ITEMID: 001-90466
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF LEONIDIS v. GREECE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2 (substantive aspect);No violation of Art. 2 (procedural aspect);Non-pecuniary damage - finding of violation sufficient
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant, Mr Grigorios Leonidis, is a Greek national of Russian-Pontic origin who was born in 1952 and lives in Thessaloniki.
6. In the early hours of 25 March 2000 the applicant’s 18 year-old son, Nikolaos Leonidis, and two of his friends were in a district of the old town of Thessaloniki.
7. Plainclothes police officers G.A. and C.T., serving in the Ano Poli police station, were out on patrol duty in an unmarked police vehicle when they noticed the three young men on the street. The three men were not committing any offence, but G.A. noticed in his car mirror that one of them turned to look at the police car as it passed. Since several burglaries had been recently reported in that area, he decided to carry out an identity check. However, as he drove back towards them, the three men ran away.
8. The two police officers got out of the car and ran after them. The chase apparently continued for a minute. The three young men split up and ran off in different directions.
9. G.A. ran after Nikolaos Leonidis. As he approached him, Nikolaos Leonidis put his hand inside his jacket. Suspecting that the latter might take out a weapon, G.A pulled out his own service revolver, a 357 magnum Smith and Wesson, which had no safety catch and was loaded. Holding the revolver in his right hand, with his finger on the trigger, he ordered Nikolaos Leonidis to stop. After running a few metres, Nikolaos Leonidis tired of the chase, lost his balance and tripped. That allowed G.A. to catch hold of him with his left hand. G.A. then pushed him against a car and immobilised him by forcing him to raise his hands and place them on the car roof while he was pointing his gun towards the sky.
10. Then, with his left hand G.A. twisted the young man’s left wrist behind his back in order to handcuff him. At that point Nikolaos Leonidis jabbed him with his right elbow in the right side, causing him sharp pain. Reacting to the pain, G.A. bent forward, and while he was drawing himself back up, his revolver went off, firing a single shot in the lower part of Nikolaos Leonidis’ right ear, instantly killing him.
11. C.T., who had in the meantime arrived close to the two men, was five metres away from the scene and partially witnessed the incident. From where he was standing, he was not able to see the shooting.
12. A few hours after the fatal shot police officers from the Ano Poli police station conducted a preliminary inquiry (προανάκριση) into the event. The police officers inspected the area and drafted an inspection report as well as a sketch plan. In addition, they took a statement from C.T. A few hours later, a crime scene reconstruction was conducted in the presence of the Public Prosecutor and a report was drawn up in this respect.
13. On the same day a forensic post-mortem examination was performed by a forensic medicine expert from the University of Thessaloniki. The doctor indicated that the cause of death was a fracture of the cranium due to a gunshot wound and that the shot had been fired either at point-blank range or from a few centimetres distance. According to the report, the exact range was to be established after further examination in the criminal police laboratory.
14. The forensic medicine expert also examined G.A. According to the report, G.A. was diagnosed with “a contusion in the right hemithorax”.
15. On the same day, at around 1 p.m., the applicant was informed of the incident.
16. The following day, the Public Prosecutor of Thessaloniki instituted criminal proceedings against G.A. for wilful homicide, exceeding the limits of self-defence and unauthorised use of weapons. The applicant joined the proceedings as a civil party, claiming a specific amount by way of damages.
17. On the same day G.A. gave his statement before the investigating judge and he was set free after he had given a bank guarantee of EUR 1,467.
18. On 5 April 2000 the applicant gave a statement and asked the investigating judge to examine in detail the amount of pressure that needs to be put on the trigger in order to release the hammer and fire the gun as well as whether the use of the gun had been absolutely necessary after the victim’s arrest.
19. On 24 May 2000 the criminal police laboratory published the report on the range at which the bullet had been fired. According to the two experts, the sample of skin taken from the victim was too small to establish the exact range.
20. On 19 June 2000 the ballistic examination of the weapon was conducted. The report indicated that only one cartridge had been fired from G.A.’s weapon.
21. Following the preliminary inquiry the case was referred to the Indictment Division of the Thessaloniki Criminal Court of First Instance, which on 29 March 2001 decided not to press charges against G.A., considering that Nikolaos Leonidis’ death had resulted from his sudden and violent assault on G.A. and the accidental discharge of the latter’s revolver that was its consequence (decision no. 513/2001).
22. On 3 April 2001 the applicant lodged an appeal. On 18 June 2001 the Indictment Division of the Thessaloniki Court of Appeal confirmed the dismissal of charges against G.A. (decision no. 895/2001). It stated, inter alia, that:
“The blow surprised the defendant, his body first bent forward and then backwards to the left, because of the pain and the surprise he felt, and his weapon, which was a revolver and did not have a safety catch, went off.
(...) [Nikolaos Leonidis’s death] was not the result of the defendant’s reckless behaviour, but of the victim’s violent and sudden assault and the discharge of the latter’s revolver that was its consequence. There is nothing to show that [G.A.], given the circumstances and his knowledge and abilities, could have foreseen and avoided the death of the victim.”
23. On 9 July 2001 the applicant appealed to the Court of Cassation.
24. On 11 April 2003 the Court of Cassation overturned the decision appealed against and remitted the case to the Indictment Division of the Thessaloniki Court of Appeal for reconsideration (decision no. 1013/2003). It held that the reasoning given in the decision appealed against was ambiguous, contradictory and insufficient. In particular, it did not indicate how the trigger had been squeezed, although it implied that the discharge was connected to the victim’s violent movement. Furthermore, it did not make references to the forensic ballistics report.
25. On 20 June 2003 the Indictment Division of the Thessaloniki Court of Appeal overturned the dismissal of charges and committed the defendant for trial before the Katerini Assize Court. It stated, inter alia, that the victim had already been immobilised at the time he was shot and did not pose a threat to the defendant (decision no. 872/2003).
26. On 28 August 2003 the defendant appealed to the Court of Cassation.
27. On 23 December 2004 the Court of Cassation dismissed the defendant’s appeal (decision no. 2396/2004).
28. On 21 June 2005 the hearing before the Katerini Assize Court took place. The Katerini Assize Court heard evidence from the applicant, two other relatives of the victim, police officer C.T. and two other police officers, as well as from the defendant.
29. The Katerini Assize Court also heard statements from two experts the defendant had asked to be called. The first expert, a forensic medicine expert, who had read the post mortem examination, reached a conclusion supporting the defendant’s view. The second expert was a mathematician who put forward a theory on the trajectory of the bullet in support of the defendant’s view. The court also read out various documents, such as the results of the post mortem examination of the deceased, forensic medical reports, autopsy reports, photos and the crime scene reconstruction report.
30. On the same day the Katerini Assize Court published its judgment acquitting the defendant by four votes to three (judgment no. 47/2005). On the basis of the case-file and the evidence submitted the majority held in particular that:
“... the violent blow surprised the defendant, who felt pain and bent forward and then backwards to the left and his muscles were “contracted” because of the pain that the violent and unexpected hit had caused him (...),
... because of his reflex action the defendant involuntarily squeezed the trigger of his revolver, which was not equipped with a safety catch, and a bullet was fired (...)
