ITEMID: 001-5332
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: CIMEN, YILMAZ, ÖZTÜRK, ULUG, DELIBAS ET AL AND SARI ET AL v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants are all Turkish nationals (see appendix). The second applicant is represented before the Court by Mr Hüseyin Sıragezen, a lawyer practising in Edirne. The remaining applicants are represented by Mr Abdurrahman Şahin, a lawyer practising in Ankara.
A.
The facts of the cases, as submitted by the applicant, may be summarised as follows.
Application no. 40079/98
Hüsni ÇİMEN
On 18 February 1995 the applicant, who was serving in the army at the time, was shot and wounded in a clash with members of the PKK. He sustained permanent damage to his spine leaving him 98 % paralysed below the waist.
On 1 February 1996 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was awarded compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient.
On 13 June 1996 he requested the Ministry of Defence to pay him additional compensation. The Ministry rejected his request. On 15 August 1996 the applicant challenged the Ministry’s rejection before the second Chamber of the Supreme Military Administrative Court (“Askeri Yüksek İdare Mahkemesi”).
The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation which he had been awarded under Law no. 2330. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess the amount which would represent just compensation in the circumstances. According to the expert’s assessment, the applicant had already been adequately compensated.
The applicant’s lawyer objected to the expert’s method of calculation. On 14 May 1997 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards.
Under domestic law the judgments of the Supreme Military Administrative Court are final and cannot be appealed. The applicant requested rectification of the judgment. In accordance with domestic law, the file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 14 May 1997. On 1 October 1997 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification.
Application no. 40273/98
Cemal YILMAZ
On 22 January 1996 the applicant, a conscript soldier, was injured while manoeuvring the private car of a superior officer at a military car wash. According to military regulations, cars were to be washed only by commissioned soldiers employed at the car wash. The superior officer requested the applicant to assist the commissioned soldier at the car wash if he had free time. The officer left the car in gear with the key in the ignition. While washing the car, the commissioned soldier told the applicant to turn the ignition key to start the windscreen wipers. When the applicant turned the ignition the engine started up and the car moved forward. The applicant pressed the accelerator in panic, the car advanced rapidly and hit a tree. The applicant suffered permanent injury to both eyes and had to be discharged from military service.
On 24 December 1996 the applicant requested compensation from the Ministry of Defence. The Ministry did not respond within the time-limit prescribed by law. On 26 March 1997 the applicant brought an action for compensation against the Ministry of Defence before the Supreme Military Administrative Court. His lawyer contended that the applicant had been injured in the course of his compulsory military duty and that the administration was strictly liable (“objektif sorumluluk”) for personal injury arising in the course of his duties. The defendant Ministry denied liability but noted inter alia that the applicant would qualify for a retirement pension.
On 8 October 1997 the Supreme Military Administrative Court found that the act complained of could not be attributed to the defendant administration since it was not related to the applicant’s military duties. Accordingly, the injury was not sustained by the applicant in the performance of his military service. This judgment was final under domestic law. The applicant did not seek rectification of the judgment.
Application no. 44195/98
Serdal ÖZTÜRK
On 10 July 1994 the applicant, who was serving in the army at the time, was instructed to hold a meeting with the heads of villages. A jeep was arranged to take him to the meeting. The applicant took a lieutenant’s private car instead, claiming that the jeep was unavailable. He was involved in a road accident which left him 70 % paralysed.
The applicant received a retirement pension on account of his disability. The applicant applied to the Ministry of Defence for compensation. The Ministry rejected his request on the ground that the accident had not arisen in the performance of his military duties.
On 25 June 1997 the applicant instituted proceedings before the second Chamber of the Supreme Military Administrative Court. On 22 April 1998 the court rejected his request on the ground that the applicant’s claim was unconvincing and that the record of the accident was invalid.
The Chamber was composed of military judges two of whom, according to the applicant, had no legal training.
The applicant requested rectification of the judgment. In accordance with domestic law, the file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 22 April 1998. On 8 July 1998 the Chamber rejected the applicant’s request for rectification, holding that the request did not fall within the grounds specified for rectification.
Application no. 44196/98
Selçuk ULUĞ
On 14 September 1996 the applicant, who was serving in the army at the time, was shot and wounded in a clash with the PKK. He sustained permanent damage to his spine leaving him 98 % paralysed below the waist.
On 1 June 1997 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was granted compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient.
On 19 August 1997 the applicant instituted proceedings before the second Chamber of the Supreme Military Administrative Court.
The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation awarded under Law no. 2330 already paid to him. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances. According to the expert’s assessment, the applicant had already been adequately compensated.
The applicant’s lawyer objected to the expert’s calculations. On 6 May 1998 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards.
The applicant requested rectification of the judgment. The file was re-examined by the same five-judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 6 May 1998. On 8 July 1998 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification.
Application no. 44248/98
Kutbettin DELİBAŞ, Muzaffer DELİBAŞ, Saliha DELİBAŞ, Şadiye DELİBAŞ
On 15 October 1996 Hamdin Delibaş who was serving in the army at the time, committed suicide. The reason for his suicide was explained in a letter found in his pocket. According to the contents of his letter, he had been humiliated by the officers and other soldiers in his squadron. He became depressed and had decided to take his own life.
On 31 December 1996 the Military Prosecutor found that it was unnecessary to conduct an investigation since there was no evidence to substantiate the allegations in the letter.
The applicants claimed that the mental health of Hamdin Delibaş began to deteriorate after he commenced his military service as a result of the torture and oppression to which he had been subjected.
On 24 October 1997 the applicants instituted proceedings for compensation before the second Chamber of the Supreme Military Administrative Court. On 15 April 1998 the court rejected the applicants’ request on the grounds that they had not substantiated their allegations and that there was no causal link between the deceased’s suicide and the performance of his military service.
The Chamber was composed of military judges two of whom, according to the applicants, had no legal training.
The applicants requested rectification of the judgment. The file was re-examined by the same five-judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 15 April 1998. On 10 June 1998 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification.
Ertan ÇAMAŞ
The applicant, who was serving in the army at the time, claims that as a result of an operation carried out at a military hospital on 21 December 1994 he was left with permanent damage to his spine. On 12 October 1995 he had a follow-up operation at another military hospital. A medical report was drawn up declaring him unfit to continue his military service. The applicant claims that the doctors informed him that the first operation had been carried out negligently.
On 8 April 1996 the applicant instituted compensation proceedings before the second Chamber of the Supreme Military Administrative Court. The court appointed an expert committee consisting of two professors and an associate professor from the Medical Faculty of Hacettepe University to examine the allegation of negligence. According to the committee’s report, both operations had been carried out successfully and faultlessly. The applicant’s lawyer objected to the findings on the grounds inter alia that the experts were not impartial and that the report was motivated by considerations of professional solidarity.
The Supreme Military Administrative Court dismissed these objections finding them unsubstantiated and in a judgment dated 21 May 1997 rejected the applicant’s compensation claim.
The applicant requested rectification of the judgment. The file was re-examined by the same five-judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 21 May 1997. On 17 September 1997 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification.
