ITEMID: 001-23012
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: AUGUST v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Carl Wade August, is a United Kingdom national, who was born in 1976 and lives on the Isle of Wight. He is represented before the Court by Ms Y. Spencer of the Children’s Legal Centre.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1985, the applicant, aged 8, was taken into voluntary care by the local authority. In 1987, he was diagnosed as being a disturbed child and in March 1990 assessed as being in need of psychiatric assessment.
In the summer of 1990, while placed at a residential centre, the applicant, aged 13 years, met C., a 53 year-old man, in a public lavatory. Oral sex was performed by both parties and the applicant was paid ten pounds sterling. Over the next four months, the applicant alleged that C. committed further acts of gross indecency and buggery on the applicant. The applicant informed the social services who took no action. He then informed the police.
On 9 June 1993, C. was convicted of one count of buggery involving the applicant in which the evidence was that C. was the passive participant and two counts of gross indecency. He was sentenced to seven years’ imprisonment. There was a finding by the judge on sentencing that the applicant did not appear older than his years and that C. posed a serious risk to other children. On appeal, the Court of Appeal reduced C.’s sentence to five years, noting that the judge had been entitled to conclude that C. was likely to commit offences which might cause serious harm in the future but that the sentence was too high in the special circumstances of this case, in particular the part played by the victim “who had gone to the public lavatory for the purpose of seeking out someone to obtain money from them for homosexual activity and who was the active partner in the only act of buggery which took place”.
On 3 April 1997, the applicant applied to the Criminal Injuries Compensation Authority (CICA). A report dated 22 December 1997 by a consultant psychiatrist prepared for this purpose indicated that the applicant had shown behavioural signs and indicators that suggested that he had been sexually abused before the age of ten.
On 13 June 1997, the CICA rejected the applicant’s application for compensation on the grounds that he was not the victim of violence as required under paragraph 8(a) of the Criminal Injuries Compensation Scheme, that his own conduct had contributed to the incident and that in the circumstances it was not appropriate that he should receive an award and that they had taken into account the applicant’s unlawful conduct pursuant to Article 13(e) of the Scheme (following the offences, the applicant had himself committed three offences against the person, one offence against property, five offences of theft and one of failing to surrender to bail).
On 10 November 1997, the CICA upheld its decision on the applicant’s application for review.
On 21 January 1998, the applicant appealed against the decision, arguing that inter alia as a child he had been incapable of consenting to the sexual acts in question, and that non-consensual indecent assault and buggery could not be other than a crime of violence.
At the hearing before the CIC Appeal Panel, at which C., the applicant and the investigating police officer gave evidence, the applicant’s representative accepted that the applicant had participated “voluntarily” in the acts, in that he was not forced by threats of physical violence but submitted that his consent was vitiated by his age, history in care and earlier history of sexual abuse.
By decision of 3 November 1998, amplified by further reasons on 18 January 1999, the Appeal Panel rejected the appeal on the ground that there had not been a crime of violence.
The applicant applied for judicial review on 3 February 1999. A further psychiatric report pointed out that the applicant was a damaged and vulnerable child with a serious mental health problem, that predatory paedophiles targeted such boys and that given C.’s age, it could not be regarded that the applicant was able to make an “informed choice” in the matter.
On 4 November 1999, the High Court refused the application. Mr Justice Owen held that it did not follow that because there could not be a consent valid in law that there was a crime of violence. It was a matter of fact to be decided by the panel who heard the witnesses and no error of law was disclosed by their decision.
On 18 December 2000, the Court of Appeal refused his appeal, agreeing that a sexual offence was not per se a crime of violence and that whether violence was involved depended on the facts of the individual case.
Leave to appeal was refused by the House of Lords on 26 March 2002.
The Criminal Injuries Compensation Scheme provides for the payment of compensation to persons who have sustained criminal injury.
“8. For the purposes of this Scheme, ‘criminal injury’ means one or more personal injuries as described in the following paragraph ...
a crime of violence (including arson, fire-raising or an act of poisoning ...
13. A claims officer may withhold or reduce an award where he considers that: ...
(d) the conduct of the applicant before, during or after the incident giving rise to the application makes it inappropriate that a full award or any award at all be made; or
(e) the applicant’s character as shown by his criminal convictions ... makes it inappropriate that a full award or any award at all be made ...”


ITEMID: 001-61261
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF RYABYKH v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 with regard to the right to a court;Not necessary to examine Art. 6-1 with regard to procedural fairness;No violation of P1-1
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1949 and lives in Ninovka, a village in the Belgorod region of Russia.
8. On an unspecified date the applicant brought proceedings against the Novooskolskiy branch of the Savings Bank of Russia, the Savings Bank of Russia and the State. She claimed that the value of her personal savings that had accrued in her accounts by 1991 had significantly dropped following the economic reforms. Her savings were the result of decades of hard work, and she had intended to buy a flat with the money. However, the State had not revalued the amounts on deposit to offset the effects of inflation, as it had been required to do by the Law on revaluation and protection of the savings of citizens of the Russian Federation enacted on 10 May 1995 (Федеральный закон «О восстановлении и защите сбережений граждан Российской Федерации» – “the Savings Act”).
9. On 30 December 1997 the Novooskolskiy District Court, presided over by Judge Lebedinskaya, found in the applicant's favour and awarded her 129,544,106 roubles (RUR) payable by the State treasury. The court rejected the defendants' main argument that the reimbursement scheme under the Savings Act could not be implemented in practice since no special secondary legislation had been passed. Noting that the Savings Act recognised the guaranteed deposits as the State's internal debt and that the State had not introduced the necessary rules in time to enable the debt to be repaid, the court held that the defendants were liable under the civil law.
10. On 28 February 1998 the judgment was set aside on appeal by the Belgorod Regional Court and the case remitted for a retrial.
11. On 8 June 1998 the Novooskolskiy District Court, sitting in the same composition, delivered a judgment similar to its judgment of 30 December 1997. The award, however, was readjusted to RUR 133,963.70. No appeal was lodged against the judgment and it became final ten days later, on 18 June 1998.
12. Enforcement proceedings commenced on 18 January 1999.
13. On an unspecified date in 1999, while the enforcement proceedings were in progress, the President of the Belgorod Regional Court lodged an application for supervisory review (протест в порядке надзора) of the judgment of 8 June 1998, on the ground that it conflicted with substantive laws.
14. The application was examined on 19 March 1999 by the Presidium of the Belgorod Regional Court. Having accepted the reasons set out in the application, the Presidium set aside the judgment of 8 June 1998 and dismissed the applicant's claims altogether. The applicant was not informed that the application for supervisory review had been lodged, or invited to attend the hearing before the Presidium.
15. On 17 June 1999 the enforcement proceedings were discontinued.
16. On 4 January 2001 a deputy president of the Supreme Court lodged an application for supervisory review of the judgment of the Presidium of 19 March 1999.
17. On 22 January 2001 the Supreme Court granted the application for supervisory review. It upheld the reasons given by the Presidium for setting aside the judgment of 8 June 1998, but ruled that the applicant's case should not have been dismissed in full, as she had thereby been unjustly deprived of the right to seek reimbursement of the money. It also acknowledged that the applicant's right to be informed that the Presidium was reviewing her case had not been respected. The case was remitted to the Novooskolskiy District Court for a fresh examination.
18. On 4 June 2001 the same composition of the Novooskolskiy District Court delivered its third judgment in the applicant's favour. The award included RUR 188,724 as compensation for devaluation and RUR 60,000 in respect of non-pecuniary damage. The court stated that the government's systematic delaying of its obligation to revalue the applicant's savings had caused her moral suffering and anguish.
19. On 14 August 2001 the judgment was set aside on appeal by the Belgorod Regional Court and the case remitted for re-examination.
20. On 19 September 2001 the Novooskolskiy District Court, sitting in the same composition, once again reaffirmed its position by awarding compensation in the same amount as in its judgment of 4 June 2001.
21. On 30 October 2001 the appellate court quashed the judgment and remitted the case for a fresh examination by the Novooskolskiy District Court. As it was permitted to do by Article 305-2 of the Code of Civil Procedure, it ordered that the case should be retried by a different bench.
22. On 27 February 2002 the Novooskolskiy District Court, presided over by Judge Ziminov, dismissed the applicant's case on the ground that her claims had no basis in law.
23. On 2 April 2002 that judgment was upheld by the Belgorod Regional Court.
24. On 8 May 2002 the Presidium of the Belgorod Regional Court quashed the judgment following an application by the President of the Regional Court for supervisory review. The Presidium held that the courts below had disregarded the applicant's fundamental rights under the Constitution and the Convention.
