ITEMID: 001-87267
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: PINDSTRUP MOSEBRUG A/S v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Pindstrup Mosebrug A/S, is a private limited company registered in Denmark with its main office in Pindstrup. It was represented before the Court by Mr Per Magid, a lawyer practising in Copenhagen.
The Danish Government (“the Government”) were represented by their Agent, Mr Peter Taksøe-Jensen of he Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a company, which since the beginning of the 1900s has extracted peat.
On 16 November 1954, the applicant company entered into a contract with Lindet State Forest District (Lindet Statsskovdistrikt) for the exclusive and irrevocable rights to extract peat for fifty years from a State-owned bog called Draved Bog (Draved Mose). The leased area amounted to 212 hectares and according to a study carried out at the relevant time, the amount of peat available at the bog exceeded 1,000,000 cubic metres.
The contract of 1954 contained, in so far as relevant, the following provisions:
“The term of the lease shall commence on 1 April 1955 and shall expire, without notice, on 1 April 2005. During the lease period, the contract shall not be revocable by either party, unless in the event of a breach (see clauses 14 and 16).”
“Prior to the conclusion of the lease contract, the leased area, which is a bog area of varying depth of peat, was analysed by the Danish Heath Society (Det Danske Hedeselskab), whose study including appendices is enclosed with this contract, although the State Forest District accepts no responsibility for the accuracy of the analyses and descriptions.
The [applicant company] is entitled to remove or cut the layer of peat, but in such a way as to ensure that the area can subsequently be used as meadow or farm land. However, permission is granted to remove the entire layer of peat in an area of approximately six hectares, in spite of the fact that henceforth this area may not be drained off, as the State Forest District agrees to convert this area into a lake after the peat has been removed. ...”
“The [applicant company] shall be entitled to sublease or sublet cultivated areas, although not after 1 April 2005. The ... State Forest District shall be informed in writing of the person to whom the areas are subleased or sublet, and the sublessees shall be obliged under their contracts to comply with the regulations in force ...”
“Upon expiry of the lease, all areas except the lake area shall be returned drained off and laid down in grass of a mixture suitable for the condition of the area at the time unless the Parties have agreed otherwise ...”
At the relevant time, the applicant company already extracted peat at other locations in Denmark. Draved Bog was thus added to its peat reserves for later extraction. Shortly thereafter, the applicant company commenced the extraction of about 12 hectares of Draved Bog. At the relevant time the extraction was used mainly in the production of peat briquettes, whereas later on it was used for the purposes of peat-based growing media to be sold to professional growers and for hobby gardening.
On 13 May 1966, the parties drew up an addendum to the leasing contract in which a sub-area was excluded and a new area included.
The applicant company ceased its extraction activities at Draved Bog in the summer of 1971.
In 1972, the Raw Materials Act (Råstofloven) was passed, subjecting the commercial extraction of raw materials to a permit. A transitional arrangement applied to individuals who had acquired such rights prior to 9 February 1972 and notified them prior to 1 April 1973.
Consequently, on 26 March 1973, the applicant company notified the Southern Jutland County Council (Sønderjyllands Amtsråd) of its rights at Draved Bog pursuant to the contract of 1954. It added that at the relevant time about 3,000 cubic metres were produced annually and that one to two persons were employed in production activities.
On 13 November 1975 the Southern Jutland County Council acknowledged that the applicant company was entitled to continue extraction without permission under the Raw Materials Act.
In the meantime, on 25 May 1973 the applicant company sublet part of Draved Bog amounting to 110 hectares, which had been cultivated up to and including 1 March 1973, to a company called Pindstrup Foderindustri A/S. The cost of the annual lease was 50,000 Danish kroner (DKK). It appears that the sublease was in force until 1 March 1983.
In 1978, the applicant company made preparations to commence, in 1981, extracting peat in Draved Bog for a period of approximately fifteen years. It was estimated that the initial investment in production facilities would amount to DKK 6,000,000. At that time in Denmark, six raised bogs and an unspecified number of lowland bogs existed. The former were variously owned by the State, a natural protection foundation and private persons. The applicant company was the dominant producer of peat in Denmark and the only producer of peat from raised bogs. Over the years it had succeeded in acquiring rights to extract peat in most of the bogs suitable for extraction. The only other company which produced peat in Denmark did so from an area which had lost its character as a bog and none of the owners of the remaining five raised bogs had demonstrated any intention to extract peat.
On 21 December 1978, the Preservation Planning Committee for the County of Southern Jutland (Fredningsplanudvalget for Sønderjyllands Amt) instituted a preservation procedure regarding Draved Bog, covering 381.41 hectares, under section 13 of the Nature Preservation Act (Naturfredningsloven). The decision was made public on 28 December 1978. The Preservation Planning Committee for the County of Southern Jutland later stated that the procedure had been initiated at this point in time because its tasks would be transferred to the county councils (Amtsrådene) as of 1 January 1979.
On 1 January 1979 an amendment of the Nature Preservation Act entered into force, introducing a new provision (section 43, subsection 2) by which, inter alia, alterations of bogs (which included extraction of peat in bogs) could only take place with the permission of a county council (see relevant domestic law and practice, chapter 3).
Owing to the intended preservation of Draved Bog, on 23 May 1980 the applicant company produced a report in which it estimated its loss of expected profit at DKK 15,200,000.
Originally, the preservation procedure progressed independently on the assumption that section 43, subsection 2, did not apply to the applicant company since the procedure had been initiated on 21 December 1978, before that provision had came into force.
In a decision of 22 June 1982, however, the Superior Preservation Board (Overfredningsnævnet) held that section 43, subsection 2, had to be taken into account in relation to the applicant company. It noted that it could not have been possible for the applicant company to commence extraction in the short period between 21 December 1978 and 1 January 1979; thus, it should not be placed in a better situation than if the preservation procedure had been instituted after the latter date.
Subsequently, various administrative proceedings were pending.
Ongoing friendly-settlement negotiations as to a possible exchange of rights over another bog of equal value to Draved Bog failed.
A request of 28 July 1982 by the applicant company for a permit, under section 43, subsection 2, of the Nature Conservation Act, to extract peat in Draved Bog in an area amounting to 66 hectares was refused on 9 June 1983 (in a decision notified on 13 June 1983) by the County Council with regard to the southern part of the bog. In its decision, the County Council attached decisive weight to the fact that the southern part of the area in question consisted of unspoiled raised bog, described as nationally unique, geologically as well as biologically. The County Council was willing to grant permission, however, as regards the northern area of the bog, which contained approximately 56% of the peat. Unlike the southern area, peat had been extracted in the past in the northern area. Moreover, since the presence of a watercourse meant that there was no direct connection between the northern and southern parts of the bog, it was found that extraction of peat in the northern part would not cause irreparable damage to the bog area as a whole.
The applicant company appealed against the decision to the Preservation Agency (Fredningsstyrelsen) and maintained that the granting of permission to extract peat solely from the northern part of the bog was of insignificant value to it, because only so-called darker peat could be and had been extracted from there. In order to exploit the peat commercially, however, the darker peat had to be mixed with socalled lighter peat, which was in short supply in general, but could be found in the southern part of the bog.
On 1 June 1984 the Preservation Agency upheld the decision by the County Council.
On 29 December 1986 the Preservation Board of Southern Jutland (Fredningsnævnet for Sønderjyllands amts sydlige fredningskreds) issued a preservation order covering an area of 381.41 hectares of Draved Bog. Having regard to the complexity of the matter, it refrained from deciding on the applicant company’s claim for compensation.
