ITEMID: 001-76251
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ZHIGALEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Possessions);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations)
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1949 and lives in the village of Nemcha in the Kursk region.
10. The applicant is an agronomist. When collective farms were being privatised, he left the Kapustin collective farm in the Bolshesoldatskiy District, Kursk Region, and became head of a private farm “Luch” (“Luch Farm”). In 1992, by decisions of the Head of the Bolshesoldatskiy District Administration of the Kursk Region, Luch Farm was granted two plots of agricultural land – 31 hectares from the lands of the former Kapustin collective farm and 315 hectares from a special State land fund. As the applicant considered himself the sole owner of the land and the other five partners in Luch Farm disagreed with his position, disputes began between them. Luch Farm has been involved in various court proceedings since 1997 and the land has not been farmed since that time.
11. By a ruling of 10 April 1997 the Commercial Court of the Kursk Region pointed out violations of law in the setting up and registering of Luch Farm and suggested that the Bolshesoldatskiy District Administration of the Kursk region (“the District Administration”) should take steps to remedy the situation. On 23 July 1997 the Head of the District Administration adopted Resolution no. 157 whereby, inter alia, Land Certificate no. 30020006, drawn up in the name of Mr V.A. Zhigalev, was annulled as having been issued in breach of the law and the rights of the other partners in Luch Farm. Resolution no. 112 of 14 April 1992, issued by the Head of the District Administration (by which Luch Farm was registered and on which Mr V.A. Zhigalev was named as head of Luch Farm) was supplemented with a list of five partners in Luch Farm, comprising Mr A.V. Gerasimov, Mr S.V. Kapustin, Mr N.N. Belov, Mr A.N. Kazyulkin and Mr A.F. Kapustin.
12. Acting as head of Luch Farm, Mr Zhigalev brought proceedings on behalf of the farm, seeking to have Resolution no. 157 declared invalid. The proceedings ended with a decision by the Federal Commercial Court of the Central Circuit of 10 December 1997 granting Luch Farm’s action, on the ground that the Head of the District Administration had had no jurisdiction to make such decisions, which could only be made by a court with regard to annulment of the land certificate, and on the basis of the relevant documents, adopted by the farm, with regard to including the list of its partners in the Resolution.
13. On 25 May 1998, following an application by the Head of the District Administration, an investigator from the Bolshesoldatskiy District Prosecutor’s Office initiated criminal proceedings, having detected that two copies of a Land Certificate concerning Luch Farm’s land – one issued to Mr Zhigalev by the Bolshesoldatskiy District Committee for Land Reform and Land Resources (“the Land Committee”) and the other one held by the Land Committee, which ought to have been signed by the former Head of the District Administration, bore the signatures of two different persons.
14. As a result of the investigation, it was established that, on the basis of Resolution no. 111 on the allocation of land to Luch Farm, issued by the Head of the District Administration on 14 April 1992, Mr Kolkov, former Chairman of the Land Committee, had prepared Land Certificate no. 300200006 concerning a plot of 30.9 hectares of land. The investigator found that, as a result of negligent performance of his duties, Mr Kolkov had failed to specify in the Land Certificate that the land had been allotted to Luch Farm, and not to Mr Zhigalev alone. He had also failed to register this Land Certificate with the Land Committee.
15. Later, on the basis of Resolution no. 167 of 14 July 1992 on amendment of the above Resolution no. 111, issued by the Head of the District Administration, Mr Kolkov had prepared another Land Certificate, no. 30020006, concerning the same 30.9-hectare plot and a plot of 315 hectares. It had been properly registered in the relevant records of the Land Committee as no. 7. The investigator found that, as a result of negligent performance of his duties, Mr Kolkov had again failed to specify in this Land Certificate that the land had been allotted to Luch Farm, including all its partners, and not to Mr Zhigalev alone. Another oversight was that the Land Certificate contained no reference to District Administration Resolution no. 167 of 14 July 1992, on the basis of which it had been issued. Furthermore, an original copy of the Land Certificate belonging to the Land Committee had been lost, and there remained only one copy, that issued to Mr Zhigalev. Mr Kolkov had then prepared another unnumbered Land Certificate, identical to Land Certificate no. 30020006 save that it was issued in the name of Luch Farm. This had been kept in the Land Committee’s archives. The investigator found that this Land Certificate was unlawful, in that it had not been signed by the Head of the District Administration and did not bear the District Administration’s official stamp.
16. According to statements by Mr Kolkov, he had considered that, by drawing up the Land Certificates in Mr Zhigalev’s name, he had actually issued them to Luch Farm inasmuch as Mr Zhigalev had been head of the farm.
17. In his decision of 17 September 1998, the investigator held that Mr Kolkov’s actions contained elements of negligence punishable under Article 293 of the Criminal Code. However, as the two-year limitation period applicable to this offence, committed in 1992, had expired, the prosecution was time-barred. The proceedings were therefore terminated. On 13 October 1998 a copy of the decision was served on Mr Zhigalev.
18. On 18 September 1996 Mr Zhigalev, head of Luch Farm, decided that Mr A.N. Kazyulkin and Mr S.V. Kapustin were to be dismissed from Luch Farm. On 3 October 1996 the same decision was taken in respect of Mr A.V. Gerasimov. The farmers challenged the lawfulness of their dismissal in court.
19. By a judgment of 28 December 1998 the Bolshesoldatskiy District Court of the Kursk Region established that the above-named individuals had always been partners in Luch Farm and not its hired workers. Accordingly, the court held that Mr Zhigalev had had no authority to dismiss them.
20. Acting as head of Luch Farm, Mr Zhigalev brought proceedings against the District Administration on behalf of the farm, seeking compensation in connection with the adoption of Resolutions nos. 153 and 154 of 29 October 1996 and Resolution no. 157 of 23 July 1997. Mr Zhigalev alleged that the adoption of those Resolutions had prevented cultivation of the land. He claimed compensation for expenses which the farm would necessarily incur in remedying the situation, and for loss of profit.
21. In a judgment of 5 February 1999 the Commercial Court of the Kursk Region established the facts of the case as follows.
22. By Resolution no. 111 of 14 April 1992, issued by the Head of the Bolshesoldatskiy District Administration, Luch Farm had been granted a plot of 31 hectares from the lands of the former Kapustin collective farm and a plot of 315 hectares in lease for five years. By the same Resolution V.A. Zhigalev had been confirmed as head of Luch Farm and A.V. Gerasimov, S.V. Kapustin, N.N. Belov, A.N. Kazyulkin and A.F. Kapustin as partners in Luch Farm.
23. By Resolution no. 112 of 14 April 1992, issued by the Head of the District Administration, Luch Farm had been registered as a legal entity.
24. Land Certificate no. 30020006 had been issued to V.A. Zhigalev in pursuance of the above Resolution for the founding of Luch Farm.
25. By Resolution no. 167 of 14 July 1992, issued by the Head of the District Administration, the earlier Resolution no. 111 had been amended in order to specify the size of the plot of land given in life-time inheritable possession to each partner in the farm.