25. On 10 June 2002 the Novooskolskiy District Court, sitting in the same composition, delivered a new judgment in which, having regard, inter alia, to Article 1 of Protocol No. 1 to the Convention, it granted the applicant's claim in part and awarded her RUR 231,059.19.
26. The defendants' appeal was dismissed on 16 July 2002 by the Belgorod Regional Court, following which the judgment of 10 June 2002 became final.
27. On 1 November 2002 the applicant and a deputy president of the government of the Belgorod Region signed a settlement agreement, in which the applicant promised to abandon her claims arising out of the judgment of 10 June 2002 for a consideration of RUR 248,724. On the same day the agreement was approved by the Novooskolskiy District Court in a consent order, as requested by the parties.
28. On 6 November 2002 the applicant lodged an application with the Belgorod Regional Court to have the consent order of 1 November 2002 set aside.
29. On 19 November 2002 the applicant withdrew that application. She said that the government had bought her a flat in Novyi Oskol for RUR 330,000, and that she had no more claims against the State.
30. On 23 March 2003 the applicant informed the Court that the price of the flat did not cover the damage sustained by her because the money she had had in her savings account in 1991, if converted into United States dollars, would exceed the price of the flat. The applicant asked the Court for an order enabling her to recover the difference from the State.
31. Under the 1964 Code of Civil Procedure, which was in force at the material time, judgments became final as follows:
“Court judgments shall become legally binding on the expiration of the time-limit for lodging a cassation appeal if no such appeal has been lodged. If the judgment is not quashed following a cassation appeal, it shall become legally binding when the higher court delivers its decision. ...”
32. The only further means of recourse was the special supervisory review procedure that enabled courts to reopen final judgments (пересмотр в порядке судебного надзора):
“Final judgments, decisions and rulings of all Russian courts shall be amenable to supervisory review on an application lodged by the officials listed in Article 320 of the Code.”
33. The power of officials to lodge an application (протест) depended on their rank and territorial jurisdiction:
“Applications may be lodged by:
(1) the Prosecutor General – against judgments, decisions and rulings of any court;
(2) the President of the Supreme Court – against rulings of the Presidium of the Supreme Court and judgments and decisions of the Civil Division of the Supreme Court acting as a court of first instance;
(3) Deputy Prosecutors General – against judgments, decisions and rulings of any court other than rulings of the Presidium of the Supreme Court;
(4) Vice-Presidents of the Supreme Court – against judgments and decisions of the Civil Division of the Supreme Court acting as a court of first instance;
(5) the Prosecutor General, Deputy Prosecutor General, the President and Vice-Presidents of the Supreme Court – against judgments, decisions and rulings of any court other than rulings of the Presidium of the Supreme Court;
(6) the President of the Supreme Court of an autonomous republic, a regional court, a city court, a court of an autonomous region or a court of an autonomous district, the public prosecutor of an autonomous republic, a region, a city, an autonomous region or an autonomous district – against judgments and decisions of district (city) people's courts and against decisions of civil divisions of, respectively, the Supreme Court of an autonomous republic, regional court, city court, court of an autonomous region or court of an autonomous district that examined the case on appeal.”
34. The power to lodge such applications was discretionary, that is to say it was solely for the official concerned to decide whether or not a particular case warranted supervisory review.
35. Under Article 322 officials listed in Article 320 who considered that a case deserved closer examination could, in certain circumstances, obtain the case file in order to establish whether good grounds for lodging an application existed.
36. Article 323 of the Code empowered the relevant officials to stay the execution of the judgment, decision or ruling in question until the supervisory review proceedings had been completed.
37. Article 324 of the Code provided that the official concerned should draft the application and forward it – in sufficient copies for each of the parties – with the case file to the relevant court.
38. Article 325 read as follows:
“The parties ... shall be served copies of the application. If circumstances so require, the parties ... shall be informed of the time and place of the hearing.
The copies of the application shall be served on the parties by the court [examining the application]. The court shall give the parties sufficient time before the hearing to submit a written reply to the application and any additional material.”
39. Under Article 328 of the Code, proceedings on an application for supervisory review were normally oral and the parties were invited to make comments once the judge concerned had reported to the court.
40. Courts hearing applications for supervisory review had extensive jurisdiction in respect of final judgments:
“The court that examines an application for supervisory review may:
(1) uphold the judgment, decision or ruling and dismiss the application;
(2) quash all or part of the judgment, decision or ruling and order a fresh examination of the case at first or cassation instance;
(3) quash all or part of the judgment, decision or ruling and terminate the proceedings or leave the claim undecided;
(4) uphold any of the previous judgments, decisions or rulings in the case;
(5) quash or vary the judgment of the court of first or cassation instance or of a court that has carried out supervisory review and deliver a new judgment without remitting the case for re-examination if substantive laws have been erroneously construed and applied.”
41. The grounds for setting aside final judgments were as follows:
“...
(1) wrongful application or interpretation of substantive laws;
(2) significant breach of procedural rules which led to the delivery of an unlawful judgment, decision or ruling ...”
42. There was no time-limit for lodging an application for supervisory review, and, in principle, such applications could be lodged at any time after a judgment had become final.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111543
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KULISH v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary and non-pecuniary damage - award
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: 5. The applicant was born in 1947 and lives in Kharkiv.
6. On 6 December 2004 the applicant met with Ms Ch., who tried to bribe him. When the applicant refused to take the bribe, Ms Ch. threw a package of money into his car and retreated. Following this, strangers in plain clothes (who later turned out to be police officers) got into the applicant’s car and without any introduction started wrenching his arms behind his back. One of the officers sat behind the applicant and started strangling him. Two others punched the applicant in the lower back. Then the applicant was handcuffed. One of the officers stretched the applicant out, hooked his finger in the applicant’s mouth and started pulling on his cheek. In acute pain, the applicant bit the officer’s finger. The officer concerned punched the applicant four times in the head, while another officer punched the applicant in the jaw. Then they pulled the applicant out of his car, threw him to the ground and started kicking him in the kidney area. This scene was witnessed by the applicant’s wife.
7. The police officers placed the applicant in the car with his cuffed hands between his legs and his head on the seat of the car. The officer who had been bitten by the applicant covered the applicant’s head with the hood of his jacket and sat on it. The applicant started suffocating and lost consciousness.
8. The applicant was then taken to Kharkiv Regional Police Department, where the investigator explained to him that he had been arrested for taking a bribe. The investigator suggested to the applicant that they might “come to an agreement” and ignored his complaints of violence on the part of the police officers. The applicant also complained of an acute headache and dizziness during the questioning, which lasted for five hours. Then the applicant was taken to the prosecutor’s office, where the prosecutors questioned him about the events of that day. Following this, the applicant was released under a written undertaking not to abscond.
9. On 6 December 2004 the applicant was apprehended by the police in the street and taken to the Kharkiv Regional Police Station for questioning on suspicion of swindling and instigation to bribery. The same day the applicant gave a written obligation not to abscond.
10. At about 11.30 p.m. on the same day the applicant complained to Dzerzhinsky District Police Department of having been ill-treated by police officers during his arrest. He received a hospital referral for a medical examination. The police also questioned two eyewitnesses and one testifying witness, who had been present at the time of the applicant’s arrest.
11. On 7 December 2004 the applicant underwent a medical examination. According to the certificate of Kharkiv Emergency Hospital No. 4 of 9 December 2004, the applicant’s injuries included the following: closed head trauma, bruises, brain injury, and soft tissue injuries to the chest and lower back. These injuries were classified as being of “medium severity”.
12. On 8 December 2004 criminal proceedings were instituted against the applicant for swindling and instigation to bribery. These proceedings were terminated on 22 June 2006 for lack of proof.
13. On 9 December 2004 the applicant lodged a complaint with the Kharkiv Regional Prosecutor’s Office against the police officers who had ill-treated him.
14. Between 9 and 31 December 2004 the applicant underwent in-patient treatment and between 1 and 10 January he also received out-patient treatment for his injuries.
15. On 10 December 2004 the Kharkiv Regional Prosecutor’s Office received the applicant’s above-mentioned complaint.
16. On 15 December 2004 the Kharkiv City Prosecutor’s Office received the complaint.
17. On 24 December 2004 the Kharkiv City Prosecutor’s Office refused to institute criminal proceedings for lack of corpus delicti in the actions of the police officers. The decision mentioned that three police officers, who had arrested the applicant, had been questioned and had testified that during the arrest the applicant had behaved violently, shouted at them and then fallen on the ground where he had started hitting himself against the ground in an attempt to cause himself bodily injuries. It further indicated that there were testimonies of other witnesses to the incident. It lastly mentioned that the applicant was in hospital, but that this could be considered an attempt to avoid liability for the crime he had committed.
