ITEMID: 001-122258
LANGUAGEISOCODE: ENG
RESPONDENT: BIH;SRB
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: KUDUMIJA v. BOSNIA AND HERZEGOVINA AND SERBIA AND REMENOVIĆ AND MAŠOVIĆ v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano
TEXT: 1. The applicants, Mr Miroslav Kudumija, Mr Jordan Remenović and Mr Smajo Mašović, are citizens of Bosnia and Herzegovina who were born in 1945, 1934 and 1934 respectively, and live in Sarajevo (the first applicant) and Tuzla (the second and third applicants).
2. The first and third applicants, who had been granted legal aid, were represented before the Court by A. Mujčinović, a lawyer practising in Sarajevo. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.
3. The applicants served in the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia (“the SFRY”) and retired before April 1992.
4. Their military pensions were assessed according to their rank and years of service, and were paid from the Yugoslav Federal Pension Fund in Belgrade (“the JNA Fund”). Payments from that fund to JNA pensioners living in what is today the Federation of Bosnia and Herzegovina (“the Federation”) came to an end shortly after the outbreak of the 1992-95 war.
5. From that time until the 2001 Agreement on Succession Issues (see below), it was unclear who was responsible for the payment of JNA pensions. However, in September 1992 Bosnia and Herzegovina issued a decree establishing the right of JNA pensioners to receive pension from what later became the Federation of Bosnia and Herzegovina Pension Fund ("the FBH Fund") in an amount corresponding to 50% of what would have been their JNA pensions. That provision was later incorporated in the Pension and Disability Insurance Act 1998, which entered into force on 31 July 1998 (see paragraph 35 below).
6. On 29 June 2001 Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia), the former Yugoslav Republic of Macedonia and Slovenia signed the Agreement on Succession Issues ("the Succession Agreement"), which entered into force on 2 June 2004. Under Annex E each successor State assumed responsibility for the regular payment of pensions to their citizens who had been civil or military employees of the former SFRY, irrespective of their current residence, if those pensions were financed from federal funds.
7. The fundamental rights of workers in the former SFRY with regard to pensions and social security were established in the 1974 Constitution of the SFRY (Article 281 § 3). That constitutional provision was implemented through the Pension and Disability Insurance Framework Act 1982.
8. Regulation of the pension system beyond the rules established in the SFRY law was the responsibility of the republics, so each republic had its own pension legislation and public pension fund. In Bosnia and Herzegovina pensions were governed by the Pension and Disability Insurance Act 1990. All employees, except for JNA personnel, paid into the pension fund of their republic of residence. This applied also to employees of the federal ministries and agencies. The pension funds in the republics worked closely together. If an individual worked and contributed to a pension fund in one republic, he or she could choose to retire in a second republic and still receive his or her pension from the first republic’s pension fund through the distribution system of the second republic. If an individual lived and worked, and therefore paid his contributions, in more than one republic throughout his working life, upon retirement he was entitled to receive his pension from the fund to which he had contributed the most.
9. The pension rights of military personnel were regulated and secured through the federal authorities (Article 281 § 6 of the 1974 Constitution of the SFRY). JNA military personnel paid their contributions to and received their pensions from the JNA Fund. This was the only pension fund existing at federal level.
10. The Military Pension and Disability Insurance Act 1985 regulated the specific aspects of military pensions. It provided for several mechanisms which rendered the treatment of JNA military pensioners more favourable than that of other groups. For example, in determining their entitlement to a pension, the Act generally credited JNA pensioners with fifteen months of service for every year of actual service. Moreover, the amount of pension was based on the salary of the last December in active service, while for other groups it was based on the average salary of ten consecutive years with the highest income.
11. Pursuant to the Yugoslav Army Act 1994 the JNA Fund was transformed into the Fund for Social Insurance of Military Personnel of the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia; "the Serbian Fund"). Under this Act the Serbian Fund was supposed to continue the payment of JNA pensions. It is unclear, however, how that duty was discharged in practice (whether residence in Serbia and/or non-residence in one of the former SFRY republics was a condition for those payments). However, the JNA Fund and, later, the Serbian Fund continued to pay pensions to JNA pensioners living in what is today the Republika Srpska throughout the 1992-95 war and afterwards. It would appear that this arrangement was based on an ad hoc agreement between the Republika Srpska and Serbia.
The facts of the cases, as submitted by the parties, may be summarised as follows.
12. The applicant was in active military service in the JNA until March 1992, when he retired. He received his pension from the JNA Fund until August 1992.
13. In October 1992 the applicant started receiving pension from what later became the FBH Fund, in an amount corresponding to 50% of what his JNA pension would have been.
14. At the applicant’s request, on 1 July 1998 the JNA Fund issued a decision terminating the payment of the applicant’s pension on the basis that he was receiving payments from the FBH Fund. It was confirmed that the applicant received his last pension from the JNA Fund in August 1992.
15. On several occasions the applicant went to the FBH Fund and asked about the full payment of his military pension. Each time he was informed that his right to a pension had been established by the JNA Fund and that, therefore, he could not make any direct claims against the FBH Fund, which only provided payment after the JNA Fund had stopped paying his pension.
16. On 6 July 1998 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the 1995 General Framework Agreement for Peace) about the impugned situation. On 7 December 2001, the Human Rights Chamber dismissed the applicant’s complaint (together with those of nine other JNA pensioners; see decision nos. CH/98/744 et al) as manifestly ill-founded, in line with its established case-law concerning JNA pensioners (see paragraph 36 below).
17. On 5 December 2008 the applicant asked the Federal Ministry of Labour and Social Politics to clarify the status of JNA pensioners after the entry into force of the Succession Agreement. On 16 December 2008 the Ministry informed the applicant that it had taken steps to implement the Succession Agreement, together with the Ministry of Civil Affairs of Bosnia and Herzegovina. However, it did not provide any further information on the action taken.
18. On 24 December 2008 the applicant sought the same information from the Ministry of Civil Affairs of Bosnia and Herzegovina, which transferred his request to the FBH Fund. On 6 January 2009 the FBH Fund informed the applicant that it did not have the power to apply directly the provisions of the Succession Agreement and that, in the absence of new legislation on pensions, it would continue to apply the provisions of the Pension and Disability Insurance Act 1998.
19. On 17 February 2009 the Ministry of Civil Affairs of Bosnia and Herzegovina informed the applicant that all legislation concerning the pension system was made at Entity level (each of the Federation and the Republika Srpska being an “Entity”).
20. The applicant was in active military service in the JNA until January 1987, when he retired. He received his pension from the JNA Fund until April 1992.
21. In October 1992 the applicant started receiving pension from what later became the FBH Fund in an amount corresponding to 50% of what his JNA pension would have been.
22. On 25 December 1998 the applicant asked the FBH Fund to pay his military pension. On 13 January 1999 the FBH Fund responded that his right to a pension had been established by the JNA Fund and that, therefore, he could not make any direct claims against the FBH Fund, which only provided payment after the JNA Fund had stopped paying his pension.
23. On an unknown date in 1999 the applicant complained to the Human Rights Chamber. On 3 May 2004 the Human Rights Commission (a legal successor of the Human Rights Chamber) dismissed the applicant’s complaint (together with those of 21 other JNA pensioners; see decision nos. CH/99/1420 et al) as manifestly ill-founded, in line with its established case-law concerning JNA pensioners (see paragraphs 36 and 37 below).
24. On 24 October 2008 the applicant asked the Ministry of Civil Affairs of Bosnia and Herzegovina about the implementation of the Succession Agreement concerning JNA pensions. The Ministry forwarded the request to the FBH Fund, which in turn informed the applicant on 12 November 2008 that it did not have the power to apply directly the provisions of the Succession Agreement and that in the absence of new legislation on pensions it would continue to apply the provisions of the Pension and Disability Insurance Act 1998.
25. The applicant was in active military service in the JNA until January 1988, when he retired. He received his pension from the JNA Fund until May 1992.
26. In October 1992 the applicant started receiving pension from what later became the FBH Fund in an amount corresponding to 50% of what his JNA pension would have been.
27. On 23 February 1999 the applicant instituted proceedings before the Tuzla Municipal Court ("the Municipal Court") against the FBH Fund, seeking the payment of his military pension. On 26 May 2004 the Municipal Court rejected his claim as unfounded. That decision was upheld on appeal by the Tuzla Cantonal Court and the Constitutional Court on 16 May 2005 and 9 February 2006 respectively.
28. On 16 August 2004 the applicant instituted proceedings before the FBH Fund’s Tuzla Office, requesting that his years of service in the JNA be included in his pension records. On 1 April 2010 the FBH Fund’s Tuzla Office rejected his request. It explained that the applicant was registered with the JNA Fund, which established his right to a pension. That decision was upheld on appeal by the competent second-instance administrative body and the Tuzla Cantonal Court on 21 July 2010 and 14 November 2011, respectively.