26. Resolution no. 153 of 29 October 1996, issued by the Head of the District Administration, had concerned the renaming of Luch Farm as Volna farm by its partners and their re-election of the farm’s head following a vote of no confidence to V.A. Zhigalev. It had also ordered the Land Committee to annul the Land Certificate issued to Luch Farm and to prepare new documents accordingly. By Resolution no. 154 of 29 October 1996, issued by the Head of the District Administration, Luch Farm had been re-registered as Volna Farm. Resolutions nos. 153 and 154 had then been reversed by the Head of the District Administration, and, when the court delivered its judgment on 5 February 1999, Resolutions nos. 111 and 112 of 14 April 1992 were in force in their earlier version.
27. By Resolution no. 157 of 23 July 1997, issued by the Head of the District Administration, Land Certificate no. 30020006 was annulled and Resolution no. 112 of 14 April 1992 had been made more precise in respect of the partners in the farm. By a decision of the Federal Commercial Court of the Central Circuit of 10 December 1997, Resolution no. 157 had been declared null and void.
28. Having examined the evidence in the case, the Commercial Court of the Kursk Region found that there was no single document from which it would follow that Mr Zhigalev had been the sole founder of Luch Farm. The court held that Luch Farm had been set up by the six farmers (V.A. Zhigalev, A.V. Gerasimov, S.V. Kapustin, N.N. Belov, A.N. Kazyulkin and A.F. Kapustin) and the farm’s property had been formed from their property shares. In accordance with the Farming Enterprise Act, the property of a farm belonged to its partners as their common share property or common joint property, if the latter course was decided unanimously by a farm’s partners. According to the legislation in force at the material time (the Civil Code), a farm’s property was common joint property.
29. The court found no causal link between the adoption of Resolutions nos. 153, 154 and 157 and the failure of the farmers to farm the land. The court held that there had been no obstacles to cultivating Luch Farm’s land. It held that Mr Zhigalev had failed to substantiate his claims and that it was in fact his attitude that had brought about the possibility of losses for the farm.
30. In its judgment of 5 February 1999 the court dismissed Mr Zhigalev’s claims as manifestly ill-founded. That judgment was upheld by a decision of the Federal Commercial Court of the Central Circuit of 5 May 1999.
31. On 16 February 1999 the Prosecutor of the Kursk Region brought an action against the District Administration and the Land Committee in defence of state and public interests before the Commercial Court of the Kursk Region.
32. The prosecutor requested that Land Certificate no. 300200006 concerning the right of ownership to the plot of 30.9 hectares, which had been issued by the Land Committee in Mr Zhigalev’s name, be declared null and void. The same request was made in respect of Land Certificate no. 30020006 on the right of ownership to the same plot of 30.9 hectares and the right of life-time inheritable possession to the 315-hectare plot, which had also been issued by the Land Committee in Mr Zhigalev’s name. The prosecutor stated, inter alia, that the Land Certificates certifying Mr Zhigalev as the sole owner of the land had impaired the rights of the other five partners in the farm, each of whom had been entitled to his share of the land.
33. The prosecutor also requested a finding of invalidity in respect of Resolutions no. 111 of 14 April 1992, on the allocation of a plot of land for the organisation of Luch Farm, and no. 167 of 14 July 1992, on the amendment of Resolution no. 111, both of which had been issued by the Head of the District Administration. The prosecutor argued that the size of the plot of land given to Luch Farm had exceeded the relevant statutory limit.
34. The prosecutor requested that Mr Zhigalev, head of Luch Farm, be joined to the proceedings as a third party on the defendant’s side.
35. On 10 March 1999 the Commercial Court of the Kursk Region ruled that Mr Zhigalev, head of Luch Farm, was to be joined to the proceedings as a third party because the submitted action concerned his interests. The court referred to Article 39 of the Code of Commercial Procedure of 1995, which regulated the procedural status of a third party who did not have separate claims with regard to the subject matter of a dispute.
36. By the same decision, the court ordered the parties to produce documentary evidence and scheduled a hearing for 31 March 1999.
37. On 31 March 1999 the court adjourned the hearing to 21 April 1999 in view of the Land Committee’s failure to produce documentary evidence.
38. The court, composed of three judges, held a hearing on 21 April 1999. Representatives of the defendant authorities admitted the claim in full. The Land Committee explained that neither of the Land Certificates complied with Resolutions nos. 111 and 167, on the basis of which they had been issued.
39. Mr Zhigalev submitted an application to be recognised as a codefendant in the case. In its ruling of 21 April 1999, the court refused the application on the ground that the prosecutor’s action concerned the validity of the documents adopted by the District Administration and the Land Committee.
40. The head of Luch Farm argued that the prosecutor’s claim should be rejected in view of the expiry of the relevant limitation period.
41. The prosecutor submitted that the limitation period had been interrupted by the District Administration’s adoption, on 29 October 1996, of Resolution no. 153 on the amendment of Resolutions nos. 111 and 167. Resolution no. 153 had been reversed by the District Administration on 30 April 1998.
42. The court held that, in accordance with Article 199 § 2 of the Civil Code, a limitation period was applied exclusively at the request of a party to a case. As head of Luch Farm, Mr Zhigalev was not a party to the present proceedings pursuant to Article 34 of the Code of Commercial Procedure, and the court could not therefore apply this ground for rejecting the prosecutor’s claim.
43. Having examined the evidence in the case and heard the prosecutor, the defendants and the head of Luch Farm in his capacity as a third party, the Commercial Court of the Kursk Region established the facts of the case as follows, as summarised in its judgment of 21 April 1999.
44. On 9 March 1992 V.A. Zhigalev had lodged an application with the Administration of the Bolshesoldatskiy District of the Kursk Region for allocation of a plot of 500 hectares of agricultural land as a life-time inheritable possession (право пожизненного наследуемого владения) for the founding of Luch Farm, together with the following partners in Luch Farm: A.V. Gerasimov, S.V. Kapustin, N.N. Belov, A.N. Kazyulkin and A.F. Kapustin.
45. Following applications by members of the Kapustin collective farm, namely V.A. Zhigalev, A.V. Gerasimov, S.V. Kapustin, N.N. Belov, A.N. Kazyulkin and A.F. Kapustin, seeking to leave the farm and be granted a plot of land, on 11 April 1992 the administration of Kapustin collective farm had decided that the said individuals would leave the collective farm with a share of 5.15 hectares each.
46. On 14 April 1992 the Head of the District Administration had adopted Resolution no. 111 which stated that, pursuant to the above decision by the administration of Kapustin collective farm, a plot of 31 hectares from the land of Kapustin collective farm was to be given, free of charge, in ownership, for the founding of Luch Farm. In the same Resolution the District Administration had ordered that a plot of 315 hectares of plough land be given to Luch Farm in lease for five years. The Resolution had further confirmed V.A. Zhigalev as head of Luch Farm and A.V. Gerasimov, S.V. Kapustin, N.N. Belov, A.N. Kazyulkin and A.F. Kapustin as partners in Luch Farm. The Resolution had further stated that the Land Committee had been directed to delimit the plots of land on site and to issue a Land Certificate for the right to use the land.
