ITEMID: 001-93851
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VLADIMIR FEDOROV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1976 and lived until his arrest in the town of Prokopyevsk in the Kemerovo Region. He is now serving his sentence in a correctional colony in Kemerovo.
7. On 12 March 2003, at approximately 10 a.m., police officers of the Rudnichniy District Police Department in Prokopyevsk stopped the applicant and his friend, Ms S., in a street and took them to the Rudnichniy District police station.
8. The applicant provided the following description of the subsequent events. He was placed in office no. 17 where five police officers, D., A., I., K. and Ko. severely beat him up. Ms S. was left in a hall, near office no. 17, and heard him screaming. She saw the applicant, covered with injuries and barely walking, two hours later. On 13 March 2003, unable to bear the beatings, the applicant wrote a statement, prompted by the police officers, in which he confessed to having committed a robbery. He was released on the following day under his own recognisance not to leave the town.
9. On 15 March 2003 the applicant attended the Central Trauma Unit where he was examined. The examining doctor recorded the following injuries on the applicant’s body: injuries to the kidneys, injuries and bruises on the upper extremities, buttocks and left shank and an injury to the soft tissue of the head. Treatment was recommended.
10. On 20 March 2003 the applicant lodged a complaint with the Prokopyevsk Town Prosecutor, seeking institution of criminal proceedings against the police officers who had ill-treated him on 12 and 13 March 2003.
11. Five days later the Prokopyevsk Town prosecutor’s office remitted the applicant’s complaint to the Prokopyevsk Town Police Department with a request to conduct an official inquiry into the events of 12 and 13 March 2003.
12. On 7 April 2003 the head of the Prokopyevsk Town Police Department issued a decision, approving the findings of the official police inquiry into the applicant’s complaints. The decision read as follows:
“On 25 March 2003 the police department received [the applicant’s] complaint from the town prosecutor’s office; [in that complaint the applicant] indicates that the police officers of the district police station applied psychological and physical pressure to him and his acquaintance, Ms S., in order to extract a confession statement.
According to [the applicant], on 12 March 2003, at approximately 10.00 a.m., he and Ms S. were arrested by a police officer, D., and taken to the Rudnichniy District Police Department, where in office no. 17, [officer] D., having handcuffed [the applicant] to the chair back, beat him with a shovel handle.
[The applicant] indicated that on a number of occasions, in the police station between 12 and 14 March 2003, the police officers D., A., I., K. and Ko. had taken him from a detention unit to the service garage, where [they] had beaten him up, had buried him naked in the snow, had threatened him and his girlfriend with violence, [and] had applied psychological pressure.
Ms S. explained that after [she had been] taken to the police station, she had been near office no. 17 for approximately two hours and had heard [the applicant] screaming. After [the officer] D. had questioned her, she was placed in a detention unit where she remained until 9.00 a.m. on 13 March 2003. Ms S. also asserts that psychological pressure was applied to her.
The police officer, D., stated that on the basis of information received pertaining to an armed robbery, on 12 March 2003, at approximately 10.00 a.m., he had arrested [the applicant]. As the latter had attempted to hide on the premises of a psychiatric hospital and a [hospital] staff member had called [the police], [the applicant] was taken to the police station in a police car. On the same day criminal case no. 665913 was opened pursuant to Article 162 § 2 of the Russian Criminal Code in respect of the robbery.
[The officer] D. also explained that Ms S. had voluntarily gone to the police station. D. had a talk with her (not an [official interrogation]) as she had close ties to [the applicant] and could have certain information. Ms S. was not detained in the detention unit.
A police officer working with arrestees, Mr Se., stated in his explanation note, that Ms S. had been registered by housing maintenance authorities (registration no. 1309) and, on an order from [officer] D., [he] had verified information about her in the address inquiry office. However, she had not been placed in the detention unit.
All the police officers, who were named in [the applicant’s] complaint and statements, save for Mr K. who had been on annual leave since 24 March 2003, firmly deny that physical force, threats or psychological pressure were applied to [the applicant].
However, taking into account that on 15 March 2003 [the applicant] applied to the Central Trauma Unit (certificate no. 1983), which recorded injuries, [and having regard to] discrepancies between statements of individuals and police officers, it is necessary to perform certain investigative actions to establish the truth, which is impossible to do within the limits of the official inquiry and is within the competence of the prosecution authorities.”
13. On 15 April 2003 the applicant was re-arrested and placed in a temporary detention ward.
14. Three days later an assistant of the Prokopyevsk Town Prosecutor, having examined the medical certificate of 15 March 2003 and the conclusions of the official police inquiry, dismissed the applicant’s request for institution of criminal proceedings against the police officers because “there was no objective data” confirming the applicant’s allegations.
15. On 5 May 2003 the applicant underwent a chest X-ray examination. As is apparent from a medical certificate issued by a prison doctor on 26 May 2004, the X-ray showed that the applicant had a fracture in the front part of the ninth rib in the consolidation phase.
16. Relying on medical evidence in support of the applicant’s allegations of ill-treatment, the applicant’s father complained to the Prokopyevsk Town Prosecutor about the assistant prosecutor’s decision of 18 April 2003. On 1 October 2003 the Town Prosecutor quashed the decision of 18 April 2003, pointing to the incompleteness of and defects in the assistant prosecutor’s decision, and authorised an additional inquiry.
17. On 13 October 2003 an assistant of the Prokopyevsk Town Prosecutor, once again relying on the police officers’ denials of the use of force, refused to institute criminal proceedings against them. The relevant part of the decision reads as follows:
“On 15 March 2003, in the trauma unit, [the applicant] was diagnosed with several injuries; however, in the course of the inquiry it has been impossible to establish the time and mechanism of their appearance without a forensic medical examination. The circumstances of [the applicant’s] beatings as indicated by him were not corroborated by any objective data. The police officers ... interrogated in the course [of the inquiry] strongly object to [the applicant’s] arguments concerning the application of unlawful investigation methods...”
18. On 10 March 2004 the Prokopyevsk Town Prosecutor sent a letter to the applicant’s father informing him that his complaints had been examined and had been dismissed by a decision of 13 October 2003. The Town Prosecutor also informed the applicant’s father that he had no standing in the proceedings pertaining to the alleged beatings of the applicant and that, therefore, he had no right to appeal against the decision of 13 October 2003.
19. On the same day the Prokopyevsk Town Prosecutor sent a letter to the applicant, notifying him of the decision of 13 October 2003. The Prosecutor added that the decision of 13 October 2003 had been lawful and that there were no grounds to annul it. As shown by the postmark, the letter was served on the applicant on 17 March 2004.
20. In the meantime, on 15 September 2003, the Rudnichniy District Court of Prokopyevsk found the applicant guilty of aggravated theft, fraud and robbery and sentenced him to seven years and six months’ imprisonment. The District Court based the conviction on the applicant’s partial confession given in open court, statements by the victims and witnesses, including Ms S., a record of a search in the applicant’s flat showing that the victims’ belongings had been found and seized, records of identification parades and other material evidence. The applicant’s confession which he had given on 13 March 2003 did not serve as the basis of his conviction. The District Court examined the applicant’s allegations of police brutality. It noted that the prosecution authorities had conducted an inquiry into the applicant’s complaints about the beatings and had decided not to institute criminal proceedings because the allegations had not been proven.
21. The applicant and his lawyer appealed, arguing, inter alia, that the District Court had not examined his ill-treatment complaints thoroughly and that it had disregarded the medical evidence supporting the applicant’s version of events.
22. On 18 November 2003 the Kemerovo Regional Court upheld the applicant’s conviction, endorsing the reasons given by the District Court.
23. According to the Government, on 20 October 2006 the case file pertaining to the inquiry into the applicant’s ill-treatment complaints was destroyed due to the archiving time-limit.
24. On 18 January 2007 a deputy prosecutor of the Kemerovo Region instituted criminal proceedings against the police officers who, according to the applicant, had tortured him in March 2003.
25. On 18 May 2007 an investigator of the Prokopyevsk Town Prosecutor’s office closed the criminal proceedings, finding that there was no prima facie case of ill-treatment. The investigator based his decision on statements by the applicant and Ms S., who had confirmed their allegations of police brutality, and statements by a number of police officers, investigators and a judge who had come into contact with the applicant in March 2003. Due to the remoteness of the events in question the interrogated officials could not recall certain details of the applicant’s arrest and his subsequent detention in the police station or even if they had seen or talked to the applicant on 12 and 13 March 2003. The police officers, the alleged perpetrators of the offence, were also interrogated. They fiercely denied that force had been used and also had difficulties recalling either the applicant himself or the details of his presence in the police station. The investigator questioned two persons who had allegedly been detained in the police station together with the applicant in March 2003. Those persons did not remember the applicant and merely stated that during their detention in the police station they had not been ill-treated and had not heard anyone complain about police brutality.