The applicant company complained to the Superior Preservation Board, before which the proceedings were suspended for some time pending the outcome of further friendly-settlement negotiations. When the latter proved to be in vain, on 31 July 1991 the Superior Preservation Board upheld the Preservation Board of Southern Jutland’s decision to preserve the bog and to refrain from deciding on the applicant company’s claim for compensation.
As part of the friendly-settlement negotiations the applicant company was offered the right to extract sphagnum from an area of 48.2 hectares, which was part of a different State-owned bog called Store Vildmose. A lease to that effect was entered into in July 1991. At the relevant time the applicant company therefore leased the majority of both State-owned and private areas where extraction of peat was possible.
On 27 August 1991 the applicant company appealed against the Superior Preservation Board’s decision regarding compensation to the Valuation Commission for Nature Preservation (Taksationskommissionen vedrørende Naturfredning), which upheld it on 27 January 1992.
On 14 April 1992 the applicant company claimed compensation under section 73 of the Constitution (Grundloven) in the amount of at least DKK 15,000,000.
On 21 June 1993 the claim was dismissed by the Forest and Nature Agency, which found that the amendment to section 43, subsection 2, of the Nature Preservation Act did not constitute expropriation of possessions belonging to the applicant company. It added:
“... [the applicant company] may possibly have a claim for recovery of some of the rent payments which the company has been paying since 1 January 1979 after deduction of the rent attributable to the area which, after reclamation, is being used for agricultural purposes and the area which is covered by the exemption. The Forest and Nature Agency is therefore ... willing to enter into negotiations with a view to reaching a settlement on this matter.”
On 30 October 1997 the applicant company instituted proceedings before the High Court of Western Denmark (Vestre Landsret) against the Forest and Nature Agency under the Ministry of the Environment, claiming compensation in the amount of DKK 15,200,000 or, in the alternative, a lesser amount to be fixed at the High Court’s discretion or, in the further alternative, a refund of the rent in respect of the 66 hectares in the southern part of Draved Bog (on average approximately DKK 13,600 annually) and property taxes, plus the interest accruing on these payments, paid in the period between 1979 and 30 October 1997 (amounting in total to approximately DKK 884,000, equivalent to approximately 117,000 euros (EUR)). The applicant company’s compensation claim relied on two legal bases, namely the Nature Preservation Act as then applicable and section 73 of the Constitution.
Before the High Court of Western Denmark, various witnesses were heard. In addition, three experts were appointed, who confirmed that extraction solely of the darker peat from the northern area of Draved Bog was of insignificant value.
In a judgment of 21 December 2001 the High Court of Western Denmark found for the applicant company, stating as follows:
“The provision of section 43, subsection 2, of the Nature Preservation Act to the effect that alterations of the state of bogs may only be effected with the permission of the County Council was inserted into the Act by Act No. 219 of 24 May 1978, which entered into force on 1 January 1979.
This provision meant that [the applicant company] was unable to exercise its extraction rights at Draved Bog without permission from the County Council from 1 January 1979. This also applies even though the extraction rights of [the applicant company] had previously been notified in accordance with the rules of the legislation on raw materials and even though the preservation procedure had been instituted before the amending Act entered into force.
The fact that [the applicant company] was already prevented from exercising its extraction rights when the preservation procedure was instituted on 21 December 1978 cannot lead to [the applicant company’s] achieving a better position in the determination of possible compensation for preservation than if the preservation procedure had been instituted after 1 January 1979 as the applicant company had not had the possibility in practice of initiating peat extraction in the 10 days prior to 1 January 1979.
The provision in section 43, subsection 2, of the Nature Preservation Act must be considered an objectively motivated part of the regulation which has been implemented in view of the general interest in preserving ... the Danish wetlands. The provision applies to everybody and entails only a limited interference as regards [the use of] bogs in general.
The [applicant company], however, whose request for a permit to extract peat [in Draved Bog] had been refused in part, was affected in a substantial and atypically severe manner by the regulation, since the sole purpose of the company’s lease of the bog had been to extract peat, which inevitably would result in a change of the state of the bog.
On this basis, in relation to the [applicant company], the legislation has the character of expropriation, for which reason compensation must be awarded in accordance with section 73 of the Constitution.
The calculation of the amount of compensation takes as its starting point the report of 1980, produced by the managing director ... According to the information provided, since 1979 the applicant company has extracted, processed and sold peat from other bogs in Denmark as well as abroad, thereby being able to meet its market demands. The profit thus acquired is to be subtracted when determining the loss for which the [applicant company] may claim compensation. Having regard to the expert opinion, however, the compensation should not be reduced on account of the fact that the [applicant company] has obtained permission by the Preservation Agency’s decision of 1 June 1984 to extract the dark peat north of the stream in accordance.
Taking all circumstances into account, the [applicant company] ... should be awarded compensation in the amount of DKK 5,000,000.”
On 12 February 2002, the Forest and Nature Agency lodged an appeal against the judgment with the Supreme Court (Højesteret). The applicant company reiterated its claims and their legal bases, namely the Nature Preservation Act as then applicable and section 73 of the Constitution. Various witnesses and experts were heard, including the applicant company’s managing director, who stated, among other things, that extraction of peat in Draved Bog had ceased “in about 1971”.
A report of 19 May 2005 was also submitted, prepared by the Ministry of the Environment on bogs in Denmark, stating that in 1940 raised bogs had covered 65,180 hectares, whereas in 1978/1979 they had covered approximately 6,150 hectares. Only six examples of raised bogs over 10 hectares remained, including Draved Bog.
In a judgment of 28 February 2006 the Supreme Court, by a majority of three to two, overturned the judgment of the High Court of Western Denmark. First the Supreme Court stated as follows:
“For the reasons stated by the High Court, the Supreme Court endorses the finding that it was not the preservation, but the general prohibition in section 43, subsection 2, of the Nature Preservation Act that was the reason why [the applicant company] was prevented from exercising its right to extract peat (sphagnum) from Draved Bog, and that the [applicant company] is therefore not entitled to compensation for preservation under the rules of the Nature Preservation Act.”
Thereafter the majority of the Supreme Court (three judges) found as follows:
“Section 43, subsection 2, of the Nature Preservation Act, which took effect on 1 January 1979, entailed a general prohibition against changing the state of bogs. It follows from the preparatory works that the object of the provision was to introduce a regulation to protect the bogs as ‘a highly significant part of our freshwater wetlands’ without having to pay compensation – see Folketingstidende 1977-78, Supplement A, p. 2629, and Supplement B, p. 730.
The prohibition resulted in [the applicant company] being unable as of 1 January 1979 to exercise its rights of extraction in Draved Bog without the permission of the County Council.
The County Council’s refusal of 13 June 1983 to grant permission to continue peat extraction states, inter alia, that ‘the southern part of the area in question consists of unspoiled raised bog, which must be described as nationally unique, geologically as well as biologically’. When on 1 June 1984 the Preservation Agency confirmed the decision, it stated, inter alia, that ‘Draved Bog is nationally of the greatest value in terms of nature preservation’.
Whether or not the refusal can justify a claim for compensation for expropriation is to be determined on the basis of an overall assessment of the interference with [the applicant company’s] right of extraction.
