ITEMID: 001-77411
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: YILDIZ AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants, Mrs Kazel Yıldız, Mr Sedat Yıldız, Mr Polat Yıldız and Mr Ali Yıldız, are Turkish nationals and live in Elazığ. They are represented before the Court by Mr C. Zülfikar, Mr K. Çetin and Mr M. Gündoğdu, lawyers practising in Elazığ.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 October 1994 Arslan Yıldız, the first applicant’s husband and the brother of Polat Yıldız and Ali Yıldız, was taken into custody by gendarme officers.
On 5 November 1994 Arslan Yıldız’s corpse was found in the vicinity of the neighbouring Bilekli village along with the corpse of Müslüm Kavut, an inhabitant of Bilekli. Both of the bodies bore firearm injuries.
On an unspecified date, Kazel Yıldız and Ali Hıdır Yıldız, son of Kazel Yıldız, lodged petitions with the Hozat public prosecutor requesting an investigation into the death of Arslan Yıldız.
On 4 January 1995 the Hozat public prosecutor issued a decision of non jurisdiction ratione loci and transferred the investigation file to the Ovacık Public Prosecutor who forwarded it to the Military Prosecutor’s office in Ankara.
On 29 September 1997 the Military Prosecutor attached to the Gendarmerie Headquarters in Ankara also issued a decision of nonjurisdiction ratione materiae. The case-file was then sent to the Public Prosecutor’s office attached to the Malatya State Security Court.
On 17 April 2000 Kazel Yıldız filed a petition with the public prosecutor’s office in Hozat and requested information concerning the investigation into her husband’s death. She did not receive any response to her petition.
On 31 July 2000 Kazel Yıldız lodged a further petition with the Ministry of the Interior and requested compensation for the damage she had suffered on account of her husband’s death. She also requested that an investigation be initiated into Arslan Yıldız’s death.
In a letter of 16 September 2002 the Malatya Public Prosecutor at the State Security Court asked the Hozat Public Prosecutor to provide information every three months on the progress made in the investigation concerning the death of Arslan Yıldız.
Until October 1994 the applicants all lived in Karaoğlan, a village of the Ovacık district in Tunceli, where they owned houses, livestock and land.
In October 1994 security forces forcibly evacuated the Karaoğlan village and destroyed the applicants’ property. The applicants then moved to Elazığ where they currently live.
On 16 August 1996 the mayors of some villages of the Ovacık district, including the mayor of Karaoğlan, Düzgün Yıldız, petitioned the Governor’s office in Tunceli, the Ministry of Construction and Settlement, the Governor’s office in the state of emergency region, the Refah Partisi (Welfare Party) Presidency, the Prime Minister’s office and the Presidency of the Parliament on behalf of the inhabitants of the Ovacık villages. They requested the aforementioned authorities to allow the inhabitants to return to their villages. They also requested aid for food and compensation for the damage they had suffered.
On 2 February 1999 the mayors of the villages of Ovacık lodged further petitions with the offices of the President, Prime Minister and District Governor and requested permission on behalf of the villagers to return to their villages.
They received no response to their petitions.
On unspecified dates, the applicants lodged further petitions with the District Governor’s office in Ovacık requesting permission to return to their village.
On 10 May 2000 the District Governor’s office in Ovacık sent the following reply to the applicants:
“Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to the Village and Rehabilitation Project’.”
Arslan Yıldız disappeared for an unknown reason around 10-13 October 1994.
On 26 October 1994 Ali Hıdır Yıldız applied to the Ovacık Public Prosecutor’s office and claimed that his brother had been taken away by soldiers who had been carrying out operations in the vicinity of their village. He stated that they could not obtain any information from the military authorities about the whereabouts of his brother and that they were worried about his life. He therefore asked for an investigation to be carried out into the disappearance of his brother.
On 31 October 1994 Ali Hıdır Yıldız filed a petition with the Tunceli Chief Public Prosecutor’s office complaining that his brother Arslan Yıldız and his son Ulaş Yıldız had been taken away twenty days ago in the course of an operation carried out by the security forces. He therefore asked for an investigation to be conducted in order to find out the whereabouts of his relatives.
On 5 November 1994 Arslan Yıldız’s body was found in the vicinity of the neighbouring village. A post-mortem examination was carried out on the body of the deceased under the supervision of the Hozat Public prosecutor and in the presence of Ali Hıdır Yıldız.
On 21 November 1994 Ali Hıdır Yıldız was questioned by Public Prosecutor no. 33341 in relation to the death of his brother. Mr Yıldız alleged that his brother had been found dead in a field in Bilekli village subsequent to his removal from his village by the security forces. He asked the Public Prosecutor to bring those responsible for the death of his brother to justice.
On 22 November 1994 prosecuting authorities took statements from Ulaş Yıldız and Kazel Yıldız who are respectively the son and wife of the deceased. Ulaş Yıldız stated that security forces conducting operations in Karaoğlan village had taken him with them to a hamlet attached to his village. In the hamlet he had met Müslüm Kavut who was the then muhtar (mayor) of Bilekli village. The soldiers had brought his father, Arslan Yıldız, to the hamlet an hour after their arrival. Ulaş Yıldız had then been separated from his father and the muhtar and had been released in Ağırbaşlı village. Twenty-five days after this incident his father and the muhtar had been found dead in Bilekli village.
Kazel Yıldız stated that her husband and son had been taken away by soldiers on 13 October 1994 and that while her son had been released next day, her husband had been found dead along with Müslüm Kavut in Bilekli village. She claimed that her husband and Müslüm Kavut had been killed by the soldiers.
On 22 November 1994 prosecuting authorities heard evidence from Düzgün Yıldız. Mr Yıldız, who was the muhtar of Karaoğlan village at the relevant time, stated that he had seen Arslan Yıldız been taken away by soldiers. He had then inquired into the reason for detention of Arslan Yıldız at the Gendarmerie Station and had been told by the authorities that he would guide the soldiers coming from outside the region. However, the corpses of Arslan Yıldız and Müslüm Kavut had been found by Efo Kavut.
Meanwhile, prosecuting authorities took statements from Efo Kavut who is the father of Müslüm Kavut. He alleged that his son and Mehmet Yıldız had been taken away and killed by soldiers.
On 1 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction ratione loci and sent the investigation file to the Hozat Public Prosecutor’s office.
On 7 December 1994 the Tunceli Public Prosecutor issued a decision of non-jurisdiction ratione loci and sent the investigation file to the Ovacık Public Prosecutor’s office.
On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction ratione loci and sent the investigation file to the Hozat Public Prosecutor’s office.
On 30 December 1994 statements were taken from Ahmet Ördek, who is the uncle of Müslüm Kavut. He stated that some of the villagers had described to him the area where the bodies had been found.
On 2 January 1995 Gendarmerie authorities took statements from Efo Kavut, the father of Müslüm Kavut whose corpse was found together with Arslan Yıldız. Efo Kavut stated that he did not know the killer(s) of his son and described the area where he found the bodies of the deceased persons.
On 4 January 1995 the Hozat Public Prosecutor issued a decision of nonjurisdiction ratione loci and sent the investigation file to the Ovacık Public Prosecutor’s office.
On 6 June 1996 the Ovacık Public Prosecutor issued a decision of nonjurisdiction ratione materiae and sent the case-file to the Military Prosecutor’s office at the Headquarters of Elazığ 8th Army Corps (Elazığ 8. Kolordu Komutanlığı Askeri Savcılığı).
On 13 June 1995 Public Prosecutor no. 32453 attached to the Malatya Chief Public Prosecutor’s office took statements from Efo Kavut. The latter stated that his son Müslüm Kavut, who was the muhtar of Karaoğlan village, had been taken away by the soldiers. When he inquired into the arrest of his son, the authorities at the Gendarmerie Station had told him that there was an investigation in relation to his son. On 24 October 1994 Efo Kavut found the bodies of his son and Arslan Yıldız some 500 metres away from the Gendarmerie Station. Efo Kavut asked the Public Prosecutor to initiate criminal proceedings against the soldiers that were responsible for the killing of his son.
On 28 February 1996 Public Prosecutor no. 30940 took statements from Murat Ceviz, who worked as a non-commissioned officer at the Karaoğlan Gendarmerie Station between 1993 and 1995, in relation to the killing of Arslan Yıldız. Mr Ceviz stated that neither Arslan Yıldız nor Müslüm Kavut had been detained by their gendarmerie troops. However, he noted that these two persons had accompanied a troop as guides in the course of their operations in the region. He did not know the name or commanding officer of the troop in question. He further claimed that he had had no information concerning the death of these two persons.
