ITEMID: 001-58232
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF A. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Not necessary to examine Art. 8;Not necessary to examine Art. 13;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;John Freeland
TEXT: 7. The applicant is a British citizen, born in 1984.
In May 1990 he and his brother were placed on the local child protection register because of “known physical abuse”. The cohabitant of the boys’ mother was given a police caution after he admitted hitting A. with a cane. Both boys were removed from the child protection register in November 1991. The cohabitant subsequently married the applicant’s mother and became his stepfather.
8. In February 1993, the head teacher at A.’s school reported to the local Social Services Department that A.’s brother had disclosed that A. was being hit with a stick by his stepfather. The stepfather was arrested on 5 February 1993 and released on bail the next day.
9. On 5 February 1993 the applicant was examined by a consultant paediatrician, who found the following marks on his body, inter alia: (1) a fresh red linear bruise on the back of the right thigh, consistent with a blow from a garden cane, probably within the preceding twenty-four hours; (2) a double linear bruise on the back of the left calf, consistent with two separate blows given some time before the first injury; (3) two lines on the back of the left thigh, probably caused by two blows inflicted one or two days previously; (4) three linear bruises on the right bottom, consistent with three blows, possibly given at different times and up to one week old; (5) a fading linear bruise, probably several days old.
The paediatrician considered that the bruising was consistent with the use of a garden cane applied with considerable force on more than one occasion.
10. The stepfather was charged with assault occasioning actual bodily harm and tried in February 1994. It was not disputed by the defence that the stepfather had caned the boy on a number of occasions, but it was argued that this had been necessary and reasonable since A. was a difficult boy who did not respond to parental or school discipline.
In summing up, the judge advised the jury on the law as follows:
“... What is it the prosecution must prove? If a man deliberately and unjustifiably hits another and causes some bodily injury, bruising or swelling will do, he is guilty of actual bodily harm. What does ‘unjustifiably’ mean in the context of this case? It is a perfectly good defence that the alleged assault was merely the correcting of a child by its parent, in this case the stepfather, provided that the correction be moderate in the manner, the instrument and the quantity of it. Or, put another way, reasonable. It is not for the defendant to prove it was lawful correction. It is for the prosecution to prove it was not.
This case is not about whether you should punish a very difficult boy. It is about whether what was done here was reasonable or not and you must judge that...”
11. The jury found by a majority verdict that the applicant’s stepfather was not guilty of assault occasioning actual bodily harm.
12. The applicant’s stepfather was charged with “assault occasioning actual bodily harm” contrary to section 47 of the Offences against the Person Act 1861, as amended. An “assault”, for the purposes of this section, includes an act by which a person intentionally or recklessly inflicts personal violence upon another. “Actual bodily harm” includes any hurt or injury calculated to interfere with the health or comfort of the victim; the hurt or injury need not be permanent but must be more than transitory or trifling. The maximum penalty on conviction is five years’ imprisonment.
13. In addition, it is an offence under section 1(1) of the Children and Young Persons Act 1933 to assault or ill-treat a child in a manner likely to cause him unnecessary suffering or injury to health. The maximum penalty on conviction is ten years’ imprisonment.
14. In criminal proceedings for the assault of a child, the burden of proof is on the prosecution to satisfy the jury, beyond a reasonable doubt, inter alia that the assault did not constitute lawful punishment.
Parents or other persons in loco parentis are protected by the law if they administer punishment which is moderate and reasonable in the circumstances. The concept of “reasonableness” permits the courts to apply standards prevailing in contemporary society with regard to the physical punishment of children.
15. Physical assault is actionable as a form of trespass to the person, giving the aggrieved party the right to recovery of damages. In civil proceedings for assault, whilst the elements of the tort are the same as those of the criminal offence, the burden of proof of establishing that punishment was reasonable is on the defendant, on the balance of probabilities.
VIOLATED_ARTICLES: 3


ITEMID: 001-98829
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF OLUIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies, ratione materiae);Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant lives in Rijeka.
5. The applicant owns a part of a house in Rijeka where she lives with her family. Since December 1999 a bar, F., has been run by a third person in the other part of the house.
6. On 16 March 2001 the applicant wrote to the Primorsko-Goranska County Sanitary Inspection, the Rijeka Office for Employment, Health and Social Welfare (Sanitarna inspekcija Ureda za rad, zdravstvo i socijalnu skrb primorsko-goranske županije u Rijeci – “the Sanitary Inspection”), reporting that her flat had constantly been exposed to excessive noise from the F. bar, which was open from 7 a.m. to midnight each day. She invited the Sanitary Inspectorate to measure the noise. On 30 March 2001 the applicant urged action on her request.
7. Measurements were carried out on 1 May 2001 at night by an independent expert firm. The expert found that the level of noise at night had exceeded the permitted level. In a room situated in the western part of the applicant's flat the noise level at night reached 35,9 dB (decibels) which exceeded the permitted level by 5,9 dB. In a room situated in the eastern part of the applicant's flat the noise at night reached 38,5 dB which exceeded the permitted level by 8,5 dB.
8. In a decision of 1 June 2001 the Sanitary Inspection ordered the company L., the owner of the bar F., to reduce the level of noise from their equipment for reproduction of music. The decision relied on the measurements carried out on 1 May 2001 for the purposes of these proceedings which had established that the noise from F. exceeded the prescribed limit. The decision was however quashed on 24 August 2001 by the Ministry of Health, upon an appeal lodged by the respondent and the case was remitted to the Sanitary Inspectorate.
9. Measurements carried out on 13 October 2001 at night again showed that noise from F. exceeded the permitted level by 1.8 dB to 6.9 dB depending on the exact place of measurements. The maximum levels measured inside the applicant's flat were 36.9 dB and the external noise level, at the house entrance, 57 dB.
10. Measurements carried out on 17 November 2001 again showed that noise from F. exceeded the permitted level by 2.1 to 5.2 dB depending on the exact place of measurements. The maximum level measured at the applicant's flat was 35.2 dB, and the external noise level 55.2 dB.
11. By decision of 15 February 2002 the Sanitary Inspectorate ordered the owner of the bar to add sound insulation to the walls and the inter-floor construction according to the Croatian standards in that respect.
12. An inspection carried out on 24 April 2002 established that the above decision had not been complied with.
13. On 3 May 2002 the Sanitary Inspectorate ordered the enforcement of the above decision if the owner did not comply with it by 31 May 2002. On the latter date an inspection established that the bar F. had been closed and that the owner had lodged a request with the local Tourism Office to allow the bar to be closed in order to install the required sound insulation.
14. A further inspection in the bar F., carried out on 12 June 2002 showed that sound insulation had been installed. Measurements were not carried out because the applicant sought the replacement of the Sanitary Inspector assigned to the case. On 10 July 2002 the request was denied.
15. On 20 September 2002 a further measurement showed that the level of noise insulation on the first floor was insufficient. The owner of the bar objected to these findings and on 4 November 2002 a fresh expert report was ordered.
16. On 11 November 2002 the applicant again sought the replacement of the Sanitary Inspector assigned to the case. Her request was declared inadmissible on 26 November 2002.
17. The measurements carried out on 14 February 2003 again showed that noise from F. exceeded the permitted level. On 14 March 2003 the firm L. informed the authorities that it no longer ran the bar F. An on-site inspection of 21 March 2003 showed that the first floor of the house was no longer used as a bar, but only the ground floor. On 24 March 2003 the proceedings were terminated on the grounds that the measurements previously carried out had shown that the level of noise on the ground floor was not excessive.
18. The applicant lodged an appeal, which was dismissed by the Ministry of Health on 19 May 2003. On 25 June 2003 the applicant brought a claim before the Administrative Court (Upravni sud Republike Hrvatske), challenging the findings of the administrative bodies.
19. Further measurements carried out for three consecutive nights from 13 to 15 May 2005 showed that the level of noise in the applicant's flat exceeded the permitted level by 3.2 to 15.6 dB, depending on the time of measurements. The noise in the period from 10 p.m. to midnight reached levels of 40.6 dB on the night of 13 to 14 May and 34 dB on the night of 14 to 15 May.
20. On an unspecified date the applicant lodged a complaint with the Supreme Court about the length of the proceedings before the Administrative Court. On 26 March 2007 the complaint was accepted and the Supreme Court ordered the Administrative Court to adopt a decision within three months.
21. On 24 April 2007 the Administrative Court quashed the lower bodies' decisions and ordered them to establish whether the noise coming from the bar was still excessive.
22. On 9 October 2007 the second-instance administrative body annulled the decision of 24 March 2003 on the grounds that the measurements of noise in the applicant's flat and in the common yard in front of the house showed that the noise coming from F. was excessive and that the noise insulation between F. and the applicant's flat was insufficient.
