ITEMID: 001-22137
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: PETERSEN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lucius Caflisch
TEXT: The applicant, Werner Petersen, is a German national, who was born in 1947 and lives in Neustadt. He was represented before the Court by Mr Rixe, a lawyer practising in Bielefeld. The respondent Government were represented by their Agents, Mrs H. Voelskow-Thies, Ministerialdirigentin, of the Federal Ministry of Justice, at the initial stage of the proceedings, and subsequently by Mr K. Stoltenberg, Ministerialdirigent, also of the Federal Ministry of Justice.
Further applications concerning his right of access to his son and related matters are pending before the Court (No. 38282/97 and No. 68891/01).
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the father of the child Sinja Johannes, born out of wedlock in Helmstedt on 3 May 1985. The applicant had been living with Ms S. B., the child’s mother, since May 1980. They agreed that the child should bear his mother’s surname, i.e. B. After their separation in November 1985, the applicant continued to pay maintenance and he had regular contacts with the child until autumn 1993.
In August 1993 Ms S. B. married Mr K., who was the father of her daughter, born out of wedlock in 1990 and bearing the surname K. They chose the husband’s surname name as their family name and she availed herself of the right to put her surname in front of that.
In November 1993 the applicant asked the Youth Office of the Bremen Municipality whether Ms B.-K. had applied for a change of Sinja’s surname. By letter of 20 December 1993 he was informed that she had inquired into this possibility, however, no request had been filed yet. In his letter, the competent administrator, acting for the Youth Office as guardian, added that, should such a request be lodged, he would agree as the stepfather had already been living together with Ms. B.-K. and the child for more than one year and the child fully accepted him.
On 30 December 1993 Ms B.-K. and Mr K. had statements recorded at the Bremen Registry Office according to which they gave their family name to Sinja Johannes. They also filed a document issued by the Bremen Youth Office on 29 December 1993 according to which, on behalf of the child, it agreed to the change of surname. The Bremen Registry Office informed the Helmstedt Registry Office accordingly and the registrar at Helmstedt Registry Office thereupon added the change of the child’s surname to the record of his birth.
Following correspondence with the Bremen Youth Office, the applicant filed an action with the Bremen Administrative Court against the Bremen Municipality, complaining that the Youth Office had failed to hear him on the question of the envisaged change of his son’s surname.
On 19 May 1994 the Bremen Administrative Court ruled that it was incompetent to entertain the applicant’s action and transferred the case to the Braunschweig District Court.
On 21 October 1994 the Braunschweig District Court dismissed the applicant’s claim for rectification of the record of his son’s birth as far as the entry of the change of surname was concerned. The court found that this entry was correct as the child’s surname had been changed in accordance with section 1618 of the Civil Code and the relevant procedural rules. The Court further considered that section 1618 of the Civil Code did not amount to discrimination and was not in breach of Article 8 of the Convention. The Court observed that the legislator was called upon the ensure that children born out of wedlock had the same opportunities for their physical and spiritual development and their place in society as were enjoyed by children born in wedlock. The legislator had meanwhile enacted legislation to this effect. Even assuming that further measures were necessary, on the whole, section 1618 of the Civil Code did not affect the equality between children born out of wedlock and children born in wedlock. Rather, in providing for the possibility of having the same surname, section 1618 secured that the child’s status as a child born out of wedlock was not disclosed to the public.
Moreover, as far as procedural matters were concerned, the proceedings for a change of surname in which the natural father did not participate could not be objected to from a constitutional point of view. In particular there was no breach of the applicant’s rights as a natural parent as his child had never borne the father’s surname. The change of surname served the interests of the child. In any event, a mere right of the natural father to be heard in the proceedings, as argued by the applicant, without a possibility to prevent the change of surname would not be effective because the mother and the step-father would eventually decide.
On 4 January 1995 the Braunschweig Regional Court dismissed the applicant’s appeal. The Regional Court endorsed the reasoning of the District Court and stated in particular that there were no indications that the legal provisions applied in the present case were unconstitutional. The Court further confirmed that the change of surname served the interest of the child’s well-being which prevailed over the interests of the natural father.
On 10 March 1995 the Braunschweig Court of Appeal dismissed the applicant’s further appeal. Referring to case-law of the Federal Constitutional Court, it considered that section 1618 of the Civil Court could not be objected to from a constitutional point of view. The applicant could not derive from his rights as a natural father a right to be heard in the proceedings for the change of his child’s surname, because his rights conflicted with the rights of the mother and in particular of the child whom this provision intended to protect. The child’s interests are safeguarded in that the Youth Office participates in the proceedings. If the child’s mother, her husband and the guardian agree upon the change of the child’s surname, this change is generally in the interest of the child’s well-being.
In January 1994, following problems in having access to his son, the applicant applied to the Bremen District Court for a decision granting him a right of access to Sinja Johannes. In April 1994 the District Court granted him provisionally access. Subsequently, the child’s mother no longer fully complied with the decision and prohibited visits as from October 1994.
On 3 January 1995 the applicant instituted proceedings with the Bremen District Court against Ms B.-K. claiming a sum amounting to 370.80 German marks (DEM) as compensation for damages suffered by him, namely costs for travelling, due to her refusal of access to his son on 16 October and 13 November 1994.
On 5 April 1995 the Bremen District Court, following an oral hearing on 22 March 1995, dismissed the applicant’s action. The court found that there was no legal basis to claim compensation for an alleged refusal of access to his son. In this respect, the court noted that, pursuant to section 1711 of the Civil Code, the person having custody and care of a child born out of wedlock determines contact arrangements with the father, and that the father can only claim personal contacts if they are in the child’s interests. The court also observed that its decision of August 1994 on provisional visiting arrangements was formulated as granting the child a right to visit the applicant, not as a right of access awarded to the applicant.
On 17 August 1995 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaints against the decisions taken in the above proceedings concerning the change of his son’s surname and the refusal of his compensation claim, respectively. The Constitutional Court found that the conditions for admitting these complaints for a decision on their merits were not met.
The Constitutional Court considered in particular that the applicant’s complaint about the change of his son’s surname did not raise any questions of fundamental importance. Referring to its decision of 7 March 1995, the Constitutional Court recalled that fathers of children born out of wedlock enjoyed the right to the care and upbringing of the children under the Basic Law (Grundgesetz) even if they were not living with the child’s mother and were not educating the child together with her. However, the legislator was called upon to enact rules in case of conflict between the parents. In the present case, there was no indication that the courts, in interpreting and applying section 1618 of the Civil Code, had disregarded the applicant’s right as a parent.
As regards the District Court’s decision of 5 April 1995, the Constitutional Court considered that there were no indications that the applicant’s constitutional right as a parent to have access to his child had to be safeguarded by means of an action in tort.
The decision was served on 22 August 1995.
The statutory provisions on family matters are to be found in the German Civil Code. They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette 1997, p. 2942), which came into force on 1 July 1998.
Pursuant to section 1617 of the Civil Code, a child born out of wedlock was given the surname which the mother was bearing at the time of the child’s birth. A change of the mother’s surname on account of her marriage did not affect the child’s surname.
Section 1618 of the Civil Code provided that the mother of a child born out of wedlock and her husband could declare for the record of a registrar that the child, who was bearing a surname in accordance with section 1617 and was not married, should in future bear their family name; and the father of the child could declare for the record of a registrar that the child should in future bear his surname. The child had agree to the change of surname, and, in case that the father declared that the child should bear his surname, the mother also had to agree. A minor child was represented in these matters by the competent Youth Office acting as guardian pursuant to sections 1706, 1709 of the Civil Code.
As regards children born in wedlock, section 1616 of the Civil Code provided that they were given their parents’ common family name or, if they have not chosen a family name, the mother’s or the father’s surname, as chosen by them. In the absence of a determination by them, the competent court transferred the right to choose the surname to one of the parents whose surname would be the child’s surname in the absence of a decision within one month. According to section 1616a § 2, a change of the surname of one of the parents on account of marriage did not affect the child’s surname.
