ITEMID: 001-5678
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: GAIDJURGIS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a Lithuanian national, born in 1958 and living in Šilutė region. He is represented before the Court by Mr K. Stungys, a lawyer practising in Vilnius.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 February 1999 the applicant was arrested on suspicion of the unlawful possession of a hunting knife, in breach of Article 235 of the Criminal Code. On 13 February 1999 the Palanga City District Court found inter alia that the knife was 284 mm long and could be considered to be a weapon for the purpose of that provision. The court ordered the applicant’s detention on remand for the alleged offence under Article 235 of the Criminal Code on the grounds of his serious criminal record, his unemployment and a risk that he might commit new offences, within the meaning to Article 104 § 3 (3) of the Code of Criminal Procedure. His remand in custody was authorised until 13 March 1999. The applicant and his defence counsel were present in court.
The applicant appealed against the detention order, asserting that there were no reasons for holding him in custody. He stated in particular that there was no danger of his committing new offences.
On 1 March 1999 the Klaipėda Regional Court held the appeal hearing in the presence of the applicant’s defence counsel. The Regional Court dismissed the appeal, finding that there was a reasonable suspicion that the applicant had committed an offence. The court held that the District Court had erred in detaining the applicant under Article 104 § 3 (3) of the Code of Criminal Procedure as he had not been suspected of having committed any offence listed in paragraph 6 of that provision. The Regional Court found no reason to suspect that the applicant might commit any new offence envisaged by Article 104 § 3 (3) of the Code. However, it ruled that these errors were not of such a nature or degree as to render the applicant’s detention unlawful. By reference to the fact that the applicant had misled the authorities concerning the question of his address and that he had no permanent place of residence, the Regional Court also held that there was a danger of his absconding, thereby justifying his detention under Article 104 § 3 (1) of the Code of Criminal Procedure.
On 10 March 1999 the Palanga City District Court extended the term of the applicant’s remand in custody to 10 April 1999, emphasising the danger of his absconding, given the applicant’s contradictions about his place of residence. The applicant and his representatives were present in court.
The applicant appealed, claiming that there was no danger of his absconding that the case-file contained no proper evidence of his guilt, and that the alleged offence alleged was minor. He requested the Klaipėda Regional Court to quash the decision of 10 March 1999 and to release him. On 24 March 1999 the Klaipėda Regional Court, in the presence of the applicant’s defence counsel, rejected the appeal as unsubstantiated.
On 8 April 1999 the Palanga City District Court extended the term of the applicant’s remand in custody to 25 April 1999, finding that there was a danger of his absconding, given the applicant’s contradictions about his place of residence. The applicant and his defence counsel were present in court.
On 21 May 1999 the Palanga City District Court convicted the applicant of the unlawful possession of a weapon under Article 235 of the Criminal Code. He was given a prison sentence of three months and 10 days, which was deemed served on account of the time spent in detention on remand. He was released in the courtroom.
The applicant did not appeal against that judgment.
Relevant provisions of the Criminal Code (Baudžiamasis kodeksas):
Article 235 of the Criminal Code provides that a person may be punished with a sentence of up to three years’ imprisonment for the unlawful possession, production or sale of weapons specifically made to kill or inflict bodily harm, including hunting knives.
Relevant provisions of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas):
Article 10:
“No one shall be arrested or detained save by virtue of a decision of a court or judge.”
Articles 52 § 2 and 58 § 2 provide that the accused and their counsel have the right to submit requests and appeal against acts and decisions of an interrogator, investigator, prosecutor or court.
Article 104:
“Detention on remand shall be used only … in cases where a statutory penalty of at least one year’s imprisonment is envisaged. … .
The grounds for the detention on remand shall be the reasoned suspicion that the accused will:
(1) abscond from the investigation and trial;
(2) obstruct the determination of the truth in the case;
(3) commit new offences … whilst suspected of having committed crimes.”
Article 104-1:
“ … the arrested person shall be brought before a judge within not more than 48 hours. The judge must hear the person as to the grounds of the arrest. The prosecutor and defence counsel must take part in the inquiry, unless the judge decides otherwise. After having questioned the arrested person, the judge may maintain the arrest order by designating the specific term of detention, or vary or revoke the remand … .
After the case has been transmitted to the court … [it] can order, vary or revoke the detention on remand. The court shall extend the detention on remand before its expiry.”
Article 106 § 3 (in force from 21 June 1996 until 24 June 1998):
“For the purpose of extending the term of detention on remand a judge … must convene a hearing to which defence counsel, the prosecutor and the detainee, the presence of whom is obligatory, shall be called. The judge decides whether or not to extend the term of detention on remand. … .”
Article 109-1 provides for an appeal to a higher court and a hearing against a decision ordering or extending the term of detention both at the stage of pre-trial investigation and trial, in the presence of the detainee and his defence counsel, or only counsel. If the appellate court finds procedural irregularities that do not affect the essence of the detention order, the court must eliminate the defects without quashing the order.
Pursuant to the general provision of Article 399, a first instance decision, including remand decisions, was not effective pending the time-limit for an appeal against that decision or during the appeal proceedings. The present Article 104-3 § 3 (version in force from 21 December 1999) specifies that all decisions of detention on remand become effective and are executed on the date when they are taken.


ITEMID: 001-5382
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: ROEPSTORFF v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Danish national, born in 1969. He resides in Herlev, Denmark. Before the Court he is represented by Mr Christian Harlang, a lawyer practising in Copenhagen.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
At the material time the applicant was employed as a baker by FDB (fællesforeningen af Danmarks Brugsforeninger). He was also a member of the trade union NNF (Nærings- og Nydelsesmiddelarbejderforbundet) and his employment was governed by a collective labour agreement between the NNF and the FDB.
On 11 September 1994 the applicant left his place of work in circumstances which remain in dispute. The following day he received a letter from his employer by which his employment was terminated. The applicant protested against the dismissal and contacted his trade union. Following a discussion with the applicant the NNF sent a letter to the FDB on 23 September 1994 protesting against the applicant’s dismissal.
Subsequently the NNF discussed the settlement with the applicant who, following consultations with his lawyer, could not approve the text but requested certain additional guarantees as to employment, wages and seniority.
On 1 November 1994 another meeting was held between the representatives of the NNF and the FDB. The applicant was aware of the date of this meeting but did not participate this time either. According to the minutes of this meeting the above settlement was upheld with two additional guarantees in respect of the applicant’s salary and seniority. The settlement was approved and signed by the representatives of the NNF and the FDB on 7 November 1994.
On the same date the City Court of Glostrup (Civilretten i Glostrup) received a writ by which the applicant instituted proceedings against the FDB claiming 35,426.89 DKK representing his salary from 11 September until 31 October 1994. It appears that at this moment in time the applicant still considered himself employed by the FDB. However, subsequently he refused the FDB’s offer of reemployment in accordance with the above settlement since he had found other employment.
In the proceedings before the City Court the FDB maintained, in particular, that the applicant could not submit further claims as he was bound by the settlement reached between the NNF and the FDB. The applicant maintained, however, that this argument would, if upheld by the court, amount to a violation of his rights as secured to him by Article 6 § 1 of the Convention.
The City Court held an oral hearing in the case where the applicant, assisted by counsel, was heard. The court furthermore heard three witnesses. On the basis of an evaluation of the available evidence the City Court pronounced judgment in favour of the FDB on 3 May 1995. The judgment reads, in its relevant part as follows:
(Translation)
“The settlement between the NNF and the FDB is final and it has been approved by [the representative of the NNF] on behalf of [the applicant]. It is noted in this connection that the NNF by virtue of the [collective labour] agreements has a standing and irrevocable authorisation to reach such settlements on behalf of its members.
On the basis of the evidence submitted the terms of the settlement must be considered fulfilled.
Accordingly, the court finds in favour of the defendant.
It is noted in this respect that [the applicant] will not be precluded from claiming damages from the NNF during a possible lawsuit, if [he] finds that during the settlement negotiations the NNF did not take proper care of [his] interests. Thus, the settlement ought not to be set aside with reference to Article 6 § 1 of [the Convention]. ...”
The applicant appealed against the judgment to the High Court of Eastern Denmark (Østre landsret) which also held a hearing during which the applicant and the witnesses were heard again. On 15 January 1996 the High Court upheld the City Court’s judgment. The judgment reads, in its relevant parts, as follows:
(Translation)
Two judges ... opine as follows:
We find it established that [the applicant] himself requested his union NNF to secure that the dispute concerning his dismissal should be solved by negotiations between the NNF and the FDB. It must have been clear to [the applicant] that a solution in the case would hereafter be found in accordance with the rules governing labour disputes. Furthermore, we find it established that between the parties in question agreement was reached on the disputed settlement.
We find hereafter that, also without [the applicant’s] acceptance of the settlement, the NNF has had authorisation to reach it with binding effect for [the applicant]. With this reasoning we vote for [upholding the judgment].
Judge ... opines as follows:
First, I do not find that the NNF by virtue of the collective labour agreements has a standing and irrevocable authorisation to enter into an agreement as the one in question which does not concern a labour market dispute.
Second, I find it established that the reservation in the draft settlement referred to the NNF's approval as well as that of [the applicant]. ... I do not find it established that, when he received confirmation of [the NNF's] approval of the settlement, [the representative of the FDB] believed or had any reason to believe that the agreement had not been approved by [the applicant] ... . Thus, the agreement is binding on [the applicant]. With this reasoning I vote as the majority. ...”