The applicant applied to the Directorate General of Retirement Fund for a benefit on account of his physical disability. The Directorate General rejected his request and on 27 December 1996 he instituted proceedings before the second Chamber of the Supreme Military Administrative Court. On 21 October 1997, the court rejected his request, holding that his disability did not result from the performance of his military service and there was no concrete proof that that his operation had been conducted negligently.
The applicant requested rectification of the judgment. On 10 March 1998 the Chamber rejected the request for rectification, holding that the request did not fall within the specified grounds for rectification.
Barış ÖZBAKİ
On 8 August 1995 the applicant, who was serving in the army at the time, was accidentally shot and wounded by a sergeant. He sustained permanent damage to his spine leaving him 98 % paralysed below the waist.
On 1 September 1996 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was granted compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient.
On 13 March 1997 the applicant instituted proceedings before the second Chamber of the Supreme Military Administrative Court.
The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation which had been awarded to him under Law no. 2330. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances. According to the expert’s assessment, the applicant had already been adequately compensated.
The applicant’s lawyer objected to the expert’s calculations. On 29 April 1998 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards.
The applicant requested rectification of the judgment. The file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 29 April 1998. On 8 July 1998 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification.
Application no. 49554/99
Yusuf SARI
The applicant, who was serving in the army at the time, claims he was the victim of medical negligence at a military hospital which left him with permanent damage to his spinal marrow and left him paralysed below the neck. A medical report declared him unfit to continue his military service.
The applicant maintained that he did not receive any benefit for his physical disability and that his medical expenses were not covered by the State. On 28 February 1997 the applicant applied to the Ministry of Defence for compensation. The Ministry of Defence did not reply to the application.
On 6 May 1997 the applicant instituted compensation proceedings before the second Chamber of the Supreme Military Administrative Court. The court appointed an expert committee composed of three professors from the Medical Faculty of Hacettepe University to examine the allegations of medical negligence. The committee found no evidence of negligence. The applicant’s lawyer objected to the finding on the grounds inter alia that the experts were not impartial and that the report was motivated by considerations of professional solidarity.
On 21 October 1998 the second Chamber of the Supreme Military Administrative Court rejected the applicant’s compensation request on the ground that the administrative authorities were not at fault.
The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. The applicant requested rectification of the judgment. The file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 21 October 1998. On 9 April 1999 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification.
Alper BİNGÖL
On 24 September 1996 the applicant, who was serving in the army at the time, was shot and wounded in a clash with the PKK. He sustained permanent damage to his spine leaving him paralysed below the waist.
On 1 December 1997 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was granted compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient.
He requested the Ministry of Defence to pay him additional compensation. The Ministry rejected his request. On 2 March 1998 the applicant challenged the Ministry’s rejection before the second Chamber of the Supreme Military Administrative Court.
The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation which had been awarded to him under Law no. 2330. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances. According to the expert’s assessment, the applicant had already been adequately compensated.
The applicant’s lawyer objected to the expert’s calculations. On 2 December 1998 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards.
The applicant requested rectification of the judgment. The file was re-examined by the same five-judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 2 December 1998. On 3 February 1999 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification.
Adnan YAVUZER
On 10 April 1996 the applicant, who was serving in the army at the time, was shot and wounded in a clash with the PKK. He sustained permanent damage to his spine leaving him 99% paralysed below the waist.
On 1 August 1997 the applicant received a retirement pension. His medical expenses were covered by the State. Under Law no. 2330 he was granted compensation for non-pecuniary damage and to cover the costs of hiring a lay helper to assist him with his daily needs. The applicant considered that the amount of the compensation was insufficient.
The applicant requested the Ministry of Defence to pay him additional compensation. The Ministry rejected his request. On 27 April 1998 the applicant challenged the Ministry’s rejection before the second Chamber of the Supreme Military Administrative Court.
The Chamber was composed of military judges two of whom, according to the applicant, had no legal training. In assessing the overall loss which the applicant had suffered, the court deducted the amount of the retirement pension and the compensation which had been awarded to him under Law no. 2330. The court found that only part of the fees which the applicant paid to his lay helper were to be deducted from the compensation awarded to him since he did not need her services on a twenty-four hour basis. The court appointed a legal expert and instructed him to assess what would be just compensation in the circumstances. According to the assessment of the legal expert, the applicant had already been adequately compensated.
The applicant’s lawyer objected to the expert’s calculations. On 16 December 1998 the second Chamber of the Supreme Military Administrative Court ruled that the applicant had been sufficiently compensated bearing in mind the severity of his disability, relevant case law and comparative awards.
The applicant requested rectification of the judgment. The file was re-examined by the same five judges of the second Chamber of the Supreme Military Administrative Court which had given the judgment of 16 December 1998. On 3 March 1999 the Chamber rejected the request for rectification, holding that the request did not fall within the grounds specified for rectification.
B. Relevant domestic law
Article 157 of the Turkish Constitution provides (unofficial translation):
“The Supreme Military Administrative Court shall be the first and last instance for the judicial supervision of disputes arising out of administrative actions involving military personnel or relating to military service, even if such acts and actions have been carried out by civilian authorities. However in disputes arising out of the obligation to perform military service, there shall be no condition that the person concerned be a member of the military body.
Members of the Supreme Military Administrative Court who are military judges shall be appointed by the President of the Republic from a list of three candidates nominated for each vacant office by the President and members of the court, who are also military judges, by secret ballot and by an absolute majority of the total number of such members, from among military judges of the first category; members who are not military judges shall be appointed by the President of the Republic from a list of three candidates nominated for each vacant office by the Chief of the General Staff from among the officers holding the rank and qualifications prescribed by law.
The term of office of members who are not military judges shall not exceed four years.
The President, the Chief Public Prosecutor and Head of Division of the Court shall be appointed among military judges according to rank and seniority.
The organisation and functioning of the Supreme Military Administrative Court, its procedure, disciplinary affairs and other matters relating to the status of its members shall be regulated by law in accordance with the principles of the independence of courts and the security of tenure of judges and the requirements of military service.”
The Law governing the Supreme Military Administrative Court
(Law No. 1602, 4 July 1972)
(unofficial translation)
Article 4 (Security of tenure)
“The President, the Chief Public Prosecutor, the Members and the Presidents of the Chambers of the Supreme Military Administrative Court, being judges of this Court, are guaranteed security of tenure under the Constitution of the Turkish Republic.”
Article 8 (Selection of the Members)
“The President of the Republic shall select:
The members of the Supreme Military Administrative Court from among military judges on the basis of a list of three candidates nominated in respect of each vacant office by an absolute majority of the total number of current members and presidents who belong to the ranks of military judges.
The members of the Supreme Military Administrative Court who do not belong to the ranks of military judges shall be appointed from a list of three candidates nominated in respect of each vacant office by the Chief of the General Staff.”
Article 14 (Chambers)
“The Supreme Military Administrative Court shall be composed of two chambers. The Ministry of Defence can increase the numbers of the chambers by up to three upon the proposal of the General Council and with the approval of the Chief of the General Staff. The Ministry of Defence can decrease the numbers of the chambers down to two under the same procedure.
