ITEMID: 001-71660
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: SARMINA & SARMIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The first applicant, Mrs Yekaterina Sarmina, is the Ukrainian national who was born in 1944 and currently resides in Kiev, Ukraine. The second applicant, Mr Vitaliy Sarmin, is the first applicant’s son, born in 1980 and living in Moscow. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
According to the first applicant, in 1989 she left her place of permanent residence in Yakutsk in the Republic of Sakha (Yakutiya), Russia, and moved to Kiev in Ukraine. In 1996 she unsuccessfully applied to the Yakutsk pension authority for an old-age pension. Her request was rejected on 16 May 1996 and, in January 1999, she brought court proceedings against the Yakutsk pension authority, claiming the assessment and payment of her old-age pension as of 1 February 1994. She also claimed damages for its non–payment since 1 February 1994.
On 15 February 1999 the Yakutsk Town Court dismissed the action on the ground that the first applicant was no longer living in Yakutsk and had not obtained “registration” (регистрация) there.
On 21 April 1999 the Supreme Court of the Republic of Sakha rejected the first applicant’s appeal.
Upon the first applicant’s requests (надзор), the Deputy Prosecutor General of the Russian Federation lodged an application for supervisory review (протест), requesting the Supreme Court of the Republic of Sakha to quash the above decisions on the ground that the case had been wrongly determined.
On 1 October 1999 the Supreme Court of the Republic of Sakha granted the prosecutor’s application, finding that the Russian Constitution and other statutes entitled the first applicant to receive her old-age pension from the age of fifty, i.e. as of 1 February 1994, regardless of her place of residence. The court reversed the decisions of 15 February 1999 and 21 April 1999, and ordered the Yakutsk pension authority to determine and pay the first applicant’s pension as from that date. The court rejected the first applicant’s claim insofar as she had requested an award of damages.
According to the Government, a writ of execution (исполнительный лист) in respect of the decision of 1 October 1999 did not reach the Bailiffs until 24 March 2000.
On 24 May 2000 the pension authority transferred the first applicant’s pension arrears of RUR 24,767 for the period between 1 February 1994 and 20 April 2000 to the Bailiffs. As of 1 August 2000 the authority calculated and paid the first applicant’s index-linked pension, transferring the money to her bank account. According to the Government, the enforcement proceedings in respect of the decision of 1 October 2000 were successfully terminated on 27 October 2000.
On 15 May 2001 the pension authorities in Moscow informed the first applicant that the Yakutsk pension authority had applied to the Supreme Court of the Russian Federation, requesting it to submit a further application for the “supervisory review” of the decision of 1 October 1999.
On 21 June 2001 the Deputy President of the Supreme Court of the Russian Federation lodged an application for the supervisory review against the decisions, requesting the Supreme Court of the Russian Federation to quash them on the ground that the substantive law had been applied incorrectly.
On 16 July 2001 the Supreme Court of the Russian Federation accepted the application, set aside the decisions of 15 February, 21 April and 1 October 1999, and returned the case for fresh examination at first instance. It found, among other things, that the lower courts had failed to take into account the provisions of the International Treaty of the Commonwealth of Independent States of 13 March 1992 (“the Treaty”) in relation to pensions and, as a result, had failed to establish all relevant facts. According to the court, the first applicant should have been paid her pension in the place of her permanent residence, pursuant to the Treaty. In returning the case for a fresh examination, the Supreme Court also ordered the lower courts to establish the first applicant’s nationality and the place of her permanent residence.
On 28 March 2002 the Yakutsk Town Court ordered the Yakutsk pension authority to determine and pay the applicant’s pension as from 1 January 1999. The court considered that the applicant’s entitlement to the old–age pension had started when she had first brought court proceedings against the pension authority, i.e. in January 1999. It also rejected as unsubstantiated the argument of the Supreme Court of the Russian Federation regarding the application of the Treaty of 13 March 1992 in this case.
The Yakutsk Town Court further noted that, on 17 July 2000, the judgment of 1 October 1999 had been enforced, and the first applicant had been paid her pension in the amount of RUR 24,767.84 for the period from 1 February 1994 to 30 April 2000, and RUR 1,247.10 for the period from 1 May to 30 October 2000. The amount of the first applicant’s pension as from 1 November 2000 was set at RUR 623.55 per month.
This decision was upheld on appeal by the Supreme Court of the Republic of Sakha (Yakutia) on 22 April 2000.
On 9 December 2002 the Deputy President of the Supreme Court filed an application for supervisory review against the decisions of 28 March and 22 April 2000.
By a decision of 30 January 2003, the Supreme Court of the Republic of Sakha (Yakutiya) accepted the application, quashed the decisions of 28 March and 22 April 2000 and returned the case for a fresh examination at first instance.
According to the Government, the first applicant’s case was listed for trial three times, on 24 March, 8 April and 24 June 2003 respectively. Since the applicant failed to appear, on 24 June 2003 the Yakutsk Town Court disallowed the applicant’s claim without examining it on the merits.
On an unspecified date, the pension authority filed an application with a court to recover the money paid to the first applicant pursuant to the decisions of 28 March and 22 April 2002. By a decision of 25 March 2004, the Yakutsk Town Court granted the application and ordered the first applicant to reimburse RUR 61,013.12. The decision could be appealed to the Supreme Court of the Republic of Sakha (Yakutia) within ten days. The case file contains no indication as to whether the first applicant brought appeal proceedings in this connection, whether the decision has entered into force or whether it has been enforced.
In 1998 the second applicant arrived in Moscow from Yakutsk. He soon entered a higher education establishment and started living in his relative’s flat in Moscow. The second applicant’s application for registration at his relative’s address in Moscow was refused by the interior authorities. He brought a court action, claiming that the authorities’ refusal was unlawful.
On 14 January 1999 the Dorogomilovskiy District Court of Moscow rejected the action. The court found that he lived in Yakutsk where he was registered. By reference to the special governmental regulations of 1995, the District Court ruled that the second applicant could not be registered at the relative’s address in Moscow because inter alia he had failed to prove that he was a close relative. On 18 March 1999 the Moscow City Court rejected the second applicant’s appeal.
Upon the second applicant’s requests, on 27 October 1999 the Deputy President of the Supreme Court of the Russian Federation lodged an application for supervisory review against the above decisions, claiming that there had been an unlawful interference with the applicant’s constitutional right freely to choose his place of residence.
On 18 November 1999 the Moscow City Court rejected the Deputy President’s application, upholding the previous court decisions in the case.
Upon the Deputy President’s further application for supervisory review, on 25 January 2000 the Supreme Court of the Russian Federation quashed the above decisions, finding that the authorities’ refusal of the second applicant’s “registration” in Moscow had been unlawful. By reference to the Constitution and the Right to Freedom of Movement and Choice of Residence Act, the Supreme Court stated that the fact of “registration”, or the absence thereof, had no legal consequences on the right of an individual freely to choose his place of residence. The Supreme Court held that the statutory “registration” procedures recorded information as to the individual’s actual place of permanent residence following his free choice thereof, and these procedures could not involve any restriction on the exercise of that freedom. According to the court, it was the authorities’ obligation, not their right, to register the second applicant as living permanently in Moscow, in accordance with the procedure established by the Right to Freedom of Movement and Choice of Residence Act. The Supreme Court ordered the Moscow interior authority to “register” the second applicant at his relative’s address in Moscow. That judgment was final.
After a further refusal on documentary grounds, on 29 February 2000 the second applicant was finally registered in Moscow.
The Russian Constitution (Article 390) and the State Pensions Act entitle every citizen to an old-age pension, the amount of which depends on the record of the individual’s employment and related activities.
The International Treaty of the Commonwealth of Independent States in the field of pensions of 13 March 1992 (Article 6 § 1) provides that the pensions of citizens of the Commonwealth of Independent States are calculated and paid at the place of their permanent residence.
Article 27 § 1 of the Constitution and the Right to Freedom of Movement and Choice of Residence Act guarantee to everyone lawfully within the territory of the State the right freely to move and choose the place of residence in Russia. “Registration” at a particular address, by way of a special seal in the individual’s passport, is considered to be one’s place of permanent residence for the purposes of Russian law.
Section 6 of the Act provides that an individual must present to the interior authorities documents certifying his or her identity and place of residence in order to have the “registration” entered or changed.


ITEMID: 001-118733
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF BALAŽOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed
JUDGES: Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 5. The applicant was born in 1956 and lives in Kičevo.
