ITEMID: 001-127611
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF IZET HAXHIA v. ALBANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
JUDGES: Altina Xhoxhaj;David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1966. He used to be the bodyguard of the then Albanian President, Mr Sali Berisha. At the time of the introduction of the application, he was detained in Turkey pending the outcome of his extradition to Albania.
7. On 12 September 1998 at about 9.15 p.m. Mr Azem Hajdari, a Member of Parliament (“MP”), and his bodyguards B.C and Z.N were shot as they came out of the Democratic Party (“DP”) headquarters in Tirana. Mr Hajdari and B.C died the same day in hospital. The second bodyguard Z.N was seriously injured. Mr Hajdari was a leading member of the DP which was one of the two main political parties in Albania and, at the material time, in opposition. A criminal investigation was opened into the murder.
8. On 13 January 2001 the prosecutor’s office issued an arrest warrant in respect of the applicant, on suspicion of involvement in the assassination of the MP and of one of his bodyguards as well as in the attempted murder of the other bodyguard. The arrest of four other people in connection with the murder was also ordered by the prosecutor.
9. On 31 January 2001 the Tirana District Court (“District Court”) ordered the applicant’s arrest. He was represented by a court-appointed lawyer.
10. On 3 March 2001 the District Court declared the applicant a fugitive after unsuccessful attempts to locate him. The decision stated that the applicant’s family did not know of his whereabouts. His neighbours had also mentioned that no one had lived in the applicant’s residence for two years.
11. On 13 March 2001 the prosecutor lodged a bill of indictment with the District Court. The applicant and four other co-accused were indicted on charges of having participated in, or organised, the assassination of the MP, his bodyguard and the attempted murder of civilians.
12. The trial proceedings against the applicant were conducted in absentia. He was represented by a lawyer appointed by his family in accordance with Article 48 § 3 of the Code of Criminal Procedure (“CCP”).
13. On 29 April 2001 the District Court convicted the applicant in absentia. He was sentenced to twenty-five years’ imprisonment.
14. The applicant’s family-appointed lawyer as well as the co-accused appealed against the conviction to the Court of Appeal and the Supreme Court.
15. On 9 July 2002 and 14 February 2003 the Court of Appeal and the Supreme Court, respectively, upheld the District Court’s decision. The applicant was represented by the family-appointed lawyer.
16. The applicant’s family-appointed lawyer did not lodge a constitutional appeal, owing to the lack of a power of attorney to do so. The constitutional appeals of two of the co-accused, concerning the overall unfairness of the proceedings, were declared inadmissible by the Constitutional Court on 9 July 2003 on the ground that the appeals did not disclose a breach of the right to a fair trial.
17. A detailed account of the facts, the criminal investigation and the domestic courts’ decisions has been described in Haxhia v. Albania, no. 29861/03, 8 October 2013, not yet final and Mulosmani v. Albania, no. 29861/03, 8 October 2013, not yet final.
18. On 3 June 2006 the applicant was arrested by the Turkish authorities, apparently on the basis of an arrest warrant issued by the Albanian authorities. It would appear that the Albanian authorities requested the applicant’s extradition. A copy of the extradition request has not been submitted to this Court. No further information has been provided by the parties as to the outcome of the extradition proceedings in Turkey.
19. The relevant provisions of the CCP as regards the appointment of and representation by a counsel read as follows:
Article 48 – Counsel appointed by the accused
“1. The accused has the right to appoint no more than two lawyers.
2. The appointment is made by means of a statement before the proceeding authority or by a document given or sent by registered mail to the counsel.
3. The appointment of a counsel for a person detained, arrested or sentenced to imprisonment, unless he has appointed a counsel of his own choosing, may be carried out by his relatives in accordance with the procedure stipulated in paragraph 2 above”.
Article 410 – The defendant’s appeal
“2. The defence counsel may lodge an appeal against a conviction in absentia in so far as he has been provided with a power of attorney issued in accordance with the law”.
20. The relevant provisions of the CCP as regards an application for leave to appeal out of time read as follows:
“Article 147 – Leave to appeal out of time
“1. The prosecutor, the accused, the private parties and the defence counsel may request the reopening of the time-limit if they establish that they had no possibility to comply with the time-limit owing to unforeseen events or force majeure.
2. In the event of conviction in absentia, the accused may request the reopening of the time allowed for appealing against the decision if he can establish that he has not been notified of the decision.
3. An application for the reopening of the time allowed for appeal must be lodged within ten days of the date ... on which the defendant effectively acquires knowledge of the decision. Leave to appeal out of time cannot be granted more than once in respect of each party and of each stage of the proceeding”.
4. The application is examined by the court seized at the time of its introduction (për kërkesën vendos organi që procedon në kohën e paraqitjes së saj).
5. The decision on the reopening of the time allowed for appeal [against a judgment] may be appealed against in conjunction with the decision on the merits of the case.
6. An appeal may be lodged with the court of appeal against the decision refusing an application for leave to appeal out of time”.
Article 148 – The effects of leave to appeal out of time
“1. The court which grants leave to appeal out of time, upon request of the party and in so far as it is possible, orders that those actions in which the party was entitled to participate be carried out again.”
21. Articles 449–461 of the CCP govern the application for review of a final judgment.
Article 450 – Cases for review
An application for review may be lodged:
a) when the facts of the grounds of the decision do not comply with those of another final decision;
(b) when the decision has relied on a civil court decision which has subsequently been quashed;
(c) when, subsequent to the decision, new evidence has emerged or has been found which independently or along with previous evidence proves that the decision is wrong; and
(d) when it is proved that the decision was given as a result of the falsification of judicial acts or another fact prescribed by law as a criminal offence”.
22. An application for review should be lodged with the Supreme Court.
23. Section 51 § 4 of the Jurisdictional Relations in Criminal Matters Act states that “a final criminal decision against an extradited person, which was delivered in his absence, can be reviewed at that person’s request, provided that the Minister of Justice gave such an assurance to the requesting State. The application for review should be submitted within 30 days of the applicant’s arrival in the territory of Albania and its examination is subject to the provisions of the Code of Criminal Procedure”.
24. The relevant provisions of the Constitutional Court Act read as follows:
Section 30
“1. The lodging of an appeal before the Constitutional Court shall be subject to the time-limits set out in this law.
2. An individual’s appeal for a violation of his constitutional rights may be submitted no later than two years from the occurrence of such violation. If the law provides a remedy, the individual may lodge an appeal with the Constitutional Court after having exhausted all legal remedies for the protection of his rights. In such cases, the time-limit for the lodging of the appeal is two years from the notification of the last instance body’s decision”.
25. On 3 May 2007 and 10 October 2007 the Gjirokastra District Court granted two accused’s applications for leave to appeal out of time against their conviction in absentia. The accused made their applications following their extradition to Albania. In the meantime, they have lodged two separate applications with this Court (Hysi v. Albania, no. 72361/11 and Malo v. Albania, no. 72359/11) about the fairness of the re-trial. Those applications are pending on the date of the adoption of the present judgment.
26. On 2 November 2010 the Shkodra District Court granted an accused’s application for leave to appeal out of time against his conviction in absentia. The accused made that application following his extradition to Albania (see the Supreme Court’s decision no. 37/2011 for more information).
27. In its unifying decision no. 2 of 14 October 2002, the Supreme Court Joint Benches ruled that, having regard to its strictly personal character, an application for leave to appeal out of time should be lodged only by the accused or by a lawyer appointed by him, within ten days of the date on which the accused was effectively informed of the decision given in absentia (decision no. 2/2002). This right could not be exercised by the accused’s family members if the accused was not realistically aware of the decision in absentia. The application for leave to appeal out of time shall be examined by the District Court, sitting in a three-judge formation. The District Court’s decision can be appealed to the Court of Appeal and, thereafter, to the Supreme Court. However, the last finding was rectified by the Constitutional Court’s decision no. 31/2012 (see paragraph 36 below).
