ITEMID: 001-109343
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF LEAS v. ESTONIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Non-pecuniary damage - award
JUDGES: Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 6. The applicant was born in 1943 and lives in Lemsi.
7. On 31 May 2005 criminal proceedings were initiated in respect of the applicant, mayor of the rural municipality (vallavanem) of Kihnu at the material time. He was suspected of demanding bribes (pistise võtmine) under Article 293 § 2 of the Penal Code (Karistusseadustik). Supposedly, he had invited L., a representative of OÜ G., a private limited company, to participate in a call for tenders for renovation work on port buildings and on the local museum. Allegedly, he had proposed to ensure the success of OÜ G.’s bids in return for ten per cent of the sum of the transactions being paid to him after the receipt by the company of the municipality’s pre-payment.
8. On 3 June 2005 a prosecutor gave an authorisation (jälitustoimingu luba) (authorisation LÄRP 16/273) for covert surveillance of the applicant. The authorisation was for one day’s surveillance and was valid from 6 to 10 June 2005.
9. According to a surveillance report dated 7 June 2005, covert surveillance of the applicant had been carried out on the same day. The applicant had met L., who had given him a plastic bag which he had put into his pocket. A video recording of the event was appended to the surveillance report.
10. On 9 June 2005 the prosecutor gave another authorisation for the application of surveillance measures in the criminal case, but apparently no measures were applied on the basis of that authorisation.
11. On 10 June 2005 the President of the Tallinn City Court authorised wiretapping, covert observation and audio recording of the applicant’s conversations with L. The authorisation was for ten days’ surveillance and remained valid until 10 July 2005.
12. According to a surveillance report dated 12 July 2005, undercover audio recordings of conversations between the applicant and L. had been made on 14 and 29 June and 5 July 2005. The audio recordings and extracts of the transcripts of the conversations were attached to the surveillance report.
13. On 5 July 2005 the applicant and L. were arrested by the police while they were meeting in the applicant’s car. Their arrest was video recorded. The recording showed that a plastic bag containing 85,000 kroons (EEK) (approximately 5,430 euros (EUR)) and a bank receipt made out to OÜ G. were found in the glove compartment of the applicant’s car.
14. The applicant denied the charges. He was kept in pre-trial custody until 21 July 2005. L., who was charged with paying bribes and O. (the manager of OÜ G.), who was charged as an accessory, pleaded guilty and were not taken into custody.
15. On 25 July 2005 the prosecutor refused to give the applicant access to the information collected as a result of the application of the surveillance measures because doing so could prejudice the criminal proceedings or give rise to a criminal offence.
16. On 2 January 2006, after the applicant had been acquainted with the criminal case file, he asked the public prosecutor to have the prosecutor’s and judge’s decisions authorising the application of surveillance measures attached to the criminal case file so that the lawfulness of the surveillance activities could be assessed. On 12 January 2006 the prosecutor replied that the authorisations for the surveillance activities were kept in the surveillance file (jälitustoimik) and were not to be included in the criminal case file: only the surveillance reports, together with appendices, were to be included in the latter file.
17. From 18 to 21 April 2006, the prosecutor drew up an indictment. According to the charges set out therein, the applicant had invited L. to participate in a call for tenders for renovation work on port buildings and, on another occasion, on the local museum. The applicant had asked for, and had received, EEK 45,000 kroons (EUR 2,880) and EEK 85,000 (EUR 5,430), respectively, for ensuring the success of L.’s company’s bids.
18. On 27 April 2006 the applicant again made a request to the prosecutor concerning the surveillance measures. He emphasised that being able to review the authorisations for the surveillance measures was required in order to assess the lawfulness of the evidence which had been taken from the surveillance file for use in the criminal case file. Furthermore, he inquired whether additional information had been obtained as a result of the application of the surveillance measures, and requested access to it if such information existed, so that, like the prosecution, he could adduce parts of it as evidence.
19. On 28 April 2006 the prosecutor dismissed the request, noting that only information of an evidential nature (tõendamiseseme asjaolud) had been included in the criminal case file.
20. On 8 May 2006 the applicant applied to the Pärnu County Court to have the authorisations for the application of the surveillance measures included in the criminal case file. He also noted that the prosecution had had the opportunity to choose information which they considered relevant from the surveillance file, and claimed that the principle of the equality of arms required that he too be given access to the totality of the information gathered with the use of the surveillance measures. He requested that the court order the Public Prosecutor’s Office to grant him such access.
21. On 10 May 2006 the applicant, together with L., O. and OÜ G., was committed for trial by the Pärnu County Court.
22. At hearings on 11 September 2006 and 22 January 2007 the applicant repeated his requests concerning the surveillance authorisations. He also raised concerns that L. had acted with the knowledge and under the guidance of the police. At the hearing on 22 January 2007 a police officer, P., was examined at the request of the applicant’s counsel, who put a number of questions to him about various procedural acts carried out during the preliminary investigation.
23. On 22 January 2007 the court granted the application. It ordered that the applicant’s counsel be granted access to the surveillance information collected in the criminal case. It further instructed the police to submit to the court the surveillance authorisations (prosecutor’s authorisation LÄRP 16/273 and the authorisation given on 10 June 2005 by the President of the Tallinn City Court).
24. On 5 February 2007 the applicant’s counsel informed the County Court that the police department in possession of the surveillance file had refused to give him access, arguing that under applicable legislation the applicant’s counsel could have access only on the basis of a power of attorney given by the applicant and authenticated by a notary. Counsel asked the court to amend its decision so that both he and the applicant would be granted access.
25. On 7 February 2007 the County Court again ordered the police to grant the applicant and his lawyer joint access to the material gathered as a result of the application of the surveillance measures. The court also reiterated that the police had been instructed to present the surveillance authorisations to the court.