On 22 April 1996 Public Prosecutor no. 24380 questioned Abdulvahip Sarı, who worked as an officer at the Karaoğlan Gendarmerie at the relevant time. Mr Sarı stated that Müslüm Kavut and Arslan Yıldız had not been detained at the Karaoğlan Gendarmerie Station. He had no information concerning the arrest and detention of these persons or the troops operating in the region.
On 18 June 1996 the Military Prosecutor attached to the Headquarters of Elazığ 8th Army Corps issued a decision of non-jurisdiction ratione loci and sent the investigation file to the Military Prosecutor’s office at the Headquarters of Ankara 4th Army Corps.
In a letter of 23 October 1996 the Deputy Military Prosecutor at the Headquarters of Ankara 4th Army Corps asked the Bolu 2nd Brigade Command to report the names of the troops which had conducted operations in the region at the relevant time. He also requested that the names of persons, if any, who had assisted the troops as guides be reported to him. He further asked whether any complaint had been lodged concerning the killing of the persons and, if so, whether any investigation had been carried out into such allegations.
On 6 March 1997 Military Public Prosecutor in Malatya took statements from Efo Kavut in relation to the death of his son and Arslan Yıldız. Mr Kavut reiterated his allegations that his son could have been killed by the soldiers who had conducted operations in the region.
On 2 May 1997 the Military Public prosecutor also took statements from Kazel Yıldız, the wife of Arslan Yıldız. She alleged that her husband had been taken away by soldiers and that therefore he must have been killed by them. She however stated that she did not know the names or ranks of the soldiers.
Finally, on 29 September 1997, the Military Public Prosecutor attached to the Gendarmerie Headquarters in Ankara issued a decision of nonjurisdiction ratione materiae considering that the offence in question fell within the jurisdiction of the state security courts which were competent in terrorist or organised crimes. The Military Public Prosecutor noted that, despite the allegations that Arslan Yıldız could have been taken away or killed by the security forces conducting operations in the region, there was no eye-witness and that the overall evidence given by the witnesses consisted of hearsay. He therefore considered that it was impossible to hold the security forces responsible for the killing of Arslan Yıldız on the basis of hearsay evidence. In light of the evidence contained in the investigation file, the Military Public Prosecutor concluded that Arslan Yıldız had been killed by members of the terrorist organisations. A copy of the investigation file was then sent to the Chief Public Prosecutors’ offices at the Malatya and Diyarbakır State Security Courts.
In a report dated 13 January 2005 the Malatya Public Prosecutor stated that the investigation into the death of Arslan Yıldız was still pending in order to identify the culprits.
The official records indicated that the inhabitants of the villages of Ovacık had evacuated their places of living on account of intense terrorist activities in the region and threats issued by the PKK (Workers’ Party of Kurdistan) terrorist organisation against the villagers. The security forces had not destroyed any property or forced the applicants to leave their village. Furthermore, the applicants had not filed any complaint with the authorities concerning the alleged destruction of their property and their forced eviction from Karaoğlan. Thus no investigation had been carried out into these allegations which had only been submitted to the European Court.
Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and renewing their activities in their villages.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 187,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of Aydın İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgments of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI) and İpek v. Turkey (no. 25760/94, §§ 96-103, ECHR 2004II (extracts)).


ITEMID: 001-93256
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ZAYTSEV AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicants were born in 1950, 1959 and 1989 respectively and live in St. Petersburg. They are relatives.
6. On 17 July 1996 the first applicant lodged an action before the Nevskiy District Court of St. Petersburg against a private company and its owner, Mr P., claiming execution of a contract and compensation for damage. According to the Government, the action was lodged on 30 October 1996.
7. The Nevskiy District Court fixed a hearing for 12 September 1996 and ordered the first applicant to provide a detailed calculation of the damages claimed. The first applicant submitted the calculation and amended his claims.
8. On 15 October 1996 the Nevskiy District Court adjourned the examination of the action because the first applicant had not followed the pre-trial procedure for settling the dispute.
9. Three days later the first applicant appealed against the decision of 15 October 1996 to the St. Petersburg City Court. On the same day he lodged another action before the Nevskiy District Court against Mr P. seeking compensation for damage and execution of a contract. The action was based on the same set of facts as the action of 17 July 1996.
10. On 18 November 1996 the St. Petersburg City Court upheld the decision of 15 October 1996.
11. On 17 June 1997 the District Court partly granted the action of 18 October 1996. The judgment was quashed on appeal on 1 December 1997 and a re-examination of the case was ordered.
12. Having received the case file, on 11 March 1998 the Nevskiy District Court joined the two sets of the proceedings pertaining to the applicant’s actions and listed a hearing for 3 April 1998. Between April 1998 and March 2000 the District Court fixed fourteen hearings, of which, according to the Government, three hearings in 1998, one hearing in 1999 and five hearings in 2000 were adjourned due to the parties’ failure to attend. The first applicant, relying on a letter of 15 December 1998 from a deputy president of the Nevskiy District Court, disputed the Government’s assertion, arguing that one hearing in 1998 had been postponed due to the parties’ absence, two had been adjourned because the presiding judge had been involved in other unrelated proceedings or had been ill and the remaining eight hearings had been adjourned because the respondent had defaulted.
13. In the meantime, on 12 March 1999 the first applicant, who at that time lived in the town of Sestroretsk, asked the District Court to examine the action in his absence and to serve him with a copy of the judgment. The first applicant provided the Court with copies of summonses for the hearings, neither of which contained a notification that his presence before the District Court was mandatory.
14. On 28 March 2000 the Nevskiy District Court partly accepted the action. The first applicant appealed. On 14 August 2000 the District Court adjourned the appeal proceedings and asked the first applicant to pay a court fee.
15. On 5 February 2001, following a complaint by the first applicant, the St. Petersburg City Court quashed the decision of 14 August 2000 and accepted the appeal. On the same day the City Court quashed the judgment of 28 March 2000 in part and sent the case for a fresh examination.
16. On 25 April 2001 the first applicant once again asked the Nevskiy District Court to consider the case in his absence.
17. As it appears from the parties’ submissions, after the District Court had received the case file from the St. Petersburg City Court, it fixed the first hearing for 4 March 2002.
18. On 4 March 2002 the District Court postponed the hearing. According to the Government, the District Court held that the first applicant’s presence was mandatory. They further submitted that summonses had been served on the parties, including the first applicant, with a note stating that their presence was required.
19. Hearings scheduled for 5 August and 30 September 2002 were also adjourned due to the first applicant’s absence. According to the Government, summonses containing an order for the first applicant’s presence had been served on him in due time. Copies of the summonses presented by the first applicant, including those for the hearings scheduled for 4 March, 5 August and 14 November 2002, did not contain notification that his presence was mandatory.
20. On 14 November 2002 the Nevskiy District Court discontinued the examination of the action because the first applicant had defaulted at the hearings on 4 March, 30 September and 14 November 2002 and had apparently lost interest in his case.
21. The first applicant was not notified of the decision of 14 November 2002. Accordingly, he complained to various domestic officials and the Supreme Court of the Russian Federation about the excessive length of the proceedings in his case.
22. On 1 October 2003 the St. Petersburg City Court, in reply to numerous complaints by the first applicant, sent a letter informing him that on 14 November 2002 the proceedings in his case had been discontinued due to his failure to attend hearings. The City Court, explained in detail to the first applicant the various judicial avenues he could follow if he wanted to challenge the decision of 14 November 2002. A copy of the decision of 14 November 2002 was not enclosed.
23. The first applicant asked the President of the Nevskiy District Court to serve him with the decision of 14 November 2002. He also argued that he had requested the Nevskiy District Court to examine his action in his absence and that therefore his absence from the hearings should not have been interpreted as proof that he had lost interest in the case.
24. On 23 January 2004 the District Court President informed the first applicant that his requests for the examination of his action in his absence had been included in the case file and that the District Court had taken them into consideration. However, the District Court had considered that the first applicant’s presence at the hearings had been absolutely necessary and thus, following unsuccessful attempts to obtain his attendance, on 14 November 2002 it had decided to discontinue the examination of the case. The President of the District Court enclosed a copy of the decision of 14 November 2002.