28. In its unifying decision no. 1 of 20 January 2011, the Supreme Court Joint Benches examined three issues concerning an application for leave to appeal out of time (decision no. 1/2011). The appellant had been convicted in absentia. His family-appointed lawyer was first granted leave to appeal out of time against the conviction in absentia to the Court of Appeal. The lawyer’s subsequent appeals on the merits of the case were rejected by the Court of Appeal and the Supreme Court. Following his extradition to Albania, the appellant was granted leave to appeal out of time against the Court of Appeal’s judgment to the Supreme Court. He was represented by a lawyer of his own choosing in the proceedings before the Supreme Court Joint Benches.
29. In the first place, the Supreme Court Joint Benches ruled that, when an appeal had been previously examined and rejected by a Supreme Court’s bench, in proceedings in absentia in which the accused was represented by a family-appointed lawyer in accordance with Articles 48 § 3 and 410 § 2 of the CCP, neither the accused nor his lawyer could (re)lodge an application for leave to appeal out of time against a Court of Appeal’s decision on the grounds that the accused had not been informed of the decision in absentia (me pretendimin se i pandehuri nuk është vënë në dijeni të vendimit) as this would run counter to the principle of res judicata. The same reasoning would apply to an application for leave to appeal out of time against a District Court’s decision.
30. Secondly, the Supreme Court Joint Benches held that only when a higher court dismissed an appeal as having been time-barred, without examining the merits or the lawfulness of the complaints raised in the grounds of appeal, would the accused have a right to lodge an application for leave to appeal out of time in accordance with Article 147 § 1 of the CCP.
31. The third finding concerned the effect of an appeal lodged by an accused, in the absence of a co-accused’s appeal, on the latter’s application for leave to appeal out of time. The Supreme Court Joint Benches held that, as a rule, “in criminal proceedings against several co-accused, the court should not grant an accused’s application for leave to appeal out of time, if it is proved that the [merits of the] case were examined upon the appeal lodged by a co-accused”. However, “only when a[n] [co-accused’s] appeal has been declared inadmissible on the strength of Article 420 of the CCP [non-compliance with formal requirements] and, only when the court solely examined [the merits of] that co-accused’s appeal, can the accused, who did not lodge an appeal, seek leave to appeal out of time against a court’s decision given in absentia”.
32. On 5 October 2011, following two accused’s applications for leave to appeal out of time, the Supreme Court, relying on its unifying decision no. 1/2011, rejected those applications (decisions nos. 121/2011 and 122/2011). The Supreme Court held that the accused’s lawyers, who had been appointed by family members in accordance with Articles 48 § 3 and 410 § 2 of the CCP, had previously and unsuccessfully appealed against the accused’s conviction in absentia to both the Court of Appeal and the Supreme Court. Consequently, their conviction in absentia “had acquired the force of res judicata” which barred any re-trial.
33. Following extradition from Italy, an accused lodged an application for leave to appeal out of time. On 12 October 2011 the Supreme Court, relying on its unifying decision no. 1/2011, rejected that application on the ground that the accused’s family-appointed lawyer had previously and unsuccessfully appealed against the accused’s conviction in absentia to both the Court of Appeal and the Supreme Court (decision no. 130/2011).
34. On 5 September 2012 the Supreme Court, relying on its unifying decision no. 1/2011, held, inter alia, that the lower court had erred in granting the accused leave to appeal out of time, since the accused’s family-appointed lawyer had previously and unsuccessfully appealed against his conviction in absentia (decision no. 218/2012).
35. In response to a referral request by the Supreme Court on the constitutionality of Articles 48 § 3 and 410 § 2 of the CCP, the Constitutional Court decided, by decision no. 30 of 17 June 2010 (decision no. 30/2010), that the appointment of a lawyer or counsel by a family member should be accepted by the domestic courts in so far as it could be established that this constituted an explicit manifestation of the accused’s intention not to attend the proceedings. The same reasoning applied to an application for leave to appeal out of time made by counsel appointed by the accused’s family. The authorities should establish that the accused did not have effective knowledge of his conviction in absentia and that the accused had effective knowledge of the appointment of counsel by his family.
36. In response to a referral request by the Supreme Court on the constitutionality of Article 147 §§ 4 and 6 of the CCP, the Constitutional Court, by decision no. 31 of 17 May 2012 (decision no. 31/2012), clarified that the term “the court seized” provided for in Article 147 § 4 referred to the court against which decision the accused is seeking leave to appeal out of time. If the accused sought leave to appeal against an appellate court decision, the application for leave to appeal out of time should be [lodged with and] examined by the appellate court instead of the District Court. What confused the interpretation of the above term was the use of the words “with the court of appeal” in Article 147 § 6 of the CCP. The Constitutional Court decided that those words were unconstitutional and that they could be replaced by the words “with a higher court”. Since Article 147 of the CCP did not provide for the parties’ [direct] right to appeal against a decision granting leave to appeal out of time (Article 147 § 5 of the CCP) as opposed to the parties’ right to appeal against a decision refusing leave to appeal out of time (Article 147 § 6 of the CPP), the Constitutional Court further held that the legislature should separately provide for the parties’ right to appeal against the granting of the application for leave to appeal out of time prior to the examination of the merits of the appeal. The law as it stood meant that, in the examination of the merits, the Supreme Court would also have to examine the lawfulness and substantiation of the application for leave to appeal out of time, which was not compatible with the nature of proceedings before that instance.
37. On 17 September 2010 the Supreme Court held that an extradited person could make an application for review of the final conviction in absentia under Article 450 of the CCP, provided that the Minister of Justice had given an assurance to the requested State that the extradited person would be re-tried following extradition (decision no. 812/2010). In its reasoning, the Supreme Court relied on Article 3 of the Second Additional Protocol to the European Convention on Extradition which was ratified by Albania and, consequently, took precedence over national law in accordance with the Constitution as well as on section 51 § 4 of the Jurisdictional Relations in Criminal Matters Act (see paragraphs 23 above and 42 below). In that case, the appellant was extradited from Spain on the strength of the Minister of Justice’s assurance that he would be given a re-trial. The Supreme Court accepted his application for review of the conviction in absentia under Article 450 of the CCP, in spite of the exhaustive grounds of review listed in Article 450.
38. On 19 January 2011 the Supreme Court, relying on its decision no. 812/2010, accepted an appellant’s application for review of his conviction in absentia under Article 450 of the CCP (decision no. 9/2011). The appellant was extradited from the United Kingdom on the strength of the Minister of Justice’s assurance that he would be given a re-trial.
39. On 16 February 2011 the Supreme Court accepted an appellant’s application for review of his conviction in absentia under Article 450 of the CCP (decision no. 33/2011). The appellant was extradited from Germany on the strength of the Minister of Justice’s assurance that he would be given a re-trial.
40. In decision no. 30 of 26 November 2009 the Constitutional Court accepted an appellant’s constitutional complaint against his trial in absentia, following his extradition to Albania. The appellant had been convicted by a final decision of the Supreme Court on 24 March 2000 in absentia, and was extradited to Albania on 4 June 2008. The Constitutional Court found a breach of the appellant’s right of defence on account of the domestic courts’ failure to appoint a lawyer to represent him.
41. In decision nos. 83 of 5 July 2013 and 118 of 30 October 2012, the Constitutional Court found that the appellants had failed to lodge a constitutional complaint against their conviction in absentia within the two-year statutory time-limit, which had started to run on the date they were extradited to Albania. In both cases, the appellants were separately convicted in absentia by Supreme Court decisions of 2001 and 2004. They were extradited on an unspecified date in 2007, one from the United Kingdom and the other from Germany. Upon extradition, they lodged separate applications for leave to appeal out of time, but these were rejected by the Supreme Court on 6 May 2011 and 19 January 2012 respectively. The Constitutional Court held that, having regard to the Supreme Court Joint Benches’ unifying decision no. 1/2011 (see paragraph 28 above), it was not open to the appellants to lodge an application for leave to appeal out of time, as their family-appointed lawyer had previously and unsuccessfully appealed against their conviction in absentia. The appellants should have lodged their constitutional complaints within the two-year statutory time-limit, which had started to run on the date of their extradition to Albania, when they had been notified of the decisions given in absentia. Instead, they had lodged them upon the conclusion of the proceedings concerning their application for leave to appeal out of time, after the expiry of the two-year statutory time-limit.
