ITEMID: 001-89935
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: JASNOWSKI AND JASNOWSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicants, Mr Zdzisław Jasnowski and Zdzisława Jasnowska, are Polish nationals who were born in 1941 and 1942 respectively. They both live in Nowa Sól, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants own a semi-detached house in Nowa Sól. In 1997 their house was considerably damaged by flooding. Subsequently, the applicants intended to build an extension to their house. Under the domestic law they were required to obtain a planning permission and subsequently a construction permit. They instituted administrative proceedings with a view to obtaining these decisions.
On 20 January 1998 the applicants applied to the Mayor of Nowa Sól (Prezydent Miasta) for a planning permission (decyzja o warunkach zabudowy i zagospodarowania terenu) for the intended extension of their house. On 21 January 1998 the Mayor granted them the permission. The applicants’ neighbour appealed against that decision.
On 27 March 1998 the Zielona Góra Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze) quashed the Mayor’s decision and remitted the case.
On 22 May 1998 the Mayor granted the applicants a one year valid planning permission. The applicants’ neighbour appealed. On 7 July 1998 the Self-Government Board of Appeal upheld the Mayor’s decision. The applicants’ neighbour filed an appeal against that decision with the administrative court. On 24 August 1999 the Supreme Administrative Court quashed the Board of Appeal’s decision of 7 July 1998 and remitted the case.
On 7 October 1999 the Board of Appeal re-examined an appeal lodged by the applicants’ neighbour. It found that the appeal proceedings were devoid of purpose since the planning permission had meanwhile lost its validity. The applicants’ neighbour again filed an appeal against that decision with the administrative court.
On 6 February 2001 the Supreme Administrative Court quashed the Board of Appeal’s decision of 7 October 1999 and remitted the case.
On 13 April 2001 the Board of Appeal quashed the Mayor’s decision of 22 May 1998 and remitted the case. The applicants and their neighbour lodged appeals against that decision with the administrative court.
On 6 March 2002 the Supreme Administrative Court dismissed the appeal lodged by the applicants’ neighbour. On 26 April 2002 it discontinued the proceedings in respect of the applicants’ appeal since they had withdrawn it.
In the meantime, on 11 March 2002 the Nowa Sól Mayor issued a new planning permission for the applicants. The permission remained valid until 31 March 2004. On 18 April 2002 the Local Government Board of Appeal upheld the Mayor’s decision. The applicants’ neighbour filed an appeal against that decision with the administrative court. On 25 August 2004 that the Poznań Regional Administrative Court (Wojewódzki Sąd Administracyjny) quashed the Board of Appeal’s decision of 18 April 2002 and remitted the case.
On 3 November 2004 the Self-Government Board of Appeal partly quashed part of the Mayor’s decision of 11 March 2002, remitted the case and partly discontinued the proceedings.
On 31 July 1998 the applicants applied for a construction permit (pozwolenie na budowę) for the extension of their house. On 9 September 1998 the Head of the Nowa Sól District Office (Kierownik Urzędu Rejonowego) granted them the construction permit. The applicants’ neighbour appealed against that decision. On 21 October 1998 the Zielona Góra Governor (Wojewoda) quashed the decision and remitted the case.
On 19 November 1998 the Head of the Nowa Sól District Office again granted a construction permit to the applicants. The applicants’ neighbour appealed. On 16 December 1998 the Zielona Góra Governor upheld the District Office’s decision.
On 11 January 1999 the applicants’ neighbour filed an appeal against the Governor’s decision with the Supreme Administrative Court. On 14 January 2000 the Supreme Administrative Court quashed the decision and remitted the case to the Lubuski Governor.
On 7 April 2000 the Lubuski Governor quashed the Head of the Nowa Sól District Office’s decision of 19 November 1998 and remitted the case to the first-instance administrative authority.
On 7 July 2000 the Mayor of the Nowa Sól District (Starosta Powiatu) granted the applicants a construction permit. The applicants’ neighbour appealed. However, on 22 August 2000 the Lubuski Governor upheld the Mayor’s decision.
Subsequently, the applicants’ neighbour filed an appeal against that decision with the Supreme Administrative Court and applied for a stay of execution. On 24 November 2000 the court decided that the execution of the Governor’s decision of 22 August 2000 should be stayed.
On 25 January 2001 the applicants requested the Supreme Administrative Court to accelerate the examination of the case.
On 17 May 2001 the Supreme Administrative Court quashed the Governor’s decision of 22 August 2000 and remitted the case to that authority.
On 31 August 2001 the Lubuski Governor upheld the Mayor of the Nowa Sól District’s decision of 7 July 2000 granting a construction permit to the applicants. The applicants’ neighbour filed an appeal against that decision with the administrative court. On 27 November 2001 the Supreme Administrative Court ruled that the execution of the Governor’s decision of 31 August 2001 should be stayed.
On 14 January 2002 the Lubuski Governor requested the court to accelerate the examination of the appeal.
On 26 April 2002 the Supreme Administrative Court quashed the Governor’s decision of 31 August 2001. It stressed that the Governor’s decision granting a construction permit to the applicants could not have been issued as the validity of the planning permission had expired in the meantime.
On 24 June 2002 the Lubuski Governor quashed the Mayor of the Nowa Sól District’s decision of 7 July 2000 and remitted the case.
On 20 August 2002 the Mayor of the Nowa Sól District granted a construction permit to the applicants. On 28 October 2002 the Lubuski Governor dismissed the appeal of the applicants’ neighbour against the decision of 20 August 2002.
On an unspecified date the applicants’ neighbour filed an appeal against the Governor’s decision with the administrative court. Subsequently, the Poznań Regional Administrative Court became competent to examine the appeal.
On 13 May 2005 the Poznań Regional Administrative Court quashed the Governor’s decision of 28 October 2002 and remitted the case.
On 6 October 2005 the Lubuski Governor quashed the Mayor of the Nowa Sól District’s decision of 20 August 2002 and remitted the case.
On 29 March 2006 the Mayor of the Nowa Sól District granted a construction permit to the applicants. The applicants’ neighbour appealed.
On 1 June 2006 the Lubuski Governor upheld the decision of the Mayor of the Nowa Sól District.
On 25 July 2007, the Gorzów Wielkopolski Regional Administrative Court quashed both decisions (of 29 March and 1 June 2006). It is not clear whether the applicants filed a cassation appeal with the Supreme Administrative Court against this judgment.
The relevant domestic law concerning inactivity on the part of administrative authorities is described in the Court’s judgments in cases Kaniewski v. Poland, no. 38049/02, 8 February 2006, and Koss v. Poland, no. 52495/99, 28 March 2006.
As regards the remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, they are described in the Court’s decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.


ITEMID: 001-80217
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF LOMBARDO AND OTHERS v. MALTA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 4. The applicants, Mr Mark Lombardo, Mr Charles Bonello, Mr Alfred Debono and Mr John Zammit are Maltese nationals who were born in 1966, 1971, 1945 and 1963 respectively and live in Malta.
5. The first three applicants are councillors on the Fgura Local Council elected on behalf of the Nationalist Party. The fourth applicant is the editor of the newspaper “In-Nazzjon Taghna”.
6. In 2001 a controversy arose between the central government of Malta and the Fgura Local Council over the “Hompesch” Road Project (hereinafter, the “HRP”) in Fgura. The matter was brought before the domestic courts and gave rise to a political discussion in the Local Council.
7. On 24 May 2001, during a Local Council meeting, the applicants presented a motion calling for the Council to hold a public consultation meeting on the matter. The Council rejected the motion.
8. On 26 July 2001 the Fgura Mayor published an article in the newspaper “In-Nazzjon Taghna”.
9. On 7 August 2001 the first three applicants published an article in reply in the same newspaper. A passage of this article read as follows:
“The Fgura Local Council did not consult the public and is ignoring public opinion on the matter.”
10. On 26 November 2001 the Fgura Local Council sued the applicants for libel and defamation in their capacity as authors and editor of the article published on 7 August 2001. It submitted that the defendants had attributed to it specific and unproved facts with the intention of destroying or reducing its reputation.