18. On 5 January 2005 the Kharkiv Regional Office for Forensic and Medical Examination drew up an expert opinion on the applicant’s injuries. The opinion noted that the injuries had been caused by hard objects and could have been caused in the circumstances described by the applicant.
19. On 31 January 2005, upon a complaint by the applicant, the Kharkiv Regional Prosecutor’s Office quashed the decision of 24 December 2004 on the ground that the applicant’s allegations had not been verified in full. It referred the case to the Kharkiv City Prosecutor’s Office for further inquiries.
20. On 3 February 2005 the Kharkiv City Prosecutor’s Office received the applicant’s criminal complaint, together with a copy of the expert opinion of 5 January 2005.
21. On 26 April 2005 the Kharkiv City Prosecutor’s Office refused to institute criminal proceedings against the police officers for lack of corpus delicti in their actions. The reasoning of the decision was similar to that of 24 December 2004.
22. On 6 May 2005 the Kharkiv City Prosecutor’s Office instituted criminal proceedings in connection with the infliction of bodily harm of medium severity on the applicant.
23. On 4 June 2005 the criminal proceedings were transferred to the Kharkiv Dzerzhinsky District Police Department, which had territorial jurisdiction. The police investigator questioned the applicant, his wife and son and the police officers who had arrested the applicant. According to the Government, the investigator held confrontations between the applicant and the police officers. According to the applicant, the confrontations were ordered but not conducted.
24. On 5 June 2005 the Kharkiv Regional Office for Forensic and Medical Examination drew up an expert opinion classifying the applicant’s injuries as being of medium severity.
25. According to the Government, on 18 January 2006 the investigator conducted an on-site reconstruction of events with the applicant’s participation. According to the applicant, he did not participate in the reconstruction.
26. On 19 August 2006 the criminal proceedings were suspended due to the failure to establish a perpetrator.
27. On 26 September 2006, upon a complaint by the applicant, the Kharkiv Regional Prosecutor’s Office quashed the decision of 19 August 2006 and remitted the case to the District Police Department for further investigation.
28. On 8 October 2006 the criminal proceedings were resumed. The investigator conducted an on-site reconstruction of events with all those involved in the incident. The investigator also seized all the medical documentation concerning the applicant’s treatment after the accident.
29. On 4 November 2006 the investigator ordered a comprehensive medical report to be drawn up by the Kharkiv Regional Office for Forensic and Medical Examination.
30. On 19 December 2006 the case was referred to the Central Office for Forensic and Medical Examination, as the Kharkiv Regional Office could not provide comprehensive answers to the investigator’s questions and the applicant had expressed a lack of confidence in the specialists of the Kharkiv Regional Office.
31. On 10 July 2007, at the applicant’s request, the case was transferred to the Poltava Regional Office for Forensic and Medical Examination, as the waiting time for an expert examination in the Central Office exceeded two years.
32. On 1 April 2011 the Central Office for Forensic and Medical Examination issued its opinion, in which it concluded that the applicant had only sustained some of the injuries indicated in the previous report and that those injuries should be classified as minor bodily injuries, which could have been inflicted under the circumstances described by the applicant or by himself. As to the other injuries, the experts questioned them as having been diagnosed on the basis of subjective factors not confirmed by objective information.
33. On 29 August 2011 the investigator terminated the criminal proceedings for lack of proof of a crime. The decision mentioned for the first time the testimonies of the applicant’s wife and son, who had confirmed his version of events. The investigator further mentioned that, in the light of the forensic expert opinion of 1 April 2011, the applicant’s injuries should be classified as minor and therefore the criminal proceedings concerning infliction of injuries of medium severity on the applicant should be terminated.
34. The applicant challenged that decision before the prosecutor and the court.
35. On 30 August 2011 the Kharkiv Dzerzhinsky District Prosecutor’s Office quashed the decision of 29 August 2011 on the ground that it had been premature and the investigator had not taken all the actions necessary for a gave a number of instructions to the police investigator.
36. On 9 September 2011 the Kharkiv Regional Prosecutor’s Office decided to change the jurisdiction in the case and transfer it for further investigation from the police to the prosecution service. The case was accordingly handed over to the Kharkiv City Prosecutor’s Office. The proceedings are pending.
37. By letter of 19 September 2011, the Kharkiv Dzerzhinskiy District Court informed the applicant that the examination of his appeal against the investigator’s decision of 29 August 2011 was scheduled for 5 October 2011.
38. The relevant domestic law is summarised in the judgment of Oleksiy Mykhaylovych Zakharkin v. Ukraine (no. 1727/04, §§ 38-41 and 4546, 24 June 2010).
VIOLATED_ARTICLES: 3


ITEMID: 001-84237
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: JAMA v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: The applicant, Mr Vinko Jama, is a Slovenian national who was born in 1914 and lives in Ljubljana. He was represented before the Court by Mr Z. Korenčan, a lawyer practising in Ljubljana.
The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1971, after the applicant’s house had been expropriated, the Ljubljana Municipality instituted non-contentious civil proceedings for determination of compensation to be awarded to the applicant in this respect.
On 24 November 1978 the Ljubljana Municipal Court (Občinsko sodišče v Ljubljani) issued a decision concerning the compensation.
Until 28 June 1994, when the Convention entered into force with respect to Slovenia, the case had been four times remitted to the first-instance court for re-examination.
On 1 February 1995 the applicant’s representative informed the renamed Ljubljana Local Court (Okrajno sodišče v Ljubljani) that several related sets of proceedings had been instituted in the meantime. Since their outcome constituted a preliminary question (predhodno vprašanje) which was relevant for the determination of the compensation, the court, on 28 April 1995, stayed the proceedings (prekinitev postopka).
Between 13 September 1995 and 31 November 2000 the court made several inquires on the progress of the case.
The hearing held on 5 April 2004 was adjourned until 13 May 2004 at the applicant’s request.
On 31 May and 1 June 2004 the applicant lodged written submissions.
In the course of the proceedings, until 23 December 2005, the case was reassigned to four different judges.
Three hearings were held between 30 March and 8 June 2006.
The hearing held on 21 September 2006 was adjourned sine die due to the applicant’s attempt to reach a settlement with the municipality.
The settlement has apparently not been reached and the proceedings are still pending before the Ljubljana Local Court.
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 – the 2006 Act) became operational on 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 of the 2006 Act 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).
For a more detailed presentation of the relevant domestic law see Žunič v. Slovenia, (dec.) no. 24342/04, §§ 16-26, 18 October 2007.


ITEMID: 001-91936
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF HYDE PARK AND OTHERS v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 11 - Freedom of assembly and association
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. At the time of the events giving rise to the application, Hyde Park (the first applicant) was registered with the Moldovan Ministry of Justice as a non-governmental organisation lobbying, inter alia, for freedom of expression and the right to peaceful assembly. In 2007 its members decided to discontinue the organisation’s registration on grounds of alleged pressure and intimidation by the State. In particular, they complained of the refusal of the Ministry of Justice to register amendments to the organisation’s articles of association, the repeated freezing of its bank account, the arbitrary arrest of its members, attempts to shut down its newspaper, among other things. Several of the organisation’s leaders requested political asylum in western countries. It was decided to continue the organisation’s activity under the same name but without registering it with the State authorities. It was also decided that the new unincorporated association would become the former organisation’s successor. After removal of the organisation from the Government’s list of non-governmental organisations on 2 June 2008, Hyde Park’s activities continued as before on the basis of its new articles of association. The association continued editing its newspaper, its Internet page and continued staging protests and demonstrations.
6. The other applicants are members and supporters of Hyde Park: Gheorghe Lupuşoru, Anatol Hristea-Stan, Mariana Gălescu, Alina Didilică and Oleg Brega who were born in 1969, 1953, 1982, 1978 and 1973 respectively and live in Chişinău, Chişinău, Chişinău, Cazangic and Pepeni respectively.
7. On 6 December 2004 Hyde Park applied to the Chişinău Municipal Council for authorisation to hold a peaceful meeting in front of the Romanian Embassy on 5 January 2005, to protest against the policy of Romania in respect of Moldovan students. The application was signed by Hyde Park’s president and stated, inter alia, that:
“By the present [application] we seek permission from the Chişinău Municipality to hold a public gathering on 5 January 2005 in Chişinău.
The members and the supporters of Hyde Park who study in Romania or who have relatives studying there are not content with the manner in which they are treated by the Romanian authorities. Therefore we intend to protest with them and on their behalf in front of the Romanian Embassy, between 11 a.m and 2 p.m. in front of the entrance on Bucharest street.
