ITEMID: 001-91228
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: VELIZHANINA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk
TEXT: The applicant, Ms Vita Anatolyevna Velizhanina, is a Ukrainian national who was born in 1962 and lives in Moscow. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
On 8 June 1990 the applicant, Mr O.V. (her husband) and two children (Mr A.V. born in 1986 and Ms S.V. born in 1980) moved into a State-owned flat in Yalta, Ukraine, under a specially protected tenancy agreement. On 23 July 1991 the applicant divorced Mr O.V. According to the applicant, since their divorce she and Mr O.V. have made continuous, but unsuccessful, efforts to exchange the flat for two smaller ones.
In summer 1993 the applicant resigned from her job in the Yalta port and sent her children to school in Moscow, Russia, where they acquired temporary registration at the flat of some people she knew for the period of their studies. In 1997 the elder daughter, S.V., entered university in Moscow and subsequently moved to a dormitory.
On an unspecified date in 1998 Mr O.V. instituted civil proceedings against the applicant and the children, seeking termination of their tenancy. He alleged that the three of them had established a new home at an unknown address in Moscow, where the applicant had met another man, visited the Yalta flat only on occasion for leisure purposes and were no longer interested in occupying it on a permanent basis.
On 9 September 1998 the applicant was served with a summons at her Yalta address, but it was returned undelivered.
On 15 September 1998 the Yalta City Court heard the case in the applicant’s absence and allowed Mr O.V.’s claim. This judgment was not appealed against and became final.
On 20 October 1998 Mr O.V. de-registered the applicant and the children from the flat and on 5 November 1998 privatised it in his name.
On 29 March 1999 he sold the flat to the B. family.
According to the applicant, she learned about the judgment and the subsequent transactions concerning the flat in May 1999, when the B. family moved in and changed the locks.
On 26 August 1999 the applicant solicited signatures from eleven residents of her building and the neighbouring one, attesting to the fact that she had resided in the flat and left it only on occasion.
Some time before May 2000 the case file was lost and subsequently restored by December 2000.
On 6 December 2000 the applicant alleged before the Yalta City Court that the judgment of 15 September 1998 was unfair, in particular, as she had not been accorded an opportunity to participate in the proceedings.
On an unspecified date the applicant requested the Supreme Court of Ukraine to lodge an application for supervisory review (protest) against this judgment. On 6 March 2001 a protest was lodged and on 6 April 2001 the Presidium of the Supreme Court of the Crimea quashed the judgment, referring, in particular, to the insufficiency of evidence to the effect that the applicant had been duly notified of the court proceedings. The case was referred back for fresh consideration.
On 18 July 2001 the applicant and her daughter S.V., who had reached the age of majority, lodged a counter-claim, seeking to annul the privatisation of the flat and the subsequent contract of sale. The applicant maintained that she had lived in the flat on a permanent basis. In support of her allegation, she provided copies of certificates of her dental treatment in Yalta in August 1998 and her temporary employment with “N.”, a private company, between 1 June and 1 August 1998.
On 13 November 2001 the Yalta City Court allowed Mr O.V.’s claim and dismissed the counter-claims. It found that the applicant had failed to show that after 1993 she and her children had used the apartment as a permanent residence. The court acknowledged that they might have visited it on occasion, but found this fact insufficient to justify their interest in retaining the specially protected tenancy. In its reasoning the court referred, in particular, to the testimonies of three neighbours, given at the hearing, according to which the applicant and the children were around occasionally; depositions by three other neighbours, given to a local constable, providing analogous information; absence of any evidence that the applicant had been receiving correspondence at her Yalta address in the period in question; absence of any records in the municipal health-care facility concerning the applicant’s children in 1993-1998; and absence of any evidence that the applicant had paid utility and other charges related to the apartment in the period in question.
The applicant and Ms S.V. appealed. They challenged the witness statements as unreliable and inconsistent and referred to the court’s failure to question the eleven neighbours, who had certified in 1999 that the applicant and the children had regularly resided in the flat. They further noted that their belongings had remained in the flat until Mr O.V. had moved them into a garage prior to the sale. They also noted that no evidence had been presented to the effect that they had established a permanent residence in Moscow or elsewhere. In addition, in 1995 and 1997 the applicant and Ms S.V., respectively, had obtained Ukrainian passports, being registered as the flat residents, which demonstrated their continuous interest in residing in Yalta. As regards the payment of the charges, they maintained that the applicant had been unable to pay them, as she had been destitute, receiving no child support from Mr O.V. and taking odd jobs.
Mr O.V. filed an objection against this appeal, alleging that he had provided financial support to the children until their departure for Moscow and, had the applicant been in a destitute situation, she could have sought child support from him through court proceedings. Neither had she presented any documents to prove that she had any employment in Yalta. Moreover, she could not have been employed, as she had even failed to obtain a tax identification number, necessary for employment according to legislation which had been implemented at the material time. He further alleged that the applicant had moved to Moscow because she had met a new “father” for the children and had attempted to manage without having any contact with him (Mr O.V.), except on her occasional visits. Her conduct had hindered his ability to exchange the flat, notwithstanding his considerable efforts, certified by relevant documents. Therefore, unable to pay the charges, which were calculated on an assumption that four persons lived in the flat, Mr O.V. had to de-register his former family members from the flat and sell it. As regards the eleven neighbours who had allegedly supported the applicant’s position, Mr O.V. noted that she had been given leave to bring them to court, but had failed to secure their appearance. He also mentioned that they were not immediate neighbours and could not in open court stand by their earlier statements, which had, in his opinion, been given by them under pressure from the applicant.
A representative of the B. family also filed an objection, noting, in particular, that if the applicant had lived in the flat on a permanent basis, as she had submitted, she would not have learned about its privatisation and sale with such a delay. Moreover, the certificate of her employment in Yalta in summer 1998 had been issued by a fake company and was not in accordance with the law.
On 21 January 2002 the Court of Appeal of the Crimea upheld the previous judgment, referring, in particular, to the fact that the applicant had failed to secure the appearance of her witnesses and that there was no reason to consider that the B. family had acquired the flat in bad faith.
On 27 November 2002 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation.
The relevant provisions of the Constitution read as follows:
“Everyone has the right to housing. The State creates conditions that enable every citizen to build, purchase as property, or to rent housing.
Citizens in need of social protection are provided with housing by the State and bodies of local self-government, free of charge or at a price affordable for them, in accordance with the law.
No one shall be forcibly deprived of housing other than on the basis of the law pursuant to a court decision”.
The relevant provisions of the Housing Code read as follows:
“Citizens shall have a right to obtain residential premises from the State or public housing stock for use during an indefinite period according to the established procedure... [“the specially protected tenancy”].
Citizens shall have a right to privatisation of flats (houses) from the State housing stock....
Nobody may be evicted from occupied residential premises or restricted in their right of occupancy of occupied residential premises except on the grounds and according to the procedure established by law...”
“In the event of the temporary absence of a tenant or members of his family, residential premises shall be retained for them for six months.
In the event that a tenant or members of his family have been absent on serious grounds for a period exceeding six months, the said term may be prolonged by a landlord upon the application of the absent [occupant] and, in the event of a dispute, by a court ...”
“A declaration that a person has lost the right of occupancy of residential premises, as a consequence of the absence of that person in excess of established time-limits, shall be made through court proceedings”.


ITEMID: 001-75896
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF PASINSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1968 and is presently detained in the Koszalin Detention Centre.
5. On 19 June 2001 the applicant was arrested by the police on suspicion of having committed armed robbery acting in an organised criminal group. On 21 June 2001 the Opole District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody in view of a reasonable suspicion that he had committed the offence in question, the severity of the penalty that could be expected and the need to secure the proper conduct of the investigation.
6. Subsequently, the Opole Regional Court (Sąd Okręgowy) prolonged the applicant’s detention on several occasions reiterating the grounds previously given.
7. On 22 February 2002 the Opole Regional Court decided to prolong the detention of the applicant relying, in addition to the earlier grounds, on the danger that given the complexity of the case and number of persons involved, there was a risk that the applicant might tamper with evidence or otherwise obstruct the proceedings.
8. On 18 June 2002 the Wroclaw Court of Appeal partly allowed the prosecutor’s request and prolonged the applicant’s pre-trial detention until 30 October 2002. Subsequently, on 5 September 2002 the Court of Appeal further prolonged the detention pointing to the fact that the investigation was in its final stages.
9. On 21 December 2002 the applicant was indicted before the Opole District Court. The bill of indictment was directed against twentytwo coaccused. The charges against the applicant included leading an organised criminal group, leading participation in several robberies and illegal possessing of firearms.
10. On 30 December 2002, the trial court prolonged the applicant’s detention relying on the strong probability that the applicant and 13 coaccused had committed the offences with which he had been charged and on the severity of the sentence that could be imposed. The court further submitted that only detention would secure the applicant’s appearance at the trial.
11. On 14 May 2003 the Regional Court made an application under Article 263 § 4 of the Code of Criminal Procedure (Kodeks postępowania karnego) to the Wroclaw Court of Appeal (Sąd Apelacyjny) asking that the applicant’s detention be prolonged beyond the statutory time-limit of two years.
12. On 21 May 2003 the Wrocław Court of Appeal granted that application and prolonged the detention of the applicant until 27 November 2003. The Court justified its decision with reference to the reasonable suspicion that he had committed the offences and the complexity of the case which concerned an organised criminal group and involved several coaccused.