The investigator had been unable to examine the medical evidence, including the X-ray records made in May 2003 and records of the medical emergency unit of the Prokopyevsk Town Hospital, as they had been destroyed due to the archiving time-limit.
The investigator concluded that the applicant’s ill-treatment allegations were not supported by any evidence, save for statements given by him and his relatives. The investigator noted that those statements had to be treated with caution as they had been made by persons having a direct interest in the case.
26. It appears that, on an unspecified date, the decision of 18 May 2007 was annulled and a new round of criminal proceedings commenced.
27. The applicant lodged a complaint with the Prokopyevsk Town Prosecutor, seeking the transfer of the case file to the Kemerovo Regional Prosecutor’s office for further investigation. He also asked to change the legal classification of the police officers’ actions and to ensure his and his relatives’ safety.
28. On 27 July 2007 a deputy to the Prokopyevsk Town Prosecutor dismissed the applicant’s complaint in full.
29. On 6 August 2007 the applicant received a letter from the Prokopyevsk Town Prosecutor, informing him that the criminal proceedings were stayed as “it was impossible to identify persons who could be charged” with a criminal offence against the applicant.
30. The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) establishes that a criminal investigation can be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigative authorities’ own initiative, where there are reasons to believe that a crime was committed (Articles 146 and 147). A prosecutor is responsible for overall supervision of the investigation (Article 37). He can order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there are no grounds to initiate a criminal investigation, the prosecutor or investigator issues a reasoned decision to that effect which has to be notified to the interested party. The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction within a procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.
31. Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to the person or property of a citizen must be compensated for in full by the tortfeasor. Pursuant to Article 1069, a State agency or a State official will be liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated for at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that compensation must be awarded for non-pecuniary damage irrespective of any award for pecuniary damage.
VIOLATED_ARTICLES: 3


ITEMID: 001-23518
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: MIEG DE BOOFZHEIM v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants, Pierre and Marie-Louise Mieg de Boofzheim, are French nationals who were born in 1925 and live at Saint Martin de la Place. They were represented before the Court by Mr Prioux, of the Saumur Bar.
On 9 March 1993 the applicants received notice that their personal tax affairs for the years 1990, 1991 and 1992 were to be investigated. The investigation concerned the terms on which a flat in Neuilly-sur-Seine had been transferred and losses incurred on the Chateau de Boumois, in which the applicants lived.
Mrs Mieg de Boofzheim is the manager of the SCI de Boumois, the company that owns the chateau, and holds a majority shareholding in it. The Revenue served assessments to additional tax on the company on 4 October 1993 and on the applicants on 14 October 1993. All the assessments were contested by the applicants. However, they were confirmed by the Revenue on 7 December 1993 and 17 February 1994.
On 31 May 1994 the Revenue served demands for the additional tax that had been imposed on the applicants, together with interest for late payment and a 40% surcharge because the applicants had acted in bad faith in declaring the losses on the chateau and been late in filing the capital-gains tax return on the sale of the flat. The sums demanded came to a total of 17,948 French francs (FRF) for 1990 and FRF 452,687 for 1991.
On 21 June 1994 the applicants lodged an appeal. They argued that the Revenue had miscalculated the period for which they had owned the flat in Neuilly for the purposes of assessing their liability to capital gains tax on its sale in 1991. They had in fact purchased the property in 1954 and were thus entitled to the exemption from capital gains tax which, by law, was granted to owners who had retained title for more than 32 years. They also sought to be allowed to deduct certain expenditure on furnishings and staff from the SCI de Boumois’ taxable income, on the ground that it had been incurred in order to attract visitors to the chateau and because the chateau’s upkeep necessitated the services of a full-time housekeeper.
In the absence of a reply from the Revenue within the statutory six-month time-limit, the applicants applied to the Nantes Administrative Court for an order cancelling the income-tax surcharge and related penalties.
In a decision of 19 June 1995, the Director of Revenue granted relief from the capital-gains-tax surcharge, interest for late payment and related penalties for the year 1991 in the amount of FRF 250,401 on the principal sum due and FRF 130,208 on the interest and penalties.
In a decision of 22 May 1996, the Revenue granted relief from the surcharges that had initially been imposed for bad faith in respect of the remaining contested tax assessments (on income from land for the years 1990 and 1991) in the sum of FRF 4,459 for 1990 and FRF 16,661 for 1991.
By a decision of 17 February 1997 the applicants were granted additional relief of FRF 325 in tax and FRF 38 francs in penalties, in order to rectify an arithmetical error in the calculation for 1991.
In a letter of 20 July 1998, the clerk to the Administrative Court informed the applicants that, owing to a large number of pending cases, it was not possible to say when their case was likely to be heard.
Following a hearing on 21 March 2000 the Nantes Administrative Court delivered a judgment on 3 May 2000 in which it held that it was unnecessary to give a ruling in respect of the applicants’ claims up to FRF 402,092. It dismissed the applicants’ remaining claims (namely for FRF 60,303 in disputed taxes and FRF 8,240 in interest for late payment).


ITEMID: 001-60879
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF SHISHKOV v. BULGARIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-3 with regard to right to be brought promptly before a judge;No violation of Art. 5-1;Violation of Art. 5-3 with regard to length of pre-trial detention;Violation of Art. 5-4 on account of lack of access to file;Violation of Art. 5-4 with regard to first appeal against detention;No violation of Art. 5-4 with regard to second appeal against detention;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1970 and lives in Rakovski, in the region of Plovdiv.
10. On 22 August 1997 the applicant was arrested on suspicion of having stolen from a Ms S. gold jewellery and money worth 20,110,448 Bulgarian levs (“BGL”). In view of the value of the stolen objects and money, the offence with which the applicant was charged constituted a “serious” offence, within the meaning of the Penal Code.
According to the indictment drawn up later, the applicant, who had been employed by a private security company to keep Ms S.’s house , had taken advantage of her and her family’s departure on holiday to steal the above valuables on 2 August 1997. On the same day he had taken some of the jewellery and money to his sister’s home. Approximately ten days later, having learned that Ms S. had discovered the theft, the applicant had travelled to the nearby city of Plovdiv to sell some of the jewellery before returning home. On 19 August 1997 the applicant and his family (his wife and their two month-old child) had visited the applicant’s mother in the town of Perushtiza. There the applicant had given his mother the remaining money.
11. On the day of his arrest and on being questioned by an assistant investigator the following day, 23 August 1997, the applicant admitted the theft and directed the police to the persons who had bought some of the stolen jewellery from him. The majority of the valuables were recovered by the police the same day. The applicant’s mother returned the money she had been given by her son.
12. The period between 23 August and 10 October 1997 was taken up by procedural acts. No new evidence was collected during that period. The applicant was not interrogated.
13. On 26 August 1997 the assistant investigator transmitted the file to the District Prosecutor’s Office inviting it to reclassify the proceedings, which had begun as a summary investigation (дознание), into an ordinary investigation (следствие). On 5 September 1997 the District Prosecutor’s Office transmitted the case file to the Regional Prosecutor’s Office, as it considered that the proceedings came within the latter’s competence. By a decision dated 10 September 1997 a prosecutor from the Regional Prosecutor’s Office found that the case fell to be dealt with by the District Prosecutor’s Office and gave instructions for its return. On 12 September 1997 the case file was transmitted to the District Prosecutor’s Office.
14. By a letter of 19 September 1997 the applicant’s lawyer complained to the Regional Prosecutor’s Office of the delays in the proceedings and stated that he had been unable to obtain detailed information about the accusation and had been refused access to the case file. He also requested the removal of the district prosecutor.
On 25 September 1997 that request was transmitted with the case file to the Regional Prosecutor’s Office. On 1 October 1997 it was dismissed and the case file was sent back to the District Prosecutor’s Office.
15. On 6 October 1997 the District Prosecutor’s Office decided to reclassify the proceedings as an ordinary investigation and not a summary investigation. On 8 October 1997 the case was assigned to an investigator with instructions to treat it as urgent in view of the fact that the accused was remanded in custody.
16. Between 10 October 1997 and 8 December 1997 the investigator questioned the applicant twice, summoned three witnesses, requested information from the National Bank about the exchange rates of certain currencies, appointed an expert to assess the value of the stolen objects, and brought charges against the applicant’s sister, Ms K., who had allegedly aided the applicant in selling the stolen objects.
17. The period after 8 December 1997 was taken up by procedural steps and efforts to clarify the exact number, weight, quality and value of certain missing pieces of jewellery, the difficulty being that there were discrepancies between the descriptions given by the applicant and by the owner.
18. On 21 January 1998 the investigator put an additional question to the expert.
19. On 30 January 1998 the investigator reformulated the charges against the applicant, notified him accordingly and questioned him briefly. On 5 February 1998 the investigator concluded his work on the case and transmitted the file to the District Prosecutor’s Office.
