ITEMID: 001-57586
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1989
DOCNAME: CASE OF TRE TRAKTÖRER AKTIEBOLAG v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;No violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Gaukur Jörundsson;J.A. Carrillo Salcedo
TEXT: 7. The applicant, Tre Traktörer Aktiebolag ("TTA"), is a Swedish limited company with its seat at Helsingborg, Malmöhus County. Its sole shareholder is Mrs Olga Flenman.
8. On 30 July 1980 TTA took over the management of the restaurant Le Cardinal in Helsingborg and obtained on the same day a licence to serve beer, wine and miscellaneous alcoholic beverages.
9. Le Cardinal had been opened on 6 March 1980 by AB Citykällaren, which had obtained a licence on 29 February 1980. This company, which had been formed in 1960, had been bought on 1 July 1977 by Mrs Olga Flenman. She was also its sole shareholder until 1 June 1982. She retained the majority of the shares until 1987 and was a full or deputy member of the board until 19 December 1983. The company was apparently sold in 1987.
10. TTA’s licence for Le Cardinal remained in force until 25 September 1981, when it was replaced by a new licence which was subject to the condition that the business retained the character of a restaurant. This in turn was replaced on 9 November 1981 by a fresh licence to which were attached new regulations with regard to the serving of young people.
11. In 1981 the Tax Department of the County Administrative Board (Länsstyrelsen) of Malmöhus County had carried out an inspection on AB Citykällaren’s activities between 1 July 1979 and 30 June 1980. During this period Mrs Flenman had at various times managed three different establishments, including the restaurant Le Cardinal. The inspection, on the basis of which an audit report was drawn up on 17 September 1981, had revealed various inaccuracies in the book-keeping; the most significant discrepancy, estimated at 93,000 Swedish crowns (SEK), concerned the sale of beers, wines and spirits in that restaurant between March and June 1980. The total turnover of the company during this period was 770,000 SEK.
12. As a result of the audit report the assessment of Mrs Flenman’s personal taxable income for 1980 was increased by 100,000 SEK.
On 1 February 1988, however, the County Court (Länsrätten) reduced this amount to approximately one half and the local tax department in Helsingborg issued the corresponding reassessment notice (omräkningsbesked).
13. As a further result of the audit report, criminal proceedings were also instituted against Mrs Flenman under section 10 of the Act on Tax Offences (skattebrottslagen) for having, as a representative of AB Citykällaren, deliberately or through gross negligence disregarded her book-keeping obligations and thereby seriously hindered control by the fiscal authorities (försvårande av skattekontroll). In the course of the hearing and in the light of the evidence presented, the prosecution reduced the scope of the charges it had originally brought on 23 February 1983.
On 27 May 1983 the District Court (Tingsrätten) of Helsingborg acquitted her on the following grounds: it was not established either that the result of the calculations concerning alcohol and tobacco could be explained by book-keeping mistakes, or that the discrepancies regarding the period from 6 to 17 March 1980, which were due to the absence of a cash register, had been caused deliberately or through gross negligence; and the other alleged discrepancies could not be considered to be of such a nature and extent as seriously to hinder control, within the meaning of the said section 10.
14. In April 1982 TTA requested from the County Administrative Board an extension of the serving hours at Le Cardinal from 1.00 a.m. until 3.00 a.m. The request was forwarded on 3 May 1982 to the Social Council (socialnämnden) and to the Police Board (polisstyrelsen) of Helsingborg for their observations.
On 10 June 1982 the Police Board submitted a negative opinion, on the basis of a complaint filed against Mrs Flenman by the tax authority (see paragraphs 11 and 12 above); in its opinion, her capacity to deal with the serving of alcoholic beverages was open to doubt. The Social Council likewise expressed a negative opinion on 5 July.
After TTA had been given the opportunity to file its own observations, the County Administrative Board decided on 29 October 1982 to postpone its ruling on the request until it had finally determined whether the company could be considered fit to hold a licence to serve alcoholic beverages.
15. The audit report of 17 September 1981 (see paragraph 11 above) had been communicated to the competent section of the County Administrative Board and, on 4 November 1982, it informed TTA of its contents. The Board stated that it was considering withdrawing the licence to serve alcoholic beverages under section 64(2) of the 1977 Act on the Sale of Beverages (lagen om handel med drycker - "the 1977 Act"; see paragraph 27 below) and invited observations before 15 November 1982.
After TTA had filed observations, its representatives produced the current books of the company to the County Administrative Board. They stated that the discrepancies as regards the sale of alcoholic beverages were due to thefts.
16. On 7 January 1983 the County Administrative Board decided to issue an admonition under section 64 of the 1977 Act (see paragraph 27 below). The decision stated, inter alia:
"In view of what was established during the audit and as the company has not been able to explain the discrepancies satisfactorily, the County Administrative Board finds that there are reasons to revoke the licence under section 64 of the 1977 Act. Accordingly, it ought to be revoked now. The only argument against a revocation is that the negligence took place in the spring of 1980, that is almost three years ago. As far as has been ascertained, no criticism has been levelled against the management of the restaurant thereafter. Against this background, the County Administrative Board has not found it necessary to revoke the licence. Instead it issues a serious admonition against the company pursuant to section 64 of the 1977 Act."
17. On 14 January 1983 the County Administrative Board renewed until further notice TTA’s previous licence, dated 9 November 1981. The renewed licence contained, on its reverse side, the following special conditions:
"REGULATIONS
1. This licence is not transferable.
2. There must be a person responsible for serving ....
3. Alcoholic beverages may not be served unless the person responsible or his or her substitute is present ....
4. Any change of activity should be reported to the County Administrative Board ....
5. This licence or a copy thereof shall be exhibited in the restaurant.
6. The activities shall be carried on in such a way as not to be aimed at a young public, i.e. under 22 years of age. The licence-holder is therefore obliged to take this into account, inter alia when advertising.
The County Administrative Board recalls that the licence has been granted on the assumption that the provision of cooked food will be a major part of the business and that the company, in accordance with its ‘programme’, does not intend to run a discotheque. It is further noted that the company has undertaken to discourage too young a clientele by its choice of music and by not playing recorded music.
The County Administrative Board orders that serving shall end at 2 a.m."
18. On 18 January 1983 the Social Council of Helsingborg appealed to the National Board of Health and Welfare (socialstyrelsen) against this decision and requested that the licence be revoked. The Council referred to the results of the audit and to the fact that the special conditions accompanying the licence had not been complied with.
In the latter respect the Council relied on the report of an inspection carried out at the restaurant on 13 February 1982. This revealed, inter alia, that the restaurant was then overcrowded, many customers not having seats; that most of the customers, whose ages ranged from 18 to 25, were 18 years old; and that in the upper part of the premises there was a discotheque which was open all evening. According to the conditions of the licence, there was to be live dance-music and activities were to be aimed at young people above the age of 22.
On 10 February 1983 the applicant company was given an opportunity to file observations on the appeal. It did so on 22 March 1983.
19. On 13 July 1983 the National Board of Health and Welfare quashed the County Administrative Board’s decision of 7 January 1983 (see paragraph 16 above). After reciting the contents of section 64(1) and of section 64(2) (as amended in 1982) of the 1977 Act (see paragraphs 27-28 below), it gave the following reasons:
"The provisions of section 64(2) of the 1977 Act are connected, inter alia, with the requirement in section 40 of the 1977 Act that a new holder of a licence must be suitable. This requirement of suitability has in practice been considered to include a requirement of personal suitability to sell alcoholic beverages, an activity involving great social responsibility. As regards companies, this requirement is applicable to those individuals who have a considerable influence on the business.
The unsuitability of the licence-holder which constitutes a reason for revoking the licence may be of many different types. In the Bill 1981/1982: 143, page 82, economic mismanagement, even if it is not criminal, is given as one example of personal unsuitability.
According to section 70 of the 1977 Act, the book-keeping of a business involved in the sale of alcoholic beverages must be such as to permit control of the business.
In the instant case the County Administrative Board referred to an audit report as the basis for its decision. From this report it appears that the book-keeping of AB Citykällaren was deficient in several respects. For instance, there are differences to be found concerning the recorded sale of beverages. The explanations given by the company regarding, inter alia, thefts of such beverages show, in the opinion of the National Board of Health and Welfare, that those who have had a decisive influence on the business have failed to demonstrate sufficient competence regarding both book-keeping and internal control. Section 64 of the 1977 Act is therefore applicable in this case.
