ITEMID: 001-97936
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: AMMDJADI v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Ms Farzaneh Bigwand Ammdjadi, by 2002 an Iranian national, was born in 1961 and lives in Troisdorf. She was represented before the Court by Ms E. Dikkaya, a lawyer practising in Köln.
In 1980 the applicant married an Iranian national in Kermanschah/Iran. Subsequently they moved to Germany. In 1983 their son was born.
On 15 July 1997 the applicant and her former husband agreed that they would “seek to have clarified further rights, like alimony and pension rights, by their lawyers according to German law”.
By a decision of the Köln District Court of 10 November 1999, on her former husband’s request, the applicant was divorced. The court found that, on the basis of Iranian law – the law applicable to the facts of the present case – the petition was well-founded. At that time, no motion for a compensation of pension rights had been lodged.
On 24 January 2001 the Köln District Court rejected the applicant’s request for subsequent compensation of pension rights (nachträgliche Durchführung des Versorgungsausgleichs). It found that, on account of the fact that both parties were of Iranian nationality, section 8 paragraph 3 of the Agreement on Establishment between the German Reich and the Persian Empire (Niederlassungsabkommen, hereinafter referred to as “the Agreement”, see “Relevant domestic and international law and practice” below) excluded the application of section 17 § 3 second sentence of the Introductory Act to the German Civil Code (see “Relevant domestic and international law and practice” below, hereinafter referred to as “the Introductory Act”) – which alone could be the basis for compensation of pension rights. It pointed out that the Agreement intended to attribute all the consequences of a divorce and the divorce itself to the law of the parties’ common nationality. It also held that the fact that under Iranian law compensation of pension rights was not known did not violate the German ordre public.
On 17 May 2001 the Köln Court of Appeal confirmed this decision. It also found that section 8 paragraph 3 of the Agreement clearly excluded the application of section 17 § 3 second sentence of the Introductory Act. It pointed out that pension rights adjustment had only been established in 1977 and was not known in many countries. It also found that the applicant’s and her former husband’s statement, namely that they would seek to have clarified by their lawyers their further rights, such as alimony and pension rights, irrespective of the question whether it qualified as choice of law, in any event lacked the required notarial certification.
On 6 July 2005 the Federal Court of Justice dismissed a further appeal by the applicant. It also found that, given the apparent absence of a choice of law by the parties and the lack of a violation of the German ordre public, the Agreement excluded the application of section 17 § 3 second sentence of the Introductory Act. On 28 September 2005 the Federal Court of Justice dismissed her appeal that she had been denied a fair hearing.
On 17 April 2008, without stating further reasons, the Federal Constitutional Court refused to hear the applicant’s constitutional complaint.
The balancing of pension rights acquired by one partner in the course of the marriage has been introduced into German law in 1977 (in the states (Länder) of the Former German Democratic Republic it has been introduced in 1992). This comprehensive balancing of all private and public pension entitlements between spouses is aimed at protecting the “weaker” partner, in particular women who often did not work at all. It is related to both, family law and social law.
Apart from German law only Canadian law has a compensation of pension rights in the sense of a comprehensive balancing of pensions. Other forms of social safeguards on divorce, existing in some other countries, only in parts can be compared to the compensation of pension rights in German law.
Section 3 § 2 of the Introductory Act to the German Civil Code provides that rules in international conventions, in so far as they have become directly applicable in national law, take precedence over the Act.
Section 6 of the Introductory Act lays down that a provision of the law of another country shall not be applied where its application would lead to a result which is manifestly incompatible with the fundamental principles of German law. A violation of this ordre public reservation has been found in some cases concerning the application of sharia law, namely in a case concerning polygamy. It is applied very restrictively.
According to section 14 § 4 first sentence of the Introductory Act a choice of law concerning the general effects of marriage must be notarially certified.
Under German conflict of laws rules, compensation of pension rights is, in general, governed by the law applicable to the general effects of marriage (section 17 § 3 first sentence of the Introductory Act). This, primarily, is the law of the country of shared nationality of the spouses (section 14 § 1 of the Introductory Act). It shall only be carried out if German law is applicable and if such balancing is recognised by the law of one of the countries of which the spouses were nationals at the time when the divorce petition was served.
Pursuant to section 17 § 3 second sentence of the Introductory Act it can exceptionally be carried out, even if the conditions of the first sentence are not given, provided that (1) one spouse applies for it, (2) the other spouse has acquired an inland pension right during the subsistence of the marriage and (3) in so far as carrying it out would not be inconsistent with equity in light of mutual economic circumstances of the parties during the time spent in the country (known as “irregular pension rights adjustment”).
Section 8 § 3 of the Agreement provides that in respect of personal, family and inheritance issues the law of the common nationality of the parties is applicable. In the Final Protocol (Schlußprotokoll) to the Agreement it is clarified that all aspects of family law shall be governed by that law.
The continued application of this Agreement has been confirmed by the German-Iranian Protocol of 4 November 1954 (BGBl. 1955 II No. 19, p. 829) and also by a number of decisions of the Federal Court of Justice, the Federal Administrative Court and the Federal Constitutional Court (see, inter alia, decision of the Federal Constitutional Court of 25 September 1986 (2 BvR 955/86); judgment of the Federal Administrative Court of 27 September 1988 (BVerwGE 80, 233)).


ITEMID: 001-57638
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF HÅKANSSON AND STURESSON v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;No violation of P1-1 and 14+P1-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo
TEXT: 7. Mr Gösta Håkansson is resident at Höör and a police officer by profession, and Mr Sune Sturesson is resident at Skånes Fagerhult and a farmer by profession.
8. On 4 December 1979 the applicants bought for 240,000 Swedish crowns (SEK) at a compulsory sale by auction (exekutiv auktion; "the 1979 auction") an agricultural estate called Risböke 1:3 in the municipality of Markaryd. Their main competitors at the auction, Mr Bertil Bjarnhagen and Mr Michael Borg, bid 235,000 and 220,000 SEK, respectively. The property had been seized in July 1979 in order to secure the payment of the previous owners’ debts to three banks. According to a valuation made public before the auction, the market value (saluvärde) of the property was estimated at 140,000 SEK.
9. At the auction the public was, according to the minutes drafted by the representative of the County Administrative Board (länsstyrelsen) of the County of Kronoberg, informed of the regulations contained in section 2, sub-section 10, and section 16 of the Land Acquisition Act 1979 (jordförvärvslagen 1979:230; "the 1979 Act"), whereby a purchaser would have to resell the property within two years unless he had obtained in the meantime from the County Agricultural Board (lantbruksnämnden) of the same County a permit to retain it or fell under one of the listed exceptions from the permit requirement (see paragraphs 28 and 32 below).
The applicants maintained that a representative of the County Administrative Board had stated, at the public viewing of the property on 27 November 1979, that, in this case, the requisite permit would certainly be granted speedily; they further claimed that this had been confirmed by the County Administrative Board at the auction. In support of these allegations, the applicants submitted three affidavits, each of which was signed in 1989 by a person who had been present either at the auction or at the public viewing.
10. On 7 January 1980 the County Administrative Board drew up a sale contract (köpebrev) in which the applicants were reminded of the wording of section 16 para. 1 of the 1979 Act. On the same day the applicants submitted a request to the County Agricultural Board for a permit to retain the estate Risböke 1:3.
11. By letter of 5 February 1980, the County Agricultural Board informed the applicants that the estate had, in view of its size, situation and nature, to be considered as a "rationalisation unit" (rationaliseringsfastighet) which ought to be used for the purpose of consolidating other properties in the area that were capable of further development. It added that, as neighbours were interested in acquiring the property, the request might be refused under section 4 para. 1, sub-section 3, of the 1979 Act (see paragraph 30 below). The County Agricultural Board also indicated that there were reasons to believe that the price paid was too high for redemption (inlösen - see paragraph 34 below).
On 15 February 1980 the County Agricultural Board rejected the applicants’ request on the ground that the estate was a "rationalisation unit".
12. The applicants appealed to the National Board of Agriculture (lantbruksstyrelsen), which rejected the appeal on 5 September 1980.
In its decision the National Board of Agriculture noted the following. Risböke 1:3 had an area of 41 hectares of which 18 hectares were forest and 8 hectares pasture. There were no buildings on the property. Mr Sturesson’s estate, which comprised 63 hectares of forest and 10 of pasture, was 25 kilometres away. Through their purchase the applicants had intended to build up units which would, in the short run, create opportunities for employment and, in the long run, become financially sound properties to be exploited by their children. The Board noted however that in the opinion of the County Agricultural Board, there was only room for one active farmer in the region. Finally, Mr Michael Borg, who leased two neighbouring properties, one of which was owned by his father, had shown a great interest in acquiring the applicants’ property. The Board concluded:
"The National Board of Agriculture finds, as did the County Agricultural Board, that the real estate at issue lacks the prerequisites for remaining as a separate cultivation unit. Moreover, the National Board considers that a new establishment on the property would be likely to make it more difficult for the active farmer in the area to develop his business."
