ITEMID: 001-57790
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF ÉDITIONS PÉRISCOPE v. FRANCE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: R. Pekkanen
TEXT: 8. Editions Périscope is a limited company, incorporated under French law, whose registered office is in Paris. It was founded in April 1960 for the purpose of creating a review entitled "Périscope de l’usine et du bureau", which was to analyse new industrial products and provide an "integrated readers’ service". At the time periodicals of this type were unknown in France.
9. On 21 October 1960 the applicant company applied to the Joint Committee on Press Publications and Press Agencies ("the Joint Committee") for a certificate of registration for its review in order to secure the tax concessions and preferential postal charges accorded to the press.
10. The Joint Committee rejected the application on 8 December 1960 and refused two further applications on 9 February 1961 and 17 January 1964. It did not reply to a fourth, lodged on 30 June 1970. Although these decisions were equivalent to decisions having an adverse effect because they were binding on the administrative authorities, they were not challenged in the Conseil d’État as being ultra vires.
The reason given was always the same: the review was classified as an advertising organ because it represented a link between its subscribers and manufacturers for the purposes of a commercial transaction. It published the technical data furnished by the manufacturer himself for the articles presented; a reader interested in a model returned to the head office of Périscope de l’usine et du bureau a form with the reference of the model in question; the manufacturer then received this form and sent the relevant documentation. In fact, in order to obtain the advantages which it claimed, the review would have had to have devoted at least a third of its surface to information of general interest or to provide its readers’ service with critical editorial comment.
11. Editions Périscope also submitted two informal requests which were rejected by the Secretaries General of the Ministry of Posts and Telecommunications (8 April 1961) and of the Joint Committee (27 October 1966).
It also made various representations to the public authorities up until 1974, but without success.
12. "Périscope de l’usine et du bureau" ceased to appear in October 1974 and the company which published it became the subject of composition proceedings and then went into liquidation. However, the Paris Commercial Court rescinded its order after the managing director had agreed to meet the liabilities of the company out of his personal funds.
13. On 15 March 1976 Editions Périscope submitted a preliminary application to the Minister for Finance, the Junior Minister for Posts and Telecommunications and the Junior Minister of the Prime Minister’s office, Spokesman for the Government. It sought compensation of 200,000,000 francs for the damage which it claimed to have sustained since 1962 through the fault (faute) of the public authorities. No reply to the application was forthcoming.
14. On 12 November 1976 Editions Périscope instituted proceedings in the Paris Administrative Court. It asked the court:
"to allow the ... application and, for the reasons set out ..., order the State to pay it the sum of two hundred million francs as compensation for the damage which it has sustained through the faults committed by the public authorities;
in the alternative, to call for an expert opinion in order to determine the extent of the damage sustained by Editions Périscope."
15. The defendant, the Prime Minister, filed a memorial on 25 February 1977 contending that the application should be dismissed. The Minister for the Economy and Finance and the Junior Minister for Posts and Telecommunications did likewise on 4 March and 18 April.
16. On 17 June 1977 Editions Périscope submitted a memorial (mémoire ampliatif) which it supplemented on 15 November; it had requested extensions of the time-limit on 27 April and 1 June in order to obtain new documents.
17. On 18 November 1977 the Deputy Minister for the Economy and Finance confirmed his earlier submissions.
18. In a further memorial registered on 16 March 1978, the applicant company stated inter alia as follows:
"Hitherto, only the Minister for Finance has replied to the memorial of 15 June 1977 by a memorial of 18 November 1977.
It is clear that the administrative authorities in question are abusing their privileged position to delay for as long as possible the conclusion of the trial ... .
This abuse is all the more patent because these authorities possess resources in material and staff which enable them to comply with reasonable time-limits for replying."
Consequently, it asked the court "[to] take formal note of its protests against the dilatory lack of response from the defendant authorities and [to] order them to reply within a very short period to the company’s memorials of 15 June and 15 November 1977".
19. On 28 March 1978 the Prime Minister declared that he did not wish to alter his submissions of 25 February 1977 and endorsed the observations of the Deputy Minister for the Economy and Finance and those of the Secretary of State for Posts and Telecommunications.
20. Editions Périscope then submitted yet another memorial, the fourth, lodged on 22 May 1978:
"The failure of the Minister for Finance and the Junior Minister for Posts and Telecommunications to reply shows that they have no additional arguments to put forward in respect of the explanations and documents produced on 15 June and 15 November by the applicant company.
In these circumstances, [the said company] asks the Administrative Court to regard the written investigation proceedings as concluded and to fix a date for a hearing to examine the dispute ..."
It submitted two further memorials on 25 October 1978 and 29 May 1979.
The first contained the following conclusion:
"The silence on the part of the Minister for Posts following the last three of the company’s memorials, the Prime Minister’s letter of 21 March 1978 endorsing the memorials of the other ministers, the reiteration by the Minister for the Budget of the arguments put forward by the Minister for Finance, the total absence of discussion by the defendants of the damage, the time-limits which have expired, all show that the State has concluded its defence submissions.
In these circumstances the applicant company requests the Administrative Court to fix as soon as possible the date for the examination of the application which was lodged two years ago."
The second ended as follows:
"Périscope notes that the defendants have all stated that they wished to reiterate their previous arguments. They have thus concluded their submissions.
The company ... therefore again requests the Paris Administrative Court to hold a hearing in the near future to examine the case, while reserving the right to make oral submissions through its counsel."
In addition, on 13 January 1979, the lawyer for Editions Périscope wrote to the President of the Administrative Court to ask him to set the date for the hearing. It was, he stated, "unacceptable ... that the authorities [should be able] to delay indefinitely the conclusion of the proceedings, to the plaintiff’s detriment".
21. The Minister for the Budget filed a supplementary memorial on 10 June 1978, as did the Junior Minister for Posts and Telecommunications on 23 January 1979. Furthermore, on 22 October, the latter indicated that he wished to abide by his previous submissions "in every respect".
22. After a public hearing held on 6 April 1981, the Administrative Court dismissed the application on 27 April on the following grounds:
"The application by the company, Editions Périscope, requests the court to find that the State is liable for the damage caused to the applicant by the discrimination operated by the relevant authorities in favour of competing undertakings in respect both of the postal charges and of the tax concessions, without also according them to the applicant, despite its repeated requests, to order the State to pay on these grounds compensation of 200,000,000 francs and, in the alternative, to call for an expert opinion to determine the extent of the damage sustained;
If the applicant company wished to rely on the unlawfulness of the refusal to register it on the list of publications qualifying for the above-mentioned advantages [tax concessions], it should have challenged, in good time, the tax demands which it considered to have been made in disregard of the exemption laid down in Article 261-8-1o of the General Tax Code; it can no longer call in question such demands by means of an action for damages brought against the Minister for the Budget since it has not established the unlawfulness of the refusals;
For their part, the postal authorities did not commit a fault capable of giving rise to liability on the part of the State by not according to the applicant special postal rates inasmuch as it follows from Article D 18 of the Posts and Telecommunications Code that the application of such rates is conditional on the production of a registration certificate issued by the Joint Committee ...; the applicant should, if it believed that it was entitled to, have challenged within the prescribed period of two months the lawfulness of the refusal; the investigation has shown that the attention of the company’s directors was drawn in vain on various occasions to the difference in the structure of its review in relation to the competing reviews and to the changes which it would have to make in order to qualify for the fiscal status accorded to the press;
The allegation that various competing undertakings had unduly benefited from the advantages in question, even supposing that it were established, which the investigation has not shown, is not such as to constitute an infringement of the principle of equal treatment by the public authorities;
..."
23. By an appeal filed on 15 July 1981, Editions Périscope requested the Conseil d’État to "set aside the contested judgment [of the Administrative Court], order the State to pay it a sum of 200,000,000 francs in damages and, in the alternative, order an expert examination for the purposes of determining the extent of the damage which had been caused to it by the discriminatory measures of which it had been victim".
24. The case, whose file the Administrative Court had forwarded to the Conseil d’État on 11 August 1981, was assigned to the tenth section of the judicial division on 15 August.
25. Editions Périscope filed a memorial on 13 November 1981. On 18 December it drew attention to a typing error in its text.
26. The file was communicated in turn to three members of the Government: the Minister for the Economy and Finance, from 24 November 1981 to 2 March 1982; the Deputy Minister to the Minister for Industry and Research, with responsibility for Posts and Telecommunications, from 16 March 1982 to 16 May 1983, the Conseil d’État having requested its return on 5 May 1983; the Junior Minister attached to the Prime Minister’s office, with responsibility for Communication Techniques, from 14 June to 3 October 1983.
On 27 January 1982 the first of the above officers requested an additional time-limit to submit his memorial, which he did on 2 March 1982.
The second filed his memorial on 14 November 1983, after having indicated on 16 May of the same year that he intended to "reply very shortly".
The third had lodged his memorial on 3 October 1983.
27. The applicant company filed a further memorial on 28 October 1983 and produced documents on 10 and 24 February 1984.
28. On 10 January 1984 the file was entrusted to a junior member of the section, who gave his report on 16 April.
The investigation session was held on 21 November and the case was entered on the list of the tenth and seventh sections combined, for hearing on 6 March 1985.