42. The European Convention on Extradition was ratified by Albania on 19 May 1998 and it entered into force on 17 August 1998. Article 3 of its Second Additional Protocol states as follows:
“Article 3 – Judgments in absentia
1. When a Contracting Party requests from another Contracting Party the extradition of a person for the purpose of carrying out a sentence or detention order imposed by a decision rendered against him in absentia, the requested Party may refuse to extradite for this purpose if, in its opinion, the proceedings leading to the judgment did not satisfy the minimum rights of defence recognised as due to everyone charged with criminal offence. However, extradition shall be granted if the requesting Party gives an assurance considered sufficient to guarantee to the person claimed the right to a retrial which safeguards the rights of defence. This decision will authorise the requesting Party either to enforce the judgment in question if the convicted person does not make an opposition or, if he does, to take proceedings against the person extradited.
2. When the requested Party informs the person whose extradition has been requested of the judgment rendered against him in absentia, the requesting Party shall not regard this communication as a formal notification for the purposes of the criminal procedure in that State”.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-122413
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: KATELIEV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Kosyu Todorov Kateliev, is a Bulgarian national, who was born in 1953 and lives in Varna. He was represented before the Court by Mr M. Ekimdzhiev and Ms G. Chernicherska, lawyers practising in Plovdiv, and then by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant’s house was built in the first half of the 20th century in Varna. Until 2005, another small building was attached to its side wall, the length of the wall that functioned as a party wall measuring about 5 metres. On the part of the side wall that was not adjoining the other building, the applicant’s house had several windows, including those of the two bedrooms, and a balcony.
5. On 16 February 2004 the local development plan was amended to permit the construction of a new four-storey building attached to the side of the applicant’s house. The owners obtained all necessary planning permissions and building permits.
6. On 10 January 2005 the construction of a new building began on the neighbouring plot, replacing the old building attached to the applicant’s house, which was demolished. However, as the new building was larger, the length of the party wall shared with the applicant’s house now measured 7 metres. As a result, the house’s bedroom windows were blocked by a blind wall of the new building and the balcony was destroyed.
7. After an enquiry by the applicant, he was informed by the municipality and the building control authorities that he had been notified of an intended amendment to the local development plan, envisaging the construction of the new building, and had not objected to it. The applicant contested this fact, arguing that his signature attesting to the fact that he had received the notification had been forged.
8. In October 2006 the new building was finished and the municipality authorised its use.
9. Following that and because of the damage caused to his house, the applicant and his family moved out to another home.
10. On 1 June 2005 the applicant appealed against his neighbours’ building permit and sought an order that the construction works be ceased. On 9 June 2005 the building control authorities rejected the appeal as inadmissible. The applicant applied for judicial review to the Varna Regional Court.
11. On 22 August 2005 one of the owners of the neighbouring plot asked the Regional Court to authorise the preliminary execution of the building permit, stating that the suspension of the works would inflict contractual penalties and other losses on him. In a final decision issued on the same date the Regional Court authorised the continuation of the construction works, reasoning that their interruption would entail substantial losses for the owners of the plot.
12. By a final decision of 23 May 2006 the Supreme Administrative Court rejected the applicant’s application for judicial review as inadmissible. It held that the applicant had no standing to appeal against the building permit, as it concerned property which did not belong to him.
13. In the meantime, on 13 May 2005 the applicant applied for the judicial review of an order of 16 February 2004 of the Varna deputy mayor, whereby the amendment to the local development plan of the area envisaging the construction of the new building had been approved. The applicant sought to have the construction works ceased pending the resolution of the dispute.
14. On 28 September 2005 the Supreme Administrative Court dismissed the applicant’s application for a suspension order as inadmissible, reasoning that his appeal had suspended the implementation of the local development plan by virtue of law.
15. On an unspecified date one of the owners of the neighbouring plot asked the court to authorise the preliminary implementation of the approved layout pending the outcome of the applicant’s appeal. By a final decision of 5 December 2005 the Regional Court granted the request, reasoning that a delay in implementation would entail losses for the owners of the building.
16. By a final judgment of 20 May 2010 the Regional Court quashed the amendment to the local development plan. It held, in the first place, that it had not been established that the applicant had been informed of the intended amendment (a name different from his had been indicated on the notification papers) and therefore his appeal had been submitted in time. The court noted the disagreement amongst the experts appointed by it as to whether the side of the applicant’s house was officially considered a blind wall, and hence, whether the legislation governing building works had been violated. Without adjudicating on this matter, it held that the order for the amendment did not contain any reasons, which made it impossible to assess its lawfulness. In particular, it was not explained why it was necessary to amend the existing plan. Furthermore, as the applicant had not been duly notified of the amendment, he had not had the opportunity to object to it, which was another violation of the legal requirements.
17. Although the Regional Court’s judgment was not subject to appeal, the owners of the neighbouring building tried to challenge it before the Supreme Administrative Court, which rejected their appeal as inadmissible on 25 October 2011.
18. From the very beginning of the construction works on the neighbouring plot the applicant submitted numerous complaints to the building control authorities, which, however, refused to intervene, pointing out that his neighbours had been issued with all necessary planning permissions and building permits and, later on, that the courts had allowed the building works to be carried out.
19. The applicant also complained to the Ministry of Public Works, the Ombudsman, the National Assembly, the President of Bulgaria, the Varna municipality and other bodies, which all refused to intervene and on most occasions referred the matter back to the building control authorities.
20. On an unspecified date in 2007 the applicant brought an actio negatoria against the owners of the neighbouring building. On 5 December 2008 the Varna District Court dismissed the action. However, in a judgment of 11 May 2010 the Varna Regional Court reversed and allowed the claim, ordering the neighbours to demolish their building. It held, on the basis of two expert reports, that the amendment to the local development plan had breached the applicable legislation. As a result, the newly constructed building had rendered useless two of the applicant’s rooms and had had a detrimental effect on the living conditions in his house. The court held that the violation of the applicable legal provisions had been so serious that it had rendered null and void both the amendment to the local development plan and the building permit.
21. One of the defendants filed an appeal on points of law, pointing out that his wife had not been summoned as a party to the proceedings, although she was a co-owner.
22. In a judgment of 29 June 2011 the Supreme Court of Cassation quashed the judgment of 11 May 2010 and remitted the case to the Regional Court for fresh examination. It established that the appellant’s wife had been an interested party to the proceedings and that it had been necessary to ensure the participation of all interested parties. It further found that it could be inferred from the case file that there were other owners of the building who had not been summoned to the proceedings.
23. After the case was remitted, the applicant identified all owners of the building and notified the Regional Court of their names and addresses. A hearing was scheduled for 25 June 2012. The Court has not been informed of the developments in the proceedings after that date.
24. On an unspecified date in 2005 the applicant complained to the prosecution authorities that the notification sent to him concerning the amendments to the local development plan had been signed on his behalf by an unknown person. Criminal proceedings for forgery were opened against one of the owners of the neighbouring plot, but the investigation was subsequently directed against the applicant. On 23 December 2005 he was charged with perjury, in that he had lied to the investigator when declaring that he had not himself signed the document in question. The applicant was prohibited from leaving his place of residence without permission.
25. On 26 June 2008 the district prosecutor terminated the criminal proceedings against the applicant and cancelled the prohibition on leaving the town. It is unclear whether any investigation against the owner of the neighbouring plot remained underway.
26. Section 50 of the Property Act 1951 (Закон за собствеността) provides that the owner of a piece of immovable property cannot carry out actions which impede, in more than the usual way, the use of neighbouring properties.
