ITEMID: 001-59998
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF BUCHBERGER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Georg Ress
TEXT: 9. The applicant is the mother of two children: T., born on 8 April 1993, and A., born on 17 December 1994.
10. On 31 March 1995 the Youth Welfare Office (Jugendwohlfahrtsträger) at the Linz-Land District Administrative Authority (Bezirkshauptmannschaft), pursuant to section 215 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch), took T. and A. provisionally into their care. It noted that on the morning of that day, the applicant, who delivers newspapers, had come back late from work and her children had been at home without supervision for approximately 45 minutes. The applicant’s neighbour, who had seen T. alone in the garden at around 8.30 a.m., had contacted the District Administrative Authority. The Youth Welfare Office placed the children with a socio-pedagogical facility in Salzburg for an evaluation of their development.
11. On 4 April 1995 the Youth Welfare Office requested the formal transfer of the custody of the children to it before the Enns District Court (Bezirksgericht). The Youth Welfare Office, relying on section 215 of the Civil Code, claimed that the living conditions of the children were chaotic. It did not submit a formal statement of reasons, but promised to do so later.
12. On 24 April 1995 the applicant, assisted by counsel, requested the District Court to order the Youth Welfare Office to return T. and A. to her.
13. On 10 May 1995 the District Court rejected the Youth Welfare Office’s request and ordered that T. and A. be promptly returned to their mother’s custody. The District Court found that the removal of the children from their mother was unlawful, as the Youth Welfare Office had failed to submit a formal statement of reasons giving arguments in support of the children’s removal and the transfer of their custody. The court observed that, without such a statement, it could not take the evidence necessary to verify whether the Youth Welfare Office’s request was well-founded. Consequently, the court was not in a position to decide on the merits.
14. On 11 May 1995 the Youth Welfare Office appealed and refused to give T. and A. back to their mother. On 16 May 1995 it supplemented its appeal arguing that the applicant was incapable of bringing up T. and A. It submitted that on the early morning of 31 March 1995 the children had been at home alone. T. was wandering about in the garden alone at 0°C, wearing only pyjamas. In support of its arguments, the Youth Welfare Office filed, inter alia, a fax of the Enns rural police (Gendarmerieposten) of 31 March 1995, certificates of 5 April 1995 concerning the children’s condition of health issued by a medical officer (Amtsarzt), and the transcripts of the statements of the applicant’s neighbour before the District Administrative Authority.
15. On 6 June 1995 the Steyr Regional Court (Landesgericht) quashed the District Court’s decision and remitted the case back to the District Court, instructing the latter to take a new decision after having supplemented its proceedings (Verfahrensergänzung). The Regional Court found that, taking the ex officio character of the custody proceedings (Pflegschaftsverfahren) into account, it had been for the District Court to investigate the facts sufficiently in order to reach a decision. In particular the Youth Welfare Office should have been given the opportunity to correct its procedural mistake by submitting a formal statement of reasons.
16. On 27 June 1995 the Salzburg socio-pedagogical centre (Sozialpädagogisches Zentrum) submitted a report to the Enns District Court.
17. On 28 June 1995 the applicant was heard with regard to the events of 31 March 1995. She submitted that on the morning of that day, she had suffered from a migraine attack and therefore had been unable to return home in time. Normally she returned before her seventeen-year old son, H., who also lived with her, left for work. That day she had unsuccessfully tried to contact a friend of hers to look after her children.
18. On 30 June 1995 the District Court heard the father of T. and A., who did not live with them. He was opposed to the transfer of custody to the Youth Welfare Office as he considered that the applicant took care of the children satisfactorily. He himself was not in a position to take care of them.
19. On 31 July 1995 the District Court again dismissed the Youth Welfare Office’s request for the transfer of custody but ordered the applicant to undergo family therapy together with her children and their father. It instructed the Youth Welfare Office to ensure that the applicant complied with this condition. In refusing the transfer of custody, the District Court relied, inter alia, on the public health officer’s certificates according to which A. had been in a good physical and psychological state, as well as T., although the medical officer had also found a retardation in the latter’s linguistic skills and striking deficiencies in his social behaviour. The applicant’s approach to her children was positive in general. According to the District Court, there existed no danger that the incident of 31 March 1995 could recur, because two persons, Mr K. and Ms L., had accepted to look after A. and T. in case the applicant should come home late from work.
20. The District Court found that, under sections 176 a and 178 a of the Civil Code, the right of custody may only be withdrawn if the child’s well-being was endangered and if this was substantiated by compelling arguments. The court noted that the living conditions at the applicant’s place were below average. Nevertheless the children’s well-being was not in danger. The incident which led to the taking away of T. and A. was a unique one and the applicant cared sufficiently for her children, having regard both to their psychological and physical well-being. Moreover the applicant still breast-fed A. The court concluded that the requested transfer of custody was not justified.
21. On 31 July 1995 the Youth Welfare Office appealed. The Office argued, inter alia, that Mr K., a former life-companion of the applicant, was unsuitable to look after the children and that Ms L. had informed the District Administrative Authority that she had never promised the applicant to look after the children nor was she prepared to do so.
22. In the course of the appeal proceedings, the Youth Welfare Office submitted further evidence, namely a report dated 16 August 1995 with several annexes. Furthermore, the Regional Court obtained several court files all concerning the applicant: one file concerning custody proceedings relating to her son R., one concerning criminal proceedings against P.F. and the applicant for ill treatment of her son R., and one concerning eviction proceedings against the applicant. This evidence was not communicated to the applicant.
23. On 16 August 1995 the Steyr Regional Court granted the appeal and transferred custody of the applicant’s children to the Youth Welfare Office, pursuant to section 176 a of the Civil Code. The Regional Court found that the taking of evidence by the court of first instance had been incomplete. Since the courts had the obligation to safeguard the well-being of the children, it was necessary to decide not merely on the basis of the evidence which existed at first instance but to take into account all subsequent developments and, if necessary, to re-assess the evidence or to supplement the investigations.
24. On the basis of the evidence meanwhile obtained, the Regional Court found that the well-being of T. and A. would not be safeguarded if they were to stay with their mother. The children’s living conditions were desolate and chaotic; the applicant was apparently not willing to co-operate with the Youth Welfare Office and she did not make any efforts to undergo therapy, together with the children, as had been ordered by the District Court in its decision of 31 July 1995. Moreover, T. and A. no longer stayed with the applicant but with her “ex-companion”, as the applicant was due to be evicted from her apartment on 31 August 1995. As from 1 August 1995 the applicant had rented a house in Lambach. According to information obtained from the owner, the house was extremely desolate and hardly fit for habitation. On a visit to Lambach by a staff member of the Youth Welfare Office on 16 August 1995, the applicant had not permitted the official to enter her home on the grounds of desolate living conditions and the decrepit state of the building. She did not disclose the identity of the friend with whom she had placed the two children T. and A. in Linz.
25. The Regional Court also noted that the applicant’s elder sons, R. and H., had been placed in a children’s home from September 1989 to July 1991 as the applicant had not taken adequate care of them. After returning to the applicant, R. had been subject to systematic and repeated abuse by P.F., the applicant’s then companion, who had almost daily beaten R. and had treated him in a degrading manner. In 1993 R. had been committed to hospital because of injuries inflicted on him by P.F. Thereupon criminal proceedings against the applicant and P.F. for abuse of minors had been instituted. In November 1994 P.F. had been convicted of this offence and sentenced to six months’ imprisonment. The applicant had been acquitted. At the same time, custody of R. had been transferred to the Youth Welfare Office. He was no longer living with the applicant. In the Regional Court’s view these events, even though the applicant had been acquitted of the criminal charges, showed that she was incapable of effectively caring for her children. Having regard to the abuse and suffering of R., it was implausible that she had not noticed anything.
26. The Regional Court also considered that, having regard to the retardation in T.’s development and the deficiencies in his social behaviour, there was no guarantee that either he or his brother A. would develop normally if they were to remain with their mother.
27. On 9 November 1995, the Supreme Court (Oberster Gerichtshof) rejected the applicant’s extraordinary appeal on points of law (außerordentlicher Revisionsrekurs) on the ground that the case did not involve questions of law of fundamental importance.
28. Under section 215 § 1 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), the competent Youth Welfare Office shall apply for court orders regarding questions of custody which are necessary in order to ensure a child’s well-being. In case of imminent danger, the Youth Welfare Office shall also make the necessary provisional arrangements concerning care and custody until the competent court has decided.
29. Under section 176 a of the Civil Code, the competent court shall transfer custody to the Youth Welfare Office, even against the wish of the parents, if the well-being of a child is at risk and it is necessary to remove the child from his or her habitual environment, unless the child can be placed with a relative or other qualified persons close to the child.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87237
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SELEZNEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1950 and lives in Kingisepp, Leningrad Region.
6. On 8 March 2001 the applicant was arrested on suspicion of extortion.
7. In 2001 the applicant complained several times to a local prosecutor about the alleged unlawfulness of his detention. It appears that he never received any reply.