Each chamber shall be composed of a president and six members. Four of the members shall be military judges and two of them shall be staff officers.
The number of the members in deliberations shall be composed of five. The majority of the members in the deliberations shall consist of military judges. Decisions shall be taken by majority.”
Article 66 of the Law No. 1602 on the Supreme Military Administrative Court provides:
“Rectification of a judgment rendered by the Chamber or the Grand Chamber may be requested on one of the following grounds, only once within 15 days after it is served on the parties:
a) The judgment does not refer to the allegations and the objections which affect its merits;
b) The judgment contains provisions which contradict each other;
c) The judgment is contrary (“aykırı”) to procedural and substantive law (“usul ve kanuna aykırı”)”.


ITEMID: 001-106650
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: HAVELKA v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Mr Josef Havelka, is a Czech national who was born in 1946 and lives in Rychnov u Jablonce nad Nisou.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 22 December 1999 the applicant sued his former lawyer for unjust enrichment and sought payment of 3,561 Czech korunas (CZK), around 99 euros (EUR). At the same time he applied for a lawyer to be appointed to act on his behalf and for a waiver of the court fees.
In February 2000 the Jablonec nad Nisou District Court discontinued the proceedings; in June 2000 the decision was quashed by the Ústí nad Labem Regional Court, which also noted that the applicant should clarify his claims.
In November 2000 and March 2005 the applicant extended his action to two judges and the Ministry of Justice.
In response to the applicant’s request, on 16 February 2001 the Regional Court referred the case to the Liberec District Court on the grounds that the judges of the Jablonec nad Nisou District Court could have been biased owing to the applicant’s action against one of them.
Later, the applicant sought the exclusion of the Liberec District Court judges from the case; however, the Regional Court dismissed this request. The applicant also challenged, before the High Court, the impartiality of the Regional Court judges to examine the exclusion of the first-instance court judges, and later he challenged the impartiality of the High Court judges before the Supreme Court. All these requests were refused.
Throughout 2005 the Liberec District Court appointed two different lawyers to act on the applicant’s behalf and dismissed his request for the extension of the action to the other three parties. The relevant lawyers successfully challenged their appointments in view of their relationship to the case. In February 2006 the Regional Court changed this decision in part and granted the request for the extension of the action to one judge.
On 11 August 2006 the District Court revoked the exemption from the court fees granted to the applicant in 1999 and refused to appoint any more lawyers on his behalf. Based on the Land Registry records it found that the applicant possessed four big plots of land and that he had obtained EUR 9,000 as a result of his application before the Court (Havelka v. the Czech Republic, no. 76343/01, 2 November 2004). The applicant did not challenge this decision.
On 8 February 2007 the District Court held a hearing, refused the applicant’s request for the exclusion of the District Court judges from the case, granted the applicant’s action in relation to his former lawyer and dismissed it concerning the judge. The applicant did not attend the hearing, without providing any explanation in a timely manner and despite having been duly notified.
On 7 May 2008 the Regional Court refused the applicant’s request for the hearing to be rescheduled as unsubstantiated, refused his former request for the exclusion of a District Court judge from the proceedings and upheld the judgment. It became final on 16 June 2008.
In February 2007 the applicant lodged a claim for compensation for non-pecuniary damage arising from the excessive length of the proceedings with the Ministry of Justice under Law no. 82/1998, as amended by Law no. 160/2006.
As the Ministry did not deal with the applicant’s request within the six-month statutory time-limit, he brought a civil action for damages against the Ministry on 17 January 2008. He specified the non-pecuniary damage that he had suffered at CZK 500,000 (EUR 19,135).
In a letter of 8 February 2008 the Ministry of Justice acknowledged that the proceedings had been unreasonably lengthy. Taking into account the complexity of the proceedings and the applicant’s substantial contribution to the delay, the Ministry awarded him CZK 26,000 for non-pecuniary damage.
On 8 April 2009 the Prague 2 District Court granted the action in part and awarded the applicant CZK 14,000 in addition to the just satisfaction granted by the Ministry. The court concluded that the proceedings on the merits had been delayed from 2002 to 2004; however, they had been carried out smoothly after that period. It considered that the applicant had significantly contributed to their length when repeatedly applying for the exclusion of judges from proceedings, raising the issue even before the High and Supreme Courts. Although he had exercised his undisputed rights, the examination of all his requests must objectively have taken due time.
On 14 October 2009 the Prague Municipal Court refused the applicant’s request to exclude the judges of the Municipal and High Courts from the proceedings for their alleged bias and upheld the judgment, finding that the applicant had initially claimed a sum representing less than half the minimum monthly salary and that the litigation could have hardly caused considerable non-pecuniary damage. Overall, the applicant was awarded just satisfaction of CZK 40,000 (EUR 1,515).
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. the Czech Republic (no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-101195
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF PETR KOROLEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;Remainder inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1951 and lived in Vladivostok.
5. On 17 July 1995 the commanding officer of a military unit appointed the applicant as deputy master of the medium tanker (MT) Argun. On 25 July 1995 the command of the auxiliary fleet service of the Russian Pacific Fleet sent the applicant on a trade mission to Singapore. On 1 September 1995 the commander of the military unit appointed him as master of MT Argun. The applicant remained in this post until 10 April 1999.
6. Between 28 April 1994 and 5 April 1996 the tanker was leased out by the State Committee for Management of the Property of the Russian Federation (“the State Property Committee”) to a private company Inakva Co. The lease agreement stipulated that the tanker was to be staffed by the auxiliary fleet service of the Pacific Fleet which also paid the staff's wages in the Russian national currency. Inakva Co was obligated to cover the part of the staff's wages that was paid in foreign currency and the tanker maintenance costs.
7. On 5 April 1996 the State Property Committee signed a new lease agreement with an American company National Pacific Limited.
8. On an unspecified date the applicant and his crew brought proceedings in the High Court of South Africa for the unpaid wages earned by them in 1995, 1996 and 1999.
9. On 25 May 1999 the tanker was arrested in Cape Town, South Africa, pending adjudication of the dispute.
10. By judgment of 25 November 1999 (of 13 August 1999 according to the documents submitted by the Government), the High Court of South Africa declared the Russian Federation to be the lawful owner of the vessel.
11. On 12 March 2001 the Ministry of State Property of the Russian Federation, the successor of the State Property Committee, signed a new lease agreement with a private company Oil Compact, which was obligated to undertake all possible measures to release the tanker from arrest.
12. By final judgment of 12 September 2002 the High Court awarded the applicant 79,750.79 United States dollars against the vessel MT Argun and interest at the rate of 15.5% per annum on that amount. The MT Argun was ordered to pay the applicant's costs and travel expenses. It was also decided that the vessel would be sold at an auction to cover the court awards.
13. On 16 May 2003 the Supreme Court of Appeal of South Africa heard the parties' appeals and upheld the judgment of 12 September 2002.
14. On 21 November 2003 the Ministry of State Property and Ministry of Defence signed an agreement with a private agent OAO Sovfrakht seeking release of MT Argun from arrest and its transfer to the Russian Military Fleet. On the same day OAO Sovfrakht signed an agreement with a third party Avangard-2 Shipping Company S.A. which won the auction and bought the vessel.