47. The Land Committee had delimited the plot of 30.9 hectares on site, drawn up a plan and prepared a Land Certificate, numbered 300200006, certifying the right of ownership to this plot of land, in which V.A. Zhigalev had been specified as the sole owner of the land.
48. Having examined an application submitted on 9 June 1992 by V.A. Zhigalev, head of Luch Farm, to grant the land to Luch Farm in life-time inheritable possession and not in lease, the Head of the District Administration had adopted Resolution no. 167 of 14 July 1992, by which the earlier Resolution no. 111 had been amended in respect of the plot of 315 hectares. It had now stated:
‘That 315 hectares of arable land is to be transferred from a special land fund to Luch Farm in life-time inheritable possession, in the following shares:
V.A. Zhigalev 52.5 ha [hectares]
A.V. Gerasimov 52.5 ha [hectares]
S.V. Kapustin 52.5 ha [hectares]
N.N. Belov 52.5 ha [hectares]
A.A. Kazyulkin 52.5 ha [hectares]
A.F. Kapustin 52.5 ha [hectares]’
49. Following Resolution no. 167 the Land Committee had prepared another Land Certificate, numbered 30020006, certifying the right of ownership to the same plot of 30.9 hectares and the right of life-time inheritable possession to the plot of 315 hectares, in which V.A. Zhigalev was again specified as the sole owner and possessor of both plots of land.
50. In the light of the above findings of fact, the Commercial Court of the Kursk Region found that the fact that Land Certificate no. 300200006 did not specify the share of 5.15 hectares belonging to each partner in Luch Farm ran counter to the content of Resolution no. 111 and to the law, particularly section 15 of the Farming Enterprise Act («О крестьянском (фермерском) хозяйстве»), which provided that the property of a farm belonged to its members as common share property or as common joint property. The court further held that the same omission – the lack of information concerning the share of land for each partner in Luch Farm - in Land Certificate no. 30020006 was unlawful on the same grounds.
51. In a judgment of 21 April 1999 the Commercial Court of the Kursk Region declared Land Certificates no. 300200006 and no. 30020006 null and void. The court rejected the remainder of the prosecutor’s claim concerning Resolutions no. 111 of 14 April 1992 and no. 167 of 14 July 1992, issued by the Head of the District Administration, because the court found no grounds to declare the said Resolutions unlawful.
52. Mr Zhigalev, head of Luch Farm, appealed against the judgment on the ground that the first-instance court had refused to examine his submission concerning the limitation period. At a hearing on 8 June 1999, in which the parties and Mr Zhigalev in his capacity as a third party participated, the Appeals Division of the Commercial Court of the Kursk Region, sitting as a bench of three judges, examined the appeal.
53. It noted that on the basis of Resolutions nos. 111 and 167, issued by the Head of the District Administration, the land had been allotted to each of the partners in Luch Farm. Land Certificates no. 300200006 and no. 30020006, issued in Mr Zhigalev’s name on the basis of those Resolutions, had been found to be unlawful by the firstinstance court.
54. It further noted that it followed from the applicant’s appeal that the only ground for quashing that court’s judgment was its refusal to examine the applicant’s submission concerning the limitation period. However, the court held that, pursuant to Article 39 of the Code of Commercial Procedure and Article 199 of the Civil Code, only a party to a case was entitled to request the application of a limitation period. As the applicant was not a party to the case it was not open to him to lodge such a request. The court dismissed the appeal and upheld the judgment of 21 April 1999.
55. The applicant lodged a cassation appeal, in which he requested that the decisions of the lower courts be quashed as they had allegedly been delivered in breach of the procedural and material law. In particular, he complained that his request for participation in the proceedings in the capacity of a defendant had been unlawfully rejected, which allegedly deprived him of the possibility to assert his rights to the land. The appeal was examined on 29 July 1999 by the Federal Commercial Court of the Central Circuit, sitting as a bench of three judges, in the presence of the parties and Mr Zhigalev as a third party. The court summarised its findings as follows.
56. It followed from the materials of the case file that, in accordance with Resolutions no. 111 and no. 167, issued by the Head of the District Administration, the land had been given to each of the partners in Luch Farm.
57. However, the Land Certificates had been issued in Mr Zhigalev’s name as the owner of the land, without specifying the shares of the other five partners in the farm.
58. As these Land Certificates contradicted Resolution no. 111 and section 15 of the Farming Enterprise Act, which provided that the property of a farm belonged to its members as common share property or common joint property, the first-instance court’s decision to declare null and void the Land Certificates issued in Mr Zhigalev’s name had been wellfounded.
59. Resolutions nos. 111 and 167 of the District Administration, pursuant to which the plots of land had been allotted for the founding of Luch Farm, had been adopted in accordance with the legislation.
60. As regards the applicant’s complaint alleging the court’s failure to join him to the proceedings as a co-defendant, the first-instance court had rightly rejected this request and ordered that the applicant be joined to the proceedings as a third party, because the claims concerned documents adopted by the District Administration and the Land Committee. The claims had been admitted by the defendants. The parties to the proceedings had not raised the issue of the expiry of a limitation period. Mr Zhigalev was not a party to the present dispute and the right to request the application of a limitation period was therefore not vested in him.
61. In those circumstances the judgment of the first-instance court and the decision of the appeal court had been lawful and well-founded.
62. By a decision of 29 July 1999 the Federal Commercial Court of the Central Circuit upheld the judgment of the Commercial Court of the Kursk Region of 21 April 1999 and the decision of the Appeals Division of the Commercial Court of the Kursk Region of 8 June 1999.
63. Following the outcome of the above proceedings, on 14 February 2000 the District Administration adopted Resolution no. 35, in which it ordered that the old Land Certificates no. 300200006 and no. 30020006 be annulled and a new Land Certificate be issued to Luch Farm by the Land Committee in accordance with the District Administration’s Resolution no. 167 of 14 July 1992 and the Farming Enterprise Act. In pursuance of Resolution no. 35 the Land Committee issued a new Land Certificate to Luch Farm, numbered 300200167, which stated that Luch Farm owned the plot of 315 hectares, and that each of the six partners in Luch Farm owned a share of 52.5 hectares of that land.
64. On 16 February 2001 Mr Zhigalev, acting as head of the farm, brought an action on behalf of Luch Farm before the Commercial Court of the Kursk Region against the District Administration. He requested that Resolution no. 35, by which he had allegedly been deprived of his rights to the land, and Land Certificate no. 300200167 be declared void.
65. By Resolution no. 127 of 14 June 2001 the District Administration annulled its Resolution no. 35, considering that it had been adopted erroneously. On 27 September 2001 the court terminated the proceedings in respect of the applicant’s claim concerning Resolution no. 35, on the ground that the said Resolution had already been quashed.
66. The court examined the applicant’s request to annul Land Certificate no. 300200167 and granted it for the following reasons, as stated in its judgment of 27 September 2001.