The National Board of Health and Welfare finds that the deficiencies concern compliance with section 70 of the 1977 Act and, as far as suitability is concerned, are of such a nature that a measure other than revocation of the licence cannot be considered. The fact that in the instant case the District Court has rejected the charges of hindering a tax investigation does not affect this assessment.
In view of the above the appeal is allowed.
The National Board of Health and Welfare quashes the decision under appeal and refers the matter back for further action."
This decision was not open to appeal.
20. On 18 July 1983 the County Administrative Board of Malmöhus County decided to revoke, with immediate effect, TTA’s licence to serve alcoholic beverages. The company states that, as a result, the restaurant had to be closed down on the following day. However, this was disputed by the Government.
21. TTA appealed to the National Board of Health and Welfare, requesting that the decision to revoke the licence should take effect as from 1 March 1984. The company stated that it would otherwise be faced with financial problems on account of the applicable periods of notice for the staff.
On 15 August 1983 the National Board of Health and Welfare rejected the appeal. It considered that, having regard to its previous decision, there were no reasons to depart from the general rule in section 67 of the 1977 Act that decisions under that Act should take effect immediately. This decision was not open to appeal.
22. By letter of 23 January 1984, the applicant company submitted to the Government a claim for compensation based on the decision to revoke the licence. It requested the Government to find that the decision of the County Administrative Board violated the company’s rights under the European Convention on Human Rights. It further alleged that Swedish law had been incorrectly applied.
On 16 February 1984 the Government decided to refer the claim for compensation to the Chancellor of Justice (justitiekanslern) and not to take any measures in the matter as regards the other issues. On 5 March 1984 the Chancellor of Justice expressed the opinion that the claim for compensation should be rejected; he found no indication that any authority had committed any error which could make the State liable under the Tort Liability Act 1972 (skadeståndslagen; see paragraph 32 below).
23. In June 1984 Le Cardinal was sold for 1,500,000 SEK.
24. The aim of Swedish policy as regards alcohol is to limit its total consumption and to counteract its abuse and the resultant damage to health. Restrictions on alcohol in Sweden are of long standing. Since 1895 restaurants and bars serving alcoholic beverages have had to be licensed, and in the early 1900’s a State monopoly was introduced for wholesale and retail trading in alcohol. These restrictions remain in force.
The present Act on the Sale of Beverages was adopted in 1977 and regulates trading in beer, wine and liquor. It also lays down rules on the serving of these beverages for consumption on the premises of restaurants and bars as well as on the issuing of licences for and inspection of these premises. The Act is supplemented by an Ordinance on the Sale of Beverages (förordning om handel med drycker).
25. Alcoholic beverages may be served only if a licence has been issued (section 34 of the 1977 Act). In this respect, section 40 provides:
"In examining whether to issue a licence special regard should be had to the need for the restaurant, the applicant’s suitability and the suitability of the premises for the purpose."
Licences are issued by the County Administrative Board in the county where the premises are situated. When the application concerns a new establishment for the serving of alcoholic beverages, the County Administrative Board has to consult the local municipal council (kommunfullmäktige) and the local police authority before a decision is taken. Even in cases concerning the transfer of licences to new owners, extended serving-hours and the revocation of licences the County Administrative Board may consult these local authorities.
The County Administrative Board has to inform the local Social Council of its decisions concerning the serving of alcoholic beverages. For their part, the Social Council and the police have to inform the County Administrative Board of such circumstances as may be relevant in connection with the application of the 1977 Act.
26. Both the local authorities and the persons concerned may appeal to the National Board of Health and Welfare against decisions taken by the County Administrative Board under the 1977 Act. The decisions of the National Board of Health and Welfare in these matters are final (section 68 of the Act). Furthermore, the National Board of Health and Welfare supervises the implementation of the Act and the Ordinance at national level.
27. Until 1 July 1982, section 64 of the 1977 Act provided as follows:
"1. The licensing authority shall revoke the licence or limit it to certain beverages where such sale of alcoholic beverages as takes place under a licence according to this Act causes annoyance relating to public order, drunkenness or disturbance of the peace or where the provisions of this Act or the conditions imposed under it are not complied with. If it may be assumed that a satisfactory situation can be achieved without such a severe measure, the licence-holder may instead be given an admonition or special instructions.
2. The first paragraph also applies, mutatis mutandis, if the conditions for granting a licence are no longer satisfied.
3. In cases covered by the first or the second paragraph the approval of a director or a substitute director may be withdrawn."
28. The second paragraph of section 64 was amended in 1982 (SFS 1982:289); as from 1 July 1982, it has read as follows:
"The first paragraph also applies when the licence-holder can no longer be considered suitable to sell alcoholic beverages or when for other reasons the conditions for granting a licence are no longer satisfied."
In this connection, the Government’s Bill (p. 82) referred to recent complaints filed before the National Board of Health and Welfare concerning revocation of licences on account of economic mismanagement by the licensee. The Bill also stated (p. 87) that the amendment would make it clearer that economic mismanagement may be a reason for considering the licence-holder unsuitable, even if the sale of alcoholic beverages has been carried out in conformity with the applicable legislation. Only considerable economic mismanagement is relevant in this connection. Anyone who systematically mismanages the payment of taxes and contributions or seriously disregards his obligations regarding book-keeping or the supplying of information shall be considered unsuitable to hold a licence. It is, however, not a condition that the mismanagement is criminal or even intentional. A considerable degree of negligence in the performance of these obligations can also constitute sufficient reason for intervention.
29. With regard to book-keeping, section 70 of the 1977 Act provides as follows:
"The book-keeping of an establishment which carries on the sale of alcoholic beverages shall be so organised as to permit control of the activities. The manager of the establishment is obliged to produce the books of the establishment at the request of the licensing authority. He is also obliged to produce statistical information pursuant to the regulations issued by the Government or, after the Government’s decision, by the National Board of Health and Welfare."
The travaux préparatoires of section 70 state that unsatisfactory book-keeping is in itself proof of unsuitability to conduct a business involving the sale of alcoholic beverages.
30. In 1985 a report on the Swedish legislation on the sale of beverages was drawn up under terms of reference issued by the Government (SOU 1985:15). Its author proposed that decisions in this area by the County Administrative Boards should be open to appeal to the Administrative Courts of Appeal. He considered that it was not appropriate for the National Board of Health and Welfare, which was vested with supervisory functions under the 1977 Act, to fulfil an appellate role, such a task being more suitably performed by the administrative courts. This proposal was subsequently submitted for examination to the competent Ministry.
31. On 21 April 1988 the Swedish Parliament adopted an Act concerning appeals against administrative decisions. This Act came into effect on 1 June 1988 and will remain in force until 1991. It entitles individuals to have certain decisions of administrative authorities brought before the Supreme Administrative Court in order to establish whether the decisions were in accordance with the law.
32. Under Chapter 3, section 2, of the Tort Liability Act 1972, the State is liable to pay compensation in the event of fault or negligence in the exercise of authority (myndighetsutövning).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77833
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SUKOBLJEVIC v. CROATIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits (non-exhaustion of domestic remedies) and dismissed;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1944 and lives in Zagreb.
5. On 24 March 1993 the applicant brought a civil action against the company T. (“the employer”) in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages for a work-related injury.
6. On 3 February 1995 the Municipal Court gave judgment awarding damages to the applicant in the amount of 31,780 Croatian kunas (HRK) and the litigation costs.
7. On 21 May 1996 the employer appealed to the Zagreb County Court (Županijski sud u Zagrebu).
8. On 23 March 1999 the County Court quashed the first-instance judgment and remitted the case.
9. In the resumed proceedings, the Municipal Court held a hearing on 7 December 1999 at which it requested the applicant to provide the minutes drawn up by the labour inspectorate concerning the incident resulting in his injury or to indicate a person or authority who possessed that document. On 12 June 2000 the court repeated its request.
10. On 16 June 2000 and 3 January 2001 the applicant requested the court to invite the employer to produce the above evidence. On 26 June 2001 the court did so.
11. At the hearing held on 14 December 2001 the court decided to effect an in situ inspection (očevid) on 15 February 2002 with the assistance of an expert, and invited the applicant to advance the costs. Since the applicant did so only on 19 February 2002, the inspection did not take place.