26. On 8 February 2007 a police superintendent decided that the applicant, but not his lawyer, could have access to the materials on which the charges against him were based.
27. At a court hearing on 12 February 2007 the applicant’s lawyer informed the court that the police had refused to comply with the court order and that the applicant considered that his defence had been seriously compromised. The public prosecutor considered that the decision of the police superintendent should be quashed. She quashed it on 16 February 2007. At the same hearing, the court announced that it had in the meantime examined the surveillance authorisations. According to the record of the hearing, the judge briefly summarised prosecutor’s authorisation LÄRP 16/273 of 9 June 2005 and the authorisation given on 10 June 2005 by the President of the Tallinn City Court. The hearing was adjourned so that the applicant and his lawyer could examine the materials gathered by the surveillance measures.
28. On 4 April 2007 at the police department’s premises the applicant and his counsel were given access to the prosecutor’s authorisation LÄRP 16/273 of 3 June 2005 and the authorisation given on 10 June 2005 by the President of the Tallinn City Court. The police superintendent in charge informed the County Court that the applicant’s counsel had not wished to examine the other materials collected with the use of the surveillance measures because the materials were the same as those included in the judicial criminal case file.
29. At a court hearing on 17 May 2007 the applicant’s counsel submitted that at the police department’s premises they had been invited to examine the same materials that were to be examined at court and that no access to other information had been given. He argued that the undercover recordings were not admissible as evidence and reiterated that the prosecutor had had a better opportunity to select and present the evidence collected through surveillance. He reiterated the concern that L. had collaborated with the police.
30. At a court hearing on 15 October 2007 the prosecutor noted that at the hearing on 12 February 2007 the court had erred in referring to the number of the surveillance authorisation issued by the prosecutor. In the meantime, the authorisation had again been presented to the court. The court specified that prosecutor’s authorisation LÄRP 16/273 had been issued on 3 June 2005. The applicant raised the issue of confusion – not only in respect of the numbers of the surveillance authorisations but also as concerned the dates when they had been issued. He asked that the court order the prosecutor to present the authorisations at the hearing. The prosecutor contended that surveillance authorisations were not normally included in the judicial case file but in the circumstances she considered it appropriate to admit the authorisations to the file. After a short break, the prosecutor procured and presented at the hearing prosecutor’s authorisation LÄRP 16/273 (issued on 3 June 2005) and authorisation LÄRP 16/287 issued by the President of the Tallinn City Court (issued on 10 June 2005). These authorisations were admitted to the case file. The prosecutor and the court confirmed that the authorisation of 9 June 2005 had been presented to the court but no surveillance activities had been carried out on the basis of it. The applicant’s request for submission and inclusion in the case file of the latter authorisation was dismissed.
31. On 30 November 2007 the Pärnu County Court convicted the applicant as charged and gave him a suspended prison sentence of two years and six months. Both L. and his company (OÜ G.) were convicted of paying bribes. Proceedings in respect of O. were discontinued, due to the minor nature of her guilt and the lack of public interest in the continuation of the proceedings in her respect. A similar request by the prosecutor in respect of L. was rejected by the court.
32. The court relied on the statements of L. and O., both of whom had pleaded guilty to giving the applicant EEK 130,000 (EUR 8,310) in two instalments. L.’s statements were corroborated by the statements of O., who had withdrawn the money from a cash dispenser and a bank so that L. could hand it over to the applicant. The court considered it improbable that L. and O. would have each given incriminating statements both in respect of themselves and the applicant without there being some basis for such statements. None of the accused had stated that they held a grudge against any of their co-defendants.
33. In respect of the first count of paying bribes, the court further relied on a video recording of L. meeting the applicant and giving him a plastic bag, which the latter put into his pocket. According to a surveillance report dated 7 June 2005, the covert video recording had been authorised by the prosecutor. The court observed that the prosecutor’s authorisation had been given on 3 June 2005; had been for one day’s surveillance; and had been valid from 6 to 10 June 2005. The court found no reason to consider the surveillance activity unlawful or untrustworthy: it had been carried out on one day falling within the authorised period. The court additionally relied on a bank statement, according to which the money in question had been withdrawn shortly after the applicant’s company had received an advance payment from the municipality. Shortly after the withdrawal, L. had given the money to the applicant. The court also examined two audio recordings seized from L. The recordings included L.’s conversations with the applicant, from which it could be understood that they had agreed on the payments and that L. had given the applicant EEK 45,000.
34. In respect of the second count of paying bribes, the court heard several witnesses – officials of the municipality and representatives of companies on behalf of whom L. had made fictitious bids so that his own company’s bid would be the best one. The court also heard undercover audio recordings made on 14 and 29 June and 5 July 2005 on the basis of an authorisation given on 10 June 2005 by the President of the Tallinn City Court. It noted that it had no grounds to doubt that the surveillance authorisation was lawful. The recordings were of conversations between L. and the applicant and included references to specific sums of money. Furthermore, a video recording of the applicant’s and L.’s arrest on 5 July 2005 was played back at the hearing, showing that a plastic bag containing EEK 85,000 and a bank receipt made out to OÜ G. were found in the glove compartment of the applicant’s car. Several further items of documentary evidence and witness statements were also relied on.
35. The applicant denied the charges and appealed against the County Court’s judgment. He argued, inter alia, that he had not been given access to all the information gathered as a result of the application of the surveillance measures, and that this had violated the principle of the equality of arms and his defence rights. He further complained about the confusion in the dates and numbers of the authorisations for the application of the surveillance measures. The court had been presented – outside the hearings – with two prosecutor’s authorisations dated 3 and 9 June 2005 which had apparently borne the same number.