29. On 2 October 2004 the applicant asked the FBH Fund to pay his military pension in accordance with Annex E to the Succession Agreement. On 5 November 2004 the FBH Fund informed him that it did not have the power to apply directly the provisions of the Succession Agreement and that, in the absence of new legislation on pensions, it would continue to apply the provisions of the Pension and Disability Insurance Act 1998.
30. On 10 April 2006 the State Ministry of Finance and Treasury informed the applicant that under the Constitution of Bosnia and Herzegovina, pension systems were legislated at Entity level and that, accordingly, the Council of Ministers of Bosnia and Herzegovina had adopted a decision on 27 September 2001 establishing that the implementation of Annex E to the Succession Agreement would be the responsibility of the Entities’ pension funds. The Ministry also stated that attempts had been made to resolve that issue at State level, but that the Entities had been unwilling to transfer pension matters to the State.
31. On 11 February 2009 the applicant, together with 22 other JNA pensioners, lodged an appeal before the Constitutional Court, alleging that the State had failed to respect its obligation under the Succession Agreement in violation of Article 14, and Article 1 of Protocol no. 1 to the Convention.
In its observations submitted to the Constitutional Court on 1 June 2009, the FBH Fund argued that Annex E did not specify the exact amount of pension to be paid to JNA pensioners. Consequently, by paying certain amounts under the Pension and Disability Insurance Act 1998, the FBH Fund had complied with its obligation to JNA pensioners.
In their observations submitted to the Constitutional Court on 3 June 2009, the Government of the Federation argued that as one of the two Entities it could not be held responsible for the implementation of the Succession Agreement because the signatory party to it was the State of Bosnia and Herzegovina. They further argued that they had nevertheless taken steps in 2009 to adjust the existing legislation in line with Annex E. In particular, section 139 of the Pension and Disability Inusrance Act 1998 had been amended so that JNA pensioners could receive payments from the FBH Fund irrespective of their place of residence and that those payments would be funded from the Entity budget (paragraph 35 below). The Government also argued that Annex E did not define the amount of JNA pensions to be paid by the successor States.
In his observations of 3 June 2009 the Attorney General of Bosnia and Herzegovina maintained that it was not in dispute that JNA pensioners’ right to a pension had been established under Annex E. However, the question of the amount of pension fell to be regulated by the legislation of the Entites and not by the Succession Agreement. He further proposed that the appeal be dismissed on non-exhaustion grounds as the plaintiffs had failed to use domestic remedies in the proceedings before the FBH Fund.
32. On 15 June 2010 the Constitutional Court dismissed the appeal on non-exhaustion grounds, holding that domestic remedies (an appeal against the "silence of the administration") had not been exhausted in the proceedings before the FBH Fund.
33. On 2 December 2011 the applicant submitted a request to the Supreme Court of the Federation of Bosnia and Herzegovina ("the Supreme Court") for extraordinary judicial review of the Tuzla Cantonal Court’s decision of 14 November 2011 (see paragraph 28 above). On 9 August 2012 the Supreme Court accepted the request, amended the decision of the Tuzla Cantonal Court of 14 November 2011 by quashing the administrative decisions of 1 April 2010 and 21 July 2010, and remitted the case to the FBH Fund’s Tuzla Office for a re-trial. On 20 March 2013 the FBH Fund’s Tuzla Office rejected the applicant’s request. On 22 April 2013 he appealed against that decision. It would appear that those proceedings are still pending.
IV. RELEVANT DOMESTIC LAW AND PRACTICE
34. The Constitution of Bosnia and Herzegovina (Annex 4 to the General Framework Agreement for Peace) entered into force on 14 December 1995. In accordance with Article 1 § 3 of the Constitution, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska.
Article 3 § 1 of the Constitution establishes the matters that are the responsibility of the institutions of Bosnia and Herzegovina. It also provides that all governmental functions and powers not expressly assigned in the Constitution to the institutions of Bosnia and Herzegovina will be those of the Entities. The pension system is not among the matters listed in that Article.
Under Article 3 § 2 (a) of the Constitution, the Entities have the right to establish special parallel relationships with the neighbouring States consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina.
35. Section 139 of the Pension and Disability Insurance Act 1998 of the Federation, which entered into force on 31 July 1998, provides that JNA pensioners who were citizens of Bosnia and Herzegovina and resident in the Federation would receive pension in an amount corresponding to 50% of what their JNA pensions would have been. Section 139 was amended on 26 January 2009 so that JNA pensioners could receive payments from the FBH Fund irrespective of their place of residence, and that those payments would be funded from the Entity budget.
36. The Human Rights Chamber delivered its first decision concerning JNA pensioners on 9 March 2000 (see Šećerbegović and others, nos. CH/98/706 et al). The Chamber held that the applicants’ right to the peaceful enjoyment of their possessions under Article 1 of Protocol No. 1 to the Convention had not been violated and that they had not been discriminated against in the enjoyment of their right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights.
The reasons were set out in the decision, the relevant part of which reads as follows:
“The Chamber notes that the applicants have not paid any contributions to the PIO BiH in Sarajevo, nor to any other pension fund in the Republic of Bosnia and Herzegovina or in the Federation. They had no legal relationship with the PIO BiH before the issuing of the 1992 Decree on Pension and Disability Insurance during the State of War or Immediate Threat of War. Moreover, the competent authorities of the Federation do not have access to the employment record of the former JNA personnel, so they would not be in a position to determine the entitlement of these pensioners and the amount to which they are entitled under provisions – different from Articles 139 to 141 – of the Federation’s Pension and Disability Insurance Act.
The Chamber concludes that the applicants have no claims against the PIO BiH or against the Federation beyond those attributed to them by the 1992 Decree and 1998 Act which could be regarded as a possession under Article 1 of Protocol No. 1 to the Convention. The applicants’ claim against the JNA Pension Fund, which is not at issue before the Chamber, appears to remain untouched by the above-mentioned legislation. Accordingly, the Chamber concludes that the applications do not reveal any interference with the applicants’ possessions by the Federation and, accordingly, do not reveal a violation of Article 1 of Protocol No. 1 to the Convention.
...
In the light of these considerations, the Chamber concludes that the difference in treatment between JNA pensioners on the one hand and pensioners of the Army of the Republic of Bosnia and Herzegovina and the Army of the Federation on the other hand, including former JNA members who served in those armed forces, has an objective justification in that the members of the second group are former soldiers of the armed forces of the country or government whose pension fund is paying their pensions. As the applicants still receive a pension that is higher than the average pension paid by the PIO BiH, the Chamber does not find that the Federation government exceeded its margin of appreciation in not extending the favourable treatment granted to its own pensioners to the JNA pensioners. The Chamber thus considers that there is no discrimination of the applicants in the enjoyment of the right to social security in comparison with the military pensioners of either the Army of the Republic of Bosnia and Herzegovina or the Army of the Federation."
37. On 4 July 2003 the Human Rights Chamber delivered its decision in the case of Timotije Bačvić and 285 other JNA pensioners (no. CH/02/10046). It held that in ratifying the Succession Agreement on 31 December 2001, Bosnia and Herzegovina had assumed responsibility for the payment of JNA pensions. However, since the Succession Agreeement was not in force at the time, the applicants could not have had a claim against Bosnia and Herzegovina that would constitute a protected possession within the meaning of Article 1 of Protocol No. 1. The Chamber went further to note that Bosnia and Herzegovina and/or the Federation would have to enact legislation in order to make the obligation resulting from the Succession Agreement operative and enforceable, once it entered into force.
38. The Agreement on Succession Issues was the culmination of nearly ten years of intermittent negotiations under the auspices of the International Conference on the former Yugoslavia and the High Representative (appointed pursuant to Annex 10 to the General Framework Agreement for Peace). It entered into force between Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia), the former Yugoslav Republic of Macedonia and Slovenia on 2 June 2004. Article 2 of Annex E to the Agreement, in so far as relevant, reads as follows:
"Each State shall assume responsibility for and regularly pay pensions which are due to its citizens who were civil or military servants of the SFRY irrespective of where they are resident or domiciled, if those pensions were funded from the federal budget or other federal resources of the SFRY..."


ITEMID: 001-109108
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ESKILSSON v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: The applicant, Mrs Annette Eskilsson, is a Swedish national who was born in 1952 and lives in Bor. The Swedish Government (“the Government”) were represented by their Agent, Ms A. Erman, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
As from 1994 the applicant held a leading position in a big hospital. From 1996 onwards she suffered increasingly from stress and hypertension to the extent that she experienced burnout and was no longer able to work and therefore went on sick leave as from August 1998. At this time she also submitted an occupational injury report (arbetsskadeanmälan) to the Social Insurance Office (Försäkringskassan) in Mora.
In June 1999 the Social Insurance Office granted her an early retirement pension on the ground that she had permanently lost her work capacity because she suffered from hypertension and burnout.
In the meantime, on 6 May 1999, the applicant filed an application for life annuity (livränta) with the Social Insurance Office, claiming that her burnout and hypertension had been directly caused by her work.