On 14 May 1996 the Board of Leave to Appeal (Procesbevillingsnævnet) rejected the applicant's request for leave to appeal to the Supreme Court (Højesteret).
B. Relevant domestic law and practice
The Danish labour market is to a high extent governed by collective agreements concluded between the labour market parties. About 80 per cent of all employees are organised and nearly 90 per cent of all employees are covered by collective agreements.
As a consequence of the high rate of organisation, pay and working conditions in Denmark are mainly regulated by collective agreements between labour market partners.
Pay and working conditions may further be agreed individually between the individual employee and the employer.
There is an interaction among the three elements - collective agreements, individual agreements and legislation - when it comes to identifying the rights of an employee in relation to the employer.
A collective agreement has effect within the occupation field covered by the agreement. An employer who has concluded or adhered to a collective agreement has a duty in relation to the trade union to pay the employees the wage and salary fixed in the collective agreement whether the employee is or is not a member of the organisation concerned. However, a non-organised employee may not invoke rights under the collective agreement, but only under his or her individual agreement. On the other hand employees have no independent and direct rights which can be invoked under the collective agreement. Through the membership of a trade union, the union is considered empowered to act on behalf of its members.
As regards cases settled within the machinery set up for settlement of labour disputes, i.e. by arbitration or by the Labour Court, the right to take legal action is vested in the organisation which is a party to the agreement. It is also the organisation which decides about the subject-matter of the case. Before the ordinary courts of law it is the individual employee who has the right to sue.
As regards rights based on legislation the rule is that such rights may always be enforced by the ordinary courts of law. The courts will hear the case whether or not the employee is a member of a trade union or other organisation. In such cases it is always the individual employee who is entitled to bring the action and who may dispose of the subjectmatter of the case.
If the rights of the employee are based on a collective agreement, the legal situation may be summarised as follows:
If the employee is not organised and thus not attached to any organisation, but his or her rights are, nevertheless, based on a collective agreement, the practice is that the ordinary courts of law will hear the case. Reference is made to U 85/800 V and U 1983/730H.
If the employee is organised, the starting point is that the matter should be settled by the special machinery for settlement of labour disputes, i.e. by arbitration or by the Labour Court. In such cases the general rule is that the organisations have the full disposal of the subject-matter and the right to take legal action. An exception from this general rule follows from section 11, subsection 2, of the Labour Court Act which reads as follows:
(Translation)
“An employee shall, however, be entitled to bring an action for award of outstanding wages in the ordinary courts of law unless the organisation, in proceedings before the Labour Court, has waived this right on behalf of the employee or when the failure to pay wages is related to a labour market dispute.”
The ordinary courts of law have, inter alia on the basis of this provision, heard cases involving collective agreements, even if the organisation has failed to proceed with the case within the framework of the machinery set up for the settlement of labour disputes, cf. U85/997Ø, U54/935H and U94/953H in which express reference was made to the right of access to court under Article 6 of the Convention.
Any decision (judgment) of the Labour Court is final. The Labour Court is the first and only level of jurisdiction, since no appeal lies against its decisions. Consequently, the judgments of the Labour Court are directly enforceable in accordance with the rules of the Administration of Justice Act relating to enforcement of judicial awards, cf. Section 20 of the Act.


ITEMID: 001-95943
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: SEDELMAYER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Franz J. Sedelmayer, is a German national who was born in 1963 and lives in Irschenhausen.
From December 1994 to March 1996, assets of the applicant, who had made an investment in a Russian company in St. Petersburg, were expropriated by the Russian authorities without compensation. Relying on the Bilateral Investment Treaty between Germany and the former Union of Soviet Socialist Republics (USSR) of 1989, which remained in force between Germany and the Russian Federation after the disintegration of the USSR, the applicant complained to an international arbitral tribunal in Stockholm, Sweden, requesting compensation.
On 7 July 1998 the arbitral tribunal awarded 235,000,000 United States dollars (USD) plus interest to the applicant. The Russian Federation refused to pay this arbitral award. It made a request before the Swedish courts that the arbitral award be declared void. On 18 December 2002 the Stockholm District Court dismissed the request; the Russian Federation’s appeals were to no avail.
On 16 February 2001 the Berlin Regional Court declared the arbitral award enforceable. Relying on the Bilateral Investment Treaty of 1989 and the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, it observed that the Russian Federation could not rely on a general immunity from execution. The Regional Court added that it was not for it to decide, however, whether international law prohibited enforcement measures directed against specific assets such as assets serving a sovereign purpose. The applicant subsequently initiated execution proceedings in Germany.
The applicant requested an execution order (Pfändungs- und Überweisungsbeschluss) for the Russian Federation’s claims against Germany concerning the reimbursement of VAT (Value Added Tax). The VAT owed by Germany stemmed from the Russian Embassy’s acquisitions of goods and services. In September 2002, the Berlin District Court granted the request, and attached and transferred the Russian Federation’s claims for VAT reimbursement. The Russian Federation objected to the order.
On 27 December 2002 the District Court cancelled the order, holding that the attachment of the claims was not in accordance with international law. It observed that the Russian Federation had issued a declaration in which it had assured that the reimbursed VAT solely served to maintain the functioning of the diplomatic and consular missions. Therefore, the attached claims served sovereign purposes and were exempt from execution. Furthermore, the Russian Federation had not declared a waiver of immunity for the enforcement proceedings.
On 3 December 2003 the Berlin Court of Appeal upheld the District Court’s decision. It found that an execution would be inadmissible under the rules of international law. The assurance given by the Russian Federation that the reimbursed VAT served solely to maintain the functioning of the diplomatic and consular missions was sufficient.
On 4 October 2005 the Federal Court of Justice dismissed an appeal by the applicant on points of law (no. VII ZB 8/05). It found that the enforcement of the Russian Federation’s claims of VAT reimbursement was inadmissible. The Russian Federation enjoyed diplomatic immunity in relation to these claims as they served for the maintenance of the diplomatic missions’ sovereign functions. It was pertinent in that context that there was no need for an actual impediment of the diplomatic activities to have occurred; an abstract risk of impediment sufficed. This general rule of international law was also applicable to assets which did not – as in the present case – fall within the ambit of the Vienna Convention on Diplomatic Relations; rather, the protection extended to all assets serving for the functioning of diplomatic and consular missions. It was also of no relevance whether the Russian Federation was capable of assuring sufficient funds for its missions by other means; if it had been, diplomatic immunity would have to depend on a State’s financial capacity. In the present case, the Russian Federation’s assurance had been sufficient and it would have amounted to an illegal interference in matters of a foreign State to ask the Russian Federation to specify the purpose of the assets.
The Federal Court of Justice also observed that diplomatic immunity was an essential element of effective international cooperation and had to be respected in order to be able to settle disputes by peaceful means. These principles prevailed over the applicant’s interest in attaching the assets. As to the Russian Federation’s alleged waiver of immunity, the Federal Court of Justice found that the Bilateral Investment Treaty, regulating the procedure on the merits, contained no waiver for enforcement proceedings. Such a waiver could also not be inferred from the Bilateral Investment Treaty (in particular its Article 4 § 2) or the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or any other treaty. According to the spirit and purpose of the Bilateral Investment Treaty, enforcement proceedings were generally permitted, but did not extend to assets serving a sovereign purpose.
On 8 February 2006 the Federal Constitutional Court declared the constitutional complaint inadmissible without providing reasons.
The applicant requested an execution order for the Russian Federation’s claims against the German airline Deutsche Lufthansa AG. Those claims allegedly arose from, inter alia, the granting of overflight, transit and landing permits. On 5 February 2002 the Cologne District Court granted the request. The Russian Federation and Deutsche Lufthansa AG objected to the order.
On 29 May 2002 the District Court cancelled the order. It held that the claims in question could not be attached. They were of a sovereign nature and served a sovereign purpose, as they concerned the airspace over Russian territory. It observed that a measure enforcing those claims would only have been possible if the Russian Federation had consented to the execution.
On 6 October 2003 the Cologne Court of Appeal dismissed the appeal. It observed that the international competence of German courts was doubtful. In any case, while execution on assets of the Russian Federation was not generally precluded, the attached claims could not be executed as they served a sovereign purpose and were thus subject to State immunity from execution. The Russian Federation had sufficiently demonstrated that the fees were to be used for sovereign purposes, namely for air traffic administration.
On 4 October 2005 the Federal Court of Justice dismissed the appeal on points of law (no. VII ZB 9/05) on two alternative grounds. First, it held that German courts lacked international competence to execute claims like those in question. Relying on German law as the lex fori, the court held that the claims concerned fees governed by public law, which could not be executed since German courts were only internationally competent for execution in assets that were located on German territory. The obligation of Deutsche Lufthansa AG to pay the fees had arisen, however, within the sovereign territory of the Russian Federation, not in Germany.
Second, the Federal Court of Justice held that, according to the rules of international law, the Russian Federation enjoyed immunity in relation to these claims as the fees for the air traffic served sovereign purposes. As the Court of Appeal had held, the receipts of the fees were directly devoted to the air traffic administration, which was a sovereign task. In addition, the Russian Federation had not waived its immunity from execution. The Federal Court of Justice found that the Bilateral Investment Treaty, which regulated the procedure on the merits, contained no waiver in respect of enforcement proceedings. Such a waiver could also not be inferred from the Bilateral Investment Treaty (in particular its Article 10 § 4) or the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or any other treaty. According to the spirit and purpose of the Bilateral Investment Treaty, enforcement proceedings were generally permitted, but did not extend to assets serving a sovereign purpose.