8. On 19 November 2001 the preliminary investigation was completed.
9. On 29 November 2001 the investigator allegedly interrupted the examination of the case file by the applicant and his lawyer. Numerous complaints by the applicant in this respect to the prosecutor’s office were of no avail.
10. On 19 April 2002 the Kingisepp Town Court, following adversarial proceedings in the course of which many witnesses including co-defendants and victims gave evidence, convicted the applicant of extortion and sentenced him to six years’ imprisonment.
11. The applicant and his lawyer appealed against this judgment. On 11 December 2002 the Leningrad Regional Court, having heard the applicant and his lawyer, upheld the judgment of 19 April 2002. According to the applicant, in the courtroom he was kept in a metal cage measuring two or two and a half square metres with ten other defendants, and had no room in the cage to take out his notes and use them.
12. Between 8 and 25 March 2001 and between 26 February and 30 May 2002 the applicant was held in the temporary detention unit of the Kingisepp police department (Изолятор временного содержания г. Кингисеппа) in cells nos. 10 and 11. The applicant stated that cell no. 10 had measured fifteen square metres and had held eight to ten inmates; and cell no. 11 had measured eight square metres and had held four inmates. The detainees had never had exercise outside. The applicant was not allowed to take a shower between 8 and 25 March 2001; between 26 February and 30 May 2002 he took a shower only three times. The ventilation never worked, the windows were covered with metal shutters, and the detainees were not provided with bedding or mattresses. The applicant and other detainees had to use the toilet in front of their cellmates, and they did not have a table to eat at. According to the applicant, these detention conditions led to deterioration of his eyesight and caused hypertension and bronchitis. Furthermore, the detainees never had daily outdoor exercise.
13. The Government confirmed that the inmates had been prevented from taking showers because of maintenance work. No further information on conditions of detention in the temporary detention unit of the Kingisepp police department was provided by the Government.
14. The applicant produced written statements by Mr L. and Mr R., who had been detained in cell no. 10 in the Kingisepp police department in 2002 and 2004 respectively. They confirmed the applicant’s account of the conditions of detention there, namely that the cell measured fifteen square metres and held eight inmates; that the sanitary conditions were terrible and that no shower or daily outdoor exercise had been provided.
15. From 25 March 2001 to 25 February 2002, and then from 30 May 2002 to 8 January 2003, the applicant was held in pre-trial detention facility IZ-47/1, Saint Petersburg, in different cells.
16. The applicant asserted that the cells had been overcrowded. All the cells had measured approximately 8.5 sq m, had had six beds and had accommodated from eight to thirteen inmates. In particular, in cells nos. 428a and 679 the applicant had been kept with twelve other detainees, and in cells nos. 694, 682 and 681 there were ten, nine and eight inmates respectively. The cells had been seriously infested with insects, rats and mice. The applicant had had no separate bed or appropriate bedding, and the inmates had slept in shifts. The cells where the applicant had been held had had no ventilation. As the windows had no glass and had only been covered with metal shutters, in winter the temperature had been extremely low and in summer the cells had been hot, stuffy and damp. There had been insufficient access to daylight. The toilet had been less than one metre from the table and the applicant had had to use it in front of his cellmates. The detainees’ attempts to curtain the toilet were punished by wardens.
17. The Government submitted that the applicant had been held in nine different cells (nos. 258, 448, 933, 428a, 676, 694, 679, 682 and 681). Each cell measured eight square metres. According to the Government, no information on the number of inmates in the cells was available, as the documents had been destroyed. All cells had been equipped with heating, natural ventilation, water supply, daylight and artificial light, and with a lavatory pan. The lavatory pan had been separated from the living area by a wall 1.5 m in height. The inmates had been allowed to take a shower once a week. The applicant had had an individual sleeping place and bedding. He had had one hour’s outside exercise a day. The sanitary conditions and temperature in the cells had been adequate, and the cells had been disinfected on a monthly basis. Furthermore, during the detention period the applicant had had regular medical examinations and received appropriate treatment.
18. The applicant produced written statements by Mr L. and Mr R., who had been detained in detention facility IZ-47/1, Saint Petersburg, in 2002 and 2004 respectively. They confirmed the applicant’s account of the conditions of detention there, namely that the cells were constantly overcrowded and the detainees always slept in shifts.
19. According to the applicant, he had complained numerous times to the courts, the Leningrad Regional Prosecutor’s Office, and the detention facilities management, but either had no reply or had been told “the conditions were the same for all”. He stated that he had submitted at least nine written complaints concerning the inhuman conditions of his detention and had complained verbally every day.
20. According to the Government’s submissions, the applicant had complained about the conditions of detention in the Kingisepp police department on 16 and 27 May 2002 and had received a reply on 31 May 2002 about the impossibility of taking a shower for technical reasons. During the whole period of his detention in IZ-47/1 he had lodged only one complaint with the Kingisepp Court.
21. On 11 December 2002 the applicant was taken to the Leningrad Regional Court for the appeal hearing.
22. The applicant contended that the conditions of his transport to the courthouse and back to the detention facility on 11 December 2002 had been appalling. He had been transported in a special car, designed for ten to fifteen people, with twenty-five to twenty-seven other detainees. The car had been so crowded that the wardens had not been able to close the door and had had to use force to push the detainees in. They had not been able to move during the journey because of the cramped conditions.
23. The Government submitted that the applicant had been transported in a special prison van equipped for the transport of detainees in accordance with applicable standards and designed for twenty-four people. The Leningrad Regional Court is located 2.8 kilometres from IZ-47/1, and the travel time did not exceed 30 minutes.
24. The applicant stated that before and after the hearing he had been confined to a small unventilated courthouse cell (комната для задержанных) measuring approximately twelve square metres, together with twelve to seventeen other defendants. There were no windows and people had had to remain standing. The applicant had received no food on the hearing day.
25. The applicant had been brought to the courtroom with ten other defendants. They had all been handcuffed to a steel wire, which surrounded the group (“group handcuffing”).
26. The Government submitted that the detention unit of the Leningrad Regional Court had ten cells, was equipped with a toilet and wash stand and had natural light. The cells had mandatory ventilation and lighting. Handcuffs were used only to convey the applicant to the courtroom and back; there was no “group handcuffing”.
27. Section 23 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. According to section 24, administration of detention facilities shall meet the sanitary and hygienic requirements which secure the detainees’ health.
28. Relevant international documents and reports concerning the conditions in Russian penitentiary establishments can be found in the judgment of 25 October 2005 in the case of Fedotov v. Russia, (no. 5140/02, §§ 54-55), judgment of 10 May 2007 in the case of Benediktov v. Russia, (no. 106/02, § 21) and judgment of 8 November 2005 in the case of Khudoyorov v. Russia (no. 6847/02, §§ 97-98).
VIOLATED_ARTICLES: 3


ITEMID: 001-96426
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PARLOV-TKALCIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1948 and lives in Zlatar.
5. In July 1991 the applicant had a road traffic accident. Since the insurance company C.O. (“the company”) refused to compensate the resultant damage, on 8 July 1992 she instituted civil proceedings against it in the Zlatar Municipal Court (Općinski sud u Zlataru).
6. On 15 March 1993 the Municipal Court ruled in the applicant's favour ordering the company to pay her the amount of 222,501 Croatian dinars (HRD) together with the statutory default interest accruable from 19 August 1991. The applicant collected the judgment debt on 16 July 1993.
7. However, in the meantime, on 2 July 1993 the Municipal Court issued a decision rectifying a clerical error in its judgment of 15 March 1993. Instead of ordering the company to pay the statutory default interest accruable from 19 August 1991 on the entire amount of damages awarded, (HRD 222,501), in the rectified judgment the court ordered the company to do so only on the part of that amount, namely HRD 22,501, which was the amount awarded in respect of pecuniary damage. The company was ordered to pay the accrued interest on the remaining amount of HRD 200,000 only with effect from 15 March 1993.
8. The decision on rectification was served on the applicant's representative on 26 July 1993.
9. On 10 September 1993 judge M.M., who was at the time the President of the Zlatar Municipal Court, filed a criminal complaint against the applicant with the Zlatar Municipal State Attorney's Office considering that she had committed a criminal offence. M.M. stated in his complaint that at the beginning of July 1993 a certain Z.F.C., a lawyer employed with the insurance company C.O., had come to his office explaining the clerical error in the Municipal Court's judgment of 15 March 1993 and asking him to influence the applicant – who was working at the time as an advocate – with a view to returning the unlawfully obtained amount. After explaining the error and mentioning that it had been rectified by the Municipal Court's decision of 2 July 1993, judge M.M. stated:
“... despite the rectification of the judgment, the advocate Marija Parlov-Tkalčić, to date does not want to return the unlawfully appropriated money to [the company] C.O., Zabok, for which reason the civil proceedings no. P-330/93 were instituted [against her].
Since we consider that the act of the advocate Marija Parlov-Tkalčić also contains elements of criminal liability, we are reporting it to you with a view to investigating it and, possibly, instituting criminal proceedings against her ...”
10. On 15 September 1993 the Zlatar Municipal State Attorney requested transfer of jurisdiction because he was a friend of the applicant. On 22 September 1993 the case was transferred to the Krapina Municipal State Attorney who, on 24 January 1994 indicted the applicant before the Zlatar Municipal Court charging her with a criminal offence of misappropriation (utaja).