11. The applicants challenged this claim, submitting that the article complained of amounted to fair comment. They claimed that, even though they had put forward a motion to hold a public meeting, the Local Council had failed to hold a public consultation on the matter. In the applicants' opinion, the efforts made by the Council to analyse the controversy did not amount to a public consultation.
12. By a judgment of 12 November 2002, the Court of Magistrates found in favour of the Local Council and ordered the applicants in solidum to pay 2,000 Maltese Liri (Lm – approximately 4,800 euros (EUR)) for moral damage.
13. The Court of Magistrates considered that the article complained of had been written in the context of a political controversy which had also been discussed in the local press. It stated that there had been a misunderstanding between the labour councillors and the Department of Roads. The labour councillors had proposed that part of Hompesch Road should be one-way. However, according to the article, this proposal had been rejected by the Traffic Control Board, the Public Transport Authority and the General Retailers and Traders Union. The first three applicants, in their capacity as nationalist councillors, wished to bring forward the commencement of the works and had asked the labour councillors to remove the political straightjacket. Finally, the first three applicants had stated that the Local Council had omitted to consult the public and was ignoring public opinion on the HRP.
14. However, the Court of Magistrates found that, as highlighted by the plaintiff, a number of measures had been taken in order to submit the project to public scrutiny.
15. In particular, both the Minister responsible for roads and the Director of the Department of Roads had expressed themselves publicly to the effect that discussions were being held with the Local Council regarding the matter. Moreover, it was not true, as claimed by the applicants, that the proposal that part of Hompesch Road should become one-way had been rejected. In fact, at the relevant time, two of the three authorities which had allegedly rejected the proposal had not yet been constituted. Notwithstanding that the Local Council was not bound to hold any public consultation, the matter had been brought up at a public meeting organised by it on 10 April 2001. There had also been public consultation since the project itself had commenced as a result of a public meeting held in 1995. A qualified “urban planner” had also been engaged to prepare a report on the road in question. Urban policy for the locality was based on this report and to reinforce this policy further public consultation had taken place in November 2000.
16. Furthermore, a questionnaire had been distributed locally to give residents the opportunity to express their position on the matter and a similar invitation had been made in the June/July 2001 edition of the official publication of the Local Council. On 11 June 2001 the Local Council had organised another public meeting with several bodies and on 24 July 2001 had approved the conclusions of this meeting.
17. In the Court of Magistrates' opinion, there had to be a clear distinction between an allegation of fact on which fair comment could be based and an allegation which was solely a malicious manipulation of the facts. According to the case-law of the European Court of Human Rights, a comment was justifiable only if it were fair and made bona fide. Thus, it could only be based on a fact that was proved to be true. In the present case, however, the facts alleged by the first three applicants had not been proved. From the outset of the trial, rather, it had been demonstrated that public consultation had taken place.
18. The Court of Magistrates concluded that the fourth applicant, as editor of the newspaper, had been aware of the controversy and believed that the comment of the first three applicants had been justified. Finally, he had also agreed to publish a response from the Local Council to the article in issue.
19. The applicants appealed to the Court of Appeal. They claimed that the first-instance court had made a wrong assessment of the facts and had applied the law incorrectly. In any event, the amount awarded to the Local Council in damages was excessive.
20. By a judgment of 24 November 2003, the Court of Appeal confirmed the Court of Magistrates' finding that the publication had been libellous and defamatory. However, it decided to reduce the amount of the damages to Lm 600 (approximately EUR 1,440).
21. The Court of Appeal recalled that, as the Local Council was a public organ, the limits of acceptable criticism directed at its acts could be wider. However, the establishment, assessment and evaluation of facts were for the first-instance judge and, unless this evaluation was arbitrary or illogical, the Court of Appeal would not interfere. In the present case, on the basis of the evidence before it, the Court of Appeal found that the facts stated in the publication did not reflect the truth.
22. On 13 January 2004 the applicants filed a constitutional complaint with the Civil Court (First Hall).
23. They claimed that the publication in question was a legitimate criticism of local government action which was permissible in a democratic society. Thus, the obligation to pay damages imposed on them had infringed their right to freedom of expression, as guaranteed by Article 10 of the Convention.
24. The applicants considered that their statements were part of their duty as elected councillors and that they had the right to inform the public about matters of public interest. They emphasised that the libel proceedings had not been instituted by a physical person but by a local council and that the article complained of had criticised a local government and its administrative actions. Therefore, no restrictions on their freedom of expression could be imposed.
25. In a judgment of 7 October 2004, the Civil Court rejected the applicants' claim.
26. The Civil Court observed that according to the case-law of the European Court of Human Rights, the right to freedom of expression was not absolute. In particular, the exercise of this right carried with it duties and responsibilities, which were particularly important when it came to attacking the reputation of private individuals and undermining the rights of others. Journalists had to act in good faith in order to provide accurate and reliable information.
27. The Civil Court also highlighted the importance of the balance between the right to freedom of expression and the right to reputation, honour and good name. In the present case, there was no doubt that the interference with the applicants' right to freedom of expression had a legal basis in Chapter 248 of the laws of Malta. Furthermore, it was proportionate and necessary in a democratic society for the protection of the rights of others. The Civil Court referred, in particular, to the fact that the amount of damages had been reduced and had been imposed as a result of civil proceedings.
28. The applicants appealed to the Constitutional Court.
29. They claimed that the Civil Court had failed to examine the merits of the case. As the article complained of had contained criticism of a local government, the opinions expressed in it should enjoy a higher level of protection. Furthermore, according to the applicants, a local government did not have a reputation which required protection. Thus, statements made against it could not be held to be defamatory and libellous. The applicants finally argued that all they had done was to express their opinion that the consultation about the HRP had not been satisfactory.
30. By a judgment of 7 October 2005, the Constitutional Court upheld the Civil Court judgment.
31. Having examined the judgments given by the Court of Magistrates and by the Court of Appeal, the Constitutional Court found that the law had been applied both effectively and correctly.
32. Although the applicants had not previously raised the plea that a local council could not be defamed, the Constitutional Court addressed the matter. It stated that a local council could both defame and be defamed. Furthermore, the Constitutional Court held that although the limits of acceptable criticism were wider with respect to governments, the attribution of false facts was not protected under Article 10 of the Convention.
33. Section 3 of the Press Act, in so far as relevant, states that a press offence is committed by means of the publication or distribution in Malta of printed matter. Under Section 11 of the same Act, whosoever by such means libels any person, shall be liable to a fine upon conviction.
34. According to Section 23 of the said Act such proceedings:
“...may be instituted against each of the following persons:
(a) the author, if he composed the work for the purpose of its being published, or if he consented thereto;
(b) the editor;...”
VIOLATED_ARTICLES: 10


ITEMID: 001-110761
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: CASE OF MOCUŢA v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 1. The applicant, Mr Gheorghe Mocuţa, is a Romanian national who was born in 1953 and lives in Bucharest.
2.
3. At the relevant time, the applicant worked as a prosecutor at the Prosecutor’s Office attached to the Supreme Court of Justice.
4. Prior to the publication of the impugned article, he took a leave of absence from office between 1998 and 2000 as he was appointed to political positions by the Government. In particular, he worked as the Secretary of State at the Ministry of Justice and then as an Under Secretary of State at the Government Audit Office. He was not affiliated to any political party. The party in power at that time went on to lose elections held in 2000, at which time the applicant returned to work as a prosecutor.
5. An article concerning the applicant written by C.I. was published in the 6–12 March 2001 issue of the satirical weekly magazine Academia Caţavencu, under the title “In the balance of justice, Mocuţa plays on a seesaw” (În balanţa justiţiei, Mocuţa se dă huţa).
The relevant parts of the article read as follows:
“If before the Revolution Mocuţa took advantage of his name, which was identical to that of the county’s chief secretary, after 1989 he had separated himself from the dreaded activist like one would separate [oneself] from the Devil. Whether he was related to Mefisto or not, Mocuţa was appointed straight after graduation to the Prosecutor’s Office at the Bucharest District Court..., despite him not being [ranked] first in his class...