6. On 1 April 1998 the applicant’s ex-wife (“the plaintiff”) brought a civil action against him seeking a declaration that she owned a half share of a property acquired during their marriage or, as an alternative, monetary compensation equal to half of its value, which was not specified in the claim. The plaintiff set the claim value of the dispute (вредност на спорот) at 10,000 Macedonian denars (MKD) (approximately 160 euros (EUR), as a basis for calculation of the court fees. The case was heard in the Kičevo Court of First Instance (“the first-instance court”).
7. Both parties were legally represented in the proceedings. According to an expert report of 19 May 1998, the value of the property at issue was set at MKD 6,012,944 (approximately EUR 98,000).
8. On 9 October 1998 the first-instance court dismissed the plaintiff’s claim, which it summarised as follows:
“to recognise that the plaintiff holds title to a half share of the [property], it being joint matrimonial property ... and if the [applicant] wants to be released from this obligation, to pay the plaintiff the sum of MKD 3,006,472 (approximately EUR 49,000)”.
9. It established that the applicant, who had been living and working in Austria, had paid for the house that had been constructed on a land owned by his late father. The plaintiff had not contributed to the construction of the house. As specified in the introduction to the judgment, the court set the value of the dispute at MKD 3,006,472. On 14 April 1999 the Bitola Court of Appeal upheld the judgment.
10. The plaintiff challenged the lower courts’ judgments by lodging an appeal on points of law (ревизија) with the Supreme Court. She complained that the first-instance court had been assisted by an unqualified interpreter and that it had wrongly established the facts regarding her contribution to the construction of the house, which was a matrimonial property. The public prosecutor also requested a protection-of-legality review (барање за заштита на законитоста) arguing that the lower courts had wrongly established that the parties had lived together for ten years, instead of twenty-one years (their marriage had terminated de facto in 1997 when the plaintiff had left the house). The prosecutor further argued that the house in question, the value of which was German Marks 190,887, had been constructed between 1989 and 1996. The lower courts had failed to consider the plaintiff’s contribution to the construction of the house, as a property obtained in wedlock.
11. On 30 September 1999 the Supreme Court upheld both the legality review request and the plaintiff’s appeal on points of law and remitted the case to the first-instance court for fresh examination. It held that the lower courts had incorrectly established that the house in question had been constructed while the parties had no longer been married. In the court’s view, it had been in 1997 when the applicant had explicitly declared his intention to separate from the plaintiff. It was irrelevant that the parties had not lived together for many years before (while the applicant had been in Austria). Similarly, it was of no importance whether the plaintiff had contributed to the construction of the house. Had it been constructed during marriage, it had been a joint property. The introductory part of that judgment specified that the value of the dispute was MKD 3,006,472.
12. By judgments of 26 May 2000 and 13 June 2001 the first-instance court again dismissed the plaintiff’s claim. Both judgments were set aside by the Bitola Court of Appeal on 29 January and 11 December 2001 respectively. All four judgments indicated the same value of the dispute (MKD 3,006,472) in their introductions. The case was again referred to the first-instance court for examination.
13. As submitted by the Government, at a hearing on 15 May 2002 the first-instance court established that the applicant had lodged a counterclaim requesting that the court award him ownership of the entire property at issue. It was decided that both claims would be dealt with in a single set of proceedings.
14. On 25 December 2002 the first-instance court ruled partly in favour of the plaintiff and awarded her ownership of a 5% share of the property. It further ordered that the applicant recognise the plaintiff’s rights of ownership or pay her 5% of the property’s value, previously calculated to be MKD 6,012,944. It dismissed the plaintiff’s claim to be recognised as the owner of a half share of the property or to receive monetary compensation of MKD 3,006,472. Furthermore, the applicant was awarded ownership of the remaining 95% share. His request to be recognised as the owner of the entire property was dismissed. The court also ruled on the trial costs. This judgment also indicated MKD 3,006,472 as the value of the dispute.
15. On 22 October 2003 the Bitola Court of Appeal dismissed an appeal by the plaintiff and upheld an appeal by the applicant. It ordered a re-examination of the case concerning the first-instance court’s judgment awarding the plaintiff ownership of a 5% share of the property or the equivalent monetary compensation and dismissing the applicant’s claim to be declared the sole owner of the entire property. It also quashed the first-instance court’s judgment regarding the trial costs.
16. Оn 20 November 2003 the plaintiff lodged, with the Supreme Court, an appeal of points of law challenging the lower courts’ judgments, namely the dismissal of her claim to be declared the owner of a half share of the property or to receive the equivalent monetary compensation, as well as the courts’ award of ownership to the applicant of 95% share. She alleged substantial procedural flaws and errors on the law. The applicant did not submit observations in reply.
17. By a judgment of 18 May 2005, the Supreme Court accepted the plaintiff’s appeal on points of law and set aside the lower courts’ judgments in the disputed parts. It found that the lower courts had provided conflicting and insufficient reasons for their judgments. They had given contradictory arguments concerning the time when the house had been constructed and whether the latter could be regarded as a joint property obtained during marriage. Since the first-instance court had not complied with its instructions outlined in the judgment of 30 September 1999 (see paragraph 11 above), the court ordered that the case is considered by a different panel of judges of the first-instance court. The introductory part of that judgment specified that the value of the dispute was MKD 3,006,472.
18. On 14 November 2005 the first-instance court allowed the plaintiff’s claim, awarding her ownership of half of the disputed property, as a joint property acquired during marriage. It also ordered the applicant to recognise the plaintiff’s rights of ownership to that part. It further dismissed the applicant’s claim to award him ownership of the entire property at issue. On 24 October 2006 the Court of Appeal dismissed an appeal by the applicant and upheld the lower court’s judgment. Neither judgment contained any information about the value of the dispute.
19. On 7 December 2006 the applicant lodged, with the Supreme Court, an appeal on points of law arguing that the lower courts had not followed the instructions of the Supreme Court’s judgment of 18 May 2005 (see paragraph 17 above). In this connection he complained that they had not established the relevant facts, namely when had the relations between the parties deteriorated and what had been the plaintiff’s contribution to the construction of the house. The plaintiff submitted observations in reply, in which she requested that the appeal be rejected as inadmissible.
20. On 20 March 2008 the Supreme Court, referring to sections 34 (2) and 368 (3) of the Civil Procedure Act 1998 (see paragraph 21 below), rejected (отфрла) the applicant’s appeal as inadmissible ratione valoris. The court stated:
“While assessing the admissibility of an appeal of points of law, values of the dispute regarding a claim and a counterclaim are not cumulative. The admissibility of an appeal on points of law is assessed on the basis of the value of the dispute of the claim and the counterclaim taken separately.
In the present case, the value of the dispute regarding the claim was set at MKD 10,000. The claim value regarding the counterclaim is neither specified nor there is evidence that court fees were paid. Having regard to the list of legal fees for the legal representation of the [applicant], it is clear that [his lawyer] requests the payment of MKD 2,000 for legal representation, which corresponds, as per the fee scale of the Macedonian Bar, to a claim value between MKD 25,000 and MKD 50,000 ... According to a list of court fees under the Court Fees Act, the plaintiff paid court fees in amount of MKD 1,500, which corresponds to a claim of MKD 40,000 in value. In view of the foregoing, the appeal on points of law is inadmissible. The Supreme Court accordingly rejects the appeal on points of law as inadmissible under section 378 of the Civil Proceedings Act. According to section 474 of the Civil Proceedings Act (“Official Gazette” no.79/2005) provisions of the old Civil Proceedings Act (“Official Gazette” no.33/98) apply in the present case”.
21. The relevant provisions of the Civil Procedure Act 1998, as valid at the material time, read as follows:
“When an action does not concern a sum of money, but the plaintiff specified in the lawsuit (тужба) that he or she would accept monetary compensation instead of the claim, the amount of that compensation would be regarded as the value of the dispute.
In other cases, when the action does not concern a sum of money, the relevant value shall be the value of the dispute indicated by the plaintiff in the lawsuit.
If, in the case referred to in paragraph 2 of this section, it is obvious that the value of the subject matter of the dispute indicated by the plaintiff is too high or too low, so that the question of ... the right to lodge an appeal on points of law arises, the court shall, at the latest at the preparatory hearing or, if no preparatory hearing was held, at the main hearing before the examination of the merits, quickly and in an appropriate manner verify the accuracy of the indicated value.”
“When the composition of the court or the right to lodge an appeal on points of law, depends on the value of the dispute, and the object of an action is not the sum of money, the plaintiff shall in the lawsuit indicate the value of the dispute.”
“The court is bound by its judgment as soon as it has been pronounced, and if the judgment has not been pronounced, as soon as it has been dispatched (испратена).”
