ITEMID: 001-21997
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: OSTRUZIAROVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Slovak national, born in 1930 and living in Klokočov.
A.
On 25 May 1994 the applicant lodged an action with the Čadca District Court (Okresný súd - “the District Court”) in which she claimed that her neighbours should remove a fence, that they should stop disturbing her in the enjoyment of her property and that a certificate according to which her neighbours owned a plot was void.
On 31 August 1995 the parties, assisted by a judge of the District Court, reached a friendly settlement of the case. The agreement was signed by both the applicant and her son whom she had authorised to represent her in the proceedings. On the same day the District Court issued a decision in which it approved the terms of the settlement under which each party undertook to respect the other party’s property rights.
Subsequently the applicant requested that the District Court’s decision of 31 August 1995 should be quashed. She submitted that the agreement was unlawful as it determined the property rights of other co-owners who had not been a party to the proceedings and that she had signed it under pressure. In particular, the applicant alleged that the judge dealing with the case had shouted at her, that she had called a policeman to the court room and had threatened to evict the applicant should she not sign the agreement. The applicant further complained that she had not been able to duly verify whether her property had been specified correctly in the agreement.
Another judge of the District Court dismissed the request on 16 October 1996 after having heard the participants and the policeman concerned. It was established that the latter’s presence had been ordered because of the parties’ undisciplined behaviour in the course of the previous hearing. The District Court found no reliable evidence indicating that either the judge or the policeman had exercised any pressure on the applicant or her representative. The latter confirmed that he had signed the agreement after having glanced through it. The court held that the applicant and her representative had signed the agreement freely within the meaning of Section 37 (1) of the Civil Code (see “Relevant domestic law” below) and concluded that the agreement was valid. Finally, the District Court found that the agreement concerned exclusively the applicant’s share in the relevant property and that the rights of the other co-owners remained unaffected.
The applicant appealed and alleged that the agreement was contrary to Sections 37 and 39 of the Civil Code. In particular, she maintained that she and her son had been deterred by the presence of a policeman and had signed the agreement at the judge’s insistence notwithstanding that she had not understood its terms. She further alleged that the agreement had unlawfully modified the rights of other co-owners of the real property.
On 26 February 1997 the Banská Bystrica Regional Court (Krajský súd - “the Regional Court”) upheld the first instance judgment as it considered that the friendly settlement agreement was not invalid under the law within the meaning of Section 99 (3) of the Code of Civil Procedure.
The Regional Court noted that the presence of a policeman at the hearing before the District Court could not be considered, as such, as a threat, that it had been justified by the need to ensure a proper conduct of the proceedings and that the applicant had failed to show that the judge or the policeman had exercised any pressure on her. In the court’s view, the agreement was in any event valid as it had been signed by the applicant’s son who had been duly authorised to act on her behalf within the meaning of Section 28 (2) of the Code of Civil Procedure.
The Regional Court also noted that in the agreement the applicant had recognised, on her own behalf, that the defendants were owners of the plot at issue. It pointed out that the rights of any other person to contest the ownership of the plot remained unaffected.
In the appellate proceedings the applicant was represented by a lawyer. She attended the hearing and was given the floor. When she started speaking the judge told the applicant that she should keep herself at a greater distance so that she would not splutter at her. As a result, the applicant was distressed and was not able to finish her speech.
On 10 May 1997 the applicant complained about this fact to the Ministry of Justice.
The applicant also lodged an appeal on points of law with the Supreme Court (Najvyšší súd). She alleged that she had concluded the agreement under psychological pressure without having understood its terms. She further stated that she had not been able to act before the appellate court.
On 16 June 1997 the Supreme Court rejected the applicant’s appeal on points of law on the ground that such a remedy was not available in the case. In its decision the Supreme Court noted that in the appellate proceedings the applicant had had full opportunity to submit her arguments both through her lawyer and in person and that all relevant evidence suggested by her had been taken.

On 14 July 1997 the Ministry of Justice informed the applicant that the Regional Court judge had not intended to confuse or offend the applicant. The Ministry found therefore no reason for disciplining the judge.
B. Relevant domestic law
Civil Code
Section 37 (1) provides that for a legal act to be valid, it is to be carried out freely, with serious intention, certainly and comprehensibly.

Pursuant to Section 39, a legal act is void if its contents or purpose contradicts or circumvents the law or is contrary to boni mores.

Code of Civil Procedure
Section 28 (2) provides that an authority to represent a party in the proceedings as a whole cannot be restricted. A representative with such an authority can carry out all acts a party to the proceedings is entitled to.
Under Section 99 (1), parties may terminate civil proceedings by means of a friendly settlement if it is compatible with the nature of the case. Courts should always make an attempt with a view to securing a friendly settlement.
Section 99 (2) provides that a court shall decide whether or not it approves a friendly settlement. A settlement cannot be approved if it is contrary to the law.
Pursuant to Section 99 (3), an approved friendly settlement has the effect of a final judgment. A court may, however, quash an earlier decision on the approval of a settlement agreement if the latter is void under the relevant law.


ITEMID: 001-22712
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: TEKDEMIR v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Abdullah Tekdemir, is a Turkish national of Kurdish origin, who was born in 1949 and currently lives in the Netherlands. He is represented before the Court by Mrs G.E.M. Later, a lawyer practising in The Hague. The respondent Government are represented by their Agents, Mr R.A.A. Böcker and Mrs J. Schukking, of the Netherlands Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 July 1995 the applicant left Turkey. He arrived in the Netherlands on 16 July 1995 where, on 18 July 1995, he applied for asylum or, alternatively, a residence permit on humanitarian grounds. On 26 July 1995, assisted by an interpreter, he was interviewed by an official of the Ministry of Justice about the reasons for his asylum request. By letter of 8 August 1995, the applicant submitted his corrections and additional remarks to the record of this interview.
The applicant stated that he had left his hometown for İstanbul on 10 March 1995. He had been apprehended and questioned by the authorities in 1991 on suspicion of having transported PKK members. He was released after having convinced the authorities of his innocence. He further stated that, on six occasions between August 1994 and March 1995, he had been apprehended and questioned by the authorities in relation to his son’s refusal to do military service, and that he had been beaten during interrogation. However, this had not been his reason for leaving. He had left because he was being sought by the authorities. He explained that, together with another person, he had owned a bus, and on two occasions - i.e. in February and March 1995 respectively - the PKK had forced him to transport PKK members. The PKK members he had been forced to transport in March 1995 had carried out a bomb attack on the Gayreteppe Anti-Terror Branch office. According to the applicant, the authorities were looking for him since he had transported PKK members in 1995. As he had already been suspected of a similar act in 1991, the applicant decided to flee.
On 23 January 1996 the applicant filed an objection (bezwaarschrift) in which he complained that his request for asylum or a residence permit had not been determined speedily. On 23 January 1996 he submitted the grounds for his objection.
On 23 February 1996 the State Secretary of Justice (Staatssecretaris van Justitie) accepted the applicant’s objection that his request for asylum or a residence permit had not been determined speedily, but rejected the applicant’s request. The State Secretary noted that the applicant had declared, inter alia, that together with another person, he had owned a bus and that on two occasions - i.e. in February and March 1995 respectively - the PKK had forced him to transport PKK members. Furthermore, between August 1994 and his departure from Turkey the applicant alleged that he had been questioned and beaten by Turkish officials on six occasions in relation to his son’s evasion of military service, that he did not belong to or sympathise with any prohibited organisation in Turkey and that he had not undertaken any activities against the Turkish authorities. The State Secretary held that the mere fact of belonging to the Kurdish minority in Turkey was an insufficient ground for granting asylum and that it had not appeared that the applicant had attracted the negative attention of the Turkish authorities. Moreover, as the applicant had stated that the reason for his departure from Turkey was not the fact that he had been questioned on six occasions about his son, but that he feared that he was wanted by the Turkish authorities for having transported PKK members, the State Secretary held that the applicant’s fear remained entirely unsubstantiated.
The State Secretary further decided that the applicant was not to be allowed to remain in the Netherlands pending the examination of a possible objection against this decision.
On 11 March 1996 the applicant filed an objection against the decision of 23 February 1996. On the same day, he filed a request with the President of the Hague Regional Court (arrondissementsrechtbank) for an injunction to suspend his expulsion pending the outcome of the proceedings on the objection.
On 6 June 1996 the State Secretary reminded the applicant that he was not allowed to await the outcome of the objection proceedings in the Netherlands. The applicant’s request for an injunction was heard on 9 July 1996. The court’s examination of the request was deferred for an indefinite period, given that uncertainties had arisen with respect to the position of Turkish Kurds.
The applicant’s objection against the decision of 23 February 1996 was rejected on 12 December 1996 by the State Secretary. The latter stated that the applicant remained eligible for expulsion.
On 20 December 1996, the applicant filed an appeal with the Hague Regional Court sitting in Zwolle. The applicant further requested this court to issue an injunction against his expulsion pending the appeal proceedings.