23. On 4 December 2007 the Primorsko-Goranska County Sanitary Inspectorate ordered expert noise measurements to be carried out on 12 December 2007. These measurements showed that the insulation was sufficient. On 30 January 2008 the applicant requested new measurements in the evening hours and without prior notification. This request was accepted on 17 March 2008 and the applicant was invited to indicate the date for measurement. She submitted her answer on 15 December 2008 and the measurement was carried out on 19 December 2008. They showed that the level of noise was again excessive. The maximum level of noise measured inside the applicant's flat was 31.6 dB and the external level of noise 54.6 dB.
24. On 30 January 2009 the Sanitary Inspectorate ordered the owner of the bar to reduce the noise. Measurements carried out on 23 February 2009 showed that the level of noise had not exceeded the set standards.
25. The applicant submitted medical documentation of 1 September, 4 October and 8 November 2006, in respect of her daughter, born in 1966, showing that she suffered from hearing impairment and recommending that she avoid exposure to noise. She also submitted medical documentation of 14 and 27 March 2007 in respect of her husband, born in 1944, showing that he had been treated for heart disease, including heart surgery.
26. Section 4 of the Bylaw on the Maximum Permitted Levels of Noise in Areas Where People Work and Live (Pravilnik o najvišim dopuštenim razinama buke u sredinama u kojima ljudi rade i borave, Official Gazette no 37 of 25 September 1990) limits the maximum permitted noise-reception level inside closed residential areas at 30 dB in the period between 10 p.m. and 6 a.m. (night) and at 40 dB during day. The limit for external noise-reception level was set at 55 dB during day and 45 dB at night.
27. Section 5 of the Bylaw on the Maximum Permitted Levels of Noise in Areas Where People Work and Live (Pravilnik o najvišim dopuštenim razinama buke u sredinama u kojima ljudi rade i borave, Official Gazette no 145/2004 of 19 October 2004) limits the maximum permitted noise-reception level inside closed residential areas at 25 dB in the period between 10 p.m. and 6 a.m. (night) and at 35 dB during day. The limit for external noise-reception level was set at 55 dB during day and 45 dB at night.
28. Most environmental noises can be approximately described by one of several simple measures. The sound pressure level is a measure of the air vibrations that make up sound and it indicates how much greater the measured sound is than the threshold of hearing. Because the human ear can detect a wide range of sound pressure levels, they are measured on a logarithmic scale with units of decibels (dB). If the instantaneous noise pressure level is measured this is called “A-weighting” (abbreviated dBA) whereas, if the noise pressure level is measured over a certain time span, this is called the “equivalent continuous sound pressure level” (abbreviated LAeq). Such average levels are usually based on integration of A-weighted levels. A simple LAeq type measure will indicate reasonably well the expected effects of specific noise.
29. The World Health Organization (WHO) has published “Guidelines for Community Noise” (1999) and “Fact Sheet No. 258, on Occupational and Community Noise” (revised February 2001) which give guideline values for various environments and situations (Chapter 4 of the Guidelines). These guideline values are set at the level of the lowest adverse health effect, meaning any temporary or long-term deterioration in physical, psychological or social functioning that is associated with noise exposure, and represent the sound pressure level which affects the most exposed receiver in a given environment.
30. In relation to noise levels in homes, the guidelines state that to protect the majority of people from being seriously annoyed during the daytime, the sound pressure level on balconies, terraces and in outdoor living areas should not exceed 55 dB LAeq for steady continuous noise and should not exceed 50 dB LAeq to protect people from being moderately annoyed. These values are based on annoyance studies but most European countries have adopted a 40 dB LAeq as the maximum allowable for new developments.
31. At night, sound pressure levels at the outside façades of living spaces should not exceed 45 dB LAeq, so that people may sleep with bedroom windows open. This value has been obtained by assuming that the noise reduction from outside to inside with the window partly open is 15 dB and, where noise is continuous, the equivalent sound pressure level should not exceed 30 dB indoors, if negative effects on sleep, such as a reduction in the proportion of REM sleep, are to be avoided.
VIOLATED_ARTICLES: 8


ITEMID: 001-94109
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ALDEMİR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1978 and lives in İstanbul.
5. On 27 July 2003 the applicant was stabbed by F.Ç. On the same day the police took statements from F.Ç. and the applicant separately. They were both wounded and accused each other of starting the fight. On 29 July 2003 the Bakırköy Forensic Institute delivered its reports on the applicant and F.Ç., which stated that they were unfit for work for ten and seven days respectively. On 31 July 2003 the Bakırköy Public Prosecutor filed an indictment against the applicant and F.Ç. for assault occasioning bodily harm. The indictment was not served on the applicant or F.Ç. On 21 November 2003 the Bakırköy Magistrate’s Court issued a penal order without holding a hearing and found the applicant and F.Ç. guilty as charged. The court fined each of them 462,377,000 Turkish liras. In doing so, it relied on the “simplified procedure” stipulated in Article 386 of the Code of Criminal Procedure for relatively minor offences. On 14 January 2004 the applicant challenged this decision before the Bakırköy Criminal Court. On 30 January 2004 the Bakırköy Criminal Court dismissed the objection without holding a hearing.
VIOLATED_ARTICLES: 6


ITEMID: 001-93766
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SMYK v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1977 and lives in Łuków.
6. On 9 August 1996 the applicant commenced his compulsory military service, which lasted until 20 October 1997. During his service he suffered a serious spinal injury. A series of medical tests carried out by military doctors showed that the applicant’s disability had been caused by an ailment which he had had during his childhood. Difficult tasks which he had had to carry out during his military service had made his condition worse.
7. On 31 May 2000 the applicant requested the Social Security Authority (ZUS) to grant him a disability pension (renta inwalidzka). By a decision of 20 September 2000 the Social Security Authority refused. By a judgment of 13 March 2002 the Siedlce Regional Court dismissed the applicant’s appeal. The applicant appealed.
8. By an order of 11 April 2002 the court, having regard to certain formal shortcomings in the applicant’s appeal, requested him to rectify them. By a decision of 23 April 2002 the court rejected the appeal, finding that he had failed to indicate the grounds for his appeal despite having been summoned to do so. On 7 May 2002 the applicant lodged an interlocutory appeal against the decision, which was dismissed on 8 July 2002.
9. In January 1998 the applicant lodged an action with the Olsztyn Regional Court. He requested compensation for physical injuries and suffering which he had sustained during his military service and requested the court to grant him a permanent disability pension, having regard to the fact that he was now unfit to work. On 18 February 1998 the court exempted the applicant from court fees. In November 1998 a legalaid lawyer was assigned to the case to represent the applicant.
10. A first series of medical tests carried out by experts confirmed the findings of the military doctors and the conclusions reached in the reports prepared for the first set of the proceedings. The applicant refused to participate in a second series of medical tests, ordered at the defendant’s request.
11. The proceedings were subsequently stayed at the applicant’s request on 15 May 2000. They were resumed on 25 November 2002.
12. By a judgment of 25 April 2003 the Olsztyn Regional Court dismissed the applicant’s action. The applicant appealed.
13. By a judgment of 10 September 2003 the Appellate Court upheld the first-instance judgment. This judgment was served on the applicant’s legal- aid lawyer on 9 October 2003.
14. By a letter of 15 October 2003 the legal-aid lawyer informed the applicant that he had not found any legal grounds on which to prepare a cassation appeal. The letter read:
“I hereby inform you that on 9 October I was served with a written grounds for the judgment of the Białystok Court of Appeal of 10 September 2003.
Having examined the written reasons for the judgment, I am obliged to state that there are no legal grounds on which to prepare a cassation appeal.
Cassation appeal is an extraordinary legal remedy which can be lodged where the court erred in the application of substantive or procedural law, if such an error could have affected the outcome of the case. In your case no such errors are disclosed.
In addition, for a cassation appeal to be accepted for examination by the Supreme Court, it is necessary to demonstrate that legal issues justifying such examination obtain in the case. In your case it is the establishment of the facts by the courts which is in issue.
Having regard thereto, I am forwarding to you a copy of the judgment as I cannot be of any further assistance in your case.”
15. On an unspecified later date the applicant requested the court to assign a new lawyer to the case for the purposes of lodging a cassation appeal. The court refused the request by a decision of 6 November 2003 which read:
“The court ... decided to dismiss the plaintiff’s request for a legal-aid lawyer to be assigned to the case.”
The decision did not contain reasons as under the relevant provisions of the Code of Civil Procedure no appeal was available against it and, in consequence, the court was not obliged to prepare any (see paragraphs 19 – 21 below).
16. Pursuant to Article 5 of the Code of Civil Procedure, a court should give all necessary procedural instructions to a party acting without a lawyer and, in particular should indicate the consequences of that party’s acts or failures to act.
17. Article 113 § 1 of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living.
18. Pursuant to Article 117 of the Code, persons exempted from the court fees may request that legal aid be granted to them. The court will then request the relevant District Bar Association or the District Chamber of Legal Advisers to assign an advocate or a legal adviser to the claimant’s case.