The interference was motivated by significant nature and environmental interests. It was part of a general programme to preserve bogs and included a general restriction on the right to extract peat in Denmark. This affected all manufacturers of sphagnum, and it has not been shown that [the applicant company], which at the relevant time had not invested in production facilities for the purpose of exercising its extraction rights at Draved Bog, and which, moreover, had access to the extraction of considerable amounts of peat [elsewhere] in this country, was affected in a particularly severe manner.
Against this background, we find no basis for awarding [the applicant company] compensation under section 73 of the Constitution. Accordingly, we vote in favour of the claims of the Ministry for the Environment.”
The minority of the Supreme Court (two judges) found as follows:
“It can be established as a fact that Denmark has a shortage of sphagnum and that, owing to transportation costs, the import of sphagnum is significantly more expensive than extraction in Denmark. On this basis, it can also be established as a fact that the sphagnum which could have been extracted in Draved Bog represented substantial value to [the applicant company]. This applies even though extraction had not commenced on 1 January 1979, when the prohibition in section 43, subsection 2, of the Nature Preservation Act took effect. In addition, [the applicant company] was in an extraordinary situation as the Raw Materials Act allowed the company to extract peat from Draved Bog and the company had leased the area from the State for a period of fifty years for this sole purpose. Thus, despite the fact that the prohibition in section 43, subsection 2 of the Nature Preservation Act was justified by substantive preservation interests, we find, in concurrence with the High Court, that in relation to [the applicant company] the legislative interference was to be regarded as expropriation and that, consequently, the [applicant] company is entitled to compensation under section 73 of the Constitution.
Having regard to the expert opinions submitted before the Supreme Court, [we find it established] that since 1 January 1979 [the applicant company] has only had limited opportunities for increasing its sale, as compared to its actual sale, at least until the mid-1990s. On the other hand, it must be taken into consideration that extraction in Draved Bog would have reduced the extraction – and thus increased the reserves – of peat at the company’s other production sites in Denmark. On this basis, and considering the reasons by the High Court, compensation must be awarded on a discretionary basis, which we, like the High Court, find should be set at DKK 5,000,000.
Accordingly, ... we vote in favour of upholding the judgment of the High Court.”
Finally, the Supreme Court ordered the applicant company to pay costs to the Ministry of the Environment in the amount of DKK 1,400,000.
With regard to the background of the case, it is important to be aware of the difference between lowland bogs, which are sustained by groundwater, and raised bogs, which are sustained exclusively by atmospheric precipitation. In both types of bog, peat is formed primarily from sphagnum, but the remaining flora, and thus also fauna, differs significantly, as raised bogs are nutrient-poor with high acidity.
As a general rule, the peat in lowland bogs is dark brown with a high degree of decomposition of organic substances. This quality of peat is suitable for use as fuel, although less suitable for soil improvement and horticultural purposes (referred to below as “soil improvement” as a single category).
In raised bogs, apart from dark peat there is also light raised-bog peat which is suitable for soil improvement, but less suitable as fuel.
The formation of a peat layer happens over a long period of time. A one- metre-thick layer of light raised-bog peat will form over a period of 1,000 to 1,500 years. A similar layer of dark peat will typically form over a period of 2,000 to 3,500 years.
Subsequent to peat extraction, it will not be possible to regenerate the quantity of peat that has been removed through nature restoration, and extraction of peat can therefore not be considered to involve sustainable exploitation of natural resources.
Originally, bogs took up such a big part of the area of Denmark that it was considered beneficial to drain and cultivate bog areas. In around 1800, land in Denmark was so humid that peat had formed on 20 to 25% of the total area.
During the 1800s and the first half of the 1900s a large area of the bogs was drained and cultivated. Furthermore, peat was extracted for use as fuel and, to a lesser extent, for bedding in livestock stables.
The production of peat for fuel purposes increased rapidly during and just after the two world wars, when imports of foreign fuel were limited.
By 1966, the production of peat for fuel had almost ceased. The total Danish production of fuel peat was thus down to 9,000 tonnes in 1966, whereas the annual production on average over the period from 1940 to 1948 had reached 3-4 million tonnes.
The production of peat for soil improvement (including horticultural purposes) was insignificant until the end of the 1950s, when it increased and reached about 40,000 tonnes annually by the mid-1960s. In the following decades, production increased slightly and currently amounts to about 65,000 tonnes annually.
There is no ongoing registration of the size of Danish bog areas, particularly in the case of raised bogs. A survey carried out in around 1940 showed that raised bogs, and bogs including areas of raised bog, constituted 49,300 hectares, or about 1.1% of the total surface area of Denmark.
In recent statements under the European Union (EU) Habitats Directive, a total of 6,150 hectares, corresponding to about 0.14% of the total area of Denmark, has been classified under the habitat types “active raised bogs” (No. 7110) and “degraded raised bogs still capable of natural regeneration” (No. 7120).
Since bogs became a protected habitat type from 1 January 1979 as a result of the entry into force of Act no. 219, no permits for extracting from, or any permits to otherwise alter raised-bog areas with natural vegetation have been issued. Until then, peat production took place in the significant areas of peat deposits, which, by the end of 1978, had already lost the characteristics of bogs in their natural state.
The area of raised bogs in their natural state has thus remained the same from 1979 to the present day.
The majority of the remaining raised bogs are small in area. Larger coherent areas of active raised bog (areas of more than 10 hectares) exist in six places in Denmark. Draved Bog is among these.
Several bog areas are covered by preservation that interferes to a greater or lesser extent with the owners’ options for use of the land.
The possibility of protecting areas through specific rulings on nature preservation has been available in Denmark since 1971.
In 1972 general protection of habitat types without compensation was introduced as regards the habitat types of lakes and public streams and in 1978 the habitat types of private streams and bogs were added (for further details as to the latter, see relevant domestic law and practice, chapter 3).
In most European countries, bogs are endangered to about the same extent as in Denmark. Less than 10% of the original bog area is left. This has enhanced the focus on the significance of bogs for society, not only as natural areas with a high degree of biodiversity, but also as factors in the hydrological cycle (abating flooding from large European rivers) and as regulators of climate.
The UN Convention on Biological Diversity, the Bonn Convention (Convention on Migrating Species) and the Bern Convention (Convention on the Conservation of European Wildlife and Natural Habitats) are of special significance for bogs.
Within the EU, the Birds Directive and the Habitats Directive are important. In the Habitats Directive, “active raised bogs” are considered a prioritised natural habitat, meaning that Member States have a duty to launch preservation and improvement measures especially promptly.
Draved Bog has been designated as a preservation area under both directives.
The Administration of Justice Act (retsplejeloven) provides, in so far as relevant:
“(1) The losing party shall compensate the opponent for the expenses incurred by the opponent as a result of the proceedings, unless otherwise agreed by the parties.
(2) The court may decide that the losing party shall not or shall only partially compensate the opponent for the expenses incurred if particular reasons make this appropriate.
(3) ...”
In a Supreme Court decision of 24 April 2003, published in the Weekly Law Reports (Ugeskrift for Retsvæsen) 2003, p. 1550 (see Hansen and Others v. Denmark (dec.), no. 26194/03, 29 May 2006), section 312, subsection 2 was applied in a case between individuals and a public authority. The case was filed by a child and its parents against a county council and the Supreme Court upheld the High Court’s judgment. Even though the plaintiffs lost the case, in consideration of the extraordinary length of the legal proceedings, the Supreme Court applied section 312, subsection 2, and exempted the plaintiffs from compensating the county council for its legal costs.