In its judgment of 9 March 1998, the Hague Regional Court in Zwolle rejected the applicant’s appeal and request for an injunction. It held, inter alia:
“... There are no concrete indications that the Turkish authorities will persecute the <applicant> upon his return. It is true that, in 1991, he had been detained for two days on suspicion of having transported terrorists, but was able to convince the authorities of his innocence. He was later unconditionally released. It has not appeared nor has it been found established that he has encountered further problems in this connection.
<The applicant> further states that since August 1994 he was questioned six times in relation to the refusal of his son Yılmaz to perform his military service and that on the last occasion on 6 March 1995 the authorities had given him one week to report on his son. He did not do so; nor did he await the consequences of his failure to do so since he left for İstanbul.
In addition <the applicant> states that in February and March 1995 he had been forced to transport PKK fighters. During his stay in İstanbul, <the applicant> learned that in the meantime the authorities had become aware of this. His wife and children were questioned by the authorities because they were looking for <the applicant>. His children would have been ill-treated during those interrogations.
Whatever may be the case, <the applicant> has not made out a plausible argument that he is in fact wanted by the Turkish authorities for his alleged activities. There is no concrete information about his alleged persecution. The letters of family members submitted by <the applicant> cannot serve as such. These letters cannot be regarded as emanating from an objective verifiable source. Noting the fact that the applicant has already been residing in the Netherlands for a certain period of time, he could be expected to have substantiated his alleged fear of persecution by way of documents or other means. He has not done so, and that seriously undermines the plausibility of his allegations.
... it has not been established that the applicant has attracted the negative attention of the Turkish authorities. ... This leads to the conclusion that <the applicant> has not made out a plausible case that he can claim with justification admission to the Netherlands as a refugee.
... From what has been considered in relation to the applicant’s request for asylum, it follows that ... in <the applicant’s> case no facts or circumstances have appeared which can be considered grounds on which it could be held that he runs a real risk, if forcibly expelled to Turkey, of being subjected to treatment contrary to Article 3 of the Convention or comparable provisions in other treaties; he is not eligible, accordingly, for a residence permit on those grounds.”
On 7 April 1998 an order for the applicant’s expulsion was issued to the Aliens Police (vreemdelingenpolitie) in the applicant’s place of residence.
The applicant’s opposition (verzet) against the judgment of 9 March 1998 was rejected on 1 July 1998 by the Hague Regional Court sitting in Zwolle. The applicant’s further request for an injunction against his expulsion pending the outcome of the opposition proceedings was rejected on 27 July 1998.
On 7 September 1998 the applicant left his then place of residence, which was known to the immigration authorities, for an unknown destination. On 4 October 1998, after a police officer had reported a public order disturbance, the applicant was apprehended and detained so that his residence status could be checked. When it appeared that his asylum request had been rejected, the applicant was placed in aliens’ detention with a view to his expulsion. On 5 October 1998 the applicant filed a second request for asylum or, alternatively, a residence permit on humanitarian grounds. On the same day he filed an appeal with the Hague Regional Court against the decision to place him in aliens’ detention.
On 9 October 1998 the applicant was interviewed by an official of the Ministry of Justice about the reasons for his second asylum request. On that occasion the applicant stated that he based his second request on the same grounds as those advanced in support of his first asylum request.
On 14 October 1998 the Hague Regional Court rejected the applicant’s appeal against the decision to place him in aliens’ detention. It noted that the applicant’s second asylum request was lodged after he had been placed in aliens’ detention. The court held that prima facie the request did not appear to have much chance of success. Noting that the applicant did not hold either a valid residence permit or a valid proof of identity and that he did not have sufficient means of subsistence, the court ruled that the Netherlands authorities’ fears that the applicant would seek ways to prevent his expulsion could not be considered unfounded. It noted in this connection that his presence in the Netherlands was illegal and that he had removed himself from the control of the immigration authorities. The court concluded that his placement in aliens’ detention had been in accordance with the law. It further did not find it established that there were no prospects for the applicant’s expulsion within a reasonable time. Given that the applicant could not be expelled pending a determination by the State Secretary on the applicant’s second asylum request and that, according to the relevant statutory provision, this decision had to be taken within four weeks, the Regional Court held that in these circumstances it was not unreasonable to prolong the applicant’s placement in aliens’ detention until the decision had been taken.
On 29 October 1998 the State Secretary rejected the applicant’s second request for asylum and ruled that the applicant was not allowed to await the outcome of a possible appeal in the Netherlands. On 30 October 1998 the applicant filed an appeal against this decision with the Hague Regional Court and requested this court to issue an injunction against his expulsion pending the examination of his appeal. In his submissions of 30 October 1998 the applicant mentioned that his cousin C.X. had been a vice-president of the political party HEP and had been murdered in 1994 by counter-guerrilla forces, that his other cousin B.X., who had played a leading role in politics, had also fled from Turkey.
On 6 November 1998, the applicant filed a second appeal with the Hague Regional Court against the decision to place him in aliens’ detention. On 18 November 1998, the Hague Regional Court rejected this appeal. It held that, contrary to the applicant’s arguments, his second asylum request had no apparent chance of succeeding and there were therefore prospects that he would be expelled within a reasonable time. Assuming that the request for an injunction against the applicant’s expulsion would be examined diligently, the Regional Court considered that a continuation of the applicant’s placement in aliens’ detention could not be regarded as unlawful or unreasonable.
On 22 January 1999 the applicant filed a third appeal with the Hague Regional Court against the decision to place him in aliens’ detention.
On the same day, in the proceedings on a second asylum request lodged by A.X., a brother of B.X. and C.X. and to whom the applicant claimed to be related, the Hague Regional Court held that - in the light of new information submitted by A.X. about problems encountered in Turkey by the widow of his brother C.X. - the State Secretary could not have rejected A.X.’s second asylum request on the mere basis of a reference to the findings in A.X.’s first asylum proceedings. It considered that A.X. should be requested to substantiate his alleged family ties with C.X., who was a prominent leader of the HEP, and with C.X.’s other brother B.X., who had already been granted a residence permit in the Netherlands. Consequently, the Regional Court accepted A.X.’s appeal as well-founded and ordered the State Secretary to take a new decision on A.X.’s second asylum request. It further granted A.X.’s request for an injunction against his expulsion pending a new decision by the State Secretary.
On 11 February 1999, the Hague Regional Court rejected the applicant’s third appeal against the decision to place him in aliens’ detention. It held that, contrary to the applicant’s arguments, his request for an injunction against his expulsion did not have a sufficient chance of succeeding. It therefore held that the State Secretary could consider that the applicant’s placement in aliens’ detention needed to be maintained.
By letter of 16 February 1999 the Netherlands branch of Amnesty International requested the Immigration and Naturalisation Department of the Ministry of Justice to be given access to the applicant so as to conduct an examination of his physical condition and the specific circumstances of his case. Amnesty International further requested that the applicant should not be expelled during this examination. In this letter, Amnesty International expressed its concerns about the applicant’s situation in that he belonged to a politically active family, that his cousin - vice-president of the political party HEP which together with the DEP party had merged into the political party HADEP - had been murdered in Turkey, that two of the applicant’s sons had refused to do military service and that his son Mahır had been admitted to hospital in Turkey with a broken back. On 12 March 1999 the Netherlands Branch of Amnesty International repeated its request for access to the applicant.
On 10 March 1999, following a hearing held on 5 February 1999, the Hague Regional Court sitting in Zwolle rejected the applicant’ appeal against the decision of 29 October 1998 as well as his request for an injunction against his expulsion. It ruled that the applicant’s second request for asylum was not based on any new facts or circumstances, and recalled its decision of 9 March 1998 in which it had held that it had not been established that the applicant was wanted by the Turkish authorities. Insofar as the applicant had argued that the Regional Court, on 9 March 1995, had unjustly held that it was for the applicant to substantiate his alleged fear of persecution, the Regional Court considered that a new asylum procedure was not meant to be a disguised form of appeal against a recent decision having obtained the force of res iudicata. According to the court, the applicant’s submissions on this point did not concern facts or circumstances that could not have been raised in the course of the proceedings on his first asylum request. This was not altered by the applicant’s allegation that this failing was caused by inadequate assistance by various legal aid advisers.
Insofar as the applicant could be considered as relying on the ruling of 22 January 1999 in the case of A.X., the Regional Court noted that in that decision A.X. had been ordered to prove his alleged family tie with C.X. The court considered that in the present case there was no reason to issue such an order as the applicant had never invoked a similar family tie in his first asylum request, insofar as a family tie with C.X. could be assumed at the outset. The Regional Court agreed with the State Secretary that it was strange that the applicant, who claimed to have travelled with A.X. to the Netherlands, had not relied on his kinship in the proceedings on his first asylum request.
The Hague Regional Court found nothing in the applicant’s submissions that could lead to a different finding than the one reached on his first asylum request. It was noted in this connection that, during his first interview, the applicant had stated that he was not involved in politics, that he had been forced on two occasions to transport PKK supporters and that it had appeared that he had little knowledge about the Kurdish flag and anthem. As the applicant had based his second asylum request on grosso modo the same grounds as his first request, the Regional Court concluded that the appeal was ill-founded. The Regional Court did not find it established that the applicant, if expelled to Turkey, would face a real risk of treatment contrary to Article 3 of the Convention.