15. On 16 January 2004 the MT Argun was handed over to the Russian Military Pacific Fleet.
16. According to the applicant, in June and July 2006 he received part of the judicial award in the amount of 7,156 USD in respect of the wages and 4,752 USD in respect of the accrued interest.
17. On 4 May 2006 the applicant brought proceedings against the State complaining of the actions (inaction) of the Federal Agency for Management of State Property in respect of his claims for unpaid wages and seeking to recover the said wages in the amount of 72.547 USD as well as legal expenses and non-pecuniary damage. On 5 May 2006 the Leninskiy District Court of Vladivostok declined jurisdiction in the case. This decision was upheld by the Primorye Regional Court on 28 June 2006.
18. Thereafter, the applicant brought the same claims before the Tverskoy District Court of Moscow. On 3 October 2006 the District Court declined jurisdiction in favour of a justice of peace. This decision was upheld by the Moscow City Court on 27 February 2007. It appears that the applicant did not bring his claims to any other court.
19. On 25 November 2002 the authorities initiated criminal proceedings in respect of the applicant in connection with his claims in the South African court.
20. On 17 March 2003 the applicant was charged with fraudulent acquirement of title to the property of the Russian Federation and other related crimes. On the same day his case was sent for preliminary investigation to the military prosecutor's office of the Pacific Fleet, and the applicant was ordered not to leave town.
21. On 26 August 2003 the preliminary investigation was stayed pending the applicant's convalescence. On 5 December 2003 the investigation was resumed.
22. Between 16 January 2004 and 17 June 2005 the applicant and his legal counsel studied the case file.
23. On 20 June 2005 the case was submitted for trial by the Leninskiy District Court of Vladivostok (“the District Court”) and was assigned to judge I.
24. On 6 July 2005 the applicant requested that the preparatory hearing be postponed due to his counsel's illness.
25. On 17 November 2005 the District Court refused to examine the case and ordered the prosecution to redraft the bill of indictment tainted with a number of defects. The case was returned to the court on 29 November 2005.
26. On 12 January 2006 the hearing did not take place as the judge was involved in different proceedings.
27. The hearing of 13 January 2006 also did not take place due to the applicant's illness. The proceedings were stayed pending his convalescence.
28. On 6 July 2006 the proceedings resumed, but the hearing did not take place as the applicant's counsel did not appear.
29. On 12 July 2006 the applicant was granted leave to study the new bill of indictment until 21 July 2006.
30. On 24 July 2006 the court granted the applicant's request to send the case back to the prosecutor for re-drafting of the bill of indictment. The case was returned to the court on 18 August 2006 and was assigned to judge P.
31. The hearings scheduled for September and October 2006 did not take place due to the applicant's illness.
32. In November 2006 the court began hearing the case on the merits. The court adjourned the proceedings in November 2006, January and June 2007, each time for a week, due to the applicant's or his counsel's illness.
33. On 25 June 2007 the court adjourned the proceedings for ten days as the judge was away on a study trip.
34. The hearings of 24 December 2007 and 25 January 2008 did not take place following the applicant's and his counsel's failure to appear.
35. By judgment of 11 March 2008 the applicant was convicted of fraudulent acquirement of title to property by way of obtaining of the court award of allegedly unpaid wages, and received a suspended sentence of five years' imprisonment.
36. On 2 June 2009 the applicant died.
37. Article 437 provided that the procedure for enforcement of foreign judgments was determined by the relevant international treaties. It further stated that a judgment of a foreign court could be submitted for enforcement within three years after its adoption.
38. Article 409 provides that judgments of foreign courts concerning civil matters are recognized and enforced in Russia pursuant to a pertinent international treaty. It further stipulates that such judgments can be submitted for enforcement within three years after their adoption.
39. Article 410 provides that a request for enforcement of a foreign judgment should be filed with a regional court or other court of equal standing at the place of the debtor's residence or location.
40. Article 411 sets out the rules of procedure applying to the requests for enforcement of foreign judgments.
41. The court ruled that lack of a pertinent international treaty cannot be cited as grounds for refusal of a request for enforcement of a foreign judgment. It further stated that such a request can be granted in the event that the courts of the relevant foreign State recognize the judgments of the Russian courts on the basis of reciprocity. It ordered that the lower court verify whether such reciprocity existed in the case at hand and inquire into the existence of other international treaties concerning the two relevant States that might concern co-operation in the legal and judicial domain.
42. The Convention requires that that all members of the Commonwealth of Independent States, including Russia, Ukraine and Belarus grant the citizens of the other member States the national legal regime in all legal matters. Section III determines the reciprocal order of recognition and enforcement of the decisions taken by legal bodies in civil, family and criminal cases.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104143
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF VLADIMIR SOKOLOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 34;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Anatoly Kovler;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 7. The applicant was born in 1970 and lived, before his arrest, in Nizhniy Novgorod. He is currently serving a prison sentence in Nizhniy Novgorod.
8. On 27 June 2003 police arrested the applicant on suspicion of several murders and other serious crimes. The applicant alleged that policemen had refused to get him a lawyer and had beaten him to make him sign an acknowledgment of guilt. The applicant remained in detention pending the investigation and trial.
9. On 2 March 2004 the regional prosecutor's office charged the applicant with planning several murders and the unlawful acquisition and possession of firearms.
10. The applicant alleged that during the pre-trial proceedings he had been transferred on several occasions from the Nizhniy Novgorod remand prison to different police stations in Nizhniy Novgorod and was kept there for several days under the pretext of investigative activities. On 29 March 2004 the regional prosecutor replied to the applicant's complaint in this connection that he had been transferred to police stations on the lawful orders of the investigator in charge of his case to take part in investigative activities. The prosecutor further stated that his reply could be appealed against to a higher prosecutor or to a court. It appears that the applicant did not lodge any appeal before those authorities.
11. By a final decision of 27 April 2004 the Nizhniy Novgorod Regional Court (“the Regional Court”) dismissed the applicant's complaint against the prosecutor's refusal to initiate criminal proceedings against police officers who had allegedly beaten the applicant.
12. On 14 October 2004 the Regional Court convicted the applicant, along with seven co-defendants, as charged and sentenced him to nineteen years' imprisonment. The court held that the applicant's guilt in the impugned crimes had been proven by an extensive body of evidence examined during the trial, such as statements by the applicant's co-defendants and witnesses, expert examinations and other evidence. The court also observed that the applicant's allegations of ill-treatment by police to make him sign a confession had already been investigated by the prosecutor's office, which had refused to initiate criminal proceedings in this respect. The court also noted that the applicant's confessions could not be regarded as an acknowledgment of guilt since they had been made after he had been arrested on suspicion of the impugned crimes.