36. In respect of the authorisation given on 10 June 2005 by the President of the Tallinn City Court, the applicant noted that it had been for ten days’ surveillance and had remained valid until 10 July 2005. He pointed out that audio recordings had been made on the basis of that authorisation on 14 and 29 June and 5 July 2005. As the applicant had not been given access to the totality of the information gathered as a result of the application of the surveillance measures, it had been impossible to establish whether the application of the measures in question had in fact been limited to the authorised ten days. He pointed out that the period between the first (14 June) and the last (5 July) undercover recording had been more than ten days. The County Court had only noted that it had had no grounds to doubt that the surveillance authorisation had been lawful but it had not given an opinion in its judgment on the lawfulness of the surveillance activities, namely whether the authorised ten-day period had been exceeded.
37. The applicant also reiterated his concern that L. had acted in the interests and under the guidance of the police.
38. The prosecutor argued that the court had examined the lawfulness of the evidence obtained with the use of the surveillance measures by all means at its disposal and pointed out that pursuant to the State Secrets Act the court had had the ability to examine information obtained through surveillance if it so wished. Therefore, the applicant’s argument that the judge had examined the surveillance activities outside the hearings was inappropriate: the court had fulfilled its tasks and had demonstrated an appropriate level of interest in the information related to the criminal case.
39. On 19 March 2008 the Tallinn Court of Appeal upheld the County Court’s judgment. It considered that the applicant’s conviction was in any event safe, even if the evidence challenged by the defence was set aside.
40. The Court of Appeal found that there were no convincing reasons to think that L. had co-operated with the police; the fact that he had been charged with an offence rather confirmed that the police had received information from third parties, in whose interest it was that parts of the surveillance information were kept secret. The Court of Appeal found that the applicant’s right to an adversarial trial had not been infringed owing to the fact that the prosecutor – but not the defence – had had access to the totality of the information gathered with the use of surveillance measures. It considered that there was no reason to overload the criminal case file with irrelevant information. The rights of the defence had not been violated in so far as the prosecutor had not adduced the information in question as evidence against the applicant. Nor had the County Court relied on evidence that had not been examined at court hearings.
41. In a situation where the County Court had examined the lawfulness of the evidence obtained on the basis of the Surveillance Act outside the hearings, the Court of Appeal considered that the worthiness and integrity of the County Court had to be presumed. Pursuant to the Courts Act, judges had access to State secrets. The County Court had not examined the surveillance materials secretly; rather, it had subsequently recorded its examination in a record of a court hearing.
42. The Court of Appeal was satisfied that the County Court had examined the surveillance authorisations. For its part, it analysed at length the content of the authorisations and the surveillance activities carried out on their basis and held that there could be no doubt that the surveillance authorisations had been given retroactively. It further found that since no surveillance activities had been carried out on the basis of the authorisation of 9 June 2005 and since the authorisation had not been used as evidence, there had been no reason to admit that authorisation to the case file.
43. In his subsequent appeal to the Supreme Court the applicant noted, inter alia, that he had been unaware during the proceedings before the County Court that, between the public hearings, the court had examined not only the surveillance authorisations but also the other surveillance materials. He argued that if this had been the case (as asserted by the prosecutor in the Court of Appeal and stated in the Court of Appeal’s judgment), the requirements of a public hearing and an adversarial trial had been breached.
44. In her reply to the applicant’s appeal, the prosecutor, inter alia, explicitly stated that in the present case the judge of the County Court had examined the surveillance authorisations and the surveillance file.
45. On 5 June 2008 the Supreme Court declined to hear the applicant’s appeal.
46. Article 111 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) provides that information obtained by surveillance activities is admissible evidence if such information has been obtained in compliance with the requirements of law.
47. Pursuant to Article 112 of the Code, a surveillance authorisation (jälitustoimingu luba) may be given by a preliminary investigation judge or a prosecutor, depending on the type of surveillance activity in question.
48. Article 113 of the Code provides that a surveillance report shall contain, inter alia, information obtained through the application of the surveillance measures. Photographs, films, audio and video recordings are to be annexed to the report if necessary.
49. Article 115 of the Code concerns covert surveillance and Article 118 deals with wiretapping, covert interception and observation of information. Both Articles stipulate that information obtained through the application of the relevant surveillance measures shall be entered in the surveillance report in so far as necessary for the adjudication of the criminal case (Article 115 § 3 and Article 118 § 2, respectively).
50. Article 121 § 2 of the Code provides that at the request of the person concerned, he or she is to be permitted to examine the materials of the surveillance activities conducted with regard to him or her. Nevertheless, in certain cases such information can be withheld with the permission of the prosecutor. Such cases include, inter alia, instances where: the information concerns the private lives of other persons; its disclosure may damage the rights and freedoms of other persons; it concerns State secrets; its disclosure may endanger the life, health, honour, dignity or property of an employee of a surveillance agency, of a person who has been engaged in surveillance activities or who has been recruited for surveillance activities, or the confidentiality of the latter’s co-operation with a surveillance agency; or where disclosure may prejudice criminal proceedings or give rise to a criminal offence. Information can also be withheld if it cannot be separated or disclosed without the information referred to above becoming evident.
51. Section 8(1) of the Surveillance Act (Jälitustegevuse seadus) obliges surveillance agencies to protect persons involved in surveillance activities and, inter alia, ensure the secrecy of their co-operation.
52. Section 10-4(1) of the Surveillance Act stipulates that information collected in the course of surveillance proceedings shall be stored in a surveillance file (jälitustoimik).
53. Section 16(4) of the Surveillance Act provides that the use of surveillance information as evidence in a criminal case must not bring about disclosure of the secret surveillance information or the identity of persons who have been engaged in surveillance activities or recruited therefore without their consent.
54. Pursuant to section 17(2) of the Surveillance Act a person’s right to examine the materials concerning the surveillance activities carried out in respect of him or her can be restricted on grounds similar to those provided for in Article 121 § 2 of the Code of Criminal Procedure (see paragraph 50 above).