On 23 February 2006 the Federal Constitutional Court refused to admit the constitutional complaint for adjudication, without giving reasons.
The applicant continued his attempts to execute the arbitral award in Germany. He requested an execution on a plot of land situated in Germany, which was owned by the Russian Federation. In 2006 the Cologne District Court ordered the judicial sale of the plot of land.
The Russian Federation brought a civil action against the applicant, claiming that that the execution was illegal as the arbitral award had been obtained fraudulently. The courts rejected the claim. On 4 September 2008 the Federal Constitutional Court refused to admit the Russian Federation’s constitutional complaint.
A state-owned Russian enterprise, which then owned the plot of land, lodged a complaint against the judicial sale of the plot, arguing that the execution conflicted with the international law principle of State immunity. The Frankfurt Court of Appeal rejected the complaint, finding that the plot of land did not serve a sovereign purpose and was therefore not exempt from execution by the principle of State immunity. On 15 December 2008 the Federal Constitutional Court refused to admit the constitutional complaint.
The Bilateral Investment Treaty of 13 June 1989 between the Russian Federation and Germany reads in its Article 10 § 4 in fine:
“The decisions of the arbitral tribunal shall be recognised and implemented in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958.”
Article III of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 reads:
“Each Contracting State shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.”
The relevant provisions of international law instruments governing State immunity are referred to in various cases examined by the Court (see, among many other authorities, Treska v. Albania and Italy (dec.), no. 26937/04, ECHR 2006... (extracts)).


ITEMID: 001-58090
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF DI LUCA AND SALUZZI v. ITALY
IMPORTANCE: 4
CONCLUSION: Art. 6 inapplicable
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. Mr Giustino Di Luca and Mr Osvaldo Saluzzi are surveyors living in Bari.
8. On 21 December 1989 they instituted proceedings against the Ministry of Finance in the Apulia Regional Administrative Court (“the RAC”), seeking judicial review of a decision of the Ministry assigning them, at the time when they were recruited to permanent posts, to a category of staff and salary scale lower than those to which they considered themselves to be entitled on the basis of the duties they had performed as temporary staff.
9. On 8 January 1990 they applied to the President of the RAC for a date to be fixed for the hearing. On 8 February 1993 they filed an application for the case to be set down for an urgent hearing.
10. On a date which is not specified in the file the RAC set down the case for hearing on 7 February 1996.
11. According to the information supplied by the applicants, the RAC required the Ministry of Finance, in an interlocutory judgment of 24 September 1996, to produce certain documents which have still not been filed. On 12 February 1997 the applicants asked for a date to be fixed for the hearing.


ITEMID: 001-76592
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: DAGDAS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mahmut Dağdaş, is a Turkish national who was born in 1933 and lives in Elazığ. He was represented before the Court by Mr Yusuf Alataş, a lawyer practising in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant contended that his house, along with some other houses in his village, had been destroyed as a result of a military operation carried out on 25 and 26 August 1995.
On 30 August 1995 the mayors of Pamuklu and Balıcalı villages drafted two reports confirming that the applicant’s house and belongings had been burnt.
Shortly after the alleged incident, the applicant applied to the Ministry of Interior requesting to be compensated. On 5 September 1995 the Ministry of Interior received the applicant’s petition but did not respond within the 60-day statutory period.
The applicant also filed a petition with the Public Prosecutor’s Office in Karakoçan. He requested that an investigation be carried out to identify the perpetrators.
The public prosecutor conducted an investigation and commissioned an expert report on the applicant’s losses. By the time of the present application, the investigation was pending.
On 3 January 1996 the Ministry of Interior rejected the applicant’s request for compensation. The Ministry concluded that the applicant, along with the other villagers, had voluntarily abandoned the village and that the applicant’s property had gotten ruined due to lack of care throughout the years.
On 11 January 1996 the applicant applied to the Malatya Administrative Court requesting compensation for his losses. On 8 February 1996 the court rejected the request on the ground that the applicant had failed to comply with the time-limit for challenging the decision of the Ministry of Interior. The court pointed out that the applicant applied to the Ministry on 5 September 1995 and did not receive a reply within the 60 days thereafter. The court pointed out that the Ministry had tacitly rejected the request by not responding within the statutory period of 60 days. The court concluded that the 60-day time limit began to run from 4 November 1995 and ended on 3 January 1996.
On 23 December 1997 the Supreme Administrative Court dismissed the applicant’s appeal.
The investigation carried out by the authorities indicated that the applicant had left his village of his own will. The security forces had not destroyed the applicant’s village or forced him to leave their homes.
The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI)


ITEMID: 001-103548
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ANDRLE v. THE CZECH REPUBLIC
IMPORTANCE: 2
CONCLUSION: No violation of Art. 14+P1-1
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant is a Czech national born in 1946 who lives in Vysoké Mýto (the Czech Republic).
6. The applicant was married from 1971 until 1998, when he divorced. On 28 May 1998 the applicant applied for custody of two of his four children, born in 1982 and 1985, maintaining that since August 1997 he and his wife had not lived together and that he cared for the two minor children himself.
In a judgment of 16 July 1998 the Ústí nad Orlicí District Court awarded the applicant custody of the two children.
7. On 14 November 2003 the Czech Social Security Administration (Česká správa sociálního zabezpečení) dismissed an application by the applicant for a retirement pension as he had not attained the pensionable age required by section 32 of the Pension Insurance Act, which was, in his case, sixty-one years and ten months.
8. The applicant challenged the administrative decision before the Hradec Králové Regional Court (Krajský soud), arguing that given the fact that he had cared for two children, he was entitled to retire at the age of fifty-seven and had therefore reached the pensionable age.
9. On 1 December 2004 the Regional Court stayed the proceedings in the applicant's case pending the outcome of the proceedings before the Constitutional Court (Ústavní soud), which was called upon to review the constitutionality of section 32 of the Pension Insurance Act in another case (no. Pl. ÚS 53/2004) brought before it by the Supreme Administrative Court (Nejvyšší správní soud). The Hradec Králové Regional Court joined the proceedings in that case as an intervening party.
10. In judgment no. Pl. ÚS 53/2004 of 16 October 2007 the Constitutional Court dismissed the Supreme Administrative Court's petition to repeal section 32 of the Pension Insurance Act, finding that it was not discriminatory and was therefore compatible with Article 1 and Article 3 § 1, in conjunction with Article 30 § 1, of the Charter of Fundamental Rights and Freedoms.
11. On 12 December 2007 the Regional Court dismissed the applicant's action, referring to the Constitutional Court's judgment no. Pl. ÚS 53/2004.
12. By a judgment of 13 June 2008 the Supreme Administrative Court dismissed a cassation appeal by the applicant, relying on the aforesaid judgment of the Constitutional Court.
13. Subsequently, the applicant lodged a constitutional appeal in which he alleged, inter alia, a violation of Article 14 of the Convention and Article 1 of Protocol No. 1.
14. On 30 October 2008 the Constitutional Court rejected the constitutional appeal as manifestly ill-founded, emphasising, in particular, the discretion afforded to the legislature to implement preferential treatment, the objective and reasonable aim pursued by this preferential treatment of women and the relationship of proportionality between the means employed and the aim pursued.
15. Article 1 provides that all people are free with equal dignity and equal rights. Their fundamental rights and freedoms are inherent, inalienable, imprescriptible, and not subject to repeal.
16. Under Article 3 everyone is guaranteed the enjoyment of his or her fundamental rights and basic freedoms without regard to gender, race, colour of skin, language, faith and religion, political or other conviction, national or social origin, membership of a national or ethnic minority, property, birth, or other status.
17. Article 30 provides that citizens have the right to adequate material security in old age and during periods of incapacity to work, as well as in the case of the loss of their household provider.
18. Differentiated age limits for men and women for entitlement to State retirement pensions were first introduced by the Social Security Act (no. 55/1956), which became effective on 1 January 1957. In general, the pensionable age for men was set at sixty years, while for women it was set at fifty-five years.
19. The Social Security Act (no. 101/1964), effective from 1 July 1964, specified differentials in female pensionable age based on the number of children women raised. The explanatory report on the bill noted the following:
“This differentiated age limit for acquiring the right to retire reflects the different situation in the lives of mothers who, when they took care of children, also carried out duties in the family in addition to their employment duties.”
20. The State Pension Insurance Act (no. 155/1995), effective since 1 January 1996, provides for the basic State pension insurance coverage, laying down the conditions for eligibility for pensions, including retirement pensions, and the methods for calculating and paying out pensions. The pension scheme works on the pay-as-you-earn principle, whereby employees pay contributions from their income, which serve the purpose of financing pensions for today's pensioners from the national budget. Male and female earners are obliged to pay the same social-security contributions in accordance with their status as employed earners or self-employed earners.
21. At the relevant time, section 32(1) of the State Pension Insurance Act provided as follows:
“(1) The pensionable age is
(a) for men, 60 years,
(b) for women:
1. 53 years provided they have raised at least five children,
2. 54 years provided they have raised three or four children,
3. 55 years provided they have raised two children,
4. 56 years provided they have raised one child, or
5. 57 years,
if the insured persons had attained that age by 31 December 1995.”
Section 32(2) provided that for insured persons who reached the abovementioned age limits between 1 January 1996 and 31 December 2006 the pensionable age was to be gradually raised by two months for men and four months for women for each calendar year, even incomplete, between 31 December 1995 and the date of reaching the above-mentioned age limits.