“An appeal on points of law is inadmissible in property-related disputes in which the action does not concern a sum of money, transfer of movable property or any other activity, if the value of the dispute, as specified in the lawsuit by the plaintiff, does not exceed MKD 1,000,000.”
“An appeal on points of law shall be lodged with the court which gave the first-instance judgment ...”
“A belated, incomplete or [otherwise] inadmissible appeal on points of law, shall be declared inadmissible by a decision of the president of a panel of the first-instance court, without holding a hearing.”
“The president of a panel of the first-instance court shall forward a copy of a timely, complete and admissible appeal on points of law to the opposing party and the public prosecutor authorised to lodge a request for the protection of legality (барање за заштита на законитоста).
...
The opposing party can, within thirty days of the service of the appeal on points of law, submit a reply to the appeal on points of law to the [same] court.
...
On receipt of the reply ... the president of the panel of the first-instance court shall forward the appeal on points of law and the reply..., if any, together with the case file to the Supreme Court ...”
“A belated, incomplete or [otherwise] inadmissible appeal on points of law shall be declared inadmissible by the [Supreme Court], if the first-instance court has not already rejected it, within its powers (section 375).”
22. Section 400 of the Civil Procedure Act of 2005 provides as follows:
“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Macedonia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Macedonia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.
(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104710
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SHKALLA v. ALBANIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 6-1;Non-pecuniary damage - finding of violation sufficient
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: 6. The applicant was born in Tirana in 1978 and is currently serving a sentence of life imprisonment.
7. On 6 June 2001 two people were killed. K was an eye-witness to the incident.
8. On 9 June 2001 the prosecutor decided to proceed with the identification of the perpetrator and invited K to participate. K was given eight photographs and he pointed to the applicant as the perpetrator, after having given a physical description of him. The applicant’s lawyer was not present.
9. On 9 June 2001 the police unsuccessfully searched the applicant’s home. His whereabouts were unknown.
10. On 9 July 2001 the prosecutor charged the applicant with the offences of murder in aggravating circumstances and unlawful possession of firearms. The notification of the prosecutor’s charges was acknowledged by the signature of a lawyer officially-appointed to represent the applicant.
11. On 21 July 2001 the Tirana District Court (“the District Court”) ordered the applicant’s arrest. However, the order could not be enforced as the applicant could not be located.
12. On 3 October 2001 the police unsuccessfully conducted a further search of the applicant’s home. His whereabouts remained unknown.
13. On 11 October 2001 the applicant was declared a fugitive from justice by the District Court in accordance with Article 247 of the Code of Criminal Procedure (“CCP”).
14. On 12 October 2001 the prosecutor decided to commit the applicant for trial. The applicant’s officially-appointed lawyer was duly informed.
15. On 21 December 2001 the prosecutor submitted his final conclusions in which he requested that the applicant be sentenced to life imprisonment. On the same day the applicant’s officially appointed lawyer submitted his final conclusions in which he challenged the lawfulness of the identification procedure which had been conducted in the absence of the applicant’s lawyer. He requested that the sentence of imprisonment be less than twenty-five years having regard to the fact that the applicant was not a recidivist and that he was young and had a low level of education.
16. On the same day the District Court found the applicant guilty as charged and sentenced him to life imprisonment. It would appear that the applicant was living in Greece at the material time.
17. On 28 December 2001, in accordance with Article 48 § 3 of the CCP, the applicant’s father authorised a lawyer to represent the applicant and lodge all necessary appeals.
18. On 31 December 2001 the lawyer lodged an appeal against the applicant’s conviction. The appeal, which also bore the applicant’s signature, was based on points of fact and law.
19. On 26 April 2002, following proceedings in absentia, the Tirana Court of Appeal (“the Court of Appeal”) upheld the District Court’s decision. It found that the applicant had been declared a fugitive after unsuccessful attempts to trace his whereabouts and that the first-instance court’s notifications had been addressed to his officially-appointed lawyer in accordance with the law.
20. On 17 May 2002 the applicant appealed, through his familyappointed lawyer, to the Supreme Court. He complained inter alia that his absence during the lower courts’ proceedings had adversely affected him and that he had not been notified of the proceedings in accordance with the law. The applicant stated that he did not deny the charges against him were unique and required a different view of the merits of the case. The appeal bore the applicant’s signature and that of the lawyer appointed by his family.
21. On 15 January 2003 the Supreme Court rejected the applicant’s appeal. It held that the District Court had properly notified the applicant at his home address. Moreover, his brothers and mother were summoned as witnesses at one of the first-instance court’s hearings. The Supreme Court considered that the non-participation of the applicant in the trial reflected his own choice, as evidenced in his appeals, rather than of a lack of opportunity afforded by the lower courts to appear at his trial and to contest the charges. The Supreme Court dismissed, as unsubstantiated, the applicant’s argument that the sentence of imprisonment would have been less severe had he attended the proceedings.
22. Still living in Greece, the applicant was informed on 14 June 2003 of the outcome of the above proceedings, namely that he had been sentenced to life imprisonment in Albania. On the same day he surrendered to the Albanian police in order to seek justice in respect of his conviction and allegedly unfair trial in absentia.
23. On 12 January 2005 the applicant authorised a lawyer to introduce a constitutional appeal.
24. On 15 January 2005 the applicant lodged a constitutional appeal. He stated that he had been tried in absentia and his interests had not been properly defended before the first-instance court. The officially appointed lawyer had been appointed by the prosecutor instead by the court. The applicant had never been notified of any documents concerning his case. Moreover, the applicant alleged that he had been declared a fugitive on the basis of inconclusive evidence. The fact that he surrendered after the completion of his trial was a further sign that he had not been properly notified of the proceedings. He also contended that his signature on the appeals to the Court of Appeal and the Supreme Court had been forged.
25. On 1 February 2005 the Constitutional Court, having noted that the applicant’s appeal had been submitted in an envelope postmarked 17 January 2005, declared the complaint inadmissible as having been filed out of time.
26. In a letter of 15 February 2005 the applicant’s lawyer informed the Constitutional Court inter alia that, as the time-limit had expired during a weekend (on a Saturday), whereas all domestic procedural rules provided for an automatic extension of the legal time-limit to the following working day, he had posted his constitutional appeal on the following working day, namely on Monday 17 January 2005.
27. On 24 February 2005 the Constitutional Court replied that the applicant had been informed of the grounds for its decision of 1 February 2005. His complaint had been filed out of time on the basis of the postmark on the envelope in which the complaint had been sent to the Constitutional Court.
28. The relevant provisions of the Constitution read as follows:.
Article 31
“During criminal proceedings, everyone has the right:
a. to be notified immediately and in detail of the charges brought against him, of his rights, and to have the possibility to notify his family or relatives;
b. to have sufficient time and facilities to prepare his defence;
c. to have the assistance of a translator free of charge, when he does not speak or understand the Albanian language;
ç. to present his own case or defend himself through the assistance of counsel of his own choosing; to communicate freely and privately with him, as well as to be provided free legal counsel when he does not have sufficient means;
d. to examine witnesses who are present and to request the appearance of witnesses, experts and other persons who can clarify the facts”.
Article 32
“1. No one shall be obliged to testify against himself or his family or to confess his guilt.
2. No one shall be declared guilty on the basis of evidence collected unlawfully”.
Article 33
“1. Everyone has the right to be heard before being judged.
2. A person who is seeking to evade justice may not avail himself of this right”.
Article 42 § 2
“In the protection of his constitutional and legal rights, freedoms and interests, or in the event of criminal charges brought against him, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law”.
Article 131
“The Constitutional Court shall decide: ...
(f) in a ruling that shall be final, complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted”.
29. The relevant provisions of the Constitutional Court Act read as follows:
Section 1 – The scope
“...
2. The Constitutional Court shall take into account the legal provisions that regulate other procedures in so far as issues relating to procedures not governed by this Act are concerned, having regard to the legal nature of the case at issue”.
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”.
Section 31
“1. A preliminary review of appeals shall be conducted by a panel of three Constitutional Court judges, including the judge rapporteur.
2. If an appeal, despite being within the jurisdiction of the Constitutional Court and submitted by a person who has locus standi to lodge it, is not complete, the panel shall send it back to the appellant for completion, indicating the reasons for doing so and a deadline for its completion. When the appeal is completed, it shall be resubmitted for preliminary review by the panel. An incomplete appeal may not be subject to review.
