ITEMID: 001-57809
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF FUNKE v. FRANCE
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (victim);Violation of Art. 6-1;Not necessary to examine Art. 6-1 (prompt trial);Not necessary to examine Art. 6-2;Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 6. Mr Jean-Gustave Funke, a German national, was born in 1925 and died on 22 July 1987. He worked as a sales representative and lived in France, at Lingolsheim (Bas-Rhin). His widow, Mrs Ruth Funke, née Monney, is French and lives in Strasbourg.
7. On 14 January 1980 three Strasbourg customs officers, accompanied by a senior police officer (officier de police judiciaire), went to the house of the applicant and his wife to obtain "particulars of their assets abroad"; they were acting on information received from the tax authorities in Metz.
Mr Funke admitted having, or having had, several bank accounts abroad for professional and family reasons and said that he did not have any bank statements at his home.
The customs officers searched the premises from 10.30 a.m. to 3.00 p.m., and discovered statements and cheque-books from foreign banks, together with a German car-repair bill and two cameras. They seized all these items and on the same day drew up a report.
8. The customs officers’ search and the seizures did not lead to any criminal proceedings for offences against the regulations governing financial dealings with foreign countries. They did, however, give rise to parallel proceedings for disclosure of documents and for interim orders.
9. During their search on 14 January 1980 the customs officers asked the applicant to produce the statements for the previous three years - that is to say 1977, 1978 and 1979 - of his accounts at the Postsparkasse in Munich, the PKO in Warsaw, the Société de Banque suisse in Basle and the Deutsche Bank in Kehl and of his house-purchase savings plan at the Württembergische Bausparkasse in Leonberg and, lastly, his share portfolio at the Deutsche Bank in Kehl.
10. Mr Funke undertook to do so but later changed his mind.
11. On 3 May 1982 the customs authorities summoned him before the Strasbourg police court seeking to have him sentenced to a fine (amende) and a further penalty (astreinte) of 50 French francs (FRF) a day until such time as he produced the bank statements; they also made an application to have him committed to prison.
12. On 27 September 1982 the court imposed a fine of FRF 1,200 on the applicant and ordered him to produce to the customs authorities the bank statements of his accounts at the Société de Banque suisse in Basle, the PKO in Warsaw and the Deutsche Bank in Kehl and of his savings account at the Württembergische Bausparkasse in Leonberg and all documents concerning the financing of the flat he had bought at Schonach (Federal Republic of Germany), on penalty of FRF 20 per day’s delay.
The reasons given for its judgment were the following:
"...
On 12.2.1980 Mr Funke told the Customs Service that he was unable to make available the documents that he had undertaken to produce.
He has provided no reason for this and has submitted no correspondence that would show he took the necessary steps to obtain the required documents or would prove that the foreign banks refused to supply him with any such document.
Mr Funke acknowledged that, together with his brother, he bought a bedsitter at Schonach (Federal Republic of Germany) and produced photocopies of the contract of sale and of the entry in the land register; but he refused to produce documents concerning the financing of the purchase.
Article 65 of the Customs Code provides: ‘Customs officers with the rank of at least inspector ... may require production of papers and documents of any kind relating to operations of interest to their department’.
It appears from the present proceedings taken by the customs authorities that the prosecuting officer has the rank of inspector.
The documents sought, namely the bank statements and the documents relating to the financing of the purchase of the flat, can be brought within the category of documents covered by Article 65 of the Customs Code.
The same Article 65 provides in paragraph 1(i) that such requests for production may be made ‘on the premises of (chez) any natural or legal person directly or indirectly concerned in lawful or unlawful operations falling within the jurisdiction of the Customs Service’.
In this context the term ‘chez’ must not be restricted to ‘at the home of’ (au domicile de) but must be construed as meaning ‘wherever ... may be’ (auprès de).
Any other construction would enable the person concerned to evade the Customs Service’s investigations by keeping any compromising papers elsewhere than at his home.
The house search and Mr Funke’s own statements provided sufficient evidence that there were bank accounts and financing operations concerning the defendant to enable the Customs Service to exercise their right of inspection in relation to the relevant documents notwithstanding that these were not at Mr Funke’s home.
As the holder of an account used abroad, Mr Funke, like any account-holder, must receive statements following any transaction on the account. A statement is an extension, a reflection of the situation, of an account at a given time. The holder of the account is the owner of his statements and may at any time ask for them from his bank, which cannot refuse them."
13. Appeals were brought by Mr Funke, the public prosecutor and the customs authorities. On 14 March 1983 the Colmar Court of Appeal upheld the judgment of the court below other than as regards the inspection of documents relating to the flat at Schonach, and increased the pecuniary penalty to FRF 50 per day’s delay.
It dealt with Mr Funke’s argument based on the Convention as follows:
"Article 413 bis of the Customs Code, which applies to financial dealings with foreign countries by virtue of Article 451 of the same code, makes any refusal to produce documents and any concealment of documents in the cases provided for, inter alia, in Article 65 of the aforementioned code punishable by imprisonment for a period ranging from ten days to one month and a fine of FRF 400 to 2,000.
Under Article 65, customs officers may require production of documents of any kind relating to operations of interest to their department, in general, on the premises of any natural or legal person directly or indirectly concerned in lawful or unlawful operations falling within the jurisdiction of the Customs Service.
In the instant case Funke is liable only to a fiscal penalty: to a fine, therefore.
It does not appear that the power conferred by the aforementioned provisions on a revenue authority conflicts with the protection of human rights and fundamental freedoms which it is the purpose of the instrument of international law relied on to guarantee.
The defendant had a fair hearing.
Obviously, no offences which performance of the duty to produce documents may disclose are yet before the courts; that being so, Funke’s objections of principle are premature.
Moreover, while everyone charged with a criminal offence is to be presumed innocent until proved guilty according to law, Article 6 para. 2 (art. 6-2) of the Convention does not otherwise restrict the type of evidence which the lex fori places at the disposal of the prosecuting party in order to satisfy the court.
Lastly, the obligation on a defendant to produce in proceedings evidence likely to be used against him by the opposing side is not a special feature of customs or tax proceedings since it is enacted in Article 11 of the New Code of Civil Procedure likewise.
On the other hand, while Article 8 (art. 8) of the Convention provides that everyone has the right to respect for his private life and his correspondence, there may be interference by a public authority with the exercise of this right so long as it is in accordance with the law and amounts to a measure which is necessary in a democratic society, inter alia in the interests of the economic well-being of the country or for the prevention of disorder or crime.
In most of the countries signatories to the Convention, moreover, the customs and revenue authorities have a right of direct investigation in banks."
14. On 21 November 1983 the Court of Cassation (Criminal Division) dismissed an appeal on points of law by Mr Funke. The third and final ground, in which Articles 6 and 8 (art. 6, art. 8) of the Convention were prayed in aid, was rejected in the following terms:
"The Court of Appeal held that, while everyone charged with a criminal offence was to be presumed innocent until proved guilty according to law, Article 6 (art. 6) of the Convention ... did not otherwise restrict the types of evidence that the lex fori placed at the disposal of the prosecuting party in order to satisfy the court; and that while it was true that Article 8 (art. 8) of the Convention provided that everyone has the right to respect for his private life and his correspondence, there might ... be interference by a public authority with the exercise of this right so long as the interference was in accordance with the law and amounted to a measure which was necessary in a democratic society, inter alia in the interests of the economic well-being of the country or for the prevention of disorder or crime.
In so stating, and irrespective of any superfluous reasoning, the Court of Appeal justified its decision and the ground therefore cannot be upheld."
15. In a report on 30 May 1984 the customs authorities noted Mr Funke’s refusal to comply with the Colmar Court of Appeal’s judgment of 14 March 1983 (see paragraph 13 above).
On 2 January 1985 they served a garnishee notice on the applicant’s bank requiring it to pay a sum of FRF 10,750, representing the amount of the penalties owed by its customer for the period from 31 May to 31 December 1984.
16. On an application by Mr Funke, the Strasbourg District Court upheld the notice in question on 27 March 1985, holding that the customs authorities were entitled to recover the sum owed in respect of a pecuniary penalty resulting from an enforceable court decision in the same way as a customs fine and notwithstanding that an application (which did not have any suspensive effect) had been made to the European Commission of Human Rights.
17. On an appeal by Mr Funke, the Colmar Court of Appeal delivered a judgment on 20 February 1989 reversing the lower court’s judgment of 27 March 1985 and quashing the garnishee notice.
18. An appeal on points of law by the customs authorities was dismissed by the Court of Cassation on 18 December 1990. Like the Court of Appeal, the Court of Cassation held that the amount of the customs penalty could not be recovered by means of a garnishee notice.
19. Following this judgment, the customs authorities made no further attempt to collect payment of the penalty in question.