27. Under section 109(1) of the same Act, an owner may request the cessation of any “unjustifiable activity” which hinders him in the exercise of his rights. In an interpretative decision (no. 31 of 6 February 1985) the former Supreme Court explained that such a claim (actio negatoria) provided protection against unjustified interference – whether direct or indirect – which might prevent an owner from using his property to the fullest extent. The claim could be used to declare such interference unlawful and enjoin the persons concerned to stop it and remove its effects. The Supreme Court held, in particular, that in cases where buildings have been constructed on a neighbouring property without the necessary documents and permits or in contravention thereof, the owner was not obliged to tolerate any restrictions on his right to use and enjoy his property which such a situation might cause. Thus, the actio negatoria could be used to obtain an order to demolish a building. Lastly, the Supreme Court held that unlike decisions of the building control authorities, the courts’ judgments pursuant to such claims determined with finality disputes between the aggrieved owner and the perpetrator of the interference, and could be enforced as a matter of right.
28. In judgment no. 1291 of 16 November 1992 (case no. 1038/1992) the former Supreme Court of Bulgaria, examining an actio negatoria, held that the very fact of construction in breach of the relevant rules and legal provisions amounted to an impermissible interference with the neighbour’s right to property, which did not thus need to be proven any further. In judgments no. 7 of 24 February 2000 (case no. 1440/1999) and no. 43 of 4 March 2009 (case no. 4983/2007) the Supreme Court of Cassation held in addition that an actio negatoria could be allowed even where the construction or reconstruction works in the neighbouring property had been carried out in accordance with the relevant construction permits, as in issuing them the administrative authorities had not been under an obligation to take into account the neighbour’s interests.
29. In judgment no. 350 of 5 August 2010 (case no. 1269/2009), the Supreme Court of Cassation allowed an actio negatoria brought by the owners of a house whose neighbours had constructed a building in contravention of the construction permit granted, thus occupying a portion of the claimants’ plot and blocking the light. The Supreme Court of Cassation, finding that the situation hindered the effective enjoyment of the claimants’ right to use and enjoy their property, ordered the neighbours to demolish their building.
30. In judgments no. 40 of 31 January 2011 (case no. 296/2010) and no. 46 of 26 May 2011 (case no. 438/2010) the Supreme Court of Cassation also ordered, in actions under section 109 of the Property Act, the demolition of unlawfully constructed buildings.
31. Section 1 of the 1988 State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди, “the SMRDA”) provides that the State and municipalities are liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of an administrative activity. The liability for damages of the municipalities was introduced following legislative amendments of July 2006.
32. The domestic courts have applied this provision in a number of cases concerning the prevention of the effective exercise of the right to use and enjoy property caused by unlawful construction works in neighbouring plots authorised by the authorities. In judgment no. 633 of 19 November 2009 (case no. 2032/2008), the Supreme Court of Cassation upheld a lower court’s judgment allowing such a claim against the building supervision authorities and the Ministry of Public Works, finding that the construction works on a plot neighbouring that of the claimant, although duly authorised by the defendants, had contravened the relevant construction regulations and had, as a result, infringed the claimant’s right to light. The Supreme Court pointed out that the authorities’ liability was engaged even where none of their decisions related to the disputed construction works had been expressly found to be null and void; it was sufficient that the construction works were in breach of the statutory requirements.
33. In another judgment, no. 475 of 9 January 2012 (case no. 1922/2010), the Supreme Court of Cassation awarded damages to a claimant in a similar situation, pointing out that he had on numerous occasions alerted the building control authorities of the unlawfulness of the construction works on the neighbouring plot. Those authorities had not fulfilled their obligation to order the cessation of the unlawful construction works and have the neighbours’ building demolished, which had resulted in damage to the claimant’s house.
34. In another case (see judgment no. 77 of 13 May 2005, case no. 234/2004, the judgment has entered into force), the Plovdiv Court of Appeal awarded damages to claimants whose neighbours had erected a building without the necessary construction permits. The construction had subsequently been retrospectively approved by the municipal authorities, but the approval order had been annulled by the courts. The Court of Appeal took note of the fact that even following these developments the neighbours’ building was still standing and its demolition had been neither ordered, nor undertaken, and therefore held that the municipal authorities had failed in their obligations to protect the claimants’ property.
35. In a similar situation, the Veliko Tarnovo Court of Appeal also awarded damages (judgment no. 361 of 15 January 2009, case no. 606/2008, the judgment has entered into force). In that case, the claimant’s property had been earmarked for expropriation and on that basis the municipal authorities had authorised the construction of a new building in its immediate proximity. However, the intended expropriation had subsequently been abandoned, which had forced the claimant to remain in her house, whose value had already seriously depreciated and which had also been damaged by the construction works close to it.


ITEMID: 001-71451
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SKOROBOGATOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (length of proceedings);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1956 and lives in Luchegorsk.
5. In September 1995 the applicant lodged an action before the Severo-Evenkiyskiy District Court of the Magadan Region against the head of the local administration, a transport company and a private individual for compensation for damage.
6. The Severo-Evenkiyskiy District Court disallowed the action because it should have been lodged before the Magadan Town Court which had territorial jurisdiction over it.
7. On 1 November 1995 the applicant lodged the action before the Magadan Town Court. She asked the court to examine her claim in her absence, as she lived in Khabarovsk.
8. As the applicant’s claim had not been examined from 1995 to 1998, she complained to various officials about the court’s inactivity.
9. On 16 August 1998 the Deputy President of the Magadan Town Court informed the applicant that it was impossible to expedite the proceedings because the judges were overburdened with cases.
10. On 4 March 1999 the applicant increased her claim.
11. A hearing was fixed for 8 April 1999 and adjourned due to the defendants’ absence.
12. On 28 July 1999 the Magadan Town Court dismissed the applicant’s action.
13. On 24 August 1999 a copy of the judgment was sent to the applicant.
14. On 14 October 1999 the applicant appealed against the judgment of 28 July 1999.
15. On 1 November 1999 the Magadan Town Court stayed the appeal proceedings and requested the applicant to submit by 30 November 1999 three copies of her statement of appeal and to pay RUR 5 in a court fee.
16. On 30 November 1999 the judgment of 28 July 1999 became final because the applicant had not paid the fee.
17. On 16 December 1999 the Magadan Town Court returned the statement of appeal.
18. On 7 June 2000 the Presidium of the Magdan Regional Court, by way of supervisory review, quashed the judgment of 28 July 1999 and remitted the case for a new examination.
19. On 20 June 2000 the case-file was sent to the town court.
20. On 10 July 2000 the judge M. was assigned to the case.
21. On 13 September 2000 the case was transferred to the judge D.
22. Of six hearings listed between 19 October 2000 and 27 February 2001, four hearings were adjourned. Two hearings were adjourned due to the applicant’s absence. The other hearings were adjourned because the parties did not attend, although the applicant repeatedly asked the court to hold hearings in her absence.
23. In February 2001 the applicant moved from Khabarovsk to the Primorye Region. She submits that promptly after the move she advised by post the Magadan Town Court of her new address.
24. On 10 April 2001 the Magadan Town Court requested the applicant to submit additional documents. It appears that the instructions were successfully fulfilled by the applicant.
25. On 14 June 2001 the Magadan Town Court, in the applicant’s absence, dismissed her action.
26. On 17 July 2001 the registry of the Magadan Town Court sent a copy of the judgment to the applicant’s old address in Khabarovsk.
27. On 14 March 2002 the applicant complained to the Magadan Regional Court about the town court’s inactivity in her case.
28. On 2 April 2002 the President of the Magadan Regional Court replied by a letter that the case had been decided on 14 June 2001. The President also acknowledged that, although the applicant had advised the court of her new address, on 17 July 2001 a copy of the judgment had been mistakenly sent to the applicant’s previous address.
29. On 1 April 2002 the registry of the town court sent a copy of the judgment of 14 June 2001 to the applicant’s address in Khabarovsk.
30. On 11 September 2002 the President of the Magadan Regional Court informed the applicant that a copy of the 14 June 2001 judgment had been twice sent to the applicant’s address in Khabarovsk and that the Magadan Town Court was told to send a copy of the judgment to her current address in Primorye.
