ITEMID: 001-23832
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: BJORKLUNDH v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms Siv Björklundh, is a Swedish national, who was born in 1934 and lives in Årsta. She was represented before the Court by Messrs G. Antal and U. Jacobson, lawyers practising in Stockholm.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In December 1998 the applicant, assisted by legal counsel, applied for disability benefits under the Social Insurance Act (Lagen om allmän försäkring, 1962:381; hereinafter “the 1962 Act”). She claimed that she was in need of assistance for about 20 minutes per day and had extra expenses in the amount of 18,460 Swedish kronor (SEK) per year following operations which had removed part of her intestines. She submitted certificates from a medical doctor and a dentist.
By a decision of 23 February 1999 the Social Insurance Office (försäkringskassan; hereinafter “the Office”) of the County of Stockholm granted her a disability allowance as from December 1998. The Office found that she was in need of assistance for 2 hours and 20 minutes per week and accepted additional costs amounting to SEK 16,800 per year. Added together, these items corresponded to an allowance of 53% of a basic amount geared to the price index (basbelopp).
The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm, maintaining that she was entitled to an allowance of 69% of the basic amount. She submitted that she had further expenses due to her handicap which she had previously failed to state and that the total amount of the extra expenses was SEK 21,600. She further claimed that she should be given an allowance as from December 1996.
On 1 December 1999 the County Administrative Court held an oral hearing in the case. At the hearing, the applicant claimed that her extra expenses amounted to SEK 23,430 and the Office stated that it accepted SEK 17,540 thereof.
By a judgment of 13 December 1999 the court rejected the applicant's appeal in so far as it concerned the period from December 1998. It found that SEK 18,040 could be accepted as extra expenses for the applicant, but that these expenses and her need of assistance, taken together, did not make her eligible for an allowance with a higher amount than the one granted by the Office. As regards the period before December 1998, the court referred the matter back to the Office for a decision. It appears that no appeal was made against the court's judgment.
On 23 February 2000 the Office granted the applicant a disability allowance of 36% of the basic amount for the period November 1996 – November 1998. In so doing, it accepted extra expenses for that period amounting to SEK 14,820 and thus considered that some of the extra expenses fixed by the County Administrative Court had not existed before December 1998.
The applicant appealed against this decision and claimed an allowance of 69%, alternatively 53%, of the basic amount for the period November 1996 – November 1998. She also requested that the Office be ordered to explain its decision in several respects.
On 17 July 2001 the County Administrative Court rejected the request for explanations from the Office. It noted that the applicant's appeal had been communicated to the Office which thus had been given an opportunity to submit comments. The court further ordered the applicant to complete her appeal by 14 August 2001.
The applicant made submissions to the court on 6 August 2001. She further requested that the County Administrative Court hold an oral hearing in order to have clarified certain factual issues in the case. In this connection, she maintained that the Office had failed to give satisfactory answers to her questions.
By a judgment of 27 February 2002 the County Administrative Court found partly in favour of the applicant and granted her a disability allowance of 53% of the basic amount for the period at issue, November 1996 – November 1998. The court considered that the circumstances relating to that period, in all important respects, were the same as for the period examined in the judgment of 13 December 1999. On the basis of a medical certificate submitted by the applicant, it further found that the extra expenses which the Office had not accepted for the period in question had in fact existed since 1979. As regards the applicant's claim that she was entitled to 69% of the basic amount, the court found no reason to change the assessment made in its earlier judgment.
By the judgment the County Administrative Court further rejected the applicant's request for an oral hearing. It noted that it had ordered the applicant to make her final submissions in the case and that it had already held an oral hearing on 1 December 1999 in the case concerning benefits for the period starting in December 1998. As the circumstances in that case had been essentially the same and as the court had drawn the same conclusions with regard to the applicant's entitlement to benefits for the two periods in question, the court found a hearing unnecessary in the case at hand.
The applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm and complained about the County Administrative Court's decision not to hold an oral hearing. She further claimed that, if the appellate court were to examine the case on the merits, it should hold an oral hearing.
On 17 May 2002 the appellate court refused the applicant leave to appeal. On 11 February 2003 the Supreme Administrative Court (Regeringsrätten) also refused her leave to appeal.
According to chapter 9, section 2 of the 1962 Act, a person who is ill or handicapped is entitled to disability benefits, provided that, before reaching the age of 65, he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time-consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses. The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation. It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses. According to guidelines issued by the National Social Insurance Board (Riksförsäkringsverket), the total annual costs of all extra needs due to the disability should come to at least 28.5% of the basic amount in order to make the individual eligible for an allowance. If the total costs reach or exceed that level, the individual is, pursuant to chapter 9, section 3 of the 1962 Act, entitled to an annual allowance corresponding to 69, 53 or 36% of the basic amount, depending on the level of the total costs. In December 1998, when the applicant lodged her application with the Social Insurance office, the basic amount was SEK 36,400.
A decision by the Social Insurance Office under the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and the Supreme Administrative Court.
The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291; hereinafter “the 1971 Act”). Section 9 provides:
“The proceedings are in writing.
An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case.
In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”
The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court.
According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535).
It was further stated, in respect of the third paragraph of section 9, that a party's request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party's understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537).


ITEMID: 001-110271
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BALOGUN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Nigeria)
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 5. The facts of the case, as submitted by the applicant, may be summarised as follows.
6. The applicant, who was born in 1986, claims to have arrived in the United Kingdom at the age of three years old. However, there is no official record of his presence until 1994, when he was eight years old. He first came to the notice of the Secretary of State for the Home Department on 21 December 1994, when the family court sought clarification of the applicant’s immigration status, while considering an application for a residence order in respect of the applicant by his aunt.
7. The applicant’s aunt made an application for indefinite leave to remain in the United Kingdom, on the basis of her long stay, and with the applicant listed as her dependant, on 24 January 2003. While this application was under consideration, a further application for indefinite leave was made on behalf of the applicant by Southwark Social Services. This application stated that the applicant had been thrown out by his aunt on 12 January 2002 and placed in foster care. It also mentioned that the applicant claimed to have been the victim of beatings by his aunt and her boyfriend since the age of three. Indefinite leave to remain was granted to the applicant, outside the immigration rules, on 1 December 2003. The applicant lived in foster care from 2002 until he was eighteen, when he began to live alone in council accommodation.
