ITEMID: 001-109249
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF EDILOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1954. She resides in the village of Goyty, the Chechen Republic. The applicant is the mother of Mr Abdula Edilov, born in 1976.
6. At the time of the events described below Abdula Edilov resided with the applicant at 2, Nekrasova Street in the village of Goyty. According to the applicant, her son had participated in illegal armed groups during the first round of hostilities in the Chechen Republic, but was then amnestied and did not take part in the second round of hostilities which started in 1999.
7. The following account of the events is based on a written statement by the applicant dated 16 January 2007; a written statement by R.Z. dated 10 July 2006; a written statement by Z.D. dated 5 September 2006 and a written statement by L.D. dated 7 September 2006.
8. On 26 August 2001 the applicant agreed with Abdula Edilov that she would go to the local market and that he would join her there later. The applicant left for the market while Abdula Edilov stayed at home.
9. Between 5 and 6 p.m. on the same day a light coloured UAZ vehicle (“таблетка”) arrived at the applicant’s house. About ten armed men in camouflage uniforms and masks emerged from the vehicle. The applicant’s neighbours R.Z., Z.D. and L.D., who witnessed the arrival of the vehicle, inferred that those men were servicemen. Two servicemen stayed by the UAZ vehicle and the others rushed inside the applicant’s house. Shortly thereafter the servicemen came outside, leading Abdula Edilov with them. He was wearing a T-shirt, black trousers and house slippers and was holding his hands behind his back. The servicemen threw the applicant’s son inside the UAZ vehicle and drove in the direction of the checkpoint manned by Russian federal forces located on the bridge over the Argun River, on the eastern outskirts of Goyty. At the checkpoint the vehicle stopped for a while and then took the motorway in the direction of Grozny. According to Z.D., the windows in the UAZ vehicle were not blacked out and when it drove away from the checkpoint there were only three to four servicemen in it. Z.D. inferred from that that several servicemen must have stayed at the checkpoint. Z.D., R.Z. and L.D. could clearly see the route taken by the UAZ vehicle because the motorway leading to Grozny was separated from Nekrasova Street only by the Argunskiy canal.
10. The applicant learnt about the abduction shortly after it had occurred. She immediately returned home and realised that her house had been searched because everything had been turned upside down.
11. The applicant then went to the checkpoint of the federal forces located at the bridge over the Argun River. According to her, the checkpoint was guarded by servicemen from the Special Forces unit of the Ministry of the Interior (“the OMON”). She told them that her son had been apprehended and that his abductors had passed through the checkpoint. The servicemen replied that their commander was absent and that her son would come back “three days later if he was innocent” or “three months later if he was guilty”.
12. On 26 August 2001 the applicant complained in person about the abduction of her son to the local police. A police officer named “Yusup” advised her to complain about the apprehension of Abdula Edilov to various authorities and promised her that he would search for her son and find out who had arrested him and for what reason.
13. On 27 August 2001 the applicant stayed at home in case the authorities came to question her about the circumstances of the abduction of her son, whilst her sister Z.Ts. went to Grozny to complain about his abduction to various State authorities.
14. According to a written statement by Z.Ts. dated 1 February 2010, on 29 or 30 August 2001 Z.Ts. and her husband heard over the radio that “Abdula Muslanovich Edilov” had been arrested on suspicion of having committed a terrorist attack in the Urus-Martanovskiy District of Chechnya and two days later she saw the same information on the federal news, accompanied by video footage of a man being led by two servicemen. The video being very short, Z.Ts. was unable to discern whether the man was Abdula Edilov, but she clearly heard his name being pronounced by the newsreader.
15. On an unspecified date in autumn 2001 the applicant learnt from a certain Mr R. that her son was allegedly being held at the military base in Khankala and in the winter of 2002 a certain Ms T. told the applicant’s daughter-in-law that Abdula Edilov was being held at the Operational and Search Bureau no. 2 (“the ORB-2”) in Grozny. The applicant went to Grozny to meet the head of the ORB-2, but the latter denied having detained her son.
16. In 2005 an officer of a prison located in Khasavyurt, in the Dagestan Republic, allegedly recognised Abdula Edilov in a picture shown to him by the applicant and told her that her son had been detained in that prison two to three years before and that he had then been taken away by officers of the Federal Security Service (“the FSB”).
17. The Government stated that at about 5 p.m. on 26 August 2001 a group of armed men in camouflage uniforms and masks, driving a UAZ vehicle, had abducted Abdula Edilov from his home in Goyty, the Chechen Republic, and had taken him to an unknown destination.
18. By a letter of 16 September 2001 the prosecutor’s office of the Chechen Republic (“the republican prosecutor’s office”) forwarded the complaint about the abduction of Abdula Edilov to the prosecutor’s office of the Urus-Martanovskiy District (“the district prosecutor’s office”) and instructed the latter authority to verify her submissions and to take the necessary measures.
19. On 27 September 2001 the acting prosecutor of the UrusMartanovskiy District forwarded the complaint about the abduction of Abdula Edilov to the head of the Temporary Department of the Ministry of the Interior of the Urus-Martanovskiy District (“the VOVD”) and instructed the latter body to institute a criminal investigation and to take initial investigative steps, should there be grounds to do so.
20. On 4 December 2001 the VOVD launched a criminal investigation into the abduction of Abdula Edilov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was assigned the number 25482.
21. On 15 December 2001 the applicant was granted victim status in the proceedings in case no. 25482.
22. On 10 July 2002 the republican prosecutor’s office replied to the applicant that it had examined her application for assistance in the search for her son and had studied case file no.25482. On 14 January 2002 the investigation of the case had been entrusted to the district prosecutor’s office which, on an unspecified date, had decided to suspend it owing to the failure to identify the perpetrators. However, that decision had been set aside as premature and unfounded and the district prosecutor’s office had been instructed to take unspecified additional investigative steps aimed at identifying those responsible and locating the applicant’s son.
23. By a letter of 22 July 2002 the republican prosecutor’s office replied to the applicant’s repeated requests for information, specifying that the investigation in case no.25482 had been suspended on 4 February 2002 because of the failure to identify those responsible for the abduction. The applicant was further informed that on 10 July 2002 the investigation had been resumed and that the district prosecutor’s office would inform her about any further developments.
24. On 23 July 2003 the military prosecutor’s office of the United Group Alignment (“the UGA military prosecutor’s office”) forwarded the applicant’s complaint about the abduction of Abdula Edilov to the military prosecutor of military base no. 20102 and instructed the latter body to examine it and to inform the applicant of any decisions taken. By a letter of 5 September 2003 the military prosecutor’s office of military base no. 20102 transmitted the applicant’s complaint to the military commander of the Urus-Martanovskiy District for examination.
25. On 16 January 2004 the applicant wrote to the district prosecutor’s office. She described in detail the apprehension of her son and submitted that she had immediately alerted all the relevant State bodies to his abduction. She stressed that the abductors had passed through the checkpoint of the federal forces unhindered and had freely moved around in broad daylight. She pointed out that the district prosecutor’s office had not apprised her of any developments in the investigation and requested to be updated in writing.
26. On 19 January 2004 the district prosecutor’s office replied to the applicant that criminal case no. 25482 had been opened on 4 December 2001 and that on 3 April 2003 the investigation had been suspended owing to the failure to identify the culprits.
27. On 8 April 2004 the applicant wrote to the military commander of the Urus-Martanovskiy District. She described the circumstances of her son’s abduction by armed men in camouflage uniforms, who had arrived in a light-coloured UAZ vehicle without licence plates, and sought assistance in establishing his whereabouts. On 26 April 2004 she wrote a letter along the same lines to the district prosecutor’s office.
28. On 27 April 2004 the district prosecutor’s office replied to the applicant that on 3 April 2003 the investigation had been suspended but that at the same time the VOVD had been instructed to activate the search for those responsible for the abduction of Abdula Edilov.
29. By a letter of 18 June 2004 the district prosecutor’s office informed the applicant that on 18 June 2004 it had resumed the investigation in case no. 25482.
30. On 2 April 2005 the applicant wrote to the military prosecutor and the prosecutor of the Chechen Republic, describing in detail the circumstances of the abduction of her son and stressing that his abductors had passed through the checkpoint of the federal forces unhindered and that her relatives had heard on the Chechen State radio and television that Russian servicemen had arrested Abdula Edilov on suspicion of having committed terrorist attacks and had seen footage of him in a TV reportage. She also stated that the description of Abdula Edilov’s clothes by the relative who had seen him on TV fully corresponded to the clothes he had been wearing at the time of his abduction. Lastly, the applicant stressed that she had passed on that information in all her applications to State bodies but they had disregarded it.
31. On 13 May 2005 the district prosecutor’s office replied to the applicant’s query and informed her that on 10 July 2004 the investigation in case no. 25482 had been suspended owing to the failure to identify those responsible for the abduction of her son. At the same time operational and search measures aimed at establishing Abdula Edilov’s whereabouts and identifying his abductors were under way.
32. On 1 June 2005 the district prosecutor’s office wrote to the applicant that on the same date the investigation in case no. 25482 had been resumed.
33. On 7 February 2006 the applicant complained to the district prosecutor’s office about the procrastination of the investigation into the abduction of her son and the lack of any information on its progress. She reiterated all the circumstances of the abduction of Abdula Edilov and sought permission to have access to the case file and to make copies from it. She also requested that the investigation be resumed if it had previously been suspended.