11. However, on 3 February 1994 the judge assigned to hear the case requested that the case be transferred to another court as its president had actually filed a criminal complaint against the applicant. On 8 March 1994 the Supreme Court (decision no. Kr-103/1994-3) granted the request and decided to transfer the case to the Krapina Municipal Court (Općinski sud u Krapini). The decision in its relevant part read as follows:
The ... judge [assigned to hear the case] of the Zlatar Municipal Court made a request that the criminal proceedings ... against Marija Parlov-Tkalčić ... be conducted before the Krapina Municipal Court.
The request is substantiated by the fact that the accused Marija Parlov-Tkalčić is an advocate with her office in Zlatar and that the criminal complaint against her was filed by the president of the Zlatar Municipal Court, which may objectively cast doubt on the impartial administration of justice if the proceedings are to be conducted before the Zlatar Municipal Court.
The request is well-founded.
The circumstances highlighted in the request of the ... judge [assigned to hear the case] constitute in the present instance important reasons within the meaning of section 31(1) of the Criminal Procedure Act for transferring territorial jurisdiction from the Zlatar Municipal Court to the Krapina Municipal Court ...
12. On 28 November 1997 the Krapina Municipal Court dismissed the charges against the applicant given that the prosecution for the offence she had been charged with had in the meantime become time-barred (apsolutna zastara).
13. Meanwhile, on 26 August 1993 the insurance company C.O. brought a civil action for unjust enrichment against the applicant in the Zlatar Municipal Court seeking to recover the overpaid interest. The statement of claim was served on the applicant on 7 September 1993.
14. On 25 April 1997 the applicant made a counter-claim.
15. The court held hearings on 29 April and 2 December 1999 and 29 March and 5 July 2000.
16. At the last-mentioned hearing the Zlatar Municipal Court gave judgment against the applicant, ordering her to pay the plaintiff 12,525 Croatian kunas (HRK) together with the statutory default interest accruable from 26 July 1993, as well as HRK 4,381.25 in costs. It also declared her counter-claim inadmissible in one part while dismissing it in the remaining part.
17. On 11 January 2001 the applicant appealed to the Zlatar County Court (Županijski sud u Zlataru) asking at the same time for transfer of jurisdiction (svrsishodna delegacija nadležnosti) from both the Zlatar Municipal Court and the Zlatar County Court. She argued, inter alia, that the Zlatar County Court could not be expected to be impartial in the examination of her appeal given that judge M.M. – who had in the meantime become the president of that court – had previously filed a criminal complaint against her.
18. The Government submitted that judge M.M. had been appointed the president of the Zlatar County Court on 14 June 1996 but that this court had become operational only on 15 March 1999.
19. On 31 May 2001 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed the applicant's request for transfer of jurisdiction. It held that the circumstances relied on by the applicant did not cast doubt on the professional and objective examination of her appeal by the Zlatar County Court. Thus, there was no important reason justifying the requested transfer.
20. On 16 March 2005 the Zlatar County Court dismissed the applicant's appeal and upheld the first-instance judgment. The decision was served on the applicant on 20 April 2005.
21. On 20 May 2005 the applicant lodged a regular constitutional complaint under section 62 of the Constitutional Court Act against the second-instance judgment. Relying on Article 29 of the Constitution, she claimed, inter alia, that her constitutional right to an impartial court had been violated because the impugned judgment had been delivered by the court whose president had previously filed a criminal complaint against her relying on the same facts as those relied on by the first- and second-instance courts when giving their decisions. On 3 November 2005 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed her constitutional complaint. The decision was served on the applicant on 21 December 2005.
22. Meanwhile, on 27 January 2005 the applicant lodged a constitutional complaint under section 63 of the Constitutional Court Act complaining about the length of the above civil proceedings for unjust enrichment. The Constitutional Court examined the length of the proceedings in the period during which they were pending before the ordinary courts thus excluding the period of some seven months while the case was pending before the Constitutional Court itself (see paragraph 21 above). On 15 February 2006 it found a violation of the applicant's constitutional right to a hearing within a reasonable time and awarded her HRK 5,000 in compensation.
23. According to information provided by the Government in reply to a request made by the Court, the Zlatar County Court has a civil and a criminal division. The civil division has six judges sitting in two different panels. The president of the court sits on one of the panels. The criminal division has three judges, and judges of the civil division sit with them when necessary. The cases are assigned to judges according to Rule 33 of the Court Rules (see paragraph 40 below). Thus, before being allocated to judges, cases are listed in chronological order according to the time when they were received at the court. After that, cases are allocated to judges in the alphabetical order of the panel presidents' last names. However, account is being taken of whether some of the judges participated in the first-instance proceedings in a particular case. If they did, the case is not assigned to them.
24. Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette of the Republic of Croatia no. 41/2001 of 7 May 2001) reads as follows:
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
25. The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:
“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional self-government, or a legal person invested with public authority, on his or her rights or obligations, or about suspicion or accusation for a criminal offence, has violated his or her human rights or fundamental freedoms, or right to local or regional self-government, guaranteed by the Constitution (hereinafter: constitutional right)...
2. If another legal remedy is allowed against the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] are allowed, remedies shall be considered exhausted only after the decision on these legal remedies has been given.”
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual's rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
26. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008), as in force at the material time, read as follows:
“The highest court of a certain type in the Republic of Croatia may, following a proposal by the party or the competent court, assign another court from its territory to decide a certain case if this would obviously facilitate the proceedings or for other important reasons.”
A judge ... shall be disqualified from exercising his or her functions:
...
6) if other circumstances exist to cast doubt on his or her impartiality.
(1) Parties may also request withdrawal [of a judge]...
(2) A party may request withdrawal of a judge of a higher court in the appeal or a reply thereto...
(1) The party's request for withdrawal of a judge shall be decided by the president of the court.
(2) Should the party request withdrawal of the president of the court, such request shall be decided by the president of the immediately higher court.
27. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette of the Republic of Croatia nos. 3/1994, 100/1996, 131/1997, 129/2000, 67/2001, 17/2004 and 141/04), as in force at the material time, read as follows:
28. Section 26(1) provided that the president of a court exercised the duties related to court administration in accordance with the law and court rules.
29. Section 30(2) provided that the president of the court or the relevant division of the court was authorised to suspend the service of a decision delivered by a single judge or panel of judges, which was contrary to the legal view adopted by another judge or panel, until the differences in legal views were discussed at the meeting of the division of the court. If the division adopted the view contrary to that decision, a judge or panel which delivered it had to decide the case again.
30. Sections 52-52c read as follows:
a) Performance of judge's duties
Section 52
President of the court in which a judge exercises his or her duties determines for the preceding calendar year:
1. whether a judge delivered the number of decisions which he or she had to deliver pursuant to the framework criteria for the performance of judges, where [the president of the court] shall determine the result of judge's work according to the types of cases, in absolute numbers and in percentage,
2. whether a judge respected the time-limits within which he or she has to pronounce, prepare and send a decision, indicating whether the time-limits were fully respected or respected in more or less than 75% of the cases,
3. how many appeals were lodged against the first-instance decisions and what were the decisions delivered in the appellate proceedings ([that is whether the first-instance decisions were] upheld, quashed or reversed), in absolute numbers and in percentage, and how many decisions were quashed for serious procedural errors,
4. how many extraordinary remedies were lodged against the second-instance decisions ([that is whether the second-instance decisions were] upheld, quashed or reversed), in absolute numbers and in percentage terms.
5. ...
Section 52a
If a judge did not deliver the number of decisions he or she had to deliver pursuant to the framework criteria for the performance of judges, because he or she was charged with exceptionally difficult and complex cases, it shall be assumed that he or she achieved the adequate result in his or her work, increased by 10%. That fact shall be stated in the operative provisions of the decision in which the president of the court determines the performance of the judge's duties.
Section 52b (1)
The circumstances from section 52 and 52 a of this Act shall be established for the preceding calendar year by the president of the court in a decision that has to be delivered at the latest by 28 February of the current year.
Section 52c
(1) A judge who is not satisfied with a decision of the president of the court may appeal against it within eight days of its service.
(2) The appeal shall be lodged with the president of the higher court through the president of the court which delivered the decision.
31. Sections 53 and 53a provided that judicial panels were the competent organs for appraisal of judges in the process of their permanent appointment to judicial office as well as in the process of their appointment to another court.
32. Judicial panels were organs formed for the territories of each county court and were composed of a certain number of judges of the county court at issue and judges of the municipal courts operating on the territory of that county court.
33. A judicial panel had to appraise a judge appropriately according to all the elements listed in section 52. In doing so it had to take into consideration the final decision of the president of the court on the performance of that judge's duties as well as other documents related to his or her work.
34. Section 63 provided that a judge had to inform the president of the court about every job it accepted and all business it undertook. The president of the court was to decide whether a job or business was incompatible with the judicial office. The judge could appeal against the president's decision to the Minister of Justice.