13. At the hearing held by the Opole Regional Court on 22 October 2003 the applicant’s application for release was dismissed.
14. On 26 November 2003 the Court of Appeal, upon another application under Article 263 § 4 of the Code of Criminal Procedure, prolonged the applicant’s detention until 22 January 2004. It reiterated the grounds previously given for keeping him in custody. The court also considered that, given the severity of the penalty that might be expected, the applicant might obstruct the proceedings.
15. That decision was upheld on appeal on 13 January 2004.
16. On 16 January 2004 the Wroclaw Court of Appeal prolonged the applicant’s detention upon the Regional Court’s application. The court stressed that, due to the complex nature of the case, the applicant should be kept in custody since the grounds previously given for his detention were still valid.
17. On 8 April 2004 the Regional Court made yet another application asking the Court of Appeal to prolong the applicant’s detention. On 16 April 2004 the court granted the application while noting the prolonged application of preliminary detention with respect to the applicant.
18. At the hearing held on 2 June 2004 the trial court further prolonged the detention of the applicant and other accused. The court acknowledged that the period of the applicant’s detention had been long. However, it was justified by the importance of the case and the severity of the possible penalty. Moreover, the court did not see any circumstances which argued in favour of applying a different preventive measure.
19. The applicant’s numerous applications for release and his appeals against the decisions prolonging detention were to no avail.
20. In total, the trial court held 43 hearings during which it heard 86 witnesses and the depositions of 130 other witnesses were read at the hearings. On 21 July 2004 the Opole Regional Court gave judgment. The applicant was convicted as charged and sentenced to twelve years’ imprisonment.
21. On 19 April 2005 the Wroclaw Court of Appeal partly dismissed the applicant’s appeal and lowered the sentence against him to eleven years’ imprisonment.
22. It appears that the Court of Appeal appointed for the applicant a legal-aid lawyer with the purpose of lodging on his behalf a cassation appeal. However, it is not clear whether a cassation appeal had actually been lodged.
23. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju).
Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.”
24. Article 258 lists grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
25. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
Article 259, in its relevant part, reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
26. The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.
Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:
“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.
camnot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months.
3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.
4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”
On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-5003
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: CARAHER v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Irish citizen resident in Crossmaglen, Northern Ireland. She is represented before the Court by Mr Thomas Tiernan, a solicitor practising in Crossmaglen and Mr Douwe Korff, a lawyer practising in Cambridge.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On the afternoon of Sunday 30 December 1990, Liam Murphy and two brothers, Miceal Caraher and the applicant's husband, Fergal Caraher (aged 20), were in McGeeney's Public House, Cullyhanna in County Armagh, Northern Ireland. The three men left the Public House.
Liam Murphy and Miceal Caraher left in Liam's red Ford Granada car, driven by Liam. They drove down Freeduff Road on to Slatequarry Road, turning right on to Tullinavall Road. As they came around the corner into Tullinavall Road, a grey Toyota Corolla with a Republic of Ireland registration had broken down. Liam Murphy and Miceal Caraher stopped to help the driver. They managed to get the car going and the Toyota car then drove off in a southerly direction. Just as the Toyota car drove off, Fergal Caraher came along in his white Rover car and stopped.
Liam Murphy and the brothers had a conversation for a few minutes and decided to go to Dundalk. A patrol of four British soldiers came along and checked the three men out and allowed them to go on. Fergal Caraher drove off first and approached an army vehicle checkpoint (VCP) opposite the entrance to St Patrick's Church on the Tullinaval Road, which was a short distance from where they had been first questioned by soldiers. A number of civilians saw Fergal Caraher drive past but none of them saw any attempts by soldiers to stop his car. Soldiers later gave evidence that an attempt was made to stop the car. Having passed the checkpoint Fergal Caraher drove his car into the car park of the Lite 'N' Easy Public House very near to where the soldiers were stopping cars at the checkpoint, and parked his car directly facing on to the road. Fergal Caraher got out of the car.
Liam Murphy then drove his car from the same direction and no attempt was made by the soldiers to stop his car either.
Two soldiers left the VCP and went over to where Fergal Caraher was standing in the car park. According to the applicant's version of events, Liam Murphy drove down the road and stopped at the edge of the car park. Miceal Caraher got out of Liam Murphy's car and went over to where Fergal Caraher was standing. Liam Murphy drove off in the direction of the local Spar Shop. Miceal Caraher decided to drive Fergal Caraher's car which they were taking to Dundalk. Miceal Caraher got into the driver's seat, and Fergal Caraher into the front passenger seat. They began to move off onto the road, turning left in a southern direction. Just as the car was on the roadway, three soldiers knelt on the ground with their guns at their shoulders in a firing position. None of the soldiers were hit by the car and none of them were lying on the ground. As the car moved up the road, two soldiers fired their guns with what they described as "Twenty well aimed shots" at the car. None of the civilian witnesses saw any attempt to stop the vehicle from leaving the car park. As a result of the shooting, Fergal Caraher was killed and his brother Miceal seriously injured. The soldiers' versions of events, as given at the trial, was materially different (see below).
Two soldiers, Marine E and Marine A, were charged with the murder of Fergal Caraher, attempted murder of Miceal Caraher and wounding Miceal Caraher with intent to do him grievous bodily harm.
The case was heard at Belfast Crown Court before Lord Chief Justice Brian Hutton who acquitted both on all charges.
Lord Chief Justice Hutton in his judgment of 23 December 1993 identified two main conflicts of evidence between the civilian and military witnesses, firstly, whether a soldier had attempted to stop Fergal Caraher as he drove past the checkpoint in his car and, secondly, what happened after Fergal Caraher drove into the car park where Marine B came across to talk to him. In particular, the civilian witnesses refuted the version of the soldiers, in that they had denied seeing any attempt by soldiers to flag him down, and in the car park saw no altercation between the two Carahers and the soldiers; none saw the smashing of the car window by a soldier or any soldier being hit or carried along by a car.
The judge summarised the evidence of the soldiers as follows:
Evidence of Marine E
“After he (<Marine E>) had seen the white Rover pass behind him as he was checking one of the cars at the rear of the line of cars travelling toward Cullyhanna, and thinking that the white Rover had driven through the VCP disobeying Marine B's signal to stop, and seeing the white Rover turn into the car park at the Lite and Easy and stop there, he (<Marine E>) sent Marine B down to the car park to investigate.
He (<Marine E>) then noticed that the driver of the white car had got out of the car and was standing in the car park and was acting "anti" towards Marine B. He (<Marine E>) heard raised voices, and he (<Marine E>) then went down to the car park. He approached the driver of the white car and Marine B and asked the driver what the problem was. The driver replied that there was no problem. The driver told him that he was not scared of them (ie. the soldiers) and asked <Marine E> and soldier B what they were going to do.
<Marine E> could smell that the driver had been drinking and noticed that his speech was slurred. The driver told <Marine E> that he had been drinking and that he was drunk. <Marine E> asked him for his identification but the driver did not give it...
A red Granada car then came from the same direction as the white Rover. It stopped a short distance past the entrance to the car park on the Dundalk side of the car park.
The passenger got out of his red car when it stopped and walked in the direction of <Marine E>, Marine B and the driver of the white car. This person appeared to be hunched over and appeared to be shouting at <Marine E> and Marine B. The man also appeared to be shouting at the driver of the white car. <Marine E> did not know who this man was. <Marine E> could not make out what he was shouting, he could not understand him.
The man from the red Granada shouted one thing which <Marine E> understood which was "Fuck this, I'll do it". This man then carried on to the white car and got into the driver's seat. The other man, who had driven the white Rover into the car park, initially did nothing, and then he turned and ran and got into the front passenger seat of the white car.
At this stage <Marine E> was standing in front of the Rover car approximately 5 or 6 metres back from the front of it and to the driver's side of the front. Marine B was standing somewhere over his (<Marine E>'s) right shoulder.
When the man from the red Granada got into the driver's seat of the white Rover he was revving the car intending to drive away. <Marine E> was not agreeable to that because he had not identified the person, (ie. the man who had driven the white Rover into the car park, to whom he had been talking). <Marine E> wanted to know who he was and why initially he had driven through the VCP.
<Marine E> moved to the front of the white Rover and placed his left hand on the bonnet and shouted to the driver to stop and to get out of the car. He was holding his rifle with his right hand.
When he was standing with his hand on the bonnet, he was at the front of the car on the driver's side.
The driver did not respond to <Marine E>'s wish and he kangarooed the car forward as if he were a learner driver trying to pull away. This movement of the car pushed <Marine E> backwards and his feet were slipping in the shingle of the car park. <Marine E> was pushed back approximately 3 or 4 metres.
At this stage <Marine E> was not aware where Marine B was other than that he was over his right shoulder somewhere in the car park. The driver appeared to slip the clutch and the car moved forward in continual motion.
As the car surged forward it lifted <Marine E> up. His hand was still on the bonnet and he twisted himself on the driver's wing of the vehicle as it pulled out onto the road.
As <Marine E> cleared the wing he was falling backwards in the opposite direction to the vehicle and he smashed the driver's window of the car by striking down at the window with the butt of his rifle whilst he was falling backwards. He did not fall on the ground as he broke his fall with his left arm by putting his left arm down behind him...