20. On 16 April 1982 the customs authorities applied for an order from the presiding judge of the Strasbourg District Court for attachment of Mr Funke’s movable and immovable property to the value of FRF 100,220. Half of this sum was to be in lieu of confiscation of the undeclared funds, while the other half corresponded to the fine payable. Relying on Article 341 bis-1 (see paragraph 32 below) and Article 459 of the Customs Code, the customs authorities stated that they already had a definite right to payment from the applicant. The documents seized at Lingolsheim showed that he had contravened Article 1 of the decree of 24 November 1968, which provided that any payment made abroad by persons resident in France had to be effected through an approved intermediary (bank or post office) established in France.
21. The District Court made an order granting the application on 21 April 1982.
On 26 May 1982 it delivered a judgment dismissing an objection lodged by Mr Funke (Article 924 of the local Code of Civil Procedure).
22. On 28 July 1982 the Colmar Court of Appeal dismissed Mr Funke’s appeal against that judgment, holding that unless attachment orders were granted, it was to be feared that enforcement of the decision to be expected in the criminal trial would become impossible or much more difficult; furthermore, the creditor had made his claim credible by producing reports (Articles 917 and 920 of the local Code of Civil Procedure).
23. The applicant did not appeal on points of law.
24. On 22 November 1989 Mrs Funke made an application for discharge of the attachment order (Article 926 of the local Code of Civil Procedure); by this means she wanted to compel the customs authorities to bring to trial the issue of the existence of the right to payment which had provided the justification for the attachment order. She also sought leave to sell a property.
25. In an order made on 31 May 1990 the Strasbourg District Court gave the Director-General of Customs one month in which to bring proceedings on the merits.
The customs authorities decided not to do so and in July 1990 agreed to the discharge of the attachment orders and of the associated mortgage.
26. The criminal provisions of customs law in France are treated as a special body of criminal law.
27. Two provisions of the Customs Code are relevant as regards these officials:
"The officials designated below shall be empowered to establish offences against the legislation and regulations governing financial dealings with foreign countries:
1. customs officers;
2. other officials of the Ministry of Finance with the rank of at least inspector;
3. senior police officers (officiers de police judiciaire).
The reports made by senior police officers shall be forwarded to the Minister for Economic Affairs and Finance, who shall refer cases to the prosecuting authorities if he thinks fit."
"The officials referred to in the preceding Article shall be empowered to carry out house searches in any place as provided in Article 64 of this code."
28. When the house search was made (14 January 1980), Article 64 of the Customs Code was worded as follows:
"1. When searching for goods held unlawfully within the customs territory, except for built-up areas with a population of at least 2,000, and when searching in any place for goods subject to the provisions of Article 215 hereinafter, customs officers may make house searches if accompanied by a local municipal officer or a senior police officer (officier de police judiciaire).
2. In no case may such searches be made during the night.
3. Customs officers may act without the assistance of a local municipal officer or a senior police officer
(a) in order to make searches, livestock counts, and inspections at the homes of holders of livestock accounts or owners of rights of pasture; and
(b) in order to look for goods which, having been followed and kept under uninterrupted surveillance as provided in Article 332 hereinafter, have been taken into a house or other building, even if situated outside the customs zone.
4. If entry is refused, customs officials may force an entry in the presence of a local municipal officer or a senior police officer."
29. The Budget Acts of 30 December 1986 (section 80-I and II) and 29 December 1989 (section 108-III, 1 to 3) amended Article 64, which now provides:
"1. In order to investigate and establish the customs offences referred to in Articles 414-429 and 459 of this code, customs officers authorised for the purpose by the Director- General of Customs and Excise may make searches of all premises, even private ones, where goods and documents relating to such offences are likely to be held and may seize them. They shall be accompanied by a senior police officer (officier de police judiciaire).
2. (a) Other than in the case of a flagrant offence (flagrant délit), every search must be authorised by an order of the President of the tribunal de grande instance of the locality in which the customs headquarters responsible for the department in charge of the proceedings is situated, or a judge delegated by him.
Against such an order there shall lie only an appeal on points of law as provided in the Code of Criminal Procedure; such an appeal shall not have a suspensive effect. The time within which an appeal on points of law must be brought shall run from the date of notification or service of the order.
The order shall contain:
(i) where applicable, a mention of the delegation by the President of the tribunal de grande instance;
(ii) the address of the premises to be searched;
(iii) the name and position of the authorised official who has sought and obtained leave to make the searches.
The judge shall give reasons for his decision by setting out the matters of fact and law that he has accepted and which create a presumption in the case that there have been unlawful activities of which proof is sought.
If, during the search, the authorised officials discover the existence of a bank strongbox which belongs to the person occupying the premises searched and in which documents, goods or other items relating to the activities referred to in paragraph 1 above are likely to be found, they may, with leave given by any means by the judge who made the original order, immediately search the strongbox. Such leave shall be mentioned in the report provided for in paragraph 2(b) below.
The judge shall take practical steps to check that each application for leave made to him is well-founded; each application shall contain all information in the possession of the customs authorities that may justify the search.
He shall designate the senior police officer responsible for being present at the operations and keeping him informed of their progress.
The search shall be carried out under the supervision of the judge who has authorised it. Where it takes place outside the territorial jurisdiction of his tribunal de grande instance, he shall issue a rogatory letter, for the purposes of such supervision, to the President of the tribunal de grande instance in the jurisdiction of which the search is being made.
The judge may go to the scene during the operation.
He may decide at any time to suspend or halt the search.
The judicial order shall be notified orally to the occupier of the premises or his representative on the spot at the time of the search, who shall receive a complete copy against acknowledgement of receipt or signature in the report provided for in paragraph 2(b) below. If the occupier of the premises or his representative is absent, the judicial order shall be notified after the search by means of a registered letter with recorded delivery. Notification shall be deemed to have been made on the date of receipt entered in the record of delivery.
Failing receipt, the order shall be served as provided in Articles 550 et seq. of the Code of Criminal Procedure.
The time-limits and procedures for appeal shall be indicated on notification and service documents.
(b) Searches may not be commenced before 6 a.m. or after 9 p.m. They shall be made in the presence of the occupier of the premises or his representative; if this is impossible, the senior police officer shall requisition two witnesses chosen from persons not under his authority or that of the customs.
Only the customs officers mentioned in paragraph 1 above, the occupier of the premises or his representative and the senior police officer may inspect documents before they are seized.
The senior police officer shall ensure that professional confidentiality and the rights of the defence are respected in accordance with the provisions of the third paragraph of Article 56 of the Code of Criminal Procedure; Article 58 of that code shall apply.
The report, to which shall be appended an inventory of the goods and documents seized, shall be signed by the customs officers, the senior police officer and the persons mentioned in the first sub-paragraph of this section (b); in the event of a refusal to sign, mention of that fact shall be made in the report.
Where an on-the-spot inventory presents difficulties, the documents seized shall be placed under seal. The occupier of the premises or his representative shall be informed that he may be present at the removal of the seals, which shall take place in the presence of the senior police officer; the inventory shall then be made.
A copy of the report and of the inventory shall be given to the occupier of the premises or his representative.
A copy of the report and the inventory shall be sent to the judge who made the order within three days of its being drawn up.
3. Customs officers may act without the assistance of a senior police officer
(a) in order to make searches, livestock counts and inspections at the homes of holders of livestock accounts or owners of rights of pasture; and
(b) in order to look for goods which, having been followed and kept under uninterrupted surveillance as provided in Article 332 hereinafter, have been taken into a house or other building, even if situated outside the customs zone.
4. If entry is refused, customs officers may force an entry in the presence of a senior police officer."
30. Article 65-1 of the Customs Code gives the customs authorities a special right of inspection:
"Customs officers with the rank of at least inspector (inspecteur or officier) and those performing the duties of collector may require production of papers and documents of any kind relating to operations of interest to their department;
...
(i) ... in general, on the premises of any natural or legal person directly or indirectly concerned in lawful or unlawful operations falling within the jurisdiction of the Customs Service."
31. Anyone refusing to produce documents is liable to imprisonment for a period ranging from ten days to one month and to a fine of FRF 600 to 3,000 (Article 413 bis-1 of the Customs Code).
Furthermore, a pecuniary penalty of not less than FRF 10 per day’s delay may be imposed on him (Article 431) and he may be committed to prison for non-payment (Article 382).
32. Article 341 bis-1 of the Customs Code provides:
"Customs reports, where they are conclusive unless challenged as forgeries, shall be a warrant for obtaining, in accordance with the ordinary law, leave to take any necessary interim measures against persons liable in criminal or in civil law, for the purpose of securing customs debts of any kind appearing from the said reports."
33. Article 458 of the Customs Code provides:
"Offences against the legislation and regulations governing financial dealings with foreign countries may be prosecuted only on a complaint by the Minister for Economic Affairs and Finance or one of his representatives authorised for the purpose."
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108491
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MAMMADOV v. AZERBAIJAN (No. 2)
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election)
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1957 and lives in Baku. He stood for the elections to the National Assembly (Milli Majlis) of 6 November 2005 as a candidate of the opposition bloc Azadliq.