67. Resolution no. 35, on the basis of which the Land Certificate had been issued, had been quashed.
68. According to the relevant legislation in force at the material time (the Law on the State Registration of Rights to Immovable Property and Decrees no. 1767 of 27 October 1993 and no. 112 of 25 January 1999 of the President of the Russian Federation), the correct legal document certifying an individual’s right to land was a registered “Land Title Certificate” (свидетельство о государственной регистрации прав на землю) and not a “Land Certificate” (государственный акт на землю).
69. The court further addressed the applicant’s argument that District Administration Resolution no. 167 of 14 July 1992 was null and void in that it had allotted the land to each of the six farmers in equal shares, allegedly in breach of the law. The court held that this issue had already been examined in the earlier proceedings, which had ended with the judgment of the Commercial Court of the Kursk Region of 21 April 1999, as upheld by higher courts, whereby the application to have Resolution no. 167 declared null and void had been dismissed. In accordance with Article 58 § 2 of the Code of Commercial Procedure and Decision no. 13 of the Plenary Supreme Commercial Court of 31 October 1996, the above judgment was binding, and the facts once established in a previously decided case were not subject to proof again in a case involving the same persons.
70. On 21 March 2002 the Federal Commercial Court of the Central Circuit quashed the decision of 27 September 2001 of the Commercial Court of the Kursk Region, whereby that court had terminated the proceedings with regard to the applicant’s claim in respect of Resolution no. 35.
71. During a fresh examination of this part of the case by the Commercial Court of the Kursk Region, the applicant specified his claims. He asserted that Resolution no. 35 violated the rights of Luch Farm and his rights as a founder of the farm by depriving the farm of its right of ownership to 30.9 hectares and its right of life-time inheritable possession to 315 hectares. Mr Zhigalev claimed that all this land should belong to him as head of the farm because he was the only person whose name had appeared on Land Certificates no. 30020006 and no. 300200006. In support of his claims the applicant referred to the unlawfulness of Resolutions no. 111 of 11 April 1992 and no. 167 of 14 July 1992, issued by the Head of the District Administration, to the lawfulness of Land Certificates no. 30020006 and no. 300200006, issued in his name, and to the fact that the District Administration had exceeded its authority when adopting Resolution no. 35 of 14 February 2000.
72. A representative of the defendant (that is, the District Administration) submitted that the contested Resolution no. 35 had merely followed the judgment of 21 April 1999 of the Commercial Court of the Kursk Region, as upheld by higher courts, whereby Land Certificates no. 30020006 and no. 300200006, issued in Mr Zhigalev’s name, had been declared null and void. Resolution no. 35 had then been reversed because it had been adopted erroneously. The defendant authority further submitted that the applicant now had no documents certifying his title to the land and that neither the District Administration nor the Land Committee had taken any measures to confiscate the land from Luch Farm, which could continue farming it.
73. The court pointed out that the judgment of the Commercial Court of the Kursk Region of 27 September 2001 had declared null and void Land Certificate no. 300200167, issued by the Land Committee pursuant to Resolution no. 35, because, in accordance with the legislation then in force, the correct legal document certifying rights to land was a Land Title Certificate, issued by a Department of the Ministry of Justice for the Registration of Rights to Immovable Property and Transactions with Immovable Property.
74. The court noted that the legal documents establishing the rights to the land in the present case were Resolutions no. 111 and no. 167 of 1992, issued by the Head of the District Administration. These Resolutions had been declared lawful by the final judgment of the Commercial Court of the Kursk Region of 21 April 1999, as upheld by higher courts. The applicant’s argument concerning the unlawfulness of the said Resolutions was therefore unfounded.
75. The court further noted that Land Certificates no. 30020006 and no. 300200006, which were the legal documents certifying the rights to the land, had been declared unlawful by the above-mentioned court judgment, which was final. The applicant’s contention about the lawfulness of these Land Certificates was thus also unfounded.
76. In so far as the applicant claimed that Resolution no. 35 infringed upon the rights of Luch Farm to the plots of land measuring 30.9 hectares and 315 hectares, the court found that neither the District Administration nor the Land Committee had taken any measures to confiscate the land from Luch Farm or any other actions which would prevent the farm from cultivating the land. This fact was not disputed by the applicant, who submitted to the court that the land had not been farmed for years because he had been involved in litigation.
77. The court found that Resolution no. 35 had no adverse effect on the land rights of Luch Farm. As to Mr Zhigalev’s rights, the court had previously given decisions in this respect which had binding effect, and commercial courts no longer had jurisdiction over such claims.
78. By a judgment of 10 June 2002 the Commercial Court of the Kursk Region therefore dismissed the applicant’s claims. The judgment was upheld by a decision of the Federal Commercial Court of the Central Circuit of 26 December 2002.
79. Luch Farm was involved in various other court proceedings during 19972005, including proceedings with regard to tax disputes. It was represented in court by Mr Zhigalev as head of the farm.
80. Resolution no. 111 of 14 April 1992 stated:
“HEAD OF THE BOLSHESOLDATSKIY DISTRICT ADMINISTRATION,
KURSK REGION
RESOLUTION
14 April 1992, no. 111
[the village of] Bolshoye Soldatskoye
‘On the allocation of a plot of land for the purpose of setting up Luch Farm’
Having examined the application from Mr V.A. Zhigalev concerning the allocation of a plot of land for the purpose of organising Luch Farm, and governed by the RSFSR “Farming Enterprise Act”, by the Resolution of the Presidium of the RSFSR Supreme Council and the RSFSR Council of Ministers of 15 March 1991 on additional measures to expedite land reform in the RSFSR, and by the RSFSR Land Code,
I hereby order:
1. that a plot of land with an overall area of 31 hectares, including 31 ha of arable land, be allocated free of charge as property [ownership] for the establishment of Luch Farm, from the territory of the former collective farm Kapustin (in accordance with the applications submitted to the administration of the Kapustin collective farm and on the basis of the decision by the collective farm’s administration on the withdrawal as members of the collective farm, with a share of land and a stock share, of Vladimir Alekseyevich Zhigalev, Aleksey Valentinovich Gerasimov, Sergey Viktorovich Kapustin, Nikolay Nikolayevich Belov, Vladimir Arkhipovich Davydov, Anatoliy Nikolayevich Kazyulkin and Aleksey Fedorovich Kapustin).
that a plot of land measuring 315 hectares in total, 315 hectares of which are to be arable land, is to be transferred from a special fund to Luch Farm on a five-year lease.
2. That Vladimir Alekseyevich Zhigalev be confirmed as head of Luch Farm, and that the following individuals be confirmed as partners in the farm:
1. A.V. Gerasimov
2. S.V. Kapustin
3. N.N. Belov
4. A.N. Kazyulkin
5. A.F. Kapustin
3. That the District Committee for Land Reform and Land Resources carry out landdevelopment work by 15 April 1992 in order to delimit the plot of land on site (on the terrain), and draw up a state certificate on the right to use the land [land certificate].
...