13. The applicants appealed to the Government (Ministry of Agriculture), which rejected the appeal on 26 February 1981.
14. A new request, dated 4 January 1982, for a permit to retain Risböke 1:3 was rejected by the County Agricultural Board on 25 January 1982. The Board stated that the estate was considered to be a unit suitable for rationalisation purposes, which ought to be used to consolidate properties within the area that were capable of further development. It furthermore stated that it was not prepared to redeem the estate at the price of 240,000 SEK.
15. The applicants appealed to the National Board of Agriculture. After inspecting the property, it rejected the appeal on 15 November 1982, on the ground that there were no new circumstances justifying a departure from its previous decision.
16. The applicants’ further appeal to the Government was dismissed on 27 October 1983.
17. In a letter of 11 January 1985 the applicants requested the Government to reconsider their decision of 27 October 1983. The Government, recalling that the case had been finally settled by them on the latter date, decided on 14 March 1985 not to take any further action in respect of the request.
18. The applicants brought proceedings before the Real Estate Court (fastighetsdomstolen) of Växjö requesting that the State redeem the Risböke 1:3 in accordance with section 14 of the 1979 Act (see paragraph 34 below). In a judgment of 11 December 1981 the court rejected the claim, stating that in view of the clear wording of section 14 this provision could not be applied by analogy to the applicants’ situation. The applicants appealed to the Göta Court of Appeal (Göta hovrätt), which on 1 July 1982 confirmed the judgment of the Real Estate Court. On 14 July 1983 the Supreme Court (högsta domstolen) refused leave to appeal.
19. At the request of the County Agricultural Board, the County Administrative Board ordered, on 10 November 1983, the compulsory resale by auction of Risböke 1:3 in accordance with the provisions of sections 16 and 17 of the 1979 Act (see paragraphs 36-38 below). The Enforcement Office (kronofogdemyndigheten) in Växjö was responsible for arranging the auction.
20. In February and March 1984 the National Board of Forestry (skogsvårdsstyrelsen) assessed the value of the property in accordance with the price-control regulations (that is, in principle, by reference to its yield) at 100,000 SEK and its market value as not exceeding 200,000 SEK. In April 1984 the Senior Land Surveyor (överlantmätaren) of the County of Kronoberg made a new valuation of the property, resulting in an estimated market value of 125,000 SEK.
21. On 19 April 1984 the Enforcement Office determined that the estate had a value of 125,000 SEK. The applicants challenged this before the Göta Court of Appeal but the court dismissed the action on 4 June 1984, stating that it was not possible to appeal against such a determination as it was only a preparatory step for a subsequent decision on the sale of the estate (see paragraph 39 below). The applicants appealed against this decision to the Supreme Court, which on 23 August 1984 refused leave to appeal.
On 26 June 1984, at the applicants’ request, the County Administrative Board appointed two special valuers (see paragraph 37 below). In their report of October 1984, the valuers concluded that the property had an estimated market value of 172,000 SEK, taking into account certain expenditure deemed necessary for thinning out trees (mainly Christmas trees) that had been newly planted by the applicants.
22. The auction took place on 18 June 1985 ("the 1985 auction"). The Enforcement Office noted that the estate had an estimated market value of 172,000 SEK and a taxable value of 107,000 SEK. It decided that the lowest bid which could be accepted would be 172,000 SEK. At the auction, there was, in fact, only one bid. It was an offer of 172,000 SEK made by the County Agricultural Board and it was accepted by the Enforcement Office. After the costs of the valuation and the auction had been deducted the applicants received 155,486.50 SEK.
23. Prior to the auction in June 1985, five requests for advance permits (förhandstillstånd) to acquire the property had been filed with the County Agricultural Board (see paragraph 36 below). On 10 April 1984 the Board granted the request filed by Mr Michael Borg and Mr Thorwald Borg on condition that they applied, within two months from the public auction, for a merger of Risböke 1:3 and the two neighbouring properties which they now owned (cf. paragraph 12 above). The other requests were rejected by the Board on 10 and 14 June 1985.
24. On 19 June 1985 the applicants appealed to the Göta Court of Appeal requesting that the compulsory sale be annulled. They argued that the property had not been sold at the market price, as required by law, since the valuation which had arrived at the figure of 172,000 SEK had been based only on an assessment of the yield from the property. The applicants stated that they intended to submit to the court a new valuation report. However, on 3 July 1985 the Court of Appeal dismissed the appeal.
25. The applicants filed a further appeal with the Supreme Court, in which they also challenged the impartiality of the two special valuers on the ground that they had had a duty, under section 6 of the Land Acquisition Ordinance 1979 (see paragraph 37 below), to consult with the County Agricultural Board - which had in the event been the buyer of the estate - when making their valuation. They did not raise any complaint in respect of the absence of any public hearing before the Court of Appeal. On 20 August 1985 the Supreme Court refused to grant leave to appeal.
26. On 17 December 1985 the County Agricultural Board sold the property to Mr Michael Borg and Mr Thorwald Borg for 125,000 SEK. On 17 January 1986 they applied for its merger with their two properties as required in their acquisition permit (see paragraph 23 above) and on 11 April 1986 the merger was accepted by the local property formation agency (fastighetsbildningsmyndigheten).
27. The Land Acquisition Act 1979 was enacted in order to implement the agricultural guidelines adopted by the Riksdag in 1977 and also to meet the policy goals of forestry and regional planning. Among the aims to be specially furthered by the Act are the creation and preservation of viable family holdings so as to strengthen the connection between cultivation and ownership, and also the promotion of a continuous structural rationalisation of agriculture and forestry.
28. Under section 1 of the Act, a permit is required for the acquisition of real estate assessed for tax purposes as an agricultural holding. Section 2 lists a number of exceptions: for example, no permit is required when the property is acquired by a State authority other than a commercial undertaking (sub-section 2) or at a compulsory sale by auction (sub-section 10) other than such as take place in accordance with section 17 of the Act (see paragraph 36 below).
29. When deciding on an application for a permit, the authorities shall take into account that the setting up and development of rational enterprises in agriculture, forestry and horticulture should be promoted (section 3).
30. Section 4 para. 1 provides that a permit to acquire a property shall be refused, inter alia:
"1. If the price or other consideration exceeds, to an extent which is not insignificant, the value of the property in view of its yield and other circumstances,
2. if it can be assumed that the acquisition is effected mainly as an investment,
3. if the property is required for the rationalisation of agriculture or forestry,
..."
Paragraph 2 of this section provides inter alia that sub-section 1 of the first paragraph does not apply to the acquisition of real estate at a compulsory sale by auction under section 17 of the Act (see paragraph 36 below).
31. Section 12 specifies that the acquisition permit shall, in principle, be applied for within three months of the purchase. Under this section the question whether or not to grant the permit may not be examined before the acquisition, except in certain circumstances, none of which obtained at the 1979 auction.
However, in the case of a public auction under section 17 (see paragraph 36 below), such as the one held in 1985, the acquisition permit shall be issued before the auction.
32. Under section 16 para. 1, a property acquired at a compulsory auction in circumstances which, in case of an ordinary purchase (see paragraph 28 above), would have required a permit shall be re-sold within two years, unless the said circumstances have by then ceased to exist or unless the purchaser has obtained a permit from the County Agricultural Board to retain the property. The granting of such a permit is subject inter alia to the provisions of sections 3 and 4, with the exception of section 4, sub-section 1.
The sale contract issued after the compulsory auction shall contain a note recalling the regulations laid down in section 16.
33. A decision by the County Agricultural Board not to grant permission to retain property acquired at a compulsory auction may be appealed to the National Board of Agriculture and ultimately to the Government.
34. "If a purchase becomes invalid because the necessary permit is refused as a result of the application of section 4 para. 1, sub-section 3", i.e. on the ground that the property is required for the rationalisation of agriculture or forestry, the State is, according to section 14, "obliged to redeem the property at the agreed purchase price if the seller so requests". However, under the same section, no such obligation exists if the purchase price exceeds, to an extent which is not insignificant, the value of the property in view of its yield and other circumstances, or if the terms are unreasonable in other respects.
There is no obligation on the State to redeem property acquired at a compulsory auction as in such a case a permit is not required for a valid acquisition of the property (see paragraphs 18 and 28 above).
35. Under section 14 para. 2, applications for redemption shall be filed with the Real Estate Court, whose decisions may be appealed to a Court of Appeal and ultimately, if leave to appeal is granted, to the Supreme Court.