6. The applicant was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single-mandate Binagadi Second Electoral Constituency no. 9.
7. There were a total of thirty polling stations in the constituency. At the end of election day, the applicant was only able to obtain copies of official records of election results (səsvermənin nəticələrinə dair protokol) drawn up by twenty-one Polling Station Electoral Commissions (“ PECs”).
8. According to the applicant, he received the majority of votes in the constituency. Specifically, he received a total of 3,665 votes. His closest contender received 3,197 votes. All unofficial exit-polls indicated that the applicant had won the election.
9. An official tabulation of results was carried out by the ConEC after election day, but the applicant was not provided with a copy of the ConEC record of election results. It appears that the ConEC did not officially declare a winner in the applicant’s constituency following the tabulation of results.
10. On 8 November 2005 a representative of the Azadliq bloc applied to the Central Electoral Commission (“the CEC”) with a request for the invalidation of the election results in Polling Stations nos. 1, 3, 11, 14, 19, 20, 23 and 25 (eight polling stations in total, for which the applicant did not receive PEC records of results) and to declare the applicant the winner of the election as, according to copies of those PEC results records which were in the applicant’s possession, he had obtained the highest number of votes in the constituency.
11. It appears that, at a later unspecified date, the applicant obtained copies of all the PEC results records, except those for Polling Stations nos. 1 and 19.
12. On 8 November 2005 the CEC acknowledged receipt of the Azadliq bloc’s request and notified it that it had issued a decision to invalidate the election results for the entire Binagadi Second Electoral Constituency no. 9. The decision, in its entirety, stated as follows:
“Pursuant to Articles 19.4, 19.14, 25.2.22, 28.4, 100.12 and 170.2.2 of the Electoral Code and sections 3.5 and 3.6 of the Law of 27 May 2003 on Approval and Entry into Force of the Electoral Code, the Central Electoral Commission decides:
1. To invalidate the election results in Polling Stations nos. 2, 3, 4, 6, 7, 8, 9, 10, 23, 25, 26, 27 and 29 of Binagadi Second Electoral Constituency no. 9 due to impermissible alterations [“yolverilməz düzəlişlər”] made to the PEC records of election results [“protokollar”] of those polling stations as well as infringements of the law [“qanun pozuntuları”] which made it impossible to determine the will of the voters.
2. To invalidate the election results in Binagadi Second Electoral Constituency no. 9 due to the fact that the number of polling stations in which the election results have been invalidated constitutes more than two-fifths of the total number of polling stations in the constituency and that the number of voters registered in those polling stations constitutes more than one-quarter of the total number of voters in the constituency.
3. To forward the relevant materials concerning this electoral constituency to the Prosecutor General’s Office for investigation.”
13. On 10 November 2005 the applicant lodged an appeal against that decision with the Court of Appeal, arguing that the findings in the CEC decision were wrong. He argued that, while the CEC decision noted that “impermissible alterations” had been made to the PEC records of results for Polling Stations nos. 2, 6, 8, 9, 10, 26, 27 and 29, the photocopies of the same PEC records which were in his possession did not contain any such alterations or changes. According to those PEC records, he had obtained the highest number of votes in each of those polling stations. As to Polling Stations nos. 23 and 25, he noted that the PECs in those polling stations had refused to provide him with copies of their records of results. Nevertheless, according to the information provided by observers and PEC members, the applicant had obtained the highest number of votes in those polling stations as well.
14. The applicant argued that the invalidation of the election results had been arbitrary and that the only reason for the invalidation had been to prevent him, as an opposition candidate, from winning the election. He asked the court to examine all the relevant records of election results, quash the CEC decision and declare him the winner of the election in the constituency.
15. During the hearing held on 11 November 2005, the judges of the Court of Appeal refused to independently examine the originals of the PEC and ConEC records of results which had allegedly contained “impermissible alterations”. The Court of Appeal upheld the CEC decision by reiterating the findings made in that decision and concluding that the invalidation of the election results based on those findings had been lawful.
16. The applicant lodged a cassation appeal. Apart from the arguments advanced in his appeal before the Court of Appeal, he also complained, inter alia, that the Court of Appeal had refused to independently examine the primary evidence (the originals of the relevant official records of election results) and had simply taken the CEC’s findings as fact.
17. On 25 November 2005 the Supreme Court rejected the applicant’s appeal and upheld the Court of Appeal’s judgment as lawful.
18. On 1 December 2005 the Constitutional Court ordered repeat elections to be held on 13 May 2006 for all electoral constituencies in which the results had been invalidated, including the applicant’s constituency.
19. In the meantime, criminal proceedings were instituted against the ConEC chairman and the chairman of the PEC of Polling Station no. 20, for tampering with official electoral documents and abuse of official authority.
20. On 19 January 2006 the Binagadi District Court convicted both defendants under Articles 161.1 (falsification of election documents) and 308.1 (abuse of official power) of the Criminal Code. Both defendants were fined and sentenced to five months’ imprisonment.
21. The factual findings in the Binagadi District Court’s judgment revealed that the majority of falsifications in the PEC results records had been made at the ConEC level by its chairman, after the submission of those records to the ConEC. These falsifications affected a total of thirteen polling stations and were all made in favour of one of the applicant’s opponents, but not the applicant.
22. After the votes in a polling station have been counted at the end of election day, the PEC draws up an official record of election results (in three original copies) documenting the results of the vote in the polling station (Articles 106.1-106.6). One copy of the PEC record, together with other relevant documents, is then submitted to the relevant ConEC within twentyfour hours (Article 106.7). The ConEC verifies whether the PEC record complies with the law and whether it contains any inconsistencies (Article 107.1). After submission of all PEC records, the ConEC tabulates, within two days of election day, the results from the different polling stations and draws up a record reflecting the aggregate results of the vote in the constituency (Article 107.2). One copy of the ConEC record of results, together with other relevant documents, is then submitted to the CEC within two days of election day (Article 107.4). The CEC checks whether the ConEC records comply with the law and whether they contain any inconsistencies (Article 108.1) and draws up its own final record reflecting the results of voting in all constituencies (Article 108.2).
23. If within four days of election day the CEC discovers mistakes, impermissible alterations or inconsistencies in the records of results (including the accompanying documents) submitted by ConECs, the CEC may order a recount of the votes in the relevant electoral constituency (Article 108.4).
24. Upon review of a request to declare invalid the election of a registered candidate, an electoral commission has a right to hear submissions from citizens and officials and to obtain necessary documents and materials (Article 112.8).
25. In the event of the discovery of irregularities aimed at assisting candidates who were not ultimately elected, such irregularities cannot be a basis for the invalidation of the election results (Article 114.5).
26. The ConEC or CEC may invalidate the election results for an entire single-mandate constituency if election results in two-fifths of polling stations, representing more than one-quarter of the constituency electorate, have been invalidated (Article 170.2.2).
27. According to former Article 106.3.6 of the Electoral Code, in force at the material time, during the initial vote-counting at a polling station at the end of election day, if a voting ballot which had not been properly placed in the corresponding envelope was found in the ballot box, the vote on that ballot was considered to be invalid. Article 106.3.6 was subsequently repealed on 2 June 2008.
28. The relevant excerpts from the report read as follows:
“Although constituency aggregate results were made available within the legal deadline, detailed results by polling station were only released on 10 November, four days after the election, despite the computer networking of all ConECs with the CEC. This made it difficult for candidates and observers to check that results had been reported accurately. Protocols from two constituencies, 9 and 42, were never posted publicly. ...
The CEC invalidated the results of four constituencies [including Binagadi Second Electoral Constituency no. 9] under Article 170.2 of the Election Code, which states that if a ConEC or the CEC cancels more than 2/5 of PECs representing more than 1/4 of the total electorate in a constituency, then the entire constituency result is considered invalid. ...
At least ... two ConEC chairpersons [ConECs 9 and 42] were dismissed after election day for involvement in electoral malfeasance. The two ConEC chairpersons were arrested and charged with forging election documents. ... The CEC forwarded materials on possible criminal violations to the Prosecutor General’s Office regarding 29 PECs. ...
The process of invalidation of aggregated results in four constituencies by the CEC did not have sufficient legal grounds or an evidentiary basis, nor was the process transparent. The CEC decisions on the invalidation of the election results in the four constituencies concluded that there were “unacceptable modifications performed on the protocols and law infringements which made it impossible to determine the will of the voters” but did not provide any factual basis to support this conclusion. ...
Furthermore, when it invalidated results, the CEC did not make the required initial factual inquiry [as required by Article 170.2 of the Election Code], and ignored Article 108.4 of the Election Code, which authorizes the CEC to order a recount of votes in a constituency if the protocols and documents submitted by the ConEC reveal “mistakes, inadmissible corrections and inconsistencies.” Protocols of ConECs and PECs were not examined or reviewed at CEC sessions. Invalidation of results in a polling station was premised solely on the conclusion of an individual CEC member as to whether a protocol should be invalidated. The judgment of a single CEC member that there were deficiencies in the protocol was accepted as established fact without any explanation of the alleged defect or identification of the number of votes involved. Accordingly, there was no factual basis presented publicly for invalidating results in any of the four constituencies, which is particularly troubling since the CEC registered few complaints that alleged violations in these constituencies. ...