... It is apparent that the defendant had not intended to kill the victim, as charged, since: 1) the gun went off against his will and it was the result of the involuntary reflex action of the muscles of his right arm as a response to the sudden and intense blow that he had received from the victim; 2) he did not know the victim and he had no reason to hurt him, let alone to kill him; 3) if he had really wanted to kill Nikolaos Leonidis ..., he would have shot him during the chase and before his arrest; in any event there was no longer any reason to shoot him since he had already immobilised and arrested him ...; 4) only one bullet was fired from the gun ...; 5) from the trajectory of the bullet [according to the report of the mathematical expert], it appears that the hand that had fired the gun had not been steady ...; furthermore, it does not appear from the evidence that the defendant shot the victim in cold blood ... or that he acted in self-defence, since no attack was launched by the victim, who had already been immobilised ...”
31. Furthermore, the Katerini Assize Court examined the facts complained of under the provisions concerning reckless homicide. It concluded that:
“... on the night of 25 March 2000 [G.A.] carried out his duties in the most impeccable way possible. He pursued the deceased with professional consciousness, he did not fire his gun during the pursuit, although another in his place might have done so, and, most importantly, he arrested and immobilised the deceased holding his revolver in his right arm and pointing it to the sky, in order to avoid accidents... What followed, i.e. the death of Nikolaos Leonidis, was not the result of an intentional act of the defendant or the latter’s reckless behaviour, but of the victim’s violent and sudden assault that caused the reflex action of the defendant ... and the discharge of the revolver that the latter was holding in his right hand. The reflex action of the defendant was an instantaneous reaction of the nervous system, an automatic contraction of the body muscles (including those of the right arm) out of the defendant’s control, as a response to the pain suffered from the violent and sudden blow; since this contraction was not a voluntary action, it cannot be considered an actus reus and hence he [the defendant] cannot be considered criminally liable...
32. The Katerini Assize Court reached the same conclusion as far as the charge of unauthorised use of weapons was concerned. In particular, it held:
“Consequently, since neither the death of the victim nor the use of the defendant’s gun can be considered as “acts” in the legal sense of the term, the objective element of the crimes that the defendant is being accused of has not been established and he should be declared innocent.”
33. Two of the minority judges, including the President of the Katerini Assize Court, considered that the defendant should have been declared guilty of reckless homicide and unauthorised use of weapons. They based their reasoning on the way revolvers function:
“... There is a slight time delay of 1 to 1.5 seconds between the moment the trigger is pulled and the moment the gun fires. This is the time the hammer needs to be cocked and released; the time the hammer needs to be cocked corresponds to the time the cylinder needs to rotate clockwise. When the hammer has already been cocked, it needs less pressure on the trigger to release the hammer and fire the gun. On the contrary, when the gun is in a hammer-down position, it needs more pressure on the trigger and more time to fire the gun, since in this case, the trigger first cocks the hammer (thus advancing the cylinder) and then releases the hammer at the rear of its travel, firing the round in the chamber. In the present case, it appears from the testimonies ... that ... with his left hand [G.A.] twisted the young man’s left wrist behind his back in order to handcuff him, while with his right hand he was holding the revolver, obviously with the hammer cocked, pressing against the victim’s right scapula. ... [Leonidis’s death] resulted from the defendant’s negligent conduct, since: 1) he should not have cocked the hammer of his gun, since in that case the trigger needs less pressure to fire the gun; 2) he should not have had his finger on the trigger but on its protective frame; 3) he should not have been pressing the gun against the victim’s scapula while he had his finger on the trigger and the hammer cocked. If the gun had been in a hammer-down position, even if the defendant had had his finger on the trigger, it would have been more difficult for the gun to go off, since it required more pressure on the trigger. ... the defendant had no intention to kill the victim ... he should have been declared guilty of reckless homicide and unauthorised use of weapons.”
34. On 7 November 2005 the applicant, who did not have the right to appeal in cassation under domestic law, asked the Public Prosecutor to bring the case before the Court of Cassation. On 14 November 2005 the Prosecutor dismissed his request.
35. Shortly after the shooting, G.A. was declared free of duty for two days and he was later granted sick leave for a total period of 52 days. On 17 May 2000 he resumed his duties in Ano Poli. On 3 July 2000 he was transferred to an administrative post in the Thessaloniki General Police Directorate.
36. In the meantime, on 27 March 2000, two days after the fatal incident, the Thessaloniki police headquarters launched a Sworn Administrative Inquiry (Ενορκη Διοικητική Εξέταση, – SAI) in order to ascertain the exact circumstances in which Nikolaos Leonidis’s death had occurred and whether police officer G.A was guilty of any disciplinary offence. That investigation was assigned to an officer of the police department dealing with administrative investigations.
37. On 3 April 2001 the report on the findings of the SAI was issued. According to the report, the death of Nikolaos Leonidis was not the result of the police officer’s reckless behaviour, but of the victim’s violent and sudden assault and the discharge of the latter’
38. In the meantime, while the case was pending before the penal courts, on 29 November 2002 the applicant brought an action against the State under section 105 of the Law introducing the Civil Code seeking compensation for damage sustained as a result of an unlawful act by a public authority, namely, his son’s killing by police officer G.A.
39. On 31 January 2005, approximately five months prior to G.A.’s acquittal by the Katerini Assize Court, the Thessaloniki Administrative Court of First Instance allowed the applicant’s claims in part (judgment no. 148/2005). It held inter alia:
“... The grounds set forth in Article 133 of Presidential Decree no. 141/1991, which authorises the use of firearms, do not apply under the circumstances of the present case, since [G.A.] had not been attacked by the victim ... nor was he acting in self-defence... The use of the firearm by the police officer in order to arrest the deceased was unlawful and resulted in the young man’s death. ... The police officer’s outline of events, according to which the firing was provoked by a ‘reflex action’ following the blow he had received from the victim – in the sense that he involuntarily pulled the trigger – cannot be accepted, because it is in contradiction with his own statement concerning an ‘unconscious instinctive reaction caused by the violent blow he had received’. In fact, that means that pulling the trigger was an instinctive reaction to the victim’s behaviour, which implies that [G.A.] acted without using his reason and without showing the prudence and discipline expected from a police officer with ten years of experience. ... thus, police officer G.A is 70 % responsible for Nikolaos Leonidis’s death since he used his firearm in violation of the applicable law...”
40. On 15 April 2005 the State appealed to the Thessaloniki Administrative Court of Appeal challenging the implementation of the substantive law and the assessment of the evidence. It referred subsequently, in a separate memorandum, that G.A. had been acquitted by the Katerini Assize Court on 21 June 2005.
41. On 19 May 2007 the Thessaloniki Administrative Court of Appeal rejected the appeal and awarded the applicant EUR 80,000 EUR for non-pecuniary damage (judgment no. 432/2007), considering inter alia:
“Even supposing that the use of the firearm by the police officer in order to arrest the deceased was not in breach of a specific provision, nevertheless it constituted unlawful conduct, since he failed to take those steps that are appropriate to his duties, that result from the relevant legislation, from common sense, from his scientific and professional education and experience and from the notion of good faith and aim at the protection of individual freedoms, namely the right to life and limb. Consequently, the appellant is responsible...”