19. Decisions on legal aid are given in the form of interlocutory decisions. Article 394 of the Code of Civil Procedure guarantees a party to the proceedings the right to appeal against a decision of the first-instance court which terminates the proceedings. Such an interlocutory appeal (zażalenie) is also available against certain interlocutory decisions, specified in this provision. An appeal is available against a refusal of exemption from court fees and, likewise, against a refusal of legal aid, when such decisions were given by a first-instance court.
20. The Supreme Court held in a number of its decisions that no appeal to the Supreme Court is available against an interlocutory decision on legal aid given by a second-instance court (II CZ 9/97, 21 February 1997, unpublished; I CZ 27/97, 4 April 1997, OSNC 1997, No. 9, item 120; I CZ 14/97, 8 April 1997, OSN 1997 No. 9, item 120).
21. Pursuant to Article 357 of the Code of Civil Procedure, written grounds for interlocutory decisions shall be prepared by the court only if an appeal is available against such a decision.
22. At the material time a party to civil proceedings could lodge a cassation appeal with the Supreme Court against a final judicial decision of a secondinstance court which terminated the proceedings.
23. Under Article 393 4 § 1 of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within one month from the date on which the decision with its written grounds was served on the party concerned. Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected.
24. Article 393 1 of the Code as applicable at that time listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law by its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
25. Article 393 3 specified the requirements of a cassation appeal. It read in its relevant part:
“§ 1. A cassation appeal should include:
1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only;
2) an indication of the grounds for the cassation appeal;
3) arguments showing that its examination would be justified;
4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.”
26. Article 393 4 read as follows:
“A second-instance court rejects in a hearing held in camera a cassation appeal lodged after a prescribed time-limit or which is inadmissible on other grounds (...).”
27. The reasons justifying the examination of a cassation appeal by the Supreme Court could be inferred a contrario from Article 393 of the Civil Code of Procedure which, as applicable at that time, read, in its relevant part:
“1. The Supreme Court may refuse to entertain the cassation appeal, if:
i) there is no appearance of any significant legal issue in the case,
ii) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case law,
iii) the appeal is manifestly ill-founded.
2. Paragraph 1 shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law.”
28. Article 1 of the Bar Act of 1982, as amended, reads, insofar as relevant:
“1. The Bar is established to provide legal assistance, co-operate in protecting a person’s rights and freedoms as well as to formulate and apply the law.
2. The Bar is organized as a self-governing association.
3. An advocate whilst executing his/her professional duties is accountable only to the law.”
29. Article 3 of the Act provides as follows:
“The general tasks of the professional Bar Council are as follows:
1) creation of conditions for the statutory performance of the Bar’s tasks,
2) representation of the Bar and protection of its rights,
3) supervision over the observance of the rules regulating the practice of the profession,
4) development of professional skills and training of advocates,
5) determination and promotion of professional ethics and ensuring their observance,
6) management (...) of the Bar’s assets.”
30. Article 28 of the Act reads:
“1. An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party. Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local Bar Council, and in situations where time is of the essence, by the Dean of that Council.
2. In cases where legal assistance is granted on the basis legal regulations concerning legal aid, only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance.”
31. Under Article 21 § 3 of the Act, an advocate shall provide legal aid services in the jurisdiction of a court where he or she has its office.
32. Lawyers are bound to act in accordance with rules of professional and ethical conduct enacted by the Bar Association. They may be held accountable for professional misconduct or a breach of ethical principles in the proceedings before the bar disciplinary court.
33. Under Article 57 of the Body of Ethical Rules adopted by the National Bar Council on 10 October 1998, when an advocate, either privately hired by the client or appointed under legal aid scheme, considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view, the lawyer shall give notice of termination of the power of attorney terminate the representation, or notify the refusal to the body which appointed him or her.
34. In 2000 the Supreme Court issued a resolution in reply to a legal question whether a legal aid lawyer could refuse to lodge a cassation appeal. It replied to the question in the positive.
35. The court observed that issues involved in the legal aid concerned not only proper administration of justice, but also touched on human rights, and a right of access to a court in particular. Nevertheless, there was no comprehensive and coherent regulation of legal aid available under Polish law.
36. The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism. However, a certain conceptual confusion was to be noted in the provisions governing legal aid as a whole, mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure. In particular, the scope of legal aid lawyers’ obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure. This was so partly because the essential body of law concerning civil procedure had been enacted in 1964, while the provisions on mandatory legal representation for the purposes of the cassation appeal had been introduced in 1996, when this new kind of appeal had been created.
37. As a result, the scope of legal aid lawyers’ obligations to provide a party to the proceedings with “legal aid” in civil proceedings was unclear. In particular, the provisions on the lawyers’ legal aid obligations in connection with cassation proceedings before the Supreme Court lacked clarity. The court noted that the judicial practice regarding the application of relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case-law of the Polish courts.
38. The court observed that the issue of possible conflict between the opinion of a party granted legal aid and a lawyer assigned to represent him or her for the purpose of cassation proceedings had not been directly addressed by the applicable law. It further noted that the notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client’s wishes. The role of a legal aid lawyer had rather to be understood as obliging him or her to provide legal advice to the party, including as to the prospects of success offered by a cassation appeal against a given judgment.
39. The constitutional role of the Supreme Court, the highest judicial authority, was also an argument in favour of a conclusion that a legal aid lawyer was not compelled by the will of the party to have a cassation appeal lodged if such an appeal was bound to fail. In case of a disagreement between the party and the lawyer, it was open to the party to complain to the local Bar under Article 28 of the Bar Act. The Bar could then appoint a new lawyer who could lodge a cassation appeal, requesting at the same time to be granted leave to appeal out of time under Article 169 of the Code of Civil Procedure. It was true that the practice of the Supreme Court was not coherent in that in some cases it had been rejecting such requests and in other it accepted them. However, it did not prevent the parties from having recourse to this course of action.
40. Pursuant to Article 169 of the Code of Civil Procedure, a party to the proceedings may ask for retrospective leave to perform a procedural measure outside the prescribed time-limit; this measure shall be performed simultaneously with lodging the request.
41. Article 133 § 3 of the Code of Civil Procedure reads, insofar as relevant:
“3. If a legal representative or a person authorised to receive court correspondence on behalf of a party has been appointed in a case, the court correspondence shall be served on these persons.”
42. Pursuant to the case-law of the Supreme Court, if a party to civil proceedings is represented by a lawyer, the procedural time-limits set by the Code of Civil Procedure start to run on the date of the service of judicial decisions on him or her (III CRN 324/72; I UZ, 65/04).
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-57597
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1979
DOCNAME: CASE OF WINTERWERP v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-4;Violation of Art. 6-1;No violation of Art. 5-1;Just satisfaction reserved
TEXT: 10. Mr. Frits Winterwerp resides in the Netherlands. He married in 1956 and several children were born of the marriage. In 1968, he was committed to a psychiatric hospital by direction of the local burgomaster in accordance with an emergency procedure. Six weeks later, on his wife’s application, he was confined to the same hospital under an order made by the District Court (kantongerecht) of his place of residence. On his wife’s further application and subsequently at the request of the public prosecutor (officier van justitie), the order was renewed from year to year by the Regional Court (arrondissements- rechtbank) on the basis of medical reports from the doctor treating the applicant.
Mr. Winterwerp complains of the procedure followed in his case. In particular, he objects that he was never heard by the various courts or notified of the orders, that he did not receive any legal assistance and that he had no opportunity of challenging the medical reports. His complaints are also directed against the decisions on his requests for discharge and against his loss of civil capacity.
11. The detention of persons of unsound mind is governed by an Act of 27 April 1884 on State supervision of mentally ill persons (wet van 27 April 1884, Stb 96, tot regeling van het Staatstoezicht op krankzinnigen). Usually referred to as the Mentally Ill Persons Act (krankzinnigenwet), the Act has been amended several times, in the last instance by an Act of 28 August 1970 which came into force on 15 May 1972, that is some time after the applicant had first been detained. A Bill providing for a complete reform of the system is at present pending before the Netherlands Parliament.
The Mentally Ill Persons Act is divided into five main chapters. Principally relevant for the present proceedings are the three chapters dealing firstly with the admission of persons to psychiatric hospitals and their stay therein, secondly with leave of absence and discharge therefrom, and thirdly with the administration of the property of persons admitted to psychiatric hospitals.
The Act does not define who are "mentally ill persons" but lays down the grounds for committing such persons to hospital (see the following paragraphs). It would appear from the evidence submitted that, according to the general practice currently followed, the Netherlands courts will authorise the confinement of a "mentally ill person" only if his mental disorder is of such a kind or of such gravity as to make him an actual danger to himself or to others.
12. In urgent cases, the burgomaster has the power to direct the compulsory admission of a "mentally ill person" to a psychiatric hospital.
Until 1972, the burgomaster had to obtain prior medical advice only if circumstances permitted; his decision was valid for three weeks but the public prosecutor could shorten or extend the term (section 14 of the Act).
