causing grievous bodily harm". This stated that the couple had had a quarrel on 9 September, during which Mr. Unterpertinger had kicked his wife’s right arm. It went on to summarise Mrs. Unterpertinger’s and her husband’s statements, which were appended.
15. On an application from the Innsbruck Public Prosecutor’s Department, the Kufstein District Court decided on 9 November 1979 to open an investigation against the applicant in respect of the two incidents. After separating the proceedings against Mrs. Unterpertinger in respect of the first incident (see paragraph 11 above), the District Court acquitted her on 28 January 1980.
16. On 3 December 1979, Mrs. Unterpertinger appeared before a judge at Kufstein, who told her that, as the wife of the accused (Beschuldigter), she was entitled to refuse to give evidence. In fact, Article 152(1)(1) of the Code of Criminal Procedure provides: "members of the accused’s family ... shall not be required to give evidence".
She replied that she nonetheless wished to do so, and gave an account of the facts in dispute, summarising what she had already told the police and disputing her husband’s version of the incident on 9 September.
Suspected of causing actual bodily harm contrary to Articles 83 et seq. of the Criminal Code, the applicant was questioned on 12 December by a judge of the Innsbruck District Court. He admitted slapping his wife in the face on 14 August. According to him, he had pulled Miss Tappeiner’s hair in order to escape the two women’s attacks and might in so doing have injured her close to her eye; he had also struck her in the face. As regards the second incident, he repeated what he had already said (see paragraph 13 above); he also stated that he had not seen his wife come into contact with the stair-rail and added that he was not sufficiently agile to have been able to kick her thumb.
17. The case was heard on 10 March 1980 by a judge of the Innsbruck Regional Court (Landesgericht), sitting alone.
18. According to the record of the hearing, the applicant pleaded not guilty. He admitted that he had hit his step-daughter on the head, but not that he had injured her. Nor had he broken his wife’s thumb by kicking it; he had no idea where she had broken it.
19. The Regional Court then called Mrs. Unterpertinger and Miss Tappeiner. On being told by the court of their right to refuse to give evidence (see paragraph 16 above), they replied that they wished to avail themselves of that right. The court was consequently unable to examine them or to read out the record of Mrs. Unterpertinger’s interview with the judge at Kufstein (Article 252(1) of the Code of Criminal Procedure).
At the request of the Public Prosecutor’s Department, however, the documents it had mentioned in its application for leave to prosecute (Strafantrag), including the police reports, the accused’s criminal record and two files relating to previous convictions of his, were read out. These documents thus included the various statements made to the police: in Austrian judicial practice these had to be regarded as documents for the purposes of Article 252(2) of the Code of Criminal Procedure (see in particular judgment of 14 November 1974 of the Supreme Court (Oberster Gerichtshof, Österreichische Juristenzeitung 1975, p. 304); this meant that they had to be read out, unless the parties agreed that they should not be.
20. At the end of the hearing, the Regional Court found the applicant guilty of having committed, on 14 August 1979, the offence (Vergehen) of causing actual bodily harm (Article 83(1) of the Criminal Code) to his step-daughter and, on 9 September 1979, the offence of causing grievous bodily harm (schwere Körperverletzung, Articles 83(1) and 84(1) of the Criminal Code) to his wife. He was sentenced to six months’ imprisonment.
Referring to the "inquiries made" and to the defence (Verantwortung) put forward by Mr. Unterpertinger, the court held that the following facts had been established.
During the quarrel on 14 August 1979, the applicant had hit his wife several times and had struck his step-daughter in the face, bruising her between the eye and nose and scratching her close to her right eye. His account could not be believed: he had admitted to the judge at Kufstein that he had struck Miss Tappeiner in the face and he had not ruled out the possibility that this might have caused the scratch. The injuries were slight, but his conduct showed that his actions had been deliberate.
On 9 September, Mr. Unterpertinger had broken his wife’s right thumb by kicking her. Again, his defence did not stand up to examination. In addition, his record showed that he was quite capable of behaving in this way. He and his wife had had frequent quarrels, often ending in assault.
The court pointed out that Mrs. Unterpertinger - who in the meantime had divorced her husband - and her daughter had refused to give evidence at the trial. It nonetheless found their statements to the police "sufficiently clear and specific to support a conviction"; "there [could be] no doubt as to the truth of these statements". In this instance too, the applicant had acted deliberately.
The court found no mitigating circumstances; on the contrary, it saw the applicant’s criminal record as an aggravating circumstance.
21. Mr. Unterpertinger appealed on 9 April 1980.
He argued that the judgment of 10 March was null and void (Article 281(1)(3) of the Code of Criminal Procedure): in spite of Article 152 of the Code of Criminal Procedure, his former wife and step-daughter, whose statements to the police had formed the sole basis of his conviction, had not been informed at the outset that they were entitled to refuse to give evidence, and had thus been unable to avail themselves of this right.
Furthermore, the Regional Court had not taken sufficient account of certain circumstances which made the credibility of Mrs. Unterpertinger and her daughter doubtful. In this connection, the applicant requested that evidence should be taken from several witnesses, including two doctors, a police officer, a neighbour and his own mother, step-daughter and former wife.
Finally, he emphasised that in the past he had always admitted the offences with which he had been charged - as was clear from the files on the earlier proceedings. In this instance, however, he had acted in self-defence during the first incident and with no intention of injuring his step-daughter - if indeed he really had injured her. The Regional Court had disregarded his version of the events of 14 August 1979. As for the incident of 9 September 1979, he repeated that his former wife had been having trouble with her right thumb even before that date, as he had mentioned when he was first questioned. He further claimed that he himself had been suffering from a knee injury which would have prevented him from kicking hard enough to break his wife’s thumb. He requested that these points should be investigated further and, in particular, that evidence should be taken from a number of people and an expert opinion (Sachbefund) obtained.
In conclusion, Mr. Unterpertinger asked the Innsbruck Court of Appeal (Oberlandesgericht) to quash the conviction of 10 March and acquit him. Failing this, he asked it to review his sentence in the light of the degree of his guilt.
22. The Court of Appeal sat on 4 June 1980.
Counsel for the applicant submitted the grounds of appeal and requested, inter alia, that additional witnesses be called by the court. He added that the fact that his client was not allowed to put questions concerning the statements made to the police by the prosecution witnesses contravened the European Convention on Human Rights. The prosecution sought to have the appeal dismissed.
Thereupon, the court decided to re-examine the evidence submitted to the court of first instance and to supplement it (Wiederholung und Ergänzung) by having the file on the divorce proceedings read out and hearing testimony from the wife of Mr. Unterpertinger’s brother. She was unable to say whether the applicant’s former wife had had a bandage on her hand in the autumn or summer of 1979. The applicant waived his right to cross-examine her.
The court had the documents in the file on the case read out and put several questions to Mr. Unterpertinger, in particular about his knee injury. According to him, he was asked to walk up and down so that the judges could form an idea of his condition.
The court refused to admit the remaining evidence proffered, as to part, on the ground that the circumstances to which it related were of no importance and, as to the rest, because the applicant had not specified the matters he wished to be investigated further.
23. The Court of Appeal dismissed the applicant’s appeal immediately after the hearing on 4 June 1980.
With regard to the ground of nullity on which he had relied (see paragraph 21 above), it noted, on the basis of the Supreme Court’s case-law, that a lawful refusal to give evidence did not prevent the court from having read out witnesses’ statements which had been made to the police (Sicherheitsbehörden) and not during the judicial proceedings proper. It added that the Supreme Court had ruled that the courts were indeed obliged to have such statements read out and to weigh them as evidence.
Otherwise, the Court of Appeal was of the opinion that the evidence it had heard confirmed the findings of the Regional Court. The victims’ statements to the police were plausible and credible; their account of the incident was logically coherent. The applicant’s previous convictions showed that conduct like that of which he was accused was by no means alien to his nature. Moreover, he had given the police and the investigating judge conflicting versions of what had happened on 9 September 1979. His sister-in-law, who had been called as a witness, had been unable to give any information in this regard. As for his claim that he was not sufficiently agile to have been able to break his wife’s thumb with a kick, this did not stand up to examination either.
Except for his sister-in-law, it was unnecessary to hear the witnesses the applicant had sought to have called, since he had referred to them in connection with matters that were either of no importance or else extremely vague.
Consequently, Mr. Unterpertinger’s conviction on the two counts against him was justified; he had not been acting in self-defence on 14 August 1979. The sentence imposed was consistent with the degree of his guilt (schuldangemessen).