No matter how much he would struggle to prove otherwise, Mocuţa appears on [Bank B.’s] list of shame, side by side with high-ranking officers from the Ministry of Internal Affairs and from the Protection and Guard Service. What sets the prosecutor apart from the others [on the list] is that, whilst the soldiers tormented themselves to pay back their debts, as far as Mocuţa is concerned, we do not yet know that he has reached the last payment of his loan. What we do know for sure is that he was fully dedicated to investigating the criminal file opened against [the former director of Bank B.]”
6. The article went on to set out details of the applicant’s real estate acquisitions, which it stated had been made through allegedly suspicious business transactions involving a former director of the State Tourism Agency, an influential local politician and local prosecutors. It also insinuated corruption on the part of the applicant in his office as prosecutor in connection with some real estate deals.
7. Some four months after the publication of that article, a second article on the same matter featured in the magazine, credited to a different journalist, in which it was admitted that C.I. had been misinformed and had thus presented false information in his previous article.
8. On 30 April 2001 the applicant lodged a criminal complaint with the General Prosecutor’s Office against C.I. for insult and defamation of an official in the course of his or her duties (ultraj; Article 279 § 2 of Criminal Code).
9. The prosecutor decided that the facts fell to be examined under Articles 205 and 206 of the Criminal Code and sent the case to the Bucharest District Court.
The applicant joined the proceedings as civil party, seeking damages from the journalist and the publisher of the magazine, which was a company.
10. On 9 December 2002 the court acquitted C.I., but ordered him, together with the publisher, to pay the applicant 250,000,000 Romanian lei in respect of non-pecuniary damage.
The court considered that the article had been insulting and defamatory and had thus damaged the applicant’s reputation and violated his dignity. It nevertheless considered that the journalist had not acted with a clear intention to offend the applicant, his aim being to inform readers about the applicant’s conduct as a prosecutor and high representative of the State, which was a matter of public interest. The court noted that C.I. had relied on previously published articles and on information delivered by protected sources, but considered that he should have been more diligent in checking the information before publishing it.
As regards the civil claim, the court considered that C.I. had acted unlawfully as he had failed to thoroughly check the information published or to prove its veracity at trial, and that his behaviour had been prejudicial to the victim.
11. Both C.I. and the public prosecutor appealed against the judgment of 9 December 2002. C.I. requested that the civil claim be dismissed, while the prosecutor sought to overturn the acquittal.
12. On 25 June 2003 the Bucharest County Court allowed the appeal lodged by C.I., quashed the judgment in so far as it concerned the civil action and dismissed the applicant’s claim, on the grounds that there had been no causal link between the journalist’s conduct and the detriment suffered by the applicant. It upheld the remainder of the judgment, accepting the reasoning of the lower court in doing so.
13. The relevant provisions of the Civil and Criminal Codes concerning insult and defamation and liability for paying damages, in force at the material time, as well as their subsequent amendments are described in Timciuc v. Romania (dec.), no. 28999/03, 12 October 2010).


ITEMID: 001-69632
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF GEYER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (length of proceedings);Partly inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;Mark Villiger
TEXT: 4. The applicant was born in 1951 and lives in Vienna. He is a tax accountant by profession.
5. In December 1989 the applicant, in the course of an inspection of his tax accountant office by tax inspectors (Betriebsprüfung) filed reports (Selbstanzeigen) in which he incriminated himself. He informed the Vienna Tax Authority for the 3rd and 11th District that he had made false statements in his income tax forms when he declared losses resulting from participation in the W. and G. company.
6. On 11 May 1994 the Salzburg-Land Tax Office (Finanzamt) instituted administrative criminal proceedings on suspicion of tax evasion against the applicant. The applicant's objection was of no avail.
7. Having held hearings on 2 June, 3 November and 4 December 1995, the Trial Board (Spruchsenat) at the Salzburg-Land Tax Office convicted the applicant on the latter date under Section 34 § 1 of the Tax Offences Act (Finanzstrafgesetz) of negligent tax evasion and sentenced him to a fine of ATS 700,000 (approximately 50,900 euros). It further ordered him to pay the costs of the proceedings. The applicant and the Public Prosecutor (Amtsbeauftragter) filed an appeal.
8. On 27 June 1996 the Appeals Board (Berufungssenat) at the Salzburg Regional Directorate of Finance (Finanzlandesdirektion), having held a hearing on the same day, granted the Public Prosecutor's appeal and convicted the applicant of intentional tax evasion under Section 33 § 1 of the Tax Offences Act. The sentence remained unchanged.
9. Subsequently, on 20 September 1996, the applicant filed a complaint with the Administrative Court and requested an oral hearing. He complained inter alia that the Salzburg-Land Tax Office's had lacked jurisdiction in the proceedings at issue and that in the hearing before the Appeal's Board he had not been questioned.
10. The Salzburg Regional Directorate of Finance filed comments on the applicant's complaint on 12 November 1996.
11. On 10 December 1996 the Administrative Court granted suspensive effect to the applicant's complaint.
12. On 22 September 2000 the Administrative Court, without having held a hearing, dismissed the applicant's complaint and ordered him to pay the costs of the proceedings before it. Referring to its case-law, it stated that the Salzburg-Land Tax Office had been competent to conduct the proceedings at issue. Regarding the applicant's complaint that he had not been questioned in the hearing before the Appeal's Board, it noted inter alia that the applicant had not submitted that he had been prevented from presenting his arguments on his own motion in the hearing before the Appeal's Board.
The judgment was served on the applicant's counsel on 20 October 2000.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68920
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BUCK v. GERMANY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;No separate issue under Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 10. The applicant was born in 1938 and lives in Dettingen.
11. In August 1996 the Dettingen municipal authorities imposed a fine of 120 German marks (DEM), plus costs amounting to DEM 36, on V.B., the applicant's son, for having exceeded the speed limit of 50 km/h by 28 km/h on the evening of 21 May 1996, when travelling in a car belonging to the Trinkomat private limited company (Regulations 3 § 3 (1) and 49 § 1 (3) of the Road Traffic Regulations and section 24 of the Road Traffic Act – see “Relevant domestic law” below). The applicant is the owner and manager of that company.
12. On 4 September 1996 V.B. lodged an objection against the administrative decision imposing the fine.
13. On 12 March 1997 the trial in the case opened before the Bad Urach District Court. V.B. pleaded not guilty, stating that about fifteen other persons could have been driving the company car in question on that day. The applicant, summoned as a witness, refused to give evidence, as he was entitled to do as a family member. The hearing was adjourned to 19 March 1997.
14. On 13 March 1997 around 10 a.m. the applicant, on being asked by a policeman to give evidence about his employees in connection with the proceedings against his son, stated again that he did not wish to do so and that none of his employees was currently working on the business premises. On the same day a police officer, on the order of the Bad Urach District Court judge, asked the city of Dettingen to provide a passport photograph of the applicant's son. Police enquiries from the Dettingen trade authorities (Gewerbeamt) about the applicant's employees at the relevant time had led to nothing.
15. On 13 March 1997, at an unknown time, the Bad Urach District Court, in the context of the above proceedings against V.B., issued a warrant to search the business and residential premises of the applicant. The warrant read as follows:
“In the context of the preliminary investigations against
... [V.B.] ...
concerning
the contravention of a traffic regulation,
pursuant to Article 33 § 4 of the Code of Criminal Procedure without a prior hearing, in accordance with Articles 94, 95, 98, 99, 100, 102, 103, 105, 106 § 1, 111 et seq., and 162 of the Code of Criminal Procedure and section 46 of the Contraventions of Regulations Act,
1. the search of the business and residential premises of the father, Jürgen Buck, ..., 3 ... Street, Dettingen/Erms, Trinkomat company;
2. the seizure of documents that reveal the identity of the employees of Trinkomat in ... Dettingen between 20 May and 22 May 1996
are ordered.
