ITEMID: 001-60021
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF LANZ v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;Violation of Art. 6-3-b and 6-3-c;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Christos Rozakis
TEXT: 10. On 25 October 1991 the Investigating Judge at the Graz Regional Court (Landesgericht) issued a warrant of arrest against the applicant on suspicion of having committed fraud and falsification of documents. The suspicion related to the applicant’s business activities, and in particular two real estate investment projects. The Investigating Judge issued a search warrant ordering a house search at the premises of the SDBV company, a private company (Gesellschaft mit beschränkter Haftung) for which the applicant acted as general manager. The seizure of documents relating to the real estate investment projects was also ordered. That same day the warrant, search and seizure were executed, the latter in the presence of the Investigating Judge. Later in the day the Investigating Judge questioned the applicant and ordered his detention on remand as he found that there existed a danger of the applicant absconding and collusion. As regards the risk of collusion, the Investigating Judge found that there was the danger that the applicant would attempt to influence the employees of the SDBV company and to remove documents which had not been found at the house search.
11. On 27 October 1991 the applicant requested his release from detention on remand.
12. On 6 November 1991 the Review Chamber (Ratskammer) of the Graz Regional Court, after an oral hearing in the presence of the applicant, his defence counsel and the Public Prosecutor, dismissed his request. The Review Chamber found that no danger of absconding existed. However, the danger of collusion continued to exist as the applicant might try to influence witnesses not yet heard and to remove any traces of the offence. There was also a danger of his committing further offences. On 20 November 1991 the applicant appealed. At an unspecified date also the Public Prosecutor appealed, arguing that detention on remand should also be based on the risk of the applicant absconding.
13. Meanwhile, on 11 November 1991, the Investigating Judge ordered that the applicant’s contacts with his defence counsel should take place under the surveillance of the court because of the existence of a danger of collusion. The Investigating Judge found that this measure was necessary because co-suspects were still at large, several witnesses had not yet been heard and there was a risk that the applicant could influence them. The Investigating Judge stated that the validity of this order would expire at the latest when the two-month statutory time-limit for detention on remand based on the risk of collusion would end. The applicant appealed against this decision. He submitted that he did not oppose this measure in principle, however, the measure constituted an unnecessary limitation on his defence rights and the Investigating Judge had failed to order this measure within 14 days as prescribed by law.
14. On 21 November 1991 the Review Chamber dismissed the applicant’s appeal against the Investigating Judge’s search warrant and the order for surveillance of the applicant’s contacts with his defence counsel. As regards the complaint about the surveillance of the applicant’s contacts with counsel, the Review Chamber found the Investigating Judge’s decision to be correct. This order did not involve any criticism of counsel or any reproach of conduct contrary to law or the disciplinary rules of the members of the bar, but merely had the purpose of preventing any contact whatsoever with third persons in order not to endanger the success of the criminal investigation. The present case concerned the complicated business relations of the SDBV and several other companies managed by the applicant, and the flow of money between them. Further witnesses could only be identified after all the documents seized had been examined and the applicant was to be prevented from influencing them. Furthermore, the decision had been taken within the time limit prescribed by S. 193 § 3 of the Code of Criminal Procedure. The Review Chamber also found the applicant’s complaint that he did not have sufficient access to his case-file unfounded. The Investigating Judge had granted access to the file to the official receiver of the SDBV company and the applicant’s defence counsel, the latter also being given the possibility to make copies of the documents in the file. The applicant’s counsel visited him repeatedly and could have given him copies if he so wished. Moreover, when questioned by the Investigating Judge, the applicant was informed of the contents of the file and about the statements of witnesses already heard.
15. On 28 November 1991 the Graz Senior Public Prosecutor commented on the applicant’s appeal of 20 November 1991. These comments were not served on the applicant.
16. On 12 December 1991 the Graz Court of Appeal (Oberlandesgericht) dismissed the appeal lodged by the applicant but granted the Public Prosecutor’s appeal. It found that a serious suspicion existed against the applicant and referred to the details of the criminal investigation. There also existed a danger that the applicant would abscond.
17. On 15 January 1992 the Review Chamber, after having held an oral hearing, dismissed a further request of the applicant for release. On 13 February 1992 the Court of Appeal dismissed the applicant’s appeal. On 11 March 1992 the Review Chamber dismissed a further request for release by the applicant.
18. After his conviction on 21 June 1992, the applicant filed further requests for release from detention on remand. Such requests were refused by the Review Chamber on 3 February 1993 and 6 April 1993. Appeals were dismissed by the Court of Appeal on 18 February 1993 and 29 April 1993 respectively.
19. On 14 February 1992 the Graz Public Prosecutor filed a bill of indictment against the applicant charging him with aggravated fraud.
20. On 21 April 1992 the trial against the applicant started before the Graz Regional Court. It lasted until 21 June 1992. In the course of the trial the Regional Court heard 52 witnesses, some of them repeatedly on the applicant’s request. Furthermore 5 experts on book-keeping, building and construction matters, real estate assessment, medicine and psychiatry were heard. The applicant frequently requested that the trial be adjourned for lengthy periods and, towards the end of the trial, requested that the trial be repeated or that the case be remitted to the Investigating Judge. On 21 June 1992 the court convicted the applicant of aggravated fraud and sentenced him to four and a half years’ imprisonment. It also acquitted the applicant of an additional charge of fraud raised by the Public Prosecutor at the trial.
21. On 9 September 1992 the judgment of some 150 pages and the transcript of the trial of some 1400 pages were served on the parties.
22. On 1 October 1992 the Public Prosecutor filed a plea of nullity and appeal against that part of the sentence concerning the applicant’s acquittal. On 5 October 1992 the applicant filed a plea of nullity and appeal.
23. On 22 October 1992 the applicant commented on the plea of nullity lodged by the Public Prosecutor. Since he claimed that until the expiration of the time-limit for filing his plea of nullity the defence had had insufficient possibilities to inspect the file, the Supreme Court, on 24 December 1992, decided that the applicant should be granted a new time- limit for filing his plea of nullity and appeal.
24. On 19 February 1993 the applicant again filed a plea of nullity and an appeal against sentence. The writ repeated in substance the arguments raised earlier.
25. On 30 March 1993 the Graz Public Prosecutor withdrew the plea of nullity.
26. On 27 April 1993 the Procurator General (Generalprokurator) submitted the following comments on the applicant’s plea of nullity:
"In the view of the Procurator General the plea of nullity of the accused Bernhard Lanz can be dealt with under Section 285d of the Code of Criminal Procedure. The transmission of a decision is requested. The plea of nullity lodged by the Public Prosecutor’s Office has been withdrawn by the attached declaration of 30 March 1993."
27. On 9 June 1993 the Supreme Court, sitting in camera, rejected as inadmissible the applicant’s plea of nullity.
28. On an unspecified date, the Senior Public Prosecutor submitted written comments on the applicant’s appeal.
29. On 30 August 1993 the Graz Court of Appeal, after an oral hearing in which the applicant and his defence counsel participated, granted the Public Prosecutor’s appeal against the applicant’s sentence and increased it to five and a half years’ imprisonment. In weighing the mitigating and aggravating circumstances, the court found that a higher sentence was called for.
30. The following account of the relevant provisions of the Code of Criminal Procedure (Strafprozeßordnung) is based on the law in force until 1 January 1994.
31. According to S. 12 § 1 of the Code of Criminal Procedure, the Review Chamber at the First Instance Court supervises all measures taken by the Investigating Judge in the course of preliminary investigations.
32. According to S. 45 § 3 a person remanded in custody may meet his defence counsel in the absence of the Investigating Judge. However, if detention on remand has been ordered on the ground of a danger of collusion, the Investigating Judge may, during the first 14 days of the detention, be present when the remand prisoner meets his defence counsel. If due to specific circumstances a danger exists that contact with defence counsel may interfere with evidence, the Investigating Judge may order the extension of such surveillance until the bill of indictment is served. Surveillance of contact with defence counsel may only be exercised as long as the detention on remand is based on a danger of collusion (SS. 180 and 193 § 3).
33. Under S. 180 §§ 1 and 2, a person may be held in detention on remand if he is seriously suspected of having committed a criminal offence and if there is a risk of his absconding, of collusion, or that the person might commit further offences. According to S. 193, detention may not last more than two months where its sole justification is the risk of collusion; it may not last more than six months where one of the other grounds is relied upon. The Court of Appeal may, however, extend detention if so requested by the Investigating Judge or the Public Prosecutor, and if the difficulty or the scope of the investigation makes it necessary. In such cases the maximum duration of detention is three months where the measure is based on a risk of collusion alone, and one to two years if the term of imprisonment which the suspect risks is ten years or more, for the other grounds.