This procedure was considerably changed by the 1970 Act, section 14 being repealed and replaced by sections 35b to 35j. The burgomaster is now obliged to seek the prior opinion of a psychiatrist or, should that not be possible, another medical practitioner. Once he has issued a direction to detain, he must immediately inform the public prosecutor and send him the medical declarations on which the direction was based. The public prosecutor is in his turn required to transmit these declarations not later than the following day to the President of the Regional Court with, where appropriate, an application for a continuation of the detention. Such continuation, if made, is valid for three weeks but may be renewed by the President for a second period of similar duration. Thereafter the procedure concerning applications for a provisional detention order is to be followed (see paragraphs 13 and 15 below).
13. Apart from the above-mentioned emergency cases, no one may be deprived of his liberty on grounds of mental illness or insanity except under a provisional detention order made by a court.
The District Court judge (kantonrechter) may issue a provisional detention order on written application (verzoek) made by a close relative by blood or marriage of full age, the spouse or the legal representative of the individual concerned and seeking his confinement either in the interests of public order or in his own interests (section 12 of the Act). The judge may also issue such an order on application by a person of full age who considers that his own condition is such as to require suitable treatment (section 15). In addition, a provisional detention order may be made by the President of the Regional Court following a request (requisitoir) by the public prosecutor (section 13).
The application or request must, according to section 16 of the Act, be accompanied by a declaration drawn up not more than seven days earlier by a doctor licensed to practise in the Netherlands but not attached to the institution to which it is proposed admitting the patient. The declaration must be to the effect that the person concerned "is in a state of mental illness (toestand van krankzinnigheid) and that it is necessary or desirable to treat him in a psychiatric hospital". An application may also mention facts and documents giving a clearer indication of the state of mental illness, but this is purely optional.
Since the entry into force of the 1970 Act, the medical declaration must be made by a psychiatrist who is not himself treating the patient; as far as possible, it must state, with reasons, whether the patient’s condition is such that it would be pointless or medically inadvisable for him to be heard by the court. The psychiatrist must, if he can, first consult the family doctor.
14. The judge makes a provisional detention order if the medical declaration, either on its own or in conjunction with the facts related or the documents supplied, adequately establishes that treatment in a psychiatric hospital is necessary or desirable (section 17 para. 1 of the Act).
Until 1972, the examination of the application or request was not subject to any limitative formalities. Section 17, in the version in force when the facts of the present case occurred, provided that the judge had competence to hear beforehand the person whose detention was being sought. As a result of the above-mentioned amending Act, the judge is now obliged to hear the person in question unless he concludes from the medical declaration that this would be pointless or medically inadvisable; he may, either of his own motion or at the request of that person, provide the latter with legal assistance (section 17 para. 3). The judge must seek all possible information both from the individual who made the application or the request mentioned in sections 12 and 13 and from certain other individuals (section 17 para. 4). He retains the power to call witnesses and experts (section 17 para. 5) and may, if he thinks fit, summon anyone who made an application for a detention order pursuant to section 12 to appear before him (section 17 para. 6).
15. A provisional detention order is not subject to appeal and is, moreover, not notified to the person concerned (section 17); it is valid for six months (section 22).
The order, like detention orders (see paragraphs 16 and 17 below), authorises rather than enjoins compulsory confinement and it may happen that it is not put into effect. In the case of a person who is not yet hospitalised, the admission to a psychiatric hospital or other specialised institution must take place within fourteen days, on production of the court order (sections 17 and 18). The closest relatives by blood or marriage, the spouse or the legal representative must be informed of the patient’s admission by the burgomaster, who is notified thereof by the court or the public prosecutor (section 19). The medical declaration on which the judge based his decision must be transmitted to the institution’s doctor treating the patient. This doctor has to enter his findings on a register every day for the first fortnight, then on a weekly basis for the ensuing six months and thereafter on a monthly basis (section 20).
Within a fortnight of the admission, the doctor responsible for the patient’s treatment is required to send to the public prosecutor of the district in which the psychiatric hospital is situated a reasoned declaration on the patient’s mental condition and on the necessity or desirability of prolonging his stay in a psychiatric hospital (section 21).
16. Within six months following the issue of the provisional detention order, a further application or request, seeking the continuation of the patient’s confinement in a psychiatric hospital for up to one year, may be submitted to the Regional Court. Any such application or request must be accompanied by the medical records of the doctor responsible, together with a reasoned declaration by him as to whether it is necessary or desirable for the patient to undergo further treatment in a psychiatric hospital (section 22).
The patient need not be notified of the application or request or of the proceedings relating thereto.
17. A decision on the application or request is taken by the Regional Court (section 23). Apart from being obliged to hear the public prosecutor, the Court does not have to follow any set procedure. It may call for evidence from witnesses or other sources, hear the patient, grant him legal assistance and consult experts, but it is not bound to do so. During the examination of the case, the patient must remain in the institution, if necessary for longer than six months after the making of the provisional order.
The Regional Court’s decision, which is not subject to appeal, is not delivered at a public hearing, nor is it notified to the person concerned. In practice, it is left to the hospital authorities to determine if and when such notification is warranted from the medical point of view.
The general rule is that, when hearing civil cases, the Regional Court sits as a chamber composed of at least three judges (section 49 para. 1 of the Judicial Organisation Act). However, this chamber may refer to a single-judge chamber (enkelvoudige kamer) such cases as it deems suitable (Article 288 (b) of the Code of Civil Procedure). Each Regional Court has its own Rules of Order (reglement van orde) which are approved by Royal Decree on the advice of the Supreme Court (Hoge Raad). Under the Rules of Order of the Utrecht Regional Court, as in force at the relevant time (see paragraphs 25 and 26 below), jurisdiction in all cases regarding the detention and stay of persons in psychiatric hospitals was allotted to a single-judge chamber.
18. Not more than fourteen and not less than eight days before the expiry of the period covered by the Court’s detention order, an application or request for the prolongation of the patient’s detention for up to one year may be made to the Regional Court (section 24 of the Mentally Ill Persons Act).
Subsequent procedure is the same as for the making of the detention order provided for in section 23 of the Act. The Act does not specify when the Court has to give its ruling.
19. Leave of absence (verlof) for a specified period may be granted to a patient by the doctor in charge of the institution (section 27).
20. The authorities of a psychiatric hospital may at any time grant the discharge (ontslag) of a patient on the basis of a written declaration from the aforesaid doctor to the effect that the patient shows no signs of mental illness or that his treatment in a psychiatric hospital is no longer necessary or desirable (section 28).
A written request for the patient’s discharge may be made to the hospital authorities by the patient himself, the person who applied for his detention or, in the latter’s absence, another of the relatives by blood or marriage mentioned in section 12 (section 29 para. 1, in the version in force prior to the 1970 Act). The authorities must at once consult the doctor in charge of the institution and, if his opinion is favourable, must discharge the patient. If the doctor’s opinion is unfavourable, the authorities must transmit the request, together with the opinion, to the public prosecutor who will, in principle, refer it to the Regional Court for decision. The Court’s procedure for this purpose is the same as that applicable to the making of detention orders (see paragraph 17 above); its decision is not subject to appeal (section 29 paras. 2 and 4).
However, the public prosecutor is not obliged to forward the request to the Court if it appears manifestly impossible to grant the request (indien het verzoek klaarblijkelijk niet voor inwilliging vatbaar is), if a previous request is still pending, or if the Court has already dismissed a similar request during the period covered by the detention order and the circumstances have not changed (section 29 para. 3).
The public prosecutor, being responsible for the supervision of psychiatric hospitals, has a duty to see that no one is unlawfully detained in such an institution. If the doctor in charge of the institution agrees, the public prosecutor may order the discharge of a patient whose continued confinement he considers unnecessary. If the doctor in charge does not agree, the public prosecutor may refer the matter to the Regional Court. Should the public prosecutor have doubts about the need for the patient’s continued confinement, he may refer the matter to the Court; he is obliged to do so if a public health inspector so requests (section 30).
When the period covered by a detention order expires, the hospital authorities must inform the public prosecutor of the fact within eight days and, if no application has been made to the Court to prolong the detention, he must thereupon order the patient’s discharge unless he concludes from a reasoned declaration in writing by the doctor in charge that such a step would present a danger to public order; in the latter event, he must himself request the Court to prolong the detention (section 31).
21. Any person of full age who is actually confined in a psychiatric hospital automatically loses the capacity to administer his property (section 32). As a consequence, all contracts entered into by the person concerned after his confinement are void and he cannot legally transfer property or operate his bank account. The patient regains the capacity to manage his property only when he is formally discharged but not, for instance, when he is granted leave of absence.
On application by any of the persons entitled to seek an individual’s detention, or at the request of the public prosecutor, the Regional Court may appoint a provisional administrator (provisioneel bewinsdvoerder) for anyone confined in a psychiatric hospital, should this be deemed necessary or desirable (section 33). In addition, the general rule laid down in Article 378 of the Civil Code enables the Regional Court to nominate a guardian (curator) on behalf of a person, whether in custody or not, who, by reason of mental illness or dipsomania, is no longer capable of managing his own affairs.