On 15 March 1999 the applicant filed a third request for asylum. On the same day, he filed a fourth appeal against the decision to place him in aliens’ detention with a view to his expulsion. This appeal was rejected by the Hague Regional Court on 24 March 1999, holding inter alia;
“The Regional Court is of the opinion that the submissions made on behalf of the alien cannot lead to the finding that the placement in aliens’ detention must now be considered unlawful.
It is established that the Hague Regional Court sitting in Zwolle, by decision of 10 March 1999, has declared the applicant’s appeal ill-founded and that the second asylum proceedings of the alien have thereby ended.
In view of the foregoing, the alien is, in the court’s opinion, eligible for expulsion. This is not altered by the fact that the alien has filed a third asylum request as it has not been established that this request would be automatically granted.
The Regional Court further finds that the decisions of Amnesty International and of the European Court <of Human Rights> concerning cousins of the alien in themselves do not imply that the alien is currently not eligible for expulsion, or that after a further review of his third asylum request would not be eligible for expulsion. Also, the intention to request the European Court for an injunction against the alien’s expulsion does not imply that the prospects of expulsion should now be regarded as absent. Insofar as new asylum proceedings are running, a decision must follow within 28 days.
It has not appeared that the <State Secretary> has not been diligent as to the procedure for expediting the investigation.
Account has been taken of the fact that, in connection with the alien’s second asylum request, the <State Secretary> could not present the alien earlier <to the Turkish authorities> but will now do so on 25 March 1999. The <State Secretary> cannot be held responsible insofar as this cannot take place in connection with the alien’s third asylum request. As there is no indication that the applicant’s presentation to the Turkish authorities is chanceless, the Regional Court is of the opinion that this investigation needs to be awaited.
It has further not been established that the alien has any mental/psychic problems such as would warrant the lifting of his placement in aliens’ detention. The Regional Court further notes that the applicant’s placement has at this stage not exceeded six months. The argument raised on this point therefore lacks foundation.
It has not been established that the application or execution of the placement in aliens’ detention in respect of the alien is in violation of the Aliens Act (Vreemdelingenwet) or, after balancing all interests involved, in all reasonableness must be considered unjustified.”
On 23 March 1999 the applicant was medically examined by an Amnesty International doctor. In the course of this examination, the applicant stated that, as a result of having been tortured in detention in 1994 and/or 1995, his feet were injured to such an extent that, after his release, he required medical treatment. He stated that he had received this treatment from Dr Halit Riza in the Bingöl State Hospital.
On 24 March 1999 the Netherlands branch of Amnesty International informed the Immigration and Naturalisation Department of the Ministry of Justice that, according to the findings of its doctor, the applicant had been subjected to torture.
On 25 March 1999 with the assistance of an interpreter, the applicant was interviewed by an official of the Ministry of Justice on the grounds given for his third request for asylum.
On 12 April 1999 the State Secretary rejected the applicant’s third asylum request. The applicant was further informed that he was not allowed to remain in the Netherlands pending the outcome of a possible appeal.
By letter of 13 April 1999, the Netherlands branch of Amnesty International informed the Immigration and Naturalisation Department of the Ministry of Justice that it considered that the applicant’s case had been insufficiently examined and, for that reason, it could not be excluded that the applicant, if expelled to Turkey, would be exposed to a real risk of human rights violations contrary to the 1951 Geneva Convention Relating to the Status of Refugees. It further transmitted a copy of the provisional report dated 7 April 1999 of the doctor who had examined the applicant on 23 March 1999.
On 14 April 1999 the applicant filed an appeal with the Aliens Division of the Hague Regional Court against the decision of 12 April 1999. He further requested the Regional Court for an injunction against his expulsion pending the outcome of the appeal proceedings.
On 28 April 1999 the applicant filed a fifth appeal with the Hague Regional Court against the decision to place him in aliens’ detention.
On 25 May 1999 the Netherlands branch of Amnesty International transmitted the report dated 9 May 1999 on the applicant’s medical examination of 23 March 1999 to the Immigration and Naturalisation Department of the Ministry of Justice. According to this report, the applicant’s account of ill-treatment was consistent and understandable and the doctor’s findings on the basis of the medical examination were consistent with long-term effects of the acts of torture described by the applicant.
On 28 May 1999 the Hague Regional Court rejected the fifth appeal filed by the applicant against the decision to place him in aliens’ detention with a view to his expulsion. It held, inter alia:
“The Regional Court considers as regards the issue of diligence <as to the applicant’s expulsion> that the alien could not be expelled earlier on grounds of the requests filed by him for admission as a refugee and <requests for an> for the issue of an injunction against his expulsion.
It is true that the <applicant’s> placement in aliens’ detention has now exceeded a period of six months. However, the Regional Court is of the opinion that the applicant is partly to blame for this long duration. Indeed, a third request for asylum has been filed in the meantime and as long as no decision has been taken on that request, no acts can be undertaken aimed at the alien’s expulsion. In the court’s opinion, the <State Secretary> cannot be blamed for the fact that these matters a long time.
Noting the contents of the case-file and the <State Secretary’s> submissions during the hearing, the Regional Court finds that in casu there are sufficient prospects for the applicant’s expulsion. Account has been taken in particular of the fact that the alien was presented to the Turkish authorities on 25 March 1999 and that the latter have taken the application for an laissez-passer into consideration.
Therefore, at this juncture the Regional Court sees no reason for finding that the placement in aliens’ detention, in all reasonableness, can no longer be regarded as justified.”
On 24 June 1999 the applicant filed a sixth appeal against the decision to place him in aliens’ detention. This appeal was rejected by the Hague Regional Court on 8 July 1999.
By letter of 8 July 1999 the applicant’s lawyer requested the Hague Regional Court to adjourn the hearing on the applicant’s appeal and injunction request filed on 14 April 1999 scheduled for 9 July 2000, as for various reasons set out in her letter she had not yet had an adequate opportunity to prepare satisfactorily the case with the applicant
On 27 July 1999 the State Secretary requested the Hague Regional Court to suspend the examination of appeals, including requests for injunctions against expulsions filed by asylum seekers of Kurdish origin, as it had appeared that two such asylum seekers had encountered serious problems after they had been expelled to Turkey.
On 17 August 1999 the applicant filed a seventh appeal against the decision to place him in aliens’ detention.
On 31 August 1999 the State Secretary informed the Dutch Parliament that, given reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsions of Turkish nationals of Kurdish origin. On the same day, the Hague Regional Court heard the applicant’s appeal of 17 August 1999, declared it founded and lifted the detention order. The applicant was consequently released from aliens’ detention.
On 1 October 1999, following a hearing held on 9 July 1999, the Acting President of the Hague Regional Court rejected the applicant’s appeal against the decision of 12 April 1999 as well as the applicant’s request for an injunction against his expulsion. The President held:
“6. It must be assumed at the outset that the situation in Turkey is not such that aliens coming from that country can be considered in general and automatically as refugees. The applicant must therefore make out a plausible case that there exists facts and circumstances directly relating to him personally that justify his fear of persecution within the meaning of refugee law.
The applicant has not succeeded in doing so. In agreement with the <State Secretary> the President finds that no credence can be attached to the alleged acts of torture. These acts were raised by the applicant for the first time in the context of his third asylum request as an essential basis for that request, whereas it remains unexplained why he scarcely devoted any attention to this <element> during his interviews held on 26 July 1995 and 9 October 1998. Also, in the context of his opposition to the decision of the Regional Court of 9 March 1998 he entirely passed over the acts of torture which he now puts forward. The medical reports submitted do not enhance the credibility of his allegations. The note of the medical adviser contains only a reproduction of the subjective (not objectively verifiable) account of the applicant, and his conclusion that the scars “could fit” the alleged acts of torture does not provide a decisive answer.
The question to what extent the applicant’s account is comparable to that of his two cousins has already been examined in the decision of this court of 10 March 1999. Unlike the cited cousins, the applicant has not or hardly been politically active, so that no reliance on the principle of equality can be placed. It has also not been established that the applicant would have become involved in any way with the political acts of his cousins.
7. Having regard to the above, the President finds that the <State Secretary> in the challenged decision has justly maintained his refusal to grant the applicant asylum.
8. Pursuant to Article 3 of the Convention it must be examined whether it is plausible that the applicant will face a real risk of being subjected to torture, or to inhuman or degrading treatment or punishment.
Having regard to consideration 6. it has not been established that the forced return of the applicant to Turkey would result in a violation of Article 3 of the Convention.
9. Neither have compelling reasons of a humanitarian nature appeared on grounds of which the <State Secretary> could in all reasonableness not deny a residence permit.”
On 16 December 1999 the State Secretary informed the Dutch Parliament that, given the results of an investigation into the facts forming the basis for the temporary suspension of expulsion of Turkish nationals of Kurdish origin, the suspension of expulsion of persons belonging to this category had been lifted again.
The admission, residence and expulsion of aliens were regulated at the material time by the 1994 Aliens Act (Vreemdelingenwet), the Regulation on Aliens (Voorschrift Vreemdelingen) and the 1994 Aliens Act Implementation Guidelines (Vreemdelingencirculaire). On 1 April 2001 the 2000 Aliens Act entered into force, replacing the 1994 Aliens Act.