36. If, in a case where this is required under section 16 (see paragraph 32 above), the property has not been re-sold within the prescribed time-limit, the County Administrative Board shall, according to the same section and on application by the County Agricultural Board, order that the property be sold at a compulsory auction by the Enforcement Office in accordance with the provisions of section 17. At such an auction the property may only be sold to someone who has received an acquisition permit (see paragraph 31 above) or who is, like the County Agricultural Board, exempted from the permit requirement by virtue of section 2 of the 1979 Act (see paragraph 28 above).
37. Section 17 specifies that no sale at a compulsory auction may take place unless the purchase price offered amounts at least to the value to be attributed to the property in accordance with the provisions of Chapter 12 of the Code of Enforcement (utsökningsbalken, see in particular section 3). Under section 17 of the 1979 Act this estimated value is to be fixed by the Enforcement Office or, if the owner of the property makes a timely request for a special valuation, by valuers appointed by the County Administrative Board. In both cases the valuation shall be made in consultation with the County Agricultural Board (section 6 of the Land Acquisition Ordinance 1979, jordförvärvsförordningen 1979:231, enacted by the Government).
38. Section 17 also provides that, if the property is not sold at the auction, the County Agricultural Board may, within a period of two years, request the County Administrative Board to hold a new auction. If no such request is made, or if no acceptable bid is made at the second auction, the owners are no longer required to sell the property.
39. The Enforcement Office’s decisions in respect of a compulsory auction may, according to Chapter 18, section 1, of the Code of Enforcement, be brought before a Court of Appeal and ultimately, with leave to appeal, before the Supreme Court. However, according to section 6 (2) of the same Chapter, an appeal against a decision that is merely a preparatory step for a final decision may, in general, be lodged only in connection with an appeal against the latter.
Appeals follow the rules of the 1942 Code of Judicial Procedure (rättegångsbalken), as far as these are relevant (Chapter 18, section 1, of the Code of Enforcement). Chapter 52, section 10, of the Code of Judicial Procedure specifies that:
"Where it is necessary for the purposes of the investigation of a case that a party or other person be heard orally by the Court of Appeal, the Court of Appeal shall decide on such a hearing as it finds appropriate."
If the Court of Appeal decides to hold such a hearing, the hearing is open to the public under Chapter 5, section 1, of the Code of Judicial Procedure.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22738
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: ÖNCE v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto;Mark Villiger
TEXT: The applicant, Mr Yusuf Önce, is a Turkish national, who was born in 1968 and lives in Eskişehir.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 February 1997 and on 24 April 1997 the applicant received two written warnings from his superiors on account of his failure to attend the religious festival gathering (Bayram) with his wife.
On 16 June 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 94(b) of Law 926.
The Government submit the following in the light of the intelligence reports concerning the applicant:
The applicant, a lieutenant, was a member of the Revolutionary Islamic Opinion. He neglected his military obligations by way of praying during his guard duties. He was attached to Islamic way of life and expressed that he would not change this life style. He had an anti-social character and his wife carried an Islamic scarf. He avoided social gatherings and refused to live in the military premises.
The applicant received a severe reprimand for lack of discipline, warnings for negligence and for failure to attend the religious festival gathering. The applicant was sentenced to four days’ confinement for neglecting his guard duties.
A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion.
The relevant provisions of the Constitution are as follows:
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review ...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
...”
Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”


ITEMID: 001-58037
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF GEORGIADIS v. GREECE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: N. Valticos;R. Pekkanen
TEXT: 6. Mr Georgiadis was born in 1963 and lives in Athens.
7. On 3 January 1989 the applicant was appointed minister of religion for the prefectures of Karditsa and Larissa by the Central Congregation of the Christian Jehovah’s Witnesses of Greece. He was given authority, inter alia, to perform wedding ceremonies between persons of that faith and to notify such weddings to the competent registry offices. By letter of 13 January 1989 the Director of Internal Affairs of the Prefecture of Karditsa notified the registry offices of Karditsa of his appointment. By letter of 24 January 1989 the registry offices of Larissa were also notified of it.
8. On 11 September 1991 the applicant lodged an application with the Serres Recruitment Office ("the Recruitment Office") to be exempted from military service in accordance with section 6 of Law no. 1763/1988 ("the 1988 Law"), which grants such a right to all ministers of "known religions". On 17 September 1991 the Recruitment Office rejected the application on the ground that Jehovah’s Witnesses were not a "known religion".
9. On 7 October 1991 the applicant lodged an appeal with the Director for Recruitment at the General Headquarters for National Defence ("the Director for Recruitment"). It was rejected on 18 December 1991 on the ground that he was not a minister of a "known religion". On the same day, the Recruitment Office ordered the applicant to report for duty at a military training centre in Nauplia on 20 January 1992.
10. The applicant presented himself at the Nauplia centre, as ordered, but refused to join his unit, invoking his status as a minister of a "known religion". Taking the view that the applicant had committed the criminal offence of insubordination (see paragraph 19 below), the military commander of the training centre detained him pending trial in the centre’s disciplinary unit and ordered a preliminary investigation into the facts. The investigation completed, the applicant was committed for trial on 29 January 1992. The order for his detention was renewed and he was transferred to the military prison at Avlona.
11. On 13 February 1992 the applicant brought proceedings in the Supreme Administrative Court (Symvoulio tis Epikratias) to have the Director for Recruitment’s decision of 18 December 1991 quashed.
12. On 16 March 1992 the Athens Permanent Army Tribunal (Diarkes Stratodikio), composed of one military judge and four ordinary military officers, examined the criminal charges against the applicant. Having heard the evidence and the parties’ submissions on the question of the applicant’s guilt, the tribunal withdrew for deliberations. After the deliberations, the President announced the verdict. The applicant was acquitted because "there was no act of insubordination" as the applicant had no obligation to perform military service, being a minister of a "known religion".
13. The applicant was immediately released but was ordered to report for duty on 4 April 1992 at the Nauplia centre. On that date the applicant presented himself at the Nauplia centre, where he was ordered to join the military forces. When he refused, he was again charged with insubordination and placed in detention. On 15 April 1992 he was committed for trial.
14. On 8 May 1992, the Athens Permanent Army Tribunal examined the new criminal charges against the applicant. Having heard the evidence and the parties’ submissions on the question of the applicant’s guilt, the tribunal withdrew for deliberations. After the deliberations, the President announced the verdict. The applicant was acquitted, because there were doubts as to his intention to commit the criminal offence of insubordination. The following order was attached to the tribunal’s verdict and read out with it: "No compensation should be granted to the applicant for his detention pending trial, because his detention was due to his own gross negligence."
15. The applicant was immediately released from Avlona Prison, given leave of absence and ordered to report for duty at the Nauplia centre on 22 May 1992. He was again ordered to join his unit. When he refused he was charged with insubordination and detained.
16. On 7 July 1992 the Supreme Administrative Court quashed the Director for Recruitment’s decision of 18 December 1991 on the ground that Jehovah’s Witnesses were a known religion and the administrative authorities had not challenged the evidence produced by the applicant that he was a minister of that religion.
17. On 27 July 1992 the applicant was provisionally released following a decision of the Salonika Permanent Army Tribunal sitting in chambers. A certificate of provisional exemption from military service was issued on the ground that the applicant was a minister of a "known religion".
18. On 10 September 1992 the Salonika Permanent Army Tribunal, considered the criminal charges against the applicant. Having heard the evidence and the parties’ submissions on the question of his guilt, the tribunal withdrew for deliberations. After the deliberations, the President announced the verdict. The applicant was acquitted, because he had not had the intention of committing the offence of insubordination. The following order was attached to the tribunal’s verdict and read out with it: "The State is under no obligation to compensate the applicant for his detention pending trial, because his detention was due to his own gross negligence."
19. Article 70 of the Military Criminal Code provides as follows:
"A member of the armed forces who refuses ... to obey an order by his superior to perform one of his duties is punished ..."
20. On 16 March 1992 the Athens Permanent Army Tribunal held that a Jehovah’s Witnesses minister of religion who had refused to collect military clothing when first called upon to join the army was not guilty of insubordination. The tribunal considered that there had been no act of insubordination, because the accused had no obligation to perform military service as he was a minister of a "known religion".
21. Article 434 of the Code provides that where a procedural matter is not regulated in the Military Criminal Code, the Code of Criminal Procedure applies.
22. The relevant provisions of the Code of Criminal Procedure read as follows:
"Persons who have been detained on remand and subsequently acquitted ... shall be entitled to request compensation ... if it has been established in the proceedings that they did not commit the criminal offence for which they were detained ..."
"The State shall have no obligation to compensate a person who ... has been detained on remand if, whether intentionally or by gross negligence, he was responsible for his own detention."
"1. Upon an oral application by a person who has been acquitted, the court which heard the case shall rule on the State’s obligation to pay compensation in a separate decision delivered at the same time as the verdict. However, the court may also make such a ruling proprio motu ...