A change of surnames of children born in wedlock following divorce and remarriage of the parent having the right to custody was governed by the general rules on the change of surnames under the Change of Surnames Act (Namensänderungsgesetz). According to section 3 § 1, a surname may only be changed if there is an important reason to justify such a change. The relevant circumstances are to be established ex officio, and all persons directly affected by the envisaged change (unmittelbar Beteiligte) as well as the local police office and other persons possibly affected by the envisaged change of the surname shall be heard (section 3 § 2).
The relevant provisions of the Civil Code, as amended, distinguish between three situations. Children are given the common family name of their parents (section 1616). If there is no common family name and custody is exercised jointly, both parents determine the child’s surname (section 1617 with special rules in the absence of such common determination). If there is no common family name and one parent has the sole custody, the child is given that parent’s surname (section 1617a § 1) or, upon the request of the parent exercising custody and in agreement with the other parent, the child can be given the other parent’s surname (section 1617a § 2).
Section 1618 provides in particular that a parent, who has the sole custody for an unmarried child, and this parent’s spouse who is not a parent of the child, can declare for the record of a registrar that the child shall in future bear their family name. If the child has borne the other parent’s surname, that other parent has to agree to the change; the agreement can be replaced by a court decision if necessary in the interest of the child.
Before the entry into force of the amended Law on Family Matters, the relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows (the Court’s translation):
Section 1705
“Custody over a minor child born out of wedlock is exercised by the child’s mother...”
Section 1711
“1. The person having custody of the child shall determine the father’s right of access to the child. Section 1634 § 1, second sentence, applies by analogy.
2. If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Section 1634 § 2 applies by analogy. The guardianship court can change its decision at any time.
3. The right to request information about the child’s personal circumstances is set out in section 1634 § 3.
4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.”
Section 1626 § 1 reads as follows (the Court’s translation):
“The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. The parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.”
Pursuant to section 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Section 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office authority or an association.
Proceedings in family matters are governed by the Act on NonContentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit).
According to section 12 of that Act, the court shall, ex officio, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate.
Persons with a legitimate interest in a case may apply to the court for leave to inspect and obtain copies of documents or evidence in any particular case (section 34 § 1).


ITEMID: 001-61105
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF SKALKA v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award
JUDGES: Georg Ress;Mark Villiger
TEXT: 9. The applicant was born in 1941. He is currently serving a prison sentence.
10. On 16 December 1993 the Nowy Targ District Court convicted the applicant of aggravated theft and sentenced him to imprisonment. While in prison, on unspecified dates the applicant wrote a letter to the Penitentiary Division of the Katowice Regional Court and he received a reply. Dissatisfied with that reply, on 15 November 1994 the applicant sent a letter to the President of the Katowice Regional Court, complaining about the judge who had replied to his letter. The relevant passages of the applicant's letter read:
“(...) It cannot be excluded that further acts of that kind on the part of the Penitentiary Division of the Regional Court would make me complain to the judicial supervision about the irresponsible clowns placed in that Division.
I will start by saying that any little cretin, whether he wears a gown or not, should vent his need to intimidate others by making allusions to legal responsibility [for their acts] on his mistress, if he has one, or on his dog, but not on me. I am not going to be afraid of any such clown who wants to intimidate me, but the truth is that my request of 18 August 1994 was addressed to the court, not to some fool.
I expect that the President of the Katowice Regional Court will somehow convey my request to that bully and that he will, at the same time, read his reply to me (...)
Not only does [the judge] write rubbish about my alleged request for a pardon, which my request was absolutely not, but he also intimidates me. If he is such a brilliant lawyer that he is able to reply to questions that were not asked – and his legal skills can be seen if the content of my letter is compared with his reply – he should find a relevant legal provision to use against me. It would not change the fact that such a limited individual, such a cretin should not take the post of a reliable lawyer who would know how to reply to a letter. A cretin he will remain and I see no reason to be afraid of any legal consequences. “You know, you understand, shut up” – that is all the education he has, as a fool does not need any better.”
11. Subsequently, on an unspecified date, the Sosnowiec District Prosecutor instituted criminal proceedings against the applicant. On 31 January 1994 the prosecuting authorities lodged a bill of indictment against the applicant with the Sosnowiec District Court. He was charged with proffering insults against a State authority at its headquarters or in public, an offence punishable under Article 237 of the Criminal Code 1969, committed by sending a letter to the President of the Katowice Regional Court. In this letter the applicant had insulted an unidentified judge of that court's Penitentiary Division and all judges of that court. The applicant had been questioned in connection with the offence. He had stated that he had not meant the court as a whole, but only one judge, and this in his personal, not professional, capacity. He maintained that the letter could only be regarded as an insult against a private person, but not a State institution.
12. On 6 September 1995 the Sosnowiec District Court convicted the applicant of insulting a State authority and sentenced him to eight months' imprisonment. The court found that on 15 November 1994 the applicant had sent a letter to the President of the Regional Court in which he referred to all judges of the Regional Court's Penitentiary Division in an insulting and abusive manner as “irresponsible clowns”. Moreover, further on in the same letter, he referred in a particularly insulting manner (“w sposób szczególnie obraźliwy”) to an unidentified judge of the same Division, to whom he had allegedly written certain letters, which remained unanswered.
13. The court had regard to the results of the applicant's examination by psychiatrists who found that he could be held criminally responsible.
14. The court considered that it was beyond any doubt that it was the applicant who had written the impugned letter. The analysis of its content and form led to the conclusion that the applicant had acted with the firm intention of insulting the Regional Court as a judicial authority. He had first addressed himself to the judges of that court as a group, and then focused on one unidentified judge. Accordingly, it had to be understood that the applicant had insulted the court as the State authority, and the unidentified judge could be regarded as a symbol of that court.
The court further observed that the applicant, as a citizen, had a constitutional right to criticise the State authorities. However, the impugned letter had largely exceeded the limits of acceptable criticism and was directly aimed at lowering the court in the public esteem.
The court further observed that the sentence was commensurate with the applicant's degree of guilt and with the seriousness of the offence. The assessment of the latter had been made having regard to the nature and importance of the interests protected by the criminal law provision applied in the case, i.e. by Article 237 of the Criminal Code.
15. The applicant and his officially assigned lawyer lodged appeals against this judgment.
16. On 19 June 1996 the Katowice Court of Appeal, following a request from all of the judges of the Katowice Regional Court to be allowed to step down, considered that, in view of fact that the offence had been directed against the judges of that court, it was in the interest of the good administration of justice and the impartiality of the court that the appeal be transferred to the Bielsko-Biała Regional Court.
17. On 10 September 1996 the Bielsko-Biała Regional Court upheld the contested judgment, having examined both the appeal lodged by the applicant himself and that of his lawyer.
The court first noted that the first-instance court had accurately established the facts of the case. The court went on to state that it shared the conclusions of the first-instance court, namely that the content and form of the letter called for the conclusion that the applicant had acted with the firm intention of insulting the Regional Court as a State authority. The legal assessment of the facts of the case was correct, and the sentence imposed corresponded to the degree of the applicant's guilt. The applicant had a long criminal record, even though he had been assessed positively by the penitentiary services, and could be held criminally responsible. The applicant's lawyer had argued that the applicant had intended to insult a specific person, not an institution. However, in the light of the court's other findings, this analysis was rejected.
18. The applicant's lawyer lodged a cassation appeal with the Supreme Court.
19. On 2 June 1997 the Supreme Court dismissed the appeal and confirmed the contested judgment. The court referred to the grounds of appeal in which it had been argued that the conviction had been in flagrant breach of Article 237 of the Criminal Code in that the applicant's acts, in the light of his submissions as to his motives, did not amount to a punishable criminal offence.