The Netherlands authorities pursue a restrictive immigration policy in view of the high population density in the Netherlands and the problems to which this gives rise. Admission is only granted on the basis of treaty obligations such as under the Geneva Convention Relating to the Status of Refugees of 28 July 1951, if the individual’s presence serves an essential Dutch interest or if there exist compelling reasons of a humanitarian nature.
This policy is laid down, inter alia, in the 1994 Aliens Act Implementation Guidelines, which is a body of directives drawn up and published by the Ministry of Justice.
Under Article 15 of the 1994 Aliens Act, aliens may be admitted as refugees if they come from a country where they have well-founded reasons to fear persecution on the grounds of their religious, ideological or political convictions or their nationality, or on grounds of membership of a particular racial or social group. In Dutch law, the term “refugee” is interpreted on the basis of the categories of persons referred to in Article 1 of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as amended by the Protocol of 31 January 1967.
Pursuant to Article 32 § 1 (a) of the 1994 Aliens Act, an alien who has applied for admission as a refugee cannot be expelled pending proceedings on an objection filed against a first negative decision, unless it is clear beyond reasonable doubt that there is no danger of persecution within the meaning of Article 15 of the 1994 Aliens Act. If the Minister has decided that expulsion should not be suspended pending the objection proceedings, expulsion may nevertheless by prevented by obtaining an interim measure to this effect from the President of the Hague Regional Court.
An appeal against a rejection of an objection against a refusal to grant admission as a refugee may be filed with the Hague Regional Court. No further appeal lies against the final decision taken by this court.
An alien who has been granted entry to the Netherlands but is not or is no longer eligible for admission is obliged to leave the country pursuant to Article 15d § 2 of the 1994 Aliens Act. If he or she does not leave voluntarily, expulsion may follow (Article 22 § 1 of the 1994 Aliens Act).
Article 26 of the 1994 Aliens Act, insofar as relevant, provides:
“1. Where the interests of public order, public peace or of national security so require, the following persons can be placed in aliens’ detention:
a. alien whose expulsion has been ordered;
b. aliens in respect of whom there are serious reasons for expecting that their expulsion will be ordered;
c. aliens who are not entitled to residence in the Netherlands under Articles 8-10 <of the Aliens Act>, pending a determination of a request for a temporary or permanent residence permit or a request for admission as refugee.
2. Placement in aliens’ detention will not be ordered when - and will be terminated as soon as - the alien indicates that he wants to leave the Netherlands and has the possibility to do so.
3. A placement in aliens’ detention under the first paragraph under b. or c. shall in no case exceed four weeks.”
An alien who does not have any identity papers and whose expulsion has been ordered can, in principle, remain in aliens’ detention for an unlimited period of time. The lawfulness of a placement in aliens’ detention can, however, be challenged before the Hague Regional Court. If this court concludes that there are no prospects of expulsion within a reasonable time, it may order that the measure of placement in aliens’ detention be lifted.
According to Dutch case-law, the interest of an alien in being released from aliens’ detention increases with the passage of time. Where a placement in aliens’ detention exceeds a period of six months, it is generally held that the alien’s interest in being released is greater than the interest in keeping him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, it may be the case that this point in time is attained at an earlier or later point in time than the six months period have passed. It can be later where the alien frustrates the determination of his identity or nationality and it can be sooner where the alien concerned is unable to obtain travel documents for reasons beyond his control.
Article 34a of the 1994 Aliens Act provides as follows:
“1. A measure taken under this Act which has the effect of a limitation on freedom of movement or deprivation of liberty shall, for the purposes of Article 8:1 § 1 of the Administrative Law Act, be considered as being on a par with a decision.
2. The court shall examine a first appeal against a decision having the effect of a deprivation of liberty within two weeks, either during the preliminary examination under Article 8:44 § 1 of the Administrative Law Act or during a court hearing.
3. If the appeal is directed against a decision referred to in the second paragraph, the court shall determine the time of the trial proceedings without delay and in any event not later than two weeks after the date of transmission of the appeal. In deviation from Article 8:42 § 2 of the Administrative Law Act, the delay referred to in that Article cannot be prolonged.
4. The Regional Court hands down its written decision, unless immediately at the court hearing a decision is handed down orally, within two weeks following the close of the investigation <at the hearing>. By way of deviation of Article 8:66, second paragraph, of the General Administrative Law Act, the delay referred to in that provision cannot be extended.
5. Where the court finds that the applicant or execution of the measure is contrary to the law or after weighing the interests involved cannot in all reasonableness be regarded as justified, it declares the appeal <filed> under this provision founded and orders that the measure be lifted or a change effected to the manner of its execution.”
Although no appeal lies against a decision of the Regional Court on the lawfulness of detention under the Aliens Act, an appeal to the Court of Appeal (gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in unlawful detention for expulsion purposes. Furthermore, appeals have been admitted in cases where it was alleged that, in the proceedings before the Regional Court, fundamental legal principles (fundamentele rechtsbeginselen) have been disrespected (cf. The Hague Court of Appeal, 12 November 1998, Nederlandse Jurisprudentie 1999, nr. 127; The Hague Court of Appeal, 7 April 2000, Jurisprudentie Bestuursrecht 2000, nrs. 147; and The Hague Court of Appeal, 18 May 2000, Jurisprudentie Bestuursrecht 2000, nr. 142).
There is no time-limit for filing an appeal against an order for placement in aliens’ detention and in principle a person placed in aliens’ detention can file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens’ detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens’ detention as from the date of the last judicial decision taken on this point.
Pursuant to Article 86 of the Aliens Decree, the Minister of Justice must send a notification to the competent court when an alien has spent four weeks in aliens’ detention where the person concerned has not himself filed an appeal against this decision. This notification is considered on a par with a first appeal within the meaning of Article 34a § 2 of the 1994 Aliens Act.


ITEMID: 001-109062
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF DIMITAR IVANOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country)
JUDGES: Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1974 and lives in Dinkata.
7. On 6 October 1994 the applicant confessed before the police to committing robbery together with two other individuals earlier that day. The stolen goods were confiscated by the police that same day.
8. On 4 October 1995 criminal proceedings against the applicant were formally instituted.
9. It appears that thereafter the case remained dormant until 5 October 2004 when witnesses were questioned.
10. In the period between 2001 and 2004 the applicant left the country on a number of occasions and returned each time.
11. On 6 October 2004 the applicant, who was abroad at the time, was appointed an ex officio lawyer and was charged in absentia with robbery.
12. The first hearing of the case was held on 14 January 2005 in the applicant’s presence.
13. In a judgment of 12 April 2006 the Pazardzhik District Court found the applicant guilty and sentenced him to one year’s imprisonment, suspended for three years.
14. Following an appeal lodged by the applicant’s co-defendant, in a final judgment of 12 October 2006 the Pazardzhik Regional Court upheld the lower court’s judgment including the applicant’s conviction and sentence.
15. On 9 March 2007 the Pazardzhik Regional Police Directorate ordered the imposition of a ban on the applicant leaving the country on account of his conviction and pending his rehabilitation. It relied on section 76(2) of the 1998 Bulgarian Identity Papers Act.
16. The applicant contested the order arguing that he was unable to provide for his family in Bulgaria and that he had employment opportunities in Serbia.
17. On 25 May 2007 the applicant was refused passage by a border police official while attempting to leave Bulgaria in spite of the imposed prohibition.
18. By a final judgment of 10 October 2007 the Supreme Administrative Court upheld the prohibition. The court reasoned that it was within the administrative authority’s discretion to impose such a ban and that its assessment was not subject to judicial control. At the same time, it held that the law had been complied with in that such restriction could be imposed in cases where a conviction was in place and prior to the rehabilitation of the convicted person and that other factors, such as the impossibility to find employment in Bulgaria, were irrelevant.
19. The relevant domestic law and practice concerning travel bans on convicted individuals pending their rehabilitation is set out in the Court’s judgment in the case of Nalbantski v. Bulgaria, no. 30943/04, §§ 25-29, 10 February 2011.
20. The relevant statutory provisions concerning the rehabilitation of persons convicted with a suspended sentence are summarised in the abovecited Nalbantski judgment, § 30.
VIOLATED_ARTICLES: 13
6
P4
VIOLATED_PARAGRAPHS: 6-1
P4-2
VIOLATED_BULLETPOINTS: P4-2-2


ITEMID: 001-93119
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BUBLYK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1972 and lives in Munich, Germany.
5. In 1996 the applicant entered into an agreement with a private company, Skorpion, under which the latter was obliged to construct an apartment in a block house. Following insolvency proceedings instituted against this company, the applicant entered into a debt transfer agreement (“the agreement”) with a private company, KGD, (“the company”), under which the latter accepted responsibility for the obligations of the Skorpion company.
6. On 17 June 1999 the applicant instituted proceedings against the company in the Ivano-Frankivsk Court. She requested the court to declare a part of the agreement null and void and sought a ruling to oblige the company to fulfil the remainder of the agreement.