At this point <Marine E> noticed Marine B. Marine B was in front of the car which was moving at this stage. The car reached Marine B and Marine B was trapped on the front of the car. The car had struck Marine B and he was trapped by the speed and motion of the car pulling away from the car park. It was the front passenger side on the front of the bonnet which appeared to strike Marine B. He (<Marine E>) noticed this as he was smashing the window.
The car was accelerating away toward Dundalk. He (<Marine E>) formed the view that Marine B was trapped. Marine B was on the front of the car as it turned or went in the direction of Dundalk.
He (<Marine E>) then cocked his rifle, and he looked at his rifle to cock it. He was trained to look at his rifle when he cocked it. Once he cocked the rifle he brought it up on aim. This involved moving the cheek plate up to his cheek and aligning his eye with the sight. He brought the sight straight up to his eye and closed his left eye.
<Marine E> had never before fired his rifle outside the circumstances of training. As he brought the sight up to his eye he was kneeling on the road.
He looked through the sight at the car. His intention in cocking the weapon and putting the sight to his eye was to stop the car moving away down the road.
He tried to stop the vehicle by firing his rifle.
He was aware that somebody joined them from the direction of the village, and he took it to be another member of his team. This person appeared to be to his right. He told him to "make ready, fire". He could not remember if he said this before or after he (<Marine E>) started to shoot.
As he saw the car through the sight it appeared to move down the road towards Dundalk. He thought Marine B was on the front of the car. At no stage did he see him fall from the car. He did not see Marine B or anything that might be him on the front bonnet through the windscreens of the car.
He (<Marine E>) fired at the driver. At no stage did he fire at the passenger.
It was put to <Marine E> that there were bullet holes at the rear of the car which were not in the position where the driver would be. <Marine E> said that he was not conscious or aware of firing at any of those positions.
He fired at the driver to stop the car. He wanted to stop the car because Marine B was on the bonnet of the car.
When asked why did he think it necessary to stop the car or to fire at the driver because Marine B was on the bonnet <Marine E> replied: 'Because he (Marine B) could have been seriously hurt or killed'...
It was not feasible to shoot at other portions of the car, such as the tyres, because the driver was the person in control of the car. His training did not involve being trained to shoot at the tyres of a car...
The car travelled down the road and it seemed to lose power at some distance. He noticed that the driver's head made a slumping movement and he concluded that the driver of the vehicle had been hit. When he saw that he stopped firing.
When he stopped firing he took the sight away from his eye and viewed the scene with both eyes. When he did that he saw Marine B. Marine B was at the Dundalk end of the car park on the mixture of shingle on the car park and the hard surface of the road. Marine B was sitting up from having been laid down. He (<Marine E>) then moved back onto the car park. He turned round and noticed that it was Marine <Marine A> who had joined him to his right...”
Evidence of Marine A

"He (<Marine A>) continued to check cars going in the direction of Cullyhanna. He then heard a car coming from Cullyhanna. It was a red Granada. He saw the driver and passenger in this red car. As it went past his location it beeped on the horn and the driver's passenger gave the V sign. The red car drove on in the direction of the south...
He (<Marine A>) then looked at the car park. He saw Marine B signalling to him to come down. He was aware that a white Rover was there... at the southern end of the car park. It was about 4 or 5 metres back from the road and was at an angle slightly facing the south. Marine B signalled with his arm to come to him. Marine B was at the front of the white Rover and was talking to a civilian. He (<Marine A>) did not see <Marine E> at that stage.
When he received the signal from Marine B he looked to the north and saw other soldiers coming down, and he shouted to one of them to take over, and he (<Marine A>) proceeded to the car park. He walked down towards the Lite and Easy car park and when he got into the vicinity of the car park he noticed <Marine E> at the white car as well. At this stage he reached the north end of the car park. Marine B was at the front of the white Rover... He was just aware of a civilian in the same vicinity as <Marine E> and Marine B.
As he was walking towards the car he noticed another civilian walking from the south towards the white car. The first civilian seemed to be uncooperative with <Marine E> and Marine B. This was apparent from raised voices and the body language. There were raised voices and arms were up while speaking.
As the second civilian got closer to the car he said something which he (<Marine A>) could not make out. It was just a raised voice as though shouting something.
The second civilian just walked past the soldiers and the first civilian. <Marine E> was to the driver's side of the car with the first civilian and Marine B was more to the passenger's side. The second civilian got into the driver's seat and started the engine. The first civilian was at the front of the car at first and then he ran and got into the passenger seat.
When the first man got into the car <Marine E> ran to the front of the car and put his hand on the bonnet and told him to stop the car. <Marine E> was on the driver's side of the car. At this time he (<Marine A>) was walking down towards the car park. Marine B was to the front of the car facing south. Marine B would have been in the car park.
The car revved loudly, a big rev, and then went forward. <Marine E> had a hand on the bonnet shouting to stop the car. The car was pushing <Marine E> back. As the car surged forward <Marine E> came off on the driver's side, and as he came off he managed to smash the driver's window.
Once <Marine E> smashed the window he (<Marine A>) ran forward. He was not aware at the time that <Marine E> had stayed on his feet. He (<Marine A>) saw the smashed window. As <Marine E> smashed the window the car was just coming onto the road.
As he (<Marine A>) ran forward he could not see Marine B, he lost sight of Marine B.
When he had last seen Marine B he was at the front of the car. Marine B would have been in the line of the car as it set off.
When <Marine E> smashed the window he (<Marine A>) ran forward and tried to make a grab for the driver. He (<Marine A>) realised the car was going too fast.
He (<Marine A>) had lost sight of Marine B. He thought he had been hit or had gone under the car.
As the car came out of the car park he (<Marine A>) tried to grab for the driver. He (<Marine A>) followed the driver out and he (<Marine A>) set out to the right-hand side of the road.
He (<Marine A>) thought that Marine B was on the bonnet or had gone under the car. He could not see Marine B. He went down in a kneeling position just to the right of <Marine E> and slightly to his front. He received the order from <Marine E> "Ready, Fire". He (<Marine A>) had already taken the decision to fire at the driver. He thought Marine B's life was in danger...
The time between the breaking of the window and the firing of the first shot was a split second. It was one motion, it was so fast.
He (<Marine A>) was in the kneeling position. <Marine E> fired the first two shots.
He (<Marine A>) went down instantly, he made ready and came up on sight. He would have looked down to cock his weapon. At the stage he brought up the sight onto the target he could not see Marine B... As he brought up the weapon his left eye closed and stayed closed. When he brought the sight up to his eye he aimed at the back windscreen and at the driver. He did not know if he was able to see through the windscreen or not. He was not able to see to the left or right of the driver.
He was concentrating on the tip of the sight which was on the driver.
At no time when he was looking through the sight did he see Marine B.
When he (<Marine A>) fired the shots he believed Marine B was still on the bonnet or under the car.
He (<Marine A>) was firing at the driver to stop the car. He saw the vehicle slow down, he never saw it stop. He heard <Marine E> order "Stop Firing"...
When he came off sight he noticed Marine B on the left to his front.
At no time did he see Marine B on the sight picture. The first time he saw Marine B was when he came off aim and opened both eyes.”
Evidence of Marine B
"After Corporal <Marine E> nodded in the direction of the car he (Marine B) walked down towards the car park. He thought there was no particular danger at all in relation to the car... His intention was to find out why the driver had driven through the VCP. As he got closer to the driver he (the driver) started hurling abuse. He was swearing. He did not understand what the driver was saying, he had trouble understanding the south Armagh accent. The driver was unsteady on his feet and he (Marine B) formed the impression that he was drunk. He asked him why he had driven through the VCP. He did not understand what the driver replied.
He was aware of Corporal <Marine E> arriving. He (Corporal <Marine E>) appeared over his left shoulder...
At the time that Corporal <Marine E> appeared at his left shoulder he noticed a red car coming along from the direction of Cullyhanna. The red car continued to move past the car park and as soon as it cleared the car park it stopped. There was a passenger in the front passenger seat. Before the car stopped the passenger window was opened and the passenger was shouting abuse towards them.
The passenger got out and he walked up to the car park. He was shouting when he started to walk up towards them. He (Marine B) did not understand what he was saying. The passenger was unsteady on his feet as well. He (Marine B) formed the view that he had been drinking as well. His shouting was abusive. To begin with the passenger directed his abuse at them in general in the car park.
When the red car originally appeared he left Corporal <Marine E>'s side and walked down towards the red car. When the passenger passed him he (Marine B) understood what he was saying. He said "Get the fuck in, and fuck them". This was directed to the driver of the white car.
Thereafter his (Marine B's) attention was focused on the red car. The red car drove off in the Silverbridge direction... He watched the red car until the Spar shop. He (Marine B) would have been facing south... As he watched the red car drive towards Silverbridge he could not see the white car behind him and slightly to his left.
He (Marine B) could hear revving from behind when the red car had gone out of his sight or just before it had gone out of his sight. He did not do anything immediately because the red car had still a little way to go. Then he turned round to his left. He saw the white car. The white car was just in front of him and it was moving towards him. He was not aware of the vehicle moving towards him. He did not expect to see the vehicle moving towards him. The front of the car was closest to him. If he could have stepped out of the way he would have done so. The car was almost on top of him and was moving towards him. He thought he was going to be hit by the car and he put himself down onto the bonnet. The top half of his body was on the bonnet and his feet were still on the ground. His feet did not stay on the ground, he lifted them up. He thought that if his feet stayed on the ground he would be pulled under the car. He put himself onto the bonnet to avoid the car hitting him. He noticed Corporal <Marine E> on the driver's side wing of the car. He was holding the car in the corner, he (Marine B) was not sure how. Corporal <Marine E>'s whole body was in contact with the wing. About the same time as he (Marine B) turned round Corporal <Marine E> came off the wing. After that he saw Corporal <Marine E> smash the window of the car.