22. The overall aim of the Bill is to improve the position of the psychiatric patient: it seeks to strengthen the procedural guarantees accompanying his detention and to allow him more freedom within the hospital.
The criterion justifying confinement in a psychiatric hospital would henceforth be that the individual, on account of his mental state, constitutes "a danger for himself, for others or for the general safety of persons and goods". Further modifications of relevance would include the following: the competent court at all stages would be the single-judge chamber of the Regional Court; the provisional detention order would be valid for three weeks only; before making an order or determining a request for discharge, the court would as a general rule have to hear the person concerned; the only occasion when the court might decide not to hear the patient would be when examining the application or request for the first detention order, that is three weeks after the making of the provisional detention order; the court would be obliged to grant legal assistance to the person concerned at his request; there would be a right of appeal against orders authorising detention; admission to a psychiatric hospital would not automatically bring about loss of civil capacity.
23. Mr. Winterwerp received voluntary treatment in a psychiatric hospital from 28 March to 12 September 1967. At some time prior to this, he had apparently suffered severe brain damage in an accident. On 17 May 1968, he was committed to the "Zon en Schild" ("Sun and Shield") psychiatric hospital at Amersfoort on the direction of the Amersfoort burgomaster in accordance with the emergency procedure then in force under section 14 of the Mentally Ill Persons Act (see paragraph 12 above). The events prompting this decision were that the applicant had stolen documents from the local registry office, been detained by the police and then been found lying naked on a bed in a police cell. The term of the detention was extended by the public prosecutor, as was possible under paragraph 3 of section 14.
24. On 24 June 1968, during the currency of the "emergency" confinement, Mr. Winterwerp’s wife applied to the Amersfoort District Court on a standard form for his provisional detention in the "Zon an Schild" hospital in the interests of public order as well as those of her husband.
The application was accompanied by a medical declaration, dated 20 June, made out by a general medical practitioner who had examined the patient for the first time that day. The declaration stated that the patient had been detained in 1966 for "attempted murder" and had been under psychiatric treatment in 1967. It also stated that the patient was "a schizophrene, suffering from imaginary and Utopian ideas, who has for a fairly long time been destroying himself as well as his family" and that he "is unaware of his morbid condition". The doctor concluded that "for the time being" the patient certainly could not "be left at large in society".
On 24 June, on the basis of this declaration, the District Court granted the application and authorised the applicant’s provisional detention, without first exercising its power to hear him or to seek expert advice.
25. On 1 November 1968, the applicant’s wife applied to the Utrecht Regional Court for a one-year detention order in respect of her husband.
Her application was accompanied by the daily and weekly records of the doctor in attendance as well as the declaration as to the necessity or desirability of further treatment in a psychiatric hospital.
On the basis of these documents, the single-judge chamber responsible for hearing such cases made the order on 23 December 1968.
26. On 16 December 1969, following an application by Mrs. Winterwerp and on the basis of the monthly records of the doctor in attendance and his declaration, identical to that of the previous year, the single-judge chamber made an order authorising the prolongation of the detention "by one year if necessary" as from 23 December 1969.
On 6 August 1970, the applicant was moved to the "Rijks Psychiatrisch Inrichting" ("State Psychiatric Establishment") at Eindhoven. This hospital was further away from the home of his wife, whom he had previously been able to visit on several occasions.
27. On 14 December 1970, the public prosecutor at ‘s-Hertogenbosch requested the renewal of the detention order for a further year, on the basis of the monthly records of the doctors who had successively treated Mr. Winterwerp and a declaration by the doctor in attendance at Eindhoven, which read as follows:
"The patient is suffering from a mental illness with the following symptoms: psychopathic personality, quarrelsome and scheming nature, paranoiac tendency, untrustworthiness; shows signs of dementia in the shape of ... emotional withdrawal; egocentric tendency; in need of strict supervision and special care. Continued treatment in a psychiatric hospital must be considered necessary."
On 7 January 1971, that is to say, two weeks after the previous order had lapsed, the first ordinary chamber of the Regional Court at ‘s-Hertogenbosch authorised detention for a further year.
28. On 21 December 1971, 15 December 1972 and 14 December 1973, the same court made further one-year renewals of the detention order following requests by the public prosecutor and on the basis of the monthly medical records and identical declarations by the doctor in attendance, who had however changed in the course of 1972. On 19 December 1974 and 15 December 1975, the Regional Court again granted similar requests by the public prosecutor. The most recent renewal order referred to in the evidence dates from December 1977.
29. The medical records forwarded each year to the courts, although fairly brief, indicated that the applicant showed schizophrenic and paranoiac reactions, that he was unaware of his pathological condition and that, on several occasions, he had committed quite serious acts without appreciating their consequences. For example, the records relate how, in pursuance of some fanciful schemes, Mr. Winterwerp went abroad with family savings and soon became penniless, without realising either the state of neglect in which he had left his family or his own dependence on the consular authorities who had to assist and repatriate him.
30. In February 1969, the applicant had made a first request to the hospital authorities for his discharge in accordance with section 29 of the Act (see paragraph 20 above). The hospital authorities forwarded the request to the public prosecutor who in turn referred it to the Regional Court. The latter Court, after hearing the patient at the hospital, dismissed the request.
In April 1971, the hospital authorities forwarded a second request to the public prosecutor with a negative recommendation. After hearing Mr. Winterwerp, the public prosecutor, pursuant to paragraph 3 of section 29, rejected the request without referring it to the Regional Court for decision. The same applied to a third request, made in July 1972.
On 20 February 1973, the patient made a further request for his discharge to the authorities of the "Rijks Psychiatrisch Inrichting". On 26 April 1973, the medical director of the institution forwarded the request to the public prosecutor with his comments, which may be summarised as follows: the patient was suffering from a paranoiac psychosis which could be successfully treated by psychopharmacological methods, but during previous leaves of absence he had failed to take the drugs prescribed, with the result that he had had to be readmitted after a relapse; steps were being taken to reintegrate the patient gradually into society and he was spending his nights outside the hospital; in the light of the past setbacks, there would have been little point in discharging him. On the strength of this opinion and after hearing Mr. Winterwerp, the public prosecutor again refused the request and refrained from referring it to the Regional Court. He notified the applicant of his decision on 17 May 1973.
The applicant’s four requests for discharge took the form of simple statements that he was not mentally deranged, that he had been falsely accused of misdemeanours and that he did not constitute a danger for himself or to others. The public prosecutor did not refer the three later requests to the Regional Court because it appeared manifestly impossible to grant them.
31. Mr. Winterwerp has from time to time been given leave of absence for various periods. On at least four occasions - nine months in 1974, four months in 1976-1977, one month and two and a half months in 1978 - he has been allowed to lodge outside the hospital on an experimental basis. Each time, he has had to be readmitted to hospital. Several reasons are adverted to in the evidence: he failed to follow the treatment prescribed; his lodging was found to be in a filthy state; and, most recently, he smashed a window in Germany where he was wandering.
32. Mr. Winterwerp automatically lost the capacity to administer his property on being detained in a psychiatric hospital (section 32 of the Act; see paragraph 21 above). No provisional administrator was appointed (section 33) and his affairs were at first managed, so it seems, by his wife. Then, on 11 August 1971, a guardian was nominated by the Regional Court (Article 378 of the Civil Code). The guardian has made no request for Mr. Winterwerp’s release.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-4
6-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-98983
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ALTIN AND OTHERS  v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicants, Mr Halil Altın, Mr Haydar Sadi Halat, Mr Hüseyin Özer, Mr Coşkun Özkaya, Mr Şevket Tamer Turan, Mr Rıza Aycan, Mr Hadi Halat and Ms Aygül Halat, are Turkish nationals who were born in 1953, 1954, 1953, 1948, 1954, 1959, 1957 and 1959, respectively, and live in Ankara. They were represented before the Court by Mr M. Erdoğan, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were the founders and members of a co-operative by the name of S.S. Gölbaşı Bizim Yeşilkent Konut Yapı Kooperatifi (“the cooperative”).
In 1991 the General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü) (“the General Directorate”) expropriated a plot of land partially owned by the co-operative (plot no. 339), located in the village of Hacılar, in the Höyük district of Gölbaşı, Ankara.
On 17 January 1992 the co-operative brought an action before the Gölbaşı Ankara Civil Court seeking additional compensation. On 4 November 1992 the Gölbaşı Ankara Civil Court awarded the cooperative additional compensation of 129,608,430 Turkish liras (TRL), plus interest.
On an unspecified date in 1992, the applicants allegedly sought the enforcement of this judgment before the Ankara 6th Enforcement Office. They have not, however, submitted any supporting documents regarding these enforcement proceedings, which they blamed on the destruction of the archives of the enforcement office.
On 8 March 1993 the Court of Cassation quashed the judgment of the first-instance court.
On 29 September 1994 the Gölbaşı Ankara Civil Court re-examined the case and awarded the co-operative additional compensation of TRL 73,108,633, plus interest.