12. On 3 January 2002 the Zagreb Commercial Court (Trgovački sud u Zagrebu) decided to open bankruptcy proceedings against the employer. It invited the creditors to report their claims by 28 February 2002 and scheduled a hearing, at which the reported claims were to be examined, for 20 March 2002. In accordance with the Bankruptcy Act, the decision was published in the “Official Gazette” no. 6/02 of 21 January 2002.
13. On 8 May 2002 the Zagreb Municipal Court invited the applicant to inform it whether the bankruptcy proceedings had been opened against the employer. On 8 June 2002 the applicant replied in the affirmative and requested that any future communication with the employer be conducted through its bankruptcy manager (stečajni upravitelj).
14. On 12 June 2002 the Municipal Court stayed the proceedings on account of the pending bankruptcy proceedings.
15. On 13 June 2002 the applicant reported his claim to the Zagreb Commercial Court. On 8 January 2004 and 30 June 2005 he filed two rush notes with that court urging the delivery of a decision on his claim.
16. On 20 March 2006 the Commercial Court, without issuing a formal decision, replied that in the bankruptcy proceedings against the employer the applicant’s claim had never been examined.
17. It would appear that both the civil and the bankruptcy proceedings are formally still pending.
18. Meanwhile, on 18 June 2002 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining about the length of the civil proceedings.
19. On 16 December 2002 the Constitutional Court dismissed the applicant’s complaint. It examined the length of the proceedings in their part following the Convention’s entry into force with respect to Croatia. The Constitutional Court held that the delay was attributable to the complexity of the case and the applicant’s conduct. It found that the applicant had contributed to the length of the proceedings in that he had not responded to the Municipal Court’s request of 7 December 1999 for more than six months, that he had failed to advance the inspection costs in due time and that he had failed to request the Municipal Court to invite the bankruptcy manager to take over the civil proceedings which would have resulted in their resumption.
20. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
21. The Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03) in the relevant part provides as follows:
22. Section 212(1) provides that proceedings shall be stayed, inter alia, if bankruptcy proceedings are opened (against one or both of the parties).
23. Section 215(1) provides that proceedings shall resume when the bankruptcy manager takes over the proceedings or when the court, of its own motion or at the initiative of the opposite party, invites the bankruptcy manager to do so.
24. The Bankruptcy Act (Stečajni zakon, Official Gazette nos. 44/96, 29/99, 129/00, 123/03, 197/03, 187/04 and 82/06) in the relevant part provides as follows:
25. Section 7(2) provides that bankruptcy proceedings are urgent.
26. Section 55(1) provides that in its decision to open the bankruptcy proceedings the court shall set a date for the examination hearing (ispitno ročište) which shall be scheduled within two months after the lapse of the time-limit left to the creditors to report their claims to the bankruptcy manager.
27. Section 96 provides that creditors shall realise their claims against the bankrupt only in bankruptcy proceedings.
28. Section 173(1) provides that creditors shall report their claims against the bankrupt to the bankruptcy manager in writing, stating the basis and the amount thereof.
29. Section 175 provides for an examination hearing before the competent commercial court at which the bankruptcy manager shall either accept or oppose each of the reported claims. Likewise, a creditor can oppose the claim reported by another creditor.
30. Section 176(2) provides that the claims reported within three months after the first examination hearing may be examined at one or more separate examination hearings. Those hearings shall be scheduled by the court at the proposal of the creditors who failed to report their claims in due time, and under the condition that they advance the costs. If the costs are not advanced, the separate hearing shall not be held and the belated reports shall be declared inadmissible.
31. Section 176(4-6) provides that the court shall declare inadmissible the reports submitted after the expiry of the time-limit set forth in paragraph 2. The creditor which submitted the report shall have a right to appeal against that decision.
32. Section 177 provides that the claim is deemed to have been accepted if no objection has been raised by either the bankruptcy manager or another creditor. The commercial court shall prepare a schedule of examined claims on the basis of which it shall issue a decision (rješenje) showing which claims have been accepted and which were opposed, while setting out the amount and priority of each claim.
33. Section 179(1) provides that civil proceedings that concern a claim reported to the bankruptcy manager and that were pending at the moment of the opening of bankruptcy proceedings, shall be resumed by taking over of these proceedings (by an authorised person in the name of the bankrupt). The motion to resume the civil proceedings can be made by the plaintiff whose claim has been opposed in bankruptcy or, in the name of the bankrupt, the bankruptcy manager or another creditor that opposed the plaintiff’s claim.
34. Section 181(1) provides that a final decision establishing the claim and its priority, or establishing that a claim does not exist, shall be effective against the bankrupt and all its creditors.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-73173
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KALLO v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
TEXT: 5. The applicant was born in 1941 and resided in Kazincbarcika. He died in March 2004.
6. On 2 September 1994 the applicant brought an action in the Miskolc Labour Court against his former employer, a joint-stock company. He requested the court to hold that his employment contract had been terminated unlawfully, that he should be reinstated and that the agreement with the employer company to buy his shares from him be annulled.
7. After a hearing on 30 November 1994, on 15 February 1995 the Labour Court discontinued the proceedings partly because the applicant’s action had been submitted outside the statutory time-limit, and partly because it had no competence in the case.
8. On 11 May 1995 the Borsod-Abaúj-Zemplén County Regional Court quashed part of the first-instance decision and appointed the Kazincbarcika District Court to deal with the applicant’s civil law claim.
9. On 16 February 1996 the Supreme Court accepted the applicant’s petition for review and remitted the labour law aspects of the case to the Labour Court.
10. Meanwhile, on 25 April 1995 the applicant instituted proceedings, seeking the payment of damages, additional wages and other benefits. After a hearing on 6 December 1995, on 28 March 1996 the Labour Court ordered that this action be joined to the original proceedings which were to be resumed pursuant to the Supreme Court’s decision.
11. After hearings on 17 May and 7 June 1996, on 3 July 1996 the Labour Court gave a partial judgment. It stated that the company had terminated the applicant’s employment unlawfully and ordered it to reinstate him.
12. On appeal, on 28 November 1996 the Regional Court quashed the first-instance partial judgment and dismissed the applicant’s claim concerning the termination of his employment.
13. In the proceedings concerning the remainder of the case, on 8 April, 4 September and 2 November 1997, the Labour Court held hearings. On 16 December 1997 it accepted part of the applicant’s claims for additional wages and outstanding benefits, but dismissed the remainder.
14. On appeal, on 2 April 1998 the Regional Court considered the first-instance judgment to be a partial decision and confirmed its contents. It held that the Labour Court had failed to examine some of the applicant’s claims, and that in this respect the proceedings were to be continued.
15. In the resumed first-instance proceedings, on 15 June 1998 the Labour Court transferred part of the applicant’s claims to the competent Kazincbarcika District Court. After a hearing on 13 January 1999, on 3 February 1999 it dismissed the applicant’s action.
16. On 14 December 2000 the Regional Court dismissed the applicant’s appeal.
17. On 18 April 2002 the Supreme Court dismissed the applicant’s petition for review.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85709
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HARDING v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Christopher Harding, is a British national who was born in 1947 and lives in London. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 5 September 1992. On 1 December 2000 the applicant applied for widows’ benefits. On 5 December 2000 the applicant was informed that his claim had been disallowed as he was not a woman. By a letter of 7 December 2000 the applicant requested that his application be reconsidered.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-59062
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF M.B. v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant, a Swiss citizen born in 1945, was at the time of filing her application a delegate of the International Committee of the Red Cross residing at Losone in Switzerland.
9. On 19 September 1994 the Federal Attorney (Bundesanwältin) issued a warrant of arrest against the applicant on suspicion of having committed “repeated assassination (ripetuto assassinio), committed as a member of the terrorist group ‘Carlos’ and repeated participation in the preparation and implementation of ... attacks (attentati)”, the details of which were then listed.
10. On the same day, 19 September 1994, the applicant was arrested in Locarno in Switzerland and remanded in custody. On 20 September 1994 she was transported to Bern where she arrived at 10h00. At 14h40 she was questioned by police officers of the Federal Attorney’s office (Bundesanwaltschaft).
11. On 21 September 1994, an investigating judge of the Canton of Bern confirmed the detention on remand of the applicant. The decision noted that the suspicion was based on files of the East German State security authorities and the Hungarian intelligence service, and that the applicant herself admitted having been a member of the Carlos group. In view of this membership, there was an urgent suspicion (dringender Verdacht) that she had participated in the various events. Furthermore, there existed a danger of collusion and of absconding. Thus, additional investigations were necessary. Moreover, the applicant, a delegate of the International Committee of the Red Cross, was frequently abroad and had no permanent residence in Switzerland.
