ITEMID: 001-81321
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MALECHKOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5
JUDGES: Peer Lorenzen
TEXT: 6. The applicant was placed in preliminary detention on 3 July 1998 under an order of an investigator on the suspicion of having raped a minor on the previous day, 2 July 1998. The arrest was undertaken on the basis of a complaint filed by the victim whereby she had identified the applicant as one of the persons who had raped her. On the same day, the preliminary detention of the applicant was extended until 6 July 1998 by order of a prosecutor.
7. Based on the complaint filed by the victim and the evidence collected by the police, a preliminary investigation was opened against the applicant on 6 July 1998. On the same day, he was charged with aggravated rape of a defenceless minor perpetrated on two occasions on 2 July 1998 together with another two individuals. By virtue of the same order, confirmed by the Prosecutor's Office later in the day, the applicant was detained on remand. He was presented with the aforesaid order and countersigned it on the same day.
8. On 13 and 15 July 1998 the applicant filed appeals against his detention, which were examined and dismissed by the Pazardzhik Regional Court by decision of 20 July 1998. The court found that because the applicant was charged with a serious intentional offence there was a risk that he might abscond.
9. The charges against the applicant were amended on 14 May and 24 June 1999. On both occasions the detention on remand was maintained on the grounds of the applicant's personality and the seriousness of the offence.
10. On 28 June 1999 the preliminary investigation was concluded with a proposal that an indictment be filed against the accused.
11. The Pazardzhik Regional Prosecutor's Office amended the charges against the applicant on 29 June 1999.
12. The Pazardzhik Regional Prosecutor's Office entered an indictment against the applicant on 7 July 1999 charging him with being an accomplice to the rape of a minor using threats or force (Article 152 § 3 (1), in conjunction with § 2 (1) and § 1 (2) of the Bulgarian Criminal Code).
13. On an unspecified date the victim joined the proceedings as a civil claimant.
14. On 10 or 11 August 1999 the applicant appealed against his detention claiming, inter alia, that he had a permanent address and that the worsening financial situation of his family would preclude any possibility that he might abscond. With a resolution of 10 September 1999 the Pazardzhik District Court decreed that the appeal would be examined at the next court hearing.
15. At a hearing on 4 October 1999 the Pazardzhik District Court dismissed the applicant's appeal. It considered that there were no new circumstances following his previous appeal of July 1998, that he was still charged with a serious intentional offence and, therefore, that there was still a risk that he might abscond, attempt to intimidate the victim and the other witnesses, and obstruct the discovery process in the proceedings. The lack of employment of the applicant was considered a contributory element to the risk that he might abscond. The court did not consider the length of the detention to be a reason onto itself which might justify a reassessment of the justification of the applicant's deprivation of liberty.
16. On 10 November 1999, on appeal by the applicant of 6 October 1999, the Pazardzhik Regional Court upheld the lower court's decision on similar grounds.
17. On 6 December 1999 the applicant filed another appeal against his detention.
18. At the court hearing on the same day, the Pazardzhik District Court dismissed the appeal as it considered that the seriousness of the offence still inferred that he might abscond and re-offend. The court also considered that the length of the applicant's detention could not in itself warrant his release. At the end of the hearing, the court withdrew to deliver its judgment.
19. In a judgment of 7 December 1999 the Pazardzhik District Court found the applicant and his two accomplices guilty as charged. He was sentenced to seven years' imprisonment and ordered to pay damages to the victim.
20. The applicant appealed against the judgment on 4 January 2000 claiming that the imposed sentence was unjustified and unsupported by the evidence in the case.
21. The hearings of 16 and 30 May 2000 before the Pazardzhik Regional Court were postponed due to improper summons of the civil claimant.
22. The applicant's appeal was examined at the next hearing on 27 June 2000.
23. In a judgment of 27 September 2000 the applicant's appeal was dismissed by the Pazardzhik Regional Court. The applicant did not appeal further and the aforementioned judgment became final on 27 October 2000.
24. The applicant was held at the Pazardzhik Regional Investigation Service from 3 July to 10 November 1998. He was then transferred to the Pazardzhik Prison where he remained until 11 January 2001 before being moved to the Sofia Prison. It is unclear when he was released.
25. The applicant claimed, which the Government subsequently challenged, that at this detention facility (1) there had been insufficient fresh air and sunlight in the cells; (2) there had been no exercise or healthy food; (3) hygiene had been lacking; (4) he had been denied access to newspapers, books, radio and television; (5) he could not meet with his representative in private, and (6) he could not maintain an active correspondence. In support of his assertions, the applicant submitted signed declarations from himself and another detainee, Mr D.G.
26. In his declaration, the applicant claimed that he had been held in isolation for the duration of his detention at this facility in a cell which measured 67 sq. m. There had been two wooden beds covered with worn and torn mattresses, blankets and pillows. There had been fleas, cockroaches and mice.
There had been no windows and the only fresh air entering the cell had come from the corridor through a grate above the door. There had been only artificial light which had been constantly switched on.
The applicant had to satisfy the needs of nature in a bucket inside the cell, the contents of which were removed twice a day. He had access to sanitary facilities twice a day for three to five minutes during which time he had to throw out the bucket and pour himself drinking water in a dirty plastic bottle. The applicant bathed and shaved once a week with cold water.
The food had been insufficient and lacked any meat. The applicant received half a kilogram of bread every day. He had to eat without cutlery from dirty plastic dishes.
No exercise had been provided and he had not been allowed to read newspapers, magazines and books.
27. Mr D.G., in his declaration, corroborated the applicant's statements.
28. The applicant claimed, which the Government subsequently challenged, that at this detention facility (1) there had been insufficient fresh air and sunlight in the cells; (2) there had been no exercise or healthy food; (3) hygiene had been lacking; (4) he had been denied access to newspapers, books, radio and television; (5) he could not meet with his representative in private, and (6) he could not maintain an active correspondence. The applicant also submitted signed declarations from himself and another detainee, Mr I.S.
29. In his declaration, the applicant stated that the conditions in the Pazardzhik Prison had initially been similar to those at the Pazardzhik Regional Investigation Service, but that they had improved in 1999. In addition and contrary to some of his complaints, he stated that he had been allowed to have visitors, that the food had consisted of meat or fish several times a week, that he had the ability to watch television, listen to the radio and read books and newspapers. The applicant also stated that he had access to other pastimes at this detention facility, that the sanitary facilities had been situated in the cell itself and that pest extermination activities had been undertaken on a regular basis.
30. Mr I.S., in his declaration, corroborated the applicant's statements.
31. The relevant provisions of the Code of Criminal Procedure (the “CCP”) and the Bulgarian courts' practice before 1 January 2000 are summarised in the Court's judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)).
32. On the basis of the relevant law before 1 January 2000, when ruling on appeals against pre-trial detention of a person charged with having committed a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person's absconding or committing offences and stated that every person accused of having committed a serious offence must be remanded in custody unless exceptional circumstances dictated otherwise (see decisions of the domestic authorities criticised by the Court in the cases of Nikolova and Ilijkov, both cited above, and Zaprianov v. Bulgaria, no. 41171/98, 30 September 2004).
33. The State Responsibility for Damage Act of 1988 (the “SRDA”) provides that the State is liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts for unlawful pretrial detention, if the detention order has been set aside for lack of lawful grounds (sections 1-2).
34. In respect of the regime of detention and conditions of detention, the relevant domestic law and practice under sections 1 and 2 of the SRDA has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 7680, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 5660, 8 April 2004).
35. The CPT visited Bulgaria in 1995, 1999, 2002, 2003 and 2006. All but its most recent visit report have since been made public.
36. The Pazardzhik Prison was visited by the CPT in 1995, while the Pazardzhik Regional Investigation Service was visited both in 1995 and in 2006. The report from the latter visit has not yet been made public.
37. There are also general observations about the problems in all Investigation Service detention facilities in the 1995, 1999 and 2002 visit reports.
38. The CPT found that most, albeit not all, of the Investigation Service detention facilities were overcrowded. With the exception of one detention facility where conditions were slightly better, the conditions were as follows: cells did not have access to natural light; the artificial lighting was too weak to read by and was left on permanently; ventilation was inadequate; the cleanliness of the bedding and the cells as a whole left much to be desired; detainees could access a sanitary facility twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in buckets inside the cells; although according to the establishments' internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to five to ten minutes or not allowed at all; no other form of out-of-cell activity was provided to persons detained.