Reasons:
The son of the manager of Trinkomat, who is charged with having committed, on 21 May 1996, a contravention of Regulation 3 of the Road Traffic Regulations with a company car, has stated at the trial hearing on 12 March 1997 that a driver employed by the company could have committed the offence.
...”
16. The search of the residential and business premises in Dettingen, a town of some 10,000 inhabitants, was effected the same day around 2 p.m. by four police officers from the local police station. Several documents, such as personnel files and statements on working hours, were seized; copies were made and the originals were given back to the applicant the next day. The documents disclosed the names of at least six persons, four women and two men, who had been employed by the applicant's company at the relevant time and revealed, furthermore, that another relative of the applicant could have been driving the company car at the time of the speeding offence. The applicant objected to the search and, assisted by counsel, appealed against the search and seizure decision on 13 March 1997, the very day on which the warrant had been issued.
17. On 21 March 1997 the Tübingen Regional Court, in a decision addressed to V.B., dismissed the appeal of 13 March 1997. It considered that the appeal against the search warrant was inadmissible as it was devoid of purpose (prozessual überholt), the search having been effected in the meantime. The relevance of the few documents seized could be established without the need for a further procedure. The appeal against the seizure order was ill-founded, as the documents seized were relevant for the assessment of the evidence because they could show whether, as asserted by the appellant, one of the company's employees had committed the traffic offence in question. Moreover, the seizure had not been disproportionate because copies of the originals had been filed and the originals handed back.
18. On 21 May 1997 the Tübingen Regional Court, upon a complaint by the applicant's representative, re-examined the applicant's appeal, declaring it inadmissible as far as the search warrant was concerned and unfounded as to the seizure order. In these respects the court repeated its earlier reasoning. The Regional Court added that its earlier decision of 21 March 1997 had become devoid of purpose and, for the sake of clarity, quashed it.
19. On 30 June 1997 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He submitted in particular that the District Court, at the hearing of 12 March 1997, had been unable to establish whether the person on the radar photo was V.B. He further stated that the documents seized showed that none of the six other persons who had been working for the applicant's company at the relevant time could have been the person shown on the radar photo.
20. On 13 September 1997 a panel of three judges of the Federal Constitutional Court refused to admit the complaint. The Constitutional Court disagreed with the Regional Court's finding that the appeal against the search warrant was inadmissible for the sole reason that the search had already been carried out. According to the Constitutional Court, that finding disregarded the principle of effective legal protection as guaranteed by Article 19 § 4 of the Basic Law. In support of its view, the Constitutional Court referred to its decision of 30 April 1997, which had reversed its former case-law on the point. Nonetheless, the Constitutional Court considered it inappropriate to admit the constitutional complaint. Indeed, when examining the lawfulness of the seizure order, the Regional Court had also, incidentally, addressed the question of the lawfulness of the search order. In any event, the impugned search warrant was obviously lawful. This decision was served on 24 September 1997.
21. On 19 March 1997, in the resumed trial proceedings, the Bad Urach District Court rendered its judgment against V.B. It found him guilty of having negligently exceeded a speed limit, imposed a fine of DEM 120 (approximately 61 euros) on him in accordance with the uniform scale of fines (Bußgeldkatalog) for the various road-traffic regulatory offences, and ordered him to bear the costs of the proceedings.
22. As regards V.B.'s personal background, the District Court noted that V.B. had had his driving licence since 1991, that he drove between 40,000 and 50,000 km per year and that there was no record of previous traffic offences.
23. The District Court, having regard to expert technical evidence, found that the radar check had been properly carried out and that the measurements were correct. Moreover, having compared the photographs taken on the occasion of the radar check, in particular the enlargement prepared by the expert, and V.B.'s passport photograph taken in 1994, which had been retained in the administrative files of the Dettingen municipal authorities, the court reached the conclusion that it was V.B. who had been driving the car. In this respect, the court compared the form of the face, the nose, the position of the eyes and the eyebrows. Furthermore, although V.B. had meanwhile grown a beard, the lower part of the face on the radar photos and of V.B.'s face on the passport photo, showing him without a beard, clearly matched. There were no indications that any other person with the same characteristics had been driving the car at the relevant time.
24. On 19 August 1997 the Stuttgart Court of Appeal dismissed V.B.'s request for leave to appeal.
25. The search complained of was ordered in the context of proceedings concerning an offence against the Road Traffic Act (Straßenverkehrsgesetz). Regulation 3 of the Road Traffic Regulations (Straßenverkehrsordnung) concerns speed limits. Subsection 3(1), sets a speed limit of 50 km/h in towns. Under Regulation 49 § 1 (3), it is a regulatory or petty offence (Ordnungswidrigkeit) to contravene Regulation 3; under section 24 of the Road Traffic Act such an offence is punishable by a fine.
26. The subject of regulatory or petty offences is governed by the Contraventions of Regulations Act (Ordnungswidrigkeitengesetz). Such offences are considered to be of minor importance and have, therefore, been removed from the category of criminal offences under German law. They are partly governed by special rules other than the rules applicable to criminal offences (see, in this connection, Öztürk v. Germany, judgment of 21 February 1984, Series A no. 73, pp. 10 et seq., §§ 17 et seq., and pp. 1718, § 49). Under section 46(1) of the Contraventions of Regulations Act, the provisions of the ordinary law governing criminal procedure – in particular the Code of Criminal Procedure – are applicable by analogy to the procedure in respect of contraventions of regulations, subject to the exceptions laid down in the said Act.
27. Article 103 of the Code of Criminal Procedure (Straf-prozessordnung) provides that the home and other premises (Wohnung und andere Räume) of a person who is not suspected of a criminal offence may be searched only in order to apprehend a person charged with an offence, to investigate the evidence of an offence or to seize specific objects, provided always that there are facts to suggest that such person, evidence or object are to be found on the premises to be searched. Under Article 105 of the Code of Criminal Procedure, searches may only be ordered by a judge or, in case of urgency (Gefahr im Verzug), by the public prosecutor's office and its officials. If a search is carried out in residential or business premises without the judge or public prosecutor being present, a municipal officer or two inhabitants of the municipality in which the search is made shall be requested to attend.
VIOLATED_ARTICLES: 8


ITEMID: 001-111520
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF DUKIC v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1954 and lives in Prijedor.
6. Before the 1992-95 war in Bosnia and Herzegovina, the applicant lived in Bosanska Krupa in a socially owned flat over which he had an occupancy right (the concept of “socially owned flats” is described below).
7. On 14 October 2002 the competent administrative authority confirmed the applicant’s occupancy right over the flat in Bosanska Krupa, but stated, however, that the building in which the flat was located had been destroyed during the war.
8. On 25 November 2002 the applicant asked the local authority to allocate him a replacement flat. However, he did not receive any reply.
9. On 13 December 2004 the applicant initiated civil proceedings against the local authority before the Bosanska Krupa Municipal Court (“the Municipal Court”), seeking to be allocated a replacement flat. On 16 February 2005 the Municipal Court invited the local authority to submit a response to the applicant’s claim. As they failed to do so, the Municipal Court adopted a judgment on 25 March 2005 without a hearing, in accordance with section 182 of the Civil Procedure Act 2003 (see paragraph 18 below). It held that the applicant was entitled to a replacement flat because his occupancy right over a destroyed flat had been confirmed by the competent administrative authority. Therefore, it ordered the local authority to allocate him a suitable replacement flat in Bosanska Krupa, in lieu of the one in respect of which he had had an occupancy right and which had been destroyed during the war. Pursuant to the aforementioned provision of the Civil Procedure Act 2003, that judgment became final on the same date (see paragraph 18 below).
10. On 1 June 2005 the Municipal Court rejected the local authority’s request for restitutio in integrum. It would appear that they did not appeal to a higher court.