20. On 26 February 1998 the District Prosecutor’s Office referred the case back to the investigator, instructing him to appoint another expert to assess the value of the jewellery and to amend the charges. On 23 March 1998 the investigator appointed an expert. On 27 March 1998 the investigator amended the charges against the applicant and his sister, notified them accordingly and questioned them briefly.
21. On 23 March 1998 the investigator requested an extension of time in which to complete the investigation. The request, which was submitted through the District Prosecutor’s Office, was transmitted to the Regional Prosecutor’s Office on 30 March 1998. It appears that the case file was attached. The request was granted and the case file returned on an unspecified date at the beginning of April 1998.
22. On 14 May 1998 an indictment was submitted to the District Court. On 27 July 1998 the District Court sent the case back to the prosecutor for further investigation.
On 19 August 1998 the prosecutor, considering that the value of the stolen objects was lower than that initially indicated, terminated the criminal proceedings as regards the excess and lodged a fresh indictment. The District Court listed the case for hearing on 19 December 1998. The parties have not informed the Court of any further developments.
23. The applicant was arrested on 22 August 1997. On 23 August 1997 he was brought before an assistant investigator who charged him and decided that he should be remanded in custody. The detention order, which was made on the basis that the applicant was charged with a serious offence, stated that there existed a danger of the applicant’s absconding or committing offences, without providing reasons. It was either authorised in advance or approved on the same day by a prosecutor.
On 25 August 1997 the applicant appointed a lawyer to represent him.
24. On 3 September 1997 the applicant’s lawyer prepared an appeal to the Plovdiv District Court against his client’s detention pending trial. The appeal was submitted through the District Prosecutor’s Office, as required by Article 152a § 2 of the Code of Criminal Procedure.
There is a dispute between the parties as to the date on which the appeal was actually submitted to the District Prosecutor’s Office. The applicant maintains that the appeal was handed over to the duty prosecutor on 3 September 1997 who, in accordance with the usual practice, transmitted it to the clerical staff without registering it himself. According to the Government, the date on which the appeal was registered, 8 September 1997, should be considered as the date of its submission, there being no proof that it had been submitted earlier.
25. On 15 September 1997, having established that his appeal against the applicant’s detention had not arrived at the District Court, the applicant’s lawyer submitted another copy thereof directly to the District Court.
26. On 16 September 1997 the District Prosecutor’s Office transmitted the applicant’s appeal against his detention to the District Court. On the same day a judge at the District Court listed the case for hearing on 19 September 1997. The applicant’s lawyer was summoned by telephone on the same day.
27. The District Court held a hearing on 19 September 1997 in the presence of the applicant, his lawyer and a prosecutor.
The prosecutor stated that the appeal should be rejected on formal grounds as it had been submitted after the expiry of the seven-day time-limit under Article 152a § 1 of the Code of Criminal Procedure.
The applicant’s lawyer explained that he had been refused access to the case file, which had prevented him from preparing the appeal on time.
28. By a decision of 19 September 1997 the District Court rejected the appeal. Noting that the appeal was dated 3 September 1997 whereas the decision to detain the applicant had been taken and notified to him on 23 August 1997, and observing that the applicant had authorised a lawyer to represent him on 25 August 1997, the court found that the appeal had been submitted after the expiry of the relevant seven-day time-limit and was inadmissible.
The District Court further stated that there had been “no change of circumstances” within the meaning of Article 152a § 4 of the Code of Criminal Procedure (see paragraph 40 below).
29. On an unspecified date between 2 and 11 February 1998 the applicant’s lawyer submitted through the District Prosecutor’s Office a second appeal against his client’s detention pending trial. He stated inter alia that the applicant had admitted the theft, had directed the police to the stolen objects and had been co-operative. Also, there was no danger of his absconding because he had a wife and a young child, and no danger of his committing offences because he had no previous convictions and had shown remorse for his acts. The lawyer further stated that the relevant facts had already been established and that the applicant was not responsible for the prosecution’s difficulties in determining the exact value of the jewellery, such that there was no justification for his continuing detention.
30. The lawyer, who had been appointed by the applicant in October 1997 to replace his previous lawyer, did not indicate his address and telephone number on the appeal papers. The parties have not clarified whether this information appeared on other documents in the case file.
31. On 11 February 1998 the appeal was transmitted to the District Court. By an order made on Friday, 13 February 1998 the Court listed the matter for hearing on Monday, 16 February 1998 at 9.00 a.m., and summoned the applicant in person and the prosecutor. The applicant was summoned through the prison authorities.
32. On 16 February 1998 the District Court heard the applicant and the prosecutor. The applicant’s lawyer was not present. The applicant stated that he had admitted the offence, he had a seven-month old child and wanted to preserve his family. He explained that at the time of the theft he had been suffering from depression due to financial problems.
The District Court refused to release the applicant. It noted that the charges against him concerned a serious wilful offence punishable by a period of three to fifteen years’ imprisonment and that Article 152 § 1 of the Code of Criminal Proceedings required that persons accused of offences of that category be remanded in custody. Furthermore, the investigation was still pending and there, therefore, existed a danger of his absconding or seeking to pervert the course of justice. The fact that the applicant had made a full confession did not affect in any way the question whether he should be remanded in custody. The court further stated that the applicant’s argument concerning his family could not serve as a ground for his release and added that he should have thought about his family before committing the offence.
33. On 1 April 1998 the applicant submitted through the District Prosecutor’s Office a third appeal against his detention pending trial. On 8 April 1998 the District Prosecutor’s Office transmitted the appeal to the District Court.
34. The District Court heard the appeal on 13 April 1998 in the presence of the applicant and his lawyer. The prosecutor stated that the applicant should be released.
The District Court decided to release the applicant on bail. It noted that he had a permanent address, had not obstructed the investigation, and did not have a criminal record. The District Court further stated that the investigator had expressed the opinion that the applicant’s detention pending trial “had produced its effects”. Furthermore, there was no danger of his perverting the course of justice because the investigation had been concluded and no danger of absconding in view of his family situation.
35. The applicant gave a recognizance and was released on an unspecified date in April 1998.
36. The applicant produced copies of correspondence in January and March 1998 from the presidents of the Plovdiv District Court and of the Plovdiv Regional Court to the local Bar Association, apparently in reaction to complaints by lawyers of an existing practice of barring access to case files in cases concerning appeals against pre-trial detention.
The president of the District Court acknowledged that the complaints were well-founded and stated, inter alia, that, “[r]egrettably, District Court judges rely on the hitherto prevailing practice and do not share my opinion ...”
The president of the Regional Court informed the Bar Association that the matter had been discussed at length and that the judges had agreed that, contrary to the opinion of the Chief Public Prosecutor’s Office and the Regional Prosecutor’s Office in Plovdiv, there were no legal grounds for refusing access to case files in appeals against detention proceedings.
37. At the relevant time and until the reform of 1 January 2000 an arrested person was brought before an investigator who decided whether or not the accused should be remanded in custody. The investigator’s decision was subject to approval by a prosecutor.
The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 25-29 of the Court’s Nikolova v. Bulgaria judgment ([GC], no. 31195/96, ECHR 1999-II).
38. The legal grounds for detention pending trial were set out in paragraphs 1 and 2 of Article 152 of the Code of Criminal Procedure, which, as worded at the material time, provided as follows:
“(1) Detention pending trial shall be ordered [in cases where the charges concern] a serious wilful offence.
(2) In cases falling under paragraph 1 [detention pending trial] may be dispensed with if there is no danger of the accused’s absconding, obstructing the investigation, or committing further offences.”
According to Article 93 § 7 of the Penal Code a “serious” offence is one punishable by more than five years’ imprisonment.
39. The Supreme Court’s practice at the relevant time (which has since become obsolete as a result of the amendments in force since 1 January 2000) was to construe Article 152 § 1 of the Code of Criminal Procedure as requiring that a person charged with a serious wilful offence had to be remanded in custody. An exception was only possible, in accordance with Article 152 § 2, where it was clear and beyond doubt that any danger of absconding or reoffending was objectively excluded, for example, if the accused was seriously ill, elderly, or already detained on other grounds, such as serving a sentence (Decision no. 1 of 4 May 1992, case no. 1/92, II Chamber, Bulletin 1992/93, p. 172; Decision no. 4 of 21 February 1995, case no. 76/95, II Chamber; Decision no. 78 of 6 November 1995, case no. 768/95, II Chamber; Decision no. 24, case no. 268/95, I Chamber, Bulletin 1995, p. 149).
40. Article 152a of the Code of Criminal Procedure, as in force at the relevant time, provided as follows:
“(1) The detained person shall be provided immediately with a possibility to file an appeal to a judge at the competent court against the [order for his detention pending trial], not later than seven days after [the detention order]. The judge shall summon the parties and decide at a hearing in open court not later than three days following the receipt of the appeal at the court.