34. On 11 February and 2 April 2006 the district prosecutor’s office replied to the applicant that the investigators had taken all steps which could have been taken in the absence of persons to be charged with the abduction of her son and that they had found no grounds to resume the investigation. The letter further stated that the applicant would be entitled to have access to the case file once the investigation had been completed.
35. On 25 March 2006 the district prosecutor’s office replied to the applicant’s query that operational and search measures aimed at establishing the whereabouts of her son were under way.
36. The Government submitted that they had provided a copy of the entire criminal file no. 25482. Some of the documents furnished by them were partly illegible; most of the documents bore double numbering. The information contained in the documents submitted can be summarised as follows:
37. On 8 September 2001 the Grozny town prosecutor’s office received a complaint by Z.T. about the abduction of Abdula Edilov. The complaint bore a handwritten note dated 13 September 2001 and reading “to be transferred to the prosecutor’s office of the Urus-Martanovskiy District”.
38. On 13 September 2001 the republican prosecutor’s office received a further complaint about Abdula Edilov’s abduction, dated 12 September 2001.
39. By a letter of 28 November 2001 the Urus-Martanovskiy Department of the Interior (“the ROVD”) returned to the VOVD the materials concerning the abduction of Abdula Edilov, submitting that on 18 and 27 September 2001 the district prosecutor’s office had instructed the latter authority to examine those materials and to decide on whether a criminal investigation should be launched. However, on 1 October 2001 the VOVD had simply sent those materials to the ROVD, without taking a formal decision on the matter.
40. On 4 December 2001 the VOVD opened a criminal investigation into the abduction of Abdula Edilov under Article 126 § 2 (aggravated kidnapping). The case file was given the number 25482.
41. On 21 December 2001 the VOVD transferred criminal file no. 25482 to the district prosecutor’s office for investigation and on 14 January 2002 the latter authority took charge of the investigation.
42. In their written explanations (“объяснение”) to the ROVD of 29 September 2001, Z.S. and L.D. stated that between 5 and 6 p.m. on 26 August 2001, in broad daylight, a group of ten to twelve armed persons wearing camouflage uniforms and masks had arrived at the applicant’s house in a light-coloured UAZ vehicle (“таблетка”). Two of the armed men had stayed in the car while others had gone inside the house. They had taken Abdula Edilov, who was handcuffed, outside, loaded him into their vehicle and left through the checkpoint, guarded by OMON officers from St.Petersburg, in the direction of Grozny.
43. In her written explanation of 29 September 2001 the applicant submitted that she had learnt about the abduction of her son by armed masked men wearing camouflage uniforms and driving a UAZ vehicle from the neighbours on 26 August 2001.
44. On 15 December 2001 the VOVD granted the first applicant victim status and interviewed her. She submitted that on 26 August 2001 she had gone to the market, where Abdula Edilov had been supposed to join her. However, after 5 p.m. a neighbour had come and told her that her son had been abducted by armed men in camouflage uniforms driving a UAZ vehicle. After she had returned home she had found everything turned upside down. She also stated that Abdula Edilov had owed a certain sum of money to a certain T., with whom he had been involved in a traffic accident, and that her son had had no enemies.
45. When re-interviewed as a witness on 15 December 2001, Z.S. confirmed her previous account of the events. M.D., a resident of Goyty interviewed on the same date, recounted the same circumstances concerning the abduction of Abdula Edilov.
46. Re-interviewed on 21 June 2004, the applicant confirmed her earlier accounts of the events concerning the abduction of Abdula Edilov and Z.D., questioned on 22 June 2004, gave a similar version of the events.
47. On 22 June 2004 the investigators questioned Z.T. as a witness. She stated that between 5 and 6 p.m. on 26 August 2001 she had learnt from the applicant about the abduction of Abdula Edilov. Together they had gone to the applicant’s house, where everything had been turned upside down. The eyewitnesses had told them that armed persons wearing masks and camouflage uniforms and driving a UAZ vehicle without licence plates had searched the house, loaded Abdula Edilov into their car and had left in the direction of Grozny after having passed through the checkpoint located at the exit from Goyty. After a while there had been rumours that the applicant’s son was detained in the 6th department of the Main Intelligence Service but Z.T. herself was not aware of the source of those rumours.
48. On 15 July 2004 the investigators interviewed A.T. as a witness. He submitted that in September 2000 in the village of Goyty he had been involved in a car accident with a man he had not met before. The other man had recognised that he had been at fault and had offered to repair A.T.’s vehicle, but had failed to do so, and A.T. had had to repair it himself. Four to five months after the accident A.T. had heard that the other man had been abducted and had disappeared.
49. L.D., re-interviewed as a witness on 22 July 2004, confirmed her earlier account of the events and R.Z., questioned on 23 July 2004, gave a similar account of the circumstances of the abduction of the applicant’s son.
50. On 23 June 2005 the investigators re-interviewed the applicant. She stated, among other things, that her relative Z. had seen a news report showing footage of Abdula Edilov. In the applicant’s submission, in 2005 she had gone to a prison in Khasavyurt and a prison guard to whom she had shown her son’s picture had allegedly recognised him and told her that he had seen Abdula Edilov in prison two to three years before.
51. On 27 and 28 April 2006 the investigators interviewed the applicant’s neighbours R.I. and Z.P.T. as witnesses. They stated that they had learnt about the abduction of the applicant’s son from the neighbours and that they had never told the applicant that Abdula Edilov had been detained by the Department for the Fight against Organised Crime (“the RUBOP”).
52. On 17 January 2002 the district prosecutor’s office requested the VOVD and the ROVD to inform it as to whether Abdula Edilov was or had been held in those authorities’ detention facilities.
53. Between 3 and 20 March 2003 the district prosecutor’s office requested a number of State authorities, including the Department of the Federal Security Service in the Chechen Republic (“the Chechen Department of the FSB”), to inform it whether they had information on the whereabouts of Abdula Edilov and whether he had participated in illegal armed groups and had been criminally prosecuted or detained by those State bodies. In reply, the State authorities informed the district prosecutor’s office that they had not arrested Abdula Edilov and had no information on his whereabouts.
54. By a letter of 9 March 2003 the Chechen Department of the FSB informed the district prosecutor’s office that they had not arrested Abdula Edilov and that, should they obtain information on his whereabouts, they would inform the latter authority accordingly.
55. On 5 May 2005 the deputy prosecutor of the district prosecutor’s office instructed the investigators in case no. 25482 to carry out a crime scene inspection, identify and question the servicemen who had been on duty at the checkpoint on the day of the applicant’s son’s abduction, verify information to the effect that Chechen TV and radio channels had disseminated information on Abdula Edilov’s arrest, identify and interview further witnesses to his abduction and take further investigative steps.
56. On 15 June 2005 the investigators requested the Chechen State TV and Radio Company to inform them whether they had disseminated information on Abdula Edilov’s arrest by security forces on suspicion of terrorist activities. On the same date they instructed ROVD officers to take the investigative steps mentioned in the letter of 5 May 2005.
57. According to the ROVD report of 15 July 2005, VOVD officers orally interviewed unspecified residents of Goyty and were unable to identify further witnesses to the abduction.
58. By their report of 17 July 2005 the ROVD informed the district prosecutor’s office that it was unable to identify the servicemen of the checkpoint on duty on the day of Abdula Edilov’s abduction “because the servicemen worked in half-hour shifts”.
59. On 29 and 30 March 2006 the district prosecutor’s office requested a number of law-enforcement authorities, including the Grozny Department of the Federal Security Service, to inform it as to whether they had information on the whereabouts of Abdula Edilov, whether they had arrested him or had any “compromising material” (“компрометирующий материал”) concerning him.
60. On 25 and 26 April 2006 the district prosecutor’s office requested a number of hospitals in the Chechen Republic to inform it as to whether Abdula Edilov had applied to them for medical assistance. It follows from the relevant replies that he had not done so.
61. On 26 April 2006 the Grozny Department of the Federal Security Service informed the district prosecutor’s office that operational and search measures carried out by the Chechen Department of the FSB had not enabled the abductors of Abdula Edilov to be identified.
62. On 10 May 2006 the State TV and Radio Company “Vaynakh” informed the district prosecutor’s office that they had not disseminated any information concerning the abduction of Abdula Edilov in 2002 by unidentified persons.
63. Between 25 July and 10 August 2006 the district prosecutor’s office reiterated its requests to a number of law-enforcement authorities and medical institutions for information on Abdula Edilov’s whereabouts. In reply, those authorities submitted that they had no relevant information concerning the applicant’s son.
64. On 4 February 2002 the district prosecutor’s office suspended the investigation into the abduction of Abdula Edilov owing to the failure to identify the perpetrators. It transpires that on 10 July 2002 that decision was set aside by higher-ranking prosecutors; the Government failed to furnish a copy of the related decisions.
65. Subsequently, the district prosecutor’s office suspended the investigation in case no. 25482 for failure to identify those responsible for the abduction on the following dates: 3 April 2003, 18 July 2004, 1 July 2005, 28 April 2006 and 14 August 2006.
66. The documents submitted by the Government show that higher-ranking prosecutors set aside the decisions to suspend the investigation on the following dates: 18 June 2004, 1 June 2005, 28 March 2006 and 14 July 2006.