On 6 March 1995 the Court of Cassation upheld the judgment of the Gölbaşı Ankara Civil Court with a minor amendment (düzelterek onama) and awarded the co-operative TRL 72,348,000 instead of the amount previously calculated by the first-instance court.
On 22 December 1997 the money owed to the co-operative, together with statutory interest, was deposited with the General Directorate's accounting office (a total of TRL 218,848,000).
By a letter dated 3 March 1998 the co-operative's lawyer was invited to apply to the accounting office of the General Directorate to collect the additional compensation.
In 1999 the co-operative was liquidated.
On 8 July 2004 the applicants sent a warning letter to the General Directorate through a notary public, requesting payment of the compensation awarded by the Gölbaşı Ankara Civil Court, together with interest.
On 27 July 2004 the General Directorate replied that they could not be held responsible for the non-payment as the co-operative had failed to collect the compensation despite the official letter dated 3 March 1998 inviting them to do so. In this letter, they also informed the applicants that the payment would be effected upon their application to the accounting office.
According to the information in the case file, the applicants have still not obtained the additional compensation awarded by the Gölbaşı Ankara Civil Court.


ITEMID: 001-69095
LANGUAGEISOCODE: ENG
RESPONDENT: LIE
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF STECK-RISCH AND OTHERS v. LIECHTENSTEIN
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1 (tribunal);Violation of Art. 6-1 (proceedings);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 8. The applicants were born in 1926, 1927, 1930, 1937 and 1939 respectively. The first and second applicants live in Vaduz, the third applicant lives in Schaan and the fourth and fifth applicants live in Triesen.
9. The applicants, who are siblings, were joint owners (one-fifth each) of two adjacent plots of land in Schellenberg, registered under files nos. 55/IV and 67/IV of the Schellenberg land register, which they inherited in 1983.
10. On 29 September 1972, when the property at issue still belonged to the applicants' father, the Schellenberg municipality issued a provisional area zoning plan (Zonenplanfestsetzungsbeschluss) designating the two parcels of land as non-building land. Before that, the property was not covered by any area zoning plan.
11. On 14 May 1980 the Schellenberg Municipal Council (Gemeinderat) dismissed an appeal by the applicants' father.
12. On 24 November 1981 the area zoning plan (Zonenplan) was approved by the Liechtenstein Government.
13. The applicants' request for a change of the designation of their land into building land (Bauland), dated 24 August 1994, was to no avail.
14. On 15 July 1997 the applicants claimed compensation of 4.9 million Swiss Francs (CHF) for damage allegedly incurred due to the designation of their land as non-building land. They claimed that that designation amounted to de facto expropriation.
15. On 2 June 1998 the Liechtenstein Government, sitting in camera, dismissed their claim. They found that the impugned designation of the applicants' property, not previously subject to any area zoning plan, as non-building land did not amount to a de facto expropriation conferring a right to compensation. In particular, the applicants' land had not been opened up for building, nor had there been any plans of the municipality to prepare it for development.
16. On 18 June 1998 the applicants filed an appeal against the above Government decision with the Liechtenstein Administrative Court (Verwaltungsbeschwerdeinstanz). They claimed, inter alia, that the elements on which the Government had based their decision had not been established in adversarial proceedings. In particular, the applicants alleged that they had not been given an opportunity to present their views on the question of whether or not their land had been opened up for development purposes, which, in fact, had been the case. Thus, they requested that the parties be heard on the matter and that an inspection of the property be carried out. Further, they requested that the Administrative Court obtain the minutes of the Schellenberg Municipal Council's meeting of 5 July 1995, which showed that the municipality had considered the possibility of including their property in a building area.
17. On 21 October 1998 the Schellenberg municipality, as respondent, filed submissions (Gegenschrift) requesting the Administrative Court to dismiss the appeal. They referred to the reasons underlying the designation of the applicants' property as non-building land and claimed that the applicants' predecessor had not appealed against the area zoning plan. Further, the municipality contested the applicants' assertion that the said property had been opened up. Contrary to the applicants' assertions, the adjacent parcels had equally been designated as non-building land. The municipality also submitted the minutes referred to by the applicants. The municipality's comments were not served on the applicants.
18. On 25 June 1999 the Administrative Court, sitting in camera, dismissed the applicants' appeal. The Court was presided over by judge G.W.
19. In its decision, the Administrative Court described the conduct of the proceedings so far, including a detailed summary of the comments submitted by the Schellenberg municipality, noting that the conditions for compensation were not met, inter alia because the applicants' property had not been opened up. The neighbouring parcels were also undeveloped. When the zoning plan was issued, the applicants could not legitimately expect a designation of their property as building land.
Pointing out that the applicants had filed very detailed written submissions, the Administrative Court found that they had been given sufficient opportunity to submit their arguments and evidence.
20. On 7 July 1999 the applicants filed a complaint with the Constitutional Court (Staatsgerichtshof) under Section 23 of the Constitutional Court Act (Staatsgerichtshofsgesetz), claiming that the principle of equality of arms had been infringed in that the Administrative Court had based its decision on new submissions made by the Schellenberg municipality (concerning the issue of whether the applicants' predecessors had appealed against the zoning plan and concerning the question of whether the applicants' property had been opened up), to which they had had no opportunity to reply.
They also complained about procedural defects, in particular that the Administrative Court had failed to hear them and to carry out an inspection of the property at issue. In sum they asserted that the Administrative Court's decision violated their right to property.
21. On 10 February 2000 the Constitutional Court informed the applicants of the composition of the panel of five judges that would examine their case in private on 29 February 2000.
22. Subsequently, on 21 February 2000, the applicants filed a challenge for bias against H.H., one of the panel judges, claiming that he was to be disqualified on account of his partnership in a law firm (Kanzleigemeinschaft) with G.W., i.e. with the presiding judge of the proceedings before the Administrative Court.
23. On 29 February 2000 the Constitutional Court, sitting in camera, dismissed the applicants' complaint, confirming that the designation of their property as non-building land did not amount to a de facto expropriation requiring compensation.
24. Bearing in mind that the principle of equality of arms was a basic element of the fairness of proceedings, it agreed in principle with the applicants' argument that they should have been afforded an opportunity to be informed of and to comment upon the Schellenberg municipality's observations in reply to their appeal. In that regard, the Court observed that the submissions in issue had contained new information, in particular, the alleged fact that the applicants' predecessor had never filed an objection against the area zoning plan. If established, that fact would have had a negative effect on the applicants' legal position. However, the Constitutional Court noted that this submission had not played any role in the Administrative Court's decision. Thus, no prejudice had resulted from this procedural deficiency. Considering these special circumstances as well as the fact that the proceedings as a whole had been adversarial, the Constitutional Court concluded that the applicants' procedural rights had not been impaired.
25. As far as the applicants' allegations of bias were concerned, the Constitutional Court, referring to an academic commentary on Liechtenstein administrative law, recalled that a country of the size of Liechtenstein had limited human resources in the public sector. It stressed that, in such circumstances, questions of replacement should be dealt with cautiously if one did not wish to jeopardise the proper functioning of the Liechtenstein authorities. The court pointed out that, by virtue of section 6 of the Constitutional Court Act, a judge of the Constitutional Court, being at the same time a judge at another Liechtenstein court had to be disqualified from proceedings where a complaint concerned a decision issued by that court. However, the Constitutional Court found that the same did not apply in cases where a judge was merely acquainted with a judge who had taken part in the impugned decision. Moreover, it noted that, in a State based on the rule of law, the quashing of a decision by the Constitutional Court was nothing unusual and did not cast doubt on the professional skills of the judges involved in that decision. In those circumstances, the Court found that the applicants' fears of bias could not be considered to be objectively justified.
26. The Constitutional Court's decision was served on the applicants on 14 April 2000.
27. Section 2 of the Constitutional Court Act (Staatsgerichtshofgesetz) concerns the composition of the Constitutional Court. It provides as follows:
“1. The Constitutional Court shall consist of the President, his alternate, four additional members and their alternates, all of whom serve part-time.
2. The President, the Vice-President, two additional members and their alternates must be native citizens of Liechtenstein; at least two members and their alternates must be versed in the law.”
28. Section 4 of the Constitutional Court Act regulates the election of the Constitutional Court's judges. So far as material, it reads as follows:
“1. The members of the Constitutional Court and their alternates shall be elected by Parliament for a term of five years.
2. If, for whatever reasons, the State Court cannot be properly constituted even with the use of alternates, the necessary supplementary elections shall be held for the case in question.”
29. Section 7 of the National Administrative Justice Act (Landesverwaltungspflegegesetz) provides that officials, including the members of the Administrative Court, may be challenged, inter alia, in the following cases:
“(b) if the official in question ... can expect a substantial advantage or disadvantage depending on the outcome of the administrative matter;
...
(d) if there is any other sufficient reason to doubt the impartiality of the official in question, in particular if the official in question is too close a friend or foe of one of the parties to a legal or administrative dispute.”