29. The Conseil d’État dismissed the appeal by a judgment of 22 March 1985 on the following grounds:
"...
By virtue of the provisions of Article 1 of the Decree of 25 March 1950, as amended by the Decree of 2 August 1960, the Joint Committee ... is responsible for giving an opinion on the application of statutory instruments and regulations providing for concessions accorded to the press with regard to taxes, postal charges and customs duties; pursuant to Article 3 of the Decree, the [Joint] Committee is to examine whether the publication appears to satisfy the conditions laid down in these provisions and, if it does, to issue to the publication a registration certificate, which must be produced in support of any application for tax concessions and postal charge reductions; the refusal to grant a registration certificate constitutes an opinion to this effect which precludes the relevant administrative authority from granting the concessions sought;
By decisions dated 8 December 1960, 9 February 1961 and 17 January 1964, the Joint Committee ... refused to issue the registration certificate to the review ‘Périscope de l’usine et du bureau’, relying on the provisions of Article 72, 6o, of Annex III to the General Tax Code, which, in the version applicable at the material time, excluded from the exemption provided for in the provisions of 1o of [paragraph] 8 of Article 261 of the same Code newspapers or periodical publications regarded as equivalent to ‘publications whose principal purpose is to promote or to develop transactions of commercial, industrial, banking, insurance or other undertakings for which they are in reality vehicles for publicity or advertising’;
Firstly, it appears from the investigation, and it is moreover not in dispute, that the monthly review ‘Périscope de l’usine et du bureau’ was a publication of the type referred to in the above-mentioned provision of Article 72 of Annex III to the General Tax Code, having regard in particular to its contents and to the proportion of its surface which it devoted to advertising or articles equivalent to advertisements; the decision not to issue a registration certificate was accordingly well-founded;
Secondly, although the advantages refused to the ‘Périscope de l’usine et du bureau’ were accorded to publications which it claims were its competitors, it has not been established in any way, contrary to what the applicant company alleges, that these publications could, in terms of their editorial characteristics and the proportion of advertising carried, be classified as ‘vehicles for publicity or advertising’, within the meaning of the above-mentioned provision of the General Tax Code, thereby justifying a refusal to accord to them the benefit of the concessions to the press; it follows that the applicant company is in any event not entitled to claim that the [Joint] Committee committed a fault capable of giving rise to liability on the part of the State by unlawfully granting other reviews comparable, in the appellant company’s opinion, to that which it publishes, the certificate which was refused to it;
It follows from the foregoing that there is no basis for the limited company Editions Périscope’s complaint against the contested judgment by which the Paris Administrative Court dismissed its claim for compensation."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22690
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: ALLEN v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Brian Roger Allen, is a United Kingdom national, who was born in 1948 and is currently serving a sentence of imprisonment in HM Prison Coldingley, Surrey. He is represented before the Court by Mr Newman and Mr Kessler, lawyers practising in London.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 9 May 1991, the applicant was served by the Inland Revenue with a Notice pursuant to section 20(1) of the Taxes Management Act 1970, which, inter alia, required the applicant to provide a certified statement of his assets and liabilities as at 31 January 1991.
On 13 August 1991, when the applicant had failed to comply, he was summonsed to appear before the General Commissioners. The summons warned him that failure to comply with the notice rendered him liable to a penalty not exceeding 50 pounds sterling (GBP) pursuant to section 98(1) of the 1970 Act. (The penalty had in fact been increased to GBP 300).
On 30 October 1991, the applicant still having failed to comply was presented with a “Hansard Warning.” This involved the reading out to him of the reply of the Chancellor of the Exchequer to a Parliamentary question on 18 October 1991. This outlined the practice of the Inland Revenue in cases of fraud indicating that it might accept a money settlement instead of instituting criminal proceedings and that its decision as to whether to accept a settlement or institute criminal proceedings would take into account whether the taxpayer had inter alia given full facilities for investigation into his affairs.
On or about 3 April 1992, the applicant delivered to the Inland Revenue a schedule of his assets as at 31 January 1991 as required by the notice.
The applicant was later charged with 13 counts of cheating the public revenue of income tax and corporation tax. Count 11 specified:
“STATEMENT OF OFFENCE
Cheating Her Majesty the Queen and the Commissioners of Inland Revenue, contrary to common law.
PARTICULARS OF OFFENCE
[The applicant] on or about 3 April 1992 with intent to defraud... cheated Her Majesty the Queen and the Commissioners of Inland Revenue of public revenue, namely, income tax, by delivering... to an Inspector of Taxes a schedule of assets as at 31 January 1991 in respect of his assets and the assets of his minor children which was false, misleading and deceptive in that it omitted to disclose divers assets which were owned by him. Particulars of the omitted assets are – his beneficial interest in shares issued by off-shore companies, his beneficial interest in properties held in the names of off-shore companies and his beneficial interest in bank accounts held in the United Kingdom and in Jersey in the names of off-shore companies.”
The applicant was convicted of all counts on 19 February 1998. On 20 February 1998, he was sentenced to 13 concurrent terms of seven years’ imprisonment and a confiscation order made in the sum of 3,137,165 pounds sterling (GBP). This sum was calculated as being the lesser of the two sums, namely the amount of benefit from the offences (GBP 4 million) and the applicant’s total realisable assets (GBP 3,137,165).
On 7 July 1999, the Court of Appeal dismissed his appeal against conviction and on 11 October 1999, dismissed his appeal against sentence. In relation to the applicant’s argument that he remained liable to pay the outstanding unpaid tax, it noted the undertaking given by the Inland Revenue on 20 February 1998 that it would not pursue the applicant for pre-existing tax liabilities out of any income which he might acquire in future.
On 10 October 2000, the House of Lords, reversing an earlier refusal, allowed his petition for leave to appeal from the Court of Appeal on a number of points and also permitted him to raise a new point relating to Article 6 of the Convention as concerned his conviction on count 11.
On 11 October 2001, the House of Lords dismissed his appeal. Lord Hutton giving judgment noted the applicant’s arguments under the Convention in which he relied in particular upon the cases of Funke v. France and Saunders v. the United Kingdom, that the prosecution case against him breached his right to a fair trial as he had been compelled under threat of penalty to incriminate himself by providing the schedule of assets and found as follows:
“... the present case is one which relates to the obligation of a citizen to pay taxes and to his duty not to cheat the Revenue. It is self evident that payment of taxes fixed by the legislature is essential for the functioning of any democratic state. It is also self-evident that to ensure the due payment of taxes the State must have power to require its citizens to inform it of the amount of their annual income and to have sanctions available to enforce the provision of that information ...”
He proceeded to review the tax legislation which required taxpayers to make tax returns.
“It is clearly permissible for a State to enact such provisions and there could be no substance in an argument that there is a violation of Article 6 § 1 if the revenue prosecuted a citizen for cheating the revenue by furnishing a standard tax return containing false information. Similarly, in the present case, viewed against that background that the State, for the purpose of collecting tax, is entitled to require a citizen to inform it of his income and to enforce penalties for failure to do so, the section 20(1) notice requiring information cannot constitute a violation of the right against self-incrimination. The present case is therefore clearly distinguishable from Saunders on that ground ...”


ITEMID: 001-4865
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: LEWANDOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish national, born in 1952 and living in Gryfino, Poland.
On 29 January 1996 the applicant’s flat was visited by two bailiffs accompanied by an employee of a private security agency. The bailiffs informed the applicant’s wife, who was present in the flat together with her two minor children and two adult members of her family, that they had a warrant for seizure of the movable property located in the flat. They also stated that the warrant had been issued after the applicant, who had been running a small business, had failed to pay social security contributions. The applicant’s wife refused to surrender any property since the outstanding social security contributions had already been paid up and she telephoned her husband. After being informed by his wife about the bailiffs’ attempt to execute the warrant, the applicant spoke on the telephone to one of them and confirmed that he had paid all outstanding social security contributions. Subsequently the bailiffs and the security agent left the flat.
On 30 January 1996 the applicant visited the Gryfino Tax Office (Urząd Skarbowy). After he presented a receipt proving that he had paid all outstanding social security contributions on 10 March 1994, the employee responsible for his account admitted that the warrant had been erroneously issued and apologised to him.
On 31 January 1996 the applicant complained to the Gryfino District Prosecutor (Prokurator Rejonowy) about the actions of the bailiffs. He alleged that they had behaved in a threatening manner and one of them was armed. As a result the state of health of the applicant’s wife deteriorated and his children would not stay alone at home. The applicant contended that the bailiffs had breached the peace and abused their powers.
On 25 February 1996 the applicant’s wife died. On an unspecified date the applicant informed the Gryfino District Prosecutor that in his opinion his wife’s death had resulted from the stress caused by the actions of the bailiffs.
On 14 March 1996 the Gryfino District Prosecutor decided to discontinue the investigation of the applicant’s complaint relating to the breach of the peace. He considered that the bailiffs had acted in good faith and had not committed any offence, which was subject to public prosecution. He also advised the applicant that he could bring a private indictment seeking a conviction of breach of peace. On an unspecified date the applicant’s appeal against the decision of 14 March 1996 was dismissed.