39. The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day's “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or halva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery – not even a spoon was provided.
40. The CPT also noted that family visits and correspondence were only possible with express permission by a public prosecutor and that, as a result, detainees' contacts with the outside world were very limited. There was no radio or television.
41. The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading”. In reaction, the Bulgarian authorities agreed that the CPT delegation's assessment had been “objective and correctly presented” but indicated that the options for improvement were limited by the country's difficult financial circumstances.
42. In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc.), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for thirty minutes' exercise per day be fully respected in practice, that cell lighting and ventilation be improved, that the regime of family visits be revised and that pre-trial detainees be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees at least one hour's outdoor exercise per day was to be examined as a matter of urgency.
43. The CPT established that the Pazardzhik Regional Investigation Service had fifteen cells, situated in the basement, and at the time of the visit accommodated thirty detainees, including two women in a separate cell.
44. Six cells measuring approximately twelve square metres were designed to accommodate two detainees; the other nine, intended for three occupants, measured some sixteen-and-a-half square metres. This occupancy rate was being complied with at the time of the visit and from the living space standpoint was deemed acceptable by the CPT. However, all the remaining shortcomings observed in the other Investigation Service detention facilities – dirty and tattered bedding, no access to natural light, absence of activities, limited access to sanitary facilities, etc. – also applied there. Even the thirty-minute exercise rule, provided for in the internal regulations and actually posted on cell doors, was not observed.
45. In this report the CPT found, inter alia, that the prison was seriously overcrowded and that prisoners were obliged to spend most of the day in their dormitories, mostly confined to their beds because of lack of space. It also found the central heating to be inadequate and that only some of the dormitories were fitted with sanitary facilities.
46. The CPT noted that new rules providing for better conditions had been enacted but had not yet resulted in significant improvements.
47. In most investigation detention facilities visited in 1999, with the exception of a newly opened detention facility in Sofia, conditions of detention were generally the same as those observed during the CPT's 1995 visit, as regards poor hygiene, overcrowding, problematic access to toilet/shower facilities and a total absence of outdoor exercise and outofcell activities. In some places, the situation had even deteriorated.
48. In the Plovdiv Regional Investigation detention facility, as well as in two other places, detainees “had to eat with their fingers, not having been provided with appropriate cutlery”.
49. During the 2002 visit some improvements were noted in the country's investigation detention facilities, severely criticised in previous reports. However, a great deal remained to be done: most detainees continued to spend months on end locked up in overcrowded cells twenty-four hours a day.
50. Concerning prisons, the CPT drew attention to the problem of overcrowding and to the shortage of work and other activities for inmates.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-3
5-4
5-5


ITEMID: 001-57801
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF X v. FRANCE
IMPORTANCE: 2
CONCLUSION: Questions of procedure rejected;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Feyyaz Gölcüklü;N. Valticos
TEXT: 8. Mr X, a French national born in 1963, died on 2 February 1992 after several stays in hospital. He lived in Paris with his parents. He received a State allowance of 3,000 French francs per month as a disabled adult and did not pursue an occupation.
9. Mr X was a haemophiliac and had undergone several blood transfusions, in particular between September 1984 and January 1985 at the Saint-Antoine hospital in Paris. On 21 June 1985 it was discovered that he was HIV (Human Immunodeficiency Virus) positive.
10. As other haemophiliacs had been infected by HIV, the French Association of Haemophiliacs tried to obtain compensation from the State for the damage suffered by its members who had been so infected. Since it was unable to secure a settlement, the Association recommended to its members that they should institute proceedings before the four-year limitation period expired.
11. On 1 December 1989 the applicant addressed - as he was required to do under Article R.102 of the Administrative Courts’ Code (see paragraph 23 below) - a preliminary claim for compensation to the Minister for Solidarity, Health and Social Protection. He sought an amount of 2,500,000 francs; he had, he maintained, been infected by HIV as a result of the negligent delay of the Minister in implementing appropriate rules for the supply of blood products.
Six hundred and forty-nine other such claims were sent to the Minister.
12. On 30 March 1990, the day before the expiry of the statutory limit of four months (see paragraph 23 below), the Director General for Health rejected Mr X’s claim.
13. Mr X applied for legal aid on 27 April 1990; he was granted it on 8 June. On 30 May he filed an application in the Paris Administrative Court for the annulment of the ministerial decision and for an order requiring the State to pay him compensation of 2,500,000 francs plus statutory interest.
Some four hundred applications lodged by persons who were in the same situation were brought before the administrative courts. They were assigned to the Paris Administrative Court and raised questions some of which were common to all the cases (responsibility of the State in fixing the rules for blood transfusions) and some of which were peculiar to each individual case (date and conditions of infection).
14. On 11 July 1990 the applicant lodged a memorial, which the administrative court forwarded to the Minister on 22 August; he stressed in particular the consequences for him of the discovery that he was HIV positive and of "the idea that he was potentially afflicted with an incurable disease". In a supplementary memorial of 29 October 1990 he emphasised the urgency of his case:
"... the applicant’s state of health has deteriorated since September 1990 as is attested by the medical certificate produced.
It is for this reason that he asks the court to apply Article R.111 [(see paragraph 23 below)] of the Administrative Courts’ Code, i.e. to give formal notice to the defendant Minister to the effect that he must make his submissions.
Such notice would make it possible to respect the applicant’s right to have his case heard within a reasonable time in accordance with Article 6 (art. 6) of the European Convention on Human Rights.
This right must be respected taking into account his state of health and particularly because, as the Minister expressly rejected the preliminary application, the applicant’s file has necessarily already been examined; the authorities do not therefore require any special extension of time in order to prepare their defence such as would justify an infringement of the applicant’s right under the European Convention on Human Rights.
FOR THESE REASONS
The applicant requests the Paris Administrative Court to give to the Minister for Health, Solidarity and Social Protection formal notice that he is to produce his defence submissions speedily, and maintains his previous submissions."
The medical certificate in question, which had been drawn up by Professor Frottier, stated:
"I the undersigned, Senior Consultant, certify that Mr [X] ... has for a long time been a patient in the haemostasis and blood transfusion department of the Saint-Antoine establishment of the CNTS (Centre national de transfusion sanguine - National Blood Transfusion Centre).
He was taken into hospital for the first time in the department of infectious diseases from 17 to 27 September 1990, then he was re-admitted to the Saint-Antoine hospital on 5 October 1990, first in the general medical ward, then in intensive care and then, from 11 October 1990, in the infectious diseases department, where he is at present.
His condition warrants his being taken into care for an indefinite period by a department specialising in the treatment of infectious diseases.
... ."
15. The Minister for Social Affairs and Solidarity replied by a memorial dated 12 December 1990, lodged on 21 February 1991 and communicated to the applicant on 27 February. In it he called upon the court to "dismiss the applicant’s claim", but added:
"However, in the event of the court’s finding itself able to accept the principle of negligence on the part of the State, I would ask you to appoint an expert with a view to establishing whether the damage for which the applicant seeks compensation is genuinely attributable to such negligence."
16. On 3 April 1991 the applicant submitted his reply, in which he asked that the application for an expert opinion be rejected. He stated:
"The applicant claims primarily that the application for an expert opinion should be dismissed, as such an opinion was requested by the defendant Minister only to establish whether the damage sustained by the applicant was indeed attributable to his negligence.
As the causal connection has been clearly established by the evidence in the applicant’s file, the only question to be ruled on by the court is whether the Minister was negligent.
This assessment of whether the delay in taking the measures for protection of public health which he was under a duty to take was negligent may be made in the light of the evidence before the court, which can in addition request the communication of the expert opinion of Professor Jacquillat before the tribunal de grande instance.
In the further alternative, should the court call for a new expert (Professor Jacquillat unfortunately having died), the expert appointed should be able to have access to his predecessor’s work."