8. The applicant was convicted on 21 February 2007, at the age of twenty, of two counts of possession of Class A drugs with intent to supply. He pleaded guilty on the basis that he had been coerced into letting his premises be used for the preparation and sale of drugs by a group of people whom he feared because of a previous attack in 2005, in which the applicant had been shot. He was sentenced to three years’ imprisonment, and on 18 October 2007 was notified of the Secretary of State’s intention to deport him. The Secretary of State found that there was no evidence that the applicant had been present in the United Kingdom since the age of three. His aunt had stated that he had been left with her by his mother at the age of five, and the first official record of his presence was when he was eight years old. Even allowing for his long stay in the United Kingdom, only four years had been with valid leave. It was believed that he was in contact with his mother, who remained in Nigeria, and that as he had lived alone since attaining the age of majority, the applicant was evidently independent and capable of adapting to new circumstances. It was not accepted that he had family life in the United Kingdom.
9. The applicant appealed against the decision to deport him and his appeal was dismissed by the Asylum and Immigration Tribunal on 13 March 2008. The Tribunal noted the applicant’s previous criminal record: he had been convicted of possession of Class A and Class B drugs in February 2004; handling stolen goods in April 2004; and possession of Class C drugs in June 2005.
10. The Tribunal also noted his claim to be in a relationship of some years’ duration, but observed that he had never mentioned his girlfriend in previous applications to the Home Office, and that he and his girlfriend had given mutually inconsistent evidence at the hearing. It was not therefore accepted that he was in a serious or permanent relationship. He had no contact with the aunt with whom he had previously lived, but had another aunt in the United Kingdom whom he claimed was a surrogate mother to him. However, the Tribunal found that he could not be as close to this aunt as he claimed, given that she had not taken him in when he had been thrown out, and that it was clear from her evidence at the hearing that she had been unaware of his criminal conviction. The applicant’s relationship with his half-brother in the United Kingdom was found to have been similarly exaggerated. The Tribunal concluded that the applicant did not have any protected family life in the United Kingdom. With regard to his private life, while it was accepted that he had been in the country since a young age and had been educated there, as well as gaining some work experience, it was not considered that these ties were sufficiently strong to render his deportation an interference with his private life. It appeared that his mother still lived in Nigeria and, even if contact had been lost, as claimed by the applicant, there was no reason why it could not be re-established. Whilst the applicant would have practical difficulties in relocating to Nigeria, he could re-establish his private life there. The Tribunal took into account the case of Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006XII, in finding that, on balance, and having due regard to the public interest, the applicant’s deportation was proportionate.
11. A deportation order against the applicant was signed on 14 October 2008. The applicant made an application to have the order revoked on human rights grounds, which was rejected by the Secretary of State on 3 June 2009 on the basis that all matters raised by the applicant had previously been considered by the Asylum and Immigration Tribunal. An application for judicial review of this decision was refused on 30 October 2009. The High Court, in refusing the application, stated that the applicant had no family life in the United Kingdom, and that the interference with his private life was proportionate. The applicant did not renew his application for judicial review.
12. The applicant was taken into immigration detention on 10 November 2009 and directions for his deportation to Nigeria were set on 12 November 2009 for 19 November 2009. On 13 November 2009 the applicant sought interim measures from this Court under Rule 39 of the Rules of Court to prevent his deportation. He submitted with his application a report from a specialist psychiatric registrar dated 14 September 2009, which stated that the applicant had attempted suicide on 13 August 2009, after being notified of the refusal of his human rights application by the Secretary of State. He had then been held as an in-patient until 7 September 2009. The report also stated that the applicant had continued to express feelings of despair throughout his in-patient treatment. He was described as suffering from moderate depression.
13. On 18 November 2009, the Acting President of the Fourth Section decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Nigeria pending the Court’s decision. Rule 39 was initially applied by the Acting President for a period of two weeks, in order to give the Government the opportunity to comment on the applicant’s mental health history and to state whether any special measures had been put in place to alleviate the risk of suicide prior to and during his proposed removal.
14. By letter dated 2 December 2009, the Government informed the Court that they had not previously been aware of the applicant’s attempted suicide, but had now considered the psychiatric report of 14 September 2009. As regards the logistics of the applicant’s removal, the Government stated that all appropriate measures to protect the applicant from risk were already in place at the centre at which he was detained. Trained members of staff were aware of the applicant’s situation and the applicant was under constant supervision. As to the risk during removal, the contractor effecting removal would be informed and a suitable escort would be provided, including a medical escort if deemed necessary. The applicant would be escorted up until the point of arrival in Nigeria. The Government also considered that there were sufficient mental health facilities in Nigeria, which would be available to the applicant if needed. The Government therefore invited the Court to lift the interim measure which had been indicated in respect of the applicant. However, on 8 December 2009, the Acting President decided to prolong until further notice the interim measure under Rule 39.
15. The applicant notified the authorities in the immigration detention centre that he had taken an overdose of paracetamol on 29 December 2009. He was assessed by the medical team and found only to have taken a few tablets. No further concerns as to his well-being appear to have been raised and the applicant was released from immigration detention on 13 January 2010. He does not claim to have made any further attempts at suicide.
16. Section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good.
17. Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against this decision, inter alia, on the grounds that the decision is incompatible with the Convention.
18. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
19. Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides:
“353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
A fresh claim, if it is accepted as such by the Secretary of State, and if refused, gives rise to a fresh right of appeal on the merits. If submissions are not accepted as amounting to a fresh claim, their refusal will give rise only to a right to seek judicial review of the decision not to treat them as a fresh claim.
20. In J. v. Secretary of State for the Home Department [2005] EWCA Civ 629, the Court of Appeal considered the case of a Sri Lankan national suffering from depression and post-traumatic stress disorder, who had made a suicide attempt upon learning that his claim for asylum had been refused, and who claimed that he would commit suicide if it appeared that he would be removed to Sri Lanka. Lord Justice Dyson, delivering the judgment of the court, held that the correct test as to whether there was a real risk in terms of Article 3 in a suicide case was, as in other Article 3 cases involving expulsion, whether there were strong grounds for believing that the person, if returned, would face a real risk of torture, inhuman or degrading treatment or punishment.
21. The Court of Appeal went on to expand upon the nature of the test. It required firstly, that the treatment that the person was at risk of suffering should reach a minimum level of severity. Secondly, there must be a causal link between the act or threatened act of removal or expulsion and the treatment relied upon as breaching Article 3. The court also found, thirdly, that because of the “foreign” nature of expulsion cases, the threshold for what would meet the threshold of Article 3 would be particularly high and higher still when the treatment did not result from the direct or indirect actions of the authorities of the receiving State but from a naturally occurring physical or mental illness. Fourthly, a risk of suicide could, in principle, form the basis of a successful claim under Article 3. Fifthly, an important factor in determining whether removal would breach Article 3 in the case of an applicant who claimed to be suicidal was whether his or her alleged fear of ill-treatment in the receiving State, if such a fear was at the root of the risk of suicide, was objectively well-founded. A fear found not to be objectively well-founded would weigh against a finding of a real risk of a violation of Article 3. Finally, the Court of Appeal also considered it to be of considerable relevance whether the removing and/or receiving States had effective mechanisms in place to reduce the risk of suicide. The existence of such mechanisms would also weigh heavily against a finding of a violation of Article 3 as a result of removal.