7. On 6 September 1999 the Ivano-Frankivsk City Court (“the City Court”) allowed the applicant’s claim.
8. On 16 November 1999 the Ivano-Frankivsk Regional Court quashed this decision and remitted the case for fresh consideration.
9. On 3 February 2000 the company lodged a counterclaim seeking termination of the agreement on the ground that the applicant had failed to comply with the agreement.
10. On 6 December 2001 the City Court rejected the applicant’s claim and allowed the counterclaim.
11. On 13 March 2002 the Ivano-Frankivsk Regional Court of Appeal (“the Court of Appeal”) upheld this judgment.
12. On 11 March 2004 the Supreme Court, following a cassation appeal by the applicant, quashed the decisions of the lower courts and remitted the case to the first-instance court for fresh consideration.
13. In the course of the proceedings, the applicant modified her claims on several occasions. Finally she amended her claims on 22 August 2005. She claimed property rights over the apartment in the house constructed by the company which was occupied by Mr and Mrs K and sought their removal. She also challenged the title documents on this apartment which had been issued to Mr and Mrs K.
14. On 8 August 2005 the City Court, following a request by the applicant, attached Mr and Mrs K.’s apartment. On 3 November 2005 the Court of Appeal upheld this ruling.
15. On 6 March 2006 the company withdrew its counterclaim.
16. On 7 March 2006 the City Court found against the applicant.
17. On 12 July 2006 the Court of Appeal upheld this judgment.
18. On 15 September 2006 the Supreme Court dismissed the applicant’s cassation appeal as unsubstantiated.
19. The applicant tried to appeal against the decisions given in her case under extraordinary proceedings. However her efforts were to no avail.
20. According to the records provided by the Government, in the course of the proceedings, of forty-five listed hearings, four hearings were adjourned due to the company’s representative’s failure to appear and six due to his requests for adjournment. The domestic courts took no steps to ensure his presence in court. Three hearings were adjourned because the judge sitting in the case was involved in other proceedings. Two hearings were adjourned at the applicant’s request and five because the applicant’s representative or lawyer failed to appear or at their request.
VIOLATED_ARTICLES: 6


ITEMID: 001-61720
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF RADOVANOVIC v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Just satisfaction reserved
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in Vienna in 1979 and lives at present in Serbia and Montenegro.
10. The applicant stayed with his parents, who are both citizens of Serbia and Montenegro and lawfully residing in Vienna, for about seven months after his birth in Austria. He then lived with his grandparents in the former Federal Republic of Yugoslavia, now Serbia and Montenegro. There he completed primary school, though he spent the yearly school holidays with his parents in Austria.
11. In 1989, at the age of 10 years, he came back to live with his parents and his sister in Austria, where he finished secondary school and completed a three-year vocational training as a butcher. During this time, he resided lawfully in Austria and, on 5 May 1993, he received an unlimited residence permit (unbefristeter Sichtvermerk).
12. On 30 July 1997 the Vienna Juvenile Court (Jugendgerichtshof) convicted the applicant of aggravated robbery and burglary and sentenced him to thirty months’ imprisonment, out of which twenty-four months were suspended with a probationary period of three years. It found that the applicant, on 29 January 1997, together with his co-accused born in 1980, had knocked down the victim with a perfume bottle and had stolen cash in the amount of 65,000 Austrian schillings (ATS). On 11 and 14 April 1997 they had attempted to steal another victim’s daily cash receipt by using a wheel nut tool. Still on 14 April 1997, they had broken into that victim’s car and had taken away his daily cash receipt and a cheque, totalling almost ATS 125,000. When fixing the sentence, the court considered as mitigating circumstances that the applicant had so far no criminal record, that he had admitted the offences and had partly made amends (Schadensgutmachung), and that in two instances the offences remained attempts. As aggravating circumstances the court considered the concurrence of two different offences, the amount of damage, the injury of the victim and the qualification of the burglary. The judgment became final in the absence of an appeal by the applicant.
13. On 30 September 1997 the Vienna Federal Police Office (Bundespolizeidirektion Wien) issued a residence prohibition of unlimited duration against the applicant. It referred to Section 18 §§ 1 and 2 (1) of the 1992 Aliens Act (Fremdengesetz) according to which a residence prohibition is to be issued against an alien, if he has been sentenced to more than three months’ imprisonment by final judgment of a domestic court.
14. The applicant served his prison sentence until 14 October 1997. Subsequently he was transferred to a detention centre with a view to his expulsion.
15. On 28 October 1997 the Vienna Public Security Authority (Sicherheitsdirektion) dismissed the applicant’s appeal. Noting that the applicant had lived for seven months after his birth in Austria and that, after his return from former Yugoslavia in 1989, he had continuously lived with his family in Austria for eight years, it found that the residence prohibition at issue constituted an interference with his right to private and family life. However, it was necessary to achieve the aims set out in Article 8 § 2 of the Convention, namely the prevention of disorder and crime and the protection of the rights of others. In particular, the applicant had committed aggravated robbery by using a weapon. Given the seriousness of the offences and the implied disrespect for physical safety and the property of others, no positive prognosis was possible. Therefore, the interest in issuing a residence prohibition of unlimited duration against the applicant prevailed over the applicant’s interest in staying in Austria.
16. On 11 November 1997 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He argued that the lower authorities had incorrectly established the facts and had failed to give sufficient reasons for their decisions. He stressed in particular that his family had already been residing lawfully in Austria for decades and that he had completed secondary school and vocational training, upon which he had legally worked as a butcher. Before his conviction by the Juvenile Court, the applicant had had no criminal record and the offences had been committed within a very short period of two and a half months. Since his grandparents had died in the meantime, he had no other relatives in Yugoslavia. The centre of his private and family life was exclusively in Austria. Referring to the Moustaquim and Beldjoudi judgments of the European Court of Human Rights, the applicant argued that the authorities had failed to comply with the Convention standards. In particular they had failed to balance correctly his interests in respect for his private and family life against public interests. There was no pressing need to issue an unlimited residence prohibition against him.
17. On 28 November 1997 the Constitutional Court declined to deal with the matter and remitted the complaint to the Administrative Court (Verwaltungsgerichtshof).
18. On 4 December 1997 the Administrative Court dismissed the complaint. It found that the Public Security Authority had duly considered the applicant’s private and family situation and had correctly assessed the interests involved when issuing the residence prohibition. Furthermore the Administrative Court found that in the cases of Moustaquim and Beldjoudi the persons concerned had had stronger family ties in the host country than the applicant. The decision was served on the applicant’s counsel on 16 January 1998.
19. On 4 February 1998 the applicant was expelled to the former Federal Republic of Yugoslavia, now Serbia and Montenegro.
20. On 14 October 1997 the applicant requested the Vienna Federal Police Office to revoke the residence prohibition issued against him in view of Section 38 § 1 (4) of the 1997 Aliens Act, which was to enter into force on 1 January 1998. Pursuant to that provision, a residence prohibition may not be issued “where a foreigner has grown up in Austria from an early age on and has been lawfully residing there for many years”. Section 114 § 3 of the 1997 Aliens Act establishes that if a residence prohibition has not expired at the date of the entry into force of the 1997 Aliens Act, the residence prohibition has to be regarded as a residence prohibition issued under the 1997 Aliens Act. However, the residence prohibition has to be revoked if it was not lawful to issue it under the 1997 Aliens Act.
21. On 25 March 1998 the Federal Police Office dismissed this request. It noted in particular that the applicant did not comply with the requirements of the above provision, since he had not grown up in Austria within the meaning of Section 38 § 1 (4). Therefore, the imposition of the residence prohibition was also lawful under the 1997 Aliens Act.
22. In his appeal of 14 April 1998 the applicant complained that the Federal Police Office had incorrectly applied the provision at issue.
23. On 27 April 1998 the Vienna Public Security Authority dismissed his appeal. It noted that the provision at issue required that a foreigner had commenced growing up in Austria at the age of two or three years or even younger, whereas the applicant had only been in Austria during the first seven months of his life and had come back when he was already ten. Therefore, he clearly did not comply with that provision.
24. The applicant did not appeal to the Constitutional Court and the Administrative Court.
VIOLATED_ARTICLES: 8


ITEMID: 001-84776
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FEDOROV AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides
TEXT: The applicants, Mr Rudolf Viktorovich Fedorov, Mrs Sofiya Mikhaylovna Fedorova, Mrs Lyudmila Dmitriyevna Fedorova and Mr Andrey Rudolfovich Fedorov, are Russian nationals who were born in 1947, 1949, 1927 and 1983 respectively and live in Izhevsk, the Republic of Udmurtia.
The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 October 1986 one of the applicants, Mr R. Fedorov, was called up by the military authorities to take part in the emergency operations at the site of the Chernobyl nuclear plant disaster. The applicant was engaged in the operations until 30 December 1986 and, as a result, suffered from extensive exposure to radioactive emissions. In 1997, after an expert opinion established a causal link between the applicant’s disability and his involvement in the Chernobyl events, Mr R. Fedorov was put on a waiting list for additional housing. As he was not offered any, in 2004 he brought court proceedings against the Ministry of Finance, Russian Government and the Ministry of Construction and Architecture.