20. The Supreme Court first noted that the grounds of the applicant's cassation appeal had been laconic and limited in their reasoning. Moreover, it clearly transpired therefrom that in fact the applicant's lawyer contested the assessment of evidence and the factual findings made by the lower courts, whereas the purpose of the cassation appeal was only to bring procedural complaints to the attention of the Supreme Court. This in itself constituted a sufficient basis for dismissing the appeal as not being in compliance with the requirements laid down by the applicable procedural provisions.
21. However, the court emphasised, it was worth noting that the Regional Court in its judgment had examined all complaints submitted in the appeal against the first-instance judgment, including those concerning the assessment of evidence and the factual findings of the first-instance court. No new arguments had been submitted to the Supreme Court to show that there had been any procedural shortcomings in the proceedings. Certainly the argument that the applicant's acts could not be regarded as a criminal offence could not be regarded as such a procedural complaint.
22. The Supreme Court went on to state that the applicant's abusive letter, referred to and quoted by the Regional Court, had clearly exceeded the limits of acceptable criticism. Even if it were acknowledged that in the second part of the letter the applicant had focused on one judge, it had to be recognised that at the beginning he had attacked all the judges of the Regional Court. The appellate court correctly had regard thereto. It had also indicated why it considered that the applicant's attitude could be qualified as an offence under Article 237 of the Criminal Code 1969. The Supreme Court therefore dismissed the cassation appeal as unfounded.
23. Article 237 of the Criminal Code 1969, applicable at the relevant time, read as follows:
“Anyone who insults a State authority at the place where it carries out its duties or in public, is liable to up to two years' imprisonment, to a restriction of personal liberty or a fine.”
VIOLATED_ARTICLES: 10


ITEMID: 001-110935
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MLADENOVIĆ v. SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
JUDGES: Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1948 and lives in Belgrade.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 30 July 1991, in the course of a fight between two groups of youths, the applicant’s son (hereinafter “A”), aged 21, was fatally shot by an off-duty police officer (hereinafter “B”), who had apparently attempted to assist his own brother as one of the participants in the said incident.
8. On an unspecified date thereafter the District Public Prosecutor’s Office (Okružno javno tužilaštvo) in Belgrade charged B with murder, as well as a number of other persons for several related crimes.
9. The decision to institute a formal judicial investigation (rešenje o sprovođenju istrage) was adopted on 5 August 1991.
10. On 30 December 1991, however, the charges against B were dropped, and on 13 January 1992 the investigating judge (istražni sudija) of the District Court (Okružni sud) in Belgrade decided to terminate the proceedings against him (obustavi istragu).
11. During the said investigation the defendants had all been heard in person, as had several witnesses, including A’s own brother. The investigating judge had further obtained relevant medical and ballistics reports, as well as other expert testimony. The autopsy report had also been produced.
12. On 4 February 1992 the applicant filed an indictment (optužnica) against B with the District Court, and thus took over the prosecution of the case in the capacity of a “subsidiary prosecutor” (see paragraph 32 below).
13. On 29 January 1996 the District Court acquitted B, stating that he had acted in self-defence.
14. Between 4 February 1992 and 29 January 1996 more than a dozen hearings had been held before the District Court. The applicant and numerous witnesses, as well as medical and ballistics experts, had all been heard, and a re-construction of the events in question had been carried out.
15. On 24 March 1999 the Supreme Court (Vrhovni sud Srbije) quashed the judgment of 29 January 1996 and ordered that the case be re-examined at first instance. In so doing, it described the District Court’s reasoning as incoherent and noted that its establishment of the facts and its assessment of evidence had been fundamentally flawed.
16. On 4 November 2002 the District Court again acquitted B, re-affirming that he had acted in self-defence.
17. On 20 April 2004 the Supreme Court quashed the District Court’s judgment. It noted that the said court’s reasoning had almost exclusively taken into account the evidence in favour of B, having ignored or misrepresented the rest. The District Court was thus ordered to thoroughly review the case and re-assess the evidence. The District Court received the Supreme Court’s decision on 21 September 2004.
18. The next hearing before the District Court was scheduled for September 2006, but was subsequently cancelled by the court itself because it had, apparently, been unable to secure the proper composition of its bench.
19. On 18 December 2006 the District Court adjourned the hearing because of the inability of B’s lawyer to appear in court due to a prior professional commitment.
20. Following an additional adjournment on 27 June 2007, a new hearing was set for 19 September 2007.
21. On 19 September 2007 the District Court again adjourned the hearing, this time because it had been informed that B, still an active police officer, had been sent, as a member of the Serbian contingent, to take part in the United Nations’ mission in Liberia. The decision of the Ministry of Internal Affairs (Ministarstvo unutrašnjih poslova) issued in this respect, on 3 August 2007, stated that B’s posting would last for a period of one year, but that it could be extended. The District Court scheduled the next hearing for 2 November 2007, which was apparently when B was supposed to briefly visit Belgrade.
22. On 4 October 2007, however, the applicant was informed that the next hearing would instead be held “on 3 October 2007”.
23. The applicant thereafter went physically to the District Court’s registry and was told that the upcoming hearing was still scheduled for 2 November 2007.
24. On 2 November 2007 the applicant therefore appeared before the District Court, but was informed by the presiding judge that the hearing had been set for 30 October 2007. The judge ultimately accepted to schedule a new hearing for 14 December 2007.
25. On 23 November 2007, however, the applicant received the District Court’s decision of 30 October 2007, declaring that the proceedings had been terminated due to the applicant’s failure to appear before the court on the latter date.
26. On 26 November 2007 the applicant complained about this decision, and on 6 December 2007 the District Court re-instituted the proceedings in question.
27. Between 20 February 2008 and 4 December 2008 a total of six hearings were adjourned by the District Court, the reasons for this being: (i) B’s failure to appear in court (on three occasions); (ii) the presiding judge’s wish to withdraw from the case in view of the applicant’s complaints against him (once); and (iii) the inability of B’s lawyer to appear in court as a result of a traffic accident (twice).
28. By October 2009 the District Court had held another three and adjourned another two hearings. Specifically, the hearings of 24 April 2009, 29 June 2009 and 9 October 2009 had been held, during which B and a number of witnesses had been re-heard, whilst the hearings of 28 January 2009 and 30 November 2009 had been adjourned due to B’s failure to appear in court and the presiding judge’s absence, respectively.
29. In December 2009 the presiding judge was not re-elected to the bench. The case was therefore assigned to another judge and the proceedings started anew.
30. It would appear that no hearings have been scheduled thereafter.
31. Articles 19 and 20 of the Code of Criminal Procedure (Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02, as well as in the Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09, 72/09 and 76/10) provide, inter alia, that formal criminal proceedings can be instituted at the request of an authorised prosecutor. In respect of crimes subject to prosecution ex officio, including murder, the authorised prosecutor is the public prosecutor personally. The latter’s authority to decide whether to press charges, however, is bound by the principle of legality which requires that he must act whenever there is a reasonable suspicion that a crime subject to prosecution ex officio has been committed.
32. Article 61 provides that should the public prosecutor decide that there is no basis to prosecute, he must inform the victim of this decision, who shall then have the right to take over the prosecution of the case on his own behalf, in the capacity of a “subsidiary prosecutor”.
33. Articles 64 § 2 and 379 provide that in a case where the prosecution has already been taken over by a subsidiary prosecutor, the public prosecutor shall nevertheless have the power, up until the conclusion of the main hearing (do završetka glavnog pretresa), to resume the prosecution of the matter ex officio. It is understood that this refers to the main hearing at first instance, including the main hearing following a possible quashing of a first instance judgment, as well as a potential main hearing on appeal (see Komentar Zakonika o krivičnom postupku, Prof. dr Tihomir Vasiljević and Prof. dr Momčilo Grubač, IDP Justinijan, Belgrade, 2005, p. 136, paragraphs 3 and 4).