2. The ruling on the State’s obligation to pay compensation cannot be challenged separately; it shall, however, be quashed if the decision on the principal issue of the criminal trial is reversed."
"1. A person who has suffered loss may seek compensation at a later stage from the same court.
2. In those circumstances the application must be submitted to the prosecutor [Epitropos] at that court no later than forty-eight hours after the delivery of the judgment in open court."
"Where it has been decided that the State must pay compensation, the person entitled thereto may bring his claim in the civil courts, which shall not call in question the existence of the State’s obligation."
"Persons who have been unfairly ... detained on remand must be compensated for any pecuniary loss they have suffered as a result of their ... detention. They must also be compensated for non-pecuniary loss ..."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-73367
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF METZOVÁ v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1946 and lives in Brno.
5. On 29 May 1992 the applicant introduced before the Prague 4 District Court (obvodní soud) an action seeking the division of matrimonial property. According to the Government, the action was notified to the court on 1 June 1992. On 3 November 1992 the applicant’s former husband submitted his written comments on 295 pages.
6. On 8 September 1994 the District Court held a hearing which was adjourned in order to have an expert report drawn up. On 8 November 1994 an expert was appointed.
7. On 5 May 1995 the court invited the parties to an information meeting scheduled for 29 June 1995. However, the parties did not attend.
8. On 14 September 1995 another hearing was held in the absence of the defendant. On 17 November 1995 the expert informed the court that due to the defendant’s failure to cooperate, he was not able to draw up the opinion. On 11 December 1995 the court ordered the parties to cooperate with the expert.
9. On 19 January 1996 the defendant notified the court that due to his illness, he could not submit the relevant documents, which he finally did on 16 February 1996. On 19 February 1996 the case file was sent to the expert who, in the meantime, had been withdrawn. On 25 March 1996 a new one was appointed. The case file was sent to him on 23 June 1996. On 11 October 1996 the expert, having been urged to do so on 23 September 1996, sent the case file back to the court stating that due to his workload, he did not have time to prepare the report. On 19 December 1996 the court appointed another expert and, on 6 February 1997, it sent him the case file.
10. On 24 February 1997 the expert informed the District Court that he did not have necessary documents. On 7 March 1997 the court met the expert. On 17 March 1997 it invited the parties to submit a copy of an entry in the Land Registry and a copy of a land map. On 27 May 1997 the court pressed the expert to prepare his opinion. He replied on 13 June 1997 that he still did not have the necessary documents. On 1 July 1997 the court then imposed a procedural fine on the defendant who, on 29 July 1997, appealed. On 10 December 1997 the expert presented his report.
11. At a hearing held on 15 January 1998, the parties expressed their willingness to reach a friendly settlement. Another hearing was held on 5 March 1998. The defendant submitted his comments on the expert report on 1 April 1998. A week later, the court ordered the expert to amend his report in accordance with the defendant’s objections, which he did on 14 May 1998. At the same time, it appointed an expert to assess the value of movable property. She submitted her expert report on 24 November 1998.
12. On 29 December 1998 another expert was appointed to assess the value of other items. The expert informed the court, on 22 January 1999, that he was not sufficiently qualified for this work. On 27 January 1999 the court appointed a new expert who, however, repetitively did not take out the case file. The court then appointed another expert, to whom the case file was sent on 28 June 1999. The expert report was submitted on 10 August 1999.
13. In a judgment of 2 March 2000 the District Court, having held three hearings on 14 October, 3 February and 2 March 2000 respectively, delivered a judgment by which it divided the matrimonial property.
14. On 12 May 2000 the defendant appealed. On 30 May 2000 the judge dealing with the case requested the president of the court to withdraw her from the proceedings following the defendant’s insulting statements about her. She said that she felt biased. On 21 June 2000 the Prague Municipal Court (městský soud) granted her request.
15. On 10 July 2000 the case was assigned to another judge who, on 20 July 2000, invited the defendant to supplement his appeal. He complied on 20 August 2000. Five days later, the case was sent to the Municipal Court which, however, sent it back with a request to supplement it.
16. On 7 September 2000 the parties were ordered to pay court fees. On 26 October 2000 the case was again brought to the Municipal Court which, on 16 February 2001, quashed the lower court’s judgment and remitted the case to it for further consideration.
17. On 1 March 2001 the applicant was invited to amend her action in accordance with the guidelines of the Municipal Court. On 4 April 2001 she objected that the appellate court’s decision was incomprehensible. On 11 April 2001 the court delivered a rectifying resolution. On 4 July 2001 the applicant supplemented her action. On 16 July 2001 the defendant was invited to make his comments. Having been urged to do so on 4 September and 11 October 2001 respectively, he complied on 23 October 2001.
18. In a judgment of 29 January 2002 the District Court again decided on the distribution of the matrimonial property. On 11 March 2002 both parties appealed. On 19 March 2002 they were invited to supplement their appeals. The defendant complied on 27 March 2002, amending his arguments on 17 April 2002, after a lawyer had been appointed for him on 8 April 2002. The applicant presented her amendment on 23 May 2002.
19. On 31 October 2002 the court received the defendant’s comments on the applicant’s appeal. On 11 January 2003 the defendant “rectified” his appeal. On 6 February 2003 the case file was sent to the Municipal Court. On 22 April 2003 the defendant asked the court to grant him time to adduce further documentary evidence. On 13 May 2003 he submitted new comments on the applicant’s appeal. On 2 June 2003 the case file was submitted to the appellate court.
20. On 1 August 2003 the defendant requested that a public hearing be adjourned.
21. On 15 October 2003 the Municipal Court appointed an expert to amend the expert report. The expert complied on 1 December 2003.
22. In a decision of 5 February 2004 the court upheld the District Court’s judgment. On 30 March 2004 this decision became final.
23. On 26 May 2004 the defendant filed an appeal on points of law (dovolání). On 12 August 2004 the case file was sent to the Supreme Court (Nejvyšší soud) which, on 1 September 2004, suspended the enforcement of the judgment. It appears that the proceedings are still pending.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22368
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: TEYTAUD AND OTHERS v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants are all French nationals. Their details are set out in a list appended to this decision. The applications were lodged by the applicants acting on their own behalf and in their capacity as the heirs of their deceased parents.
They were represented before the Court by Mr Laurent Pettiti, a lawyer practising in Paris.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants or their ascendants were the owners of immovable property in Algeria, but were dispossessed after Algeria became independent.
Mrs Georgette Teytaud, Mrs Marie-Louise Lambelin and their mother, Mrs Bertrande Saint-Pierre, jointly owned, as part of the family estate, four parcels of agricultural land (two in Misserghin with surface-areas of 1,052 hectares and 1,027 hectares, and two in Bou-Tlelis with surface-areas of 471 hectares and 1,628 hectares) and two properties in Oran, one a nine-roomed house and the other a twelve-roomed house. Mrs Bertrande Saint-Pierre also owned a property that was let out to tenants and a wine wholesalers in Oran.
These properties were valued by the French authorities using a scale laid down by a law of 5 April 1970. The first applicant’s share was put at 1,493,204 French francs (FRF) at the 1962 value of the franc, the second applicant’s share at FRF 1,520,798 and their mother’s share at FRF 1,111,246. Pursuant to a law of 16 July 1987 the properties were revalued at FRF 1,647,727, FRF 1,682,220 and FRF 1,375,688 respectively (at the 1962 value). In “real terms” the “1998 value” of the properties would be FRF 12,351,362, FRF 12,609,921.12 and FRF 10,001,251 respectively.
The annual compensatory payments allegedly received by each of the first two applicants since 1979 amount to FRF 3,314,646. Their mother has allegedly received FRF 3,121,840 (at the 1998 value).
Mr Georges Raoux jointly owned, as part of the family estate, a house at Ain El Turck. The property was valued by the French authorities, using the scale laid down by the law of 5 April 1970, at FRF 85,500 (at the 1962 value). Pursuant to the law of 16 July 1987 it was revalued at 106,875 “francs at the 1962 value”, which the applicant said came to 640,908 “francs at the 1998 value”. The annual compensatory payments he has allegedly received since 1979 amount to FRF 230,697 “francs at the 1998 value”.
Further, Mr Albert Raoux, the father of Georges Raoux and Mrs Jeanne-Marie Faure, owned two parcels of agricultural land – 513 hectares at Sainte Barbe du Tlélat (which was matrimonial property) and 495 hectares at Parmentier – and two buildings at Oran (which was also matrimonial property). These properties were valued by the authorities, using the scale laid down by the law of 5 April 1970, at FRF 4,564,795 (at the 1962 value). Pursuant to the law of 16 July 1987 these properties were revalued at 5,100,394 “francs at the 1962 value”, which the applicants said came to 38,232,533 “francs at the 1998 value”. As the property was jointly owned by the brother and sister as part of the family estate, each was entitled to FRF 19,116,276.