The adjudication of post-election disputes in the courts largely disregarded the legal framework, and fell short of internationally accepted norms. ... In most cases, complaints and appeals were either dismissed without consideration of the merits or rejected as groundless by both the Court of Appeal and the Supreme Court.
Opposition candidates appealed the CEC’s invalidation of results in constituencies 9, 42 and 110. The Court of Appeal upheld the three CEC decisions without any investigation or review of the primary documents and evidence, such as the PEC protocols. In constituency 9, the appellant petitioned the Court of Appeal to examine the protocols, which had been forwarded to the Prosecutor General’s office by the CEC. This petition was denied. In constituency 42, the appellant made an identical request and the court again denied the petition, ruling that it was impossible to obtain the protocols from the Prosecutor General within the legal deadline. The CEC was not able to explain or give any information as to any specific defect in an invalidated protocol or offer any explanation as to what change to a protocol was sufficient for invalidation. ...
Proceedings in the Supreme Court did not correct the shortcomings noted above. The Supreme Court upheld each CEC decision.”
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-82913
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF WEDEKIND v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1971 and lives in Tychy.
5. On 17 January 2001 the applicant was arrested on suspicion of drug trafficking committed as part of an organised crime group.
6. On 19 January 2001 the Katowice District Court remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offence in question. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence or induce witnesses to give false testimony. The court also stressed the severity of the anticipated sentence.
7. The applicant's appeal against the detention order, likewise his further appeals against some of the decisions extending his detention and his subsequent applications for release and appeals against refusals to release him, were unsuccessful. In his applications and appeals he relied, inter alia, on his personal circumstances, in particular a difficult family situation in that a family break-up was imminent. He also argued that his confessions to offences of which he was suspected had not been taken into consideration.
8. In the course of the investigation, the applicant's detention was extended on several occasions, namely on an unknown date, on 16 July 2001 (to 17 October 2001), 12 October 2001 (to 31 December 2001), 28 December 2001 (to 30 April 2002), 17 April 2002 (to 31 July 2002), an unknown subsequent date, and 25 September 2002 (to 30 November 2002). In all their detention decisions the authorities repeatedly relied on a strong suspicion, supported by evidence from witnesses, that the applicant had committed the offences in question. They attached importance to the seriousness of those offences and to the likelihood of a severe prison sentence being imposed on the applicant. These facts gave rise to the courts' assumption that the applicant, if released, might obstruct the proper course of the proceedings, especially given the fact that some of the suspects were still at large.
9. On 22 November 2002 the Regional Prosecutor lodged a bill of indictment with the Katowice Regional Court. The applicant was charged with drug trafficking and membership of an organised crime group. There were 15 defendants in the case, all charged with numerous counts of drug trafficking committed as an organised crime group.
10. On 6 August 2003 the case was transferred to the Bielsko-Biała Regional Court since all judges from the Katowice Regional Court had been excluded from examination of the case.
11. On 13 November 2003 the trial court held the first hearing. It subsequently held 28 hearings in the case, at regular intervals.
12. During the court proceedings the courts further extended the applicant's pre-trial detention, namely on 27 November 2002 (to 17 January 2003), two unknown subsequent dates, 17 December 2003 (to 31 August 2004) and 23 June 2004 (to 31 December 2004). The courts repeated the grounds previously given for the applicant's continued detention. They relied especially on the complexity of the case and the large number of coaccused.
13. Between 22 January 2004 and 24 March 2004 the applicant was serving a term of imprisonment imposed by the Warsaw Regional Court in a different criminal case.
14. On 16 December 2004 the Bielsko-Biała Regional Court gave judgment. The applicant was convicted as charged and sentenced to five years and six months' imprisonment and to a fine.
15. The applicant appealed. He was kept in detention pending appeal for a period of one year and one month.
16. On 26 January 2006 the Katowice Court of Appeal heard the applicant's appeal. It reduced the sentence passed by the first-instance court to five years and left the remainder of the judgment unchanged. The applicant did not lodge a cassation appeal. The judgment is final.
17. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated 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.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-70279
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: GLENDER v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Sigvard Vincent Glender, is a Swedish national who was born in 1927 and lives in Härnösand.
By a judgment of 14 July 1950, the Municipal Court (rådhusrätten) in Härnösand declared that the applicant was the father of B, born in 1948. The judgment gained legal force.
However, in 1998, a DNA-test was carried out by the National Board of Forensic Medicine (Rättsmedicinalverket) which showed that the applicant could not be B’s biological father.
Based on the DNA-result, the applicant requested the Court of Appeal (Hovrätten) for Southern Norrland to re-open the case and to annul the paternity. The mother of B consented to the annulment. On 16 November 1999 the Court of Appeal re-opened the case and repealed the original judgment, thereby declaring that the applicant was not the father of B. The decision gained legal force.
In April 2002 the applicant requested that the County Administrative Board (länsstyrelsen) of the County of Western Norrland reimburse him all his expenses for child maintenance and other costs, in total SEK 7,671 (roughly EUR 830), that he had been obliged to pay to B and her mother between 1949 and 1964, with the amount up-dated according to the consumer index and with interest.
On 27 May 2002 the County Administrative Board rejected the applicant’s request on the ground that it had been lodged out of time as the statutory limitation period was ten years from the date of payment of the child maintenance.
The applicant appealed against the decision to the Administrative Court of Appeal (Kammarrätten) in Sundsvall, arguing that the statutory limitation period should be calculated as starting from the date of the DNA-result in 1998 and not from the date of the actual payments. He argued that his claim on the Swedish State had only arisen once he was freed from the paternity as this was the sole basis for his claim for reimbursement.
On 7 October 2002 the Administrative Court of Appeal upheld the Board’s decision and reasoning. However, one of the three judges did not agree with the majority and, in his dissenting opinion, he stated that a claim for reimbursement of paid child maintenance could not be considered to arise until a judgment, which had gained legal force, had annulled the paternity. Thus, the ten year statutory limitation period should be counted from that point since, up until then, the man had been legally obliged to pay child maintenance and could not be said to have a claim on the State for reimbursement.
The applicant appealed to the Supreme Administrative Court (Regeringsrätten), maintaining his claims and invoking the dissenting opinion in support of his position. On 1 April 2003 the Supreme Administrative Court refused leave to appeal and informed the applicant of its decision without giving any reasons for it.
From section 2 of the Act on Reimbursement in Certain Cases for Paid Child Maintenance (lag om ersättning i vissa fall för utgivna underhållsbidrag, Lag 1969:620 –hereinafter “the 1969 Act”), it appears that if a man, who legally has been considered the father of a child, is freed from the paternity obligation, he has the right to be reimbursed by the State for child maintenance which he has paid to the child.
However, according to section 2 of the Limitation Act (preskriptionslagen, Lag 1981:130), a claim will become statute-barred ten years after it arose, unless the limitation is interrupted before its date of expiration.
In the preparatory work to the 1969 Act (prop. 1969:124), it was considered that it was not necessary to set out in the Act a specific time-limit for lodging a claim against the State, but that this did not mean that there were no limits at all, since “claims for reimbursement for child maintenance which had been paid more than ten years ago became statute-barred” (p. 129).


ITEMID: 001-83314
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: DAY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Jack Day, is a British national who was born in 1937 and lives in Lancashire. He was represented before the Court by Ms J. Starling, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 16 September 1999, leaving two children born in 1960 and 1963. His claim for widows’ benefits was made on 25 May 2000 and was rejected on 22 August 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant appealed to the appeal Tribunal which heard and dismissed his claim on 27 November 2000. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-72301
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF YUSUF GENÇ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 4. The applicant was born in 1929 and lives in Mersin.
5. The General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a State body responsible, inter alia, for motorway construction, expropriated four plots of land belonging to the applicant in İçel in order to build a motorway. A committee of experts assessed the value of the land and the sum so fixed was paid to him when the expropriation took place.
6. On 26 December 1995 the applicant requested increased compensation. Accordingly, on 13 November 1996 the Mersin Civil Court of First Instance awarded him additional compensation of 4,500,000,000 Turkish liras (TRL) (approximately 35,976 euros (EUR)), plus interest at the statutory rate applicable at the date of the court’s decision, running from 26 December 1995.
7. On 2 February 1998 the Court of Cassation upheld the judgment of 13 November 1996.
8. On 13 April 1998 the administration paid the applicant TRL 8,475,906,000 (approximately EUR 31,684) in additional compensation, together with interest.
9. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25).