42. At the material time, the use of firearms by law-enforcement officials was regulated by Law no. 29/1943, which was enacted on 30 April 1943 when Greece was under German occupation. Section 1 of that statute listed a wide range of situations in which a police officer could use firearms (for example in order “to enforce the laws, decrees and decisions of the relevant authorities or to disperse public gatherings or suppress mutinies”), without being liable for the consequences. These provisions were modified by Article 133 of Presidential Decree no. 141/1991, which authorises the use of firearms in the situations set forth in Law no. 29/1943 “only when absolutely necessary and when all less extreme methods have been exhausted”. Law no. 29/1943 was criticised as “defective” and “vague” by the Public Prosecutor of the Supreme Court (see Opinion no. 12/1992). Senior Greek police officers and trade unions have called for this legislation to be updated. In a letter to the Minister of Public Order dated April 2001, the National Commission for Human Rights (NCHR), an advisory body to the government, expressed the view that new legislation which would incorporate relevant international human rights law and guidelines was imperative (NCHR, 2001 Report, pp. 107-15). In February 2002 the Minister of Public Order announced that a new law would shortly be enacted, which would “safeguard citizens against the reckless use of police weapons, but also safeguard police officers who will be better informed as to when they can use them”.
43. On 24 July 2003 Law no. 3169/2003, which is entitled “Carrying and use of firearms by police officers, training of police officers in the use of firearms and other provisions”, came into force. Law no. 29/1943 was repealed (section 8). Further, in April 2004, the “Pocket Book on Human Rights for the Police”, which was prepared by the United Nations Centre for Human Rights, was translated into Greek with a view to its being distributed to Greek policemen.
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 2


ITEMID: 001-57812
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF PADOVANI v. ITALY
IMPORTANCE: 2
CONCLUSION: Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);No violation of Art. 6-1
JUDGES: C. Russo;N. Valticos
TEXT: 10. Mr Alessandro Padovani is a workman and lives in Bergamo.
On 21 February 1987 he was arrested by the police, who had found certain items of stolen property in his possession. On the same day the police brought him before the Bergamo magistrate (pretore), who immediately after questioning him confirmed his arrest. The magistrate also heard two other accused, Mr B. and Mrs M., on 21 and 23 February.
11. On 26 February the magistrate issued a warrant for the applicant’s arrest, but not for that of Mr B. or Mrs M., and initiated immediate proceedings (giudizio direttissimo) against him and his co-accused. He set a hearing date of 2 March, and found that there was sufficient evidence pointing to Mr Padovani’s guilt - namely the discovery of the articles in question at his residence - and that the alleged offences were serious, having regard inter alia to the applicant’s previous history.
12. The hearing lasted for about half an hour. The applicant stated, as he had also done when questioned on 21 February 1987, that he had bought the items in question from a stranger who had told him that he needed money to pay a bill. He admitted, however, that he had not believed this explanation, but had thought that the vendor had stolen them from his relatives or friends in order to obtain money to purchase drugs.
The magistrate also heard Mr B. and Mrs M. and two witnesses. The public prosecutor’s office, which was represented by counsel as permitted in certain cases by section 72 of Royal Decree no. 12 of 30 January 1941 on the organisation of the courts, requested eight months’ imprisonment for Mr Padovani.
The magistrate considered that the applicant had not acquired the items in question in good faith, and imposed a suspended sentence of one year’s imprisonment and fined him 250,000 lire. The judgment was filed with the registry seven days later, on 9 March 1987.
Mr Padovani did not appeal.
13. The magistrate has jurisdiction over offences punishable by imprisonment for up to three years or by a fine or both, and also over a number of offences specifically mentioned in Article 31 of the Code of Criminal Procedure (CCP) in respect of which "a person arrested in flagrante delicto shall immediately be brought before the magistrate to be tried".
14. Under the heading "Immediate trial procedure" (Giudizio direttissimo), Article 505 of the former Code of Criminal Procedure in force at the time provided as follows:
"... In the case of offences within the jurisdiction of the magistrate (pretore), the police officers who have arrested a person in flagrante delicto or in whose charge an arrested person has been placed shall bring him directly before the magistrate, shall on the latter’s instructions (even if merely oral) summon the victim and the witnesses, and shall notify defence counsel chosen [by the arrested person] or appointed by the court.
If the magistrate is not sitting, the police officers who have effected the arrest or in whose charge the arrested person has been placed shall immediately inform the magistrate thereof and shall produce the arrested person at a hearing, arranged by the magistrate, within forty-eight hours from the arrest.
The magistrate before whom the arrested person is brought shall authorise the police officer to make an oral report and shall then question the accused in order to confirm the arrest.
If the arrest is confirmed and the magistrate does not consider that he should release the accused, he shall immediately initiate proceedings according to the direttissimo procedure.
At the request of the accused, the magistrate may grant an adjournment of not more than five days for him to prepare his defence.
...
The magistrate shall exercise the powers conferred on the public prosecutor’s office and the magistrate in accordance with the preceding Articles."
Under the heading "Conduct of criminal proceedings by the public prosecutor’s office or the magistrate (pretore)", Article 74 of the CCP stated that:
"The public prosecutor’s office or, for offences within his jurisdiction, the magistrate shall initiate or conduct criminal proceedings following the procedure provided for by law in accordance with Article 1.
...
The public prosecutor’s office shall, if it considers that there is no occasion to initiate criminal proceedings, request the investigating judge to make an order (decreto) [to this effect] ...
For the purpose mentioned in the preceding paragraph, the magistrate shall make an order [discontinuing the proceedings] and shall notify the public prosecutor, who may request the file and decide to continue the proceedings."
Article 231 provided that:
"In the case of offences within his jurisdiction, the magistrate (pretore) shall, before making an order committing for trial or proceeding to give judgment in ‘direttissimo’ proceedings or by ‘decreto’, order or carry out any police measures or summary investigative measures which he deems necessary ..."
15. The Italian Constitutional Court has had occasion to decide on the compatibility with various provisions of the Constitution of the magistrate’s dual function of investigation and judgment.
In two decisions, no. 61 of 24 May 1967 (Foro Italiano 1967, I, p. 1113) and no. 123 of 9 July 1970 (Foro It. 1970, I, p. 1841), it dismissed the objections of unconstitutionality put forward in this respect.
In a more recent decision of 15 December 1986 (no. 268, Foro It. 1988, I, p. 1117), the Constitutional Court invited the legislature to take account, in the context of the reform of the Code of Criminal Procedure, of the development in legal thought towards drawing a clear distinction between the above two functions. It stated that in the absence of a legislative measure it would have to reconsider its case-law.
16. The question has now been resolved, as the new code, which came into force on 24 October 1989 and adopted the adversarial system, provides for such a separation in respect of proceedings in the magistrate’s court. In Articles 549 to 567 it institutes a public prosecutor’s office at each magistrate’s court (pretura).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22912
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: KOSKINEN v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Reino and Gunhild Koskinen, are Swedish nationals, who were born in 1928 and 1933 respectively and live in Västervik. They were represented before the Court by Ms L. Isaksson, a lawyer practising in Umeå. 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.
The applicants have a daughter, K. In 1982 she gave birth to a son, M., of whom she has sole custody. However, for most of his life, M. has been living with the applicants. In 1986 K. gave birth to a second son who was placed in public care in 1989.