55. Section 18 of the Surveillance Act provides that everyone may file a complaint with the head of a surveillance agency or its superior agency or with the Public Prosecutor’s Office against the activities of the surveillance agency upon the conduct of surveillance activities. Furthermore, everyone has the right of recourse to a court if his or her rights and freedoms have been violated by surveillance activity.
56. Section 4-1(3) of the State Secrets Act (Riigisaladuse seadus), as in force at the material time, provided that information collected by surveillance agencies on the basis of Articles 115 to 120 of the Code of Criminal Procedure, and the methods, tactics and technical equipment used for collection thereof to the extent to which such information could be used as evidence, were State secrets classified as “restricted”.
57. Pursuant to section 23(1)(4) of the State Secrets Act judges had the right of access to State secrets.
58. Section 25 of the State Secrets Act provided that participants in criminal proceedings had the right of access to State secrets classified as “restricted”, “confidential” or “secret”, on the basis of a reasoned order of a preliminary investigator or prosecutor or a court ruling, if access was unavoidably necessary for the adjudication of the criminal case. Access could not be granted if this jeopardised the performance of the duties of protection and secrecy provided for in section 8(1) of the Surveillance Act (see paragraph 51 above) and to State secrets classified as “top secret”.
59. In a judgment of 17 January 2005 (case no. 3-1-1-114-04) the Criminal Chamber of the Supreme Court noted that it proceeded unequivocally from Article 111 of the Code of Criminal Procedure that any violation in collecting information through surveillance excluded the admissibility of such information as evidence.
60. In a judgment of 5 December 2008 (case no. 3-1-1-63-08) the Criminal Chamber of the Supreme Court reiterated that any violation in the process of collecting evidence through the application of surveillance measures automatically resulted in the inadmissibility of such information as evidence. It held that all parties to court proceedings had to be able to verify whether Article 111 of the Code of Criminal Procedure had been complied with. Thus, upon the receipt of a request of a party for the assessment of the legality of a surveillance activity, the court was obliged to verify the existence of an authorisation by a court or the Public Prosecutor’s Office, and identify whether the information used as evidence had indeed been obtained in the course of the authorised activity and during the authorised period. The Supreme Court noted that when determining the legality of surveillance, the court had to ensure the protection of the State secret which served as the reason for the prohibition of disclosure of the materials of the surveillance file at a court hearing. However, the court could disclose its opinion on the lawfulness of the surveillance. The disclosure of the court’s opinion in this regard to the parties had to be recorded in the record of the hearing and, if necessary, in the judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71544
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: WASILEWSKA AND OTHERS v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Ms Ewelina Wasilewska (hereinafter: “the first applicant”), Ms Bożena Wasilewska (“the second applicant”) and Mr Maciej Wasilewski (“the third applicant”), are Polish nationals, who were born in 1976, 1955 and 1978 respectively and live in Jelenia Góra, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
The second applicant is the mother of the first and third applicants.
On 13 May 1994 the applicants filed with the Jelenia Góra Regional Court an action against an insurance company P. in which they claimed compensation and supplementary pensions relating to the death of L. Wasilewski, the second applicant’s husband and the other applicants’ father.
On 25 April 1996 the court gave judgment. It awarded compensation to the applicants and dismissed their claims for pensions. They appealed.
On 19 December 1996 the Wrocław Court of Appeal amended the appealed judgment in that it increased the amount of compensation. On 15 April 1997 the applicants lodged a cassation appeal against the Court of Appeal’s judgment.
On 26 November 1997 the Court of Appeal decided to reinstate the time limit for lodging a cassation appeal.
On 9 January 1998 the first and third applicants withdrew their claims for supplementary pensions, limiting their appeals to the issue of compensation. They submitted that, despite the partial exemption, the fee they had to pay for their cassation appeal was excessive. The applicants therefore decided to limit the overall value of their claims, in consequence of which the proportional fee was reduced and they could afford to pay it.
On 12 October 1999 the Supreme Court gave a judgment. It discontinued the proceedings as far as they concerned the first and third applicants’ claims for pensions, since they had withdrawn those claims and it was bound by their decision. The court quashed part of the judgment of the Court of Appeal and remitted that part of the case for re-examination. It dismissed the remainder of the cassation appeal.
On 27 January 2000, having re-examined the case, the Court of Appeal amended the judgment of the Regional Court as far as it concerned the first and third applicant. It quashed the part relating to the second applicant and remitted the case in that part for re-examination.
The Jelenia Góra Regional Court held hearings on 13 September 2000, 12 January, 5 February, 21 May, 6 August, 18 September and 28 September 2001.
On 8 October 2001 the Jelenia Góra Regional Court gave a judgment. It awarded the second applicant a supplementary pension, as well as overdue pension payments. She appealed.
On 8 February 2002 the Court of Appeal amended the appealed judgment.
Relevant domestic law and practice
On 17 June 2004 Polish Parliament adopted a new law “on complaint about a breach of a right to have one’s case heard within a reasonable time”. The act entered into force on 17 September 2004.
Section 2 of the Act provides for a special action by which a party can seek a declaration that his or her right to have a case heard within a reasonable time has been breached. The court shall take into consideration the following criteria: the conduct of the court before which the case is pending; the character of the case and the complexity of the legal and factual issues involved therein; what was at stake for the complainant, and the conduct of the parties. The length complaint must be lodged when the proceedings are still pending.
Pursuant to Section 2, if the court finds that the length complaint is wellfounded, it shall give a ruling to this effect. If the complainant so requests, the court can also recommend that the court before which the case is pending takes certain procedural measures in the impugned proceedings. The court may also, award an appropriate amount of money to the complainant, in the amount not exceeding PLN 10,000.