22. The Court of Appeal further held that the correct approach to an alleged risk of suicide in an expulsion case was to consider the risk in three stages, namely, in the United Kingdom, in transit, and in the receiving State. The threshold for Article 3 in respect of the risk in the receiving State was higher than it was in respect of the risk in the United Kingdom. In the case of the particular appellant, the Court of Appeal found that the Asylum and Immigration Tribunal had been correct to find that the risk of suicide in the United Kingdom would be adequately managed by the relevant authorities; that the Secretary of State would provide appropriately qualified escorts and as such mitigate the risk of suicide whilst in transport; and that in light of the finding that the applicant’s fears of return to Sri Lanka were not objectively well-founded, and that he would have family support and access to adequate medical treatment in that State, the risk of suicide in Sri Lanka would not reach the very high threshold of Article 3.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-83828
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF JASIŃSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 3 (substantive aspect);Violation of Art. 8
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicant was born in 1969 and lives in Kamińsk.
6. On the night of 16 August 1999 the applicant and five other men were drinking in a bar, “U Rysia”, in Suwałki. Around midnight a fight broke out outside the bar. Two police officers, K.T and R.Z., saw the fight. They parked their car and approached the fighting men. They saw that one man was lying on the ground (later it turned out that it was the applicant), while two others were kicking and beating him. As the police officers were in plain clothes they showed their police identification cards and ordered the men to stop fighting.
7. Subsequently, several other police cars and an ambulance arrived. There were fourteen police officers at the scene. The arrival of the policemen caused some persons to run away, whereas the applicant himself went into the bar. The applicant refused to go to the hospital, claiming that he was not injured. He was also verbally aggressive towards the police officers. Police officer K.T. attempted to apprehend him and a struggle ensued. Two other police officers, M.S. and M.K., then tried to overpower the applicant, but to no effect as he was very aggressive. The police officers resorted to the use of truncheons. The applicant was handcuffed and placed in a police car. As he refused to get in the car he was again hit with a truncheon on his legs. He was then driven to a sobering-up centre in Suwałki. Upon his arrival, the applicant was allegedly still aggressive and therefore was again hit with a truncheon.
8. Detention Card (karta pobytu) no. 1186/99, which contains the record of the applicant's presence at the Suwałki soberingup centre, provides, inter alia, the following description of his medical condition:
“recent truncheon marks on the skin of the head and the back”
9. The Detention Card also provides that at the time of the applicant's arrival at the centre his breath test showed a blood alcohol level of 2.01 ‰.
10. On 17 August 1999 the applicant was examined by a medical doctor. In his report the doctor wrote:
“Numerous bruises are observed, in particular: on both sides of the head and left part of the neck, bruises in the shape of stripes on the right of the chest, right shoulder, right shoulder blade, round bracelet bruises on both wrists, most probably from handcuffs and round bruises above wrists, single bruises in the shape of stripes on the left buttock, thigh and the lower leg. “
11. The applicant and five other men (“K.P”, “S.S.”, “A.P.”, “R.W.”, and “K.K.”) arrested with him on the night of 16 August 1999 reported the incident to the prosecution authorities. On 17 August 1999 and 18 August 1999, K.P. and S.S. respectively lodged complaints with the Suwałki District Prosecution Office (Prokuratura Rejonowa w Suwałkach). They alleged that they had been beaten by the police officers during the arrest on 16 August. On 18 August 1999 an investigation was instituted. Subsequently, on 23 August 1999 the applicant presented himself at the Prosecution Office and lodged a complaint about the police. He complained that upon his arrival at the sobering-up centre he had been dragged out of the police car, pushed on the ground and beaten and kicked by the police officers. He claimed that during the whole incident he had been handcuffed. Three further victims of the alleged police ill-treatment lodged their complaints with the Suwałki District Prosecutor on the following dates: A.P. on 20 August, R.W. on 23 August and K.K. on 24 August.
12. During the course of investigation proceedings the Prosecutor heard evidence from the applicant and five other alleged victims, from the fourteen police officers who took part in the intervention, employees of the sobering up-centre, the ambulance personnel, the owner of the bar “U Rysia” and his family, and other clients of the bar who were present during the intervention.
13. As there were discrepancies between the medical reports produced by the applicant and the other men and their detention cards from the soberingup centre, the prosecution also obtained a medical report which was submitted on 3 December 1999. It reads in so far as relevant:
“The bruises and haematomas on the applicant's head and neck were caused by a blow with a hard and blunt object, and they could have been caused by kicking during the incident that took place in front of the Bar “U Rysia”. Stripe shaped bruises were caused by blows with a hard, blunt and long object, which could have been a police truncheon. The injuries sustained by the applicant caused bodily harm lasting no longer than seven days (Art. 157 § 2 criminal code).”
14. On 16 December 1999 the Suwałki District Prosecutor discontinued the investigation into the allegations made by the applicant and the five other men and refused to prosecute the police officers involved in the incident of 16/17 August 1999. In its decision the Prosecutor stated that while it is true that the policeman used physical force against the applicant and five other men, the use of force was justified under the circumstances of the instant case. The testimonies of the police officers were credible and coherent. On the other hand the victims' testimonies were highly doubtful. In particular, except for one, they all claimed that no fight had taken place and that the injuries that they sustained had been the result of the police intervention. One victim, K.P., expressly stated that “all those involved in the fight were apprehended by the police”. Finally, the Prosecutor observed that there was not enough evidence to lead to the conclusion that the police officers had committed an offence described in Article 231 of the Criminal Code.
15. On 17 December 1999 the applicant lodged an appeal against this decision with the Suwałki Regional Prosecutor. The Regional Prosecutor advised the applicant that he could not see any grounds for allowing his appeal and had therefore transmitted it along with the case file to the Suwałki District Court (Sąd Rejonowy).
16. On 24 February 2000 the Suwałki District Court upheld the Prosecutor's decision. The court held that the prosecutor's decision was well reasoned. It further stressed that when testifying, the policemen had admitted that they had used force while arresting the applicant and five other persons. There was no further evidence to lead to the conclusion that the police officers had lied when testifying. This decision was final.