ITEMID: 001-59051
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF THE FORMER KING OF GREECE AND OTHERS v. GREECE
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 14+P1-1;Just satisfaction reserved
JUDGES: Gaukur Jörundsson;Luzius Wildhaber
TEXT: 7. In 1864 a crowned democracy was established in Greece, when George I, son of the Danish King Christian IX, was elected King and ascended the throne. The former King Constantinos of Greece (the first applicant) is a direct descendant of King George I. He ascended the Greek throne in 1964, at the age of 24, in succession to his father King Paul I.
8. The applicants have produced the following ownership titles relating to their property in Greece.
9. The former King claimed that he was the owner of an area of 41,990,000 sq. m. of land and a building at Tatoi. This property was formed during the reign of King George I (the first applicant's great-grandfather) through successive purchases of pieces of land.
– By deed no. 24101 of 15 May 1872, King George I purchased from Scarlatos Soutzos the Liopessi-Mahonia estate and from Soutzos's wife the adjacent Tatoi estate, for a total of 300,000 drachmas (GRD).
– Under Law no. 599 of 17 February 1877, the Greek State transferred in full and absolute ownership to King George I the forest known as Bafi, of approximately 15,567,000 sq. m. The applicants have produced documents which demonstrate that, while the Greek government had expressed the intention of donating the Bafi forest to King George I, the latter did not wish to acquire this land through a donation, but insisted on purchasing it at a price fixed by the government. In the event, a compromise was reached, whereby the Bafi forest was expressed to be “conceded” (rather than “donated”) to King George I. In return, the latter deposited GRD 60,000 with interest at the National Bank.
Approximately 1,000,000 sq. m. of the above property were subsequently exchanged for a property of equal surface area adjacent to Tatoi, which belonged to local landowners, who were paid GRD 3,000 by King George I to compensate for the difference in value between the exchanged properties.
– By deed no. 55489 of 4 April 1891, King George I purchased from Andreas Syngros a part of the Kiourka estate, which is adjacent to the Tatoi estate, for GRD 110,000.
– By certificate no. 382 of 20 October 1878, the mortgage registrar of Marathonas attests that the Keramydi estate belonged to King George I and was devolved to him by his predecessors in title, Ioannis Malakindis, Dimitrios Vassilios and Panagis Dionyssiotis, George Kyriazis, George Sardelis and Stamata Sykaminioti. These persons had acquired the property in parts through successive purchases from 1844 to 1878.
10. By his holograph will dated 24 July 1904, King George I made the Tatoi estate a family trust (familia-fideicommis) in order to serve as a permanent residence of the reigning King of the Hellenes. However, according to the then prevailing Byzantine-Roman law, a family trust lasted only for four successions, which meant that the trust was released in the fourth successor.
11. Following the death of King George I on 5 March 1913, Tatoi devolved to his successor, King Constantinos I, and following the latter's deposition from the throne in 1917, to his second-born son, King Alexander. After the latter's death in 1920, Tatoi came back to King Constantinos I, who had in the meantime returned to the throne. After the latter's abdication in September 1922, Tatoi passed to his first-born son, Crown Prince George II.
12. Then, following the abolition of the monarchy and the proclamation of the Republic by resolution of the fourth Constituent Assembly dated 25 March 1924, the Greek State expropriated Tatoi by Law no. 2312 of 14 and 20 August 1924, while the Bafi estate passed ipso jure and without any compensation to the State.
13. Following the return of King George II to the throne, the Emergency Law of 22 January 1936 gave Tatoi back to the King in full ownership and possession, with the exception of the Bafi-Keramydi estate (an area of 3,785,000 sq. m.) which, in the meanwhile, had been allotted to landless refugees. The explanatory report on this Law stated, inter alia, that the expropriation had been in breach of Article 11 of the 1911 Constitution, according to which a compulsory expropriation always had to be preceded by compensation to the owner in an amount to be determined by the courts.
14. After the death of George II on 1 April 1947, his brother Paul came to the throne. Legislative Decree no. 1136 of 5 and 11 October 1949 stated the following: “The Tatoi estate, which was returned ... to the late King George II, has become the unreserved, free and exclusive property of HM King Paul from his accession to the throne”. Following King Paul's death on 6 March 1964, the property came to his son and successor Constantinos II (the first applicant), by virtue of his father's holograph will dated 8 December 1959.
15. The former King and Princess Irene claimed that they each owned 101.5/288 of an area of 33,600,000 sq. m. of land at Polydendri, and that Princess Ekaterini owned 36/288 of that area. This area was formed through the following chain of transfers.
– By deed no. 38939/1906, Hassan Efendi Leondaritis, a landowner of Larissa, transferred and sold to Crown Prince Constantinos I the estate known as Polydendri, for the sum of GRD 397,500. Following the death of Constantinos I, the estate devolved to his intestate heirs as follows: to his wife Sophia 2/8 ab indivisio, and to each of his children George II, Paul, Helen, Irene, Ekaterini (the third applicant) and the daughter of his predeceased son Alexander, Alexandra, 1/8 ab indivisio.
– By deeds nos. 79847 of 18 February 1924 and 80452 of 24 March 1924, the above co-heirs and co-owners (with the exception of Ekaterini) transferred and sold 7/8 ab indivisio of the estate to Athanassios Galeos, a captain in the merchant navy, for the sum of GRD 4,585,000. As regards the 1/8 ab indivisio share of Princess Ekaterini, a price of GRD 650,000 was initially agreed and the land was leased to the new owner pending completion of the required formalities, whereupon the land would be transferred to him.
– By deed no. 4289 of 20 March 1925, Athanassios Galeos and others formed the “Forest Company” (Αvώvυμoς Δασική Εταιρία), to which Athanassios Galeos transferred the 7/8 ab indivisio of the estate he had acquired. This company was dissolved by resolution of its general assembly dated 12 May 1938. By deed no. 22408 of 7 October 1939, the liquidators of the company transferred and sold to Crown Prince Paul the 7/8 ab indivisio of the estate for the sum of GRD 4,000,000 which was paid with funds from the dowry of his wife, Princess Frederica. After his death, 14/32 of his share of Polydendri devolved to his widow, and 14/96 to each of his three children, Sophia, Constantinos (the first applicant) and Irene (the second applicant). In 1968 Princess Sophia declined the inheritance, and her share of the estate was added to the share of the remaining heirs pro rata. After the death of Queen Frederica on 6 December 1981, and in the absence of a will, her 49/96 ab indivisio share of Polydendri devolved to her children in equal shares, each child thus receiving 49/288 of her share.
16. The original title on this property is minutes no. 278 of 1 June 1864 of the Provincial Council of Corfu, by which the Council decided to offer to King George I, in recognition of his contribution to the accession of the Ionian islands to Greece, the use of the house in which the British Magistrate of the Supreme Council once lived, together with the surrounding area, situated at the place known as “Aghios Pandeleïmon of Garitza”. The existing records from that time do not indicate the surface area, exact location or boundaries of the donated estate. The donation was later expressly recognised by deed no. 7870/1887.
17. Between 1870 and 1912 King George I enlarged the above estate by successive purchases of certain smaller or bigger tracts of land belonging to third parties, situated around or inside the farm. After two purchases made by George II, Mon Repos attained its final surface area of approximately 238,000 sq. m.
18. Following the death of King George I, Mon Repos devolved to Prince Andreas, by virtue of King George's holograph will dated 24 July 1904.
19. After the 1922 Revolution and by decision no. 1767/1923, the compulsory expropriation of Mon Repos was proclaimed in favour of the State in order to be used as the summer residence of the reigning King. In 1931 the administrative eviction of Prince Andreas was ordered. Legal proceedings were then instituted and, by judgment no. 57/1934, the Corfu Court of Appeal (Εφετείo) recognised Prince Andreas as the lawful owner of the property and ordered the return of the estate to him. Following the restoration of the “crowned democracy”, Emergency Law no. 514/1937 expressly provided that Mon Repos be conceded and transferred in full ownership and possession to Prince Andreas.
20. By deed no. 11909/1937, Prince Andreas sold Mon Repos to King George II against a life annuity of GRD 400,000. King George II died on 1 April 1947. His co-heirs donated their shares to King George's brother, King Paul, who acquired full ownership of Mon Repos (deeds nos. 3650/1957, 3816/1957 and 5438/1959). Following King Paul's death, and by virtue of his holograph will, Mon Repos devolved to his widow Frederica (usufruct) and to his son, the first applicant (bare ownership). The usufruct was terminated by the death of Queen Frederica on 6 December 1981, and the first applicant acquired full title ownership of Mon Repos.
21. On or about 5 August 1994, following the enactment of Law no. 2215/1994 (see paragraph 41 below), the residence of Mon Repos was broken into. It is now occupied by the municipality of Corfu.
22. On 21 April 1967 there was a military coup in Greece. The former King remained in the country until 13 December 1967, when he left for Rome.