When he (Marine B) turned and saw the car it was accelerating. As he went on to the bonnet the car continued to accelerate. He thought he was in the centre of the bonnet. The car accelerated onto the road and his (Marine B's) helmet came off and then he came off. He came off on the passenger's side of the car. The car set off in the Silverbridge direction.
He (Marine B) landed on his back. He hurt his back on landing and his right elbow... He could not say for sure what portion of the road he landed on. He had not travelled that far on the bonnet when he came off.
After he had fallen off he heard shots. He did not know what was being fired at. He sat up after a time... then started looking for his helmet. He got his helmet. His memory was not clear from the moment he came off the vehicle. He was dazed and shocked...
He thought that if he had not lifted his legs up he could be dragged under the car. Before turning to see the car and ending on the bonnet a long time did not elapse. It wasn't seconds, it was about a split second.
Marine B was rigorously cross-examined by Mr Weir as were the <Marine E> and the accused <Marine A>. In the course of his cross-examination Marine B was asked (inter alia) why he had not heard the series of sounds and actions described by Corporal <Marine E> in his evidence, which were the passenger from the red car getting into the driver's seat of the white car, the other man (Mr Fergal Caraher) running and getting into the passenger seat of the white car, the driver revving the white car, <Marine E> moving to the front of the white car and shouting to the driver to stop and to get out of the car, the kangarooing of the white car and the sound of <Marine E>'s feet slipping back three or four metres in the shingle of the car park..."
The judge found the forensic evidence from Marine E's rifle butt and clothing supported his story as to smashing the car window.
In assessing the credibility of the civilian witnesses, he reviewed the manner in which they had given their evidence to the police.
"It may well be that the civilian witnesses did not trust the police to investigate in a completely impartial way the shooting incident involving members of the security forces and two young men from Cullyhanna. It also appears that some time later the civilian witness gave written answers to written questions sent to them by the police. But, notwithstanding this, I am satisfied, from hearing their answers in cross-examination and from watching their demeanour in the witness box, and having regard to the precise and detailed evidence given by police officers as to what happened in Newry police station on 7 January 1991 when the witnesses and Mr Tiernan gave the police the prepared statements and refused to answer questions from the police, that the civilian witnesses gave untruthful answers on oath in the witness box when they said that there was not a pre-arranged plan to give written statements to Mr Tiernan, and that some of them gave untruthful answers when they said that they did not refuse to answer questions to the police. It is quite contrary to common sense to accept that the civilian witnesses all went and gave statements to Mr Tiernan, and that he accompanied them to the police station and told the police that they would answer no questions, without some sort of plan or arrangement between them and, possibly, some other third party or third parties. Therefore, when assessing the truthfulness of the evidence of the civilian witnesses as to what they saw happen in the car park between <Marine E> and Marine B and Mr Fergal Caraher and Mr Miceal Caraher and when the car drove out of the car park, I have to bear in mind that they were prepared to lie in the witness box and did lie in the witness box about the way in which they gave their statements to the police. I also think it is probable that the civilian witnesses gave their statements to the police in this way because they did not want to let slip any piece of information which would help the soldiers or would harm Mr Fergal Caraher or Mr Miceal Caraher. This consideration therefore raises a question mark about their impartiality when they described in the witness box what they saw happen in the car park..."
As regards the significance of the evidence, the Lord Chief Justice found:
"There is no doubt that Mr Fergal Caraher and Mr Miceal Caraher were unarmed. It is also clear that they were not terrorists, and no suggestion was made by the two accused that they believed them to be terrorists. However the evidence given by the two accused clearly raised the defence (although the onus is not on the accused to establish this defence, but the onus is on the crown to disprove it beyond a reasonable doubt) that they fired because they believed that Marine B would be killed or seriously injured if they did not fire..."
He stated the applicable law, inter alia, as follows:
"A number of decisions of the highest courts, the House of Lords, the Privy Council and the Court of Appeal in England, have made it clear that where an accused raises the defence that he killed or injured a person in self-defence or in defence of a third person, the Crown must prove beyond a reasonable doubt that he was not acting in defence of himself or another person or that the force which he used was unreasonable. And these decisions also make it clear that in deciding whether the Crown has proved that the force used was unreasonable beyond doubt the tribunal of fact must have regard not to what actually happened, but to what the accused at the relevant time honestly believed was happening. Moreover the courts have made it clear that the tribunal of fact must assess this, not retrospectively in the calm of the courtroom, but by putting itself in the position of the accused and deciding the question taking account of the situation which the accused was in and of the pressures to which he was subjected and of the time in which he had to act...
In the Attorney-General for Northern Ireland's Reference at 137 E Lord Diplock stated:
'... The form in which the jury would have to ask themselves the question in a trial for an offence against the person in which this defence was raised by the accused would be: Are we satisfied that no reasonable man (a) with knowledge of such facts as were known to the accused or reasonably believed by him to exist (b) in the circumstances and time available to him for reflection (c) could be of opinion that the prevention of the risk of harm to which others might be exposed if the suspect were allowed to escape justified exposing the suspect to the risk of harm to him that might result from the kind of force that the accused contemplated using?...' ”
The Lord Chief Justice concluded:
"The two accused having raised the defence of acting in defence of Marine B, the issue which I have to determine in order to decide the guilt or innocence of each accused is whether I am satisfied beyond a reasonable doubt that the Crown has proved that the firing by the accused was not the use of reasonable force to protect Marine B from death or serious injury by being thrown off the bonnet of the car when it was driving away towards Silverbridge. In the context of this case the issue is whether there is a reasonable possibility that the white Rover car drove off from the car park with Marine B on the bonnet so that the two accused honestly believed that he was being carried away on the bonnet and that they had to fire at the driver of the car to stop the car in order to protect Marine B from death or serious injury by being thrown off the bonnet of the car...
However in a case such as this where there is a complete conflict of evidence as to what happened at the vital time, and where there are grounds for doubting the truthfulness of the evidence of both the prosecution witnesses and the accused and their principal witness, it is important for the court to remind itself of the fundamental principle of the criminal law, which is that an accused person can only be convicted if the court is satisfied of his guilt beyond a reasonable doubt, and, of course, this principle applies to the trial of a soldier just as much as it applies to the trial of any other person.
Therefore, at the end of this case, when I came to look back at, and to weigh and consider, all the evidence, bearing in mind the points made by both Mr Weir and Mr Smith in their closing speeches, I found that I had a reasonable doubt whether the accused were guilty. Stating the same thing in a different way, I considered that there was a reasonable possibility that Marine B was carried away on the bonnet of the white Rover car and that, in the emergency of the moment, there was a reasonable possibility that the two accused fired at the driver because they honestly believed it was necessary to do so to save Marine B from death or serious injury and that in the circumstances as the accused honestly believed them to be there was a reasonable possibility that this constituted reasonable force..."
In reaching that conclusion, the Lord Chief Justice based himself on four factors:
"1. ...<the probability> that the civilian witnesses were deliberately untruthful...
2. The clear scientific evidence of fibres on the nearside bonnet of the white Rover car which supported the proposition that the camouflage uniform of a soldier had been in contact with the nearside bonnet of the car and there were a number of scrapes and smears on the nearside front wing and bonnet of the car. These appeared to be recent and could have originated from clothing or another object moving across the surface of the bonnet and wing...
3. ...<the probability> that Marine B did sustain some injuries in or about the area of the Lite and Easy car park. And if he sustained injuries in that location it appears to be probable that this was due to contact with the car...
4. ...<The probability that> if Marine B did signal to Fergal Caraher to stop as he approached the VCP at the church and Mr Fergal Caraher failed to do so, it is clear that the soldiers did not fire at the white car at that stage just because it ignored a signal to stop at the VCP. If this is so, it seems unlikely that a few minutes later the soldiers would have fired at the car just because Mr Miceal Caraher ignored an order in the car park not to drive off, and without something having happened in the car park quite contrary to the account given by the civilian witnesses. As I have said, it seems unlikely that the soldiers would suddenly have abandoned the restraint which they had previously shown a few minutes before when the car ignored a signal to stop at the VCP.
Accordingly, because I have a reasonable doubt as to the guilt of each accused, I find each of them not guilty on the three counts of the indictment."
High Court proceedings in Northern Ireland for aggravated damages were issued by the applicant against the Ministry of Defence, alleging that her husband Fergal Caraher had been unlawfully killed and claiming, inter alia, negligence in the failure to give any or an adequate warning, a failure to give any or any adequate instruction or training, and causing or permitting the soldiers to act in a violent, dangerous and reckless manner. While the case was provisionally listed for hearing in the June 1997, due to difficulties with the attendance of witnesses it was listed for the first week of October 1997. The date was moved subsequently to 10 November 1997. On 29 and 30 October 1997, however, the applicant's solicitors contacted the Crown Solicitor (acting for the Ministry of Defence) informing him that they wished to amend their statement of claim, require additional discovery of documents and, in the related action brought by the brother of the deceased, served five medical reports. The High Court adjourned the case to enable the Crown Solicitor to have the brother medically examined and to deal with the other matters raised. The case was relisted for hearing on 8 June 1998.