Under Section 18, within six months after the entry into force of the Act, that is, from 17 September 2004, anyone who had lodged an application with the European Court of Human Rights in due time complaining of a violation of the “reasonable-time” requirement contained in Article 6 § 1 of the Convention was entitled to lodge a length complaint provided for by the Act, if the application to the Court had been lodged when the proceedings were still pending and if it had not yet been declared admissible by the European Court.


ITEMID: 001-73083
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF STANKIEWICZ  v. POLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Not necessary to examine under P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis;Françoise Tulkens;Lech Garlicki;Loukis Loucaides;Peer Lorenzen;Snejana Botoucharova
TEXT: 8. On 9 November 1992, at an auction organised by the Bolesławiec District Office, the applicants, who were the only participants in the bid, purchased real property owned by the District Office for 202,000 zlotys (PLN).
9. On 2 August 1996 the Bolesławiec District Prosecutor, acting on behalf of the State Treasury and relying on the 1991 Law on unjustified enrichment at the expense of the State Treasury, sued the applicants in a civil court, seeking payment in the amount of PLN 111,046. The prosecuting authorities referred to Article 7 of the Code of Civil Procedure (see paragraph 31 below) and invoked their powers as the guardians of the legal order. They submitted that the applicants had purchased the property concerned under a compensatory scheme for persons who had abandoned their property on territories beyond the Bug River that had belonged to Poland before the Second World War. Under this scheme, governed chiefly by the provisions of the Land Administration and Expropriation Act of 29 April 1985 (“the Land Administration Act” – see paragraphs 38-44 below), the applicants had a “right to credit”, that is, the right to count the price of the abandoned property towards the price of the property to be purchased from the State Treasury.
10. The prosecuting authorities further argued that the purchase price, which partly comprised compensation for the property left by the applicants’ legal predecessors in Trembowla, in the former Polish territories beyond the Bug River, had been calculated wrongly. They averred in that respect that the value of the property, as assessed by expert A.Ż., amounted to PLN 125,130. Later, a month before the contract was concluded, the same expert had assessed the value of the same property at PLN 218,985. The prosecuting authorities, harbouring certain doubts as to the soundness of the estimates, had instituted investigations and appointed a new expert, who had estimated the value of the abandoned property at only PLN 90,953. Consequently, as the value of the house that the applicants’ legal predecessors had abandoned in Trembowla was much lower than the price the applicants had paid for the property in Bolesławiec, the State had sold them the latter property at a considerable loss. The plaintiff prosecuting authority further argued that the first expert, A.Ż., had had regard to the market value of the Trembowla property, whereas under the relevant legislation he should have taken the technical value of the property into account. As the applicants had refused to comply with the Bolesławiec District Office’s demand to pay PLN 111,046, the prosecuting authorities claimed that the applicants should repay that amount to them.
11. The applicants argued in their pleadings that the State Treasury, which had sold them the property in Bolesławiec under the provisions of the Land Administration Act, had had the expert estimates at its disposal and had not put forward any objections at that time. They submitted that the estimate relied on by the prosecuting authorities in their statement of claim was based on the assumption that the property in Trembowla was in a rural location, which was incorrect as it was situated in a town.
12. On 18 December 1997 the Nowy Sącz Regional Court dismissed the prosecutor’s claim against the applicants, considering it to be unfounded.
13. The court first observed that the applicants had bought the property at a public auction organised by the Bolesławiec District Office under the compensation scheme for former owners of properties in the former Polish territories. For the purposes of the auction they had submitted to the authorities two successive expert opinions concerning the value of the property owned by their legal predecessors in Trembowla, prepared by expert A.Ż. He had estimated the value of the property abandoned in Trembowla at PLN 218,985. As the value of the property they had purchased from the Bolesławiec Municipality amounted to PLN 202,000, the applicants had not been obliged to pay anything to the municipality.
14. The court considered that the crux of the legal issue it had to resolve lay in the determination of the methods and criteria to be used when assessing the value of properties abandoned in the pre-war Polish territory. It referred to the Land Administration Act, applicable to the compensatory scheme at that time, and to the Cabinet’s ordinance issued on the basis of section 81 of said Act. Under section 6 of the ordinance, the value of the abandoned land was to be assessed with reference to the current market price of land, and the value of houses with reference to their so-called reconstruction value.
15. The court further observed that the relevant legislation did not lay down any other criteria for the valuation of the properties concerned. The properties therefore had to be valued on a case-by-case basis, with reference to all the factors relevant to a particular case. In such circumstances, the court had to make a choice relying on the conclusions of the experts commissioned to submit their reports to the court.
16. Accordingly, the court took account of expert opinions prepared by experts W.A. and A.M. for the purposes of the investigations conducted by the prosecuting authorities in connection with the purchase of the property. It also had regard to the findings and estimates made for the purpose of the civil proceedings by experts A.D., J.K. and T.L., who had been assigned to the case by the court. The court further noted the conclusions of an opinion prepared at the applicants’ request by expert S.S.
17. The court concluded that, in the light of the various arguments advanced by the experts, the price paid by the applicants in 1992 corresponded to the value of the property abandoned in Trembowla.
18. Lastly, the court had regard to the fact that the applicants had, in the meantime, sold the property in question and obtained PLN 180,992 for it. This, in the court’s view, confirmed its finding that the price for the property, fixed by the District Office in 1992 at PLN 202,000, had been excessive.
19. The court further ordered the Bolesławiec District Office of the State Treasury to repay to the applicants the litigation costs they had borne in the proceedings, in the amount of PLN 14,177.26. The court referred to Article 98 of the Code of Civil Procedure, taken in conjunction with Article 106.