12. The investigations were then conducted by the Federal Attorney’s office.
13. On 5 October 1994 the applicant was heard by the Federal Attorney’s office. As from this date, the applicant refused to comment on the charges laid against her.
14. On Friday, 21 October 1994, the applicant filed a request with the Federal Attorney for release from detention. She submitted that she had withdrawn her statement that she belonged to the Carlos group, and that it did not transpire from the documents referred to by the investigating judge on 21 September 1992 that she had been a member of this group. There were furthermore no documents which indicated that she had committed a criminal offence. A danger of collusion and of absconding could be excluded. The request was received by the Federal Attorney on Monday, 24 October 1994.
15. On Tuesday, 25 October 1994, the Federal Attorney dismissed the applicant’s request. The decision was served on the applicant on Wednesday, 26 October. According to the decision, the applicant was suspected of having participated, as a member of the Carlos terrorist group, in bomb attacks in 1982 of French embassies in Beirut and Vienna and of a train in France. She was also suspected of having murdered a diplomat couple in Beirut in 1982. These bomb attacks had occurred after two members of the Carlos group had been arrested in France. The Carlos group transmitted a letter to the French Government, threatening to commit the attacks if the two members were not released. The applicant was suspected of having deposited this letter at the French Embassy in The Hague. After the time-limit mentioned in the letter had elapsed, the attacks were committed.
16. On Wednesday, 26 October 1994, the applicant was questioned by the Federal Attorney’s office.
17. On Thursday, 27 October 1994, the applicant asked for permission to consult the entire case file. The Federal Attorney’s office refused the request on the same day, inter alia, in view of a danger of collusion.
18. On Monday, 31 October 1994, the applicant filed an appeal (Beschwerde) against the decisions of 25 and 27 October 1994 with the Indictment Chamber (Anklagekammer) of the Federal Court (Bundesgericht), invoking Article 5 §§ 1, 2 and 4 of the Convention and requesting release from detention and permission to consult the entire case file. The appeal was received by the Federal Court on Tuesday, 1 November 1994.
19. On the same day, 1 November 1994, the President of the Indictment Chamber transmitted a copy of the appeal to the Federal Attorney who was requested to submit her observations by Monday, 7 November 1994. The Federal Attorney was further requested to send a copy of her observations directly to the applicant who, in turn, was requested to submit any observations by Friday, 11 November 1994.
20. On 7 November 1994 the Federal Attorney filed her observations.
21. The applicant filed her observations in reply on Friday, 11 November 1994. These observations were received by the Federal Court on Monday, 14 November.
22. On Wednesday, 23 November 1994, the Indictment Chamber of the Federal Court dismissed the applicant’s request. The decision was served on the applicant on Thursday, 24 November 1994.
23. In respect of the applicant’s complaint that she could not consult the entire case file, the Indictment Chamber found that the applicant had had knowledge of the essential documents. Moreover, she did not dispute the Federal Attorney’s observations of 7 November 1994 according to which the applicant had been able to read all incriminating documents when questioned.
24. In its decision the Indictment Chamber of the Federal Court further confirmed the suspicion that the applicant had committed the offences at issue, particularly as she herself had originally admitted membership in the Carlos group. The applicant had not withdrawn her statements, she had merely refused to speak to the authorities. The Indictment Chamber also assumed a danger of absconding and of collusion.
25. On 7 December 1994 the applicant filed a further request for release which was granted by the Federal Attorney’s Office in a decision dated 13 December 1994. The decision stated that the original suspicion directed against the applicant had not been confirmed (erhärtet).
26. According to Section 52 of the Federal Act of Criminal Procedure (Bundesstrafrechtspflegegesetz) a person detained on remand may at any time file a request for release from detention. If the investigating judge or the Federal Attorney refuse the request, an appeal may be filed with the Indictment Chamber of the Federal Court. According to Section 105bis and 217 of the Act, the time-limit for filing the appeal is three days.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-5998
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: BRUNO v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: The applicant is a Swedish national, born in 1946 and living in Vällingby. The respondent Government are represented by Ms E. Jagander, Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In December 1994 the tax authorities levied municipal and State tax on the applicant for the income year 1993 including, as part of the municipal income tax, a church tax to the Lutheran Church of Sweden. Not being a member of that Church, the applicant was entitled to a reduction of the church tax in accordance with section 1 of the Act on Reduction of Tax Liability of Persons Not Members of the Church of Sweden (Lag om viss lindring i skattskyldigheten för den som icke tillhör svenska kyrkan, 1951:691; hereinafter “the Dissenter Tax Act”). Accordingly, he was charged 625 Swedish kronor (SEK), or about 0.23 per cent of his taxable income, in church tax, which was paid to the relevant parish in Sollentuna. This amount corresponded to 25 per cent of the amount he would have had to pay had he been a member of the Church of Sweden.
Upon review, the tax authorities upheld its decision on 23 March 1995.
The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm, claiming that the levying of church tax on someone who is not a member of the Church of Sweden contravened, inter alia, the Swedish Constitution and Article 9 of the Convention. He requested the court to hold an oral hearing in the case.
By a judgment of 19 May 1995 the court rejected the applicant's appeal and his request for an oral hearing.
The applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm which, on 6 November 1995, refused to hold an oral hearing and, on 22 December 1995, rejected the appeal against the tax decision, finding it to be in conformity with the Swedish Constitution and the Dissenter Tax Act.
On 29 May 1996 the Supreme Administrative Court (Regeringsrätten) refused the applicant leave to appeal.
According to the Burial Act (Begravningslagen, 1990:1144), the parishes within the Church of Sweden are obliged to construct and maintain public burial-grounds, unless the Government decide in the case of a specific municipality that this task shall be performed by the municipality itself (chapter 2, section 1). The right to be buried in a public burial-ground is not dependent on the deceased being a member of a particular religious community (chapter 2, section 4). However, the responsible organ, whether it be the local parish or the municipality, is obliged to provide for separate burial-grounds for those who are not members of any Christian community. The construction and maintenance of such burial-grounds are done in consultation with the religious communities concerned (chapter 2, section 2). Decisions taken under the Act by the parish or the municipality may be appealed against to the County Administrative Board (länsstyrelsen) (previously regulated in chapter 9 of the Act, now in chapter 11). In the municipality where the applicant was liable to pay tax – as in most parts of Sweden – the burial administration remains with the local parish of the Church of Sweden.
When the responsibility for the keeping of population records was transferred from the Church of Sweden to the local tax authorities in July 1991 (see further below), it was decided that the parishes should take care of population records made before that date until these old records have been transferred to the State archives (section 10 of the Act on Promulgation of the Population Registration Act; Lagen om införande av folkbokförings-lagen, 1991:481). It was estimated that it would take up to twenty years before all old records had been so transferred.
The Church Act (Kyrkolagen, 1992:300) also specifically stipulated that a parish may, inter alia, use its financial means to acquire and maintain church buildings and other ecclesiastical property.
At the material time, a church tax was collected together with the ordinary municipal tax. Chapter 21, section 1 of the Church Act referred in this respect to the provisions of the Municipal Tax Act (Kommunalskatte-lagen, 1928:370). The rate was determined by the local parish council which, under the transitional provisions of the 1974 Constitution (Regeringsformen), had a status similar to that of the municipalities, including the right of taxation. This system had a long tradition, based on the fact that the Lutheran Church of Sweden is the established church. In 1990 the rates applied by the parishes varied between 0.56 and 2.64 per cent of the taxpayer's taxable income. The lowest rates were applied by the parishes of Stockholm where it is the municipality – and not the parishes – that has the responsibility for the burial administration (cf. Svenska kyrkans ekonomi, Statskontoret 1991:12, p. 9, a report on the economy of the Church of Sweden made by the National Agency for Administrative Development).
The Dissenter Tax Act stipulated that a person who was not a member of the Church of Sweden should pay a reduced church tax, the so-called dissenter tax. The reduction was motivated by the fact that non-members, referred to as dissenters, should pay the share of the tax that corresponded to the costs relating to the civil, i.e. non-religious, activities of the parish. The dissenter tax, like the church tax, was collected by the local tax authority and forwarded to the relevant parish.
Originally, the dissenter tax amounted to 60 per cent of the ordinary church tax. In 1974 it was reduced to 30 per cent of what the members of the Church of Sweden had to pay. The rationale behind this change was that the share of the costs for the civil tasks performed by the Church – the keeping of population records and the maintenance of churchyards and public burial-grounds – amounted on average to approximately 30 per cent of the Church's total costs (cf. Government Bill 1973:184, pp. 3-5).