67. In setting aside the decisions to suspend the investigation, the higher-ranking prosecutors indicated that their examination of the case file had revealed that the district prosecutor’s office had conducted the investigation in a superficial manner and in breach of the relevant legislation, referring, among other things, to the fact that the investigators had failed to identify and interview the servicemen who had been on duty at the checkpoint through which the abductors had passed with Abdula Edilov; to identify all eyewitnesses to the abduction; to identify and question the persons with whom Abdula Edilov had been in contact and who could have information on the reasons for his abduction; to check the unidentified victims database and to verify the applicant’s and Z.T.’s submissions that Abdula Edilov may have been detained at the RUBOP and that Chechen TV and radio channels had disseminated information concerning his arrest. In that connection, on 18 June 2004, 5 May 2005 and 4 July 2006 higher-ranking prosecutors specifically issued “written instructions” (“письменные указания”), requesting that the district prosecutor’s office take the investigative steps in question.
68. On an unspecified date the investigation in case no. 25482 was entrusted to the investigating department of the Investigating Committee with the Prosecutor’s Office of the Russian Federation in the Chechen Republic (“the investigating department”).
69. On 2 November 2009 the deputy head of the investigating department issued “written instructions” concerning case no. 25482. The document stated, in particular, that the investigating department was to resume the investigation into the abduction of Abdula Edilov without delay and to carry out, among others, the following investigative steps:
- identify and interview the servicemen on duty at the checkpoint on 26 August 2001;
- add to the case file information from registration logbooks concerning vehicles which passed through the checkpoint on 26 August 2001;
- identify the detachments of security forces stationed at the material time in the Urus-Martanovskiy District and in the vicinity of the village of Goyty and obtain information on the special operations carried out by them;
- carry out a crime-scene inspection and compile a detailed sketch showing the location of the applicant’s house and the checkpoint of the federal forces;
- re-interview witnesses to the abduction in detail on the events of 26 August 2001, and;
- interview the applicant on the source of her information concerning her son’s alleged detention in the SIZO in Khasavyurt.
70. In the Government’s submission, the investigation of the disappearance of Abdula Edilov is ongoing.
71. On 1 May 2006 the applicant complained to the Urus-Martanovskiy District Court (“the District Court”) about the ineffectiveness of the investigation into the abduction of her son and the investigator’s refusal to grant her access to the case file and to allow her to make copies from it. In particular, she submitted that the circumstances of Abdula Edilov’s abduction left no doubt that he had been apprehended by servicemen of the Russian military forces. However, the investigating authorities had not only delayed the investigation but also refused to provide her access to the case file. The applicant averred that the lack of information about the investigation prevented her from effectively challenging the decisions to suspend the investigation.
72. On 6 July 2006 the District Court found partly for the applicant. It found that the investigator’s refusal to provide her with access to the case file was unlawful. The court noted at the same time that the applicant would only be entitled to make copies from the case file after the completion of the investigation. As regards the request for the investigation to be resumed, the court found that the investigators had questioned several witnesses and obtained information on Abdula Edilov’s eventual arrest and detention from a number of law-enforcement authorities, including the FSB department in the Urus-Martanovskiy District. The investigation had not established who was responsible for the abduction of Abdula Edilov and it had been suspended on numerous occasions on that ground, the latest such decision being dated 28 April 2006. The court stressed, however, that the investigation had not taken all possible steps to establish Abdula Edilov’s whereabouts and identify his abductors. In particular, the investigators had failed to identify and question the officers of the federal forces who had been on duty at the checkpoint over the Argunskiy canal on the eastern outskirts of Goyty in August 2001. The court thus granted the applicant’s request and ordered that the investigation be resumed.
73. By a letter of 14 July 2006 the district prosecutor’s office informed the applicant that it had resumed the investigation in case no. 25482.
74. On 14 August 2006 the district prosecutor’s office suspended the investigation.
75. On 16 August 2006 the Supreme Court of the Chechen Republic rejected the applicant’s appeal against the decision of 6 July 2006.
76. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
77. On 1 September 2001 the FSB of Russia published on its official site www.fsb.ru, in the section covering data obtained from its regional departments, the following information:
“During the last 15 days more than 70 insurgents have been liquidated and wounded, dozens captured in Chechnya
01.09.2001
Moscow. 1 September. INTERFAX
In the course of the special operations of the federal military and security forces in Chechnya [conducted] during the last two weeks insurgents have lost more than 70 men [who have been] killed and wounded, dozens [of them] have been arrested with a view to establishing their involvement in illegal armed groups and in carrying out terrorist acts. In particular, according to the information of the Department of the Federal Security Service in the Chechen Republic, between 15 and 30 August the majority of the special operations were conducted in the settlements of the Vedenskiy and Kurchaloyevskiy Districts (Alleroy, Tsotsin-Yurt, Kurchaloy, Vedeno, Ersenoy, Pervomayskoye) and also in Argun, Shatoy and other villages.
...
During the same period of time a number of persons suspected of having committed terrorist acts in the Chechen Republic were arrested ... Abdul Edilov, suspected of having carried out subversive acts against the federal forces in the Urus-Martanovskiy District, was arrested in the village of Goyty ...”
VIOLATED_ARTICLES: 13
2
3
5
VIOLATED_PARAGRAPHS: 2-1
5-1


ITEMID: 001-58236
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF MALIGE v. FRANCE
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
JUDGES: R. Pekkanen
TEXT: 6. Mr Jérôme Malige is a French national who was born in 1974 and lives in Morangis (département of Essonne).
7. On 28 June 1993 at 4.25 p.m. he was travelling by motor bicycle along a trunk road near Millemont when the police recorded his speed as 172 kph on a stretch of road where a 110 kph limit was in force.
8. Such conduct contravenes Article R. 10 2-2 of the Road Traffic Code, which sets a speed limit of 110 kph for dual carriageways with a central reservation, Article R. 232 1-2, which provides that exceeding the limit by over 30 kph is punishable by the fines prescribed for class 4 offences, and Article R. 266-4, which provides that where the speed limit has been exceeded by more than 30 kph the offender may be temporarily disqualified from driving (see paragraph 21 below).
9. The applicant refused to pay the fine imposed and on 22 September 1993 elected to stand trial. On 15 October 1993 he was summoned to appear in the Versailles Police Court.
10. In the Police Court the applicant argued firstly that in law the evidence adduced by the police or gendarmerie was not capable of establishing the offence, given the inaccuracy of the readings taken from the speed-recording device they had used for that purpose. In addition, he contested the lawfulness of Decrees nos. 92-1228 of 23 November 1992 and 92-559 of 25 June 1992 implementing a points system for driving licences and the applicability of Law no. 89-469 of 10 July 1989 introducing a points system for driving licences (see paragraph 18 below).
11. In a judgment of 26 November 1993 the Police Court found Mr Malige guilty of the offence of exceeding the speed limit by at least 30 kph. It fined him 1,500 francs and disqualified him from driving for fifteen days pursuant to Articles R. 10 2-2, R. 232 1-2 and R. 266 of the Road Traffic Code (see paragraph 21 below).
On the question of the decrees implementing the points system for driving licences, the Police Court held that criminal courts had jurisdiction to determine the lawfulness of administrative regulatory measures only in so far as such measures were the basis of a prosecution or carried a criminal sanction. Moreover, it followed from Article L. 11-4 of the Road Traffic Code, according to which Articles 55-1 of the Criminal Code and 799 of the Code of Criminal Procedure did not apply to the deduction of driving licence points, that the deduction of such points was not a secondary criminal sanction triggered by a conviction, with the result that its legal basis fell outside the jurisdiction of the criminal courts.
12. Mr Malige appealed to the Versailles Court of Appeal contending that the Law of 10 July 1989 was incompatible with Article 6 § 1 of the Convention in so far as sections 11 and 14 of that Law excluded any possibility of judicial review of a measure which was recorded on the national register of driving licences and which restricted rights and deprived the person concerned of the freedom of movement. He also alleged that the above-mentioned decrees on the points system for driving licences and Decree no. 92-1227 of 23 November 1992 concerning the penalties for exceeding the speed limits were unlawful, and asked the Court of Appeal to acquit him.
13. In a judgment of 24 June 1994 the Versailles Court of Appeal upheld the impugned judgment. It found in the first place that the deduction of driving licence points did not interfere with the freedom of movement as imprisonment, residence restrictions or exclusion from French territory would have done. In addition the court held:
“… the loss of points is not a criminal sanction as it does not have the requisite features, nor is it a secondary criminal sanction triggered by a criminal conviction.
As it has the character of a sanction on account of one of its features (the punitive element) the loss of points must be regarded in terms of current positive law as an administrative sanction.
…
There is no doubt that disputes may arise as to the number of points lost or their restitution before or after a further loss for instance.
It must be possible to submit the administrative sanction for review to an impartial and independent tribunal which gives its decision in public.
However, as the law stands, that tribunal cannot be the criminal court; the question of the conformity of Law no. 89-469 with a superior law falls outside the jurisdiction of the criminal courts.”
The Court of Appeal also dismissed the arguments based on the unlawfulness of Decrees nos. 92-1227 and 92-1228 of 23 November 1992.
14. The applicant lodged an appeal on points of law, arguing in particular that the Law of 10 July 1989 and the Decrees of 25 June and 23 November 1992 implementing the deduction of points by administrative measure were contrary to Article 6 § 1 of the Convention. He also pleaded the unlawfulness of the Decree of 23 November 1992 penalising speeding and the unreliability of the speed-recording device.
15. In a judgment of 11 January 1995 the Criminal Division of the Court of Cassation dismissed the appeal. It held as follows:
“The Court of Appeal was entitled to dismiss the objections properly raised in the proceedings before it and based on the alleged incompatibility of the Law of 10 July 1989 introducing the system of points for driving licences with Article 6 § 1 of the European Convention and the unlawfulness of the decrees of 25 June and 23 November 1992 implementing the deduction of points by administrative measure.