Head of the Administration [signed by] D. Shatalov”
81. Resolution no. 167 of 14 July 1992 stated as follows:
“HEAD OF THE BOLSHESOLDATSKIY DISTRICT ADMINISTRATION,
KURSK REGION
RESOLUTION
14 July 1992, no. 167
[the village of] Bolshoye Soldatskoye
‘On the amendment of resolution no. 111 of 14 April 1992 by of the Head of the administration”
On the basis of the application from Mr V.A. Zhigalev, as head of the farming enterprise ‘Luch’, concerning the allocation of 315 hectares of arable land in life-time inheritable possession,
I hereby order:
1. that clause no. 1 paragraph two of resolution no. 111 of 14 April 1992 by the Head of the administration “On the allocation of a plot of land for the purpose of setting up Luch Farm” be considered invalid and be [re]stated as follows:
‘That 315 hectares of arable land is to be transferred from a special land fund to Luch Farm in life-time inheritable possession, in the following shares:
1. V.A. Zhigalev 52.5 ha [hectares]
2. A.V. Gerasimov 52.5 ha [hectares]
3. S.V. Kapustin 52.5 ha [hectares]
4. N.N. Belov 52.5 ha [hectares]
5. A.A. Kazyulkin 52.5 ha [hectares]
6. A.F. Kapustin 52.5 ha [hectares]’
[signed by] S. Novosiltsev, First Deputy Head of the Administration, for the Head of the Administration”
82. The applicant submitted to the Court a copy of Land Certificate no. 30020006 which stated:
“STATE CERTIFICATE
on rights of ownership of land, life-time inheritable possession and (permanent) use of land without limit of time
no. 30020006
This state certificate is issued to the following owner, property-holder and/or user of the land:
Vladimir Alekseyevich Zhigalev, of the farming enterprise ‘Luch’, Kursk Region, Bolshesoldatskiy District, Izvekovo village,
by the Bolshesoldatskiy District Administration,
Confirming that, by Resolution no. 111 of 14 April 1992 of the Bolshesoldatskiy District Administration, the above mentioned owner, property-holder and/or user of the land is allocated in total 345.9 hectares of land, including 30.9 hectares as property [ownership], free of charge, and 315 hectares as a life-time inheritable possession, as indicated on the plan, in order to set up the farming enterprise ‘Luch’.
This State Certificate is drawn up in two copies: the first is issued to Vladimir Alekseyevich Zhigalev (the owner, property-holder and/or user of the land), the second is to be kept by the Bolshesoldatskiy District Administration.
The certificate is registered as no. 7 in the Register Book of State Certificates on property, possession and land-use rights.
[signed by] D.F. Shatalov, Head of the Bolshesoldatskiy District Administration
...
Quantitative description of land allocated as property, in ownership or for use:
V.A. Zhigalev (the owner, property-holder and/or user of the land)
(hectares)
[the Certificate is signed by] V.N. Kolkov, Chair of the Committee for Land Reform and Land Resources of the Bolshesoldatskiy District
...”
83. At the time that Luch Farm was founded, the establishment and activity of farming enterprises were regulated by the Federal “Farming Enterprise Act” (О крестьянском (фермерском) хозяйстве) no. 348-1 of 22 November 1990.
84. Under section 1 of the Act, a farm may be comprised of one individual, a family or a group of persons. The head of a farm is one of its capable partners. He or she represents the farm in dealings with enterprises, organisations, citizens and state organs.
85. Under section 5 of the Act, on the basis of an application from an individual wishing to set up a farm, a plot of land is transferred to him or her in use, in life-time inheritable possession or in ownership by a decision of the local authority. The number of partners in a farm is taken into account in determining the size of a plot of land to be allotted for setting it up.
Where a plot of land is transferred in ownership, a decision by the local authority serves as a basis for issuing a Land Certificate, which certifies the ownership of the land.
The land for setting up a farm is transferred in ownership free of charge within statutory norms, and is subject to payment in cases exceeding such norms.
86. Under section 6 of the Act, local, district and town authorities establish land funds for the purpose of organizing farms by, inter alia, taking land from collective farms on receipt of applications from individuals wishing to set up farms. Members of a collective farm are entitled to leave it, to receive a plot of land and to found their own farming enterprise. Their applications are examined by the collective farm’s administration then by the local district or town authority, which takes the final decision (section 8 of the Act).
87. Under section 14 of the Act, the property of a farming enterprise comprises plants, buildings, cattle, equipment and machinery, vehicles and other property necessary for carrying out its activity.
88. Under section 15 of the Act, the property of a farming enterprise belongs to its partners in common share ownership or in common joint ownership, if the latter course has been decided unanimously by those partners.
89. According to the Land Code of 1991, certain categories of land may only be owned as a “life-time inheritable possession” (право пожизненного наследуемого владения), which means that the land may be possessed, used and left to one’s successors, but may not be sold to anyone except the State.
90. According to Article 34 of the Code of Commercial Procedure of 1995, in force at the material time, two parties enjoy full and equal procedural rights in proceedings, namely the plaintiff and the defendant.
91. Under Article 38 of the Code, third parties with their own claims in respect of the subject-matter of a dispute may join the proceedings prior to the court’s delivery of a judgment. They enjoy practically all the procedural rights of a plaintiff.
92. Under Article 39 of the Code, third parties without their own claims in respect of the subject-matter of a dispute may join the proceedings on the side of the plaintiff or defendant prior to the court’s delivery of a judgment, provided that the judgment is liable to affect their rights or obligations towards one of the parties to the case. They enjoy the same procedural rights as a party to the proceedings, save for the rights to abandon a suit, to alter its ground or subject-matter, to increase or reduce the amount of a claim, to accept a suit, to conclude a friendly settlement agreement and to request the execution of a judgment.
93. According to Article 199 of the Civil Code, a limitation period is to be applied by a court only at the request of a party to a dispute, and the request must be made prior to delivery of a judgment. Where such a request is made, the expiry of a limitation period may serve as a ground for the court to dismiss an action.
94. Under Article 196 of the Civil Code, the general limitation period for civil claims is three years.
95. Under Article 181 of the Civil Code, an action seeking a remedy in the event of a void transaction may be brought within ten years of the date when the performance thereof commenced.
NON_VIOLATED_ARTICLES: 6
P1
NON_VIOLATED_PARAGRAPHS: 6-1
P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-96510
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: PYZEL AND OTHERS v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants, Ms Barbara Pyzel, Ms Natalia Pyzel, Mr Mieczysław Pyzel and Mr Zbigniew Pyzel, are Polish nationals who were born in 1968, 1929, 1956 and 1960 respectively and live in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are co-owners of property in Wilanów, which they inherited from their late father and grandfather F.P., who died in 1976.
On 13 December 1994 the Wilanów City Council (Rada Gminy Warszawa-Wilanów) adopted a general local development plan which stipulated, among other things, that an electricity supply line was to be constructed over the applicants’ property. For that reason there was a “reserve” of about 7,000 square metres created on several properties, including part of the applicants’ property.
In 2000 the Wilanów City Council announced that it was intending to adopt amendments to the existing land development plan.
On 4 January 2001 the applicants lodged an objection (zarzut) to the proposed amendments.
On 15 December 2001, by a resolution, the Wilanów City Council rejected the applicants’ objection.
On an unspecified date the applicants lodged a complaint against that resolution with the Supreme Administrative Court (Naczelny Sąd Administracyjny).