24. The applicant served his sentence from 22 September 1980 to 22 March 1981.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-67997
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: PENTIACOVA AND 48 OTHERS v. MOLDOVA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Valentina Pentiacova, Nichifor Avasiloaie, Nicolaie Bugan, Alexandru Bulgac, Vladimir Caranfil, Ion Ceban, Chiril Cebotari, Valeriu Cerniavschi, Mihail Chircu, Galina Chiriacova, Tamara Ciorba, Alina Condrat, Tatiana Costina, Olesea Frija, Natalia Ghetmacenco, Mihail Grozov, Maria Gudumac, Adriana Hristiniuc, Natalia Iacovenco, Ana Istratieva, Maria Lozinschi, Ana Lungu, Diana Maliavca, Petru Meriacri, Tudor Meriacri, Iacob Mocanu, Veaceaslav Muşchei, Victor Neagov, Iacob Ninescu, Ion Nicolaev, Mihai Nicolaev, Constantin Novac, Eugenia Paşcova, Ghenadie Petrea, Eduard Porumb, Eduard Pritula, Nicolae Pruteanu, Ion Puşcaş, Maria Serbu, Mariana Solomon, Chiril Spirliev, Rita Stoian, Gavriil Tofan, Anatol Ţoncu, Dumitru Tulbu, Ion Vacari, Ion Vartic, Dumitru Zlatov and Victor Zorilă are Moldovan nationals, who live in the Republic of Moldova. Adriana Hristiniuc is the daughter of Andrei Hristiniuc, who was a patient of the Spitalul Clinic Republican haemodialysis section for about two years, but who died on 11 July 2004. Ana Lungu is the widow of Gheorghe Lungu, who was a patient of the SCR haemodialysis section for about ten years, but who died on 25 April 2003. Ion Vacari is the widower of Lidia Vacari, who was a patient of the SCR haemodialysis section, but who died on an unspecified date. They are represented before the Court by Mr Vladislav Gribincea, acting on behalf of “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău. The respondent Government are represented by their Agent, Mr V. Pârlog, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
All the applicants (except Adriana Hristiniuc, Ana Lungu and Ion Vacari, see above) are suffering from chronic renal failure (a gradual and progressive loss of the ability of the kidneys to excrete waste, concentrate urine, and conserve electrolytes) and consequently they need haemodialysis (a medical procedure that uses a machine to filter waste products from the bloodstream and to restore the blood’s normal constituents).
They are all disabled on account of their disease and receive State disability allowances which vary between 60 Moldovan Lei (MDL) and MDL 450.
The applicants have their haemodialysis done at a Chişinău hospital called Spitalul Clinic Republican (the “SCR”), where approximately one hundred patients are treated. The applicants submit that before 1997 the expense of their haemodialysis was covered entirely by the hospital. Between 1997 and 2004 the hospital’s budget was reduced and only strictly necessary procedures and medication were provided free to them. From 1 January 2004 the situation became more or less identical to that existing before 1997, with the exception of the frequency of haemodialysis sessions (see below).
There are four more hospitals in the Republic of Moldova that perform haemodialysis - another hospital in Chişinău called Spitalul de Urgenţă (the “SU”), and hospitals in Bălţi, Cahul and Comrat. The applicants submit that, unlike the SCR, the SU was financed from the budget of the Chişinău Municipality and therefore always provided its patients with all the necessary medication free. They also argue that there are administrative barriers presenting the applicants who do not live in Chişinău from receiving treatment at the SU. As to the other three hospitals, the applicants submit that the quality of the haemodialysis treatment provided by them is inferior to that of the SCR.
According to the parties, the following are necessary for haemodialysis treatment: a haemodialysis package, heparin, physiological saline, syringes, CaCl (10%), glucose (10-40%), euphylin 2.4%, alcohol and vitamins. There are also some medications and accessories which are necessary in some cases, namely riboxin, antibiotics, plaster, gauze and blood.
According to the applicants, before 1 January 2004 the hospital provided them free with the haemodialysis procedure and some basic medication and accessories such as the haemodialysis package, heparin, physiological saline, syringes and CaCl (10%). They had to pay for the rest of the necessary medication. In 2002, the applicants were allegedly told by the hospital authorities that the haemodialysis unit at the SCR might close due to insufficient financing from the State budget. The applicants were forced to protest before the Ministry of Finance and in front of the President’s residence, and consequently the hospital continued to provide them with haemodialysis, but, as previously, without full coverage.
After 1 January 2004 the hospital started to provide them free with almost all the necessary medication. The hospital does not provide them, however, with a drug called Eprex, which operates to raise the haemoglobin level, or with calcium, Amonosteril and Ketosteril. In order to increase their level of haemoglobin, the applicants are usually given blood transfusions. Before 1 January 2004 the applicants were not provided with free blood by the hospital. After that date the hospital started to provide free blood, but the applicants still have to wait until it becomes available. Since they sometimes need blood urgently, they have to buy it. The applicants also submit that no medical investigation for the determination of anaemia status is performed at the SCR and that the doctors only establish the existence of anaemia.
According to the Government, before 1 January 2004 the treatment of the applicants was carried out in accordance with the provisions of Law no. 267 of 3 February 1999 on the minimum of medical assistance guaranteed by the State (see below). In accordance with that law, the applicants received only the strictly necessary medication free. They had to buy the rest of the medication prescribed by their doctors. Haemodialysis treatment has never been stopped and has never been refused to anybody. According to the official documents provided by the Government, in 2003 the haemodialysis section of the SCR received MDL 5,685,729 (the equivalent of 354,000 euros (EUR) at the time) from the State budget.
On 1 January 2004 a new medical insurance system was implemented in Moldova and in accordance with the new legislation the applicants started to receive all the necessary medication free (see below). If a patient needs some particular medication not provided by the State, then the doctor recommends that the patient buys it. According to a directive of the Ministry of Health of 12 March 2004, the State spends MDL 322 (the equivalent of EUR 20 at the time) for one day of hospitalisation, MDL 688 (the equivalent of EUR 44 at the time) for a haemodialysis of the first degree and MDL 1,207 (the equivalent of EUR 78 at the time) for a haemodialysis of the second degree.
According to the applicants, in the USA, Canada and EU countries, renal failure patients receive nine hours of haemodialysis in three sittings per week. The same practice was followed in Moldova before 1997. After 1997 the practice changed and the patients started to receive eight hours of haemodialysis in two sittings per week. “Only applicants that are in bad physical condition or ill are allowed to undergo the third haemodialysis permanently”.
The Government submitted a document from the haemodialysis section of the SCR according to which, in July 2003, twenty-six applicants underwent two haemodialysis sessions per week; four applicants underwent three sessions per week and the rest two or three haemodialysis sessions per week. According to the Government, the number of haemodialysis sessions is determined in each case by the doctors, who consider the gravity of the disease, the presence or absence of complications and the results of laboratory investigations.
In their application lodged on 30 April 2003 the applicants submitted that there were twenty haemodialysis machines at the SCR which were all old and in a bad technical condition. In their observations of 1 September 2004 they submitted that before their application was lodged with the Court half of the haemodialysis machines were in bad technical condition; however, they had been replaced after the application was lodged with the Court on 30 April 2003. They also stated: “In 2001 the majority of the haemodialysis machines performed dialysis on an acetate basis. After the application was lodged with the Court, the number of machines that performed haemodialysis on a bicarbonate basis increased. Today the majority of the applicants are undergoing bicarbonate-based haemodialysis. The bicarbonate-based haemodialysis is much better assimilated by most of the applicants.”
The Government submit that before December 2003 there were twenty haemodialysis machines, eleven of which were new and the rest of which were old. In December 2003 the old machines had become unusable because of the shelf-life provision in their documentation and accordingly they had been replaced with new machines of German origin.
According to the applicants, before the application was introduced, the water used for haemodialysis was not distilled. “After the application was lodged with the Court a water-filtration system was purchased and installed. After the new system was installed, they began to feel much better....”
The Government submit that a contract has been signed with a German company and in the next five years the number of haemodialysis machines will double.
According to the applicants, many of them live in the provinces and have to travel to Chişinău each time they need the treatment. Although there is no legal obligation in this respect, there is a practice according to which the local authorities cover the travel expenses for persons suffering renal failure who have to go to Chişinău for haemodialysis. The applicants submit that this practice is usually followed and most of them get reimbursed. However, there are cases when these expenses are not covered and it is too expensive for the applicants to pay themselves.
According to the Government, the obligation to cover the transportation expenses of invalids of the first and second degrees is provided for in Section 41 of the Law 821 on the protection of invalids (see below). The Government submitted copies of the payment rolls proving the payment of all the travel expenses and the applicants did not make any comment on them.
On 24 May 2003 the applicants sent the Court a copy of a letter addressed to them and to several Chişinău newspapers by the doctors of the SCR’s haemodialysis section, together with a chart setting out the expenses of each patient. The letter was signed by the medical staff of the Haemodialysis section of the SCR but not by the applicants. The chart was drawn up on 16 May 2003 and bore the signatures of all the patients of the haemodialysis section of the SCR. The applicants’ representative admitted that all the applicants had signed the chart.