30. By virtue of section 6 (3) of the Constitutional Court Act, these rules also apply to the judges of the Constitutional Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79996
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF COPLAND v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Giovanni Bonello;Javier Borrego Borrego;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Rait Maruste;Stanislav Pavlovschi
TEXT: 6. The applicant was born in 1950 and lives in Llanelli, Wales.
7. In 1991 the applicant was employed by Carmarthenshire College (“the College”). The College is a statutory body administered by the State and possessing powers under sections 18 and 19 of the Further and Higher Education Act 1992 relating to the provision of further and higher education.
8. In 1995 the applicant became the personal assistant to the College Principal (“the CP”) and from the end of 1995 she was required to work closely with the newly appointed Deputy Principal (“the DP”).
9. In about July 1998, whilst on annual leave, the applicant visited another campus of the College with a male director. She subsequently became aware that the DP had contacted that campus to enquire about her visit and understood that he was suggesting an improper relationship between her and the director.
10. During her employment, the applicant’s telephone, e-mail and Internet usage were subjected to monitoring at the DP’s instigation. According to the Government, this monitoring took place in order to ascertain whether the applicant was making excessive use of College facilities for personal purposes. The Government stated that the monitoring of telephone usage consisted of analysis of the College telephone bills showing telephone numbers called, the dates and times of the calls, and their length and cost. The applicant also believed that there had been detailed and comprehensive logging of the length of calls, the number of calls received and made, and the telephone numbers of individuals calling her. She stated that on at least one occasion the DP became aware of the name of an individual with whom she had exchanged incoming and outgoing telephone calls. The Government submitted that the monitoring of telephone usage took place for a few months up to about 22 November 1999. The applicant contended that her telephone usage was monitored over a period of about eighteen months until November 1999.
11. The applicant’s Internet usage was also monitored by the DP. The Government accepted that this monitoring took the form of analysing the websites visited, the times and dates of the visits to the websites and their duration, and that this monitoring took place from October to November 1999. The applicant did not comment on the manner in which her Internet usage was monitored but submitted that it took place over a much longer period of time than the Government had admitted.
12. In November 1999 the applicant became aware that enquiries were being made into her use of e-mail at work when her step-daughter was contacted by the College and asked to supply information about e-mails that she had sent to the College. The applicant wrote to the CP to ask whether there was a general investigation taking place or whether her e-mails only were being investigated. By an e-mail of 24 November 1999, the CP advised the applicant that, whilst all e-mail activity was logged, the information technology department of the College was investigating only her e-mails, following a request by the DP.
13. The Government submitted that monitoring of e-mails took the form of analysis of e-mail addresses and dates and times at which e-mails were sent and that the monitoring occurred for a few months prior to 22 November 1999. According to the applicant, the monitoring of e-mails occurred for at least six months from May to November 1999. She provided documentary evidence in the form of printouts detailing her email usage from 14 May to 22 November 1999 which set out the date and time of emails sent from her e-mail account together with the recipients’ email addresses.
14. By a memorandum of 29 November 1999, the CP wrote to the DP to confirm the contents of a conversation they had had in the following terms:
“To avoid ambiguity I felt it worthwhile to confirm my views expressed to you last week, regarding the investigation of [the applicant’s] e-mail traffic.
Subsequent to [the applicant] becoming aware that someone from [the College] had been following up her e-mails, I spoke to [ST] who confirmed that this was true and had been instigated by yourself. Given the forthcoming legislation making it illegal for organisations to examine someone’s e-mail without permission, I naturally felt concerned over recent events and instructed [ST] not to carry out any further analysis. Furthermore, I asked you to do likewise and asked that any information you have of concern regarding [the applicant] be forwarded to me as a matter of priority. You indicated that you would respond positively to both requests, whilst reaffirming your concerns regarding [the applicant].”
15. There was no policy in force at the College at the material time regarding the monitoring of telephone, e-mail or Internet usage by employees.
16. In about March or April 2000 the applicant was informed by other members of staff at the College that between 1996 and late 1999 several of her activities had been monitored by the DP or those acting on his behalf. The applicant also believed that people to whom she had made calls were in turn telephoned by the DP, or those acting on his behalf, to identify the callers and the purpose of the call. She further believed that the DP became aware of a legally privileged fax that was sent by herself to her solicitors and that her personal movements, both at work and when on annual or sick leave, were the subject of surveillance.
17. The applicant provided the Court with statements from other members of staff alleging inappropriate and intrusive monitoring of their movements. The applicant, who is still employed by the College, understands that the DP has been suspended.
18. At the relevant time there was no general right to privacy in English law.
19. Since the implementation of the Human Rights Act 1998 on 2 October 2000, the courts have been required to read and give effect to primary legislation in a manner which is compatible with Convention rights so far as possible. The Act also made it unlawful for any public authority, including a court, to act in a manner which is incompatible with a Convention right unless required to do so by primary legislation, thus providing for the development of the common law in accordance with Convention rights. In the case of Douglas v. Hello! Ltd ([2001] 2 WLR 992), Lord Justice Sedley indicated that he was prepared to find that there was a qualified right to privacy under English law, but the Court of Appeal did not rule on the point.
20. The Regulation of Investigatory Powers Act 2000 (“the 2000 Act”) provided for the regulation of, inter alia, interception of communications. The Telecommunications (Lawful Business Practice) Regulations 2000 were promulgated under the 2000 Act and came into force on 24 October 2000. The Regulations set out the circumstances in which employers could record or monitor employees’ communications (such as e-mail or telephone) without the consent of either the employee or the other party to the communication. Employers were required to take reasonable steps to inform employees that their communications might be intercepted.
21. The House of Lords in Malik v. Bank of Credit and Commerce International SA ([1997] IRLR 462) confirmed that, as a matter of law, a general term is implied into each employment contract that an employer will not “without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”. In Malik, the House of Lords was concerned with the award of so-called “stigma compensation” where an ex-employee is unable to find further employment due to association with a dishonest former employer. In considering the damages that could be awarded for breach of the obligation of trust and confidence, the House was solely concerned with the payment of compensation for financial loss resulting from handicap in the labour market. Lord Nicholls expressly noted that “[f]or the present purposes I am not concerned with the exclusion of damages for injured feelings, the present case is concerned only with financial loss”.
22. In limiting the scope of the implied term of trust and confidence in Malik, Lord Steyn stated as follows:
“[T]he implied mutual obligation of trust and confidence applies only where there is ‘no reasonable and proper cause’ for the employer’s conduct, and then only if the conduct is calculated to destroy or seriously damage the relationship of trust and confidence. That circumscribes the potential reach and scope of the implied obligation.”
23. The tort of misfeasance in public office arises when a public official has either (a) exercised his power specifically intending to injure the plaintiff, or (b) acted in the knowledge of, or with reckless indifference to, the illegality of his act and in the knowledge or with reckless indifference to the probability of causing injury to the claimant or a class of people of which the claimant is a member (Three Rivers District Council v. Bank of England (No. 3) (HL) [2000] 2 WLR 1220).
24. At the time of the acts complained of by the applicant, the Data Protection Act 1984 (“the 1984 Act”) regulated the manner in which people and organisations that held data, known as “data holders”, processed or used those data. It provided certain actionable remedies to individuals in the event of misuse of their personal data. The 1984 Act has now been replaced by the Data Protection Act 1998.
25. Section 1 of the 1984 Act defined its terms as follows.
“...
(2) ’Data’ means information recorded in a form in which it can be processed by equipment operating automatically in response to instructions given for that purpose.
(3) ’Personal data’ means data consisting of information which relates to a living individual who can be identified from that information (or from that and other information in the possession of the data user) ...
(4) ’Data subject’ means an individual who is the subject of personal data.
(5) ’Data user’ means a person who holds data, and a person ‘holds’ data if –
(a) the data form part of a collection of data processed or intended to be processed by or on behalf of that person as mentioned in subsection (2) above; and
(b) that person ... controls the contents and use of the data comprised in the collection; and
(c) the data are in the form in which they have been or are intended to be processed as mentioned in paragraph (a) ...
(7) ’Processing’, in relation to data, means amending, augmenting, deleting or rearranging the data or extracting the information constituting the data and, in the case of personal data, means performing any of these operations by reference to the data subject.
...
(9) ’Disclosing’, in relation to data, includes disclosing information extracted from the data ...”
“1. The information to be contained in personal data shall be obtained, and personal data shall be processed, fairly and lawfully.
2. Personal data shall be held only for one or more specified and lawful purposes.
...
4. Personal data held for any purpose ... shall be adequate, relevant and not excessive in relation to that purpose or those purposes.”
“(1) An individual who is the subject of personal data held by a data user ... and who suffers damage by reason of –
...
(c) ... the disclosure of the data, or access having been obtained to the data, without such authority as aforesaid,
shall be entitled to compensation from the data user ... for that damage and for any distress which the individual has suffered by reason of the ... disclosure or access.”