On 30 May 2003 the Supreme Administrative Court quashed the challenged resolution and declared it null and void.
In the meantime, on 27 June 2002, although the applicants’ complaint to the Supreme Administrative Court was still pending, the Wilanów City Council passed further amendments to the local development plan adopted in 1994 and excluded from the plan the plots of land owned by the applicants.
The applicants lodged a complaint against that resolution with the Supreme Administrative Court.
On 30 May 2003 the Supreme Administrative Court declared the resolution null and void in the part challenged by the applicants. The court found that adopting a local development plan with an exclusion of some properties situated on the line of the planned investment amounted to a violation of certain provisions of the 1994 Local Planning Act (ustawa o zagospodarowaniu przestrzennym).
Having obtained two Supreme Administrative Court judgments in their favour, on 22 September 2003 the applicants requested the President of Warsaw to present them with a schedule of measures to end the reserve.
On 20 November 2003 they received a letter from the Chief Architect of Warsaw (Naczelny Architekt Miasta) who informed them that, in spite of the judgments given by the Supreme Administrative Court, the reserve remained in force and that a procedure for withdrawal of the reserve might be instituted after the adoption of a new resolution outlining a study of the local development plan (studium uwarunkowan i kierunków zagospodarowania przestrzennego). The architect did not, however, specify any date or time-limit within which the planned study would be prepared.
On 31 December 2003 the local development plan of 1994 expired.
Between the years 2004 and 2006 the applicants sent numerous letters and complaints to various authorities, but these were ineffective.
On 26 June 2006 the applicants informed the Court that the Warsaw authorities had announced a draft of the study which did not contain a “reserve” for the electricity line.
On 8 February 1999 the applicants lodged a request with the Warsaw District Court (Sąd Rejonowy) for dissolution of the co-ownership of their property.
The proceedings were stayed on several occasions and the applicants lodged several requests for the exclusion of judges sitting in their case. Their requests were dismissed as ill-founded.
On 21 September 2004 the Warsaw District Court rejected the applicants’ request, finding that other proceedings for dissolution of coownership and division of property inherited from the late F.P., concerning the same property and instituted by the applicants had been pending since 1982. The applicants did not appeal against that decision.
On 4 October 2004 the Warsaw District Court resumed the proceedings referred to in its decision of 21 September 2004.
On 8 December 2005 the Warsaw District Court gave a preliminary decision in which it established the shares of particular heirs in the estate of the late F.P.
On 3 April 2007 the Warsaw District Court confirmed the distribution of the estate as set out in the preliminary decision of 8 December 2005.
The applicants did not appeal.
The relevant domestic law and practice concerning local development plans are set out in the Court’s judgments in the cases of Skibińscy v. Poland, no. 52589/99, § 28-39 and § 51-53, 14 November 2006, and Pietrzak v. Poland, no. 38185/02, § 31-40, 8 January 2008.


ITEMID: 001-118582
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF CĂŞUNEANU v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 5. The applicant was born in 1959 and lives in Oituz, Bacău.
6. At the relevant time the applicant was a businessman and the owner of company P. Among other activities, he held a number of contracts with the State for the rehabilitation of public roads.
7. On 10 December 2009 the Anti-Corruption Department (“DNA”) of the prosecutor’s office attached to the High Court of Cassation and Justice (“the prosecutor”) started criminal proceedings against the applicant on suspicion of trading in influence (cumpărare de influenţă). In particular, the prosecutor alleged that: (i) the applicant had asked a senator, C.V., to talk to judges of the High Court in order to influence the outcome of a case pending before that court which concerned a dispute between company P. and the State agency responsible for public roads; (ii) that C.V. had asked F.C., the then President of the Civil Section of the High Court, to convince the judges handling the case to decide it in favour of company P.; and (iii) that he had paid C.V. and F.C. money for their intervention.
8. On 21 December 2009 the applicant, with his lawyer, went to the prosecutor’s office. The prosecutor informed the applicant that on 10 December he had started criminal proceedings (urmărirea penală) against him and ordered him not to leave town for thirty days.
9. On 8 April 2010 the applicant was summoned to appear at the prosecutor’s office. At 12.45 p.m. the prosecutor informed him that he would be taken into custody for twenty-four hours and that the criminal trial against him had been set in motion (punerea în mişcare a acţiunii penale) by a decision of the prosecutor taken on the same day.
10. Following the arrest of the applicant and his co-accused, the prosecutor sought, on the same date, the High Court’s approval for their pretrial detention for twenty-nine days. The prosecutor presented the facts of the case as they appeared from the evidence gathered, including transcripts of telephone conversations between the defendants that had been intercepted during a surveillance operation. Upon the defendants’ request, the High Court, sitting in private as a single-judge bench, postponed the hearing to the next day in order to allow defence counsel to prepare their case.
11. On 9 April 2010 the High Court held a further hearing. The applicant and his co-accused gave statements to the court. During the hearing, at 12.45 p.m., the Court noted that the applicant’s detention had expired and released him. He nevertheless remained in the courtroom of his own free will.
12. The High Court approved the prosecutor’s request and ordered that the applicant be placed in pre-trial detention for twenty-nine days starting on 10 April 2010.
13. The applicant appealed and on 12 April 2010 the High Court, sitting as a nine-judge bench, quashed the decision given on 10 April and annulled the detention order.
At the request of defence counsel, the High Court prohibited journalists from taking photographs, filming or using any electronic devices during the court hearing.
14. On 10 May 2010 at the prosecutor’s office, the applicant acquainted himself with the prosecution file (prezentarea materialului de urmărire penală).
15. On 21 May 2010 the prosecutor committed the applicant and the other defendants to trial before the High Court of Cassation and Justice.
16. The case is currently under examination by the High Court of Cassation and Justice.
17. On 8 April 2010 the applicant was arrested at the DNA’s headquarters (see paragraph 9 above). Later that day, he was handcuffed to F.C., one of the co-accused, and taken out of the building through the main door with a view to his transfer to a police detention facility.
18. The applicant and the co-accused to whom he was handcuffed had to get into a police van through the back door, despite it being clear that they were encountering difficulties climbing in. They had to drag each other into the van while journalists were pressing close to them seeking statements. They were accompanied by police officers from the special intervention forces, who were wearing masks. Newspaper and television crews were present and the events were given widespread media coverage. Footage of the applicant’s arrest was broadcast live and shown again on the main channels’ evening news programmes.
19. On 22 October 2010 the Judges’ Association of Romania issued an official protest concerning the use of handcuffs on the High Court judge F.C., the co-accused. They argued that the measure had not been justified, had been abusive, contradicted the Convention’s standards in the matter, and represented a means of intimidating and discrediting the judiciary.
20. From December 2009 to April 2010 news reports about the criminal investigation and the prosecution, accompanied occasionally by images of the defendants wearing handcuffs, were given significant airtime.
21. When the applicant was transferred from the police detention facility for court hearings, he was taken to and from the High Court, as well as around the inside of the High Court building, in the following manner: the applicant was handcuffed to the co-accused F.C., surrounded by masked police officers, taken through the main doors and exposed to journalists for photographing and filming. The footage obtained by the journalists was broadcast afterwards.