The annual compensatory payments received by Georges Raoux and his father since 1979 allegedly amounted to 1,294,601 “francs at the 1998 value” and by Jeanne-Marie Faure and her father to 1,115,407 “francs at the 1998 value”.
In addition, the applicants’ mother, Mrs Marie-Louise Raoux, owned two parcels of agricultural land – 513 hectares at Sainte Barbe du Tlélat (which was matrimonial property) and 255 hectares at El Akra – and three buildings at Oran, two of which were matrimonial property while the third was owned jointly as part of the family estate. These properties were valued by the authorities, using the scale laid down by the law of 5 April 1970, at FRF 2,239,924 (at the 1962 value). Pursuant to the law of 16 July 1987 the properties were revalued at 2,606,915 “francs at the 1962 value”, which the applicants said came to 19,541,434 “francs at the 1998 value”. As the property was jointly owned by the brother and sister as part of the family estate, each was entitled to FRF 9,770,717.
The annual compensatory payments received by Georges Raoux and his mother since 1979 allegedly amounted to 762,204 “francs at the 1998 value” and by Jeanne-Marie Faure and her mother to 618,393 “francs at the 1998 value”.
Mrs Gabrielle Raoux jointly owned, as part of the family estate, a house situated at Ain El Turck, a flat and a plot of building land in Oran, and two parcels of agricultural land – 189 hectares at Nazereg Flinois and 200 hectares at Tircine. These properties were valued by the authorities, using the scale laid down by the law of 5 April 1970, at FRF 286,747 (at the 1962 value). Pursuant to the law of 16 July 1987 they were revalued at 328,522 “francs at the 1962 value”, which the applicant said came to 2,462,600 “francs at the 1998 value”. The annual compensatory payments she had allegedly received since 1979 amounted to FRF 1,401,732 “francs at the 1998 value”.
Mr Michel Faure’s father owned 216.97 hectares of land at Ain-Tedeles, and two building plots and a house at Mostaganem. These properties were valued by the authorities, using the scale laid down by the law of 5 April 1970, at FRF 1,417,741 (at the 1962 value). Pursuant to the law of 16 July 1987 they were revalued at 1,637,359 “francs at the 1962 value”, which the applicant said came to 12,273,643 “francs at the 1998 value”. The annual compensatory payments allegedly received by the applicant’s father since 1979 amounted to FRF 3,322,847 “francs at the 1998 value”.
Acting on their own behalf or, as applicable, as the heirs and assigns of their ascendants, the applicants sent a demand to the Secretary of State for Social Affairs in December 1992 for the payment of the balance of the value of the nationalised properties, together with interest.
They submitted that by virtue of the “Évian Accords” and unilateral undertakings given in writing by the French Government, the French State had an obligation to pay “just and fair” compensation to persons who had been dispossessed of their property. They added inter alia that there had been a violation of Article 1 of Protocol No. 1 and of Article 14 of the Convention, as they had received only partial compensation,.
In June 1993 they applied to the Paris Administrative Court for an order setting aside the Secretary of State’s decision, which was deemed to have been a refusal as he had not replied within four months. The Administrative Court dismissed their applications on 8 June 1994.
The applicants appealed to the Paris Administrative Court of Appeal, which dismissed their appeals on 27 June 1996 on the following grounds:
“... Neither the Government’s declarations of 19 March 1962 regarding Algeria, known as the “Évian Accords”, nor the leaflet “the Évian Accords and the pieds-noirs [Algerian born Frenchmen]”, which was published and distributed in 1962 by the High Commission of the Republic in Algeria, nor the declarations made at the time by members of the French Government, which were confined to comments on the aforementioned accords, contained, contrary to what has been submitted in the appeal, clauses or promises affording French nationals living in Algeria a guarantee that the French State would compensate them for any loss resulting from their being wrongfully divested of their property by the Algerian State. It follows that the court must reject the argument that the State has engaged its responsibility and failed to comply with its undertakings because compensation has been paid for only part of the loss of the property in issue.
The loss sustained ..., which directly originated from the action of a foreign State, cannot give rise to liability on the part of the French State on the basis of the rule that public burdens shall be borne equally (principe de l’égalité devant les charges publiques).
In accordance with the final paragraph of section 4 of the Law of 26 December 1961 on the Admission and Resettlement of French Overseas Nationals, the Law of 15 July 1970 referred to above instituted a national levy to raise compensation for French nationals who had been dispossessed of their property, notably in Algeria. The amount of compensation paid to such persons pursuant to that statute has been increased by the Laws of 2 January 1978 and 16 July 1987 referred to above, the amount being limited, however, by the latter statute to 1,000,000 or 2,000,000 francs depending on the circumstances. [Although it has been submitted] that the payment of compensation for only part of the loss contravenes both the principles of national solidarity and payment of compensation of loss in full and the right to the protection of property guaranteed by the Constitution, the Preamble to the Constitution of 27 October 1946 and the Declaration of the Rights of Man and of the Citizen of 26 August 1789 to which it refers, it is not for the administrative courts to determine the constitutionality of those statutory provisions. By instituting a national levy to provide compensation in the form of an advance on the sums owed to French nationals by the Algerian State for the dispossession of their property, by making the share of the compensation fund apportioned to each dispossessed person proportional to the value of the property which he or she had lost and by imposing a general limit on the amount of that share in the light of the resources which the nation could reasonably devote to it, the aforementioned statutes do not contain any provision that is incompatible with France’s international obligations under, on the one hand, Article 1 of Protocol No. 1 to the Convention... relating to unlawful interference with private property by any of the States that have signed the Convention or, on the other hand, Article 14 of the Convention or Article 26 of the International Covenant on Civil and Political Rights, which prohibit any discrimination between individuals....”
The applicants appealed to the Conseil d’État, alleging, inter alia, a violation of Article 1 of Protocol No. 1 and Article 14 of the Convention. They also maintained that, in violation of Article 6 of the Convention and of their right to a fair hearing, the Administrative Court of Appeal had not acted as an independent and impartial tribunal, as it had “regarded itself as being bound in practice by the interpretation of the Minister of Foreign Affairs”, as reproduced in the Moraly judgment delivered by the Conseil d’État on 31 January 1969.
On 25 November 1998 the Conseil d’État dismissed the appeals on points of law for the following reasons:
“The ground of appeal based on the interpretation of the declarations made by the Government on 19 March 1962 regarding Algeria, known as the ‘Évian Accords’:
An examination of the impugned judgment, which contains sufficient reasons, shows that for the purposes of interpreting those provisions of the aforementioned accords which were relied on, the Administrative Court of Appeal did not regard itself as being bound by the interpretation the Minister of Foreign Affairs may have given and, therefore, did not infringe either the provisions of Article 6 of the ... Convention ..., or, in any event, the first sub-paragraph of Article 14 of the International Covenant on Civil and Political Rights. Further, in finding that the said declarations did not contain any clause or promise guaranteeing French nationals living in Algeria compensation from the French State for any loss sustained in the event of their being wrongfully divested of their property by the Algerian State, the Administrative Court of Appeal has not erred in law. It was entitled in law to deduce from that finding that the State’s responsibility could not be engaged on the ground that it had failed to comply with the terms of the said declarations.
The ground of appeal based on the State’s promises:
The Administrative Court of Appeal did not misconstrue the scope of the leaflet entitled ‘the Évian Accords and the pieds noirs’, which was published and distributed in 1962 by the High Commission of the Republic in Algeria, by holding that it contained no undertaking or promise by the French State to pay compensation in full for losses sustained by French owners dispossessed of their property in Algeria should the Algerian State fail to pay compensation.
The ground of appeal based on the fact that the compensation award ... contravened various principles and French international obligations:
Firstly, the loss sustained ..., which directly originated from the action of a foreign State, cannot, as the Administrative Court of Appeal rightly held, result in the responsibility of the French State being engaged on the basis of the rule that public burdens shall be borne equally.
Secondly, the administrative courts have no jurisdiction to decide whether the system of lump-sum partial compensation set up by the Laws ... of 15 July 1970, 2 January 1978 and 16 July 1987 infringe quasi-constitutional rules and principles and the Administrative Court of Appeal rightly declined to examine that issue.
Thirdly, the Administrative Court of Appeal did not err in law in holding that the decision of the French State (which, as has been explained above, was under no obligation to take the place of the defaulting Algerian State in compensating the dispossessed French owners in full) to award partial compensation when the direct cause of the damage was the act of a foreign state could not have infringed Article 1 of Protocol No 1 to the ... Convention ..., Article 14 of the Convention, or, in any event, Article 26 of the International Covenant on Civil and Political Rights....”