On 1 July 1991 the responsibility for the keeping of population records was transferred to the local tax authorities. With effect as from 1993, the dissenter tax was consequently further decreased, this time to 25 per cent of the amount paid by the members of the Church of Sweden. It was considered that this percentage corresponded to the average costs of the parishes for the burial of the deceased (cf. Government Bill 1991/92:100, appendix 8, p. 141). Reference was made to the above-mentioned report on the economy of the Church of Sweden, according to which 1.25 billion SEK, or about 24 per cent of the Church's total costs, related to the burial of the deceased.
Under Chapter 42 of the Church Act the tax revenue of the different parishes was to a certain extent equalised through payments to and subsidies from the so-called Church Fund. Poor parishes received a general equalisation subsidy which was not ear-marked for any particular purpose. They could also be granted extra subsidies for specific purposes.
On 1 January 2000 the relations between the Swedish State and the Church of Sweden were changed, involving in practice a separation between the State and the Church. The Chuch Act and the Dissenter Tax Act were abolished.
The parishes' right of taxation, previously regulated in the Church Act and the Municipal Tax Act, was replaced with an obligation, laid down in section 7 of the new Act on the Swedish Church (Lagen om svenska kyrkan, 1998:1591), on persons belonging to the Church to pay a church fee.
According to the new chapter 9 of the Burial Act, every person who is registered as resident in Sweden has to pay a burial fee to defray the costs of the burial of the deceased (section 1). The fee is based on the taxpayer's taxable income (section 3) and is paid to the organ – parish or municipality – responsible for burials at the place where the individual is registered (section 2 § 1). In the municipalities where the local parishes are responsible for burials, the fee of the members of the Church of Sweden is to be included in the church fee (section 2 § 2). According to the Burial Fee Ordinance (Förordningen om begravningsavgift, 1999:729), the burial fee of non-members is fixed by the National Judicial Board for Public Lands and Funds (Kammarkollegiet) following a proposal by the Church of Sweden. The Church of Sweden and the municipalities responsible for burials are obliged to provide the tax authorities and – in the case of the Church – the National Judicial Board with the information needed to calculate and collect the fees. Under the new chapter 10 of the Burial Act, the relevant County Administrative Board supervises the parishes' burial administration in respect of persons who are not members of the Church of Sweden.
As the parishes continue to be responsible for the care and maintenance of church buildings and other ecclesiastical property of historic value, the Church of Sweden is to receive certain financial compensation from the State for the performance of this task.


ITEMID: 001-59432
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF DI DONATO AND OTHERS v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. The applicants were born respectively in 1937, 1941, 1949 and 1956 and are currently residing in Benevento. The first applicant is a professor, the second one is an accountant, the third one is a lawyer and the fourth one is a doctor.
8. In 1990 and 1991 the applicants were members of the Benevento Town Council (“giunta municipale di Benevento”). On 5 February 1993 the Benevento Public Prosecutor's Office informed the applicants that criminal proceedings had been instituted against them for abuse of power and misconduct in office.
9. On 17 April and 29 November 1993 and 31 May 1994, the Benevento Public Prosecutor requested the investigating judge to prolong the maximum period for the duration of the investigations.
10. On 26 January 1995 the Benevento Public Prosecutor's Office requested that the applicants and twenty-four other persons be committed for trial on the above-mentioned charges. The preliminary hearing, scheduled for 22 March 1995, was adjourned on four occasions because the lawyers of the Benevento Bar Association were on strike and eventually took place on 22 September 1995. On the latter date and on 25 September 1995 some of the accused were examined. The proceedings were adjourned until 6 October 1995.
11. After two hearings, on 1 December 1995, the investigating judge ordered a stay of proceedings pending a Constitutional Court judgment concerning a procedural issue which he considered to be relevant to the present case. In a judgment of 26 June 1996, filed with the registry on 3 July 1996, the Constitutional Court declared that this issue was manifestly ill-founded.
12. On 9 January 1997 the case was assigned to another investigating judge. The preliminary hearing was scheduled for 1 April 1997. On 18 April 1997 the parties presented their final submissions.
13. In a judgment of the same day, filed with the registry on 3 May 1997, the Benevento investigating judge decided to drop all the charges against the applicants. This decision became final on 3 June 1997.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72298
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF YATIR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 4. The applicant was born in 1958 and lives in Mersin.
5. The General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a State body responsible, inter alia, for motorway construction, expropriated four plots of land belonging to the applicant in İçel in order to build a motorway. A committee of experts assessed the value of the land and the sum so fixed was paid to her when the expropriation took place.
6. Following the applicant’s request for increased compensation, on 31 December 1993 the Mersin Civil Court of First Instance awarded her additional compensation of 238,172,000 Turkish liras (TRL) (approximately 14,341 euros (EUR)), plus interest at the statutory rate applicable at the date of the court’s decision, running from 22 June 1993.
7. On 15 December 1997 the Court of Cassation upheld the judgment of 31 December 1993.
8. On 21 April 1998 the administration paid the applicant TRL 651,598,000 (approximately EUR 2,391) in additional compensation, together with interest.
9. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25).


ITEMID: 001-59625
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF ELIA SRL v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Just satisfaction reserved
JUDGES: Christos Rozakis
TEXT: 8. Since 1967 the applicant company has owned approximately 65,000 square metres of land in the municipality of Pomezia, entered in the Land Register as folio 11, parcel 66. In 1963 the Pomezia District Council had given its approval for a building project to be carried out on the land.
9. On 29 December 1967 the Pomezia District Council resolved to adopt a general development plan (piano regolatore generale – “GDP”).
10. On 20 November 1974 the Lazio Regional Council approved the GDP for Pomezia, which set aside the applicant company’s land for the creation of a public park (parco pubblico) and, consequently, imposed an absolute prohibition on building on the land with a view to its expropriation.
11. Pursuant to section 2 of Law no. 1187/1968, the prohibition on building imposed by the GDP lapsed in 1979, no detailed development plan having been adopted in the intervening five years.
12. Despite the fact that the prohibition on building had lapsed, the applicant company’s land did not revert to its original use.
13. Pending a decision by the Pomezia District Council on its future use, the land was subject to the regulations in section 4 of Law no. 10/1977, a provision which the courts had held to apply in situations of that kind (see paragraphs 38-40 below), and, from 1990, to the regulations in Law no. 86 of the Lazio Region.
14. The applicant company’s land was consequently affected by the building restrictions deriving from the application of these laws.
15. On 12 March 1987 the applicant company asked the Pomezia District Council to determine the use to which the land was to be put. No action was taken on this request.
16. In view of the District Council’s failure to reply, which amounted to a refusal, the applicant company appealed to the Regional Administrative Court (“the RAC”). It argued, firstly, that the District Council was under an obligation to determine the intended use of the land and that its inaction was unlawful. It also sought to have the land designated as building land by the authorities.
17. In a decision of 16 October 1989 the Lazio RAC allowed the applicant company’s appeal in so far as it acknowledged that the Pomezia District Council’s inaction was unlawful.
18. The court held that the prohibition on building imposed in 1974 had ceased to be effective after five years, pursuant to Law no. 1187/1968, because the Pomezia District Council had not adopted a detailed development plan. Since then, the applicant company’s land had been subject to the regulations in Law no. 10/1977. The court considered, however, that the building restrictions deriving from the application of that Law could not take the place of an actual decision by the administrative authorities as to the intended use of the land; the authorities were consequently under an obligation to revise the land-use plan (ricostituzione della disciplina urbanistica), and their inaction was unlawful. However, the District Council remained entirely at liberty to determine the use to which the land in issue should be put; the RAC was not empowered to direct that the land should be given a particular designation.
19. In conclusion, the RAC ordered the administrative authorities to give a fresh decision as to the intended use of the applicant company’s land.
20. The Pomezia District Council appealed against that decision.
21. In a decision of 28 February 1992 the Consiglio di Stato dismissed the Pomezia District Council’s appeal and upheld the impugned decision.
22. On 10 September 1992, in view of the failure of the Pomezia District Council to comply with the Consiglio di Stato’s judgment, the applicant company requested the District Council to adopt a decision on the land. It also proposed a solution whereby if the District Council designated 15,000 square metres as building land, the applicant company would assign the rest of the land to the municipality free of charge. No action was taken on this proposal.