17. At the time of lodging his application with the Court the applicant was detained in the course of criminal proceedings against him. As of an unknown date in 2003 he has been serving a prison sentence.
18. On 20 December 1999, the Registry of the Court received the applicant's first letter dated 29 November 1999. The letter was delivered in an envelope bearing a red stamp which read “Censored on 7 December 1999, Prosecutor of the Regional Prosecution Office” and an illegible signature (Cenzurowano 7 grudnia 1999, Prokurator Prokuratury Okręgowej).
19. On 23 March 2000, 22 June 2000, the Registry of the Court received another two letters from the applicant. They were all delivered in envelopes bearing a red stamp “censored (cenzurowano)”. They also bear a stamp “Remand Centre in Suwałki (Areszt Śledczy w Suwałkach) and another red stamp reading “Censored on... Prosecutor of the Regional Prosecution Office”, a handwritten date and a signature.
20. In his correspondence with the Registry, the applicant stated that all letters sent to him by the Court had been censored by the Regional Court in Suwałki. In this respect he submitted an envelope from the Registry of the Court which was sent to him on 9 January 2003. That envelope is marked with a purple stamp which reads “Censored”; it also bears a handwritten date, 15 January 2003, and an illegible signature.
21. The relevant parts of Article 157, provide:
“§ 2 A person who causes bodily harm or ill health lasting no longer than 7 days shall be liable to a fine, a penalty of the restriction of liberty or imprisonment for a term not exceeding 2 years.
§ 3 If a person who committed an act described in (...) § 2 acts without intent, he shall be liable to a fine, a penalty of the restriction of liberty or imprisonment for a term not exceeding 1 year.
§ 4 The prosecution of a crime described in § 2 or 3, if bodily harm or ill health occasioned lasted no longer than 7 days, shall take place under private indictment. ...”
22. The relevant parts of Section 16 of the Police Act of 6 April 1990 read as follows:
“1. If a lawful order given by a police authority or a policeman has not been complied with, policemen may apply the following coercive measures:
1) physical, technical and chemical means of restraining or escorting persons or of stopping vehicles;
2) truncheons;
3) water cannons;
4) police dogs and horses;
5) rubber bullets fired from fire-arms;
2. Policemen may apply only such coercive measures that correspond to the exigencies of a given situation and are necessary to ensure their orders are obeyed.”
Paragraph 5 of the Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police provides:
“1. Physical force shall be used in order to restrain a person, to counter an attack or to make [a person] obey an order.
2. When using physical force, no one shall hit a person, unless he has to do so in self-defence or in order to counter an unlawful attack against life, health or property of others.”
The relevant part of paragraph 6 of the Ordinance provides as follows:
“Handcuffs may be used (...) in order to prevent an escape or to prevent an active assault or active resistance. ...”
23. According to Section 39 of the Law of 26 October 1982 on Education in Sobriety and Counteracting Alcoholism, sobering-up centres are operated by local authorities.
The relevant parts of Article 40 of the Law provide:
“1. Intoxicated persons who behave offensively in a public place or a place of employment, are in a condition endangering their life or health, or are themselves endangering other persons' life or health, may be taken to a sobering-up centre or a public health care facility, or to their place of residence.
(...)
3. [Intoxicated] persons who have been taken to a sobering-up centre or a police station shall remain there until they are sober but no longer than twenty-four hours. ...”
24. The relevant domestic law concerning the censorship of correspondence is set out in the Court's judgment in the case of Michta v. Poland, no. 13425/02, §§ 3339, 4 May 2006.
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-58185
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF VIERO v. ITALY
IMPORTANCE: 4
CONCLUSION: Art. 6 inapplicable
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. Mr Dario Viero, who is employed by a local medical and welfare centre (“the USSL”) in Veneto, lives in Piovene (Vicenza).
8. On 23 January 1987 he instituted proceedings in the Veneto Regional Administrative Court (“the RAC”) for judicial review of a decision of the Regional Council (Giunta regionale) classifying his post in a lower staff category than the one which corresponded to the duties he actually performed, and claimed on that account payment of the difference in remuneration. On the same day he asked for a date to be fixed for the hearing. He subsequently filed three applications (on 7 June 1989, 12 March 1990 and 2 November 1992) for the case to be set down for an urgent hearing.
9. On 13 January 1995 the RAC ordered the USSL to file certain documents. On 6 April 1995 the RAC gave judgment against the applicant, who, on a date which has not been specified, appealed to the Consiglio di Stato. The proceedings are still pending.


ITEMID: 001-99176
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GRADEK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1972 and lives in Łódź.
6. On 20 October 2004 the Łódź District Court ordered the applicant's pre-trial detention for a period of fourteen days. The court referred to the reasonable suspicion that the applicant was guilty of fraud while acting in an organised group.
7. On 6 June 2006 the applicant was arrested. On 13 June 2006 the Łódź District Court ordered his detention for a period of three months. The court held that there was a reasonable suspicion that the applicant had committed the offences with which he had been charged (including establishing and leading an organised criminal group). Furthermore, he had confessed to the charges. The court also stressed that the detention was necessary in order to ensure the proper course of the proceedings, in particular as the applicant had been in hiding.
8. In July his detention was extended until 6 November 2006. The court repeated the reasons previously given.
9. On 14 June and 3 July 2006 the applicant's wife, M.G., asked for permission to visit her husband in prison. On 20 June and 5 July 2006 respectively, the Łódź Regional Prosecutor refused her requests. The prosecutor made handwritten notes on M.G.'s applications – “no permission” and “permission refused” respectively (“brak zgody”, “nie wyrażam zgody”).
10. On 24 July 2006 the applicant was again refused permission to be visited by his wife and children by the Piotrków Trybunalski District Court. The prosecutor made a handwritten note on the applicant's motion “permission refused” (“nie wyrażam zgody”).
11. On 24 September 2006 the applicant was visited by his daughter.
12. On 26 October 2006 the Łódź District Court extended the applicant's detention until 6 May 2007. The court held that the original reasons for his detention were still valid. The court also referred to the likelihood of a heavy sentence and the fact that the applicant had acted in a criminal group. The court further refused the applicant's request for release.
13. On 21 February 2007 the Łódź District Court refused the applicant's application for release and the replacement of detention by more lenient preventive measures. The court referred to the grounds given in previous decisions.
14. The trial began on 4 April 2007. There were sixteen other coaccused in the proceedings. The prosecutor asked the court to hear 106 witnesses.
15. At the hearing held on 29 May 2007 the applicant again asked for the preventive measure to be changed. The court refused his request and extended the detention until 31 July 2007.