In April 1992 K. picked up M. at the school he attended in Västervik and brought him to Landskrona, where she had taken up residence. The applicants reported this event to the Social Council (socialnämnden) in Landskrona and requested it to take action in order to have M. returned to them. The Council started an investigation of the matter. In 1992 and 1993 several psychologists and social welfare officers submitted opinions which did not question the applicants’ ability to assume the care and custody of M. but rather tended towards finding that M. would be better off living with the applicants.
On 7 September 1992 the Council decided to take no action. The social welfare officers in charge of the matter considered that M. should live with his mother, his legal custodian. According to an opinion issued by the Children’s Psychiatric Clinic (barn- och ungdomspsykiatriska kliniken) in Landskrona on 17 June 1992, it was of utmost importance that M. was given a permanent home and that this should be with his mother.
In February 1993 the applicants took M. from K. in Landskrona and went into hiding. In an application to the County Administrative Court (länsrätten) in Malmö, K. requested that M. be returned to her.
On 9 March 1993 the chairman of the Social Council in Landskrona decided to take M. into compulsory public care immediately due to the applicants’ illegal abduction of him. This decision was not enforced, however, as the applicants were still in hiding.
On 16 March 1993 the County Administrative Court held an oral hearing in the case. K. attended, assisted by public counsel. Also officers of the Social Council were heard. The applicants were not present or represented. K. stated, inter alia, that the applicants had removed M. from his home without her permission and had refused to return him. She also claimed that the applicants had physically assaulted him and exerted pressure on him. The social welfare officers stated that M. suffered from the conflict between his mother and his grandparents and that it was not possible to discuss with the applicants the possibility of returning M. to his mother. They also considered that M. needed psychiatric treatment in accordance with a plan which had been drawn up by the Social Council and to which K. had consented. Further, due to M.’s state of health and the risk that he be removed to Finland, it was allegedly urgent that he be returned to his mother.
On 17 March 1993 the Court decided that M. be taken care of immediately in accordance with chapter 21, section 10 of the Parental Code (Föräldrabalken) and ordered the police authorities in Landskrona to enforce the decision. It left it to the Social Council to decide on the proper measures with regard to the care. In its reasoning, the Court found that the matter was urgent due to M.’s health and as there was a risk that M. could be removed out of the country. On the same day the Court quashed the Council’s decision of 9 March to take M. into compulsory public care.
The applicants appealed to the Administrative Court of Appeal (kammarrätten) in Gothenburg, stating that it would be detrimental to M. to be separated from his grandparents. The Court held an oral hearing, where the applicants, though absent themselves, were represented by court-appointed counsel.
By a decision of 30 November 1993 the appellate court rejected the applicants’ appeal. It generally agreed with the reasoning of the County Administrative Court and added that it had not been possible to enforce that court’s decision since the applicants were still in hiding with M. The applicants lodged an appeal, but it was dismissed by the appellate court on 16 February 1994 for having been lodged out of time. On 29 September 1994 the Supreme Administrative Court (Regeringsrätten) rejected an application for restoration of the expired time.
On 27 December 1993 the applicants and M. were apprehended in Finland and M. was returned to his mother in Sweden. The Social Council decided to prohibit all access between the applicants and M.
On 10 January 1994 the Social Council refused the applicants’ request to be informed of M.’s telephone number, referring to the confidentiality applicable to such information under the Secrecy Act (Sekretesslagen; 1980:100). The applicants did not appeal against the decision.
On 28 January 1994 the applicants requested access to M. and also wished to be informed of the results of possible psychiatric examinations of him.
By a letter of 9 March 1994 a social welfare officer informed the applicants that K. opposed access and that the Social Council did not consider it to be in the best interests of M. to allow meetings with the applicants at that time, as such contact would have disturbed the developing relationship between M. and his mother. This opinion was supported by a psychologist at the Children’s Psychiatric Clinic in Landskrona, who had been consulted in the matter. The applicants were also told that information on psychiatric examinations was confidential and, thus, could only be disclosed to the custodian.
On 19 April 1994 the Social Council decided not to initiate court proceedings with a view to establishing access between the applicants and M. and to reject the request for information. The applicants did not appeal against the Council’s decision.
On 7 June 1994 the County Administrative Court decided, at the request of K., to strike out the case relating to K.’s request in February 1993 for the return of M. to her, noting that M. had already been returned to her. The Court observed that the applicants’ counsel had not commented on the strike-out request, although he had been notified thereof.
The first applicant appealed against the strike-out decision and also requested that he and his wife be awarded custody of M. On 12 July 1994 the Administrative Court of Appeal dismissed his action, finding that he lacked standing to appeal against the decision in question and that the Court did not have jurisdiction to decide on transfer of custody. On 27 September 1994 the Supreme Administrative Court refused the first applicant leave to appeal. On 21 March 1996 the same court rejected his application for a reopening of the proceedings.
According to the applicants, K. has repeatedly been told by social welfare officers that no access, correspondence or telephone contacts between M. and the applicants would be allowed until M. reached the age of majority (i.e. until July 2000).
Swedish law does not afford grandparents any rights over their grandchildren. The rights over a child are normally vested in its parents or custodians who, according to chapter 6, section 15 (1) of the Parental Code, shall see to it that the child’s need of access to a person who is particularly close to the child is satisfied to the utmost possible extent. As concerns the possibility of instituting court proceedings, section 15 (3) provides that such proceedings may be brought by the Social Council, if access requested by somebody else than the natural parents is denied by the child’s custodians. The court shall determine the question of access in keeping with the child’s best interests. Also, under section 15 (4), the court shall have regard to the risk of the child being abused, being illegally removed or detained, or otherwise suffering harm when contacts take place with the person requesting access.
According to the preparatory documents to the above legislation (see Government Bill 1981/82:168, pp. 43 and 76), it has not been deemed appropriate that any person who claims to have a particularly close relationship to a child should be entitled to bring an action for access before the courts. Therefore, contrary to what is the case with the child’s parents, the Social Council has the exclusive right to bring such an action. The Council makes use of this right only in rare cases. In practice, when the social authorities are informed, for instance by the person concerned, that the child’s custodian fails to ensure that the child can meet with a person to which it has a close relation, the Council shall investigate whether such a contact can be considered as being in the best interests of the child and, if that is the case, take action with a view to establishing access, ultimately by requesting a court decision.
Similar rules apply to the question of custody. Thus, under chapter 6, section 8 of the Parental Code, the custody of a child may be transferred to a person who has constantly cared for the child, if this is deemed to be in the child’s best interests. The transfer of custody is decided by the District Court upon application by the Social Council.
There does not appear to be any Swedish case-law on the question whether the person requesting access or custody has standing to appeal against a decision by the Social Council not to institute court proceedings in the matter.
When the child is in the home of another person, chapter 21, section 7 of the Parental Code gives the custodian an opportunity to apply to the County Administrative Court for a decision that steps be taken to transfer the child to him or her. If there is a risk of the child being removed out of the country or if the matter is urgent for some other reason, the court may, under chapter 21, section 10, order that the child be taken care of immediately in the manner it considers appropriate.


ITEMID: 001-95234
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: JUNG v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicant, Ms Meike Jung, is a German national who was born in 1970 and lives in Berlin.
Together with Mr W., the applicant held shares in a limited liability company which in 2001 took out several loans from the Berliner Volksbank eG for which both the applicant and Mr Weiβ provided directly enforceable guarantees (selbstschuldnerische Bürgschaft). In July 2002 the bank terminated the loans on account of arrears and claimed the outstanding debts from the applicant.