22. From the beginning of the criminal prosecution against the applicant, numerous panel discussions were broadcast and journalists and politicians commented publicly on the events. Excerpts from conversations between the defendants which had been obtained through telephone tapping during a criminal surveillance operation conducted prior to the criminal prosecution made it into the newspapers before the applicant and his co-accused had been committed for trial. Those excerpts let believe that, on behalf of the applicant, senator C.V. and judge F.C. tried to manipulate some of the judges from the panels ruling in a commercial case involving the applicant, and reported back to him on the progress of those alleged manoeuvres; in the conversations among them, the senator, the judge and the applicant expressed in harsh words their disappointment that the outcome had not been favourable to the applicant, and made assumptions as to whether the remaining judges had been influenced by someone else.
Other pieces of evidence from the prosecution file were likewise published and commented on in the press.
23. The transcripts of telephone conversations intercepted during the surveillance operation first appeared in the press between 18 March and 22 March 2010.
24. The applicant was held in the Bucharest police detention facility from 8 April 2010 until the evening of 12 April 2010, when he was released.
25. He describes the conditions of his detention as follows: he was stripsearched when he arrived at the police detention facility, and was searched every time he was taken out of, or back to, his cell.
26. Throughout his detention he was held in cell no. 10P along with three other detainees. The cell measured 9 sq. m and had four bunk beds, a squat toilet and a sink. The pipes carrying water to the sink were broken, so there was water around the sink. On top of the toilet there was an improvised shower made out of a plastic barrel with a hose connecting it to the sink. Privacy was ensured by an oilcloth screen.
The cell had a window measuring 40 x 60 cm with iron bars over it. The cell looked onto the interior courtyard of the building. The window was the only source of fresh air, but the amount of air let through was insufficient to clear bad smells from the cell. The only furniture in the cell was a table made out of boxes. A fluorescent lamp above the bed was constantly switched on, which made it difficult to sleep in the cell.
27. The applicant and his fellow detainees were allowed twenty minutes of daily outdoor exercise, which took place in a small yard measuring 6 x 4 m, surrounded by a brick wall. The yard had a metal door and was covered with a wire net.
28. According to the information provided by the Government, the window in the applicant’s cell measured 1.2 x 0.8 m and the artificial light in the cell was switched on or off at the request of the inmates. Personal hygiene was ensured by free medication and medical check-ups on request. The amount of time allowed for daily outdoor exercise was one hour, but it was left to the detainees whether to take advantage of it or not.
29. On 23 March 2010 the co-accused F.C. lodged a criminal complaint against unknown persons for facilitating the publication of fragments from the prosecution file. He alleged a breach of professional secrecy (încălcarea secretului profesional) and abuse of office to the detriment of private persons’ interests (abuz în serviciu contra intereselor persoanei).
30. In a decision of 21 September 2010 the prosecutor’s office attached to the High Court of Cassation and Justice noted that the publication of the information from the prosecution file had occurred between 18 and 22 March 2010 and its source was the prosecutor’s report to the Senate concerning the placing in pre-trial detention of senator C.V., one of the coaccused (see paragraph 32 below). The prosecutor also observed that it was not possible to determine which institution was responsible for the leak, but that it was most likely at the Senate that the breach had occurred. The prosecutor noted that the report in question did not belong to the category of non-public acts, which only covered the actual documents from the prosecution file and did not extend to the related correspondence.
It therefore concluded that no criminal offence had occurred.
31. On 22 October 2010 the Superior Council of Magistracy (Consiliul Superior al Magistraturii – “the SCM”) began of its own initiative an internal inquiry into leaks to the press in several high-profile cases. The SCM also took account of an open letter addressed to it by the Judges’ Association and the Prosecutors’ Association whereby investigations were requested into how parts of prosecution files, in particular telephone interceptions, had been leaked to the press, with the result of pressure being put on the impartiality of judges. The SCM also had regard to a press release by the Alliance for the Rule of Law (Alianţa pentru Statul de Drept), which consisted of major non-governmental organisations specialising in the monitoring of the press in Romania, in connection with the above leaks to the press. The opinion expressed in the press release was that the publication of telephone conversations between private individuals was unlawful and breached the right to respect for their private life of the persons concerned.
The SCM limited its examination to three such cases – one of them being the present case – chosen because of their high profile and the media interest in them and because of the intense political debate they generated.
32. With regard to the present case, the SCM noted that the information leaked to the press was part of the prosecutor’s report to the Senate made with a view to obtaining Parliament’s approval for placing senator C.V., the applicant’s co-accused, in pre-trial detention.
The prosecutor’s request, dated 4 March 2010, had been sent to the Senate on 9 March 2010. Parliament had granted it on 24 March 2010 and its decision had been sent to the prosecutor’s office on 26 March 2010.
The articles in issue, which had appeared in the press on 18, 19 and 20 March 2010, gave the prosecutor’s report to the Senate as the source of the information.
33. The SCM examined the circuit of the prosecution file and concluded, on the basis of the evidence at its disposal, that the leak must have occurred while the case was before the Senate and that no judicial authority was responsible for the breach.
34. For these reasons, it decided to verify through which courts and prosecutor’s offices the file had circulated, to publish a press release concerning that inquiry, and to forward the resulting report to the associations concerned.
The decision was given on 16 December 2010. It was not published.
35. Articles 998 and 999 of the former Civil Code, applicable at the time of the facts of the present case, provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has intentionally or negligently caused it.
“Any act committed by a person which causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”
“Everyone shall be liable for damage he has caused not only through his own acts but also through his failure to act or his negligence.”
In order for the action to be admitted, the interested party must prove in court that the defendant committed an illicit act with responsibility under the civil law, that the claimant sustained damage, and that there is a causal link between the illicit act and the damage sustained.
36. According to Article 1000 of the former Civil Code, the responsibility of the employer for the acts committed by an employee in the exercise of his functions may be engaged if the plaintiff proves that an illicit act was committed by that employee and that he has suffered damage as a result.
37. The relevant provisions of Decree No. 31/1954 concerning remedies for persons claiming damage to their dignity or reputation (“Decree No. 31/1954”), which was applicable at that time, are set out in Rotaru v. Romania ([GC], no. 28341/95, § 29, ECHR 2000-V).
38. According to Article 250 of the Code of Criminal Procedure, the accused person may only acquaint him or herself with the prosecution file at the end of the criminal prosecution. It follows from the Articles regulating criminal investigation and prosecution that before that date, the content of the criminal file is not public.
39. The SCM (see paragraph 31 above) adopted best practice guidelines for the cooperation of courts and prosecutor’s offices with the media. The document was published on the SCM’s website and was communicated to all courts and prosecutor’s offices. Recommendation no. 5 § 4 of those guidelines reads as follows:
“Information released to journalists may not jeopardise the judicial proceedings, the principle of confidentiality or any other right recognised by domestic laws or by international treaties on fundamental rights to which Romania is a party.”