In January 2000 the applicant submitted a medical certificate from her doctor, Dr E.F., which stated that she suffered from burnout and hypertension and that her work situation had caused or worsened these conditions. However, on 7 November 2000, Dr B.K., one of the Social Insurance Office’s own medical doctors (försäkringsläkare), made the assessment that the applicant’s work had involved such a high level of stress that it had worsened her hypertension but that it had not caused it. As concerned the burnout, there was a lack of scientific consensus that burnout could be caused by factors such as those to which the applicant had been exposed at her work.
On 21 November 2000 the Social Insurance Office informed the applicant that it was considering rejecting her application for life annuity. It sent her a copy of the case-file and asked her to submit any comments she might have. The applicant replied on 26 November 2000 that she maintained her claims and, in December 2000, she submitted a new medical certificate by Dr E.F. In view of these documents, the Social Insurance Office again asked Dr B.K. to assess the applicant’s condition. Dr B.K. did not alter his assessment.
On 24 April 2001 the Social Insurance Office rejected the applicant’s application for life annuity on the ground that her medical problems could not be regarded as work-related. The medical opinion given on 7 November 2000 by Dr B.K. was attached to the decision.
By letter dated 22 May 2001 the applicant appealed to the County Administrative Court (länsrätten) of Jönköping, claiming that she had a right to a life annuity and maintaining that her medical conditions had been caused by her work.
On 17 October 2001 the County Administrative Court rejected the applicant’s appeal. It found, on the basis of several medical opinions including the ones given by Dr B.K. and Dr E.F., that it had not been established that the working conditions had caused the burnout and the hypertension.
By letter dated 5 December 2001 the applicant appealed to the Administrative Court of Appeal (kammarrätten) of Jönköping, reiterating her claims already presented before the County Administrative Court.
The appellate court decided to request an expert opinion which was received by the court on 30 April 2002. By decision of 17 December 2002, the court granted leave to appeal. Subsequently, in June 2004, the applicant, who was now represented by legal counsel, requested that an expert opinion be obtained from a psychiatrist. The court granted the request and ordered that the opinion be submitted no later than 1 October 2004. After the court had contacted the psychiatrist, Dr I.W., on five occasions over the phone and once by mail, the opinion was finally submitted on 14 March 2005. Both parties were given the opportunity to comment on the expert opinions and each others’ submissions, which they did. Moreover, the applicant requested and was granted an extension of time-limit to submit her comments and further medical certificates on several occasions.
On 9 June 2005 the Administrative Court of Appeal rejected the appeal, finding that the applicant’s working conditions had not contained harmful elements of such scale, duration and intensity that they could have caused, with a high level of probability, her hypertension and burnout.
By letter dated 1 September 2005 the applicant appealed to the Supreme Administrative Court (Regeringsrätten), reiterating the grounds of appeal already presented before the lower instances.
On 18 September 2007 the Supreme Administrative Court refused the applicant leave to appeal.
Chapter 3 of the Tort Liability Act deals with the civil liability of the State. According to Section 2 of that chapter, acts or omissions by a public authority may give rise to an entitlement to compensation in the event of fault of negligence.
An individual who wants to claim compensation from the State may proceed in either of two different ways: He or she may either petition the Chancellor of Justice (Justitiekanslern) in accordance with Section 3 of the Ordinance on the Administration of Claims for Damages against the State (Förordning om handläggning av skadeståndsanspråk mot staten, 1995:1301), or bring a civil action against the State before a district court, with the possibility to appeal to a court of appeal and the Supreme Court. No appeal lies against a decision of the Chancellor of Justice. However, if the claim is rejected, the claimant still has the possibility to institute civil proceedings before the courts. In such proceedings, the State is represented by the Chancellor of Justice (section 2 of the Ordinance with Instructions for the Chancellor of Justice [Förordning med instruktion för Justitiekanslern, 1975:1345]).
In a judgment of 9 June 2005 (NJA 2005 p. 462) the Supreme Court dealt with a claim for damages brought by an individual against the Swedish State, inter alia, on the basis of an alleged violation of Article 6 of the Convention. The case concerned the excessive length of the criminal proceedings and the Supreme Court held that the plaintiff’s right under Article 6 of the Convention to have the criminal charges against him determined within a reasonable time had been violated. Based on this finding, and with reference, inter alia, to Articles 6 and 13 of the Convention and the Court’s case-law under these provisions, in particular the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000XI), the Supreme Court concluded that the plaintiff was entitled to compensation under Swedish law for both pecuniary and non-pecuniary damage. With respect to the level of compensation for non-pecuniary damage, the Supreme Court took note of the criteria established in the Court’s case-law stating that the Court’s practice constituted a natural point of departure in this regard.
In a decision of 4 May 2007 (NJA 2007 p. 295), the Supreme Court held that the principle concerning a right to damages established in the above-mentioned case of 9 June 2005 also applied with regard to the rights contained in Article 5 of the Convention. The Supreme Court stated that the plaintiff’s right to damages on account of a violation of Article 5 should be assessed in the first place under the Tort Liability Act (Skadeståndslagen, 1972:207) and the Act on Compensation for Deprivation of Liberty and Other Coercive Measures (Lagen om ersättning vid frihetsberövanden och andra tvångsåtgärder, 1998:714). To the extent necessary, the relevant provisions of domestic law should be interpreted in accordance with the Convention. If Sweden’s obligations under Article 5 § 5 could not be met by such an interpretation, the domestic courts should award compensation without the support of specific legal provisions. As concerned the determination of the level of compensation, the Supreme Court repeated that the Court’s case-law was a natural point of departure but also noted that account must be taken of the fact that different national conditions may lead to variations from one country to another in what should be regarded as a reasonable level of compensation.
In a judgment of 21 September 2007 (NJA 2007 p. 584), the Supreme Court held that the plaintiffs’ right to respect for their private life under Article 8 had been violated on the basis that a police decision on a medical examination of some of them had not been “in accordance with the law”. Having found that compensation for the violation could not be awarded directly on the basis of the Tort Liability Act, the Supreme Court held that there was no reason to limit the scope of application of the principle established in the above-mentioned cases of 9 June 2005 and 21 September 2007 to violations of Articles 5 and 6 of the Convention. In view of this and with reference to, inter alia, Articles 8 and 13 of the Convention and the Court’s case-law under these Articles, the Supreme Court concluded that the plaintiffs should be awarded non-pecuniary damages for the violation of Article 8. With regard to the levels of compensation, the Supreme Court concluded that they should not be too far removed from the levels which applied when awarding damages under the Tort Liability Act. Generally speaking these levels should, however, be compatible with the case-law of the Court. In the same case, Svea Court of Appeal had also concluded, in a judgment dated 12 January 2006, that there had been a violation of Article 8 and that an award for non-pecuniary damage should be made on the basis of the principle established in the case of 9 June 2005.
A further Supreme Court judgment of 28 November 2007 (NJA 2007 p. 891) concerned a claim for damages against the Swedish State on the basis of an alleged violation of Article 2 of the Convention relating to the suicide of the plaintiffs’ father while in detention. The Supreme Court concluded that the case revealed no violation of Article 2. However, in its reasoning leading to this conclusion, the Supreme Court noted, inter alia, that according to the Court’s case-law there was a right to an effective remedy under Article 13 connected to the State’s duty under the Convention to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty, which should, in principle, include a possibility of obtaining compensation for damage. The Supreme Court referred in particular to the judgment in Keenan v. the United Kingdom (no. 27229/95, § 130, ECHR 2001III).
In a judgment of 3 December 2009 (NJA 2009 N 70), the Supreme Court confirmed its previous case-law in a case concerning claims for damages against the Swedish State on account of excessive length of tax proceedings. The court affirmed that it is now a general principle of law that to the extent that Sweden has a duty to provide redress to victims of Convention violations through a right to compensation for damages, and that this duty cannot be fulfilled even by interpreting national tort law in accordance with the Convention (fördagskonform tolkning), compensation for damages may be ordered without direct support in law.
Lastly, on 16 June 2010 the Supreme Court ordered compensation for non-pecuniary damage to be paid to an applicant for proceedings which had complied neither with the “reasonable length” requirement in Article 6 nor the right to an effective remedy in Article 13. The proceedings in question had concerned a claim for damages against the State.
In May 2009 the Government decided to set up a working group on tort liability and the Convention to study the current legal situation. In December 2010 the working group submitted its report (Skadestånd och Europakonventionen, SOU 2010:87) to the Government. In the report it is proposed that the Tort Liability Act be amended in order to allow natural and legal persons to obtain damages from the State or a municipality for violations of the Convention. Such an action against public authorities would be examined by a general court which would need first to establish that a right provided by the Convention has been violated. The aim of the proposal is to provide a legal basis for granting non-pecuniary damages arising from disregard of the Convention and to fulfil, together with the other already existing legal remedies, Sweden’s obligations under Article 13 of the Convention.