It follows from Article L. 11-4 of the Road Traffic Code, according to which Articles 55-1 of the Criminal Code and 799 of the Code of Criminal Procedure, as then in force, do not apply to the docking of driving licence points, that the latter measure does not have the character of a secondary criminal sanction triggered by a criminal conviction and that accordingly neither its alleged incompatibility with the Convention provision relied on nor its legal basis fall within the jurisdiction of the criminal courts.
In addition, the outcome of a prosecution for a speeding offence, as in the present case, does not depend, within the meaning of Article 111-5 of the Criminal Code which entered into force on 1 March 1994, on examination of the provisions implementing the deduction of points…”
16. To date, Mr Malige has not been notified of the docking of any points.
17. The system of points for driving licences was introduced by Law no. 89-469 of 10 July 1989, which came into force on 1 July 1992. This system was supplemented by Law no. 90-1131 of 19 December 1990, which made provision for automatic processing of points deductions. Responsibility for management of the data was assigned to the Ministry of the Interior. The implementing decrees were promulgated on 25 June and 23 November 1992. Ruling on applications to have these decrees declared void as ultra vires, the Conseil d’Etat found them to be lawful.
18. Under these provisions taken as a whole, each driving licence has an initial allocation of twelve points. Points are then automatically docked if the licence-holder commits one of the offences listed in Article L. 11-1 of the Road Traffic Code, this being established by the payment of a standard fine or by a conviction which has become final.
19. The facts constituting the offence are assessed within the unfettered discretion of the criminal court, which establishes them and classifies them before imposing the appropriate criminal penalty. On the basis of the facts established by the criminal court, the administrative authority, here the Minister of the Interior, takes the decision to dock points from the offender’s driving licence, a decision which is given formal effect by a letter sent to the offender pursuant to Article R. 258 of the Road Traffic Code.
20. According to the established case-law of the Court of Cassation (judgments of 6 July 1993, and 4 and 12 May 1994) and of the Conseil d’Etat (judgment of 8 December 1995: Motorists’ Defence Movement), the docking of points does not have the character of a secondary criminal sanction triggered by a conviction, but of a purely administrative measure.
21. The relevant provisions are as follows:
“The prison sentences and fines applicable to class 4 offences shall be imposed on any driver contravening the provisions of Book 1 concerning:
...
2. the speed of motor vehicles, whether or not pulling a trailer:
…
– where the recorded speed exceeds the speed limit by 30 kph or more.”
“Any driver of a motor vehicle, whether or not pulling a trailer, shall be punishable by the fine applicable to class 4 offences, where the speed of the vehicle is found to exceed the speed limit by more than 30 kph.”
“Any breach of the Articles of this Code listed below may result in the person concerned being temporarily disqualified from driving where the nature of such breach corresponds to the short description given at the beginning of each Article:
…
4. Articles R. 10 to R. 10-4: exceeding the speed limit by 30 kph or more...”
“A number of points shall be allocated to every licence to drive a motor vehicle. One or more of these points shall be automatically docked if the licence-holder commits one of the offences defined in Article L. 11-1. When the number of points reaches nil, the licence shall become invalid.”
“One or more points shall be automatically docked from a driving licence if one of the following offences is established:
(a) offences defined in Articles L. 1 to L. 4, L. 7, L. 9 and L. 19 of the Road Traffic Code;
(b) offences of unintentional homicide or causing injury while driving a vehicle; and
(c) minor road traffic offences, exhaustively listed, likely to endanger the safety of others.
These offences shall be established by means of either the payment of a fixed fine or a final conviction.
The offender shall be duly informed that the payment of the fine constitutes an admission of the offence, and thus entails a number of points being docked from his licence.”
“Where one of the major offences (délits) referred to in Article L. 11-1 has been established, half the original number of points shall be docked.
In the case of the minor offences (contraventions), no more than one-third of the original number of points shall be docked.
...”
“Persons committing one of the offences referred to in Article L. 111 may not be exempted from the docking of points from their driving licence by the application of Article 55-1 of the Criminal Code... Furthermore, the provisions of Article 799 of the Code of Criminal Procedure ... shall not apply to the docking of points from a driving licence.”
“Any breach of the Articles listed below, where the nature of such breach corresponds to the short description given at the beginning of each Article, shall give rise to the automatic docking of points as follows:
1. Four points docked for minor offences under the following Articles:
…
Articles R. 10 to R. 10-4 of the Road Traffic Code: exceeding the speed limit by 40 kph or more...
2. Three points docked for minor offences under the following Articles:
…
Articles R. 10 to R. 10-4 of the Road Traffic Code: exceeding the speed limit by more than 30 kph but less than 40 kph...
3. Two points docked for minor offences under the following Articles:
…
Articles R. 10 to R. 10-4 of the Road Traffic Code: exceeding the speed limit by more than 20 kph but less than 30 kph, except in the case of drivers covered by the last paragraph of Article R. 10 of the Road Traffic Code...
4. One point docked for minor offences under the following Articles:
…
Articles R. 10 to R. 10-4 of the Road Traffic Code: exceeding the speed limit by less than 20 kph ..., except in the case of drivers covered by the last paragraph of Article R. 10 of the Road Traffic Code...”
“At the time when the details of an offence are recorded, the driver shall be informed that the offence may result in a number of points being docked if the offence is established by means of either the payment of a fixed fine or a final conviction.
The driver shall also be informed that there is an automatic system for the deduction and restoration of points, and that he can have access to the information concerning him… When the Minister of the Interior notes that an offence entailing the docking of points has been established …, he shall dock the relevant number of points from the offender’s licence, and inform the offender accordingly in a letter sent by ordinary post. The Minister of the Interior shall take note and inform the person concerned, in the same manner, of any points restored...”
“If the licence-holder does not commit a further offence punishable by the docking of points in the three years following the date on which his last conviction became final …, the original number of points shall be restored to the licence... The licence-holder may have a number of points restored if he agrees to take a special training course, which must include an element designed to increase awareness of the causes and consequences of road accidents.”
“Once the certificate of course attendance is issued, the driver shall be entitled to have four points restored to his licence. However, the total number of points on the licence, after these points have been restored, may not exceed eleven.”
22. Under the current Criminal Code, which came into force on 1 March 1994, temporary or permanent disqualification from driving may be imposed for minor offences (under Article 131-14 (1) and 131-16 (1)); major offences (under Article 1313-6 (1) and (3)); and certain serious crimes (crimes) such as torture, grievous bodily harm, rape and drug trafficking (under Article 224-4).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-113644
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: V. O. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The applicant was represented by Mr K. McManamon of Levenes Solicitors, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger of the Foreign and Commonwealth Office.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant was brought up by his mother, who is of Kurdish origin and speaks little English. He was 15 at the time of the events in question.
4. Between 2002 and 2007 the applicant was a registered pupil at Park View Academy, a State secondary school in Haringey, North London. The 2006-7 academic year was his final year of compulsory schooling. In the summer of 2007 he was due to take GCSE examinations in nine subjects as well as a GNVQ (vocational qualification) in Business Studies.
5. The applicant did not have a history of being a disruptive pupil. However, on 14 June 2006 he assaulted the school’s canteen manager. He was seen by her to be pushing his way into the canteen queue and, when she told him to stop, he abused her verbally. Despite attempts by several teachers to calm him down, the applicant knocked a sandwich out of the canteen manager’s hand and then grabbed her wrist and twisted it. The applicant caused injury to her wrist which required hospital treatment and two weeks’ sick leave from work.
6. The school authorities took the view that the level of violence used and threatened by the applicant was extremely intimidating. The Headteacher decided that the applicant should be permanently excluded from the school. This decision was approved by the Governing Body and he was so notified in a letter dated 27 June 2006.
7. The applicant exercised his statutory right of appeal to the Independent Appeal Panel (IAP). The hearing took place on 28 September 2006. The IAP considered written and oral evidence from the applicant and other witnesses. It did not, however, hear evidence concerning the views of the teaching staff and their unions as to whether it would be possible to reintegrate the applicant.
8. The IAP delivered its decision by a letter to the applicant’s mother dated 3 October 2006, as follows:
“After careful consideration of your representations both oral and written and those of the Park View Academy School and in the light of the available evidence, the Panel concluded to direct [the applicant’s] reinstatement, with a view to a staggered reinstatement, with [the applicant] back in full-time education by half term. You are advised to contact the Headteacher of Park View Academy to arrange an appointment.
In coming to their decision, the Panel accepted that:
▪ [The applicant] did what he was alleged to have done and this was supported by the evidence presented both by the school and [his own] admission.
The Panel then took into consideration the guidance from the Secretary of State before coming to their decision. In this instance, the panel felt there were exceptional circumstances and after considering all the relevant factors, that permanent exclusion was not the appropriate sanction. The reasons for the panel decision were as follows:
▪ [The applicant] previously had a relatively unblemished record;
▪ [The applicant] behaved “out of character” and possible medical factors could have contributed to his behaviour;
▪ Took into consideration the stage in [the applicant’s] education.
The Panel then considered the broader interests of other pupils and staff in school, as well as those of [the applicant] and ... though it was reasonable of the school to consider permanent exclusion, it was felt that long term fixed exclusion would have been the most appropriate sanction in this instance.
In conclusion, the Panel endorsed your suggestion that [the applicant] be provided with a packed lunch in future.”