11. On 23 March 2006 the applicant initiated enforcement proceedings. On 4 May 2006 the Municipal Court refused to issue a writ of execution, stating that the judgment of 25 March 2005 was not enforceable because it did not contain any indication of the location and the surface area of the replacement flat. That decision was upheld by the Bihać Cantonal Court ("the Cantonal Court") on 20 December 2006.
12. On 16 March 2007 the applicant complained to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) of the non-enforcement of the judgment of 25 March 2005. On 12 June 2008 the Constitutional Court upheld the rulings of the lower courts and instructed the applicant to start new civil proceedings against the local authority in order to establish the latter’s precise obligation regarding the flat to be allocated to him. That decision was delivered to the applicant on 11 August 2008.
13. It would appear that the judgment of 25 March 2005 remains unenforced. It would also appear that the applicant did not start new civil proceedings against the local authority.
14. In the former Socialist Federal Republic of Yugoslavia practically all flats were built under the regime of “social ownership”. They were generally built by socially owned enterprises or other public bodies for allocation to their employees, who became “occupancy right holders”. The rights of both the allocation right holders (public bodies which nominally controlled the flats) and the occupancy right holders were regulated by law (the Housing Act 1984, which is still in force in Bosnia and Herzegovina).
15. In accordance with this Act, an occupancy right, once allocated, entitled the occupancy right holder to permanent, lifelong use of the flat against the payment of a nominal fee. When occupancy right holders died, their rights transferred, as a matter of right, to their surviving spouses or registered members of their family who were also using the flat (sections 19 and 21 of this Act). The concept of “social ownership” was abandoned during the 1992-95 war. As a result, socially owned flats were effectively nationalised (for more information about socially owned flats see Đokić v. Bosnia and Herzegovina, no. 6518/04, §§ 5-8, 27 May 2010).
16. The Restitution of Flats Act 1998 prescribed the procedure for repossession of pre-war flats and the rights of occupancy right holders. Section 4 of that Act provides that claims for repossession should be submitted to the competent administrative authority.
17. Section 36 of the Instruction on Implementation of the Restitution of Flats Act 1998 provides that the competent administrative authority shall decide on claims for repossession of flats which were damaged or destroyed during the war. A decision accepting such a claim should contain confirmation of the claimant’s occupancy right over the destroyed/damaged flat, as well as an instruction that the occupancy right holder is entitled to its repossession in the event that the flat is reconstructed (section 37 of the Instruction).
18. In accordance with section 182(1) of the Civil Procedure Act 2003, if a defendant who has been duly served with a plaintiff’s claim fails to submit a written response to it within the set time-limit, the court shall accept the claim, if it has been so requested, unless it is manifestly ill-founded. A claim is manifestly ill-founded if it evidently contravenes the facts on which it is based or if the facts from the claim contravene the evidence proposed by the plaintiff or well-known facts (section 182(2) of this Act). If a decision is taken in accordance with the aforementioned provision an appeal is not allowed (section 183(1) of this Act).
19. Section 27(1) of the Enforcement Procedure Act 2003 provides that a judgment is not enforceable unless, among other things, it contains an indication of the object of its enforcement.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-78023
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: VISNJEVAC v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Milenko Višnjevac, is a citizen of Bosnia and Herzegovina who was born in 1938 and lives in Sarajevo.
Prior to the dissolution of the former Socialist Federal Republic of Yugoslavia (“the SFRY”) the applicant deposited foreign currency in his bank account at the then office of a Slovenian bank in Sarajevo (Ljubljanska banka Glavna filijala Sarajevo). In Bosnia and Herzegovina, as well as in other successor States of the former SFRY, such savings are commonly referred to as “old” foreign-currency savings (for the relevant background information see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-...).
Following several unsuccessful attempts to withdraw his funds, the applicant initiated court proceedings against the Ljubljanska banka Sarajevo (at the relevant time, the legal successor of the Ljubljanska banka Glavna filijala Sarajevo).
On 22 November 1993 the Sarajevo Court of First Instance ordered the Ljubljanska banka Sarajevo to pay to the applicant, within 8 days, the full sum in his account (2,000 German marks), which amount included accrued interest. Default interest and legal costs were not awarded. The judgment entered into force on 19 January 1994.
After the Ljubljanska banka Sarajevo had failed to execute the judgment voluntarily, on 27 April 1999 the competent court issued an execution writ. It entered into force on 20 December 2001.
Meanwhile, the applicant filed an application with the Human Rights Chamber (the human-rights body set up by Annex 6 to the 1995 General Framework Agreement for Peace).
On 7 October 2002 the Human Rights Chamber found a violation of Article 6 of the European Convention on Human Rights and of Article 1 of Protocol No. 1 to that Convention arising from a failure to enforce the judgment of 22 November 1993. The Human Rights Chamber held the Federation of Bosnia and Herzegovina responsible and ordered it to ensure full enforcement by 11 January 2003. The applicant was also awarded 1,000 Bosnian markas (BAM) for non-pecuniary damage and BAM 200 for legal costs.
On 30 June 2003 the Human Rights Chamber, in a further decision, decided that the Federation of Bosnia and Herzegovina should pay the judgment debt instead of the Ljubljanska banka Sarajevo. The applicant was also awarded an additional amount of BAM 2,000.
The judgment debt (approximately 1,020 euros) and damages and legal costs awarded by the Human Rights Chamber (in total approximately 1,640 euros) have subsequently been paid to the applicant. The applicant has thus received approximately 2,660 euros in all. He has not indicated the date of the payment.
For the relevant domestic law and practice see the Jeličić decision cited above.


ITEMID: 001-91955
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: MAMUDOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Mefail Mamudovski, is a Macedonian national who was born in 1973 and lives in the village of Podgorci, in the former Yugoslav Republic of Macedonia.
On 4 October 2004 the Kumanovo Court of First Instance (“the trial court”) found the applicant, who was put on trial in absentia, Mr D.M. and Mr M.E. guilty of drug trafficking and sentenced them to terms of imprisonment of five to seven years. The applicant received the longest sentence. The court found that they had acted in concert, namely that Mr D.M. and Mr M.E. had loaded over 20 kg of heroin on to a truck in the former Yugoslav Republic of Macedonia in order to offer it for sale in Italy, where the applicant had temporary residence. The applicant's conviction was based on Mr M.E.'s statements given in the pre-trial proceedings and at the trial concerning his role in the crime. Mr D.M. denied knowing the applicant.
The applicant, who was legally represented, successfully requested a reopening of the proceedings after his return to the former Yugoslav Republic of Macedonia.
On 23 March 2006 the trial court set aside its decision of 4 October 2004, convicted the applicant of drug trafficking and imposed the same sentence. It examined the applicant and Mr D.M. It refused his request to hear evidence from Mr M.E. and to confront the latter with Mr D.M., however.
The applicant appealed on the grounds, inter alia, that the trial court had refused his request for examination of Mr M.E., even though his conviction had been based solely on the latter's testimony.
At a public hearing held on 16 June 2006, the Skopje Court of Appeal dismissed the applicant's appeal and upheld the trial court's decision. It found that Mr M.E.'s testimony had been clear and coherent, and that he had described in detail the sequence of events and the convicts' roles in the crime.
The applicant's request for a reopening of the proceedings was finally dismissed by the Skopje Court of Appeal on 17 June 2008.
Under section 403 of the Act a public prosecutor “may” (може) request the protection of legality (барање за заштита на законитоста) against a final court decision.
According to section 406 § 1 of the Act, the court has to confine itself to reviewing the alleged violations complained of by the complainant.
Section 408 § 1 provides that if the request is well founded, the court is either to overturn the final decision or to quash, entirely or in part, the decisions of the trial court and the appellate court, or the appellate court's decision alone, and refer the case back for a retrial or to the appellate court, or establish the violation itself.
Section 409 provides that if there is considerable doubt as to the relevant facts established in the judgment against which the request was lodged and accordingly it is not possible to review it on the merits, the court will quash it and order a retrial before the same or another trial court.
Section 411 §§ 1 and 2 provides that a person convicted by a final judgment and sentenced to imprisonment may request extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда, hereinafter “extraordinary review request”). The extraordinary review request may be submitted within thirty days of the date on which the convicted person was served with the judgment.