13. On 29 April 2005 the Supreme Court of the Russian Federation upheld the applicant's conviction on appeal.
14. During the criminal proceedings against him the applicant was detained in Nizhniy Novgorod remand prison IZ-52/1 (“remand prison no. 52/1”) and Moscow remand prison IZ-77/3 (“remand prison no. 77/3”). The parties agreed on the following timeline of the applicant's detention in those prisons:
- between 8 July 2003 and 12 January 2005 the applicant was detained in remand prison no. 52/1
- between 13 January and 5 December 2005 he was detained in remand prison no. 77/3
- between 6 December 2005 and 14 February 2006 the applicant was again detained in remand prison no. 52/1.
15. On 14 February 2006 the applicant was transferred to serve his prison sentence at a correctional colony in the Nizhniy Novgorod Region.
16. The applicant was detained in different cells. All of them were overcrowded. Most of the time (between November 2003 and 12 January 2005 and between 6 December 2005 and 14 February 2006) the applicant was detained in cell no. 8/59, which measured approximately 49 square metres, had 32 beds and accommodated between 70 and 100 detainees. Two beds were used to store kitchenware and food. The applicant did not have an individual sleeping place. The cell was equipped with one toilet and washstand. The inmates were allowed one hour's exercise per day. The applicant was dissatisfied with many other aspects of his detention, such as a lack of bedding, natural light and ventilation, poor state of the drainage and water supply, and the presence of insects in the cells.
17. The Government provided the following information on the cells in which the applicant was detained. They underlined that the number of detainees indicated by them corresponded to an average number of inmates per cell detained together with the applicant.

18. The Government further provided a report by the prison department of the Nizhniy Novgorod Region of 21 April 2006 (“prison department”) on the investigation carried out into the complaints about conditions of detention raised by the applicant before the Court. The Government submitted that it could be seen from that document that other aspects of the applicant's detention fully complied with the requirements of the Convention. The applicant had been provided with an individual sleeping place and bedding. All cells in the remand prison had windows which let in sufficient fresh air and daylight. The applicant had been able to read and work by natural light. All cells were equipped with the mandatory ventilation system. The applicant had been allowed one hour's exercise per day. He had been provided with drinking water. The cells were not overrun with insects or rodents.
19. During the first week the applicant was kept in cell no. 604 and then he was placed in cell no. 603 which measured approximately 32 square metres and accommodated between 30 and 37 detainees. He stayed in that cell until December 2005. The cell was equipped with bunk beds on which 16 detainees could sleep in summer time and 13 in winter time. The applicant did not have an individual sleeping place. He was provided with very old and dirty bedding. The cells were full of insects. Detainees had to sleep close to each other and very often they contaminated each other with different diseases. All cells were equipped with only one toilet and washstand. The inmates were allowed one hour's exercise per day. The applicant was dissatisfied with many other aspects of his detention such as a lack of natural light and ventilation, and the poor quality of the water and electricity supply.
20. The Government provided the following information on the cells in which the applicant was detained.
21. The Government submitted that the other aspects of the applicant's detention had fully complied with the requirements of the Convention. The applicant had been provided with an individual sleeping place, bedding and kitchenware. He had been able to read and work by natural light. Fresh air came into the cells through the small windows which could be opened and closed without any difficulties. All cells were equipped with the mandatory ventilation system, toilet and washstands which the applicant could have used at any time and which offered privacy. The applicant had been allowed one hour's exercise per day. He had been provided with drinking water. The cells were not overrun with insects or rodents.
22. The applicant suffers from a number of chronic diseases such as renal failure, hypertension and podagra. In 2002 he was designated Category 3 disabled, which had to be reassessed on a regular basis by medical examination.
23. According to the applicant, upon his arrival at remand prison no. 52/1 on 8 July 2003 he asked the prison medical staff to place him in the medical unit for examination. They refused him on the ground that there was no available space and offered to place him there at his own expense. The applicant asked the general practitioner of the prison to prescribe him some treatment. The doctor replied that he (the applicant) would not receive any treatment until he agreed to collaborate with the investigating authorities. On 9 July 2003 the applicant's relatives paid the amount required, however he was not admitted to hospital.
24. On 15 August 2003 the applicant's lawyer lodged a request with the investigator in charge of the applicant's criminal case in which he asked for the applicant not to be transferred between remand prisons and different police stations in view of his poor health. In that request he also submitted that the applicant had not been admitted to the prison hospital. On the same day the investigator replied that the investigating authorities had been aware of the applicant's medical condition and that they had not hindered the applicant's access to medical assistance in the remand prison.
25. On 29 September 2003 the applicant was admitted to the prison hospital and remained there until 21 October 2003. Subsequently, he was hospitalised on several other occasions from 23 to 31 December 2004, 12 to 28 December 2005 and 24 January to 2 February 2006.
26. It appears that the applicant did not complain to the remand prison administration that there was a delay in placing him in the hospital. Neither did he contest the fact that he had to pay for his treatment. It also appears that he did not lodge any complaint with competent domestic authorities about the quality of treatment provided to him in the hospital of remand prison no. 52/1.
27. The Government submitted that upon the applicant's arrival to remand prison no. 52/1 he had been examined by medical staff and had been diagnosed with a number of chronic diseases such as renal failure, podagra and hypertension. During his stay in that prison the applicant had undergone out-patient and in-patient treatment. During his in-patient treatment the applicant had undergone regular blood and urine examinations to monitor his state of health. On several occasions the applicant had been examined by qualified specialists, such as a general practitioner, eye specialist, neurologist, dermatologist, rheumatologist, dentist and surgeon. In February 2004 and February 2006 the applicant had also undergone two medical examinations which had confirmed that he was Category 3 disabled.
28. An examination to reassess the applicant's disability status was to have taken place in January 2005. The applicant alleged that upon his transfer to remand prison no. 77/3 in January 2005 the head of the prison had informed him that the meeting of the commission could not take place there owing to the absence of qualified specialists in their medical unit. Therefore, the applicant's disability status was not renewed until 1 February 2006.
29. The applicant further alleged that most of the medicines provided to detainees in the remand prison had been out of date. There had been no dentist at the prison. In case of severe toothache the detainees had been transferred to another remand prison to have teeth removed. The food in the prison had been of very poor quality and the applicant had had stomach pains as a consequence.
30. It appears that the applicant did not lodge any complaints about the quality of medical assistance in remand prison no. 77/3 with the competent domestic authorities.
31. The Government submitted that in remand prison no. 77/3 the applicant had undergone out-patient treatment. Since the applicant's state of health had been stable he had not been placed in the prison hospital.
32. The applicant submitted that on 7 February 2006 a certain Mr Sh., an official of the prison department questioned the applicant about his complaints to the Court and, in particular, about the conditions of his detention in remand prison no. 52/1. The applicant explained which aspects of his detention had been unsatisfactory to him. Mr Sh. asked the applicant to testify in writing that he had no complaints about the staff of the remand prison since the conditions of detention in the prison had been poor owing to a lack of funds. The applicant refused to produce such a statement.
33. On the same date a prison doctor asked the applicant about his health and examined him. Also on the same date the prison authorities measured cell no. 8/59, in which the applicant was detained, disinfected the floor and the mattresses.
34. On 8 February 2006 the head of one of the units of remand prison no. 52/1 interviewed the applicant about his application to the Court. He promised to provide him (the applicant) with bedding and asked him to prepare a written statement indicating that during his stay in the prison he had been provided with bedding. The applicant refused.