17. On 5 April, 27 May and 28 June 1991, the President of the relevant section of the Paris Administrative Court asked the Minister or the Director of the National Blood Transfusion Foundation, as the case may be, for certain information and documents; they replied to these requests on 25 April, 6 June, 26 July and 30 October 1991. These various investigative measures concerned all the litigation involving infected haemophiliacs pending before the Paris Administrative Court.
One of the documents which was added to the file as a result was a report entitled "Blood Transfusion and AIDS in 1985. Chronology of the facts and decisions with regard to haemophiliacs"; the General Inspectorate of Social Affairs (I.G.A.S.) had drawn up this report on 10 September 1991, at the request of the Minister for Social Affairs and Integration and the Deputy Minister for Health on the previous 10 June. It set out the facts and analysed the decisions taken, essentially between 1983 and 1985, with a view to ensuring "safe transfusions" over the first years of the development of AIDS.
Mr X was informed of these various investigative measures on 6 September 1991. The documents produced both by the authorities and the National Blood Transfusion Foundation were communicated to him.
18. On 10 and 17 September 1991 he submitted two supplementary memorials in which he stated that he had now "developed full AIDS" (acquired immune deficiency syndrome). The second memorial contained an application for interim relief in the form of an advance (see paragraph 23 below).
The Ministry of Social Affairs and Solidarity lodged a further defence memorial on 30 October and on 7 November the court asked the applicant to produce various medical documents.
19. The hearing in the Paris Administrative Court was held on 18 December 1991. Two days later the court dismissed Mr X’s claims on the following grounds:
"...
Mr [X] claims that the State is liable on account of alleged negligence on the part of the Minister responsible for Health in exercising the powers of health policy vested in him pursuant to the combined provisions of Articles L. 668 and L. 669 of the Public Health Code; in support of his submissions the applicant argues that the Minister delayed prohibiting the distribution to haemophiliacs of blood products contaminated with the human immunodeficiency virus (HIV) although, as early as 1983, the process of heat- treating blood made it possible to inactivate the virus; he further complains that the relevant ministry did not inform the haemophiliac community of the serious risks incurred through the use of such products; the ministerial authority is also criticised for having, in the exercise of its powers of health policy, on 23 July 1985, postponed until 1 October 1985 the ending of reimbursement by health insurance funds of the blood products used by the haemophiliacs, a measure which it is agreed amounted in fact to a prohibition owing to the high cost of the products known as `factors VIII and IX’;
In a new pleading filed on 11 July 1990, Mr [X] argues in the alternative that the State is also liable on the ground of liability for presumed negligence in the organisation and functioning of the public service of blood transfusion; he further alleges that the State is liable on the basis of the risk arising from the reckless activity of the public blood transfusion service ;
The liability of the State
The public blood transfusion service in France is run by private associations, having none of the prerogatives of a public authority, which are moreover exclusively exercised by the State as holder of the specific powers of health policy (as indicated above); the State is, however, neither prescriber, nor manufacturer, nor supplier of the offending blood products[;] accordingly its liability may be incurred only on account of negligent acts committed in the exercise of its regulatory powers and it is for the applicant to prove that such negligence occurred;
The investigation shows that progress in scientific knowledge concerning HIV, whose first pathological manifestations appeared as early as 1980, from the point of view both of its transmission and of the techniques for its inactivation, was very slow and was the subject of controversy within the scientific community itself; in particular, although the process of heat-treating blood was approved by the American health authorities as early as the beginning of 1983, this technique was developed to combat the hepatitis virus; its effectiveness against HIV remained purely hypothetical for several months; moreover, some researchers feared that the use of this technique would be likely to have an adverse effect on the products’ clotting and auto-immunising property; although such fears proved unfounded, an assessment of the liability incurred must necessarily be made on the basis of the scientific knowledge available at the time; in confining itself to issuing, by way of a circular on 20 June 1983, a recommendation concerning the selection of blood donors, for the information of donors and doctors at transfusion centres about the potential risks of infection, the administrative authority did not therefore commit a negligent act such as to render it liable; the same applies, for identical reasons, to the lack of information furnished to the haemophiliac community concerning the risks to which they were exposed;
However, after this date scientific knowledge constantly progressed; the State, which was moreover an ex officio member of the National Blood Transfusion Foundation, could not fail to have been aware both of such progress and of the spread of the epidemic, and it could not plead the lack of availability of reliable HIV screening tests in order to justify its "wait-and-see" policy once cases of AIDS in the haemophiliac community had revealed the existence of a statistically significant causal relationship between the administration of blood product derivatives and HIV infection; even granted that there remained some uncertainties concerning hypothetical side effects of the heat-treatment technique at the beginning of 1985, the revelation of the scale of the predicted health catastrophe demanded that the distribution of contaminated blood products be halted rigorously and without delay;
The investigation, and in particular the report of the General Inspectorate for Social Affairs, shows that the ministerial authority was informed at the latest and in unequivocal terms on 12 March 1985 of the very strong probability that in the Paris region "all blood products prepared from pools of Parisian donors [were] currently contaminated"; the author of the report appositely noted that the importance of this message did not seem to have been perceived; in failing to adopt immediately a measure prohibiting the distribution of such products, either by legislation or taking appropriate practical measures, the authority responsible for health policy thus committed a negligent act such as to render the State liable;
Moreover, when on 23 July 1985 the authority correctly assessed the danger to health in deciding that non-heat- treated blood products should no longer be reimbursed, it saw fit to postpone the date on which its decision was to take effect until 1 October 1985; given the certainty established at that time that all blood products were contaminated, it cannot, in order to justify opting for a transitional period, plead either the consent of the haemophiliac community, which had in any case not been accurately informed of the scale of the catastrophe, or an alleged need to maintain haemophiliacs’ self-sufficiency, while decontaminated products were available on the international market;
On the other hand, the physiological consequences of re- infection of those who were already HIV positive on 12 March 1985, made possible through the shortcomings of the State referred to above, are entirely hypothetical in the present state of scientific knowledge; consequently, the alleged damage from re-infection is purely contingent and cannot give rise to a right to compensation;
It follows from all the foregoing that the State is liable in respect of haemophiliacs who were infected by HIV in the course of transfusion of non-heat-treated blood products, during the period of liability defined above, between 12 March and 1 October 1985;
Although the State, as indicated above, is neither the prescriber, nor the manufacturer, nor the supplier of the offending blood products, and although it is for the courts alone to assess whether the blood transfusion centres have incurred liability, nonetheless the task of such centres is to provide a public service, and accordingly there are grounds for the administrative court to order the State to pay compensation for the whole of the damage suffered;
The causal relationship between the damage suffered by Mr [X] and the liability of the State
Even if Mr [X], who received for the treatment of his haemophilia not clotting factors VIII or IX, which it has been established above were negligently distributed, but A cryoprecipitates, may validly claim that the State is liable, the case-file shows that he was found to be HIV positive on 20 March 1985, a condition, which, taking into account an irreducible period of seroconversion, must be regarded as having actually arisen prior to the beginning of the period of the State’s liability defined above, and consequently the submissions of his application must be dismissed;"
20. As the trial court had given its decision, the application for an advance was rejected by an order of 15 January 1992 (see paragraph 18 above).
21. On 20 January 1992 Mr X appealed to the Paris Administrative Court of Appeal; the proceedings in that court, which have been continued by his parents, are still pending.
22. The participants in the Strasbourg proceedings provided the Court with information concerning the various schemes for compensating AIDS victims introduced since 10 July 1989, in particular by Law no. 91-1406 of 31 December 1991 "on various social welfare provisions" (Journal officiel de la République française of 4 January 1992).
23. At the material time the Administrative Courts’ Code contained, inter alia, the following provisions:
"Except in cases concerning public works, proceedings may not be instituted in the Administrative Court otherwise than in the form of an appeal against a decision; such an appeal shall be lodged within two months of the notification or the publication of the contested decision.
Where no reply is forthcoming from the relevant authority for more than four months, that silence is to be construed as a decision rejecting the complaint.
... "
"The President of the Administrative Court shall give a formal warning (mise en demeure) to the relevant authority or to a party who has failed to comply with the time-limit laid down pursuant to Articles R.105 and R.110; in a case of force majeure, a new and final time-limit may be accorded."