We undertake to respect public order and not to block traffic.”
8. On 30 December 2004 the Chişinău Municipal Council rejected the application on the ground that:
“The municipal police considered the applicants’ protest to be unfounded and unwelcome because it was the Government of Romania which financed the studies of Moldovan students in Romania and therefore the Romanian authorities were competent to take a decision in respect of the applicants’ application [of 6 December 2004]”.
9. On 3 January 2005 the first applicant challenged the refusal in court and argued, inter alia, that it was unlawful. It also argued that the Municipal Council had protracted the examination of their application until the last day of the year so as not to leave it enough time to challenge the refusal in the courts. It asked that the case be examined urgently. The applicant explained that many persons who had expressed their wish to participate in the demonstration were students in Romania and were at home, in Chişinău, only for the winter break.
10. On 21 February 2005 the Chişinău Court of Appeal dismissed the applicants’ action, finding that the Municipal Council had acted within its competence. The court observed that the police, the Prosecutor’s Office and the Secret Service had obtained information that the applicants intended to breach the provisions of sections 6 and 7 of the Assemblies Act.
11. Hyde Park appealed against this judgment and argued that the judgment had breached the right of its members to hold peaceful meetings in public places. It also argued that no evidence had been presented to support the view that the holding of the demonstration would have given rise to an infringement of sections 6 and 7 of the Assemblies Act.
12. On 8 June 2005 the Supreme Court of Justice upheld the appeal, quashed the judgment of the first-instance court and ordered a re-examination of the case. The Supreme Court found that there was no evidence that the applicants intended to breach sections 6 and 7 of the Assemblies Act.
13. On 6 October 2005 the Chişinău Court of Appeal again dismissed the action on the basis that the holding of a protest meeting in front of the Romanian Embassy could have prejudiced the image of the Moldovan State and of the Moldovan people. Moreover, the decision to hold a protest meeting had not been adopted by the council of Hyde Park, as required by its statutes. Additionally, the Hyde Park statutes did not contain, in its list of activities, provisions sanctioning actions such as holding protest meetings. The first applicant appealed.
14. On 14 December 2005 the Supreme Court of Justice dismissed the applicants’ appeal on points of law, on the ground that the holding of a demonstration in front of the Romanian Embassy could have prejudiced the image of the Moldovan State and of the Moldovan people.
15. The relevant provisions of the Assemblies Act of 21 June 1995 read as follows:
(1) Assemblies shall be conducted peacefully, without any sort of weapons, and shall ensure the protection of participants and the environment, without impeding the normal use of public highways, road traffic and the operation of economic undertakings and without degenerating into acts of violence capable of endangering the public order and the physical integrity and life of persons or their property.
Assemblies shall be suspended in the following circumstances:
(a) denial and defamation of the State and of the people;
(b) incitement to war or aggression and incitement to hatred on ethnic, racial or religious grounds;
c) incitement to discrimination, territorial separatism or public violence;
d) acts that undermine the constitutional order.
(1) Assemblies may be conducted in squares, streets, parks and other public places in cities, towns and villages, and also in public buildings.
(2) It shall be forbidden to conduct an assembly in the buildings of the public authorities, the local authorities, prosecutors’ offices, the courts or companies with armed security.
(3) It shall be forbidden to conduct assemblies:
(a) within fifty metres of the parliament building, the residence of the President of Moldova, the seat of the government, the Constitutional Court and the Supreme Court of Justice;
(b) within twenty-five metres of the buildings of the central administrative authority, the local public authorities, courts, prosecutors’ offices, police stations, prisons and social rehabilitation institutions, military installations, railway stations, airports, hospitals, companies which use dangerous equipment and machines, and diplomatic institutions.
(4) Free access to the premises of the institutions listed in subsection (3) shall be guaranteed.
(5) The local public authorities may, if the organisers agree, establish places or buildings for permanent assemblies.
(1) Not later than fifteen days prior to the date of the assembly, the organiser shall submit a notification to the Municipal Council, a specimen of which is set out in the annex which forms an integral part of this Act.
(2) The prior notification shall indicate:
(a) the name of the organiser of the assembly and the aim of the assembly;
(b) the date, starting time and finishing time of the assembly;
(c) the location of the assembly and the access and return routes;
(d) the manner in which the assembly is to take place;
(e) the approximate number of participants;
(f) the persons who are to ensure and answer for the sound conduct of the assembly;
(g) the services the organiser of the assembly asks the Municipal Council to provide.
(3) If the situation so requires, the Municipal Council may alter certain aspects of the prior notification with the agreement of the organiser of the assembly.”
(1) The prior notification shall be examined by the local government of the town or village at the latest 5 days before the date of the assembly.
(2) When the prior notification is considered at an ordinary or extraordinary meeting of the Municipal Council, the discussion shall deal with the form, timetable, location and other conditions for the conduct of the assembly and the decision taken shall take account of the specific situation.
(6) The local authorities can reject an application to hold an assembly only if after having consulted the police, it has obtained convincing evidence that the provisions of sections 6 and 7 will be breached with serious consequences for society.
(1) A decision rejecting the application for holding an assembly shall be reasoned and presented in writing. It shall contain reasons for refusing to issue the authorisation...
(1) The organiser of the assembly can challenge the refusal in the administrative courts.”
16. On 22 February 2008 the Parliament adopted a new Assemblies Act, according to which no authorisation is needed for the holding of demonstrations with less than fifty participants.
VIOLATED_ARTICLES: 11


ITEMID: 001-23442
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: PAULSEN-MEDALEN and SVENSSON v. SWEDEN (no. 2)
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant, Ms Anne-Marie Paulsen-Medalen, born in 1958 and unmarried, lives at Västra Frölunda, a suburb of Gothenburg. The second applicant, Mr Sven-Erik Svensson, born in 1957, lives at Partille, another suburb of Gothenburg. The third applicant is their son J. born on 1 January 1986. They are represented before the Court by Mrs S. Westerberg, a lawyer practising in Gothenburg.
The first and second applicants have never been married and have periodically cohabited. The present application is a sequel to a previous application (no. 16817/90) lodged by them and other members of the family on 7 August 1989 with the former European Commission of Human Rights. The previous one concerned various complaints relating to the taking into care in February 1989 of J. and his brother P. (born in July 1984), subsequent refusals to lift the care order and restrictions on access as well as the procedure. On 7 September 1995 the Commission declared the application admissible in respect of Ms Paulsen-Medalen’s complaint about the length of the access proceedings and Mr Svensson’s complaint about the lack of a court remedy to have a determination of his right of access to his son J, while declaring the remainder of the application inadmissible. Like the Commission in its report of 4 September 1996 (former Article 31), the Court in the Paulsen-Medalen and Svensson v. Sweden judgment of 19 February 1998 (Reports 1998-I), unanimously concluded that there had been a violation of Article 6 § 1 with regard to the first applicant but not with respect to the second applicant. It further found unanimously that it was not necessary to examine his complaints under Articles 8 and 13.
The above-mentioned care order is still in force and the children live with their respective foster parents.
In February 1996 the Administrative Court of Appeal limited the mother’s access to J. in accordance with his wishes. J. has since 1995 refused to see his parents more frequently than twice a year and has also stated that he does not wish to see his father alone.
In April 1997 the mother submitted a request to the Social Council for the termination of the care order. She sought in the alternative extended access rights with respect to J. Also the father made an application for a right of access.
The Council requested an investigation by the social services, which submitted a report on 13 June 1997. The applicants have not provided the Court with a copy, but contents of the report are summarised in the judgment of 22 January referred to below, according to which the following was stated. The Social Council (Stadsdelsnämnden) was striving to increase the first applicant’s access to J. and this would take place as soon as J. showed a sign of willingness to do so. He had however expressed that he did not wish to meet his mother more frequently or his father together with his mother and that he still refused to accompany his mother to her home. He was functioning well at school though he pursued consultations with a school psychologist. He needed calm and stability. The Social Council had regular contact with the first applicant concerning the children’s situation and access. Her social situation remained on the whole unchanged.
On 24 June 1997 the Social Council decided not to terminate the care and rejected the applicants’ request for extended access.
The first and the second applicant appealed against the Social Council’s decision to the Gothenburg County Administrative Court (länsrätten). The latter held an oral hearing, at which the first and second applicants were represented by a lawyer and J. was represented by a public counsel.
In so far as concerned J., the first and the second applicants requested the court to grant the latter, with immediate effect, access to J. every other week-end in his home, or such other location as agreed by the first and second applicants, for instance in her home, so that the whole family could meet. The access should take place without any supervision by the social authorities or the foster parents.