9. The Headteacher did not agree with the IAP’s decision but he informed the staff at the school that he was under a legal duty to provide the applicant with an education. On 16 October 2006 the representative at the school of the National Union of Teachers (NUT), of which the majority of the teaching staff were members, sent an e-mail to all members of staff at the school informing them that the NUT members had decided to call for “a ballot not to teach or supervise the student who was reinstated on appeal after assaulting a member of staff”. The Headteacher was also informed by the other teachers’ union represented at the school that its members would vote in favour of industrial action if asked to teach the applicant. The Headteacher therefore formed the view that if he directed the teaching staff to accept the applicant back into the class-rooms they would vote in favour of industrial action and refuse to teach him. He therefore informed the applicant’s mother that, if the applicant wanted to continue to be educated at the school, this would take place in a room on his own. In the alternative, he could attend classes in GCSE Maths and English at a local further education college, with a personal tutor to teach him Business Studies.
10. Initially, the offer of college provision was refused because the applicant wished to continue to be educated at his school. The family enlisted the help of a local councillor to seek to persuade the school to take him back, but the representatives of the NUT refused to talk to him.
11. Finally, the applicant decided to accept the limited tuition being offered at the further education college, because he felt that being taught in isolation at the school, without being allowed any contact with his friends, would make him “feel like a criminal”. At the college he received two hours’ tuition a day in Maths and English Literature. Until the end of April 2007 he did not receive any teaching in any of his other GCSE or GNVQ subjects, nor in any of the other national curriculum subjects such as physical education, other than two weeks of coaching in Science and one and a half weeks in Business Studies provided by external tutors who taught him in isolation in a room at the school.
12. In January 2007 the applicant issued proceedings for judicial review of the school’s decision. On 12 February 2007 representatives of the NUT wrote to the Director of Children’s Services at Haringey indicating that they intended to hold a ballot of their members at the school. On 9 March the Headteacher and Chairman of the School Governors were informed that, following a ballot, the NUT would commence industrial action on 16 March 2007. This would initially take the form of a refusal to teach, supervise or otherwise work with the applicant, but could escalate to a strike if disciplinary measures were taken against an NUT member as a result.
13. The High Court gave judgment on 15 March 2007. The applicant had argued, inter alia, that the offer to teach him in isolation did not amount to “reinstatement”; that the Headteacher had been too greatly influenced by the threat of industrial action; and that the school owed him a statutory duty, which it had not met, to provide him with tuition in the national curriculum subjects in which he had planned to take GCSEs. Burton J held, inter alia, that the position taken by the NUT had to be respected, unless it could be shown to be a sham, and that the “reinstatement” required by the IAP’s decision did not have to include reinstatement to the class-room as before. During the course of the proceedings the school had given an undertaking to use its best endeavours, without using NUT teachers, to supply the applicant with tuition in his other GCSE subjects, and in the light of this undertaking the judge did not consider it necessary to decide whether the applicant was owed a statutory duty. He was “unpersuaded that the reaction of the Headteacher to the industrial discontent among the majority of the teaching staff was unreasonable or disproportionate” and concluded:
“In my judgment the maintenance of the regime must be regularly tested, and its reasonableness and the reasonableness of its continuation depend upon the facts. On the evidence before me the imposition of the regime was reasonable in all the circumstances. It might well have been that there would have come a time when it became unreasonable to continue that regime. However, it is quite plain that the industrial difficulties which the school faces preventing complete reinstatement continue as of now. I conclude that the imposition of the regime was not unlawful, and that, accompanied by the without prejudice undertaking, the continuation remains lawful.”
14. Following this judgment and the undertaking given during the proceedings, from 23 April to 16 May 2007 the applicant received four hours tuition a week at the school, using external tutors, in Science, Business studies, English Literature and Media Studies. The applicant sat GCSE and GNVQ examinations in May 2007. He failed to achieve a grade C or higher in any of them and was not, therefore, able to continue to study for A Levels as he had hoped. In addition to the academic consequences, the applicant had no contact with his former teachers or fellow pupils at the school for the entirety of his final year. He was not permitted to take part in any extra-curricular activities or to mix with pupils during breaks.
15. The applicant appealed to the Court of Appeal. His appeal was dismissed by a judgment dated 22 May 2007 (O. v. The Governing Body of Park View Academy and Another [2007] EWCA Civ 592). Carnwath LJ commenced by observing:
“1. This is a troubling case, as any school exclusion case is likely to be. There are particular factors here which give rise to concern. The applicant ... has been brought up by his mother alone and she speaks little English. He has clearly had a number of hurdles to overcome. He is now in Year 11, leading to GCSE exams this summer. He is currently in course of taking, as I understand it, 9 GCSE subjects. He has generally had a good record. On any view, it is tragic that his education has been disrupted at this critical period as a result of what everyone agrees was a one-off and uncharacteristic incident.
2. However, the function of this court is very limited and is concerned simply with any legal defects in the school’s response to the problem. ...”
16. He continued by finding that the case could not be distinguished from Re L (see Relevant domestic law, below). In that case the House of Lords held that the term “reinstate” in the applicable legislation connoted restoration of the legal relationship between the pupil and the school community. Once the pupil had been reinstated, the management of his further educational regime had to be consistent with his status as a pupil of the school and was a question of reasonableness and proportionality on the facts of each case. He observed that the House of Lords in Re L had made clear that the threat of industrial action was a relevant matter which the Headteacher was entitled to take into account and he concluded that:
“Short of perversity in response to that threat, I see no basis on which it can be said to give rise to an error of law”.
17. He considered that the question whether the school owed the applicant a duty under the Education Act 2002 to provide tuition as required by the national curriculum was “potentially important and ... far from straightforward”. However, he held that Burton J, in the exercise of his discretion, had been entitled to take the view that it was better to accept the undertaking offered by the school as being the most practical way forward:
“That being the case, it would be wrong for this court to interfere unless the judge’s approach was outside the bounds of his discretion. Although other judges might have taken a different view, I cannot see error of principle in his approach”.
18. On 22 May 2007 the Court of Appeal refused the applicant leave to appeal to the House of Lords.
19. The Education Act 2002 (section 52) and the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 (“the Exclusion Regulations”) regulation 6(1) provide that Local Education Authorities must set up independent appeal panels (“IAPs) to enable the parents of children permanently excluded from maintained schools to appeal against that exclusion.
20. Pursuant to regulation 6(6) of the Exclusion Regulations, following an appeal, the IAP may: (a) uphold the exclusion; (b) direct that the pupil is to be reinstated (either immediately or by a date specified in the direction); or (c) decide that because of exceptional circumstances or for other reasons it is not practical to give a direction requiring his reinstatement, but that it would otherwise have been appropriate to give such a direction.
21. Pursuant to regulation 6(5), the decision of an IAP to reinstate a pupil is binding on the Governors of the school in question, the school’s Headteacher and the applicable Local Education Authority.
22. The constitution of IAPs is set out in the Schedule of the Exclusion Regulations 2002. Pursuant to paragraph 2, an IAP must have either three or five members. One member must be a lay member with no experience of managing a school. If it is a three-member IAP, the other members must be: one person who is, or has been in the past five years, the Headteacher of a maintained school and one person who is, or has been in the past six years, the Governor of a maintained school. If the panel is made up of five members, there are two Headteachers and two Governors on the panel as well as the lay member. The consequence is that the IAP always has a majority of members who have experience in matters of school discipline and have been, or are, involved in the management of a school.
23. In R v Governors of J School ex p L [2003] 2 AC 633, the House of Lords held that where an IAP ordered the “reinstatement” of a permanently excluded pupil, that pupil could still be regarded as “reinstated” where he was effectively permitted no contact with the rest of the school community for the remainder of his time at the school and was taught in isolation by a retired teacher. The House of Lords held, by a three to two majority, that a school which treated a pupil in this way following an order of an IAP had complied with the order to “reinstate” the pupil even if it made no effort to reintegrate him. In that case, the time spent in isolation was the last 30 days of the school year. In the L case, like the applicant’s, the reason that the pupil in question was taught in isolation was that the teachers had threatened industrial action. Although some members of the House of Lords were strongly critical of the teachers, the view of the majority was that, given the effect on the rest of the school of the teachers striking, it was a rational managerial decision for Headteacher and Governors to educate the pupil in question for 30 days in isolation from the rest of the school.
24. On the same day as judgment was handed down in the L case, the House of Lords handed down a judgment in P v National Association of Schoolmasters/Union of Women Teachers [2003] 2 AC 663. It concerned an application brought by a pupil under section 235A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULCRA”). Pursuant to section 235A, an individual who is affected by unlawful industrial action may bring a claim in the High Court against the union or person that had induced others to take part in the industrial action. The claimant in the P case was a pupil whom teaching unions had refused to teach. He argued that the refusal constituted “unlawful industrial action” as it was not part of a “trade dispute” within the meaning of TULCRA section 244 and therefore was not protected pursuant to section 219. The House of Lords rejected the claim. It held that there was a dispute between employees and employers which related to the job the employees were required to do, and/or a dispute as to the terms and conditions on which the teachers were employed. The dispute was, the House of Lords concluded, a “trade dispute” within the meaning of section 244. It was, therefore, not unlawful.
25. The HRA incorporates the Convention into United Kingdom law. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, except where it is constrained to act in that way as a result of primary legislation which cannot be interpreted so as to be compatible with Convention rights. Under section 7(1), a person claiming that a public authority has acted unlawfully under section 6(1) may bring proceedings against it in the appropriate court or rely on the Convention right in any legal proceedings.