In its comments on the above report the Office of the Chancellor of Justice, on 7 July 2011, stated that, since the autumn of 2007 following the Supreme Court’s case-law developments (as set out above), it had dealt with a large number of requests from individuals for compensation on the basis of violations of the Convention. It estimated that it had dealt with roughly 1000 cases over the previous three years. During this time the Chancellor of Justice had also represented the Swedish State in a number of cases before the civil courts concerning alleged violations of the Convention. A majority of the cases that the Office had dealt with had concerned non-pecuniary damages for excessive length of proceedings under Article 6 § 1 of the Convention. Since November 2009, it had received more than 400 such complaints and in more than half of them, the Chancellor of Justice had found a violation and granted compensation. The level of compensation for non-pecuniary damage had been determined with reference to the Court’s case-law and varied between SEK 10,000 and SEK 30,000 (approximately EUR 1,100 and EUR 3,300). Furthermore, the Chancellor of Justice had dealt with a substantial number of cases (around 160) concerning the registration of individuals in the register of the Security Police. These cases had concerned one or more of Articles 8, 10, 11 and 13 of the Convention. There had also been other individual cases relating to alleged violations of Articles 5 and 7 of the Convention, among others.


ITEMID: 001-110779
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: RICHARDSON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Ms Susan Richardson, is a British national who was born in October 1955 and lives in Huntingdon. Her application was lodged on 29 May 2008. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Neenan, Foreign and Commonwealth Office.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In 2006, the applicant requested a pension forecast from the Department for Work and Pensions (“DWP”). The forecast, provided on 28 April 2006, was calculated on the basis that the applicant would become entitled to receive her State Pension from the age of 65.
4. In 2008, the applicant requested a further pension forecast. In that forecast, provided on 4 November 2008, the applicant’s pension forecast was similarly calculated on the basis of the applicable State Pension age being 65. It stated that at the age of 65 the applicant was expected to be entitled to a weekly pension of GBP 109.84.
5. Both State Pension forecasts expressly stated that the pension the applicant might receive could be different from the forecast, either because of changes in the applicant’s circumstances or the law. Both also stated that they were not formal decisions about her pension.
6. Under the law of the United Kingdom, prior to the enactment of the Pensions Act 1995 (“the 1995 Act”) the State Pension age was 65 for men and 60 for women. The relevant parts of the 1995 Act, which came into force on 19 July 1995, put in place a mechanism to equalise the respective pension ages for men and women to 65. The equalisation was to take place progressively over a period of ten years starting from 6 April 2010. Any woman born before 6 April 1950 would continue to receive the State Pension from the age of 60. Women born after 5 April 1955 would attain pensionable age at 65. Women born between those two dates would become eligible for the Pension at various ages between 60 and 65, in accordance with a graduated scale set out in Schedule 4 to the Act.
7. Council Directive 79/7/EEC of 19 December 1978 (“the Directive”) concerns the progressive implementation of the principle of equal treatment for men and women in matters of social security. Article 4(1) of the Directive prohibits all discrimination on grounds of sex, in particular as concerns the calculation of benefits. Such discrimination can be justified only under Article 7(1)(a), which provides that the Directive is to be without prejudice to the right of Member States to exclude from its scope the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits.


ITEMID: 001-78892
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KOMMERSANT MOLDOVY v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10
JUDGES: Nicolas Bratza
TEXT: 5. The applicant newspaper published a series of articles in June-September 2001, criticising the authorities of Moldova for their actions in respect of the break-away region of Moldova (“Moldavian Republic of Transdniestria” or “MRT”, see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004...) and reproducing harsh criticism of the Moldovan Government by certain MRT and Russian leaders.
6. The applicant published the articles under the following headlines:
“The State Duma of the Russian Federation has annexed Moldova and [MRT] to the Union of Russia and Belarus”, “There shall be no meeting...”, “The Russian Ministry of Foreign Affairs acknowledged that the withdrawal of Russian troops from [MRT] may affect stability in the region”, “That’s why NATO is what it is, or a holy place is never empty”, “The black list”, “A Nobel Prize for the leader”, “If the person disappears, there will be no problem?”, “So is it a blockade or WTO conditions?”, “One does not choose one’s neighbours”, “[MRT] is much closer to WTO conditions than Moldova” and “Mission impossible”.
7. In these articles, the applicant reproduced, literally or in a summary, or commented upon declarations by Moldovan, Russian and MRT authorities in respect of the negotiation process between Moldova and MRT, as well as economic, (geo-)political, social and other issues. In a number of these articles the actions and declarations of high-ranking Moldovan officials were harshly criticised. The applicant emphasised, however, that it did not call for any violent or unlawful act and, in the impugned articles, expressly qualified such expressions as “to annihilate” (“убрать”) as meaning “political annihilation [of MRT leader]”.
8. On 5 November 2001 the Prosecutor General of Moldova initiated court proceedings against the applicant in the Economic Court of Moldova. The applicant was accused of “endangering, through its publications, national security and territorial integrity together with public safety and order in Moldova”, by “lending open support to the unconstitutional regime of the self-proclaimed [MRT], promoting the separatist ideas expressed by its leaders and misrepresenting the essence of legal actions of Moldovan authorities and international organisations in solving the problems of the regions to the East of the Dniester”. The Prosecutor General illustrated his request with two examples of phrases from the impugned articles, namely:
“The lack of legal balance between the [MRT] and the Republic of Moldova, as a recognised State, allows the latter to approach the negotiations from a position of superiority and dictatorship, which is the main reason for the slow pace of the negotiation process”; “In the circumstances of an ongoing political, diplomatic and economic blockade of MRT by the Republic of Moldova we consider impossible a meeting between the Presidents of MRT and the Republic of Moldova”.
Since the applicant’s publications, while formally presented as an exercise of the right to inform the public, were contrary to Article 32 of the Constitution and Article 4 of the Press Act (see below) and the applicant had been warned against continuing to violate the law, the court was requested to order the closure of the newspaper.
9. On 30 November 2001 the Economic Court of Moldova accepted the claims of the Prosecutor General and ordered the closure of the newspaper. The court recalled the submissions of the parties and cited the applicable domestic law. It referred in its judgment to the headlines listed in paragraph 7 above and stated that it considered the articles to have:
“exceeded the limits of publicity set out in Article 4 of the Press Act and endangered the territorial integrity of Moldova, national security and public safety and created the potential for disorder and crime, violating Article 32 of the Constitution.”
The court also stated that systematic violations of the Press Act could be sanctioned with the closure of a newspaper under Article 7 of the same Act (see below).
10. In response to the applicant’s arguments the court found that:
“Article 10 of [the Convention] provides for freedom of expression ... (§1) but the exercise of this freedom carries with it duties and responsibilities, and may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law (§2)”.
11. The court did not specify which expression or phrase constituted a threat and gave no further detail. It added that the articles did not represent a fair summary of public statements by public authorities and thus could not be immune from liability under Article 27 of the Press Act (see paragraph 17 below). The court found that the Prosecutor General had contacted the publisher before initiating the proceedings, as required by law. The applicant was ordered to pay court fees of 180 Moldovan lei.
12. The applicant appealed, arguing that it had simply informed the public about current events and about the Government’s attitude and actions towards the authorities of the MRT. It relied on Article 32 of the Constitution, Article 4 of the Press Act and Article 10 of the Convention.
13. On 5 February 2002 the Appellate Chamber of the Economic Court of Moldova upheld that judgment, repeating the arguments of the lower court. The court found, inter alia, that:
“the lower court correctly assessed the facts and rejected the [applicant’s] objections. ... It was correctly decided that no violation of Article 10 of the Convention had been committed, since although that Article provides for the right to freedom of expression, it carries with it duties and responsibilities and its exercise is subject to such formalities, conditions, restrictions or penalties as are prescribed by law”.
The court rejected the applicant’s submission that the economic courts were not competent to examine a freedom of expression case since it had been registered as a joint-stock company. It also rejected the submission that the Prosecutor General had not followed the proper pre-trial procedure and was not competent to initiate the relevant proceedings.
14. On 29 May 2002 the Supreme Court of Justice upheld the two judgments. It also essentially repeated the reasoning of the Economic Court and found that the applicant:
“has exceeded the limits of restrictions on freedom of expression, determined in Article 4 of the Press Act, through some of the publications annexed to the file which undermine national security, territorial integrity and public safety, the protection of order and the prevention of crime”.
15. The newspaper was subsequently re-registered under the name “Kommersant-Plus”.
16. Article 32 of the Constitution reads as follows:
“Article 32 Freedom of opinion and of expression
(1) Each citizen is guaranteed freedom of thought, of opinion, as well as freedom of expression in public through words, images or through other available means.
(2) Freedom of expression shall not harm the honour or dignity of others or the right of others to have their own opinion.
(3) The law prohibits and punishes the contestation and defamation of the State and the nation, calls to war and aggression, national, racial or religious hatred, and incitement to discrimination, territorial separatism, or public violence, as well as other expression which endangers the constitutional order.”