According to the letter signed by thirty-two doctors, there was a media campaign led by some Chişinău newspapers and news agencies after the present application was lodged with the Court. The doctors stated that the information presented by the newspapers was erroneous and misleading. They submitted that the situation of renal failure patients from the SCR had been over-dramatised for political reasons related to the forthcoming local elections and that it did not reflect reality. The doctors argued that the death rate of renal failure patients had diminished tenfold in comparison with the 1980s and that State financing of haemodialysis had increased threefold in the last two years. “We understand that the state of the country’s economy is not perfect for one to have everything; and that is how it is in the case of health protection”. The doctors contradicted the statement made by the applicants’ representatives in various newspaper articles according to which all the haemodialysis machines were old. According to the doctors, eight machines were brand new. They also disagreed that the situation of the patients of the SCR was worse than that of the patients of the SU. They argued that their patients were provided with free basic services and medication in exactly the same conditions as patients from other hospitals, and that it was a general practice in Moldova that doctors would ask the patients to buy supplementary medication not covered by the “legal guaranteed minimum”. The doctors also referred to the death of Gheorghe Lungu and stated that he had been their patient for ten years. According to them, in 1995 he had had both his kidneys removed and in the last year of his life he had suffered terminal chronic renal failure and arthritis-like tuberculosis.
The submitted chart contained information as to the coverage of the applicants’ expenses for services/medication and for travel expenses. According to the chart, from the total number of forty-nine applicants who were patients of the SCR, three applicants (Chiril Cebotari, Tamara Ciorba and Ion Puşcaş) had the services and medication not covered by the hospital paid for by the local authorities of their hometowns. Another three applicants (Galina Chiriacova, Natalia Iacovenco and Victor Neagov), in addition to the services and medication covered by the hospital, also had the rest partially covered by the local authorities of their hometowns. Only four applicants (Maria Lozinshi, Constantin Novac, Gavriil Tofan and Eduard Pritula) did not have their travel expenses covered by the local authorities, and three of those had been without cover for only two months.
In their application submitted on 30 April 2003 the applicants argued that their disability allowance was insufficient to pay for the medication necessary for the haemodialysis which was not provided free by the State. According to them, the minimum weekly expense associated with the haemodialysis amounted to MDL 100 per person. Therefore they could not afford the procedure. They submitted that many of them were forced to undergo the procedure without all the necessary medication and were caused unbearable pain and suffering. According to them, there were cases of patients who refused to undergo the procedure for lack of money, and died.
According to the applicants, “as a result of the reduced number of haemodialysis sessions ... the level of microelements in the blood decreases significantly and that causes headaches, vomiting, sickness, cramps...”
The applicants submit that the scarcity of funds made the death rate among renal failure patients higher than in other countries. They invoke the case of Gheorghe Lungu, an applicant who died in 2003. According to them, the death rate in the USA is 5.5 deaths per 100 patients per year while at the SCR the death rate before 2004 was 7-10 and 8-11 deaths. “The increased death rate was determined by the inadequacy of haemodialysis and by the poor anaemia status. By improving the quality of haemodialysis, the death rate significantly decreased after August 2003, when the new haemodialysis machines and the water filtration system were installed”.
According to the Government, in the last four to five years there have been no deaths due to the insufficiency of haemodialysis. The Government contests the death rate invoked by the applicants, arguing that the applicants had failed to give the names of the persons who had allegedly died because of insufficient or improper medical care. As to the case of Gheorghe Lungu, the Government submitted that he had survived for ten years without kidneys and that he had died in 2003 of chronic arthritis-like tuberculosis and terminal renal failure. The Government submitted an autopsy report in support of their argument and the applicants did not comment on it.
The Government submitted a fifteen minute video, filmed on 4 May 2004 in the haemodialysis section of the SCR. The tape contains a brief presentation of the haemodialysis section and interviews with a doctor from that section; a patient who had undergone haemodialysis at the SCR for one year; a patient who had undergone haemodialysis at the SCR for ten years and an applicant in the present case; a patient who had undergone haemodialysis at the SCR for five years; and a patient who had undergone haemodialysis at the SCR for four years.
The doctor made a brief presentation of the haemodialysis section and stated in particular that the section had ninety-eight patients and that nobody has ever been refused haemodialysis treatment.
Three of the patients stated that they received two haemodialysis sessions per week, but that they could receive a third session if need be. The fourth patient answered that he received two haemodialysis sessions per week.
All the patients stated that they had never been refused a haemodialysis treatment; that they received all the necessary medication free; that their transportation expenses were covered and that they had never been discriminated against.
Three of the patients stated that they sometimes used to spend the night at the hospital and that in those cases they were provided with free food. The fourth patient stated that he never needed to spend the night at the hospital.
All the patients stated that they had never been maltreated by the hospital personnel and that they considered that the State took proper care of them.
The applicants’ representative submits that the interviewer asked the patients leading questions aimed at obtaining answers convenient to the Government. He also argues that the video shows the present situation of the haemodialysis section and that it does not refer to the situation prior to 2004.
The Constitution of the Republic of Moldova provides in Article 36:
“(2) The minimum level of health care protection provided by the State shall be free.”
Law no. 267-XIV of 3 February 1999, on the legal minimum of medical assistance guaranteed by the State, provides:
“Section 1. In accordance with the Constitution, the State guarantees to provide the population of the Republic of Moldova with the minimum level of health care, hereinafter ‘the guaranteed minimum’, in conformity with the Annex attached to the present law.
Section 2. (1) The guaranteed minimum shall be provided by all public health-care institutions.
(2) The guaranteed minimum shall be provided to all the citizens of the Republic of Moldova.
(3) Foreign citizens and stateless persons shall be provided with health care within the guaranteed minimum in the limits provided for in Section 4 (c).
Section 4. – The guaranteed minimum shall comprise:
...
c) urgent medical assistance at the pre-hospitalisation and hospitalisation stage, when the patient’s life is endangered by his or her state of health.
Section 5. The financing of the guaranteed minimum, in accordance with the State budget law for the current year, shall be carried out by the Government and the local authorities.
Section 6. Medical services over and above the guaranteed minimum shall be paid for by the individual patient, and the money obtained shall remain at the disposal of the health-care institutions...”
Law no. 821 of 24 December 1991 on the social protection of invalids provides:
“Section 41. Invalids of the first and second degree, invalid children and persons accompanying invalids of the first and second degree or an invalid child shall be compensated for their travel expenses (except taxis) by the local administration organs.”
According to Annex 3 (8) of Law no. 1463-XV of 15 November 2002, in the State budget for 2003 MDL 5 million was allocated for the treatment of patients suffering renal failure.
Law no. 1585 of 27 February 1998, on compulsory medical insurance, entered into force on 1 January 2004 and provides:
“Section 1. (1) Compulsory medical insurance is a system of health protection based on insurance premiums and on funds created for this purpose. The system of compulsory medical insurance offers the citizens of the Republic of Moldova equal possibilities for obtaining necessary and quality medical assistance.
(2) Compulsory medical insurance is realised by means of contracts concluded between insured persons and the insurer....”
The Government sent the Court four letters in which the Presidents of the Court of Appeal, the Bălţi District Court and the Orhei District Court, stated that if renal failure patients brought actions concerning insufficient medical care, their courts would examine them. They also stated that no similar cases had been examined by their courts. The President of the Briceni District Court stated that his court had examined a case in which a hospital was obliged to pay compensation to a renal failure patient; however the letter did not state what the compensation was for and no copy of the relevant judgment was attached to it.
It appears from the parties’ submissions that after the new law on medical insurance entered into force on 1 January 2004 the situation of the haemodialysis patients improved considerably in respect of the supply of free medication. In December 2003 half of the haemodialysis machines from the SCR which were old were replaced with new ones. On an unspecified date after the application was introduced with the Court a new system of filtration of water was purchased and installed in the SCR haemodialysis section.


ITEMID: 001-92538
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KERECHASHVILI v. GEORGIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Omar Kerechashvili, is a Georgian national who was born in 1940 and lives in Tbilisi. From 11 October 2004 he was represented before the Court by Mr Z. Bourdouli, a lawyer belonging to the Georgian Young Lawyers’ Association. The Georgian Government (“the Government”) were represented first by Mrs E. Gureshidze, their general representative at the Court, and after 1 September 2005 by Mrs I. Barthaïa, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 May 2000 the applicant, a civil servant employed at the Ministry of Social Security since 1974, was told that he was to be made redundant because the department in charge of disabled persons, within which he was the deputy director of the social reinsertion section, was to be reorganised after a decision to merge the Health and Social Security Ministries taken in December 1999.