Section 32(4) provided at the relevant time:
“(4) The requirement for a woman to raise children in order to become entitled to an [earlier] State retirement pension has been satisfied if the woman personally takes care, or has taken care, of children for at least ten years before the children reach the age of majority. However, if a woman starts to raise a child after the child has reached the age of eight years, the requirement of raising children has been met if the woman personally takes care, or has taken care, of the child for at least five years before the child reaches the age of majority; however, the foregoing shall not apply if the woman stopped taking care of the child before the child reached the age of majority.”
22. According to the Government's submissions, women are called upon to prove that they have raised children for the statutory period by completing a statutory declaration appended to their application for the retirement pension.
23. Owing to complex demographic changes, the State pensionable age for all persons has thus been gradually rising. Since 2003 the Government have made efforts to push through two amendments of the State Pension Insurance Act envisaging a gradual equalisation of men's and women's retirement age regardless of the number of children raised. However, owing to difficult political negotiations with certain political parties and trade unions, the only possible solution was to reach a compromise.
24. As a result, the amended Act no. 155/1995, effective from 1 January 2010, provides in section 32 as follows:
“(1) The pensionable age is
(a) for men, 60 years,
(b) for women:
1. 53 years provided they have raised at least five children,
2. 54 years provided they have raised three or four children,
3. 55 years provided they have raised two children,
4. 56 years provided they have raised one child, or
5. 57 years,
in the case of insured persons born before 1936.
(2) For insured persons born after 1936 and before 1968 the pensionable age is determined according to the table annexed to this Act, which calculates the increased pensionable ages by adding extra months.
(3) For insured persons born after 1968 the pensionable age is
(a) for men, 65 years,
(b) for women:
1. 62 years provided they have raised at least four children,
2. 63 years provided they have raised three children,
3. 64 years provided they have raised two children, or
4. 65 years.”
25. By this judgment, the Plenary of the Constitutional Court rejected the Supreme Administrative Court's petition for the repeal of section 32 of the Pension Insurance Act. It held that a particular legal framework which gave an advantage to one group or category of persons compared to another could not in itself be said to violate the principle of equality, and that the legislature had discretion to implement preferential treatment. The approach at stake was based on objective and reasonable grounds and pursued a legitimate aim. The court came to the conclusion that the proposed repeal would be contrary to the principles of legal certainty and minimal restrictions on human rights as women would lose preferential treatment whereas men would not receive the same benefits. Therefore, the solution to the unequal treatment of men and women required a complex and prudent adjustment of the whole pension scheme.
In its observations to the Constitutional Court the Ministry of Labour and Social Affairs submitted that among the European Union Member States a similar provision was effective for a temporary period only in Slovakia and to a limited extent in Slovenia.
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-91003
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF POLYAKOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-3-d;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 4. The applicant was born in 1979 and is serving a sentence of imprisonment in the Tver Region.
5. On 21 October 1999 the applicant was apprehended by police officers N and O. According to him, they beat him up and some bystanders, who did not realise that he was being beaten up by police officers, called the police. According to a letter dated 23 May 2000, produced by the Government, the Moscow Department of the Interior informed the applicant’s representative that on 21 October 1999 there had been no call for police assistance in the area where the applicant had been apprehended.
6. After his arrest the applicant was taken to hospital where a doctor diagnosed him with “an injury; a bruise on the left shin; an injury on the left shoulder.” The applicant was then brought to a police station and stayed there for three days on suspicion of drug trafficking.
7. The applicant complained to the prosecutor about the police brutality. As follows from a copy of the decision dated 17 March 2000, submitted by the Government, the Cheremushkinskiy Prosecutor’s Office of Moscow refused to initiate criminal proceedings against officers N and O. It found that the applicant had resisted lawful arrest by swinging his hands and otherwise trying to escape. Thus, the officers had had to handcuff him. The investigator in charge of the applicant’s criminal case at the material time affirmed that the applicant had not alerted her to any unjustified recourse to force against him. Apparently, the applicant was not apprised of the decision of 17 March 2000. According to the Government, that decision was quashed in October 2005 and a further inquiry was ordered. The outcome of that inquiry remains unclear.
8. The applicant also raised the ill-treatment matter at the trial (see paragraphs 11 and 15 below).
9. The applicant was charged with drug trafficking. The prosecution case was that the applicant had committed the following offences:
- on an unspecified date he had bought a large quantity of heroin and on 19 October 1999 sold it to Ms U;
- on an unspecified date he had bought a large quantity of heroin and on 21 October 1999 he attempted to sell it to Ms U, but the police stopped him.
10. On 22 and 23 October 1999 the applicant was questioned in relation to the charges against him. He was not provided with a lawyer because he had previously refused legal assistance. On 24 October 1999 the applicant was released on a written undertaking not to leave the town. On an unspecified date he retained a lawyer and several lay representatives.
11. At the trial the applicant pleaded that he had spent the whole day on 19 October 1999 at home. On 20 October Ms U had called him, but being short of time he had arranged to meet her the next day. It appears that the police monitored that conversation on the second handset. According to the applicant, on 21 October 1999 in the course of his meeting with Ms U, he was approached by police officers who forcibly pinned him to the ground, handcuffed him and beat him up.
12. On 12 October 2000 the applicant asked the trial court to call Ms B, Mr S and Mr R, who could, he alleged, confirm that “he had been at home all day on 19 October 1999 and that he had not met Ms U on that day”. The court rejected that application as premature. The applicant reiterated the request at a hearing on 25 October 2000 and also asked to call Mrs T, his aunt, who had allegedly been at home with him on 19 October 1999. The court rejected both applications as “premature and unfounded”. At the hearing on 16 November 2000 the applicant’s lay representative again requested to call Ms B, Mr S and another unspecified person (apparently Mr R), and a Ms P. As can be seen from the hearing record, the court decided that “it was unnecessary to examine those persons”. Thereafter, the applicant unsuccessfully asked to have included in the file written statements made by Ms B, Mr S and a Ms Y confirming the applicant’s alibi for 19 October 1999. The prosecution did not object to the above applications made by the defence.
13. The applicant also asked to have examined Ms Ta., who had been present during the arrest of Ms U and who could have testified that Ms U had never claimed that the applicant had sold her drugs. The request was dismissed by the trial court. According to the Government, Ms Ta. was mentioned in the list of persons to be called to testify at the trial but she did not appear at the trial.
14. By a judgment of 20 November 2000, the Cheremushkinskiy District Court of Moscow found the applicant guilty of unlawfully procuring and being in possession of drugs with the intention of selling them and of selling a large supply of drugs. The trial court sentenced him to nine years’ imprisonment. It based its judgment on the following evidence:
i) the statements by the officers who arrested the applicant on 21 October 1999. They stated that on 19 October 1999 they had arrested Ms U, performed a search on her person and seized a large quantity of drugs. Ms U claimed that she had just bought the drugs from the applicant and offered to assist the officers in the applicant’s arrest. She called the applicant on the telephone and asked for drugs. The applicant agreed and fixed a meeting for 21 October 1999. The police arrested the applicant at that meeting, performed a search on his person and seized a large quantity of drugs;
ii) the deposition by Ms U made during the pre-trial investigation in which she confirmed the statements made by the officers. In her oral testimony at the trial Ms U retracted her earlier deposition;
iii) the statements by eyewitnesses who were present during the applicant’s arrest and search on 21 October 1999 and who testified that a large quantity of drugs had been seized from the applicant;
iv) the depositions by an attesting witness, Ms S, who was present at the arrest of Ms U on 19 October 1999. In her depositions made during the pre-trial investigation Ms S confirmed the statements by the police officers. However, at the trial she partly retracted them, claiming that she had not heard Ms U mention the applicant’s name and that she had signed a blank sheet of paper which was later filled in by the police;
v) the reports on the applicant’s and Ms U’s arrest and search;
vi) the expert reports confirming that the substances seized from the applicant and Ms U were heroin;
vii) the report on the medical examination of the applicant, according to which the applicant was in a state of drug intoxication.
15. The trial court rejected the applicant’s allegation of ill-treatment with reference to the statements by the police officers and the prosecutor’s decision not to open a criminal case against them.
16. The applicant appealed against the trial judgment arguing inter alia in his additional statement of appeal as follows:
“[T]he court arbitrarily refused the defence’s application to examine as witnesses Ms Y, Ms R, Ms B and three other persons who could confirm [the applicant’s] alibi, namely the fact of his presence at home between noon and 3 p.m. on 19 October 1999. That refutes his involvement in the offences of which he has been charged by the prosecution on the basis of Ms U’s pre-trial statement made under duress...No other evidence of the applicant’s guilt has been adduced...”
On 21 February 2001 the Moscow City Court upheld the trial judgment. It did not address the trial court’s refusal to hear witnesses on the applicant’s behalf.
17. On 6 February 2003 the Presidium of the City Court, sitting as a supervisory-review court, reduced the applicant’s sentence to seven years’ imprisonment. On 22 April 2004 the Supreme Court of the Russian Federation examined an application by the applicant for supervisory review. It found that no conclusive evidence had been adduced confirming that the applicant had intended to sell heroin to Ms U on 21 October 1999. The Supreme Court upheld the applicant’s conviction for procurement and possession of heroin on 21 October 1999 and his conviction in relation to the episode on 19 October 1999. The Supreme Court reduced the applicant’s prison sentence to four years and six months.
18. According to the RSFSR Code of Criminal Procedure (CCrP), in force at the material time, the bill of indictment should be accompanied by a list of persons who should, in the prosecutor’s opinion, be called at the trial (Article 206).