On 22 November 1996 the Gryfino District Prosecutor decided to discontinue the investigation of the applicant’s complaint concerning the alleged abuse of powers by the bailiffs. He pointed out that they had refrained from the execution of the warrant as soon as they had been informed that the social security contributions had been paid up. The District Prosecutor further noted that the bailiffs had behaved in a peaceful manner during the incident and that they were always armed with gas pistols during the execution of warrants. With respect to the applicant’s allegation that his wife’s death had resulted from the stress caused by the actions of the bailiffs, the District Prosecutor observed that she had suffered from neurasthenia and had been treated in a psychiatric clinic. He also noted that although she had had problems with blood pressure, she had been satisfied with the treatment she had been receiving and had felt better before her death. The District Prosecutor concluded that there was no causal link between the death of the applicant’s wife, which had taken place almost one month after the incident, and the actions of the bailiffs. On 2 December 1996 the applicant appealed to the Szczecin Regional Prosecutor against the decision of 22 November 1996.

On 19 December 1996 the applicant complained to the Ministry of Finance about the actions of the bailiffs during the incident which had taken place on 29 January 1996. On 29 January 1997 the complaint was transferred to the Szczecin Tax Chamber (Izba Skarbowa). On 25 February 1997 the Director of the Szczecin Tax Chamber informed the applicant that the investigation of his complaint had showed that it had been unfounded. He pointed out that the bailiffs had left the applicant’s flat after the applicant had declared that the outstanding social security contributions had been paid up. Moreover, during his visit to the Tax Office on the following day the applicant had not raised any complaints about the behaviour of the bailiffs. The Director also informed the applicant that disciplinary measures had been taken against the employee responsible for the erroneous warrant.
On 28 February 1997 the Szczecin Regional Prosecutor dismissed the applicant’s appeal against the District Prosecutor’s decision to discontinue the investigation considering that there was no causal link between the bailiffs’ actions and the death of the applicant’s wife. He pointed out that the bailiffs had behaved well during the incident and that although the applicant’s wife had become agitated as a result of their attempt to execute the warrant, she had been calm already in the evening following the incident.
On 10 March 1997 the applicant complained to the Poznań Appellate Prosecutor (Prokuratura Apelacyjna) about the decision of 28 February 1997. He pointed out that the District Prosecutor had not taken evidence from a certain witness and had not requested an expert medical opinion as to the existence of a causal link between the bailiffs’ actions and his wife’s death. In a letter of 2 April 1997 the Appellate Prosecutor informed the applicant that he had instructed the subordinate prosecutor to reopen the investigation.
On 24 April 1997 the Gryfino District Prosecutor reopened the investigation of the applicant’s complaint concerning the abuse of powers by the bailiffs. On 27 May 1997 the District Prosecutor requested the Medical Academy in Szczecin to prepare an expert opinion on whether there was a causal link between the actions of the bailiffs during the incident in the applicant’s flat on 29 January 1996 and the death of the applicant’s wife on 25 February 1996 and whether her agitation caused by the bailiffs’ actions could have had a negative impact on her state of health.
On 8 July 1997 the Medical Academy issued an expert opinion. It stated that it was impossible to establish the existence of a causal link between the bailiffs’ actions and the death of the applicant’s wife as there was no sufficient medical evidence leading to such conclusion. Furthermore, the opinion stated that although it was possible that the bailiffs’ actions could have had a negative impact on the state of health of the applicant’s wife, there was no evidence supporting such conclusion.
On 21 July 1997 the Gryfino District Prosecutor decided to discontinue the investigation of the applicant’s complaint. He considered that the evidence showed that there was no causal link between the bailiffs’ actions and the death of the applicant’s wife. In particular, the District Prosecutor referred to the depositions of the applicant and his children, who had witnessed the bailiffs’ actions, according to which the incident on 29 January 1996 had not involved the use of force, threats or insults. Although the applicant’s wife and the bailiffs spoke in raised voices, the latter had left the flat after talking on the telephone with the applicant. The District Prosecutor also recalled the conclusions of the expert opinion prepared by the Medical Academy in Szczecin.
On 28 July 1997 the applicant appealed against the decision of 21 July 1997. On 29 August 1997 the Szczecin Regional Prosecutor dismissed the appeal considering that the District Prosecutor had correctly concluded on the basis of the evidence in the case-file that there had been no causal link between the bailiffs’ actions and the death of the applicant’s wife.
On 17 September 1997 the applicant complained to the Prosecutor General about the decision to discontinue the investigation. On 2 October 1997 his complaint was transmitted to the Poznań Appellate Prosecutor. On 31 October 1997 the Poznań


ITEMID: 001-22385
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: LAMMERSMANN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lucius Caflisch
TEXT: The applicant, Bernhard Lammersmann, is a German national, who was born in 1942 and lives in Werder, Germany.
The facts of the case, as submitted by the applicant, may be summarised as follows.
Following administrative proceedings in which he complained about fees (about 70 German marks) imposed by the local chimney sweep for measuring the amount of waste gas in his house, the applicant filed a complaint before the Potsdam Administrative Court on 12 December 1997. He also requested an interim measure so that he would not have to pay these fees in the future.
Starting October 1998, the applicant sent several letters to the Potsdam Administrative Court demanding that a public hearing be held as soon as possible. In its answers, the Administrative Court stated that, due to its workload, such a hearing would not take place before the end of 1999 or the beginning of 2000, while denying that his case was not being dealt with in a reasonable time.
The correspondence between the court and the applicant continued until the end of 1999, when the court postponed a public hearing until the beginning of the next year.
On 11 January 2000, the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint, in which he objected to the length of the proceedings before the Administrative Court.
On 14 August, the Potsdam Administrative Court rejected a motion by the applicant alleging bias on its part.
On 15 August 2000, a hearing was held before the Potsdam Administrative Court, which the applicant did not attend. Following this hearing, his application was rejected on the ground that the fees imposed by the chimney sweep were justified.
On 27 October 2000, the Brandenburg Administrative Court of Appeal refused to entertain the applicant’s appeal.


ITEMID: 001-88792
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF OLEG NIKITIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies, six month period);Remainder inadmissible;Violation of Art. 3 (procedural aspect);Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1977 and is currently serving a sentence of imprisonment in penitentiary establishment UN 1612/1 of Mariinsk, the Kemerovo Region.
5. On 31 October 2001 at 4 a.m. the applicant was arrested on suspicion of robbery and taken to the Frunzenskiy District police station, Ivanovo. He was questioned at 7.20 p.m. the same day.
6. According to the applicant, he was also questioned at 2 p.m. on 1 November 2001. During the questioning the police officers allegedly beat him on his head, chest and legs, seeking to obtain self-incriminating evidence. Afterwards the applicant was placed in a preliminary detention cell. The officer on duty was allegedly instructed not to let the applicant go to the toilet and not to give him anything to drink, notwithstanding the applicant’s argument that he suffered from diabetes insipidus which, in case of dehydration, could provoke an abrupt deterioration in his health.
7. According to the applicant, on 2 November 2001 an ambulance was called by the police officers for a young man detained in the same cell as the applicant. Following the applicant’s request, the ambulance doctor examined the applicant and allegedly told the police officers that he needed to be taken to the hospital. Notwithstanding the doctor’s advice, the applicant was transferred to a pre-trial detention facility (СИЗО-1 г. Иваново), where he was again examined by a doctor.
8. The Government maintained that an ambulance was never called for the applicant.
9. On 2 November 2001 the applicant, in the presence of his lawyer, wrote a complaint to the Prosecutor’s Office of ill-treatment by police officers and submitted it to the investigator. However, neither the applicant nor his lawyer ever received any answer to the complaint in question.
10. According to the Government, however, on 28 December 2001 the applicant’s allegations of ill-treatment were examined by the Prosecutor of the Frunzenskiy District of Ivanovo, who did not find a prima facie case of ill-treatment and decided not to institute criminal proceedings. The Government submitted neither a copy of the above decision, nor the material of the investigation due to the fact that they had been destroyed on 27 April 2006 as their retention period had expired.
11. On 5 February 2002 the Frunzenskiy District Court of Ivanovo convicted the applicant of robbery and sentenced him to eleven years and four months’ imprisonment with forfeiture of property. Despite the applicant’s objections the trial court did not obtain the attendance of Mr Sh., a prosecution witness, and relied on the testimony given by him during the pre-trial investigation. During the trial the applicant raised the issue of illtreatment. The trial record reads as follows:
“... In the morning I was taken to the police officers. I told them everything, but they said I was lying. Around 4 p.m. I was taken to the fourth floor. They bullied and beat me there. In the presence of my counsel I wrote a complaint and handed it to Mr Kalyagin, the investigator. However, I never got any answer. An ambulance medic examined me and said I needed to be taken to Hospital No. 7. They threatened me all the time, but never explained what charges were being brought against me. I filed the complaint on 2 November 2001.”