16. Between 8 June 2007 and 2 May 2008 the applicant was visited by his wife on twelve occasions.
17. The applicant's detention was subsequently extended on several occasions, in particular on 23 August and 5 October 2007.
18. On 8 May 2008 the applicant was released from detention.
19. It would appear that the proceedings are pending.
20. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and the rules governing other “preventive measures” (środki zapobiegawcze) are set out in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
21. Article 217 § 1 of the Code of Execution of Criminal Sentences of 1997, as applicable at the material time, provided as follows:
“A detainee is allowed to receive visitors, provided that he obtains permission from the authority at whose disposal he remains [investigating prosecutor at the investigative stage or from the trial court once the trial has begun]. If the detainee remains at the disposal of several authorities, it is necessary to obtain permission from all of them unless they decide otherwise.”
22. The judgment was given following a constitutional complaint lodged by the Ombudsman, alleging that Article 217 § 1 of the Code of Execution of Criminal Sentences had been incompatible with a number of constitutional provisions, including the principle of protection of private and family life (Article 47 of the Constitution), the principle of proportionality (Article 31 § 3 of the Constitution), Article 8 of the ECHR and Article 37 of the UN Convention of the Rights of the Child. The Constitutional Court's judgment became effective on 8 July 2009, on the date of its publication in the Journal of Laws (Dziennik Ustaw).
23. The Constitutional Court ruled that Article 217 § 1, in so far as it did not specify the reasons for refusal of family visits in pre-trial detention, was incompatible with the above provisions. The court held that this provision did not indicate with sufficient clarity the limitations on a detainee's constitutional right to protection of private and family life. The court also considered that Article 217 § 1 was incompatible with the Constitution in so far as it did not provide for a possibility to appeal against the prosecutor's decision to refuse a family visit in pre-trial detention.
24. On 5 November 2009 the parliament adopted amendments to Article 217 of the Code of Execution of Criminal Sentences. In particular, subparagraphs 1a-1f were added. These provisions provide in particular that a detainee is entitled to at least one family visit per month. In addition, they indicate clearly the conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal. The amendments enter into force on 8 June 2010.
25. The relevant extracts from the Recommendation read as follows:
“Part II Conditions of imprisonment
Contact with the outside world
24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.
24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.
24.3 National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted.
24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.
24.5 Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so. ”
VIOLATED_ARTICLES: 8


ITEMID: 001-82385
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: TIMINSKIY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Snejana Botoucharova
TEXT: The applicant, Mr Avel Vitalyevich Timinskiy, is a Russian national who was born in 1969 and lives in Kurgan. He was represented before the Court by Mr I. Shirmanov, a lawyer practising in Nizhnevartovsk. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a commercial agent involved in the grain trade and is established as an independent entrepreneur.
On 15 May 1998 the applicant submitted to the tax authorities his official income declaration for 1997 whereby he declared a gross revenue of 6,490,869.92 roubles (RUR). After deductions, his taxable income was RUR 941,073.53, in respect of which the applicant was due to pay RUR 323,015.73 as income tax.
On 15 July 1998 the payment of the 1997 income tax was due. However the applicant did not have sufficient funds on his account and did not pay the full amount. The outstanding amount was RUR 319,412.23.
The Federal Service of the Tax Police charged him with tax evasion under Article 198 § 2 of the Criminal Code (tax evasion concerning a particularly large sum of money). It was stated that the applicant had committed the offence by “other means” as opposed to a failure to declare or a false declaration of income.
On 4 October 2000 the Kurgan Town Court examined the case and acquitted the applicant having found that the lack of funds on the applicant’s account on the payment day was partially caused by his contractors’ failure to transfer money under the contracts. The prosecutor’s office appealed against the acquittal.
On 21 November 2000 the Kurgan Regional Court, composed of three judges, quashed the acquittal having found that the circumstances established by the first instance court did not constitute a valid justification for a failure to comply with the statutory duty to pay tax. It stated that it was the applicant’s obligation to manage his assets so as to secure funds for meeting the forthcoming tax payments. The appeal court remitted the case to the town court for a fresh determination with the following instructions:
“When rehearing the case, the [town] court must examine the evidence comprehensively, fully and objectively. [It must also] determine correctly the question of [the applicant’s] guilt.”
On 22 January 2001 the town court re-examined the case and found that the applicant, having received commercial income, dissipated the whole amount including the part that he should have saved for paying tax. It also found that the applicant knew or should have known of his statutory duty to pay tax and was aware what amount he would be required to pay, and that he spent his funds for other purposes knowing that that might prevent him from complying with the tax duty. Having thus established his intentional failure to pay tax, the court found him guilty of tax evasion under Article 198 § 2 of the Criminal Code. The applicant was sentenced to two years’ imprisonment but was immediately discharged from serving the sentence under the 2000 Amnesty Act.
The applicant appealed against the conviction asserting, inter alia, that Article 198 was inappropriately vague because the phrase “by other means” was open to misinterpretation. He claimed that he did intend to pay tax but did not have money at the right time.
On 15 March 2001 the Kurgan Regional Court dismissed the applicant’s appeal and upheld the conviction. Two out of three judges in the court composition were the same as on 21 November 2000. According to the applicant, the appeal hearing lasted for ten minutes. The applicant was represented in the proceedings by legal counsel.
Article 198 of the Criminal Code, in force at the material time, read, in so far as relevant, as follows:
“Tax evasion committed through non-declaration of income ..., or by false declaration, or by other means ... shall be punishable...”
On 8 December 2003 the Law no. 162FZ “On Amendments and Addenda to the Criminal Code of the Russian Federation” excluded the phrase “or by other means” from Article 198 of the Code.


ITEMID: 001-88788
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TEMESVARI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1950 and lives in Budaörs.
5. On 8 May 1998 the applicants’ neighbours brought an action against her and other respondents, claiming adverse possession of a right of way on their land.
6. Between 1 May 1999 and 5 February 2001 the proceedings were interrupted because of the death of a plaintiff.
7. Between 18 May 2001 and 16 March 2005 the Budaörs District Court held several hearings and obtained the opinion of an expert.
8. Since 21 April 2005 the proceedings have been interrupted because one of the respondents died, his successor did not join the proceedings voluntarily and the plaintiffs failed to apply for the successor to be made a party to the proceedings.
9. According to the information in the case file, the case is still pending before the first-instance court.
VIOLATED_ARTICLES: 6


ITEMID: 001-93594
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ZEHENTNER v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Art. 8;Violation of P1-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1944 and lives in Vienna.