Under section 412, the Supreme Court decides extraordinary review requests.
Under section 413 § 1 (3), an extraordinary review request may be submitted in a case of a violation of the defence rights of the convicted person by the trial court or an infringement of the procedural rules in the appeal proceedings, if relevant to the adoption of a just decision.
Section 414 §§ 1 and 5 provides that an extraordinary review request may be lodged by the convicted person or his counsel. The trial court or the court which decides upon the extraordinary review request may postpone or stay the execution of the final court decision.
Section 415 stipulates, inter alia, that sections 406, 408 § 1 and 409 of the Act apply to extraordinary review requests.
a) The Supreme Court accepted convicts' extraordinary review requests and ordered retrial on the ground that law had been applied to their significant disadvantage. The court requested reassessment of evidence and reconsideration of the facts (Kvp.br.52/1998 of 28 April 1998 and Kvp.br.143/1999 of 5 October 1999).
b) A person was convicted, at first and second instance, for having undertaken three activities which provoked religious and ethnic hatred. The Supreme Court ruled partly in favour of the convict and excluded two of the counts for which he was convicted of (Kvp.br. 191/2005 of 13 September 2005).


ITEMID: 001-23421
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: BATKA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Zoltán Batka, is a Slovakian national, who was born in 1970 and lives in Veľké Kapušany. He was represented before the Court by Mr J. Malý, a lawyer practising in Bratislava. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák in that function.
The facts of the case, as submitted by the parties, may be summarised as follows.
In a judgment delivered on 30 May 1994 the Bratislava 2 District Court dissolved the marriage of the applicant and his wife. The court took note of the former spouses’ agreement under which their three children would be placed in the mother’s custody and that the applicant had undertaken to contribute to their maintenance.
On 20 November 1995 the applicant claimed before the Bratislava 5 District Court that he had not fathered two children to whom his former wife had given birth in December 1992 and in October 1993 respectively. He argued that he had neither lived with his former wife nor had he had sexual intercourse with her at the relevant time. He gave the particulars of a person with whom his former wife had lived since January 1992 and whom he considered to be the natural father of the children.
In her observations the applicant’s former wife proposed that the claim be dismissed. She admitted, however, that the applicant was not the natural father of one of the children.
The District Court dismissed the applicant’s claim on 22 November 1996. It found that the applicant had failed to submit it within six months after he had learned about the children’s birth as required by Section 57(1) of the Family Act. The judgment stated that the applicant could request the General Prosecutor to file an action with a view to having his paternity disproved pursuant to Section 62(1) of the Family Act.
The applicant filed such a request on 28 October 1998. He alleged that another person with whom his former wife had lived at the relevant time had admitted that he had fathered the two children. The applicant explained that he had failed to respect the time-limit laid down in Section 57(1) of the Family Act as, at the relevant time, he had not been informed about that provision and that he had been in a difficult material and psychological situation.
On 1 April 1999 the Bratislava Regional Prosecutor’s Office dismissed the applicant’s request. The letter stated that it had not been reliably shown that the applicant was not the natural father of the children. Such proof could only be obtained by a blood test. However, the applicant’s former wife was opposed to such a test, and public prosecutors had no power to order that she and the children should undergo it. The letter concluded that, in view of the above and given the lack of general interest in having the issue determined, there was no reason for proceeding pursuant to Section 62(1) of the Family Act.
On 22 April 1999 the applicant challenged the Regional Prosecutor’s conclusion before the General Prosecutor’s Office. He pointed out that his former wife had explicitly admitted that the applicant might not have fathered at least one of the children and argued that it was in the general interest to have the issue determined.
On 22 July 1999 a public prosecutor of the General Prosecutor’s Office informed the applicant that his former wife was still opposed to a blood test, and that it was therefore not possible to obtain reliable proof indicating that the applicant was not the natural father of the children. The public prosecutor concluded that no further action could be taken on the applicant’s request.
On 17 February 2000 the applicant asked the General Prosecutor’s Office to order an expert opinion in the context of which the hair and nails of the persons concerned should be analysed and their physiognomy compared.
On 9 March 2000 the General Prosecutor’s Office replied to the applicant that he was free to obtain such an expert opinion of his own initiative. The applicant was further informed that he could file a new request for proceedings to be brought pursuant to Section 62(1) of the Family Act in the event that he obtained reliable proof that he was not the natural father of the children.
On 21 December 1998 the applicant claimed that the maintenance which he had to pay in respect of the children born to his former wife be reduced.
On 6 July 1999 the Bratislava 2 District Court transferred the case to the Bratislava 5 District Court for reasons of jurisdiction.
On 15 November the Bratislava 5 District Court heard the parties. On 31 January 2000 the case was adjourned. As the applicant’s former wife was detained on remand, the District Court again adjourned the case on 17 April 2000.
On 9 October 2000 the Bratislava 5 District Court dismissed the action.
On 11 December 2000 the applicant appealed. Subsequently the applicant’s former wife filed a counter-claim, on behalf of the children, with a view to having the maintenance payable by the applicant increased. The District Court submitted the claim to the applicant for comments, apparently in the context of the same proceedings.
On 21 May 2001 the Bratislava Regional Court upheld the District Court’s decision to dismiss the applicant’s claim.
A hearing concerning the applicant’s former wife’s claim for the maintenance to be increased was held before the Bratislava 5 District Court on 21 November 2001. The applicant informed the court that he could not appear for financial reasons. The Bratislava 5 District Court therefore asked the Michalovce District Court to hear the applicant. The latter court returned the file to the Bratislava District Court on 1 February 2002.
On 3 July 2002 the Bratislava 5 District Court increased the maintenance due by the applicant. The applicant appealed.
The Bratislava Regional Court dismissed the applicant’s appeal on 13 March 2003.
Pursuant to Section 51(1) of the Family Act, the husband of a woman who gives birth to a child during the marriage or not later than three hundred days after its dissolution shall be considered the child’s father.
Section 57(1) provides that a husband can deny paternity before a court within six months after learning that his wife gave birth to a child.
Under Section 62(1), when the time-limit for denying paternity has expired, the General Prosecutor may file an action to disprove paternity provided that the determination of the issue is justified by the interests of society.
According to the practice of the public prosecutors, an action under Section 62(1) of the Family Act can only be filed when reliable proofs exist that the mother’s husband did not father the child.


ITEMID: 001-95015
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF DAYANAN v. TURKEY
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Art. 6-3-c+6-1;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1975.
5. On 30 January 2001, in the context of an operation carried out against the illegal armed organisation Hizbullah (“Party of God”), the applicant was arrested and taken into police custody.
6. The applicant signed a “form explaining the rights of arrested persons” and was notified of the charges against him. He was informed of his right to remain silent and to see a lawyer at the end of the police custody period. The police questioned him. The applicant exercised his right to remain silent.
7. A search was carried out at the applicant’s home. The police seized an audio-cassette. The transcript of the tape was worded as follows: “The tape is, for the most part, inaudible. There are incomprehensible speeches in Kurdish. It also contains songs, in which the word ‘sharia’ can be heard, but the sentences are also incomprehensible.”
8. Throughout this period, the applicant continued to remain silent.
9. On 3 February 2001 the applicant was placed in pre-trial detention by a judge of the Siirt Police Court.
10. In an indictment dated 9 February 2001, the applicant and three other persons were charged with being members of Hizbullah by the public prosecutor at the Diyarbakır State Security Court. The latter called for the applicant’s conviction on the basis of Article 168 § 2 of the Criminal Code.
11. The first hearing took place on 10 April 2001 before the Diyarbakir State Security Court (“the State Security Court”). The applicant, assisted by his lawyer, denied all the charges against him. He claimed that the audio-cassette seized from his home belonged to his mother and that he did not know what was on it.