The representative of the Social Council recalled an incident at a certain clinic in late 1992 when chaos had prevailed and the first applicant had struck the children. Sometime thereafter, J. wished to reduce the access from a normal level to twice a year, which has turned out to be satisfactory from his point of view. He did not wish to meet his father in the mother’s absence.
The public counsel, representing J., submitted that it would not be reasonable to force J. to increase the access. He had openly stated that meeting his parents twice a year was enough and that he did not wish to meet them beyond that.
By a judgment of 22 January 1998, the County Administrative Court upheld the Social Council’s decision. It held inter alia:
“The County Administrative Court finds that the Social Council’s decision of 24 June 1997 is lawful. ...
On 17 March 1989, when the County Administrative Court reviewed the preparations for taking into public care under the 1980 Act, it found that the [first applicant] had such physical and psychological deficiencies that she could not provide her children with the norms and rules they needed for their social development. She was further unable to provide them with the necessary stimulation. Since the children’s birth she has received intensive support from all levels but, despite this, her children appeared disturbed. From the children’s birth, respectively in 1984 and 1986, until theirs being taken into care in 1989, [the first applicant] had received extensive support as follows. After giving birth, she lived in a special home and when she later got her own home she received support in the form of contact with social welfare officers, childcare personnel, home assistance and a psychologist. For a while she even had a home therapist. Despite all of this, she did not manage to take care of her children herself. In view of this the County Administrative Court found that there were such deficiencies in the children’s care that it constituted a danger to their health and development.
According to what has emerged in the present case, it does not appear that [the first applicant’s] ability to fulfil the children’s needs has improved. It is true that the children have become older but P. has been disturbed in his development and has a strong need for care, including [special education]. Beyond that he needs continuous care of not only practical but also psychological nature, as well as a foreseeable home environment, in order for his needs to be fulfilled. His foster home offers this kind of environment... J. is talented and is doing well at school. Nothing has come to light which suggests that he has any problems in his relations with his fellows. Since early childhood his personality carries a deep emotional disturbance, which may at times be expressed through aggressive and violent behaviour and a need for a structured environment. He has a need for a continued contact with a psychologist even after enjoying a stable home environment where his strengths and weaknesses can be met with understanding and cautious guidance. His foster home provided such a home environment. ...
As regards the question of access, this has been the subject of review on previous occasions. The competent courts had then held that closer contacts than what had been decided would prejudice the boys’ need for security and continuity in the care arrangements. As regards P. the County Administrative Court, having regard to his fragile character and his need for structure and norms, finds his access to his mother adequate. As regards J, it finds that it is most desirable that he meets his parents more often but his own views on the matter should be respected. The access should therefore not go beyond what has been decided by the Social Council. On the other hand, attempts should be made to make him change his attitude in the long run. In the view of the County Administrative Court it would be positive were P. and J. to meet more frequently, which could be a ground for the family to meet more often. A contact person should still be present during meetings, but in the long run, as the boys get older, the Social Council should try without such presence.
In its review the County Administrative Court shall apply the European Convention on Human Rights. It does not find that the limitations on the right to respect for private and family life decided in the present case under the 1990 Act go beyond what can be regarded as a justified interference under Article 8 of the Convention.
The Court has further had regard to the 1989 United Nations Convention on the Rights of the Child. It finds that P.’s and J.’s rights under Article 25 have been fully respected in the measures adopted by the social authroties.”
Both the first and the second applicants appealed against the judgment to the Administrative Court of Appeal (kammarrätten) of Gothenburg. Before the latter court the second applicant also requested termination of the care order. In May 1998 the Administrative Court of Appeal dismissed this request on the ground that he, who was not the child’s custodian, had no locus standi of his own in that issue. For the remainder, it upheld the lower court’s rejection. It stated inter alia:
“Under section 21 of the 1990 Act, a public care measure under section 2 shall be lifted when the measure is no longer necessary or at the latest when the young person concerned has reached the age of 18. It is thus the young person’s need for care which is decisive for whether the public care shall continue. A public care order may be lifted if the conditions at the [biological parent’s] home are such that care outside the home is no longer justified or that the custody holder is able to provide for the special needs of the young person concerned. It must therefore be established that the conditions in the home, which grounded the taking into public care, have ceased to exist and the current situation is satisfactory. As pointed out by the County Administrative Court, it must therefore be ascertained that there has been a continuing and stable improvement in the home conditions.
[The first applicant] lacks on the whole insight into the defects that in 1989 led to the taking into public care of her sons P. and J. It does not emerge that there have been any decisive changes in the situation and this has not even been claimed. The fact that the children have become older is not of decisive importance, in particular as the children have different needs that must be provided for. The public care under the 1990 Act shall therefore continue.
Under section 14 of the Act, a young person’s needs for contact with his parents and other person who has custody of him shall be accommodated as far as possible. If it is necessary in order to achieve the purposes of the public care, the Social Council may decide how access should be exercised. [The second applicant] is not the holder of custody with respect to J. and does not have a right of access according to a judgment or a contract. However, [the first applicant], who is a custody holder, agrees that the he has the access that he claims. The Social Council’s decision and the County Administrative Court ‘s judgment recognise that both of them have a right of access. There is no ground for quashing that decision in so far as concerns access.
In view of the children’s reactions during and after access with [the first applicant] it must be assumed that the access which now takes place corresponds, both as to time and form, to the children’s present needs for contact. [The first and second applicants’] claim for increase access is therefore rejected.”
Leave to appeal was refused by the Supreme Administrative Court (regeringsrätten) on 5 June 1998.
The decisions disputed in the present case were taken under the Act containing Special Provisions on the Care of Young Persons 1990 (lagen 1990:52 med särskilda bestämmelser om vård av unga – “the 1990 Act”).
Section 14 of the 1990 Act provides:
“The Social Council is responsible for accommodating as far as possible the young person’s needs of contact with his parents or other person who has custody of him.
If it is necessary in order to achieve the purposes of care measures taken under this Act, the Social Council may
1. decide how the right of access to the young person shall be exercised by a parent or other person who has custody of him, or
2. decide that the young person’s place of residence may not be disclosed to the parent or custodian.
The Social Council shall reconsider at least once every three months whether such decision as referred to in the second paragraph continues to be needed.”
According to section 41 of the 1990 Act an appeal may be lodged with the County Administrative Court against a decision of the Social Council with respect to access. The County Administrative Court may review a decision by the Social Council in so far as its subject-matter is covered by section 14 of the 1990 Act (or section 16 of the 1980 Act; see Yearbook of the Supreme Administrative Court, Regeringsrättens Årsbok 1984, 2/38).
The custody of children is regulated in the Children and Parents Code (Föräldrabalken, SFS 1949:381 -“the Code”). In so far as is relevant to the present case, Chapter 6, section 4, of the Code states that if only one parent has custody of the child and both parents wish to share the custody, the court shall, upon the parents’ request, decide in accordance with their wishes provided that joint custody is not evidently incompatible (uppenbart oförenligt) with the best interest of the child.
A court may decide to grant joint custody even if the parents do not live together and do not intend to live together. However, the court may refuse to grant joint custody if it finds that one, or both, of the parents lack the ability to care for the child properly.
Under Chapter 6 Section 7 of the Code, if a parent, who is the sole holder of custody of the child, abuses, neglects or otherwise fails to care properly for the child in a manner which risks causing permanent damage to the child’s health and development, the court shall decide to transfer the custody to the other parent or, if more suitable, to one or two specially appointed custodians. Changes under this provision are reviewed upon the request by the Social Council or when a parent without custody has lodged a request for custody with the court.


ITEMID: 001-89055
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: RAUS AND RAUS-RADOVANOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The first applicant, Mr Stjepan Rauš, was born in 1932 and died on 24 May 2007. He was a Croatian national. The second applicant, Mrs Biserka Rauš Radovanović, is a Croatian national who was born in 1958 and lives in Varaždin. She is the first applicant's daughter and his sole heir. Before the Court both applicants were represented by Mr G. Vučetić, a lawyer practising in Varaždin. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 March 1981 the administrative authorities issued a decision expropriating a plot of land in Varaždin, together with the house built on it, with a view to building a public elementary school there. At that time, the house was owned by the first applicant who lived in it together with his wife and daughter (the second applicant). Even though the decision stipulated that the house was to be demolished, it appears that this never happened and that the applicants remained living there. The second applicant left the house in 1984, after she got married.
As the first applicant and the local authorities (who were the beneficiaries of the expropriation) had not been able to agree on the amount of compensation that should be granted for the expropriated property, on 13 July 1981 non-contentious proceedings for determining the said compensation were instituted before the Varaždin Municipal Court. The parties to those proceedings were the first applicant, on one side, and the local authorities, on the other. The second applicant acted as her father's representative in those proceedings.