6. On 4 August 1998 the Meidling District Court (Bezirksgericht), in summary proceedings, ordered the applicant to pay 102,330.48 Austrian schillings (ATS), approximately 7,440 euros (EUR) to G. for the cost of plumbing work carried out in her apartment (Zahlungsbefehl).
7. On 26 May 1999 the District Court granted G.'s request for the enforcement of the payment of this order and the costs of the proceedings in the amount of approximately EUR 2,150 by judicial sale (Zwangsversteigerung) of the applicant's apartment situated at S.-street 23/17, in the 12th district of Vienna. That address was used by the courts for serving this and subsequent decisions. A registered letter was sent to the applicant at the above address. As it could not be handed over to her personally, it was served on her on 8 June 1999 by deposition (Hinterlegung) in the post office.
8. On 27 July 1999 the Meidling District Court, referring to two further enforceable payment orders of 24 October 1995 and 15 June 1999 respectively (amounting to approximately EUR 2,100) and to the costs of the respective proceedings, granted another creditor, W., leave to accede to the judicial sale.
9. The applicant was informed of the date of the judicial sale by registered letter, which was again sent to her address at S.-street 23/17, and was served by deposition in the post office on 6 October 1999.
10. On 17 November 1999 the judicial sale took place. The applicant did not assist. The District Court sold the applicant's apartment (Zuschlag) for 812,000 ATS (approximately EUR 59,000) to H. GmbH, a limited liability company. The decision of sale was served on the applicant on 24 November 1999 by deposition in the post office.
11. By a decision of 14 January 2000 the District Court allocated shares of the proceeds to the creditors (Meistbotsverteilungsbeschluss).
12. In February 2000 the applicant was evicted from the apartment.
13. In March 2000 the applicant had a nervous breakdown and stayed in a psychiatric hospital between 2 March 2000 and 12 April 2000. It cannot be established on the basis of the file where the applicant lived for the rest of the year 2000. It appears that in 2001 she was housed in a community owned apartment, where she is still living.
14. In connection with the applicant's stay in the psychiatric hospital, the Fünfhaus District Court instituted guardianship proceedings (Sach-walterschaftsverfahren) and, on 15 March 2000, appointed a provisional guardian for the applicant. In these proceedings a medical expert submitted that the applicant had suffered from paranoid psychosis since 1994 and had since then not been able to make rational decisions, in particular as far as housing matters were concerned. On 15 May 2005 a permanent guardian was appointed for the applicant.
15. On 3 April 2000 the Meidling District Court served the decision of 17 November 1999 concerning the judicial sale of the applicant's apartment on the applicant's guardian. On 17 April 2000 the applicant, represented by her guardian, appealed against this decision. Referring to the guardianship proceedings, she submitted that the enforcement proceedings were null and void as she had not been capable of participating in the proceedings (prozeßfähig) either at the time of delivery of the respective payment orders or at the time of delivery of the decisions granting enforcement and summoning her to the judicial sale. She further requested that the enforcement proceedings be suspended.
16. On 26 April 2000 the District Court dismissed the applicant's request for the enforcement proceedings to be suspended. On 3 May 2000 it granted a part of the surplus of the judicial sale to another creditor, A. The applicant, referring again to her argument that the enforcement proceedings should be considered null and void, appealed against both decisions. She further submitted that she had paid all outstanding debts to G. in July 1999.
17. On 23 June 2000 the Vienna Regional Civil Court (Landesgericht) suspended the proceedings concerning the appeal against the judicial sale of the applicant's apartment and ordered the Meidling District Court to decide on the applicant's capacity to participate in the proceedings since June 1999, when the decision granting enforcement by judicial sale of her apartment had been served on her.
18. On the applicant's requests, the Meidling District Court, on 3 July 2000, found that the payment orders of 4 August 1998 and 15 June 1999 (see paragraphs 6 and 8 above) were not enforceable. Relying on section 7 § 3 of the Enforcement Act (Exekutionsordnung), it found that the applicant had not been capable of participating in the proceedings at the time of the delivery of the decisions at issue. For the same reasons the Hernals District Court, on 3 May 2001, referring to the expert opinion obtained in the guardianship proceedings and a further expert opinion, found that the payment order of 24 October 1995 (see paragraph 8 above) was not enforceable.
19. Referring to the first decision, the applicant, in October 2000, requested the District Court to discontinue the enforcement proceedings. On 12 January 2001 the District Court dismissed this request and noted that discontinuation was no longer possible as the decision allocating the proceeds of the sale to the creditors had become final and the creditors had been paid.
20. In the meantime, on 28 December 2000, the Vienna Regional Civil Court resumed the proceedings concerning the applicant's appeal against the judicial sale. It dismissed the appeal, noting that under section 187 § 1 and section 184 § 1 (3) of the Enforcement Act only persons who had been present at the judicial sale or had erroneously not been summoned had a right to appeal within 14 days from the date of the auction. In contrast to the views expressed by legal writers, it was the Supreme Court's established caselaw that this time-limit was absolute and, therefore, also binding in a case like the present one where the debtor had not been capable of participating in the proceedings and had not been represented. Consequently, the sale of the applicant's apartment had become final and it was no longer possible to claim the nullity of the proceedings. The court therefore revised its decision of 23 June 2000 (see paragraph 17 above) finding that the question of the applicant's capacity to participate in the enforcement proceedings was not relevant.
21. The applicant, represented by her guardian, requested the Vienna Regional Civil Court to allow an ordinary appeal with the Supreme Court (Oberster Gerichtshof). She argued that section 187 § 1 of the Enforcement Act setting an absolute time-limit for the filing of an appeal against a decision of sale in a judicial auction was unconstitutional and amounted to discrimination against disabled persons not capable of participating in legal proceedings. Such individuals could not be treated like persons with legal capacity, who were able to defend their interests in underlying civil proceedings and could later appeal against a decision granting enforcement. In the present case, the interests of the applicant in declaring the sale of her apartment null and void had to prevail over the interests of the purchaser and the creditors. On the one hand, the applicant had become homeless, having lost her apartment, which had been sold far below its market price in order to satisfy relatively minor claims. On the other hand, annulling the judicial sale of the apartment would not have caused serious or irreparable damage to the creditors or the purchaser.
22. By a decision of 12 January 2001 the Meidling District Court entered the purchaser of the applicant's apartment, the limited company H., as owner in the land register.
23. On 24 April 2001 the Vienna Regional Civil Court refused to grant an ordinary appeal. Qualifying the applicant's submissions as an extraordinary appeal, it transferred them to the Supreme Court.