The applicant brought proceedings against his employer, seeking reinstatement and the sum of 1,094.91 laris (GEL) (approximately 478 euros (EUR)) for arrears of salary and unpaid bonuses. He submitted that on a number of occasions during the period 1998-2000 his salary (GEL 651.61 (approximately EUR 285)) had not been paid. In addition, he had not been paid bonuses for the third quarter of 1998, all four quarters in 1999 and two quarters in 2000 (GEL 443.30 (approximately EUR 194)).
The defendant refused to reinstate the applicant but agreed that he was entitled to payment of the sum he claimed, amounting to GEL 1,094.91.
On 14 September 2000, finding that the decision to make the applicant redundant had been taken in accordance with the law, the Vake-Saburtalo Court of First Instance in Tbilisi dismissed the first part of the applicant’s claim. For the rest, it decided that the ministry should pay him the sum of GEL 1,094.91.
The applicant appealed, again asking for his redundancy notice to be declared null and void, and complained that the sums he was owed had not been paid to him on the day his employment was terminated, as required by Article 96 of the Labour Code.
On 4 December 2000 the Civil Division of the Tbilisi Regional Court upheld the decision of 14 September 2000 in its entirety, adding that the applicant was entitled to assert his rights under Article 96 of the Labour Code. In the reasons it gave for dismissing the first part of the applicant’s claim, the Regional Court noted that the applicant, like every other civil servant made redundant at the same time, had been given sufficient notice that he was to lose his employment when the service in which he worked was closed down. It ruled that the procedure had been perfectly compliant with the requirements of section 97(1) of the Civil Service Act, whereas the applicant had refused to take up a different post the administration had offered him in exchange, as required by section 97(2) of the Act.
The applicant appealed on points of law against the dismissal of his application to set aside his redundancy. As he had not contested before the Supreme Court that part of the appellate court’s judgment which concerned payment of the debt of GEL 1,094.91, it became final and enforceable on 4 January 2001 (Articles 397 and 402 § 1 of the Code of Civil Procedure).
According to the applicant, the decision of 14 September 2000, as upheld on appeal on 4 December 2000, was never executed.
In his appeal on points of law, the applicant submitted that the Regional Court’s interpretation of section 97(1) of the Civil Service Act was incorrect and deprived him of his rights under section 97(2). He further complained that his appeal had been heard by the Civil Division instead of the Administrative Division.
On 13 April 2001 the Supreme Court held that the dispute was a labour dispute and was to be dealt with according to the rules of civil procedure. It found no breach or incorrect interpretation of the law by the Regional Court and dismissed the applicant’s appeal. Notification of the cassation judgment was dated 1 June 2001, but was served on the applicant on 13 June 2001.
In a letter of 22 June 2001, the Georgian ombudswoman informed the applicant that she had referred to the Ministry of Justice his complaint of a failure to execute the decision of 14 September 2000. On 30 July 2001 the Vake-Saburtalo Court of First Instance issued the applicant with the writ of execution required to enforce execution of the decision of 14 September 2000, as upheld on appeal on 4 December 2000. On 31 July 2001 the applicant presented the writ, together with a written request for enforcement, to the competent bailiff (section 26 of the Court Orders (Enforcement Procedure) Act). The Government sent the Court copies of the writ of execution and the written request for enforcement (see “The law” below).
...


ITEMID: 001-83779
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: RITTER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Eberhard Ritter, is a German national who was born in 1941 and lives in Berlin. He was represented before the Court by Mr K. - H. Christoph, a lawyer practising in Berlin.
The applicant was a citizen of the German Democratic Republic (“GDR”) and is an engineer by profession. He inter alia contributed to the optional supplementary pension system and an additional pension scheme open to engineers (see “Relevant domestic law” below).
On 18 February 1998 the Federal Insurance Fund for Salaried Employees (Bundesversicherungsanstalt für Angestellte – hereinafter referred to as “Insurance Fund”) provided the applicant with information as to his contribution periods and the basis for the calculation of his pension (Kontenklärungsbescheid und Rentenauskunft).
On 12 March 1998 he lodged an objection. On 14 April 2000 the Insurance Fund issued a new decision taking into account additional contribution periods, thereby partially quashing the initial decision. The applicant then supplemented his pending objection, which was finally rejected on 30 March 2001.
Subsequently, he brought an action in the Berlin Social Court contesting that his contributions to the GDR optional supplementary pension scheme were only taken into account up to the social security contribution ceiling for the Federal Republic of Germany (Beitragsbemessungsgrenze - West) according to the provisions of Social Code No. 6. However, the applicant did not contest the determination of his contribution periods.
On 17 December 2001 the Social Court rejected his action.
On 18 June 2003 the Social Court of Appeal rejected the applicant’s appeal holding that the application of the social security contribution ceiling could only be the subject of proceedings dealing with the actual amount of pension whereas the present proceedings only concerned the establishment of the periods during which contributions had been made. The court refused the applicant leave to appeal on points of law.
On 9 December 2003 the Federal Social Court rejected the applicant’s complaint.
On 25 February 2004 the Federal Constitutional Court refused to admit the applicant’s complaint.
On 17 January 2005 the Insurance Fund determined the amount of the applicant’s pension. On 1 March 2005 the applicant retired. On 23 March 2005 the Federal Insurance Fund rejected the applicant’s objection. He then brought an action in the Berlin Social Court and the proceedings appear to be still pending.
In the GDR there were a compulsory general pension scheme (Sozialpflichtversicherung), an optional supplementary pension scheme (Freiwillige Zusatzrentenversicherung) and furthermore additional pension schemes for certain professions or groups (Zusatz- und Sonderversorgungs-systeme), which led to a considerable increase of the amount of pension.
For a more detailed overview of the GDR pension system, its transfer to the Federal Republic of Germany (“FRG”) and the calculation of pensions see the Court’s recent decision in the case of Klose and Others (see Klose and Others v. Germany (dec.), no. 12923/03, 25 September 2007).
Section 88 of the Social Courts Act provides:
“(1) Where no decision has been rendered regarding an application for the performance of an administrative act within a reasonable time and without sufficient grounds, an action in court shall be admissible six months after an application for the performance of the administrative act has been submitted. (...)
(2) The same applies if no decision upon an objection was rendered providing that a three-month time-limit shall apply as a reasonable time limit.”


ITEMID: 001-57971
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF BULUT v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1 (tribunal established by law, impartiality, hearing);Violation of Art. 6-1 (equality of arms);Damage - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo
TEXT: 7. Mr Mikdat Bulut, the applicant, is a waiter. He was born in 1969 and lives in Innsbruck.
8. In 1990 he faced charges of attempting to bribe staff of the Innsbruck Employment Agency. He had offered money to two civil servants as an inducement to issue him false certificates.
9. On 6 March 1990, before the trial at the Innsbruck Regional Court (Landesgericht) had begun, the presiding judge, Mr Werus, sent a note to Mr Heiss, the applicant's lawyer at the time, informing him that one of the members of the court, Judge Schaumburger, had taken part in the questioning of two witnesses during the preliminary investigation. Mr Heiss was asked to inform the court by 16 March 1990 whether he wanted to challenge Judge Schaumburger on that ground. Mr Heiss did not reply.
10. The trial took place on 23 March 1990. Before the court began to hear evidence, the presiding judge again mentioned that Mr Schaumburger had acted as investigating judge for part of the preliminary proceedings. The record of the trial states that the parties waived the right to raise this point as a ground of nullity ("Auf Geltendmachung dieses Umstandes als Nichtigkeitsgrund wird allseits verzichtet").
11. In a statutory declaration (eidesstättige Erklärung) submitted during the proceedings before the European Commission of Human Rights, Mr Heiss stated that he had answered the question whether he was prepared to waive the right to raise the point as a ground of nullity by saying that, in his view, it was not possible to waive the right to raise questions relating to the disqualification of a judge. He considered that it was only possible to waive a challenge to a judge if it was for partiality. In a document which was likewise submitted to the Commission Mr Werus stated that the waiver had been made as recorded. He added that he remembered Mr Heiss adding words to the effect that he did not consider the waiver to be valid.
12. The applicant was found guilty as charged and fined 25,200 Austrian schillings (ATS), suspended for three years.
13. Mr Bulut filed an appeal on grounds of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung) against sentence to the Supreme Court (Oberster Gerichtshof). In his appeal on grounds of nullity under Article 281 para. 1 (1) of the Code of Criminal Procedure (Strafprozeßordnung - see paragraph 19 below) the applicant alleged that he had been heard by a judge who was disqualified from sitting by law (ex lege). He further alleged breaches of Article 281 para. 1 (4), (5) and (9)(a). In connection with sub-paragraph (4) (see paragraph 19 below), the applicant complained that the trial court should have tested the witnesses' ability to recognise the applicant's voice over the telephone. Under sub-paragraph (5) (see paragraph 19 below) he further complained, inter alia, that the trial court had found two witnesses completely credible and had found that inconsistencies in their stories were easily explained as mistakes of memory. He alleged that the contradictions were fundamental and that there should have been a confrontation between the two witnesses and the applicant's brother, who had for a while been suspected of the offence. The prosecution also appealed against sentence.