On 8 May 1984 the Municipal Court issued a decision awarding the first applicant 1,091,809.66 Yugoslav dinars (YUD) in compensation. On 28 September 1984 the Varaždin County Court dismissed the first applicant's appeal and upheld the first-instance decision. On 5 March 1987 the Supreme Court allowed the first applicant's appeal on points of law (revizija), quashed the lower courts' decisions in part and remitted the case back to the first-instance court. It instructed the first-instance court to determine whether, apart from the sum already awarded on 8 May 1984, the first applicant should receive an additional amount of compensation.
In the resumed proceedings, on 7 March 1988 the Varaždin Municipal Court issued a decision awarding the first applicant the additional amount of YUD 4,555,093. On 29 September 1988 the Varaždin County Court allowed the first applicant's appeal, quashed the first-instance decision and remitted the case.
In the resumed proceedings, on 13 May 1993 the Varaždin Municipal Court dismissed the first applicant's claim for additional compensation. On 21 October 1993 the Varaždin County Court allowed his appeal, quashed the first-instance decision and remitted the case.
In the fresh proceedings, the Varaždin Municipal Court held a hearing on 11 February 1994. On 18 February 1994 the new Expropriation Act entered into force. Shortly afterwards, the case was transferred to the administrative authorities, in particular the regional office of the state administration in the County of Varaždin (the Varaždin Office).
In the ensuing administrative proceedings, the Varaždin Office held hearings on 22 September 1995, 24 January 1996, 26 June and 4 September 2001 and 20 December 2002.
On 30 December 2002 the Office issued a decision dismissing the first applicant's claim for additional compensation. On 17 February 2003 the first applicant appealed.
On 17 October 2003 the Ministry of Justice (Ministarstvo pravosuđa) quashed the first-instance decision and remitted the case.
In the resumed proceedings, the Varaždin Office held hearings on 17 February 2004, 10 April, 20 September and 14 December 2007 as well as holding in situ inspections on 11 and 17 September 2007.
The first applicant died on 24 May 2007. On 20 June 2007 the second applicant, who until then had only acted as her father's representative, was declared his only heir and soon afterwards took over the proceedings.
On 31 December 2007 the Varaždin Office issued a decision awarding the second applicant 588,800.45 Croatian kunas (HRK) in compensation. The second applicant appealed to the Ministry of Justice.
On 16 April 2008 the second applicant and the local authorities (the Town of Varaždin) reached an out-of-court settlement whereby they agreed to pay her the amount of HRK 706,252.47 in compensation for the property expropriated from her father whereas she waived any further claims against them in respect of compensation for the expropriated property and agreed to withdraw her claim and appeal in the above administrative proceedings.
The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002, of 3 May 2002; “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual's rights and obligations or a criminal charge against him or her within a reasonable time, or if it is satisfied that the contested act grossly violates constitutional rights and it is completely clear that the complainant may risk serious and irreparable consequences if the constitutional court proceedings are not instituted.
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.
The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette no. 53/1991 of 8 October 1991) provide as follows:
Section 218 (1) provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative authority shall give a decision and serve it on a party within one month following the submission of an application. In all other, more complex cases, the authority shall give a decision and serve it on a party within two months.
Section 218 (2) provides that a party whose application has not been decided and served within the time-limits set out in paragraph (1) may lodge an appeal (appeal for failure to respond, žalba zbog šutnje administracije) as if his or her application had been dismissed.
Section 247 (1) provides that the decision on the appeal shall be given and served on a party as soon as possible but at the latest within two months following the submission of the appeal.
Section 246 (1) provides that the second-instance administrative authority deciding on the appeal for failure to respond shall request the first-instance authority to give reasons for its omission. If it finds that the failure to respond was attributable to the party or the reasons for such omission were otherwise justified, the second-instance authority shall order the first-instance authority to give a decision within one month. If it finds that the omission was not justified, it shall request the case file.
Section 246 (2) provides that if the case file contains sufficient information, the second-instance administrative authority shall decide the case. Otherwise, it shall first hear the case and take evidence, and then give a decision. Exceptionally, if it considers that such a procedure would save time and costs, it shall order the first-instance authority to hear the case and take evidence within a specified time-limit, whereupon it shall decide the case itself. Such a decision shall be final.
The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/92 and 77/92) provide as follows:
Section 26 (1) provides that if the appellate administrative authority fails to give a decision on a party's appeal against a first-instance decision within sixty days, and fails to do so upon a repeated request within a further period of seven days, the party may bring an action in the Administrative Court (action for failure to respond, tužba zbog šutnje administracije), as if his or her appeal had been dismissed.
Section 26 (2) provides that when the first-instance administrative authority fails to give a decision against which no appeal lies, the party may directly bring an action in the Administrative Court.
Section 26 (3) provides that, in matters where the right of appeal exists, if a first-instance administrative authority fails to give a decision on a party's application within sixty days, the party may submit his or her application to the appellate administrative authority. Against the latter authority's decision the party may bring an action in the Administrative Court, and if the authority fails to give a decision, the party may bring an administrative action under the conditions set out in paragraph 1.
Section 42 (5) provides that when the Administrative Court, following the action for failure to respond, finds for the plaintiff, it shall either instruct the respondent administrative authority as to how to decide the case on points of law, or shall itself rule on the application (acting as a court of full jurisdiction under paragraph 2 of section 64).
Section 64 (1) provides that, in the execution of the judgment rendered under section 42 (5), the administrative authority shall issue its decision immediately but at the latest within 30 days. Otherwise, a party may by a special submission request it to do so. If the authority does not issue a decision within seven days following that request, a party may apply to the Administrative Court.
Section 64 (2) provides that if such an application is made, the Administrative Court shall first ask the administrative authority to give reasons for its omission. The authority shall reply immediately but at the latest within seven days. If the authority fails to do so, or if the reasons given do not justify the failure to decide, the Administrative Court shall give a decision which will substitute the decision of the administrative authority.


ITEMID: 001-78410
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF HUNT v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection allowed (non-exhaustion of domestic remedies);Violation of Art. 8;No separate issue under Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1953 and lives in Riga, Latvia.
5. The applicant was married to Mrs M., a Ukrainian national. They lived in Ukraine. They have a son, N., who was born in 2000. Mrs M. also had another child, M., who was adopted by the applicant in November 2002.
6. In January 2003 the applicant left Ukraine and in April 2003 the applicant and Mrs M. divorced.
7. On 24 June 2003 Mrs M. wrote a letter to the Head of the Department for Combating Organised Crime of the Ministry of the Interior requesting that the applicant be banned from entering Ukraine. Mrs M. complained, in particular, that in June 2003 the applicant had come to Cannes, France, where their son N. had been on holidays with a nurse, and had threatened to take N. away. She further stated that in his previous marriage the applicant had inflicted grievous bodily harm on his wife.
8. On 26 June 2003 the Ministry of the Interior sent a request to the State Committee of Border Control to ban the applicant from entering Ukraine.
9. On 27 June 2003 the State Committee for Border Control informed the Ministry that Mr. Hunt was prohibited from entering Ukraine for five years. The applicant learned about this decision shortly afterwards.
10. In November 2003 the applicant was informed by Mr T., his lawyer in another civil case, that his former wife had lodged a claim with the Pechersky District Court of Kyiv seeking to deprive the applicant of his parental rights with respect to his natural son N. The applicant could not be present in the court due to the prohibition on entering Ukraine, but was represented before the court by his lawyer, Mr T.
11. On 5 December 2003 the first-instance court found for Mrs M. and decided to deprive the applicant of his parental rights. The court based its decision on the fact that the applicant did not fulfil his parental duties properly, in particular he did not participate in bringing up the child, did not contact him and had lost any interest towards him. The court also took into consideration that the applicant had not complained to the local tutelage and supervision board that Mrs M. refused him access to the child. The court disregarded the applicant's argument about the impossibility of participating in the up-bringing of the child due to the prohibition on entering the country, stating that the applicant had not met his son since January 2003.
According to the Government, the domestic courts had been aware that the applicant had deliberately indicated false data on his place and date of birth in official documents and that he had been previously criminally prosecuted and had never been formally acquitted.
12. This decision was appealed against by the applicant's representative to the Kyiv City Court of Appeal. In the appeal it was mentioned that the conclusion of the court of first instance that the applicant did not want to meet his son was incorrect, since in her request of 24 June 2003 to the police Mrs M. had clearly mentioned his attempt to see their son in June 2003. It was also mentioned that the applicant had tried to lodge a request with the tutelage and supervision board of the Pechersky Local Administration of Kyiv, but had been informed that his presence was required in order for the request to be examined. The representative complained that the court of first instance heard only witnesses of the opposing party, who had been employed by Mrs M. He noted that the court had not sought to receive first-hand information from the applicant himself through the international legal assistance instruments.