20. The prosecuting authorities appealed, claiming that the Regional Court, in estimating the value of the properties concerned, had failed to take into account all the relevant expert opinions. In addition, the Regional Court’s decision to award the legal costs borne by the defendants had been ill-founded. They argued that, since the plaintiff in the case had been the prosecutor, the general principle whereby the unsuccessful party in a civil case bore the litigation costs, enshrined in Article 98 of the Code of Civil Procedure, was not applicable.
21. The applicants, in reply to the appeal, submitted that the assessment of the value of the abandoned property had been thorough and had been based on five expert opinions prepared by seven experts.
22. As to the litigation costs, they argued that the prosecuting authorities, while acting on behalf of the District Office, had in fact been seeking to protect the financial interests of the State Treasury rather than to act as the guardian of the legal order. Hence, the prosecution had not been acting under Article 7 of the Code of Civil Procedure, that is, to protect the rule of law or citizens’ rights, or in the public interest.
23. In such a situation, had the prosecution been exempted from operation of the general principle of responsibility of the unsuccessful party for the litigation costs, they would have been placed at an unfair advantage vis-à-vis the other party.
24. Hence, Article 106 of the Code of Civil Procedure should be applied to their case in the manner advanced by the Supreme Court, which had stated that the term “State Treasury” used in Article 106 of the Code of Civil Procedure should by no means imply that an award of costs for or against the State Treasury was ruled out in situations in which the prosecuting authorities acted in a civil case representing the financial interests of the State Treasury (decision of 6 July 1966, I Cz 62/66 OSP 1967/6/140).
25. On 7 April 1998 the Cracow Court of Appeal dismissed the prosecutor’s appeal in so far as it related to the price of the property concerned. The court noted that the first-instance court had had regard to expert opinions prepared by seven experts. It had carefully examined their conclusions and explained convincingly, with reference to the detailed findings of their reports, why it had found the price paid by the applicants for the property to be correct.
26. The court also partly amended the first-instance judgment by refusing to award the applicants their legal costs. The court considered that the situation of a prosecutor bringing a civil action on behalf of a third party represented a special case. He or she could not be regarded as a mere party to civil proceedings. This singular nature of the prosecutor’s role in a civil case was reflected in the rule on costs contained in Article 106 of the Code of Civil Procedure. Under that provision, the participation of the prosecutor in a civil case did not entail for the other party a right to reimbursement of the litigation costs. Article 106Therefore, and in view of the fact that the Bolesławiec District Office had not joined the proceedings as a plaintiff, all litigation costs, including the costs borne in connection with the appellate proceedings, had to be borne by the defendants.
27. Under Polish law all persons, with the exception of public authorities and institutions, are obliged to pay a court fee when lodging a statement of claim with the competent civil court. As the case proceeds, a party is obliged to pay additional court fees when lodging any further appeals.
28. Under Article 98 of the Code of Civil Procedure, the costs of litigation necessary for the effective conduct of a case are borne by the unsuccessful party to the proceedings. The costs of litigation comprise the court fees referred to above, legal fees paid to professional legal representatives and various other items of expenditure incurred in connection with the proceedings, such as transport costs and loss of salary as a result of participation in the hearings.
29. An exception to this general principle is provided for in Article 101 of the Code. Pursuant to this provision, the court may not order the losing defendant to pay the costs of litigation if he or she did not cause the proceedings to be instituted and acknowledged the claim at a first hearing.
30. The scope of operation of the general principle whereby the unsuccessful party bears the litigation costs, referred to above, is also mitigated by Article 102 of the Code. This provision enshrines the principle of equity in respect of litigation costs and stipulates that the court may order the losing party to pay only a part of the litigation costs, or may exempt it altogether from the obligation to pay these costs, where the
31. Under Article 7 of the Code of Civil Procedure, the public prosecutor may participate in civil proceedings whenever it is necessary to protect the rule of law or citizens’ rights, or in the public interest. Pursuant to Article 55 of the Code, the prosecuting authorities are obliged to indicate the person or institution on behalf of which they have instituted the proceedings. Under Article 111 of the Code, the prosecuting authorities are exempt from the general obligation to pay court fees.
32. The court serves of its own motion the statement of claim on this person or institution, which is authorised to join the proceedings as a plaintiff.
33. Article 106 of the Code reads:
“The participation of the prosecutor in a civil case shall not give rise to reimbursement of litigation costs either to or from the State Treasury.”
34. According to the case-law of the Supreme Court, Article 106 of the Code of Civil Procedure is applicable only if the prosecutor joined a party in the course of the proceedings and not if he instituted them himself (decision of 17 June 1966, I Cz 54/66).
35. The Supreme Court further held:
“Article 106 of the Code is applicable only to cases in which the prosecutor participates in civil proceedings for the purposes indicated in Article 7 of the Code, that is, to protect the rule of law or citizens’ rights, or in the public interest. The term ‘State Treasury’ used in Article 106 of the Code of Civil Procedure in no sense implies that an award of costs for or against the State Treasury is ruled out in situations in which the prosecuting authorities act in a civil case representing the financial interests of the State Treasury in connection with its acts.” (decision of 6 July 1966, I Cz 62/66 OSP 1967/6/140)
36. In its judgment of 12 June 2002, the Constitutional Court of Poland, examining the compatibility with the Constitution of certain provisions of civil procedure applicable in competition proceedings, observed:
“... exemption from the obligation to pay court costs, in particular costs other than the court fees, cannot be automatic in nature, that is to say, it cannot create a situation in which the successful party would not have any claim to have his or her costs reimbursed. In the Court’s view, the particular circumstances of one of the parties or the particular character of the case may be such that the creation by law of a mechanism allowing for such a situation cannot be ruled out from the outset ... nevertheless, it may not result in a state of affairs in which a successful private party is obliged to bear the full financial cost of his or her participation in the proceedings. In some situations such an outcome might even lead to the economic benefit deriving from the ruling in the party’s favour being cancelled out.