14. On 29 June 1990, the Attorney-General (Generalprokurator) filed the following observations ("croquis") with the Supreme Court:
"In the view of the Attorney-General's Office, the appeallodged by the accused, Mr Mikdat Bulut, meets thecriteria for a decision under Article 285d of the Code ofCriminal Procedure. A copy of the decision isrequested."
These observations were not disclosed to the defence.
15. On 7 August 1990 the Supreme Court rejected the applicant's appeal under Article 285d para. 1 of the Code of Criminal Procedure (see paragraph 20 below). After confirming that a disqualified judge had taken part in the trial, the Supreme Court referred to the waiver entered in the record of the trial, and noted that Article 281 para. 1 (1) required a ground of nullity relating to Articles 67 and 68 of the Code of Criminal Procedure (see paragraph 18 below) first to have been raised at the trial itself. In respect of the grounds of nullity under Article 281 para. 1 (5), the Supreme Court found that the complaints were an attempt to challenge the assessment of the evidence made by the trial judges and as such inadmissible and insufficient to constitute a ground of nullity. Notwithstanding the applicant's assertion to the contrary, the Supreme Court also found that there had in fact been a confrontation between the two witnesses and the applicant's brother. The appeal on grounds of nullity was rejected. The Supreme Court remitted the applicant's appeal against sentence to the Innsbruck Court of Appeal (Oberlandesgericht).
16. On 3 October 1990, after a hearing, the Innsbruck Court of Appeal increased the applicant's sentence to nine months' imprisonment, suspended for three years.
17. By Article 90 para. 1 of the Federal Constitution,
"Hearings by trial courts in civil and criminal casesshall be oral and public. Exceptions may be prescribedby law."
18. Article 68 para. 2 of the Code of Criminal Procedure provides that a person shall be disqualified (ausgeschlossen) from participating in a trial if he has acted as investigating judge in the same case.
19. Article 281 para. 1 of the Code of Criminal Procedure lays down the specific circumstances in which an appeal on grounds of nullity may be made, including:
"1. if the court was not properly constituted, ... orif a judge took part in the decision who was disqualified(under Articles 67 and 68), unless the ground of nullitywas known to the appellant before or during the trial andwas not raised by him at the beginning of the trial or assoon as he became aware of it;
...
4. if during the trial no decision was given on anapplication by the appellant or in an interlocutorydecision rejecting an application or objection by him thecourt disregarded or incorrectly applied laws or rules ofprocedure with which compliance is required by the verynature of a procedure which affords safeguards to theprosecution and the defence;
5. if the judgment of the trial court in respect ofdecisive facts is unclear, incomplete orself-contradictory; ... ..."
20. Article 285d para. 1 of the Code of Criminal Procedure provides:
"During the private deliberations, an appeal on groundsof nullity may be rejected immediately:
1. if it ought to have been rejected by the court atfirst instance under Article 285a ...;
2. if it is based on the grounds of nullity enumeratedin Article 281 para. 1 (1-8 and 11) and if the SupremeCourt unanimously finds that the complaint should bedismissed as manifestly ill-founded without any need forfurther deliberation."
21. Following the Brandstetter v. Austria judgment of 28 August 1991 (Series A no. 211) and since 1 September 1993, Article 35 para. 2 of the Code of Criminal Procedure reads as follows:
"If the public prosecutor at an appellate court submitsobservations on an appeal on grounds of nullity ..., theappellate court shall communicate those observations tothe accused (person concerned), advising him that he maysubmit comments on them within a reasonable period oftime that it shall determine. Such communication may bedispensed with if the prosecutor confines himself toopposing the appeal without adducing any argument, if hemerely supports the accused or if the accused's appeal isupheld."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104933
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ZUGIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 10
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1925 and lives in Zagreb.
5. On 11 December 2000 the public utility company V.O., basing its case on unpaid bills for water supply services, instituted enforcement proceedings against the applicant in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking payment of the debt.
6. On 24 January 2001 the Court issued a writ of execution (rješenje o ovrsi) ordering the applicant to pay the amounts sought. However, since the applicant challenged the writ by objecting to it on 19 March 2001, the court set it aside. As a consequence, the enforcement proceedings were, pursuant to the relevant legislation, transformed into, and resumed as, regular civil proceedings.
7. The applicant, who has a formal education as a lawyer but is not an advocate, represented himself in the proceedings.
8. On 15 November 2005 judge J.G.F. of the Zagreb Municipal Court delivered a judgment ruling for the plaintiff.
9. On 27 December 2005 the applicant appealed against the firstinstance judgment. Section 357 of the Civil Procedure Act provides that an appeal to a second-instance court has to be lodged through a firstinstance court. Under section 358 of the same Act the first-instance court conducts a preliminary examination of the appeal and may declare it inadmissible if it finds that it does not meet certain procedural requirements, for example if it finds that it was lodged outside the statutory time-limit. It is, however, not authorised to decide on the merits of the appeal. Therefore, the applicant submitted his appeal intended for Zagreb County Court (Županijski sud u Zagrebu) to Zagreb Municipal Court. In his appeal he wrote, inter alia:
“After twenty months of waiting ... on 15 November 2005 the second hearing was held, at which, in substance and without hearing [the parties] (apart from stating that the parties were present and that they maintained their positions) the impugned judgment was rendered.
It is indicative to mention here that the judge, before dictating the operative provisions of the judgment, asked the defendant whether ‘he would pay this’ to which the defendant replied ‘where did you get that idea?’ [‘što Vam pada na pamet? ‘]and asked whether she had examined the case file.... The judge angrily turned sideways in her chair and dictated the operative provisions of the judgment in the name of the Republic of Croatia to the typist, using a funny expression [navodeći komičan izraz] that the parties were asking for a reasoned judgment – as if in adversarial proceedings judgments without reasons or instruction on remedies available against them existed. Unfortunately, the court did not record these dialogues between the judge and the defendant in the minutes. What judicial professionalism this is! [Kakva li je ovo sudačka profesionalnost!]
It is evident from the above-mentioned that in these proceedings no hearing was held in accordance with the law, which amounts to breaches of section 354 paragraph 2 subparagraphs 6 and 11 of the Civil Procedure Act. Apart from this, from the contested judgment or the transcripts of the hearings it cannot be discerned whether the court took any evidence ... for which reason the judgment could not be satisfactorily reasoned ...
Instead of referring to the evidence taken and assessing its evidentiary value, the court immediately ... states on what basis it arrived at the contested findings, from which it is clear that it accepted all arguments of the plaintiff ...”
10. After it carried out the preliminary examination of the appeal, Zagreb Municipal Court forwarded it together with the case file to Zagreb County Court.
11. On 3 April 2007 Judge M.P. at Zagreb County Court delivered a judgment dismissing the applicant’s appeal and upholding the first-instance judgment.
12. On 24 July 2007 the applicant lodged a constitutional complaint against the second-instance judgment. On 21 January 2010 the Constitutional Court (Ustavni sud Republike Hrvatske) declared his constitutional complaint inadmissible. It found that even though the applicant relied in his constitutional complaint on the relevant Articles of the Constitution guaranteeing the right to a fair hearing and equality before the law, he had not substantiated his complaint by any constitutional law arguments but had merely repeated the arguments raised in the proceedings before the ordinary courts. Therefore, the Constitutional Court had been unable to examine the merits of his constitutional complaint.
13. After it had completed the preliminary examination of the applicant’s appeal of 27 December 2005 in the above proceedings, on 4 January 2006 Judge J.G.F. at Zagreb Municipal Court issued a decision whereby it fined the applicant 500 Croatian kunas (HRK) for contempt of court. The relevant part of the decision read as follows:
“I. The defendant Nikola Žugić from Zagreb ... is hereby fined 500 [Croatian] kunas because in his appeal of 27 December 2005 he insulted the court by stating: ‘It is indicative to mention here that the judge, before dictating the operative provisions of the judgment, asked the defendant whether ‘he would pay this’, to which the defendant replied ‘where did you get that idea?’ and asked whether she had examined the case file.... The judge angrily turned sideways in her chair and dictated the operative provisions of the judgment in the name of the Republic of Croatia to the typist, using a funny expression that the parties were asking for a reasoned judgment – as if in adversarial proceedings judgments without reasons or instruction on remedies available against them existed. Unfortunately, the court did not record these dialogues between the judge and the defendant in the minutes. What judicial professionalism this is!’