25. On 12 March 2003 the St. Petersburg City Prosecutor’s office, in response to complaints by the applicant about the discontinuation of the proceedings, once again informed the first applicant of the procedure for challenging the decision of 14 November 2002.
26. The RSFSR Code on Civil Procedure of 11 June 1964 (in force at the material time) provided that civil cases were to be prepared for a hearing no later than seven days after the action had been lodged with the court. Civil cases were to be examined no later than one month after the preparation for the hearing had been completed (Article 99)
27. Summonses were to be served on the parties and their representatives in a way that allowed them enough time to attend the hearing on time and prepare their case. If necessary, the parties could be summoned by a phone call or a telegram (Article 106).
28. Parties could ask a court to examine a case in their absence and to serve them with a copy of a judgment. A court could decide that the presence of a party was mandatory on the basis of the particular circumstances of a case (Article 157).
29. Article 221 set out a list of grounds for issuing an interim decision on discontinuation of the proceedings (определение об оставлении заявления без рассмотрения), that is, if parties failed to make use of a preliminary non-judicial avenue of solving a dispute; if an action was lodged by an incapacitated person or by a person lacking the authority to act; if the parties, who had not asked for the examination of a case in their absence, without valid reasons, failed to attend two hearings and the court considered it impossible to decide the case on the basis of case file materials; if a claimant, who had not asked for the examination of a case in his/her absence, failed to attend two hearings and a respondent did not insist on the examination of the merits of the case; and if the same dispute between the same parties was pending before a court.
30. A copy of a decision on discontinuation of the proceedings was to be sent to the absent party no later than three days after its delivery (Article 213).
VIOLATED_ARTICLES: 13
6


ITEMID: 001-94593
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: SELIC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: The applicant, Mr Franc Selič, is a Slovenian national who was born in 1937 and lives in Laško. He was not represented before the Court. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 June 1991, in the context of a real estate dispute, the applicant brought an action before the Celje Basic Court (Temeljno sodišče v Celju) against J.L.
On 26 May 2000 the renamed Celje District Court (Okrožno sodišče v Celju) delivered a judgment rejecting the applicant’s claim. The applicant appealed against this judgment.
On 4 October 2001 the Celje Higher Court (Višje sodišče v Celju) dismissed his appeal.
On 20 December 2001 the applicant lodged an appeal on points of law. On 15 January 2003 the appeal on points of law was partly dismissed on procedural grounds and partly rejected by the Supreme Court (Vrhovno sodišče).
The applicant subsequently lodged a constitutional appeal which was dismissed by the Constitutional Court (Ustavno sodišče) on 20 September 2004.
The Constitutional Court’s decision was served on the applicant on 1 October 2004.


ITEMID: 001-112131
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: IZZET MEHMET AND OTHERS v. CYPRUS AND OTHER APPLICATIONS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 1. A list of the applicants is set out in the appendix.
2.
The applicants are either owners, or the heirs of owners, of property which is governed by the custodianship regime under Law 139/1991.
None of the applicants have taken proceedings in the domestic courts or brought such proceedings to a conclusion. The third applicant in no. 5702/10 claims to have proceedings pending but no documents or details have been provided.
3. The first two applicants wished to transfer as gift their properties in the Republic of Cyprus to their niece and nephew, the third and fourth applicants. On 10 June 2008, the Custodian refused permission for the transfer as the properties were classified as Turkish-Cypriot properties.
4. The applicant was one of the heirs and an administrator of property of his deceased father and mother, Turkish Cypriots who fled north in 1963. This property was now being used as a primary school. The applicant contacted the Minister of Education with a view to claiming his property rights and damages. No response was received.
5. The applicants are the heirs and administrators of the estate of three deceased Turkish- Cypriot relatives consisting of a property in the Republic of Cyprus. In 2003 they discovered the house had been demolished and another building erected. They made an application to the Ministry of Interior for the return of property and payment of loss of use; the authorities refused.
6. The applicant, a Turkish Cypriot, bought land in 1958 and rented it out. The tenant paid rent until 1974. The Cypriot Government later expropriated part of the land, building a road down the middle. Under Law 139/91, the Custodian appeared to have terminated the lease with the applicant’s tenant and rented the property to another person.
7. The three applicants are Turkish Cypriots, who left Cyprus either before or in 1974 and who owned or have inherited property in the Republic. The third applicant stated that his father’s property had been expropriated and a bus terminal built there. The second applicant brought court proceedings (no documents provided) which he said were still pending; the other applicants stated that no proceedings were brought due to the failures of their lawyers.
8. The applicant, a Turkish-Cypriot owner of property sold to the Government, made a claim for compensation for loss of use from 1974 to 2006 which was refused by the authorities who relied on Section 9 of Law 139/91. No proceedings were taken.
9. The applicant owned, wholly or in part, twelve plots of land in the Republic which he had not been able to use since 1963. One plot was used as a Post Office by the authorities and another was rented out as a giftshop without his consent. No proceedings had been taken.
10. The applicants are the heirs (spouse and children) of the deceased owner of property in the Republic of Cyprus. Greek Cypriots have been using the property, a house and shops, since 1963, without their consent.
11. The 21 Turkish-Cypriot applicants, who abandoned their homes and property in the village of Matyat in 1963, wrote a petition to the Ministry of Internal Affairs in 2010 for return of land and compensation. No reply was received.
12. The applicant, a Turkish-Cypriot who left the south in 1974, owns 11 properties from which she previously collected rents. On 4 March 2010, she made a claim to the Ministry of Internal Affairs for return of her property; no answer was received.
13. The applicants, Turkish Cypriots, own, wholly or in part, three plots in the Republic, bought in 1973. Since 1974, they have been unable to use or develop these plots.
14. The applicants are heirs of Turkish Cypriots who owned property in the south and fled in 1974; the property had tenants but no rent had been received since. On 27 April 2010 the applicants applied to the authorities for restitution of their property without success.
15. The applicants are heirs of their Turkish-Cypriot father who owned a house and business property in the Republic of Cyprus. The family left in 1974. Tenants declined to pay rent due to the custodianship regime and gave rents to the authorities. The applicants sought unsuccessfully after the death of their father in 1985 to obtain possession of the properties. Some of the property has been demolished, other plots compulsorily acquired by the State. No court proceedings were taken.
16. The relevant case-law and laws are set out in Kazali and Others v Cyprus (no. 49247 et al, §§34-100, decision of 6 March 2012).


ITEMID: 001-106522
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: XUEREB v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Geoffrey Valenzia;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: The applicant, Mr Angelo Xuereb, is a Maltese national who was born in 1952 and lives in Lija. He was represented before the Court by Dr P.J. Galea, a lawyer practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr Peter Grech, Attorney General.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of a property in Sliema.
On 20 December 1985 the applicant applied for a permit for the purposes of developing his property. On 24 July 1986 the Planning Area Permits Board (“PAPB”) issued a permit “to erect shops, dwellings and garages for private cars, subject to [the] conditions on form TH and as per [the] plans submitted and amended”. Thus, the applicant was authorised to build “four floors from [the] highest street level”. The permit was valid for one calendar year.
On 29 March 1987 the applicant applied for another building permit in relation to the same property.
On 15 September 1988, the Building Inspector and the Sanitary Engineering Officer requested the applicant to put a stop to the construction, since it was being carried out without the necessary permit.
On 16 November 1988 the PAPB issued a permit under certain conditions, namely “to carry out extension of garages, shops and apartments, as per [the] plans submitted with [the] original application and [the] fresh plans submitted, subject to [the] conditions on form TH, in accordance with departmental alignment, corner site with splay. [The] height of the building should not exceed five floors (19.25m) from [the] highest street level”. This permit, valid for two years, was issued on the basis of the plans and elevations submitted. However, along with the plans, the applicant submitted a “section drawing” which was not in conformity with the elevations. In consequence, the maximum height of five floors approved in the permit (in conformity with the elevations submitted with the permit) was illustrated differently in the section drawing, namely in a way which included an additional floor.
The applicant claims that he had started work on the proposed project.
Two weeks later, by a letter dated 30 November 1988, having noted the discrepancy, the authorities decided to withdraw the said permit. The latter was replaced by another permit which ordered that the maximum height of the structure could not exceed five floors from the level of the adjacent roads. Since the adjacent roads had different levels, according to the applicant, this alteration of the permit had the effect of reducing the proposed construction by one storey (allowing four instead of five storeys), as well as making the building of another block impossible.