13. On 5 March 2004, the court of appeal upheld the decision of the first instance court. Having repeated the findings of the first instance court, the court of appeal noted that the applicant's objections had not been supported by any evidence and the arguments of the opposite side had been confirmed by testimonies of two nurses of the child. It further decided that the arguments of the applicant's appeal did not dispose of the findings of the first-instance court and did not influence the correctness of those findings.
14. The applicant appealed in cassation. In his appeal he reiterated his previous arguments and complained that the court of appeal refused to call a witness on his behalf.
15. On 1 June 2004 the panel of three judges of the Supreme Court of Ukraine rejected the applicant's request for leave to appeal in cassation, having found that the lower courts did not violate any substantive or procedural law.
16. By letter of 7 June 2004, the Ministry of Justice of Ukraine informed the applicant's lawyer that the service abroad of judicial documents could be conducted under the relevant international instruments. In relations between them, Ukraine and the United States of America used the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965.
17. On 12 May 2003 the Pechersky District Court of Kyiv examined the applicant's request to correct the date of his birth in the civil state register. The court decided for the applicant.
18. On 16 June 2003 the same court quashed its previous decision of 12 May 2003 in the light of newly discovered circumstances and re-opened the proceedings.
19. On 19 December 2003 the court rejected the applicant's request concerning mistake in his date of birth in the register. On 10 March 2004 and 5 July 2004 respectively the Kyiv City Court of Appeal and the Supreme Court upheld the decision of the first instance court.
20. On 1 October 2004 the Pechersky District Court of Kyiv considered a claim by the applicant, in which he requested to invalidate the decision on adoption of M., the elder son of Mrs M., and rejected it as unsubstantiated, having found that at the time of adoption the applicant and Mrs M. had genuine and good family relations.
21. On 8 June 2005, the same court invalidated the above-mentioned decision on adoption of M. by the applicant.
22. On 15 October 2003 the Pechersky District Court rejected the applicant's complaint against the decision about prohibition of his entry in Ukraine.
23. On 11 February 2004 the Kyiv City Court of Appeal upheld the decision of the first instance court.
24. On 1 March 2005 the applicant appealed in cassation. The proceedings are still pending.
25. The relevant extracts of the Constitution of Ukraine read as follows:
Article 26
“Foreigners and stateless persons who are in Ukraine on legal grounds enjoy the same rights and freedoms and also bear the same duties as citizens of Ukraine, with the exceptions established by the Constitution, laws or international treaties of Ukraine...”
Article 32
“No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine...”
Article 51
“...The family, childhood, motherhood and fatherhood are under the protection of the State.”
26. Article 6 of the Code provided that civil proceedings should be conducted on the grounds of equality of persons regardless, in particular, of their place of residence.
27. Article 103 of the Code provided that the claimant and the defendant had equal procedural rights.
28. Article 423 provided that foreign citizens had equal procedural rights with Ukrainian citizens in civil proceedings. The Ukrainian legislation could foresee restrictions on procedural rights of citizens of other countries, where the procedural rights of Ukrainian citizens were restricted.
29. Article 70 of the Code provided that parents could be deprived of their parental rights if it was established that they neglected their duties of bringing up their children, or abused their parental rights, treated the children cruelly, influenced the children harmfully by their immoral, antisocial behaviour, as well as when the parents were chronic alcoholics or drug addicts. The deprivation of parental rights did not preclude the possibility for a person concerned to seek access to the child through the courts.
30. Article 71 established the circle of persons entitled to seek deprivation of parental rights before the courts. It also envisaged participation of guardianship authorities and the prosecutor in the hearing.
31. This Code replaced the Marriage and Family Code and contains similar provisions as to deprivation of parental rights.
32. Article 18 provides that foreigners can marry and divorce Ukrainian citizens under Ukrainian law. They have equal rights in family relations with Ukrainian citizens.
33. Article 22 provides that foreigners are entitled to seek protection of their individual, property and other rights in the courts and other state bodies. In judicial proceedings foreigners have equal procedural rights with Ukrainian citizens.
34. Article 25 stipulates that entry to Ukraine can be prohibited to a foreigner in the interests of national security and public order, if public health, the protection of the rights and legitimate interests of Ukrainian citizens and residents require so, if the foreigner violated Ukrainian legislation during his previous stay in Ukraine, etc.
VIOLATED_ARTICLES: 8


ITEMID: 001-84667
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF OSMANOĞLU v. TURKEY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 2;Violations of Art. 2;Violation of Art. 3;No violation of Art. 5;No violation of Art. 14+2 and 14+5;Pecuniary and non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Loukis Loucaides;Riza Türmen;Sverre Erik Jebens
TEXT: 7. The applicant Muhyettin Osmanoğlu was born in 1942 and lives in Diyarbakır. He is the father of Atilla Osmanoğlu, who was born in 1968. Atilla was allegedly detained by the police on 25 March 1996 and subsequently disappeared.
8. The facts of the case are disputed by the parties and will be set out separately.
9. The facts as presented by the applicant are set out in Section B below. The Government's submissions concerning the facts are summarised in Section C below. The documentary evidence submitted by the parties is summarised in Section D.
10. The applicant is a retired civil servant. At the time of the events giving rise to the present application he and his family lived in Diyarbakır, where his son Atilla ran the wholesale grocery shop owned by the applicant. Prior to living in Diyarbakır the applicant and his family had lived in the nearby town of Hazro, where he worked as a civil servant. In February 1992 the applicant and his family moved to Diyarbakır after an officer threatened his son. In 1994 the applicant was detained for 28 days and was subjected to ill-treatment during his detention. He was subsequently acquitted of the charges against him.
11. At approximately 11 a.m. on 25 March 1996 the applicant arrived at the shop and saw two men escorting Atilla out of the shop. One of the men was blonde, tall and beardless with an “American-style haircut”. The second man was thickset, of average height and with dark skin. The men were armed and carried walkietalkies.
12. The two men told the applicant that they were police officers and that they were taking his son to police headquarters so that he could submit a bid for a contract to provide canteen services at police headquarters. The men also took with them a box of sugar and a kilo of tea. When the two men told the applicant that they would return Atilla in about half an hour and Atilla confirmed this, the applicant decided not to intervene. The applicant saw Atilla being led to a car that contained two other occupants. Neighbouring shop owners also witnessed the two men taking Atilla with them.
13. The same two men had previously visited the shop, stating that they had come from the canteen, and had asked Atilla to go with them. When Atilla had refused to go, the two men had sat in the shop for about an hour and had made three telephone calls, which Atilla said he did not understand as the men had spoken in code. Atilla had been worried about the incident when he had related it to the applicant that evening.
14. When Atilla did not return on the evening of 25 March 1996, the applicant thought that he had been detained in custody. The following day he applied to the governor's office and also to the chief prosecutor's office at the State Security Court. He applied again to the same prosecutor on 29 March and on 1, 9 and 19 April. On 16 May 1996 the applicant applied once again to the governor's office.
15. The applicant received a reply to his petition of 1 April 1996 from the prosecutor at the State Security Court, who stated that his son's name did not feature in the custody records.
16. In June 1996 the applicant was summoned before the Diyarbakır State Security Court in connection with his petitions. The statement and the complaint he made were filed under preliminary file number 1996/4041. In relation to his petition to the governor's office, the applicant was told to contact the murder desk at Diyarbakır police headquarters. The applicant applied by letter to that authority but did not receive a response other than a request to identify a number of unidentified bodies found in the area.
17. Finally, in his observations submitted to the Court in reply to the Government's observations on the admissibility and merits of the case, the applicant referred to an article published in the newspaper Özgür Gündem on 4 July 2005 giving details of a purported confession made by one Mr Abdulkadir Aygan, allegedly a former agent of the JİTEM (Jandarma İstihbarat Terörle Mücadele – anti-terror intelligence branch of the gendarmerie), describing the abduction and subsequent killing of his son Atilla (see paragraph 28 below).
18. The Government confirmed that the applicant had lodged a complaint with the prosecutor on 1 April 1996. In that complaint the applicant alleged that his son had been taken into custody by police officers and requested information concerning his son's whereabouts.
19. Upon receipt of the applicant's complaint, the prosecutor examined the custody records of police headquarters and concluded that Atilla Osmanoğlu had not been taken into custody. The prosecutor did not initiate an investigation, on the grounds that there were neither custody records showing that Atilla Osmanoğlu had been detained nor any other evidence of his having been kidnapped or been the victim of an unlawful act.