12. At the hearing on 29 May 2001 the judges read out statements by five other persons charged in separate criminal proceedings concerning the same organisation, which named the applicant as one of the leading members of the organisation. The accused were also shown seized documents pertaining to the organisation. Counsel for the applicant addressed the court and argued that the elements constituting the offence had not been made out. He claimed that the applicant should be tried for aiding and abetting an illegal organisation on the basis of Article 169 of the Criminal Code, and not for belonging to such an organisation. He did not ask to call any witnesses.
13. During the hearings of 17 July, 11 September and 6 November 2001 the applicant’s lawyer repeated his previous submissions and requested that his client benefit from the provisions of the Amnesty Act (Law no. 4616).
14. The applicant argued his case at the hearing of 4 December 2001. He claimed to have no ties with the organisation in question and asked to be acquitted. His lawyer also addressed the court and referred once again to the defence pleadings that he had filed during the trial, requesting, under Law no. 4616, a stay of the proceedings brought against his client.
15. At the end of the hearing, the State Security Court sentenced the applicant to twelve years and six months’ imprisonment on the basis of Article 168 § 2 of the Criminal Code.
16. In support of its decision, the court took into account all the reports and documents in the case file. In particular, it gave consideration to the statements naming the applicant as one of the leading members of the organisation. It also based its decision on a document which showed the applicant’s position within the organisation. The court found it established, among other things, that the applicant was an active member of the organisation.
17. The applicant’s lawyer lodged an appeal on points of law against the judgment of 4 December 2001 on behalf of his client.
18. On 18 March 2002 the Principal Public Prosecutor at the Court of Cassation submitted his opinion on the merits of the appeal. This opinion was not sent to either the applicant or his lawyer.
19. Following a hearing on 27 May 2002, the Court of Cassation upheld all the provisions of the impugned judgment. Its judgment was delivered on 29 May 2002 with neither the applicant nor his lawyer present.
20. On 19 August 2002 the full text of the Court of Cassation’s judgment was added to the case file kept at the registry of the Diyarbakır State Security Court and was thus made available to the parties.
21. The relevant provisions of Turkish law can be found in, among other judgments, Salduz v. Turkey ([GC], no. 36391/02, §§ 27-31, 27 November 2008) and Göç v. Turkey ([GC], no. 36590/97, § 34, ECHR 2002-V).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-72584
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF HELLBORG v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Violation of Art. 6-1 (lack of oral hearing);Violation of Art. 6-1 (length of proceedings);Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 8. The applicant was born in 1940 and lives in Akarp. He is the owner of a property known as “Humanisten 1” located in the city of Lund, in the south of Sweden. On the property there is a one-family house, which was built in 1934.
9. The applicant inherited the property from his father, who died in 1991. The area where the property is located was regulated by a city plan (stadsplan) which, in accordance with the provisional regulations under the new Planning and Building Act of 1987 (Plan- och Bygglagen, - hereinafter “the 1987 Act”), became valid as a detailed development plan (detaljplan). In order to facilitate the implementation of the detailed development plan, a more specific “property plan” (fastighetsplan) was adopted with respect to Humanisten 1.
10. The applicant’s late father had applied on 13 June 1989 to the Building Committee (byggnadsnämnden) of Lund for tentative approval (förhandsbesked) of a plan to divide Humanisten 1 and build a new one-family house. The purpose of such an approval, issued under Chapter 8, section 34 of the 1987 Act, was to give a property owner who was planning a building project for which the grant of a building permit was uncertain the possibility to obtain an advance assessment of whether the planned measures may be permitted at all, thereby avoiding unnecessary project work and costs. In assessing an application for a building permit made within two years after the grant of tentative approval, the Building Committee was bound by the determinations made in that approval.
According to the detailed development plan in force, only one main building was allowed on the existing property plot (the applicant’s plot corresponded to his property). The request for tentative approval was motivated by the father’s wish to build a house suited to his age, as he had difficulties in walking up and down the stairs of his current home.
11. In February 1990 the Building Committee decided to postpone its reply to the request until a new detailed development plan for the area had acquired legal force, but only until 13 June 1991. Subsequently, on 12 June 1991 the City Building Director (Stadsbyggnadsdirektören) adopted a new detailed development plan for Humanisten 1 by which a division of the property was prohibited. Accordingly, the Building Committee, on 14 August 1991, informed the applicant that he could not expect to be granted a building permit for a new one-family house and therefore did not give tentative approval for the project.
12. As the new owner of the property, the applicant appealed against both decisions to the County Administrative Board (länsstyrelsen, - hereinafter “the Board”) of the County of Malmöhus, claiming that the City Building Director had not been competent to adopt a new detailed development plan since the plan was contentious. He claimed that the refusal to grant tentative approval was also based on false assumptions. On 12 March 1992 the Board, which agreed with the applicant, quashed the City Building Director’s decision to adopt the plan and, on 16 March 1992, quashed the Building Committee’s decision and remitted the matter to the Committee for a new examination.
13. On 15 April 1992 the Building Committee granted the applicant a tentative approval, referring to his father’s initial application (of June 1989) for a tentative approval of a plan to divide the plot – Humanisten 1 – and to build a new one-family house. The decision moreover referred to the County Administrative Board’s decision (of 12 March 1992) to quash the detailed development plan and the earlier refusal of a tentative approval. Without expressing any conditions or reservations, the decision stated that the applicant could expect a building permit for a new one-family house and that this applied provided that an application for a building permit was submitted to the Building Committee within two years from the date of the decision. Finally, it stated that the tentative approval did not imply a right for the applicant to start the construction.
The Building Committee referred the matter to the Land Survey (lantmäteri) of Lund to prepare the question of the division of the plot (tomtdelning).
14. On 9 October 1992 the applicant applied for a building permit. After the matter had been considered by the relevant road network and energy authorities, the applicant submitted new plans on 16 November 1992. It appears that those proceedings were at a standstill until January 1997 (see section 4 below).
15. At the beginning of March 1993 the Land Survey recommended that the property plan for Humanisten 1 be repealed in order to facilitate a division of the property enabling the applicant to construct a new house on the resulting new plot. The Land Survey observed that the Building Committee had, with binding effect, made the assessment that the addition of a new one-family house would be consistent with the detailed development plan. A new property plan would not be required; repeal of the existing property plan would be sufficient and the division of the property would be consistent with the detailed development plan and be suitable for its purpose.
Several of the applicant’s neighbours opposed the measure with reference to the special character of the neighbourhood.
On 17 March 1993 the Building Committee followed the Land Survey’s suggestion and repealed the property plan for Humanisten 1.
16. The owners of two neighbouring properties appealed against the decision to the Board, claiming that the neighbourhood was worthy of preservation due to its special character and that new buildings would spoil the area. The Board visited the area before deciding on 24 September 1993 to reject the appeal.
17. The neighbours appealed to the Government, invoking the same grounds as before the Board. The applicant also submitted his observations. On 14 November 1996 the Government quashed the Board’s decision to repeal the property plan with, inter alia, the following reasoning:
“The Government find that the decision to repeal the property plan for Humanisten 1 ought to be considered in its context, namely to make possible a division of the property with the intention of constructing one more family house.
The Government observe that the entire block has long been occupied by buildings in accordance with the city plan and plot divisions. The block has 10 plots, the sizes of which vary between approximately 750 m² and 1100 m². .... The Government find that the concentration which will be the result if Humanisten 1, today 810 m², were to be divided into two properties and a new building were to be constructed, involves a not inconsiderable change to the complainants’ immediate surroundings. Nor can such a change be considered to comply with the shape that the block has been given through the city plan and the plot divisions. .... The Government thus find that the suitability of the intended change of the property and the development conditions within the block ought to be examined through a new detailed development plan for the area in which the size and situation of the buildings can also be regulated to a sufficient extent. In view of this and everything else which has emerged in the case, the Government find that the decision to repeal the property plan should be quashed.”