...
In the appeal of 27 December 2005 the defendant, insulted the court by, inter alia, [using] the words quoted in the operative provisions of this decision.
It would follow from the quoted text that during the main hearing the court communicated with the parties in an improper way, that the judge behaved improperly and that she does not know the law. All this constitutes contempt of court and the statements quoted exceed the limits of necessary respect for the court, even attempting to call into question the knowledge and expertise of the judge at issue, which is an impermissible way for the parties to communicate with the court because it represents a direct insult to the judge as a person, implying that she is ignorant and incompetent to exercise the duty of a judge.
When imposing the fine the court took into account the fact that the defendant insulted not only the court as an institution, but also the judge as a person, on account of which he had to be fined pursuant to section 110 taken in conjunction with section 10 of the [Civil Procedure Act].”
14. On 16 January 2006 the applicant lodged an appeal against that decision arguing, inter alia, that his statements had been arbitrarily interpreted by the first-instance court, that they had not been insulting, and that he had not had any intention of insulting anyone.
15. By a decision of 3 April 2007 Judge M.P. at Zagreb County Court dismissed the applicant’s appeal and upheld the first-instance decision. The relevant part of that decision read as follows:
“In this court’s view, the finding of the first-instance court that in his appeal the defendant insulted the court by making the above statements is correct ... It is to be noted that by the statements made in the appeal the defendant demonstrated disrespect for the court, which undoubtedly represents an improper way for the parties to communicate with the court, and exceeds the limits of a civilised and fair relationship with the court as an institution of a society.”
16. On 24 July 2007 the applicant lodged a constitutional complaint against the second-instance decision. On 25 October 2007 the Constitutional Court declared his constitutional complaint inadmissible on the ground that the contested decision did not concern the merits of the case and as such was not susceptible to constitutional review.
17. On 21 May 2008 the Zagreb Municipal Court of its own motion issued a writ of execution by garnishment of a part of the applicant’s pension with a view to collecting the above fine. The applicant appealed and the proceedings are currently pending before the Zagreb County Court.
18. The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (‘constitutional right’)...
2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after a decision on these legal remedies has been given.”
19. The relevant part of the 1977 Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991 and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 112/1999, 117/2003 and 84/2008 – “the Civil Procedure Act”), as in force at the relevant time, read as follows:
“1. ...
2. Unless otherwise provided by this Act, the court shall fine a natural person between 500 and 10,000 [Croatian] kunas, or a legal entity between 2,500 and 50,000 [Croatian] kunas, if they commit a serious abuse of the rights they have in the proceedings.
3. The fine referred to in paragraph (2) of this section may be imposed on a party and an intervener, as well as on their representative if he or she is responsible for the abuse of rights.
4. The fine shall be imposed by the first-instance court. Outside the main hearing the fine shall be imposed by a single judge or the presiding judge.
5. ...
6. ...
7. The imposed fine shall be collected automatically [ex officio] as a pecuniary debt in accordance with the rules of enforcement procedure.”
“1. The first-instance court shall fine a natural person between 500 and 5,000 [Croatian] kunas, or a legal person between 2,000 and 20,000 [Croatian] kunas, if in his, her or its submission they have insulted the court, a party or other participant in the proceedings. The fine may also be imposed on a representative of a party or an intervener if he or she is responsible for insulting the court.
2. Provisions of section 10 of this Act shall apply mutatis mutandis to cases referred to in paragraph (1) of this section.
3. Provisions of preceding paragraphs of this section shall apply in all cases where the court imposes a fine pursuant to the provisions of this Act, unless otherwise expressly provided for particular cases.”
20. The 2008 Amendments to the 1977 Civil Procedure Act (Zakon o izmjenama i dopunama Zakona o parničnom postupku, Official Gazette no. 84/2008 and 123/2008 (corrigendum), which entered into force on 1 October 2008, amended, inter alia, paragraph 7 and added five new paragraphs (8 to 12) to section 10 of the 1977 Civil Procedure Act. The relevant part of the amended section 10 reads as follows:
“(7) If the person fined ... does not pay the fine within the fixed time-limit ... the court shall ... inform the [Tax Administration] of the unpaid fine with a view to collecting the fine [through tax enforcement proceedings] ...
...
(12)... If within a year of service of ... a decision referred to in paragraph 2 of this section [the Tax Administration] does not succeed in collecting the fine, [it] shall inform ... the court [thereof], whereupon the fine shall be converted into a prison sentence in accordance with the rules of criminal law on converting fines into prison sentences, on which the court that imposed the fine shall issue a decision ....”
21. Section 52(1) of the 2008 Amendments provided that they were applicable to all pending proceedings unless otherwise provided in that section.
22. Article 52(3) of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments) reads as follows:
“A fine shall be converted into a prison sentence so that one [average] daily income is converted into one day of imprisonment, where the maximum duration of imprisonment into which the fine was converted shall not exceed twelve months.”
23. According to the practice of domestic courts, before taking a decision to convert the fine into a prison sentence a court has to summon and hear the person fined. An appeal always lies against such a decision.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-4684
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: DOYLE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Irish national, born in 1929 and living in Dublin. He is the father of Anne O'Brien.
He is represented before the Court by Mr G. O’Neill, a lawyer practising in Dublin.
On 17 May 1974 Anne O'Brien and her daughters Jacqueline and Ann-Marie were killed in a terrorist bombing in Dublin. The cars used for the bombing were stolen in Belfast, Northern Ireland on the same day.
The Irish authorities conducted extensive inquiries but were unable to bring charges against any person. The files remain open. The Royal Ulster Constabulary (RUC) in Northern Ireland has conducted an inquiry into the theft of the vehicles and related offences which did not produce any results. However, there was no formal murder inquiry by the RUC.
On 6 July 1993 ITV, a television station in the United Kingdom, broadcast a programme in which the adequacy of the RUC inquiry was discussed.
On 21 February 1997 the applicant instituted proceedings in the High Court in the Republic of Ireland in order to force the Irish police to disclose information in its possession to the effect that the United Kingdom authorities had not fully co-operated with the Irish authorities in the murder inquiry. The applicant specified that this evidence would be used in the Convention proceedings.
On 27 August 1997 the High Court considered that this was not a case where it should exercise its inherent jurisdiction to order discovery. According to precedent, this jurisdiction would only be exercised in cases where the plaintiff had clear evidence of wrongdoing but did not know the identity of the wrongdoer which was known to the defendant.
The decision of the High Court was upheld by the Supreme Court on 22 July 1998.


ITEMID: 001-69120
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BUZESCU v. ROMANIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 8. The applicant was born in 1951 and lives in Bucharest.
9. In 1977 the applicant joined the Constanţa Bar (Romania). He practised as a lawyer until 1981, when he left for the United States. As a result, the Romanian authorities deprived him of his Romanian citizenship and required him to notify the Constanţa Bar that he had ceased his professional activities and to transfer to his colleagues the cases on which he was then working.
10. In a decision of 30 October 1981 the Constanţa Bar acknowledged the applicant’s request to cease his professional activities and decided to cancel the applicant’s membership. According to the applicant, he did not request that his membership of the Bar be cancelled.
11. In 1985 the applicant became a member of the New York Bar and practised there as an attorney until 1991.
12. In August 1990 the applicant applied to the Bucharest Bar to be registered as a lawyer there. On 5 November 1990 the Chairman of the Romanian Union of Lawyers (Uniunea Avocaţilor din România – “the UAR”) sent him the following reply:
“Until a new law concerning lawyers is passed, we can only order the annulment of the Constanţa Bar’s decision to cancel your membership, so that you may resume your membership of that bar, but you will be deemed ineligible to practise until you return to this country. ... Indeed, the current law does not allow you to be a member of two bars, irrespective of the fact that one such bar is in this country and the other is abroad.”
13. The Chairman of the UAR confirmed his position in the course of subsequent meetings with the applicant in March 1991.
14. In March 1991, after his Romanian citizenship had been restored, the applicant returned to live in Romania. On 12 April 1991 he applied to the Constanţa Bar for the annulment of the 1981 decision, on the ground that he had never requested the cancellation of his Bar membership. He also applied for reinstatement as a lawyer and to be removed from the list of lawyers who were ineligible to practise as he had been a member of another Bar.
15. On 8 May 1991 the Constanţa Bar annulled the 1981 decision to remove the applicant’s name from the Bar roll but ordered his re-registration on the list of lawyers ineligible to practise, as he was still a member of another bar.
16. From 1991 onwards the applicant offered investment advice to several multinational corporate clients investing in Romania.
17. In 1994 he founded a company, Petru Buzescu SRL, subsequently renamed Buzescu & Co SRL, of which he was the sole shareholder and whose main field of activity was business and management consultancy.