35. On 9 February 2006 the medical assistant of the remand prison asked the applicant to provide a written statement saying that he had no complaints about the medical staff of the prison. The applicant replied that he had a number of such complaints, which he had described in his application to the Court.
36. On the same date Mr Sh. again asked the applicant to provide a written statement saying he had no complaints about the staff of remand prison no. 52/1. The applicant refused.
37. In March 2006 the applicant's representative forwarded letters to the Court from Mrs Lisina, the applicant's acquaintance, and Mrs S. Gasanova, the applicant's mother, as well as copies of the complaints lodged with the prosecutor's office by counsel Ya., who had represented the applicant in the criminal proceedings against him.
38. Mrs Lisina, who had been a witness for the applicant during his trial, claimed that on 14 February 2006 at around 7.30 a.m. a certain Mr G. from the regional prosecutor's office had phoned her and invited her to come to the prosecutor's office to discuss the circumstances of the applicant's arrest in June 2003. Mrs Lisina had refused since she had already given testimony in this respect during the applicant's trial and she had nothing to add to her previous statements. She added that, should there be any further questions in this connection, the prosecutor's office should send her an official summons. Mrs Lisina was not contacted again by any state officials.
39. The applicant's mother submitted that on 27 March 2006 at 6 p.m. two officers from the Nizhniy Novgorod Department of the Interior had come to her apartment and questioned her about her son's whereabouts. At around 8 p.m. on the same date she had received a phone call from an unknown man who had told her to dissuade her son from writing complaints abroad or he would have problems in prison. On the next day the applicant's mother complained to the regional prosecutor about the events of 27 March 2006.
40. On 29 March 2006 counsel Ya. complained to the regional prosecutor that on 27 March 2006 an unknown man had called him and asked him to advise the applicant to stop writing complaints abroad and that, if he did not, he would have big problems in prison.
41. On 14 April 2006 the prosecution authorities replied to counsel Ya. that the investigation carried out in respect of his allegations had established that the applicant had had no problems in prison.
42. On 18 and 19 April 2006 the regional prosecutor interviewed Mr Sh., the official of the prison department, Mrs N., deputy head of the hospital of remand prison no. 52/1 and Mrs Ch., head of the unit of that hospital and drafted records of those interviews.
Mr Sh. confirmed that on 7 and 9 February 2006 he had met the applicant to find out his reasons for lodging an application with the Court and to verify his complaints. He had not asked the applicant to produce any written statements nor had he put any pressure on him.
Mrs N. and Mrs Ch. submitted that during his stay in the remand prison the applicant had been admitted to the prison hospital on several occasions. Hospital staff had never asked him to produce any written statements retracting his complaints lodged with the Court.
43. On 24 April 2006 the investigator with the prosecutor's office of the Leninskiy District of Nizhniy Novgorod refused to initiate criminal proceedings in respect of the applicant's mother's complaints of threats sent to her address. The decision stated that two officers of the Department of the Interior had interviewed the applicant's mother in connection with the criminal proceedings initiated in 2002 in respect of her other son, Mr R. Gasanov, who had fled the investigation. In particular, they had asked her about her son's whereabouts. The two officers had not threatened the applicant or his mother. On 6 May 2006 the deputy prosecutor of the Leninskiy District of Nizhniy Novgorod quashed the decision of 24 April 2006 on the ground that it had not been properly substantiated and referred the materials for additional verification.
44. On 6, 7 and 8 May 2006 an official from the Department of the Interior interviewed officers who had visited the applicant's mother on 27 March 2006. He also interviewed counsel Ya., Mrs Lisina and the applicant's mother in connection with their complaints of threats directed at the applicant.
45. It appears from the Government's submissions that on 12 May 2006 the regional prosecutor refused to initiate criminal proceedings in respect of the complaints lodged by the applicant's mother, counsel Ya. and Mrs Lisina.
46. The Law “On the conditions of detention of suspects and accused persons” of 1995 (as amended) provides that detainees should be kept in conditions which satisfy health and hygiene requirements. They should be provided with an individual sleeping place and be given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell (Article 23). It also provides that inmates are entitled to medical assistance (Article 17). If an inmate's health deteriorates, the medical officers of the remand prison are obliged to examine him promptly and inform him of the results of the examination in writing. If the inmate requests to be examined by staff of other medical institutions, the administration of the detention facility is to organise such an examination. If the administration refuses, the refusal can be appealed against to a prosecutor or court. If an inmate suffers from a serious disease, the administration of the remand prison is obliged immediately to inform the prosecutor, who can carry out an inquiry into the matter (Article 24).
VIOLATED_ARTICLES: 3
34


ITEMID: 001-79053
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SOLMAZ v. TURKEY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1966 and lives in Ankara.
5. On 23 January 1994 the applicant was arrested and placed in police custody by officers from the Anti-Terrorist Branch of the Istanbul Security Headquarters, on suspicion of being involved in the activities of an illegal armed organisation, namely the TKP/ML (Türkiye Komünist Partisi/Marksist Leninist, Turkish Communist Party / Marxist Leninist).
6. On 7 February 1994 he was brought before the public prosecutor and then the investigating judge at the Istanbul State Security Court. The same day, the investigating judge remanded the applicant in custody.
7. On 31 March 1994 the public prosecutor filed an indictment charging the applicant and four others with membership of an illegal armed organisation and involvement in activities which undermined the constitutional order of the State.
8. At the time of the events, a similar case concerning certain activities of the TKP/ML was pending before the third chamber of the Istanbul State Security Court. Following a jurisdictional conflict between two chambers of the court, on 14 March 1995 the Court of Cassation decided to join the applicant's case to the one pending before the third chamber. Consequently, the number of accused was increased to sixteen people.
9. The applicant did not attend a number of hearings.
10. In the course of the proceedings, the court held forty-eight hearings. At the end of each hearing the State Security Court rejected the applicant's requests for release pending trial, having regard to the nature of the offence, the state of the evidence and the content of the case file.
11. On 12 June 2000 the Istanbul State Security Court convicted the applicant as charged and sentenced him to life imprisonment.
12. On 15 May 2001 the Court of Cassation quashed the decision for procedural reasons. The case was remitted to the Istanbul State Security Court for further examination and the applicant remained in detention. The case was resumed with 15 accused, including the applicant.
13. On 8 February 2002 the applicant's lawyer requested the court to release the applicant pending trial due to his poor health. He submitted a medical report certifying that Mr Solmaz was suffering from Wernicke-Korsakoff syndrome (a brain disorder caused by thiamine deficiency, usually associated with alcoholism). The court dismissed the lawyer's request, maintaining that the applicant could be treated in prison. Moreover, it held that, considering the nature of the offence, the state of the evidence and the content of the file, the applicant should continue to be detained pending trial.
14. Following an objection by the applicant's lawyer, the court reconsidered its decision of 8 February 2002. On 18 February 2002, relying on a medical report and considering the length of the period which the applicant had already spent in detention, the court ordered his release pending trial. It further held that it was likely that the final decision of the court would be in favour of the applicant.