23. On 15 November 1968 the military regime promulgated a new Constitution (the former had been enacted in 1952), which was amended in 1973 when the former King was deposed (see paragraph 25 below). Article 21 of the 1968 Constitution (as amended in 1973) guaranteed the right of property and provided that nobody was to be deprived of property save in the public interest and following payment of full compensation, the amount of which was to be determined by the civil courts. However, Article 134 § 3 of the same Constitution provided for the enactment of a unique legislative measure which would have the effect of confiscating the movable and immovable property of the former King and the royal family.
24. Between 21 April 1967 and 31 May 1973 the military dictatorship formally maintained the “crowned democracy”, despite the former King's self-imposed exile.
25. On 1 June 1973 the military regime purported to abolish the “crowned democracy”, to declare the former King and his heirs deposed and to establish a presidential parliamentary republic.
26. In October 1973 the military dictatorship issued a legislative decree (no. 225/1973), pursuant to Article 134 § 3 of the 1968 Constitution (as amended in 1973), whereby all movable and immovable property of the former King and the royal family was confiscated with effect from the date of publication of the decree in the Official Gazette (4 October 1973), and whereby title to the confiscated property passed to the Greek State. The three estates in question were specifically mentioned as forming part of the immovable property being confiscated.
27. The above decree provided for compensation in the sum of GRD 120,000,000 to be distributed amongst the members of the royal family whose property was to be confiscated, and this sum was deposited in a bank account with a view to being claimed by the royal family. The former King's share of the compensation was stated to be GRD 94,000,000 and Princess Irene's share GRD 12,000,000. No compensation was provided for Princess Ekaterini. It was further specified that the compensation had to be claimed by 31 December 1975. No part of it was ever claimed.
28. On 24 July 1974 the military dictatorship in Greece was replaced by a civilian government under the leadership of Mr Karamanlis.
29. By an Act of 1 August 1974 (“the First Constitutional Act of 1974”), the government revived the 1952 Constitution, except for the provisions relating to the form of government (Article 1).
30. Article 10 of this Act provided that, until the National Assembly was reconvened, the legislative power vested in the Council of Ministers was to be exercised through legislative decrees. Article 10 § 2 provided that such legislative decrees would be capable of having retrospective effect as regards any issues arising from any Constitutional Acts after 21 April 1967. Article 15 provided that the 1968 Constitution (as amended), and all other Constitutional Acts or Acts of a constitutional character passed under the military dictatorship after 21 April 1967, were repealed.
31. Pursuant to Articles 1 and 10 of the First Constitutional Act of 1974, the government issued a legislative decree (no. 72/1974) which provided for the property of the former King and the royal family to be administered and managed by a seven-member committee until the form of regime had been finally determined.
32. The above decree was implemented by three ministerial decisions.
(i) By decision no. 18443/1509 of 1 October 1974, a seven-member committee was formed “for the purposes of managing and administering the estate of the royal family”.
(ii) By decision no. 21987 of 24 October 1974, it was provided that “the handing over [of the property] of the royal family from the State to the committee” was to be made by 31 December 1974.
(iii) By decision no. 25616 of 23 December 1974, it was provided that the handing over of the property of the royal family to the committee would continue until completion, before the handing over to its owners or to a person nominated by them.
33. Between 1974 and 1979 all the movable and immovable property of the former King and the royal family in Greece was administered and managed in the name of the committee established pursuant to Legislative Decree no. 72/1974, on behalf of the former King and the royal family. In 1979 the movable property was handed over to them.
34. On 17 November 1974 there were elections to the National Assembly, and the Assembly was thereafter reconvened. A referendum was held on 8 December 1974, the outcome of which was in favour of a parliamentary republic. By Resolution D18 of 18 January 1975, the National Assembly resolved and declared, inter alia, that democracy in Greece was never lawfully abolished, and that the revolutionary coup of 21 April 1967, as well as the situation which resulted as a consequence up to 23 July 1974, constituted a coup d'état which aimed to usurp power and the sovereign rights of the people.
35. In 1975 the National Assembly enacted the present Constitution, which came into force on 11 June 1975.
36. In 1981 the PA.SO.K. (Panhellenic Socialist Party), under the leadership of Mr Papandreou, was elected to power in Greece. From January 1984 onwards, discussions were held with the former King regarding his property. By 1988 an agreement on principle had been reached between the government and the former King relating to the property and tax liabilities of the royal family. However, the agreement was never executed.
37. In 1990 the conservative “New Democracy” Party was elected to power.
38. In 1992 an agreement was reached between the former King and the Greek State, which provided as follows.
(i) The former King transferred an area of 200,030 sq. m. of his forest at Tatoi to the Greek State for the sum of GRD 460,000,000.
(ii) The former King donated an area of 401,541.75 sq. m. of his forest at Tatoi to a foundation for the benefit of the public, namely the Universal Hippocration Medical Foundation and Research Centre.
(iii) A foundation for the benefit of the public, namely the National Forest of Tatoi Foundation, was created and the former King donated an area of 37,426,000 sq. m. of his forest at Tatoi to the foundation.
(iv) The former King, the royal family and the Greek State waived all legal rights in connection with and discontinued all pending legal proceedings concerning the royal family's tax liabilities.
(v) The former King and the royal family agreed to pay to the Greek State the sum of GRD 817,677,937 in respect of inheritance tax, income tax and capital taxes, together with interest and surcharges. The payment to be made by the former King would be set off against any sums due to the former King pursuant to the agreement.
39. The agreement was contained in and evidenced by notarial deed no. 10573/1992 of 3 June 1992. On 28 September 1992 the Division of Scientific Studies (διεύθυvση Επιστημovικώv Μελετώv) of the Greek parliament issued a report on a draft bill ratifying the above-mentioned notarial act. The report stated, inter alia, that Legislative Decree no. 225/1973 was repealed by Legislative Decree no. 72/1974 and that the property thereby “reverted to its former ownership status”. Subsequently the agreement was incorporated in and given the force of law by Law no. 2086/1992.
40. In the summer of 1993 the former King and his family visited Greece.
41. Following the autumn 1993 elections, a government under the leadership of Mr Papandreou was again returned to power in Greece. The new government declared their intention of dealing with the matters relating to the property of the former royal family, in order to restore “constitutional legality and historical memory” and to satisfy “the democratic sensibility of the Greek people as this was expressed by the referendum of 1974” [Statement of 1 April 1994 of the then Minister of Finance.]. They eventually introduced Law no. 2215/1994 which was passed by Parliament on 16 April 1994 and became law with effect from 11 May 1994. It was entitled “Settlement of matters pertaining to the expropriated property of the deposed royal family of Greece”, and provided as follows.
(i) Law no. 2086/1992 was repealed and deed no. 10573/1992 rescinded. Any acts carried out pursuant thereto were void and of no legal effect (section 1). The acts so declared void and of no legal effect included the donation to the Universal Hippocration Medical Foundation and Research Centre at Tatoi and to the National Forest of Tatoi Foundation [Note: On 8 December 1997 the National Forest of Tatoi Foundation lodged an application with the European Commission of Human Rights under former Article 25 of the Convention. The application was registered on 4 February 1998 (no. 39654/98). On 1 November 1998, by virtue of Article 5 § 2 of Protocol No. 11, the application fell to be examined by the European Court of Human Rights.].
(ii) The Greek State became the owner of the movable and immovable property of the former King, Princess Irene and Princess Ekaterini. Legislative Decree no. 225/1973 was deemed to have remained in force (section 2).
(iii) Title to the Mon Repos property on the island of Corfu was transferred to the municipality of Corfu (section 4(2)).
(iv) Taxes already assessed were written off. All legal proceedings pending before the administrative courts or the Supreme Administrative Court (Συμβoύλιo της Επικρατείας) in respect of inheritance and other taxes, surcharges and penalties were discontinued. Amounts paid by the former King and other members of the royal family in respect of tax could be claimed back from the Greek State, but the State could oppose any set-off of such a claim against any claim of the State against the royal family (section 5(1)).
(v) Any agreements concerning any property of the royal family, except leasehold agreements, would be declared void. Any leases of land belonging to the royal family would continue as if entered into between the lessees and the Greek State (section 5(2)).
(vi) Any legal proceedings brought by the former King or other members of the royal family before any Greek court using the designation “King” or any other royal designation, even if combined with the prefix “ex” or “former”, would be regarded as void (section 6(4)).
(vii) Preconditions were imposed for the continued recognition of the Greek nationality of the former King and the royal family, and for the retention of their Greek passports:
– a declaration was to be submitted to the Registrar of Births, Marriages and Deaths (ληξιαρχείo) of Athens to the effect that the former King and the royal family unreservedly respected the 1975 Constitution and accepted and recognised the Hellenic Republic;
– a further declaration was to be submitted to the Registrar to the effect that the former King and the royal family unreservedly waived any claim relating to the past holding of any office or possession of any official title;
– the former King and the members of the royal family were to register in the Municipal Register of Citizens (μητρώα αρρέvωv ή δημoτoλόγια) under a name and a surname;
(viii) any legislative provision contrary to this legislation was automatically repealed (section 6(5)).