On 5 June 1998, counsel for the personal representatives of the deceased applied to the High Court for an adjournment on the grounds that the solicitors had failed to instruct senior counsel on behalf of the personal representatives. The judge agreed to the adjournment, ordering the solicitors to pay the costs of the application. The case was relisted for 28 September 1998.
On 28 September 1998, the case was settled. The terms of the settlement between the applicant as administratix to the estate of Fergal Caraher and Ministry of Defence were, inter alia:
- that the Ministry of Defence pay the applicant the sum of £50,000 in full and final settlement of all claims on her own behalf and on behalf of the estate and dependants of Fergal Caraher, as well as the applicant's legal costs;
- that the Ministry of Defence made no admission as to any legal liability in respect of the said payment or in respect of the death of the deceased;
- that the applicant and her solicitors should not disclose the terms of the agreement.
B. Relevant domestic law and practice
Section 3 of the Criminal Law Act (Northern Ireland) 1967 provides inter alia:
“1. A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large."
Self-defence or the defence of others is contained within the concept of prevention of crime (see eg. Smith and Hogan on Criminal Law).
The "Yellow Card" issued to soldiers in relation to use of fire-arms provides, inter alia, as follow:
"Instructions for opening fire in Northern Ireland. ...
You may only open fire against a person if he is committing or about to commit an act likely to endanger life and there is no other way to prevent the danger...
The following are some examples of acts where life could be endangered, dependent always upon the circumstances:...
(3) Deliberately driving a vehicle at a person and there is no other way of stopping him...
If you have to open fire you should:
Fire only aimed shots..."


ITEMID: 001-87606
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KABKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1933 and lives in the town of Sergiyev Posad in the Moscow Region.
5. In 1988 the applicant gave up his post in the Zagorskiy engineering plant in order to be appointed to a similar position in a car manufacturing enterprise, ATP-11 (“ATP-11”). The latter refused to appoint the applicant to the position sought.
6. On an unspecified date in 1988 the applicant sued ATP-11, seeking that it complied with the agreement for his appointment to the post.
7. On 4 January 1989 the Zagorsk Town Court dismissed his claims. The Moscow Regional Court upheld the judgment on 2 February 1989. On 4 May 1989 the Presidium of the Regional Court quashed the judgments by way of supervisory review and remitted the case for a new examination.
8. By a judgment of 27 June 1989, the Town Court rejected the applicant’s claims. On 14 July 1989 the Regional Court upheld the judgment.
9. On 7 June 1990 the Supreme Court of the Russian Soviet Federative Socialist Republic (“the RSFSR Supreme Court”) quashed the judgments of 27 June and 14 July 1989 and remitted the case to the Town Court for a fresh examination.
10. On 28 December 1990 Judge M. of the Town Court listed a hearing for 9 January 1991.
11. At a hearing of 23 January 1991 the applicant amended his claims and claimed compensation for forced absence from work due to the ATP-11’s unlawful refusal to appoint him to the post.
12. On 7 May 1991 judge M. instituted criminal proceedings against the applicant on suspicion that he had stolen the case file concerning his employment dispute.
13. On 1 November 1991 the deputy prosecutor of the Moscow Regional prosecutor’s office informed the applicant that there were no reasons to set aside the decision of 7 May 1991. He also noted that the local justice department had been ordered to take immediate measures to restore the materials of the case file in respect of the applicant’s employment dispute.
14. On 19 March 1998 the Mytishchi Town Court of the Moscow Region acquitted the applicant for lack of evidence. The judgment became final on 27 March 1998.
15. In the meantime, on 8 April 1992 the applicant requested the President of the Town Court (renamed the Sergiyev Posad Town Court after the town of Zagorsk had been renamed Sergiyev Posad) to restore the case file regarding his employment dispute and to pursue its examination of his claims against ATP-11. The applicant submitted the receipt card showing that the request had been received by the Town Court on 14 April 1992. On 6 May 1992 the President informed the applicant that his employment claims would be adjudicated after the examination of the criminal case against him.
16. On 1 June 1993 and 1 March 1994 respectively the Regional Court forwarded to the Town Court repeated requests by the applicant for restoration of the case file (заявление о восстановлении утраченного судебного производства) with a view to proceeding with the examination of his employment dispute, further to the decision of 7 June 1990. Those requests were accompanied by the documents from the file preserved by the applicant. In its letter of 1 March 1994 the court noted that in case of dismissal of the applicant’s request to restore the case file the courts were to advise the applicant on his right to re-submit his employment dispute to the courts by means of ordinary civil proceedings. It appears that no action was taken in response to the above requests.
17. By decision of 1 April 1994, the Town Court refused to examine the applicant’s requests to restore the case file, as formulated in his application of 20 January 1994 and a telegram of 26 March 1994 respectively. The court referred to the ongoing criminal proceedings and held that it could not examine the applicant’s requests until his exculpation.
18. On 13 October 1994 the Presidium of the Regional Court quashed the decision of 1 April 1994 and remitted the matter to the Town Court for a fresh examination.
19. By letter of 20 February 1995, the Supreme Court of the Russian Federation advised the applicant that the Presidium of the Regional Court had forwarded his request for restoration of the case file to the Town Court for a fresh examination.
20. On 25 September 1996 the Regional Court forwarded to the President of the Town Court a complaint by the applicant about the failure to examine his request for restoration of the case file, as ordered by the decision of 13 October 1994. The Regional Court noted that, according to the Town Court’s registry, the related proceedings were still pending before the Town Court.
21. On 5 May 1998 the Convention entered into force in respect of Russia.
22. On 6 July 1998 the Regional Court forwarded to the Town Court a further complaint by the applicant about the failure to examine his requests for restoration of the case file. It ordered the Town Court to take all necessary measures with a view to pursuing the examination of the applicant’s request.
23. By decision of 10 November 1998, the Town Court refused to restore the case file concerning the applicant’s employment dispute. The court noted that it had returned to the applicant the documents lodged in March 1994 after the decision of 1 April 1994 had become legally binding. The applicant had not complied with the court’s requests to re-submit them. Instead of rectifying the shortcomings, the applicant had chosen to complain to higher courts, declaring that the documents were already with the Town Court. In the absence of the relevant documents and any intention on the part of the applicant to submit them, it had to terminate the proceedings. It advised the applicant that it was open to him to re-submit his employment dispute to the Town Court.
24. It appears that the applicant was not present at the hearing and was not served with a copy of the decision of 11 November 1998. The decision was not appealed against and became final on 22 November 1998.
25. On 10 February 2002 the applicant renewed his request to the Town Court to restore his case file and to adjudicate his employment dispute.
26. By a decision of 26 August 2002 the Town Court dismissed the applicant’s request. It noted that the applicant had asked it to restore the file and had submitted copies of documents related to his employment dispute. However, those documents had not been duly certified. They had been partly typewritten and partly handwritten by the applicant, which cast doubt on their authenticity. The applicant had not submitted any other documents and the court itself had been unable to obtain any documents. ATP-11 had been declared insolvent. Eleven years had passed since the case file had been stolen and the applicant had requested to restore it only in 2002. It was impossible to examine authentic written exhibits (evidence) related to the applicant’s labour action. The court finally noted that it was open to the applicant to re-submit his employment dispute to the Town Court.
27. On 14 October 2002 the Regional Court upheld the decision. It appears that the applicant was provided with both decisions in due time.
28. Article 99 of the 1964 Code of Civil Procedure, as in force at the material time, provided that civil cases were to be prepared for a hearing no later than seven days after the action had been lodged with the court. In exceptional cases, this period could be extended for up to twenty days. Civil cases were to be examined no later than one month after the preparation for the hearing had been completed.
29. Annex No. 2 to the 1964 Code of Civil Procedure, as in force at the material time, provided that courts were to restore lost case files on their own initiative, upon a request from any of the parties to the case or a prosecutor (Article 1). A request to restore the case file was to be lodged with the court which had examined the case on the merits (Article 3). It was to contain detailed information about the case and to be accompanied by all relevant documents or their copies from the file, preserved by the interested person, even if they were not duly certified (Article 4).
30. In examining the request, the court was to use the remaining documents, documents handed over from the case file to third persons or organisations, and copies of those documents and other certificates relevant to the case. It could also examine as witnesses persons who could provide information on procedural steps taken in the course of the proceedings, including members of the court, when necessary (Article 5).
31. If the materials accumulated during the proceedings were insufficient for an adequate restoration of the case file, the court terminated the proceedings by means of a decision (определение). In that case it was open to the interested person to re-submit his/her civil claims to the courts by way of ordinary proceedings (Article 6).
VIOLATED_ARTICLES: 6


ITEMID: 001-99618
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF SCHADLICH v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Karel Jungwiert;Mark Villiger;Renate Jaeger
TEXT: 4. The applicant was born in 1953 and lives in Bautzen.
5.
6. The applicant had been a member of the German Democratic Republic police service since December 1975. In 1990 he became an employee (Angestellter) of the police service of the Federal Republic of Germany and with effect from 1 January 1992 was appointed police officer in the capacity of civil servant on probation (Beamtenverhältnis auf Probe).