According to the Government, the applicant constructed two floors in excess of what was permitted.
On 11 October 1989 the applicant instituted ordinary civil proceedings, arguing that the replacement of the permit of 16 November 1988 was abusive, unlawful and ultra vires. These proceedings are still pending.
On 7 November 1989 criminal proceedings were instituted against the applicant for illegal construction carried out before 16 November 1988, following the issuance of the permit of 24 July 1986. These proceedings were suspended sine die for a number of years pending the outcome of civil proceedings (mentioned above) but were eventually resumed. The proceedings are still pending.
In February 2006 the applicant instituted constitutional redress proceedings. He alleged a violation of Article 1 of Protocol No.1 to the Convention and Article 14, in that, unlike in his case, permits for extensive construction and the addition of a fifth floor had been issued in respect of the buildings adjacent to his own property.
On 21 December 2007 the Civil Court in its constitutional jurisdiction rejected the applicant’s claim in respect of an alleged interference with his right of property on the grounds of the non-exhaustion of ordinary remedies. It held that the civil proceedings instituted by the applicant could result in the revocation of the decision to withdraw the original permit and therefore sufficed as a remedy. Moreover, the aim of constitutional proceedings was not to suspend criminal proceedings which were not related to human rights issues.
On 27 March 2009 the Constitutional Court upheld this judgment. It further held that although the Article 14 issue was not open to examination in ordinary proceedings, a favourable outcome in such proceedings would remedy any such violation.
Until 1 January 1993 building development permits were regulated by Part I of the Code of Police Laws. Section 16(1) of that Code provided:
“The Minister responsible for public works may, prior to the preparation, publication or approval of a scheme, order by notice in the Government Gazette the whole or any part of Malta to be a planning area; and from the date of any such order no person shall lay out, construct or close any street, or erect any building or increase the height of or otherwise modify any existing building, or change the use of any land or building in any part of such area (whether or not an approved scheme exists in respect thereof) without a permit from the Minister responsible for public works who may, in his discretion, refuse the grant of a permit or, in granting it, impose such conditions as in his discretion he may deem proper.”
The Minister responsible for public works could delegate all or any of his powers to a body known as the Planning Area Permits Board (“the PAPB”).
Section 37 §§ (1) and (3) of the Development Planning Act provide:
“(1) If an applicant considers that conditions imposed upon a development permission, or a refusal of such a permission, is unreasonable he may, without prejudice to his right of appeal, either request the Authority or the Commission, as the case may be, to reconsider its decision or he may lodge an appeal with the Appeals Board ... A request for reconsideration shall not be made currently with an appeal. A request for reconsideration and an appeal under this sub-section, as the case may be, shall be made within thirty days of receipt of the decision of the Authority or of the Commission, as the case may be. Where a request for reconsideration has been made, an appeal may be made to the Appeals Board within thirty days of receipt of the decision taken in the reconsideration.
...
(3) During the reconsideration stage, the Authority or the Commission, as the case may be, may request the applicant to file fresh plans, in which case the Authority or the Commission, as the case may be, shall give reasons for such a request provided that the substance of the development shall not change and any person who has made written objections to the development in terms of Article 32(5) shall be informed that such fresh plans have been so filed and shall also be invited to be present at the Authority’s or the Commission’s sitting, as the case may be, when such application shall be discussed. Both the applicant and the objectors, if any, shall be informed of the date and time of the meeting and, if present, may address the Authority or the Commission, as the case may be, with regard to the planning matters concerning the said application.”
The relevant sections of the Maltese Civil Code read as follows:
Section 1030
“Any person who makes use, within the proper limits, of a right exercisable by him, shall not be liable for any damage which may result therefrom.
Section 1031
Any person, however, shall be liable for damage which occurs through his fault.
Section 1032
(1) A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias.
(2) No person shall, in the absence of an express provision of the law, be liable for any damage caused by want of prudence, diligence, or attention in a higher degree.
Section 1033
Any person who, with or without intent to injure, voluntarily or through negligence, imprudence, or want of attention, is guilty of any act or omission constituting a breach of the duty imposed by law, shall be liable for any damage resulting therefrom.”


ITEMID: 001-93606
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: WEITZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Mendel Weitz, is a Polish national who was born in 1924 and lives in Antwerp, Belgium. He is represented before the Court by Mr D. Gałkowski, a lawyer practising in Kraków. The respondent Government are represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a Polish national. His parents, Frymet and Michał Weitz, bought two properties in Kraków in 1933 and 1934. In 1939 they left Kraków for Lwów, later went to China and finally settled in Great Britain where they lived during the last years of the Second World War. In 1942 the applicant joined the Polish Air Forces under British command in the United Kingdom and was honourably discharged in 1946. Later he lived in Belgium. In 1959 his parents moved to Israel, where they died in 1987. The applicant underlines that he and his parents never relinquished Polish citizenship and used documents issued by the International Refugee Organisation, although they were entitled to obtain Israel citizenship, and the applicant Belgian citizenship, as he was married to a Belgian. He claims that they all wished to return to Poland but were held back by the social and political situation in the country.
After the war the properties were taken over by the Liquidation Office in Kraków as having been abandoned. The owners took legal steps to repossess the property, and on 10 April 1946 and 5 May 1947 the Kraków Magistrates’ Court (Sąd Grodzki) delivered decisions ordering the return of the possession of the properties to the applicant’s parents.
The Kraków Liquidation Office thereupon issued relevant decisions on 4 September 1947 and 4 October 1947 to turn the properties over to the owners. The possession of the properties was taken over on their behalf by their authorised representative Nissan Weitz and later by the applicant’s father, who came to Poland for this purpose in 1947. Subsequently the applicant’s father left the properties under the management of the Kraków Municipal Housing Management (Zarząd Budynków Komunalnych).
In 1959 and 1962 the State Treasury requested the District Court to declare that it had acquired ownership of the property by way of prescription in accordance with the Decree of 1946 on abandoned properties. The court accepted the plaintiff’s submission that the properties had been abandoned within the meaning of this Decree and that the owners were at that time of unknown abode. It appointed a representative for them. Accordingly, the State Treasury became the owner of the property.
In 1990 the land owned by the State Treasury was, in the framework of a countrywide legal reform of local government, transferred to local municipalities.
On 25 August 1997 the applicant’s lawyer asked the National Archives for access to the files of the above proceedings and access was granted on 18 September 1997. On 11 December 1997 the applicant requested that the proceedings concerning the acquisition by prescription terminated by the decisions of 1959 and 1962 be reopened. The applicant argued that these proceedings were invalid in law as they were flawed by serious procedural shortcomings, in particular the fact that the owners had not been properly represented and the court had not taken any steps to establish their address or to verify whether the properties had actually been abandoned within the meaning of the 1946 Decree. The applicant submitted that his parents’ address was indicated in the land and mortgage register of the properties and that they had lived there until 1949 after returning to Poland in 1947. Later, until 1987, a relative of theirs had resided at the same address.
The Municipality filed an alternative motion for a declaration that they had acquired ownership of the property by way of prescription.
On 22 December 1999 the Kraków District Court reopened the impugned proceedings and quashed the decisions of 1959 and 1962. The court considered that it had been impossible for the owners to have their rights properly represented in the proceedings. The District Court established that in those proceedings that court had failed to publish an announcement about the appointment of a representative for the applicant’s parents in their absence, as required by the provisions in force at that time. Further, in both sets of proceedings the lawyer representing the owners of the properties had been appointed at the same hearing at which the final decision had been delivered. Therefore, he had not been able to prepare the case and his representation of the owners’ interests had been illusory. This constituted sufficient grounds for finding the proceedings invalid in law. Moreover, the court considered that in the light of the decisions of the Kraków Magistrates’ Court and the Kraków Liquidation Office of 1946 and 1947 the assertion that both properties had been abandoned was ill-founded, as the applicant’s parents were the officially certified owners and possession of the properties had been officially transferred to them in 1947. Therefore, the State Treasury’s requests of 1959 and 1962 were to be dismissed, the decisions quashed and the proceedings invalidated. Lastly, the court found that the municipality’s claim for a declaration that it had acquired ownership of the properties by way of acquisitive prescription in accordance with existing provisions could not be considered simultaneously and had to be examined in separate proceedings.