However, the trial court left this issue unexamined.
12. had failed to eliminate contradictions in the evidence, that it had left certain circumstances unexamined, that it had failed to establish the applicant’s participation in the robbery and had relied on some evidence received in violation of the procedural rules. He further complained that Mr Sh. had not been informed of his right not to testify against himself. The applicant’s lawyer further submitted:
“During the trial [the applicant] submitted that on 2 November 2001 he wrote a complaint addressed to the Prosecutor of Ivanovo concerning the wrongful acts of the police officers. This complaint was written in my presence. Up to the pronouncement of the conviction [the applicant] had not received any answer to his complaint.”
13. On 21 March 2002 the Ivanovo Regional Court upheld the judgment on appeal. The appeal court did not investigate the applicant’s allegations of illtreatment.
14. Following the applicant’s request, on 10 October 2003 the Presidium of the Ivanovo Regional Court modified the qualification of the applicant’s crime by way of supervisory review and reduced the sentence to ten years’ imprisonment.
15. The applicant submitted to the Court an extract from his medical file dated 27 December 2001, which read as follows:
“Suffering from diabetes insipidus of medium severity [the applicant] has been observed by an endocrinologist since his childhood. Until 1998 he had a ‘category 3’ childhood disability.
[The applicant] needs constant and regular intake of antidiuretic hormone three times a day (nasal drops), good nutrition with sufficient liquid, availability of necessary facilities for regular and timely compliance with physiological needs (urination) in order to prevent disease decompensation (organ failure) causing increased thirst and frequent urination ...”
16. The applicant also submitted a statement by one of his codefendants, Mr T., who had been detained in the Frunzenskiy District police station together with the applicant from 31 October to 2 November 2001. The statement was dated 20 January 2003 and read as follows:
“... On 1 November 2001, at approximately 2 p.m., [the applicant] was taken for questioning from the preliminary detention cell where we were being held. Several hours later he was brought back to the cell all beaten up, limping on his left leg, with a haematoma on his eye. [The applicant] told me that he had been beaten up by the police officers who were seeking to obtain his confession.
... In my presence [the applicant’s] request for a doctor was refused. ...”
17. The Government produced a medical reference issued by the Ivanovo ambulance unit on 2 August 2007 pursuant to the request of the Prosecutor’s Office of the Ivanovo Region. The reference indicated that in the period from 30 October through 4 November 2001 an ambulance team was called to the Frunzenskiy District police station located at [the address]. Between the words “was called” an uncertified hand-made correction “not” was made. The applicant’s personal information was indicated in the “name” and “age” of the patient’s field.
18. The Government produced a copy of the document approved by the Prosecutor of the Frunzenskiy District of Ivanovo dated 27 April 2006 on destruction of documents with expired retention period. The reference to the applicant’s case file (1 volume) is contained at number 141.
19. They further produced an information note from the Prosecutor’s Office of the Ivanovo Region, from which it follows that the applicant’s complaint about the alleged beatings was received by the Prosecutor’s Office on 23 November 2001, and that on 28 December 2001 it was dismissed in accordance with Article 5 § 2 of the Code of Criminal Procedure.
20. Despite the Court’s request the Government did not submit the medical documents showing the state of the applicant’s health after the alleged ill-treatment. The Government explained that the requested information could have been retrieved from the outpatient record of the pretrial detention facility of Ivanovo. However, on 16 July 2007 the record in question was destroyed due to the expiration of its three-year retention period.
21. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCP”) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to an appeal to a higher prosecutor or to a court of general jurisdiction (Article 113).
22. On 29 April 1998 the Constitutional Court of the Russian Federation held that anyone whose legitimate rights and interests had been affected by a decision not to institute criminal proceedings should have the right to appeal against that decision to a court.
VIOLATED_ARTICLES: 3


ITEMID: 001-88268
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: TOLGYESI v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Antal Tolgyesi, is a Hungarian national who was born in Hungary and lives in Esztergom. He was represented before the Court by Mr C. Peters, a lawyer practising in Bocholt.
In June 1999 the applicant, a Hungarian national and therefore, at the time of the events in question, a national of a State outside the European Community, commenced employment with a Netherlands company as a lorry driver. The contract was governed by Netherlands law and the lorry was registered in the Netherlands. The applicant was in possession of an employment certificate (Dienstbetrekkingsverklaring) issued by the Netherlands National Traffic Inspectorate (Rijksverkeersinspectie) which stated that his employer covered the transport risks and expenses and that the applicant was legally employed. He did not reside in the Netherlands, worked exclusively outside the Netherlands and, at the relevant time, had not (yet) been issued with a Netherlands work permit.
On 29 January 2001 and 28 February 2001, on his way from Spain to Austria and Germany to Austria, he was subjected to checks by the German police. After both events criminal proceedings were instituted against the applicant.
On 10 September 2001 the Rosenheim District Court convicted him of remaining in the country illegally in both cases and sentenced him to an overall fine of 3,300 German marks (equivalent to 1,687.26 euros (EUR)). The decision was based on sections 3(1) and 92(1) of the Aliens Act (Ausländergesetz, see “Relevant domestic law” below). The court found that the exception to the requirement to hold a residence permit provided for in section 12, subsection 2(2)(a) of the Order implementing the Aliens Act (Durchführungsverordnung zum Ausländergesetz, see “Relevant domestic law” below) did not apply as the applicant’s journeys from Spain and Germany to Austria did not have a direct connection with the Netherlands, the Community Member State where the company was established. That, however, the court pointed out, was an implicit condition of the provision in question, as demonstrated by its genesis and its aim of preventing bogus companies being set up and as further confirmed in a statement by the Ministry of the Interior addressed to the applicant’s legal counsel on 26 October 2000. On that ground the court found that the question whether the applicant was legally employed in the Netherlands was not decisive. It further established – referring also to the fact that information to that effect had been circulated by the authorities – that the applicant at least could have known that his actions were illegal.
On 17 December 2001 the Netherlands employment agency (Arbeidsvoorziening) issued the applicant with a work permit (Tewerkstellingsvergunning) allowing him to load and unload goods in the Netherlands. Thereafter the applicant also transported goods from and to the Netherlands.
On 20 March 2002 the Traunstein Regional Court, after hearing evidence from the executive director of the company which employed the applicant and obtaining a translation of the documents in Dutch, quashed his conviction as regards the first offence on the ground that the applicant could not have known that his stay was illegal given that he had been subjected to checks before without any consequences. However, it upheld his conviction as regards the second offence and reduced the fine to EUR 1,000. As regards the second conviction it found that the exception to the requirement to hold a residence permit, provided for in section 12, subsection 2(2)(a) of the Order implementing the Aliens Act, did not apply as at the time of the events in question the applicant had not been in possession of a Netherlands work permit (it found that the employment certificate could not be equated with a work permit, as it merely stated that the applicant’s employer covered the transport risks and expenses and that the applicant was legally employed) and had been working exclusively outside the Netherlands. In this latter respect it pointed out, referring also to a statement by the Ministry of the Interior, that section 12, subsection 2(2)(a) of the Order implementing the Aliens Act was clearly aimed at benefiting only those employees whose (legal) residence and employment were actually in the Community Member State where the company was established and not those who, like the applicant, worked exclusively outside that Member State.
On 20 June 2002 the Bavarian Court of Appeal rejected the applicant’s appeal on points of law. It upheld the finding that, at the relevant time, the applicant had not been in possession of a Netherlands work permit. In this respect it also pointed out that only from December 2001 onwards had he been entitled to work as a lorry driver in the Netherlands. Furthermore, it found that the applicant’s case could not be compared to the case of Vander Elst (ECJ, see below) as, unlike Mr Vander Elst, the applicant was not in possession of a work permit issued by the State where the company was established.
On 30 September 2002 the Federal Constitutional Court refused to admit the constitutional complaint, without indicating any reasons.
1. Relevant domestic law
Section 3(1) of the Aliens Act provides:
“Any person entering or remaining in Germany must have a residence permit. In order to facilitate the residence of non-nationals in Germany the Ministry of the Interior, with the consent of the Bundesrat, shall issue an order providing for exemptions.”
Section 92(1) of the Aliens Act reads as follows:
“Any person who, contrary to section 3(1), remains in Germany without a residence permit ... shall be liable to imprisonment for not more than one year or to payment of a fine.”
Section 12, subsection 2(2)(a) of the Order implementing the Aliens Act provides for an exception to the requirement to hold a residence permit if a person employed by a company from another State and resident in that State does not remain in Germany for more than 3 months in the year, if he or she:
“works in cross-border passenger or goods traffic, if the company employing him or her is established in a Member State of the Community, if the vehicle is registered in that country and if the employee has the residence and work permits required in that country.”
2. Judgment of the ECJ of 9 August 1994, Raymond Vander Elst v. Office des Migrations internationales, Case C-43/93
In this judgment the ECJ ruled that under the European Economic Community Treaty a Member State was precluded from requiring undertakings established in another Member State, and entering the first Member State in order to provide services, to obtain further work permits in the State where the services were to be carried out for those employees who were nationals of a non-member country but who had been issued with work permits in the Member State where the undertaking was established.