20. On 20 May 1996 a statement was taken from the applicant at the murder desk of Diyarbakır police headquarters. Following the taking of this statement, Atilla Osmanoğlu was registered as a missing person and an investigation was carried out throughout the country in order to find him.
21. After the Court had declared the application admissible, it requested the Government to provide a copy of the full investigation file concerning Atilla Osmanoğlu's disappearance, together with information as to whether any investigation had been opened into Abdulkadir Aygan's alleged confession relating to the abduction and killing of the applicant's son. In reply, the Government informed the Court that no investigation had been initiated either into the disappearance of Atilla Osmanoğlu or into the alleged confession of Mr Aygan, as the allegations had been abstract and unsubstantiated.
22. The following information appears from the documents submitted by the parties.
23. On 26 March 1996 the applicant submitted a petition to the governor's office in Diyarbakır in which he stated that his son had been taken away the previous day by two plain-clothes police officers claiming to have come from the canteen of Diyarbakır police headquarters. The applicant also stated that he had not been provided with any information about his son's whereabouts, despite the fact that he had applied to all the relevant authorities.
24. On 1 April 1996 the applicant submitted a petition to the prosecutor at the State Security Court in Diyarbakır in which he stated that his son had been detained by members of the security forces on 25 March 1996 and that he had not heard anything from him since that date. He asked the prosecutor to inform him about his son's fate and where he was being detained. According to a hand-written note added to this petition by the prosecutor on 4 April 1996, the name of the applicant's son did not feature in the custody records.
25. On 16 May 1996 the applicant submitted a second petition to the governor's office in Diyarbakır, reiterating the content of his previous petition of 26 March 1996. The applicant also added that his son had no connections with any illegal organisation.
26. A statement was taken from the applicant on 20 May 1996 at the murder desk of Diyarbakır police headquarters. The applicant reiterated the content of his previous statements and gave a description of the two men who had taken his son away. He stated that he would be able to identify the two men if he saw them again. He also added that the same two men had visited his shop two days before they had taken his son, and that after leaving his shop they had gone to a neighbouring shop. The applicant pointed out that the owner of the neighbouring shop could be questioned in order to establish the identity of the police officers.
27. The name Atilla Osmanoğlu does not feature in the custody records of Diyarbakır police headquarters which were submitted to the Court by the Government after the application was declared admissible.
28. On 4 July 2006 the confession purportedly made by Abdulkadir Aygan was published in the newspaper Özgür Gündem. Mr Aygan was quoted as having stated that Attila Osmanoğlu had been kidnapped by the JİTEM and that his head had been smashed with a hammer by a certain Cindi Acet –also known as Koçero – so that it would not be possible to identify the body. The body, which had later been thrown into a disused oil tanker near the town of Silopi, had been found on 30 March 1996 and an autopsy report had been drawn up by the Silopi prosecutor. The file opened by the prosecutor had been given the preliminary investigation number 1996/313. According to the autopsy report, the body was that of a male measuring 175 centimetres, weighing 70 kilograms, approximately 25-30 years of age and with dark hair. There were a number of severe cuts to the face, and parts of the skull were broken. The body had been buried in the part of Silopi cemetery reserved for unclaimed bodies. The applicant had subsequently been shown the pictures of this body but had been unable to identify the deceased as his son.
29. A description of the relevant law may be found in İpek v. Turkey (no. 25760/94, §§ 92-106, ECHR 2004-II (extracts)).
VIOLATED_ARTICLES: 2
3
NON_VIOLATED_ARTICLES: 14
2
5


ITEMID: 001-57703
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF KOSTER v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
TEXT: 8. Mr Jacobus Koster, a Netherlands national, currently resides at Gainesville, Florida (United States of America).
9. On 11 March 1987, while completing his compulsory military service, despite being warned he repeatedly refused to obey an order that he should take receipt of a weapon and a uniform.
Accordingly he was arrested on the same day at 3.45 p.m. and then kept in custody, the measure being confirmed by the officer commanding his unit at 4.30 p.m. He was questioned by the military police (Koninklijke marechaussee) at 7 p.m.
10. On Friday 13 March the applicant, assisted by a lawyer appointed to act for him, appeared before the investigating officer (officier-commissaris) assigned to the case.
11. Before the Military Court, which sat in private on Monday 16 March, Mr Koster’s lawyer pleaded that the length of his detention had exceeded the four-day limit which, he argued, derived from Article 5 para. 3 (art. 5-3) of the Convention. He added that the Military Court did not have the necessary independence and impartiality to rule on questions of this nature.
However, the Military Court confirmed the earlier detention and extended it by thirty days, in order, so it stated, to maintain military discipline. In its opinion, Article 5 para. 3 (art. 5-3) did not lay down specific time-limits. The court had moreover sat as soon as possible, regard being had to the fact that its military members had been participating in two-yearly major manoeuvres at the time; moreover, the fourth day following the arrest had been a Sunday. In addition, the European Commission had recognised, in its opinion on the applications in the cases of van der Sluijs (no. 9362/81), Zuiderveld (no. 9363/81) and Klappe (no. 9387/81), that the Military Courts were competent to rule on such questions.
12. On 9 September 1987 the Supreme Military Court sentenced the applicant to a term of one year’s imprisonment, from which was deducted the time which he had already spent in detention.
13. At the material time, criminal procedure for army and air force personnel, including in particular the matter of arrest and detention on remand, was governed by the Army and Air Force Code of Procedure (Rechtspleging bij de Land- en Luchtmacht - "the Military Code"), as last amended on 24 November 1978. It was repealed with effect from 1 January 1991.
14. Every officer and non-commissioned officer was empowered to arrest military personnel of lower rank suspected of a serious offence, provided the circumstances required immediate deprivation of liberty (Article 4 of the Military Code). The resulting detention was not to exceed twenty-four hours, unless it was extended by the commanding officer in accordance with Article 7 (Article 5).
15. The commanding officer had to deal with the matter without delay. He could order that the suspect be placed or kept in detention on remand, in particular if this proved necessary to maintain military discipline. He was to report to the commanding General any cases of detention exceeding four days (Article 7, first, second and sixth paragraphs).
16. The General ordered that the accused be brought for trial before the Military Court, if this was necessary (Article 11, first paragraph). That order was to be formulated in writing and indicate whether or not it was appropriate to release the accused, the grounds for keeping him in custody laid down in Article 7 being applicable by analogy (Article 14, first and second paragraphs).
17. Detention ordered or continued in the decision referring the serviceman for trial was not to exceed fourteen days unless extended, by terms of thirty days, by the Military Court at the request of the auditeur-militair (Article 31). Every accused detained under the referral decision had to be heard by the officier-commissaris as speedily as possible and in any event within four days of referral; for this purpose, he could be assisted by an adviser (Article 33, first paragraph). Before extending the detention, the Military Court was to give the accused and his adviser the opportunity to put forward their views (Article 33, second paragraph).
18. A directive of 21 March 1983 governed the bringing before a judicial authority of military personnel in custody. It provided as follows:
"In accordance with Article 5 para. 3 (art. 5-3) of the European Convention on Human Rights, where a serviceman is placed in custody, care is to be taken to ensure that, within four days of his arrest, his case is brought before the Military Court, sitting in private, for confirmation or extension of the detention.
To this end, the following rules should be observed:
1. Every officer or non-commissioned officer who arrests a member of the military personnel suspected of an offence shall inform the officer commanding the serviceman’s unit as soon as possible.
2. If, after having questioned the accused, the officer commanding considers that the detention should be continued or extended, he shall inform the prosecuting officer (auditeur- militair/fiscaal) by telephone not later than two days after the arrest, either in person, or through a person delegated by him (for example the officer commanding the relevant detachment of military police).
3. If the accused appears before the auditeur-militair, the latter shall fix, with the officer commanding or in his name, the time and place so as to ensure that under normal circumstances, within four days of the arrest:
(a) the accused can be brought before the auditeur-militair;
(b) the latter can communicate his opinion to the authority with competence to refer the case to the Military Court;
(c) that authority can make an order so referring the accused (which shall also include a decision on the matter of the detention);
(d) the accused can be interviewed by the commanding officer;
(e) the auditeur-militair can raise the question of the confirmation/extension of the detention of the accused in the Military Court.
4. The different armed services shall adapt their regulations accordingly (VS27-1 and VVKM 142)."
19. By a ministerial decree of 19 December 1983 this directive had been incorporated in the Regulation on the application of military criminal and disciplinary law (Voorschrift Toepassing Militair straf- en tuchtrecht KL/Flu).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3