42. The applicants brought several proceedings in the Greek courts concerning the titles to their estates.
43. The applicants also challenged the constitutionality of Law no. 2215/1994. Following two conflicting judgments of the Court of Cassation (Αρειoς Πάγoς) and the Supreme Administrative Court, the case was referred to the Special Supreme Court (Αvώτατo Ειδικό Δικαστήριo).
44. The court first examined whether the applicants were entitled to bring legal proceedings before it without using a surname. The court held that “the indication 'former King' is mentioned in the legal documents not as a title of nobility which is forbidden by the Constitution, but in order to define the identity of this litigant, who for the reasons stated earlier, has no surname ... It concerns a reference to a historic fact which, like other elements, can indeed designate the identity of the above person, so that this person may enjoy judicial protection”.
45. As regards the question of the royal property, the court stressed that “it was from the beginning a political question”, that the property rights of the applicants were linked to the form of government and that “during the reign of the royal family, the property that belonged to the King and the royal family was treated like a special category of property”. The court noted, inter alia, the following:
“When the Constitution by Article 1 defines the form of the regime, by the same provision, which [should be] historically interpreted in the framework of the political and constitutional conjuncture ... in which it was voted, pursuant to the provisions of the First Constitutional Act and of Legislative Decree no. 72/1974 that was issued on the basis of its Article 10, it also solves the issue of the royal property. In other words, the referendum renders irrevocable the devolution of this property to the State, so that its return by law to the former King would be contrary to the Constitution. Therefore, section 1 of Law no. 2086/1992 ..., which implies that the former royal property would continue to belong to the deposed monarch and the members of the former royal family, and actually connects those persons with the property, contravenes the Constitution.”
46. Consequently, the Special Supreme Court, by thirteen votes to four, held that Law no. 2215/1994 was constitutional. Under the Constitution, the judgments of the Special Supreme Court are final and binding on all Greek courts (Article 100 § 4).
47. The relevant Articles of the 1975 Constitution provide as follows:
“1. All Greeks are equal before the law.
2. Greek men and women have equal rights and equal obligations.”
“1. Property is protected by the State; rights deriving therefrom, however, may not be exercised contrary to public interest.
2. No one shall be deprived of his property except in the public interest, which must be duly shown, when and as specified by law and always following full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional determination of compensation. In cases in which a request for the final determination of compensation is made, the value at the time of the court hearing of the request shall be considered.
...
4. Compensation shall in all cases be determined by civil courts. Such compensation may also be determined provisionally by the court after hearing or summoning the beneficiary, who may be obliged, at the discretion of the court, to furnish a commensurate guarantee for collecting the compensation as provided by law.”
48. In Greece the number of property rights is limited (numerus clausus). The real rights that a person may have are ownership, easements, pledge and mortgage (Article 973 of the Civil Code).
49. Articles 999 to 1141 of the Civil Code deal with the institutions of ownership and co-ownership. Ownership may be acquired in a variety of ways, as by occupancy of things that belong to no one, by transfer from a previous owner or even by a non-owner, by operation of law, by the effect of judgments, and by acts of the public authorities. For the transfer of the ownership of immovables, the law requires an agreement between the owner and the transferee that the ownership is transferred for a lawful cause, the incorporation of this agreement in a notarial deed and its transcription at the transcription registry in the district in which the immovable is located (Article 1033).


ITEMID: 001-81779
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF HALIS TEKIN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;No violation of Art. 6-1
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicant was born in 1971 and lives in Batman.
6. On 22 May 1994 the applicant was arrested in the course of an armed clash between members of the security forces and terrorist militants.
7. On 27 May 1994 the applicant's statements were taken by police officers.
8. On 30 May 1994 he was brought before the public prosecutor at the Diyarbakır State Security Court. The public prosecutor questioned him in relation to his involvement in terrorist acts. On the same day, the applicant was brought before a single judge of the Diyarbakır State Security Court who ordered his detention on remand.
9. On 13 June 1994 the Diyarbakır Public Prosecutor filed a bill of indictment charging the applicant with carrying out activities for the purpose of bringing about the secession of part of the national territory. The charges were brought under Article 125 of the now defunct Criminal Code.
10. On 20 January 1995 the Diyarbakır State Security Court held a hearing in the presence of a military judge. The applicant admitted that he was a member of an illegal organisation, namely the ARGK.
11. At the hearing on 30 January 1995 before the Diyarbakır State Security Court, the applicant stated that he was a “guerrilla” of the ARGK and apologised to his people and party for not being worthy of the organisation since he had failed to carry out the acts that he had undertaken. He however denied the veracity of the statements which he had given to the police officers.
12. Between 3 April 1995 and 30 October 1995 the Diyarbakır State Security Court held four hearings and issued decisions to the effect that the case-files concerning other criminal proceedings instituted against the applicant should be obtained from the other courts.
13. On 8 December 1995 the Diyarbakır State Security Court decided to join two cases concerning different accusations against the applicant. It further decided to wait for the arrival of the case-files. The number of accused who were tried together with the applicant attained thirteen in total.
14. Between 24 January 1996 and 14 May 1997 the Diyarbakır State Security Court held eight hearings and postponed each of them with a view to remedying certain procedural shortcomings in respect of the applicant's co-accused.
15. The applicant attended the hearing of 3 July 1997 and claimed that he was under pressure in the prison and that he was hindered from appearing before the court. He did not specify who prevented him from appearing before the court. The court again postponed the hearing with a view to determining the address of one of the applicant's co-accused.
16. The applicant and his co-accused did not attend the hearing of 14 August 1997.
17. The Diyarbakır State Security Court postponed the hearings of 22 October 1997, 10 December 1997, 12 February 1998 and 19 March 1998 pending the arrest of one of the applicant's co-accused. The court also asked the public prosecutor to submit his observations on the merits.
18. On 21 May 1998 the public prosecutor submitted his observations on the merits of the case and sought the conviction of the applicant for the offence under Article 125 of the former Criminal Code. The applicant asked for time to prepare his defence.
19. The applicant did not attend the hearings of 16 July 1998, 10 September 1998 and 5 November 1998. At the hearing held on the latter date, the court decided to inform the accused that their defence submissions would be assumed to have been given if they did not attend the next hearing scheduled for 24 December 1998.
20. The applicant did not attend the hearing of 24 December 1998 and submitted a declaration on behalf of himself and all his co-accused that they would not attend the hearing. The court decided to request the prison authorities to ensure the attendance of the applicant and his co-accused at the hearing of 4 March 1999.
21. The applicant refused to attend the hearings of 4 March 1999, 24 April 1999, 17 June 1999 and 29 July 1999 in protest against the arrest of Abdullah Öcalan.
22. Meanwhile, on 18 June 1999 the Grand National Assembly amended Article 143 of the Constitution and excluded military members from the state security courts. Following similar amendments made on 22 June 1999 to the Law on the State Security Courts, the military judge sitting on the bench of the Diyarbakır State Security Court hearing the applicant's case was replaced by a civilian judge.
23. The applicant attended the hearing held on 23 September 1999 and read out his defence submissions. The court informed the accused that the final judgment would be delivered on 11 November 1999 even if they refused to attend the hearing.
24. On 11 November 1999 the Diyarbakır State Security Court composed of three civilian judges, convicted the applicant as charged and sentenced him to death under Article 125 of the Criminal Code. Taking into account the applicant's behaviour during the trial, the death penalty was commuted to a life sentence. The applicant appealed.
25. On 2 May 2000 the Court of Cassation upheld the judgment of the Diyarbakır State Security Court.
26. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002), Öcalan v. Turkey [GC], no. 46221/99, §§ 5254, ECHR 2005-...).
27. By Law no. 5190 of 16 June 2004, published in the Official Journal on 30 June 2004, state security courts were abolished.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84828
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ALBAYRAK v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 34 - Victim);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 14 - Prohibition of discrimination (Article 14 - Discrimination);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura
TEXT: “Transfer to another jurisdiction shall mean the transfer to a jurisdiction one degree lower than the one in which the person concerned is currently working, for a minimum term of service, if:
a) he/she undermines the honour and dignity of the judiciary and respect for his/her own position as a judge by his/her conduct and relations.
b) if he/she by his/her action and conduct gives the impression that he/she cannot perform his/her duty in a correct and an impartial manner.
...”
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1
NON_VIOLATED_ARTICLES: 14


ITEMID: 001-58210
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF OLIVEIRA v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: No violation of P7-4
TEXT: 6. Mrs Oliveira, a Portuguese citizen, was born in 1967 and currently lives in Zürich (Switzerland).
7. On 15 December 1990, while she was driving on a road covered with ice and snow in Zürich, her car veered onto the other side of the road hitting one car and then colliding with a second driven by M., who sustained serious injuries.
8. On 19 March 1991 the Zürich police magistrate’s office (Polizeirichteramt) sent the file to the district attorney’s office (Bezirksanwaltschaft) for further investigation as to whether the applicant had negligently inflicted serious physical injury contrary to Article 125 § 2 of the Swiss Criminal Code (see paragraph 16 below).