ITEMID: 001-5632
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: J. L.S. v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr J.L.S.] is a Spanish national who was born in 1953 and lives at Pozuelo de Alarcón (Madrid). He is a soldier in the provisional reserve force.
The facts of the case, as presented by the applicant, may be summarised as follows.
On 19 May 1983 the applicant signed an “administrative special-quarters-allocation form” at the Army Quartermaster-General, thereby obtaining the use of lodgings in Madrid. The quartermasters-general were set up by a royal decree of 25 February 1928 to meet the housing needs of military personnel, who were liable to be transferred at regular intervals.
In 1989 the applicant made a request under Law no. 17/1989 of 17 July 1989 for a transfer to the provisional reserve force. It was granted by a decree (no. 421/02441/90) issued by the Ministry of Defence on 8 February 1990. The transfer was irreversible under administrative regulations.
On 22 January 1991 Royal Decree no. 1751/1990 of 20 December 1990 was published. It established the Armed Forces Housing Board (Invifas) and abolished the Army Quartermaster-General. By Article 8 (see “Relevant domestic law” below), certain servicemen in the provisional reserve force were required to surrender possession of their quarters to the State before 1 January 1992.
On 10 November 1992 the Director-General of Invifas informed the applicant that his quarters should have been vacated before 1 January 1992. On 16 December 1993 the applicant was given two months to leave and was told that failure to do so would result in possession proceedings being brought. Invifas put in motion an administrative procedure against the applicant, who on 6 February 1995 was ordered to leave the quarters by a decision of the Secretary of State for Military Administration.
On 13 July 1995 the applicant made an application to the Madrid Higher Court of Justice for judicial review of that decision.
Meanwhile, Invifas sought an order from the Madrid investigating judge requiring the applicant to vacate the premises (the Higher Court of Justice had not ordered a stay of execution of the decision of 6 February 1995). On 28 December 1996 the investigating judge made an order authorising eviction.
The applicant lodged an appeal with the Madrid Audiencia Provincial, which reversed the impugned decision on 27 May 1997 holding that the execution of the administrative eviction order was disproportionate since the application for judicial review was still pending.
The 1990 decree was partly amended by Royal Decree no. 219/1997 of 14 February 1997, which was not, however, applicable to servicemen in the provisional reserve force. Nonetheless, it did permit aggrieved parties to apply in certain circumstances for a stay of execution of orders for possession. The applicant made such an application on 29 June 1997. However, owing to the fact that he had moved, it was not heard.
In a judgment of 27 June 1997, which was served on 9 July 1997, the Higher Court of Justice dismissed the applicant’s application for judicial review and upheld the order for possession. It noted at the outset that the applicant had been allocated his quarters in his capacity as a serviceman and that public servants were in an objective legal position that could be modified without undermining the rule of law. A public servant’s position was therefore not immutable from the time he took up office, but was governed by the principle that the rules regulating the status of public servants had been accepted. In rejecting the applicant’s submissions, the court referred to a Supreme Court judgment of 25 April 1995 in which it was held that the law on urban lettings and the provisions governing low-rent housing did not apply to military quarters or to transfers of possession of such quarters. The applicant’s claims were therefore ill-founded since none of the rights the applicant might previously have enjoyed as a tenant had been infringed; nor had he been unlawfully deprived of his legitimate rights.
The applicant subsequently lodged an amparo appeal with the Constitutional Court, which was dismissed in a decision of 3 November 1997 on the ground that there was no constitutional basis for the appeal. The Constitutional Court held that the court below had given sufficient reasons for rejecting the applicant’s submissions regarding the retrospective application of Decree no. 1751/1990 (see “Relevant domestic law” below). It further noted that eviction from the quarters did not amount to a penalty for the purposes of Article 9 § 3 of the Constitution and that, in any event, no amparo appeal lay in respect of breaches of that provision, in which the prohibition on giving retrospective effect to norms that were restrictive of rights was to be found.
“The Constitution guarantees the rule of law, the application of norms according to rank, their publication, the non-retrospective nature of provisions laying down increased penalties or restricting individual rights, legal certainty, the accountability of public authorities and the prohibition of any arbitrary act on their part.”
“In the light of the need for military defence planning and in order to enhance the operational effectiveness of the Armed Forces and facilitate the geographical mobility of their members, the Ministry of Defence shall take appropriate measures to provide for the housing needs of members of the Armed Forces resulting from the requirement for them to be mobile; ...”
“4(a) Servicemen in the provisional reserve force when this Royal Decree enters into force [23 January 1993] and occupying military quarters shall be entitled to live in such quarters for life provided they satisfy the age requirement for joining the reserve force for their rank, regiment and post as laid down by Law no. 17/1989 of 19 July or will satisfy that requirement within a maximum of five years.
All other members of the provisional reserve force shall vacate their quarters before 1 January 1992.”


ITEMID: 001-91419
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SAGAYEV AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicants are:
1. Mr Imran Sagayev, born in 1933,
2. Ms Deshi Abukhadzhievna Sagayeva, born in 1940,
3. Mr Isa Imranovich Sagayev, born in 1958,
4. Ms Raia Zaindievna Sagayeva, born in 1966,
5. Ms Diana Isayevna Sagayeva, born in 1989,
6. Ms Elza Isayevna Sagayeva, born in 1995,
7. Ms Selita Vozukayeva, born in 1980,
8. Mr Khusein Imranovich Sagayev, born in 1971,
9. Ms Petimat Abdulvakhabovna Sagayeva, born in 1971.
10. Ms Aizan Imranovna Sagayeva, born in 1968.
6. The applicants are Russian nationals who live in Urus-Martan, Chechen Republic.
7. The first and second applicants are married and are the parents of the third applicant and his brother, Mr Ilias Imranovich Sagayev, who was born in 1972. The seventh applicant is the wife of Mr Ilias Imranovich Sagayev. The third applicant is married to the fourth applicant and they have three children: the fifth and sixth applicants and Mr Yunadi Isayevich Sagayev, who was born in 1986. The eighth and ninth applicants are a brother and sister-in-law of Mr Ilias Imranovich Sagayev. The eighth applicant is also an uncle of Mr Yunadi Isayevich Sagayev. The tenth applicant is a sister of Mr Ilias Imranovich Sagayev and an aunt of Mr Yunadi Isayevich Sagayev.
8. Eight members of the Sagayev family lived in a family compound at 72A Sheripova Street, Urus-Martan. The compound consisted of three houses in one courtyard. The first, second and tenth applicants lived in the first building. Mr Ilias Sagayev and the seventh applicant lived in the second building. The eighth and ninth applicants lived in the third building. Ms S. Sagayeva, a sister of Mr Ilias Sagayev and an aunt of Mr Yunadi Sagayev, whose permanent residence was in Grozny, temporarily resided at 72A Sheripova street as well.
9. At 5 a.m. on 30 August 2002 a group of between ten and twenty armed men in camouflage uniforms wearing masks came to the family compound. They first broke down the doors to the houses of the first and eighth applicants. Then they went to the house of Mr Ilias Sagayev, broke down the door and apprehended him. They took him into the street and walked towards their vehicles, which they had apparently parked up the road, a short distance from the house. The applicants heard the sound of armoured personnel carriers (APC) while they were standing in the yard outside their houses. They were convinced that the armed men were Russian servicemen as they spoke Russian without an accent, and a curfew prevented civilians from being out on the streets at night.
10. The account of the events was given in written statements by the first, second, seventh, eighth, ninth and tenth applicants. Mr K., their neighbour, stated in writing that at around 5 a.m. on 30 August 2002 he had seen military vehicles drive past his house along Sheripova Street. He had then heard them stop not far from his house before the engines were turned off. He had heard the vehicles again some ten to fifteen minutes later as they were driving away. Ms D., another neighbour, confirmed in writing that at around 5 a.m. on 30 August 2002 she had heard an APC park not far from her house and had then heard people talking in Russian.
11. The Government submitted that in the course of the investigation in case no. 61121 it was established that at approximately 5 a.m. on 30 August 2002 unidentified persons in camouflage uniforms and masks had abducted Mr Ilias Sagayev from a house at 72A Sheripova Street, Urus-Martan.
12. In the morning of 30 August 2002 the first applicant went to the Urus-Martan Military Commander’s Office, the Prosecutor’s Office, the local police department, and the Urus-Martan District Administration to submit written complaints concerning the events of the previous night. He was questioned by an investigator, R. Yu., who later also questioned the second, seventh, eighth and tenth applicants at the Prosecutor’s Office. When the first applicant met the head of the Administration, the latter told him that he had no influence over the fate of persons held at the Military Commander’s Office.
13. Three days later the first applicant was received by the Urus-Martan District Military Commander. According to the first applicant, the Commander listened to his story, accepted the written complaint, and left the room without saying a word or promising to conduct an investigation.
14. In subsequent weeks the applicants visited several prisons in the Chechen Republic, including Chernokozovo, Khankala and the organised crime unit in Grozny, but received no information about their missing relative. They also made unsuccessful attempts to find intermediaries to track him down.