"The President of the Administrative Court or of the Administrative Court of Appeal, or the judge delegated by one of the latter, may award an advance to a creditor whose application on the merits is pending before the court in question, where the existence of an obligation cannot seriously be contested. He may, even of his own motion, make the payment of the advance subject to the lodging of a security."
"Immediately after the application instituting the proceedings has been registered with the registry, the President of the court or, in Paris, the President of the section to which the application has been transmitted, shall appoint a rapporteur.
Under the authority of the President of the competent court, the rapporteur shall, having regard to the if necessary, to the parties for the production of supplementary memorials, observations, statements of defence or replies. He may request the parties to supply any evidence or documents relevant to the solution of the dispute, to be added to the file so as to be accessible to all parties."
"A member of the Administrative Court or of the Administrative Court of Appeal may be assigned by the competent court or by the latter’s President to carry out any investigative measures other than those provided for in sections 1 to 4 of this chapter."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90025
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: COLLINGBORN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant is a British national. He was born in 1933 and lives in Gosport, Hampshire. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott, of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 7 March 1990 at the age of 65. She had been in receipt of a retirement pension for over five years. He made a first enquiry in 1991 to the Department of Social Security about inheriting part of his wife’s pension, and received a negative response. He reached State pension age in January 1998. He made further enquiries over the period 2001-2003 about the possibility of receiving additional pension on the basis of the social security contributions paid by his wife, and submitted a claim for bereavement benefits on 2 October 2003. The claim was rejected by the Benefits Agency on 9 October 2003. The applicant appealed, and expressly raised the issue of inherited pension. By a decision of 12 February 2004, the Social Security Appeals Tribunal (SSAT) upheld the Benefits Agency’s decision regarding bereavement benefits. It did not address the applicant’s claim for inherited pension, as this matter had not been part of the decision under appeal. The applicant sought leave to appeal to the Social Security Commissioners. This was refused by a decision of the Commissioner of 18 May 2004, who held that the inherited pension issue had not been before the SSAT, which had therefore lacked jurisdiction to consider it. The applicant applied for permission to seek judicial review of the Commissioner’s decision. Permission was refused by Mr Justice Mitting on 18 October 2004, who observed that the Commissioners had been bound to refuse leave to appeal. He noted that the correct course of action for the applicant seemed to be to make a clear, separate claim for inherited pension. The applicant made a separate claim for inherited pension on 7 March 2006. He was informed by the Pension Service, in a letter dated 23 March 2006, that his pension could not be increased. His subsequent appeal was held to be inadmissible. The SSAT informed him that since the relevant decision in his case dated from 7 November 1997, his appeal was out of time.
The possibility of obtaining a higher retirement pension was introduced by the National Insurance Act 1959. This made provision for the payment of extra social security contributions by employees, entitling them to receive Graduated Retirement Pension (GRB) along with the basic State contributory pension. Where a married man who had paid such extra contributions died, his widow was entitled to receive an additional pension equal to half the rate of the deceased’s GRB. This was payable immediately if the widow had already reached pensionable age, or upon reaching pensionable age, as long as she had not remarried. The scheme thus afforded some additional financial protection for widows in old age. Subsequent legislative reform ended the payment of graduated contributions in April 1975. The right of widows already receiving part of their husband’s GRB, or to receive it when they reached pensionable age, was preserved. GRB was replaced by State Earnings-Related Pension Scheme (SERPS), introduced by the Pensions Act 1975. This too provided for widows to inherit part of the pension earned by their husbands.
The right of widowers to inherit part of the additional pension earned by their wives took effect on 5 April 1979. Men widowed after that date could receive a higher pension on condition that their wives had satisfied the prescribed conditions and that both husband and wife had attained pensionable age at the time of bereavement, a condition that did not apply to widows. The social security position of widowers was generally improved as of 9 April 2001, from which date they became entitled, in principle, to an identical suite of bereavement benefits to widows (for details of the relevant legislative provisions, see Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, §§ 18-20, 10 May 2007). This group of widowers may inherit additional pension under the same conditions as widows. According to the Government, Parliament opted to achieve full equalisation in relation to inherited additional pension in stages. This will take effect on 6 April 2010. All widowers who reach pensionable age after that date, irrespective of when their wives died, will be able to claim additional pension on the basis of the social security contributions paid by the latter. This change will not, therefore, affect the applicant.


ITEMID: 001-75589
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BEDNOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-4;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1964 and lives in Krivoborye, Voronezh Region.
8. On 25 July 2001 the applicant was arrested on suspicion of robbery.
9. On 27 July 2001 the Prosecutor ordered the pre-trial detention of the applicant as a preventive measure.
10. The applicant filed a complaint on 6 August 2001 with the Liskinskiy District Court of the Voronezh Region and on 7 August 2001 with the Voronezh Regional Court, claiming that his detention was unlawful.
11. On 9 August 2001 the applicant lodged an application for release pending trial with the Voronezh Regional Court. The application was sent by the administration of the remand prison on the same date and was received by that court on 14 August 2001.
12. On 16 August 2001 the applicant lodged another application for release pending trial with the Voronezh Regional Court. On the same date the Voronezh Regional Court forwarded the applicant’s application for release to the Zhelesnodorozhniy District Court of Voronezh. It is unclear whether that application was the one dated 9 August or 16 August 2001.
13. On 23 and 27 August 2001 the applicant again lodged applications for release pending trial with the Voronezh Regional Court. The application of 23 August 2001 was sent by the administration of the remand prison on the same date and was received by that court on 27 August 2001.
14. The Government submitted that on 23 August 2001 the Voronezh Regional Court had sent the applicant certain clarifications concerning Article 220-1 of the Code of Criminal Procedure.
15. The applicant submitted that on 27 August 2001 he had received a reply from the Voronezh Regional Court informing him that all his complaints and applications had been transmitted to the Liskinskiy District Court.
16. On 31 August 2001 the Voronezh Regional Court forwarded the applicant’s application to the Liskinskiy District Court. It is unclear to which of the applications this corresponded.
17. On 7 September 2001 the applicant was transferred to a different remand prison.
18. On 11 September 2001 the investigative authorities forwarded certain documents from the applicant’s case file to the Zhelesnodorozhniy District Court for examination under Article 220-2 of the Code of Criminal Procedure.
19. On 20 September 2001 the Liskinskiy District Court forwarded the applicant’s application for release pending trial to the Zhelesnodorozhniy District Court referring to the fact that the applicant was being held in a remand prison within the latter court’s jurisdiction. The application was received by the Zhelesnodorozhniy District Court on 24 September 2001.
20. On 26 September 2001 the administration of the remand prison where the applicant used to be held informed the Zhelesnodorozhniy District Court that the applicant could not be conveyed to a hearing on that date because on 7 September 2001 he had been transferred to the Liskinskiy District. It appears that the hearing was supposed to concern the application for release pending trial.
21. On 2 October 2001 the Zhelesnodorozhniy District Court forwarded the applicant’s applications for release pending trial to the Liskinskiy District Court. It is unclear which particular applications were concerned.
22. On 3 October 2001 the administration of the remand prison where the applicant used to be held again informed the Zhelesnodorozhniy District Court that the applicant could not be conveyed to a hearing on that date because on 7 September 2001 he had been transferred to the Liskinskiy District.
23. On 30 October 2001 the Liskinskiy District Court convicted the applicant of theft and sentenced him to four years and six months’ imprisonment. The court counted the term of the applicant’s pre-trial detention towards the term of his imprisonment.
24. On 19 March 2002 the judgment was upheld on appeal by the Voronezh Regional Court.
25. In accordance with Article 220-1 of the Code of Criminal Procedure of 1960 in force at the material time, complaints about a decision to apply pre-trial detention as a preventive measure and about the length of the detention could be lodged with a court by the detainee or his representative. Under Article 220-2 judicial review of the lawfulness, validity and length of the detention was carried out by a judge in camera at the place of the detention within three days after receipt of documents justifying the arrest.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-105301
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: CASE OF FEDOTOV v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant, Mr Eduard Fedotov, is a Moldovan national who was born in 1937 and lives in Chişinău.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. By letter of 30 January 2007 the applicant requested Chişinău local council to provide him with accommodation in Chişinău. The local council failed to reply to the applicant’s letter.