If the legislature, having regard to circumstances militating in favour of such a solution, adopts an approach which allows the losing party to be completely exempted from the obligation to pay costs, it should at the same time create a separate legal mechanism enabling the successful party to obtain reimbursement of the costs it incurred from another source. ... Exemption of the losing party from any obligation to pay costs, without the successful party having any possibility of having his or her costs compensated, amounts to a restriction of the right of access to a court.”
37. In its judgment of 6 September 2001 (P/3/01), the Constitutional Court observed that the principle of equality before the law which manifested itself in, among other things, the right of equal access to the courts and the right to a fair hearing, was also applicable to issues concerning litigation costs. Hence, the principle that the successful party should have its costs reimbursed, and the unsuccessful party bear the financial cost of the proceedings, must be regarded as consistent with the principles of equality and equity.
38. Since 1946 Polish law has provided that persons repatriated from the territories beyond the Bug River which belonged to Poland before the Second World War are entitled to have the value of the property abandoned as a result of the Second World War deducted either from the fee for the right of “perpetual use” or from the price of immovable property purchased from the State Treasury.
39. These provisions were repeated in several successive statutes. At the material time, the Land Administration Act governed the legal situation of persons entitled to such compensation.
40. The obligation to compensate repatriated persons was laid down in section 81 of the Act, the relevant parts of which provided that persons who, in connection with the war that began in 1939, abandoned real property in territories not at present belonging to the Polish State and who, by virtue of international treaties concluded by Poland, were to obtain equivalent compensation for the property abandoned abroad, would have the value of the abandoned real property offset against the fee for the right of perpetual use of land or against the price of a building plot and the State-owned buildings or premises situated thereon.
41. At the material time in the present case, the procedure for implementation of section 81 of the Land Administration Act was laid down in the Cabinet’s Ordinance of 16 September 1985 on the principles applicable in connection with offsetting the value of real property abandoned abroad against the price of a title to real property or against the fee for perpetual use.
42. Rules concerning the determination of the value of the abandoned property were set out in the Cabinet’s Ordinance of 16 September 1985 (as amended) on the offsetting of the value of real property abandoned abroad against the fee for perpetual use or against the price of a building plot and buildings situated thereon (Rozporządzenie Rady Ministrów w sprawie zaliczania wartości mienia nieruchomego pozostawionego za granicą na poczet opłat za użytkowanie wieczyste lub na pokrycie ceny sprzedaży działki budowlanej i położonych na niej budynków – “the 1985 Ordinance”).
43. Paragraph 3 of the 1985 Ordinance provided, in its relevant parts, as follows:
“If the value of the property [abandoned abroad] exceeds the price of the real property that has been sold ..., the outstanding amount can be offset against the fee for the right of perpetual use, or against the price of an industrial or commercial plot of land and any commercial or small-business establishments, buildings designated for use as workshops or ateliers, holiday homes or garages situated thereon.”
44. Paragraph 5 provided that a first-instance body of the local State administration competent to deal with town and country planning should issue the decisions on offsetting the value of property abandoned abroad. Paragraph 6 laid down certain general rules relating to the valuation of such property.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104064
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF BOYAJYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6;Remainder inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 4. The applicant was born in 1935 and lives in Yerevan.
5. Starting from 1971 the applicant made various deposits in Soviet roubles with the Armenian branch of the USSR Savings Bank. These included:
(a) sums of money deposited on three deposit accounts (ժամկետային ավանդ) opened in 1973-1974 amounting to a total of 19,795.30 roubles as of 1 January 1993, sums of money deposited on three 40% offset accounts (40% փոխհատուցման հաշիվ) opened in 1991 amounting to a total of 8,264 roubles as of 1 January 1993, and sums of money deposited on three on-demand accounts (ցպահանջ հաշիվ) opened in 1971, 1977 and 1988, the latter in the name of the applicant's grand-daughter, amounting to a total of 29,384.81 roubles as of 1 September 1993;
(b) 23 State internal premium bonds of 1982 (1982 թ. պետական ներքին շահող փոխառության պարտատոմսեր), each worth 50 roubles;
(c) four special-purpose State interest-free bonds of 1990 (1990 թ. պետական նպատակային անտոկոս փոխառության պարտատոմսեր): one worth 2,500 roubles entitling the applicant to receive a video recorder, one worth 1,000 roubles entitling her to receive a television set, and two others each worth 200 roubles entitling her to receive two sewing machines;
(d) 11 certificates of the USSR Savings Bank obtained in 1990 (ԽՍՀՄ խնայբանկի սերտիֆիկատ), each worth 1,000 roubles.
6. On 5 July 1993 the Government decided to restructure the Armenian branch of the USSR Savings Bank into the State Specialised Savings Bank of Armenia (hereafter, the Savings Bank). Later that month the Soviet rouble was withdrawn from circulation.
7. On 22 November 1993 the Armenian currency, the dram, was introduced, at a rate of 200 roubles to 1 dram.
8. On 26 April 2002 the Convention and Protocol No. 1 entered into force in respect of Armenia.
9. On 21 June 2004 the applicant applied to the Savings Bank seeking to recover her deposits.
10. By a letter of 21 July 2004 the Savings Bank informed the applicant that:
“...the question of compensation for deposits made with the Savings Bank in former USSR roubles prior to 1 January 1993 is currently at the centre of attention of the National Assembly and the Government of Armenia. The Decision no. 835 of the Government of Armenia of 8 September 2001, which states that '... the Republic of Armenia assumes responsibility for the future possible indexation of deposits made by citizens with the Savings Bank CJSC in former USSR roubles prior to the currency conversion of 1993', serves as proof of this.
As to your inquiry concerning the former USSR State internal premium bonds of 1982 and the certificates, we would inform you that all operations in their respect were stopped by the decision of the Supreme Soviet of Armenia of 10 June 1993, until a final decision is adopted concerning their repayment by the CIS member States. However, no decision or directive was adopted thereafter.