Subsequently the Kraków Municipality lodged a request with the Kraków District Court for a declaration that on 1 January 1985 it had acquired ownership of the property by way of prescription. The municipality argued that when the 1959 and 1962 decisions were given, its management of the properties became an autonomous possession cum animo res sibi habendi, which led to an acquisition by prescription after the period of 20 years provided for by law.
The owners’ heirs, among them the applicant, submitted that the social and political situation in Poland had prevented the applicant from coming to Poland earlier. In 1949 his father had asked the Polish Consul to extend the validity of his Polish passport but had only been offered a one-way passport, without the possibility of leaving Poland. Their lawyer in Poland had died in 1950 and they had not known anyone else who could take care of the matter.
On 6 October 2003 the Kraków District Court held that the municipality had acquired ownership of the property by prescription on 1 January 1985. The court established that the applicant had come to Poland in 1994 to file a motion to verify the contents of the land and mortgage register. The court refused to accept the applicant’s argument that the social and political situation in Poland had prevented him from coming to Poland earlier and that this circumstance should have been construed as force majeure, preventing the running of the period of adverse possession by the State. The court refuted the municipality’s assertion that the period of adverse possession had begun to run from the decisions of 1959 and 1962. It considered that the period had begun to run only from 1 January 1965 as provided for by the transitional provisions of the 1964 Civil Code. Therefore, even assuming bad faith on the part of the municipality, they had acquired ownership of the property on 1 January 1985.
The applicant appealed.
On 16 September 2004 the Kraków Regional Court dismissed the appeal. The court pointed out that the District Court, when establishing the facts, had overlooked the decisions of 1946 and 1947 under which possession of the properties had been returned to the applicant’s parents. The properties should therefore not have been regarded as having been abandoned within the meaning of the 1946 Decree on abandoned properties. However, the court fully shared the conclusions and reasoning of the first-instance court in that from the moment the decisions of 1959 and 1962 were delivered, the State’s management of the properties turned into an autonomous possession, and the period of prescription began to run from 1 January 1965 and came to an end on 1 January 1985 at the latest, before the applicant requested to have the proceedings reopened. The Regional Court emphasised that declaring those proceedings invalid could not result in the invalidation of their legal consequences.
On 14 April 2005 the Supreme Court refused to entertain the applicant’s cassation appeal, finding that no serious legal issue arose in the case which would justify the examination of the appeal.
The Polish Civil Code, Book Two entitled Ownership and Other Property Rights, provides for various property-like rights for a possessor in Title IV: Possession. The relevant Article reads:
Article 336:
The possessor of property is both the person who actually controls [holds] the property as an owner (an autonomous possessor) and the person who actually controls the property as a usufructuary, the holder of a lien, a lessee, or a tenant or who has other rights associated with a certain control over another person’s property (a dependent possessor).
Acquisition by prescription is regulated by Article 172 of the Civil Code. At the relevant time it provided that a person could acquire ownership of land after 10 years’ continuous possession as long as this had been in good faith throughout the entire period. Otherwise, a longer period of 20 years applied.
Once these conditions were met, the person in possession could apply to the District Court for a declaration that, as of a specific date, he had acquired ownership of the property.
If the prescription period had begun to run before the entry into force of the Code, according to the transitional measures, the new provisions were to be applied and the term began to run from the date of entry into force of the Code, which was 1 January 1965. Previously applicable provisions had provided for a 30 year period of continuous possession in bad faith.
Under Polish law judgments of the Supreme Court are not directly binding on the courts. However, the Supreme Court may deliver a resolution, which aims to interpret the provisions of law and serves as a kind of instruction for lower courts. When such a resolution is delivered by a chamber of 7 judges, the resolution is considered a general rule of law and should be followed by domestic courts when applying the law.
On 18 November 1992 the Supreme Court delivered a resolution (III CZP 133/92, OSP 1993/7/153) providing as follows:
“The period of holding a property on the strength of an administrative decision which was later declared null and void because it was delivered in flagrant breach of the law cannot be counted by the State Treasury towards the period of acquisition by prescription.”
The court found that acquisition of property on the basis of an unlawful action would constitute an abuse of right. It further considered that:
“... a contrary conclusion would be at variance with common sense. The State quashes as null and void a decision upon which the State had unlawfully become the owner of the property, and at the same time the State, nevertheless, claims to be the owner of this property under the provisions on adverse possession; whereas that very null and void decision was the basis for acquiring the property through prescription, since it was as a result of that decision that the State became a possessor.”
On 21 September 1993 a chamber of 7 judges of the Supreme Court delivered a resolution (III CZP 72/93, OSNC 1994/3/49) providing that the period during which the State held a property on the basis of a property title subsequently declared non-existent could not be counted towards the period of adverse possession. The court understood the term “a property title” as every event of legal significance or document which, under the provisions of civil law, might result in the acquisition of a property. Furthermore, the Supreme Court noted that management of property was not equivalent to autonomous possession within the meaning of the provisions on adverse possession. If the State held a property as a consequence of its public functions, it managed the property in the public law sense of the term and did not “possess” it within the meaning of the Civil Code. Therefore, the period of management could not be counted towards the period of adverse possession, which had to be based on autonomous possession and not on any other way of holding the property (for example dependent possession).
The case-law of the Supreme Court which developed after this resolution is on the whole in line with the above resolution. For example, on 25 June 2003 the Supreme Court issued a decision (SN III CZP 35/03) finding that de facto control of an abandoned property by the State could not be regarded as possession cum animo rem sibi habendi, as until the time the State acquired ownership of the property it acted as a manager and not as an owner. Most importantly, the resolution of 1993 has not been overturned by another resolution of 7 judges and has been cited by most authors of legal commentaries as the conclusive authority on adverse possession by the State of properties owned by individuals.
While there is general agreement that a defective administrative decision cannot lead to an acquisition by prescription of property by the State, only one judgment reached the same conclusion with regard to the consequences of adverse possession acquired on the strength of a flawed judicial decision.
According to another resolution of the Supreme Court of 25 October 1999 (III CZP 83/96), the State Treasury could acquire ownership of a property by adverse possession, if it possessed it on the strength of a judicial decision later quashed in an extraordinary appeal procedure. The Supreme Court was of the view that, contrary to administrative proceedings, normally the judicial activity of civil courts did not constitute an exercise of the State’s public powers. However, the historical circumstances in which property had been expropriated by the State after the Second World War had to be taken into consideration. In this context, it could not be excluded that judicial decisions resulting in the State acquiring ownership of private properties involved special circumstances brought about by the State, abusing its public powers and the law to achieve the desired results in the sphere of civil law.
Hence, each case had to be examined individually to establish whether the legally unjustified interference of the State was such that it made it practically impossible for a party to challenge the State’s will using the normal protection measures provided for by civil law.
This opinion was further interpreted by the Supreme Court in a decision of 9 May 2003 (V CK 13/03), which stated that it had to be examined in each case whether in the given circumstances a party had the possibility to put right the relevant court decision.


ITEMID: 001-77942
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF STOJAKOVIC v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1944 and lives in Linz.
9. Since 1984 the applicant was the head of the Federal Bacteriological Serological Research Institute (Bundesstaatiche bakteriologisch-serologische Untersuchungsanstalt) in Linz. According to the activity profile submitted by the Government the tasks of the Institute involved
carrying out of various examinations, namely examinations upon official request under the relevant Health Acts and bacteriological examinations of water quality;
research, collection and transfer of data; assistance to the installation and maintenance of a notification system concerning certain infectious diseases; maintenance of a specific network on epidemiological diseases integrating EU and other international networks;
participation in international scientific projects and studies;
provision of general information and advice, such as advice concerning prevention and transfer of infectious diseases and use of antibiotics;
assistance by giving of expert advice in the elaboration of quality standards for microbiological laboratories, of national recommendations in the field of hygiene, medical microbiology and preventive medicine and of epidemic legislation;
representation of the competent Ministry's department in national and international expert groups.
10. The applicant, as head of the Institute, was responsible for all tasks entrusted to it. Under section 3 of the Civil Servants Act (Beamten-Dienstrechtsgesetz) he was further responsible for certain matters concerning the regulation of its service, namely the arrangement of vacation and grant of special leave, and had the authority to issue decisions (Bescheide) in this regard.