34. By virtue of SS. 194 and 195, it is open to the suspect to apply for release at any time. Such an application and any appeal against a decision ordering detention on remand must be examined by the Review Chamber at a private hearing in the presence of the accused or his defence counsel. According to S. 114, there is a further appeal against decisions of the Review Chamber to the Court of Appeal.
35. Under S. 285 (d) § 1 a plea of nullity may be rejected by the Supreme Court after deliberations in private if the court unanimously finds that the complaint should be dismissed as being manifestly ill-founded without any need for further deliberations.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-4
6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b


ITEMID: 001-22252
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: HENDRIKS v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicant, Christiaan Hendriks, is a Dutch national, who was born in 1951 and, at the time of the introduction of the application, was serving a prison sentence in the Netherlands. He is represented before the Court by Mr Hermsen, a lawyer practising in Bemmel.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 31 March 1993 the body of the applicant’s partner Ms G. was found on Belgian territory. As it appeared that she had been killed by strangulation, the Belgian authorities opened a criminal investigation.
On 2 April 1993 the applicant was arrested in Luxembourg, where he then resided. On 6 April 1993 he was extradited to Belgium, where he was placed in detention.
In the course of the criminal investigation in Belgium it appeared that the victim had not been killed in Belgium but in Luxembourg and that, therefore, the Belgian criminal courts were not competent to deal with the case. Consequently, the criminal proceedings against the applicant in Belgium were discontinued. On 16 December 1993 the Liège Court of Appeal ruled that the applicant could not be extradited to Luxembourg. On 17 May 1994, the Liège Court of Appeal ordered the applicant’s release from detention in Belgium.
At the beginning of 1996, the Belgian authorities transmitted the case-file on the criminal investigation against the applicant to the Netherlands Minister of Justice with the request to consider the possibility of taking criminal proceedings against the applicant in the Netherlands in relation to the killing of Ms G. The case-file was registered in March 1996 at the public prosecutor’s office in Arnhem and, in August 1996, a criminal investigation was opened in the Netherlands, during which new evidence against the applicant was found.
On 22 October 1996, the applicant was arrested in the Netherlands and placed in pre-trial detention and charged with homicide. On 11 February 1997, following a hearing held on 28 January 1997, the Arnhem Regional Court (Arrondissementsrechtbank) held that it was competent to deal with the case, convicted the applicant of homicide and sentenced him to seven years’ imprisonment. It rejected the argument raised by the defence that, given the time that had elapsed between the applicant’s arrest on 2 April 1993 and the hearing before the Regional Court, the proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention and that, therefore, the prosecution should be declared inadmissible. The Regional Court did, however, state that in the determination of the sentence it would take into account the time that had elapsed since the applicant’s arrest on 2 April 1993 as well as the time the applicant had spent in pre-trial detention in Belgium.
The applicant filed an appeal with the Arnhem Court of Appeal (Gerechtshof). On 17 July 1997, following a hearing held on 3 July 1997, the Court of Appeal rejected the appeal and upheld the judgment of 11 February 1997.
The applicant’s subsequent appeal in cassation – including his complaint that the prosecution should be declared inadmissible on the basis of the fact that the criminal proceedings against him had already started on 2 April 1993 and should thus be regarded as having lasted an unreasonably long time – was rejected by the Supreme Court (Hoge Raad) on 2 June 1998. As to the applicant’s complaint of the length of the criminal proceedings, the Supreme Court held that the relevant period for the Netherlands authorities started to run on 22 October 1996, when the applicant was arrested in the Netherlands and, on this basis, concluded that the criminal proceedings against the applicant in the Netherlands had not been unreasonably long.


ITEMID: 001-91464
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: KIKOLASHVILI v. GEORGIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicant, Ms Tamila Kikolashvili, is a Georgian national who was born in 1961 and lives in Tbilisi. She was represented before the Court by Mr M. Pataraia, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr M. Kekenadze, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked as a sales manager in a State shop. Following its privatisation on 20 November 1998, she was obliged to take unpaid leave. By an order of 15 January 2001, the administration of the shop (“the employer”) dismissed the applicant in view of the suppression of her post.
The applicant brought an action against the employer, requesting reinstatement in her post and recovery of the salary for the period of compulsory leave and unlawful dismissal. After a series of remittals of the case between various judicial instances, the Tbilisi Regional Court (“the Regional Court”) partly allowed her action on 31 May 2002. Acknowledging that the applicant had been dismissed without prior notice, in breach of Article 42(2) of the Labour Code, the court annulled the order of 15 January 2001 and awarded her the amount corresponding to the loss of salary. As to the reinstatement claim, it was dismissed due to the extinction of the post in question.
The judgment of 31 May 2002 was not appealed and became binding. On 21 October 2002 the respondent discharged the judgment debt in full.
On 3 January 2003 the applicant brought an action for non-pecuniary damage against the employer, claiming to have suffered distress and frustration on account of her unlawful dismissal. She demanded 500,000 Georgian laris (EUR 249,117) and, relying on her work record as a proof of unemployment, requested under Article 47 § 1 of the Code of Civil Procedure (“the CCP”) exemption from the State fee due for proceeding with that claim.
In a decision of 6 January 2003, the Krtsanisi-Mtatsminda District Court in Tbilisi (“the District Court”) refused the exemption sought, and ordered the applicant to pay the required fee by a fixed date, on pain of leaving her claim without consideration.
In reply, the applicant requested, on 4 February 2003, that the payment of the State fee be deferred until after examination of the case in accordance with Article 48 of the CCP. The District Court granted that request on 10 February 2003.
On 25 March 2003, the District Court, in view of the respondent party’
On 10 June 2003 the applicant appealed to the Regional Court, complaining that the lower court had applied the wrong law to her dispute. She did not however refer to another legal provision arguably providing for the right to claim non-pecuniary damage in her situation. Considering that the appellate proceedings concerned legal issues rather than factual matters, the applicant paid a State fee of GEL 30 (EUR 14).
In a decision of 26 June 2003, the Regional Court ordered the applicant to pay, in an allotted period, the outstanding part of the fee, GEL 4,970 (EUR 2,264), on pain of leaving her appeal without consideration.
On 11 July 2003 the applicant, re-submitting her work record as evidence, reiterated that she had been unemployed for the past five years, did not have any other source of revenue and requested an exemption under Article 47 § 1 of the CCP.
On 14 July 2003 the Regional Court decided to leave the applicant’s appeal without examination for non-compliance with its decision of 26 June 2003. The court considered that the exemption under Article 47 § 1 of the CCP could not be applied, since the applicant had failed to substantiate her allegedly difficult financial situation.
On 25 August 2003 the applicant lodged with the Regional Court an interlocutory appeal against the decision of 14 July 2003. She complained that no other official document, except for her work record, could have been submitted in support of her indigence.
On 29 September 2003 the Regional Court ordered the applicant to pay a State fee of GEL 5,000 (EUR 2,279) for the interlocutory proceedings. In reply, the applicant filed, on 24 October 2003, another request for exemption, attaching a certificate of unemployment issued by a municipal agency.
In a decision of 31 October 2003, the Regional Court dismissed the applicant’s request of 24 October 2003, reasoning that the unemployment certificate was insufficient to prove financial difficulties. The court allotted the applicant additional time to pay the fee for the interlocutory proceedings.
In a decision of 12 December 2003, the Regional Court rejected the applicant’s interlocutory appeal for non-compliance with its previous fee payment orders, and transmitted the case to the Supreme Court for a final decision.
On 5 March 2004 the Supreme Court upheld the decision of 12 December 2003. It stated that, since the lower court had not deemed it necessary to exempt the applicant from the State fee, and the latter had failed to abide by the payment orders, the interlocutory appeal could not be entertained. The proceedings were thus discontinued.
A reasoned copy of the Supreme Court’s decision of 5 March 2004 was communicated to the applicant on 1 April 2004.
As disclosed by the case file, the State fee imposed by the judgment of 25 March 2003 has not been paid by the applicant to date.
The provisions concerning the payment of court fees due for proceeding with civil claims, which include the State fee, were cited in paragraph 29 of the Court’s judgment in the case of FC Mretebi v. Georgia (no. 38736/04, 31 July 2007).
2. The Act of 29 April 1998 on State Fees, as it stood at the material time
The Act regulated the modalities of payment of State fees in various situations, including that of court proceedings relating to a civil claim.
Pursuant to section 6 § 3, the paid State fee should be returned to the payer in full or in part, in the event that the relevant court proceedings were discontinued or the claim left without consideration.
Article 413 § 1
“Non-pecuniary damage, which amount should be reasonable and equitable, can be claimed exclusively in the situations explicitly envisaged by law.”
The Civil Code did not provide for the right to claim non-pecuniary damage in employment disputes.