On 5 April 2004 the Oktyabrskiy District Court of Izhevsk partly found in the applicant’s favour and ordered the Ministry of Construction and Architecture to grant the applicant additional housing in a form of a separate room. Both parties appealed against the judgment (the applicant requested to be provided with a separate flat instead of a room).
On 8 June 2004 the Supreme Court of the Republic of Udmurtia upheld the judgment and on the same day it became enforceable.
On 28 June 2004 the Bailiff’s Service instituted enforcement proceedings.
On 5 August 2004 Mr R. Fedorov’s representative in the domestic proceedings, Mr G., applied to the Bailiff’s Service in order to withdraw the writ of execution.
On 6 August 2004 the writ of execution was returned to the applicant’s representative and the enforcement proceedings were terminated due to the applicant’s withdrawal of the writ.
Subsequently, the applicant applied to the court requesting it to amend the way of the execution of the judgment of the Oktyabrskiy District Court of Izhevsk of 5 April 2004.
On 22 September 2004 the Oktyabrskiy District Court of Izhevsk changed the way of execution of the judgment of 5 April 2004 and ordered the defendant to pay the applicant 281 099, 70 Russian roubles (RUB) for the purchase of additional housing in a form of a separate room with a living surface of 18 m².
On 21 October 2004 the applicant sent the new writ of execution to the Bailiff’s Service.
On 20 April 2005 the applicant’s wife, on his behalf, concluded a sale-purchase agreement of a separate room with a living surface of 18m².
On 26 April 2005 the agreement was registered by the Property Department of the Federal Registration Service of the Republic of Udmurtia in accordance with the official procedure and the applicant received an ownership certificate for the room.
On 27 April 2005 the sum awarded to the applicant for the purchase of the housing was transferred to the seller’s account.


ITEMID: 001-98755
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF DERDA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 4. The applicant was born in 1959 and lives in Bydgoszcz.
5. In 1948 the applicant's legal predecessor, his great-grandfather Mr Roman Pawłowski, lodged an application under Article 7 of the Decree of 26 October 1945 on real property in Warsaw for temporary ownership of a plot of land situated in Warsaw. This application remained unanswered.
6. In 1981 the Bydgoszcz District Court declared that the applicant had acquired 2/12 of his late great-grandfather's estate and had thereby become his legal successor.
7. On 20 December 1988 the applicant, together with his mother, Ms Z. Berent-Derda, another legal successor of Mr Pawłowski, reiterated the request submitted in 1948.
8. In 1993 the Board of Association of Districts of Warsaw City (Zarząd Związku Dzielnic-Gmin Warszawy), by a decision of 17 June, declared that ownership of the property concerned had been acquired by the City of Warsaw Taxi Enterprise. The applicant and Ms Berent-Derda appealed, pointing out that the decision was unlawful because the request submitted in 1948 and reiterated in 1988 had already been pending before the authorities at that time.
9. On 23 February 1995 the Land Administration Division of the Warsaw Municipality found that it was not competent to examine the case. The case file was subsequently transmitted, on an unknown later date, to the Board of Warsaw City (Zarząd Miasta st. Warszawy).
10. On 12 June 2001 the Board of Warsaw City examined the request and dismissed it in its part concerning a surface area of 2,205 square metres. Apparently the plot had been divided, on an unspecified earlier date, into two parts, the other part covering 478 square metres, with the State Treasury listed as its owner in the local land register. The applicant appealed. On 21 September 2001 the Local Government Board of Appeal (Samorządowe Kolegium Odwoławcze) quashed the contested decision and remitted the case.
11. On 11 October 2001 the applicant and his mother complained to the Local Government Board of Appeal about the City Board's failure to issue a decision regarding the plot of 478 square metres. On 18 February 2002 they submitted an identical complaint, concerning the area of 2,205 square metres. On 21 January 2002 the Local Government Board of Appeal, in reply to the complaint of 11 October 2001, fixed a time-limit for a decision on the merits to be given by the Warsaw Board within thirty days. On 3 March 2002 the applicant and his mother reiterated their complaint.
12. On 22 March 2002 the Local Government Board of Appeal quashed the decision of 17 June 1993 (see paragraph 8 above) by which the ownership of the plot had been given to the City of Warsaw Taxi Enterprise. On 10 April 2002 the Mayor requested the Board to reconsider the case.
13. By a decision dated 25 June 2002, the Local Government Board of Appeal found that the applicant's complaint of 18 February 2002 about the excessive length of the proceedings in the part concerning the establishing of ownership of the plot was unfounded as the first-instance authority was conducting investigatory proceedings.
On 25 June 2002 the Local Government Board of Appeal dismissed the applicant's complaint concerning the Warsaw's Board failure to issue a decision.
14. On 8 July 2002 Ms Z. Berent - Derda complained to the Supreme Administrative Court about the authorities' failure to give a decision on the merits of the case. On 13 August 2002 the Board fixed the time-limit for giving a decision on the merits of the case for 30 November 2002.
15. On 5 December 2002 the Supreme Administrative Court scheduled for 8 January 2003 a hearing to be held in the proceedings instituted by the complaint about the authorities' failure to give a decision on the merits.
16. On 7 January 2003 the Warsaw Municipal Office (Urząd Miasta st. Warszawy) stayed the proceedings, having regard to the fact that the proceedings to establish the owner of the property were pending. The applicant appealed.
17. On 28 February 2003 the Supreme Administrative Court examined the applicant's mother's complaint about the authorities' failure to give a decision. It noted that as the proceedings had been stayed by a decision of 7 January 2003, it could not be said that the authorities had failed to act in the case. The proceedings instituted by the complaint were therefore discontinued.
18. Subsequently, the proceedings concerning the merits of the case were resumed on an unspecified date.
19. On 12 January, 17 February and 24 March 2003 the Local Government Board of Appeal requested the Mayor to show that he had standing to be a party to the proceedings, concerning the ownership of the plot by the Taxi Enterprise. There was no reply to these requests.
20. On 28 May 2003 the Mayor withdrew his request for the case to be reconsidered. Accordingly, on 11 July 2003 the Local Government Board of Appeal discontinued the proceedings. The decision of 22 March 2002 (see paragraph 12 above) became final.
21. On 22 March 2003 the applicant's mother complained to the Local Government Board of Appeal about the first-instance authority's failure to issue a decision. She reiterated her complaint on 2 April and 25 May 2003.
22. On 26 April 2004 the Mayor of Warsaw again stayed the proceedings, having regard to the fact that in the absence of a valid land development plan for the city it was impossible to decide on the applicant's request.
23. The applicant appealed. By decisions of 18 and 25 May 2004 the Local Government Board of Appeal quashed the decision to stay the proceedings, holding that the lack of the local land development plan was not a valid reason for the proceedings to be stayed. The Mayor appealed. On 28 July 2005 the Regional Administrative Court rejected his appeal.
24. On 2 February 2006 the applicant and his mother submitted to the Regional Administrative Court their request for a decision ordering the firstinstance authority to decide the case. On 8 March 2006 they requested that court to impose a fine on the Mayor for her failure to act diligently in the case.
25. On 24 March 2006 the Mayor dismissed the applicant's motion for the property to be restored to the applicant, his mother and other heirs of Mr Roman Pawłowski.
26. On 7 June 2006 the Warsaw Regional Administrative Court examined the complaints lodged with it on 8 March 2006 and refused to impose a fine on the Mayor, having observed that in the meantime the decision on the merits had been given on 24 March 2006 and that a fine should serve a disciplinary, not punitive, purpose.
27. The Mayor's decision on the merits of the case, given on 24 March 2006 (see paragraph 26 above) was quashed on 24 July 2006 by the Local Government Board of Appeal and the case remitted for reconsideration. The Board observed that the Mayor had obviously not shown any willingness to deal with the case in an appropriate manner and that the contested decision was in breach of Article 7 of the 1945 Decree (see paragraph 5 above). The applicant appealed, arguing that the second-instance authority should have decided on the merits of the case and that the proceedings had lasted an unreasonably long period of time.
28. On 1 August 2006 the applicant withdrew his complaint of 2 February 2006 (see paragraph 24 above) about the authorities' failure to decide the case, having regard to the fact that after the decision on the merits of his request, given on 24 March 2006, the complaint about the failure to act had become devoid of purpose.
29. On 4 December 2006 the Warsaw Regional Administrative Court dismissed the applicant's appeal against the decision of 24 July 2006 (see paragraph 27 above).
30. On 20 August 2007 the applicant again complained to the Local Government Board of Appeal about the Mayor's failure to issue a decision on the merits of his request. On 11 September 2007 the Board found that the complaint was wellfounded and ordered the Mayor to give a decision within two months.
31. On 19 November 2007 the Mayor of Warsaw again refused to allow the applicant's request to be granted the right of perpetual use in respect of the property concerned. The applicant appealed. On 1 April 2008 the Local Government Board of Appeal quashed the contested decision, having noted again that it violated the substantive provisions of the 1945 Decree, and ordered that the merits of the case be reexamined.