3. If an appeal is lodged by an appellant claimant who has locus standi and the case falls within the jurisdiction of the Constitutional Court, the panel shall review the case in plenary session, whereas if it is lodged by a person without locus standi or if the case is not within the jurisdiction of the Constitutional Court, the panel shall not review the case in plenary session. In all cases, if one of the judges of the panel has a different opinion, the appeal shall be sent for preliminary review by the full court, which shall decide by a majority of votes whether the case shall be heard in plenary session.
4. In all the aforementioned cases the panel or the full court shall not review the merits of the case”.
30. In its decision no. 8 of 12 March 2009 (no. 8/09) the Constitutional Court, having regard to the provisions of the Code of Civil Procedure and the fact that the Constitutional Court Act did not provide for the procedure to be followed in the event that an appellant renounced his right to pursue the appeal, decided to dismiss the case in accordance with section 1 § 2 of the Constitutional Court Act.
31. In its decision no. 30 of 26 November 2009 (no. 30/09) the Constitutional Court examined an appellant’s request regarding the unfairness of the proceedings and his conviction in absentia, after his application for leave to appeal out of time had been rejected as time-barred by the Tirana District Court, the appellant not having appealed against that court’s decision. In its decision, the Constitutional Court did not examine the question of the calculation of the two-year time-limit for filing a constitutional appeal in respect of the unfairness of the proceedings. It would appear that the starting date was the day on which the appellant had been notified of his conviction in absentia, namely 4 June 2008. The applicant had been convicted in absentia by a final court decision of 24 March 2000.
32. The relevant provisions of the CCP read as follows.
Article 48 – Counsel appointed by the defendant
“1. The defendant has the right to appoint no more than two counsel.
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 144 – General rules
“1. Procedural time-limits are determined in hours, days, months and years.
2. Time-limits are calculated on the basis of the ordinary calendar.
3. When a time-limit, which has been determined in days, ends at a weekend (“weekly holiday”) or on a public holiday, its term is prolonged until the following working day.
...”
Article 147 – Leave to appeal out of time
“1. The prosecutor, the defendant, the private parties and the defence counsel may request the reopening of the time 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 appeal against the judgment where he can establish that he had no effective knowledge.
3. A request for the reopening of the time allowed for appeal must be lodged within ten days of the date of the cessation of unforeseen events or force majeure [in respect of paragraph 1], and in respect of paragraph 2 [within ten days] of the date on which the defendant effectively acquires knowledge of the decision. (...)
...
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 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.
...”
33. Articles 449–461 of the CCP govern the application for review of a final judgment. According to Article 451, the accused or the prosecutor may file a request for review in accordance with the limited grounds of review found in Article 450. The request is submitted to the Supreme Court which may decide to reject or accept it (Article 453).
34. On 24 March 2008, 11 November 2008, 19 January and 8 October 2009, the District Court, the Court of Appeal, the Supreme Court and the Constitutional Court, respectively, rejected the defendant’s application for leave to appeal out of time on the ground that his conviction in absentia had acquired the force of res judicata and that the defendant had been effectively defended by a counsel appointed by family members (see Sulejmani v. Albania, no. 16114/10, communicated to the respondent Government on 31 May 2010 and pending before the Court).
35. In response to a referral request by the Supreme Court on the constitutionality of Articles 48 § 3 and 410 § 2 of the CCP, by way of decision no. 30 of 17 June 2010 (no. 30/10), the Constitutional Court decided that the appointment of a counsel by a family member should be accepted by the domestic courts in so far as it can be established that this constituted an explicit manifestation of the defendant’s intention not to attend the proceedings. The same reasoning applied to a request for leave to appeal out of time made by counsel appointed by the defendant’s family members. The authorities should establish that the defendant did not have effective knowledge of his conviction in absentia and whether the defendant had effective knowledge of the appointment of counsel by his family members.
36. Article 148 of the Code of Civil Procedure provides that, when a statutory time-limit expires at a weekend or on a public holiday, such time-limit will be deferred until the first working day thereafter.
37. Article 62 (b) of the Code of Administrative Law Procedure provides that the calculation of time-limits shall be suspended on a Saturday, a Sunday and a public holiday.
38. Article 2 § 1 of the Decision of the Council of Minister on the duration of working hours and holidays in State institutions (Decision no. 511 of 24 October 2002) stipulates that Saturdays and Sundays are “weekly holidays”.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-109122
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BELYAEV AND DIGTYAR v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicants were born in 1981 and 1979 respectively and are currently serving life sentences in prison.
6. The second applicant was held in Sumy no. 25 Pre-Trial Detention Centre (“the Sumy SIZO”) from 6 February 2001 to 28 August 2004, except for the period between 24 July 2002 and 12 August 2002 when he was moved to another detention facility.
7. The first applicant was held in the Sumy SIZO from 4 April 2002 to 28 August 2004 except for the period between 30 August 2003 and 17 September 2003 when he was moved to another detention facility.
8. On 28 August 2004 both applicants were moved to Romny no. 56 Prison (“Romny Prison”) to serve their life sentences.
9. On 29 January and 1 July 2003 and 27 January 2004 the second applicant attempted to send letters to the Court via the postal service of the Sumy SIZO.
10. On 26 November 2003 and 2 and 9 February 2004 the first applicant attempted to send letters to the Court via the postal service of the Sumy SIZO.
11. According to the applicants, these letters were read by the officials of the Sumy SIZO and not sent to the Court.
12. In the same way, the applicants tried to send letters to other international institutions, such as the Council of Europe Commissioner for Human Rights, the Office of the High Commissioner for Human Rights, the UN Human Rights Committee, the UN Commission on Human Rights, and the UN Committee Against Torture.
13. These letters were also allegedly screened by the officials of the Sumy SIZO and not sent to the addressees.
14. According to the applicants, the conditions of their detention in the Sumy SIZO were unsatisfactory. The applicants were held together in various cells, each of them measuring 4.5 sq. m with the sanitary unit covering 1.2 sq. m of that space. The cells thus allowed only 3.3 sq. m of living space for both applicants, which amounted to 1.65 sq. m per applicant.
15. The cells were dark, dirty, and cold in winter and hot in summer, which gave rise to various illnesses. For at least two years there was no hot water supply. No winter footwear was supplied, while the inmates were prohibited from wearing their own footwear. As a result, in winter the applicants could not benefit from their entitlement to daily open air physical exercise. Their bed linen consisted only of a sheet. The applicants were not provided with any medical assistance in respect of their heart conditions, while keeping and administering any medicine in the cell was forbidden.
16. The applicants complained to the domestic authorities on account of the physical conditions of their detention in the Sumy SIZO. In particular, on 16 January, 14 June and 25 July 2004 the relevant complaints were handed to the staff of the Sumy SIZO for onward dispatch to the domestic authorities.
17. According to the Government, the cells in which the applicants were detained measured 5 sq. m and were equipped with the requisite furniture. There was a window and a sanitary unit and washstand in each cell. The temperature was at least 18 degrees Celsius during winter. The water supply, lighting system and sanitation were appropriate. The showers were made available once per week. Detainees’ clothes and bed linen were regularly changed. In support of their account of the facts, the Government submitted reports prepared in 2010 by the officials responsible for the maintenance of the facility.
18. As regards medical assistance, the Government submitted that during their detention in the Sumy SIZO, the first applicant was medically examined thirty-one times and the second applicant was examined forty-six times. The applicants were x-rayed regularly to identify any signs of lung diseases and provided with appropriate treatment. They were also assessed by psychiatrists. During his detention in the Sumy SIZO the second applicant was diagnosed with and treated for gastritis. The applicants made no complaints as to their health or the insufficiency of the medical assistance offered by the medical unit of the facility. In support of their statements the Government submitted copies of the applicants’ medical records and a report of the governor of the Sumy SIZO concerning the regime of medical assistance provided to the detainees of that facility.
19. In the course of his detention in Romny Prison, the second applicant attempted to send a number of letters, addressed to, among others, the following addressees:
the national ombudsman (dated 20 December 2004 and 5 January and 14 February 2005);
the Office of the General Prosecutor of Ukraine (dated 25 October 2004 and 14 February and 14 July 2005);
the Coordination Committee of the President of Ukraine on Fighting Corruption and Organised Crime (dated 25 October 2004 and 4 January 2005);
the European Court of Human Rights (dated 26 July 2005); and
the Council of Europe Commissioner for Human Rights (dated 26 July 2005).
According to the second applicant, these letters were read by officials of Romny Prison and returned to him.
20. By letter of 12 August 2009 the applicant informed the Court that he wished to terminate the consideration of his application, claiming that his debts owed to the victims of the crimes he had committed had been covered by the State.