After the applicant had refused to pay, the bank invoked the guarantees and in 2004 brought an action claiming partial payment of 50,000 euros (EUR). Together with its statement of claim the bank submitted, inter alia, a deed signed by the applicant on 16 March 2001 guaranteeing an overdraft of the company’s account in anticipation of a current account advance (Kontokorrentkredit) of EUR 200,000. On 13 September 2004, following an oral hearing, the Regional Court found the bank’s claim to be justified in view of the guarantee. The applicant brought an appeal against the judgment.
On 15 February 2005 the Court of Appeal advised the parties that it had doubts as to the action’s conclusiveness (Schlüssigkeit). In the opinion of the Court of Appeal, the guarantee of 16 March 2001 did not cover the bank’s claim since it was in anticipation of a current account advance and had therefore expired once the advance had been authorised.
On 23 August 2005 the bank’s lawyer submitted a deed guaranteeing the actual current account advance signed by the applicant on 26 April 2001. The applicant did not dispute the newly submitted guarantee; however, she alleged that its submission constituted an inadmissible amendment of claim (Klagänderung) and that a claim based on the new guarantee was moreover time-barred.
In September 2005 the presiding judge of the competent chamber, Mr W., fell ill. He has been unfit for service because of illness (dienstunfähig krank) since then. By decision of the Court of Appeal’s presidium of 30 August 2005 Mr G. was appointed regular deputy presiding judge (regelmäβiger Vertreter des Vorsitzenden).
By letter of 17 October 2005 Mr G. informed the parties that in view of the new submission of the bank the chamber intended to dismiss the applicant’s appeal in accordance with section 522 § 2 of the Code of Civil Procedure (see Relevant domestic law and practice, below) without an oral hearing for lack of prospects of success. The court considered that from the beginning the bank had based its claim on an undisputed guarantee for the current account advance and had simply submitted the wrong deed. For this reason the claim could not be time-barred either. In reply, the applicant submitted that, because of the amendment of claim, a decision under section 522 § 2 of the Code of Civil Procedure was no longer admissible and an oral hearing was necessary. On 25 January 2006 the Court of Appeal, by unanimous decision, dismissed the appeal under section 522 § 2 of the Code of Civil Procedure, referring to the reasons set out in the letter of 17 October 2005.
On 7 February 2006 the applicant submitted a complaint that she had not been heard (Gehörsrüge), arguing, inter alia, that the Court of Appeal had neither dealt with her arguments regarding a modification of the matter in dispute (Wechsel des Streitgegenstandes) nor the question whether a decision under section 522 § 2 of the Code of Civil Procedure was still admissible.
On 27 February 2006 the Court of Appeal dismissed the applicant’s complaint. The court held that it did not view the bank’s submission on appeal as new or as an amendment of claim. However, even if it had considered it as such an oral hearing would not have been necessary. The new submission had been undisputed and was therefore admissible in any event on appeal. An amendment of claim would have been relevant (sachdienlich) and therefore also admissible, irrespective of the applicant’s objection. Finally, the bank’s claim was not time-barred as argued by the applicant: the current account advance had not been terminated until 2002 so the statute of limitations ran until the end of 2005 and the correct guarantee had been submitted in time.
In a constitutional complaint of 3 April 2006 the applicant alleged a violation of her right to be heard and a violation of her right to the legally competent judge. In connection with the latter argument, she submitted that because of the long-term illness of Mr W. a new presiding judge should have been appointed. Furthermore, the decision of the presidium of 30 August 2005 was unlawful because there had been no material cause (sachlicher Grund) for the appointment of Mr G. as deputy presiding judge and thus a change in the distribution of business (Geschäftsverteilungsplan) in the course of the business year.
On 26 July 2006 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for examination (file no. 1 BvR 1194/06).
The relevant domestic law is described in the Court’s decision in the case of Rippe v. Germany (dec.), no. 5398/03, 2 February 2006.


ITEMID: 001-61166
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF WIDMANN v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: Ireneu Cabral Barreto;Mark Villiger
TEXT: 9. The applicant is living in Mittersill/Austria, where he is a farmer and owner of the Rossweg alp. According to a regulatory deed (Regulierungsurkunde) of 1868 concerning the alp, the owner of this alp is entitled to obtain timber from the Austrian Federal Forestry Administration to the extent necessary for the maintenance of the alp's cabins.
10. On 30 October 1987 the applicant requested the Office of the Salzburg Regional Government as the agricultural authority of first instance (Landesregierung als Agrarbehörde erster Instanz - “the Agricultural Authority”) to grant him the necessary quantity of timber for the maintenance of existing and the edification of new alpine cabins.
11. On 14 July 1988 the Agricultural Authority held a hearing and on 20 June 1989 a forestry expert delivered his opinion.
12. On 4 September 1989 the Agricultural Authority gave its decision, ordering the Federal Forestry Administration to provide the applicant with a certain quantity of timber within four weeks.
13. On 25 September 1989 the applicant appealed against this decision.
14. On 2 February 1990 the Salzburg Regional Land Reform Board (Landesagrarsenat - “the Regional Board”) dismissed the appeal and ordered the Federal Forestry Administration to provide the applicant with a smaller quantity of timber within four weeks.
15. On 27 June 1990 the applicant filed a complaint against this decision with the Administrative Court (Verwaltungsgerichtshof).
16. On 12 October 1993 the Administrative Court quashed the Regional Board's decision.
17. On 28 January 1994 the Regional Board granted the applicant's appeal of 25 September 1989 and referred the case back to the Agricultural Authority.
18. By a decision of 6 June 1994 the Agricultural Authority opened supplementary proceedings with a view to amending the regulatory deed of 1868 concerning the alp. On 25 August 1994 and 25 January 1995 hearings were held. On 12 December 1994 an agricultural expert delivered his opinion as to the average annual timber supply necessary for the maintenance of the cabins.
19. On 6 February 1995 the Agricultural Authority issued a decision, by which it amended the regulatory deed of 1868 and determined the provision of timber for the owner of the Rossweg alp. The applicant appealed against this decision, claiming that a fixed annual supply of timber should be granted irrespective of the need to maintain the cabins.
20. On 23 June 1995 the Regional Board partly granted the appeal and amended the Agricultural Authority's decision.
21. On 17 November 1995 the Regional Board granted the applicant's request for leave to appeal out of time (Wiedereinsetzung in den vorigen Stand) to the Supreme Land Reform Board (Oberster Agrarsenat - “the Supreme Board”) against the Regional Board's decision.
22. On 6 March 1996 the Supreme Board, after having held a hearing, dismissed the applicant's further appeal. It found that the legal instrument of 1868 only conferred a right to obtain timber for the maintenance of cabins, not a right to a fixed annual quantity of timber.
23. On 30 May 1996 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof).
24. On 24 September 1996 the Constitutional Court refused to deal with the complaint for lack of sufficient prospects of success and remitted the case to the Administrative Court.
25. On 11 December 1997 the Administrative Court dismissed the applicant's complaint. It confirmed that the applicant was entitled to obtain a variable quantity of timber dependent on the need to maintain his alp's cabins, but not to obtain a fixed annual quantity. The decision was served on the applicant's counsel on 28 January 1998.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-75575
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BENDIC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 6. The applicant was born in 1954 and lives in Velenje.