32. By a subsequent decision of 21 July 2008 the Mayor granted the applicant and his mother a right to perpetual use in respect of the part of the plot concerning a surface area of 2,205 square metres. The City of Warsaw Taxi Enterprise appealed.
33. On 23 October 2008 the Local Government Board of Appeal found that the Enterprise had no standing in the proceedings. It held that therefore the decision of 21 July 2008 was the final decision in the proceedings.
34. On 5 December 2008 the Enterprise appealed against this decision to the Regional Administrative Court.
35. On 16 September 2009 the Warsaw Regional Administrative Court dismissed its appeal.
36. The relevant domestic law is summarised in detail in the judgment Berent-Derda v. Poland, no. 23484/02, §§ 27-35, 1 July 2008.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85864
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: CHAMBERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Geoffrey Chambers, is a British national who was born in 1941 and lives in Essex. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 20 August 1996. On 13 February 2002, the applicant made a claim for widows’ benefits. On 8 March 2002, the applicant was informed that his claim had been disallowed as he was not a woman. On 18 March 2002 the applicant made a request for reconsideration. On 1 August 2002 his claim was reconsidered but the decision remained unchanged. The applicant appealed and a Tribunal hearing was held on 22 October 2002. His claim was dismissed on 18 June 2003.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-102784
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: STEMPNIEWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: The applicant, Mr Lucjan Stempniewicz, is a Polish national who was born in 1938 and is currently serving his sentence in Kłodzko Prison. He was represented before the Court by Ms B. Słupska-Uczkiewicz, a lawyer practising in Wrocław. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant has been detained in Kłodzko Prison continuously since 24 March 2004.
The applicant submitted that on an unspecified date he had been detained together with four other prisoners in a cell which measured 25 m². The cell in question was not ventilated and the furniture inside was shabby. The cell was overcrowded to the point that the applicant had to lie in his bed almost all day. He had only one hour of outdoor exercise per day and a shower once a week. The applicant also maintained that the quality of food served in prison was very bad, the bed linen was washed only infrequently and water cuts occurred frequently.
In his recent letters to the Court, the applicant made general statements that living conditions and medical care in Kłodzko Prison were bad. He claimed that his cell was overcrowded and that he had no choice but to lie in bed all day long.
The Government furnished the Court with a detailed record of the applicant’s detention in Kłodzko Prison. They submitted that the space per person in the applicant’s cells ranged from 2.2 to 2.9 m² over a total period of thirteen months, whereas for the remaining time, the applicant had more than 3 m² of space. More recently, the Government submitted that on an unspecified date, presumably in November 2009, the applicant had been placed in a cell in which the statutory minimum standard of 3 m² per person was respected.
Between 2004 and 2007 the applicant lodged several complaints with the penitentiary authorities regarding various aspects of his detention. He did not complain to the penitentiary authorities in connection with the living conditions as regards the more recent period of his detention in Kłodzko Prison. The applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights.


ITEMID: 001-108366
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: GEDERIM v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy
TEXT: The applicant, Mr Aleksandr Evgenyevich Gederim, is a Ukrainian national who was born in 1990 and lives in Odessa. On 5 February 2010 the applicant authorised Mrs Tatyana Gederim, his mother, to represent him before the Court. The applicant’s mother in her turn was represented by Mr Andrey Kostin, a lawyer practising in Odessa, and by Mrs Larysa Goncharuk.
The facts of the case, as submitted by the applicant, may be summarised as follows.
According to the applicant’s mother, on 9 November 2003 she lodged a complaint with the Suvorivsky District Police Department (Суворівський районний відділ Одеського міського управління Міністерства внутрішніх справ України в Одеській області) that a certain teenager had beaten up the applicant, a minor at that time. No copy of this complaint is available.
On 10 November 2003 the applicant tried to commit suicide by jumping from the roof of a multi-storey building. He survived, but suffered numerous serious injuries, and is now physically disabled.
According to the applicant, he was being bullied by a certain Y., who extorted money from him and beat him up.
According to the Government, the fact that the applicant had fallen from the roof was noted in a register of reported offences of the Suvorivsky District Police Department (журнал реєстрації повідомлень про злочини) and all the necessary investigations were carried out. It was decided not to institute criminal proceedings.
On 23 July 2004 the Suvorivsky District Police Department, following “an additional verification”, again decided not to institute criminal proceedings.
On 28 July 2005 this decision was quashed by a prosecutor, allegedly following a complaint by the applicant’s mother on 22 July 2005, and the case was remitted for additional investigation. On the same date the applicant’s mother was informed about it by letter. No copies of the decisions taken were attached to that letter.
By letter of 3 February 2006 the applicant’s mother was informed that on 12 December 2005 and 30 January 2006 the Suvorivsky District Prosecutor’s Office had quashed the refusals to institute criminal proceedings, taken on an unknown date and on 30 January 2006, and remitted the case for further investigation. No copies of the decisions taken were attached.
On 15 February 2006 the Suvorivsky District Police Department again refused to institute criminal proceedings for lack of evidence of a crime. On the same date the Suvorivsky District Police Department informed the applicant’s mother that “following her complaint registered on 22 July 2005, it had been decided not to institute criminal proceedings” without indicating any dates or attaching any decisions.
On 5 October 2009 the applicant’s mother, after an inquiry from this Court, requested the Suvorivsky District Prosecutor’s Office to provide her with copies of the refusals to institute criminal proceedings. In reply, she was informed that on 15 January 2009 the case file materials had been destroyed, as the period they were kept in storage had expired. No copies of the above decisions are consequently available.
After the case had been communicated to the respondent Government, on 17 April 2010 a police officer questioned the applicant. The Government state that this questioning took place on the initiative of officials of the Ministry of the Interior of Ukraine, after the Government Agent at the ECHR had, in order to prepare observations on the present case, requested the Ministry to provide all materials related to the case.
The Government submitted a photocopy of the applicant’s explanations, written by the police officer and signed by the applicant. It is mentioned there that the applicant owed Y. a certain amount of money. The applicant spent some time at a computer club, met Y. on his way back, then climbed up to the roof of a certain building, and after some time jumped down. Nobody pushed the applicant or incited him to jump from the roof.
In a letter of 9 February 2011 the applicant submitted that he had indeed been visited by two policemen, who had questioned him and his mother separately. However, the applicant states that because of his poor vision and the illegible handwriting he did not read the text written by the police officer, but signed it believing that the police officer had noted the applicant’s words correctly.
According to the applicant, at the material time he was being constantly bullied by Y. and V. They beat and humiliated him, so he decided to commit suicide.
“...A resolution by an investigator or body of inquiry refusing to initiate criminal proceedings can be appealed against to the relevant prosecutor and, if that ruling was issued by the prosecutor, to a higher prosecutor. An appeal shall be lodged by the person whose interests have been infringed or by his or her representative within seven days of the date of receipt of the ruling.
A resolution by an investigator or body of inquiry refusing to initiate criminal proceedings can be appealed against by the person whose interests have been infringed or by his or her representative to court under procedure prescribed by Article 236-1 of this Code...”
“Within seven days of notification, a decision of a body of inquiry, investigator or prosecutor not to institute criminal proceedings can be appealed against by an interested party or their representative to the district (town) court within whose area of jurisdiction the authority which took the decision falls...”
“An appeal against a decision of a body of inquiry, investigator or prosecutor not to institute criminal proceedings shall be examined [by a court] sitting with a single judge within ten days of being lodged.
The judge shall request the materials on the basis of which the decision not to institute criminal proceedings was made, examine them, and inform the prosecutor and the appellant of the date on which the hearing of the appeal has been listed.
Having examined the case, the judge ... may take one of the following decisions:
1) to set aside the decision not to institute criminal proceedings and to remit the case for further preliminary inquiries...
2) to dismiss the complaint...”


ITEMID: 001-90220
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: NEZIROVIČ v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 1. The applicant, Mr Jusuf Nezirović, is a Slovenian national who was born in 1961 and lives in Trbovlje. He was represented before the Court by Mr Boštjan Verstovšek, a lawyer practising in Celje.
2.
3. On 12 October 1999 the applicant was injured in an industrial accident. The applicant’s employer had taken out insurance with the insurance company ZT.
4. On 12 September 2001 the applicant instituted civil proceedings against ZT in the Ljubljana District Court (Okrožno sodišče v Ljubljani) seeking damages in the amount of 8,590,967 Slovenian tolars (approximately 35,800 euros) for the injuries sustained.
Between 1 October 2001 and 19 January 2006 the applicant lodged seven preliminary written submissions and/or adduced evidence.
Between 3 September 2003 and 21 September 2005 he made four requests that a date be set for a hearing. In letters to the applicant of 11 September 2003 and 28 June 2004, the judge explained that his case was not yet at the top of the list of cases for examination by the court.
Between 15 December 2004 and 27 September 2006 four hearings were held. One hearing, scheduled for 25 November 2005, was adjourned at the applicant’s request.
During the proceedings the court appointed a medical expert. The court also sought an additional opinion from the appointed expert.
On 27 September 2006 the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 16 November 2006.
5. On 30 November 2006 the applicant appealed to the Ljubljana Higher Court (Višje sodišče v Ljubljani).
On 9 May 2007 the court allowed the applicant’s appeal in part and increased the amount of damages awarded.