4. On 19 March 2007 the applicant instituted administrative proceedings against the Chişinău local council seeking a court order obliging the latter to reply to his letter and to pay him 9,000 Moldovan lei (MDL) in non-pecuniary damage.
5. On 20 April 2007 the Court of Appeal upheld the applicant’s claims. It ordered the local council to reply to the applicant’s letter and to pay the applicant MDL 200 (12 euros (EUR) at the time) in compensation for non-pecuniary damage.
6. By a final judgment of 11 July 2007, the Supreme Court of Justice upheld the judgment of 20 April 2007.
7. According to the applicant, the monetary award has not been enforced to date. It is not apparent from the case file whether the local council complied with the judgment in the part concerning the reply to the applicant’s complaint, and, if so, when they did so.
8. The relevant domestic law has been set out in Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts)).


ITEMID: 001-75423
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF RÓŻAŃSKI v. POLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1960 and lives in Gdańsk.
10. From 1990 to 1994 the applicant lived with B.F. On 29 August 1992 B.F. had a baby, a boy D. He was registered at the Birth Register as having “Stanisław F.” as father, i.e. a fictitious name, consisting of the applicant’s first name and the mother’s surname.
11. In April 1994 the relationship ended. B.F. left the child with the applicant and disappeared for over a month. The applicant submits a copy of a letter, in which B.F. states that she leaves him and the boy and that they should now fend for themselves. As the child subsequently fell ill, the applicant took him to a hospital. B.F. took D. from the hospital on 21 May 1994. She then stayed in hiding for several months. Since then the applicant has not had any contacts with the child.
12. Prior to this, on 18 April 1994, the applicant lodged a motion with the Gdańsk District Court, claiming that the paternity of D. be established and submitting that he was his biological father. He was subsequently summoned by the court to submit certain documents in order to have a guardian appointed who would bring a paternity action on the child’s behalf as under the domestic law the alleged biological father, not married to the mother, lacked standing in paternity proceedings. The applicant failed to do so.
13. In a note of 20 May 1994 the Gdańsk Social Assistance Centre informed the family court about the situation of D. and requested it to take steps to supervise B.F. in her exercise of parental rights. The social assistance officer also referred in her note to the applicant and stated that, in the light of the information received from his sister, in her view he would be unable to take adequate care of the child.
14. Subsequently the Gdańsk District Court instituted custody proceedings concerning D. By a decision of 26 May 1994 the court ordered that D. be taken into public care. Apparently shortly afterwards this decision was revoked.
15. In August 1994 the Gdańsk District Court requested the prosecuting authorities to investigate whether B.F. had committed a criminal offence by exposing D. to immediate danger of serious bodily injury. Such investigations were instituted in November 1995.
16. By a decision of 27 January 1995 the District Court gave a new decision on the basis of which D. was taken into public care. The custody rights of B.F. were restricted and she was only allowed to visit him. The applicant was not a party to the proceedings. B.F. refused to give D. away when police officers came to take him to a children’s home.
17. On that date the applicant lodged a new motion with the District Court to have a guardian appointed to represent D. for the purposes of the paternity proceedings.
18. Prior to that, on 9 January 1995, the applicant requested the Gdańsk District Prosecutor to institute on his behalf proceedings to have his paternity established in respect of D. In a reply of 5 May 1995, the prosecutor recalled that the applicant, by a motion of 27 January 1995, had requested the civil court to appoint a guardian for the child for the purpose of instituting the paternity proceedings, and that therefore it would not be advisable that the prosecuting authorities considered the applicant’s request, which, if successful, would lead to two parallel sets of proceedings pending at the same time, both concerning the determination of the applicant’s paternity in respect of D.
19. In July 1995 the Court rejected the applicant’s motion of 27 January 1995 because he had failed to pay the court fee. Subsequently, the applicant paid the fee and the proceedings were resumed.
20. At a hearing held on 10 November 1995 the applicant withdrew his motion to have a guardian appointed and the court discontinued the proceedings.
21. On 15 March 1996 B.F. declared before the Gdańsk District Court that her new partner J.M. was D’s biological father. On 18 March 1996 she lodged a motion with the District Court to have her full parental rights restored. By a decision of 26 March 1996 the District Court revoked its decision of 27 January 1995 to take D. into public care and ordered that he could stay with her until the termination of the proceedings, considering that since her living conditions had improved, she would be capable of taking adequate care of D. until a final decision on the merits be given.
22. By a decision of 10 July 1996 the District Court restricted B.F.’s parental rights by appointing a guardian to supervise her in the exercise of her rights.
23. On 15 July 1996 the new partner of B.F., J. M., was acknowledged as D.’s legal father, following his recognition of paternity.
24. On 8 August 1996 the applicant lodged with the Gdańsk District Prosecutor a request to institute investigations concerning his parental rights. He alleged that criminal offences had been committed in connection with the relevant proceedings. By a decision of 30 August 1996 the prosecution authorities refused to institute investigations, finding that no laws had been breached in connection with determination of the applicant’s parental rights.
25. On 8 August 1996 the applicant lodged another motion with the District Court, asking again for the appointment of a guardian to represent the child for the purpose of instituting paternity proceedings. By a decision of 15 November 1996 the District Court dismissed it, stating that the applicant had no right of action, since following the declaration of 15 July 1996 it was J.M. who was D.’s legal father.
26. On 12 November 1996 the applicant again requested the prosecutor to institute criminal proceedings, alleging that the birth certificate of D. had been forged. On 20 December 1996 the Gdańsk District Prosecutor refused to do so, finding that the child’s birth certificate had been amended following the recognition of the paternity of D. by his mother’s new partner J.M. The prosecutor observed that under the applicable laws recognition of a child was only possible if the mother gave her consent thereto. No criminal offence had been committed in that D.’s certificate had been rectified to reflect the recognition of paternity, effected with his mother’s consent.
27. The applicant appealed against the prosecutor’s decision. On 15 May 1997 the appellate prosecutor dismissed his appeal.
28. On 15 January 1997 the applicant challenged the decision of the Gdańsk District Court of 15 November 1996 by which it had stated that in view of the fact that J.M. had recognised his paternity of D., the applicant had no standing to bring paternity proceedings. On 29 January 1997 the court dismissed his appeal.
29. In a letter of 22 January 1997 the President of the Gdańsk District Court informed the applicant that the paternity proceedings had been discontinued due to the fact that B.F.’s new partner had recognised his paternity in respect of the child.
30. On 30 October 1997 the applicant complained to the Court of Appeal that the Gdańsk District Court failed to take steps in the interest of the child in order to have the applicant’s paternity recognised. He submitted that he did not have access to the child, although he was his biological father. He argued that the parental skills of B.F. were inadequate as shown by the fact that her two other children K. and T. had been placed with a foster family; that in 1994 she had left the child with him and disappeared for over a month, and that the man who had recognised D. as his child was a habitual offender. He emphasised that the court relied only on the submissions of the mother, disregarding entirely his interests as a biological father of the child, and failed to take the child’s best interests properly into consideration.
31. In a letter of 1 December 1997 of the President of the Gdańsk Court of Appeal, the applicant was informed that a copy of the decision of 15 November 1996 by which the District Court had dismissed the applicant’s request to have a guardian for the child appointed for the institution of paternity proceedings, had been sent to a wrong address. Therefore, the decision should be served again on the applicant. The applicant was further informed that the Gdańsk District Court had, on 18 April 1997, restricted the parental rights of B.F. and J.M. in respect of D. in that a guardian had been appointed to supervise them in the exercise of their parental rights.
32. By letters of 22 December 1997 and 7 January 1998 the President of the Court of Appeal informed the applicant that his further complaints concerning the conduct of the District Court as regards D. were unfounded, and that it was J.M. who was the father of the child.
33. In a letter of 12 January 1998 the Gdańsk Regional Prosecutor recalled that the applicant’s request to institute proceedings on his behalf in order to have him recognised as a biological father of D had been refused on 5 May 1995 as it was not in the child’s best interest.
34. On 6 November 1998 the Ministry of Justice informed the applicant, in reply to his complaints, that the case-files concerning the child had been reviewed and the applicant’s complaints about the failure to examine his position as a biological father of D. were unfounded.