The Labour Code was the sole legislation regulating the rights and responsibilities of private employers and employees. It contained a mechanism for settling employment disputes in court.
Chapter XV of the Labour Code (Articles 194-216) specified the different types of pecuniary damage that, subject to certain conditions, a claimant could request in court, together with the claim for reinstatement to a post – i.e. the right to be compensated for a salary loss caused by unlawful dismissal or downgrading. However, neither that Chapter nor any other provision of the Labour Code provided, at least on arguable grounds, for a situation of a dismissed or otherwise dissatisfied person claiming non-pecuniary damage.


ITEMID: 001-79200
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: CERVANOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs Margaréta Cervanová, is a Slovakian national who was born in 1933 and lives in Nové Zámky. She was represented before the Court by Mrs I. Rajtáková, a lawyer practising in Košice.
In 1976 the applicant’s daughter, a university student, was raped and murdered.
On 22 September 1982 the Bratislava Regional Court convicted several persons of criminal offences committed in the above context. Prison terms of between four and twenty-four years were imposed. On 25 April 1983 the Supreme Court of the Slovak Republic upheld the firstinstance judgment. The applicant had joined the criminal proceedings with a claim for damages.
On 19 October 1990 the Supreme Court of the Czech and Slovak Federal Republic, upon a complaint lodged by the General Prosecutor, quashed the decisions convicting the persons charged. The case was sent back to the Bratislava Regional Court for a fresh examination.
Subsequently the case was dealt with by courts at two levels of jurisdiction. In 1992 the first-instance court decided that the charges against one of the accused would be dealt with in a separate set of proceedings. That set of proceedings was stayed as experts concluded that the accused suffered from a mental disorder (for further details relating to the period up to February 2002 see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, ECHR 2002-IX).
On 20 January 2004 the Regional Court in Bratislava delivered a judgment convicting the accused persons (with the exception of the one in respect of whom the proceedings had been stayed). The accused and the public prosecutor appealed. On 23 April 2004 the file was submitted to the Supreme Court.
Between 28 April 2004 and 8 November 2004 the accused made seven submissions with a view to completing the reasons for their appeal.
On 3 May 2006 the Supreme Court had to adjourn the case as the newly appointed counsel of one of the accused had not appeared.
The next hearing was scheduled for 27 September 2006. It was adjourned as the presiding judge was ill.
On 29 November 2006 the Supreme Court heard the final speeches.
On 4 December 2006 the Supreme Court modified the first-instance judgment in that it imposed more severe sentences on three of the convicted persons.
On 14 December 2004 and on 2 December 2005 the applicant filed a complaint with the Constitutional Court. She alleged a violation of her rights under Article 6 § 1 of the Convention to a hearing within a reasonable time and under Article 8 of the Convention to respect for her private life in the context of the criminal proceedings concerning the offences committed against her daughter which she had joined with a claim for damages.
On 15 March 2006 the Constitutional Court declared admissible the complaint about the length of the proceedings. It further rejected the complaint under Article 8 of the Convention. It admitted that there could be an interference with the applicant’s right to respect for her private and family life as a result of the excessive length of the proceedings. However, Article 6 § 1 was a lex specialis
In a judgment of 14 September 2006 the Constitutional Court found that both the Regional Court in Bratislava and the Supreme Court had violated the applicant’s right to a hearing within a reasonable time in the above criminal proceedings. It ordered the Regional Court to pay 650,000 Slovakian korunas (SKK) to the applicant as just satisfaction. That sum was payable within two months from the final effect of the judgment. It also ordered the Regional Court to reimburse the applicant’s costs of legal representation in the constitutional proceedings within one month. Finally, the Constitutional Court ordered the Supreme Court to proceed with the case without any further delay.
The Constitutional Court had jurisdiction to examine the length of the proceedings in issue as from 15 February 1993. It admitted that the case had been complex to a certain extent, in particular because the offences in issue had been committed more than 30 years ago. The applicant by her conduct had not contributed to the length of the proceedings. Their overall length was in itself incompatible with the applicant’s right to a hearing within a reasonable time. As regards the conduct of the Regional Court in particular, it had remained inactive for at least 78 months without any justification. The Constitutional Court also recalled that in its finding of 12 November 2003 given in proceedings initiated by the accused persons it had ordered the Regional Court to deal with the case without delay. There had been unjustified delays also as regards the conduct of the Regional Court in the separate set of proceedings concerning one of the accused persons.
As regards the proceedings before the Supreme Court, the Constitutional Court noted, in particular, that the first hearing had been scheduled after two years. Such a period was excessive in view of the overall length of the proceedings. The Constitutional Court held that the finding of a violation in respect of the proceedings before the Supreme Court, together with its order that the Supreme Court should avoid further delays in the proceedings, constituted in itself appropriate satisfaction as regards the appeal proceedings.


ITEMID: 001-78807
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MOVSESYAN v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Preliminary objection dismissed (exhaustion);Violation of Art 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - convention proceedings;Costs and expenses award - domestic proceedings
JUDGES: Peer Lorenzen
TEXT: 5. The applicant was born in 1936 and lived in Ryazan, the Russian Federation. He died on 1 August 2005. By letter of 14 January 2006, Mrs Movsesyan, the applicant's widow, informed the Court that she wished to pursue the application.
6. On 26 November 2001 the Pavlograd Court (Павлоградський районний суд Дніпропетровської області) awarded the applicant a lump sum of UAH 9,114.31 in various payments and UAH 416.61 in monthly disability allowances against his former employers, the State-owned companies “Dniproshakhtobud” (ДВАТ “Дніпрошахтобуд”), “Kryvbasshakhtoprokhodka” (трест “Кривбасшахтопроходка”) and “Rudoupravlinnya Kirova” (ДП “Рудоуправління ім. Кірова”). The judgment came into force and the enforcement writs were transferred to the Bailiffs' Service for enforcement.
7. On 12 and 23 April 2002 the Bailiffs' Service informed the applicant that the judgment could not be enforced due to the considerable number of enforcement proceedings taken against the debtors and that the sale of the debtors' assets was blocked by the Law of 2001 “on the Introduction of a Moratorium on the Forced Sale of Property.” Later, liquidation procedure was initiated in respect of two of the three debtor-companies.
8. In May 2004 – April 2005 the applicant received, in instalments, the total of UAH 5,275.02 of the lump sum award due to him. In September 2005 the remaining part of the award was transferred to the applicant. However, it was returned as unclaimed.
9. In November 2002 the applicant received the monthly allowances in arrears due to him by the judgment of 26 November 2001 and since then was receiving them regularly. The June and July 2005 allowances were returned as unclaimed.
10. The relevant domestic law is briefly summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).


ITEMID: 001-66819
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF KUSMIERKOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1953 and lives in Dębno, Poland.
5. In 1989 the applicant was injured in a traffic accident. Later, a medical board assessed his disability as being of the first degree (serious) and he was granted a disability pension. The applicant also applied to PZU S.A., an insurance company, for a monthly allowance compensating him for his loss of ability to work (renta uzupełniająca). The company refused his request.
6. On 14 May 1991 the applicant sued PZU S.A. in the Gorzów Wielkopolski Regional Court (Sąd Wojewódzki), seeking an award of a monthly allowance. On 23 November 1992 the court partly granted his claim. The applicant appealed.
7. On 19 May 1993 the Poznań Court of Appeal (Sąd Apelacyjny) partly quashed the contested judgment and remitted the case.
8. The Regional Court held hearings on 13 January and 25 August 1994. At the hearing held on 27 October 1994 the applicant modified his claim. On 24 March 1995 the trial court asked the applicant to specify his claim. On 9 May 1995 the applicant submitted to the court his modified statement of claim.
9. The court held hearings on 8 June 1995, 7 December 1995 and 29 February 1996. On 5 April 1996 the court ordered an expert opinion. It was submitted to the court on 31 May 1996. On 17 July 1996 the court ordered an opinion from yet another expert. The expert submitted it to the court on 27 July 1996.
10. The court held a hearing on 20 February 1997. The hearing scheduled for 22 May 1997 was cancelled. On 15 December 1997 a supplementary opinion was submitted to the court.
11. Further hearings were held on 29 January 1998 and 20 April 1999. On 17 June 1999 yet another supplementary expert opinion was submitted to the court. On 4 November 1999 the court held a hearing.
12. On 18 November 1999 the Regional Court gave judgment and dismissed the applicant’s claim. The applicant appealed. On 13 June 2000 the Poznań Court of Appeal upheld the first-instance judgment. The judgment is final.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57647
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF DELTA v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1+6-3-d;Not necessary to examine Art. 6-2;Damage - financial award;Costs and expenses - claim dismissed
JUDGES: C. Russo
TEXT: 9. Mr Michel Sophie Delta is a French citizen who was born in Guadeloupe and lives there today after having spent some time in metropolitan France.