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-94850
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF FINKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy;Violation of Article 1 of Protocol No. 1 - Protection of property;No violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1952 and lives in Rostov-on-Don.
5. In 1986 the applicant took part in the cleaning-up operation at the Chernobyl nuclear disaster site. He was subsequently granted Category 2 disability status and became entitled to various social benefits. The subjects of the present case are the disputes concerning these benefits.
6. In 1996 the applicant lodged a complaint before the Proletarskiy District Court of Rostov-on-Don alleging a failure of the authorities to comply with the pension law. On 24 July 1996 the District Court upheld the complaint, noting the authorities' unlawful inactivity.
7. On 18 November 1997 the Proletarskiy District Court upheld the applicant's action against the authorities and awarded him monthly payments of 2,495,023 Russian roubles (RUB) in compensation for health damage and as food allowance. The District Court also awarded him a lump sum of RUB 47,314,000 in outstanding compensation. The judgment was not appealed against and became final. The authorities did not pay the applicant the lump sum, and made the monthly payments only until September 2000.
8. On 15 March 2001 the Presidium of the Rostov Regional Court, by way of supervisory-review proceedings, quashed the judgment of 18 November 1997 and remitted the case for re-examination to the Proletarskiy District Court.
9. The hearings were adjourned on 14 May 2001 and on 7 June 2001 due to the authorities' failure to appear.
10. The next hearing was fixed for 5 July 2001 when it was again postponed as the applicant had amended his claims.
11. On 17 September 2001 the applicant lodged additional claims.
12. On 24 September 2001 the court granted the authorities' request for stay in the proceedings on the grounds that there were pending related proceedings in the Supreme Court of Russia and in the Constitutional Court of Russia. The proceedings in the Constitutional Court had been initiated by the applicant (see para. 60 below). The applicant appealed against the decision to stay the proceedings, to no avail.
13. On 24 October 2002 the case was reopened and assigned for hearing for 21 November 2002.
14. On 21 November 2002 the authorities failed to appear and the proceedings were adjourned.
15. On 10 December 2002 the Proletarskiy District Court accepted the applicant's claims in part. It ordered that the Social Security Services should pay him a lump sum of RUB 37,992.75 in compensation for health damage, monthly payments of RUB 4,850 and a lump sum of RUB 5,000 in compensation for damage caused by a delay in the payment of monthly benefits. The District Court also noted that the amount of monthly payments was to be index-linked in accordance with the law. The judgment was upheld on appeal and became final on 7 May 2003.
16. In 2003 the authorities, as well as the applicant, requested reopening of the proceedings by way of supervisory review.
17. On 13 November 2003 the Presidium of the Rostov Regional Court quashed the judgments of 10 December 2002 and 7 May 2003 and sent the case for a fresh examination. The Presidium held that the lower court had not calculated the sums of compensation and adjustment of monthly payments in accordance with the relevant law provisions, considering it as mistakes in implementation of substantive, as well as procedural, law.
18. On 18 December 2003 the authorities failed to appear in court and the hearing was adjourned.
19. On 23 January 2004 the applicant specified his claim.
20. On 12 February 2004 the case was postponed as the authorities were not properly informed about the hearing.
21. On 26 February 2004 the authorities failed to appear and the hearing was adjourned.
22. On 4 March 2004 the examination of the case was postponed as the judge was considering another case.
23. On 1 April 2004 the case was adjourned because of default in appearance of the applicant.
24. On 22 April 2004 the Proletarskiy District Court dismissed the applicant's action in full. The applicant appealed. However, on 29 April 2004 the District Court adjourned the examination of the appeal because the applicant had only submitted a short version of his appeal statement. On 7 June 2004 the Rostov Regional Court quashed the decision of 29 April 2004 as unlawful.
25. The applicant contested the accuracy of the minutes of the hearing of 22 April 2004. On 29 April 2004 the Proletarskiy District Court dismissed the claim without consideration on the merits. The applicant appealed and on 7 July 2004 the Rostov Regional Court quashed the decision of 29 April 2004 and remitted the matter for fresh consideration. On 2 September 2004 the applicant's claim concerning the minutes was dismissed on the merits.
26. On 13 October 2004 the Rostov Regional Court, acting on appeal, quashed the judgment of 22 April 2004 and remitted the case for a fresh examination.
27. On 16 November 2004 the case was assigned to examination for 30 November 2004. On that date the applicant asked the court to request some documents from the defendant. The hearing was adjourned to 21 December 2004.
28. Upon the applicant's requests the subsequent hearings were adjourned until 16 February 2005.
29. On 16 February 2005 the case was adjourned due to the absence of a prosecutor.
30. On 2 March 2005 the case was not tried again due to the applicant's failure to appear.
31. On 24 March 2005 the District Court partly upheld the applicant's action and awarded him a lump sum of RUB 45,919.02 in outstanding compensation for health damage, monthly payments of RUB 3,857.94 in compensation for health damage and RUB 6,000 in compensation for damage caused by a delay in payment of monthly sums. Thus, as compared with the quashed final judgment of 18 November 1997, the court awarded a lesser lump sum but higher monthly payments.
32. On 7 July 2005 the Rostov Regional Court upheld the judgment on appeal.
33. As to the enforcement of the judgment, the monthly payments were made regularly and the lump sum was transferred to the applicant's account by 30 November 2005.
34. On 15 February 2006 the Proletarskiy District Court of Rostov-on-Don granted the applicant's request and quashed the judgment of 24 March 2005 as upheld on 7 July 2005 due to newly-discovered circumstances.
35. On 28 February 2006 and on 28 March 2006 the applicant unsuccessfully requested suspension of the proceedings as the same claims were considered by another court (see para. 46 below).
36. On 17 April 2006 the Proletarskiy District Court of Rostov-on-Don discontinued the proceedings as the applicant failed to appear before the court and did not request the case to be tried in his absence.
37. In August 2000 the applicant lodged an action against the Federal Treasury complaining that the lump sum awarded under the judgment of 18 November 1997 had never been paid to him. He sought compensation for pecuniary and non-pecuniary damage.
38. On 14 December 2000 the Leninskiy District Court stayed the proceedings because the President of the Rostov Regional Court had lodged an application for a supervisory review of the judgment of 18 November 1997.
39. The decision of 14 December 2000 was quashed on appeal on 6 March 2001 and the proceedings were resumed.
40. On 4 June 2003 the Leninskiy District Court disallowed the applicant's action against the Treasury. That decision was quashed on 9 July 2003 and the action was sent to the District Court for an examination on its merits.
41. On 6 October 2003 the Leninskiy District Court dismissed the applicant's action on the ground that the judgment of 18 November 1997 had been quashed by way of supervisory review on 15 March 2001 and that on 10 December 2002 the applicant had obtained another judgment in his favour. On 12 November 2003 the Rostov Regional Court upheld the judgment of 6 October 2003.
42. In September 1999 the applicant brought proceedings against authorities demanding adjustment of his monthly payments.
43. On 22 May 2000 the Leninskiy District Court of Rostov-on-Don dismissed the applicant's action. The judgment was upheld on appeal and became final on 11 October 2000.
44. On 13 February 2006 the applicant requested the case to be reopened due to newly discovered circumstances.
45. On 30 March 2006 the Leninskiy District Court granted the claim and quashed the judgment of 22 May 2000.
46. After the resumption of the proceedings the applicant amended his claims several times. Eventually he claimed damages for the delays in payments and failures to adjust them, making the claims similar to those considered in another case (see para. 35 above).
47. On 17 January 2007 the Leninskiy District Court granted the applicant's claims in part. It made the relevant adjustments and awarded the applicant compensation for the underpaid sums in the amount of RUB 231,065.39, monthly payments of RUB 7,766.51 and yearly payments of RUB 2,387.32.