35. Section 73a defined the president of a court as a judge who, apart from his or her judicial function, exercises the duties related to court administration.
36. Section 73g(1) provided:
Section 73g (1)
A judge shall be relieved of the duty of president of the court if in the supervision of court administration it is established that:
1. the president of the court does not exercise his or her duties related to court administration in accordance with the applicable regulations or in timely fashion,
2. [he or she] breaches the rules governing assignment of cases, either directly or by failure to supervise,
3. [he or she], by breaching the applicable regulations or in some other way, violates the principle of judicial independence in the administration of justice,
4. [he or she] does not submit requests to institute disciplinary proceedings in cases prescribed by law.
37. The National Judicial Council Act (Zakon o državnom sudbenom vijeću, Official Gazette of the Republic of Croatia nos. 58/1993, 49/1999, 129/2000 and 150/2005) regulates the composition, powers and operation of the authority competent to decide on the appointment and dismissal of judges – the National Judicial Council. It regulates, in particular, the process of appointment of judges, disciplinary offences in the exercise of judicial office and disciplinary proceedings against judges. The relevant provisions of the Act, as in force at the material time, read as follows:
38. Sections 16-18 regulated the procedure of appointment of judges. After receiving applications from the candidates for the vacant post of a judge, the Minister of Justice had to, before submitting the list of candidates to the National Judicial Council, request an opinion about the candidates from the respective judicial panels (see paragraphs 31-33 above). Section 17 provided that the competent judicial panel, before issuing its own opinion on a certain candidate, could request information on the candidate from the president of the court in which that judge had been exercising his or her duties.
39. Sections 20-30 regulated disciplinary proceedings against judges. Sections 20(2), 24(1) and 28 read as follows:
Section 20
(1) ...
(2) Disciplinary offences are:
1. ...
2. unjustified failure to exercise judicial duties, or failure to exercise them in timely fashion,
3. exercising service or activities, or doing business incompatible with judicial office,
4. ...
...
(3) Disciplinary proceedings for an offence from paragraph 2 subparagraph 2 of this section shall be instituted in particular if:
- a judge, without justified reason, is not preparing and sending court decisions within the statutory time-limits,
- ...
- without justified reason, the number of decisions delivered [by a judge] in one year is below the average in the Republic of Croatia.
Section 24 (1)
If there is a reasonable suspicion that a judge has committed a disciplinary offence, the president of the court in which that judge exercised his or her duties is obliged to make a request that the disciplinary proceedings be instituted against [that judge].
Section 28
(1) A judge shall be suspended from exercising his or her duties if criminal proceedings are instituted against him or her for a criminal offence punishable by more than five years' imprisonment, or while he or she is in detention.
(2) ...
(3) The decision on suspension in the case from paragraph 1 of this section shall be delivered by the president of the court.
40. The Court Rules (Sudski poslovnik, Official Gazette of the Republic of Croatia nos. 80/1997, 20/1998, 118/2001, 49/2003, 32/2004, 9/2006, 116/2008, 125/2008 and 146/2008) are a subordinate legislation regulating internal operation of courts. The relevant provisions, as in force at the material time, read as follows:
Rule 2
The internal operation of the court is separate from adjudication.
Rule 8
(1) The president of the court supervises the correct and timely discharge of all duties in the court.
(2) Supervision is effectuated through inspection of the work of court panels, single judges..., inspection of files, decision and decisions of higher courts..., review of the registration books..., supervision of the work of the court's central office...
Rule 9 (1)
1. The president of the court coordinates the work of court divisions and other organisational units in the court. When the president of the court notices inconsistent practices or practices contrary to existing regulations or departure from established case-law of higher courts in the operation of divisions, panels or single or investigation judges, he or she shall submit his or her observations for discussion at the meetings of judges.
(2) Cases are assigned to judges by the president of the court in courts having no divisions or by the president of a division in courts having divisions.
(3) Before assigning cases to judges, cases are listed in a chronological order...
(4) Cases are then assigned in alphabetical order of judges within the court or a division, taking into account the equal distribution of cases during the year, the type and complexity of cases. Second-instance cases are assigned in alphabetical order of the panel presidents, who then assign the cases in alphabetical order to the judges who are members of the panel.
(5) Should certain cases not be immediately assigned to judges, due to a backlog of cases or higher workload of judges, the president of the court or a division shall, pursuant to the criteria set forth in paragraphs 2 and 3 of this section, without delay assign those cases to judges.
(1) As an exception to the provision of Rule 33 of the Court Rules whereby a case had to be assigned to a certain judge, the case shall in the event of [his or her] objective indisposition be assigned to the judge in the court or a division [whose name is] next in the alphabetical order.
(2) The procedure prescribed in paragraph 1 of this section shall also apply to cases that have already been assigned to judges who are objectively indisposed from conducting the proceedings due to withdrawal, absence from work, particularly high workload or for other justified reasons, when this is necessary to ensure lawful and efficient operation of the court and the protection of the right of the parties to the administration of justice without undue delay.
The yearly holiday plan is determined by the president of the court after obtaining opinions of the organisational units of the court, bearing in mind the needs of service and the wishes of the employees.
41. Section 31 of the Criminal Procedure Act of 1993 (Zakon o krivičnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 13/1985, 36/1977, 26/1986, 74/1987, 57/1989 and 3/1990, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 34/1993 (consolidated text), 38/1993 (corrigendum) and 28/1996) and section 32 of the Criminal Procedure Act of 1997 (Zakon o kaznenom postupku, Official Gazette of the Republic of Croatia nos. 110/1997, 27/1998 (corrigendum), 58/1999, 112/1999, 58/2002, 143/2002 (corrigendum), 62/2003 (consolidated text) and 115/2006) provided that the immediately higher court could, following a proposal by an investigation judge, single judge, president of the panel or state attorney, assign another court from its territory to decide a case if that would obviously facilitate the proceedings or for other important reasons. In cases involving the applicant and/or the Zlatar Municipal Court, the Supreme Court applied the above provisions in the following way:
42. Apart from the above case no. Kr-103/1994-3 (see paragraph 11 above), the Supreme Court dealt with one more criminal case involving the applicant. In its decision no. Kr-419/1990-2 of 9 January 1991 the Supreme Court granted a request for transfer of jurisdiction from the Zlatar Municipal Court to another court submitted by the single judge of that court in the case where the applicant was the accused in criminal proceedings instituted by one of the judges of that court as a private prosecutor.
43. In other cases involving the Zlatar Municipal Court the Supreme Court granted requests for transfer of jurisdiction in the cases where: the accused was the mother of that court's employee R.Š. (decision no. Kr-64/1990-3 of 4 April 1990), the accused was the head of the land registry division of that court (Kr-196/1990-2 of 31 May 1990), the private prosecutor was the sister of one of the court's employees (Kr-315/1993-2 of 12 October 1993), the second accused was the sister of an employee of the court, R.Š. (Kr-316/1993-3 of 12 October 1993), the injured party was a brother-in-law of an employee of the court, R.Š. and one of the witnesses her sister (Kr-43/1994-3 of 21 April 1994), the injured party instituted criminal proceedings by private prosecution against the president of the court, judge M.M. (Kr-316/1994-4 of 4 January 1995), the accused was a lay assessor (sudac porotnik) of that court (Kr-88/03-3 of 22 April 2003), the accused were employees of the Krapina Social Welfare Centre with whom the court cooperated on a daily bases in cases against juvenile offenders and cases involving offences committed against minors (Kr-138/06-3 of 17 October 2006). In the last-mentioned case the Supreme Court reasoned that the circumstance on the basis of which it granted the request for transfer of jurisdiction:
“... should be viewed in the light of the fact that the particular case concerns a working environment with a small number of employees, which inevitably leads to daily contact between them.”
44. In its practice the Supreme Court applied section 68 of the Civil Procedure Act (see paragraph 26 above) in the following way:
45. Apart from the case no. Gr-91/1992-2 of 21 May 1992, to which the applicant referred to in her observations (see paragraph 77 below) and in which it granted the request for transfer of jurisdiction from the Zlatar Municipal Court to another court, the Supreme Court did not deal with any other civil case involving the applicant.
46. In its decision no. Gr-107/1994 of 21 June 1994 the Supreme Court granted the request for transfer of jurisdiction from the Zlatar Municipal Court to another court submitted by the respondent in a case where the wife of one of the plaintiffs was employed at that court. The Supreme Court held that this fact alone would not constitute an important reason for transfer of jurisdiction but nevertheless granted the request, taking into account that the court in question was a small court, which had also agreed with the plaintiff's request, in order to dispel any suspicion as regards its impartiality.
47. In its decision no. Gr-140/1995-2 of 12 April 1995 the Supreme Court granted a request for transfer of jurisdiction from the Zlatar Municipal Court to another court submitted by the respondent in a case where the plaintiff was employed as the head accountant of that court. In so deciding the Supreme Court reasoned as follows:
“Zlatar Municipal Court falls into the category of small courts. Its seat is in a small place [town] and it is common knowledge that the connection between people in institutions in small places and with a small number of employees is always stronger.”