26. Pursuant to section 8 of the HRA 1998, in relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.


ITEMID: 001-79992
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF COOPERATIVA AGRICOLA SLOBOZIA-HANESEI v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - claim dismissed;Pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 6. The applicant, Agrarian Cooperative “Slobozia Hanesei”, is a Moldovan registered company. It is represented before the Court by Mr G. Botezat, a lawyer practising in Ştefan Vodă.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. According to the statute of the State-owned company “Moldtranselectro” (“M.”), as modified on 7 November 2000, the company is empowered to consolidate the debts accumulated in the energy sector of Moldova and is responsible both for lodging claims against entities indebted to the former (State) energy companies and for paying the debts that those companies owed to third persons. This is regulated by Law no. 336 on the restructuring of the debt of energy sector companies (see paragraph 13 below). In a letter dated 26 February 2002 the National Agency for Energy Regulation (NAER) stated, inter alia, that in accordance with Law no. 336-XIV (“Law no. 336”, see paragraph 13 below) M. had acquired all debts and claims of legal persons in respect of Red Centru, a State-owned energy company which was privatised after 1999.
9. The applicant initiated court proceedings against M. and SA Red Centru as a third party. It claimed that SA Red Centru owed it 23,557 Moldovan lei (MDL) since 1999 and that its debts had become the debts of M. by virtue of Law no. 336. On 26 April 2002 the Chişinău Economic Court adopted a judgment by which M. was ordered to pay the applicant MDL 23,557 (1,943 euros (EUR) at the time). The court found that, in accordance with Article 6 of Law no. 336 both the debts of SA Red Centru and the debts owed to it had been transferred to M., as confirmed by an act of verification dated 8 February 2000. No appeal was lodged and the judgment became enforceable on 12 May 2002.
10. The applicant obtained an enforcement warrant which the Bailiff did not enforce. On 27 May 2002 it wrote to the Decision Enforcement Department of the Ministry of Justice requesting the execution of the judgment and the seizure of its debtor's property. On 1 September 2002 it wrote to “the Government” requesting the latter to take measures to execute the judgment. The applicant received no answer to any of these requests.
11. The judgment of 26 April 2002 has not been enforced to date. On 26 October 2006 the Parliament adopted the Law concerning the improvement of the economic-financial situation of the State Company “Moldtranselectro” by annulling certain obligations (no. 311-XVI). The law annulled a number of penalties resulting from delays in payments by M. towards the State budget.
12. The relevant provisions of domestic law have been set out in this Court's judgment in the case of Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts), § 31).
13. In addition, the relevant provisions of the Law on the restructuring of the debt of energy sector companies no. 336-XIV read as follows:
“Article 1
The following companies ... [RED Centru] ... shall be privatised without their debts older than 60 days owed to or claimable against third parties...
Article 3
Pending the [privatisation] of energy sector companies, the following debts shall be frozen:
2) of [list of energy sector companies] owed to the State company “Moldtranselectro”;
Article 5
Debts older than 60 days at the moment of [privatisation] of [private] companies owed to the energy sector companies which are to be privatised shall become debts owed to the State company “Moldtranselectro”.
Article 6
The Government
1) shall become the legal successor:
b) in the person of the State Enterprise "Moldtranselectro" - of credit indebtedness of the electricity sector enterprises undergoing privatisation more than 60 days overdue as of the date of signing contracts for the sale of the majority stake in their shares, except for arrears of wages, contributions (payments) to the state social insurance fund and the debt written off pursuant to Article 4, paragraph 1);
...3) shall formulate proposals identifying the sources of financing the difference between the debts owed to 'Moldtranselectro' and accumulated by it in accordance with Article 5 of the present law and of paragraph 1 b) of the present Article.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4735
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: HECKL v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1956 and living in Traun.
He is represented before the Court by Mr. Günter Tews, a lawyer practising in Linz.
A.
The applicant is the father of two daughters, born in wedlock in 1984 and 1991, respectively.
On 14 February 1995 the Linz-Land District Court (Bezirksgericht) granted the petition of the applicant and his wife for divorce by consent. In the settlement regulating the legal consequences of the divorce, the applicant and his wife agreed that the latter would exercise sole custody over their daughters. They further agreed to settle the applicant's right of access out of court. The settlement was subject to approval in separate custody proceedings.
In these subsequent custody proceedings the applicant requested that sole custody for both children be awarded to him.
On 3 May 1996 the Linz-Land District Court refused to approve the above settlement as regards the question of custody. It awarded sole custody over the elder daughter, Melanie, to the applicant, while sole custody over the younger daughter, Tanja, was awarded to his divorced wife.
The Court noted that twelve-year-old Melanie already lived with the applicant, while five-year old Tanja continued to live with her mother. As there had not been compliance with the above settlement, the court was called upon to decide under section 177 § 2 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) for each child which parent should have sole custody. In accordance with section 177 § 1 the solution depended exclusively on the well-being of the child. Referring to the written and oral submissions of the parties and to the expert opinion of a child psychiatrist, the court found that Melanie was well cared for by her father. There were no reasons not to respect her choice, all the more so as her mother had accepted the situation. However, there were no weighty reasons to transfer custody of five-year-old Tanja to the applicant. Finally, the expert had found that the separation of the children which followed from the above solution was not detrimental. Given their difference in age, the court did not see any objections either. The applicant did not appeal against this decision.
B. Relevant domestic law and practice
Award of custody over children upon divorce or separation
Section 177 of the Civil Code provides as follows:
“(1) In the event that the marriage of the parents of a minor born in wedlock is dissolved or declared null and void, or that the parents have lived separately for more than a limited period, they may submit an agreement to the court stating which one of them will exercise sole custody over the child in the future. The court has to approve the agreement if it corresponds to the interests of the child's well-being.
(2) If no agreement is reached within a reasonable time or if the agreement does not correspond to the interests of the child's well-being, the court has to decide which parent should have the right to sole custody in the future. In case the parents have lived separately for more than a limited period the court only decides upon the request of one of them.
(3) Section 167 applies accordingly.”
Section 167 of the Civil Code provides, for children born out of wedlock, that the court may award joint custody to the parents upon their common request if they permanently live in a common household with the child and if such a ruling is not disadvantageous to the child's well-being.
In a judgment of 10 October 1995, the Constitutional Court ruled on the constitutionality of section 177 of the Civil Code. It noted the Supreme Court's constant case-law according to which section 177 excluded an award of joint custody to both parents in case of divorce, except in the rare case when they continued to live together with the child in a common household. As to Article 8 of the Convention, it found that the award of sole custody after divorce to one parent was an interference with the other parent's right to respect for his or her family life, which was justified under the second paragraph of this Article. Given the legislator's margin of appreciation it was to be considered necessary for the protection of the rights of others. In particular, it was proportionate, as the parent not having custody retained a number of rights, such as the right of access and the right to be informed and heard as regards certain important matters. Moreover, the law did not prevent parents, who wished to share their parental rights after divorce, from doing so in practice. As to Article 5 of Protocol No. 7, the Constitutional Court found that this provision did not prevent the legislator from creating different legal positions for spouses after divorce as long as such differences were not based on gender only. It did not generally demand that joint custody be awarded to parents after divorce.
Rights of the parent not having custody
According to section 148 of the Civil Code the parent not having custody has a right of access.
Moreover, according to section 178 of the Civil Code, the parent not having custody has the right to be informed by the other parent about certain measures listed in section 154 §§ 2 and 3 (which in cases of joint custody require the agreement of both parents) and has the right to be heard within a reasonable time. The submissions of the non-custodial parent are to be taken into account if the wishes expressed therein better serve the interests of the child's well-being. The measures at issue include the change of the child's first or family name, the entry into or secession from a church or other religious group, the child's placement into care, the acquisition or renunciation of a particular nationality, the early termination of an apprenticeship or employment contract, the recognition of paternity of a child born out of wedlock, as well as certain important provisions concerning the child's property.


ITEMID: 001-69091
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TURHAN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1924 and lives in Istanbul. He is the author of a book titled “Extraordinary War, Terror and Contra Guerrilla” (“Özel Savaş Terör ve Kontragerilla”).
5. On 6 January 1993 Orhan Sefa Kilercioğlu, the then Minister of State brought a civil action for compensation against the applicant, before the Ankara First Instance Court in Civil Matters. He claimed that the alleged defamatory remarks in the applicant’s book constituted an attack on his reputation and requested that the court award him compensation of 100,000,000 Turkish liras (TRL) for non-pecuniary damage.
6. During the proceedings the court evaluated the following passages:
“In an interview I gave in Antalya I commented on the “1 May 1977” massacre and the possibility of a coup d’état during that period. It seems that a magazine carried out research following these assertions and reached some interesting conclusions.
According to the magazine, the Minister of State, Orhan Kilercioğlu, had established contacts with the Special War Department (Özel Harp Dairesi). He had been involved in the coup that was co-ordinated by General Namık Kemal Ersun together with Generals Recai Engin, Musa Öğün and Rüştü Naipoğlu. The names of these generals had appeared in several foreign and domestic newspapers where they were presented as the authors of the massacre carried out on 1st of May and of other provocative acts. The magazine interviewed Mr Orhan Kilercioğlu. He said the following:
– Some newspapers and magazines have been presenting you as the author or even the perpetrator of the “1st of May” massacre until last year. You have never commented on those allegations for almost 12 years.
Kilercioğlu: I never thought of replying. The State has everything. It has mechanisms. [Those allegations] have never bothered me.