7. On the occasion of a car accident that occurred on 8 August 1992 while the applicant was on duty, his shoulder and head were injured. The accident was recognised as an occupational accident by the relevant authorities. Due to his injuries the applicant was on sick leave until 21 March 1993. From 8 April 1994 he was certified permanently unfit for service by his doctor.
8. By a letter dated 8 December 1994 the applicant was informed by the Dresden Police Headquarters (Polizeipräsidium) that it was intending to dismiss him from his duties on the ground that he lacked the necessary professional qualifications for his post.
9. By a decision of 23 February 1995 his probationary period was extended until 31 December 1995.
10. On the basis of a medical expert opinion obtained at the request of the Medical Service of the Dresden Police Headquarters on 27 January 1995, which established that the applicant was suffering from personality disorders and organic brain damage which were unlikely to be consequences of the said car accident, the Medical Service certified on 26 July 1995 that the applicant was permanently unfit for the police service and expressed its concerns regarding his appointment as a civil servant for life.
11. On 2 August 1995 the applicant was informed that it was intended to dismiss him from the police service on the ground that he lacked the necessary physical fitness to carry out his duties. The applicant asked for the involvement of the District Staff Council (Bezirkspersonalrat) and pointed out that his state of health would justify his retirement. The District Staff Council approved the dismissal on 15 August 1995.
12. On 24 August 1995 the Dresden Police Headquarters ordered the applicant’s dismissal on the ground that he was physically incapable of performing his functions as a police officer. It further ordered the immediate enforcement of its decision.
13. By a letter dated 6 September 1995 the applicant objected to the Police Headquarters’ notice of dismissal, giving as a reason that his state of health was a consequence of an occupational accident and was no fault of his own.
14. On 11 September 1995 he applied to the Dresden Administrative Court for reinstatement of the suspensive effect (Wiederherstellung der aufschiebenden Wirkung) of his objection in accordance with the relevant provisions of domestic law. The Dresden Police Headquarters thereupon lifted the order for the immediate enforcement of the dismissal order by letter dated 15 September 1995.
15. By a decision of 26 February 1996, which was served on the applicant on 1 March 1996, the Dresden Police Headquarters dismissed the applicant’s objection of 6 September 1995 and reordered the immediate enforcement of the dismissal order of 24 August 1995. They found that the applicant’s incapacity was not a consequence of the said car accident but of unrelated physical and mental conditions and that he was thus not eligible for retirement and to claim pension benefits.
16. On 18 March 1996 the applicant lodged a request for interim measures with the Dresden Administrative Court.
17. On 27 March 1996 he brought an action against the Free State of Saxony with the Dresden Administrative Court.
18. On 29 April 1996 the Administrative Court reinstated the suspensive effect of the action against the dismissal order of 24 August 1995. The Administrative Court found that there was no prevailing public interest that could justify the immediate enforcement of the dismissal.
19. On a complaint by the Free State of Saxony, the Saxon Administrative Court of Appeal (Oberverwaltungsgericht) by a decision of 1 February 1999 amended the decision of the Administrative Court and restricted the suspension of the said decisions to the effect that the Police Department was obliged to provisionally continue salary payments to the applicant in an amount equal to his pension entitlements and for the rest confirmed their immediate enforcement.
20. By decisions of 27 July 1999 and 9 October 2000 the Dresden Administrative Court ordered expert opinions on the applicant’s physical and mental condition, which were issued on 26 October 1999 and 22 November 2000 respectively.
21. On 12 June 2001 a hearing took place. By judgment of the same day the Administrative Court set aside the dismissal order of 24 August 1995. The Administrative Court found that the applicant’s dismissal was unlawful and that he was entitled to retirement since his physical and mental disorders were a consequence of his occupational accident.
22. On 31 August 2001 the Free State of Saxony lodged a request to be granted leave to appeal with the Dresden Administrative Court since there was no evidence that the applicant’s incapacity had been caused by the occupational accident. The Saxon Administrative Court of Appeal granted leave to appeal by decision of 16 April 2003 which was served on the applicant on 2 May 2003.
23. On 24 September 2003 the Court of Appeal ordered a neurological and a psychological expert opinion and on 24 October 2005 a psychiatric expert opinion on the question as to whether the applicant’s mental disorders had been caused by the occupational accident of 8 August 1992. The expert opinions were rendered on 7 and 18 February 2004 and on 6 March 2006 respectively.
24. On 10 July 2006 a hearing took place on the occasion of which the experts explained their findings.
25. On 12 July 2006 the Court of Appeal set aside the judgment of the Dresden Administrative Court. It held that it was not established that the applicant’s physical and mental troubles were related to the accident and dismissed the applicant’s action.
26. On 4 October 2006 the applicant lodged a complaint against the Court of Appeal’s refusal to grant him leave to appeal to the Federal Administrative Court.
27. On 7 November 2006 the Federal Administrative Court (Bundesverwaltungsgericht) rejected the applicant’s complaint as inadmissible on the ground that the applicant had failed to substantiate his allegation that the proceedings had been flawed by procedural shortcomings that might have affected the decision of the Court of Appeal. The decision was served on the applicant’s counsel on 17 November 2006.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82404
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SEVINGER v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants, Mr M.G. Eman and Mr O.B. Sevinger, are Netherlands nationals, born in 1961 and 1965 respectively, who are both resident in Oranjestad (Aruba). They have resided in the Netherlands (the Realm in Europe) for a number of years, but not for a period of at least ten years. They were represented before the Court by Mr A.G. Croes, a lawyer practising in The Hague.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 21 September and 5 October 2006 respectively the applicants requested the Municipal Executive of The Hague (College van Burgemeester en wethouders) to include them in the electoral register for the elections of members of the Lower House of the Netherlands Parliament on 22 November 2006.
By decisions of 5 and 20 October 2006 respectively the Municipal Executive rejected their requests, as they had not been residents of the Netherlands for a period of at least ten years. Pursuant to Section B1 § 1 and 2 sub A of the Elections Act (Kieswet) the applicants were thus not entitled to vote.
The applicants filed an appeal against these decisions with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). The applicants alleged that the Municipal Executive’s decisions were in breach of inter alia Article 3 of Protocol No. 1, submitting the following argumentation. The Lower House is a co-legislature in matters concerning the Kingdom of the Netherlands (hereinafter also referred to as: the Kingdom) and exercises political control over the establishment of general orders in council for the Kingdom (algemene maatregelen van rijksbestuur). The Netherlands Parliament, of which the Lower House is a part, in fact also acts as a “Kingdom Parliament”, thus the elections of members of the Lower House of the Netherlands Parliament imply also the elections of members of the “Kingdom Parliament”. In other words, the overlap between members of the Netherlands Parliament and the ones of the “Kingdom Parliament” implies ipso facto an overlap in respect of the elections of members of the Lower House of the Netherlands Parliament and the ones of the Lower House of the “Kingdom Parliament”.
By final judgment of 21 November 2006 the Administrative Jurisdiction Division of the Council of State dismissed the applicants’ appeal, holding inter alia the following:
“2.3.1. The Kingdom of the Netherlands is composed of three autonomous countries, the Netherlands, the Netherlands Antilles and Aruba. The relations within the Kingdom and the duties and responsibilities of the different countries are regulated in the Charter [for the Kingdom of the Netherlands; Statuut voor het Koninkrijk der Nederlanden, hereafter referred to as “the Charter”], which does not provide for a Kingdom Parliament. The three countries each have their own parliamentary representative body. The legislative power concerning Kingdom matters is exercised by the legislature of the Kingdom. Articles 15 to 21 of the Charter lay down the legislative procedure, providing for control over, and influence on, the legislative process for the representative bodies of the Netherlands, the Netherlands Antilles and Aruba.
2.3.2. Bills for Kingdom Acts are forwarded to the representative assemblies of the Netherlands Antilles and Aruba at the same time as they are introduced in Parliament. These [assemblies] are empowered, prior to the Bill being publicly debated in the Lower House, to examine the Bill, to issue a written report thereon and to designate one or more special delegates. Furthermore, the Ministers Plenipotentiary of the country in which the legislation is to apply – whose actions have to be accounted for in the representative assemblies of Aruba and the Netherlands Antilles –, are afforded the opportunity to attend the debate on the Bill in Parliament, to furnish information to the Upper and Lower House, to propose amendments to the Bill and to express their opinion on the Bill before a final vote is taken. If, after the Minister Plenipotentiary has stated his or her opposition to the Bill, the Lower House adopts it with a majority of less than three-fifths of the number of votes cast, the proceedings shall be suspended and further discussions on the Bill will take place in the Council of Ministers of the Kingdom. The same power is conferred on special delegates of the representative assemblies of the Netherlands Antilles and Aruba. Therefore, the Charter provides for a democratically legitimated contribution of the residents of the Netherlands, the Netherlands Antilles and Aruba on Kingdom Act legislation by the representative assemblies of the different countries, albeit that the contribution is not always organised in the same way in the countries. (...)
2.3.2. It has been established that the appellants are eligible to vote in the elections of members of the Parliament of Aruba. Therefore the rejection of their requests for registration does not constitute grounds to find a violation of the right laid down in Article 3 of Protocol No. 1 (...). That argument thus fails.
2.4. The appellants further argue that the rejection of their requests constitutes an unjustified difference in treatment, in breach of Article 14 of the Convention. They are excluded as Netherlands nationals from the right to vote in the Lower House Parliamentary elections, merely because they are residents of Aruba, whereas Netherlands nationals who are also not resident of the Netherlands do have that right.