48. In its decision no. Gr1-749/04-2 of 28 April 2005 the Supreme Court granted the request submitted by the Zlatar Municipal Court for transfer of jurisdiction from that court to another one in the case where the plaintiff was a lay assessor of the same court.
49. In its decision no. Gr-309/1994-2 of 13 June 1995 the Supreme Court granted a request for transfer of jurisdiction from the Zlatar Municipal Court to another court submitted by the plaintiffs. The Supreme Court ruled that the fact that the plaintiffs had made a criminal complaint against the president of the Zlatar Municipal Court and against one of the judges, coupled with that court's statement made in reply to the request for transfer of jurisdiction that some of its judges and the president intended to file a criminal complaint against the plaintiffs, was an important reason for transfer of jurisdiction.
50. In other cases involving the Zlatar Municipal Court the Supreme Court granted requests for transfer of jurisdiction in cases where: the parties were the brother-in-law and the sister-in-law of the president of that court (decision no. Gr-11/1990 of 14 February 1990), the respondents were the sister and the brother-in-law of R.Š., an employee of the land registry division of the court (decision no. Gr-148/1998-2 of 29 July 1998), the second respondent's wife was employed by the Zlatar Municipal Court and the plaintiff had until recently been lay assessor of the same court (decision no. Gr1-538/05-2 of 25 October 2005), the respondent was the husband of the typist employed with the court and assigned to the only judge, apart from the court's president, who dealt with civil cases (decision no. Gr1-214/06-2 of 19 May 2006).
51. In its decision no. Gr-883/00-2 of 14 December 2000 the Supreme Court refused a request submitted by the Zabok Municipal Court for transfer of jurisdiction from that court to another one in the case where the president of the Zlatar County Court sued the State, challenging the authenticity of a document he had authenticated while a judge of the Zlatar Municipal Court. The Supreme Court ruled that the fact that the plaintiff was the president of the appellate court in the matter was not an important reason for transfer of jurisdiction.
52. In other cases involving the Zlatar Municipal Court or the Zlatar County Court the Supreme Court refused requests for transfer of jurisdiction in cases where: the wife of a former president of the Zlatar Municipal Court had worked in the same company as the plaintiff (decision no. Gr-474/1990-2 of 27 December 1990), the plaintiff's representative was a former judge of that court (decision no. Gr-397/1995-2 of 10 January 1995), a former judge of the Zlatar County Court was the father-in-law of the legal representative of the enforcement creditor (decision no. Gr-826/1999-2 of 16 March 2000), the plaintiff's representative was a former judge of the Zlatar Municipal Court (decision no. Gr1-140/02-2 of 13 March 2002).
53. In its decision no. Gr-354/1991-2 of 19 November 1991 the Supreme Court refused a request submitted by the Krapina Municipal Court for transfer of jurisdiction from that court to another one, holding that the fact that the Krapina Municipal Court had filed a criminal complaint for insult against the plaintiff was not an important reason for transfer of jurisdiction.
54. In its decision no. Gr-7/1999-2 of 18 March 1999 the Supreme Court, in refusing the request for transfer of jurisdiction, stated as a matter of principle that making a criminal complaint by one of the parties to the proceedings against the judge assigned to hear the case did not constitute an important reason for transfer of jurisdiction to another court. It followed and further developed this practice in the subsequent cases, for example, cases nos. Gr-88/1999-2 of 5 May 1999, Gr-79/00-2 of 14 June 2000, Gr-738/00-2 of 11 October 2000, Gr-106/01-2 of 6 June 2001, Gr-530/01-2 of 5 September 2001 and Gr-828/01-2 of 20 December 2001, in which it refused requests for transfer of jurisdiction submitted by one of the parties to the proceedings and based solely on the fact that he or she had previously filed a criminal complaint against the judge assigned to hear the case and/or the president or other judges or employees of the court at issue. In case no. Gr-965/01-2 of 27 December 2001 the Supreme Court reached the same conclusion but also took into account the nature of the dispute and the fact that the case was being examined by a court with many judges.
55. The only exception to this line of case-law was case no. Gr2159/022 in which the Supreme Court on 8 April 2003 granted the request for transfer of jurisdiction from the Pag Municipal Court to another court submitted by the plaintiff in a case where he had challenged the validity of a certain entry in the land register of that court. The Supreme Court held that the fact that the plaintiff had filed criminal complaints against the judge in the case and against the president of the Pag Municipal Court who had previously approved the impugned entry in the land register, was an important reason for transfer of jurisdiction in the particular circumstances because the court in question had only (these) two judges.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80008
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TERESZCZENKO v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 5-3
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1956 and lives in Warszawa.
5. On 19 November 2002 the applicant was placed in police custody on suspicion of drug trafficking. On 20 November 2002 the Częstochowa District Court ordered that the applicant be detained on remand.
6. The court based its detention order on a reasonable suspicion that the applicant had committed the offence of drug trafficking and the severity of the likely penalty, which gave rise to a fear that the applicant would obstruct the proceedings. Moreover, the court took into account that other suspects had remained at large, which would pose a risk of collusion if the applicant were released.
7. Subsequent decisions on the extension of the applicant's pre-trial detention were taken on 11 February 2003, 8 May 2003, 3 October 2003, 31 December 2003, 29 March 2004 and 29 June 2004.
8. The courts referred to the complexity of the case, the need to conduct further investigations, the probability of collusion between the applicant and other suspects and exertion of unlawful pressure on witnesses by the applicant. They stressed that the fact that the applicant had not pleaded guilty posed an additional risk of his influencing other persons involved in the proceedings. In their opinion no other preventive measure could ensure the proper conduct of the proceedings.
9. The applicant appealed on several occasions against the decisions extending his detention and requested release from detention or the imposition of a more lenient preventive measure, drawing the court's attention to his poor state of health.
10. On 27 November 2002 a telephone company was requested to provide an itemised bill of the applicant's telephone calls to other suspects.
11. On 18 December 2002 and 29 January 2003 confrontations of witnesses and suspects took place.
12. On 19 December 2002 the prosecutor ordered an expert opinion of a heart specialist with a view to establishing the applicant's state of health. No grounds for the applicant's release from detention were found.
13. On 19 March 2003 an expert opinion was ordered with a view to determining whether the substance found in the course of police operations had been an illegal drug. The opinion was submitted on 15 May 2003.
14. On 30 April 2003 and 8 June 2003 expert opinions concerning a weapon which had been found by the police were submitted.
15. On 5 May 2003 another expert opinion of a heart specialist was ordered. Again, the applicant was found to be fit for detention.
16. On 25 June 2003 a bill of indictment against the applicant and ten other co-accused was lodged with the court. The applicant did not plead guilty.
17. On 15 September 2003 the court decided to transfer the case file to the Prosecutor's Office so that shortcomings in the investigation could be corrected.
18. On 24 December 2003 two expert opinions were ordered with a view to establishing the applicant's mental health.
19. On 9 February 2004 expert opinions on cardiology and diabetology were ordered. The experts did not find any grounds for the applicant's release.
20. Hearings were held on the following dates: 27 November 2003, 25 March 2004, 15 April 2004, 13 May 2004, 17 June 2004, 8 July 2004, 12 August 2004, 9 September 2004 and 27 September 2004. Over thirty-five witnesses were examined by the court.
21. On 17 June 2004 the court ordered that witnesses who had previously failed to appear at hearings be escorted to the court.
22. On 5 July 2004 an expert opinion on neurology was submitted. No grounds for the applicant's release were found, although it was stated in this opinion that his prolonged detention might pose some future risk to his health and he was referred to a prison hospital for observation. The date of his admission to hospital was fixed for 1 July 2004.
23. On 30 September 2004 the Częstochowa District Court gave a judgment. The applicant was found guilty of drug trafficking and sentenced to three years' imprisonment. The court ordered that the applicant remain in custody until the prison sentence could be enforced.
24. On 1 October 2004 the applicant appealed against the decision of 30 September 2004 on the extension of his detention.
25. On 21 October 2004 the Częstochowa Regional Court allowed the applicant's appeal of 1 October 2004 and on the same day he was released from detention.
26. On 6 December 2004 two appeals against the judgment of 30 September 2004 were lodged by the applicant's lawyers.
27. On 22 June 2005 the Częstochowa Regional Court quashed the judgment and remitted the case. The proceedings are pending.
28. The relevant domestic law concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other so-called “preventive measures” (środki zapobiegawcze) is set out in the Court's judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 August 2006).
29. The relevant domestic provisions and practice concerning the State's liability for a tort committed by its official, in connection with a right to a trial within a reasonable time, have already been cited in previous cases against Poland (see, for example, Rybczyńscy v. Poland, no. 3501/02, 3 October 2006, and Białas v. Poland, no. 69129/01, 10 October 2006).
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-57986
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF WELCH v. THE UNITED KINGDOM (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Costs and expenses - claim dismissed
JUDGES: John Freeland;R. Pekkanen
TEXT: 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 15 January 1994 within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 17440/90) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 (art. 25) by a British citizen, Mr Peter Welch, on 22 June 1990.