The relevant chapter of the Administration of Justice Act was amended by Act no. 554 of 24 June 2005. The preparatory works on section 312, subsection 2, as in force from 1 July 2005, contained no reference to Article 6 of the Convention, nor is the length of the proceedings mentioned as a potential “particular reason” for reducing costs in accordance with the provision in question.
The Constitution (Grundloven) provides, in so far as relevant:
“(1) The right of property shall be inviolable. No person shall be ordered to surrender his property except where required in the public interest. This shall be done only as provided by statute and in return for full compensation.”
Public interference with private property rights covered by section 73, subsection 1, does not always give rise to compensation. In the public interest, the legislature may lay down general provisions limiting property rights without providing compensation.
An overall balancing exercise must be carried out to determine whether interference with protected rights not intended to transfer the exercise of the rights to the State or to others is to give rise to compensation for expropriation or is to be considered general regulatory legislation without compensation. The factors to be emphasised in this assessment are particularly whether the interference is general or particular, how burdensome the interference is and what interests to society the interference is to serve.
The Nature Preservation Act (Naturfredningsloven), no. 520 of 1 October 1975, was amended by Act no. 219 of 24 May 1978, henceforth referred to as Act no. 219, which took effect on 1 January 1979, introducing inter alia a new provision, section 43, subsection 2, which read as follows:
“Alterations of private watercourses with a bed width of at least 1.5 metres, and of the state of bogs, may only take place with the permission of the County Council ...”.
According to the preparatory works, wetlands were diminishing so rapidly that private watercourses and bogs had to be included in the protection hitherto confined to lakes and publicly owned watercourses. Moreover, the protection of bogs was found to be necessary with reference to their special fauna and flora and to interests relating to landscape conservation, education and recreation (Folketingstidende 1978-79, Supplement A, pp. 2624-25). Accordingly, bogs were no longer considered reserves of raw materials (peat) but part of a general campaign for the protection of the remaining Danish wetlands. The aim of the Act was to include all private watercourses and bogs in this protection.
Act no. 219 also reformed the preservation procedure and the administrative framework. On 1 January 1979 the local preservation planning committees were abolished and their powers transferred to the county councils.
Pursuant to the Raw Materials Act (Råstof-loven, no. 287 of 7 June 1972), extraction of raw materials was subject to a permit being granted by the County Council, unless rights had been acquired prior to 9 February 1972 and notified to the County Council prior to 1 April 1973.
State Forest Districts were the responsibility of the Forest and Nature Agency (Skov- og Naturstyrelsen), which was ultimately attached to the Ministry of the Environment (Miljøministeriet).
General regulations to limit the exercise of property rights without providing compensation may be found as early as 1849, when the first Danish Constitution was adopted and laws on agricultural land, forests, sand dunes and hedges were in place to limit landowners’ rights. Similarly, legislation to regulate activities harmful to human health was implemented in the 1850s.
In 1937 legislation on landscape protection through the prohibition of construction along forests and beaches (later expanded to areas along watercourses and lakes and around churches and ancient monuments) was enacted through amendments to the 1917 Nature Preservation Act. The first Urban Planning Act authorising local authorities to lay down spatial plans with legal effect on landowners’ rights was passed in 1938.
Subsequently, a significant amount of legislation on planning, environmental protection and nature preservation was passed within a relatively short period in the 1960s and 1970s. Among the instruments enacted were the Zoning Act (1969), the Summerhouse and Camping Act (1972), the Raw Materials Act (1972), the National and Regional Planning Act (1973), the Environmental Protection Act and the Municipal Planning Act (1975). A number of existing acts were comprehensively amended during this period, including the Water Supply Act (1969), the Nature Conservation Act (1969) and the Watercourses Act (1973). Since then the legislation mentioned above has been updated or amended on numerous occasions.
The legislation was enacted as a response to the growing pressure on nature and natural resources from, for example, industrialisation, agricultural intensification, urbanisation and the consequent degradation of the environment and nature. A similar development occurred in other western European countries from around 1970. This development was also a response to a growing number of international obligations either through EU legislation or through international treaties, including a number of generally accepted principles, such as the precautionary principle, the polluter-pays principle and the principle of sustainable development.
In addition to general regulations governing private property rights, general regulations have been passed with a view to protecting specific habitat types in Denmark. First and foremost, a number of habitat types which had been in serious decline during the century were covered by the general preservation scheme under the Nature Preservation Act in 1972. Thereafter, any alteration of an area covered by the scheme was prohibited without an exemption having been granted by the relevant authority.
The scheme was successively extended. In 1972 it covered lakes and public watercourses, and in 1978 it was extended to cover private watercourses and bogs. In 1981 salt marshes, swamps, coastal meadows and heaths were included. The last extension occurred in 1991, when humid permanent grassland, uncultivated dry grassland and stone and earth dykes were included in the scheme as well. Also, in 1991 a general prohibition on cultivation closer than two metres from watercourses was introduced.
In Denmark, civil proceedings are as a rule subject to the so-called adversarial system, whereby the court has to make its decision on the basis of the claims and particulars produced and provided by the parties. Hence, in accordance with section 338 of the Danish Administration of Justice Act (retsplejeloven), the court cannot award a party more than his or her claim, and it may only take into consideration submissions relied on by the party or submissions that cannot be excluded.
The adversarial system is based on the assumption that the parties are the best placed, in view of their advance knowledge of the facts of the case, to assess what claims the case can support, and what submissions may be relevant for inclusion in the proceedings before the court.
The court may only take into consideration submissions relied upon by the parties. The parties are thus subject to a burden of production, as the court is supposed only to refer to the specific circumstances relied upon in support of the parties’ litigation claims when it passes judgment. If a party has not produced a certain submission, the court is unable to take it into consideration on its own motion.
A submission can only be considered to have been relied upon if a specific circumstance has been emphasised as an element in the reasoning for the party’s litigation claim. A submission must contain a certain clarification of a legal fact, relating both to the pure facts and to their possible legal significance. The wording of a submission may require a certain legal description or qualification of the particulars presented to the court. A certain legal qualification of the bare facts may be necessary to allow the court and the opponent to understand the connection which is believed by the party to exist between his statement of facts and his litigation claims (see Gomard, Civilprocessen (Civil Procedure), 6th ed., 2007, p. 517).
In addition to claims and submissions, the adversarial system also includes the provision of evidence (except in certain proceedings, such as matrimonial proceedings, in which the parties do not have full control of the outcome despite their pleadings, even if the parties agree). By contrast, the adversarial system does not apply as concerns the rules of law.


ITEMID: 001-77930
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KRONE VERLAGS GMBH & CO KG v. AUSTRIA (No. 4)
IMPORTANCE: 2
CONCLUSION: No violation of Art. 10
JUDGES: David Thór Björgvinsson
TEXT: 8. The applicant company, a limited liability company with its registered office in Vienna, is the owner of the daily newspaper Neue Kronenzeitung.
9. In its issue of 9 May 1997 the applicant company published a one-page article about the alleged harassment and rape of two winners of beauty contests, Ms O and Ms S, during a representation mission in Monte Carlo. The article headed “It's your own fault girls...” and subtitled “Raped and harassed in Monte Carlo: Two beauty winners bring heavy charges” started with the quotation of Ms R, the daughter of the former manager of the Austrian public relations agency organising these contests and moderator of such events, saying that “The prince cannot rape, he is very ill. We [Ms R and her father] rather think that the girls are only boasting and now try to make as much money as possible out of this unfortunate incident.” The article indicated that Ms R was the daughter of “Miss-maker R from Linz” and noted this was the “first official comment” on the above scandal. It then mentioned that two persons had been arrested on suspicion of procuration, described the details of the alleged incident and cited from a memorandum of Ms O and Ms S's lawyer. This memorandum referred to the statement made by a bodyguard of the prince who had allegedly said: “It's your own fault girls...” The article concluded with further statements made by Ms R asserting inter alia that the public relations agency of her father had not arranged the representation mission at issue.