The judgment was served on the applicant on 31 May 2007.
6. On 22 June 2007 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
7. On 22 August 2007 the Ljubljana Higher Court dismissed the applicant’s request for the correction of an alleged material error in its judgment.
The proceedings before the Supreme Court would appear to be still pending.
8. On 27 February 2008, while the proceedings were pending before the Supreme Court, the applicant lodged a supervisory appeal with the Ljubljana District Court, in accordance with section 6 of the Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette, no. 49/2006 - “the 2006 Act”). In his supervisory appeal, the applicant explained that the proceedings had begun on 12 September 2001 and were still pending. As a consequence, his right to a trial within a reasonable time had been violated. He requested that the proceedings on his appeal on points of law be expedited and that a decision be delivered by the end of 2008 at the latest.
There is no decision as to this supervisory appeal in the case file.
9. On 27 March 2008 the applicant lodged a new supervisory appeal with the Ljubljana District Court, in which he described more thoroughly the processing of his case by the courts and alleged that his right to a trial within a reasonable time had been breached.
10. On 10 April 2008 the president of the Supreme Court, to whom the supervisory appeal had been transferred, rejected it under section 6, subsection 5, of the 2006 Act. He noted that case had been submitted to the Supreme Court on 13 December 2007. Having regard to the measures available to him under the 2006 Act, he concluded that the proceedings could not be expedited. He added, however, that he had taken steps to eliminate the systemic delays at the Supreme Court, namely the employment of additional judges and legal secretaries.
11. On 25 April 2008, relying on the same grounds as in his supervisory appeal, the applicant lodged a motion for a deadline with the Supreme Court. He requested that the case be decided within a month.
12. On 9 May 2008, referring to his findings in the decision rejecting the supervisory appeal, the president of the Supreme Court rejected the motion for a deadline as unfounded, on the basis of section 11, subsection 3, of the 2006 Act.
13. Following the judgment in Lukenda v. Slovenia (no. 23032/02, 6 October 2005), and decision no. U-I-65/05 of the Constitutional Court (22 September 2005), both of which bound the Slovenian State to establish conditions in which the right to a trial without undue delay was to be afforded, the Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the so-called “Lukenda Project”. Its goal is the elimination of backlogs in Slovenian courts and prosecutors’ offices by the end of 2010, by providing for structural and managerial reform of the judiciary.
14. The 2006 Act (see paragraph 8 above), the preparation of which was part of the Lukenda Project, was enacted by the Slovenian Parliament on 26 April 2006. It was published in the Official Gazette on 12 May 2006 and came into force on 17 May 2006. On 1 January 2007 it became operational, which means that it has been implemented since that date.
15. Section 3 of the 2006 Act provides for two remedies to expedite pending proceedings - a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog) - and, ultimately, for a claim for just satisfaction in respect of damage sustained on account of the undue delay (zahteva za pravično zadoščenje).
16. Section 4 defines the criteria that domestic authorities should take into account when assessing such complaints:
“When deciding on the legal remedies under this Act, the circumstances of the particular case shall be taken into account, namely: its complexity in terms of facts and law; actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings; compliance with rules on the set order for resolving cases, or with statutory deadlines for fixing preliminary hearings or for giving court decisions; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged; the nature and type of case and its importance for a party.”
17. The supervisory appeal is governed by sections 5 and 6, which, in so far as relevant, provide:
“(1) If a party considers that the court is unduly protracting the decision-making, he or she may lodge a supervisory appeal in writing before the court hearing the case; the decision thereon is taken by the .... president of the court (hereinafter ‘the president of the court’).
(2) For the purposes of decision-making concerning the protection of the right to a trial without undue delay, the supervisory appeal shall contain the following elements:
...
– indication of circumstances or other particulars concerning the case, which demonstrate that the court is unduly protracting the decision-making;
...
“(1) If the supervisory appeal is manifestly unfounded having regard to the timetable for resolving the case concerned by the supervisory appeal, the president of the court shall dismiss the appeal by a ruling.
(2) If the supervisory appeal does not contain all the required elements referred to in section 5(2) of this Act, the president of the court shall dismiss it by a ruling. No appeal shall lie against that ruling.
(3) If no ruling as provided for in paragraphs 1 or 2 of this section is given, the president of the court shall, in the framework of his court management competence under the statute governing the court system, forthwith request the .... judge or chair of a court panel (hereinafter ‘the judge’) to whom the case has been assigned for resolution to submit a report indicating reasons for the duration of proceedings, not later than fifteen days after receiving the request of the president of the court or after obtaining the file, if necessary for drawing up the report. The report shall include the declaration in respect of criteria referred to in section 4 of this Act and the opinion on the time-limit within which the case may be resolved. The president of the court may also require the judge to submit the case file if he assesses that, in the light of allegations of the party indicated in the supervisory appeal, its examination is necessary.
(4) If the judge notifies the president of the court in writing that all relevant procedural acts will be performed or a decision issued within a time-limit not exceeding four months following the receipt of the supervisory appeal, the president of the court shall inform the party thereof and thus conclude the consideration of the supervisory appeal.
(5) If the president of the court establishes that in view of the criteria referred to in section 4 of this Act the court is not unduly protracting the decision-making in the case, he shall dismiss the supervisory appeal by a ruling.
(6) If the president of the court ...
(7) If the president of the court establishes that the undue delay in decision-making in the case is attributable to an excessive workload or an extended absence of the judge, he may order that the case be reassigned. He may also propose that an additional judge be assigned to the court or order other measures in accordance with the statute governing the judicial service.
...”
18. Sections 8 and 11 define the motion for a deadline and provide for measures that may be applied by the court dealing with the motion. They read, in so far as relevant, as follows:
“(1) If, under section 6(1) or (5) of this Act, the president of the court dismisses the supervisory appeal or fails to respond to the party within two months or fails to send the notification referred to in section 6(4) of this Act within the said time-limit or if appropriate procedural acts have not been performed within the time-limit set in the notification or ruling of the president of the court, the party may lodge an application for a deadline on the grounds stated in section 5(1) of this Act with the court hearing the case.
...
(3) The party may lodge the motion for a deadline within fifteen days after receiving the ruling or after the time-limits provided for in paragraph 1 of this section.”
(1) The president of the higher court in the judicial area covering the local court, district court or other court of first instance, shall have the competence to decide on the motion for a deadline concerning the cases heard by the local court, district court or other court of first instance.
(2) The president of the Supreme Court of the Republic of Slovenia shall have the competence to decide on the motion for a deadline concerning cases heard by higher court or court having the status of higher court.
(3) The president of the Supreme Court of the Republic of Slovenia shall have the competence to decide on the motion for a deadline concerning cases heard by the Supreme Court of the Republic of Slovenia.
(4) Other judges may be assigned by the annual schedule of allocation to act in place of or together with the presidents of courts referred to in previous paragraphs for decision-making on motions for a deadline.
...
(3) If the president of the court establishes that, in view of the criteria referred to in Article 4 of this Act, the court does not unduly delay with the decision-making of the case, he shall reject the motion for a deadline by way of a ruling.
...
(5) The president of the court shall decide on the motion for a deadline within fifteen days after receiving it.”
19. Section 15 provides for the conditions under which a claim for just satisfaction can be lodged and section 16 regulates the monetary compensation and criteria for its assessment:
“(1) If the supervisory appeal lodged by the party was granted or if a motion for a deadline has been lodged, the party may claim just satisfaction under the present Act.
...”
“(1) Monetary compensation shall be payable for non-pecuniary damage caused by a violation of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia.
(2) Monetary compensation for individual finally decided cases shall be granted in the amount of 300 up to 5,000 euros.
(3) When deciding on the amount of compensation, the criteria referred to in section 4 of this Act shall be taken into account, in particular the complexity of the case, actions of the State, actions of the party and the importance of the case for the party.”
20. Sections 19 and 20 govern just satisfaction proceedings:
“(1) Proceedings to enforce a claim for just satisfaction, provided that the condition referred to in section 15(1) of this Act is met, shall be instituted by a party by means of a motion for settlement lodged with the State Attorney’s Office with a view to reaching an agreement on the type or amount of just satisfaction. The party may lodge such motion within nine months after the final resolution of the case...
...”
“(1) If no agreement under section 19 of this Act is reached upon the motion for settlement, or the State Attorney’s Office and the party fail to negotiate an agreement within three months of the date of the motion being lodged, the party may bring an action for damages.
(2) An action for damages against the Republic of Slovenia shall be brought not later than eighteen months after the final resolution of the party’s case.
...”
21. The relevant provisions of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 83/2001) provide:
“A judgment, against which an appeal can no longer be lodged, shall become final (pravnomočen), insofar as the party’s claim or counter-claim has been decided therein.
...”
“The parties may lodge an appeal against a judgment delivered at first instance within thirty days from the service of its written grounds...
An appeal, lodged on time, precludes the judgment from becoming final in the part which has been challenged in the appeal.”
“The parties may lodge an appeal on points of law against a final judgment, delivered at second instance, within thirty days from the service of its written grounds.”