2. In a judgment of 9 February 1995 ("the principal judgment", Series A no. 307-A), the Court found that the confiscation order of 24 August 1988 made against the applicant following his conviction for drugs offences amounted to the retrospective imposition of a penalty in breach of Article 7 para. 1 (art. 7-1) of the Convention (ibid., pp. 11-15, paras. 22-36, and point 1 of the operative provisions).
The Court also held that the respondent State was to pay the applicant, within three months, £13,852.60, less the sums paid by way of legal aid, in respect of costs and expenses (ibid., p. 15, paras. 40-41, and point 2 of the operative provisions).
3. As the question of the application of Article 50 (art. 50) was not ready for decision in respect of pecuniary and non-pecuniary damage, the Court reserved it and invited the Government and the applicant to submit in writing, within three months, their observations on the matter and, in particular, to notify the Court of any agreement they might reach (ibid., p. 15, para. 39, and point 3 of the operative provisions).
4. The negotiations for an agreement having proved unsuccessful, the Registrar received memorials from the Government and the applicant on 4 and 5 May 1995 respectively concerning the question of damage.
5. In accordance with an order of the President of 16 May 1995, comments on the claims made by the applicant were submitted by the Government on 18 July. The applicant replied to these submissions on 18 September. On 20 October a further comment was received from the Government.
6. On 6 November 1995 the Secretary to the Commission informed the Registrar that the Delegate had no observations to make as regards the above submissions.
7. Mr R. Pekkanen, who was unable to take further part in the case, was subsequently replaced by Mr F. Gölcüklü (Rule 22 para. 1 of Rules of Court A).


ITEMID: 001-120961
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF BANEL v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life;Effective investigation);Pecuniary damage - award;Non-pecuniary damage - award
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
TEXT: 5. The applicant was born in 1970 and lives in Vilnius.
6. On 6 June 2005 the applicant’s son, E.B., born on 20 August 1991 and then thirteen years of age, was playing with other children outside the applicant’s apartment, situated in Naujamiestis district (Naujamiesčio seniūnija) in the city of Vilnius. Whilst the children were standing on the balcony of an ancillary building containing cellars, the balcony broke off the building and collapsed. Part of the balcony fell on E.B., who died at the scene from the injuries he received. Two other children, V.J. and A.B., suffered minor bodily injuries.
7. On the same day the police opened a pre-trial investigation. On that day and the next investigators surveyed the scene of the accident.
8. On 7 June 2005 a forensic expert established that E.B. had died because the balcony block had fallen on to him, broken his spine and crushed his internal organs.
9. By Vilnius city police investigator’s decision of 4 July 2005 the applicant was recognised as having victim status.
10. According to the Government, after the accident the future of the ancillary building containing the cellars was discussed at a meeting of the Vilnius municipal council on 14 June 2005. An expert inspection of 18 July 2005 recommended that the building be fenced off until it could be demolished. [The Vilnius city municipality] Commission on Residential and Non-Residential Houses and Premises on 11 October 2005 approved the demolition of the building. In accordance with a contract signed on 4 October 2005 between the Vilnius city council and Naujamiesčio būstas, the Vilnius municipal enterprise, in December 2005 that enterprise demolished the building.
11. On 7 September 2006 the applicant lodged, in the criminal proceedings, a civil claim for non-pecuniary damage, in the sum of 3,000,000 Lithuanian litai (LTL), and for litigation costs with the Vilnius City Prosecutor’s Office. She submitted that the Vilnius city municipality and its institutions had failed to supervise the buildings and, as a result, her son had died. The loss caused her immense moral suffering and depression. Even though it was not possible to bring her son back, the persons responsible should compensate the non-pecuniary damage. The applicant also referred to Article 6.250 § 2 of the Civil Code (see Relevant domestic law below), arguing that the amount of damage could be assessed according to all the circumstances established in the criminal case and the [criminal] court had such competence.
12. By a decision of 21 November 2006, the prosecutor recognised the applicant as a civil claimant in the criminal case, on the basis of Articles 109 and 110 of the Code of Criminal Procedure.
13. On 11 January 2007 A.J., an employee of Naujamiesčio būstas, was charged with the offence of failure to fulfil official duties, under Article 229 of the Criminal Code. The authorities considered that A.J. had failed to inspect the buildings at issue and to inform the municipality of their condition, even though he had been assigned that function by order of the Naujamiesčio būstas director on 28 January 2004. On the same day the authorities imposed a restrictive measure on A.J., namely an obligation not to leave his place of residence.
14. By a decision of 11 October 2007 the Vilnius City Prosecutor’s Office discontinued the pre-trial investigation. The prosecutor referred to Article 7 § 13 of the Law on Local Self-Governance which determined that in the most general sense supervision of the use of construction works was the municipality’s responsibility. Similarly, Article 42 of the Law on Construction set out the municipality’s duty to supervise the use of residential houses and other constructions. The prosecutor analysed in detail whose responsibility it had been, and when, in respect of Vilnius city municipality and Naujamiesčio būstas, to supervise the buildings, given that there had been changes in the bodies between 1999 and 2005. She noted that in May 2004 the city had made some enquiries of Naujamiesčio būstas about the cellars, but there was no-one in the municipality who had the responsibility of supervising the activities of Naujamiesčio būstas. However, the prosecutor considered that the evidence gathered was contradictory, and that therefore it was not possible to establish which body – the Vilnius city municipality or Naujamiesčio būstas – had been responsible for the proper maintenance of the building, the collapse of which had resulted in the death of the applicant’s son. Therefore the prosecutor could not identify any physical person who could be held accountable for failure to act and to ensure that the building was in good condition and not dangerous. The prosecutor thus dropped the criminal charges in respect of A.J. Moreover, under Article 229 of the Criminal Code a corporate person could not be held criminally liable. However, the prosecutor noted that, in accordance with Article 6.266 of the Civil Code, the applicant and the parents of the two injured children could lodge civil proceedings against Vilnius city municipality or Naujamiesčio būstas, and claim that the building had been left unattended.
15. The applicant appealed against the above decision, arguing that the Vilnius city municipality and Naujamiesčio būstas had been aware for a long time that the building was in a dangerous state (avarinės būklės), but no one had known what to do with it. The father of V.J. also appealed, submitting that the investigation had been going on for a long time, but no person had been found responsible for the building and thus for the accident.
16. By a decision of 12 November 2007 a prosecutor reopened the investigation. She noted that it was imperative to take measures to identify the person or persons whose responsibility it had been to take care of the building’s maintenance and to establish why they had not done so.
17. On 3 July 2008 another prosecutor at the Vilnius City Prosecutor’s Office decided to discontinue the pre-trial investigation. The prosecutor found that the evidence as regards which body owned the collapsed building was contradictory. However, he considered that the Vilnius city municipality was the de facto owner of the building. On the basis of documents dated 2004 and 2005, the prosecutor also concluded that the municipality had known earlier about the poor condition of the building where the accident had happened. Nonetheless, in 2004-05 an administrative reform had taken place within the Vilnius city municipality, as a result of which new administrative units had been created, the responsibilities of those units redistributed and new people assigned to those administrative units. Consequently, at the time of the incident there was no one who had the duty to manage derelict and unused buildings. There was therefore insufficient evidence to find that a crime under Article 229 of the Criminal Code had been committed.
18. The prosecutor also suggested that the applicant lodge a civil claim on the basis of Article 6.266 of the Civil Code.
19. On 12 August 2008 a higher prosecutor upheld that decision. The applicant appealed.
20. On 12 January 2009 the Vilnius City First District Court found that the pre-trial investigation had not been sufficiently thorough and effective. As a result, the identity of the owner of the derelict buildings had not been established. The court drew the prosecutor’s attention to specific actions to be taken and specific circumstances to be examined, whilst noting the applicant’s earlier requests to the prosecutor to the same effect. Having given the prosecutor precise instructions, including to obtain archived documents from 1970-75, the district court emphasised that without that specific information it was not possible to establish the identity of persons who had failed to adopt a timely final decision, in accordance with their official duties, about the future of the derelict buildings and their proper maintenance. The prosecutor’s decision was quashed as unfounded.
21. On 2 March and 22 July 2009 the applicant wrote to the Attorney General, arguing that the pre-trial investigation had been superficial and that the prosecutors at the Vilnius City Prosecutor’s Office had been passive and unwilling to discover the truth, thus stalling the investigation. For the applicant, the investigation in essence consisted of sending written questions and answers from one municipal institution to another. It was clear that neither of the institutions, Vilnius city municipality or Naujamiesčio būstas, was willing to take responsibility for failing to perform its duties. The applicant thus asked the Attorney General to take over the investigation or to transfer it to the Vilnius Regional Prosecutor’s Office. She also observed that although more than seven months had passed since the court decision of 12 January 2009, the prosecutors had still not taken all the required investigative actions.
22. On 30 July 2009, the Vilnius City District Prosecutor’s Office again discontinued the pre-trial investigation, in essence upholding the conclusions of the decision of 3 July 2008 to the effect that the evidence as to which body was in possession of the building at issue was contradictory. Accordingly, it was not possible to identify the physical person whose duty it was to maintain the building, and who was therefore liable for the death of one child and injury of two others.