10. Ms R had made her statements during a telephone interview when contacted by a journalist of the applicant company.
11. Thereupon, Ms O and Ms S opened private prosecution for defamation against Ms R.
12. On 3 October 2000 the Vienna Regional Criminal Court (Landesgericht für Strafsachen), having heard the private prosecutors, Ms R, the applicant company and a number of witnesses, convicted Ms R of defamation in a printed medium under Section 111 § 2 of the Criminal Code (Strafgesetzbuch) on account of the statement “The prince cannot rape, he is very ill. We [Ms R and her father] rather think that the girls are only boasting and now try to make as much money as possible out of this unfortunate incident.”, imposed a fine of approximately EUR 1,000 on her and ordered her to pay the costs of the proceedings. It noted that the offence was a media offence (Medieninhaltsdelikt), which could only be committed through publication in the applicant company's newspaper, and found the applicant company jointly and severally liable (Solidarhaftung) for the fine and the costs pursuant to section 35 of the Media Act (Mediengesetz).
13. In its plea of nullity against this judgment the applicant company complained about its joint and several liability under section 35 of the Media Act. It submitted in particular that the court should have interpreted this provision in conformity with Article 10 of the Convention, which prescribed joint and several liability only for failure of compliance with journalistic diligence. The article in question was written in an objective manner, reporting about the conflicting versions of the incident in Monte Carlo, and correctly quoted Ms R's statement without taking sides.
14. On 2 April 2001 the Vienna Court of Appeal (Oberlandesgericht), partly allowing Ms R's appeal, suspended the fine for a three-year probationary period. For the rest, it dismissed the applicant company's plea and confirmed the Regional Court's judgment. It held that the publisher's liability under section 35 of the Media Act was linked to a media offence, which could be committed not only by an employee of a media company but also by a third person. The commission of such an offence fell within the sphere of risk of a publisher who printed a defamatory statement in its newspaper. Its subsequent liability was based on considerations of causality and did not imply any finding of guilt. The court found that the legislator's choice in favour of the joint and several liability of the publisher reflected the balance struck between the interests involved, namely the interest of the media to exercise the right to freedom of expression, on the one hand, and, on the other, that of the person desirous of protecting his/her reputation, in favour of the interest of the defamed victim to secure financially the proceedings instituted to obtain legal redress. The publisher's strict liability was in line with its obligation to publish the judgment in its newspaper.
15. Subsequently Ms O and Ms S requested the applicant company to pay the legal costs of the defamation proceedings. Having paid, the applicant company filed a claim against Ms R and requested reimbursement of ATS 105,480 (EUR 7,665.53).
16. On 9 September 2002 the Favoriten District Court (Bezirksgericht) partly granted the applicant company's claim and ordered Ms R to pay the applicant company 50 % of the costs of the defamation proceedings. On 25 March 2003 the Vienna Regional Court confirmed this decision.
17. On 16 October 2003 the Supreme Court (Oberster Gerichtshof) dismissed the applicant company's appeal. It noted that section 35 of the Media Act was not meant to disburden a defamer. The applicant company had paid another person's debt for which it was jointly and severally liable and was, in principle, entitled to recover under Article 1358 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) the full amount of the sum paid.
18. However, the special internal relationship (Innenverhältnis) between the applicant company and Ms R stood against full reimbursement, as Ms R had to be considered as an assistant of the applicant company (Medienmitarbeiter) in the broadest sense of the term. The court noted in this regard that the applicant company had used Ms R's statements for its own economic interests. Ms R could only commit the offence via the applicant company which had published the impugned statements. Furthermore, Ms R had acted free of charge and the interview had been carried out on the initiative of the applicant company. When correlating these factors with the guilt of Ms R, the splitting of the liability between the applicant company and Ms R was acceptable.
19. The court finally did not find it necessary to examine whether the applicant company could have claimed full reimbursement if section 6 (2) (4) of the Media Act was applicable to its case. It noted in this regard that the requirements under section 6 (2) (4) were not met as there was no predominant public interest in Ms R's statements about the alleged rape of the two winners of beauty contests. Ms R had at the time of the interview no relation whatsoever with the public relations agency implicated in these events and the applicant company could, moreover, not trust Ms R to be informed about the background of the events at issue.
20. Article 111 of the Criminal Code (Strafgesetzbuch) reads as follows:
“1. As it may be perceived by a third party, anyone who makes an accusation against another of having a contemptible character or attitude, or of behaving contrary to honour or morality, and of such a nature as to make him contemptible or otherwise lower him in public esteem, shall be liable to imprisonment not exceeding six months or a fine (...)
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise, in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine (...)
3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true."
21. A media offence (Medieninhaltsdelikt) is defined as “[an] act entailing liability to a judicial penalty, committed through the content of a publication medium, consisting in a communication or performance aimed at a relatively large number of persons” (section 1 (12) of the Media Act (Mediengesetz)). Specific measures under the Media Act in case of a media offence are the publication of the judgment or a counter-statement (ss 12 and 34) and the joint and several liability of the media owner (section 35).
22. Section 35 of the Media Act, at the time of the events, read as follows:
“Liability
35 (1) In criminal judgments concerning media offences committed through the content of a publication it must be stated that owners of periodical media bear joint and several liability together with the convicted person for the fine imposed and the procedural costs incurred, including the costs for the publication of the judgment.
(2) If, after the judgment had been pronounced in which such liability is found to exist ... the owner of the medium changes, the new owner is jointly and severally liable together with the former owner.
(3) Imprisonment in default ... can only take place if the fine could not be collected from the media owner.”
23. Section 6 of the Media Act, at the time of the events, read as follows:
“6 (1) If in a medium the presence of the factual elements of the offence[s] of defamation [....] is established, the person concerned has against the owner of the medium a claim for compensation of the prejudice suffered. .....
(2) There is no claim under (1) in case of ....
4. a truthful reproduction of the statement of a third person if there was a predominant public interest in the knowledge of the cited statement.”
24. Article 1358 of the Civil Code (Allgemeines bürgerliches Gesetzbuch) provides that a person who has paid another person's debt for which she/he is liable may claim reimbursement from the debtor. According to the writings on the subject this claim may be limited or even fail in case of a special internal relationship (Innenverhältnis) between these persons.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-93224
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BAKHMUTSKIY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1969 and is currently serving a prison sentence in a correctional colony in the Rostov Region.
6. On 26 February 1998 the prosecutor opened a criminal investigation against the applicant.
7. On 3 March 1998 the applicant was arrested and detained in custody on suspicion of kidnapping and fraud. On 13 March 1998 he was released on bail. However, the applicant fled from the investigative authorities and re-offended.
8. On 5 May 1999 the applicant was again arrested. Shortly afterwards, on 18 May 1999 he was detained on remand.
9. On 22 May 1999 the applicant was charged under Articles 139 § 3, 126 § 3 and 163 § 3 of the Criminal Code with unlawful entry into a home, kidnapping and extortion. He was subsequently charged under Articles 127 § 3, 158 § 3, 159 § 3, 161 § 3, 162 § 3, 325 § 2 and 327 § 1 of the Criminal Code with illegal deprivation of liberty, theft, fraud, robbery, stealing and forgery of official documents.