35. The applicant does not have any access to the child.
36. Article 47 of the Constitution provides that
“(e) everyone shall have the right to legal protection of his private and family life, of his honour and good reputation, and to make decisions about his personal life.”
37. Pursuant to Article 48, parents shall have the right to educate their children in accordance with their own convictions. Such upbringing shall respect the degree of maturity of a child as well as his freedom of conscience. Limitation or deprivation of parental rights may be effected only in the instances specified by statute and only on the basis of a final judicial decision.
38. Article 72 of the Constitution provides that “the Republic of Poland shall ensure protection of the rights of children.”
39. Article 190 of the Constitution, insofar as relevant, provides as follows:
“1. Judgments of the Constitutional Court shall be universally binding and final.
2. Judgments of the Constitutional Court, ... shall be published without delay.
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. Where a judgment has financial consequences not provided for in the Budget, the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned, after seeking the opinion of the Council of Ministers.
4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final judicial decision, a final administrative decision or settlement of other matters was issued, shall be a basis for re-opening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings”.
40. Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have terminated with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution. Such a request can be lodged with the competent court within one month from the judgment of the Constitutional Court.
41. Article 72 of the Code reads:
“If there is no legal presumption in operation that the mother’s husband is the father of her child, or if such presumption has been rebutted, the paternity of the child may be established by the recognition of paternity by the father, or by a decision of a court.”
42. A declaration recognising paternity of a child can be made before a registrar of a local births, marriages and deaths register office.
43. Article 77 § 1 reads:
“The recognition of paternity in respect of a minor child should be subject to the approval of its mother. On the death of the mother, or if her parental rights have been withdrawn, or if a contact with her is impossible, a court appointed guardian shall give consent to the recognition of paternity.”
44. Pursuant to Articles 80 to 83, an action to have the recognition of a child declared null and void can be brought by the mother, by the child and by the man who recognised his paternity. Under Article 86 the prosecutor may also bring an action to have the recognition of a child declared null and void.
45. Under Articles 84 and 86 of the Code, an action to establish paternity may be brought by the mother or by the child, or by the prosecutor.
46. Article 99 of the Code provides that a guardian can be appointed by the family court to represent the child, if neither of the parents can represent it in judicial proceedings.
47. In its judgment of 28 April 2003 (K 18/02) the Constitutional Court ruled on the Ombudsman’s request to have Article 77 of the Family and Custody Code and Article 84 § 1 of that Code declared incompatible with the Constitution. The Ombudsman argued that the fact that a biological father did not have standing to lodge himself with a court an action to have his paternity recognised in respect of an out-of-wedlock child and that such action on behalf of a father could be only brought by the public prosecutor, breached the father’s right to have access to a court, guaranteed by the Constitution. It was further argued that this restriction on access to a court was in violation of these provisions of the Constitution which guaranteed respect for private and family life.
48. The Constitutional Court observed that the Constitution does not regulate the issue of methods to be applied in order to establish filiation of children to whom a presumption of paternity of the mother’s husband did not apply. This matter is left to be regulated by statute. Nevertheless, the constitutional principle of protecting the child’s best interest, enshrined in Article 72 of the Constitution, indicated preference as to the manner in which legal procedures to establish filiation should be shaped, namely so as to allow legal filiation to be determined in accordance with child’s biological parentage.
49. The Constitutional Court observed that under Article 77 § 1 of the Custody and Family Code the recognition of paternity by way of unilateral declaration of a putative biological father was subject to the mother’s consent.
50. The Constitutional Court observed that the decision of the legislature to make the effectiveness of recognition of paternity by a declaration made under this provision conditional on the mother’s consent was justified by the need to protect mother’s personal rights. Had the requirement of consent been removed, it would create a situation in which a man would be the sole person capable of establishing the child’s filiation. This could result in creation of legal bonds inconsistent with biological reality and, also, expose the mother to the risk of harassment by a man claiming to be a biological father of her child. However, the Constitutional Court considered that it would not be justified to introduce a judicial control over the mother’s consent. This would ultimately lead to replacing the mother’s consent by consent given by a court, which would undermine the very reason for the existence of unilateral declaration of paternity as a special method of establishing legal ties between the father and child.
51. The Constitutional Court further considered that the lack of standing before a court for a man claiming to be the biological father of a child and trying to have his paternity recognised in law in procedure provided for by Article 84 of the Custody and Family Code had to be seen in the light of the fact that the recognition of paternity by way of declaration was conditional on the mother’s consent, referred to above.
52. The necessity of the mother’s consent, on the one hand, and the lack of standing before the court to have one’s paternity recognised in law on the other resulted in a situation in which, in the absence of such a consent, a biological father would be deprived of any possibility of creating legal ties between himself and his child, either by way of declaration or by instituting paternity proceedings. The Constitutional Court emphasised that a decision of the prosecuting authorities to institute proceedings with a view to creating such ties was left entirely to their discretion. All these factors taken together led the Court to the conclusion that the lack of standing before a court of the biological father in proceedings to have his biological paternity recognised in law were in breach of Article 72 of the Constitution, providing for protection of the children’s rights as a constitutional principle. It was further stated that this was also in breach of the father’s right to respect for his private and family life, guaranteed by Article 47 of the Constitution. Moreover, these provisions breached Article 45 of the Constitution, guaranteeing the right of access to a court.
VIOLATED_ARTICLES: 8


ITEMID: 001-61030
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF PANNOCCHIA v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1925 and lives in Livorno.
9. The applicant is the owner of a flat in Livorno, which he had let to A.R.
10. In a writ served on the tenant on 16 September 1991, the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Livorno Magistrate.
11. By a decision of 19 October 1991, which was made enforceable on 17 March 1993, the Livorno Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 14 October 1992.
12. On 23 March 1993, the applicant served notice on the tenant requiring him to vacate the premises.
13. On 6 May 1993, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 8 June 1993.
14. Between 8 June 1993 and 26 June 2000, the bailiff made ten attempts to recover possession.
15. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
16. In the meantime, on 27 January 1994, the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter
17. Pursuant to Section 6 of Law no. 431/1998, the enforcement proceedings were suspended.
18. At the beginning of 2002 the tenant vacated the flat.
19. The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78211
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SEREGINA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Remainder inadmissible;Violations of Art. 6-1;Violation of P1-1;Non-pecuniary damage - financial award;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicant was born in 1936 and lives in the town of Kholmsk of the Sakhalin Region.
6. In 1987 the applicant and her sister V. decided jointly to build a residence in the town of Azov on two adjacent land plots allocated to them by a local council. The plots were registered respectively in the applicant's name and in the name of V.'s son Z.
7. The construction works started in 1989 and in 1990 the title over the second land plot was transferred to V.
8. According to the applicant, in 1992 V. died leaving a will by which she bequeathed her part of the house to the applicant.
9. By 1995 the construction works had been nearly completed.
10. On 11 October 1995 Z. obtained a decision of the local administration transferring to him the title to the second land plot and moved into the house.
11. In response to the applicant's complaints that Z. had forged an official document concerning his share in V.'s inheritance, the local police refused to institute criminal proceedings for the lack of evidence of a crime.
12. The local prosecutor also advised the applicant that it would be possible to evict Z. from the house only on the basis of a court decision. It does not appear that the applicant brought proceedings for his eviction.
13. In October 1996 the applicant lodged with the Azov Town Court (“the Town Court”) a complaint concerning the decision of the local administration transferring the land title to Z.
14. On 23 October 1996 the complaint was registered and accepted for examination.
15. By decision of 20 January 1997 the court decided to suspend the proceedings with reference to the need to request the evidence.
16. On 31 July 1997 the applicant lodged a separate civil action against Z., requesting the court to confirm her property rights in relation to the part of the house formerly owned by V. with reference to her sister's will, the fact that it was her and her sister's joint possession and that the applicant had borne a major part of the construction expenses. She also asked the court to restore the time limits for acceptance of her share in V.'s inheritance and establish that she had in fact accepted it.