48. On 14 May 2007 the Rostov Regional Court upheld the judgment on appeal.
49. The monthly payments were made without delay. As to the lump sum, it was received by the applicant in November 2007.
50. In July 2000 the applicant lodged another action seeking adjustment of his monthly payments to take account of increases of the minimum monthly wage.
51. On 27 October 2000 the Leninskiy District Court upheld the action. That judgment was quashed on appeal on 21 August 2002 and the case was remitted for a fresh examination.
52. On 4 October 2002 the District Court dismissed the claims in full. On 25 December 2002 the Rostov Regional Court upheld the judgment.
53. In September 2000 the authorities, by a unilateral decision, reduced the amount of monthly payments to the applicant. Two months later he lodged an action against the authorities complaining about the reduction and seeking compensation for damage.
54. On 13 December 2000 the Pervomayskiy District Court of Rostovon-Don held that the authorities the applicant sued were not the proper respondent and disallowed the action against them. However, the District Court ordered another authority, the local Social Security Service, to join the proceedings as a respondent party and to resume payments of monthly sums to the applicant in accordance with the judgment of 18 November 1997.
55. On 28 January 2001 the Rostov Regional Court, acting on appeal, upheld the judgment of 13 December 2000 in the part concerning the disallowance but quashed the remaining part of the judgment and sent the matter for a fresh examination.
56. On 15 November 2001, as a result of the re-examination, the District Court dismissed the applicant's claims in full. The applicant did not appeal.
57. The applicant lodged an action before the Pervomayskiy District Court asking for information to be disclosed about local judges who had not been provided with housing premises in accordance with the law. By the final judgment of 19 December 2001 the Rostov Regional Court dismissed the action, noting that the information was confidential.
58. In 2001 the applicant unsuccessfully asked the authorities to provide him with information concerning the representation of their interests in courts. He complained about the refusal to a court.
59. On 19 December 2001 the Rostov Regional Court, in the final instance, dismissed the complaint, noting that the applicant's rights and freedoms had not been infringed by the refusal.
60. On 24 January 2001 the applicant brought proceedings before the Constitutional Court of the Russian Federation claiming unconstitutionality of some of the law provisions concerning payments for disability caused by the Chernobyl nuclear disaster.
61. On 19 June 2002 the Constitutional Court found the provisions constitutional, thus rejecting the applicant's claim. At the same time it noted that by these norms the State took an obligation to make the relevant payments within a specified period of time. It underlined, with the reference to the practice of the European Court of Human Rights, that when an award is made by a final judgment, it should be enforced without delay.
62. The applicant, relying on the decision of 19 June 2002 of the Constitutional Court, asked the Pervomayskiy District Court to review its final judgment of 15 November 2001 due to newly discovered circumstances.
63. On 18 February 2002 the District Court dismissed the request. That decision became final on 7 May 2003 when the Rostov Regional Court upheld it on appeal.
64. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months.
65. The relevant domestic law governing the supervisory review procedure in the material time is summed up in the Court's judgment in the case of Sobelin and Others v. Russia (nos. 30672/03, 30673/03, 30678/03, 30682/03, 30692/03, 30707/03, 30713/03, 30734/03, 30736/03, 30779/03, 32080/03 and 34952/03, §§ 3342, 3 May 2007).
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-61555
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF GELSOMINI SIGERI SRL v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant is the owner of a flat in Milan, which it had let to E.S.
5. In a writ served on the tenant on 24 April 1986, the applicant informed the tenant that it intended to terminate the lease on expiry of the term and summoned her to appear before the Milan Magistrate.
6. By a decision of 12 May 1986, which was made enforceable on 22 May 1986, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 March 1987.
7. On 5 June 1987, the applicant served notice on the tenant requiring her to vacate the premises.
8. On 26 June 1987, the applicant informed the tenant that the order for possession would be enforced by a bailiff on 24 July 1987.
9. Between 24 July 1987 and 9 November 1999, the bailiff made forty attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
10. On 14 January 2000, the applicant recovered possession of the flat.
11. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. Lastly, for some cases, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no. 200 of 1 August 2003.
12. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
13. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
14. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
15. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
16. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.”
17. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
18. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
19. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72683
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: MANOILESCU AND DOBRESCU v. ROMANIA AND RUSSIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: 1. The applicants, Mr Ion Aurel Manoilescu and Ms Alexandra Maria Dobrescu, are Romanian nationals who were born in 1941 and 1921 respectively. The first applicant lives in Dithmarschen (Germany) and the second in Paris (France). They were represented before the Court by Mr M. Ghiga, a lawyer practising in Bucharest.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicants are heirs of A.D., who in 1929 purchased 6,650 sq. m of land in Snagov, near Bucharest, on which he had a house built (“the building in Snagov”).
4. In a judgment of 26 July 1950, the Bucharest Military Court of First Instance sentenced A.D. to twenty years' imprisonment for subversive activities against the State. In 1963 he died in prison.
5. In a decision of 17 November 1995, the Supreme Court of Justice, on an application by the Procurator-General, quashed that judgment and acquitted A.D. on all the charges on the ground that the essential elements of the offence of which he had been convicted had not been made out.
6. In Order no. 4913 of 9 April 1945, made during the Second World War, the building in Snagov was requisitioned by the Romanian State and placed at the disposal of the Allied Control Mission of the Union of Soviet Socialist Republics (USSR).
7. On 2 August 1945, following the Potsdam Conference, Germany was held responsible for the war damage caused to the Allies and was ordered to make reparation through transfers of German assets in foreign countries such as Romania.
8. Law no. 182 of 23 March 1946 on the return to the USSR authorities of German assets in Romanian territory in accordance with the decisions taken at the Potsdam Conference authorised the Romanian Council of Ministers to determine the procedure for returning property to the USSR authorities designated by the Allied Control Commission in Romania.
9. On 30 March and 10 August 1946 the Romanian Council of Ministers decided that assets that belonged to German natural and artificial persons and were registered in the lists kept by the Office for the Administration of War Enemies' Property were to be transferred to the authorities designated by the Allied Control Commission under Law no. 182. Among the immovable property thus transferred to the Soviet authorities was a building at 63 Dr Lister Street in Bucharest, owned by a private individual, Ms L.B.
10. In that context, by order of the Romanian Ministry of the Interior, A.D.'s property was again requisitioned on 24 May 1947. On 27 May 1947 it was allocated to the Soviet Directorate of External Trade.
11. In 1950 the building in question was nationalised by the Romanian State under Decree no. 92/1950 on nationalisation. It was assigned to the USSR embassy in Romania, as is apparent from the lists appended to the decree.
12. In Decree no. 25 of 26 January 1959 the Presidium of the Grand National Assembly of the Romanian People's Republic authorised the Ministry of Foreign Affairs to carry out an exchange of immovable property with the USSR on behalf of the Romanian State. The decree empowered the Ministry to transfer to the USSR title to a number of houses in Snagov (known collectively as “Adesgo”) belonging to the Romanian State and, in return, to receive title to two properties in the USSR's possession in Timişoara and Iaşi. The exchange of property was approved on 2 March 1962 in decision no. 175 of the Council of Ministers of the Romanian People's Republic.
13. In Decree no. 163 of 12 March 1962 the State Council of the Romanian People's Republic authorised a further exchange of property between the Romanian and Soviet States: Romania was granted title to a property at 63 Dr Lister Street in Bucharest (see paragraph 9 above), owned by the Soviet State, which in return obtained title to two detached houses in Snagov (known as “Red Villa” and “Reed Villa”) and the appurtenant 10,560 sq. m of land, owned by the Romanian State.
According to the applicants, “Red Villa” is actually the building in Snagov which belonged to A.D. before being requisitioned and subsequently becoming the property of the Romanian State under Decree no. 92/1950 on nationalisation (see paragraphs 10 and 11 above).