28. The 1984 Act also created the position of Data Protection Registrar, under a duty to promote the observance of the data protection principles by data users. In section 10 it created a criminal offence as follows.
“(1) If the Registrar is satisfied that a registered person has contravened or is contravening any of the data protection principles he may serve him with a notice (‘an enforcement notice’) requiring him to take ... such steps as are so specified for complying with the principle or principles in question.
(2) In deciding whether to serve an enforcement notice the Registrar shall consider whether the contravention has caused or is likely to cause any person damage or distress.
...
(9) Any person who fails to comply with an enforcement notice shall be guilty of an offence ...”
VIOLATED_ARTICLES: 8


ITEMID: 001-67988
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF POLTORACHENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 with regard to the fairness of the proceedings;Violation of P1-1;Inadmissible under Art. 6-1 with regard to the length of the proceedings;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Zoryana Bortnovska
TEXT: 5. The applicant is a Ukrainian national, who was born in 1919 in Russia, and lives in Bakhchisaray (Crimea).
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 8 October 1991 the Sudak City Court ordered the Automobile and Agricultural Machine Building Ministry of the USSR (the “Ministry”) to pay the applicant 20,500 Soviet roubles (excluding taxes) for the use of his invention and to cover court fees incurred by him.
8. On 9 December 1991 the Ministry paid the applicant 18,140 Soviet roubles for his invention which was covered by a patent. The sum paid to the applicant was transferred to him through the Savings Bank of the USSR. On 20 January 1992 17,414.40 Soviet roubles were paid to the applicant's bank account at the Bakhchisaray branch of the Savings Bank of Ukraine (the “Bank”).
9. This sum was indexed in 1996 on the basis of the Recovery of Citizens' Savings (State Guarantees) Act of 2 January 1992, and the applicant's deposit with the Savings Bank (account no. 42) eventually amounted to UAH 18,284.70.
10. In February 1998 the applicant instituted administrative proceedings in the Bakhchisaray City Court against the Bank and its director complaining of their unlawful refusal to release his deposits from accounts nos. 42 and 4692. On 16 March 1998 the Bakhchisaray City Court rejected his claims as unsubstantiated. On 20 April 1998 the Supreme Court of the Crimea quashed this decision and remitted the case for a fresh consideration.
11. On 15 June 1998 the Bakhchisaray City Court ordered the Bank to pay the applicant UAH 18,284.70 from his account no. 42. It also held that UAH 977.20 had to be paid to the applicant from his account no. 4692. On 27 July 1998 the Supreme Court of Crimea quashed this decision and remitted the case for a fresh consideration. In particular, it held that a property dispute, such as in the instant case, had to be dealt with in contentious, not administrative, proceedings.
12. In October 1999 the applicant instituted contentious proceedings in the Bakhchisaray City Court against the Bank seeking recovery of the sum held by it. In particular, the applicant claimed that this sum was not a deposit but a payment for his invention that had been transferred by cable from Moscow to the Bank and never given to him.
13. On 29 November 1999 the applicant lodged a claim (new contentious proceedings) with the Bakhchisaray City Court against the Bank seeking to recover the sum of UAH 18,284.70 from it.
14. On 6 December 1999 the Bakhchisaray City Court refused to consider the applicant's complaint lodged against the Bank and its director on account of the recently initiated contentious proceedings concerning the recovery of the applicant's deposit with the Savings Bank pending before the same court.
15. On 30 November 1999 the court adjourned the hearing in the case to 28 January 2000 and then to 25 February 2000 in view of a business trip by the judge.
16. On 25 February 2000 the court rejected the applicant's claims. On 10 April 2000 the Supreme Court of Crimea quashed this judgment and remitted the case for a fresh consideration.
17. On 22 May 2000 the case file was remitted to Bakhchisaray Court. The hearing was scheduled for 10 July 2000.
18. On 9 October 2000 the hearing was adjourned to 15 January 2001 due to the failure of the defendant to attend.
19. On 15 January 2001 the Bakhchisaray City Court allowed the applicant's claims and ordered the Bank to pay him UAH 18,284.70 since this sum was not an “indexed” deposit with the State Savings Bank. As to the Savings Bank “indexed” deposit on his account no. 4692, the court held that the applicant had not sought to recover that sum.
20. On 6 April 2001 the Presidium of the Supreme Court of Crimea quashed the decision of 15 January 2001 upon a “protest” (протест в порядку нагляду) lodged with it by the President of the Supreme Court of Crimea. It also rejected the applicant's claims for the recovery of UAH 18,284.70 as unsubstantiated.
21. The relevant domestic law is set out in the judgment of 9 November 2004 in the case of Svetlana Naumenko v. Ukraine (no. 41984/98).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59589
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2001
DOCNAME: CASE OF FERRAZZINI v. ITALY
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1;Inadmissible under Art. 14
JUDGES: Luzius Wildhaber;Paul Mahoney
TEXT: 9. The applicant is an Italian citizen, born in 1947 and living in Oristano (Italy).
10. The applicant and another person transferred land, property and a sum of money to a limited liability company, A., which the applicant had just formed and of which he owned – directly and indirectly – almost the entire share capital and was the representative. The company, whose object was organising farm holidays for tourists (agriturismo), applied to the tax authorities for a reduction in the applicable rate of certain taxes payable on the above-mentioned transfer of property, in accordance with a statute which it deemed applicable, and paid the sum it considered due.
11. The present case concerns three sets of proceedings. The first concerned in particular the payment of capital-gains tax (INVIM, imposta sull’incremento di valore immobiliare) and the two others the applicable rate of stamp duty, mortgage-registry tax and capital-transfer tax (imposta di registro, ipotecaria e voltura), and the application of a reduction in the rate.
12. In the first set of proceedings, the tax authorities served a supplementary tax assessment on the applicant on 31 August 1987 on the ground that the property transferred to the company had been incorrectly valued. They requested payment of an aggregate sum of 43,624,700 Italian lire comprising the tax due and penalties. On 14 January 1988 the applicant applied to the Oristano District Tax Commission for the supplementary tax assessment to be set aside.
In a letter of 7 February 1998 the District Tax Commission informed the applicant that a hearing had been listed for 21 March 1998. In the meantime, on 23 February 1998, the tax authorities informed the commission that they accepted the applicant’s comments and requested the case to be struck out of the list.
In a decision of 21 March 1998, the text of which was deposited on 4 April 1998, the District Tax Commission struck the case out of the list.
13. In the other two sets of proceedings, the tax authorities served two supplementary tax assessments on A. on 16 November 1987 on the ground that the company was ineligible for the reduced rate of tax to which it had referred. The tax authorities’ note stated that the company would be liable to an administrative penalty of 20% of the amounts requested if payment was not made within sixty days.
On 15 January 1988 the applicant, acting in his own right, although the matter concerned the company A., lodged two applications with the Oristano District Tax Commission for the above-mentioned supplementary tax assessments to be set aside.
In two letters of 20 March 1998 the District Tax Commission informed the applicant, in his capacity as representative of A., that a hearing had been listed for 9 May 1998 in the two other cases. In two orders of that date the District Tax Commission adjourned the cases sine die and gave the applicant thirty days in which to appoint a lawyer. Subsequently, a hearing was listed for 24 April 1999.
In two decisions of 22 May 1999, the text of which was deposited at the registry on 16 July 1999, the District Tax Commission dismissed A.’s applications on the ground that the transferred property, which included, among other things, a swimming pool and a tennis court, could not be regarded as the normal assets of an agricultural company.
On 27 October 2000 A. lodged an appeal with the Regional Tax Commission.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77121
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KHOLODOVY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Yuriy Viktorovich Kholodov and Mrs Zoya Aleksandrovna Kholodova, are Russian nationals who were both born in 1937 and live in Moscow. They were represented before the Court by Ms K. Moskalenko and Mr M. Rachkovskiy, lawyers practising in Moscow.
s, may be summarised as follows.
The applicants are the parents of Mr Dmitriy Yurievich Kholodov, a journalist writing for the Moskovskiy Komsomolets newspaper, who was killed in his office on 17 October 1994 by a bomb explosion.
On 6 March 1995 the applicants were granted the victim status in the criminal case concerning their son’s assassination.
The investigation charged five officers of the Russian Army and one civilian with intentional murder of Mr D. Kholodov. It was alleged that the plot had been designed to put an end to Mr Kholodov’s publications about corruption in the Russian Army. The newspaper and another wounded journalist, but not the applicants, constituted themselves as civil parties in the criminal proceedings.
On 26 June 2002 the Military Court of the Moscow Command acquitted the defendants of all charges.
On 27 May 2003 the Military Division of the Supreme Court of the Russian Federation quashed the acquittal and remitted the matter for a new examination by a different formation.
The second trial began on 22 July 2003. On 10 June 2004 the Military Court of the Moscow Command again pronounced an acquittal.
On 14 March 2005 the Military Division of the Supreme Court upheld the acquittal in the final instance.