– Comments regarding your involvement in the “1st of May” massacre were made with reference to an American newspaper. A periodical commented on your involvement in the contra guerrilla [activities].
Kilercioğlu: The State has laws, it has courts. Under such conditions, would they have kept silent until now? Everything has been done.
– Did you exercise your right to reply?
Kilercioğlu: I do not remember.
As one can easily see, Mr Kilercioğlu is disregarding the questions and making a big fuss. By not having exercised his right to reply and not having lodged a complaint with the judicial organs, he must have been aware of the fact that he was implicitly acknowledging these allegations against him. Especially, someone like him: an ex-general and a Minister of State.
Mr Kilercioğlu answered another question:
“I am the purest and the most innocent person that you could ever meet in life,” he says. If a person is identifying himself like this, let’s just leave the verdict to a doctor!
In an interview he gave after his retirement in 1989 he said: “As you know, there are groups in the army. They fight among themselves. We fought and lost.” He is probably admitting to having belonged to the junta by identifying himself as a member of the “group”.
One can conclude from his statement that he had been a member of the junta. One can also presume that the junta of General Namık Kemal Ersun had had plans to overthrow Demirel’s government. Then the question arises: How could Demirel appoint a minister who was involved in a junta against him? Maybe Mr Kilercioğlu is one of Mr Demirel’s sins?
...
Let’s go back to Kilercioğlu. Although he admitted to having belonged to a “group of fighters”, a number of newspapers, some business circles and TRT (Turkish Radio and Television) stood as protectors of Kilercioğlu after his retirement. Undoubtedly, this was not due to his “pure” personality. It was more due to his presence in the fascist wing, which dedicated itself to protecting the interests of business circles. After his retirement he was ready to serve those business circles. I wonder: how will he be able to fight against corruption and illegal trade after having flown from the Yaşar Holding to the ministerial chair?”
7. The applicant argued before the court that the passages concerning Mr Kilercioğlu were quoted from an interview published by a magazine. He drew the court’s attention to the fact that Mr Kilercioğlu had never exercised his right of reply; nor had he contested the publication of his statements in that magazine. The applicant claimed that he was exercising his right to freedom of expression in making those remarks.
8. On 2 February 1994 the first instance court rejected Mr Kilercioğlu’s claims. It decided that the passages in question were merely the applicant’s criticisms of Mr Kilercioğlu’s statements, in the light of his political beliefs, and they did not constitute an attack on the plaintiff’s reputation.
9. Mr Kilercioğlu appealed. On 1 December 1994 the Court of Cassation quashed the decision of the first instance court. It considered that the following extracts from the book went beyond the limits of acceptable criticism. It held that they were based on hearsay alone and they therefore amounted to an attack on the reputation of the plaintiff:
“... he is admitting to having belonged to the junta...”, “...his presence in the fascist wing, which dedicated itself to protecting the interests of business circles.”, “After his retirement he was ready to serve those business circles. I wonder: how will he be able to fight against corruption and illegal trade after having flown from the Yaşar Holding to the ministerial chair? ... ”
10. The Court of Cassation concluded that the plaintiff should be awarded compensation for non-pecuniary damage under Article 49 of the Code of Obligations.
11. On 5 June 1995 the Court of Cassation rejected the applicant’s request for rectification of the judgment.
12. On 14 September 1995, after having considered the Court of Cassation’s decision, the Ankara First Instance Court in Civil Matters decided to award Mr Kilercioğlu the sum of TRL 100,000,000 as compensation for non-pecuniary damage, together with interest rate of 30% per annum running from 4 December 1992.
13. The applicant appealed. On 11 April 1996 the Court of Cassation quashed the decision of 14 September 1995 on the ground that the amount of compensation awarded was disproportionate to the damage suffered by the plaintiff.
14. On 19 July 1996 the Ankara First Instance Court in Civil Matters considered that its decision of 14 September 1995 was in accordance with the law and that the amount of compensation awarded was proportionate to the damage suffered by the plaintiff. It decided not to follow the decision of the Court of Cassation.
15. Mr Kilercioğlu lodged an appeal with the Joint Civil Chambers of the Court of Cassation, which quashed the decision of the Ankara First Instance Court in Civil Matters on 26 March 1997.
16. On 8 October 1997 the Ankara First Instance Court in Civil Matters awarded Mr Kilercioğlu compensation in the amount of TRL 60,000,000 for non-pecuniary damage, together with interest rate of 30% per annum running from 4 December 1992. Upon Mr Kilercioğlu’s request, the court also ordered the publication of its decision in a newspaper.
17. The applicant appealed. On 19 March 1998 the Court of Cassation upheld in part the judgment dated 8 October 1997. It considered that the amount of compensation awarded to the plaintiff was in accordance with law. However, the plaintiff’s request to the first instance court asking for publication of its decision was not raised before the Court of Cassation. It therefore quashed that part of the decision.
18. On 30 September 1998 the Ankara First Instance Court in Civil Matters followed the Court of Cassation’s decision of 19 March 1998. The applicant was notified of this decision on 23 January 1999.
19. On 19 February 1999 the applicant paid TRL 231,500,000 to the plaintiff as compensation.
20. Article 49 of the Code of Obligations provides as follows:
“Any person who alleges that his personality rights have been illegally violated can claim compensation for non-pecuniary damage.
The judge shall take into account the parties’ socio-economic situation, their occupation and social status when determining the amount of compensation.
The judge may also decide on a form of redress other than compensation or may restrict himself to condemning the violation. He may also order the publication of the decision.”
VIOLATED_ARTICLES: 10


ITEMID: 001-23778
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: NASIMI v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Amir Nasimi, is an Iranian national of Kurdish origin who was born in 1960. He was represented before the Court by Ms E. Haddadi, a lawyer practising in Sundbyberg. The respondent Government were represented by Ms E. Jagander, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
Between 1994 and 1997 the applicant applied five times for a visa to visit his sister in Sweden. In connection with these applications his sister stated on two occasions that the applicant was “non-political” and had no political problems. The applicant was finally granted a visa in 1997 and stayed with his sister in Sweden for a couple of months.
In 2000 the applicant was once again granted a visa and came to visit his sister. He arrived in Sweden on 16 September 2000, holding a valid Iranian passport. He applied for asylum on 11 October.
In interviews held on 11 and 18 October 2000 the applicant stated that, on 2 October, the Iranian authorities had discovered copies of Peshraw – a monthly political journal written in the Kurdish language which was forbidden in Iran – in his home and were searching for him. He had forgotten about the copies as a relative had fallen seriously ill at the time when he was about to leave for Sweden. As a consequence, the applicant's wife and children – a daughter born in 1985 and a son born in 1993 – had been interrogated. His wife had been detained but later released on bail. The applicant further claimed that he had been, and still was, active in Komala, a political organisation, distributing journals and other documents. Allegedly, his family were well-known supporters of Komala and his brother and brother-in-law had been executed by the Iranian authorities due to their political activities. The applicant had been imprisoned in 1990-92. He had also been dismissed from his job as a teacher. He had thereafter continued with his political activities – being officially active for the organisation as from 1995 – and had been beaten up on some occasions when he reported to the authorities in compliance with a reporting duty. On several occasions he had also been interrogated and his house had been searched. He claimed to be a communist and knowledgeable about the ideas of Marx and Lenin, although he had not read anything by them and was not familiar with their views on religion.
In a letter to the Migration Board of 16 December 2001 counsel for the applicant added that the applicant had been tortured and assaulted while he was imprisoned.
On 4 April 2001 the applicant's wife and children left Iran. Upon arrival in Sweden, apparently on 2 May, they applied for asylum. The wife first stated that her identification papers had been confiscated when the Iranian authorities searched the family's home. Later she admitted that she had first travelled to Norway with a valid visa to visit her sister and that she had destroyed her passport herself. The applicant's daughter claimed that she had been relegated from school due to the authorities' allegations against her father.
On 25 January 2002 the Migration Board (Migrationsverket) rejected the asylum applications and ordered that the family be expelled to Iran. The Board noted that the applicant had received a passport in 1996 and had been allowed to leave Iran legally on at least two occasions. It found it improbable that this would have happened if the authorities had suspected him of being politically active against the Iranian Government. The Board also found it unlikely that the applicant had left subversive journals in his home and had not remembered them and told relatives to get rid of them while he was in Sweden. Further, the Board considered that the applicant's wife and children would not have been allowed to leave Iran legally if the wife, as claimed, had been interrogated and detained and eventually released on bail. In conclusion, the Board called into question substantial parts of the information given in the cases and considered that the applicant and his wife had not shown that they were of a particular interest to the Iranian authorities or that the family members would be subjected to persecution or discrimination.
On 20 February 2002 the applicant and his wife appealed to the Aliens Appeals Board (Utlänningsnämnden). The applicant submitted that he had obtained a passport by bribing officials with a colour television.
On 29 April 2002 the Aliens Appeals Board dismissed the appeal, as their lawyer had failed to show that she was authorised to lodge the appeal on behalf of the family.