2.4.1. This argument also fails. The legislature has chosen to grant the right to vote in elections for the Lower House also to Netherlands nationals who are not residents of the Netherlands, in order to guarantee that all Netherlands nationals have the right to vote for a representative assembly. In respect of residents of Aruba it is not in dispute that they have the right to vote for the Parliament of their country. Netherlands nationals who are not, or not any longer, residents of Aruba are ineligible, or lose their eligibility, to vote in elections for the Parliament of Aruba. In that respect the two situations are not the same, so for that reason alone there is no unjustified discrimination, within the meaning of Article 14 of the Convention. The fact that the Elections Act grants the right to vote to Netherlands nationals who are residents of the Netherlands Antilles and Aruba and who have resided in the Netherlands for ten years, thereby enabling them to vote in the election of two representative assemblies, is also not a circumstance which leads to the conclusion that there is an unjustified difference in treatment, within the meaning of the aforementioned provision. From the drafting history of Section B1 of the Elections Act (Parliamentary Documents I, 1984/1985, 18 694, nr. 232b, p. 2) it can be deduced that the legislature is of the opinion that a residence in the Netherlands of ten years or more creates a tie with the Netherlands to such an extent, that it is justified to grant the right to vote in the election of members of the Lower House [to this category of Netherlands nationals]. The residents of the Netherlands Antilles and Aruba who comply with this criterion are therefore clearly distinguishable from those who have never resided in the Netherlands. As regards residents of the Netherlands Antilles and Aruba who have resided in the Netherlands for a period of less than ten years, it cannot be held that the legislature could not reasonably have decided upon that criterion.”
Apart from the proceedings above, the applicants also started proceedings against the Municipal Executive of The Hague concerning the rejection of their application for inclusion in the electoral list for the election of members of the European Parliament on 10 June 2004. In the course of those proceedings, the Administrative Jurisdiction Division of the Council of State made a reference for a preliminary ruling to the Court of Justice of the European Communities. On 12 September 2006 the Court of Justice delivered its judgment (Case C-300/04), which reads inter alia:
“2. While, in the current state of Community law, there is nothing which precludes the Member States from defining, in compliance with Community law, the conditions of the right to vote and to stand as a candidate in elections to the European Parliament by reference to the criterion of residence in the territory in which the elections are held, the principle of equal treatment prevents, however, the criteria chosen from resulting in different treatment of nationals who are in comparable situations, unless that treatment is objectively justified.
§ 58 Here, the relevant comparison is between a Netherlands national resident in the Netherlands Antilles or in Aruba and one residing in a non-member country. They have in common that they are Netherlands nationals who do not reside in the Netherlands. Yet there is a difference in treatment between the two, the latter having the right to vote and to stand as a candidate in elections to the European Parliament held in the Netherlands whereas the former has no such right. Such a difference in treatment must be objectively justified.
§ 59 At the hearing, the Netherlands Government stated that the Electoral Law’s objective was to enable Netherlands nationals from the Netherlands residing abroad to vote, since those nationals are assumed still to have links with Netherlands society. However, it is also apparent from that Government’s explanations at the hearing that a Netherlands national who transfers his residence from Aruba to a non-member country has the right to vote in the same way as a Netherlands national transferring his residence from the Netherlands to a non-member country, while a Netherlands national-resident in Aruba does not have that right.
§ 60 In that regard, the objective pursued by the Netherlands legislature consisting in the conferment of the right to vote and to stand for election on Netherlands nationals who have or have had links with the Netherlands falls within that legislature’s discretion as regards the holding of the elections. However, the Netherlands Government has not sufficiently demonstrated that the difference in treatment observed between Netherlands nationals resident in a non-member country and those resident in the Netherlands Antilles or Aruba is objectively justified and does therefore constitute an infringement of the principle of equal treatment.”
In 1986, Aruba (until then part of the Netherlands Antilles) obtained internal autonomy and became a country (separate from the Netherlands Antilles) within the Kingdom. The status of these countries and the relations between them and the Netherlands and towards the Kingdom as a whole is laid down in the Charter for the Kingdom of the Netherlands. Article 41 of the Charter provides that the three countries shall manage their internal matters independently. Therefore Aruba has its own Constitution (Staatsregeling) and its own Net and parliament, id est the Parliament of Aruba (Staten van Aruba), which body has 21 members, who are elected freely, by secret ballot and by means of proportional representation for a four year term.
The legislature of the Kingdom consists of the Netherlands Parliament and the Kingdom Government (the Monarch and the Council of Ministers of the Kingdom) together.
Relevant (excerpts of) articles of the Charter for the Kingdom of the Netherlands (as amended by Kingdom Act of 15 December 1994) read as follows:
“Article 4
...
2. Legislative power in Kingdom affairs shall be exercised by the legislature of the Kingdom. Kingdom Bills shall be considered with due observance of the provisions of Articles 15 to 21 inclusive.
Article 15
1. The King shall forward Bills for Kingdom Acts, at the same time as they are introduced in Parliament, to the representative assemblies of the Netherlands Antilles and Aruba.
...
Article 16
The representative assembly of the country in which the legislation is to apply shall be empowered, before the Bill is publicly debated in the Lower House, to examine the Bill and to issue a written report thereon, if necessary within a fixed time-limit.
Article 17
1. The Minister Plenipotentiary of the country in which the legislation is to apply shall be afforded the opportunity to attend the debate on the Bill in Parliament and to furnish such information to the Upper and Lower House as he considers desirable.
2. The representative assembly of the country in which the legislation is to apply may decide to designate, for the purposes of the debate on a particular Bill in Parliament, one or more special delegates who shall likewise be empowered to attend the debates and furnish information.
...
4. The Ministers Plenipotentiary and the special delegates shall be empowered to propose amendments to a Bill during the proceedings in the Lower House.
Article 18
1. Before a final vote is taken on any Kingdom Bill in the Upper and Lower House, the Minister Plenipotentiary of the country in which the legislation is to apply shall have the opportunity to express his opinion on the Bill. If, after the Minister Plenipotentiary has stated his opposition to the Bill, the Lower House adopts it with a majority of less than three-fifths of the number of votes cast, the proceedings shall be suspended and the Council of Ministers shall consider the Bill further.
2. If the meetings of the Upper or Lower House are being attended by special delegates, the power referred to in paragraph 1 shall devolve upon the delegate designated for the purpose by the representative assembly.
Article 41
1. The Netherlands, the Netherlands Antilles and Aruba shall conduct their internal affairs autonomously.
2. The interest of the Kingdom shall be a matter of common concern to the countries.
Article 46
1. The representative assemblies shall be elected by Netherlands nationals who are residents of the country concerned and have attained an age to be determined by the countries, which should not exceed 25 years. Each voter shall cast only one vote. Elections shall be free and by secret ballot. In case of necessity the countries may impose restrictions. ...
2. The countries may award to Netherlands nationals who are not residents of the country concerned the right to vote in elections for the representative assemblies ...”
Section B1 of the Elections Act (as amended on 24 December 1998) reads as follows:
“1. Members of the Lower House of Parliament shall be elected by persons who are Netherlands nationals on nomination day and have attained the age of eighteen years on polling day, with the exception of persons who have their lawful place of residence in the Netherlands Antilles or Aruba on nomination day.
2. This exception shall not apply to:
(a) Netherlands nationals who have been resident in the Netherlands for at least ten years;
(b) Netherlands nationals who are employed in the Netherlands public service in the Netherlands Antilles or Aruba and their Netherlands spouses or partners and children, in so far as they have joint households.”


ITEMID: 001-106561
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ORLIKOWSCY v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 4. The applicants were born in 1962 and live in Częstochowa.
5. On 30 December 1994 the Mayor of Mykanów issued a decision granting building permission for a certain M.N., the proprietor of a plot of land adjacent to the applicants’ house, to construct a butchery and abattoir on his property. Since at least 1997 Mr M.N. had been running the butchery in question.
6. Following the re-opening of the case, on 17 September 1998 the Mayor’s decision of 1994 was quashed.
7. On 27 April 1998 M.N. requested planning permission in order to extend the butchery.
8. On 15 June 1998 the Mayor of Mykanów granted planning permission.
9. The applicants appealed against that decision.
10. On 21 July 1998 the Częstochowa Self-Government Board of Appeal upheld the challenged decision. The applicants lodged a complaint with the Supreme Administrative Court.
11. On 23 May 2000 the Supreme Administrative Court allowed the complaint, quashed the challenged decision and remitted the case.
12. After the Supreme Administrative Court’s judgment, on an unspecified date, the proceedings were discontinued because the investment in question had been completed.
13. On 9 February 1999 the Mayor of Mykanów granted a building permit for the extension of the butchery. The decision was upheld by the Śląski Governor on 15 March 1999.
14. The applicants lodged a complaint against the latter decision which was allowed by the Supreme Administrative Court on 4 January 2001; the court quashed both preceding decisions.
15. On 18 May 2001 the Mayor of Mykanów discontinued the proceedings for permission to extend the butchery because the investment in question had been completed.
16. On 30 December 1998 the Head of the Częstochowa District Office allowed M.N. to use the existing buildings for the purposes of running a butchery.