17. The relevant provisions of the Press Act of 26 October 1994 (Law no. 243-XIII) read as follows:
“Article 4.
Publishers of periodicals ... shall have a discretion as to the documents and information they choose to publish, but shall have regard to the fact that, since it carries with it duties and responsibilities, the exercise of these freedoms is subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 7
... (4) The court shall adopt a decision to end the activity of a newspaper or a news agency in the case of systematic violation of the present Act.
Article 27
The founders, publishers and journalists shall not be held responsible for imparting information, if it:
is part of official documents and statements of the public authorities; or
textually reproduce public statements or fairly summarise them”
VIOLATED_ARTICLES: 10


ITEMID: 001-119671
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF SAMOYLOVICH v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
JUDGES: Aleš Pejchal;André Potocki;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Myroslava Antonovych;Paul Lemmens
TEXT: 6. The applicant, Mr Nikolay Vasilyevich Samoylovich, is a Ukrainian national who was born in 1969 and lives in Simferopol.
7. On 29 January 1997 the Kyiv district prosecutor’s office at Simferopol opened criminal proceedings against the applicant, who was serving as a police officer at that time, on suspicion that he had abused his authority.
8. On 24 November 1999 the Simferopol District Court convicted the applicant of abusing his authority and sentenced him to two and a half years’ imprisonment.
9. On 6 February 2000 that decision was quashed and the case was sent back for a retrial and further investigation.
10. On 29 December 2003 the prosecutor’s office discontinued the proceedings on exonerative grounds as it could find no reason to believe that a crime had been committed.
11. According to the Government, on 30 December 2003 that decision was served on the applicant in Simferopol no. 15 pre-trial detention facility (SIZO), where he was being detained at that time in connection with another set of criminal proceedings.
12. On 2 August 1999 the applicant was arrested and detained on suspicion of robbery of the I. family.
13. On 5 August 1999 the prosecutor’s office of the Autonomous Republic of the Crimea (“ARC”) authorised the applicant’s detention on remand for two months pending an investigation, on account of the gravity of the charges laid against him and the need to carry out certain procedural steps. Subsequently (on 10 October 1999, 2 January 2000 and 27 January 2000) the prosecutor’s office extended the applicant’s detention for further terms of three, one and six months, respectively, on the same grounds as those referred to in the order of 5 August 1999.
14. In September 1999 the applicant challenged his detention before the Central District Court of Simferopol, maintaining that it was in breach of a number of applicable provisions of the procedural law in force at the material time.
15. On 25 February 2000 the court refused to examine the applicant’s complaint on the merits, finding that he had been lawfully detained following his conviction on 24 November 1999 for abusing his authority and that there was no prosecutor’s order of 5 August 1999 for his detention on remand in the file on his case.
16. In March 2000 the criminal case against the applicant was joined with another case, which concerned the activity of a gang led by P., another police officer from Simferopol, who was also charged with participating in the robbery of the I. family.
17. During the pre-trial investigation, the authorities questioned 120 witnesses concerning thirty-four criminal acts attributed to the gang members, carried out twenty reconstructions of the crime scenes and ordered numerous expert assessments.
18. On 20 July 2000 the pre-trial investigation was completed and the applicant, along with eighteen other individuals suspected of having committed various crimes as members of the aforementioned gang, was committed for trial before the Supreme Court of the ARC (subsequently renamed the Court of Appeal of the ARC, and hereinafter “the Court of the ARC”).
19. On 4 May 2001, following the familiarisation of the defendants with the material in the case file and the completion of other procedural formalities, the Court of the ARC held a preliminary hearing in the case and scheduled the trial for 5 June 2001. The court also decided that there were no grounds for releasing the applicant pending trial.
20. Having held eighteen hearings between June and December 2001, the Court of the ARC adjourned the proceedings following a request by one of the defendants that the hearings be recorded, no recording devices being available at the time.
21. On 15 May 2002 the Court of the ARC resumed its consideration of the case.
22. On various dates the applicant made requests to the Court of the ARC to release him from custody. He contended that he had no reason to abscond, as he was innocent, had a permanent address in Simferopol and a family (wife, daughter of minor age and elderly mother), and that he was suffering from duodenal ulcers, aggravated as a result of his being in the SIZO. In his submissions the applicant also pointed to various procedural irregularities in the documents on which his detention was based. In particular, he noted that, according to the court decision of 25 February 2000, there was no record of any order of 5 August 1999, serving as the basis for his detention.
23. Those requests were rejected by the Court of the ARC on the basis of the gravity of the charges laid against the applicant.
24. On 9 October 2003 the Court of the ARC stated that there was no arbitrariness in the order for the applicant’s detention and that the order of 5 August 1999 had been lawful.
25. On several occasions the applicant unsuccessfully attempted to institute criminal proceedings against the police officers and the prosecutor’s office, citing various procedural irregularities in his placement in custody.
26. On 5 November 2003 the Central District Court of Simferopol overturned the refusal by the prosecutor’s office to institute criminal proceedings concerning the lawfulness of the applicant’s detention, referring to a number of procedural irregularities in the drafting of the documents concerning the applicant’s detention. It noted, in particular, that there were two different copies of the above-mentioned order of 5 August 1999. According to that presented by the prosecutor’s office, the applicant had been shown a copy of the order for his detention on 5 August 1999 and had refused to sign it. Nevertheless, a copy held in the SIZO records bore the signature of the applicant dated 5 August 1999. The court next instructed the prosecutor’s office to investigate this and other procedural irregularities in the applicant’s case file.
27. On 22 December 2003 the prosecutor’s office again refused to institute criminal proceedings. It found, in particular, that it was unclear why there were two different copies of the detention order. However, neither this nor any other procedural irregularity in the case file was such as to warrant the opening of criminal proceedings.
28. On 15 March and 21 September 2004 the Central District Court of Simferopol and the Court of the ARC respectively upheld the prosecutor’s office’s refusal to institute criminal proceedings concerning the lawfulness of the applicant’s detention.
29. Between May 2002 and May 2004 the Court of the ARC held some 150 hearings in the case.
30. On 17 November 2004 the Court of the ARC delivered a judgment, approximately 200 pages long, which stated that the applicant was convicted of being a member of P.’s gang and taking part in the robbery of the I. family. The applicant was further sentenced to seven years’ imprisonment, to run from the date of his arrest (2 August 1999).
31. On 16 March 2006 the Supreme Court of Ukraine held a hearing in the applicant’s presence and dismissed a cassation appeal he had lodged.
32. In August 2006 the applicant was released, having served the term of his prison sentence in full.
33. From August 1999 until August 2006 the applicant was detained in the Simferopol SIZO.
34. According to the applicant, the physical conditions of his detention in the SIZO had been intolerable. He emphasised, in particular, that the size of the cells had allowed for less than 2.5 square metres’ space per detainee. Cell no. 86, officially designated for six inmates, had in fact, contained only four beds and at times had been occupied by more than four persons, who had needed to take turns to sleep. The detainees had not been given bedding or toiletries and towels, and had had no access to laundry facilities so had to wash and dry their laundry in the cell, which became very humid.
35. Food, especially during the period between 1999 and 2002, had been insufficient and of poor quality. The bread had been made of such low-grade flour that it rather resembled dark brown gum. The detainees had been given hot cereal (каша) without salt, sugar or fat, three times per day. For lunch they had also been given a bowl of soup, which had, in fact, consisted of the same cereal or dumplings made from poor quality flour floating in water. The portions had been meagre.
36. The applicant had been confined to his cell for most of the day. He was able to take a daily walk outside for some thirty to forty minutes although sometimes, particularly in bad weather, there had been no outdoor exercise at all. The situation had been particularly difficult during the period between 1999 and 2002, when the walks had taken place on a highly irregular basis. The exercise yard had measured five by five square metres. It had been bare concrete with no benches or exercise facilities and had smelled of human excrement.
37. In 2000 the applicant had been placed in a disciplinary cell for ten days, where the conditions had been even more severe than in the ordinary cells.
38. On numerous occasions the applicant had complained about the physical conditions of his detention and the quality of nutrition in his diet to various authorities, including to the Court of the ARC during the hearings. However, his complaints had been to no avail.
39. On several occasions the authorities had acknowledged some breaches of the applicant’s and other inmates’ rights. In particular, according to some correspondence from the SIZO administration, it had not been provided with a sufficient quantity of meat or fresh produce to ensure a varied diet for the inmates and had been obliged to make dietary substitutions. However, notwithstanding its acknowledgment of the problems complained of, the situation had not been remedied.
40. According to the Government, the conditions of the applicant’s detention had been adequate and sufficient for meeting his basic needs.