21. By letter of 14 September 2009 the applicant informed the Court that the issue of his debts to the victims of the crimes had not been resolved by the State and he had been mislead by the authorities when asking the Court to terminate the consideration of his application. He therefore asked the Court to disregard the letter of 12 August 2009 and insisted on the continuation of the proceedings.
22. Section 13 of the Act provided, inter alia, for persons detained in custody to be able to correspond with relatives, other persons and legal entities upon the written consent of the authority in charge of the criminal case against the detainee concerned.
The officials of the detention centre were required to monitor all detainees’ letters, except those addressed to the national ombudsman or a prosecutor.
If a letter was related to the criminal case against the detainee concerned, it had to be handed over within three days for consideration by the authority in charge of the detainee’s criminal case. Letters containing information which might interfere with the administration of justice were not to be dispatched to the addressee but were to be handed over to the authority in charge of the detainee’s criminal case. The detainee and the prosecutor had to be informed of the interception made.
If a letter was not related to the detainee’s criminal case, it had to be answered by the officials at the detention centre or sent on to the addressee.
23. Article 113 of the Code provided, inter alia, that letters sent and received by prisoners would be monitored by prison officials. Letters addressed to the national ombudsman or a prosecutor would not be monitored.
VIOLATED_ARTICLES: 3
34
8
VIOLATED_PARAGRAPHS: 8-1
NON_VIOLATED_ARTICLES: 34


ITEMID: 001-122767
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: KOMANICKÝ v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Nona Tsotsoria
TEXT: 1. The applicant, Mr Ioan Kornelij Komanický, is a Slovak national, who was born in 1943 and lives in Bardejov.
2. The Government of the Slovak Republic (“the Government”) were represented by Ms M. Pirošíková, their Agent.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant has thus far submitted 124 applications under the Convention (see Komanický v. Slovakia (dec.), no. 9845/06, § 2, 13 December 2011 with further references).
5. On 26 August 2000 the applicant brought an action (case no. 5C 602/00) against a private company before the Svidník District Court (Okresný súd). He argued that he had title to some forest land, which was being occupied by the defendant company, and that the latter had arbitrarily terminated a lease of that land they had previously concluded. Accordingly, the applicant sought a ruling declaring the defendant company’s termination of the lease null and void.
6. Between 15 November 2000 and 30 April 2001 the applicant requested an exemption from court fees, which was examined and dismissed at two levels of jurisdiction. The question of court fees was subsequently examined again at two levels of jurisdiction in connection with various procedural applications made by the applicant.
7. Meanwhile, the applicant was asked to provide further and more detailed particulars of the claim and to support his claim with evidence, particularly in so far as he appeared to be seeking financial compensation in respect of unpaid rent. In response, the applicant specified that his claim amounted to the equivalent of some 50 euros (EUR).
In a letter of 20 September 2001, in response to a request by the District Court of 11 September of that year, the applicant submitted an apology for his “mediocre activity in [the] dispute, including [his] having missed timelimits because [at the given time] [he] was also dealing with other, far more serious matters”.
8. Between 11 November 2001 and 21 March 2002 three hearings were listed, but the applicant excused himself from them on various grounds.
9. A hearing took place on 23 April 2002. On the same day, the District Court dismissed the action. It found that the applicant had not been the owner of the property at the time the lease was concluded and that the defendant company had therefore been entitled to terminate the lease.
10. On 19 February 2004 the Prešov Regional Court (Krajský súd) quashed the first-instance judgment following an appeal by the applicant, and remitted the matter to the District Court for re-examination. It found that the District Court had failed to identify the property in question and to establish whether the lease had been validly concluded.
11. On 7 August 2006 the District Court discontinued the proceedings, on the grounds that the applicant had failed to comply with its request of 12 July 2005 to formulate his claim properly. However, following an appeal by the applicant, that decision was quashed by the Regional Court on 27 November 2006, and the case was remitted to the District Court for a determination on the merits.
12. Between 30 May 2007 and 27 April 2009 four further hearings were listed, but the applicant excused himself from them on various grounds.
13. The hearing scheduled for 27 April 2009 took place despite the applicant’s absence. On the same day, the District Court dismissed the action, finding, inter alia, that the property in question had not been described properly, which meant that the lease was void ab initio.
14. On 15 April 2010 the Regional Court upheld the first-instance judgment following an appeal by the applicant. The merits of the case were thereby resolved by a final and binding decision.
15. The applicant brought two complaints under Article 127 of the Constitution, challenging the length of the proceedings in his case. In both complaints, he contested exclusively the part of the proceedings which took place before the District Court.
16. His first complaint was lodged on 3 January 2007, but was declared inadmissible on 17 April 2007. The Constitutional Court (Ústavný súd) concluded that he had not complied with the admissibility requirement of exhaustion of ordinary remedies. In particular, he could not be regarded as having properly asserted his complaint concerning the length of proceedings before the President of the District Court prior to resorting to the Constitutional Court. In that connection, the Constitutional Court observed that, as a claimant, the applicant was involved in a considerable amount of litigation before the District Court. His vaguely formulated complaints to the President of the District Court about the length of “all of his proceedings” before that court, which did not identify any specific set of proceedings, could not therefore be regarded as being in compliance with the statutory exhaustion requirement.
17. The second complaint was lodged on 15 April 2009, but was declared inadmissible on 14 July 2009.
While the Constitutional Court noted that the applicant had still not properly asserted his complaint before the President of the District Court, it nevertheless proceeded to examine it in substance by reviewing the course of the proceedings, paying particular attention to the part before the District Court, as contested by the applicant.
The Constitutional Court observed that in the two years and three months following the bringing of the action until the applicant’s appeal was transferred to the Court of Appeal for determination, the District Court had dealt with the case in a continuous and uninterrupted manner. His appeal had been pending before the Regional Court for one year and three months, following which the case had been transferred to the District Court for a new determination. It was at this stage that the Constitutional Court established that there had been a delay of some two years on the part of the District Court. However, the case was thereafter pending again before the Court of Appeal for about six months, and no further delays attributable to the District Court could be established.
As for the applicant, he was found to have contributed to the length of the proceedings by having filed incomplete particulars of claim without supporting documentary evidence, and by having to be assisted by the District Court in correcting the shortcomings of his submissions.
In sum, in view of all the circumstances, the delays on the part of the District Court were not sufficiently serious to constitute a situation that was contrary to the applicant’s right to a hearing within a reasonable time. Thus, his complaint was in any event manifestly ill-founded.
18. The relevant domestic law and practice are summarised in the Court’s judgment in the case of Ištván and Ištvánová v. Slovakia (no. 30189/07, §§ 23 - 50, 12 June 2012).


ITEMID: 001-58448
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF IGNACCOLO-ZENIDE v. ROMANIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 9. On 7 May 1980 the applicant married D.Z., a Romanian national. The couple had two children, Maud and Adèle, who were born in 1981 and 1984 respectively.
10. In a judgment of 20 December 1989 the Bar-le-Duc tribunal de grande instance granted the spouses a divorce and approved the agreement they had concluded to deal with the consequences of the divorce, whereby parental responsibility was given to the father and the applicant was granted access and staying access.
11. During 1990 D.Z. moved to the United States with his daughters.
12. On 3 September 1990 the applicant lodged a complaint against him for failure to hand over the children to her. She asserted that at the beginning of September D.Z. had breached her right of access as, without informing her, he had kept them in the United States beyond the midway point of the school holidays.
13. On 4 September 1990 the applicant brought urgent proceedings against D.Z. in the Metz tribunal de grande instance, applying for parental responsibility and a residence order in her favour, together with an order prohibiting D.Z. from removing the children from France without her consent.
14. The matrimonial causes judge of the Metz tribunal de grande instance dismissed her application in an interim order dated 11 September 1990.
15. The applicant appealed against that order to the Metz Court of Appeal, which set it aside in a judgment of 28 May 1991. The Court of Appeal gave parental responsibility to both parents, ordered that the children should live with their mother and granted D.Z. access and staying access.
16. D.Z. did not comply with the judgment and did not hand the children over to their mother.
17. On an application by D.Z., who had been living in Texas for over a year, the Harris County Court of the State of Texas set aside the judgment of the Metz Court of Appeal in a judgment of 30 September 1991 and awarded custody of the children to the father. The applicant, who was neither present nor represented before that court, was granted only access. After consulting a psychologist, who found that the children had no distinct memory of their life with their mother before the divorce and were delighted to live with their father and stepmother, the court held that the children were happy and well integrated in Texas, where they were receiving special protection and attention from the authorities.