17. The applicants’ appeal was dismissed on 4 March 1999 by the Śląski Governor. They lodged a complaint against the decision with the Supreme Administrative Court.
18. On 4 January 2001 the Supreme Administrative Court allowed the complaint and quashed both preceding decisions.
19. On 28 May 2001 the Head of the Częstochowa District Office stayed the proceedings because another set of proceedings was pending before the construction supervision authorities. The parties have not submitted any information regarding the progress of this set of proceedings.
20. On the basis of the decision of 9 February 1999 given by the Mayor of Mykanów M.N. carried out some building work and extended the butchery.
21. In the light of the fact that the extension to the butchery had been built on the basis of a final decision which was subsequently quashed, on 8 July 2002 the District Building Inspector ordered M.N. to carry out work in order to legalise the building.
22. On 25 September 2002 the Regional Building Inspector upheld the decision of 8 July 2002.
23. On 20 December 2001 the District Building Inspector ordered the demolition of a smoking chamber as it had been built by M.N. without the necessary permit.
24. M.N. appealed against the decision.
25. On 20 February 2002 his appeal was rejected as having been lodged out of time. Mr M.N. lodged a complaint with the Supreme Administrative Court.
26. On 1 July 2002 the District Building Inspector reminded Mr M.N. of the obligation to demolish the smoking chamber.
27. On 17 December 2002 the Supreme Administrative Court allowed the appeal and quashed the decision of 20 February 2002. Thus the decision of 20 December 2001 ordering the demolition of the smoking chamber became enforceable.
28. On an unspecified date the applicants lodged a complaint with the Supreme Administrative Court about inactivity on the part of the administrative authorities and about the fact that the decision of 20 December 2001 had not been enforced.
29. On 30 June 2003 the Supreme Administrative Court rejected the applicants’ complaint, finding that they were not a party to the enforcement proceedings.
30. On 31 July 2003 the Regional Building Inspector again decided that the appeal lodged by Mr M.N. against the decision of 20 December 2001 should be rejected as lodged out of time. M.N. lodged a complaint against this decision with the Supreme Administrative Court. Since the relevant provisions had been amended, the complaint was transferred to the Regional Administrative Court.
31. On 7 October 2004 the applicants lodged a complaint with the Chief Building Inspector about inactivity on the part of the Regional Building Inspector in that the decision to demolish the illegal construction had not been enforced.
32. On 25 November 2004 the Regional Administrative Court allowed M.N.’s complaint and quashed the decision of 31 July 2003. Therefore, the Regional Building Inspector was under an obligation to re-examine the case.
33. On 26 July 2005 the Regional Building Inspector re-examined the case, quashed the decision of 20 December 2001 and remitted the case.
34. On 12 August 2005 the District Building Inspector ordered M.N. to provide certain documentation which would bring the building into compliance with the law.
35. On 27 October 2005 the District Building Inspector ordered M.N. to pay 250,000 Polish zlotys (PLN) as a legalisation fee (opłata legalizacyjna).
36. The parties appealed against this decision and, on 12 January 2006, the Regional Building Inspector quashed it and remitted the case.
37. Following the re-examination of the case, on 10 February 2006 the District Building Inspector again ordered the demolition of the smoking chamber.
38. M.N. lodged an appeal against this decision.
39. On 24 November 2006 the applicants lodged another complaint about inactivity on the part of the Regional Building Inspector.
40. On 15 January 2007 the Regional Building Inspector quashed the decision of 10 February 2006 and remitted the case.
41. On 23 January 2007 the Regional Building Inspector replied to the applicants’ complaint, explaining the reasons for the delay, which included problems with serving the correspondence and the fact that the inspector who was conducting the proceedings had been ill. The Inspector concluded that the appellate proceedings had been terminated by the decision of 15 January 2007.
42. On an unspecified date at the beginning of 2007 the applicants lodged a complaint with the Regional Administrative Court about inactivity on the part of the administrative authorities.
43. On 29 June 2007 the Regional Administrative Court examined their complaint and ordered the District Building Inspector to issue a decision within two months. The court found, inter alia, that “for the last few years no decision on the merits [had been] given”. The Regional Administrative Court found that the applicants had exhausted the available remedies as required by section 52 of the Proceedings before the Administrative Courts Act, in that they had lodged appeals with the Chief Inspector of Construction Supervision in which they had raised the problem of the length of the proceedings.
44. On 6 December 2007 the District Building Inspector, finding that M.N. had used the smoking chamber without the required permit, imposed a fine on him.
45. Both decisions were upheld by the Regional Building Inspector on 11 June 2008. M.N. lodged an appeal against this decision with the Regional Administrative Court.
46. M.N. did not pay the fine,
47. On 10 September 2008 M.N. appealed against the Building Inspector’s decision.
48. On 24 September 2008, following an inspection of M.N.’s premises and finding that he had failed to comply with the relevant provisions of the Building Act (Prawo Budowlane), the District Building Inspector ordered M.N. to suspend the operation of the butchery and to provide the necessary documentation on certain legal and technical issues.
49. On 23 February 2009 the Regional Administrative Court examined the applicant’s appeal as regards the fines imposed on him and gave judgment; it quashed the challenged decision and the preceding decision of 6 December 2007.
50. On 11 May 2009 the District Building Inspector informed the Regional Building Inspector that M.N. had dismantled the smoking chamber. The District Inspector inspected the area and informed all the parties to the administrative proceedings that the smoking chamber had been dismantled. This information was disputed by the applicants in their pleadings before the Court; on 19 August 2010 they submitted that M.N. was continuing to use the butchery and the smoking chamber.
51. On 13 May 2009 the Regional Building Inspector decided to stay the appellate proceedings which had been instituted by M.N. on 10 September 2008, considering that the judgment given by the Regional Administrative Court had not been enforceable.
52. On 28 May 2009 M.N. appealed.
53. On 15 July 2009 the Chief Inspector of Construction Supervision, considering that the Regional Administrative Court’s judgment of 23 February 2009 had become enforceable on 19 May 2009, quashed the Regional Building Inspector’s decision of 13 May 2009.
54. On 7 June 2010 the applicants complained to the Chief Inspector of Construction Supervision about inactivity on the part of the Regional Building Inspector. This complaint has not yet been examined.
55. On 8 September 1998 the Governor of Częstochowa gave a decision determining the admissible level of noise for M.N.’s butchery at 40 dB at night time, that is, between 10 p.m. and 6 a.m.
56. On 3 August 2000 a check of the level of noise coming from M.N.’s butchery was carried out at the applicants’ property. It was established that the admissible noise level was exceeded by 15 dB. Therefore, on 29 September 2000, the Regional Environment Inspector gave a decision and imposed an incremental fine on M.N.
57. On 6 December 2000 M.N. informed the Regional Environment Inspector that a special silencer had been installed in the smoking chamber.
58. On 18 and 19 December 2000 the Regional Environment Inspector inspected the butchery and confirmed that a silencer had indeed been installed and the permissible noise level was no longer being exceeded.
59. On 27 February 2001 a further noise-level check took place. It was established that the admissible noise level on the applicants’ property was exceeded by 9.4 dB.
60. On 23 April 2001 the Regional Environment Inspector gave a decision ordering that the operation of the butchery be discontinued. M.N. appealed against this decision.
61. On 23 August 2001 the Chief Environment Inspector quashed the challenged decision and discontinued the proceedings. The applicants complained to the Supreme Administrative Court.
62. On 6 October 2003 the Supreme Administrative Court quashed the challenged decision and the case was remitted to the Chief Environment Inspector who, on 29 December 2003, quashed the Regional Environment Inspector’s decision of 23 April 2001 and remitted the case for reconsideration. However, as a result of this set of proceedings, M.N. ceased the night-time operation of the smoking chamber.
63. On 23 and 24 September 2004, during a check carried out by the Regional Environment Inspector, it was confirmed that the smoking chamber was not operating at night. Subsequently, a noise test was carried out. The level was established as being 40.9 dB, which was only 0.9 dB above the permissible norm, which did not constitute a sufficient basis to impose a fine on M.N.
64. On 13 October 2004 the Regional Environment Inspector gave a decision and discontinued the proceedings. The applicants appealed.
65. On 29 December 2004 the Chief Environment Inspector quashed the challenged decision and remitted the case.
66. On 2 February 2005 the Governor of Częstochowa gave a decision cancelling his own decision of 8 September 1998. The Governor relied on the amendment of the Regulation of the Minister of the Environment of 29 July 2004, according to which the permissible level of noise for the relevant area had been increased to 45 dB.
67. On 12 April 2005 the Regional Environment Inspector made a check of the butchery and confirmed that it was not operating at night. M.N. constructed a shelter and a roof which functioned as acoustic screens.
68. On 13 April 2005 the Regional Environment Inspector discontinued the proceedings. The applicants appealed.
69. On 12 December 2005 the Chief Environment Inspector dismissed the appeal. The applicants did not lodge a complaint with the Supreme Administrative Court. The decision of 12 December 2005 became final.
70. In a letter of 26 October 2007 the Regional Environment Inspector confirmed that the decision of 12 December 2005 was final and informed the applicants that no proceedings relating to M.N. and his butchery were being conducted before that administrative authority.
71. The relevant domestic law concerning the remedies for inactivity on the part of the administrative authorities at the material time is set out in the Court’s judgment in the case of Grabiński v. Poland, no. 43702/02, §§ 60-65, 17 October 2006.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1