19. When deciding to schedule a court hearing a judge shall examine all applications and decide, inter alia, who shall be called as witnesses (Articles 223 and 228 CCrP). If refused, such applications may be renewed at the hearing; applications to call additional witnesses or adduce evidence shall be granted in all cases (Article 223). At the hearing, the judge shall ask the parties whether they want to call further witnesses or adduce further evidence (Article 276). A party making such an application shall specify the circumstances they intend to determine on the basis of such further evidence; having considered the application, the judge shall either grant it or issue a reasoned decision refusing it (ibid.).
20. A court of appeal is competent to review the lawfulness and reasonableness of the judgment made by the court below on the basis of the case file and any additional materials available to it (Article 332 CCrP). Such review can extend beyond the issues raised by the prosecution or defence in their points of appeal (ibid.). The latter may be supported by additional materials adduced either before or during the appeal hearing, but prior to the prosecution’s statement (Article 337).
21. The Code of Criminal Procedure, in force since 2002, provides for a possibility to re-open criminal proceedings on the basis of a finding of a violation of the Convention made by the European Court of Human Rights (Article 413).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-79667
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: FALTER ZEITSCHRIFTEN GMBH v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant company, Falter Zeitschriften GmbH, is the owner and publisher of the weekly newspaper Falter, having its registered office in Vienna. It was represented before the Court by Mr A. Noll, a lawyer practising in Vienna. The respondent Government were represented by Mr F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs
The facts of the case, as submitted by the parties, may be summarised as follows.
In the autumn of 2000 a police officer revealed that he and some colleagues had repeatedly transmitted data from the central police computer to officials of the Austrian Freedom Party (FPÖ). Subsequently criminal investigations were opened against several persons, amongst them Mr Kabas and Mr Kreiβl, who were, respectively, the leader of the Vienna branch of the FPÖ and his secretary.
In May 2002 criminal investigations against Mr Kabas were discontinued. Mr Kreiβl was convicted by the first-instance court in the autumn of 2002, but was subsequently acquitted on appeal.
In the meantime, on 30 April 2002, the applicant company published a one-page article in an issue of Falter commenting on the proceeding and the outcome of the investigations. The relevant passage concerning Mr Kabas and Mr Kreiβl read as follows:
“...The commission investigated and proposed to the investigating judge that pre-trial detention be ordered for Hilmar Kabas, head of the Vienna FPÖ, and Michael Kreiβl, his secretary. However, these individuals were both immune. Neither pre-trial detention nor house searches could be ordered rapidly. In those weeks, on the premises of the Vienna FPÖ so much material, like never before in previous years, was passed through the shredder. Files were discovered with some AUF [police labour union] officials in which just those passages subsequently to be found in FPÖ press releases had been highlighted in yellow.... ”
Referring to the penultimate sentence of this passage, Mr Kabas and Mr Kreiβl instituted proceedings in the Vienna Regional Criminal Court (Landesgericht für Strafsachen), claiming compensation and seeking an order for publication of the judgment under sections 6 and 7b of the Media Act (Mediengesetz).
On 4 March 2003 the Regional Court held an oral hearing and examined three witnesses requested by the defence. The press officer of the Vienna Green Party (Die Grünen), which had its premises under those of the Vienna FPÖ, stated that at the relevant time the doors of the FPÖ branch had been locked and there had been rumours that the shredder had been in continuous use. The court also examined two journalists from the Salzburger Nachrichten, an Austrian daily newspaper which had reported on the issue. Both stated that two independent, anonymous sources had confirmed that at the relevant time a large amount of paper relating to the “police information scandal” had been shredded on the premises of the Vienna FPÖ. However, the journalists refused to give any further information regarding their sources.
On the same day the court found that the offending statement amounted to defamation under Article 111 of the Criminal Code (Strafgesetzbuch) and to a violation of the presumption of innocence of Mr Kabas and Mr Kreiβl, as guaranteed under section 7b of the Media Act (Mediengesetz). It ordered the applicant company to pay 1,500 euros (EUR) in compensation to Mr Kabas and Mr Kreiβl respectively, to publish the judgment and to pay the costs of the proceedings to each of them.
The court found that the offending statement, when read in its context, suggested that Mr Kabas and Mr Kreiβl had themselves destroyed evidence concerning the criminal proceedings instituted against them or at least had approved that destruction. This reading also appeared logical in the light of the fact that Mr Kabas and Mr Kreiβl would have benefited the most from the destruction of such material and that they were both, in their respective positions, the responsible persons. However, the evidence obtained at the trial was not sufficient to prove this allegation as the witnesses could not testify to anything they had perceived themselves. Furthermore, the applicant company had not given Mr Kabas and Mr Kreiβl the opportunity to comment on the allegations raised against them. The court lastly noted that the article did not refer to the Salzburger Nachrichten and therefore dismissed the applicant company’s argument that the offending statement was a neutral citation.
The applicant company appealed against this judgment. It submitted that the Regional Court should have heard a representative from the administration of the premises in question who could have stated that at the relevant time more paper than average had been put through the shredder by the FPÖ party. The court further should have examined the author of the article in order to give him the opportunity to prove that journalistic diligence had been complied with. It further complained that, in the light of the evidence given by the witnesses at the trial, the court should have reached the conclusion that there had been sufficient proof of the offending statements’ veracity.
On 8 September 2003 the Vienna Court of Appeal (Oberlandesgericht) confirmed the Regional Court’s judgment but increased the amount of compensation to be paid to Mr Kabas and Mr Kreiβl, respectively, to EUR 3,000. It noted that the applicant company’s request for the examination of a representative of the premises in question had not been adequately submitted as it was filed only in written submissions prior to and not at the trial. In any event, however, a statement that more paper than average had been put through the shredder would not prove that it had in fact been evidence concerning the “police information affair” which had been destroyed. An examination of the author of the article to prove that journalistic diligence had been complied with had not been necessary. The applicant company had admitted that Mr Kabas and Mr Kreiβl had not been consulted before the writing of the article and it had not alleged that there had been exceptional circumstances, such as official documents, to prove the statement at issue, which would have exonerated it from this obligation. The court finally noted that the assessment of evidence was a matter to be dealt with by the courts. In the present case, the court could not possibly reach the conclusion that the information provided by anonymous sources had been reliable and credible as the journalists’ statements in this regard had to be considered as uncorroborated assessments by witnesses. In any event, these statements merely asserted that much material had been shredded, but did not prove that Mr Kabas and Mr Kreiβl had been involved.
This judgment was served on the applicant company’s counsel on 28 October 2003.


ITEMID: 001-23927
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: BREISACHER v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Michel Breisacher, is a French national who was born in 1945 and lives in Paris. He was represented before the Court by Mr P.-F. Divier, of the Paris Bar.
On 23 July 1986 a part publicly owned company, the Société d’économie mixte parisienne de prestations (SEMPAP), was set up, with the City of Paris as its majority shareholder. The chairperson of its board of directors was also chairperson of the tenders committee. SEMPAP, which was formed to replace the City of Paris Stationery Office (Imprimerie municipale de la ville de Paris), entered into a number of contracts with suppliers. The City of Paris Inspectorate General reported unfavourably on its operations in 1989, 1992 and 1995.
On 30 October 1997, following the forwarding of a report from the Ile-de-France Regional Audit Office to the Paris public prosecutor on 29 September 1997, a judicial investigation was opened at the Paris tribunal de grande instance against an unnamed person for favouritism in the award of public contracts for supplies and printing services by SEMPAP. Two investigating judges from the court were put in charge of the investigation.
On 24 September 1999 the judges’ remit was extended to cover embezzlement of public funds, misappropriation of corporate assets, acquiring or retaining a prohibited interest or complicity therein, receipt of stolen goods and aiding and abetting.
By a judgment of 7 July 2000, the Paris Administrative Court gave the applicant leave under Article L. 2132-5 of the General Code of Territorial Authorities,
“at his own risk and expense, to join the proceedings as a civil party in place of the City of Paris in the judicial investigation opened into the alleged over-billing of the City of Paris for contracts made through SEMPAP’s intermediary”.
On 21 November 2000 the applicant asked the investigating judges to order the examination, as a witness, of Mr Chirac, who was the mayor of Paris until 1995 and has been President of the French Republic since then.
By an order of 14 December 2000 the judges, who noted that the request had been written in accusatory terms that effectively levelled charges against Mr Chirac, held that, in the absence of specific case-law from the Court of Cassation concerning the Constitutional Council’s position (decision of 22 January 1999) with regard to the President of the Republic’s immunity, they did not have jurisdiction to order such a measure.
On 29 June 2001 the Investigation Division of the Paris Court of Appeal, before which the applicant had revised his request, now seeking an order for Mr Chirac to be placed under investigation, upheld the order of 14 December 2000.
By a judgment of 10 October 2001 the Court of Cassation, sitting in plenary, held that proceedings could not be brought before the ordinary criminal courts for the duration of the President’s term of office, during which period the right to prosecute was suspended. The appeal judgment had therefore erred in holding that the appeal was admissible and that the investigating judges did not have jurisdiction, but would not be reversed as the investigating judges did not in fact have power to order an investigative measure of this sort.
“The territorial authorities of the Republic shall be the municipalities, the départements, the regions, the special-status areas and the overseas territories to which Article 74 applies. Any other territorial authority shall be established by statute, where appropriate in place of one or more authorities referred to in this paragraph.”