(2) The appeal shall be lodged with the body that ordered the detention. On the day it is lodged, the appeal, accompanied by the [detention order] and all materials in the case, shall be transmitted to the court.
(3) The court shall deliver a decision which is not subject to appeal. The court shall either quash the detention order and impose another measure of control [of the accused] or dismiss the appeal.
(4) In the event of a change of circumstances the detained person may lodge a fresh appeal to the court against the [detention order].”
41. According to the Supreme Court’s practice at the relevant time, it was not open to the courts, when examining appeals against detention pending trial, to assess whether there existed sufficient evidence to support the charges against the detainee. The courts must only examine the lawfulness of the detention order (Decision no. 24 of 23 May 1995, case no. 268/95, I Chamber, Bulletin 1995, p. 149).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
5-4


ITEMID: 001-61291
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF STOCKHOLMS FORSAKRINGS- OCH SKADESTANDSJURIDIK AB v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of P1-1;No violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Gaukur Jörundsson
TEXT: 9. In April 1989 the applicant instituted proceedings in the District Court (tingsrätten) of Stockholm against a forwarding agent, claiming that goods belonging to the applicant had been damaged or lost while in the care of the agent. The agent was later declared bankrupt but the bankruptcy estate of the agent declined to enter as a party to the proceedings. On 16 December 1991 the District Court gave judgment in default (tredskodom) according to which the agent – the bankruptcy debtor – was to pay the applicant 112,340 Swedish kronor (SEK) in damages and SEK 199,210 in litigation costs. No appeal was made and the judgment acquired legal force.
10. In March 1992 the applicant and the bankruptcy estate of the agent signed an agreement according to which the estate assigned to the applicant the estate’s right to compensation from an insurance company under a third party insurance which had been taken out by the agent to cover possible liabilities incurred in connection with its forwarding business. Subsequently, the applicant instituted proceedings against the insurance company in the District Court, claiming that the insurance company should pay the applicant SEK 29,648 in compensation for damaged or lost goods and SEK 199,210 for the above-mentioned litigation costs.
11. On 7 July 1995 the District Court rejected the applicant’s claims against the insurance company and ordered the applicant to pay the insurer’s litigation costs in the amount of SEK 276,760. The court found that the bankruptcy estate of the forwarding agent had not been a party to the proceedings concluded by the judgment of 16 December 1991 – which had only determined the agent’s liability vis-à-vis the applicant – and that, thus, the estate had not acquired any rights or obligations on account of that judgment. Accordingly, the estate of the agent had not been in a position to assign to the applicant any rights emanating from the third party insurance.
12. The applicant appealed to the Svea Court of Appeal (Svea hovrätt) and requested that the enforcement of the District Court’s judgment be suspended as it had not acquired legal force. On 9 August 1995 the appellate court found that there was no legal possibility to suspend the enforcement and thus rejected the applicant’s request.
13. In order to recover its litigation costs, the insurance company requested the Enforcement Office (kronofogdemyndigheten) to levy execution on the applicant’s assets. The Enforcement Office found, however, that the applicant had no seizeable assets. The insurance company then filed a bankruptcy petition against the applicant. In a decision of 19 October 1995 the District Court considered that the applicant’s appeal against the judgment of 7 July 1995 had no prospects of success and that, consequently, its liability to pay the litigation costs in question would remain unchanged. Noting further that the applicant was insolvent as it had no assets to pay the litigation costs, the court declared the applicant bankrupt and ordered it to pay the insurer’s litigation costs in the bankruptcy proceedings.
14. The declaration of bankruptcy was upheld by the Court of Appeal on 27 November 1995. However, the applicant made a further appeal to the Supreme Court (Högsta domstolen), and on 12 September 1996 that court quashed the appellate court’s decision, rejected the bankruptcy petition filed against the applicant and ordered the insurance company to pay the applicant’s litigation costs in the bankruptcy proceedings. The Supreme Court found that, by declining to enter as a party to the original damage proceedings, the bankruptcy estate of the forwarding agent had not renounced any rights it might have had vis-à-vis the insurance company under the third party insurance. Consequently, the transfer of its rights under that insurance to the applicant was in fact valid. In view of this and the complexity of other issues raised by the parties in the compensation proceedings adjudicated by the District Court on 7 July 1995, there was no basis for concluding that the applicant’s appeal against that judgment lacked prospects of success. As the inventory of the applicant company did not reveal any other important debts, the declaration of bankruptcy was entirely dependent on the applicant’s possible liability to pay the insurance company’s litigation costs in the compensation proceedings. Having found that the outcome of those proceedings was uncertain, the Supreme Court concluded that the insurer had failed to show that the applicant was insolvent.
15. Following the Supreme Court’s decision, the District Court, on 4 December 1996, fixed the fee to be paid to the official receiver who had been in charge of the applicant’s bankruptcy at SEK 5,000. The District Court further recalled that the fee was to be paid by the bankruptcy estate. In so doing, it referred to Chapter 2, Section 25 of the Bankruptcy Act (Konkurslagen, 1987:62) which provides that, following the decision by a superior court to quash a declaration of bankruptcy, the assets of the estate shall be returned to the bankruptcy debtor to the extent they are not required for the defrayal of the bankruptcy costs. The receiver’s fee is considered as a bankruptcy cost, according to Chapter 14, Section 1 of the Bankruptcy Act.
16. The applicant appealed to the Court of Appeal. It did not challenge the fee as such but claimed that liability to bear the bankruptcy costs would violate the property rights of the estate and – consequently – the applicant. The applicant invoked Article 1 of Protocol No. 1 to the Convention.
17. In a decision of 30 December 1996, the Court of Appeal stated that the District Court had only recalled that, under the relevant law, the receiver’s fee was to be paid by the bankruptcy estate. It had not ruled on the question whether the receiver’s claim for remuneration had priority over the applicant’s right to the assets. As a consequence, this question could not be examined by the Court of Appeal which, accordingly, dismissed the appeal.
18. The applicant made a further appeal to the Supreme Court. It claimed that, in referring to the above-mentioned provision of the Bankruptcy Act, the District Court had in fact determined that the bankruptcy estate – and not the State – was to defray the receiver’s fee. The use of the word “recall” rather than “decide” was, in these circumstances, irrelevant. The applicant stated further that there was no other legal remedy available for the determination of the liability to pay the fee in question. Referring to Article 6 of the Convention, the applicant therefore claimed that the Court of Appeal was obliged to determine that liability.
19. On 5 June 1997 the Supreme Court refused the applicant leave to appeal against the Court of Appeal’s decision.
20. The assets of the bankruptcy estate – SEK 1,597 according to the inventory deed – were appropriated to cover part of the receiver’s fee. The remainder of the fee was paid by the insurance company.
21. By a decision of 22 September 1997 the Court of Appeal quashed the District Court’s judgment of 7 July 1995 and referred the compensation case back to the latter court for reexamination. The appellate court found that the District Court had not examined the applicant’s claim that the rights under the third party insurance had been transferred from the forwarding agent to its bankruptcy estate at the time when the agent was declared bankrupt, rather than as a consequence of the default judgment of 16 December 1991. The District Court had also failed to consider the insurance company’s counter-claim that, under the relevant provision of the Insurance Contracts Act (Lagen om försäkringsavtal, 1927:77), it was not liable to pay any compensation as, at the time of the declaration of bankruptcy, the policy-holder, i.e. the forwarding agent, had had no claim for compensation. Thus, the District Court had made a procedural error which presumably had affected the outcome of the case and which could not be remedied by the Court of Appeal.
22. After the case had been referred back to the District Court, the insurance company conceded the applicant’s compensation claims. Consequently, on 22 January 1999, the District Court gave judgment in the applicant’s favour, ordering the insurance company to pay the compensation claimed and the applicant’s litigation costs.
23. References in this section are made to the Bankruptcy Act, unless otherwise indicated.
24. By means of bankruptcy, all creditors collectively and compulsorily take the total assets of an insolvent debtor for payment of their claims. During bankruptcy, the bankruptcy estate takes care of the debtor’s assets on behalf of the creditors (chapter 1, section 1).
25. An insolvent debtor is declared bankrupt by the District Court following his own or a creditor’s petition. As a rule, it is for the petitioner to show that the debtor is insolvent. However, if certain requirements are fulfilled, a debtor is considered insolvent unless otherwise shown (chapter 2, sections 8 and 9). In such cases, the burden of proof is placed on the debtor. Thus, unless otherwise shown, a debtor is deemed to be insolvent when, in the event of enforcement within six months before the bankruptcy petition, inter alia, it appeared that he or she did not have assets for full payment of the claim. If a creditor’s claim has been confirmed by a court, the creditor may request that the debtor be declared bankrupt even if the court’s decision has not acquired legal force. This does not apply, however, if the court has ordered that the judgment must not be enforced before it has acquired legal force (chapter 2, section 6).