11. On 22 November 1999 the Disciplinary Commission at the Ministry for Work, Health and Social Affairs (Disziplinarkommission beim Bundesministerium für Arbeit, Gesundheit und Soziales) found the applicant guilty of having violated his professional duties under the Non-Discrimination Act (Bundes-Gleichbehandlungsgesetz) and sentenced him to a fine of approximately 2,400 euros (EUR). It found that the applicant inter alia had made statements about some of his employees amounting to sexual harassment. On 15 June 2000 the Senior Disciplinary Board at the Ministry for Public Service and Sport (Disziplinaroberkommission beim Bundesministerium für öffentliche Leistung und Sport) partly dismissed the applicant's appeal. It reduced the fine to approximately EUR 1,600. On 4 September 2003 the Administrative Court dismissed the applicant's complaint.
12. In the meantime, on 31 March 2000, the Federal Minister for Work, Health and Social Affairs recalled the applicant from his post with immediate effect (Abberufung mit sofortiger Wirkung) and transferred him to a post with a lower grade, namely a referee post at the Ministry for Work, Health and Social Affairs in Vienna.
13. Referring to the applicant's behaviour which was the subject of the pending disciplinary proceedings, the Federal Minister found that the applicant had violated his professional duties, and could no longer be trusted to perform the managerial duties as head of the Institute. She referred to section 38 of the Civil Servants Act according to which a transfer can be ordered ex officio in case of important official interest. At the same time she informed the applicant that the payment of the extra duty allowance (Verwendungszulage) granted to him as head of the Institute was to be discontinued from 1 May 2000.
14. On 17 April 2000 the applicant filed an appeal and submitted that the disciplinary proceedings were still pending.
15. On 21 June 2000 the applicant, assisted by his counsel, filed further submissions. He submitted that the Federal Minister had not made sufficient findings as to the background in which his statements had been made and had placed them in the wrong context. He further contested that he had made one of the statements and requested to hear a witness in the context of a hearing. He finally argued that the Senior Disciplinary Board had partly granted his appeal and that the disciplinary proceedings were still pending. There were, therefore, no reasons for his transfer.
16. On 9 October 2000 the Appeals Commission (Berufungs-kommission) at the Ministry for Public Service and Sport dismissed the applicant's appeal without holding a hearing. It noted that the authority deciding on the transfer did not necessarily need to wait for the outcome of pending disciplinary proceedings but could assess itself whether a civil servant had violated his professional duties and whether such a violation requested a transfer. The applicant's arguments concerned mainly the question of his guilt, which was the subject of the disciplinary proceedings. Its task was to ascertain whether the applicant's transfer was objectively necessary. It nevertheless examined and dismissed the applicant's arguments as to the alleged justifying context in which the statements had been made. It further acknowledged that it was in fact not clear whether the applicant had made one of the statements at issue. However, having regard to all other statements it confirmed the Federal Minister's finding that the applicant could no longer be trusted to perform the tasks of a head of the Institute. In particular that the applicant's unqualified behaviour had deepened the already existent conflicts and tensions at work and there was, therefore, an important official interest which made his transfer to another post necessary.
17. On 6 December 2000 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained that the fact that the Appeals Commission had taken its decision after a private meeting was in violation of his right to court proceedings under Article 6 of the Convention. Furthermore he alleged that the Appeals Commission had decided arbitrarily as it had not duly taken account of his arguments made in the disciplinary proceedings according to which the proceedings against him had to be seen in the context of the Ministry's restructuring programme and were aimed at obliging him to take early retirement.
18. On 26 November 2001 the Constitutional Court dismissed the applicant's complaint. Referring to its case-law it found that rights and obligations which resulted from an employment as a civil servant could not be considered as “civil rights” within the meaning of Article 6 of the Convention. It followed that Article 6 was not applicable to the applicant's case. It further found that there was no indication of arbitrariness in the proceedings at issue.
19. This decision was served on the applicant's counsel on 13 February 2002.
20. The relevant rules are contained in the Civil Servants Act. In the version in force at the material time it provided as follows.
21. Section 38 § 1 of the Civil Servants Act (Beamten-Dienstrechtsgesetz) defines the transfer (Versetzung) of a civil servant as permanent assignment to another department.
22. Under section 40 § 2 the recall (Abberufung) of a civil servant is equivalent to a transfer inter alia when the new assignment has not at least the same grade as the former post.
23. According to section 38 § 2 a transfer can be ordered ex officio in case of important official interest.
24. Under section 38 § 7a the transfer is to be ordered by decision. The concerned civil servant can appeal against this decision. His appeal does not have suspensive effect on the decision.
25. Section 121 of the Salaries Act (Gehaltsgesetz) provides that a civil servant is entitled to an extra duties allowances (Verwendungszulage) if he permanently has a considerable level of responsibility for the accomplishment of tasks of general administration and if this level of responsibility exceeds the one which is normally connected with a position in an equal grade.
26. Pursuant to section 41a § 6 an appeal will be decided upon by the Appeals Commission (Berufungskommission) established at the Ministry for Public Service and Sport (Bundesministerium für öffentliche Leistung und Sport).
27. Section 41a regulates the composition of the Appeals Commission. Its paragraph 3 provides that its chair and his/her substitute are judges, the other members legally trained civil servants whereof one half are representatives of the employer and the other half are representatives of the employee. The members are appointed by the Federal President on a proposal of the Federal Government (Bundesregierung) or by the President of the National Assembly (Nationalratspräsident). Representatives of the employees are in principle nominated by the Union of Civil Servants (Gewerkschaft Öffentlicher Dienst) and, in case the Union makes no nomination within four weeks, by the Minister for Public Service and Sport.
28. The term of office is five years.
29. Section 41c provides that the Appeals Commission decides in formations (Senate) consisting of three members, the chair or his/her substitute, one civil servant representing the employer and one civil servant representing the employee. The civil servant representing the employer has to be employed at the Federal Ministry of the respective complainant.
30. The chair of the Appeals Commission has to fix, for one year in advance, the number of the formations, their members and the sequence in which members have to step in if a member is incapacitated. The chair further allocates business.
31. Section 41d § 1 provides that the Appeals Commission decides by a majority of votes. Its paragraph 2 provides that the members of the Appeals Commission are not bound by any instructions in the exercise of their functions.
32. The Appeals Commission's decisions are not subject to an appeal to the Administrative Court. They are, however, subject to a complaint to the Constitutional Court.
33. Hearings before the Appeals Commission are governed by the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrens-gesetz). Article 40 § 1 of this Act provides as follows:
“Oral hearings shall be held in the presence of all known parties and the necessary witnesses and experts...
34. It is the consistent practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise, as it is commonly understood that the principle of publicity does not extend to administrative proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57418
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1986
DOCNAME: CASE OF AGOSI v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of P1-1
TEXT: 11. The applicant company, AGOSI, is a joint stock company (Aktiengesellschaft) incorporated and having its registered office in the Federal Republic of Germany. Its principal business is metal smelting, but at the relevant time it also dealt in gold and silver coins.
12. In 1974, AGOSI began doing business with a British citizen, X. In the course of this business, between August 1974 and May 1975, AGOSI bought from X a large quantity of pre-1947 British coinage which had a high content of silver. However, it appears that unbeknown to the company the coins had been illegally exported from the United Kingdom.
13. On Saturday, 2 August 1975, after normal business hours, X visited AGOSI’s factory with Y, whom he introduced as a wealthy businessman. Together they asked to make an immediate purchase of 1,500 Kruegerrands, gold coins minted in South Africa, where they are also legal tender, having a value of some £120,000. The sale was agreed and the coins were loaded into a car bearing United Kingdom number plates. Payment was accepted in the form of an unguaranteed cheque drawn on an English bank. The cheque bore no sign of having been cleared for exchange control purposes. On Monday, 4 August, the cheque was handed to AGOSI’s bank for collection. However, on 11 August, the bank notified AGOSI that the cheque had been dishonoured. The contract of sale contained a provision according to which ownership of the coins remained with AGOSI until full payment for them had been received by it.
14. Meanwhile, on 2 August, the buyers attempted to smuggle the gold coins by car into the United Kingdom. The coins were, however, discovered hidden in a spare tyre and were seized by the customs authorities in Dover.
15. On 16 April 1975, the importation of gold coins had been prohibited by the Secretary of State for Trade and Industry, by an amendment to the Open General Import License of 5 July 1973. The prohibition was withdrawn on 16 June 1979.