23. On 29 September 2009 the applicant appealed, arguing that even though four years had passed since the accident, the prosecutors had not been active enough and had therefore failed to establish who was responsible for the maintenance of the building. The applicant argued in addition that the prosecutors had also failed to take all the steps which had been ordered by the court on 12 January 2009. The correspondence between Vilnius city municipality and Naujamiesčio būstas showed that both bodies had known the building was derelict, and yet no effort had been made to repair or demolish it. Immediately after the incident the building had been fenced off and demolished by the municipality, even though the municipality had earlier denied that it was within its control and had argued that it did not have the legal authority to tear down the building. The applicant asked for the pre-trial investigation to be reopened.
24. By a higher prosecutor’s decision of 16 October 2009, the investigation was reopened. For the prosecutor, it was possible that the employees of the Vilnius city municipality or those of Naujamiesčio būstas had not performed their duties that stemmed from [Article 229 of] the Criminal Code, Article 42 § 1 (3) of the Law on Construction and other relevant legal acts. It was therefore indispensable to establish which particular person had been designated by the municipality to inspect/supervise the buildings without owners in question (kam pavesta bešeimininkių pastatų priežiūra) in Naujamiestis district. If such functions had not been assigned to any particular unit or person at the municipal or district level, the prosecutor should consider whether the municipality’s or district’s managers (vadovai) should be held responsible under Article 229 of the Criminal Code.
25. On 7 December 2009 K.G., a senior specialist in Naujamiestis district, was charged with failure to carry out official duties, under Article 229 of the Criminal Code. By a decision of the Naujamiestis district director (seniūno) on 3 January 2005 K.G. had been given the responsibility of monitoring empty buildings belonging to the municipality. The criminal investigator considered that K.G. had failed to inform the municipality about the danger posed by the derelict cellars in question, as he should have done under Article 42 [§ 3 (1)] of the Law on Construction (see paragraph 33 below).
26. On 18 May 2010 a prosecutor for the Vilnius City District discontinued the investigation, as no physical persons criminally liable for the accident could be identified. The prosecutor noted, however, that the Vilnius city municipality had learned on 28 February 2005 of the poor state of the building the collapse of which had caused the death of the applicant’s son. However, at that time the municipality was going through structural changes and the duties and responsibilities of the municipality’s employees were being redistributed, therefore there was no particular person with the specific duty to take action on derelict and abandoned buildings. Moreover, taking into account the short period of time that had elapsed between that date and the accident (three months), it was not possible to conclude that the municipality’s employees had been stalling the process of finding a solution to the question of what had to be done with the building. The evidence collected in the case did not prove that employees of the Vilnius city municipality, the Naujamiestis district or Naujamiesčio būstas had failed to carry out any of their clearly prescribed duties and had thus caused the death of one child and injuries to two others. The prosecutor therefore dismissed the criminal charges against A.J., an employee of Naujamiesčio būstas, and against K.G., a Naujamiestis district specialist. The prosecutor suggested that the applicant and the parents of the two children who had been injured in the accident bring separate civil proceedings under Article 6.266 of the Civil Code.
27. The applicant appealed, arguing that the case should be returned for a fresh pre-trial examination, so that the ownership of the buildings could be established and the persons (physical and corporate) liable for the accident thus identified.
28. By a ruling of 9 August 2010 the Vilnius City First District Court refused to reopen the pre-trial investigation, because a criminal action under Article 229 of the Criminal Code had become time-barred. The pre-trial investigation had been opened on 7 June 2005 and the Code of Criminal Procedure provided a five-year term to prosecute a crime of a negligent or minor premeditated nature. The court therefore did not address the applicant’s complaint that the pre-trial investigation had been flawed.
29. The applicant appealed, questioning the effectiveness of the investigation and asking for it to be reopened.
30. By a final ruling of 15 September 2010 the Vilnius Regional Court upheld the lower court’s decision to discontinue criminal proceedings under the statute of limitations.
31. According to Article 19 of the Lithuanian Constitution, a person’s right to life shall be protected by law.
32. The Law on Local Self-Government provides that one of the functions of a municipality is to supervise how buildings are used and to manage land and other property which belong to it by the right of ownership (Article 7 §§ 13 and 15).
33. The Law on Construction at the relevant time provided:
“1. The following public administration bodies shall exercise supervision of use of construction works:
1) the regional governor’s office as in the list approved by the Government, or an institution authorised by it, in respect of constructions of exceptional significance, those of national significance, and construction works situated within establishments of likely hazard, with the exception of the construction works referred to in subparagraph 2 of paragraph 1 of this Article;
2) the Ministry of Communication and Transport and/or organisations authorised by it as in the list approved by the Government or an institution authorised by it, in respect of traffic routes and other engineering constructions related thereto, as well as hydrotechnical construction works in the Baltic Sea and bodies of inland water, with the exception of traffic routes which do not belong to the sphere of its management;
3) municipal authorities, in respect of residential dwellings and other constructions which are not specified in sub-paragraphs 1 and 2 of paragraph 1 of this Article ...
3. Public authorities which are engaged in supervision of the use of buildings shall enjoy the following rights:
1) in the event that it becomes clear that the condition of a building poses a threat to the health or life of people who reside, work or happen to be for other purposes in the building or near it, or to the environment, and taking into account the type of threat posed, they may demand that the operator of the building take measures to protect people and, if necessary, may insist that the area be evacuated, that the building cease to be used, or they may prohibit any activity in the building (if necessary also within the construction site or area);
2) they may set time-limits for taking all the actions specified in sub-paragraph 1 and immediately inform the owner of the building (when the user is not the owner of the building or works);
3) they may contact the police in order to temporarily restrict access to the area or premises, to stop works which are being carried out there, and to restrict or prohibit traffic, if the environment, public order, personal safety or the State are endangered;
4) in cases and procedures laid down by the Code of Administrative Law Offences, they may draw up a record of administrative offences, consider administrative offences and impose administrative penalties, or refer administrative offences to the courts.
4. Officers of public administration bodies which are engaged in supervision of the use of buildings shall have the right to demand that the operator of a construction site produce mandatory documents relating to the supervision of the site, as referred to in Article 43 of this Law, indicating that they have permission to perform such other functions in connection with supervision of the use of buildings, which have been assigned to them...”
34. On 4 February 1999 the Vilnius city management board adopted decision 205V “Approval of order giving power to declare buildings in poor condition, and identification of buildings in Vilnius which may be taken into the possession of the local authority”. Paragraphs 3 and 4 of the order set out the district director’s (seniūno) duty to manage lists and keep records of derelict buildings, and to periodically provide those documents to the Vilnius city management board. Companies which have contracts to manage buildings, district engineers and senior local architects were responsible for the provision of data for the above-mentioned lists.
35. On 24 February 1999 the Vilnius city mayor adopted decision 100 “Derelict Buildings Commission”. The commission was to meet once a week, to analyse information provided by district directors and to deal with issues concerning demolition of buildings in poor condition.
36. The Criminal Code provides:
“A civil servant or a person equivalent thereto who fails to perform his duties through negligence or performs them inappropriately, where this results in significant damage to the State or to a legal or a natural person, shall be punished by deprivation of the right to be employed in certain positions or to engage in certain types of activity or by a fine or by arrest or by imprisonment for a term of up to two years.”
37. Pursuant to Article 95 of the Criminal Code and Article 3 § 1 (2) of the Code of Criminal Procedure, as relevant at the material time, a person who has committed a criminal offence may not be convicted once five years have lapsed, if for example an offence such as failure to perform official duties has been committed.
38. Articles 109 and 110 of the Code of Criminal Procedure stipulate that a person who has sustained pecuniary or non-pecuniary damage because of a crime may lodge a civil claim against the suspect within criminal proceedings. The claim will be examined by the criminal court together with the criminal case. A civil claimant may submit evidence and requests and appeal against the decisions of the investigators, prosecutors or a court.
39. The Civil Code provides:
“1. Non-pecuniary damage shall be deemed to be a person’s suffering, emotional experiences, inconvenience, mental shock, emotional depression, humiliation, deterioration of reputation, diminution of possibilities to associate with others, and so on, evaluated by a court in terms of money.
2. Non-pecuniary damage shall be compensated for only in cases provided for by laws. Non-pecuniary damage shall be compensated for in all cases where it has been incurred due to crime, health impairment or deprivation of life, as well as in other cases provided for by laws. The courts shall, when assessing the amount of non-pecuniary damage, take into consideration the consequences of such damage being sustained, the gravity of the fault of the person by whom the damage is caused, his financial status, the amount of pecuniary damage sustained by the aggrieved person, also any other circumstances of importance for the case, while abiding by the criteria of good faith, justice and reasonableness.”
“1. If damage has been caused by the collapse of buildings, construction works, installations or other structures, including roads, or if the damage has been caused by any defect thereof, the owner (manager) shall be liable for damages unless he can prove that the situation has occurred because of circumstances indicated in Paragraph 1 of Article 6.270 of this Code.
2. It shall be presumed that the owner (manager) of buildings, construction works, installations or other structures is the person indicated as their owner (manager) in the Public Register.”