18. On 19 May 1996 the Constanţa Bar decided to remove the applicant’s ineligible status and to register his name on the list of practising lawyers with effect from 10 May 1996.
19. From May 1996 until October 1999, given that he had been reinstated by the Constanţa Bar, he paid monthly Bar fees and UAR fees amounting to 1,983,000 Romanian lei (approximately 225 euros [“EUR”], according to the average exchange rate for the relevant period).
20. On 14 May 1996, in accordance with the Legal Profession Act (Law no. 51/1995) and the Rules governing the Legal Profession, the applicant submitted an application to the Bucharest Bar for a transfer from the Constanţa Bar. He did not receive any response.
21. On 27 June 1996 the UAR decided that, in accordance with Article 5 § 3 (j) of Legislative Decree no. 90/1990 concerning the organisation and practice of the legal profession, the applicant’s reinstatement as a lawyer fell within its own field of competence and not that of the Bar. The UAR thus found that the Constanţa Bar had acted ultra vires in taking its decision of 8 May 1991. Furthermore, it declared that the Constanţa Bar’s decision of 19 May 1996, annulling the applicant’s ineligible status, was illegal, having regard to the fact that it had been based on the unlawful decision of 1991.
22. It appears that the UAR’s decision of 27 June 1996 was never notified either to the applicant or to the Constanţa Bar. The decision was not communicated to him until 10 February 1998, when he was involved in other proceedings before the Bucharest Court of Appeal.
23. On 3 September 1996, following a communication from the Embassy of the United States, G.D., head of a department of the Romanian Ministry of Foreign Affairs, sent a letter to the Chairman of the UAR pointing out that the applicant’s re-registration with the Bar in 1991 was an act of reparation, that he was the legal adviser for Romania for a number of important companies from the United States mentioned in the letter, and that the best possible ways of resolving his case should be considered in the interests of good relations between the two countries.
24. On 27 November 1996, having received no response to his application for a transfer, the applicant submitted a renewed application to the Bucharest Bar for leave to be transferred from the Constanţa Bar.
25. As he did not receive any response, on 18 March 1997 the applicant brought an action before the Bucharest Regional Court, in accordance with the Administrative Litigation Act (Law no. 29/1990). He asked the court to establish that he had a right to be transferred from the Constanţa Bar to the Bucharest Bar, to compel the latter to allow his application for a transfer and to issue a decision authorising him to practise as a lawyer in a private law firm.
26. Following an application by the Bucharest Bar for a change of venue (declinare a competentei), the Bucharest Regional Court referred the case to the Bucharest Court of Appeal.
27. During the proceedings, and following several hearings, the Bucharest Bar invited the applicant to attend a meeting organised by the Bar Council on 15 May 1997. The applicant was informed at this meeting that the Bucharest Bar was willing to consider his application for a transfer, provided that he clarified his status with the UAR. He was then told that the UAR had annulled his reinstatement as a member of the Constanţa Bar. The applicant requested the Bucharest Bar to notify him in writing about its position in respect of his application for a transfer. On 4 June 1997 the Bucharest Bar sent the applicant a letter stating the position which it had expressed orally on 15 May 1997 and informing him of the UAR’s decision of 27 June 1996.
28. At the suggestion of the Dean of the Bucharest Bar, the applicant requested the UAR on 9 June 1997 “to clarify and resolve” his situation and to advise him of the manner in which his request could be met.
29. In July 1997 the applicant applied to the Court of Appeal requesting it to invite the UAR to join as a defendant the proceedings he had brought against the Bucharest Bar. He pointed out that he would be seeking to compel the UAR to disclose its decision of 27 June 1996. After several hearings, on 10 February 1998 the UAR submitted a copy of its decision of 27 June 1996 to the court.
30. On 18 February 1998 the applicant filed an application with the UAR requesting the annulment of that decision and confirmation of his status as a lawyer and a member of the Constanţa Bar, by way of reparation for an abuse committed under the communist regime. He also referred to his letter of 9 June 1997 to the UAR, pointing out that no answer had been given to his request that the UAR take the necessary decisions in order to clarify his situation.
31. On 14 March 1998 the UAR confirmed its decision of 27 June 1996, stating, inter alia, that the applicant had “committed fraud as he had practised as a lawyer all this time without legal authorisation”. No information was given to the applicant as to the manner in which his status could be clarified in order to practise as a legally registered lawyer. Similar statements concerning alleged fraud on the applicant’s part were made by the UAR during the proceedings before the Court of Appeal.
32. On 30 March 1998 the applicant instituted proceedings against the UAR before the Bucharest Court of Appeal seeking the annulment of the decision of 27 June 1996. In his application, he submitted that: following the entry into force of the Legal Profession Act (Law no. 51/1995), the UAR had had no power to annul the Constanţa Bar’s decision of 1991; that, under section 5 of Law no. 29/1990, its decision of 27 June 1996 was invalid since it had been delivered after the one-year period prescribed by that provision and since only the courts had had jurisdiction to annul in 1996 a decision taken in 1991; and that, as regards the merits of his application, which the court was expressly invited to examine, in the absence of specific regulations indicating where to apply to remedy an unlawful administrative decision deleting him from the Bar’s list of lawyers, he had acted in good faith, according to the principles of administrative law, when he had lodged his application with the Constanţa Bar in 1991. The applicant pointed out that his administrative application of 18 February 1998 to the UAR had not constituted a remedy. That case was joined to the proceedings against the Bucharest Bar.
33. On 30 June 1998, during a hearing before the Court of Appeal, the applicant alleged that the decision of 30 October 1981 had been unlawful since he had not applied to have his registration as a lawyer cancelled and, consequently, the Constanţa Bar had been entitled to adopt its decision of 8 May 1991 in order to redress the abuse committed in 1981.
The applicant submitted a number of questions to be answered by the UAR. The UAR replied to the question whether the fact that he had applied to the Constanţa Bar in 1991 for the annulment of the 1981 decision was unlawful: it considered that the applicant could have lodged such an application with the Bar, but that the decision to be taken fell within the UAR’s exclusive field of competence. The UAR conceded that the legal basis of its decision of 27 June 1996 was Article 5 § 3 (j) of Legislative Decree no. 90/1990. As regards the monthly Bar and UAR fees paid by the applicant, the UAR replied that these were insignificant and that, according to the letter of 3 September 1996 from the Ministry of Foreign Affairs, the applicant provided legal services to many companies, but he had not established an office for that purpose, nor had he paid the 10% fees to the lawyers’ social-security fund, thus committing fraud and unlawfully practising the profession of lawyer.
At the same hearing, suspecting that the decision of 27 June 1996 had been fabricated at a later date, namely during the proceedings before the Court of Appeal, the applicant also requested that the UAR’s original Register of Decisions be disclosed.
34. On 7 June 1998 the court acceded to the applicant’s request. However, on 15 September 1998 it reversed its decision of 7 June 1998 and ruled that the UAR did not have to disclose the original register. The court declared that, in the absence of a criminal complaint alleging forgery lodged by the applicant against the UAR, it was satisfied that the decision purportedly given on 27 June 1996 had indeed been given on that date. The court’s new position was due mainly to the production, by the UAR, of two photocopies, one being of an undated excerpt of the minutes of a meeting of 27 June 1996 describing the procedure leading to the impugned decision, and the other being of another page of those minutes with no link to the applicant’s case. Both these pages bore the stamp of the UAR and the signature of its secretary with the words “certified copy”. It is not clear from these documents how many pages the minutes of the meeting of 27 June 1996 amounted to in all, who signed the minutes or who voted during that meeting.
35. The applicant formally objected to that ruling, insisting that it was not his intention to prolong the procedure by lodging a criminal complaint and that the register could easily be disclosed, given that the UAR shared the same building as the court. The applicant’s objection was dismissed.
36. On 27 October 1998, during a hearing before the Court of Appeal, the applicant replied to questions submitted by the UAR. He contended that he had not provided legal services since he had come back to Romania, that he had not practised as a lawyer with an established office and that, consequently, he had not paid the 10% of his income required by Law no. 51/1995.
37. On 6 April 1999 the Bucharest Court of Appeal dismissed the applicant’s application, holding that, pursuant to Legislative Decree no. 90/1990, the Constanţa Bar had acted ultra vires in taking its decision of 8 May 1991, and that, according to Rule 130 of the Rules governing the Legal Profession (“the Rules”) issued by the UAR in 1995, the latter had been entitled to annul the decisions of local bars on grounds of illegality. As regards the fact that in 1991 the applicant had lodged an application with the Constanţa Bar, considering himself entitled to be reinstated as a lawyer by the body that had unlawfully cancelled his membership with the Bar in 1981, the Court noted that the 1981 decision had been adopted on the basis of a request by the applicant himself.