26. The administration of a bankruptcy estate is managed by one or more official receivers appointed by the District Court and supervised by a section of the Enforcement Office, the Supervisory Authority in Bankruptcy (tillsynsmyndigheten i konkurs) (chapter 1, section 3, and chapter 7, sections 2 and 25). The receiver must have regard to the common rights and best interests of the creditors and shall take all necessary measures to promote an advantageous and expeditious winding-up of the estate. The receiver is obliged to notify the public prosecutor if he considers that the debtor may be suspected of certain economic crimes (chapter 7, section 16).
27. The bankruptcy costs include, inter alia, the official receiver’s fee for work performed and the reimbursement of any special costs borne by him during the performance of his assignment (chapter 14, section 1).
28. If the District Court considers, after hearing the receiver, that the assets of the bankruptcy estate do not suffice to pay the bankruptcy costs and other debts that the estate has incurred, the court shall decide to terminate the bankruptcy proceedings (chapter 10, section 1).
29. The District Court determines the receiver’s fee after having consulted the Supervisory Authority in Bankruptcy. The fee should constitute reasonable remuneration for the assignment (chapter 14, sections 4, 8 and 10).
30. The bankruptcy costs are paid out of the bankruptcy estate before other debts (chapter 14, section 2). Thus, no distribution to the creditors can take place until, first, the bankruptcy costs and, then, any other debts that the bankruptcy estate may have incurred have been paid. The State and the creditor who filed the bankruptcy petition can also be made liable for the bankruptcy costs but their liability is of a secondary nature (chapter 14, sections 2 and 3). Accordingly, if the bankruptcy proceedings are terminated in accordance with chapter 10, section 1, the creditor who filed the petition for bankruptcy is to pay the costs to the extent that they cannot be paid out of the estate. However, this liability is limited to one-tenth of a basic amount geared to the price index (basbelopp; this basic amount is regulated in the Social Insurance Act (Lagen om allmän försäkring, 1962:381)). At the time of the declaration of bankruptcy in the present case, one-tenth of the basic amount corresponded to SEK 3,570. If the amount to be paid out of the estate or by the creditor does not suffice to cover the bankruptcy costs, the remainder of the costs is to be borne by the State.
31. Bankruptcy decisions are immediately enforceable (chapter 16, section 4). Thus, following the declaration of bankruptcy of a debtor, the District Court must promptly appoint a receiver who shall start his or her work immediately, regardless of whether an appeal has been lodged against the declaration of bankruptcy. In the event of a higher court quashing the bankruptcy decision, all administrative measures are to be interrupted forthwith and the case referred back to the District Court for concluding measures.
32. In such a situation, the assets of the estate are restored to the debtor to the extent that they are not required for the defrayal of the bankruptcy costs and other costs that the estate has incurred (chapter 2, section 25). Thus, there is no exception to the estate’s liability to pay the bankruptcy costs (chapter 2, section 25, and chapter 14, sections 2 and 3). According to the preparatory works to the Bankruptcy Act (see Government Bill 1986/87:90, pp. 206-207), the creditor who filed the petition for bankruptcy should not be liable for the bankruptcy costs, as it may be difficult for the creditor to make an assessment as to the debtor’s insolvency. Instead, even if a declaration of bankruptcy is later quashed for being factually erroneous, the bankruptcy costs are paid out of the estate. The main reason for this unconditional liability is that the debtor, being aware of the liability, is expected to do the utmost in the District Court in order to avoid being declared bankrupt and, thus, not to wait until the bankruptcy case is pending before a higher court.
33. However, as shown by a decision of the Supreme Court of 6 April 1998 (see Nytt Juridiskt Arkiv 1998, p. 214 et seq.), the State may be held liable to pay the bankruptcy costs when the declaration of bankruptcy is quashed due to a grave procedural error. In that case, the District Court had summoned the debtor to its hearing in an erroneous manner. Following the hearing, at which the debtor did not appear, the debtor was declared bankrupt. After the Supreme Court had quashed the declaration of bankruptcy, the District Court, in determining the receiver’s fee, recalled that the bankruptcy costs were to be paid out of the estate. The Court of Appeal upheld the decision. The Supreme Court, however, found that the State should pay the bankruptcy costs. It considered that the rationale behind the provisions concerning the estate’s liability for bankruptcy costs had no convincing force in that case, as the debtor, on account of the erroneous service of the summons, had been deprived of his right to take part in the proceedings.
34. It follows from chapter 3, section 2 of the Tort Liability Act (Skadeståndslagen, 1972:207) that the State is liable to pay compensation for, inter alia, financial loss caused by a wrongful act or omission in connection with the exercise of public authority.
35. Anyone who wishes to claim compensation from the State for financial loss, which he considers to have been caused by a wrongful decision taken by a court or an administrative State authority, can proceed in two different ways: He or she may either petition the Chancellor of Justice (Justitiekanslern) in accordance with Section 3 of the Ordinance on the Administration of Claims for Damages against the State (Förordningen om handläggning av skadeståndsanspråk mot staten, 1995:1301, or bring a civil action against the State in the ordinary courts. No appeal lies against a decision of the Chancellor of Justice. However, if the claim is rejected, the claimant still has the possibility to institute civil proceedings in the courts.
36. In a judgment of 21 November 1994 (see Nytt Juridiskt Arkiv 1994, p. 654 et seq.), the Supreme Court examined whether the State was liable to pay damages on account of an appellate court’s allegedly incorrect assessment of legal and evidentiary issues in connection with its examination of an application for provisional attachment (kvarstad). The Supreme Court made the following general observation:
“When, as in the present case, legal and evidentiary issues are concerned, it is not sufficient for a liability to damages that a court has made an assessment that may be called into question. Considerations on such issues may vary to such an extent that it is rather rare that one can speak about culpa or, in other words, a wrongful act or omission within the meaning of chapter 3, section 2 of the Tort Liability Act. Only manifestly erroneous assessments can be considered as culpable.”
VIOLATED_ARTICLES: 13
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60896
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF KIENAST v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;No violation of P1-1;No violation of Art. 13
JUDGES: Françoise Tulkens
TEXT: 7. The applicant was born in 1943 and lives in Gross Gerungs (Austria).
8. The applicant is the owner of land in Loipersdorf (Styria), registered under file No. 154 of the Loipersdorf Land Register (Grundbuch). Before 23 September 1992 it comprised, inter alia, parcel No. 772/1 of 4231 square metres marked as garden (Garten) and in the middle of it parcel No. 66/2 of 401 square metres marked as building area (Baufläche). The borders of these parcels were recorded in the land tax register (Grundsteuerkataster).
9. On 28 November 1989 the Mayor of Loipersdorf informed the applicant that a new border register (Grenzkataster) for Loipersdorf was under preparation and that on this occasion some parcels of land had to be united. As the applicant's land was affected by this measure he was invited to give his consent on 7 December 1989 at the Town Hall.
10. On 1 December 1989 the applicant informed the Feldbach Surveyor's Office (Vermessungsamt) that he would not consent to a unification of any of the parcels belonging to him.
11. On 18 September 1992 the Feldbach Surveyor's Office submitted a certificate (Anmeldungsbogen) to the Feldbach District Court, the competent Land Register Court (Grundbuchsgericht), in which it requested that the unification (Grundstücksvereinigung) of the applicant's parcels No. 772/1 and No. 66/2, be entered in the land register.
12. On 23 September 1992 the District Court amended the land register as requested. It struck out parcel No. 66/2 of the land register and united the respective piece of land with parcel No. 772/1. On 29 October 1992 the applicant appealed against this decision.
13. On 26 January 1993 the Graz Regional Court rejected the applicant's appeal. The Regional Court found that the Surveyor's Office had issued the certificate of 18 September 1992 under Section 52 § 3 of the Surveying Act (Vermessungsgesetz). Under this provision, the consent of the owner of land to a unification of parcels was not necessary. The Surveyor's Office's certificate fulfilled the requirements of Section 12 § 1 of the Surveying Act, namely that the parcels concerned had the same owner and that no different financial burdens were placed on them. The further criterion for a unification of parcels, namely that the unification was advisable for presenting in the map parcels which were put to the same use, could not be examined by the Land Register Courts. In this respect they were bound by the findings of the Surveyor's Office.
14. The applicant lodged a further appeal on points of law (Revisionsrekurs) with the Supreme Court. He submitted that the difference in treatment between owners of land which was registered in the border register and those whose land was registered in the land tax register was unconstitutional. There was no reason why unification of parcels only with regard to land registered in the border register was subject to the consent of its owner. Furthermore, the unification of his parcels violated his right to property in that it was impossible to divide them again and sell separately the former parcels No. 772/1 and No. 66/2 because the latter parcel would not meet the criterion of having a minimum surface necessary for creating a separate parcel.