“French nationals who have been or have considered themselves compelled by political events to leave a territory in which they were settled and which was previously under French sovereignty or administration, or was a French protectorate, are eligible for assistance from the State...
Such assistance shall take the form of a series of measures designed to integrate the repatriated French nationals into the nation’s economic and social structures.
These measures shall consist, in particular, of return allowances, temporary subsistence allowances, reduced-rate loans and resettlement and regrading subsidies, measures facilitating access to work and schools, and welfare payments and exceptional relief for repatriated persons...”
“The amount of compensation for conclusively proved wrongful divestment and loss of property belonging to the persons referred to in the first sub-paragraph of section 1 and the procedure for its assessment and payment shall be laid down, in the light of the circumstances, in separate legislation...”
On 19 March 1962 the French and Algerian Governments signed various declarations of principle (“the Évian Accords”).
The “Declaration of Principles governing Economic and Financial Cooperation” stated, inter alia:
“Algeria shall secure without discrimination free and quiet enjoyment of pecuniary rights acquired in its territory prior to self-determination. No one shall be deprived of these rights without fair compensation determined beforehand.”
“As part of the agrarian reform, France shall provide Algeria with special aid for the repurchase of all or part of the property rights of French nationals.
On the basis of a repurchase scheme to be devised by the competent Algerian authorities the form the aid will take shall be determined by agreement between the two countries that will reconcile the implementation of Algeria’s economic and social policy with the need to stagger France’s financial assistance over a reasonable period.”
In a referendum of 8 April 1962 the French people approved a bill providing that “the President of the Republic may enter into all such agreements as shall be drawn up in accordance with the Government’s declarations of 19 March 1962” and “may decide on ... any statutory or regulatory measures relating to the application of the Government’s declarations of 19 March 1962”.
In a judgment of 31 January 1969 in the Moraly case, the Conseil d’État, interpreting the declarations in the same way as the Minister of Foreign Affairs had done, held that they did not contain “any provision intended to secure French residents in Algeria who alleged that their rights [had] been infringed, a right to compensation from the French State for the damage sustained”.
A leaflet entitled “The Évian Accords and the pieds noirs”, published in 1962 by the High Commission of the Republic in Algeria, stated, inter alia, as follows:
“... [After Algeria becomes independent] your landed property will be protected. For those of you who are farmers your land may only be expropriated under a repurchase scheme and in exchange for fair compensation with financing guaranteed by aid from France...
All these commitments will be honoured. You are assured of that by the cooperation that has been established between France and Algeria through the Évian Declarations...”
Another leaflet, likewise published in 1962 by the High Commission and entitled “the Évian Declarations and Rights and Guarantees for Europeans”, indicated that, as the declarations had been approved by the Algerian people, they were “binding on the Algerian State”.
Pursuant to the third sub-paragraph of section 4 of the Law of 26 December 1961, Law no. 70632 of 15 July 1970 established a national levy to provide compensation for French nationals who had been dispossessed of property situated in a territory that had previously been under French sovereignty or administration or had been a French protectorate. Section 1 of the Law provided: “This levy shall constitute an advance payment on the sums owed by the foreign states or by persons who have benefited from the dispossession”.
Law nos. 78-1 of 2 January 1978 and 87-549 of 16 July 1987 provided for the payment of additional compensation. The Law of 1978 also stipulated: “The amount of compensation shall be restricted to 1,000,000 francs per household... [and] 500,000 francs per person dispossessed”. The Law of 1987 provided for the grant of additional compensation calculated on the basis of a revaluation coefficient and limited to FRF 1,000,000 or FRF 2,000,000, depending on the circumstances.


ITEMID: 001-4867
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: SPORTSWEAR COMPANY S.p.A. v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian limited company, having its registered office in Ravarino (Modena).
It is represented before the Court by Mr Gino Veroni, a lawyer practising in Carpi (Modena).

The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 April 1997, the applicant company, acting as a creditor of limited company C., requested the Rome District Court to declare the latter insolvent and wind it up.
On an unspecified date, the investigating judge scheduled the first hearing for 2 April 1998.
In a judgment of 23 April 1998, the Rome District Court declared the limited company C. insolvent.
According to Section 67 § 2 of Royal Decree No. 267 of 16 March 1942 (hereinafter referred to as the "legge fallimentare"), the receiver appointed by the District Court may, subject to proof that the other party was aware that the debtor was insolvent, obtain the revocation of every payment of a debt and of every alienation of assets carried out by the debtor in the year which precedes the formal declaration of insolvency, by means of the so-called "azione revocatoria fallimentare".


ITEMID: 001-69290
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: URBANIAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Kazimierz Urbaniak, is a Polish national who was born in 1955 and lives in Kowary.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 June 1991 the applicant's former wife lodged a motion with the Bydgoszcz District Court (Sąd Rejonowy w Bydgoszczy) claiming that the joint property of the spouses be divided.
The proceedings were terminated on 26 September 2002. On 12 May 2002 the date on which the application was lodged with the Court, they were pending before the Bydgoszcz Regional Court.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
“1. Parties
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-102254
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF TERNOVSZKY v. HUNGARY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1979 and lives in Budapest.
6. At the time of introduction of the application the applicant was pregnant and intended to give birth at her home, rather than in a hospital or a birth home. However, in view of section 101(2) of Government Decree no. 218/1999 (XII.28.), any health professional assisting a home birth runs the risk of conviction for a regulatory offence and, indeed, at least one such prosecution has taken place in recent years. In the applicant's view, while there is no comprehensive legislation on home birth in force in Hungary, this provision effectively dissuades health professionals from assisting those wishing home birth.
7. The Constitution provides as follows:
“(1) Everyone living in the territory of the Republic of Hungary has the right to the highest possible level of physical and mental health.
(2) The Republic of Hungary shall implement this right through institutions of labour safety and health care, through the organization of medical care and the opportunities for regular physical activity, as well as through the protection of the urban and natural environment.”
“(2) The Republic of Hungary shall implement the right to social support through the social security system and the system of social institutions.”
8. Section 15(1) of the Health Care Act 1997 provides that a patient's right to self-determination can be restricted only as prescribed by law. According to section 15(2), it is the free choice of a patient to accept or reject certain treatments. Under section 20(1), a competent patient may reject medical treatment unless this endangers the life or limb of another person.
9. Section 101(2) of Government Decree no. 218/1999 (XII.28.), as in force in the relevant period, provides that a health professional who carries out activities within his or her qualifications without a licence, or carries out such activities in a manner which is not in compliance with the law or the licence, is punishable with a fine of up to 100,000 Hungarian forints.
10. Act no. CLIV of 2009 (adopted on 14 December 2009) on the Amendment of Certain Health-Related Acts provides as follows:
“Section 247(1) of the Health Care Act [1997] shall be completed with [the following provision]:
« (v) [The Government shall] determine [in a decree] the professional rules and conditions governing birth outside an institution and the causes excluding the possibility of such birth. »”
“... Although risk assessment may be appropriately performed by trained birth attendants their advice about the place of birth, made on the basis of such assessment, is not always followed. Many factors keep women away from higher level health facilities. These include the cost of a hospital delivery, unfamiliar practices, inappropriate staff attitudes, restrictions with regard to the attendance of family members at the birth and the frequent need to obtain permission from other (usually male) family members before seeking institutional care ... Often, high and very high risk women do not feel ill or show signs of disease, so they give birth at home, attended by a family member, by a neighbour or by a TBA ...
However, a properly attended home birth does require a few essential preparations ... [T]ransport facilities to a referral centre must be available if needed. In practical terms this means that community participation and revolving funds are necessary to enable transport to be arranged for emergencies in areas where transportation is a problem.
In some developed countries birth centres in and outside hospitals have been established where low-risk women can give birth in a home-like atmosphere, under primary care, usually attended by midwives. In most such centres electronic fetal monitoring and augmentation of labour are not used and there is a minimum use of analgesics. An extensive report about birth centre care in the USA described care in alternative birth centres in and outside hospitals ... Experiments with midwife-managed care in hospitals in Britain, Australia and Sweden showed that women's satisfaction with such care was much higher than with standard care. The number of interventions was generally lower, especially obstetric analgesia, induction and augmentation of labour. The obstetric outcome did not significantly differ from consultant-led care, though in some trials perinatal mortality tended to be slightly higher in the midwife-led models of care ...
In a number of developed countries dissatisfaction with hospital care led small groups of women and caregivers to the practice of home birth in an alternative setting, often more or less in confrontation with the official system of care. Statistical data about these home births are scarce. In an Australian study data were collected which suggested that the selection of low-risk pregnancies was only moderately successful. In planned home deliveries the number of transfers to hospital and the rate of obstetric interventions was low. Perinatal mortality and neonatal morbidity figures were also relatively low, but data about preventable factors were not provided ...