10. On 14 July, 7 September, 16 September and 30 November 1999 the Prosecutor of the Rostov Region extended the applicant’s detention until 24 September, 15 November, 18 December 1999 and 24 March 2000 respectively. Each time, consideration was given to the applicant’s criminal record, the gravity of the charges against him and his active role in a gang.
11. On 20 March 2000 the case against the applicant was sent to the Rostov Regional Court for trial.
12. On 29 March 2000 the Rostov Regional Court scheduled the opening date of the trial and ordered that the preventive measure in respect of the applicant and his co-defendants “should remain unchanged” in accordance with Articles 222, 223 and 230 of the RSFSR Code of Criminal Procedure.
13. On 13 June 2000 the Rostov Regional Court convicted the applicant and sentenced him to twelve years’ imprisonment. On 2 November 2000, however, the Supreme Court of the Russian Federation quashed the judgment on appeal and remitted the case for a retrial. The Supreme Court held that the preventive measure applied to the applicant “should remain unchanged”.
14. On 1 December 2000 the Rostov Regional Court scheduled the new trial hearing and ordered that the preventive measure “should remain unchanged”.
15. On 14 May 2001 the Rostov Regional Court convicted the applicant and sentenced him to sixteen years’ imprisonment, but on 16 January 2002 the Supreme Court quashed the conviction on appeal and remitted the case for a retrial. The Supreme Court held that the preventive measure applied to the applicant “should remain unchanged”.
16. On 12 February 2002 the Rostov Regional Court listed the new trial hearing for 27 February 2002 and ordered that the preventive measure applied to the applicant “should remain unchanged”.
17. On 1 July 2002 the Rostov Regional Court extended the applicant’s detention until 1 October 2002. It found as follows:
“The defendants [the applicant and four other persons] are charged with kidnapping, illegal deprivation of liberty, burglary and other crimes.
They have been in custody: ..., [the applicant] – since 15 May 1999, ... .
The Prosecutor requested that the defendants’ detention be extended by 3 months.
Having examined the Prosecutor’s request, having heard the parties to the proceedings, the court considers it necessary to extend the defendants’ detention by 3 months, that is, until 1 October 2002 inclusive, because they are charged with serious and particularly serious criminal offences.
Under Articles 255, 256 of the Russian Code of Criminal Procedure, the defendants’ detention on remand is extended by 3 (three) months, that is, from 1 July 2002 to 1 October 2002.”
18. On 6 November 2002 the Supreme Court of Russia upheld the extension order, finding that it was sufficiently justified.
19. On 1 October and 31 December 2002 and 31 March, 26 June, 25 September and 15 December 2003 the Rostov Regional Court extended the applicant’s detention until 1 January, 31 March, 30 June, 26 September, 25 December 2003 and 15 March 2004 respectively. The wording of the above decisions was identical to that applied in the decision of 1 July 2002.
20. The applicant appealed against each of the above extension orders to the Supreme Court arguing that the extension orders were not sufficiently reasoned and that the court had not taken into consideration his individual situation. On 12 February, 14 May, 16 July, 16 October and 24 December 2003 and 31 March 2004 respectively, the Supreme Court of Russia upheld the above decisions on appeal.
21. In the meantime, on 19 February 2004 the Rostov Regional Court, composed of presiding judge Mr Zh. and lay judges Ms S. and Ms M., extended the applicant’ detention until 19 May 2004. The court used the same stereotyped wording and referred to the seriousness of the charges against the applicant. The applicant again appealed against the extension to the Supreme Court.
22. On 10 March 2005, that is after the applicant’s conviction by the Regional Court (see paragraph 24 below), the Supreme Court of Russia discontinued the examination of the applicant’s appeal because he had been convicted in the meantime by the Regional Court.
23. As regards the trial proceedings in the period from 27 February 2002 to 25 February 2004, the case was adjourned on over fifty occasions: at the request of the applicant and his co-defendants, who wished to study the case file or the records of the hearings; at the requests of the applicant and his co-defendants for the replacement of their representatives and the need for the newly appointed representatives to study the case file; due to the illness of the representatives and their failure to appear before the court, and due to the illness of the applicant and co-defendants or following their complaints concerning their health. On one occasion the hearing was adjourned due to the failure of the authorities to transport the defendants to the courtroom.
24. On 17 May 2004 the Regional Court, composed of presiding judge Mr Zh. and lay judges Ms S. and Ms M., found the applicant guilty of multiple counts of fraud, multiple counts of kidnapping and illegal deprivation of liberty, extortion, theft and burglary and sentenced him to thirteen years’ imprisonment.
25. The applicant lodged an appeal. He claimed, inter alia, that the lay judges had unlawfully sat on the bench. The law had been changed and after 1 January 2004 the lay judges were no longer permitted to take part in the administration of justice.
26. On 10 March 2005 the Supreme Court of Russia comprising three judges upheld the judgment on appeal. One of the judges of the Supreme Court had previously examined the applicant’s case on appeal on 2 November 2000 (see paragraph 13 above) and had also examined, on 16 October 2003, the appeal against the decision of 26 June 2003 to extend the applicant’s detention until 26 September 2003 (see paragraphs 19-20 above). One other judge had previously examined the applicant’s case on appeal on 16 January 2002 (see paragraph 15 above). As to the applicant’s allegation about the allegedly unlawful composition of the tribunal, the court found that the trial had begun before 1 January 2004 and that the participation of two lay judges in the determination of the criminal charge against him had been in accordance with the principle of continuity of the trial.
27. From 7 July 1999 to 23 April 2005 the applicant was held in detention facility IZ-61/1 of Rostov-on-Don (Учреждение ИЗ-61/1 г. Ростова-на-Дону УИН МЮ РФ). Throughout this period the applicant was held in thirteen different cells.
28. According to the Government’s observations of 31 January 2008, the cells where the applicant was held measured from 6.6 square metres (the punishment cell) to 54.5 square metres, and provided an average space of between three and four square metres per person. The design capacity of the cells was not exceeded.
29. Windows in the cells were covered with metal screens (жалюзийные решетки), which were removed in December 2002. The cells were illuminated with 60-75 watt filament lamps (from two to four lamps per cell depending on the size of the cell), which were on from 6 a.m. to 10 p.m. At night time the cells were lit by 60-75 watt security lights with tinted glass shades.
30. All cells were ventilated by a system of exhaust ventilation. Natural ventilation through windows was also available. The cells were equipped with a heating system providing an adequate temperature in line with sanitary norms. The average temperature during the summer was maintained at 22 degrees Celsius, and during winter at 18 degrees Celsius.
31. The cells were equipped with wash basins, cold and hot water taps and lavatory pans elevated 35 cm above the floor and separated from the main area by a two-metre-high brick partition. The arrangement of lavatory pans assured the detainees privacy when using them.
32. The cells were equipped with potable water tanks. The quality of the drinking water was regularly checked by the facility’s medical staff.
33. In each cell the applicant had an individual bed and was provided with bedding (a mattress, a blanket, a pillow, two bed sheets and a pillow-slip) and towels.
34. The cells were also equipped with dining tables and benches corresponding to the number of detainees, as well as shelves and bedside tables for storage of personal items and foodstuffs.
35. The applicant could take a shower at least once a week.
36. He was given food three times a day on the basis of the established legal norms. The quality of the food was monitored on a regular basis by the medical staff of the detention facility.