18. In December 1991 D.Z. moved to California with his two children.
19. In a decision of 24 February 1992 the investigating judge of the Metz tribunal de grande instance committed D.Z. for trial on a charge of failure to hand over a child to the person entitled to its custody, an offence under Article 357 of the French Criminal Code. The applicant joined the proceedings as a civil party.
20. On 18 September 1992 the Metz tribunal de grande instance, having tried D.Z. in absentia, convicted him and sentenced him to a year's imprisonment for failure to hand over the children and issued a warrant for his arrest.
21. The warrant could not be executed as D.Z. was not on French territory.
22. On an unknown date D.Z. lodged an appeal on points of law with the Court of Cassation against the Metz Court of Appeal's judgment of 28 May 1991.
23. In a judgment of 25 November 1992 the Court of Cassation pointed out that the jurisdiction of the tribunals of fact to assess the weight and effect of the evidence was exclusive, dismissed D.Z.'s appeal and sentenced him to pay a civil fine of 10,000 French francs.
24. The applicant, who had started proceedings in the United States for the recognition and execution of the judgment of 28 May 1991, obtained five judgments between 1993 and 1994 from California courts ordering D.Z. to return the children to her. Thus on 10 August 1993, for instance, the Superior Court of the State of California granted authority to execute the judgment of the Metz Court of Appeal and ordered D.Z. to return the children to their mother.
25. In a report of 17 August 1993 an expert in family psychology registered with the California courts, L.S., stated after interviewing the girls that they did not want to go back to live with their mother and were happy with their father and his new wife. While Maud did not seem to have any particular feelings towards her mother, Adèle told L.S. that her mother was “ugly and nasty” and did not love them but only wanted to show them off to others and buy them toys.
26. In a judgment of 1 February 1994 the California Court of Appeals held that the Harris County Court in Texas had no jurisdiction to set aside the Metz Court of Appeal's judgment of 28 May 1991. In a judgment of 29 April 1994 the Superior Court of the State of California once again affirmed the judgment of the Metz Court of Appeal, holding that the children should reside with the applicant and that their removal from the State of California without the court's express permission would be illegal.
27. D.Z. did not comply with the California judgments. In March 1994 he left the United States and went to Romania with his children.
28. In July 1994, relying on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”), the applicant applied to the French Ministry of Justice – France's Central Authority for the purposes of that instrument – for the return of her daughters.
29. In November 1994 the United States' Central Authority requested the Romanian Ministry of Justice (Romania's Central Authority) to return the children pursuant to Articles 3 and 5 of the Hague Convention.
30. In December 1994 France's Central Authority requested Romania's Central Authority to return the children pursuant to Articles 3 and 5 of the Hague Convention.
31. Relying on Article 2 of the Hague Convention, the applicant made an urgent application to the Bucharest Court of First Instance for an order requiring D.Z. to comply with the court decisions in which a residence order had been made in her favour and the children's return ordered.
32. The court delivered its judgment on 14 December 1994. It noted, firstly, that the Metz Court of Appeal, in its judgment of 28 May 1991, had ordered that the children should live with their mother and that the California courts had ordered the return of the children. It went on to note that D.Z. had abducted the children in breach of those judgments and that he had been sentenced to a year's imprisonment for failure to hand over a child. It held that the applicant's application satisfied the requirement of urgency, as her right might be irreparably affected in the event of delay. Moreover, the measure sought was a precautionary one, which did not prejudge the merits of the case but was designed to protect the applicant's right, which any delay would have jeopardised. Lastly, a prima facie case, which was a requirement for urgent proceedings to be admissible, had clearly been made out. As to the merits, the court held that the provisions of the Hague Convention were applicable to the case, as that convention had been incorporated into Romanian law by Law no. 100/1992 providing for Romania's accession to that instrument, and in particular, Article 14 of this convention, which enabled the court to rely on foreign court judgments directly without any need for a registration procedure. In a judgment enforceable without notice the court therefore ordered that the children should be returned to the applicant.
33. That judgment could not be executed as D.Z. had hidden the children.
34. On an unknown date in December 1994 D.Z. removed the children from school and took them to an unknown location.
35. D.Z. appealed against the judgment of 14 December 1994. On 9 June 1995 the Bucharest County Court adjourned the case to 30 June 1995 and ordered that the children be heard.
36. On 30 June 1995, in the absence of the representative of the Ministry of Justice, which was intervening, and of that of the District Council of the second district of Bucharest, which was responsible for monitoring and ensuring compliance with the obligations of divorced parents, the court adjourned the case. It also granted an application by D.Z. for a stay of execution of the judgment pending the outcome of the appeal. No reasons were given for the latter decision.
37. On 23 August 1995 the Ministry of Justice asked Bucharest City Council to carry out a social inquiry at D.Z.'s home.
38. On an unspecified date the mayor of Bucharest informed the Ministry of Justice that a social inquiry had been carried out by the District Council of the second district of Bucharest in September 1995. The mayor of that district submitted the findings of the inquiry, signed by him, the town clerk and an inspector. They read as follows:
“The children Maud and Adèle ... live with their father and his wife in an eight-room house, and each girl has a room of her own.
Their father looks after them very well, as regards both their physical and their mental welfare, providing the best conditions for their upbringing.
It is evident from conversations with the girls in Romanian – they have a command of the language – that they are intelligent, sociable and at ease and that they lead a normal life, read, write and work hard at school.
There is an atmosphere of harmony and friendship and plenty of affection between the girls, their father and his wife.
The girls do not want to go and live with their mother in France, whom they remember as a cold and indifferent person. They say that they have always found their father understanding, warm and affectionate.
They are very impressed by Romania and the Romanians, among whom they have made many friends. During the holidays they went to the countryside and they felt wonderfully well there.
When asked to say whether or not they wanted to see their mother or go and live with her, they replied categorically 'no' and insisted that any decision concerning them should take their wishes into account.
In conclusion, we consider that in Romania the children Maud and Adèle have the best conditions for their upbringing.”
39. In a decision of 1 September 1995 the Bucharest County Court dismissed D.Z.'s appeal against the judgment of 14 December 1994.
40. D.Z. appealed to the Bucharest Court of Appeal, which in a final judgment of 14 March 1996 dismissed the appeal for lack of grounds.
41. On an unknown date D.Z. lodged an objection to the execution (contestaţie la executare) of the judgment of 14 December 1994. After having taken evidence from the children, who reiterated their wish to stay with their father, the Bucharest Court of First Instance dismissed the objection on 7 April 1995.
42. On an appeal by D.Z. against that decision, the Bucharest County Court affirmed it on 9 February 1996.
43. On 27 October 1995 D.Z. lodged an application with the Bucharest Court of First Instance to be given exclusive parental responsibility. He argued that since 1994 he had been living in Bucharest in a spacious eight-room house which afforded the children exceptional conditions. They did not want to go to live with their mother, who belonged to a sect.
The court, informed by D.Z. that the applicant's address for service was the address of Ştefan Constantin, caused the date of the hearing to be served only on him. It is clear from documents available to the Court that neither at that stage of the proceedings nor later was the applicant informed that she had been summoned to appear before the Bucharest Court of First Instance.
44. On 26 January 1996, at the request of the Bucharest Court of First Instance, the District Council of the second district of Bucharest carried out a social inquiry. Following that inquiry, the mayor of Bucharest informed the court that the two girls were well developed, both physically and psychologically, that they led normal lives, had friends at school and in the neighbourhood and were very attached to their father and his wife, who both looked after them very well and with whom they wished to live.
45. After holding two hearings in the absence of the applicant on 8 and 29 January 1996 and interviewing the children in private on 16 January 1996, the court delivered its judgment on 5 February 1996, likewise in the applicant's absence. Emphasising that the children's interests were paramount and basing its judgment on documents drawn up by the children's teachers attesting to their good performance at school, on a letter from the Ministry of Religious Affairs to the effect that the sect to which the applicant belonged was not recognised in Romania, and on the social inquiry carried out by the Bucharest District Council, the court allowed D.Z.'s application, holding that he was providing the best living conditions and upbringing for the children, whom he had, moreover, brought up on his own since the divorce.
46. On 16 October 1996 the Bucharest County Court set aside that judgment on appeal because of an irregularity in the service of notice on the applicant, and remitted the case to the Court of First Instance. It noted that the applicant lived in France, that she had given Ştefan Constantin special authority to represent her in another set of legal proceedings and that consequently, in the absence of special authority in the case before the court, the summons should have been served at her permanent address in France.
47. D.Z. challenged that decision on the ground that the applicant had given Ştefan Constantin general authority to act for her and that consequently the service of the court documents at his address was valid.