31. On 12 September 2002 the Magadan Town Court sent a copy of the judgment of 14 June 2001 to the applicant’s address in Primorye. She received it on 18 September 2002.
32. On 3 October 2002 the applicant requested the Magadan Regional Court to extend the time-limit for lodging an appeal against the judgment of 14 June 2001. The request enclosed a statement of appeal.
33. On 21 October 2001 the Magadan Town Court extended the time-limit and accepted the applicant’s statement of appeal.
34. On 5 November 2002 the Magadan Regional Court, in the applicant’s absence, upheld the judgment of 14 June 2001.
35. On 16 December 2002 a copy of the judgment of 5 November 2002 was sent to the applicant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-93638
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: SHUB v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: The applicant, Mr Boruch Shub, is a Lithuanian national who was born in 1924 and lives in Tel Aviv, Israel. He is represented before the Court by Ms F. Kukliansky, a lawyer practising in Vilnius.
The facts of the case, as submitted by the applicant, may be summarised as follows.
After Lithuania regained independence in 1990, the Restitution of Property Act, concerning the restitution of property rights to property nationalised by the Soviet authorities, was enacted. The applicant, an Israeli citizen at that time, requested the authorities to restore to him the property rights to a building owned by the applicant’s late relatives prior to nationalisation.
By letters of 16 March 1992 and 21 September 1994, the Vilnius City Board informed the applicant that his request could not be granted because he did not meet the criteria set out in the Restitution of Property Act, namely, he did not have Lithuanian citizenship and did not reside in the country. On 8 August 1994 the Government’s office also informed the applicant about the citizenship and residence requirements.
On 15 November 2002 the applicant started an exceptional Presidential procedure to obtain Lithuanian citizenship. On 11 April 2003 the applicant gained Lithuanian citizenship by a decree of the State’s President. In 2005 the applicant requested the domestic courts to extend the statutory time-limit for his application for restitution, which had lapsed on 31 December 2001. The applicant submitted that he could not have applied for the restitution of his claimed property rights within the statutory time-limit because he had not had Lithuanian citizenship earlier. He also noted that he did not know the Lithuanian language and did not reside in Lithuania, which made it difficult for him to claim his rights within the time-limit. Before the courts the applicant was represented by counsel, who was present at all the hearings.
On 24 August 2005 the Vilnius Regional Administrative Court granted the request. The court held that the applicant had actively sought to have his property rights restored and noted that his requests for restitution had been admitted and examined. Furthermore, the applicant had sought Lithuanian citizenship in order to fulfil all the requirements of the Restitution of Property Act. The court observed that in 2004 the law was amended to include a possibility to extend the time-limit for applications for restitution and found no reason to deprive the applicant of that possibilty.
On 22 December 2005 the Supreme Administrative Court overturned the decision and dismissed the request by the applicant. The court stated that the applicant, not being a Lithuanian citizen before 2003, did not meet the criteria set out in the law and thus could not claim restitution of property rights. The applicant had only become a Lithuanian citizen on 11 April 2003, after the time-limit for restitution applications had already expired. The examination of the provisions regulating the matter allowed the conclusion that the time-limit for submitting a restitution request could only be extended in respect of those persons who had acquired the right within the prescribed time-limit, but who had not been able to make use of it properly within the deadline for good reasons. The submission of the request for restitution, its time-limit and the extension of that deadline were interconnected. The applicant did not have the right to the restitution of property within the statutory time-limit until 31 December 2001 because he had not been a Lithuanian citizen. Thus, the legal provision regarding the extension of the time-limit was not applicable to his situation. Furthermore, the court observed that the applicant had only applied for citizenship under the exceptional Presidential procedure in 2002, whereas there had been nothing to stop him taking action earlier.
The Restitution of Property Act 1991 (Nuosavybės teisių ... atkūrimo įstatymas) (amended on numerous occasions) provides that the right to property nationalised by the Soviet authorities can only be restored to persons who are citizens of Lithuania. Under Article 10 of the Act, applications for the restitution of property rights could be submitted up until 31 December 2001. The time-limit of 31 December 2003 was set for the production of any additional supporting documents which could not have been submitted earlier in respect of applications made before 31 December 2001. Article 10 of the Act, as amended on 12 October 2004, provides that the time-limit for both an application for the restitution of property rights and the submission of supporting documents could be extended if substantial reasons for missing the deadline existed. Whether those reasons are sufficiently important is to be established by the courts on a case-by-case basis.


ITEMID: 001-79574
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KRASULYA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 10;Violation of Art. 6-1;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1952 and lives in Stavropol.
7. The applicant is the editor-in-chief of a regional newspaper “Noviy Grazhdanskiy Mir”. On 4 January 2002 the newspaper published an editorial under the heading “Chernogorov stealthily approaches Stavropol. Thoughts about one decision of the town legislature.” (“Черногоров подбирается к Ставрополю. Размышления по поводу одного решения городской думы”). The article was signed with the pseudonym of V. Nikolayev. Mr Chernogorov was the governor of the Stavropol region and the applicant's competitor in the election to that office in 2000.
8. The article lamented the decision by a majority of members of the Stavropol town legislative body to change the procedure of appointment of the town's mayor: the mayor would no longer be elected by the town's residents, but appointed by the town legislature. The publication alleged that the decision had been taken under pressure from Mr Chernogorov:
“[Members of the legislature] were requested [to make the decision] by the governor himself, who attended the session, accompanied by many of his advisors, to try to persuade those in attendance...
From that moment on, each member of the legislature has been caught in a web of sale-and-purchase transactions. We can only speculate what wonders they will be promised by Chernogorov's representatives. One thing is sure, nobody will offer the legislators more than the governor himself...
Each member of the legislature will get his share and consume it on the sly.”
9. The article concluded with a critical appraisal of the governor as politician and manager:
“Having miraculously escaped defeat in the governor's election – only because the regional elites failed to reach an agreement and nominate a passable candidate – and having avoided, for the same reason, the formation of a powerful opposition in the regional legislature, our loud and ambitious, but completely incapable governor is about to lay his hands on [the town of Stavropol].”
10. On 5 February 2002 the prosecutor's office of the Stavropol Region granted the request of Governor Chernogorov and initiated criminal proceedings against the applicant for dissemination of defamatory statements in the mass-media (Article 129 § 2 of the Criminal Code).
11. On 6 March 2002 an investigator ordered a linguistic examination of the publication. The examination was performed on 18 March 2002 by Mr B., a professional journalist with degrees in language studies and law, teaching at the Language Studies and Journalism Department of Rostov State University. The expert came to the following conclusion:
“General conclusion: The text of the article submitted for examination... conveys in a rather harsh and emotional form the author's opinion and his judgments on the role of the Stavropol Region's governor, Mr Chernogorov, in the forthcoming election of the Stavropol town mayor. The text does not contain any words or expressions that are insulting for the governor, with the exception of the controversial description 'incapable'.”
12. The expert admitted that certain sentences conveyed a negative attitude towards the managerial abilities of the governor; however, he asserted, the publication did not contain any allegations about violations of laws, including electoral laws, by the governor or any statements damaging his professional reputation. The expert also pointed out, referring to an academic article by the Krasnodar town prosecutor, that ideas, opinions and value-judgments were not subject to a court-ordered refutation for being untrue, and the aggrieved person should instead exercise his right to a reply in the same medium.
13. On an unspecified date the applicant was charged with criminal defamation involving an allegation about the commission of a serious crime (Article 129 § 3 of the Criminal Code) and with publicly insulting a State official in connection with the performance of his duties (Article 319 of the Criminal Code). The case was referred to a court.
14. Before the court the applicant pleaded not guilty. He maintained that the publication in question had not contained any statements of fact, which could be declared untrue.
15. Mr Chernogorov asserted that the statements in the publication to the effect that he had obtained a decision from the town legislature through bribes and that he had had a narrow escape at the 2000 election, as well as a reference to him as being “completely incapable”, were libellous and damaging to his honour, dignity and professional reputation.