16. On 14 August 1975, criminal proceedings were instituted in the United Kingdom against X and Y; they were charged, inter alia, with fraudulent evasion of the prohibition on importation of gold coins, contrary to section 304 (b) of the Customs and Excise Act 1952 ("the 1952 Act").
17. On 18 and again on 28 August, AGOSI requested the Customs and Excise to return the coins on the basis that the company was their rightful owner and had been the innocent victim of fraud.
18. On 20 August, officers of the Customs and Excise visited AGOSI’s factory in Germany to inquire into the circumstances of the sale. AGOSI continued to co-operate with the Customs and Excise throughout the criminal investigation.
19. On 1 October, AGOSI made a declaration of avoidance of the contract of sale by virtue of which the sale of the coins became void ab initio under German law.
20. On 13 October 1975, AGOSI’s lawyers wrote to the Commissioners of Customs and Excise, who had taken over responsibility for the case, requesting that the Commissioners exercise their discretion under section 288 of the 1952 Act (see paragraph 35 below) and return the coins to the company, as they did not constitute goods liable to forfeiture under the 1952 Act interpreted in the light of the Treaty establishing the European Economic Community (the Treaty of Rome), general principles of public international law and the Convention, especially Article 1 of Protocol No. 1 (P1-1).
21. In their written reply of 29 December 1975, the Commissioners inquired whether it was contended by AGOSI that it had made a valid claim that the coins were not liable to forfeiture. The Commissioners stated that, if so, they would be required to institute condemnation proceedings before the High Court under paragraph 6 of the Seventh Schedule to the 1952 Act in order to have the coins forfeited. With regard to the company’s contention that the coins were not liable to forfeiture (see paragraph 20 above), the Commissioners observed, inter alia, that "there [was] no discretion [vested in the courts] to refuse condemnation [of the coins as forfeited] on the ground of hardship to an innocent owner". The coins were not restored.
22. At their trial in January 1977, at which AGOSI’s director Dr. Rose testified for the prosecution, X and Y argued that the prohibition on importation of gold coins was in breach of Article 30 of the Treaty of Rome, which guarantees the free movement of goods, and that accordingly the criminal charges brought against them were void.
23. The judge at first instance did not accept this argument; in his judgment of 31 January 1977, he held that the prohibition fell within the "public policy" provision of Article 36 of the Treaty and that the coins were capital rather than goods within the terms of Article 67.
24. X and Y appealed to the Court of Appeal which, on 15 December 1977, referred the question to the Court of Justice of the European Communities in accordance with Article 177 of the Treaty.
25. The Court of Justice of the European Communities confirmed in its judgment of 23 November 1978 that the Kruegerrands were capital rather than goods (case 7/78, [1978] European Court Reports 2247). Accordingly, X and Y’s appeal failed and they were convicted and fined.
26. When, at the close of the criminal proceedings at first instance, the Commissioners of Customs and Excise did not return the coins, AGOSI, on 14 April 1977, issued a writ against them in the High Court. The statement of claim, in so far as relevant, read:
"7. ... the provisions of section 44 and section 275 of the Customs and Excise Act 1952, and the Seventh Schedule to the said Act, are to be construed in the light of and subject to the general principle of public international law which prohibits the unjustified confiscation of property belonging to friendly aliens.
8. Further or in the alternative the provisions of section 44 and section 275 of the Customs and Excise Act 1952 and the Seventh Schedule to the said Act are to be construed in accordance with Article 1 [of Protocol No. 1] of the European Convention for the Protection of Human Rights and Fundamental Freedoms (P1-1).
9. In the premises mentioned in paragraphs 7 and 8 herein, the ... coins are not liable to forfeiture.
10. Alternatively to paragraph 9, if the said coins are liable to forfeiture, then in the premises mentioned in paragraphs 7 and/or 8 herein the Defendant is bound to exercise his powers under section 288 of the Customs and Excise Act 1952 and/or paragraph 16 of the Seventh Schedule to the said Act to restore without imposition of any condition the said coins to the plaintiffs.
And the plaintiffs claim:
(i) a declaration that the ... coins are [AGOSI’s] property;
(ii) a declaration that the ... coins are not liable to forfeiture ...;
(iii) a declaration that [AGOSI is] entitled without imposition of any condition to the return of the ... coins".
The Commissioners counterclaimed that the coins should be condemned as forfeited as they were liable to forfeiture, inter alia, under section 44 (b) and section 44 (f) of the 1952 Act (see paragraph 33 below).
27. On 2 February 1978, AGOSI also issued an originating summons requesting the High Court to determine the compatibility with the Treaty of Rome of the prohibition on the importation of Kruegerrands into the United Kingdom and of their confiscation without compensation. The case was heard on 20 February and AGOSI sought to have these questions referred to the Court of Justice of the European Communities for decision.
28. Mr. Justice Donaldson dismissed the originating summons on the same day and indicated that he would also have dismissed the action on the writ had it been brought before him for determination (paragraph 26 above). The applicant company nonetheless pursued the latter action. On 10 March 1978, Mr. Justice Donaldson dismissed the action on the writ and ordered, in accordance with the Commissioners’ counterclaim, that the coins be forfeited as constituting goods liable to forfeiture under section 44(f) of the 1952 Act (see paragraph 33 below).
29. AGOSI appealed to the Court of Appeal arguing that, as the European Court of Justice had in the meantime found that the coins were not goods (see paragraph 25 above), section 44 (f) could not be applied, and reiterated its submissions as to Article 1 of Protocol No. 1 (P1-1) and general principles of international law.
30. The Court of Appeal gave its ruling on 10 December 1979 ([1980] 2 All England Law Reports 138-144). The main judgment was delivered by Lord Denning, with whom the other two judges, Lord Justice Bridge and Sir David Cairns, concurred.
With regard to AGOSI’s claim that it was entitled to the restoration of the Kruegerrands in view of its alleged innocence, Lord Denning first made the following observations:
"Before going further, I may say that in any event the customs authorities have a discretion in the matter. It happens sometimes that goods are forfeited and then afterwards the true owner comes up and says that he was defrauded of them. If the customs authorities are satisfied of his claim, they may waive the forfeiture and hand them to him. There is a very wide discretion given to the commissioners under s 288 of the 1952 Act under which they can forfeit the goods or release them, or pay compensation and so forth. That may arise at a later time. But the German company says that in this case the customs authorities had no right to forfeit the goods at all. It would suit the German company much better to have the actual Kruegerrands returned to them, when you consider the value of gold itself, instead of compensation at 1975 figures."
Lord Denning thereafter went on to deal with the different objections advanced by AGOSI against the Commissioners’ contention that the Kruegerrands were liable to forfeiture. Lord Denning held that the definition of goods in the Treaty of Rome was irrelevant for the purposes of section 44 (f) and that there was nothing in Article 1 of Protocol No. 1 (P1-1) or general international law prohibiting forfeiture in the instant case. He concluded:
"It seems to me that the customs authorities are right. These Kruegerrands are forfeitable to the Crown ... It is entirely a matter for the discretion of the Customs and Excise to consider whether the claim of the German company is so good that they should see fit in this case to release them to the German company or retain them and pay them some compensation. That is within the discretion of the Customs and Excise."
Lord Justice Bridge added:
"If I were satisfied, which I am not, that there is such a principle in international law as that for which the [German company’s counsel] contends, I should still be wholly unconvinced that it would be open to us to write into the Customs and Excise Act 1952 the extensive amendments which it would be necessary to introduce in order to give effect to that principle and to make an exception from liability to forfeiture, where there had been a plain case under the language of the statute giving rise to forfeiture, in favour of a foreign owner of goods who could show he had not been a party to the act out of which the liability to forfeiture arose."
Sir David Cairns remarked:
"If [a foreign owner] is innocent of any complicity in the smuggling, it is appropriate that there should be an opportunity for him to apply for the exercise of discretion in his favour, but I cannot see that it would be possible so to construe the Act as to exclude from the forfeiture provision any goods belonging to such a [foreigner]."
The appeal was dismissed.
31. The Court of Appeal did not grant leave to appeal to the House of Lords. On 27 March 1980, AGOSI petitioned the House of Lords for leave to appeal, but such leave was refused.
32. On 1 April 1980, AGOSI’s solicitors again wrote to the Commissioners of Customs and Excise requesting the return of the goods. The solicitor for the Commissioners replied in the negative on 1 May 1980, without giving any reasons.