15. On 29 June 1993 the Supreme Court dismissed the applicant's further appeal on points of law. This decision was served on the applicant on 5 August 1993. The Supreme Court found that the Land Register Courts had to amend the land register following a certificate of the Surveyor's Office if the land register did not disclose any elements which spoke against that measure. A certificate of a Surveyor's Office was therefore not a request to be examined by the courts but a formal statement about its official acts (Amtshandlungen). In this respect the Land Register Courts were bound by the certificate of the Surveyor's Offices. Changes made by the Surveyor's Office must lead to corresponding entries in the land register.
16. The Supreme Court also found that the difference in treatment between owners of land registered in the border register on the one hand and the land tax register on the other hand as regards the necessity of the owner's consent to the unification of parcels of land was justified. As the border register relied on technically more advanced methods of surveying than the previous land tax register it was more reliable and merited a higher degree of protection. At present the land tax register had only a transitory function until border registers had been drawn up for all municipalities. The Supreme Court further noted that a later partition of the parcels which had been united might not be possible in view of their size. However, this effect could not constitute an interference with the applicant's right to property because it was in accordance with the intentions of the legislator who wished to avoid the creation of parcels of land which were too small.
17. In the meantime, on 15 October 1992, the applicant had filed an appeal with the Federal Office of Weights, Measures and Surveying (Bundesamt für Eich- und Vermessungswesen) against the Feldbach Surveyor's Office's certificate (Anmeldungsbogen) and requested its annulment.
18. Since the Federal Office did not decide on the appeal, the applicant, on 16 August 1993 filed a request for transfer of jurisdiction to the superior authority (Devolutionsantrag) with the Federal Minister for Economic Affairs (Bundesminister für wirtschaftliche Angelegenheiten). On 13 January 1994 the Minister rejected the applicant's request as he found that the six months' time-limit within which a decision has to be taken had not yet expired.
19. The applicant also had filed, on 15 October 1992, a request for a declaratory decision with the Feldbach Surveyor's Office. He argued that the certificate had been unlawful and requested the declaration that the conditions of Section 12 § 2 of the Surveying Act had not been met since he had not given his consent. The applicant submitted that he had promised his son to give him parcel No. 772/1. Because of the unification of the parcels he could no longer keep this promise. Instead a partition map by a surveyor had to be drawn up which involved considerable expenses. Therefore he had a legal interest in the declaratory decision requested.
20. Since the Surveyor's Office did not decide the applicant, on 22 April 1993, filed a request for transfer of jurisdiction with the Federal Office, requesting it to issue the declaratory decision. Thereupon, on 1 September 1993, the Federal Office granted the applicant's request for transfer of jurisdiction but rejected the applicant's request for a declaratory decision. The applicant filed an appeal with the Federal Minister for Economic Affairs.
21. At an unspecified date the applicant introduced a complaint with the Administrative Court (Verwaltungsgerichtshof) against the Minister's decision of 13 January 1994 and the Minister's inactivity in dealing with his appeal against the Federal Office's decision of 1 September 1993.
22. On 11 August 1994 the Administrative Court decided upon the applicant's complaint. It quashed the Minister's decision of 13 January 1994 as in its view the six months' time-limit had expired. As regards the appeal against the Federal Office's decision of 1 September 1993 it decided in the place of the Minister and dismissed the applicant's appeal as unfounded. In the present case the applicant's consent to the unification of the parcels had not been necessary under Section 52 of the Surveying Act. A request for a declaratory decision could therefore not relate to this element.
23. Meanwhile, on 1 March 1993 the applicant had also lodged a hierarchical complaint (Aufsichtsbeschwerde) against the Feldbach Surveyor's Office with the Federal Minister for Economic Affairs.
24. On 22 July 1993 the Minister reacted to the applicant's hierarchical complaint. He found that a certificate of the Surveyor's Office was an official document (öffentliche Urkunde) and not a decision (Bescheid) so that it could not be attacked by an administrative appeal (Berufung). Furthermore, the unification of the applicant's parcels No. 772/1 and 66/2 had been necessary for technical reasons in order to ensure a clear presentation of the borders of the applicant's land and to avoid an unclear and fragmented presentation of parcels in the border register.
25. The Surveying Act of 1968, Federal Law Gazette No. 306/1968 (Vermessungsgesetz 1968, BGBl. 306/1968) regulates the surveying of land. According to Section 8 of this Act the borders of parcels of land have to be registered in a border register (Grenzkataster). This register is drawn up by the Surveyor's Office. In particular, the Surveyor's Office has to draw up maps for this purpose and to record the topographic marks (Feldpunkte) for identifying the borders. The purpose of the border register is to indicate with binding force the borders of land and to indicate the various types of land, their use and scope as well as features intended to facilitate a clear presentation of the parcel of land. The border register is distinct from the land register, which has the purpose of recording the ownership over land. It will replace the former land tax register, which until its replacement continues to exist (Section 52).
26. Under Section 12 of the Surveying Act unification of parcels of land is subject to the following conditions: the parcels must be situated in the same land register district (Katastralgemeinde) and must be adjacent; they must have the same owner and the same burdens (Belastungen) must encumber the parcels; the unification of the parcels must be in the interest of expediency of the administration and no objections of surveying technique (vermessungstechnische Erwägungen) must speak against it (Section 12 § 1). The Surveyor's Office has to notify the unification upon request of the owner or ex-officio with the owner's consent (Section 12 § 2).
27. With regard to land registered in the land tax register, Section 52 § 2 of the Surveying Act provides that for the preparation of the border register, the Surveyor's Office shall examine the size of parcels of land and the use to which they are put in land register districts or larger areas (Riede). If in the course of such an examination it appears that the unification of parcels of land is advisable for the purpose of depicting in the map parcels which are put to the same use and if the conditions of Section 12 § 1 are met these parcels can be united. In such a case the consent of the owner is not required (Section 52 § 3).
28. As regards parcels of land included in the land tax register, all single plots of land which belong to the same owner but are put to different use constitute different parcels. Newly created parcels of land included in the border register on the other hand are, as a rule, those parts of land belonging to a land register district which differ from the adjacent parts (only) in so far as they do not have the same owner and/or incumbrances. Parcels in the border register consist of one or several use zones (Benützungsabschnitte) according to the different use to which they are put. Which use zones belong to one parcel can be seen from the cadastral map (Katastralmappe) and the register of parcels (Grundstücksverzeichnis).
NON_VIOLATED_ARTICLES: 13
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58810
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF GUISSET v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 on account of the lack of a hearing in public;Violation of Art. 6-1 on account of the length of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: B. Pacteau;Wilhelmina Thomassen
TEXT: 11. The applicant was the French ambassador to the United Arab Emirates from December 1977 to March 1982.
12. On an audit of the accounts and the administration of the French Secular Mission and the International Academic and Cultural Foundation for the years 1976 to 1983, the Audit Court discovered various irregularities relating to the building of a school in Abu Dhabi.
13. The French school in Abu Dhabi, which was run by a school parents' association that owned the buildings, was opened in 1974 and occupied land belonging to the French State.
14. In March 1981 the local authorities requested that the land be returned to the municipality of Abu Dhabi on 30 June 1981 in exchange for another plot of land situated in the embassies' district in the outskirts. The exchange was approved by the relevant interministerial commission.
15. New buildings were built on the land in time for the start of the 1981/82 school year. The school, now the Louis-Massignon Upper Secondary School, was the first phase of a larger development known as the “Franco-Arabic Sheikh Khalifa Cultural Centre”, which also includes arts and leisure centres.
16. The development was financed by two loans of fifteen million dirhams (approximately seventeen million French francs (FRF)) each, taken out in June 1980 and May 1981 for terms of ten and twenty years respectively at an interest rate of 4% (subsequently reduced to 2%) from the government of the Emirate of Abu Dhabi.
17. The loans, which were binding on the State, were signed by the applicant in his capacity as ambassador and in the name of the French embassy. However, in contravention of the Rules governing State Income and Expenditure, the applicant failed to request authority to sign the agreements, thereby committing an offence under Article L. 313-1 of the Financial Judicature Code, which makes misconduct of the financial affairs of the State or of certain authorities a criminal offence and establishes the Disciplinary Offences (Budget and Finance) Court.
18. By a decision of 15 February 1984, the Audit Court, following an “audit of the accounts and the administration of the French Secular Mission and the International Academic and Cultural Foundation for the 1976 to 1983 financial years”, committed the applicant to stand trial before the Disciplinary Offences (Budget and Finance) Court. That decision, which the applicant was not informed of, was lodged with the registry of the Disciplinary Offences (Budget and Finance) Court on 9 August 1984.