16. The court heard evidence from three members of the Stavropol town legislature, who denied that they had been offered any goods or benefits by the governor in exchange for their consent to the mayor's appointment. The governor's advisors testified in the same vein.
17. On 12 September 2002 the Oktyabrskiy District Court of Stavropol delivered a judgment in the applicant's case. In the judgment the court rejected the conclusions of the linguistic examination of 18 March 2002 on the ground that the report was a “subjective appraisal” by Mr B. of the publication and, in addition, that it had not been shown that Rostov State University or Mr B. had had a licence to carry out linguistic examinations. The court substituted its own assessment of the article's contents:
“The court considers that the article contains not judgments and assumptions, as asserted by the defence, but precisely statements of fact... because the article specifies when, where and under what circumstances the decision on amendments to the Stavropol town charter was made and what the result of the voting was. The use of the future tense and infinitives in the text of the article is the author's way of writing and it does not indicate that the discourse is about hypothetical future events...”
18. The court further held that it was not possible to establish who had been the author of the article. The prosecution had not proven that it had been written by the applicant. However, he was responsible for its publication in the newspaper of which he was the editor.
19. The court found as follows:
“The disseminated defamatory statements damage the honour and dignity of the Stavropol Region's governor Chernogorov, undermine his professional reputation, and accuse him of a serious crime. The repeated statements that 'each member of the legislature has been caught in a web of sale-and-purchase transactions', that 'they will be promised wonders by Chernogorov's representatives', that 'nobody will offer the legislators more than the governor himself', and that each member of the legislature 'will get his share and consume it on the sly' accuse the governor Chernogorov of bribing the members of the legislature for adoption of a desired decision. The statements that each member of the legislature has been caught in 'a web of sale-and-purchase transactions' and each member of the legislature 'will get his share' accuse Mr Chernogorov of bribing each member of the legislature who took part in the adoption of the decision, that is of a serious criminal offence under Article 291 § 2 of the Criminal Code, repeatedly committed [emphasis in the original].
[The applicant's] statements that Mr Chernogorov 'has miraculously escaped defeat in the governor's election only because the regional elites failed to reach an agreement' and 'nominate a passable candidate' are also untrue, and [the applicant] knew that they were untrue. Being himself a candidate in the 2000 elections of the Stavropol Region's governor, [the applicant] could not be ignorant of the election results, in which Mr Chernogorov polled at least 20 per cent more votes than the other candidates... This result does not permit concluding that Mr Chernogorov has 'miraculously' won the elections. [The applicant] disseminated untrue statements that Mr Chernogorov's election as the Stavropol Region's governor had not been the product of an informed choice of a majority of the Region residents but had been brought about accidentally because of lack of consent between certain 'regional elites'. Those statements damage the reputation of the legitimately elected governor among the Region residents, denigrate and belittle his person.
The court considers that [the applicant's] statement that 'our loud and ambitious, but completely incapable governor is about to lay his hands on [the town of Stavropol]' was also an untrue statement damaging Mr Chernogorov's honour and dignity and undermining his reputation. No one has ever established that Mr Chernogorov was incapable in the legal sense of this term. Moreover, as the Region residents re-elected Mr Chernogorov as the Stavropol Region's governor for a second term, it cannot be concluded that Mr Chernogorov is a 'completely incapable governor' in the sense of incapability to act.”
20. The court found the applicant guilty of defamation. However, the applicant was acquitted of publicly insulting a State official because, in the court's opinion, the publication did not contain cynical or obscene language in respect of the governor.
21. The applicant was given a suspended sentence of one year's imprisonment, conditional on six months' probation.
22. The applicant and his lawyer appealed against the conviction to the Stavropol Regional Court. Their grounds of appeal invoked, in particular, Article 10 of the Convention and referred to the special place of journalistic freedom in a democratic society and wider limits of criticism in respect of a public figure, which the Stavropol Region's governor undeniably was. The applicant's lawyer also complained about the first-instance court's refusal to accept the linguistic examination report on the pretext that the expert did not have the required licence, whilst domestic law did not provide for such a requirement.
23. On 31 October 2002 the Criminal Division of the Stavropol Regional Court upheld the judgment of 12 September 2002. The Regional Court did not address the applicability of Article 10 of the Convention or the first-instance court's decision not to admit the linguistic examination report in evidence.
24. Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of the mass-media.
25. Article 129 § 1 of the Criminal Code of the Russian Federation defines defamation as dissemination of information known to be untrue that damages the honour and dignity of another person or undermines the person's reputation. Article 129 § 2 provides that defamation disseminated in a public statement, publicly displayed work of art or in the mass-media is punishable by a fine and/or correctional work for a period of up to two years. Article 129 § 3 penalises defamation, involving an accusation against a person that he or she committed a serious or especially serious crime, by up to three years' imprisonment.
26. Article 57 § 1 of the Code of Criminal Procedure of the Russian Federation of 18 December 2001 establishes that a person having technical knowledge may be commissioned to give an expert opinion in a criminal case. Pursuant to Article 195 § 2 a forensic expert study may be carried out by a State court expert or by any other expert having relevant technical knowledge.
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58229
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF PORTINGTON v. GREECE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 7. The applicant is a British citizen born in 1950. He is currently detained in Wandsworth Prison, London.
8. In 1986, on a date which has not been specified, while crossing the frontier into Greece the applicant was arrested and charged with committing a murder in July 1985 on his previous visit to Greece as well as with using and carrying arms. He denied the charges.
9. The applicant was remanded in custody by the magistrates of Kastoria on a date which has not been specified. On 28 February 1986 he was committed for trial by the Indictments Division of the First Instance Criminal Court (Symvoulio Plimmeliodikon) of Kastoria. On 27 November 1987 his appeal against the decision of 28 February 1986 was dismissed by the Indictments Division of the Salonika Court of Appeal (Symvoulio Efeton) which further charged him with robbery.
10. On 17 February 1988, after a hearing which lasted one day, the Salonika Criminal Court (Mikto Orkoto Dikastirio) composed of jurors and professional judges convicted the applicant of all the charges. He was sentenced to the death penalty for murder, to life imprisonment for robbery and to five years’ imprisonment for carrying and using arms. On 18 February 1988 the applicant appealed against the verdict on the ground that the evidence before the trial court did not sustain a finding of guilt.
11. On 6 October 1989 the applicant’s appeal came for hearing before the Salonika Criminal Court of Appeal (Mikto Orkoto Efetio). The applicant was represented by officially appointed counsel, Mr H. Nine prosecution witnesses were absent. According to the Government, the applicant, through his defence counsel, requested an adjournment on the ground that, while none of the witnesses present had first-hand information about the murder, there was a person in England who knew about the case and who should be called to testify. The Court of Appeal granted the applicant’s request and adjourned the hearing sine die to enable further evidence to be obtained. The applicant disputes this and maintains that he did not instruct his lawyer to apply for an adjournment and that the Court of Appeal adjourned the case on the ground that it was necessary to hear the testimony of all the witnesses, including the nine who were absent at the appeal hearing.
12. The applicant's appeal came for hearing again on 19 April 1991. According to the Government, the applicant asked for the adjournment of the case on the ground that a certain lawyer, Mr G., who had taken over his case a year before was not present at the hearing. Mr H., who was present, stated that he was prepared to defend the applicant. The prosecutor considered that the case should be heard on that day. The court decided to adjourn sine die to enable the applicant to be represented by Mr G. The applicant submits that he did not request that the court adjourn sine die but merely sought a brief adjournment to enable him to arrange his legal representation.
13. On 8 February 1993 the applicant appeared again before the Court of Appeal, represented by another counsel, Mr S. The defence asked for an adjournment on the ground that six prosecution witnesses were absent. The prosecution agreed and the court adjourned sine die. The applicant claims that he did not request that the court adjourn sine die but merely requested that all witnesses be present. Between 27 May 1993 and 31 December 1993, 16 February 1994 and 17 February 1994, 7 March 1994 and 11 March 1994, 16 March 1994 and 18 March 1994, 21 March 1994 and 13 May 1994 and 16 May 1994 and 30 June 1994 lawyers were on strike.