10. At 6.40 p.m. on 29 March 1983 a girl of 16, Miss Poggi, and a friend of the same age, Miss Blin, were in a Paris underground station when two coloured men accosted them. One of the men snatched a gold chain and crucifix which Miss Poggi was wearing round her neck and ran towards the exit.
11. The two girls immediately went to the central police station of the 12th District, and at 7 p.m., as a result, Mr Delta was arrested by Police Constable Bonci, accompanied by the two girls, in a building by the exit from the underground. The victim and her friend immediately said they recognised him. A search of the applicant and subsequently of the premises yielded nothing, however.
12. The applicant was taken to the central police station of the 12th District and questioned at 8.40 p.m. by Chief Inspector Mercier, an officier de police judiciaire, about his identity and means of subsistence and was then taken into police custody.
13. From 10 a.m. to 10.20 a.m. the following day, Inspector Duban, who was likewise an officier de police judiciaire, took a statement from him about the facts of the case. Mr Delta said that at about 6.30 p.m. he had been set upon by four people who had chased him into the underground and stolen a cigarette lighter and 100 francs from him. He surmised that one of them could have committed the robbery as the two girls went by. He said that he had run away because he had been put in fear by his four attackers.
Subsequently (the exact time is not given in the police report), Inspector Duban interviewed both girls separately, each in the presence of her mother. They confirmed that the person who had been arrested was indeed the person who had committed the offence. The victim lodged a complaint alleging robbery.
Mr Delta was never formally confronted with Miss Poggi and Miss Blin.
14. The Chief Superintendent in charge of the Fourth Area police force forwarded the file to the public prosecutor’s office.
15. The Paris public prosecutor considered that a judicial investigation was unnecessary and accordingly used the direct committal procedure (Articles 393 to 397-7 of the Code of Criminal Procedure, as amended by the "Security and Freedom" Act of 2 February 1987).
16. On 31 March 1983 Mr Delta appeared before the 23rd Division of the Paris Criminal Court, which made an interlocutory order for a psychiatric report and a social inquiry report and remanded him in custody.
17. On 5 May the court passed a sentence of three years’ imprisonment on him. The judgment contained the following reasons:
"The facts (robbery by snatching a neckchain and crucifix from the victim) [are established], notwithstanding the defendant’s denials, by the evidence obtained, in particular by means of the statements of Police Constable Bonci, who gave evidence on oath. The defendant must be convicted and punished very severely, having regard to the nature of the offence committed with the use of violence.
Moreover, in a judgment dated 22 October 1981 Delta ... was sentenced to two years’ imprisonment by the Paris Court of Appeal for robbery and consequently is legally a reoffender under Article 58 of the Criminal Code;
..."
18. Although they had been duly summoned by the prosecution, the two girls did not attend the trial and gave no reasons for their failure to do so. The court did not take any steps to have them brought before it under Article 439 of the Code of Criminal Procedure (see paragraph 24 below).
The accused, whose defence was in the hands of two trainee barristers who had successively been assigned to him by the court, had not submitted any pleadings suggesting that any witnesses should be examined or asking for any further inquiries to be made into the facts.
19. Mr Delta appealed, claiming that he was the victim of mistaken identity. Relying on Article 513, second paragraph, of the Code of Criminal Procedure (see paragraph 25 below) and Article 6 para. 3 (d) (art. 6-3-d) of the Convention, he also expressly sought to have the victim, the person who was with her and two witnesses on his behalf called; he asserted that he had himself urged the concierge and a resident in the building where he had taken refuge to alert the police, as he feared for his safety if his pursuers caught up with him.
20. On 28 September 1983 the Paris Court of Appeal (10th Division) upheld the whole of the judgment of the court below after refusing the application for examination of witnesses in the following terms:
"After the defendant’s arrest, Miss Poggi formally stated that he was the man who had snatched the chain from her. Miss Blin likewise identified Delta as being responsible for the snatch theft from Miss Poggi.
These statements satisfy the Court that the defendant was guilty of the offences charged and make the requested examination of witnesses unnecessary."
21. Mr Delta appealed on points of law, alleging a violation of Article 6 para. 3 (d) (art. 6-3-d) of the Convention and Article 513 of the Code of Criminal Procedure.
The Court of Cassation (Criminal Division) dismissed the appeal in a judgment of 4 October 1984 on the following grounds:
"It appears from the impugned judgment of the Court of Appeal that Delta, who was prosecuted for robbery and claimed to be the victim of mistaken identity, asked the Court of Appeal to order an examination of the victim and of witnesses, and that the court below, after studying the statements taken during the investigation from Miss Poggi, the victim, and from the witness Bonci, refused this application on the grounds that those statements satisfied it that the defendant was guilty of the offences charged and made the requested examination of witnesses unnecessary.
In so holding, the Court of Appeal, far from violating the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, gave its decision a legal basis.
The ground of appeal, which does no more than attempt to call in question the appeal court’s final assessment of all the evidence adduced at the trial and of whether it was appropriate to order further inquiries into the facts, cannot be accepted.
..."
22. Mr Delta was released on 9 September 1985, after spending a little over two years and five months in prison.
23. In French law the rules governing the examination of witnesses by criminal courts differ according to whether the court is hearing the case at first instance or on appeal.
24. The main provisions of the Code of Criminal Procedure applicable in the Criminal Court are the following:
"Anyone called to be heard as a witness shall be required to appear, to take the oath and to give evidence."
"A witness who fails to appear or who refuses either to take the oath or to give evidence may, on an application by the public prosecutor, be punished by the court as provided for in Article 109."
"If a witness fails to appear and has not put forward any excuse recognised as being valid and legitimate, the court may, on an application by the public prosecutor or of its own motion, order the witness to be brought before it immediately by the police in order to be examined or adjourn the case.
..."
"Before proceeding to examine the witnesses, the presiding judge shall question the accused and take statements from him. The public prosecutor and, through the presiding judge, the civil party seeking damages and the defence may put questions to him."
"The witnesses shall subsequently give their evidence in turn, either as to the offences with which the accused is charged or as to his personality and morals.
The witnesses called by the prosecuting parties shall be heard first, subject to the presiding judge’s discretion to determine himself the order in which the witnesses shall be heard.
With the court’s leave, evidence may also be given by persons suggested by the parties and who are present at the beginning of the trial but have not been formally summoned."
"Witnesses shall give evidence orally.
Exceptionally, however, they may, with the leave of the presiding judge, make use of documents."
"After each witness has testified, the presiding judge shall put to him any questions he deems necessary and, where appropriate, those that are suggested to him by the parties.
A witness may withdraw after testifying, unless the presiding judge decides otherwise.
The public prosecutor, the civil party seeking damages and the accused may request, and the presiding judge may always order, that a witness should temporarily withdraw from the hearing-room after giving evidence in order to be brought back and examined if necessary after other witnesses have given evidence, with or without a confrontation."
"During the trial the presiding judge shall, if necessary, have the exhibits shown to the accused or witnesses again and shall hear their comments."
25. The procedure laid down by law for the Criminal Court also applies in principle to the Court of Appeal but subject to an important proviso in the second paragraph of Article 513 of the Code of Criminal Procedure, which reads:
"Witnesses shall be heard only if the court [of appeal] so orders."
26. This provision has given rise to a line of decisions by the Criminal Division of the Court of Cassation, which appears to have departed from these precedents in 1989, that is to say after the events in the instant case.
27. The Criminal Division decided very early on that appeal courts were not required to hear afresh witnesses who had already given evidence at the original trial, even where an application had been made for them to be re-examined; it did, however, lay on them the obligation to hear and determine any applications made and to give reasons for any refusal (30 October and 13 December 1890, Bulletin criminel (Bull.) nos. 212 and 253; 20 October 1892, Recueil périodique Dalloz (DP) 1894, I, p. 140; 13 January 1916, DP 1921, I, p. 63; 20 December 1955, Dalloz 1956, sommaires, p. 29).
Where they considered it useful or necessary, appeal courts could summon witnesses who had not testified in the Criminal Court; but if they refused to call such witnesses, it was sufficient by way of reasons if they stated in their judgment that there was no need for further inquiries into the facts (20 October 1892, Bull. no. 212; 9 February 1924, Bull. no. 70; 5 November 1975, Bull. no. 237, p. 629).
28. The Criminal Division’s approach seems to have changed markedly in its Randhawa judgment of 12 January 1989:
"By Article 6 para. 3 (d) (art. 6-3-d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ‘everyone charged with a criminal offence has the [right] to examine or have examined witnesses against him’. It follows that, unless it is impossible for reasons which they must specify, courts of appeal are bound, on a properly made application, to order the examination in the presence of the parties of prosecution witnesses who have not been confronted with the defendant at any stage of the proceedings.