“1. Damage caused by unlawful acts of institutions of public authority must be compensated for by the State from the State budget, irrespective of the responsibility of a particular public servant or other employee of public authority institutions. Damage caused by unlawful actions of municipal authority bodies must be redressed by the municipality from its own budget, irrespective of whether an employee is at fault.
2. For the purposes of this Article, “public authority institution” means any entity of public law (including a State or municipal institution, official, public servant or any other employee of these institutions), as well as private individuals executing functions of public authority.
3. For the purposes of this Article, “action” means any action (active or passive) of an institution of public authority or its employees that directly affects the rights, liberties and interests of persons (including legal acts or individual acts adopted by the institutions of State and municipal authority, administrative acts, physical acts, with the exception of court judgments – verdicts in criminal cases, decisions in civil and administrative cases and orders).
4. Civil liability of the State or municipality, subject to this Article, shall arise where employees of public authority institutions fail to act in the manner prescribed by laws for these institutions and their employees.”
40. The Government provided Lithuanian court decisions concerning effective remedies in personal injury or destruction of property cases. They firstly noted the Supreme Court’s ruling of 11 October 2005 in civil case 3K-7-365/2005, in which the Tauragė city municipality had been held liable for the improper maintenance of the drainage system. The municipality was held accountable under Article 6.266 of the Civil Code for the injuries the claimant had sustained and ordered to pay LTL 15,000 for the non-pecuniary damage she had sustained by falling into a sewer well.
41. As the second example the Government referred to the Klaipėda Regional Court’s ruling of 21 July 2010 in civil case 2A-421-253/2010, in which the claimant claimed damages for a broken clavicle suffered by her son, who had fallen into an uncovered cellar. The court concluded that the municipality’s department responsible for maintenance of the buildings had failed to act with due diligence and, on the basis of Article 6.250 of the Civil Code, awarded the child’s mother LTL 2,500 in non-pecuniary damages.
42. Lastly, the Government noted the Supreme Court’s ruling of 13 November 2005 in civil case 3K-3-584/2005, concerning liability in tort of the building owners, under Article 6.266 of the Civil Code. The Supreme Court held that the owner (manager) of the buildings, installations and other structures had absolute (no-fault) responsibility for damage caused by its collapse or deficiencies. In that case the Vilnius city municipality was determined to be the owner of the premises in question and therefore liable for the pecuniary damage caused by the rupture of a water pipe. The municipality was to compensate the claimant for destruction of its property in the amount of LTL 7,300.
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-22886
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: SOKUR v. Ukraine
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson
TEXT: The applicant, Fedor Aleksandrovich Sokur, is a Ukrainian national, who was born in 1940 and resides in the village of Grodovka, Donetsk Region, Ukraine.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2001, the applicant instituted proceedings in the Novogrodovsky City Court of Donetsk Region against the “Novogrodovskaya” Mining Company - a State-owned enterprise - to recover unpaid salary for the years 1998-2000.
On 3 May 2001, the Novogrodovsky City Court found in favour of the applicant (Решение Новогродовского городского суда Донецкой области). The decision became effective on 14 May 2001 and was sent for execution to the Novogrodovsky City Bailiffs’ Office (Отдел Государственной исполнительной службы Новогродовского городского управления юстиции). However, the decision was not executed, allegedly due to the failure of the Bailiffs’ Office to act, in not selling the property of the Mining Company.
The applicant instituted proceedings in the Novogrodovsky City Court of the Donetsk Region against the Novogrodovsky City Bailiffs’ Office for failure to execute the court decision in his favour. On 18 July 2001, the City Court rejected the applicant’s claim, finding no fault had been committed by the Bailiffs’ Office. The court stated that the Bailiffs’ Office had presented the decision of the Commercial Court of the Donetsk Region of 30 August 2000 to the respondent company, but was prohibited from enforcing the decision by selling the property of the mine, due to the bankruptcy proceedings which had been initiated against it.
On 1 November 2001, the Appellate Court of the Donetsk Region dismissed the applicant’s appeal. On 18 February 2002, the panel of three judges of the Civil Chamber of the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal.
On 26 December 2001, the ban on the forced sale of assets belonging to undertakings in which the State holds at least 25% of the share capital, was entrenched in the Law on the Introduction of a Moratorium on the Forced Sale of Property.
Under Section 12 of the Law on bankruptcy (Закон Украни «Про відновлення платоспроможності боржника або визнання його банкрутом»), a commercial court is entitled to order a moratorium on debt recovery from a company subject to bankruptcy proceedings. The moratorium implies a prohibition on the Bailiffs’ Office to execute judgements against such a company.
The Law on the Introduction of a Moratorium on the Forced Sale of Property (Закон України “Про введення мораторiю на примусову реалiзацiю майна”) aims at protecting State interests on the sale of assets belonging to undertakings in which the State holds at least 25% of the share capital.
A moratorium on the enforcement of judgment debts has been introduced until such time as the mechanism for the forced sale of the property of such undertakings has been improved. No time-limit has been set.
Section 2 of that Law provides that the prohibition on the forced sale of property includes the execution of writs by the State Bailiffs’ Office over property belonging to such companies.
The Law therefore stays the execution of all writs by the State Bailiffs’ Office against the assets of undertakings in which the State holds at least 25% of the share capital.


ITEMID: 001-24051
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: KATAYEVA and KATAYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Mrs Klara Khudovna Katayeva and Mr Movladin Khasanovich Katayev, are Russian nationals who were born in 1940 and 1948 respectively and live in the Republic of Adygeya. The applicants are married. The respondent Government were represented by Mr P. A. 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.
The applicants are a family of refugees from Chechnya. They brought a court action against authorities, claiming 92,000 US dollars for the loss of their real property left in Chechnya, including a house and a chicken farm, and 240,000 Russian Roubles (“RUR”) for the loss of their movable effects.
On 23 June 1999 the Maykop Town Court of the Republic of Adygeya (“the Town Court”) dismissed the applicants’ claim in their absence, having heard the respondent authorities. The court referred to the applicants’ request to consider the case in their absence. The court found that in 1998 the authorities had paid the applicants RUR 79,676 for the loss of their real property and RUR 12,524 for the movable items left in Chechnya, which they had proved to have owned in accordance with a special governmental decree on compensation for the material losses of Chechen refugees. The court found that the applicants had proved that they had a flat of 38.4 square metres, for which they had been awarded the above sums. The court held that the applicants had not substantiated their case to the extent that they had claimed to have lost further real or movable items.
The applicants appealed against the above judgment, stating that the court had failed to assess properly the evidence in the case.
On 17 August 1999 the Supreme Court of the Republic of Adygeya rejected the appeal in the absence of the applicants and in the presence of the governmental authorities, finding that the applicants had not proved the alleged pecuniary damage. The court also stated that Russian legislation provided for no right to claim non-pecuniary damage in connection with the alleged violation of property rights.
On 13 January 2001 the Deputy President of the Supreme Court of Russia lodged with the Supreme Court of the Russian Federation an application for supervisory review of the case, requesting the quashing of the decisions of 23 June and 17 August 1999 on the ground, inter alia, that although the applicants had requested examination of the case in their absence, they had not been properly notified of the hearing in breach of Article 157 of the Code of Civil Procedure. This resulted in the applicants’ nonattendance, which, in turn, adversely affected the fairness of the trial.
On 26 February 2001 the Supreme Court of Russia granted the application, quashed the said decisions and remitted the case for a fresh examination at first instance.
On 30 January 2002 the Town Court refused to examine the applicants’ case on the ground of the applicants’ persistent failure, namely on five occasions, to appear before the court. It appears that the applicants did not appeal and the decision came into force.
On 31 May 2002 the Deputy President of the Supreme Court of Russia lodged an application by way of a supervisory review, requesting the Supreme Court of the Republic of Adygeya to quash the decision of 30 January 2002 on the grounds of the court’s failure to deal properly with the applicants’ reluctance to attend the court hearings, for example by examining the case in their absence, and the court’s failure to send them a summons to appear to all known addresses and not just to one address.
On 27 August 2002 the Presidium of the Supreme Court of the Republic of Adygeya granted the application, quashed the decision and remitted the case to the first-instance court for a fresh examination.
On 10 October 2002 the Town Court dismissed the applicants’ claims. The court observed that on 29 July 1998 the applicants received compensation of RUR 79,676 and RUR 12,524 for the loss of their real property and for the movable items left in Chechnya. The court next held that the applicants had not substantiated their case to the extent that they had claimed to have lost further real or movable items. Their claims were accordingly rejected. The applicants, who were duly notified of the hearing, failed to attend it.
The applicants appealed against the judgment. It appears that they did not express in their appeal any concern about the first-instance court’s examination of the case in their absence.
On 5 November 2002 the Supreme Court of the Republic of Adygeya rejected the appeal and upheld the judgment of 10 October 2002. It appears that neither the applicants nor the respondents attended the appeal hearing.
The applicants were involved in a number of other legal disputes with the authorities concerning various social benefits, including, in particular, their claims for a new car, higher salary and pension, and index-linked savings. The domestic courts examined those claims and dismissed them as unfounded.