As to the redemption of the former USSR special-purpose interest-free bonds given to the Armenian population in 1990, which were planned to be converted into household and domestic goods starting from 1993, this was found not to be feasible by Decree no. 377 of the Government of Armenia of 29 June 1992.
For purposes of compensation the Government of Armenia, in its Decree no. 345 of 5 July 1993, decided to index the nominal value of the above [special-purpose interest-free] bonds by 300% and to open a deposit account or to make payments by 1 August 1993, which you failed to do within the said period.
As you see, in the above circumstances the Savings Bank has no obligation to make payments in respect of the deposits and securities.
The Savings Bank will be able to serve citizens only after a decision is taken by the Government of Armenia concerning the choice of possible compensation alternatives for the deposits and the above securities and their payment.”
11. On 4 August 2004 the applicant lodged a claim with the Kentron and Nork-Marash District Court of Yerevan against the Government, seeking to recover her deposits and securities made with the Savings Bank. She requested, in particular, that her savings be returned to her in the currency in which the deposits were made.
12. On 6 August 2004 the Kentron and Nork-Marash District Court of Yerevan refused to admit the applicant's claim on the ground that:
“... the dispute is not subject to court examination, since the National Assembly and the Government of Armenia have not yet adopted relevant laws and decrees concerning the procedure for returning to citizens their deposits made with the Savings Bank of Armenia.”
13. On 13 August 2004 the applicant lodged an appeal on points of law, arguing that the reasons for the refusal to admit her claim were groundless and seeking to reverse the decision of the District Court.
14. On 27 August 2004 the Court of Cassation decided to dismiss the applicant's appeal. In doing so, the Court of Cassation referred to the grounds for the refusal to admit the applicant's claim and found the District Court's decision to be well-founded.
15. Pursuant to this Decree the Government decided that, since the redemption of these bonds was not feasible due to the lack of goods, the repurchased bonds would be converted into deposit accounts.
16. Under Paragraph 1 the Government was allowed to restructure the Armenian branch of the USSR Savings Bank into the State Specialised Savings Bank of Armenia.
17. Under Paragraph 2 the Republic of Armenia guaranteed the preservation and the repayment of deposits and other values made with the Savings Bank of Armenia.
18. Under Paragraph 3 the Government was asked to come up with proposals on indexation of savings and other values made with the Armenian branch of the USSR Savings Bank within one month.
19. According to Paragraph 4, all transactions in respect of 1982 State internal premium bonds and USSR Savings Bank certificates were to be stopped until a final decision was taken on them by the member states of the Commonwealth of Independent States.
20. Under Paragraph 1 the Armenian branch of the former USSR Savings Bank was restructured into the State Specialised Savings Bank of Armenia. The Savings Bank of Armenia was the legal successor of the Armenian branch of the former USSR Savings Bank.
21. Under Paragraph 2 the Government guaranteed the preservation and the repayment of the deposits and other values made with the Savings Bank of Armenia.
22. Under Paragraph 4 the following types of savings were indexed: (a) the amounts left in the Savings Bank's deposit accounts as of 1 January 1993 by 100%; (b) the amounts left in the Savings Bank's special deposit accounts as of 1 January 1993 by 100%; (c) the nominal value of the 1990 special-purpose State interest-free bonds by 300%; and (d) treasury bonds owned by the population by 200%.
23. Pursuant to this Decree the Savings Bank of Armenia was sold to two private companies. The Ministry of Finance and Economy was instructed to conclude a privatisation agreement with the buyers, which was to contain guarantees on behalf of the Republic of Armenia. In particular, the Republic of Armenia was to assume responsibility for the future possible indexation of deposits made by citizens with the Savings Bank CJSC in former USSR roubles prior to the currency conversion of 1993.
24. Section 10 approved the 2006 annual programme for compensation of monetary deposits made with the Armenian branch of the USSR Savings Bank before 10 June 1993, which featured as an Annex to this Act.
25. Section 13 prescribed that the compensation activities of monetary deposits made with the Armenian branch of the USSR Savings Bank before 10 June 1993 shall be organised by the Armenian Government. The compensation of the said deposits was to be implemented on the basis of a State mid-term expenditure programme approved by the Armenian Government, within the limits of the budgetary allocations envisaged for that purpose as a separate budget line in each year's State budget. The Armenian Government, based on the above-mentioned 2006 annual programme, was to develop the procedure for such compensation and to specify the lists of individuals enjoying a priority right to receive such compensation.
26. Pursuant to Paragraph 1, those depositors, who are members of families which have been receiving family allowance continuously from 1 July 2005 until 1 April 2006, are entitled to receive compensation for their deposits.
27. Pursuant to Paragraphs 5 and 6, persons mentioned in Paragraph 1 were to submit an application in order to receive compensation. The deadline for submitting applications could not be later than 12 April and was to expire on 12 May 2006.
28. Pursuant to Paragraph 27, the depositors' right to claim compensation from the Republic of Armenia arises in such budgetary year (a) in respect of which an expenditure programme for payment of compensation prescribed by this procedure is envisaged by the State Budget Act; and (b) the depositor in question is included in the payment schedule for the year in question.
29. According to Article 91 §§ 1 (1) and 4, the judge refuses to admit a claim if, inter alia, the dispute is not subject to court examination. The decision refusing to admit a claim can be contested through cassation proceedings within three days from the date of its receipt.
30. According to Article 228 (1), as in force at the material time, a judicial act could be reviewed on the ground of newly discovered circumstances which have vital importance for the case and which the parties were not and could not be aware of.
31. According to Article 239, as in force at the material time, the decision of the Court of Cassation entered into force from the moment of its delivery and was not subject to appeal.
NON_VIOLATED_ARTICLES: 6