41. As regards the living conditions, from 6 August 1999 until 2 August 2000 the applicant had been held in cell no. 176, which measured 13.5 square metres and had eight beds. From 2 August 2000 until 7 June 2004 the applicant had been held in cell no. 170, which measured 32.4 square metres and had sixteen beds; from 7 June 2004 until 31 August 2004 the applicant had been detained in cell no. 89, which measured 8.2 square metres and had six beds. During the remaining period of his detention the applicant had been held in cell no. 86, which measured 8.2 square metres and had six beds. According to the records, the number of detainees held in those cells during the periods in question, had not exceeded the number of beds available and each detainee had had his own sleeping place.
42. Each cell had been equipped with both natural and artificial ventilation, a centralised twenty-four-hour heating system, water supply and a sanitation system. All cells had been provided with windows, letting in daylight. At night electric light of a sufficient strength had been available to enable the detainees to read or write. The cells had been equipped with the necessary amenities, including toilets, wash basins, tables, benches and storage boxes. The applicant had been provided with dishes and bed linen (which had been changed every week).
43. Every day the detainees had been afforded a one-hour walk in the outdoor courtyard, which measured 25.3 square metres. A light canopy above the courtyard had offered protection from rain and snow and had enabled the detainees to take outdoor exercise in any weather. The courtyard had been cleaned on a daily basis.
44. The detainees’ diet had been prepared in compliance with applicable domestic standards and had been sufficient to meet their nutritional needs. For example, in their daily diet the detainees had received 100 to 150 grams of fish or meat, twenty grams of vegetable oil, forty grams of fat and a sufficient quantity of fresh vegetables from which to obtain the necessary vitamins.
45. According to the applicant’s submissions, during routine searches the prison authorities had thrown the detainees’ food, shoes and other belongings out of the cell into a dirty corridor. Often the authorities had confiscated objects which could not have presented any threat to prison security, such as plastic water bottles, newspapers or spoons.
46. The applicant also submitted that in detention he had never received a visit from a pastor and had had no opportunity to pray in private, as he had never been left alone. His relatives had only been able to see him through a glass partition during their visits. As a result of that lack of family contact the applicant’s wife had divorced him in 2002. The applicant had been expelled from the university on account of the impossibility of pursuing regular studies while in detention. The administration had regularly interfered with his correspondence and communication with the outside world and had not provided him with adequate medical and dental assistance. According to the case file, the applicant hadn’t raised any of the complaints listed in this and the preceding paragraph at domestic level.
47. The applicant further submitted that on those days when he had attended the court hearings, in the period between 2000 and 2001, he and his co-accused would often spend the entire day in the courtroom without being provided with lunch or dinner. As the applicant had continually protested against this situation, in the autumn of 2001 the judge had ordered him to be removed from the courtroom until the end of the trial, for contempt of court.
48. At various times the applicant had unsuccessfully attempted to lodge civil actions against the police of the ARC (his former employer), alleging various violations of his labour rights. On several occasions the courts had refused to consider the merits of his application because he had not complied with the applicable procedural formalities.
49. Relevant provisions of domestic law concerning arrest and detention pending criminal investigation and trial can be found in the Court’s judgment in the case of Yeloyev v. Ukraine (no. 17283/02, § 35, 6 November 2008).
50. Relevant international materials concerning the conditions of detention can be found in the judgment in the case of Dvoynykh v. Ukraine (no. 72277/01, §§ 39-40, 12 October 2006).
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-1
5-3
6-1
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-61563
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF PANEK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Georg Ress
TEXT: 8. The applicant was born in 1965 and lives in Koszwały, Poland.
A. Facts prior to 1 May 1993
9. On 6 February 1992 the applicant was arrested on suspicion of murder, grievous bodily harm, and insulting and assaulting policemen.
10. On 8 February 1992 the Gdańsk District Prosecutor (Prokurator Rejonowy) brought criminal charges against him.
11. On 6 July 1992 prosecution authorities lodged with the Gdańsk Regional Court (Sąd Wojewódzki) a bill of indictment against him.
12. From 29 January 1993 to 30 April 1993 no hearing was held.
B. Facts after 30 April 1993
13. A hearing listed for 18 June 1993 was adjourned until 21 September 1993. A further hearing, listed for 21 September 1993, was adjourned because the judge rapporteur was ill. The next hearing, scheduled for 12 October 1993, was cancelled because the judge rapporteur was hospitalised.
14. On 10 January 1994 the case was assigned to another panel of judges as the presiding judge rapporteur resigned from his function.
15. On 15 March 1994 the hearing was re-opened.
16. The subsequent hearings were held on 22 March, 18 May, 12 July and 26 September 1994 and on 10 January 1995.
17. On 13 January 1995 the Gdańsk Regional Court pronounced its judgment. It convicted the applicant as indicted, except for the count of murder, of which he was acquitted. The court sentenced him to five years' imprisonment. On 3 July 1995 the prosecutor lodged an appeal against that judgment, contesting its part relating to the acquittal.
18. On 12 October 1995 the Gdańsk Court of Appeal (Sąd Apelacyjny) quashed the contested part of the first-instance court's judgment and remitted the case for re-examination.
19. The court held hearings on 13 March and 15 May 1996. A hearing scheduled for 8 July 1996 was adjourned until 14 October 1996. A further hearing, listed for 14 October 1996, was cancelled because the judge rapporteur was ill. The subsequent hearing was held on 6 November 1996.
20. On 13 December 1996 the Gdańsk Regional Court convicted the applicant of murder with an oblique intent (w zamiarze ewentualnym) and sentenced him to nine years' imprisonment. The applicant lodged an appeal against that judgment.
21. On 18 June 1997 the Gdańsk Court of Appeal modified the judgment in that it convicted the applicant of grievous bodily harm with deadly effect and sentenced him to seven years' imprisonment.
22. In the letter of 1 July 1997 the applicant's legal aid lawyer informed him that he refused to lodge a cassation appeal against that judgment, arguing that there was no indication of any breach of substantive or procedural law. He explained that lodging that appeal would only delay the proceedings concerning a cumulative penalty (kara łączna) and, afterwards, proceedings concerning the applicant's conditional release.
23. On 13 July 1998 the Gdańsk Regional Court delivered a judgment in which it sentenced the applicant to ten years' imprisonment as the cumulative penalty for the convictions included in the judgments of 13 January 1995, 13 December 1996 and 27 May 1992 (delivered in the course of other criminal proceedings).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81737
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ROSINSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (ratione temporis, ratione materiae, non-exhaustion of domestic remedies);Non-pecuniary damage - financial award;Violation of P1-1
TEXT: 5. The applicant was born in 1934 and lives in Warsaw.
6. The applicant owns a plot of land with a surface area of 2,183 square metres, located in the municipality of Milanówek, near Warsaw. It is listed in the local land register under entry No. 29735.
7. On 20 March 1993 the applicant and his neighbours lodged their objections to a proposed new land development plan to be adopted by the municipality.
8. On 30 March 1993 the municipal council of Milanówek adopted the local land development plan. The applicant's objections were not taken into consideration. Under the plan, the applicant's land was designated for agricultural purposes. A road and a hospital were to be constructed on his land after expropriation.
9. The applicant and his neighbours complained of this decision to the Mazowsze Governor, arguing inter alia that the plan breached their right to the peaceful enjoyment of their possessions. They submitted that the local land development plan had been prepared in a manner which failed to take properly into consideration and reconcile the various interests of the municipality and the local owners. As a result, the plan was unreasonable and did not comply with the standards of good land administration.
10. They transferred the complaint to the Supreme Administrative Court, after being informed that it alone was competent to examine the matter.
11. By a judgment of 25 September 1995, the Supreme Administrative Court dismissed the complaint, considering that there were no indications that the municipal authorities had failed to take into consideration and properly weigh the various competing interests involved in the preparation of the local land development plan. It noted that the restrictions on ownership imposed by land development measures were not per se incompatible with the nature of ownership guaranteed by the Civil Code.
12. In 1997 the applicant and 36 other inhabitants of Milanówek requested the Mayor to amend the 1993 plan in order to avoid the loss of various investments they had made in their land after the implementation of the plan's projects. This request apparently remained unanswered.
13. In a letter of 4 April 2000 the Municipal Office, in reply to a query submitted by the applicant and other persons, stated that the municipal authorities were under no obligation to provide any compensation for owners whose property was to be expropriated in the future. They were also informed that the validity of the 1993 plan had been prolonged for a further two years under the amendment to the Local Planning Act 1994 adopted in 1999.
14. On 7 July 2001 the Mayor of Milanówek refused the applicant's request for an initial approval of a development project on his land (decyzja o warunkach zabudowy), considering that the project would be incompatible with the local land development plan. The applicant wished to have a house built on his land while, under the plan, it was designated for the construction of a road and a hospital.
15. The applicant appealed against this decision to the Mazowiecki Governor. In a reply of 19 July 2001, he was informed that the appeal should be lodged with the Local Government Board of Appeal and that the construction of the road in Milanówek would not be budgeted before 2010 at the earliest. The applicant addressed the Appeal Board.
16. On 21 November 2001 the Local Government Board of Appeal dismissed the applicant's appeal on the ground that his construction project was incompatible with the land development plan. It was further reiterated that, under the Local Planning Act 1994, he had no right to compensation for the fact that his land had been “frozen” or for the restrictions on its use.