9. On 5 April 1991 the Zürich District Office (Statthalteramt) sent the file to the district attorney’s office for further investigations as to whether any offences had been committed under the Federal Road Traffic Act (see paragraph 17 below).
10. On 3 June 1991 the district attorney’s office returned the case file concerning the party injured in the accident to the police magistrate’s office. It contained a medical certificate stating that the injuries were serious. On 12 August 1991 the police magistrate found that there was no case for the injured party to answer (Einstellungs-Verfügung). On 13 August 1991 he convicted the applicant of an offence under sections 31 and 32 of the Federal Road Traffic Act of failing to control her vehicle, as she had not adapted her speed to the road conditions (Nichtbeherrschen des Fahrzeuges infolge Nichtanpassens der Geschwindigkeit an die Strassenverhältnisse) and sentenced her to a fine of 200 Swiss francs (CHF). He found in particular that on 15 December 1990 the road had been covered with ice and snow and that the applicant's car had veered onto the other side of the road hitting one car before colliding with a second.
11. On 25 January 1993 the district attorney’s office issued a penal order (Strafbefehl) fining Mrs Oliveira CHF 2,000 for negligently causing physical injury contrary to Article 125 of the Swiss Criminal Code in respect of the injuries sustained by M. as a result of the collision between his vehicle and the applicant’s.
12. The applicant challenged that order in the Zürich District Court (Bezirksgericht), which on 11 March 1993 reduced the fine to CHF 1,500. It held in particular:
“The police magistrate who imposed the fine (Bussenverfügung) referred to by the applicant had to examine the situation within the context of proceedings concerning a minor criminal offence (Übertretungsstrafverfahren), so that by virtue of the non bis in idem principle there is no doubt that no further prosecution for a minor criminal offence can be brought on the basis of the same incident. However, the fact that investigations in this type of proceedings are summary and limited in scope means that offenders on whom only a fine has been imposed may, if a more thorough investigation is needed in view of legal or factual considerations, also be prosecuted on the same facts for a serious crime or other major offence. In such cases, the original decision and sentence are quashed.”
The court went on to quash the CHF 200 fine imposed on 13 August 1991 and said that any part of that fine that had already been paid was to be deducted from the fine it was imposing, the latter fine thus being reduced to CHF 1,300.
13. The applicant appealed to the Zürich Court of Appeal (Obergericht), which on 7 October 1993 dismissed the appeal holding, inter alia:
“It is necessary to consider what conclusions are to be drawn from the police magistrate’s error regarding the question in issue. It is clear that in his decision of 13 August 1991 he made a finding only in respect of the applicant’s failure to control the vehicle, but not in respect of the resulting physical injuries suffered by the victim… However, in determining whether the Highway Code had been followed, the police magistrate had the power and duty to consider all the facts before him and to rule on them exhaustively under the criminal law; his failure to remit the case file, even though possibly serious physical injuries had been caused by negligence, does not necessarily mean that the decision of the police magistrate is invalid – that decision stands. It has not been submitted, and does not appear from the file, that the decision in issue contains serious defects requiring that it be quashed in its entirety in any event.”
The Court of Appeal subsequently upheld the decision to deduct CHF 200 from the CHF 1,500 fine, considering that the applicant ought not to be punished more severely than she would have been if both offences had been dealt with together in a single set of proceedings.
14. Mrs Oliveira appealed against that decision on grounds of nullity (Nichtigkeitsbeschwerden) to the Court of Cassation (Kassationsgericht) of the Canton of Zürich and to the Federal Court. On 27 April 1994 the Court of Cassation declined to consider her appeal.
15. The applicant then filed a public-law appeal with the Federal Court against that decision.
On 17 August 1994, the Federal Court dismissed both the applicant's public-law appeal and her appeal on grounds of nullity. In its latter decision the Federal Court held that it had to be assumed that when on 13 August 1991 the police magistrate had imposed a fine on Mrs Oliveira, he had been unaware that M. had sustained serious injuries, as otherwise he would have had no jurisdiction to impose a fine and would have had to return the file to the district attorney’s office. The Federal Court concluded that the District Court had nevertheless avoided the effects of punishing an offender twice for the same offence by taking into account the CHF 200 fine imposed by the police magistrate when “determining the amount of the new fine” (bei der Bemessung der neuen Busse).
16. Article 125 of the Swiss Criminal Code provides:
“1. Anyone who negligently causes damage to the physical integrity or health of another shall, on a complaint, be liable to imprisonment or a fine.
2. If the injury is serious, the offender shall be prosecuted even in the absence of a complaint.”
17. Subsection 31(1) of the Federal Road Traffic Act provides, inter alia, that drivers shall remain in control of their vehicles at all times so as to fulfil their obligations to drive carefully. Under section 32, drivers must adapt the vehicle's speed to conditions.


ITEMID: 001-96116
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KREYDICH v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 5. The applicant was born in 1961 and lives in Kyiv, Ukraine.
6. In the middle of 2006 the applicant left Belarus as he had been invited to work as a coach for the national free-style wrestling team of Ukraine.
7. On 15 June 2007 the General Prosecutor's Office of Belarus instituted criminal proceedings against the applicant for aiding and abetting bribery (maximum sentence of six years' imprisonment). Since his whereabouts were unknown, a warrant for his arrest was issued.
8. On 2 July 2007 the Kyiv Organised Crime Department received a request from the Main Organised Crime Department of Belarus to assist in arresting the applicant.
9. On 18 July 2007 the General Prosecutor's Office of Belarus charged the applicant with participation in organised crime, abuse of authority, aiding and abetting bribery and other offences (maximum penalty of fifteen years' imprisonment).
10. On the same day the applicant was arrested in Kyiv, Ukraine.
11. On 20 July 2007 the Pecherskyy District Court of Kyiv authorised the applicant's detention pending a decision on his extradition.
12. On 25 July 2007 the General Prosecutor's Office of Belarus requested the applicant's extradition to Belarus.
13. On 31 July 2007 the Kyiv City Court of Appeal changed the decision of 20 July 2007 further to an appeal by the applicant and authorised his detention for a maximum of forty days pending receipt of the request for his extradition.
14. On 20 August 2007 the Pecherskyy District Court of Kyiv authorised the applicant's continued detention. This decision was upheld on 30 August 2007 by the Kyiv City Court of Appeal.
15. By letter of 25 October 2007 the General Prosecutor's Office of Belarus stated that, if extradited, the applicant would not be subjected to the death penalty or to any treatment contrary to Article 3 of the Convention; that he would be provided with the necessary medical treatment; that he would be given a fair trial; and that he would not be persecuted for his political beliefs.
16. On 5 November 2007 the General Prosecutor's Office of Ukraine (“the GPO”) authorised the applicant's extradition to Belarus. On the same date the decision was sent to the applicant. The applicant was also informed that this decision could be contested by him in court within ten days of its receipt.
17. On 13 November 2007, under Rule 39 of the Rules of Court, the President of the Fifth Section of the Court invited the Government of Ukraine not to extradite the applicant to Belarus.
18. The applicant received the decision of 5 November 2007 on 16 November 2007, but did not challenge before in the Kyiv Regional Administrative Court until 19 February 2008.
19. On 7 April 2008 the applicant was granted refugee status in Ukraine by the State Migration Committee.
20. On 21 April 2008 the Pecherskyy District Court rejected an appeal by the applicant's lawyer against the court decisions of 20 July and 20 August 2007 since they had already been appealed against under the ordinary appeal procedure and the first-instance court was not competent to quash them. This decision was upheld on 5 May 2008 by the Kyiv City Court of Appeal.
21. On 25 April 2008 the GPO filed an objection with the State Migration Committee against the decision granting the applicant refugee status. According to the applicant, execution of the relevant decision was suspended pending the Committee's reply.
22. On 7 May 2008 the Kyiv Regional Administrative Court rejected a complaint by the applicant against the decision to extradite him. In particular, the court indicated that the applicant had not yet been granted refugee status when the contested decision had been taken on 5 November 2007. The applicant did not appeal.
23. By letter of 14 May 2008 the State Migration Committee informed the GPO that its objection to the decision of 7 April 2008 had been rejected.
24. On 23 May 2008 the GPO challenged the decision of 7 April 2008 in court.
25. On 21 July 2008 the Kyiv Regional Administrative Court rejected the GPO's request to quash the decision of 7 April 2008.
26. On 25 November 2008 the Kyiv Administrative Court of Appeal upheld the decision of 21 July 2008.
27. On 28 November 2008 the GPO refused to extradite the applicant to Belarus. On the same day the applicant was released.
28. The relevant international and domestic law and practice are summarised in the judgments Soldatenko v. Ukraine (no. 2440/07, §§ 21-29 and 31, 23 October 2008) and Svetlorusov v. Ukraine (no. 2929/05, §§ 32-34, 12 March 2009).
VIOLATED_ARTICLES: 5