“Any taxpayer registered on the municipal electoral roll shall be entitled, at his or her own risk and expense and with the leave of the administrative court, to bring or defend any action which he or she believes the municipality should bring or defend but has refused or neglected to do so after being put on notice to consider the matter.”
“When examining a request submitted by a taxpayer on the basis of [Article L. 2132-5 of the General Code of Territorial Authorities], the administrative court, ruling in its capacity as an administrative authority, and the Conseil d’Etat, on a full appeal against a decision by the administrative court, shall, without acting as the trial judge and in the light of the evidence before them, check whether the action contemplated is of sufficient public interest for the municipality and has a prospect of success.”
(See, among many other authorities, judgments no. 249303 of 14 March 2003; no. 242768 of 13 January 2003, published in the Tables du Recueil Lebon; no. 233036 of 22 February 2002; no. 226385 of 15 October 2001; no. 210088 of 24 May 2000; no. 197017 of 28 July 1999.)


ITEMID: 001-84651
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ATTEMS AND OTHERS v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Isabelle Berro-Lefèvre
TEXT: 1. The applicants, Mr Johannes Attems, Mrs Eleonore Drasche, Mrs Gabrielle Rau, Mr Ferdinand Attems and Mr Alois Attems, are Austrian nationals who were born in 1947, 1943, 1953, 1945 and 1927 respectively.
2. Mr Johannes Attems, Mrs Gabrielle Rau and Mr Ferdinand Attems live in Vienna, Mrs Eleonore Drasche lives in Ebereichsdorf and Mr Alois Attems lives in Graz.
3. The application was lodged together with two more applicants, who died during the proceedings: Mr Franz Attems, who was born in 1926, lived in Graz and died on 13 May 1999, and Mr Edmund Attems, who was born in 1924, lived in Vienna and died on 4 January 2006.
4. The applicants were represented by Mr Johannes Attems.
5. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.
6. In accordance with Article 36 § 1 of the Convention and Rule 44 of the Rules of Court, the Registrar informed the Government of the Republic of Austria of their right to submit written comments. In their reply of 30 November 2006, the Government of the Republic of Austria did not indicate that they wished to exercise their right.
The facts of the case, as submitted by the parties, may be summarised as follows.
7. The applicants are heirs of Mr Ferdinand Attems and his wife, Mrs Wanda Attems.
8. The Attems family has lived in what is today Slovenia since 1605. By 1945 they had acquired, exclusively by purchase, extensive real estate and numerous companies, as well as movable assets (such as objects of art, etc).
9. After the Second World War, Slovenia became a constituent part of the newly formed Democratic Federal Yugoslavia. Its former legislative body was the Antifascist Council for the National Liberation of Yugoslavia (“the AVNOJ”), the highest political body in Yugoslavia during and immediately after the Second World War. On 21 November 1944 it adopted a decree (“the AVNOJ decree,” see under “Relevant domestic law and practice”) which prescribed, inter alia, the nationalisation of all property belonging to the German Reich and its citizens which was on the territory of Yugoslavia, of people of German origin, except those who were fighting for the national liberation movement, and finally, of all persons who were criminally convicted by a military or an ordinary court and sentenced to forfeiture of their property (see “Relevant Domestic Law and Practice”).
10. On 17 August 1945 the Maribor Military Court convicted Mr Ferdinand Attems and Mrs Wanda Attems of the offence of high treason during the Second World War. Mr Ferdinand Attems was sentenced to two years' and Mrs Wanda Attems to thirteen months' deprivation of liberty with forced labour. They were also stripped off of their political and civil rights and ordered to forfeit all their property to the State.
11. Probably towards the end of 1945, Mr Ferdinand Attems, Mrs Wanda Attems and Mr Emil Hans Attems (the first son of Ferdinand Attems) lost their lives in a work camp in circumstances that still remain unclear. On 20 February 1950 the Graz Regional Court (in Austria) adopted a decision to the effect that Mr Ferdinand Attems and Mrs Wanda Attems should be deemed no longer to be alive after 2 January 1946.
12. On 16 April 1993, after the independence of Slovenia and the change of the political regime, the Senate of the Maribor Basic Court (Senat Temeljnega sodišča v Mariboru), at the request of Mr Johannes Attems and Mr Edmund Attems, decided to reopen the criminal proceedings against Mr Ferdinand Attems and Mrs Wanda Attems. On 3 June 1993 the Public Prosecutor withdrew the indictment against Mr Ferdinand Attems and Mrs Wanda Attems. Consequently, the Maribor Basic Court quashed the convictions and discontinued the criminal proceedings against them. The decision became final on 12 July 1993.
13. On 22 April 1992 Mr Johannes Attems also lodged a request for declaratory decisions concerning the citizenship of Mr Ferdinand Attems and Mrs Wanda Attems with the Slovenska Bistrica Municipality. On 17 March 1993 the Municipality adopted two decisions certifying that Mr Ferdinand Attems and Mrs Wanda Attems were Yugoslav and Slovenian citizens until their death.
14. On 7 December 1991 the Denationalisation Act (Zakon o denacionalizaciji, see “Relevant Domestic Law and Practice”) came into force, following which the applicants lodged a request for restitution of the property forfeited by Mr Ferdinand Attems and Mrs Wanda Attems with the Denationalisation Commission of the Slovenska Bistrica Municipality's Assembly (Komisija za denacionalizacijo, Skupščina Občine Slovenska Bistrica). On 9 January 1992 the latter informed the applicants that their request was incomplete, informed them about the requirements set forth by the Denationalisation Act and instructed them to amend their request.
15. Between 31 March and 26 April 1993, the applicants lodged claims for restitution of property under the Denationalisation Act with the Slovenska Bistrica Municipality, the Brežice Municipality, the Krško Municipality and the Šmarje pri Jelšah Municipality, respectively. At an undetermined time, a claim under the same provisions was lodged with the Ministry of Culture of the Republic of Slovenia.
16. On 7 January 1994 the applicants and a company, Terme Čatež d.d., reached an out-of-court settlement regarding the restitution of a part of the company's property which constituted a part of the property the applicants claimed in the proceedings before the Brežice Municipality. The applicants were awarded company shares worth approximately 1.1 million euros. The settlement was confirmed by the Brežice Municipality on 10 October 1994 and the proceedings concerning this property were terminated.
17. On 30 December 1995 the Act on Temporary, Partial Suspension of Restitution of Property (Zakon o začasnem, delnem zadržanju vračanja premoženja) was adopted, which temporarily suspended the restitution of certain types of property, and which affected also the denationalisation proceedings to which the applicants were parties.
18. On 8 July 1996 the applicants withdrew all their claims made under the Denationalisation Act, and started restitution proceedings under the Act on Implementation of Penal Sanctions (Zakon o izvrševanju kazenskih sankcij, see below, and under “Relevant domestic law and practice”). Consequently, the different sets of denationalisation proceedings to which the applicants were parties were terminated.
19. On 8 July 1996 the applicants also instituted proceedings against the Republic of Slovenia in the Ljubljana District Court (Okrožno sodišče v Ljubljani), seeking compensation for the loss of profit they had incurred by being prevented from using the forfeited property. At an undetermined time, the proceedings were stayed until the termination of the proceedings concerning the restitution of the property (see below).
20. On 8 August 1997 the Act on the Temporary Suspension of Certain Provisions of the Denationalisation Act and of the Act on Implementation of Penal Sanctions (Zakon o začasnem zadržanju izvajanja nekaterih določb zakona o denacionalizaciji in zakona o izvrševanju kazenskih sankcij, see “Relevant domestic law and practice”) was adopted. This resulted again in a stay of all the proceedings to which the applicants were parties.
21. In July 1996, after withdrawing their restitution claims under the Denationalisation Act, the applicants lodged requests for restitution of property under the provisions of the Act on Implementation of Penal Sanctions (Zakon o izvrševanju kazenskih sankcij, see “Relevant domestic law and practice”) with four Local Courts.
22. On 11 July 1996 the applicants instituted uncontentious civil proceedings in the Slovenska Bistrica Local Court (Okrajno sodišče v Slovenski Bistrici) against twenty-four legal entities, among them the Republic of Slovenia, the Municipality of Slovenska Bistrica (Občina Slovenska Bistrica), the Farmland and Forest Fund of the Republic of Slovenia (Sklad kmetijskih zemljišč in gozdov Republike Slovenije, “the Fund”) and several museums. They requested restitution of numerous plots of land, buildings, an extensive collection of art paintings, and other property taken from their predecessors, Mr Ferdinand Attems and Mrs Wanda Attems, following the Military Court's judgment of 17 August 1945. They also requested the court to allow certain interim measures preventing the sale or encumbrance of the property at issue, which was at the time in the possession of the company Ritoznojčan.
23. After a hearing held on 15 December 1998, the court on 18 January 1999 allowed the interim measure. After three subsequent sets of appellate proceedings and new requests for re-examination of the case, the Maribor Higher Court (Višje sodišče v Mariboru) on 5 January 2001 confirmed the first-instance court decision on the interim measure as final.
24. On 13 December 2000 the applicants urged the court to decide promptly on the case.
25. On 30 January 2002 the court delivered a decision inviting the applicants to amend their request of 11 July 1996 in order to satisfy the requirements under the Denationalisation Act.
26. On 14 May 2002, upon the applicants' request, the court extended the deadline for an additional ninety days.
27. On 26 August 2002 the applicants lodged written submissions supplementing their original request.
28. On 18 October 2002 the court issued a decision rejecting the applicants' request with respect to six adversaries since the applicants had failed to amend correctly their request. With respect to the other eighteen adversaries, the court found that under the Act on Implementation of Penal Sanctions they were not the entities liable for restitution of property. The applicants' respective requests were therefore dismissed. The decision was served on the applicants on 11 November 2002.