17. On 1 October 2001 the Municipal Office informed the applicant that the plan had been amended in that the construction of the hospital was no longer foreseen. However, the project to build a road remained valid, but no timeframe was specified.
18. On 11 March 2002 the applicant requested the Municipality to acquire his property. The Municipal Office refused to do so by a letter of 9 May 2002.
19. On 17 June 2002 the applicant complained to the Municipal Office that the decisions it had given in respect of the land development in his neighbourhood were incompatible with the land development plan adopted in 1993.
20. By a letter of 2 July 2002, the Office informed the applicant that, under domestic law, the owners of property to be expropriated in the future had no right to compensation for the fact that their land could not be developed. They would be entitled to compensation only after the final expropriation decisions in respect of their property had been taken.
21. On the same day the Supreme Administrative Court dismissed his appeal against the decision of 19 December 2000. The court observed that its jurisdiction was limited to the examination of the lawfulness of the impugned decision. It found that the decision was lawful as it was common ground between the parties that the applicant's construction project was incompatible with the local land development plan.
It further noted that the applicant had complained that his situation could not be seen as being compatible with the Constitution, given that owners affected by plans adopted prior to the Constitution's entry into force could not benefit from compensation claims provided for by section 36 of the Local Planning Act 1994. The court referred to the judgment of the Constitutional Court given in 1995 (see paragraph 36 below), which had examined the compatibility with the Constitution of section 68 § 1 of the 1994 Act. That provision had excluded the application of the owners' right to compensation under section 36 to land development plans adopted before 31 December 1994. It had found the provision to be compatible with the Constitution.
The Supreme Administrative Court observed that it was not its task to amend or criticise existing laws and that it was bound by this provision. Otherwise, there were no grounds on which to consider that the decision challenged by the applicant had been unlawful.
22. In the meantime, in January 2002 the applicant petitioned the Ombudsman.
23. On 20 February 2002 the Ombudsman informed him that the legal framework for “frozen land” was governed by the Local Planning Act 1994. Under section 36 of this Act, owners of such plots were entitled to various forms of compensation, but only insofar as their plots were affected by land development plans adopted after 1 January 1995.
24. On 31 December 2002 the validity of the 1993 land development plan expired.
25. On 25 August 2003 the applicant was granted an initial planning permit (decyzja o warunkach zabudowy) in respect of his land.
26. From 1984 to 1 January 1995 questions of land development were governed by the Local Planning Act of 12 July 1984.
27. On 7 July 1994 a new Local Planning Act was enacted. It entered into force on 1 January 1995.
28. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994.
29. On 27 March 2003 a new Local Planning Act was enacted which repealed the 1994 Act.
30. Under the Local Planning Act of 12 July 1984 owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date.
31. Section 36 of the Local Planning Act enacted in 1994 created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities. The municipalities were obliged to buy such property, replace it with other land within six months of an owner's request, or provide compensation for the damage caused by the designation.
32. However, pursuant to Section 68 § 1 of the Act, these obligations and the corresponding claims of the owners applied only to plans adopted after the Act had entered into force, i.e. to plans adopted by local municipalities after 1 January 1995.
33. Pursuant to the 1994 Act, plans adopted before its entry into force were to expire on 31 December 1999.
34. In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years until 31 December 2001. Again, on 21 December 2001, Parliament passed a law amending the Local Planning Act 1994 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995.
35. Under section 87 of the 2003 Act (see paragraph 29 above), all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003.
36. Compensation entitlements for owners, provided for by the 1994 Act (see paragraph 29 above), were in essence maintained by the 2003 Act. Pursuant to Section 36 of that Act, when, following the adoption of a new local land development plan, the use of property in the manner provided for by a previous plan has become impossible or has been restricted, it is open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts. It would appear that the operation of Section 36 is not retroactive, thus limiting the scope of any such claims to the period after the adoption of the 2003 Act.
37. Other relevant legislative provisions are extensively set out in the Court's judgment of 14 November 2006 in the case of Skibińscy v. Poland (no. 52589/99, §§ 2853).
38. In its judgment of 5 December 1995 (K 6/95), the Constitutional Court examined the request submitted to it by the Ombudsman to determine the compatibility with the Constitution of section 68 § 1 of the Land Planning Act 1994 insofar as it excluded the application of section 36 of that Act to land development plans adopted before 31 December 1994. The court referred to its established case-law to the effect that ownership could not be regarded as ius infinitivum. Consequently, its exercise was normally restrained by many legal and practical considerations, including the necessity of balancing the owners' interests against those of other persons. Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of ownership. In particular, owners of properties “frozen” for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans. This did not amount to such an interference with ownership that it could be regarded as being incompatible with the constitutional protection of ownership.


ITEMID: 001-61099
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF KYRTATOS v. GREECE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 with regard to the right to a court;Violation of Art. 6-1 with regard to the length of proceedings;No violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Françoise Tulkens
TEXT: 8. The applicants were born in 1921 and 1953 respectively and live in Munich. The first applicant is the second applicant’s mother.
9. The applicants own real property in the south-eastern part of the Greek island of Tinos, where they spend part of their time. The first applicant is the co-owner of a house and a plot of land on the Ayia Kiriaki-Apokofto peninsula, which is adjacent to a swamp by the coast of Ayios Yiannis.
10. On 4 December 1985 the prefect (νομάρχης) of Cyclades redrew the boundaries of the settlement (οικισμός) of Ayios Yiannis in the municipality of Dio Horia and of the settlements of Ayia Varvara, Ayios Sostis and Lautaris in the municipality of Triandaru (decision no. 9468/1985). On 6 May 1988 the prefect again redrew the boundaries of the settlements of Ayios Yiannis and Ayios Sostis (decision no. 2400/1988).
11. On 18 March 1993 the town-planning authority of Syros issued building permit no. 620 on the basis of the prefect’s decision no. 9468/1985. Another permit (no. 298) had been issued on the same basis by the same authority in 1992.
12. On 21 July 1993 the applicants and the Greek Society for the Protection of the Environment and Cultural Heritage lodged an application for judicial review of the prefect’s decisions nos. 9468/1985 and 2400/1988 and of building permit no. 620/1993 with the Supreme Administrative Court. On the same date a second application was lodged by the same persons for judicial review of the prefect’s two decisions and of building permit no. 298/1992. The basic argument of the applicants before the Supreme Administrative Court was that the prefect’s decisions, and consequently the building permits, were illegal because in the area concerned there was a swamp and Article 24 of the Greek Constitution, which protects the environment, provided that no settlement should be built in such a place.
13. On 10 July 1995 the Supreme Administrative Court considered that the applicants had locus standi because they owned property in the area concerned. The court held that it could not review the prefect’s decision no. 9468/1985 directly because the application had not been lodged within the time-limit prescribed by law. However, it could review the two building permits issued on the basis of that decision and, in the context of this review, the court was obliged to examine the constitutionality of the prefect’s decision. The decision was found to have violated Article 24 of the Constitution, which protects the environment, because the redrawing of the boundaries of the settlements put in jeopardy the swamp in Ayios Yiannis, an important natural habitat for various protected species (such as birds, fishes and sea-turtles). It followed that the building permits were also unlawful and had to be quashed. Moreover, the court quashed the prefect’s decision no. 2400/1988 because it had not been published in the Official Gazette in the manner prescribed by law (decisions nos. 3955/1995 and 3956/1995).
14. In 1996 the prefect issued two decisions (nos. DP2315/1996 and DP2316/1996) which excluded the contested buildings from demolition.
15. On 21 April 1997 a special committee of the Supreme Administrative Court found that the authorities had failed to comply with the above decisions. They had not demolished the two buildings constructed on the basis of permits nos. 620/1993 and 298/1992 and had continued issuing building permits in respect of the area that had been included in the settlements further to the unlawful redrawing of the boundaries (minutes no. 6/1997).
16. On 31 January 1991 the first applicant and others instituted civil proceedings against a neighbour, M., in the Syros Court of First Instance (Πολυμελές Πρωτοδικείο). They claimed that he had unlawfully taken over part of their land in Ayios Yiannis. On 14 February 1992 the court found in favour of the plaintiffs.
17. On 30 March 1992 M. entered a caveat against this judgment (ανακοπή ερημοδικίας), which had been given in his absence. His application was rejected on 23 November 1992 (decision no. 138/1992). On 28 January 1993 M. appealed against that decision. The Aegean Court of Appeal (Εφετείο) reversed decision no. 138/1992 and sent the case back to the first-instance court (decision no. 120/1993).
18. A hearing took place on 14 January 1994. In a preliminary decision of 31 March 1994, the first-instance court ordered investigative measures. Witnesses were heard on 13 April 1995, 4 July 1995, 10 October 1995, 12 December 1995, 12 February 1996 and 2 April 1996.