33. Under section 275 of the 1952 Act, goods being liable for forfeiture under, inter alia, section 44 of the Act may be seized or detained by the customs authorities.
Section 44 reads in relevant parts:
"Where:
...
(b) any goods are imported, landed or unloaded contrary to any prohibition or restriction for the time being in force with respect thereto under or by virtue of any enactment; or
...
(f) any imported goods are concealed or packed in any manner appearing to be intended to deceive an officer,
those goods shall be liable to forfeiture ..."
34. The procedure to be followed after seizure is set out in the Seventh Schedule to the Act.
According to paragraph 1, the Commissioners of Customs and Excise shall give notice of seizure to any person who to their knowledge was at the time of the seizure the owner of the seized goods.
Any person wishing to claim that the goods are not liable to forfeiture must, in accordance with paragraphs 3 and 4, give the Commissioners notice of his claim in writing within one month of the date of notice of seizure or, if no such notice has been served on him, within one month of the date of seizure.
Paragraph 6 provides that if notice of a claim is duly served, the Commissioners shall take proceedings for the condemnation of the seized goods by the courts. This paragraph further specifies that "if the court finds that the [items were] at the time liable to forfeiture the court shall condemn [them] as forfeited." According to established case-law, the courts will only examine whether the seized goods fall into any of the categories of goods mentioned in the law as liable to forfeiture; they will not examine the question of the owner’s innocence. Condemnation proceedings are, according to paragraph 8, to be considered as civil proceedings.
If no notice of claim has been given to the Commissioners in accordance with paragraphs 3 and 4, then the goods seized are deemed, in accordance with paragraph 5, to have been duly condemned as forfeited.
35. Under section 288 of the 1952 Act:
"The Commissioners may, as they see fit,
(a) ...
(b) restore, subject to such conditions, if any, as they think proper, any thing forfeited or seized under the said Act ..."
36. Prior to 11 January 1978, judicial review of certain decisions by administrative authorities could be obtained by application for a prerogative order (mandamus, certiorari or prohibition) in accordance with section 10 of the Administration of Justice Act 1938 and Order 53 of the then Rules of the Supreme Court. In addition, litigants were entitled to bring ordinary actions for declarations, injunctions or damages in appropriate cases.
In the words of the Government, "the multiplicity of remedies, each with their own procedural idiosyncracies, was considered to be a real disadvantage to litigants, and an inhibition on the ability of the courts to develop a coherent corpus of law in this area". In particular, an application for a prerogative order might not have been effective if the challenged decision did not contain the reasons on which it was based, since the law did not permit the obtaining of evidence on facts or other matters not appearing on the record of the decision (see Report on Remedies in Administrative Law, Law Commission no. 73, Cmnd. 6407 (1976)).
37. The Rules of the Supreme Court were amended in 1977 by Statutory Instrument so as to provide for one specific procedure, now known formally as judicial review, for all litigants seeking relief in matters relating to public law. The amendments came into force on 11 January 1978 and were thus applicable when the Commissioners took their decision on 1 May 1980 (see paragraph 32 above).
38. According to the Supreme Court Practice, the new Order 53 introduced inter alia, the following changes:
"- It created a new procedure called ‘application for judicial’ review and in this single application, the applicant may apply for any of the prerogative orders, either jointly or in the alternative, without having to select any particular one appropriate to his case.
- The machinery of interlocutory applications such as discovery of documents and interrogatories and orders for the respondent of an affidavit to attend for cross-examination has been introduced into applications for judicial review and such applications may be heard by a Judge or by a Master of the Queen’s Bench Division.
- If the claim for relief is an order of certiorari, the Court is empowered, in addition to quashing the decision, to remit the matter to the authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court so that the Court may operate not only as a ‘Court of Cassation’ but also as a Court of review." (Rules of the Supreme Court, RSC, 1985, Vol. 1, Order 53, pp. 757-758 para. 53/1 - 14/6).
39. The procedure whereby an application for judicial review had to be made in two stages was left unchanged by the reform. It is first necessary to obtain leave of the Court, and, according to the Supreme Court Practice, "only if and to the extent that such leave is granted will the Court proceed to hear the substantive application for judicial review". "Leave should be granted, if on the material then available the Court thinks, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant" (RSC, loc. cit., p. 757, para. 53/1 - 14/23).
40. The grounds on which judicial review under the new Order 53 can be granted are the same as those held valid for the earlier applications for prerogative orders. They are stated by the Supreme Court Practice to fall under the following main headings:
"1. Want or excess of jurisdiction ...
2. Where there is an error of law on the face of the record ...
3. Failure to comply with the rules of natural justice ... Broadly the rules of natural justice embody a duty to act fairly ... The rules of natural justice will normally apply where the decision concerned affects a person’s rights, for example where his property is taken by compulsory purchase ... The rules of natural justice can also apply where the applicant for judicial review does not have a right, for example where he is applying for some requisite statutory licence: in such cases, although he has no right to a licence unless and until it is granted, there is a duty to comply with the rules of natural justice and to act fairly because a legal power which affects his interests is being exercised. ...
4. The Wednesbury principle - A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the Court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it ...."
41. The requirement that administrative authorities direct themselves properly on the relevant law and act reasonably has been expounded upon in several cases before English courts (see also "Administrative Law", H.W.R. Wade, 5th edition (1980), pp. 348-349 and 354-355). Thus in Breen v. Amalgamated Engineering Union [1971] 2 Queen’s Bench Division, p. 190, Lord Denning stated:
"The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside."
Due regard must be had, inter alia, to the scope and object of the enactment conferring the power. According to Lord Reid in Padfield v. Minister of Agriculture, Fisheries and Food [1968] Appeal Cases p. 997: "Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act".
42. The Government have conceded that, except for a decision by the High Court of 17 July 1985 (R v. Commissioners of Customs and Excise, ex parte Leonard Haworth), there have been no cases applying the above-mentioned principles to the exercise of discretion by the Commissioners with regard to restoration of forfeited goods.
The Haworth case concerned the seizure by the customs authorities of a yacht involved in a drug smuggling attempt and the Commissioners’ exercise of discretion under section 152 of the Customs and Excise Management Act 1979. Under this provision, the wording of of which is almost identical to that of section 288 of the 1952 Act, "the Commissioners may as they see fit, ... restore subject to such conditions (if any) as they think proper, any thing forfeited or seized". The owner of the yacht, who claimed to be innocent of any smuggling attempt, made an application for judicial review of the Commissioners’ failure or refusal to exercise their statutory discretion to restore the yacht. The High Court (Mr. Justice Forbes) found that the exercise of the Commissioners’ discretion under section 152 involved a consideration of the culpability of the owner and held that the Commissioners had not properly exercised their discretion under section 152 in the case before it, as they had not provided the owner with the necessary information regarding the matters held against him and had not given him the opportunity to reply thereto.


ITEMID: 001-118479
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF ȘERCARU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: Alvina Gyulumyan;Johannes Silvis;Kristina Pardalos
TEXT: 4. The applicant was born in 1970 and lives in Bucharest.
5. On 31 July 2002 she lodged a criminal complaint against her husband accusing him of stealing from their common household. A civil claim was joined to the complaint.
6. On 17 June 2003 the prosecution brought the case to court on charges of theft between spouses.
7. On 16 February 2004 the Galaţi District Court convicted the defendant to two years and two months’ imprisonment and awarded the applicant 20,000 Romanian lei (RON) – around 4,500 euros (EUR) – as pecuniary damage.
8. The judgment became final at first instance as no appeal had been filed against it.
9. Subsequently, the defendant appealed on points of law outside the statutory time-limit alleging that the first-instance court had not observed the guarantees of a fair trial in his respect. He claimed that he had been convicted in absentia and that he had not benefited from legal representation.
10. On 4 May 2005 the County Court of Galaţi allowed the appeal. It thus quashed the first-instance judgment and remitted the case to the lower court for re-trial.
11. On 26 October 2007 the defendant was convicted to one year’s imprisonment for breach of trust between spouses. The applicant was awarded RON 400 (around EUR 91) as pecuniary damage. Both the defendant and the applicant appealed on points of law.
12. On 5 June 2008 the applicant withdrew her complaint as well as her appeal on points of law.
13. On 12 September 2008 the Galaţi District Court granted the motion of withdrawal of charges and thus terminated the criminal proceedings. The judgment became final.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1