23. In a decision of 25 October 1995 the Pomezia District Council resolved to adopt a detailed development plan and again imposed an absolute prohibition on building on the applicant company’s land with a view to its expropriation. The District Council set the land aside for public use.
24. The applicant company appealed against that decision to the regional committee for supervision of measures taken by municipal authorities (CORECO), seeking to have the District Council’s decision overturned. It argued that the indications given as to the intended use of the land were too vague and that the conditions for renewing the prohibition on building, such as that of public interest, were not satisfied. The outcome of the appeal is not known.
25. It appears from the expert opinion produced by the applicant company that the detailed development plan imposing a prohibition on building on the land was adopted on 22 March 1999.
26. Article 42 §§ 2 and 3 of the Italian Constitution provides: “Private ownership shall be guaranteed and recognised by the law, which shall determine the manner by which it may be acquired and enjoyed, and its limits, in order to safeguard its social function and to make it accessible to all. Private property may be expropriated in cases provided for by law, and subject to payment of compensation, on grounds of public interest.”
The Town Planning Act (Law no. 1150/1942, as amended) lays down rules governing town planning and confers on municipal authorities the power to adopt development plans, which must cover the entire territory of the municipality.
27. The GDP is valid indefinitely. The procedure for adopting a GDP begins with a resolution (delibera di adozione) by the municipal council, followed by a period during which all decisions on applications for planning permission that might conflict with the implementation of the GDP are deferred (Law no. 1902/1952, as amended). Approval of the GDP is the responsibility of the regional authorities (Article 1 of Presidential Decree no. 8/1972 and Articles 79 and 80 of Presidential Decree no. 616/1977), having previously been given by decree of the Italian President. Once the GDP has been approved, it is published in the Official Gazette (Gazzetta Ufficiale) and deposited at the town hall.
28. Where a GDP contains precise details of land use, it may be implemented without further formalities; frequently, however, an additional measure is required. The measure may be initiated by the public authorities, as in the case of a detailed development plan (piano particolareggiato), which, by contrast, is valid for a specified period only. Following the adoption of the detailed plan (which is equivalent to a declaration that land is required for public purposes), the authorities have a strict time-limit (not exceeding ten years, as provided in section 16 of the Town Planning Act) for carrying out any expropriations and, in any event, implementing the plan, failing which it ceases to be effective. Where the GDP requires a detailed development plan for its implementation, it is for the district council to adopt one. However, no strict time-limits are prescribed for the adoption of a detailed plan.
29. Restrictions on the right to dispose of property, such as a prohibition on building, are imposed when a development plan is adopted. A prohibition on building may be imposed with a view to expropriation (vincolo preordinato all’esproprio) where the land in question has been set aside for public use or for the construction of buildings or public amenities (section 7(3) and (4) of the Town Planning Act).
30. The Town Planning Act, as originally worded, provided that restrictions imposed by a general development plan on the property rights of private persons, such as prohibitions on building, were valid for the same length of time as the general development plan, that is to say indefinitely; at the same time, no compensation was payable to the owners (section 40).
31. The Constitutional Court was asked to determine whether a prohibition which severely restricted the right of property – such as an expropriation order (vincolo espropriativo) or a prohibition on building (vincolo di inedificabilità) – and could be extended indefinitely without any form of compensation was compatible with the right of property.
32. In judgments delivered between 1966 and 1968 (see, in particular, judgment no. 6/1966 and judgment no. 55 of 29 May 1968) the Constitutional Court reached a negative conclusion and declared the Town Planning Act unconstitutional inasmuch as it provided for the indefinite extension of severe restrictions on the right of property, such as a prohibition on building or a prohibition with a view to expropriation, without any compensation being payable.
33. The Constitutional Court pointed out that restrictions could be imposed by law on the property rights of private persons, provided that they did not render those rights devoid of any substance. Furthermore, the right to build was to be seen as an inherent aspect of the right of property and could be restricted only on specific and tangible public-interest grounds. In the event of expropriation or of restrictions of indefinite duration affecting the very substance of the right of property (such as a prohibition on building), the owner was entitled to compensation. However, no compensation was payable where a prohibition on building was imposed for a limited period only.
34. In the light of those judgments, in which the Constitutional Court laid down the principles applicable where severe restrictions were imposed on the right of property, the legislature had two alternatives: to opt for prohibitions of limited duration without compensation, or to opt for prohibitions of indefinite duration with immediate payment of compensation.
35. The Italian parliament responded to the judgments by choosing the former option and enacting, on 19 November 1968, Law no. 1187/1968 amending the Town Planning Act. By section 2(1) of the Law, when adopting a general development plan, local authorities may impose prohibitions with a view to expropriation and general prohibitions on building in respect of land owned by private persons. However, such restrictions cease to be effective after five years if the land has not been expropriated or if no measures have been taken to implement the general development plan, such as the adoption of a detailed development plan.
36. Section 2(2) of Law no. 1187/1968 also provided for a five-year extension, by force of law, of the deadlines laid down in development plans approved before the Law’s entry into force. Laws nos. 756/1973 and 696/1975 and Legislative Decree no. 781 of 26 November 1976 extended those deadlines until the entry into force of Law no. 10/1977 (provisions governing the right to build).
37. In judgment no. 92/1982 the Constitutional Court clarified the scope of Law no. 10/1977, stating that, even after the Law’s entry into force, the right to build remained an inherent aspect of the right of property. As regards prohibitions on building, the court held that they were still subject to the provisions of Law no. 1187/1968; that is to say, their validity could not extend beyond five years if no detailed development plan was adopted.
38. According to legal precedent, where a prohibition on building lapses pursuant to section 2(1) of Law no. 1187/1968 at the end of the five-year period, the land concerned does not automatically revert to the use for which it was originally intended and is not automatically assigned the use for which the adjacent land is intended. In order to determine the intended use of the land, a positive measure such as a detailed development plan is required on the part of the administrative authorities.
Pending such a measure, the land in question is regarded, according to legal precedent, as being subject to the regulations in section 4 of Law no. 10/1977, which apply to land in municipalities that have not adopted general development plans (see the case-law of the Consiglio di Stato, in particular judgments nos. 7/1984 and 10/1984 of the full court).
By section 4 of Law no. 10/1977, planning permission may be granted when certain conditions are satisfied, and only if the land is situated away from a built-up area and the volume of the projected building is very small. If the land is situated within a built-up area, no new building work is allowed.
39. The Lazio Region incorporated the case-law referred to above into Law no. 86 of 24 November 1990, which provides explicitly for an absolute prohibition on building where the intended use of land situated within a built-up area has not been determined.
40. When a prohibition on building lapses, it is for the municipal council to determine promptly the use of the land concerned; however, no time-limits are laid down.
41. Inaction on the part of the authorities may form a basis for a complaint to the administrative courts (see the judgment of the Consiglio di Stato, Section IV, 20 May 1996, no. 664). The administrative courts may order the municipal authorities to determine the use to which the land is to be put, although the courts are not empowered to take such a decision in place of the relevant authorities. In judgment no. 67/1990, which concerned an expropriation case in which the authorities were accused of inaction, the Constitutional Court held that the remedy by which inaction on the part of the authorities could be challenged in the administrative court was inoperative and thus of limited effectiveness (defatigante e non conclusivo con conseguente scarsa efficacia).
42. The Constitutional Court has been called upon to determine whether subjecting land to the regulations in section 4 of Law no. 10/1977 is compatible with the Constitution, seeing that those regulations give rise to an indefinite prohibition on building – on account of the authorities’ failure to determine the future use of the land (for example, by adopting a development plan) – and make no provision for compensation. In judgment no. 185/1993 the Constitutional Court declared the question inadmissible, holding that the legislature alone was responsible for taking swift and appropriate action to remedy the situation.
43. In judgment no. 575/1989 the Constitutional Court held that, when the five-year period laid down in section 2 of Law no. 1187/1968 expired and a new development plan was necessary, the local authorities were entitled to extend a prohibition on building on public-interest grounds. This judgment therefore acknowledged the right of the administrative authorities to renew a prohibition that had lapsed.
44. However, their power to extend such a prohibition cannot give rise to an indefinite prohibition on building without any form of compensation. Where the prohibition renders the right of property devoid of any substance on account of the considerable uncertainty created by its indefinite extension or its renewal, the owner should be awarded compensation (see also judgments nos. 186/1993 and 344/1995 of the Constitutional Court, and judgment no. 159/1994 of the Consiglio di Stato (Section IV)).