14. In an undated diplomatic note addressed to the Romanian Ministry of Foreign Affairs in reply to a question from Snagov Town Council, the Russian Federation embassy in Bucharest pointed out that under Decree no. 201/1993 issued by President Boris Yeltsin, the Russian Federation had taken over all the rights vested in the USSR in respect of movable and immovable property abroad. It further noted that the Russian Federation now had title in Romania to a housing complex and the appurtenant land in Snagov. It stated that that title had been confirmed by the Romanian Council of Ministers' decisions of 30 March and 10 August 1946, by Decree no. 25 issued on 26 January 1959 by the Presidium of the Grand National Assembly of the Romanian People's Republic, and by Decree no. 163 issued on 12 March 1962 by the State Council of the Romanian People's Republic (see paragraphs 9, 12 and 13 above).
15. In a letter of 6 April 1994, the mayor of Snagov stated in reply to a question from the first applicant that the Russian Federation embassy in Romania was using the building in Snagov that had belonged to A.D.; an appendix to the nationalisation decree indicated that the embassy had gained possession of the building in issue by virtue of an exchange of immovable property between the Romanian People's Republic and the USSR.
16. In 1996, following the enactment of Law no. 112/1995 on the legal status of residential property that had passed into the ownership of the Romanian State, the first applicant, as A.D.'s heir, lodged an application for restitution of the building in Snagov with the administrative board established to deal with applications lodged in Snagov pursuant to Law no. 112/1995 (“the Administrative Board”).
17. In a decision of 18 June 1997, the Administrative Board allowed his application and ordered the return of all the property in question to him, namely a detached house and the 6,650 sq. m of land on which it was built.
18. A State-owned company, A., applied to the Buftea Court of First Instance for judicial review of that decision. It argued that the building was not designated as residential and had not been vacant on the date on which Law no. 112/1995 had come into force, whereas the Law provided that the administrative authorities empowered to apply it could order the return of property to its owners only if those conditions were met. The applicants applied to intervene in the proceedings, seeking to have A.'s application dismissed on the ground that the building in issue was not managed by that company.
19. In a judgment of 12 January 1998, the Buftea Court of First Instance found for the applicants and dismissed the application by A. on the ground that that company did not have locus standi since the building was not managed by it. In the absence of an appeal, that judgment became final.
20. On an unspecified date the first applicant brought proceedings against Ilfov County Council and Snagov Town Council under Articles 1075 et seq. of the Civil Code, seeking an order requiring them to execute the administrative decision of 18 June 1997 by returning the property in issue to him.
Relying on various documents by means of which he intended to prove that A.D. was the former owner of the property and that he himself was A.D.'s heir, he urged that the restitution should be effective and enforceable against the legal successor of the USSR, notwithstanding the international principles concerning immunity set forth in the 1961 Vienna Convention on Diplomatic Relations.
He submitted that it was impossible for the final administrative decision of 18 June 1997 in his favour to be enforced in the normal manner by bailiffs, in view of the immunity enjoyed by the Russian Federation embassy in Romania with regard to the premises it occupied. Recapitulating the circumstances in which the property had been taken from A.D., he contended that a domestic statute, Law no. 112/1995 – the application of which entailed the return of his property – could not be deprived of effect by securing diplomatic rights to States which, moreover, no longer existed.
21. The second applicant sought leave to intervene in the proceedings, arguing that as an heir of A.D. she had the same rights as the first applicant.
22. In a judgment of 16 March 1998, the Buftea Court of First Instance allowed the applicants' applications and ordered the respondent authorities to return the property to them. It noted that the relevant decision of 18 June 1997, which had become final, had been given after verification of the legal status of the property and that the respondents could no longer claim that it was administered by the USSR.
23. Snagov Town Council appealed against that judgment. It asserted that the building in issue was not owned or administered by it but was used by the Russian Federation embassy, which had informed it that it was the owner of the building in a diplomatic note which the Town Council submitted in evidence (see paragraph 14 above). Emphasising that it was not contesting the applicants' title to the building, the Town Council argued that it lacked the capacity to take the action demanded by the applicants since the property was occupied by the embassy.
The Town Council argued, lastly, that it was impossible to execute the final decision of 18 June 1997, seeing that the bailiffs were also prevented from taking any enforcement measures for similar reasons.
24. In a judgment of 20 November 1998, the Bucharest County Court allowed the Town Council's appeal, quashed the judgment of the Court of First Instance and dismissed the applicants' application as being ill-founded. It noted that the building was not managed by the administrative authorities in question but was used by the Russian Federation embassy in Romania, which had stated in a diplomatic note that it was the owner (see paragraph 14 above). The County Court considered that execution of the administrative decision of 18 June 1997 would amount to breaching the immunity enjoyed by the Russian Federation's diplomatic mission in Romania, and thus directly undermining the Federation's fundamental interests. Lastly, it pointed out that immunity from execution was a principle recognised in international law, legal theory and practice.
25. The applicants appealed against that judgment, submitting that the lower courts had been incorrect in their interpretation of the evidence and of the nature of the legal relationships in the case before them. They argued, in particular, that the requisitioning of the property in issue and its passing into State ownership had been unlawful on the ground that Decree no. 163/1962 on the exchange of property had not been signed and was therefore null and void. They submitted plans showing the location of the property in question and documents concerning the exchange of property between the Soviet and Romanian States (see paragraphs 8, 9, 12 and 13).
26. In a judgment of 26 May 1999, the Bucharest Court of Appeal allowed their appeal, quashed the judgment of 20 November 1998 and remitted the case to the County Court for rehearing. The Court of Appeal asked the court to conduct additional inquiries in order to ascertain the procedure by which the building had become the property of the Romanian State and had been transferred to the Soviet State, and to clarify the legal status of the building at 63 Dr Lister Street, Bucharest, which the USSR had exchanged for the building in issue. The court was also instructed to investigate who had used the building before and after December 1989 and for what purpose.
27. At the hearing on 4 October 1999, the Bucharest County Court raised of its own motion the objection that the respondent administrative authorities could not be a party to the proceedings as the property was not managed by them. It joined that objection to the merits.
28. In a decision delivered on the same day the court, without having conducted the additional inquiries ordered by the Court of Appeal, allowed the objection and dismissed the applicants' action. It noted that the building in issue had initially been requisitioned and then nationalised in the circumstances outlined in paragraphs 6 to 11 above, and that it had subsequently become the property of the Soviet State by means of an exchange between the Romanian People's Republic and the USSR, approved by Decree no. 163 of 12 March 1962 (see paragraph 13 above). Observing that the building was now the property of the Russian Federation, the USSR's legal successor, the court considered that the first applicant's application for an order requiring the relevant authorities to return the building in accordance with Article 1075 of the Civil Code had been brought against entities lacking the capacity to take part in the proceedings.
29. The applicants appealed against that judgment, arguing that the court had omitted to take into account either the fact that the property had been taken unlawfully from A.D. or the evidence which they had submitted to that effect (see paragraph 25 in fine above).
30. In a judgment of 25 February 2000, against which no ordinary appeal lay, the Bucharest Court of Appeal dismissed their appeal and upheld the judgment of 4 October 1999. It noted, firstly, that the applicants' criticism that the lower court had not taken into account or interpreted correctly the evidence they had submitted was unfounded. It considered in that connection that the building had passed into the ownership of the Romanian State under Decree no. 92/1950 on nationalisation and that the applicants could accordingly not claim that it had been taken unlawfully by the State. It further observed that the Russian Federation's title to the building in issue had been confirmed and that the lower court had consequently been correct in finding that the applicants' action was directed against respondents lacking the capacity to take part in the proceedings.
31. On 6 June 2000 the applicants lodged an application to set aside the judgment of 25 February 2000. They submitted that the Court of Appeal had breached Article 315 of the Code of Civil Procedure by overlooking its previous judgment of 26 May 1999 in which it had ordered additional inquiries. They added that the Court of Appeal had omitted to draw any inferences from the evidence they had submitted.