15. On 10 September 2002 the Urus-Martan District Prosecutor’s Office opened criminal investigation no. 61121 into the abduction of Mr Ilias Sagayev.
16. The applicants sent numerous applications to various State authorities, copies of which have been submitted to the Court. In particular, on 18 October 2002 the first applicant applied in writing to the Military Commander, the Urus-Martan District Prosecutor’s Office, the Federal Security Service (FSB) and the Urus-Martan police, requesting assistance in locating Mr Ilias Sagayev and securing his release. The applications filed with the Prosecutor’s General Office and the Prosecutor’s Office of the Chechen Republic were forwarded to the Urus-Martan District Prosecutor’s Office. The applications filed with the Military Prosecutor of the United Group Alignment (UGA) were forwarded to the Military Prosecutor of military unit no. 20102. Those filed with the Ministry of the Interior were forwarded to the Urus-Martan police.
17. On 2 November 2002 the Urus-Martan District Prosecutor’s Office granted the first applicant victim status in the criminal proceedings. According to the Government, he was questioned on the same date. The first applicant was informed of the decision to grant him victim status on 21 November 2002.
18. On 10 November 2002 the Urus-Martan District Prosecutor’s Office decided to suspend the investigation. In the decision it was stated that “all possible investigative measures were taken, [however,] the persons to be charged were not identified, and the term of the preliminary investigation has expired.” The decision did not specify what investigative measures had actually been taken. The first applicant was informed of the decision on 15 November 2002.
19. On 31 March 2003 the Urus-Martan District Prosecutor’s Office informed the first applicant that his letter had been included in the criminal case file and that steps were being taken to establish the identity of the perpetrators of the crime.
20. On 3 April 2003 the Ministry of the Interior informed the applicants that the investigation had been reopened on an unspecified date and that the department was taking investigative measures in liaison with the Prosecutor’s Office of the Chechen Republic.
21. On 18 April 2003 the applicants’ representatives, the SRJI, requested the Urus-Martan District Prosecutor’s Office to provide information on the status of the criminal investigation and the name of the investigator, as well as copies of the decisions to open the criminal investigation, to suspend it, and to grant victim status.
22. On 30 April 2003 the Urus-Martan District Prosecutor’s Office informed the SRJI that criminal case no. 61121 had been suspended since, although all investigative measures had been taken, the perpetrators of the crime had not been identified and Mr Ilias Sagayev’s whereabouts had not been established. The letter further stated that R. Yu. was the investigator in the case and that copies of the decisions to open and suspend the case and to grant victim status to the first applicant had been sent to the latter.
23. On 16 May 2003 the Military Prosecutor of military unit no. 20102 informed the first applicant that his letter had been examined and found not to contain any evidence of the involvement of military servicemen in the abduction of Mr Ilias Sagayev.
24. On 11 June 2003 the SRJI requested the Urus-Martan District Prosecutor’s Office to provide the first applicant with information on the status of the criminal investigation and copies of the relevant decisions.
25. On 9 July 2003 the Prosecutor’s Office of the Chechen Republic instructed the Urus-Martan District Prosecutor’s Office to provide it with detailed information on the results of the investigation and on the grounds of the decision to suspend the investigation if such a decision had been taken. No further information was received by the applicants on this subject.
26. On 1 August 2003 the Urus-Martan District Prosecutor’s Office quashed the decision of 10 November 2002 to suspend the investigation and resumed the proceedings. The first applicant was informed accordingly.
27. On 1 September 2003 the investigation was again suspended on account of the failure to identify the perpetrators. The first applicant was notified of the decision.
28. On 12 October 2003 the National Public Commission for the Investigation of Offences and the Protection of Human Rights in the North Caucasus informed the first applicant that his application had been forwarded to the Military Prosecutor’s Office of the UGA. According to the letter, the Military Prosecutor’s Office of military unit no. 20102 had opened a criminal investigation and referred it to the Urus-Martan District Prosecutor’s Office.
29. On 20 October 2003 the FSB informed the first applicant that Mr Ilias Sagayev had not been detained by the FSB as there had been no lawful grounds for his detention, and that he was not suspected of any offences. It was also stated that the FSB was taking the necessary measures to identify those involved in Mr Ilias Sagayev’s apprehension and to establish his whereabouts.
30. On 14 January 2004 the SRJI asked the Urus-Martan District Prosecutor’s Office to grant the applicants access to the case file so as to enable them to appeal against the decision to suspend the investigation. Although the prosecutor received the letter on 30 January 2004, neither the applicants nor the SRJI received a response.
31. On 1 February 2004 the Urus-Martan District Prosecutor’s Office quashed the decision of 1 September 2003 and resumed the investigation. The first applicant was informed accordingly.
32. On 1 March 2004 the investigation was again suspended on account of the failure to identify the perpetrators. The first applicant was notified of the decision.
33. On 7 April 2004 S., an official from the Urus-Martan Department of the Ministry of the Interior of the Chechen Republic, sent the first applicant a letter informing him that inquiries concerning the whereabouts of his son had been sent to the Departments responsible for the Execution of Sentences of the Chechen Republic and of other regions of the Northern Caucasus and to the Main Information Centre of the Ministry of the Interior in Moscow. A profile of Mr Ilias Sagayev had been sent to all District Departments of the Interior in the Chechen Republic, as well as to law-enforcement agencies in the Urus-Martan district. However, S. had not received any positive replies to any of the inquiries.
34. On 1 September 2004 the Urus-Martan District Prosecutor’s Office informed the first applicant that requests for certain investigative measures had been sent to district prosecuting authorities of the Chechen Republic. Requests to activate search measures had also been sent to the Urus-Martan district department of the interior. However, despite the measures taken it was proving impossible to identify the perpetrators or establish Mr Ilias Sagayev’s whereabouts.
35. On 21 March 2005 the Prosecutor’s Office of the Chechen Republic quashed the decision to suspend the investigation of 1 March 2004 and resumed the proceedings. The decision stated, inter alia, that in the course of the resumed investigation it would be necessary to verify the first applicant’s allegations that his son had been apprehended by officers of the Urus-Martan district military commander’s office and the Urus-Martan district department of the FSB. It ordered the Urus-Martan District Prosecutor’s Office to take the investigative steps required. The first applicant was notified of the decision.
36. On 23 April 2005 the Urus-Martan District Prosecutor’s Office suspended the investigation on the ground that although all necessary investigative measures had been taken the perpetrators could not be identified. The decision did not specify any measures actually taken.
37. On 6 June 2005 the Urus-Martan District Prosecutor’s Office resumed the investigation on account of the necessity to take additional investigative measures. The first applicant was informed accordingly.
38. After that the investigation was again suspended on 6 July 2005, resumed on 18 August 2005, suspended on 10 September 2005 and again resumed on 24 May 2007. According to the Government, it has been pending since that date.
39. According to the applicants, the investigative authorities have never inspected the scene of the abduction or questioned their neighbours, who had witnessed the events. Despite their numerous requests, they had not received any information concerning any other investigative measures taken. According to the Government, an inspection of the Sagayevs’ house in Sheripova Street was carried out on an unspecified date. No evidence was found or seized.
40. The third applicant lived together with his family at 37 Aviatsionnaia Street, Urus-Martan. His son, Mr Yunadi Sagayev, who born in 1986, also lived at that address. At around 2 a.m. on 13 September 2002 about six armed men in masks approached the third applicant’s house on foot after apparently leaving their vehicles around the corner. The whole family was asleep when the armed men climbed over the fence around their courtyard and broke down the door. Six of the men entered the house, without introducing themselves. Even when specifically asked by the applicants, they refused to show their identity papers. Five of them went into the room where the third applicant and Mr Yunadi Sagayev were sleeping, and the sixth man went into the room where the fourth, fifth and sixth applicants were sleeping. They told the fourth applicant that they were conducting identity checks. The men put the third applicant and Mr Yunadi Sagayev against the wall, while the fourth applicant went into another room to look for their identity papers to show them to the armed men. The men took Mr Yunadi Sagayev’s passport and then took him outside. He was dressed in a black tracksuit with red and white details, a red T-shirt with a white stripe and slippers. Before leaving, the men contacted their vehicles by radio and told the fourth applicant that her son would be released later. As they were leaving, they broke the lights outside the Sagayevs’ house. The applicants believed that the men were Russian servicemen as they spoke Russian without an accent.
41. The third, fourth and fifth applicants witnessed Mr Yunadi Sagayev’s apprehension and gave their account of the events in writing.
42. The Government submitted that in the course of the investigation in case no. 61126 it was established that at approximately 2.30 a.m. on 13 September 2002 unidentified armed persons in camouflage uniforms and masks had abducted Mr Yunadi Sagayev from a house at 37 Aviatsionnaia Street, Urus-Martan.
43. In the morning of 13 September 2002 the fourth applicant applied in person to the Military Commander’s Office, the Town Administration, the Prosecutor’s Office, and police for information about her son. Officials of each of these agencies told her that they had not detained her son the previous night. They promised to help establish who had been on duty during the night but ultimately provided no assistance.