Sarb Randhawa, who was charged with drug-trafficking and a customs offence, made an application to the Court of Appeal for an examination inter partes of the witnesses Joris Suray and Catherine Guillaume, whom he had had summoned and whose statements provided, he claimed, the sole basis for the finding of guilt. He said that he had not been able to have them examined at any stage of the proceedings.
In support of its refusal of this application, and although it based its finding of the defendant’s guilt solely on the statements of the aforementioned witnesses, the court below noted merely that the witnesses whose examination had been sought had been interviewed during the police inquiries and the judicial investigation and that the defendant had been informed of the charges arising from their statements.
But while a refusal to hear evidence from a prosecution witness does not, as such, infringe the aforementioned provisions of the Convention, since the court may take into account any special difficulties entailed by an inter partes examination of a given witness, for example the risk of intimidation, pressure or reprisals, such a refusal must nevertheless comply with the rights of the defence and the court must explain why a confrontation is impossible.
This was not so in the instant case, and the judgment must accordingly be set aside ..." (Bull. 1989, no. 13, pp. 37-38)
This approach was confirmed in a judgment of 22 March 1989 (case of X, Bull. 1989, no. 144, pp. 369-371).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-110216
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: PREDIC-JOKSIC v. SERBIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 1. The applicant, Ms Ljiljana Predić-Joksić, is a dual Serbian and Australian national who was born in 1949 and lives in Arncliffe, Australia. The Serbian Government (“the Government”) are represented by their Agent, Mr S. Carić.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 15 January 1997 the applicant filed a civil suit in Serbia against her two sisters, requesting the annulment of a contract according to which their late mother disposed of her property prior to her death, against the applicant’s expectations from the inheritance. Following a remittal, on 20 April 2007 the Municipal Court granted the applicant’s claim. On 6 August 2008 the District Court quashed the judgment of 20 April 2007 and returned the case to the first instance for a fresh examination.
4. On 4 December 2008 the applicant lodged a constitutional appeal, complaining about the length of the above-mentioned civil proceedings and requesting the Constitutional Court to quash the decision of 6 August 2008. The applicant did not request the Constitutional Court to award her any compensation for damages suffered.
5. On 5 May 2011 the Constitutional Court adopted a decision finding that the applicant’s right to have a hearing within a reasonable time had been violated and ordered the first and second instance courts to expedite the proceedings, while rejecting the request in relation to the decision of 6 August 2008. The court also ordered that its decision be published in the Official Gazette.
6. On 14 June 2011 the decision of 5 May 2011 was published in the Official Gazette.
7. On 22 September 2011 the Court of First Instance (Prvi osnovni sud) in Belgrade granted the applicant’s request in its entirety. This judgment would appear to be pending on appeal.
8. On 2 April 2007 the applicant filed another civil suit against one of her sisters, claiming damages for the sister’s sole use of the property in question.
9. The court held a number of hearings and in February 2008 appointed an expert to determine the damages. As the expert failed to submit his full expert report by April 2009, the court fined him and by September 2009 appointed another expert to submit his opinion on the amount of damages.
10. On 27 July 2009 the applicant filed a constitutional appeal complaining about the length of the said proceedings as well as the right to a fair trial and the right to property.
11. On 15 July 2010 the Constitutional Court found that there had been no violation of the applicant’s right to have her civil right determined within a reasonable time, while the other complaints were rejected as premature.
12. It would appear that these civil proceedings are still pending at first instance.
13. The Constitutional Court Act, in Article 89 §§ 2 and 3, provides for the following:
“When the Constitutional Court finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by the Constitution, it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time.
The decision of the Constitutional Court accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body, in accordance with the law.”
14. Article 90 of the Constitutional Court Act provides that a person whose constitutional appeal had been adopted can request compensation for damages from the Commission for Compensation.
15. On 26 December 2011 the Constitutional Court Act was amended, inter alia to abolish the Commission for Compensation and provide that the Constitutional Court would itself determine the compensation for damage (Article 89 § 2), under the condition that a request to that effect had been filed together with the constitutional appeal (Article 85 § 3).
16. Article 3 of the Rules provided for the right of a person to file a request for compensation from the Commission should the Constitutional Court find a violation in that person’s case.
17. While it existed, it was a consistent practice of the Commission for Compensation only to award damages if the Constitutional Court had determined one’s right to compensation. The Constitutional Court, in its turn, only awarded compensation for damages should a person claim compensation in the constitutional appeal (see e.g. decisions of the Constitutional Court nos. Už-372/2008 of 16 October 2008, Už-536/2008 of 11 December 2008, Už-1685/2009 of 15 November 2009, Už-151/2007 of 1 April 2010, Už-5088/2010 and many others; a contrario see e.g. decisions nos. Už-36/2007 of 22 December 2009, Už-265/2008 of 22 December 2009, Už-204/2008 of 18 February 2010, Už-201/2008 of 14 July 2010 and many others).


ITEMID: 001-105917
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MILOSEVIC v. SERBIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 1. The applicant, Mr Miladin Milošević, is a Serbian national. He was represented before the Court by Mr M. Veljković, a lawyer practising in Velika Plana. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.
2
3. The applicant was born in 1959 and lives in Velika Plana.
4. The applicant was employed by the Ministry of Internal Affairs (“the Ministry”) as an inspector (inspektor za suzbijanje opšteg kriminaliteta) in the Police Station in Velika Plana.
5. On 24 January 2002 the Municipal Court in Velika Plana (“the Municipal Court”) delivered a partial judgment, ordering the Ministry to reinstate the applicant to the position of inspector.
6. On 22 October 2002 and 1 July 2004 respectively the District Court in Smederevo (“the District Court”) and the Supreme Court upheld the judgment of 24 January 2002.
7. On 5 December 2002 the Fourth Municipal Court in Belgrade (“the enforcement court”) ordered the enforcement of the partial judgment of 24 January 2002.
8. On 27 March 2003, 26 January 2004, 11 February 2008, 12 October 2009 and 1 November 2010 the enforcement court ordered the Ministry to pay fines of 20,000 Serbian dinars (RSD), RSD 40,000, RSD 60,000, RSD 80,000 and RSD 100,000 respectively for the non-enforcement of the judgment of 24 January 2002.
9. Failing to comment on the circumstances which led to his dismissal, the applicant supplied a certificate dated 14 December 2005 and issued by the Department of Internal Affairs in Smederevo (Sekretarijat unutrašnjih poslova u Smederevu), according to which there was no record of a conviction in that Department’s Criminal Registry (Kaznena evidencija Sekretarijata).
10. The Government did not dispute the facts submitted by the applicant. However, they provided a broader context to the facts submitted by the applicant, which may be summarised as follows.
11. On 17 February 1998 the applicant was suspended from his position on suspicion of releasing official information in relation to an ongoing investigation into alleged abuse of office on the part of his brother-in-law (pašenog), who had been the director of company J.
12. Following disciplinary proceedings, the applicant’s employment was terminated from 13 November 1998.
13. On 28 January 1999 the applicant filed a lawsuit against the Republic of Serbia (“the respondent”), requesting the annulment of the disciplinary decisions and his reinstatement as inspector.
14. On 30 July 1999 the Municipal Court granted the applicant’s claims in full. On 20 December 1999 the District Court upheld the judgment of 30 July 1999.
15. The respondent lodged an appeal on points of law, which could not suspend the enforcement of the judgment of 30 July 1999.
16. On 5 December 2000 the Fourth Municipal Court in Belgrade ordered the enforcement of the judgment of 30 July 1999.
17. On 21 February 2001 the Supreme Court quashed the judgments of 30 July and 20 December 1999, and ordered a retrial.
18. On 1 August 2001 the applicant was reinstated as inspector, in accordance with the judgment of 30 July 1999.
19. On 31 August 2001 the applicant was dismissed again (see paragraphs 26 and 27 below).
20. On 31 May 2001 the applicant filed another lawsuit requesting that the court order the Ministry to pay him his salaries and other employment-related benefits for the period of his unemployment.
21. On 26 December 2001 the Municipal Court decided to join the applicant’s claim for reinstatement (see paragraph 17 above) to the proceedings.
22. In these joined proceedings, on 24 January 2002 the Municipal Court delivered a partial judgment, declining to examine the applicant’s claim in relation to his salaries and other benefits (see paragraph 20 above).
23. On 24 June 2003 the respondent requested that the Municipal Court reopen the proceedings regarding the applicant’s dismissal, submitting that the applicant had been finally convicted in connection with identical circumstances (see paragraph 32 below).
24. Following two remittals, on 6 April 2011 the Court of First Instance (Osnovni sud) in Smederevo rejected the respondent’s request for reopening. The Court has not been informed as to whether the respondent had filed an appeal against this decision.