32. In a judgment of 25 October 2000, against which no ordinary appeal lay, the Bucharest Court of Appeal dismissed the applicants' application as being ill-founded. It observed that in its judgment of 26 May 1999 it had not dealt with points of law, so that its decision could not have been binding in the new round of proceedings after the case had been remitted; rather, it had simply requested the lower court to clarify the legal position regarding the building in issue and the entity occupying it. It therefore held that Article 315 of the Code of Civil Procedure had not been breached by the lower court. The Court of Appeal held that the applicants' second complaint was likewise unfounded, seeing that in its judgment of 25 February 2000 on the applicants' appeal it had found that title to the building in question was vested in the Russian Federation and not in the respondents, thereby settling the dispute in the light of all the evidence before it.
33. On an unspecified date the applicants sent a memorial to the Ambassador of the Russian Federation in Bucharest, requesting him to allow the relevant Romanian authorities to return the building in Snagov to them, as they had inherited it and had been granted restitution of it under Law no. 112/1995. After recapitulating the circumstances that had led to A.D.'s loss of the building (see paragraphs 6-10 above), they argued that the exchange of property between the Romanian and Soviet States under Decree no. 163 of 12 March 1962 had been unlawful and hence void in that, firstly, the decree concerning the exchange had been neither signed nor published and, secondly, the building offered by the Soviet State in return for the building in Snagov had not belonged to a German national, a criterion that would have justified its transfer to the Russian authorities in accordance with the decisions taken at the Potsdam Conference.
The applicants stated, lastly, that they did not wish to be party to a possible dispute with Russia, contending that any such proceedings would be thwarted by the application of the principle of diplomatic immunity enjoyed by the embassy. They argued, however, that that principle should not contravene the domestic legal order, adding that the property in issue was not of any particular practical interest.
34. It is not clear from the evidence before the Court whether the applicants received a reply to their request.
35. On an unspecified date the applicants contacted the Ilfov prefect's office. Relying on Law no. 10/2001 on the legal status of immovable property wrongfully seized by the Romanian State between 6 March 1945 and 22 December 1989, they sought restitution of the building in Snagov. In a letter of 27 January 2003 the prefect replied that, by virtue of sections 21 and 25 of Law no. 10/2001 taken together, the authority responsible for restitution of such property was the entity in possession of the building or the council of the district in which the property was situated. He invited the applicants to contact those authorities through the bailiffs at the Buftea Court of First Instance. There is no indication in the evidence before the Court as to whether the applicants acted on that recommendation.
36. In a letter dated 23 September 2002, the representative of the Russian Federation at the Court, in reply to a request for information sent under Rule 54 § 2 (a) of the Rules of Court by the Chamber dealing with the case, stated that the Russian Federation, as the USSR's successor in title to all its movable and immovable property abroad, had title in Romania to a housing complex in Snagov and the appurtenant land. He indicated that the Russian Federation's title to the property had been confirmed by the Romanian Council of Ministers' decisions of 30 March and 10 August 1946, by Decree no. 25 issued on 26 January 1959 by the Presidium of the Grand National Assembly of the Romanian People's Republic, and by Decree no. 163 issued on 12 March 1962 by the State Council of the Romanian People's Republic (see paragraphs 9, 12 and 13 above), as the Russian Federation embassy in Romania had already informed the Romanian Ministry of Foreign Affairs in a diplomatic note (see paragraph 14 above).
37. It appears from the evidence submitted by the applicants that the building in issue is still being used by officials of the Russian Federation embassy in Romania.
38. The relevant international provisions are as follows:
“For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them:
...
(i) the 'premises of the mission' are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.”
“1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.”
“A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to:
(a) its rights or interests in, or its use or possession of, immovable property; or
(b) its obligations arising out of its rights or interests in, or use or possession of, immovable property
and the property is situated in the territory of the State of the forum.”
“No measures of execution or preventive measures against the property of a Contracting State may be taken in the territory of another Contracting State except where and to the extent that the State has expressly consented thereto in writing in any particular case.”
39. On 2 December 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property, requested the Secretary-General as depositary to open it for signature, and invited States to become parties to it. The relevant provisions of the convention, which is open for signature from 17 January 2005 to 17 January 2007, read as follows:
“A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.”
“1. A State shall give effect to State immunity under Article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under Article 5 is respected.
2. A proceeding before a court of a State shall be considered to have been instituted against another State if that other State:
(a) is named as a party to that proceeding; or
(b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.”
“Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to the determination of:
(a) any right or interest of the State in, or its possession or use of, or any obligation of the State arising out of its interest in, or its possession or use of, immovable property situated in the State of the forum;
(b) any right or interest of the State in movable or immovable property arising by way of succession, gift or bona vacantia; or
(c) any right or interest of the State in the administration of property, such as trust property, the estate of a bankrupt or the property of a company in the event of its winding up.”
Article 19 – State immunity from post-judgment measures of constraint
“No post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that:
(a) the State has expressly consented to the taking of such measures as indicated:
(i) by international agreement;
(ii) by an arbitration agreement or in a written contract; or
(iii) by a declaration before the court or by a written communication after a dispute between the parties has arisen; or
(b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding; or
(c) it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum ...”
“No measures of constraint or preventive attachment may be carried out in respect of property belonging to a foreign State if the property is used for the performance of activities of its Government not connected with any form of economic exploitation.”
“1. The property of a foreign State is not subject to any process or order of the courts or other organs of the forum State for the satisfaction or enforcement of a judgment or order, or for the purpose of prejudgment measures in preparation for execution (hereafter referred to as measures of constraint), except as provided for by this Article and by Article 5.
2. The following categories of property of a State in particular are immune from measures of constraint:
(a) property used or set aside for use by the State's diplomatic or consular missions, its special missions or its missions to international organisations;
...”
“1. A foreign State may not invoke immunity from jurisdiction or from measures of constraint if it has expressly consented to the exercise of the relevant type of jurisdiction by the relevant court or other organs of the forum State:
(a) by international agreement;
(b) in a written contract;
(c) by a declaration relating to the specific case;
(d) by a voluntary submission to jurisdiction in the form of the institution of proceedings in the relevant organs of the forum State, or of intervention in proceedings for the purpose of pursuing issues related to the merits of those proceedings, or of a comparable step in the proceedings.
2. Consent to the exercise of jurisdiction does not imply consent to measures of constraint, for which separate and explicit consent is required.”
40. The relevant provisions of domestic law are as follows:
“Individuals who formerly owned residential property which passed lawfully into the ownership of the State or of another artificial person after 6 March 1945 and which was still in the possession of the State or another artificial person on 22 December 1989 shall be entitled to benefit, by way of reparation, from the measures in this Law.
The provisions of this Law shall apply equally to the successors in title of such former owners, subject to existing statutory provisions.”
“The persons referred to in section 1 shall be entitled to restitution in the form of the restoration to them of the ownership of flats in which they currently live as tenants or which are vacant. In respect of other flats, those persons shall receive compensation ...”
“Persons entitled to claim restitution ... shall lodge an application for such purpose ...”
“Applications referred to in section 14 above shall be lodged with the administrative board for the district in which the property is situated. They must include full details of the applicants' identity, their status as owner or successor in title, ... certified copies of the documents on the basis of which they intend to prove their ownership or that of the deceased person of whom they are successors in title ... Decisions on restitution of property shall be taken by the county council for the district in which the property is situated.”
“... The county board for the application of the provisions of this Law shall be composed of: the chairman of the county council, who shall chair the board, the notary public, the head of the county's public finance and State audit department, the head of the county's town planning, public works and regional development department, the head of the county council's legal service, and two or three specialists in leasehold improvements and building and land valuation, assisted by a secretary.”