44. The applicants sent numerous applications to various State officials, copies of which have been submitted to the Court. The applications filed with the Prosecutor’s General Office and the Prosecutor’s Office of the Chechen Republic were forwarded to the Urus-Martan District Prosecutor’s Office. The applications filed with the Military Prosecutor of the UGA were forwarded to the Military Prosecutor of military unit no. 20102. The applications filed with the Ministry of the Interior were forwarded to the Urus-Martan police.
45. On 21 September 2002 the Urus-Martan District Prosecutor’s Office opened a criminal investigation into the abduction of Mr Yunadi Sagayev in case no. 61126.
46. On 3 October 2002 the Urus-Martan District Prosecutor’s Office granted the fourth applicant victim status in the criminal proceedings.
47. On an unspecified date the investigators questioned the third and fourth applicants and their neighbours.
48. On 21 November 2002 the Urus-Martan District Prosecutor’s Office suspended the investigation into the abduction of Mr Yunadi Sagayev. In the decision to suspend the investigation it was stated that “all possible investigative measures have been taken, [however,] the persons to be charged have not been identified, and the term of the preliminary investigation has expired.” The decision did not specify what investigative measures had been actually taken. The applicants were informed of the decision in a letter of 14 December 2002.
49. On 18 April 2003 the SRJI applied in writing to the Urus-Martan District Prosecutor’s Office requesting information on the status of the criminal investigation and the name of the investigator, as well as copies of the decisions to open and suspend the criminal investigation and to grant victim status.
50. On 30 April 2003 the Urus-Martan District Prosecutor’s Office informed the SRJI that investigation in criminal case no. 61126 was, at that date, suspended as all investigative measures had been taken but the perpetrators of the crime had not been identified and Mr Yunadi Sagayev’s whereabouts had not been established. It was further stated that investigator R. Yu. was responsible for the case and that copies of the decisions concerning the criminal proceedings had been sent to the fourth applicant.
51. On 11 June 2003 the SRJI wrote to the Urus-Martan District Prosecutor’s Office to ask for the first and third applicants to be granted victim status in criminal case no. 61126.
52. On 24 June 2003 the Military Prosecutor’s Office of military unit no. 20102 informed the third applicant that his letter had been examined but had been found not to disclose any evidence of servicemen’s involvement in Mr Yunadi Sagayev’s abduction.
53. On 9 July 2003 the Public Prosecutor’s Office of the Chechen Republic instructed the Urus-Martan District Prosecutor’s Office to provide it with detailed information on the results of the investigation and, if a decision to suspend the investigation had been taken, to provide a report on the grounds of the decision. No further information was received by the applicants on that subject.
54. On 1 August 2003 the Urus-Martan District Prosecutor’s Office quashed the decision of 21 November 2002 to suspend the investigation and resumed the proceedings.
55. On 1 September 2003 the investigation was again suspended on account of the failure to identify the perpetrators. The fourth applicant was informed accordingly.
56. On 11 October 2003 the National Public Commission for the Investigation of Offences and the Protection of Human Rights in the North Caucasus informed the third applicant that his application had been forwarded to the Military Prosecutor’s Office of UGA. The letter stated, incorrectly, that the Military Prosecutor’s Office of military unit no. 20102 had opened a criminal investigation into Mr Yunadi Sagayev’s abduction and had referred it to the Urus-Martan District Prosecutor’s Office.
57. On 20 October 2003 the FSB informed the third applicant that the FSB had not detained Mr Yunadi Sagayev as there had been no lawful grounds for his detention. He had not been suspected of any criminal offences.
58. On 14 January 2004 the SRJI asked the Urus-Martan District Prosecutor’s Office to grant the applicants access to the case file so as to enable them to appeal against the decision to suspend the investigation. Although the Prosecutor received the letter on 30 January 2004, neither the applicants nor the SRJI received a response.
59. On 1 February 2004 the Urus-Martan District Prosecutor’s Office quashed the decision of 1 September 2003 on the ground that the investigation was incomplete and resumed the proceedings. The fourth applicant was notified of the decision.
60. On 1 March 2004 the Urus-Martan District Prosecutor’s Office again suspended the investigation on account of the failure to identify the perpetrators. The fourth applicant was informed accordingly.
61. On 1 September 2004 the Urus-Martan District Prosecutor’s Office informed the fourth applicant that requests for certain investigative measures had been sent to district prosecuting authorities of the Chechen Republic. Requests to activate search measures had also been sent to the Urus-Martan district department of the interior. However, despite the measures taken it was proving impossible to identify the perpetrators or establish Mr Yunadi Sagayev’s whereabouts.
62. On 21 March 2005 the Prosecutor’s Office of the Chechen Republic quashed the decision of 1 March 2004 to suspend the investigation and resumed the proceedings. The decision stated, inter alia, that in the course of the resumed investigation it would be necessary to verify the first applicant’s allegations that his grandson had been apprehended by officers from the Urus-Martan district military commander’s office and the Urus-Martan district department of the FSB. It ordered the Urus-Martan District Prosecutor’s Office to take the investigative steps required. The fourth applicant was notified of the decision.
63. On 23 April 2005 the Urus-Martan District Prosecutor’s Office suspended the investigation once again on account of the failure to identify the perpetrators. The fourth applicant was informed accordingly.
64. After that the investigation was resumed on 6 June 2005, suspended on 6 July 2005, resumed on 1 September 2005, suspended on 2 September 2005, resumed on 18 November 2005, suspended on 18 December 2005 and again resumed on 24 May 2007. According to the Government, it has been pending since that date.
65. According to the applicants, the investigative authorities have not inspected the scene of the abduction. According to the Government, an inspection of the Sagayevs’ house in Aviatsionnaya street was carried out on an unspecified date. No evidence was found or seized.
66. The applicants submitted that, despite their numerous requests, they have received no information about the investigative measures that have been taken.
67. On 24 June 2005 the first applicant filed a complaint with the Urus-Martan Town Court concerning the investigating authorities’ inaction and their failure to provide him with access to case files nos. 61121 and 61126. In his complaint, he stated that Mr Ilias Sagayev and Mr Yunadi Sagayev had been apprehended by servicemen who had arrived on APCs.
68. On 1 August 2005 the Urus-Martan Town Court upheld the part of the complaint relating to the investigation in case no. 61121 but dismissed the part relating to the investigation in case no. 61126.
69. As regards case no. 61121, which concerned the abduction of Mr Ilias Sagayev, the court held, in particular:
“...[T]he decision of the Urus-Martan District Prosecutor’s Office to refuse [the first applicant] the right to study the materials in criminal case no. 61121 is in breach of the provisions of the Constitution and should be quashed.
The materials from criminal case no. 61121 ... show that at around 5 a.m. on 30 August 2002 unidentified men in camouflage uniforms and masks broke into the Sagayev’s house ... and took [Mr] Ilias Sagayev with them.
In the course of the investigation ... the following investigative measures were taken. [The second, seventh, eighth applicants and Mr K.] were questioned as witnesses. Requests for certain investigative measures were sent. According to the Urus-Martan district department of the FSB, they had not apprehended [Mr Ilias] Sagayev or taken him to their premises. Similar responses were received from the Urus-Martan district military commander’s office, the head of military unit no. 6779, the operational-search bureau of the Ministry of the Interior, district prosecutor’s offices and the Department of the Interior of the Chechen Republic.
On 2 November 2002 [the first applicant] ... was granted victim status.
In the course of the investigation [the perpetrators] were not identified and the whereabouts of [Mr Ilias] Sagayev [were not established], as a result of which the investigation was repeatedly suspended on account of [the failure to identify the person] to be charged with the offence. The investigation was suspended for the last time on 6 July 2005.
At the same time, the materials in the case file show that the investigator failed to take all the investigative measures necessary to establish the whereabouts of the abducted person and to identify the perpetrators. In particular:
- it has not established to which [authority] within the territory of the Urus-Martan district at the time of [Mr] Ilias Sagayev’s apprehension the APCs belonged, where each [APC] was located at the time of the abduction and on whose orders it was being used;
- neither the heads of the [authorities] which operated APCs nor the drivers of individual [APCs] were questioned;
- the [military] register concerning the use of military vehicles at the time of the abduction was not examined;
- the heads of the military commander’s office, of the district department of the FSB and of the district department of the interior were not questioned with a view to finding out who had been granted permission to pass through the town of Urus-Martan on the night of 30 August 2002 when freedom of movement was restricted;
- the register of persons detained in the period concerned was neither seized nor examined, and the persons in charge of detention facilities were not questioned with a view to establishing the circumstances relating to the [placement] of abducted person in such facilities;
- G., the military commander of the Urus-Martan district, was not questioned, whereas from the records of questioning of [the first applicant] it would appear that he had claimed to have been able to influence the fate of [his abducted relatives]. K., head of the FSB department, who had admitted his involvement in [Mr Ilias] Sagayev’s abduction, was not questioned either.
The above circumstances prove that [the first applicant’s] request for the [proceedings] to be resumed and for a more thorough and complete investigation is well-founded...”