24. On 30 January 2002 the Supreme Court (Oberster Gerichtshof) rejected the applicant's extraordinary appeal. It noted that the Regional Court's decision was in line with its constant case-law. As to the question regarding the constitutionality of the absolute time-limit for the filing of appeals against a judicial sale, it referred to the necessary protection of the purchaser.
25. By decision of 12 April 2002 the Vienna Regional Civil Court dismissed the applicant's further appeals against a number of decisions of the District Court, including the decision entering the purchaser of the apartment as owner in the land register (see paragraph 22 above), a decision granting another part of the surplus of the judicial sale to creditor A., and decisions fixing further costs of the enforcement proceedings. It noted that the applicant's arguments were restricted to the allegation that the judicial sale had not become final and that, therefore, all subsequent decisions were null and void. However, according to the Supreme Court's decision, the judicial sale had become final.
26. Under Article 477 § 1 of the Code of Civil Procedure (Zivilprozeßordnung) a decision in civil proceedings is null and void and may be annulled if a party who is required to be represented has not been represented in the proceedings and the legal representative does not approve the conduct of the proceedings ex post. The party concerned may request annulment under section 529 of the Code of Civil Procedure. There is no specific time-limit for filing such a request.
27. Article 6a of the Code of Civil Procedure provides that if there is any indication that a party is not capable of effectively participating in the proceedings, they have to be suspended and the case has to be transferred to the competent court to conduct guardianship proceedings.
28. Enforcement proceedings are instituted by a request by the creditor, who indicates the mode of enforcement (section 54). In enforcement proceedings a debtor can oppose enforcement, claiming deficiencies in the underlying claim (Oppositionsklage, Oppositionsgesuch; sections 35 and 40) or can request a stay of execution (Impugnationsklage, Impugnations-gesuch, section 36) on account of deficiencies in the decision granting enforcement. Furthermore, the court may, of its own motion or at the request of a party concerned, declare that a judicial decision or payment order is not enforceable if enforcement would be erroneous or unlawful (section 7 § 3). Upon such a decision enforcement proceedings are in principle discontinued (section 29 § 1) or suspended (section 42 § 2).
29. Enforcement by way of judicial sale (Zwangsversteigerung) of a debtor's real estate is granted by a decision (Exekutionsbewilligung). Subsequently, the court orders the valuation of the property by an expert (section 140). Both parties to the proceedings, debtor and creditor, are summoned to the respective inspection of the real estate. At the time of the events, the value of the real estate was determined by a decision of the enforcement court which was subject to appeal (section 144).
30. The date of the judicial sale is communicated by official notification (Versteigerungsedikt) which is served on the debtor and creditor (section 171). The decision to sell (Zuschlag) real estate in a judicial sale constitutes an act of public law by which the purchaser obtains the property. Under sections 184 § 1 (3) and 187 § 1 such a decision can be appealed against within 14 days from the date of the judicial sale, inter alia, by a person who has erroneously not been summoned to the judicial sale.
31. According to the Supreme Court's constant case-law, after expiry of this time-limit the decision of judicial sale becomes final. It is then no longer possible to take the eventual nullity of underlying decisions into account, even if the debtor had not been capable of participating in the proceedings due to a lack of legal capacity at the time when enforcement had been granted. The Supreme Court holds that only this approach is compatible with the aims of the proceedings leading to a judicial sale and the protection of the bona fide purchaser. A debtor can remedy unlawful acts of the party having instituted enforcement proceedings by claiming compensation (Schadenersatz) and unlawful acts of the courts by instituting official liability proceedings (Amtshaftung) (see for example 3 Ob 133/88, and also 2 Ob 128/72, 3 Ob 114/83, 3 Ob 165/01p).
32. After the judicial sale becomes final, the enforcement court allocates the proceeds of the sale to the creditors and any eventual surplus subsequently to the debtor. Once the purchaser has fulfilled all the conditions, the court transfers the real estate and enters him as the owner in the land register.
VIOLATED_ARTICLES: 8


ITEMID: 001-4890
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 1998
DOCNAME: SIMMER v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Czech citizen born in 1950. He resides in Jablonec nad Nisou.
A.
On 27 February 1991 the Rychnov u Jablonce nad Nisou Town Board of Representatives (městské zastupitelstvo) (the Town Board of Representatives) accepted the mayor’s proposal to appoint the applicant as the Secretary of the Rychnov u Jablonce nad Nisou Town Office (městský úřad) ("the Town Office").
On 1 March 1991 the applicant and the Town Office, represented by the mayor, signed a contract of employment. The applicant began to work on 4 March 1991.
On 17 October 1991 the Town Board of Representatives decided to remove the applicant from his position. By letter of 18 October 1991 the mayor informed the applicant that the Town Office could not offer him an alternative employment and that he would be dismissed as of 31 January 1992.
On 22 October and 18 December 1991 the applicant brought an action against the Town Office before the Jablonec nad Nisou District Court (okresní soud) (“the District Court”) claiming unfair dismissal. He challenged the validity of the dismissal as having been made by the Town of Rychnov u Jablonce nad Nisou (město) ("the Town") and not by the Town Office which signed his contract of employment, and having been pronounced without the previous consent of a trade union authority. The applicant also claimed that the dismissal could not be made in pursuance of Sections 46(1)(c) and 65(2) of the Labour Code (zákoník práce) as these provisions applied only to a termination of an employment relationship based on appointment [i.e. without a contract as such], which was not his case because his employment relationship was created by the contract signed on 1 March 1991 without any previous or subsequent appointment. The fact that on 27 February 1991 the Town Board of Representatives approved the mayor’s proposal could not be considered as the applicant’s appointment because at that time he had not yet been working for the defendant.
On 13 May 1992 the District Court dismissed the applicant’s action. The court stated inter alia that the applicant’s employment relationship had been based on appointment and created on 4 March 1991, the date on which the applicant would start exercising his duties as agreed by the parties. It further considered that, bearing in mind that the Town Office and Town were identical legal persons, it could not be said that the applicant had not been employed by the Town. The court also examined the decision of the Town Council concerning the applicant’s dismissal and found it valid. It finally stated that the dismissal notice contained a clause which read that the applicant’s dismissal had been a matter of consultation with the trade union authority on 18 October 1991, and that the original of the notice had been signed by the applicant.
On 7 August 1992 the applicant appealed against this judgment. He claimed inter alia that the District Court had not established the facts correctly and had not assessed evidence in accordance with the domestic law. He further objected to the legal assessment of the case by this court.