29. On 25 November 2002 the applicants appealed to the Maribor Higher Court. They also appealed against the decisions of 30 January 2002 and 14 May 2002.
30. On 5 August 2003 the court allowed the applicants' appeals, set aside the three impugned decisions and remitted the case to the Slovenska Bistrica Local Court.
31. On 21 October 2003 the Slovenska Bistrica Local Court held a hearing and heard submissions from the applicants and their six opposing parties.
32. On 20 November 2003 the court, by an interim decision, upheld the applicants' claim and decided that Mr Ferdinand Attems and Mrs Wanda Attems were entitled to restitution of all the property taken from them in 1945. The court found that the property in question had not been forfeited already by the nationalisation provisions of the AVNOJ decree of 21 November 1944, but only by the later criminal judgment of the Military Court handed down on 17 August 1945. Therefore, the property should be returned to the applicants according to the Act on Implementation of Penal Sanctions, and not under the provisions of the Denationalisation Act.
33. On 23 and 24 December 2003 the Slovenska Bistrica Municipality, the Republic of Slovenia and the Fund appealed to the Maribor Higher Court.
34. On 2 February 2004 the applicants replied and on 9 March 2003 they requested priority treatment of their case, which was granted.
35. On 14 May 2004 the Maribor Higher Court dismissed the appeals and upheld the decision of the first-instance court. The decision was served on the applicants on 9 June 2004.
36. On 29 June 2004 the Republic of Slovenia lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
37. On 7 October 2004 the applicants replied. On 27 March 2006 they lodged additional documents and requested the court to decide promptly on the case.
38. On 26 October 2006 the Supreme Court set aside the decisions of the second- and first-instance courts in the part concerning the Republic of Slovenia and remitted the case to the first-instance court for re-examination. As for the other adversary parties to the proceedings, including the Municipality of Slovenska Bistrica, the decision of the Maribor Higher Court of 14 May 2004 became final. The court found that the Act on Implementation of Penal Sanctions was not necessarily the right basis for the restitution of the property in this case. It instructed the first-instance court to establish clearly whether the property at issue had been confiscated already by the nationalisation provisions of the AVNOJ decree of 21 November 1944, or by the criminal judgement of 17 August 1945. If the property had already been nationalised by the AVNOJ decree, the property should be returned under the denationalisation provisions of the Denationalisation Act and subject to the limitations for restitution set forth in that Act. If, on the other hand, the forfeiture of the property had been ordered as a penal sanction following the conviction, the property should be returned under the Act on Implementation of Penal Sanctions.
39. On 29 December 2006 the Republic of Slovenia lodged preliminary written observations.
40. On 6 November 2007 the applicants specified before the Slovenska Bistrica Local Court which plots of land should be returned by the Municipality of Slovenska Bistrica further to the Maribor Higher Court's decision of 14 May 2004.
41. The proceedings before the Slovenska Bistrica Local Court are still pending.
42. On 10 July 1996 the applicants instituted uncontentious proceedings against the Republic of Slovenia, the Brežice Municipality (Občina Brežice), the Farmland and Forest Fund and four other legal entities in the Brežice Local Court (Okrajno sodišče v Brežicah). They requested restitution of the property forfeited by Mr Ferdinand Attems and Mrs Wanda Attems, which was at the time allegedly in the possession of these entities. They also requested an interim measure prohibiting the sale or encumbrance of the property.
43. On 18 February, 8 June, 4 October and 13 December 2000 the applicants requested the court to start processing their case and to inform them of the application number of their case.
44. At an undetermined time, the judge dealing with the case was replaced.
45. On 30 March 2001 the court held a hearing which was adjourned sine die to allow the applicants to prepare a reply to the submissions of the adversaries. In addition, the court requested the applicants to supplement their request for an interim measure of 10 July 1996.
46. On 28 June 2001 the court dismissed the request for an interim measure. The applicants appealed against this decision to the Ljubljana Higher Court (Višje sodišče v Ljubljani) on 17 July 2001. It is not determined what was the final decision of the court regarding the interim measure.
47. In March 2002, the acting judge was again replaced.
48. On 26 November 2002 the applicants lodged written submissions with the Brežice Local Court, specifying their claims.
49. On 13 June 2003 the court held a hearing, took submissions from the parties and adjourned the hearing until 12 September 2003.
50. At the hearing held on 12 September 2003, the court decided to issue a partial decision.
51. By a letter of 13 March 2006, the applicants requested the court to issue the decision, as announced on 12 September 2003. They also lodged a supervisory appeal.
52. On 29 November 2006 the first-instance court held another hearing and on 10 March 2007 it issued a partial decision, stating that Mr Ferdinand Attems and Mrs Wanda Attems were entitled to restitution of all the property taken from them in 1945. The court found that the property in question had been forfeited by the criminal judgment and not by the AVNOJ decree. Hence, the applicants' claims made under the Act on Implementation of Penal Sanctions were justified and should be upheld.
53. On 24 April 2007 and 4 April 2007 respectively, the Republic of Slovenia and the Brežice Municipality appealed against this decision to the Ljubljana Higher Court.
54. The proceedings are still pending.
55. On 8 July 1996 the applicants instituted uncontentious proceedings against the Republic of Slovenia, the Krško Municipality (Občina Krško) the Farmland and Forest Fund and five other legal entities in the Krško Local Court. They requested restitution of the property forfeited by Mr Ferdinand Attems and Mrs Wanda Attems, which was at the time allegedly in the possession of these entities. They also requested that an interim measure be issued prohibiting the sale or encumbrance of the property.
56. On 15 July 1996 the court upheld the applicants' requests for an interim measure. The Republic of Slovenia objected to this decision. The applicants replied to this objection on 13 January 1997.
57. On 25 February 1997 the court held a hearing.
58. On 18 February, 4 October and 13 December 2000 the applicants urged the court to decide on the objection and resume the proceedings on the merits of the case.
59. On 14 March 2001 the court rejected the objection of the Republic of Slovenia. The court also dismissed the applicants' request that their adversaries transfer possession of the property in question to the applicants for the duration of the proceedings.
60. On 12 April 2001 and on 18 June 2001 the court held hearings. The latter was adjourned due to the objection of three parties as to the jurisdiction of the court. It is not certain when the court dismissed this objection.
61. On 18 June 2002 the court delivered a partial decision. It found that under the Act on Implementation of Penal Sanctions, the Republic of Slovenia was liable to return to Mr Ferdinand Attems certain plots of land and that he should be registered as the owner of these properties in the Land Register (Zemljiška knjiga). The court decided to defer issuing a decision concerning the remainder of the claims. The decision was served on the applicants on 18 July 2002.
62. On 29 and 31 July 2002, respectively, the Republic of Slovenia and the Fund appealed to the Ljubljana Higher Court.
58. On 9 July 2003 the Ljubljana Higher Court allowed the appeals in part, because the first-instance court had wrongly decided which of the parties was liable for the return of the property. In this respect the case was remitted to the first-instance court for re-examination.
63. On 6 and 7 October 2003, respectively, the Republic of Slovenia and the Fund lodged an appeal on points of law with the Supreme Court.
64. On 6 September 2004 the applicants requested priority treatment of their case. In a letter of 27 September 2004, the Supreme Court informed them that cases such as the applicants', which concern the restitution of property on the basis of the Act on Implementation of Penal Sanctions, were regularly dealt with priority.
65. On 19 January 2006 the Supreme Court allowed the appeals on points of law, set aside the decisions of the first- and second-instance courts and remitted the case to the Krško Local Court for re-examination. The court found that the Act on Implementation of Penal Sanctions was not necessarily the basis for the restitution of the property in this case. The first-instance court would need to establish clearly whether the property at issue had been confiscated by the AVNOJ decree or by the criminal judgment. The decision was served on the applicants on 6 March 2006.
66. On 29 May 2007 the first-instance court held another hearing.
67. The proceedings are still pending.
68. On 11 July 1996 the applicants instituted uncontentious proceedings against the Republic of Slovenia, the Šmarje pri Jelšah Municipality (Občina Šmarje pri Jelšah) the Farmland and Forest Fund and six other legal entities in the Šmarje pri Jelšah Local Court (Okrajno sodišče v Šmarju pri Jelšah). They requested restitution of the property forfeited by Mr Ferdinand Attems and Mrs Wanda Attems, which was at the time allegedly in the possession of these entities.
69. The hearings scheduled for 4 July 1997 and 23 March 1998 were cancelled.
70. On 6 April 1998 the court held a hearing and requested the applicants to specify their claim and amend it so as to meet the requirements set by the law.
71. On 5 January 1999 the applicants lodged preliminary written submissions and increased their claim by seeking damages due to the dilapidation of some real estate.
72. A hearing scheduled for 12 April 1999 was cancelled.
73. On 12 November 1999 the court held a hearing and adjourned it until 14 January 2000 in order to acquire the criminal file and documents related to the forfeiture of the property from the Celje Historical Archives (Zgodovinski arhiv Celje). The rescheduled hearing was subsequently cancelled because the requested files had not yet been delivered.
74. The hearing scheduled for 14 January 2000 was cancelled.
75. On 20 January 2000 the court held a hearing which was adjourned. The applicants were given thirty days to submit additional documents.