25. Following two remittals, the applicant’s request in respect of his salary and other benefits appears to be still pending at first instance.
26. Following the applicant’s reinstatement upon the judgment of 30 July 1999 (see paragraph 18 above), on 31 August 2001 the head of joint services at the Ministry (Načelnik uprave za zajedničke poslove Ministarstva) gave a decision dismissing the applicant, as criminal proceedings had been instigated against him (see paragraph 31 below)
27. On 4 October 2001 the Assistant Minister/Head of the Public Security Department (pomoćnik Ministra – Načelnik resora javne bezbednosti Ministarstva unutrašnjih poslova) upheld the decision of 31 August 2001.
28. On 23 October 2001 the applicant filed another lawsuit against the respondent, requesting that the decisions of 31 August and 4 October 2001 be annulled.
29. Following a remittal, on 29 January 2002 the Municipal Court decided to stay these proceedings pending the final outcome of the first and second sets of proceedings, as joined on 26 December 2001 (see paragraph 21 above).
30. In the course of the examination of the applicant’s claims the domestic courts established that since 15 January 2001 the applicant had been employed as head of security (rukovodilac službe obezbeđenja) at company J. (see paragraph 11 above).
31. On 23 March 1998 the Public Prosecutor in Smederevo indicted the applicant in connection with the same circumstances of releasing information to the director of company J. (see paragraph 11 above).
32. On 26 July 2002 the District Court found the applicant guilty of abuse of office (krivično delo zloupotrebe službenog položaja) and sentenced him to three months in prison, suspended for one year.
33. On 3 April 2003 the Supreme Court upheld the judgment of 26 July 2002.
34. Article 34 of the Act provided that, as well as general requirements for employment in the civil service, a candidate for employment with the Ministry must have no criminal convictions or criminal proceedings pending against him or her for any abuse of office or other crime which is prosecuted ex officio.
35. The Police Act entered into force on 29 November 2005, repealing the 1991 Act. Similar to the provisions of the 1991 Act, Article 110(3) of the 2005 Act envisages that a person convicted of a crime which is prosecuted ex officio cannot be employed by the Ministry. In addition, Article 114 of the 2005 Act provides that should an employee of the Ministry be convicted of a crime that is prosecuted ex officio, the court must serve any final judgment on the Ministry, so that a decision on that employee’s dismissal can be prepared.


ITEMID: 001-70867
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KUZMENKOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1959 and lives in the town of Novogrodovka, the Donetsk Region.
5. On 8 July 1997 and 22 February 2000 the Novogrodovka City Court (hereafter “the City Court”) awarded the applicant a total of UAH 33,277 against the Novogrodovskaya State-owned Coal Mine No. 2 (hereafter “the NCM”) for arrears of salary, redundancy pay and industrial disability benefits. The judgments became final and were remitted to the Novogrodovka City Bailiffs’ Service for compulsory enforcement.
6. In 1998 and 1999 the Novgorodsky City Court and the Donetsk Regional Court rejected as unsubstantiated the applicant’s complaints against the Rossiya Association (the NCM’s managing company between August 1997 and March 1998) and the NCM for their failure to pay in due time and in full the sum awarded to him by the judgment of 8 July 1997.
7. In 1999 and 2000 the Prosecutor’s Office rejected on several occasions the applicant’s criminal complaints against officials of the Bailiffs’ Service.
8. On 24 May 2001 the Ministry of Fuel and Energy decided to wind up the NCM, designating the Ukrvuglrestrukrutizatsyya Company as its successor.
9. The applicant instituted proceedings in the City Court against the Bailiffs’ Service for failure to execute the decisions in his favour. On 14 August 2001, the court rejected the applicant’s claim, finding no fault had been committed by the Bailiffs, who had demonstrated due diligence in enforcing the judgments in the applicant’s favour, but the NCM’s lack of funds had prevented them from securing the immediate payment of the awards.
10. In 2002 and 2003, due to the on-going bankruptcy proceedings against the NCM, the Bailiffs’ Service forwarded on several occasions the applicant’s writs of execution to the NCM’s liquidation commission, which refused to accept them, referring to the company’s lack of funds.
11. The judgments of 8 July 1997 and 22 February 2000 remain partially unenforced, the outstanding debts being UAH 3,736 and 2,857 respectively.
12. Relevant domestic law may be found in the judgments of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19) and of 30 November 2004 in the case of Dubenko v. Ukraine (74221/01 §§ 22-29).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60164
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF MAGALHAES PEREIRA v. PORTUGAL
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-4;Not necessary to examine Art. 5-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 9. The applicant is a Portuguese national, born in 1940. He was a lawyer and is currently detained in the Santa Cruz do Bispo secure psychiatric unit in Matosinhos (Portugal).
10. The applicant, who was suspected of fraud, was arrested on 1 March 1996 and placed in pre-trial detention.
11. During the proceedings against him the applicant was examined by a psychiatrist. In his report of 22 July 1996 the psychiatrist concluded that the applicant was suffering from residual schizophrenia and should be given long-term psychiatric treatment.
12. In a judgment of 11 November 1996 the Oporto Criminal Court held that, on account of his mentally disturbed state, the applicant was not criminally responsible (inimputável) and was dangerous. It accordingly ordered that he be detained for a maximum period of eight years.
13. On 4 December 1996 the applicant was transferred to the Santa Cruz do Bispo secure psychiatric unit.
14. In an order of 24 January 1997 a judge of the Oporto Criminal Court decided that, in accordance with the relevant legislation, the mandatory periodic review of the applicant's detention should take place on 1 March 1998.
15. The applicant's file was transmitted to the Oporto Sentence-Supervision Court (Tribunal de Execução das Penas). On 19 February 1997 the judge of that court assigned a lawyer to represent the applicant, who had not chosen one himself. He also asked the staff of the Santo Cruz do Bispo secure unit to prepare an initial report on the applicant's condition.
16. In a letter of 19 March 1997 Dr M.S.C. informed the judge that the applicant was “clinically balanced”. He added that his behavoiur “[was] adequate and he [could] be released on probation [liberdade para prova] if he agree[d] to accept psychiatric support outside and [took] his medication”.
17. In an order of 7 April 1997 the judge decided to await the expiry of the time-limits provided for in Article 504 of the Code of Criminal Procedure.
18. On 2 July 1997 the applicant personally lodged an application for release, relying on Dr M.S.C.'s favourable opinion. On 4 July 1997 the judge marked the file as “seen” (visto).
19. On 7 January 1998 the judge asked the Institute for Social Rehabilitation, in accordance with the relevant legislation, to submit its opinion on the applicant's social situation and asked the Oporto Institute of Forensic Medicine (“the IFM”) to carry out a medical examination.
20. The Institute for Social Rehabilitation submitted its report on 18 May 1998, concluding that the applicant's circumstances were such that he could be released on probation. A medical examination was carried out on 28 April 1998. The IFM filed a report also on 18 May 1998 concluding that the applicant remained a danger to society.
21. On 2 June 1998 the applicant personally lodged a further application for release, relying on, inter alia, Article 5 § 4 of the Convention.
22. On 1 July 1998 the applicant was examined by the judge. As the applicant's officially assigned lawyer was not present, the judge appointed an officer from the Santa Cruz do Bispo secure psychiatric unit as his defence counsel. The applicant stated, among other things, that he considered himself to have recovered and that the medicines which he was still taking were unnecessary.
23. On 9 July 1998 the applicant personally lodged a further application for release. On 14 and 24 July 1998 he filed pleadings criticising the IFM's medical report.
24. On 9 November 1998 the Prison Service asked the Sentence-Supervision Court for a copy of the latest decision relating to the periodic review of the applicant's detention. On 10 November 1998 the judge indicated that no decision had yet been taken.
25. The applicant absconded during prison leave between 1 and 3 April 1999. He was captured on 11 November 1999 when the police authorities found him at his family home.
26. In a decision of 20 January 2000 the Sentence-Supervision Court decided to keep the applicant in detention. The judge based his decision on the IFM's report of 18 May 1998 first, before stressing that it was clear that the applicant, who had absconded during prison leave, was not in a position to prove himself worthy of the trust that the prison system had placed in him. Lastly, the judge considered that, on account of the applicant's mentally disturbed state, the applications for release he had lodged personally did not have to be examined.
27. The applicant personally appealed against that decision to the Oporto Court of Appeal (Tribunal da Relação). However, in an order of 4 February 2000 the judge of the Sentence-Supervision Court decided not to examine his appeal, noting that the applicant had been admitted to a secure psychiatric unit and was represented by officially assigned counsel, and that the President of the Criminal Division of the Supreme Court had delivered a decision on 5 January 2000 in habeas corpus proceedings to the effect that no other request for habeas corpus submitted by the applicant himself would be examined on account of his mentally disturbed state.