37. The applicant was allowed a daily one-and-a-half hour outside walk.
38. The authorities ensured that regular disinfections and disinfestations were carried out in the detention facility.
39. In support of their observations the Government provided several certificates issued by the director of IZ-61/1 on 17 and 18 December 2007, statements by wardens (although not dated), a copy of the applicant’s prison card stating that he had been provided with bed sheets, cutlery and clothes, as well as a number of certificates concerning the food ration during the relevant period.
40. The applicant claimed that the number of detainees considerably exceeded the design capacity of the cells and that the detainees had to sleep in shifts.
41. The cells were dimly lit by two filament lamps. Access to daylight was restricted by metal screens and the arrangement of the bunks in two or three tiers.
42. The windows were not equipped with fresh-air shutters, and, therefore, the cells could not be aerated and the air was heavy with smoke.
43. The metal screens were not removed until April 2003, and the window panes started to be removed for better access to fresh air in summertime.
44. The lavatory in the corner of the cell was elevated above the floor and separated by a 1.1-metre partition from the wash basin, but not from the living area. There was no screen at the entrance to the toilet. The applicant thus had to use the toilet in the presence of other inmates and be present while the toilet was being used by his cellmates.
45. The applicant was never provided with any toiletries.
46. The cells swarmed with cockroaches, bedbugs and lice and were never treated by the administration.
47. In support of his statements the applicant produced written depositions by three former cellmates. They stated, in particular, that in 2002-2003 they had been detained together with the applicant in cell no. 48. The cell designed to accommodate ten persons housed up to fifty detainees at any one time. They also testified that they and the other detainees had slept in shifts.
48. On 23 April 2005 the applicant was transferred to correctional colony Uch-398/5 of Konstantinovsk, the Rostov Region (ФГУ Уч-398/5 ГУФСИН России), to serve his sentence.
49. Relying on the certificate issued by the director of Uch-398/5 on 25 December 2007 the Government submitted that the applicant is held in dormitory no. 5 measuring 334 square meters and equipped with 144 bunk beds. In 2005 the dormitory housed 135 convicts, in 2006, 132 convicts, and accommodates 144 convicts at the present time.
50. All convicts are provided with bedding and toiletries.
51. The premises of the dormitory have a sanitary unit separated from the main area and equipped with lavatory pans, cold and hot water taps and wash basins.
52. The dormitory is equipped with sealed–up window frames allowing to a sufficient extent access to natural light and fresh air when the frames are opened. The premises of the dormitory are ventilated on a regular basis.
53. In the daytime the dormitory is lit by thirty-seven 75 watt filament lamps and at night by four 60-75 watt security lights with tinted glass shades.
54. The applicant receives food three times a day on the basis of the established legal norms. The quality of the food is regularly monitored by the facility’s medical staff.
55. No persons infected with tuberculosis are kept in the correctional colony.
56. The applicant alleged that the living areas are overcrowded, and that the sanitary conditions, ventilation and lighting are inadequate. He further submitted that he has to share living space with detainees suffering from tuberculosis.
57. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the RSFSR (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”).
58. “Preventive measures” (меры пресечения) include an undertaking not to leave a town or region, personal security, bail and detention (Article 89 of the old CCrP, Article 98 of the new CCrP).
59. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22).
Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96).
The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1, 3-6).
60. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP).
61. Before 14 March 2001, detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years’ imprisonment or if they had previously defaulted or had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available.
62. The Codes distinguished between two types of detention: the first being “pending the investigation”, that is, while a competent agency – the police or a prosecutor’s office – investigated the case, and the second “before the court” (or “during the trial”), that is, while the case was being tried in court. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different.
63. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but can be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels (under the old CCrP) but must now be authorised by judicial decisions taken by courts of ascending levels (under the new CCrP). No extension of detention “pending the investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP).
64. The period of detention “pending the investigation” is calculated to the day when the prosecutor sent the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP).
65. Access to the case file materials is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months.
66. Under the old CCrP, the trial court had the right to remit the case for an “additional investigation” if it established that procedural defects existed that could not be remedied at the trial. In such cases the defendant’s detention was again classified as “pending the investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for an additional investigation, but the investigators had already used up all the time authorised for detention “pending the investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month starting from the date he received the case. Subsequent extensions could only be granted if the detention “pending the investigation” had not exceeded eighteen months (Article 97).
67. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”).
68. Before 14 March 2001 the old CCrP set no time-limit for detention “during the trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the trial” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant’s release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with a particularly serious criminal offence.
69. The new CCrP establishes that the term of detention “during the trial” is calculated from the date the court received the file to the date the judgment is given. The period of detention “during the trial” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
70. Under the old CCrP, the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee’s counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee’s release (Article 220-1).
An appeal to a higher court lay against the judge’s decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (see paragraph 77 below) (Article 331 in fine).
71. Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention on remand. The appeal court must decide the appeal within three days of its receipt (Article 108 § 10).
72. Upon receipt of the case file, the judge must determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 222 § 5 and 230 of the old CCrP, Articles 228 (3) and 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). If the application was refused, a fresh application could be made once the trial had commenced (Article 223 of the old CCrP).
73. At any time during the trial the court may order, vary or revoke any preventive measure, including detention (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberations room and signed by all the judges of the bench (Article 261 of the old CCrP, Article 256 of the new CCrP).
74. An appeal against such a decision lies to the higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP – see paragraph 77 below).
75. Under the old CCrP, within fourteen days of receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to return the case for an additional investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court with jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing (предварительное слушание); or (3) to fix a date for trial (Article 227). The trial must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing.
76. The duration of the trial is not limited.
77. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days of its receipt. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this time-limit could be extended by up to two months (Article 333). No further extensions were possible.
The new CCrP establishes that the appeal court must start the examination of the appeal no later than one month after its receipt (Article 374).
78. The old CCrP provided that hearings in first-instance courts dealing with criminal cases were, subject to certain exceptions, to be conducted by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as the professional judge (Article 15).
79. The new CCrP does not provide for participation of non-professional judges in administration of justice in criminal matters. It provides that serious crimes should be dealt with by a single professional judge or by three professional judges provided that the accused has submitted such a request prior to the scheduling of a trial hearing (Article 30 § 2 (3)).
It further provides that the composition of the court examining the case should remain unchanged throughout the trial (Article 242 § 1).
80. The Federal Law enacting the new CCrP (Law no. 177-FZ of 18 December 2001) provides as follows:
Section 2.1 provides that the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction is ineffective as of 1 January 2004.
Section 7 provides that Article 30 § 2 (3) of the Code of Criminal Procedure, in so far as it concerns the examination of serious crimes by three professional judges, is effective as of 1 January 2004. Before that date serious crimes were to be dealt with by a single professional judge or by one professional and two lay judges if an accused filed such a request prior to the scheduling of a trial hearing.
81. Section 22 of the Detention of Suspects Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
82. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows:
“b. temporary holding facilities for criminal suspects (IVS)
26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS establishments visited in 2001 varied considerably.
...
45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
...
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private ‘because they know that all complaints usually pass through the colony’s administration’.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
VIOLATED_ARTICLES: 13
3
5
6
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
6-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-80408
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KOVAL AND PATSYORA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen;Zoryana Bortnovska
TEXT: 5. Mrs Olga Mykolayivna Koval (the first applicant) was born in 1964. Mrs Alla Oleksandrivna Patsyora (the second applicant) was born in 1952. Both applicants are former teachers at a local school and live in the town of Rozdilna, the Odessa Region.