7. On 22 March 1994 and 11 February 1995 the applicant was injured while working for the Slovenian employer GVV in Russia. He consequently instituted two sets of civil proceedings in the Celje District Court (Okrožno sodišče v Celju) seeking damages for the injuries sustained. In both proceedings an insurance company ZT was acting as an intervening party.
8. On 21 January 1997 the applicant instituted civil proceedings against GVV seeking damages in the amount of 2,050,000 tolars (approximately 8,550 euros) for the injuries sustained on 22 March 1994.
Between 23 July 1998 and 26 February 2001 the applicant lodged eight written submissions and/or adduced evidence.
Between 24 November 1997 and 3 November 1999 he made three requests that a date be set for a hearing.
Of the ten hearings held between 23 April 1998 and 27 February 2001, one was adjourned due to the absence of both parties and one was adjourned due to the absence of the applicant
During the proceedings the court appointed a medical expert.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 19 April 2001.
9. On 26 April 2001 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). GVV cross-appealed.
On 10 October 2002 the court dismissed both appeals.
The judgment was served on the applicant on 28 October 2002.
10. On 15 November 2002 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 19 February 2004 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 22 March 2004.
11. On 9 June 1997 the applicant instituted civil proceedings against GVV seeking damages in the amount of 2,056,616 tolars (approximately 8,570 euros) for the injuries sustained on 11 February 1995.
Between 12 March 1998 and 25 September 2001 the applicant lodged nine preliminary written submissions and/or adduced evidence.
Between 12 November 1997 and 12 November 1999 he made five requests that a date be set for a hearing.
Of the five hearings held between 11 January 2000 and 23 October 2001 none was adjourned at the request of the applicant.
During the proceedings the court appointed a medical expert. The court also sought an additional opinion from the appointed expert
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 14 January 2002.
12. On 15 January 2002 the applicant appealed to the Celje Higher Court.
On 12 March 2003 the court allowed the applicant’s appeal in part and increased the damages awarded.
The judgment was served on the applicant on 5 June 2003.
13. On 12 June 2003 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 9 December 2004 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 13 January 2005.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-119274
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: ILINOVI v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicants, Ms Valentina Dimitrova Ilinova and Mr Yordan Yordanov Ilinov, are Bulgarian nationals who were born in 1961 and 1953 respectively and live in the village of Sinitevo. They were represented before the Court by Mr V. Tabakov, a lawyer practising in Pazardzhik.
2. The Bulgarian Government (“the Government”) were represented by their Agent, first Ms N. Nikolova, and then Ms M. Kotseva, of the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 22 April 1995 the applicants’ thirteen-year old son, Marin Ilinov, and a friend of his, G.G., entered a building housing an electric power transformer in the vicinity of their village. G.G. left the building first and immediately afterwards heard a blast. On looking inside, he saw Marin sprawled on the ground; he appeared to have been struck by high-voltage electricity. G.G. ran off and returned with the second applicant, Marin’s father. At this point an ambulance arrived and took the boy to hospital. Two days later Marin died.
5. The electric power transformer was situated close to a road and to an animal feed factory owned by a company, M. Until 1993 it had served the needs of the factory; however, due to repeated thefts of equipment, in 1993 the company ceased using it and had abandoned it. Even though the company had dismantled the rest of the equipment, a feeder cable of 20 kV which served other plants and factories in the area had remained in use.
6. Criminal proceedings were opened on 22 April 1995 against an unknown perpetrator for negligently causing the death of Marin Ilinov by the careless performance of a dangerous activity.
7. An inspection of the site of the incident was carried out on the same day. It was established that the building had a low-voltage and a high-voltage chambers, accessible through separate doors. The main door leading to the high-voltage chamber was closed and locked; there was a warning sign on it. However, the door leading to the low-voltage chamber was missing and there was a hole in one of the chamber’s brick walls measuring 60 by 40 cm. It was through that hole that Marin Ilinov and G.G. had entered the high-voltage chamber.
8. A post-mortem examination of Marin’s body was carried out on 24 April 1995. It found burns and other traces of electric shock and established that the immediate cause of death was severe cerebrocranial trauma, which could have been caused by a fall to the ground after an electric shock.
9. Numerous witnesses were interviewed in the course of the criminal proceedings. Among them were several neighbours who had been nearby at the time of the incident, some of whom had seen the two boys enter the building housing the transformer and G.G. exit in a hurry. They had approached the scene, found Marin lying in a pool of blood and called an ambulance.
10. Several witnesses said that the door leading to the low-voltage chamber had been missing for several months prior to 22 April 1995. They had also seen the hole in the wall of the high-voltage chamber. They had assumed that the transformer was not functioning.
11. In fact, the electricity supply to the transformer was cut, following a request by company M. addressed to the National Company for Electricity (“the NCE”), on 26 April 1995, four days after the incident involving the applicants’ son.
12. In two letters dated 2 July and 19 November 1996, the NCE informed the investigation authorities that the transformer at issue was not its property, but the property of company M. Several NCE employees, when interviewed as witnesses, made statements to the same effect.
13. The investigators collected documentary evidence concerning the nature of the duties of a number of employees at company M. tasked with the maintenance of its electrical installations. It was established that after 1993 the plant’s department responsible for the maintenance of its electric installations had been headed by a Mr V.P.; he was interviewed, as were several other employees of M.
14. An expert report commissioned by the investigation authorities detailed numerous breaches of the relevant safety rules at the factory, such as a lack of regular checks of the installations. It has not been established whether the factory’s installations had ever been inspected by the relevant State bodies. The report found also that Mr V.P., head of the department responsible for the maintenance of the company’s electric installations, had not had the professional qualifications required by law.
15. The investigators worked on the case until 2001, after which they took no further investigative action and the case remained dormant.
16. Until 2000 the applicants were active in the proceedings, filing requests and complaints. In 2000, following a request by the second applicant, a new investigator was appointed to deal with the case, as the previous one had died. It appears that after the appointment of the new investigator the applicants took no further initiative and remained passive.
17. On 10 April 2006 a prosecutor at the Pazardzhik regional public prosecutor’s office discontinued the criminal proceedings as the statutory limitation period had expired. In a final decision of 28 April 2006 the Pazardzhik Regional Court upheld the prosecutor’s decision.
18. The applicants have not sought damages from company M. in respect of their son’s death.
19. The Electricity Act of 1975, in force until 16 July 1999, provided in section 2 that all electricity power stations, electrical installations and networks belonged to the State. Cooperatives and other organisations could acquire such electrical facilities following an authorisation by the Energy Agency (“Асоциация Енергетика”).
20. By section 20 of the same Act and section 64(1) of the Regulations on its implementation (“the Regulations”), in force until 14 April 2000, the good technical repair of electrical installations and equipment was supervised by the Energy Agency. Such supervision could also be exercised by the electricity-supply organisations (section 64(2) of the Regulations) or by other bodies and organisations in the field of their competency (section 22 of the Act).
21. The supervising bodies of the Energy Agency had the right (“имат право”) to carry out inspections and issue binding instructions to the users of electrical installations and equipment (section 65 of the Regulations). In cases of shortcomings or failures in electrical installations which could endanger the lives of personnel or the proper functioning of the whole electrical system, the supervising bodies were to take preventive measures and, if necessary, switch off the installation in question (section 66 of the Regulations).