By ruling of 24 August 1994 the Ústí nad Labem Regional Court (krajský soud) (“Regional Court”), after a public hearing held on 5 November 1992 in which the applicant had participated, quashed the judgment of the District Court and stayed the proceedings. It found that, in accordance with Section 4(1) of the Municipalities Act No. 367/1990 as amended (zákon o obcích), a municipality (obec) had a legal personality. However, according to Section 58(1) and (4)(a) of this Act, a municipality office was an organ of the municipality without legal personality. Accordingly, the Town Office could not be a party to the proceedings. The ruling was not given in public.
On 26 September 1994 the applicant filed an appeal on points of law (dovolání) challenging the legal opinion of the Regional Court. He further maintained that his appeal had been dealt with by judges who should have been excluded for bias because of their knowledge of another action brought by the applicant against some judges of the Regional Court. On 17 May 1995 a lawyer appointed by the applicant informed the High Court (Vrchní soud) that he agreed with the content of the applicant’s appeal.
On 29 November 1995 the High Court, without a public hearing, rejected the applicant’s appeal. The Court confirmed the finding of the Regional Court that the applicant’s action had been brought against the Town Office which did not have legal personality and which, therefore, could not be a party to the proceedings. It found unsubstantiated the applicant’s objection concerning the exclusion of the judges stating that by a decision of 19 July 1994, referred to by the applicant, the High Court had excluded all judges of the Regional Court because of their relation to two defendants in other proceedings brought by the applicant, who did not participate in the present proceedings.
On 14 February 1996 the applicant lodged a constitutional appeal alleging a violation of his right to judicial protection under Articles 90 and 95 of the Constitution and Articles 36, 37 and 38 of the Charter of Fundamental Rights and Freedoms (Charter). He claimed in particular that the courts had not complied with their duty under Section 5 of the Code of Civil Procedure to advise the applicant to change the defendant. He referred in this regard to the judgment of the Constitutional Court No. II ÚS 79/94 concerning a similar problem. He also submitted that he was in a difficult financial situation, that the Czech Bar Association had refused to appoint for him a lawyer for the purposes of the constitutional appeal and that he did not have access to the court-file of the District Court because it had been sent to the High Court. On the same day, the applicant’s constitutional appeal was submitted by a lawyer.
On 11 July 1996 the Constitutional Court declared the applicant’s appeal manifestly ill-founded. The Court held that the applicant was wrong in his opinion that the ordinary courts are generally and in any case obliged to advise a claimant on the legal capacity to be a party to the proceedings, and on who could or could not be the defendant in a particular case. The claimant is free to specify the defendant but must be sure that the defendant can be a party to the proceedings. The Court stated that the question who was authorised to dismiss the applicant and who, therefore, could be a party to the proceedings, was the subject-matter of those proceedings and that this question had been duly clarified in the course of the proceedings. Therefore, it was not explicitly included, as one of the court’s obligations, to advise the applicant in this regard. In particular, the District Court had concluded that there was no reason to declare the dismissal void on the ground that the Town had no authority to do it. Accordingly, the applicant could have concluded that it was necessary to change the defendant in his appeal. The fact that he did not do so could not be considered as a violation of his right to judicial protection as provided for in Article 90 of the Constitution and in Section 36 of the Charter. The Constitutional Court finally stated that its judgment, referred to by the applicant, concerned matters of extra-judicial rehabilitation which were different from his case.
B. Relevant domestic law
The Municipalities Act No. 367/1990 (in force until 30 June 1992)
According to Section 21, a municipality, acting in the sphere of assigned competence, executed matters of state administration in accordance with special provisions.
Municipal councils
According to Section 44, a municipal council was the executive body of a municipality as regards the sphere of independent and assigned competence. When exercising independent competence the municipal council reported to the municipal board of representatives. When exercising assigned competence it was subordinate to a district office.
Municipal offices
According to Section 58, a municipal office was constituted by a chairman, one or more deputy chairmen and other officials. The head of the municipal office was the mayor. The municipal office acted in the sphere of both independent and assigned competence. In the sphere of assigned competence, it executed matters of state administration, with the exception of matters which were within the competence of the municipal council, a commission or a special body. It was subordinate to a district office.
Secretary of the municipal office
According to Sections 36i and 59, if the municipal office had more officials, the municipal board of representatives could create the function of Secretary of the municipal office and decide on his appointment after having consulted the district office. The Secretary was a staff-member of the municipal office and reported to the municipal council. He was the superior of all other staff-members of the municipal office. He acted as the head of the organisation in accordance with special provisions unless the municipal council decided otherwise. He ensured, through the staff-members of the municipal office, that decisions taken by the municipal board of representatives and municipal council were executed. He co-ordinated and controlled the activities of the municipal office staff-members. Finally, he participated in meetings of the municipal board of representatives and municipal council in an advisory capacity.
The Municipalities Act No. 367/1990 (in force from 1 July 1992)
According to Section 21, a municipality, acting in the sphere of assigned competence, executes matters of state administration in accordance with special provisions.
Municipal councils
According to Section 44, a municipal council is the executive body of a municipality as regards the sphere of independent competence. When exercising such independent competence the municipal council reports to the municipal board of representatives. The municipal council does not act in the sphere of assigned competence, except to issue generallybinding decrees.
According to Section 45, the municipal council, with the consent of the chairman of the district office, appoints and removes from office the Secretary of the municipal office and defines his remuneration in accordance with special provisions.
Municipal offices
According to Section 58, a municipal office is constituted by a chairman, one or more deputy chairmen, a Secretary (if such a position has been created) and other officials. The head of the municipal office is the mayor. The municipal office, in the sphere of independent competence, performs tasks assigned to it by the municipal council or municipal board of representatives, provides expert guidance to organisations and institutions funded by the municipality and nonprofitmaking bodies created by it, unless otherwise provided by special legislation, and provides assistance to commissions in their activities. In the sphere of assigned competence, the municipal office executes matters of state administration, with the exception of matters which are within the competence of a commission or a special body. As regards matters of assigned competence, the municipal office is subordinate to a regional office, unless otherwise provided by special legislation.
Secretary of the municipal office
According to Section 59, a Secretary is appointed in municipalities where at least two divisions have been created by the municipal council, and in municipalities with accredited municipal offices. The Secretary is a staffmember of a municipal office. When acting within the sphere of independent competence he reports to the municipal council and mayor. When acting within the sphere of assigned competence he reports to the mayor. The Secretary of a municipal office is the superior of all other staffmembers of the municipal office. He acts as a statutory body in accordance with special provisions, ensures that decisions taken by the municipal board of representatives and municipal council are executed, directs and controls the activities of the municipal office staffmembers, and sets the remuneration of the municipal office staffmembers in accordance with special provisions. He participates in meetings of the municipal board of representatives and municipal council in an advisory capacity.