6. On 7 October 1999 the Rozdilna Court (Роздільнянський районний суд Одеської області) awarded the first and the second applicants, respectively, UAH 1,248 and UAH 2,485.28 against the Department for Education of the Rozdilna Municipal Council (hereafter “the Department”) for arrears in some payments additional to their salaries (see, in this respect, Kechko v. Ukraine, no. 63134/00, §§ 9-11, 8 November 2005).
7. On 18 October 1999 the court issued writs of execution, which were submitted to the Rozdilna District Bailiffs' Service (hereafter “the Bailiffs”).
8. In letters of 22 February 2001, the Bailiffs informed the applicants that the judgments in their favour had not been executed because the 1999 State Budget did not preview the expenditure for teachers' social benefits. In the 2000 State Budget teaching programmes were funded only 2.8% of actual needs. The 2001 State Budget likewise did not provide funds for this purpose. The State Administration further stated that such payments could only be made after the adoption of relevant legislation by Parliament.
9. On 2 April 2001 the Odessa Regional Department of Justice notified the first applicant that the judgment of 7 October 1999 could not be immediately enforced due to the Department's lack of property that could be attached.
10. On 30 July 2001 the Velykomykhaylivsky Court rejected the applicants' complaints against the alleged Bailiffs' inactivity.
11. On 14 May 2002 the Odessa Regional Court of Appeal, following the second applicant's appeal, upheld this decision. The applicant was present at this hearing. She did not appeal in cassation.
12. On 24 May 2002 the Velykomykhaylivsky Court left without consideration the first applicant's appeal against the decision of 30 July 2001 for failure to comply with the formalities as to its content and to pay the court fee and allowed her time until 26 June 2002 to rectify the mistakes. On 3 July 2002 the court returned the appeal without consideration for failure to rectify it.
13. On 29 December 2001 the first applicant was paid UAH 160.
14. On 14 August 2003 the Bailiffs returned the execution writs of 18 October 1999 to the applicants, stating that the judgments could not be enforced as the State Budget provided no funds for such payments.
15. The judgments of 7 October 1999 remain unenforced until present.
16. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-19) and Kechko v. Ukraine (cited above, §§ 16-18).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-112143
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: VOJNOVIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 1. The applicants, Mr Dušan Vojnović and Ms Dragica Vojnović, are Croatian nationals who were born in 1935 and 1946 respectively and live in Belgrade.
3. The applicants are of Serbian origin. They had a specially protected tenancy on a flat in Zagreb in which the first applicant lived until 1991 and the second applicant until 1992, when they left Croatia and went to live in Serbia.
4. On 10 April 1995 the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu), on behalf of the Republic of Croatia, brought a civil action against the applicants in the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking termination of their tenancy on the grounds that the applicants had been absent from the flat for a period exceeding six months without any justified reason, and that their address was unknown.
5. After an attempt to serve a summons on the applicants failed, the Zagreb Municipal Court appointed lawyer Z.B. to represent them before the court.
6. On 15 November 1995 the Zagreb Municipal Court terminated the applicants’ specially protected tenancy by a judgment which became final on 19 January 1996.
7. On 7 December 1998 the applicants lodged a request for the reopening of the proceedings with the Zagreb Municipal Court. On 13 November 2000 the Municipal Court granted the request and set aside its judgment of 15 November 1995.
8. On 12 April 2002 that court again terminated the applicants’ specially protected tenancy, finding that the applicants had failed to provide a convincing explanation for leaving the flat at issue and for remaining passive for three years before trying to seek information about the status of their tenancy. The applicants lodged an appeal with the Zagreb County Court (Županijski sud u Zagrebu), which upheld the first-instance judgment on 25 November 2003.
9. On 23 July 2004 the applicants lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) about the termination of their specially protected tenancy and claiming that they had been discriminated against. On 7 February 2007 the Constitutional Court dismissed their constitutional complaint as ill-founded. The decision of the Constitutional Court was served on the applicants on 27 November 2007.
10. On 19 November 2004 the applicants lodged a request for housing with the Ministry for Regional Development, Forestry and Water Management (Ministarstvo regionalnog razvoja, šumarstva i vodnog gospodarstva) and were granted a flat in Zagreb measuring 49.89 square metres.
11. The applicants complained about the size of the flat. On 30 October 2009 they were granted another flat in Sesvete, near Zagreb, measuring 74.78 square metres, but they again refused to accept it.
12. In the meantime, on 25 June 2007 the applicants lodged a civil action in the Zagreb Municipal Court against the Republic of Croatia, seeking damages and asking that their right to occupy and to acquire ownership of the flat on which they had had the specially protected tenancy be established.
13. On 25 November 2009 the applicants complained before the Constitutional Court about the length of the proceedings. On 28 December 2009 the Constitutional Court instructed the applicants that the complaints about the length of the proceedings fell within the competence of the lower courts and the Supreme Court (Vrhovni sud Republike Hrvatske).
14. On 19 March 2010 the applicants complained to the Zagreb County Court about the length of the proceedings before the Zagreb Municipal Court. On 13 May 2010 the Zagreb County Court declared their complaint inadmissible on the ground that they had failed to appoint a representative to receive mail on their behalf in Croatia, as required under the relevant domestic rules of procedure, since they lived abroad.
15. The civil proceedings before the Zagreb Municipal Court are still pending.
16. On 19 January 2004 the applicants lodged an application with the Court complaining about the termination of their specially protected tenancy and the fairness of the proceedings before the Zagreb Municipal Court. They relied on Article 8 of the Convention and Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention. They also relied on Article 6 § 1 of the Convention.
17. On 18 November 2005 a committee of three judges of the Court declared the applicant’s application inadmissible as incompatible with the provisions of the Convention ratione temporis.
18. On 8 January 2008 the applicants again lodged an application with the Court, complaining under Article 8 of the Convention about the termination of their tenancy. They also complained under Article 1 of Protocol No. 1 that by terminating their tenancy the domestic authorities had prevented them from purchasing the flat at issue on favourable terms. The applicants further complained under Article 14 of the Convention, taken in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1, that their tenancy had been terminated because of their Serbian origin. Lastly, the applicants complained under Articles 6 and 13 of the Convention about the outcome of the civil proceedings in respect of the termination of their specially protected tenancy before the Zagreb Municipal Court.
19. On 29 May 2009 a committee of three judges of the Court declared the applicant’s application inadmissible as incompatible ratione materiae in the part concerning the applicant’s property complaint, and substantively the same in the part concerning their other complaints.
20. On 23 January 2006 the first applicant, acting on his own behalf and on behalf of the second applicant and their son Milan Vojnović, submitted a communication to the Human Rights Committee in Geneva under the First Optional Protocol to the International Covenant on Civil and Political Rights. He complained that the termination of the specially protected tenancy had, inter alia, violated their rights under Articles 14 (the right to equality before the courts and to a fair hearing), 17 (the right to a home), and 26 (prohibition of discrimination) of the Covenant. He also invoked Article 2 of the Covenant (respect for human rights and effective domestic remedy).
21. On 30 March 2009 the Human Rights Committee in Geneva set out its views in communication no. 1510/2006. It found that the termination of the applicants’ specially protected tenancy amounted to a violation of Article 14 § 1 taken in conjunction with Article 2 § 1, and Article 17 taken in conjunction with Article 2 § 1 of the Covenant, and that there was no need to consider the question of a separate violation of Article 26 of the Covenant.