14. A new hearing for the applicant’s appeal was fixed for 5 December 1994. According to the Government, the applicant asked for an adjournment on the ground that he wanted to be represented by a lawyer whom the British Embassy had found for him and whom he did not name. The prosecutor agreed and the court adjourned sine die. The applicant submits however that this reflects the position as at 19 April 1991 (see paragraph 12 above), and by December 1994 he was represented by Mr E., and did not want to change lawyers.
15. The applicant’s appeal was finally heard on 12 February 1996. The Court of Appeal upheld his conviction but commuted his death sentence to life imprisonment. At the time of the Court’s consideration of the case the applicant had lodged an appeal on points of law.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-73179
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KRISTOF v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1938 and lives in Makó.
5. On 8 October 1993 the applicant’s ex-wife brought an action in trespass against him in the Budapest XVIII/XIX District Court, in the context of a dispute concerning the use of the divorced couple’s flat.
6. On 21 December 1993 and 5 April 1994 this court held hearings.
7. On 28 February 1996 the court instructed the plaintiff to submit better particulars of her claims.
8. On 19 March 1997 the case was transferred to the Makó District Court for reasons of competence. On 9 and 23 September 1997 the court held hearings. After a short stay of the proceedings, a further hearing was held on 16 December 1997, which the plaintiff did not attend. After another stay, hearings took place on 5 May and 25 June 1998. On 7 July 1998 the plaintiff submitted additional particulars of her claims.
9. The court held hearings on 29 September, 22 October 1998, 15 July, 16 and 23 September 1999. On that day the court gave judgment, partly finding for the plaintiff. It ordered the applicant to pay compensation to the plaintiff in the amount of 67,592 Hungarian forints (HUF) plus accrued interest. The court held that the subject matter of the case was the settlement of scores concerning the division of the matrimonial property.
10. On appeal, on 26 January 2000 the Csongrád County Regional Court upheld this decision.
11. On 31 May 2000 the Supreme Court rejected as inadmissible the applicant’s petition for review, without examining it on the merits, since the disputed amount fell below the statutory threshold of HUF 500,000, under which no review lay against second-instance decisions.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91310
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SIMOVA AND GEORGIEV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 6. The applicants were born in 1937 and 1960 respectively and live in Sofia.
7. In 1984 the first applicant purchased from the State a two-room apartment of 48 square metres located on a main commercial street in Sofia. The apartment had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following years.
8. In 1987 the first applicant transferred her title to her son, the second applicant, but preserved the right to use one room of the apartment until the end of her life.
9. After the adoption of the Law on the Restitution of Ownership of Nationalised Real Property in 1992, the former pre-nationalisation owners of the apartment brought proceedings against the first applicant under section 7 of that Law seeking the nullification of her title and the return of their former property. They also brought a rei vindicatio action against the second applicant.
10. In 1997 the District Court found that the 1984 transaction had been valid and dismissed the claims.
11. On appeal, on 6 August 1998 the claims were granted by the Sofia City Court, which also ordered the applicants to vacate the apartment. The final judgment was that of the Supreme Court of Cassation of 20 July 1999, which upheld the Sofia City Court’s judgment.
12. The courts found that in 1984, at the time of the transaction, the building plan of Sofia had envisaged the demolition of the applicants’ apartment building and the construction of a new apartment building. The relevant regulations had prohibited the sale of State apartments in such circumstances. It followed that the first applicant had obtained the apartment unlawfully. Thus, her title had been null and void and the second applicant’s title was null and void as well.
13. The applicants were evicted in April 2000.
14. In 2000, it became possible for the applicants to obtain compensation from the State, in the form of bonds which could be used in privatisation tenders or sold to brokers.
15. On 5 February 2001 the regional governor of Sofia refused the applicants’ request for compensation bonds. Upon the applicants’ appeal, in judgments of 2002 and 2003 the courts quashed the refusal and granted the applicants’ request.
16. In June 2003 an expert appointed by the courts assessed the market value of the apartment at 22,032 Bulgarian levs (“BGN”), the equivalent of approximately EUR 11,200. The applicants submitted the opinion of another expert, who assessed the apartment’s market value at BGN 40,490 (the equivalent of approximately EUR 20,700).
17. In February 2004 the applicants received compensation bonds for BGN 21,600 (the equivalent of approximately EUR 11,000).
18. They sold them on 26 November 2004, when bonds were traded at 68% of face value, and obtained BGN 15,055.20 (the equivalent of approximately EUR 7,680).
19. In 1999 the first applicant brought an action under the State Responsibility for Damage Act seeking BGN 44,800 in damages from the State and the Sofia municipality, which had sold her the apartment in breach of the relevant domestic law. On 10 April 2006 the claim was disallowed in a final judgment of the Sofia Court of Appeal, which found that the authorities’ actions in concluding the contract of sale did not give rise to responsibility under the State Responsibility for Damage Act and that in any event the first applicant could have refused to buy an apartment in breach of the law.
20. The relevant background facts and domestic law and practice have been summarised in the Court’s judgment in the case of Velikovi and Others v. Bulgaria (nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, 15 March 2007).
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-77993
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SKIBINSCY v. POLAND
IMPORTANCE: 2
CONCLUSION: Violation of P1-1;Non-pecuniary damage - reserved;Pecuniary damage - reserved;Costs and expenses partial award - Convention proceedings;Costs and expenses partial award - domestic proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicants owned a number of plots of land located in Częstochowa, on Wręczycka Street.
9. In 1979 a local land development plan was adopted under which a local health centre was to be built on their land. However, this plan was not implemented and apparently the land was later designated for the construction of small individual houses.
10. In 1991 the applicants requested the municipal authorities to reclassify their land so that it could be used for construction purposes. In December 1991 they were granted an initial approval for a development project on their land (decyzja o warunkach zabudowy).
In June 1992 they obtained a permit under Article 10 of the Land Administration and Expropriation Act 1985 to divide their plot, which was listed in the local land register as plot no. 1/1, into 15 smaller plots suitable for the construction of individual houses (decyzja o zatwierdzeniu projektu podzialu nieruchomości).
11. In 1994 the Częstochowa Municipal Council announced that it was intending to adopt a new land development plan under which part of the applicants’ property was to be used for the construction of a major roadway. On 17 October 1994 the applicants lodged their objections against the proposed amendments. On 27 October 1994 the amendments were adopted by the Council. The applicants’ objections were not taken into consideration.
12. On 28 November 1994 the applicants requested that final construction permits (zezwolenie na budowę) be granted to them in respect of certain plots on the basis of the decisions given in 1991 and 1992 (see paragraph 10 above).
13. In June 1995 the local State administration obliged the City Hall to draw up a financing plan for local infrastructure investments, including the road network, and to fix time-limits for the purchase from their owners of plots necessary for the implementation of the plans.
14. On 4 September 1995 the applicants requested the City Hall to amend further the local plan as amended in 1994 by providing that the projected roadway would, instead of 40, be 18 metres wide, as provided for in the 1991 and 1992 decisions allowing their property to be divided into smaller construction plots.
15. In a letter to the City Hall of 6 September 1994, communicated to the applicants for information, the Częstochowa Governor stated that the construction of the roadway would not be provided for in the financing scheme for the local land development plan until at least 2010. Therefore, no purpose was served by blocking the development of the properties concerned.
16. Subsequently, in 1995 the local municipality informed the public that it would start proceedings in order to amend the 1979-1994 land development plan in its part concerning the projected roadway.
17. On 8 August 1996 the applicants submitted a request to obtain a final construction permit for their plot no. 1/9 on Wręczycka Street. Those proceedings were subsequently stayed, the authorities considering that no decision could be given before the changes to the development plan had been adopted.
18. In early 1997 the local municipality made public the proposed amendments to that plan. In April 1997 the applicants lodged their objections against them.