22. By section 21 of the Act, administrative bodies and other organisations had to ensure the good technical repair and the safety of the electrical installations which they used.
23. Section 17(1) of the Regulations provided that the owners and the users of electrical installations and networks were liable for any damage caused by bad technical repair and inadequate safety; paragraph 2 of section 17 specified that the electricity-supply organisations would not be liable for damage caused by the bad technical repair of consumers’ electrical installations and networks.
24. The Regulations on the state of electrical installations, in force until 9 June 2004, provided in section I-1-28 that electrical installations, including electric power transformers and buildings housing them, had to be located so as to prevent unauthorised access, with locked doors and warning signs in place. High voltage areas of electric installations had to be isolated to avoid accidental access or contact (section I-7-32).
25. Sections 109-120 of that Decree provide for periodic checks of electrical installations and networks, which is to be carried out by bodies appointed by the Minister of Economics and Energy. The same bodies are required to investigate grave incidents and serious breaches of the safety regulations.
26. Article 123 § 1 of the Criminal Code provides that an individual who has negligently caused the death of another, through lack of knowledge or the careless exercise of a profession or a dangerous activity regulated by law, is to be punished by a term of imprisonment of up to five years.
27. Under Bulgarian law, tort liability is provided for in the Obligations and Contracts Act of 1950. In particular, section 50 of the Act provides that the owner of and the person supervising an object are jointly liable for any damage caused by that object. In its constant practice the Supreme Court of Cassation has held that liability under section 50 does not require proof of “fault” and covers damages caused by “objectively existing properties, qualities or defects of the object” (see, for example, judgment no. 94 of 27 July 2011, case no. 537/2010).


ITEMID: 001-94833
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MERZHOYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (non-exhaustion of domestic remedies, ratione personae);Preliminary objection allowed (ratione temporis);No violation of P1-1
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1949 and lives in Moscow.
7. On 15 May 1990, 13 March 1991 and 20 February 1992 the applicant, then a resident of Grozny, Chechnya, deposited 31,881.47, 30,000 and 24,500 Soviet roubles on behalf of his son, his daughter and himself respectively in three savings accounts with the Grozny branch of the Chechen Savings Bank, which was an integral part of the USSR Savings Bank.
8. In late 1994 hostilities began in Chechnya and the applicant left for Ingushetia. On 5 January 1995 he was registered as an internally displaced person by the Migration Service of the Sunzhenskiy District of Ingushetia.
9. It appears that at some point the applicant moved and settled in Moscow.
10. In early 1999 the applicant unsuccessfully requested the Savings Bank of Russia, the successor of the USSR Savings Bank, to transfer his indexed deposits to a branch in Moscow.
11. Following the bank's refusal, the applicant brought a court action, seeking to have his deposits restored, indexed and transferred to the Moscow branch of the Savings Bank of Russia.
12. On 13 October 2000 the Gagarinskiy District Court of Moscow found against the applicant. The court confirmed the fact that during the period from 15 May 1990 until 20 February 1992 the applicant had made deposits on behalf of himself and his two children with the Grozny branch of the USSR Savings Bank and came to a conclusion acknowledging “the existence of obligations under the bank deposit agreements between the applicant and the Savings Bank”. The court continued:
“According to telegram no. 26-3-2/281a of the Central Bank of Russia dated 22 December 1997, branches of the Chechen Savings Bank were closed by virtue of a decision of the Management Board of the Savings Bank of Russia. These branches were removed from the State Register of Lending Agencies.
...
It is clear from the case file that all the branches of the Savings Bank of Russia in the territory of the Chechen Republic were wound up, and powers of attorney issued to the managers of [these branches] were revoked and annulled.
The aforementioned circumstances are confirmed by decision no. 127 of the Management Board of the Savings Bank of Russia dated 16 December 1996.
At present there is no [legal] mechanism which could enable the transfer of deposits from branches of the Savings Bank of the Chechen Republic to the Moscow branch of the Savings Bank of Russia.
In such circumstances [the applicant's] claim to restore and transfer his indexed deposits from ... the Chechen [Savings] Bank to the Moscow branch of the Savings Bank of Russia should be denied.”
13. On 26 December 2000 the Civil Section of the Moscow City Court upheld the judgment of 13 October 2000 on appeal.
14. Thereafter the applicant applied for supervisory review, but to no avail.
15. In their memorial of 1 April 2005 the Government informed the Court that between 21 January and 22 April 2002 the Government of the Chechen Republic within the territory of this republic, and the branches of the Savings Bank of Russia in any other regions of Russia, had made a list of the former depositors of the Chechen Savings Bank who had produced their savings books (сберегательные книжки).
16. On 15 April 2003 the Savings Bank of Russia commenced payment of compensation to those included on the list. As provided by governmental decree no. 117 of 19 February 2003, this procedure was applied in respect of savings deposited with the Chechen Savings Bank prior to 20 June 1991.
17. From 1 October 2003 until 31 March 2004 the authorities made an additional list of former depositors of the Chechen Savings Bank. In the Government's submission, “repayment of deposits to those included on the additional list would be made in the near future”.
18. In their additional memorial of 31 March 2008 the Government informed the Court, in reply to its specific request to that end, that if the applicant's deposits had been paid to him on 13 October 2000, the date on which the Gagarinskiy District Court of Moscow had confirmed “the existence of obligations under the bank deposit agreements between the applicant and the Savings Bank”, he would have received the following amounts.
19. In respect of the deposit made on 15 May 1990, the applicant would have received 2,521.60 Russian roubles (RUB, approximately 60 euros (EUR)), comprising the sum of the original deposit and 40 per cent compensation totalling RUB 32.08, plus accrued interest of RUB 2,489.52.
20. As regards the deposit made on 13 March 1991, the applicant would have received a total of RUB 557.58 (approximately EUR 13), comprising the sum of the initial deposit of RUB 30 plus accrued interest of RUB 527.58.
21. In respect of the deposit made on 20 February 1992 the amount payable to the applicant would have been RUB 56.66 (approximately EUR 1.30), of which RUB 24.50 was the amount of the deposit and RUB 32.16 the accrued interest.
22. The Government further submitted a letter dated 21 March 2005 which the Savings Bank had addressed to the applicant, informing him that it was ready to pay all his deposits, along with the accrued interest, as well as preliminary compensation in respect of the deposit made on 15 May 1991, in accordance with governmental decree no. 343 of 9 July 2004 (see paragraph 27 below).
23. The Government also submitted a letter of 25 March 2003 addressed by the Savings Bank to the then Representative of the Russian Federation at the European Court of Human Rights. The letter stated that on 21 March 2005 a representative of the bank had had a telephone conversation with the applicant and had invited him to go to the bank to settle the question of the payment of his deposits; however, the applicant had refused to accept the amounts due to him, deeming them insufficient, and had stated that he had been prepared to resolve the issue only on condition that he would be paid compensation equal to 19,282 United States dollars (USD).
24. In August 1996 the President of the Management Board of the Savings Bank of Russia (Председатель правления Сберегательного Банка России) ordered that all operations in respect of deposits with the Chechen Savings Bank be suspended until further notice.