On the question of access to the file, recommendation no. 9 of the guidelines provides:
“(1) Journalists may not study the files during the criminal prosecution stage [în faza de urmărire penală], unless the law or the internal regulations allow for it.
(2) During court proceedings the files and the records concerning the court’s activities are public and may be consulted by any person who can justify a legitimate interest, and by journalists ... Exempted from this rule are ... files concerning ... proceedings for the confirmation and authorisation of telephone interceptions and the recordings thereof; [these files] may only be consulted by the prosecutor, the parties, and experts and interpreters appointed in the cases concerned.”
40. The internal regulations of the courts were adopted by the SCM on 22 September 2005 and first published in the Official Bulletin no. 958 of 28 October 2005. The relevant provisions on the publicity of case-files applicable at the time of the facts of the present case state as follows:
“(2) Files and records concerning a court’s activities are public and may be consulted by any person who can justify a legitimate interest ... requests made by journalists will be examined by the spokesperson ...
(6) Files concerning ... proceedings for the confirmation and authorisation of telephone interceptions and recordings may only be consulted by counsel, the parties, and experts and interpreters appointed in the relevant cases in accordance with the applicable regulations ...”
“(1) The court’s clerk will be present in the hearing room half an hour before the beginning of the court hearing, to enable the files to be consulted...”
41. The Government submitted to the Court several examples of domestic court decisions ordering journalists and public institutions to pay compensation for damage to reputation caused by press articles.
Among those decisions there are a few whereby the courts ordered public institutions to pay damages to private individuals who proved that they had been damaged by press releases issued by those institutions (notably Constanța police: final decision no. 212/C of 17 June 2009 of the Constanţa Court of Appeal, or the Anti-Corruption Prosecutor’s Office: decision no. 7560 of 30 September 2011 of the Bucharest District Court (not final)). They also ordered the Ministry of Public Finance to pay compensation to the claimants in a criminal case where the local prosecutor’s office had sent to the press for publication the prosecutor’s decision to prosecute and the request for detention pending trial, and by so doing, that authority had allowed the accused persons to be identified and had given information implying their criminal guilt before their conviction by a final court decision (decision no. 284/C of 15 November 2010 of the Constanţa Court of Appeal (not final)).
42. Extracts from the relevant Council of Europe texts on freedom of the press and protection of the right to private life are set out in Axel Springer AG v. Germany [GC], no. 39954/08, §§ 50-51, 7 February 2012.
43. The European Committee for the Prevention of Torture (“CPT”) visited a number of police detention facilities in Romania in 2010, including the one where the applicant was held. Its observations concerning the Bucharest police detention facilities were: that the living space available to detainees was 2,5-3.5 sq. m per person, which fell short of its requirements of 4 sq. m; that overcrowding remained a problem; that there was not enough natural light and fresh air; that the sanitary facilities, including the toilet, were not completely separated from the living space; that a significant number of cells were dirty and badly maintained; and that the detainees were not provided with the necessary products for maintaining personal hygiene. It also noted that the detainees were only allowed thirty to sixty minutes of daily outdoor exercise, and the exercise areas were small, austere and without any exercise equipment. It found there had been no significant improvement since its 2006 visit despite its recommendations following that visit. It therefore renewed its recommendations and requested that the State take action to improve the conditions of detention in those facilities in order to bring them into line with the applicable standards.
The CPT further noted that the judge responsible for examining actions lodged under Law no. 275/2006 (judecătorul delegat - “the delegate judge”) did not visit the police detention facilities on a regular basis.
VIOLATED_ARTICLES: 3
8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-57449
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1989
DOCNAME: CASE OF BROGAN AND OTHERS v. THE UNITED KINGDOM (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Non-pecuniary damage - finding of violation sufficient
JUDGES: C. Russo;J.A. Carrillo Salcedo;N. Valticos;B. Walsh
TEXT: 1. The case was brought before the Court on 15 July 1987 by the European Commission of Human Rights ("the Commission") and on 3 August 1987 by the Government of the United Kingdom of Great Britain and Northern Ireland ("the Government"). It originated in four applications (nos. 11209/84, 11234/84, 11266/84 and 11386/85) against the United Kingdom which had been lodged with the Commission, on 18 October 1984, 22 October 1984, 22 November 1984 and 8 February 1985 respectively, by four British citizens, Mr Terence Brogan, Mr Dermot Coyle, Mr William McFadden and Mr Michael Tracey.
As regards the facts of the case, reference is made to paragraphs 11 to 41 of the Court’s judgment of 29 November 1988 ("the principal judgment" - Series A no. 145-B, pp. 19-25).
2. In that judgment the Court held, inter alia:
(a) that there had been no violation of Article 5 § 1 (art. 5-1) of the Convention, the applicants’ detention having been based on a reasonable suspicion of commission of an offence and effected for the purpose of bringing them before the competent legal authority (paragraphs 49-54 of the reasons and point 1 of the operative provisions, pp. 28-30 and 37);
(b) that there had been a violation of Article 5 § 3 (art. 5-3) in respect of all four applicants, in that they had not been brought promptly before a judge or other officer authorised by law to exercise judicial power (paragraphs 55-62 of the reasons and point 2 of the operative provisions, pp. 30-34 and 37);
(c) that there had been no violation of Article 5 § 4 (art. 5-4), the applicants having been entitled to take proceedings of the nature required by this provision (paragraphs 63-65 of the reasons and point 3 of the operative provisions, pp. 34-35 and 37);
(d) that there had been a violation of Article 5 § 5 (art. 5-5) in respect of all four applicants, in that they had no enforceable claim for compensation before the domestic courts for the breach of Article 5 § 3 (art. 5-3) (paragraphs 66-67 of the reasons and point 4 of the operative provisions, pp. 35 and 37);
(e) that there was no call to examine the application of Article 50 (art. 50) in relation to reimbursement of any costs or expenses incurred, the applicants not having submitted any claim in this respect and this not being a matter which the Court had to examine of its own motion (paragraph 70 of the reasons and point 6 of the operative provisions, pp. 36 and 37).
3. In their memorial of 18 January 1988 the applicants had claimed, under Article 50 (art. 50) of the Convention, compensation for prejudice suffered. They contended that an award of exemplary damages would be appropriate and suggested, notably, that compensation should be calculated on the basis of approximately £2,000 for each hour of wrongful detention.
In the principal judgment the Court held that the question of the application of Article 50 (art. 50) in relation to this claim was not ready for decision; accordingly, it reserved the said question in that respect and invited the Government to submit their written comments within the next three months and, in particular, to notify the Court of any agreement reached between them and the applicants (paragraph 71 of the reasons and point 7 of the operative provisions, pp. 36 and 37).
4. In accordance with the foregoing invitation and the President’s directions, there were filed at the registry, on 24 February 1989, a memorial of the Government and, on 28 March 1989, observations of the applicants. These documents revealed that no agreement as aforesaid had been reached.
On 14 April the Delegate of the Commission lodged observations on the question of the application of Article 50 (art. 50) in the present case.
5. The Court decided on 25 April 1989 that there was no call to hold a hearing.