28. On an unknown date the applicant personally appealed against that order to the Court of Appeal. However, the judge of the Sentence-Supervision Court made an order on 1 March 2000 stating that he would not examine the appeal and referring to the reasons stated in his order of 4 February 2000.
29. On 8 November 2000 the applicant lodged, through Mr Pires de Lima, an application with the Oporto Court of Appeal challenging the judge of the Sentence-Supervision Court dealing with his case. In a judgment of 7 January 2001, the Oporto Court of Appeal granted his application, a new judge being appointed.
30. On 29 January 2001 the public prosecutor requested the applicant's release since he presented no further danger. In a decision of 30 January 2001 the judge dismissed that request and decided to review the situation at the next periodic review (scheduled for 20 January 2002). The public prosecutor appealed against that decision to the Oporto Court of Appeal.
31. In a judgment of 20 June 2001 the Court of Appeal dismissed the appeal.
32. The relevant provisions of the Criminal Code, as amended by Legislative Decree no. 48/95 of 15 March 1995, are as follows:
“Persons suffering from a mental disorder who are incapable at the material time of appreciating the unlawful nature or the consequences of their actions shall not be held criminally responsible for those actions.”
“1. A person who commits a punishable offence and who is found not to be criminally responsible within the meaning of Article 20 shall be ordered to be detained in an asylum, hospital or secure unit, if there is reason to believe, in view of his mental illness and the nature and seriousness of his offence, that he may commit further serious offences.
2. Where the offence committed by a person found not to be criminally responsible is an offence against the person or a crime punishable by more than five years' imprisonment, he shall be ordered to be detained for a minimum period of three years, save where his release is not incompatible with the protection of the legal system and public order.”
“Without prejudice to the provisions of paragraph 2 of the preceding Article, detention shall cease when the court finds that the justification for the detention no longer exists because the detainee is no longer criminally dangerous.”
“1. The court may at any time hear an application relying on a ground for the cessation of the detention measure.
2. The court shall, of its own motion, regardless of whether any application has been made, review the detention two years after it began or after the decision extending it.
...”
33. The Code of Criminal Procedure and Legislative Decree no. 783/76 of 29 October 1976 setting up sentence-supervision courts lay down the appropriate procedure to be followed. Articles 503 and 504 of the Code of Criminal Procedure provide:
“1. A personal file shall be opened in the establishment in which the person is to be detained in which shall be registered or placed all documents received from or sent to the court together with periodic reports on the effects of the treatment on the dangerousness of the detainee.
2. The governor of the establishment shall send the periodic reports to the sentence-supervision court annually and when justified by the circumstances or requested by the court.”
“1. Up until two months prior to the date scheduled for the mandatory review of the detainee's situation, the sentence-supervision court shall order
(a) a psychiatric or character report, if possible in the establishment where the detainee is detained, which must be submitted to the court within thirty days;
(b) of its own motion, or at the request of the public prosecutor, the detainee or the lawyer, measures likely to assist it in reaching a decision.
2. Up until the same date the social rehabilitation services shall send a report on the detainee's family and professional environment.
3. The mandatory review of the detainee's situation shall be conducted after hearing submissions from the public prosecutor, the lawyer and the detainee; the latter must be present, save where his state of health renders such hearing purposeless or impossible.
...”
34. Article 62 § 2 of the Code of Criminal Procedure, which applies as an alternative provision in proceedings before the Sentence-Supervision Court, provides – exceptionally – in urgent cases, where it is not possible to find a member or trainee member of the Bar, that the judge may officially assign an appropriate person without legal qualifications to represent the accused. In judgment no. 59/99 of 2 February 1999 (Boletim do Ministério da Justiça no. 484, p. 48), the Constitutional Court held that the appointment of a court-registry official as the accused's defence counsel did not infringe the rights of the defence, as guaranteed by Article 32 of the Constitution.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-118276
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF ZORICA JOVANOVIĆ v. SERBIA
IMPORTANCE: 1
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Respondent State to take measures of a general character (Article 46-2 - Changes of regulations;Legislative amendments);Non-pecuniary damage - award
JUDGES: Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 5. The applicant was born in 1953 and lives in Batočina.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 28 October 1983 the applicant gave birth to a healthy baby boy in the Ćuprija Medical Centre (“the ĆMC”), a State-run hospital.
8. Between 28 and 30 October 1983, while still in the ĆMC, the applicant had regular contact with her son.
9. On 30 October 1983 the applicant was informed by the doctors that both she and her son would be discharged the next day.
10. The applicant was with her son until approximately 11 p.m. on 30 October, when he was taken to a separate room for newborn babies. This was standard procedure and the applicant’s son had experienced no medical problems up to that point.
11. On 31 October 1983, at around 6.30 a.m., the duty doctor informed the applicant that “her baby ha[d] died”. Upon hearing this, the applicant immediately ran down the corridor towards the room where her son had spent the night. She was physically restrained by two orderlies, however. A nurse even tried to inject her with a sedative, but the applicant successfully resisted the attempt. Ultimately, having no other option and being in a state of shock, the applicant checked out of the ĆMC. Her relatives were subsequently told that the autopsy of the infant would be performed in Belgrade, which was why his body could not yet be released to the parents. The applicant and her family remained confused as to why the autopsy would have to be carried out in Belgrade, as this was clearly a departure from the ĆMC’s normal practice.
12. From 2001, and particularly from 2002, the Serbian media started reporting extensively on numerous cases similar to the applicant’s (see, for example, http://www.kradjabeba.org, accessed on 29 January 2013).
13. On 24 October 2002 the applicant sent a request to the ĆMC, seeking all relevant documentation relating to her son’s death.
14. On 12 November 2002 the applicant was informed by the ĆMC that her son had died on 31 October 1983, at 7.15 a.m., and that his death had occurred from an unknown cause. The ĆMC maintained that no other information was available because its archives had been flooded in the meantime and many documents had been destroyed.
15. On 22 November 2002, in response to the applicant’s request, the Municipality of Ćuprija informed her that her son’s birth had been registered in the municipal records but that his death had not.
16. On 10 January 2003 the applicant’s husband (the child’s father) lodged a criminal complaint with the Ćuprija municipal public prosecutor’s office against the medical staff of the ĆMC, whom the applicant deemed responsible for “her son’s abduction”.
17. On 15 October 2003 the Ćuprija municipal public prosecutor’s office rejected the complaint as unsubstantiated, since “there was evidence that [the applicant’s] son had died on 31 October 1983”. No further reasoning was offered and there was no indication as to whether any preliminary investigation had been carried out.
18. In March 2004 the Municipality of Ćuprija reaffirmed the content of its letter of 22 November 2002.
19. On 29 April 2004 the ĆMC provided the applicant with its internal records in support of its letter dated 12 November 2002.
20. On 19 September 2007 the Municipality of Ćuprija confirmed that the death of the applicant’s son had never been formally registered.
21. On 28 December 2007 the Municipality of Ćuprija provided the applicant with copies of her son’s birth certificate, in response to her earlier demand, together with the ĆMC’s request for registration of the birth.
22. The body of the applicant’s son was never released to the applicant or her family. Nor were they ever provided with an autopsy report or informed as to when and where he was allegedly buried.
23. Between 12 June 2009 and 20 July 2011 the Kragujevac Clinical Centre regularly treated the applicant for, inter alia, various depression-related symptoms dating back to 1999 and especially 2001.
24. At a meeting organised by the Ministry of Health on 17 June 2003 on the burial of newborn babies who had died in hospital it was decided, inter alia, that the bodies could only be released to the parents if the latter signed a special form designed for this purpose.
25. In response to a specific request sent to them by the State-run funeral company (JKP Pogrebne usluge) on 17 October 2003, all Belgrade-based public health-care institutions also agreed, inter alia, to implement a procedure whereby a special declaration would have to be signed (a) by the parents, or other family members, stating that they had been informed of the death by the hospital and that they would personally be making the funeral arrangements, or (b) by a legal entity, or its representative, to the effect that it would be making these arrangements because others had refused or were unable to do so. In the absence of such declarations, the State-run funeral company would refuse to collect the bodies from the hospitals.
26. In 2005 hundreds of parents in the same situation as that of the applicant, namely, whose newborn babies had “gone missing” following their alleged deaths in hospital wards, especially in the 1970s, 1980s and 1990s, applied to the Serbian Parliament seeking redress.
27. On 14 July 2006 Parliament formally adopted a report prepared by the Investigating Committee established for this purpose. The findings of this report concluded, inter alia, that (a) there had been serious shortcomings in the applicable legislation at the relevant time and in the procedures before various State bodies and health authorities; (b) the situation justified the parents’ doubts or concerns as to what had really happened to their children; (c) no criminal redress could now be effective in view of the applicable limitation periods (see paragraph 34 below); and (d) a concerted effort on the part of all government bodies, as well as changes to the relevant legislation, were therefore necessary in order to provide the parents with adequate redress.