Later the family lodged a new application with the Aliens Appeals Board. They claimed that also the wife's uncle had been executed by the Iranian regime. Furthermore, the Iranian authorities allegedly suspected that the applicant had joined the armed struggle in the Iranian part of Kurdistan. He submitted a certificate from “Komala abroad” in which it was stated that he had been an active supporter of Komala and that he had been imprisoned for two years in 1990-92 because of his activities. The applicant also claimed that the torture to which he had been subjected had injured him physically and mentally for life. He submitted, inter alia, a certificate of 22 March 2002 issued by Dr Mona Lindqvist, a qualified psychologist and psychotherapist, who stated that the applicant was suicidal, seriously depressed and showed clear signs of suffering from a post-traumatic stress disorder (PTSD). It was therefore important that he undergo long-term psychotherapy and medical treatment. According to medical records invoked by the applicant before the Migration Board and the Aliens Appeals Board, the applicant had visited the health care centre in Bandhagen eight times between October 2000 and February 2001 and the health care centre in Säffle 21 times between May 2001 and March 2002 for various afflictions. On three occasions he had mentioned that he had problems due to previous torture.
On 28 May 2002 the Aliens Appeals Board rejected the new application. It did not find that the new submissions indicated that the applicants were in need of protection in Sweden. As regards the applicant's health, the Board did not find that the medical information showed that he suffered from such a serious physical or mental injury that a residence permit should be granted on humanitarian grounds.
In June 2002 a third application for residence permits was made. In a new certificate, dated 4 June 2002 and submitted to the Appeals Board, Dr Lindqvist stated that the applicant's health had deteriorated, that he and his daughter were seriously suicidal and that also the other family members had mental problems. In support of the application, the applicant also submitted an Iranian document, purportedly a summons to appear before the revolutionary court in Merivan, his hometown, issued on 1 October 2000. Allegedly, it had not been submitted earlier as mail was very often opened in Iran.
On 15 July 2002 the Aliens Appeals Board rejected the third application. It found that the explanation why the court notice had not been handed in earlier was unsatisfactory. As the applicant's wife and children had not left Iran until 4 April 2001 they should have been able to bring it with them. It was further unlikely that they had been allowed to leave the country if the authorities' had had such an interest in the applicant. As regards the statements made by Dr Lindqvist, the Board, questioning their objectivity, found it remarkable that she had drawn far-reaching medical conclusions about the family members' health and had assessed the availability of medical treatment in Iran and the family's need of protection in Sweden. In any event, the Board considered that it had not been shown that any member of the family suffered from such a serious mental disturbance or similar state of health that they could not be considered responsible for their own actions. It was therefore not inhuman to enforce the expulsion decision.
On 21 October 2002 the family lodged yet another application for residence permits. In support thereof, they invoked two further statements concerning their health, one issued on 23 September 2002 by Dr Leena Maria Johansson, a qualified physician and psychotherapist and specialist in psychiatry, and one issued on 22 October 2002 by Dr Mostafa Farahani, a qualified physician. Dr Johansson stated that the applicant and his wife showed clear symptoms of PTSD, that the applicant was seriously suicidal and that the children suffered from depression. Dr Farahani, who had only examined the applicant, stated that he met almost all the criteria for a post-traumatic stress syndrome and that there was a serious risk that he would commit suicide in the event of his being expelled to Iran. The applicant further claimed that he had taken part in two demonstrations in Sweden for an Iranian communist party. The second one, which had taken place eight months before the lodging of the latest application, had been shown on Swedish television and had attracted the attention of the Iranian security police which had interrogated the applicant's mother in Iran about the applicant and his involvement in the demonstration.
On 21 October 2002 the Aliens Appeals Board decided not to suspend the enforcement of the expulsion order.
By a decision of 1 November 2002, following the Court's indication under Rule 39 of the Rules of Court, the Migration Board stayed the enforcement of the expulsion order.
The latest application for residence permits is still pending before the Aliens Appeals Board.
The applicant has submitted that his mental health has deteriorated since 2002. It appears, however, that he has not undergone the treatment prescribed by Dr Lindqvist in March 2002. According to a medical certificate of 8 February 2004 by Dr Bahram Aflaki, specialist in general psychiatry, the applicant, while not having suicidal thoughts, had expressed that he would rather die than return to Iran and had shown symptoms of suffering from PTSD and depression. Also his children were suffering from mental problems. Dr Aflaki stated that the applicant was in need of long-term psychiatric care and started a treatment with antidepressants.


ITEMID: 001-79838
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KALPOKAS AND KALPOKAS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The first applicant, Mr Jonas Kalpokas, and the second applicant, Mr Vaclovas Kalpokas, are Lithuanian nationals who were born, respectively, in 1927 and 1919, and live in Gailiūnai. They were represented before the Court by Mr T. Urbaitis, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants’ father owned 31.82 hectares of land. The property was nationalised following the Soviet occupation of Lithuania in 1940. After Lithuania regained its independence in 1990, the applicants applied for the property to be returned to them in kind, pursuant to the 1991 legislation on the restitution of property rights. The applicants were advised that parts of the land which they claimed had been assigned to certain private persons and therefore could not be returned to them.
On 16 August 2001 the applicants applied to a court, alleging that the disputed parts of their father’s former land had been occupied unlawfully. They requested restitution in kind of the entire plot.
On 9 September 2002 the Kaunas Regional Administrative Court accepted the applicants’ action in part. It held that parts of the land were legitimately occupied by other private persons and, under the legislation on the restitution of property, could not therefore be recovered. However, the court ordered that the regional administration adopt, within a period of three months, a decision to restore the applicants’ property rights to the land which had not been occupied.
On 31 October 2002 that decision was upheld by the Supreme Administrative Court and entered into force.
In execution of the decision, on 18 November 2002 the local authorities commissioned planning experts to delimit the land due to the applicants. That work began on 12 December 2002. The applicants were invited to take part, but they did not do so.
On 22 May 2003 one of the persons occupying part of the former land of the applicants’ father refused the new plot assigned to him. This development necessitated a fresh delimitation and re-evaluation of the land to be returned to the applicants.
Furthermore, on 9 June 2003 another such refusal was recorded by the administrative authorities, which had to arrange for the land to be delimited and evaluated de novo. The applicants, however, again refused to take part in the delimitation work.
On 10 November 2003 a third person refused a plot located within the original boundaries of the land originally owned by the applicants’ father; hence, again, delimitation work had to be carried out. The applicants still refused to participate.
On 23 February 2004 a fourth person refused a plot located on the original land.
On 2 March 2004 the regional authorities restored the applicants’ rights to the land. The first applicant was given title to 6.86 hectares of land and 4.85 hectares of the forest area, while the second applicant was entitled to 7.09 hectares of land and 4.86 hectares of the forest area. It appears that the authorities did not add the plot refused by the fourth person to the land due to the applicants. The applicants were repeatedly informed that occupied parts of their father’s land could not be returned in kind, and would be compensated subsequently.
On 28 April 2004 the regional administration amended its decision of 2 March 2004, inter alia, reducing the plots assigned to the applicants.
The applicants, dissatisfied with the above decisions, on 5 May 2004 lodged a complaint, requesting their nullification. They also claimed title to their fathers’ original land in its entirety.
The Kaunas Regional Administrative Court dismissed the applicants’ action on 8 November 2004. However, on 2 March 2005 the Supreme Administrative Court granted it in part. It was established that the decision of 2 March 2004 to restore the applicants’ property rights was defective since the administrative authorities had not assessed all the relevant circumstances. While they had tried to remedy the situation by adopting amendments to that decision, they had acted ultra vires, since such a power was not granted to them by the law. The court quashed the decisions of 2 March 2004 and 28 April 2004, and ordered the authorities to adopt a fresh decision regarding the restitution of the applicants’ property rights.
Neither the Government not the applicants have provided any further information about the actions taken since 2 March 2005 to implement the decision of 9 September 2002, when submitting their observations (respectively, on 8 December 2005 and 30 January 2006) or thereafter.
The Restitution of Property Act 1991 (Nuosavybės teisių ... atkūrimo įstatymas) (amended on numerous occasions) provides for two forms of restitution: the return of property in certain circumstances and compensation in others. Normally, the land is returned in kind except in cases where, e.g., it is classified as the State’s redeemable land. The land is considered to be redeemable if, inter alia, it was allocated to other private persons and is used as a farm.
On 27 May 1994 the Constitutional Court examined the issue of the compatibility of the Constitution with the domestic law on the restitution of property rights. It held, inter alia, that possessions which had been nationalised by the Soviet authorities since 1940 should be considered as “property under the de facto control of the State”. The Constitutional Court also stated that, “The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is afforded. The law does not itself afford any rights until it is applied to a concrete person in respect of specific property. In this situation the decision of a competent authority to return the property or to compensate has the legal effect that, only from that moment, does the former owner obtain property rights to the specific property.” Moreover, the Constitutional Court held that fair compensation for property which could not be returned was compatible with the principle of the protection of property.
In decisions of 15 June and 19 October 1994, the Constitutional Court emphasised that the notion of the restitution of property rights in Lithuania essentially denoted partial reparation. In this respect the Constitutional Court noted that the authorities of Lithuania, as a re-established State in 1990, were not responsible for the Soviet occupation half a century ago; nor were they responsible for the consequences of that occupation. The Constitutional Court held that, since the 1940s, many private persons had bought, in accordance with the legislation applicable at the material time, various properties which had previously been nationalised. The denial of these factual and legal aspects was impossible, and the domestic legislation on the restitution of property rights duly took into account not only the interests of the former owners, but also the interests of private persons who had occupied or purchased property by way of lawful contracts.
On 20 June 1995 the Constitutional Court held that the choice by Parliament of the partial reparation principle was influenced by difficult political and social conditions, in that “new generations had grown, [and] new proprietary and other socio-economic relations had been formed during the 50 years of occupation, which could not be ignored in deciding the question of the restitution of property”.