45. The Court of Cassation has held that where restrictions are imposed on the right of property with a view to expropriation, even in the absence of any compensation, the owner of the land has only a legitimate interest (interesse legittimo) – that is to say, an individual position indirectly protected as far as is consistent with the public interest – and not a full and absolute right (diritto soggettivo) to compensation (see the following judgments of the Court of Cassation, sitting as a full court: no. 11308 of 28 October 1995; no. 11257 of 15 October 1992; and no. 3987 of 10 June 1983).
46. Consequently, where the municipal authorities have decided to impose a prohibition on building, the owner of the land in question may apply to the administrative courts for a ruling as to whether the authorities, in exercising their discretionary power, have complied with the statutory regulations and have not overstepped the margin of appreciation they enjoy in assessing the balance between public and private interests. However, even if the administrative courts overturn a prohibition on building, no compensation is payable where the prohibition was imposed for a specified period, particularly if it is subject to the five-year time-limit laid down in section 2 of Law no. 1187/1968.
47. In judgment no. 179 of 12-20 May 1999 the Constitutional Court, reiterating the principles established in its case-law (see the judgments cited above in paragraph 32, and also nos. 82/1982, 575/1989 and 344/1995), declared unconstitutional the lack of statutory provision for compensation in cases where an authority for expropriation or a prohibition on building had been renewed by the administrative authorities with the result that the right of property was severely affected. Restrictions on the right of property were problematic where a prohibition had been renewed or extended indefinitely or had been renewed several times for a specified period.
Leaving intact the right of the authorities to renew prohibitions on building, the Constitutional Court held that there was a need for legislation providing for a form of compensation and specifying the criteria and arrangements for its award.
It did not rule out the possibility that a court dealing with an application for compensation before such legislation had been enacted might derive criteria for awarding compensation, where appropriate, from the existing legal system.
The Constitutional Court also pointed out that the requirement to pay compensation applied only to the time after the initial five years of the prohibition (the exemption period).


ITEMID: 001-92721
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KHUMAYDOV AND KHUMAYDOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 7. The applicants were born in 1961 and 1995 respectively and live in the village of Chervlennaya, Shelkovskoy District, in the Chechen Republic.
8. The first applicant was married to Ms Khava Aduyevna Magomadova, born in 1956. They are the parents of the second applicant. At the material time Khava Magomadova worked as a manager at Chervlennaya railway station.
9. The applicants’ family lived at 10 Karl Marx Street in Chervlennaya village. On the morning of 16 December 2002 the applicants’ neighbours noticed a white Gazel vehicle parked not far from the applicants’ house.
10. At 7.25 a.m. Ms B., Khava Magomadova’s colleague, saw two UAZ-469 vehicles parked near the special task force checkpoint located in the railway station and three armed men in camouflage uniforms climbing into them. Then the vehicles drove away towards Karl Marx Street.
11. At about 7.30 a.m. Khava Magomadova went to work. According to her neighbours, as soon as she left the house the white Gazel that had been parked near her house drove off. When Khava Magomadova turned from Karl Marx Street into Zavodskaya Street it followed her.
12. Mr D., a railway station employee, was behind Khava Magomadova on his way to work and saw her and the Gazel turning into Zavodskaya Street. A few moments later, when he reached Zavodskaya Street, he saw the Gazel swaying slightly and no trace of Khava Magomadova.
13. The applicants’ neighbour, Ms S.B., saw a blue and a khaki UAZ469 vehicle with aerials on their roofs moving along Zavodskaya Street towards Lenin Street.
14. Khava Magomadova has not been seen since then.
15. At about 7.40 a.m. on 16 December 2002 Khava Magomadova left her house. She has not been seen since then.
16. Khava Magomadova had not arrived at her office by 8 a.m. Her colleagues began to worry and went to her house. The first applicant told them that his wife had left for work. The colleagues and the first applicant followed Khava Magomadova’s footprints, visible on the fresh layer of snow. The footprints stopped at the crossroads of Frunze and Zavodskaya Streets, where Mr D. had seen the Gazel.
17. The first applicant went to the police station to report his wife’s disappearance. Police officers told him that they could not deal promptly with his complaint as they were having a weekly meeting. However, they assigned an investigator to deal with the matter.
18. Later the same day investigators visited the scene of the incident and photographed tyre prints.
19. The first applicant complained about his wife’s disappearance to various official bodies, including the Russian President, the Russian State Duma, the Chechen administration and the Chechen State Council. The majority of his complaints were forwarded to prosecutors’ offices at different levels.
20. On an unspecified date the State authorities refused to institute criminal proceedings related to Khava Magomadova’s disappearance.
21. On 12 February 2003 the prosecutor’s office of the Shelkovskoy District (“the district prosecutor’s office”) informed the first applicant that they had quashed the decision refusing to investigate his wife’s disappearance and instituted criminal proceedings under Article 126 § 1 of the Russian Criminal Code (“kidnapping”). The case file was assigned the number 52007.
22. On 12 April 2003 the district prosecutor’s office suspended the investigation in case no. 52007 for failure to identify those responsible.
23. On 18 April 2003 the first applicant complained about his wife’s kidnapping to the military prosecutor’s office of military unit no. 20111 (“the unit prosecutor’s office”).
24. On 25 April 2003 the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”) forwarded the first applicant’s complaint to the unit prosecutor’s office.
25. On 30 April 2003 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaint to the district prosecutor’s office.
26. On 16 May 2003 the unit prosecutor’s office informed the first applicant that they had no information either on Khava Magomadova’s whereabouts or on the implication of any military personnel in her kidnapping.
27. On 28 May 2003 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaint to the district prosecutor’s office.
28. On 2 June 2003 the district prosecutor’s office resumed the investigation in case no. 52007. On 5 June 2003 they notified the first applicant accordingly and commented that investigative measures were being taken to solve the crime. They also noted that the law enforcement agencies of the Chechen Republic had not carried out any special operations for Khava Magomadova’s arrest and that her dead body had not been discovered.
29. On 11 June 2003 the Main Military Prosecutor’s Office forwarded to the UGA prosecutor’s office the first applicant’s complaint about the disappearance of Khava Magomadova who “had been abducted by federal military servicemen in December 2002”.
30. On 19 June 2003 the district prosecutor’s office informed the first applicant that the investigation in case no. 52007 had been suspended and then resumed.
31. On 20 June 2003 the Department of the Federal Security Service of the Chechen Republic (“the Chechen FSB”) informed the first applicant that they had not arrested Khava Magomadova as there had been no legal grounds for it.
32. On 3 July 2003 the prosecutor’s office of the Chechen Republic informed the first applicant of the progress in the investigation in case no. 52007. They listed investigative measures taken, such as witnesses’ interviews and requests for information sent to law-enforcement agencies and to penitentiary institutions, and commented that those measures had been futile but that investigators continued to take requisite steps to solve the crime.
33. On 9 July 2003 the investigation in case no. 52007 was suspended.
34. On 14 July 2003 the Temporary Operational Group of the Russian Ministry of the Interior informed the first applicant that they had not carried out any special operations in relation to Khava Magomadova in the village of Chervlennaya between 16 and 22 December 2002.
35. On 14 and 24 July 2003 the unit prosecutor’s office informed the first applicant that they had no information on implication of the United Group Alignment servicemen in his wife’s kidnapping.
36. On 24 July 2003 the Ministry of the Interior of the Chechen Republic forwarded the first applicant’s complaint to the department of the interior of the Shelkovskoy District (“ROVD”).
37. On 5 August 2003 the UGA prosecutor’s office informed the first applicant that the inquiry carried out by the unit prosecutor’s office had been fruitless and advised that he request further information related to the search for his wife from the district prosecutor’s office.
38. On 11 August 2003 the ROVD informed the first applicant that they were taking measures to solve Khava Magomadova’s kidnapping.
39. On 15 August 2003 the Ministry of the Interior of the Chechen Republic informed the first applicant of measures taken to solve his wife’s kidnapping and noted that the investigation was under way. On 18 September 2003 the prosecutor’s office of the Chechen Republic sent a similar letter to the first applicant.
40. On 6 October 2003 the unit prosecutor’s office informed the first applicant that an inquiry into his wife’s disappearance had not established any involvement by military personnel.