48. In a judgment of 9 April 1997, delivered in the absence of either the applicant or any representative of hers, the Bucharest Court of Appeal allowed the appeal on the ground that the applicant had given Ştefan Constantin general authority to act on her behalf. It set aside the decision of 16 October 1996 and remitted the case to the County Court for reconsideration of the appeal.
49. The case was set down for hearing in the County Court on 23 January 1998. According to the record of the hearing made on that date, the hearing was attended by D.Z., his lawyer and the assistant of Florea Constantin, the lawyer who, according to the court, was supposed to be acting on behalf of the applicant. The Court cannot determine from the documents submitted to it which of Florea and Ştefan Constantin was regarded by the County Court as having been appointed by the applicant.
The assistant pointed out that Florea Constantin was absent and sought an adjournment of the hearing. That application was refused after the court had heard the submissions of counsel for D.Z. It gave its decision on 30 January 1998, in the absence of the applicant or a representative. Without mentioning the issue of the applicant's representation, the court dismissed the appeal and thus upheld the judgment of 5 February 1996, noting that the children wished to stay with their father, who was affording them the best living conditions.
50. It appears that an appeal against the decision of 30 January 1998 was lodged on behalf of the applicant. It cannot be determined from the documents submitted to the Court whether the applicant herself entered the appeal. However that may have been, the Bucharest Court of Appeal dismissed the appeal for lack of grounds on 28 May 1998. As was apparent from that decision, which the Government did not file with the Registry until 13 September 1999, only D.Z. attended the hearing on 28 May 1998.
51. In an application dated 5 January 1995 D.Z. applied to the family judge of the Metz tribunal de grande instance for an order transferring the children's residence to his address and granting him exclusive exercise of parental responsibility.
52. After many adjournments the tribunal de grande instance delivered a judgment on 22 February 1996. It held firstly that it was unnecessary to take account of the judgment of the Bucharest Court of First Instance of 5 February 1996 because that court had no jurisdiction to deal with the merits of the custody of the children, since the Romanian courts could only deal with an application for the return of the children under the Hague Convention. The tribunal de grande instance then declined to take evidence from the children. It found that since 1991 D.Z. had prevented them from seeing their mother and that he had brought them up to feel hatred for her. In letters of 1 and 3 August 1994, in which they spoke of their mother, the girls had used terms such as “idiot” and “my ex-mother” and had hoped that “her house or her flat [would catch] fire and that she [would be] in it when it happen[ed]”, terms which the tribunal de grande instance found particularly shocking coming from children of 10 and 14. The tribunal de grande instance concluded that the intolerance, intransigence and hatred found in those letters adequately demonstrated that the upbringing the children had received and the surroundings in which they lived had deprived them of all judgment.
53. The application for transfer of residence was dismissed by the tribunal de grande instance in the following terms:
“The Family Judge must rule in the interests of the children when determining their place of residence.
The Metz Court of Appeal held in a judgment of 28 May 1991 that it was in the children's interests to live with their mother, in France, in their native Lorraine, both their parents having opted for French nationality.
Since that date the mother has had no further contact with her children because of the father's actions.
Mrs Ignaccolo filed with the Court the various records of proceedings drawn up in Romania when attempts were made to obtain execution of the decision to return the children, letters from the Romanian Ministry of Justice to the Office for International Judicial Mutual Assistance, from which it appears that Mr Zenide is hiding the children, has acquired a dog which he has trained to attack anyone who approaches the children, and removed the children from school in December 1994 to avoid their whereabouts being discovered.
He maintained that his behaviour was justified because Mrs Ignaccolo belonged to a sect and had not looked after the children when they cohabited. However, he did not in any way substantiate his complaints but did no more than make allegations or produce testimony from persons living in the United States or Romania who did not personally know the children's mother.
The educative abilities of a father who totally denies the image of the mother, who brings the children up to hate their mother and does not even allow them to form their own opinion by affording them the opportunity to meet her and who has not hesitated, in order to evade enforcement of court decisions, to completely uproot the children for a second time in order to settle in a country whose language they are not familiar with are seriously in doubt.
The children's interests in such a situation are intangible and indefinable, regard being had, firstly, to the pressure and conditioning they undergo with their father and, secondly, to the fact that for five years they have been away from their mother, whom they no longer know.
The children's wish to stay and live with their father, as expressed both in their letters and when they were interviewed by the Romanian court, cannot on its own determine their interests since, if it did, that would amount to laying upon children of 10 and 14 the responsibility of deciding where they should live.
Mr Zenide cannot secure ratification of a factual situation that has arisen from the use of force by merely relying on the passing of time. That being so, his application must quite simply be dismissed ...”
54. Since 1994 the applicant has gone to Romania eight times in the hope of meeting her children.
55. Several attempts were made to execute the decision of 14 December 1994 but without success.
56. On 22 December 1994 a bailiff went to D.Z.'s home, accompanied by the applicant, her lawyer, a locksmith and two policemen. Only D.Z.'s wife O.Z. and a guard dog were at the house. O.Z., a French national, indicated that she would only allow the bailiff to inspect the house if a representative from the French embassy was present. The applicant and her lawyer therefore went to the French embassy, where the French consul, T., and an interpreter agreed to accompany them to D.Z.'s home.
57. During the applicant's absence, but while the policemen and the bailiff were still on the spot, D.Z. and an uncle of his, S.G., entered the house. When the applicant returned, accompanied by T. and the interpreter, O.Z. allowed those present, with the exception of the applicant, to search the premises. As the dog was very fierce, the search was carried out hastily and the girls were not found. D.Z. remained out of sight during the search.
58. On 23 December 1994 the applicant wrote to the Romanian Minister of Justice to complain of the course of events on 22 December. She requested the Minister to lodge a criminal complaint against O.Z. for failure to comply with a court decision. Asserting that she had no news of her daughters, she also asked him to institute criminal proceedings against D.Z., O.Z. and S.G. for ill-treatment of minors, false imprisonment and, if applicable, homicide.
59. On 27 December 1994 a bailiff, the applicant, her lawyer and two police officers again went to D.Z.'s home. Finding no one there, they spoke to a neighbour, who told them that D.Z. had left with the children on 22 December 1994. The group then went to the home of G.A., an uncle of D.Z.'s, with whom D.Z. and the children sometimes lived. There they found G.A. and the same guard dog. G.A. told them that he had not seen either D.Z. or the children since 20 December 1994. As to the dog, he told the bailiff that D.Z. had bought it to protect his daughters.
60. In a letter of 7 February 1995 the French Ministry of Justice informed the applicant that the Romanian Ministry of Justice had lodged a criminal complaint against D.Z. with the appropriate public prosecutor's office.
61. In a letter dated 5 May 1995 the Romanian Ministry of Justice informed the French Ministry of Justice that numerous approaches had been made to the police to locate the children, but to no avail, as D.Z. had withdrawn the children from school. The letter also stated that the Romanian authorities had lodged a criminal complaint against D.Z. for ill-treatment of minors. Lastly, the Romanian Ministry of Justice acknowledged that D.Z.'s bad faith was obvious and gave an assurance that it would continue to support the applicant in her endeavours.
62. On 10 May 1995 a group composed of the applicant, her lawyer, a representative from the Romanian Ministry of Justice, two bailiffs, three police officers and an official from the French embassy in Bucharest went to D.Z.'s home. The group was able to inspect the house but did not find the children there. During the four-hour discussion which followed, D.Z. stated that the girls were in Romania, but he refused to say more. He nevertheless promised to produce them to the Ministry of Justice on 11 May 1995.
63. A report drawn up by the French embassy in Bucharest on the visit of 10 May 1995 states:
“Contrary to what had been announced by Mrs F. [of the Romanian Ministry of Justice] before this search, D.Z. was not arrested by the police for failure to return the children. In the course of the intervention the public prosecutor's office, with which Mrs. F. was in touch by telephone, reconsidered its position and refused to have D.Z. brought before it. This change of mind was probably due to an intervention by Mr. G., a very influential lawyer, after he had been alerted by his client D.Z. ...”
64. Neither D.Z. nor the children kept the appointment on 11 May 1995.
65. As a consequence, D.Z. received an official request to report to the Ministry of Justice with his children on 15 May 1995, with a view to interviewing the children in the presence of their mother. On 15 May 1995 only Mr G., D.Z.'s lawyer, went to the Ministry and reiterated his client's refusal to produce the children.