The Netherlands is a developed country with an official home birth system. The incidence of home deliveries differs considerably between regions, and even between large cities. A study of perinatal mortality showed no correlation between regional hospitalisation at delivery and regional perinatal mortality ... A study conducted in the province of Gelderland, compared the “obstetric result” of home births and hospital births. The results suggested that for primiparous women with a low-risk pregnancy a home birth was as safe as a hospital birth. For low-risk multiparous women the result of a home birth was significantly better than the result of a hospital birth ... There was no evidence that this system of care for pregnant women can be improved by increasing medicalization of birth ...
So where then should a woman give birth? It is safe to say that a woman should give birth in a place she feels is safe, and at the most peripheral level at which appropriate care is feasible and safe ... For a low-risk pregnant woman this can be at home, at a small maternity clinic or birth centre in town or perhaps at the maternity unit of a larger hospital. However, it must be a place where all the attention and care are focused on her needs and safety, as close to home and her own culture as possible. If birth does take place at home or in a small peripheral birth centre, contingency plans for access to a properly-staffed referral centre should form part of the antenatal preparations.”
VIOLATED_ARTICLES: 8


ITEMID: 001-59626
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF VITTORIO AND LUIGI MANCINI v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-1
JUDGES: Christos Rozakis
TEXT: 7. The applicants are Italian nationals who were born in 1959 and 1951 respectively and live in Rome.
8. On 10 and 19 July 1997 two armed robberies were committed in the Rome area. It emerges from a report prepared by the Rome police on 23 July 1997 that there was evidence that the stolen goods had been hidden in a warehouse belonging to the company owned by the applicants. The latter were also said to have been in telephone contact with persons suspected of the offences.
9. On 18 December 1997 the Rome public prosecutor applied for the applicants to be placed in pre-trial detention. In an order of 22 December 1997, the Rome investigating judge allowed that application.
10. On 23 December 1997 the applicants were arrested and taken to Rome Prison. On 24 December 1997 they appealed against the order of 22 December 1997 to the division of the Rome District Court responsible for reconsidering security measures (tribunale del riesame).
11. The hearing before the Rome District Court was held on 7 January 1998. In an order delivered the same day, filed with the registry on 10 January 1998, the court replaced the applicants’ pre-trial detention with the security measure of house arrest (arresti domiciliari). It considered, in particular, that it was reasonable to suspect that the applicants had committed the offences in issue and that it was to be feared that they might commit others of the same type. Taking the view, however, that there was no “tangible risk for the gathering of evidence” and having regard to the defendants’ clean police record, it concluded that a less restrictive measure, such as house arrest, was preferable. That measure required the applicants to stay in their home and leave only with the authorities’ prior authorisation.
12. The order of 7 January was served on the applicants on 10 January 1998. They should therefore have been immediately escorted from Rome Prison, where they were being held, to their home. However, no police officers were available to escort them and so their transfer was delayed until 13 January 1998.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-100269
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF FEDINA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1950 and lives in the village of Tenistoye, Crimea, Ukraine.
5. On 19 July 2001 the applicant's son, Mr Fedin, who was born in 1969, was fishing in the River Karacha with a teenager, D. According to D.'s testimony in the subsequent proceedings, the water started to “bite” their feet when they reached Ayvove village. They saw a wire hanging from a wooden support pole for power lines, dangling in the water. Mr Fedin, saying that the wire was not dangerous and should be removed, stepped into the water and tried to pull the wire from the river. When he grasped the wire he cried out, fell into the water and died. D. tried to pull the wire out of Mr Fedin's hands. Unable to do so, he ran to the village for help.
6. Mr Z., an engineer with the Bakhchisaray District Electricity Network (hereinafter “the Network”) – forming a part of the public company, Krymenergo, owned by the Ukrainian State – carried out an initial, immediate investigation into the accident. In his report of 26 July 2001, Mr Z. concluded that the applicant's son had died as a result of electrocution. This occurred because a live wire, which had been incorrectly fixed to a wooden support pole, had come loose during strong winds. He further concluded that the security trip switch had failed on account of an ineffective earth connection.
7. A further internal inquiry was subsequently carried out by a commission composed of six Network officials (hereinafter “the commission”). Its report, drawn up on 20 August 2001, states that the Network owned two wooden poles on opposite banks of the River Karacha, supporting a power line strung across the river. In addition to that power line, those two poles also supported a bare radio wire that had been attached to the poles – above the power line – by the local telecommunications service of the Ukrtelecom Company. Owing to stormy weather conditions, the hook with which the radio wire had been attached had come loose, the wire had snapped and one end had fallen into the river. The commission found that, although in principle it was not unlawful to attach a power line and a radio wire to a single pole, the local telecommunications service had failed to obtain the relevant consent from the Network.
8. On 6 August 2001 the applicant asked the Bakhchisaray District Prosecutor's Office (hereafter “the Prosecutor's Office”) to conduct an inquiry into the circumstances of her son's death, claiming that his death had been caused by negligence and carelessness on the part of the Network in that it had failed to repair a broken power line, whereas the Ayvove villagers had already reported a power failure as early as 5 July 2001.
9. The autopsy report, issued on 20 August 2001 by an expert with the local Bureau of Forensic Medical Examinations at the request of the Prosecutor's Office, stated that Mr Fedin had suffered a sudden death as a result of an electric shock.
10. On 20 August 2001 the Prosecutor's Office asked the Network to make available documents relating to the accident, including the records of previous inspections and repairs of the power line. In its reply of 30 August 2001 the Network stated, inter alia, that it had not given its consent to the radio wire being attached to the pole, and that the manner in which it had been done contravened technical safety rules. It further stated that it had notified the telecommunications service several times of the potential danger of the installation and had unsuccessfully sought to have it comply with the relevant safety regulations.
11. On 3 September 2001 the Prosecutor's Office informed the applicant that there was no reason for the Office to take any criminal proceedings against the Network's management. None of the Ayvove villagers had called the Network between 5 and 19 July 2001 to report a power supply failure, and the required annual inspections and general revision of the power supply network had been conducted regularly and timely by the Network. The last annual inspection had taken place on 22 August 2000 and the last general overhaul in October 1995 which was within the prescribed six years' interval. Also taking into account the findings of the internal inquiry carried out by the Network's commission and statements given by various Ayvove villagers – according to whom the 0.4 Kilowatt radio wire had come loose on 18 July 2001 – the Prosecutor found no wrongdoing on the part of the Network's staff.
12. On 19 November 2001 the applicant asked the Prosecutor's Office to conduct an additional criminal investigation into the death of her son and to take criminal proceedings in accordance with Article 97 of the Code of Criminal Procedure.
13. In a decision of 23 November 2001, the investigator from the Prosecutor's Office decided against taking criminal proceedings against the Network's staff as there was no evidence of a criminal offence. That decision was based on statements taken by the investigator from the applicant, her son's widow, her son's friend D., two Ayvove villagers and Ms T., a nurse who had been called for help on 19 July 2001. The two villagers had stated that, although Ayvove had experienced certain power supply problems as early as 13 July 2001, it was only on 18 July 2001 that the radio wire had come loose from the pole, and that nobody had informed the Network about this. The investigator further noted that the applicant's claim that her son had died as a result of negligence and carelessness on the part of the Network in that it had failed to repair a power line broken on 5 July 2001 was not supported by the findings made by the Network's commission.
14. The applicant filed a complaint against that decision with the Prosecutor's Office of the Autonomous Republic of Crimea (hereafter “the POARC”) as well as an appeal with the Bakhchisaray District Court (hereafter “the Bakhchisaray Court”).
15. On 29 May 2002, the POARC quashed the decision of 23 November 2001, finding that further inquiries were called for. It instructed the investigator to question officials of Ukrtelecom, to question again the villagers as to when the radio wire had come loose and whether someone had informed the Network about this, and to attach a copy of the onsite inspection of the scene of the accident and the report on the forensic post-mortem examination of the body of the applicant's son. In view of that decision, the Bakhchisaray Court did not deal with the applicant's appeal against the decision of 23 November 2001.
16. On 17 June 2002 the investigator of the Prosecutor's Office, after having heard an Ukrtelecom employee – according to whom the radio wire had been attached to the pole in conformity with the relevant technical requirements – and after having heard the applicant, her son's friend D., the two Ayvove villagers already heard previously, and the nurse, Ms T., who gave the same testimonies as before, decided against taking any criminal proceedings because there was no evidence of a criminal offence.
17. On 20 December 2002, acting on an appeal filed by the applicant, the Bakhchisaray Court quashed the decision of 17 June 2002. It found that the inquiry carried out by the Prosecutor's Office was incomplete, in that the case file contained no record of an on-site inspection of the scene of the accident and no report on post-mortem examinations of the body of the applicant's son, and in that the investigation had failed to establish the reason why a dangerous live wire had been hanging in the river and who bore responsibility for this.