19. After 3 July 1986, when the decree terminating his term as ambassador to Bolivia (the post to which he had been assigned after the United Arab Emirates) was issued, the applicant was given no further posting or promotion but continued to receive his basic salary without compensation.
20. On 11 February 1987 Principal State Counsel at the Audit Court, in his capacity as public prosecutor at the Disciplinary Offences (Budget and Finance) Court, applied for an investigation to be started and for the appointment of a judge rapporteur, who was designated by the President on 9 March 1987. The applicant, who had been informed on 10 June 1987 that an investigation was under way and of his right to instruct counsel, was heard by the judge rapporteur on 25 June and 3 July 1987. On 13 April and 4 November 1988 respectively, the opinions of the Minister for Foreign Affairs and the Minister for the Budget were received.
21. By a decision of 15 November 1988, Principal State Counsel made an order committing the applicant for trial before the Disciplinary Offences (Budget and Finance) Court.
22. On 7 February 1989 the applicant was informed by the President of the Disciplinary Offences (Budget and Finance) Court that he could inspect the case file at the secretariat of that court.
23. On 24 March 1989 the applicant lodged a memorial in defence with the registry of the Disciplinary Offences (Budget and Finance) Court.
24. On 11 April 1989 the applicant lodged a complaint against a person or persons unknown with the public prosecutor's office at the Paris tribunal de grande instance concerning withdrawals of funds from the Franco-United Arab Emirates Cultural Association after his departure from Abu Dhabi.
25. On 13 April 1989 he made an application to the Disciplinary Offences (Budget and Finance) Court for the proceedings against him to be stayed until the final determination of the aforementioned complaint and sought additional information in order to obtain communication from the Ministry of Foreign Affairs of information and supplemental documentation, and from the Audit Court of the reports lodged when his committal for trial was ordered.
26. In a judgment of 17 April 1989, which was served on the applicant on 3 October 1989, the Disciplinary Offences (Budget and Finance) Court dismissed his application on the ground that “... the documents in the investigation file [were] sufficient to enable the Court to reach its decision without there being any need for other evidence or to await the outcome of the aforementioned complaint”. It imposed a fine of FRF 2,000 on the applicant for contravening the Rules governing State Income and Expenditure.
27. On 4 December 1989 the applicant appealed on points of law to the Conseil d'Etat and on 4 April 1990 he lodged written submissions.
28. The appeal on points of law was declared admissible by the Conseil d'Etat on 25 January 1991 and communicated on 14 February 1991 to the Minister for the Budget and on 18 April to the Minister for Foreign Affairs. The former lodged submissions in defence on 11 April 1991 and the latter on 3 September 1991.
29. On 22 July 1991 the case file was communicated to the applicant's lawyer to enable him to lodge submissions in reply.
30. By a judgment of 29 December 1993, the Conseil d'Etat reversed the judgment of 17 April 1989 of the Disciplinary Offences (Budget and Finance) Court, holding:
“[The applicant] had maintained before the Disciplinary Offences (Budget and Finance) Court that the committal order of 15 February 1984 by which the Second Regional Audit Board decided to refer the case to the Disciplinary Offences (Budget and Finance) Court pursuant to section 16 of the Law of 25 September 1948, as amended, was defective. The objection raised by [the applicant] before the Disciplinary Offences (Budget and Finance) Court must be regarded as a submission that the proceedings brought against [him] were inadmissible ... Since it failed to rule on that preliminary objection, the decision of the Disciplinary Offences (Budget and Finance) Court was invalid for want of sufficient reasoning. [The applicant's] request to have that decision set aside is accordingly founded...”
31. The case was remitted to the Disciplinary Offences (Budget and Finance) Court and registered with that court on 24 January 1994.
32. In a letter dated 4 January 1995, the President of the Disciplinary Offences (Budget and Finance) Court informed the applicant that he could inspect the case file at the secretariat of the court. However, that letter was returned marked “does not live at the stated address”. A further letter was sent to the applicant on 23 January 1995.
33. On 20 March 1995 the applicant lodged his submissions with the Disciplinary Offences (Budget and Finance) Court. He appeared before that court on 12 April 1995.
34. After the hearing, which began with representations from the judge rapporteur, followed by legal submissions by Principal State Counsel, explanations from the applicant assisted by his lawyer, applications from Principal State Counsel and lastly oral submissions by counsel for the applicant, the final speech being by the applicant and his counsel, the Disciplinary Offences (Budget and Finance) Court delivered judgment on 12 April 1995. The judgment was served on 28 December 1995. With regard to the defence based on an alleged violation of Article 6 § 1 of the European Convention on Human Rights, it concluded:
“The defence refers to the aforementioned Convention, and in particular to Article 6 § 1 of that Convention, inasmuch as the court is allegedly called upon to determine civil rights and obligations or a criminal charge. Under that provision, it is said that [the applicant] is entitled to a public hearing within a reasonable time. He claims that the proceedings in the present case have exceeded a reasonable time, since more than ten years elapsed between the registration of the committal order by the public prosecutor's office at the court on 9 August 1985 and the letter of 21 March 1995 from Principal State Counsel summoning [the applicant] to appear on 12 April 1995. Accordingly, it is claimed that by reason of the unreasonable length of the proceedings, the offence is time-barred and the proceedings null and void, both under the ... Convention referred to above and section 30 of the Law of 25 September 1948, as amended.
The fines imposed pursuant to the Law of 25 September 1948 by the Disciplinary Offences (Budget and Finance) Court did not relate to the determination of civil rights and obligations or of a criminal charge. They are thus outside the scope of the provisions of paragraph 1 of Article 6 of the Convention ... The applicant is therefore unable to rely on those provisions of the Convention in support of the contention that the proceedings were defective because the impugned decision was not taken after a public hearing. Consequently, the Court must apply the final paragraph of section 23 of the Law of 25 September 1948, as amended, [L. 314-15], which provides that hearings before the court are not held in public.
For the purposes of the five-year limitation period instituted by section 30 of the Law of 25 September 1948, as amended, time ran from the date of the act rendering the perpetrator liable to the application of the penalties laid down by the Law – that is to say, 21 June 1980 – until the case was brought before the Court, in the instant case by committal from the Audit Court on 9 August 1984. Thus, the prosecution of the offence ... is not time-barred ...”
35. Then, after going through the evidence against the applicant, the Disciplinary Offences (Budget and Finance) Court found that he had infringed the Rules governing State Income and Expenditure and was liable to the penalties laid down by the statute. In that connection, it found that:
“[The applicant] executed two loan agreements in turn in his capacity as French ambassador without receiving prior instructions to do so from the Ministry of Foreign Affairs. Indeed, that ministry was not competent to give such instructions, as, under the terms of the Ordinance of 2 January 1959 governing the Finance Acts, only the Minister of Finance was empowered to enter into borrowing agreements under the general authorities given each year by the Finance Acts. However, by acting within his apparent authority and by contracting an obligation, the ambassador exposed the French State to the risk that it would have to bear any harmful consequences.
...
However, the Court finds that [the applicant] was confronted as a matter of urgency with a situation brought about by the wishes of the municipality and the Emirate of Abu Dhabi to recover possession of the land occupied by the French school. Moreover, it was recognised that the school did not have sufficient teaching capacity. The initiative taken by the [applicant] meant that the school was able to reopen in satisfactory conditions at the start of the school year in September 1981, as was deemed imperative. The central administrative department of the Ministry of Foreign Affairs was slow to react to correspondence and the various departments failed to act in a coordinated manner. Throughout the period in which the financial arrangements were being put into place [the applicant] received encouragement from the minister and from the minister's private office.”
36. The Disciplinary Offences (Budget and Finance) Court found that those circumstances, taken as a whole, entitled the applicant to be exonerated from the imposition of a fine and he was acquitted of the charge.
37. As a result of the acquittal, no appeal lay against that decision of the Disciplinary Offences (Budget and Finance) Court to the Conseil d'Etat.
38. However, the applicant received no offers of postings. In February 1997 he went into compulsory retirement with the same grade and step as he had achieved in 1978.
39. The principle of the separation of the powers of authorising officers and accountants is one of the fundamental and characteristic tenets of the French law of public accounting.
40. Any budgetary operation by a public body requires action by two agents acting in turn: the authorising officer, who has authority to deal with income and expenditure, and the accountant, who is responsible for debt recovery and payments.
41. Law no. 48-1484 of 25 September 1948 established a specialised court, the Disciplinary Offences (Budget and Finance) Court, which, though independent of the Audit Court, is closely affiliated to it. The court was established to hear cases against public authorising officers, who had previously been liable only to disciplinary penalties in their capacity as civil servants, or to criminal penalties.