19. On 23 April 1997 the applicants asked the Mayor when the Town Council would discuss the new amendments to the plan.
20. On 16 June 1997 they were informed that the Town Council would discuss the amendments to the plan at its session to be held on 19 June 1997, but that it would most likely decline to make any changes to it.
21. On 19 June 1997 the Council decided not to make any changes to the 1979-1994 plan as proposed by the applicants and other persons who had lodged objections against the amendments. It was observed that the proposed changes had resulted in a number of objections being lodged by the owners of properties concerned. It was impossible to reconcile all of the conflicting interests. It was further acknowledged that the proposed amendments to the plan would free some of the applicants’ plots. However, on the whole, and having regard to the number of serious objections against the changes, it was not considered feasible to amend the plan accordingly. In particular, it would not have been feasible to build the projected roadway if it were to be only 18 metres wide, as had been proposed inter alia by the applicants. Moreover, had the plan been amended, the municipality would have incurred substantial expenditure for the purchase of plots which would have to be used for the construction of the roadway. It was further noted that the local investment plan did not provide for the construction of the road to begin before 2010. Nevertheless, it would be premature to give up the construction, since there remained a possibility that the necessary funds might eventually be secured from the European Union funds.
22. The applicants lodged a complaint against this decision with the Supreme Administrative Court. The court rejected their complaint as it was still open to them to have recourse to a remedy provided by local government legislation, namely requesting the Town Council to bring its actions into conformity with the law. The applicants accordingly did so.
23. On 2 December 1997 the Town Council refused the applicants’ request.
24. On an unspecified later date the applicants’ request for the final construction permits for their plots was dismissed, regard being had to the fact that these plots were in the vicinity of the projected road.
25. The applicants lodged a complaint with the Supreme Administrative Court against the municipality’s failure to adopt changes to the local development plan. They argued that under the 1979-1994 land development plan they could not use their property in accordance with their wishes. Their requests to obtain final construction permits had been refused. The local investment plans did not provide for any work in connection with the construction of the roadway to be carried out before 2010 at the earliest and until then they were be prevented from making use of their property. Therefore, they had to bear an intolerable burden in that the local municipality had adopted the plan to build a roadway which would necessitate their expropriation at some undetermined time in the future. However, that plan could not be implemented in the foreseeable future because of lack of financial resources.
26. On 23 July 1998 the Supreme Administrative Court dismissed their complaint. The court recalled the history of the local development plan dating back to 1979. The court noted the municipality’s argument that the current budget did not allow for the construction of the roadway. It considered that the applicable planning laws did not make it obligatory for the municipality to amend existing land development plans in response to every request of the public. The nature of the policy functions of the municipality in the area of land development was such that the municipal organs could not be taken to be under an obligation to amend the plan once it had started the relevant proceedings.
27. The 1979 local development plan for the applicants’ municipality expired on 31 December 2003 (see paragraph 38 below). Apparently no new plan was adopted thereafter. In 2004 the first applicant requested the municipal authorities to grant her initial planning permission and it was granted in April 2004.
28. From 1984 to 1 January 1995 questions of land development were governed by the Local Planning Act of 12 July 1984.
29. On 7 July 1994 a new Local Planning Act was enacted. It entered into force on 1 January 1995.
30. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994.
31. On 27 March 2003 a new Local Planning Act was enacted which repealed the 1994 Act.
32. Under the provisions of land planning legislation as applicable at the relevant time, land development plans were adopted by organs of local government. A decision to prepare a new plan was taken by a local council. Subsequently, the local mayor prepared, with the assistance of the local administration, a draft land development plan. The public was informed of the decision to prepare a new plan and a draft plan was to be made available to the local public for a period not shorter than 21 days. All members of the public were entitled to submit objections and comments on the draft plan.
A final plan was adopted by way of a resolution of a local council. The council, when voting on the draft plan, also decided whether and, if so, in what manner, objections and comments submitted by the local public were to be considered.
33. Under the Local Planning Act of 12 July 1984 owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property and the reduction in its value originating in expropriations to be carried out at a future undetermined point in time.
34. Section 36 of the Local Planning Act enacted in 1994 created for local authorities a number of obligations towards owners whose properties were to be expropriated at an undetermined future date under land development plans adopted by competent municipal authorities. The municipalities were obliged either to buy plots designated for future expropriation under local land development plans, or to replace those plots by other plots within six months from the date on which a relevant request was submitted by the owner, or to award compensation for damage caused by the fact that the plot was designated for future expropriation.
35. However, this obligation and the corresponding claims of the owners applied only to plans adopted after the Act had entered into force, that is to say, to plans adopted by local municipalities after 1 January 1995.
36. Pursuant to the 1994 Act, plans adopted before the date of its entry into force were to expire on 31 December 1999.
37. In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years, namely until 31 December 2001.
On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995.
38. Under Section 87 of the 2003 Act (see paragraph 31 above), all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003.
39. Compensation entitlements for owners, provided for by the 1994 Act (see paragraph 33 above), were in essence maintained by the 2003 Act. Pursuant to Section 36 of that Act, when, following adoption of a new local land development plan, the use of property in the manner provided for by a previous plan has become impossible or has been restricted, it is open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts.
40. From 29 April 1985 to 1 January 1998 the rules governing the administration of land held by the State Treasury and municipalities were laid down in the Land Administration and Expropriation Act of 29 April 1985 (the “1985 Land Administration Act”).
41. Article 50 of this Act provided that properties could be expropriated only for the benefit of the State or a municipality.
42. Pursuant to Article 53 (1) of the Act, a decision on expropriation had to include in particular:
“(1) an indication of the property to be expropriated, ...
(3) an indication of the party upon whose initiative the property is being expropriated,
(4) an assessment of the amount of compensation,
(5) identification of the persons (name, surname and address) entitled to compensation,
(6) detailed factual and legal grounds,
(7) instructions on appeal procedures.”
43. Under Article 55 of the Act, expropriation was to be carried out against payment of compensation. The payment was to be made within fourteen days from the date on which a decision to expropriate had become final.
44. On 1 January 1998 the 1985 Land Administration Act was repealed and the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the 1997 Land Administration Act”) was adopted, containing similar provisions on expropriation and compensation.
45. Until 1 January 1995 the organisation of construction was governed by the Building Act 1974 (Prawo budowlane).
46. Section 3 of that Act provided that construction works could be carried out only on land designated for construction purposes in local land development plans adopted under relevant provisions of land development legislation.
Section 4 of that Act read:
“Every person has a right to build on land, provided that he or she possesses a right to use this land for building purposes and that the building project is in compliance with applicable provisions of building laws.”
47. Section 10 of the Land Administration Act 1985 (see paragraph 40 above) provided that division of land into smaller plots designated for construction purposes could be effected by way of an administrative decision only if such a division was in compliance with the local land development plan.
48. Section 20 of the Building Act 1974 provided that all essential urban planning, architectural and technical questions connected with a given building project were to be resolved before construction was started. Pursuant to Section 30, the local land development plan was the basis on which all relevant decisions were to be taken.
49. Land owners wishing to commence building projects . were obliged to obtain first from the local administration an initial development permit (decyzja o warunkach zabudowy i zagospodarowania terenu).
50. Under Section 28 of the Act, building works could be commenced after a final construction permit (pozwolenie na budowę) had been granted.
51. The Construction Act 1974 was repealed by a new law enacted on 7 July 1994. It entered into force on 1 January 1995.
52. Under Section 28 (1) of the Act, building works could be commenced once a final construction permit (pozwolenie na budowę) had been granted.
53. Under Section 32 (4) of Act, prior to submitting to the competent local authority a request to be granted a construction permit, an owner is obliged to obtain from the local authorities a decision on building conditions (decyzja o warunkach zabudowy i zagospodarowania terenu), provided for in Section 59 (1) of the Local Planning Act 2003 as it stands today.
Under this latter provision, such a decision should specify the essential characteristics of the land concerned and of the future construction project, if they differ from the use of that land provided for by the local land development plan.
Under Section 39 of the Building Act, once such a decision has been obtained, the owner can apply for a construction permit (pozwolenie na budowę).