“Within sixty days of the date on which they receive proposals from the local boards, the county boards shall determine whether the former owners or their successors are entitled to the restitution of their property or to compensation, and shall issue decisions to that effect. Such decisions shall be communicated within five days to the former owners or their successors in title ... and to the entities in possession of the property ... The boards' decisions shall be adopted by majority vote.”
“Decisions of the county boards ... shall be subject to review by the national courts and may be challenged, in accordance with civil law, within thirty days of being communicated.”
“... On the basis of the decision of the county board or, as the case may be, the final judicial decision, the person granted restitution of the property shall apply to be entered in the land register as the owner.
The decision of the county board or, as the case may be, the final judicial decision shall amount to a document of title to the property.”
“1. The measures provided for in Law no. 112/1995 by way of reparation shall be available only to the former owners of residential property which passed lawfully as such into the ownership of the State ... and their successors in title ...
2. Residential property which passed lawfully as such into State ownership denotes buildings which were nationalised as buildings intended for residential use pursuant to a statutory provision in force on the date on which they passed into State ownership, such as Decree no. 92/1950 ...”
“Section 1 [of Law no. 112/1995] shall be supplemented by the following paragraphs:
4. Residential property which passed into State ownership in breach of the statutory provisions in force on the date in question, or in the absence of any statutory provision forming a legal basis for the State's title to it, shall be deemed to have passed unlawfully into State ownership and to fall outside the scope of Law no. 112/1995.
5. Property falling outside the scope of Law no. 112/1995 and to which the State does not have a valid document of title may be the subject of an application for restitution or compensation under the ordinary procedure.”
“(1) Immovable property wrongfully seized by the State, a cooperative organisation or any other artificial person between 6 March 1945 and 22 December 1989 and property expropriated under the Requisitions Act (Law no. 139/1940) that has not been returned shall be subject to restitution, normally consisting of the return of the property in question, in accordance with the provisions of this Law.
(2) Where the property cannot be returned, alternative measures of redress shall be taken. Such measures may consist of compensation in the form of other items or services offered in exchange by the occupier, subject to the applicant's consent, the allotment of shares in commercial companies listed on the stock market, securities at face value used exclusively in the privatisation process or pecuniary compensation.”
“Every obligation to do or not to do something shall give rise to compensation in the event of non-performance by the obligor.”
41. At the material time Article 315 was worded as follows:
“Where a judgment has been quashed and remitted to the court below, the decision delivered following an appeal as to points of law shall be binding on the lower court.”
That provision was amended as follows by Government Emergency Ordinance no. 138/2000:
“Where a judgment has been quashed and remitted to the court below, the decision delivered following an appeal as to points of law and the need to take further evidence shall be binding on the lower court.”


ITEMID: 001-67252
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF TUNCER AND DURMUŞ v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 5;Non-pecuniary damage - financial award;Costs and expenses award
JUDGES: Nicolas Bratza
TEXT: 9. The applicants were born in 1966 and 1963 respectively and live in Istanbul.
10. On 8 January 1996 the applicants were in the Alibeyköy neighbourhood, on their way to attend the funeral of two prisoners who allegedly had been killed by the security forces. Police officers were arresting at random people in Alibeyköy who were walking on the street, waiting at the bus stop or driving their cars. When the applicants arrived in the neighbourhood, they were beaten by police officers and they were subsequently arrested together with many others. This was a notorious incident that had attracted media and public attention.
11. Following their arrest, the applicants were taken to a bus where they were beaten and insulted. They were brought to the Eyüp Stadium along with 1054 people who were arrested randomly. In the stadium they were again beaten and insulted. Their identity cards, money and valuables were seized by the police officers.
12. While the applicants were held in the Eyüp Stadium their friends filed a petition with the Eyüp Magistrate's Court requesting to have them brought before the competent public prosecutor. The Eyüp Magistrate's Court rejected their request. The court stated in its written reply that the public prosecutors were entitled to authorise the prolongation of the detention period of suspects for up to four days in respect of crimes committed by three or more persons. Thus it concluded that it did not have jurisdiction to take any decision at this stage.
13. The applicants were released on the same day.
14. On 9 January 1996 the applicants filed a complaint with the office of the Eyüp Public Prosecutor concerning the treatment to which they were subjected when they were held by the police in the Eyüp Stadium. They requested the public prosecutor to order their examination by a forensic expert. The prosecutor agreed to their request.
15. On the same day the applicants were examined by a doctor at the Eyüp Forensic Institute. According to the medical report the first applicant was suffering from bruising of 3 cm in diameter on her right shoulder and shoulder blade, pain in her shoulders and neck, a bruise of 4 cm in diameter on the right hip and marks of bruising on the exterior of her thigh. It was also noted that, before a final conclusion on her health situation was reached, the applicant had to be examined in a hospital as she had vaginal bleeding.
16. As regards the second applicant it was recorded in the medical report that he had a bruise of 3 cm in diameter on the right shoulder, a bruise of 5 cm in diameter on the right arm, a bruise of 2 cm in diameter on his back and a bruising of 15-20 cm in diameter on the left shoulder and around the shoulder-blade. He was also complaining of pain in his legs. The report concluded that the applicant would be unfit for work for ten days.
17. On 15 January 1996 the Eyüp Public Prosecutor decided to transfer the preliminary investigation file to the District Governor of Eyüp in Istanbul in accordance with the law on the prosecution of civil servants. At a later stage the file was transferred to the Provincial Administrative Council.
18. On 17 January 1996 the applicants, together with some others who had been arrested on the same day and allegedly subjected to ill-treatment by the police officers, filed a petition with the Eyüp Public Prosecutor. They requested the prosecutor to initiate an investigation concerning their arbitrary arrest and the ill-treatment to which they had been subjected to. The Eyüp Public Prosecutor transferred this request as well to the Provincial Administrative Council.
19. On 8 February 1996 the Provincial Administrative Council issued a decision to commit the police officers for trial.
20. On 6 March 1996 the applicants lodged an objection with the Supreme Administrative Court against the decision of the Istanbul Provincial Administrative Council, arguing that the chief of police in the Eyüp District should have also been committed for trial together with the other police officers. On 3 April 1996 the Supreme Administrative Court upheld the decision of the Provincial Administrative Council and rejected the objection concerning the prosecution of the chief of the police department.
21. On an unspecified date the Eyüp Public Prosecutor filed a bill of indictment with the Eyüp Assize Court against the police officers who had allegedly ill-treated the complainants, including the applicants.
22. On an unspecified date the Eyüp Assize Court decided to transfer the case-file to the Aydın Assize Court for security reasons. At a later stage the Aydın Assize Court decided to transfer the case-file to the Afyon Assize Court on the same grounds.
23. On 18 October 1996 the Afyon Assize Court held that there was a possibility that the applicants had suffered from the ill-treatment allegedly inflicted by the accused police officers and it therefore accepted the applicants' request to intervene in the criminal proceedings. During the hearing the applicants gave a detailed account of the events of 8 January 1996.
24. On 18 December 1996 a doctor at the Istanbul Forensic Medicine Institute drafted the final medical report concerning the first applicant. The doctor concluded that, considering the findings of the medical examination of 9 January 1996, she would be unfit for work for ten days.
25. On 5 November 1999 the Afyon Assize Court acquitted the police officers on the ground that there existed no evidence in the case file to identify which of the accused police officers were responsible for the alleged ill-treatment.
26. On 2 April 2001 the Court of Cassation quashed the decision of the Afyon Assize Court, holding that the Law No. 4616 on suspension of proceedings and the execution of sentences regarding offences committed before 23 April 1999 was applicable in this case.
27. According to the Government, the applicants were not amongst the 1054 persons who were arrested and subsequently taken to the Eyüp Stadium.
28. A description of the relevant domestic law at the material time can be found in Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96100, 3 June 2004).
VIOLATED_ARTICLES: 3
5