15. State Security Courts were abolished by constitutional amendments introduced on 7 May 2004. Subsequently, the applicant's case was resumed before the Istanbul Assize Court.
16. After holding seventeen hearings, on 31 January 2005 the Istanbul Assize Court convicted the applicant and sentenced him to life imprisonment in accordance with Article 146 of the Criminal Code.
17. However, on an unknown date the Court of Cassation quashed the decision of the first-instance court once again. The case was resumed before the Istanbul Assize Court, where it is still pending.
18. Article 63 of the Criminal Code (Law no. 5237) provides:
“ Any term served due to circumstances which occurred before the judgment became final and which resulted in the restriction of personal liberty shall be deducted from the sentence. (...)”
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-87219
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PEAK v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1956 and lives in Balatonakarattya.
1. The proceedings concerning the applicant’s patent rights
5. On 26 October 1995 the applicant brought an action before the Budapest Regional Court against the Military Engineering Institute and six individuals. He sought to have it established that the defendants had violated his patent rights in that they had utilised without licence one of his inventions when creating a military defence tool for armoured vehicles. The applicant was represented by his patent agent.
6. On 17 April 1997 the Regional Court dismissed the applicant’s claim. In May 1997, the applicant had his patent cancelled, being of the view that it followed from the decision of the Regional Court that it could only be reviewed if he first abandoned his patent protecting the invention. Subsequently, he appealed against the Regional Court’s decision, maintaining that the defendants had used his invention without licence.
7. On 6 January 1999 the appellate bench of the Supreme Court quashed the first-instance decision and remitted the case to the Regional Court.
8. In the resumed proceedings the defendants filed a preparatory paper with the Regional Court on 9 November 1999.
9. On 7 April 2000 the Regional Court, establishing that the defendants’ invention had been based on a different technical solution than that of the applicant and, that, therefore, the former had not illegally used the latter’s invention, again dismissed the action. The applicant appealed.
10. In 2003 the appellate bench of the Supreme Court appointed a technical expert, the Expert Committee of the Hungarian Patent Office, which submitted its opinion to the court on 2 February 2004. On 8 March 2004 the applicant submitted a counter-opinion prepared by other experts.
11. The appellate bench of the Supreme Court upheld the first-instance decision on 31 March 2004. The courts relied on documentary evidence, the opinion of the technical expert and the parties’ testimony. The applicant lodged a petition for review with the Supreme Court.
12. On 15 October 2004 the review bench of the Supreme Court declared the applicant’s petition inadmissible, without examining the merits, since it was incompatible ratione materiae with the relevant provisions of the Code of Civil Procedure.
13. In April 2004 the applicant lodged a criminal complaint with the Budapest Prosecutor’s Office, alleging that the documents submitted by the defendants during the proceedings had been forged. On 18 April 2005, after a remittal, the Prosecutor’s Office terminated the investigation in the absence of any crime, which decision was upheld by the Chief Prosecutor’s Office in June 2005.
2. Civil proceedings against the Budapest Regional Court
14. In 2004 the applicant brought an official liability action against the Budapest Regional Court before the Pest County Regional Court, alleging that the Budapest Regional Court’s wrong decision had forced him to abandon his patent rights in 1997.
15. On 10 October 2005 the Pest County Regional Court dismissed the applicant’s claim. It found that the applicant had erred in accepting a non-final decision ─ against which he appealed ─ as a binding legal opinion and, therefore, the Budapest Regional Court was not responsible for his alleged loss. The applicant appealed.
16. On 13 April 2006 the Budapest Court of Appeal upheld the first-instance decision. The applicant lodged a petition for review with the Supreme Court. On 9 November 2006 the Supreme Court dismissed the applicant’s petition. The courts relied on documentary evidence and the parties’ testimony.
VIOLATED_ARTICLES: 6


ITEMID: 001-92918
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF CİHAN ÖZTÜRK v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - claim dismissed
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1941 and lives in Istanbul.
6. At the time of the events giving rise to this application, the applicant was the manager of the post office in Beyoğlu, Istanbul. He wrote an article entitled “An open letter to Ms G.B., former Director of the Istanbul PTT”, in which he criticised Ms G.B.’s negligence in the project to restore the Beyoğlu post office building and blamed her for the dilapidated state and partial collapse of the building. In May 2000, the article was published in the 496th issue of the PosTel magazine, a nonprofit-making publication of the State postal service (“the PTT”), which has approximately 28,000 employees.
7. In the same edition of the magazine, in an article entitled “PTT Hospital and Beyoğlu Post office”, the editor-in-chief also criticised the restoration project and claimed that the amount paid for the project suggested that it had been carried out to make certain people richer. He concluded that those who were responsible for the current state of the building or had been negligent had been put on trial, but that the unlawfulness and abuses would soon be forgotten and the accused would get away with the offences. He pointed out that justice delayed was not justice.
8. On 7 June 2000 Ms G.B. sent a letter of correction to the editorinchief of the magazine, requesting him to publish her replies to the allegations made against her. This letter was received by the editor-in-chief on 9 June 2000.
9. Since the magazine did not publish the letter, Ms G.B. brought an action in the Fatih Criminal Court of First Instance seeking an order for the publication of her letter.
10. On 26 June 2000 the Fatih Criminal Court ordered the publication of the correction letter. However, it decided that certain passages in the letter should be deleted as the statements contained therein went beyond the aim of responding to the allegations made against the plaintiff. The parties did not inform the Court whether this letter was published in the Pos-Tel magazine.
11. On 31 August 2000 Ms G.B. brought a civil action for compensation against the applicant and the editor-in-chief of the magazine before the Istanbul Civil Court of First Instance. She claimed that the allegedly defamatory remarks made in the magazine, particularly in the applicant’s article, constituted an attack on her reputation. She thus requested that the court award her compensation in the amount of 5,000,000,000 Turkish liras (TRL) for nonpecuniary damage.
12. During the proceedings the court examined the following passages:
“My esteemed former Director, ... as a result of your pointless and inappropriate acts, which were carried out merely to obtain economic and political profit and to appear cute to some people, you caused irreparable harm to our historic PTT (Beyoğlu) building ...
... I believe that our late Minister of Communications, Hüseyin Hasip Efendi, would turn in his grave if he saw the building today ...
My esteemed retired Director, in an interview which was published in Tempo magazine, in which you appeared in the guise of a heroine and a symbol for honesty, like an exemplary manager in Turkey, you managed to exploit the sentiments of (the interviewer) by appearing innocent, clean and pure. The interview was given the title ‘They ate the president who did not eat’. This title moved me tremendously and made me think. I wished that the interview had not been published in a serious magazine. Now, like a lady with a conscience, and without twisting the truth, tell [us]. In our country there are many people who take bribes; there are thieves and crooks. And even though these people are convicted by our independent courts, they never admit that ... they stole or that they were bribed. As you may very well remember, an eminent statesman once said, ‘No one can know what happens between two people and bribery cannot be documented.’...