42. The provisions of that statute, which has undergone a number of amendments, were consolidated by Law no. 95-851 of 24 July 1995, which now constitutes the legislative section of Book III of the Financial Judicature Code concerning institutions associated with the Audit Court. Part I of Book III concerns the Disciplinary Offences (Budget and Finance) Court.
43. The relevant provisions read as follows:
“The court shall be composed of the following:
The President of the Audit Court, as president.
The President of the Finance Division of the Conseil d'Etat, as vice-president.
Two members of the Conseil d'Etat.
Two senior members of the Audit Court.
...”
“The members of the Conseil d'Etat and the senior members of the Audit Court are appointed to the court by decree issued by the Cabinet for a term of five years. ...”
“The functions of public prosecutor at the court shall be performed by Principal State Counsel at the Audit Court, assisted by an advocate-general and, if necessary, one or two law officers chosen from among the judges sitting in the Audit Court.”
“Cases shall be investigated by judge rapporteurs chosen from among the members of the Conseil d'Etat and the Audit Court.”
44. The relevant provisions are as follows:
“The [Disciplinary Offences (Budget and Finance)] Court shall have jurisdiction to try:
...
(b) any public servant or civil or military agent of the State, any agent of any territorial authority or their public institutions and of the associations of territorial authorities;
(c) any representative, administrator or agents of other bodies which are subject to scrutiny by the Audit Court or a regional audit board.
...”
45. The offences and corresponding penalties are set out in Articles L. 313-1 to L. 313-14 (sections 2 to 9 of the 1948 Act). The relevant provisions in the instant case are Articles L. 313-1, L. 313-4 and L. 313-6, which provide:
“Any person referred to in Article L. 312-1 who shall have incurred expenditure without complying with the financial audit rules applicable governing expenditure shall be liable to a fine of not less than FRF 1,000 and not more than the amount of the gross annual emoluments or salary which they were receiving when the offence was committed.”
“Any person referred to in Article L. 312-1 who, other than in the circumstances referred to in the preceding Articles, shall have infringed the rules governing the income and expenditure of the State or of the authorities, institutions and bodies mentioned in that Article or the administration of assets belonging to the State, those authorities, institutions or bodies or who, being a person responsible for the administration of any such authority, institution or body, shall have given approval for the impugned decisions, shall be liable to a fine of the amount set out in Article L. 313-1.
...”
“Any person referred to in Article L. 312-1 who in the course of their duties or in the exercise of their powers shall, in breach of their obligations, have procured for another an unjustified pecuniary advantage or an advantage in kind entailing a loss for the Treasury, or the authority or body concerned, or who shall have attempted to procure such an advantage, shall be liable to a fine of not less than FRF 2,000 and not more than twice the amount of the gross annual emoluments or salary which they were receiving at the date of the offence.”
46. Standing to commence proceedings: Article L. 314-1 (section 16 of the 1948 Act) designates the people with standing to institute proceedings before the court. These are, firstly, the speakers of the two legislative assemblies and the ministers; secondly, and inter alia, the Audit Court and Principal State Counsel at the Audit Court, in his capacity as public prosecutor at the Disciplinary Offences (Budget and Finance) Court. In practice, most proceedings are brought by the Audit Court. By virtue of Article L. 314-2, proceedings may not be brought more than five years from the day the act punishable under this part of the Code was committed.
47. Formal request: Proceedings before the court are instituted through the intermediary of Principal State Counsel. Pursuant to Article L. 314-3 (section 17 of the 1948 Act) Principal State Counsel may decide to take no further action. If the case is to proceed, Principal State Counsel forwards the case file to the President of the court under cover of an “official” request.
48. Investigation: On receipt of the official request the president appoints one of the court's judge rapporteurs to investigate the case. The persons concerned are informed that the investigation is under way “by the public prosecutor's office”. Article L. 314-4 (section 18 of the 1948 Act) vests full powers in the judge rapporteurs to make inquiries of the bodies concerned. They are entitled to use public servants to carry out the inquiries. They may hear witnesses in the presence of a registrar and a record of the evidence is kept. Suspects are entitled to the assistance of a lawyer. The judge rapporteurs have a full discretion on how to conduct the investigation, their only obligation being to keep Principal State Counsel informed.
49. Opinion of the ministers: When the investigation has been completed, the “case file is forwarded to Principal State Counsel” who may, pursuant to Article L. 314-4 (section 18 of the 1948 Act) decide to take no further action. Should Principal State Counsel decide to proceed, the case file is referred to the Finance Minister and to the minister from the ministry whose finances are concerned. They have a period fixed by the President, but of not less than one month, in which to lodge their opinions. Once that period has expired, the proceedings may continue.
50. Committal order: On receipt of the ministerial replies or on the expiry of the time allowed, the case file is forwarded to Principal State Counsel who has fifteen days in which to decide to take no further action or to order the defendant's committal for trial by the Disciplinary Offences (Budget and Finance) Court.
51. Opinion of the joint committees: Article L. 314-8 (section 22 of the 1948 Act) provides that, if the defendant is committed for trial by the Disciplinary Offences (Budget and Finance) Court, “the case file shall be communicated to the relevant administrative joint committee sitting in its disciplinary formation or the substitute formation if one exists”. The joint committee has one month in which to deliver its opinion. If no opinion is received, “the court may decide the case”.
52. The hearing: Article L. 314-8 (section 22 of the 1948 Act) provides that, once the joint committee has been consulted, the defendant is informed that he or she may inspect the case file within fifteen days. He or she may lodge submissions within one month after the communication of the case file.
53. The trial takes place at the end of that procedure. The list of cases for hearing is “prepared by the public prosecutor and decided by the President”. Article L. 314-13 (section 23 of the 1948 Act) lays down that “the court cannot validly deliberate unless at least four of its members are present”. Article L. 314-12 provides that “the judge rapporteur has a consultative vote in the cases in which he or she reports”. The judge rapporteur is therefore present at the trial and “presents a summary of his or her written report”. He or she also takes part in the deliberations.
54. Rights of the defence: The defendant takes no part in the proceedings until they have been transferred to the Disciplinary Offences (Budget and Finance) Court. During the investigation, the Act provides that the defendant shall be informed of the charges and of his or her right to a lawyer and, lastly, shall be given an opportunity, once the case file has been communicated, to lodge defence submissions. At the hearing, the defendant is entitled to call witnesses and to be represented by a lawyer. The defendant or his or her representative have the final speech, in accordance with the law.
55. Article L. 314-15 (section 23 of the 1948 Act) provides that hearings shall not be public.
56. Article L. 314-20 provides:
“Once final, judgments in which the court delivers a guilty verdict may, if the court so decides, be published in whole or in part in the Official Gazette of the French Republic.”
57. In a judgment delivered on 30 October 1998 (in the case of Lorenzi) the Conseil d'Etat held:
“... When trying a case concerning acts for which the fines laid down by the aforementioned Law of 25 September 1948 may be imposed, the Disciplinary Offences (Budget and Finance) Court must be considered as determining 'criminal charges' within the meaning of the aforementioned provisions of the ... Convention for the Protection of Human Rights and Fundamental Freedoms and must accordingly hold a public hearing, the aforementioned provisions of the Financial Judicature Code or of section 23 of the Law of 25 September 1948 being no obstacle thereto.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76942
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MEHMET GÜNEŞ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
TEXT: 4. The applicant was born in 1951 and lives in Turkey.
5. On 16 July 1993 the applicant was taken into police custody by police officers from the anti-terrorist branch of the Istanbul Security Directorate on suspicion of membership in an illegal organisation, the TDP (Revolutionary Party of Turkey) and of possessing a false identity card. He was held in police custody until 30 July 1993.
6. On 30 July 1993 he was brought before a judge who ordered his detention on remand. He asserted that he had not signed any statement and claimed that he had been subjected to ill-treatment while in police custody.
7. On 15 September 1993 the Chief Public Prosecutor at the Istanbul State Security Court filed a bill of indictment with the latter charging the applicant under Article 168 § 1 of the Criminal Code with membership of an illegal organisation.
8. On 25 January 2000 the applicant was released from detention.
9. Between 16 July 1993 and 25 January 2000 the Istanbul State Security Court held thirty-six hearings. The applicant requested to be released pending trial several times before the trial court. The Istanbul State Security Court dismissed his request on all occasions, having regard to the state of the evidence, until 25 January 2000.
10. On 26 March 1996 the Istanbul State Security Court requested the Forensic Medical Institute to carry out an analysis as to whether the documents, which were submitted as written evidence, were drafted by the applicant and another co-accused, namely M.A.A..
11. Until 17 February 2004 the trial court postponed the hearings in order to wait for the Forensic Medical Institute’s report on the issue and to be informed about the prison that M.A.A had been detained.
12. On 17 February 2004 the Istanbul State Security Court ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time-limit under Articles 102 and 104 of the Criminal Code had expired.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1