66. On 4 December 1995 a fresh attempt to execute the judgment was made. The applicant, her lawyer and a bailiff went to D.Z.'s home. Only the bailiff and the applicant's lawyer were allowed in by the two policemen from the sixth district who were already on the spot, the applicant being requested to stay outside. According to D.Z. and the policemen, the children were not in the house. The bailiff, however, was not allowed to check those assertions for himself. Shortly afterwards a police inspector whom neither the two police officers nor the bailiff knew arrived and asked D.Z. to produce the children to him on the following day. D.Z. finally accepted a proposal from the applicant's lawyer that he should produce the children at 10.30 a.m. the following day at the bailiffs' office at the Bucharest Court of First Instance.
67. On 5 December 1995 the bailiff, the applicant and her lawyer waited for D.Z. in vain. A report was drawn up on that occasion.
68. In a letter of 10 May 1996 the French Minister of Justice informed his Romanian counterpart of the applicant's fears that the Romanian police were turning a blind eye to D.Z.'s conduct. He therefore asked him to intervene with the Romanian police to ensure that they did everything possible to secure the children's return to their mother.
69. On 29 January 1997 the applicant met her daughters for the first time for seven years. The meeting lasted ten minutes and took place in Bucharest in the staffroom of the children's school, where D.Z. was himself a teacher.
70. The meeting was attended by a bailiff, two senior officials from the Romanian Ministry of Justice, the French Consul-General in Bucharest, two officers from police headquarters, the headmaster and deputy headmaster of the school and the girls' two form teachers. According to the report drawn up by the bailiff on that occasion, the purpose of the meeting was to convince those present of the girls' refusal to return to their mother.
71. When she saw the applicant, Maud tried to run away and threatened to throw herself out of the window if she was compelled to have dealings with her mother. There followed, without the applicant being present, a discussion in which Maud stated that her mother had lied to them and done a great deal of harm. She reiterated her wish to stay with her father and never to see her mother again.
72. As to Adèle, she began to cry and shouted to the applicant to go away, saying that she never wanted to see her again. Her form teacher took the initiative of terminating the interview so as not to traumatise the girl. Once the girls had been removed by the form teachers, the applicant said she no longer insisted on execution of the order of 14 December 1994 and asked the headmaster to keep her regularly informed of her daughters' performance at school.
73. In a letter of 31 January 1997 the Romanian Ministry of Justice, Romania's Central Authority, informed the French Ministry of Justice, France's Central Authority, of its decision to order that the children should not be returned. The reason for that decision was the children's obstinate refusal to see their mother again, which had been apparent at the meeting of 29 January 1997.
74. In a letter of 17 June 1997 the Romanian Ministry of Justice sent the applicant the girls' average marks for the school year 1996/97.
75. In a letter of 7 July 1997 to the Romanian Ministry of Justice the applicant complained that the headmaster had not honoured his promise to keep her regularly informed of her daughters' school results and expressed her disappointment at the paucity of the information supplied on 17 June 1997. She said she could not accept such a “farce”.
76. The relevant provisions of the 1991 Constitution provide:
“Treaties lawfully ratified by Parliament shall form an integral part of the domestic legal order.”
“(1) The constitutional provisions on citizens' rights and liberties shall be interpreted and applied in accordance with the Universal Declaration of Human Rights and with the covenants and other treaties to which Romania is a party.
(2) In the event of conflict between the covenants and treaties on fundamental human rights to which Romania is a party and domestic laws, the international instruments shall prevail.”
77. The relevant provisions of the Hague Convention read as follows:
“Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures:
(a) To discover the whereabouts of a child who has been wrongfully removed or retained;
(b) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
(c) To secure the voluntary return of the child or to bring about an amicable resolution of the issues;
(d) To exchange, where desirable, information relating to the social background of the child;
(e) To provide information of a general character as to the law of their State in connection with the application of the Convention;
(f) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
(g) Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
(h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
(i) To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”
78. Article 108 of the Family Code provides:
“The supervisory authority [autoritatea tutelară] must continuously and effectively supervise the manner in which the parents discharge their obligations concerning the person and property of the child.
The delegates of the supervisory authority shall be entitled to visit children in their homes and to inform themselves by all available means about the manner in which the persons in charge of them look after them, about their health and physical development, their education ...; if need be, they shall give the necessary instructions.”
79. Article 307 of the Criminal Code provides:
“It shall be an offence punishable by one to three months' imprisonment or a fine for one of the parents of an under-age child to detain it without the permission of the other parent ... who lawfully has responsibility for the child.
The same penalty shall be incurred by a person to whom parental responsibility has been given by a judicial decision who repeatedly prevents one of the parents from having personal relations with an under-age child on the terms agreed by the parties or laid down by the appropriate body.
Criminal proceedings may only be instituted if a criminal complaint has first been lodged by the victim.
No criminal liability shall be incurred where there has been a reconciliation between the parties.”
80. The relevant provisions of the Code of Criminal Procedure read as follows:
“As regards the offences in respect of which the law requires a criminal complaint to be lodged beforehand, proceedings may only be instituted after a complaint by the victim.
The complaint shall be lodged:
...
(b) with the body in charge of criminal investigations or with the public prosecutor, in respect of offences other than those referred to in sub-paragraph (a).
...”
“Where the law requires a criminal complaint to be lodged beforehand, that complaint must be lodged within two months from the date on which the victim discovered the identity of the person who committed the offence...”
“Where a preliminary criminal complaint is improperly lodged with the public prosecutor's office or the court, it shall be forwarded to the appropriate body. In that event, it shall be regarded as valid if it was lodged with the wrong body within the time allowed by law.”
81. The relevant provisions of the Code of Civil Procedure read as follows:
“The parties may exercise their procedural rights in person or through a representative.
A representative with general authority to act may only represent the person for whom he acts before a court if he has been expressly given the right to do so.
If the person who has given the authority to act has no permanent or temporary home in Romania ..., he shall be presumed to have also given authority to represent him in the courts.”
“...
8. Unless otherwise provided in a treaty, international convention or special law, persons who are abroad and whose home address abroad is known shall be summoned to appear by registered mail...
In all cases in which those who are abroad have a known representative in Romania, the latter shall be summoned...”
“Whenever the presiding judge finds that an absent party has not been lawfully summoned, he must adjourn the case, failing which the proceedings will be null and void.”
82. The relevant provisions of Law no. 142 of 24 July 1997 amending the Administration of Justice Act (Law no. 92/1992) read as follows:
“The interests of the State shall be represented by State Counsel organised in departments at each court, under the authority of the Minister of Justice.
The work of State Counsel shall be organised in accordance with the principles of the rule of law, impartiality and hierarchical supervision.
...”
“State Counsel's Office shall have the following duties:
...
– defending the rights and interests of minors and persons deprived of legal capacity.”
“The Minister of Justice shall supervise all State Counsel through State Counsel inspectors attached to the Supreme Court of Justice and the courts of appeal or through other, delegated State Counsel.
Where he considers it necessary, the Minister of Justice, either of his own motion or at the instance of the National Judiciary Council, effects his supervision through inspectors-general or State Counsel on secondment...
...
The Minister of Justice may ask Principal State Counsel at the Supreme Court of Justice for information about the work of State Counsel's offices and may give advice on measures to be taken to combat crime.
The Minister of Justice is empowered to give State Counsel written instructions, either direct or through Principal State Counsel, to institute, in accordance with the law, criminal proceedings for offences that have come to his knowledge; he may also have actions and proceedings brought in the courts that are necessary for the protection of the public interest. ...”
83. In decision no. 87 delivered in 1993 the Supreme Court of Justice again confirmed its settled case-law on summoning persons resident abroad, which requires service to be effected at the foreign home but also at the Romanian home of any representative.
Legal writers, for their part, highlight the compulsory requirement of serving a summons on the person concerned at his foreign home, even where he has a representative in Romania (Viorel Mihai Ciobanu, Tratat Teoretic şi Practic de Procedură Civilă (“Theoretical and Practical Treatise on Civil Procedure”), vol. II, p. 94, Bucharest, 1997).
84. The courts have consistently held that the legal provisions governing summonses are mandatory as they are designed to ensure compliance with the adversarial principle and due process. If these provisions are not complied with, the decision will be null and void and it will be quashed and the case remitted to the tribunal of fact (Bucharest County Court, Third Civil Division, decision no. 226/1990, Culegere de Jurisprudenţă Civilă a Tribunalului Judeţean Bucureşti (“Reports of Criminal Cases in the Bucharest County Court”), no. 155, p. 123, Bucharest, 1992; Supreme Court of Justice, Civil Division, decision no. 779 of 6 April 1993, Buletinul de Jurisprudenţă al Curţii Supreme de Justiţie (“Supreme Court of Justice Case-Law Bulletin”) for 1993, p. 126, Bucharest, 1994).
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