76. On 18 May and 8 September 2000 the court held hearings. The latter hearing was adjourned, since the court had found that there existed a discrepancy between the transcripts from the Land Registry and the facts established by the court. The applicants were ordered to furnish documents identifying all the plots of land claimed within two months.
77. On 23 March 2001 the court held a hearing and decided to deliver a written decision.
78. On 26 April 2001 the court delivered a written decision. It decided that it had no jurisdiction to hear the case and set aside all the procedural steps taken. This decision was consistent with its finding that the property in question had not been confiscated by the judgment of the Military Court but by the AVNOJ decree, and should thus be sought under the Denationalisation Act and before the competent authorities. The court also found that Mrs Wanda Attems had not been the (co-)owner of the property claimed. On 16 May 2001 the decision was served on the applicants.
79. On 23 May 2001 the applicants appealed to the Celje Higher Court (Višje sodišče v Celju).
80. On 29 January 2002 the applicants sought priority treatment of their case in the Celje Higher Court.
81. On 3 May 2002 the applicants again sought priority treatment of their case in the Celje Higher Court and submitted Supreme Court case-law references in similar cases.
82. On 27 June 2002 the Celje Higher Court allowed the appeal in part and remitted the case for re-examination. The decision was served on the applicants on 4 September 2002.
83. The remainder of the case was given a new application number.
84. On 20 November 2002 the court held a hearing.
85. On 14 May 2003 the court held a hearing and decided to deliver an interim and a partial decision in writing.
86. On 30 June 2003 the court found that Mr Ferdinand Attems and Ms Wanda Attems were entitled to the restitution of property, since it had been forfeited by the criminal judgment of the Military Court. The court ordered the Fund to return to the applicants several plots of land. The decision was served on the applicants on 7 July 2003.
87. On 10 July 2003 the applicants appealed to the Celje Higher Court against the decisions concerning the costs and expenses. On 7 and 8 August 2003, respectively, the Ministry of Culture and the Fund cross-appealed. The Republic of Slovenia also cross-appealed.
88. On 1 October 2003 the applicants requested the Celje Higher Court for priority treatment of their appeal.
89. On 8 April 2004 the applicants again sought priority treatment of their case.
90. On 5 May 2004 the president of the Celje Higher Court informed the applicants that their case would be dealt with after the court's summer recess.
91. On 22 September 2004 the Celje Higher Court allowed the applicants' appeal in part and allowed the appeals of their adversaries. The decision of the first-instance court was set aside and remitted for re-examination. The court found that the first-instance court had failed to take into consideration the latest case-law of the Supreme Court concerning the interpretation of the legal effects of the AVNOJ decree. The decision was served on the applicants on 18 November 2004.
92. On 13 July 2005 the court held a hearing and decided to issue a written decision.
93. On 14 July 2005 the first-instance court dismissed all the applicants' claims. It held that the property at issue had been confiscated by the AVNOJ decree and not by the criminal judgment. Therefore, restitution could not be sought under the provisions of the Act on Implementation of Penalty Sanctions, but rather under the Denationalisation Act.
94. On 18 November 2005 the applicants appealed to the Celje Higher Court.
95. On 10 May 2006 the court allowed the appeal, set aside the judgment of the first-instance court and remitted the case for re-examination. The decision was served on the applicants on 30 May 2006.
96. On 25 September 2006 the first-instance court held a hearing. After being asked by the applicants to stay the proceedings due to the out-of-court settlement procedure taking place between the parties, the court adjourned its decision for 30 days.
97. On 31 January 2007 the court held a hearing and decided to deliver the final decision in writing.
98. The proceedings are still pending.
On 21 November 1944, the Antifascist Council for the National Liberation of Yugoslavia (AVNOJ) adopted the Decree on the Transfer of Enemy Assets to State Ownership, on State Administration of the Assets of Absent Persons and on the Seizure of Assets which the Occupying Authorities Have Forcibly Estranged (Odlok o prehodu sovražnikovega imetja v državno svojino, o državnem upravljanju imetja odsotnih oseb in o zasegi imetja, ki so ga okupatorske oblasti prisilno odtujile, “the AVNOJ decree”), which entered into force on 6 February 1945. Its section 1 provided for nationalisation of the following categories of property:
a) all the property of the German Reich and its citizens which is on the territory of Yugoslavia;
b) all the property of people of German origin, except those who were fighting for the national liberation movement and its partisan forces, or are the citizens of neutral countries and did not act for the enemy side;
c) all the property of war criminals and their supporters, irrespective of their nationality, as well as all the property of every person who was convicted by an ordinary or a military court and sentenced to forfeiture of his or her property to the State.
The Denationalisation Act (Zakon o denacionalizaciji, Official Journal no. 27/91) formed the basis for restitution of property (or its value) that had passed into State ownership through previous legislation (agrarian reform, nationalisation, confiscation, etc.).
Section 3 provides that all natural persons whose property had passed into State ownership on the basis of the listed legislation adopted in the aftermath of the Second World War, including the AVNOJ decree, the Criminal Code and the Act on Criminal Acts against the Nation and the State, are entitled to denationalisation. Section 4 further specifies that all other natural persons whose property was nationalised by a legal act issued before 1963 are entitled to denationalisation.
In section 92, the Denationalisation Act originally extended its provisions also to property forfeited by virtue of criminal judgments handed down before 31 December 1958. This provision was rescinded by the Constitutional Court on 5 November 1992, partly on the ground that it was retroactive and therefore violated Article 155 of the Slovenian Constitution (decision no. U-I-10/92). According to these findings, the restitution of property which was forfeited by virtue of criminal judgments handed down before 31 December 1958 should instead be governed by the Act on Implementation of Penal Sanctions.
On 30 December 1995, the Act on Temporary, Partial Suspension of Restitution of Property (Official Journal no. 74/95) entered into force, which held in abeyance certain types of restitution proceedings for a period of three years.
Prior to 1998 amendments, the Act on Implementation of Penal Sanctions (Zakon o izvrševanju kazenskih sankcij, Official Journal no. 17/78, 8/90) applied also to the restitution of property forfeited in criminal proceedings which had terminated before 31 December 1958 and the decision of which had later been quashed.
The 1998 Act on Amendments of, and Supplements to, the Act on Implementation of Penal Sanctions (Zakon o spremembah in dopolnitvah Zakona o izvrševanju kazenskih sankcij, Official Journal no. 10/98) made minor amendments to Section 145 of the 1978 Act.
It also added new Sections 145A and 145C to the 1978 Act. As far as the criminal proceedings terminated before 31 December 1958 are concerned, Section 145A replaced Section 145 and referred to the provisions of the Denationalisation Act to govern the form and scope of restitution, the restrictions on restitution and the valuation of property in case of claims for restitution of property forfeited in criminal proceedings terminated before 31 December 1958. Section 145C expressly removed the right to compensation for the previous owner's inability to make use of the property during the period of forfeiture.
Section 3 made the change applicable in non-contentious and contentious proceedings concerning the restitution of confiscated property when such proceedings had commenced before the Act came into force but had not become final by that time.
In June 2002, further to the Constitutional Court's ruling of 15 November 2001, Section 145C was amended again so that persons entitled under Section 145A might claim compensation for being unable to use or to manage the property or for loss of earnings incurred throughout the period running from the quashing of the forfeiture of the property until the decision on its restitution becomes final.
On 8 August 1997 the Act on the Temporary Suspension of Certain Provisions of the Denationalisation Act and of the Act on Implementation of Penal Sanctions (Zakon o začasnem zadržanju izvajanja nekaterih določb zakona o denacionalizaciji in zakona o izvrševanju kazenskih sankcij, Official Journal no. 49/1997) was adopted. Its Section 2 suspended, originally until 20 December 1997 and subsequently, under new legislation, until 31 March 1998, proceedings concerning claims for the restitution of or compensation for property which had been confiscated by virtue of criminal judgments handed down before 31 December 1958, or which was of a “feudal origin”.
The following provisions of the 1991 Constitution (Ustava Republike Slovenije, Official Journal no. 33/91) are particularly relevant for the present case:
“Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law.
...
“Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a state or local authority or as a holder of public office ...”
On 13 February 1998 the Constitutional Court decided in favour of the applicants and some other individuals, who had lodged a constitutional appeal challenging the provisions of the Act on the Temporary Suspension of Certain Provisions of the Denationalisation Act and of the Act on Implementation of Penal Sanctions. It ruled (a joined decision U-I-200/97), that the legislator did not have a justified cause to differentiate between the claims for restitution of property of a feudal and non-feudal origin.
Following another constitutional appeal lodged by Mr Johannes Attems and some other individuals, the Constitutional Court ruled on 16 July 1998, (a joined decision no. U-I-60/98), that the challenged provisions of section 145A and 145C of the 1998 Act on Amendments of, and Supplements to, the Act on Implementation of Legal Sanctions did not conflict with the Constitution because such interference with the constitutional rights granted in Articles 30 (right to rehabilitation and compensation in criminal proceedings) and 33 (right to own and inherit property) of the Constitution was indispensable for the protection of the rights of other claimants under the Denationalisation Act.
The Constitutional Court further ruled that Section 3 of the 1998 Act on Amendments of, and Supplements to, the Act on Implementation of Legal Sanctions was in conformity with the Constitution notwithstanding the fact that it retroactively interfered with acquired rights, because the retroactive effect of the Act was justified by the public interest.
The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) has been implemented since 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings.
Section 3 provides for two remedies to expedite pending proceedings - a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog) - and, ultimately, for a claim for just satisfaction in respect of damage sustained because of the undue delay (zahteva za pravično zadoščenje).