41. On 10 October 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that Khava Magomadova’s whereabouts had not been established and that the district prosecutor’s office had been instructed to search for her more vigorously. On the same date the ROVD informed the first applicant that they were taking requisite measures to establish his wife’s whereabouts.
42. On 13 November 2003 the district prosecutor’s office informed the Chair of the State Council of the Chechen Republic that they had quashed the decision of 9 July 2003 and resumed the investigation in case no. 52007.
43. On 26 November 2003 the Russian Ministry of the Interior informed the first applicant that various law enforcement agencies were actively searching for his wife.
44. In reply to one of the first applicant’s recurrent complaints the UGA prosecutor’s office informed him on 2 December 2003 that they had no new information concerning Khava Magomadova’s kidnapping.
45. On 15 December 2003 the district prosecutor’s office informed the first applicant that they had quashed the decision of 9 June 2003 and resumed the investigation on 12 November 2003.
46. On 16 December 2003 and 23 January and 21 April 2004 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaints to the district prosecutor’s office.
47. On 14 January 2004 the investigation in case no. 52007 was suspended for failure to identify those responsible.
48. On 15 April 2004 the Shelkovskoy District Court of the Chechen Republic declared Khava Magomadova missing as from 16 December 2002.
49. On 26 May 2004 the Chechen FSB informed the first applicant that they had no information on Khava Magomadova’s whereabouts.
50. On 9 August 2004 the UGA prosecutor’s office forwarded the first applicant’s complaint to the unit prosecutor’s office.
51. On 24 August 2004 the district prosecutor’s office replied to the first applicant’s complaint that they had already carried out a thorough inquiry into the matters complained of. They also noted that, although the investigation had been suspended on 14 January 2004, measures were being taken to solve the crime.
52. On 7 October 2004 the first applicant requested the Russian Prosecutor General, the Chair of the National Public Commission and the Plenipotentiary Representative of the Russian President in the Southern Federal Circuit to help him to find his wife.
53. On 20 December 2004 the prosecutor’s office of the Chechen Republic informed the first applicant that investigative measures were being taken to establish Khava Magomadova’s whereabouts.
54. On 24 December 2004 the military commander of the Chechen Republic ordered that the military commander’s office of the Shelkovskoy District carry out an inquiry into Khava Magomadova’s disappearance.
55. On 25 February and 22 March 2005 the SRJI, acting on the first applicant’s behalf, requested information from the district prosecutor’s office on progress in the investigation in case no. 52007.
56. On 6 April 2005 the prosecutor’s office of military unit no. 20102 requested information on special operations carried out on 16 December 2002 from a number of State officials.
57. On 9 April 2005 the military commander of the Shelkovskiy District ordered the ROVD to take measures to establish Khava Magomadova’s whereabouts.
58. On 12 April 2005 the prosecutor’s office of military unit no. 20102 informed the first applicant that law enforcement agencies had not carried out any special operations in the Shelkovskiy District on 16 December 2002 and had not arrested Khava Magomadova.
59. On 2 June 2005 the ROVD informed the first applicant that measures were being taken to solve his wife’s kidnapping.
60. On 21 October 2005 the prosecutor’s office of the Chechen Republic replied to the SRJI’s letter of 4 October 2005 stating that the investigation of Khava Magomadova’s kidnapping was underway and that the first applicant had been granted victim status.
61. On 16 December 2002 the first applicant reported his wife’s disappearance to the department of the interior of the Shelkovskiy District (“ROVD”).
62. On the same day an investigator of the ROVD inspected the Magomadovs’ house and the surrounding area but found no items of interest.
63. On 25 December 2002 the investigator of the ROVD refused to institute criminal proceedings related to Khava Magomadova’s disappearance for lack of evidence of a crime.
64. On 12 February 2003 the district prosecutor’s office quashed the decision of 25 December 2002 and instituted an investigation into Khava Magomadova’s kidnapping under Article 126 § 1 of the Russian Criminal Code. The case file was assigned the number 52007.
65. On 19 February 2003 the first applicant was granted victim status and questioned. He stated that at about 7.40 a.m. on 16 December 2002 his wife had left for work. She had some work-related documents with her. At 9.30 a.m. Ms B. had come to his house searching for Khava Magomadova who had not arrived at work, although it took her only five minutes to walk there. The first applicant and Ms B. had gone to the railway station but his wife had not been there. The first applicant had reported Khava Magomadova’s disappearance to the police station. Later his neighbours had told him that they had seen a white Gazel vehicle with a twisted front number plate at the spot where Khava Magomadova had been last seen. Two men of dark complexion had been sitting inside the Gazel. Villagers had also seen a light-blue UAZ vehicle with a big aerial on its top parked near the railway station that had driven away with the Gazel and two other UAZ vehicles. The first applicant himself had not seen any of those vehicles.
66. On 19 February 2003 the district prosecutor’s office questioned two neighbours of the applicants, Ms L. and Ms G. They both stated that at about 7.30 a.m. on 16 December 2002 they had noticed a white Gazel vehicle parked near Ms L.’s house with two men inside it; Ms L. added that at some point she had heard the Gazel leaving.
67. On 5 March 2003 the district prosecutor’s office questioned Mr M. as a witness who stated that at 7.40 a.m. on 16 December 2002 he had seen Khava Magomadova turning into Zavodskaya Street. A few moments later he had turned into that street as well but had not seen the woman. A grey UAZ vehicle with a red cross on its back door had been parked near the railway station; its windows had been dirty so Mr M. had not seen who was inside it. The UAZ vehicle had driven off towards the centre of Chervlennaya village.
68. On 5 March 2003 Mr D. was questioned as a witness and submitted that at 7.35 a.m. he had spotted Khava Magomadova walking about 100 metres ahead of him. A new white Gazel vehicle had been parked some 50 metres from the applicants’ house; two men had been sitting in it, one of whom was wearing a military-style pea coat. At some point the Gazel had started moving and had turned right in the direction in which Khava Magomadova had gone. Mr D. had turned right as well but saw no-one on the street. The Gazel which had been stationary 2.5 metres from him had started moving.
69. In 2003 the district prosecutor’s office questioned Ms B., Ms G., Ms D., Ms M., Mr T. and Mr A., the applicants’ fellow villagers. They stated that Khava Magomadova had not been in conflict with anyone and that they had learned of her disappearance on 16 December 2002.
70. On 23 June and 29 November 2003 the first applicant was again questioned. He stated that he had learned from neighbours that the Gazel and UAZ vehicles had arrived from the town of Goryachevodsk. Some of his fellow villagers had told him that Khava Magomadova had been taken away by law-enforcement officers who had produced their badges, but those persons were unwilling to make official depositions out of fear for their lives and the first applicant could not name them.
71. On several occasions the investigators requested the Chechen FSB, military commanders of different districts of the Chechen Republic and district departments of the interior to carry out investigative measures related to Khava Magomadova’s disappearance and to submit information on whether any special operations had taken place in the village of Chervlennaya on 16 December 2002. According to the replies received, no such operations had been conducted and there was no information on Khava Magomadova’s arrest.
72. The investigators sent a request to a commander of the special unit of the Ministry of the Interior of Chuvashiya who, while on mission in the Chechen Republic, had been duty at the checkpoint over the Terek River on 16 December 2002.
73. On an unspecified date in March 2003 the commander of the special unit of the Ministry of the Interior of Chuvashiya informed the district prosecutor’s office that no Gazel vehicle had appeared in the registration log for vehicles passing checkpoint KPP-162 over the Terek River.
74. Police officers of the special unit of the Ministry of the Interior of Chuvashiya who had been on duty at checkpoint KPP-162 on 16 December 2002 were questioned as witnesses and stated that they had no information on Khava Magomadova’s disappearance or Gazel and UAZ vehicles.
75. The investigation into Khava Magomadova’s kidnapping remains pending.
76. Despite specific requests by the Court the Government refused to disclose the entire investigation file in case no. 52007. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. The Government provided copies of the following documents: the decision to open the investigation of 12 February 2003, the decision of 19 February 2003 to grant the first applicant victim status, transcripts of the first applicant’s interviews of 19 February, 23 June and 19 November 2003, transcripts of interviews of Ms L., Ms G., Mr M., Mr D., Ms B., Ms M. and Ms S.B., and the report of March 2003 by the commander of the special unit of the Ministry of the Interior of Chuvashiya. They requested the Court to treat the documents submitted as confidential pursuant to Rule 33 of the Rules of Court.
77. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, §§ 67-69, 10 May 2007.
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 2