19. Following an application by the first applicant on 15 March 1998, a hearing was set down for 11 December 1998. The hearing was finally held on 28 May 1999. On 21 June 1999 the first-instance court found in favour of the first applicant (decision no. 98ΤΠ/1999).
20. On 7 December 1999 M. appealed against that decision. The proceedings are currently pending before the Aegean Court of Appeal. The parties have not yet applied for a hearing to be fixed.
21. On 23 June 1993 the applicants received a notice to the effect that their house in Ayia Kiriaki-Apokofto had been built without authorisation and should be demolished. The applicants appealed to the competent administrative board. Their appeal was rejected on 28 September 1994.
22. On 6 October 1994 they applied to the Supreme Administrative Court for judicial review of the decision of the administrative board. On a request by the applicants, the Supreme Administrative Court decided to suspend the demolition of the applicants’ house (decision no. 790/1994).
23. At first, the hearing was set down for 28 November 1995 but it was repeatedly postponed.
24. In 1999 a new law (no. 2721/1999) changed the rules of jurisdiction and the case was referred to the Piraeus Court of Appeal, which heard the case on 27 June 2000. The proceedings are still pending.
25. Article 108 of the Code of Civil Procedure reads as follows:
“The parties shall be responsible for taking procedural steps on their own initiative unless the law provides otherwise”.
26. Sections 15 and 16 of Law no. 1337/1983 provide that the demolition of a building constructed on the basis of a building permit which has subsequently been revoked for any reason is to be suspended if the owner of the building acted in good faith.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-69503
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: DZIEDZIC v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ryszard Dziedzic, is a Polish national who was born in Poland and lives in Kołobrzeg.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 August 1995 the applicant was sued by certain H.B. and W.B., the owners of the “Bart-Lex” company, before the Kołobrzeg District Court Court (Sąd Rejonowy). They sought his eviction.
The proceedings are pending.
On 27 October 1995 the applicant lodged a claim against the “Bart-Lex” company with the Kołobrzeg Regional Court (Sąd Okręgowy). He sought a judgment stipulating that the defendant was obliged to make a declaration of will (oświadczenie woli) in the form of a consent to the sale contract.
The proceedings are pending.
On 15 April 1996 the applicant sued the “Bart-Lex” company before the Kołobrzeg District Court, seeking payment.
The proceedings are pending.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-23340
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: MIHAILESCU v. ROMANIA
IMPORTANCE: 2
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Florin Mihăilescu, is a Romanian national, who was born in 1924 and lives in Fălticeni, Suceava county. The respondent Government are represented by their Agent, Mr Bogdan Aurescu.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1967 the applicant applied for a patent for an invention. In 1971 the State Patent Office issued the patent to the applicant. In 1972 the Ministry of Finance and the National Council for Science and Technology fixed the royalties to be paid to the applicant for the exploitation of the invention covered by the patent. The exploitation of the invention was then assigned to a State enterprise, together with a special fund to cover the royalties due to the inventors including the applicant.
In 1973, after the applicant had received 95,000 Romanian lei (ROL), the payment of further royalties was suspended. In 1974 Parliament adopted law no. 62/1974 which considerably reduced the royalties payable for the use of inventions. In 1991 Parliament adopted law no. 64/1991 which provided, inter alia, for compensation to be given to persons who had suffered loss as a result of the prejudicial effects of law no. 62/1974.
On 18 October 1993 the applicant lodged with the Regional Court of Bucharest a claim for the royalties which the above-mentioned State enterprise owed him under the original patent for the use of the invention.
On 31 January 1996, the Regional Court of Bucharest allowed the claim and ordered the enterprise to pay the applicant ROL 43,082,257 in royalties as well as court fees amounting to ROL 200,000.
Both parties appealed. The applicant, being dissatisfied with the amount awarded, argued that the first instance court had failed to take account of the need to index-link the hourly rate and the minimum wage when calculating the compensation due to him on the basis of his original patent. The defendant argued that, in 1986, it had stopped using the method which was the central feature of the applicant’s invention. For that reason, the applicant’s entitlement to compensation after that date was time-barred.
On 15 January 1997 the Bucharest Court of Appeal allowed the applicant’s appeal and amended in part the decision of the Regional Court of Bucharest by awarding him ROL 73,761,200 in compensation. The court rejected the defendant enterprise’s appeal and upheld the remainder of the decision.
The defendant lodged an appeal with the Supreme Court against both decisions, arguing that the applicant’s action had been lodged out of time. On 19 June 1997, the Supreme Court rejected the appeal as unfounded and upheld the decisions of the Regional Court and the Court of Appeal, finding that the applicant had lodged his action in time.
On 15 September 1997 the applicant and the chief-engineer employed by the defendant enterprise signed the minutes of a preliminary settlement meeting wherein it was stated that State funds for payment of inventors’ royalties had never been made available to the enterprise. The minutes further mentioned that, before drawing up the record of negotiations, the Ministry of Finance and the State Property Fund were to specify the manner in which the sum due to the applicant was to be paid.
In 1997 the applicant complained to the Ministry of Finance about the non-enforcement of the original judgment. In a letter of 19 September 1997 the Ministry informed the applicant that the judgment had to be implemented, failing which the applicant could lodge a further claim for damages.
On 14 April 1998, following the applicant’s request, the bailiffs of the Regional Court of Bucharest drew up a minute on the enforcement of the judgment of 31 January 1996. The minute mentioned inter alia that the director general of the enterprise had declared that he was aware of the sum owed to the applicant pursuant to that judgment, but that the sum in question could not be paid on account of lack of funds; the bailiffs had therefore seized two items of the enterprise’s stock valued at ROL 416,803,322 and ROL 223,011,794, respectively. These items remained on the enterprise’s premises. The bailiffs also fixed a 30 days’ time limit for the enforcement of the judgment. On an unspecified date in 1998, the bailiffs informed the applicant that they had failed to sell the goods seized from the enterprise as no potential purchasers had been found.
In a letter dated 2 September 1998, following the applicant’s complaint about the non-enforcement of the above judgment, the Vrancea Office of the State Property Fund informed the applicant that it was a minority shareholder in the enterprise, that the enterprise was in financial difficulties and was not therefore in a position to satisfy the applicant’s judgment debt. The letter mentioned that the Fund had decided that the enterprise should pay the applicant an advance of ROL 2,000,000 by 8 September 1998, the rest being paid once the seized goods had been sold. However, no action was ever taken to enforce that decision.
On an unspecified date in 2001, one of the enterprise’s creditor companies instituted bankruptcy proceedings against the enterprise. On 4 December 2001, in accordance with the Government Ordinance no. 11 of 23 January 1996 concerning the enforcement of debts payable to the State budget, various assets of the debtor enterprise were sold at a public auction.
On 17 January 2002 the Vrancea Regional Court made the debtor enterprise subject to liquidation proceedings in accordance with law no. 64/1995 concerning judicial reorganisation and bankruptcy. The court also appointed one of the creditor companies as administrator of the assets of the debtor enterprise.
On 21 March 2002 the Vrancea Regional Court declared the debtor enterprise bankrupt.
The relevant provisions of Law no. 64 on patents of 11 October 1991 read as follows:
Section 61
“Disputes concerning the capacity of an inventor or patent holder, other rights arising from a patent, including the inventor’s pecuniary rights, as well as from contracts of assignment and licence (...), fall within the competence of the courts of law (...).”
Section 66 (2)
“Pecuniary rights due to inventors on the basis of patents granted to them for their inventions which have been exploited, partially remunerated or unremunerated, prior to the entry into force of the present law, shall be negotiated between the inventor and the entity which has used the invention. (...) Should the parties fail to reach an agreement, the pecuniary rights shall be established pursuant to the provisions of Article 61 of this law.”
The relevant provisions of the Decision of the Government of Romania of 30 April 1992 approving the Regulation concerning the application of Law no. 64 on patents of 11 October 1991 read as follows:
Chapter 5
“The pecuniary rights of inventors provided in Article 66 § 2 of the Law
Rule 53 - Inventions applied and unremunerated or partially remunerated
(1) (...) These pecuniary obligations shall be considered due as a result of the non-fulfilment by the State, represented by the entities to which the patent had been granted and other entities which have exploited the inventions, of its legal and contractual obligations (...).”
The relevant provisions of the Romanian Code of Civil Procedure read as follows:
“Any enforcement proceedings may be challenged by any aggrieved person or other person concerned.“
The relevant provisions of Law no. 64 on judicial reorganisation and bankruptcy of 22 June 1995 read as follows:
Section 1
“The present Law shall be applicable to commercial entities - natural persons or commercial enterprises -, which are unable to meet their commercial debts (...).
Section 29
(1) Any creditor, which has a specific, liquid and enforceable debt, shall be entitled to bring before a court a claim against the debtor, which for at least 30 days has ceased to make payments.
Section 31
(2) Within 48 hours from the registration of the creditor’s claim (...), the judge appointed to administer the assets of the debtor shall forward a copy of the claim to the debtor (...).”