17. In response, Z. filed a counterclaim requesting the court to invalidate V.'s will.
18. The proceedings concerning the decision of the local administration resumed on 25 August 1997. By decision of 17 November 1997 the court joined the applicant's claims against the local council and Z. in one set of proceedings.
19. By the same decision the court also accepted Z.'s waiver of claims against the applicant. The waiver was subsequently declared unlawful and quashed by the Rostov Regional Court (“the Regional Court”) on 14 January 1999.
20. On 22 December 1997 the court decided to request the Kholmsk Town Court to question a number of witnesses. The request was executed and on 9 April 1998 the court received the necessary evidence.
21. On 5 May 1998 the Convention entered into force in respect of Russia.
22. The hearing of 3 June 1998 did not take place because of Z.'s failure to appear.
23. On 29 July 1998 the Town Court dismissed the applicant's claims as unfounded.
24. The Rostov Regional Court quashed this judgment on appeal and remitted the case at first instance on 26 August 1998.
25. The case was returned to the Town Court and accepted for examination on 8 September 1998.
26. The court decided to start the hearings in the case on 20 November 1998. On that date the parties failed to appear and the hearing was postponed.
27. On 27 January 1999 the applicant successfully challenged the judge and the case was transferred to a different court composition.
28. The hearing of 1 April 1999 did not take place as the defendant's counsel failed to appear. The hearing was postponed until 19 May 1999. On that date a counsel for the local administration failed to appear and the court again rescheduled the hearing.
29. On 24 June 1999 the applicant's lawyer dropped the claims for the restoration of time limits and the establishment of the fact of acceptance of inheritance. She also retracted the submission that the applicant's ownership to her sister's part of the house should be declared in accordance with the will, claiming ownership only on the ground that the house had been a joint possession and that the applicant had borne the major construction expenses.
30. By decision of the same date the Azov Town Court granted this motion and discontinued the proceedings in respect of these claims accordingly. The applicant submitted that she had not authorised her lawyer to do so and that she had not been aware of this decision.
31. On 27 August 1999 the court decided to split the proceedings into two parts and examine the defendant's counterclaim separately. The parties filed an interlocutory appeal against this decision and on 1 September 1999 the proceedings were suspended awaiting the examination of the appeal.
32. The Rostov Regional Court refused to examine the appeal on 4 October 1999 on the ground that the decision of 27 August 1999 had been final and not subject to appeal.
33. Thereafter the proceedings resumed, but on 9 December 1999 the Town Court ordered an expert examination and again suspended the examination of the case.
34. On 28 April 2000 the completed expert examination reached the court and the proceedings resumed.
35. The hearing of 11 July 2000 did not take place because of the absence of the applicant's counsel.
36. The expert who was summoned to the hearings of 3 August and 14 September 2000 failed to appear and the hearings were adjourned.
37. On 26 October 2000 for an unspecified reason the case was transferred to a different court composition.
38. The hearing scheduled for 8 December 2000 did not take place for the failure of the parties to appear.
39. On 25 January and 12 March 2001 the court decided to adjourn the hearing with reference to the applicant's failure to attend.
40. By decision of 27 April 2001 the court ordered an additional expert examination and suspended the proceedings.
41. On 24 May 2001 the examination was completed and on 30 May 2001 the proceedings resumed.
42. By judgment of 5 June 2001 the Azov Town Court held in the applicant's favour. It declared her the owner of the house at issue and voided the decision of the local administration for transfer of land title to Z. as breaching the applicant's rights
43. Z. appealed against this judgment.
44. On 11 July 2001 the Rostov Regional Court rejected his appeal and upheld the first instance judgment in full. The judgment became final on the same day.
45. On an unspecified date the acting President of the Rostov Regional Court lodged with the Presidium an application for supervisory review of the judgment of 5 June 2001 and the appeal decision of 11 July 2001.
46. On 13 September 2001 the Presidium of the Rostov Regional Court examined the case. It appears that the applicant stated her case at the hearing in person.
47. By decision of the same date the Presidium quashed the impugned decisions. It found that the trial and appeal courts had erroneously applied the provisions of the Civil Code of 1996 to the events which had taken place before its entry into force. The Presidium also referred to discrepancies between the facts established by the lower courts and the courts' conclusions and remitted the case for a fresh examination at first instance.
48. On 26 August 2002 the Supreme Court dismissed the applicant's complaint about the decision of 13 September 2001 and noted that she was free to advance her arguments during the fresh examination of her case at first instance.
49. The proceedings in the case resumed on an unspecified date.
50. On 11 October 2001 a presiding judge withdrew from the case and on 25 December 2001 it was transferred to a different court composition.
51. By decision of 30 January 2002 the court scheduled the hearing for 20 February 2002. On the latter date the presiding judge was sick and the hearing was postponed.
52. On 21 March 2002 the court suspended the proceedings with reference to the applicant's illness.
53. The proceedings resumed on 8 October 2002 and the next hearing was scheduled for 11 November 2002.
54. On that date the court decided to request further evidence and adjourned the hearing again.
55. On 29 November 2002 the defendant failed to appear and the hearing was adjourned.
56. By judgment of 15 December 2002 the Azov Town Court rejected the applicant's claim of ownership of the disputed part of the house. The court held that there was insufficient evidence to conclude that the house was a joint possession and that the applicant had assumed the major construction expenses. It further established that the applicant's ownership could not be based on the will either since the will was invalid. As to the land plot, the court granted the applicant's claim and voided the decision transferring title over land to Z.
57. On 26 February 2003 the Rostov Regional Court upheld the first instance judgment on appeal and it became final.
58. The applicant filed several applications for supervisory review of the judgment of 15 December 2002 and the decision of 26 February 2003. She also sought to set aside the decision of 24 June 1999 alleging that she had not authorised her lawyer to drop the claims.
59. In response to these applications, by decision of 7 May 2004 the President of the Regional Court ordered that the applicant's case be examined on the merits by the Presidium of the Regional Court.
60. On 10 June 2004 the Presidium of the Regional Court examined the case.
61. It quashed the decision of 24 June 1999 on the ground that the applicant's counsel had gone beyond her authority when he had dropped a part of the claims and that the applicant had been unaware of the decision in question. The Presidium ordered a fresh examination of this part of the claim. It also ordered re-examination of the issue as to whether the applicant could claim ownership to V.'s part of the house as V.'s heir.
62. As to the judgment of 15 December 2002 and the appeal decision, the court ordered the exclusion from the courts' reasoning of the references to the validity of V.'s will and upheld them as to the rest.
63. On 7 July 2004 the case was accepted for examination by the Town Court.
64. On 16 July 2004 the court scheduled the hearing for 7 September 2004. On that date the applicant dropped her claims against the local administration and the court adjourned the hearing with reference to the need to request the evidence.
65. The hearings of 29 September and 19 October 2004 did not take place for the same reason.
66. On 22 November 2004 the court ordered an additional expert examination and suspended the proceedings.
67. By decision of 2 December 2004 the court admitted the new evidence in the case and forwarded it for examination to the expert institution.
68. The proceedings resumed on 21 March 2005. The next hearing was scheduled for 12 April 2005.
69. By judgment of 12 April 2005 the Town Court dismissed the applicant's claims and granted Z.'s counter-claim in full.
70. The judgment was upheld by the Regional Court on appeal on 18 May 2005.
71. On 11 November 2005 the applicant's application for supervisory review of the case was dismissed.
72. Section 11 of the Code of Civil Procedure of 1964 (Гражданский процессуальный кодекс РСФСР), as in force at the relevant time, provided that regional and higher courts could conduct supervisory review of the activities of the lower courts.
73. According to Sections 319, 320 and 327 of the Code, certain senior judicial officers could, at any time, on the request by the person concerned or on their own motion, lodge with a higher court an application for supervisory review of a final decision of a lower court on points of law and procedure.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-84066
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SZEMELY ES VAGYONOROK FUGGETLEN SZAKSZERVEZETI SZOVETSEGE v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The first applicant, Személy- és Vagyonőrök Független Szakszervezeti Szövetsége, is an unregistered trade union. The second applicant, Mr Sándor Csánics, is a Hungarian national, who was born on 20 February 1955 and lives in Érd. He is the president of the trade union. The applicants were represented before the Court by Mr I. Barbalics, a lawyer practising in Nagyatád. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants’ previous application (no. 70563/01) was declared inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention, on 19 November 2002. After having pursued a petition for review before the Supreme Court, the applicants renewed their complaints. On 13 February 2007 the Second Section of the European Court of Human Rights declared the application partly inadmissible.