While it was decided by the Ministry of Transport, the State Planning Agency and the Office of the Prime Minister to pay 373,800,000,000 TRL for our building, I cannot understand how you managed to spend 422,000,000,000 TRL, by consulting with Mr U.D., who has nothing to do with our administration. Do you also know that, in a telephone conversation, one of your employees told me that he could not make any payment which had not been approved by Mr U.D.?”
13. On 15 November 2001 the first-instance court decided that the article went beyond mere criticism of an unsuccessful restoration project. In its detailed decision, the court noted that there was a criminal case pending against the plaintiff on charges of breach of duty for having made an overpayment to the contractor who carried out the restoration project. The dispute between the contractor and the PTT had not yet been resolved and the plaintiff had not been convicted. Nevertheless, the proceedings in question had been suspended under Law no. 4616. However, the court held that, even assuming that the proceedings had not been suspended and that the plaintiff had been convicted of the charges, this did not mean that she had been accepting bribes or that she had not acted like a lady. The court observed that criticising an unsuccessful restoration project was not the same as insulting an individual, and that the applicant had exceeded the limits of permissible criticism by using demeaning statements in the article. It had been implied that the plaintiff had taken bribes. Taking into account the responsibility of the plaintiff in the restoration project and the socio-economic situation of the parties, the court decided to award the plaintiff the sum of TRL 750,000,000 (approximately 500 euros (EUR) at the relevant time) in compensation for non-pecuniary damage, to be paid by the applicant and the editor-in-chief. The applicant paid a total sum of TRL 1,530,232,000 (approximately EUR 1,000), which included the principal compensation, enforcement costs and interest.
14. On 27 December 2001 the applicant appealed against the decision of the first-instance court, complaining that it interfered with his freedom of expression. He noted that the impugned article had not targeted the personality of the plaintiff, but had been aimed at raising awareness on the subject of the protection of a historic monument by the State authorities. As a former manager of Beyoğlu post office, he had merely expressed his concern at the state of the building and had criticised the plaintiff for her omissions, contributing to the collapse of the building. He argued that the first-instance court judges had erred in their decision by refusing his request that they visit the building, which might have allowed them to better understand his criticism in the article. Thus, the applicant requested the Court of Cassation to quash the above judgment which, in his opinion, risked preventing scrutiny of public values and would deter the public from raising their voices against the plunder of public monuments.
15. On 4 June 2002 the Court of Cassation upheld the judgment, holding that the first-instance court had duly examined the circumstances in which the insulting statements had been made.
16. On 20 November 2002 the Court of Cassation dismissed a request by the applicant for rectification of its decision.
17. According to Law no. 4616 on conditional release, suspension of proceedings and execution of sentences in respect of crimes committed before 23 April 1999, proceedings could be suspended and subsequently dropped if no crime of the same or a more serious nature was committed by the offender within a five-year period.
18. Article 49 of the Code of Obligations provides as follows:
“Any person who alleges that his personality rights have been illegally violated can claim compensation for non-pecuniary damage.
The judge shall take into account the parties’ socio-economic situation, their occupation and their social status when determining the amount of compensation...”
VIOLATED_ARTICLES: 10


ITEMID: 001-71463
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF HORNACEK v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1950 and lives in Turany.
5. On 18 November 1997 the Martin District Court issued a payment order under which the applicant was obliged to pay the equivalent of approximately 250 euros to the plaintiff.
6. On 10 December 1997 the applicant, through his lawyer, filed an objection to the order. The lawyer sent the objection to the District Court by registered mail. He submitted a copy of a postal certificate according to which he had deposited the mail for despatch to the District Court in Martin at the post office on 10 December 1997. The mail had registration number R 690. The certificate, in which the addressee was indicated by the sender, did not mention the contents of the mail.
7. On 12 December 1997 the Martin District Court dismissed the applicant’s objection to the payment order. The decision stated that the order had been served on 25 November 1997 and that the time-limit for challenging it by means of an objection had expired on 10 December 1997. The court held that the applicant had filed the objection on 11 December 1997 – the date appearing on the stamp of the District Court – which was out of time.
8. On 29 December 1997 the applicant appealed. With reference to Article 57(3) of the Code of Civil Procedure he argued that by depositing the remedy as registered mail at the post office on 10 December 1997 he had respected the statutory time-limit. He submitted a copy of the postal certificate R 690.
9. On 26 October 1999 the District Court judge heard the applicant and his lawyer. The lawyer stated that the registered mail R 690 was the only mail which he had deposited in person at the post office in Turany on 10 December 1997.
10. On 29 October 1999 the judge heard an employee of the District Court in charge of incoming mail. The employee, after having consulted the file, confirmed that the document in question had been stamped and signed by her and that she had received it in person. She further stated that, in accordance with constant practice, the court’s registry would attach the envelope to the letter in case of its delivery by post and that this fact would be mentioned on the document. The employee also pointed out that the applicant’s lawyer used to bring most of his documents to the court in person but admitted that he sometimes also sent submissions by post. In reply to a question by the lawyer the employee stated that it was impossible to determine the contents of the registered mail R 690 addressed to the court and to whom it had been submitted.
11. On 30 November 1999 the Žilina Regional Court upheld the District Court’s decision of 12 December 1997. With reference to the District Court’s stamp of 11 December 1997 on the relevant document and to the above statement of the employee of the District Court, the Regional Court established that the remedy had been filed out of time. Since the postal certificate did not indicate the contents of registered mail R 690, the applicant had not reliably shown that he had deposited the relevant document at the post office on 10 December 1997.
12. On 11 February 2000 the applicant filed an appeal on points of law. He argued that the employee of the District Court could have committed an error when registering the document and that the mail register of the District Court did not indicate the contents of registered mail R 690 and to whom it had been transferred. He argued that it had not been reliably shown that the document had been deposited in person as the lower courts had found.
13. On 27 September 2000 the Supreme Court rejected the appeal on points of law. The Supreme Court held that the District Court’s stamp on the document challenging the payment order indicated that the document had arrived at the District Court on 11 December 1997. According to a handwritten remark which the employee of the District Court in charge of incoming mail had made on it, the document had been submitted to the court’s registry in person. These facts, taken together with the statement of the employee before the District Court judge, showed that the remedy had been filed belatedly. The applicant had not proved beyond any doubt that the registered mail R 690 deposited at the post on 10 December 1997 had actually contained his objection to the payment order.
14. Under Article 57(3) of the Code of Civil Procedure, a time-limit fixed in the context of judicial proceedings is respected when the action to be taken is effected at a court or where a submission is transmitted, on the day on which the time-limit is to expire, to a body which is under an obligation to deliver it to the addressee.
15. In accordance with established practice, a timelimit is deemed to be respected where a document is deposited, before the end of the day on which the time-limit expires, at a post office for the purpose of its delivery to the addressee through postal services.
16. In a judgment given in 1977 the Supreme Court of the Slovak Socialist Republic held that the date indicated on the postal certificate issued to the sender of registered mail and not the date on the envelope of such mail was relevant when considering whether an appeal was filed in time. The Supreme Court expressed the view that a court could dismiss an appeal as having been filed belatedly only where it had reliable reasons for such a conclusion. In particular, it had to establish when, where and how an appeal was actually filed (Supreme Court’s Collection, 34/1978, p. 567).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1