38. The applicant lodged an appeal with the Supreme Court of Justice against the aforementioned decision of the Bucharest Court of Appeal, submitting that that court had not taken into account all the arguments and the evidence submitted. Accordingly, in his grounds of appeal he submitted that the court had erroneously found that he had been at fault for not lodging an application with the competent body in 1991 for re-registration as a lawyer, given that he had applied in 1991, on the basis of Law no. 29/1990, to the body that had taken the unlawful and politically motivated administrative decision of 8 May 1981, although he had not requested to be deleted from the Bar’s list of lawyers. Considering that he should not have had to request to be readmitted to the legal profession because he had been excluded from the Bar by a decision without any legal basis, the applicant had lodged the application with the issuing body, namely the Constanţa Bar, as there was no provision for specific proceedings to redress the effects of such unlawful administrative decisions. The applicant also submitted that, pursuant to the aforementioned Legal Profession Act (Law no. 51/1995), which repealed Legislative Decree no. 90/1990, the UAR had no longer been competent in 1996 to annul Bar decisions, and that Rule 130 of the Rules could not have supplemented that law. The applicant underlined that the UAR’s decision of 27 June 1996 had been illegal because the UAR had been time–barred in 1996, according to Law no. 29/1990, and because the legal basis for the decision, namely Legislative Decree no. 90/1990, had been repealed by Law no. 51/1995.
In his grounds of appeal and also in his written observations to the Supreme Court, the applicant added that, according to the documents in the file, the UAR had known since 1992 that he had been registered as a lawyer by the Constanţa Bar in 1991, and that, in accordance with Article 5 § 3 (d) of Legislative Decree no. 90/1990, the UAR had at that time not only had the power but also the duty to review and possibly annul the decision of 8 May 1991 by the Constanţa Bar. The applicant referred to the UAR’s reply to the questions of 30 June 1998 and concluded that, even supposing that the UAR should have been consulted in 1991 by the Constanţa Bar on his re-registration as a lawyer, he was not to blame for lodging the application with that Bar or for the latter’s or the UAR’s failure to follow the proper procedure. The applicant requested the court to consider whether it was normal in these circumstances that he could not practise his profession in Romania, and asked it to annul the UAR’s decision of 27 June 1996 and to allow his transfer to the Bucharest Bar.
39. In a final decision of 28 January 2000 the Supreme Court dismissed the applicant’s appeal. It held that, in 1991, Legislative Decree no. 90/1990 had vested in the Council of the UAR the exclusive authority to determine applications relating to the admission or readmission of lawyers to the Bar, and that the provisions of section 58 (g) and (i) of Law no. 51/1995 should be interpreted as conserving these prerogatives.
On the basis of Rule 130 of the Rules, the court rejected the applicant’s submission that Law no. 51/1995 had removed the UAR’s powers under Legislative Decree no. 90/1990 to annul Bar decisions, conceding nevertheless that in the text of this law such a power was not expressly maintained. As to the time within which the UAR had been entitled to annul the applicant’s registration with the Constanţa Bar in 1991, the Supreme Court held that, given the issuing body’s lack of jurisdiction, the annulment could have been decided upon at any time. Finally, the Supreme Court pointed out that the annulment of the applicant’s registration with the Constanţa Bar on the ground of illegality did not remove his right to apply to the competent authority to decide on his application for reregistration as a member of the Bar.
40. On 30 May 2001 the applicant applied to the Bucharest Bar for registration as a lawyer registered with a foreign Bar, but to date he has not received any reply in spite of the fact that, according to him, in the interim the Bucharest Bar has approved the registration of more than ten foreign lawyers.
41. On 14 February 2004 the Council of the UAR examined the applicant’s request of 12 April 1991 to the Constanţa Bar, the latter’s decision of 8 May 1991 and the UAR’s decision of 27 June 1996, annulling the applicant’s registration with the Constanţa Bar. The Council decided to repeal its decision of 27 June 1996, to restore the applicant’s previous status as a lawyer eligible to practise and to notify this new decision to him and to the Constanţa Bar.
42. On 23 February 2004 the Council of the Bucharest Bar granted the applicant’s transfer to the Bucharest Bar, ordered his registration on that Bar’s list of lawyers and decided to notify this decision to him and to the Constanţa Bar.
43. In a letter of 26 May 2004 the applicant stated that on 23 April 2004 the UAR had notified him of its decision of 14 February 2004, and that to date he had not received any formal notification from the Bucharest Bar concerning its decision of 23 February 2004.
44. The relevant provisions of the Romanian Civil Code read as follows:
“An official deed must be adopted in the form required by law, by a public official competent to act in the place where it was adopted.”
“An official deed shall be authentic in respect of any person subject to its terms and clauses. The execution of an official deed ... shall be suspended where a criminal complaint is lodged against its author. Where such a complaint alleging forgery is made in the course of civil proceedings, the courts may, depending upon the circumstances, provisionally suspend the execution of the deed.”
45. The relevant provisions of the Administrative Litigation Act (Law no. 29/1990) read as follows:
“... the application to the court (to annul an administrative act) must be lodged within a year from the date on which the act is notified.”
“... If a claim is allowed, the court shall also rule on the damages claimed.”
“Where the claimant has applied for the annulment of the administrative act without claiming damages at the same time, as the amount of the damage sustained was not known at the time of the examination of the application for annulment, the time allowed for submitting a claim for damages shall run from the date on which he becomes aware of or should have become aware of the damage sustained.”
46. Article 5 § 3 of Legislative Decree no. 90/1990 concerning certain measures with regard to the organisation and practice of the legal profession provided:
“The Council of the UAR ... shall have the following powers...
(d) to review decisions taken by the standing committee of the UAR or by the Bar Council and, if it establishes that these decisions are illegal, to annul them; ...
(j) to rule on applications for admission or readmission to the Bar and for transfer and secondment of lawyers from one Bar to another; ...”
47. On 9 June 1995 the Legal Profession Act (Law no. 51/1995) entered into force, repealing Legislative Decree no. 90/1990. Its relevant provisions read as follows:
“The Bar shall be required to draw up an annual roll of qualified and trainee lawyers, in alphabetical order, mentioning their first and last names, academic qualifications and date of admission to the Bar, the place where they practise, their professional capacity and the courts in which they are entitled to plead ...
The Bar shall transmit the annual list and the modifications thereto to the courts, the investigating authorities, the regional administrative authorities and the Romanian Union of Lawyers.”
“The Bar Council shall have the following powers: ...
(c) to prepare, amend and publish the annual roll of lawyers. It shall transmit this list, with any changes that are necessary, to all interested bodies; ...
(h) to acknowledge applications for transfers or secondment within the Bar;
(i) to monitor compliance with the conditions set out in this Act and the Rules as regards the manner of exercise of the profession, and to organise and keep details of such reviews...”
“The Council of the UAR shall meet on a quarterly basis and ... shall have the following powers: ...
(b) to discuss, approve and modify the Rules governing the Legal Profession; ...
(g) to approve admission to the Bar in all the cases provided for by the law; ...
(i) to rule on complaints against decisions by the Bar Council concerning the refusal of transfer or secondment requests.”
48. On 6 March 2001 Law no. 51/1995 was amended, granting the following powers to the Council of the UAR in a new section 63 (i):
“The Council of the UAR shall have the following powers: ...
(i) to annul decisions by the Bar on grounds of illegality.”
49. Rule 130 of the Rules governing the Legal Profession, adopted by the UAR and published in the Official Gazette no. 237 of 17 October 1995, provides:
“Decisions adopted by the General Assembly or by the Bar Council may be annulled by the Council of the UAR solely on grounds of illegality or a breach of the provisions of the Rules, provided that the Bar’s autonomy is respected.
Decisions by the Dean of the Bar may be contested before the Bar Council.”
50. On 12 March 1997, in a final judgment (no. 450), the Supreme Court of Justice held in proceedings between a private party and the UAR that the latter was an administrative authority with a structure and powers provided for by law, and that the Administrative Litigation Act (Law no. 29/1990) applied to its decisions.
On 18 February 2003, in a final decision (no. 658), the Supreme Court of Justice held that the UAR was an administrative authority carrying out administrative acts, that it had a structure and powers established by law, and that it fulfilled a public service role.
On 4 March 2003, in a final decision (no. 866) in proceedings against the UAR concerning the right to be admitted to the legal profession without an examination, the Supreme Court of Justice held that “it [was] undisputed that the decision [of the UAR was] an administrative act issued by a public authority” and that Law no. 29/1990 was applicable to the case.
51. On 30 January 2003, in a final decision (no. 327), the Supreme Court of Justice set aside a decision of an appellate court on the ground that, inter alia, it had reversed without stating reasons a previous order concerning the admission of evidence.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1