18. On 3 February 2003, after having added to the case file the report on the post-mortem examination of Mr Fedin's body and an undated statement taken from the local electrician, the Prosecutor's Office took a fresh decision not to initiate any criminal proceedings, which was based on essentially the same grounds as the decision of 17 June 2002. According to the statement given by the electrician, he had received no complaints or information about a wire hanging in the river. He did know that wires had come loose from their support, but did not know who was responsible for it.
19. On 27 March 2003, acting on a complaint filed by the applicant, the POARC quashed the decision of 3 February 2003 and remitted the case to the Prosecutor's Office for further inquires in that, inter alia, the case file did not contain an internal investigation report from the company responsible for electricity network maintenance, and the investigation had not made any findings about who was responsible for the network's maintenance.
20. In the course of the subsequent additional criminal investigation, the investigator of the Prosecutor's Office examined the internal regulations governing the duties and responsibilities of the Network's staff, and identified and questioned two officials responsible for the maintenance of power lines, as well as two Network employees who had repaired the power supply network after Mr Fedin's death. It further examined information about the meteorological conditions at the material time and concluded that the power cut had been caused by adverse weather conditions. On 16 April 2003, having found no evidence of negligence or involuntary manslaughter, the Prosecutor's Office decided not to bring any charges against the Network staff responsible for electricity network maintenance. According to the Prosecutor's Office, the wire network in the Ayvove village had been maintained in accordance with the relevant technical rules and regulations.
21. On 1 August 2004, acting on a complaint filed by the applicant, the POARC quashed the decision of 16 April 2003 and remitted the case once more for additional investigations. It found that the investigator had failed to question a number of Network employees and that, despite repeated instruction, no on-site inspection report had been drawn up.
22. Accordingly, the Prosecutor's Office conducted an on-site inspection at the scene of the incident. According to the inspection report, an unprotected radio wire, strung across the River Karacha, had been attached to a wooden support pole. That pole also had an electricity power line attached to it. The Prosecutor's Office concluded that such an installation was permissible under the relevant technical regulations. It further found that a storm had caused the radio wire to come loose and fall into the river.
23. On 27 August 2004 the Prosecutor's Office concluded that Mr Fedin's death had been the result of a tragic accident and decided not to institute any criminal proceedings. The applicant again filed a complaint against that decision. On 23 November 2004 the POARC accepted the applicant's complaint, quashed the decision of 27 August 2004 and ordered further inquiries to be made, including a forensic technical examination of the cause of the accident.
24. On 6 December 2004 the Prosecutor's Office again decided against bringing any charges, having found no evidence that any criminal offence had been committed by officials of the Network. The applicant challenged the decision of 6 December 2004 before the POARC. On 24 February 2005 the POARC quashed the decision of the Prosecutor's Office of 6 December 2004, finding that the criminal inquiry conducted had not been sufficiently thorough. It noted that, in the internal investigation into the incident carried out by the Network's commission in 2001, it had been found that the radio wire had been attached to the poles in a manner contrary to relevant technical regulations, whereas the Prosecutor's Office had found that the relevant rules and regulations had been respected. The POARC further found it unacceptable that no documentary evidence had been obtained from the Network concerning inspections of the Ayvove village electricity supply network prior to the accident, and that the identity of the persons who were responsible for the maintenance of the Network wires had not been established.
25. In its subsequent decision of 23 March 2005 the Prosecutor's Office maintained its conclusion that there were no reasons for taking any criminal proceedings. As to the installation of wires and poles, the investigation found that they had originally been installed in 1968 and the relevant installation company no longer existed. It further stated that the forensic technical examination could be conducted by the Kharkiv Forensic Examinations Institute (Харківський науково-дослідний інститут судових експертиз), however, such examination would require pre-payment of fees and the Prosecutor's Office did not have funds available to cover those costs. The applicant was offered an opportunity to meet those costs.
26. On 19 July 2005 the Bakhchisaray Court quashed the decision of 23 March 2005 and ordered further investigation on the ground that technical expertise was required to establish whether there had been irregularities in the installation and use of wires that could have a causal link with the electrocution and death of the applicant's son.
27. On 28 July 2005 the Prosecutor's Office sent the case file material to the Kharkiv Forensic Examinations Institute, but the examination was not conducted owing to non-payment of fees.
28. On 31 March 2006 the Prosecutor's Office refused to institute criminal proceedings on the same grounds as in its decision of 23 March 2005. The Prosecutor's Office noted that it had no available funds to pay for the forensic examination and the interested parties were not willing to meet the costs either.
29. On 13 December 2006 the POARC quashed the decision of 31 March 2006 and remitted the case for additional investigation.
30. On 28 December 2006 the Prosecutor's Office refused to institute criminal proceedings on the same grounds as in its decisions of 23 March 2005 and 31 March 2006.
31. On 24 January 2007 the POARC quashed the decision of 28 December 2006 and remitted the case for additional investigation.
32. On 2 February 2007 the Prosecutor's Office refused to institute criminal proceedings against the Network officials under Article 367 of the Criminal Code. The Prosecutor's Office repeatedly noted that they had no funds available for forensic examination and the interested party refused to pay for it.
33. On 14 February 2007 the applicant complained about that decision to the POARC. She did not, however, provide information about any decision taken regarding her complaint.
34. On 6 September 2001 the applicant instituted civil proceedings before the Bakhchisaray Court against Krymenergo, the public company of which the Network formed a part. In those proceedings, the applicant claimed compensation for non-pecuniary damage caused by the death of her son.
35. On 14 September 2001 the Bakhchisaray Court, for reasons of territorial jurisdiction, remitted the case to the Kyivskyy District Court of Simferopil. On 25 March 2002, acting at the applicant's request, the Court of Appeal of the Autonomous Republic of Crimea (the "Court of Appeal of the ARC") ruled that the Bakhchisaray Court had jurisdiction over the case.
36. On 30 April 2002 the Bakhchisaray Court assumed jurisdiction over the case and scheduled a first hearing for 28 August 2002. On that day, it granted the applicant's request to stay those proceedings pending the criminal investigation into the death of her son. It did not fix any date for a future hearing.
37. On 14 May 2004, the Bakhchisaray Court granted another request to stay the proceedings filed by the applicant, who had expected to receive further information from the Prosecutor's Office.
38. On 18 March 2005, the Bakhchisaray Court considered the proceedings and asked the Prosecutor's Office for information about the state of proceedings in the criminal investigation. On 6 April 2005, after having received a copy of the decision taken by the Prosecutor's Office on 23 March 2005, the Bakhchisaray Court resumed its examination of the applicant's case.
39. On 4 June 2007 the Bakhchisaray Court found against the applicant.
40. On 27 August 2007 the Crimea Court of Appeal overruled the decision of the first-instance court, having held that under the law the owner of a source of the increased hazard could be exempted from liability in two conditions: force majeure or the intentional actions of the victim. Neither of the two had been established in the case. The court also noted that the prosecutor had refused to institute criminal proceedings owing to a lack of proof of a crime and not because there had been any doubt that the event had taken place. Therefore, the Network, regardless of guilt, bore liability and had to provide compensation for the death of the applicant's son. Therefore, it awarded 80,000 Ukrainian hryvnias (UAH) to the applicant, UAH 50,000 to her daughter-in-law and UAH 20,000 to her granddaughter.
41. On 4 December 2008 the Supreme Court of Ukraine upheld the decision of the court of appeal.
42. Article 367 of the Criminal Code provides:
“Neglect of official duty, that is, failure to perform, or improper performance, by an official of his or her official duties due to negligence, where it causes any significant damage to the legally protected rights and interests of individual citizens, State and public interests or those of legal entities, shall be punishable by a sentence of two to five years' imprisonment ...”
43. Article 450 of the Civil Code, as in force until 1 January 2004, provided as follows:
“Organisations and persons, whose activities give rise to an increased hazard to their environment (transport organisations, industrial enterprises, buildings, car owners etc.) shall be obliged to compensate the damage caused by the source of that increased hazard unless they can prove that the damage has resulted from force majeure or from intentional actions on the part of the victim.”
44. The relevant provisions of the Civil Code, as in force since 1 January 2004), read:
Article 1187. Compensation of damage caused by a source of increased danger
...5. A [natural or legal] person involved in an activity constituting a source of increased hazard shall be responsible for the damage caused [by that activity] unless [he, she or it] can prove that the damage has resulted from force majeure or from intentional actions on the part of the victim”
45. Article 221 of the Code of Civil Procedure provides:
“The court shall suspend its examination of a case if ... it cannot be examined prior to the outcome of another case pending in civil, criminal or administrative proceedings.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1