28. On 16 April 2010 the local media reported that the President of the Serbian Parliament had stated that a parliamentary working group was about to be formed in order to prepare new legislation aimed at providing redress to the parents of the “missing babies”.
29. Following an extensive investigation into the issue, the Ombudsman found, inter alia, that (a) at the relevant time, there were no coherent procedures and/or statutory regulations as to what should happen in situations where a newborn baby died in hospital; (b) the prevailing medical opinion was that parents should be spared the mental pain of having to bury their newborn babies, which was why it was quite possible that certain couples were deliberately deprived of the opportunity to do so; (c) any autopsy reports were usually incomplete, inconclusive, and of highly dubious veracity; (d) it could not therefore be ruled out that the babies in question were indeed removed from their families unlawfully; (e) turning to more recent times, the government response between 2006 and 2010 had itself been inadequate; and (f) the parents therefore remained entitled to know the truth about the real fate of their children, which could only be arrived at through the enactment of a lex specialis.
30. In response to the findings and recommendations of the Parliamentary Report of 14 July 2006 (see paragraphs 26-27 above), a working group was set up by Parliament on 5 May 2010 (see paragraph 28 above). Its task was to assess the situation and propose any appropriate changes to the legislation.
31. On 28 December 2010 the working group submitted its report to Parliament. Following a detailed analysis of the current, already amended, legislation, it concluded that no changes were necessary except as regards the collection and use of medical data, but that a new piece of legislation concerning this issue was already being prepared (nacrt Zakona o evidencijama u oblasti zdravstva). The working group specifically noted, inter alia, that Article 34 of the Constitution made it impossible to extend the limitation period for criminal prosecution in respect of crimes committed in the past or, indeed, to introduce new, more serious, criminal offences and/or harsher penalties applicable to crimes committed in the past (see paragraph 32 below). The existing Criminal Code already envisaged several criminal offences of relevance to the issue, however, and the new Health Care Act set out a detailed procedure making it impossible for parents to have their newborn babies unlawfully removed from hospital wards (see paragraphs 35 and 41 below).
32. Article 34 of the Constitution reads as follows:
“No one shall be convicted on account of any act which did not constitute a criminal offence under the law or any other regulation based on the law at the time when it was committed. Nor shall a penalty be imposed which was not prescribed for the act at the time.
The penalties shall be determined pursuant to the legislation in force at the time when the act was committed, save where subsequent legislation is more lenient for the perpetrator. Criminal offences and penalties shall be laid down by the law.”
33. Article 116 provided, inter alia, that anyone who had unlawfully detained or abducted a minor child from his or her parents was liable to a prison sentence of between one and ten years.
34. Articles 95 and 96 provided, inter alia, that prosecution of the crime defined in Article 116 of the Criminal Code of the Socialist Republic of Serbia became time-barred where more than twenty years had elapsed since the commission of the crime.
35. Under Articles 191, 192, 388 and 389, various forms of child abduction and human trafficking, including for the purposes of adoption, are defined as a crime.
36. Articles 199 and 200 provide, inter alia, that anyone who has suffered fear, physical pain or, indeed, mental anguish as a consequence of a breach of his or her “personal rights” (prava ličnosti) shall be entitled, depending on their duration and intensity, to sue for financial compensation in the civil courts and, in addition, to request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction.
37. Article 376 §§ 1 and 2 provide that a claim based on the above-mentioned provisions may be brought within three years of the date on which the injured party learnt of the damage in question and identified the person responsible, but that such a claim must in any event be lodged within a maximum of five years of the event itself.
38. Article 377 § 1 further provides that if the damage in issue has been caused as a result of the commission of a criminal offence, the civil limitation period may be extended so as to correspond to the applicable criminal statute of limitations.
39. On 4 June 1998 the Supreme Court (Rev. 251/98) held that civil limitation periods concerning various forms of non-pecuniary damage (see paragraphs 36-38 above) would not start running until the situation complained of had come to an end (kada su pojedini vidovi neimovinske štete dobili oblik konačnog stanja).
40. On 21 April 2004 the Supreme Court (Rev. 229/04) further held that “personal rights” within the meaning of the Obligations Act included, inter alia, the right to respect for family life.
41. Articles 219 to 223 provide, inter alia, details as regards the determination of the time and cause of death of a newborn baby while still in hospital. Specifically, the hospital will inform the family as soon as possible and provide them with access to the body. An autopsy is carried out and a biological sample stored for any future purposes. The police are informed if no cause of death has been established, and the relevant municipal authorities are informed in all circumstances.
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-68554
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KLJAJIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1951 and lives in Karlovac, Croatia.
5. On 11 November 1991 business premises in Karlovac leased by the applicant were blown up by unknown perpetrators.
6. On 10 November 1994 the applicant instituted civil proceedings against the State before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages. He based his claim on section 180 of the Civil Obligations Act.
7. On 17 January 1996 Parliament introduced an amendment to the Civil Obligations Act (“the 1996 Amendment”) which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending enactment of new legislation on the subject.
8. On 14 February 1996 the Municipal Court stayed the proceedings pursuant to the 1996 Amendment.
9. On 14 July 2003 Parliament introduced the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (“the 2003 Liability Act”).
10. Pursuant to the 2003 Liability Act, on 19 November 2003 the Municipal Court resumed the proceedings and, at the same time, dismissed the applicant's action finding that it no longer had the jurisdiction in the matter. The applicant did not appeal against that decision.
11. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima – Official Gazette, nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) provided as follows:
“Liability for loss caused by death or bodily injury or by damage or destruction of another's property, when it results from acts of violence or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.”
12. The relevant part of the Act Amending the Civil Obligations Act (Zakon o izmjeni Zakona o obveznim odnosima – Official Gazette no. 7/1996) (“the 1996 Amendment”) reads as follows:
“Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.”
“Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed.
The proceedings referred to in sub-section 1 of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts.”
This Act entered into force on 3 February 1996.
13. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku – Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01) provides:
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
14. The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija – Official Gazette no. 117/2003) (“the 2003 Liability Act”) provides, inter alia, that the State is to compensate only damage resulting in bodily injuries, impairment of health or death. All compensation for damage to property is to be sought under the Reconstruction Act. Section 10 provides that all proceedings stayed pursuant to the 1996 Amendment are to be resumed.
This Act entered into force on 31 July 2003.
15. In its judgment Rev-276/04-2 of 8 April 2004 the Supreme Court held, while dismissing the plaintiff's claim on its merits, that, after the entry into force of the 2003 Liability Act, the State was no longer liable for the damage ensuing from the destruction of the plaintiff's business premises (attorney's office) that had been blown up by unknown perpetrators.
16. The relevant part of the Reconstruction Act (Zakon o obnovi – Official Gazette nos. 24/1996, 54/1996, 87/1996 and 57/2000) provides, inter alia, that the State shall grant, under certain conditions, reconstruction assistance to owners of property (flats and family houses only) which has been damaged during the war. The request is to be submitted to the competent ministry.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70534
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SZCZECINSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1951 and lives in Sławno, Poland.
5. On 5 August 1993 the Housing Co-operative “Wybrzeże” lodged a compensation claim with the Sławno District Court (Sąd Rejonowy) claiming the amount of 27,880,200 old Polish zlotys from the applicant for unpaid interest on a loan.
6. On 29 October and 9 November 1993 the court held hearings. On 30 November 1993 the Sławno District Court gave judgment. The applicant appealed.
7. On 18 May 1994 the Słupsk Regional Court (Sąd Wojewódzki) quashed the contested judgment and referred the case to the first-instance court.
8. On 22 November 1996 the District Court held a hearing.
9. On 11 December 1996 the plaintiff increased the amount of the claim. Accordingly, the case had to be transmitted to the Słupsk Regional Court, which was now competent to examine it.
10. The court held hearings on the following dates: 19 May 1997, 6 October 1997, 22 April 1998, 20 May 1998, 10 June 1998 and 14 September 1998.
11. On 19 August 1997 an expert submitted his opinion to the court.
12. On 23 September 1998 the Słupsk Regional Court gave judgment. The applicant appealed. On 17 February 1999 the Gdańsk Court of Appeal (Sąd Apelacyjny) dismissed his appeal and upheld the first-instance judgment.
13. On 23 February 1999 the applicant asked the Gdańsk Court of Appeal to be served with a copy of the judgment. On 28 July 1999 it was served on the applicant.
14. On 30 August 1999 the applicant lodged a cassation appeal with the Supreme Court. On 8 February 2001 the Supreme Court rejected his appeal, considering that the applicant had failed to satisfy the procedural requirements set out in Polish law.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1