70. As regards case no. 61126, the court dismissed the complaint on the ground that the first applicant had not been granted victim status in those proceedings and had failed to submit to the court documents corroborating his claim to be Mr Yunadi Sagayev’s grandfather.
71. Following the delivery of the judgment, on 9 September 2005 the first applicant requested the Urus-Martan District Prosecutor’s Office to give him access to materials in case file no. 61121 and to allow him to make copies of relevant documents. His request was refused. The first applicant complained to the Urus-Martan Town Court against the refusal.
72. On 23 December 2005 the Urus-Martan Town Court dismissed the complaint. The first applicant appealed.
73. On 8 February 2006 the Supreme Court of the Chechen Republic dismissed his appeal. It noted that Article 42 of the Code of Criminal Procedure provided that a victim could only inspect records pertaining to investigative actions in which he had participated. He could inspect the entire case file once the investigation had been completed. Since the investigation in case no. 61121 was still pending, the refusal of the Urus-Martan District Prosecutor’s Office to provide the applicant with access to the entire case file was lawful.
74. On 27 September 2005 the fourth applicant filed a complaint with the Urus-Martan Town Court concerning the inaction of the investigating authorities and their failure to give her access to case file no. 61126. In her complaint she stated that Mr Yunadi Sagayev had been apprehended by servicemen who had arrived on APCs.
75. On 28 October 2005 the Urus-Martan Town Court upheld her complaint. It held, in particular, that the prosecuting authorities’ refusal to allow her access to the materials in the case file was in breach of the Constitution. It further noted that in the course of the investigation the first, second, third and fourth applicants, Ms L. S. and Ms R. B. had been questioned as witnesses. In reply to requests for information the Urus-Martan district department of the FSB had stated that they had not apprehended Mr Yunadi Sagayev or taken him to their premises. Similar responses had been received from the Urus-Martan district military commander’s office, the head of military unit no. 6779, the operational-search bureau of the Ministry of the Interior, district prosecutor’s offices and the Department of the Interior of the Chechen Republic.
76. The court further noted a number of flaws in the investigation no. 61126 similar to those noted in its decision of 1 August 2005 in respect of the investigation in case no. 61121 (see paragraph 69 above) and ordered the Urus-Martan District Prosecutor’s Office to conduct a more thorough and complete investigation.
77. Following the delivery of the judgment, on 14 November 2005 the fourth applicant requested the Urus-Martan District Prosecutor’s Office to give her access to the materials in case no. 61126 and to allow her to make copies of relevant documents.
78. On 18 November 2005 the Urus-Martan District Prosecutor’s Office refused the request on the ground that in accordance with Article 42 of the Code of Criminal Procedure a victim could only inspect records pertaining to investigative actions in which he had participated.
79. Despite a specific request by the Court, the Government did not submit copies of the investigation files in cases nos. 61121 and 61126 concerning the abduction of Mr Ilias Sagayev and Mr Yunadi Sagayev. They submitted ninety pages of case-file materials containing decisions to institute, suspend and resume the investigation and to grant victim status. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. At the same time, the Government suggested that a Court delegation could have access to the “materials of the criminal cases containing no state or military secrets ... without making copies thereof” at the location of the preliminary investigation in Russia.
80. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.
VIOLATED_ARTICLES: 13
2
3
5
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-4920
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: STAMOULAKATOS v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Marc Fischbach
TEXT: The applicant is a Greek national, born in 1932 and living in London.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 15 November 1993 the public prosecutor of Athens summoned the applicant to appear before the three-member first instance criminal court (trimeles plimmeliodikio) of Athens on 26 April 1994 to be tried for making a false criminal accusation and perjury.
The applicant's trial took place in his absence on 12 February 1997. He was found guilty and given a commutable sentence of ten months. The applicant appealed on 5 June 1997 and the enforcement of the first instance decision was suspended.
On 8 May 1998 the three-member Court of Appeal (trimeles efetio) of Athens decided to discontinue the proceedings against the applicant because the action had become time-barred.
On 12 May 1998 the applicant applied for compensation for the proceedings instituted against him.
On 29 June 1998 the Greek General Consulate in London sent the applicant a letter it had received from the Court of Appeal of Athens. This letter, dated 11 June 1998, was addressed to the General Consulate and stated the following:
“In reply to your letter of 9 April 1998, which concerns a request by Nicholas Stamoulakatos, we inform you that, according to the law, he has no right to be compensated.”
B. The applicant's previous application under the Convention
On 25 August 1996 the applicant lodged application No. 32857/96 with the European Commission of Human Rights complaining, inter alia, of the length of the above criminal proceedings against him, which were at the time pending at first instance.
On 3 December 1997 the Commission declared the applicant's complaint concerning the length of the first instance proceedings admissible. It declared the remainder of the application inadmissible.
On 20 May 1998 the Commission expressed the opinion that the applicant's right under Article 6 § 1 of the Convention to a hearing within a reasonable time had been violated because of the length of the first instance proceedings.
On 18 January 1999 the Committee of Ministers found that there had been a violation of Article 6 § 1 in the applicant's case.


ITEMID: 001-88638
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KRASAVIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Sergey Borisovich Krasavin, is a Russian national who was born in 1965 and lives in Moscow. He was represented before the Court by Mr O. Ladygin, a lawyer practising in Moscow.
The applicant, his wife and their three children owned a three-room apartment, of a total surface area of 86.5 sq.m., in a building at 4 Viktorenko Street, in the North Administrative District of Moscow.
In 1997 the Prefect of the district concluded an investment contract with a private company, “Mosfundamentstroy-6”, for a land development, namely, for the construction of a new housing complex. According to that contract, the building in which the applicant had an apartment had to be pulled down and the inhabitants provided with new apartments.
As the applicant refused to leave the building, in 2001 the Prefect lodged a claim against him with the Savelovskiy District Court of Moscow. He claimed that the applicant should be evicted from the apartment in question, his ownership should be terminated and he should be granted ownership of a new apartment in the same district.
On 23 January 2001 the court rejected the Prefect’s claim.
On 27 February 2001 the Moscow City Administration issued Decree no. 184-PP on the Results of the Implementation of a Programme on Dwelling Space in 2000 and a Programme on Dwelling Space in 2001, according to which the building at 4 Viktorenko Street had to be demolished and its inhabitants relocated.
On 4 August 2003 the Prefect lodged the same claim again.
On 20 March 2003 the local Child Welfare Agency (орган опеки и попечительства) submitted to the court their conclusion that the applicant’s family’s eviction and the subsequent granting to them of a new, larger apartment would not affect the interests of the applicant’s children.
On 16 July 2003 the Prefect issued order no. 4203: “... to provide the Krasaviny family with a three-room apartment, of a total surface area of 109.6 sq.m., at 34 Lavochkina Street.
On 19 November 2003 the Savelovskiy District Court heard the case in the absence of the applicant’s family and allowed the Prefect’s claim.
On 9 February 2004 that judgment was quashed due to the court’s failure to secure the defendants’ presence and the case was remitted for fresh consideration.
On 31 March 2004 the Savelovskiy District Court of Moscow heard the case in the presence of the applicant and his lawyer and found as follows:
“...The Krasaviny family has a three-room apartment, of a total surface area of 86.5 sq.m., at 4 Viktorenko Street... By Decree no. 184-PP on the Results of the Implementation of a Programme on Dwelling Space in 2000 and a Programme on Dwelling Space in 2001” the building at 4 Viktorenko Street is included in the list of buildings to be relocated or demolished. On 25 October 2001 the Prefect of the North Administrative District obliged the Municipal Housing Management to provide the inhabitants of the said building with new dwelling space.
Article 49.3 of the Housing Code provided that, in the event of demolition of a building under circumstances prescribed by law, the local authority should grant the evicted owners title to an equivalent apartment or other compensation...
By virtue of the Prefect’s order no. 4203 the Krasaviny family were provided with a three-room apartment, of a total surface area of 109.6 sq.m., at 34 Lavochkina Street. This building is situated in a residential area, in the same Administrative District, four stops away from the family’s current location...In close proximity there are children’s educational institutions, including a specialist English school (D. Krasavin is now studying at a similar school), music school, and children’s sports centre.
According to the City Property Examination Bureau, the market value of the apartment at 34 Lastochkina Street is 4,860,400 Russian roubles , whereas the market value of the apartment at 4 Viktorenko Street is 3,142,200 roubles ...”
Further noting that the authorities were pursuing a public interest and acting within their area of competence, the court allowed the Prefect’s claim and ordered the eviction of the applicant’s family. The court also terminated the applicant’s family’s title to the former apartment and granted them title to the new apartment at 34 Lavochkina Street. This judgment was subject to immediate execution.
The Moscow City Court upheld the judgment in full on 24 May 2004.
On 2 April 2004 the applicant’s family was evicted. On the same day the building was demolished.
Article 49.3. Providing citizens who are owners of apartments in a fully or partly privatised building with new apartments due to the demolition of the building
If a building with privatised apartments becomes subject to demolition under circumstances prescribed by law, the local authority, company or organisation that performed the demolition shall grant the evicted owners, upon their agreement, title to an equivalent apartment or other compensation.