25. By virtue of decision no. 127 of the Management Board of the Savings Bank of Russia dated 16 December 1996, the branches of the Savings Bank of Russia in the territory of the Chechen Republic were wound up and removed from the State Register of Lending Agencies. Powers of attorney issued to the managers of those branches were revoked and annulled.
26. By section 12 of decree no. 117 on payment to certain categories of citizens of the Russian Federation in 2003 of preliminary compensation (compensation) in respect of deposits with the Savings Bank of the Russian Federation and certain insurance organisations, dated 19 February 2003, the Government of Russia entitled the former depositors of the Chechen Savings Bank to compensation for deposits they had made prior to 20 June 1991. In particular, individuals who lived outside the territory of the Chechen Republic could obtain compensation in those branches of the Savings Bank which had put them on the list of former depositors of the Chechen Savings Bank.
27. Section 15 of governmental decree no. 343 on payment to certain categories of citizens of the Russian Federation in 2004 of preliminary compensation (compensation) in respect of deposits with the Savings Bank of the Russian Federation and certain insurance organisations, dated 9 July 2004, reproduces the provisions of section 12 of decree no. 117 of 19 February 2003 concerning compensation for deposits made prior to 20 June 1991 in the territory of the Chechen Republic. It contains no provisions relating to deposits made after 20 June 1991.


ITEMID: 001-98543
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BELKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant was born in 1934 and lives in Kościan.
7. During the Second World War, in 1940, the applicant's entire family – her parents and their children – were expelled from their house and farm in the vicinity of Poznań by German occupying forces. Subsequently, they were for some time placed in a camp for expelled persons in Poznań and then shipped off to eastern Poland, referred to at that time as General Government (“Generalna Gubernia”), which was occupied by the German authorities. The applicant and her family were assigned to live on a farm of local farmers in Szaniawy. At the time of the expulsion, imprisonment and resettlement the applicant was six years old.
8. On 16 June 2001 the applicant submitted a request for financial assistance from the Polish-German Reconciliation Foundation under the so-called second compensation scheme (see paragraph 16 below). She declared that she had been a victim of persecution by the German occupying authorities during the Second World War. In support of her claims the applicant submitted the following documents: a form certifying registration of her stay in Szaniawy during the war, a certificate of her first communion issued by the rector of the parish of Trzebieszów, a certificate of her mother's death in Szaniawy, statements by three witnesses certifying that the applicant had been expelled from the Poznań Province to Szaniawy during the war, the workbook (“Arbeitsbuch”) of her father's sister, issued by the German authorities, and a number of documents from various Polish archives informing the applicant about difficulties in obtaining documents confirming the persecution to which she had been subjected.
9. In 2002 the Verification Commission of the Polish-German Reconciliation Foundation, established under the Agreement of 16 October 1991 between the Polish and German Governments and operating on the basis of its statute, refused to pay financial assistance to the applicant, considering that persons expelled from their homes and properties by the German forces of occupation during the war were not entitled to compensation.
10. It further stated that the evidence submitted by the applicant, in particular the witness statements, was insufficient to confirm that the applicant and her family had been imprisoned in the camp for expelled persons.
11. The Foundation in its letter referred to the requirements of eligibility which were laid down by regulations governing the functioning of the second compensation scheme operated by the Foundation (on the basis of a Law of 2000 on the Creation of the “Remembrance, Responsibility and Future” Foundation enacted by the German Parliament and the subsequent agreement between that Foundation and the Polish-German Reconciliation Foundation, see paragraph 16 below).
12. The applicant appealed. On 21 November 2003 the Appeals Commission of the Foundation upheld the contested decision. It informed the applicant that she was not eligible for financial assistance under the scheme in respect of her deportation. Neither she nor her family had been deported for the purposes of forced labour to the territory of the German Reich within its borders of 1937.
Moreover, the evidence which she had submitted did not allow it to be established that the applicant and her family had indeed been imprisoned in the camp in Poznań. It further informed the applicant that no appeal lay against this decision.
13. On 12 January 2007 the public prosecution services lodged an action on the applicant's behalf with the Warsaw District Court, referring to Article 189 of the Civil Code and to the Court's judgment in the case of Woś v. Poland (no. 22860/02, ECHR 2006VII) and seeking to confirm that judicial review of the Foundation's decisions had been available to the applicant at the relevant time.
14. These proceedings were stayed on an unspecified later date, when the court referred to an individual constitutional complaint pending before the Constitutional Court at that time and brought by a certain Mr K. Subsequently, in June 2007 the Supreme Court, by way of a resolution, held that decisions of the Foundation could be challenged before the ordinary courts (see paragraph 20 below). This approach was indirectly confirmed by a decision given by the Constitutional Court in the case referred to above (see paragraph 21 below). The prosecuting authorities did not request that the civil proceedings brought on the applicant's behalf be resumed.
15. In February 2007 the Foundation officially notified the public that it had ceased, as from 31 December 2006, to make any further payments to the victims, having allocated all financial resources which had been earmarked for that purpose.
16. The relevant law and practice concerning the Polish-German Reconciliation Foundation is set out in the Court's judgment in the case of Kadłuczka v. Poland, no. 31438/06, §§ 19-45, 2 February 2010.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61536
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF GIRDAUSKAS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 with regard to length;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Inadmissible under Art. 6-1 with regard to fairness
JUDGES: Georg Ress
TEXT: 4. The applicant was born in 1947 and lives in Kaunas.
5. The applicant was suspected of committing various financial irregularities. Criminal proceedings were instituted in this respect on 15 May 1995. On the same date the applicant was arrested.
6. On 18 May 1995 the applicant was released on bail.
7. On 13 May 1996 the applicant was charged with appropriating property of another and embezzlement. On the same date he was again arrested.
8. On 9 July 1996 the Kaunas City District Court committed the applicant for trial.
9. On 11 October 1996 the court remitted the case to the prosecution for further investigative measures to be carried out.
10. Upon the prosecutors' appeal, on 17 December 1996 the Kaunas Regional Court quashed the above decision, ordering that trial should recommence.
11. On 7 February 1997 the Kaunas City District Court adjourned the examination of the case in order to conduct an audit of an enterprise owned by the applicant. On the same date the applicant was released on bail.
12. During the period from 7 February 1997 until 13 December 2001 the investigative authorities conducted the audit of the applicant's company.
13. On 21 February 2001 the trial recommenced.
14. On 2 April 2002 the Kaunas City District Court convicted the applicant on two counts, obtaining property of another and improper operations with currency, sentencing him to two years' imprisonment. Civil damages in the amount of 811,560 Lithuanian litai (LTL) were also ordered against him.
15. Upon the applicant's appeal, on 10 October 2002 the Kaunas Regional Court quashed the conviction, referring the case back to the first instance court for a fresh trial.
16. On 25 February 2003 the Supreme Court quashed the appeal judgment, returning the case for a fresh examination at appellate instance.
17. On 17 April 2003 the Kaunas Regional Court acting as a court of appeal pronounced a new judgment, acquitting the applicant on one of the charges against him (obtaining property of another). However, his conviction for improper currency operations stayed. The sentence was reduced to one year' imprisonment. No civil damages were ordered against the applicant.
18. The applicant submitted a cassation appeal which is currently pending before the Supreme Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1