On 13 February 1998 Mr Csánics and nineteen other individuals founded the applicant trade union. On 20 February 1998 Mr Csánics requested its registration. He submitted the articles of association, a list of the officers and other relevant documents.
On 27 February 1998 the Pest County Regional Court ordered the applicants to amend the articles of association and to submit further information. On 21 April 1998 the trade union modified its articles of association and submitted the new version to the Regional Court.
In the ensuing non-contentious (nemperes) proceedings, on 24 April 1998 the Regional Court held deliberations in camera and decided to refuse to register the trade union, since the applicants had failed to submit all the information required and therefore their request had not met the legal requirements. The Regional Court relied on the documents submitted by the applicants.
On 10 June 1998 the applicants retained Mr M.R., a lawyer, to represent them before the Supreme Court. His power of attorney was attached to the case file. This mandate has never been withdrawn.
On the applicants’ appeal – which did not contain any argument concerning the Regional Court’s in camera deliberations – the Supreme Court, acting as a second-instance court, upheld the first-instance decision on 24 May 2000.
The applicants lodged a petition for review with the Supreme Court.
On 27 October 2000 the applicants retained another lawyer, Ms E.D. to represent them before the review bench of the Supreme Court. Her power of attorney mandate was also attached to the case file.
On 14 December 2000 the Supreme Court ordered the applicants to amend the petition.
On 30 January 2001 the review bench of the Supreme Court upheld the second-instance decision. This decision was served on Mr M.R. on 14 March 2001. The Government submitted the acknowledgement of receipt which had been stamped at the despatching Post Office on 12 March 2001 and the handwritten note, indicating that it contained a copy of this decision, showing its receipt two days later by the addressee. It appears that Mr M.R. did not inform the applicants of the decision.
The decision of the review bench of the Supreme Court was handed over to the applicants, upon their request, on 9 February 2004.
“... (2) If authorisations have been given to more than one person, the party may be represented by any of them; however, only one representative may proceed in each act of the lawsuit; a contrary stipulation is invalid...”
“(1) An authorisation may concern the entirety of the lawsuit or certain individual acts in the procedure.
(2) An authorisation which concerns the entirety of the proceedings entitles the representative to make any and all declarations and acts concerning the case ...”
(4) The restriction of an authorisation is valid only if this is evident from the mandate itself.”
“The termination of the authorisation flowing from withdrawal, repudiation or the death of the party shall have effect for the court from the date of its reporting, and it shall effect for the opponent from the date of its disclosure to him.
“If the party authorised a representative to carry on the lawsuit, the judicial documents shall be served on him instead of the party...”


ITEMID: 001-70621
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: VAN DEN BORN-VAN DE WAL v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants are all Netherlands nationals.
Mr J.H.M. Boerland died on 10 July 2004. He will continue to be referred to hereinafter as an applicant, although it is now his heirs – having elected to pursue the proceedings in his stead – who have that status.
Mrs H.A. van den Born-van de Wal, Mrs G. Koopmans-de Jong, Mrs J. van den Berg, Mrs I. Klein Langenhorst-Edel, Mrs J.J. Steenbergen and Mrs H.A. Pelle-Hoenstok are represented before the Court by Ms T. Spronken, a lawyer practising in Maastricht.
Mrs J.M. Breugem-Westerkamp, Mrs G. Gosschalk-Wigboldus, Mrs M.E.C. Santoro-van Halm Braam, Mrs W. Hop-Bloemberg, Mrs M.J.C. Braspenning, Mr M.J. Lens, Mr J.H.M. Boerland, Mrs M. Scholte-Sleumer, Mrs W.C. Monster and Mr M.C.A. Glas are represented by Mr T. Barkhuysen, a lawyer practising in Amsterdam.
Mrs H.M. Boesveld-ten Brinke, Mrs P. Waalwijk-Kemink, Mrs H.E. Lutgens-van Oostveen and Mrs H. van Veen-Olthof are represented by Mr G.J. Knotter, a lawyer practising in Woerden.
The facts of the twenty cases, as submitted by the applicants, may be summarised as follows.
The applicants are all widows or widowers; as such, they all enjoyed pensions under the General Widows’ and Orphans’ Benefits Act (Algemene Weduwen- en Wezenwet; “AWW”) at the time when that Act was repealed.
On 1 July 1996 the AWW was replaced by the Surviving Dependants Act (Algemene Nabestaandenwet; “Anw”); it was this Act which governed the applicants’ entitlement to a pension as a widow or widower thereafter.
For all the applicants, the entry into force of the new Act led to a reduction of their pensions. Some lost their pensions altogether.
The Court refers to Goudswaard-van der Lans v. the Netherlands (dec.), no. 75255/01, 22 September 2005, for a description of the relevant domestic law.


ITEMID: 001-109288
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: NIYITEGURE v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: The applicant, Marie Antoinette Niyitegure, is a Burundian national who was born on 25 October 1975.
The applicant entered Sweden on 24 May 2007 and applied for asylum the following day. She stated, inter alia, that she was Hutu and Catholic and had studied psychology at the University in Bujumbura for three years, until 2001. Thereafter, in 2004 she had joined the human rights association JDPDH (Jeunesse pour la Défense et la Promotion des Droits de l’Homme) as psychologist in charge at a refugee camp. She also investigated and wrote reports on human rights abuses of which people in the camp had been the victims. In August and September 2004 she investigated a massacre in a refugee camp in Gatumba and found that the FNL (Forces Nationales de Libération) and other political parties had been involved in the massacre. The parties denied any involvement and in October 2004 the applicant received threats that she would be killed if she did not stop accusing the FNL.
In May 2006 the applicant’s home town was attacked. Her father and brother were killed and she was raped by four men.
In January 2007 the applicant finalised a report in which she concluded that a massacre in July and August 2006 of thirty-one prisoners in Muyinga had been committed by the intelligence service. As a consequence, its chief Dominique Surwayuba was arrested, also in January 2007.
On 22 February 2007 a group of men came to her home but the applicant and her husband had managed to escape. However, their maid was stabbed to death and her husband’s daughter was injured.
On 20 March 2007, the applicant sought protection at the home of the director of the JDPDH. During the night, the military attacked them. The director and the applicant were threatened that they would be killed unless they changed the report so that Dominique Surwayuba could be released.
In May 2007 she was arrested by the FNL or by the intelligence service for three days and ill-treated. Her husband found out where she was and contacted a priest who helped her to obtain travel documents. She was released on 23 May 2007 and left the country the same day with a smuggler via the airport in Bujumbura.
On 25 February 2008 the Migration Board (Migrationsverket) rejected the application, finding that the applicant had given vague and contradictory information and that she lacked credibility.
On appeal, the Migration Court (Migrationsdomstolen) upheld the decision by a judgment of 19 June 2008.
On 1 September 2008, represented by legal counsel, the applicant appealed against the judgment. On 12 September 2008 the Migration Court rejected the appeal because it had been lodged out of time. In order to comply with the procedural timelimit the applicant should have appealed before 10 July 2008, which was three weeks after the disputed judgment.
Thereafter the applicant requested a new assessment by the Migration Board, which was refused on 26 September 2008.
On appeal, the decision was upheld by the Migration Court in a judgment of 14 May 2009.
The applicant failed to apply for leave to appeal against that judgment to the Migration Court of Appeal (Migrationsöverdomstolen).
Instead, she reapplied to the Migration Board, which on 7 July 2009 upheld its decision to refuse to grant the applicant asylum.
On 19 October 2009 the Court decided to apply Rule 39 of the Rules of Court and to stay the applicant’s deportation to Burundi for the duration of the proceedings before it.
Despite specific requests by the Court, the applicant has not submitted any domestic decisions taken after 7 July 2009.
Relevant domestic law and practice can be found in Hussein v. Sweden (dec.), no. 18452/11, 20 September 2011.
Relevant recent information about Burundi can be found in Hussein v. Sweden, cited above.