18. The applicant applied to the Supreme Administrative Court (Regeringsrätten) for judicial review under the 1988 Act on the Judicial Review of Certain Administrative Decisions (Lagen om rättsprövning av vissa förvaltningsbeslut - hereinafter “the 1988 Act”), submitting that, since the Building Committee’s tentative approval was binding on the examination of an application for a building permit, it effectively precluded an examination on the merits in the present case. Moreover, as the Building Committee had previously considered the suitability of dividing the property when it granted the tentative approval, it was not legally correct of the Government to consider the suitability yet again. The Government’s conclusion that the case should be reviewed through a new detailed development plan therefore lacked a legal basis.
The applicant further requested that an oral hearing be held in the case. In a decision of 17 March 1998 the Supreme Administrative Court refused the applicant’s request on the ground that the case could be examined and decided without holding an oral hearing. The applicant was given one month to submit additional written observations.
19. On 4 September 1998 the Supreme Administrative Court, unanimously, found that the Government’s decision was not unlawful and confirmed it. The court held:
“According to section 1 of the [1988 Act] the Supreme Administrative Court must examine if the Government’
According to Chapter 1, section 6, of the [1987 Act] land may only be used for development if it is, from a public interest point of view, suitable for its purpose. The conditions on which an examination of suitability should be carried out through the adoption of a detailed development plan - and not solely in a matter concerning a building permit or a tentative approval - are specified in Chapter 5, section 1, paragraph 1, of the [1987 Act]. Thus, according to point 2 of the aforementioned provision, a detailed development plan becomes relevant when a new single building is to be constructed, the use of which will have significant influence on its surroundings. The Government’s assessment that the suitability of the intended change of the property and the development conditions within the block Humanisten ought to be reviewed through a new detailed development plan for the area, is within the scope of jurisdiction of the authorities in planning matters. Hence, the Supreme Administrative Court finds that the decision to quash the lower instances’ decisions regarding the property plan does not conflict with any legal rule in the manner claimed by the applicant. Nor does the examination show that the decision, in any other manner, is contrary to any legal rule. It should therefore be upheld.”
20. A request by the applicant for re-opening of the case was refused by the Supreme Administrative Court on 10 April 2002.
21. In the meantime, the Building Committee, in June 1995, adopted an amended detailed development plan which effectively prohibited a division of the applicant’s property, and the construction of another building on it. Upon appeal, the Board quashed the decision on the ground that it should have been decided by the Municipal Council (kommunfullmäktige) of Lund. After renewed examination by the Municipal Council, it adopted the detailed development plan on 27 February 1997. The applicant appealed against the decision to the Board, which on 18 January 1999 upheld the Council’s decision. It found that the public interest in protecting the cultural heritage of the neighbourhood outweighed the applicant’s private interest. The applicant made a further appeal to the Government, which was rejected on 23 June 2004.
22. On 13 February 1997, after the Office of the Town Architects had given its opinion and the applicant had commented, the Building Committee decided to reject his request of 9 October 1992 for a building permit.
On 20 February 1997, the applicant appealed against the above decision to the County Administrative Board. On 10 February 1999, after having granted the applicant several postponements from 15 May 1998 to 25 January 1999, the Board quashed the Committee’s rejection and referred the matter back for a new consideration.
23. On 23 March 1999 the Office of the Town Architects served the Building Committee’s decision of 15 April 1992 to grant the applicant tentative approval on the applicant’s neighbours, several of whom brought proceedings in April 1999 to have the measure quashed. They claimed that, although they were affected by the decision, the Committee had failed to hear them in the case or inform them about the decision.
In a decision of 31 March 2000, the Board first found that the neighbours were entitled to appeal against the tentative approval and was satisfied that they had done so within the required time-limit. Although they ought to have been aware of the tentative approval in connection with the property plan issue, the decision had been formally served or notified to them only in March 1999. The Board quashed the Building Committee’s 15 April 1992 decision on the grounds that the tentative approval was contrary to the existing property plan and detailed development plan and the neighbours should have been given the opportunity to express their views on the matter before it was decided.
24. On 3 March 1999 the Building Committee appealed against the Board’s above-mentioned decision of 10 February 1999 to the County Administrative Court (länsrätten) of the County of Skåne. The applicant obtained extensions of time-limits for filing his written submissions in April and May 1999, and in September he asked the court to give priority to the case.
25. Following the Board’s above-mentioned decision of 31 March 2000 on the tentative approval, the applicant appealed against this decision to the County Administrative Court. The latter granted him four extensions between 5 May and 23 August 2000 of the time-limits for specifying his appeal grounds.
26. The County Administrative Court examined both of the above appeals concurrently and on 11 October 2000 it delivered two judgments, one on each appeal.
In the first judgment the County Administrative Court rejected the applicant’s appeal and upheld the Board’s reasoning.
In the second judgment it held that, since it had confirmed the Board’s decision, there no longer existed a tentative approval which was binding on the Building Committee. Consequently, the Committee’s appeal against the Board’s decision of 10 February 1999 should be granted and the matter referred back to the Board for further consideration.
27. In November 2000 the applicant appealed against both judgments to the Administrative Court of Appeal (kammarrätten) in Gothenburg.
In the appeal concerning the tentative approval, the Administrative Court of Appeal granted him seven extensions until 8 May 2001 for the submission of his appeal grounds. As to his appeal concerning the building permit, the applicant was granted two such extensions, also until 8 May 2001.
In two separate decisions of 17 December 2001, the Administrative Court of Appeal refused the applicant leave to appeal in each case.
28. In February and March 2002 the applicant appealed to the Supreme Administrative Court.
The latter granted him numerous extensions until 29 August 2003 of the time-limits for filing written submissions on the appeal concerning the building permit. On 7 January 2004 the Supreme Administrative Court ordered him to complete his submissions.
Concurrently with the above, he was also granted a number of extensions for the filing of his appeal submissions, until 17 December 2003 in the case concerning the tentative approval. On that date the Supreme Administrative Court ordered him to complete his observations.
In respect of both appeals, reminders were served on him in February and March 2004.
On 15 September 2004 the Supreme Administrative Court refused the applicant leave to appeal in both cases.
29. In separate proceedings in 1997, the applicant requested the District Court (tingsrätten) of Lund to declare that the Municipality of Lund was liable to pay him compensation for both actual and potential damage caused by the Municipality’s refusal to grant his request for a building permit despite having granted him an unconditional tentative approval which was binding. The Municipality denied responsibility.
30. By judgment of 13 October 1998 the District Court declared that the Municipality was liable to compensate the applicant for both actual and potential damage caused by its refusal to grant the applicant a building permit. The Municipality was further liable to pay his legal costs. The District Court took note of the Municipality’s argument that the tentative approval was conditional upon an amendment to the property plan, and that the applicant was aware of the need to modify the property plan and ought to have understood that the positive tentative approval did not mean that he would be able to build without an amendment to the property plan. In the view of the District Court the fact that a claimant was aware that an amendment to the property plan was needed in order to grant a building permit did not dispense the Building Committee from specifically reviewing and justifying its position as to whether the desired measure was authorised by existing plans. What the applicant may have known about existing plans was therefore of no significance in this context. Since the applicable plans did not allow the grant of a building permit and since an amendment to the plan could not be a condition attached to a tentative approval, such approval should not have been granted. Nor was such knowledge significant for the assessment of his application for a building permit, refused on 13 February 1997. On the whole, the refusal was erroneous. The District Court found that the Building Committee had disregarded a clear and unambiguous provision in the 1987 Act, i.e. Chapter 8 section 34, which stated that a tentative approval was binding if an application for a building permit was made within two years from the date on which the tentative approval was granted. Moreover, the District Court found it remarkable that the Building Committee had taken almost four and a half years to reject the request for a building permit since the average time to process such a request was six to eight weeks, according to testimony given by the city architect. Thus, the court considered that the Building Committee’s handling of the case had involved such fault and neglect in its exercise of public authority that the Municipality was liable to pay compensation.
31. The Municipality appealed to the Court of Appeal (hovrätten) of Skåne and Blekinge, which on 25 October 2000 upheld the lower court’s judgment in full. As no further appeal was lodged, the Court of Appeal’s judgment acquired legal force on 23 November 2000.
32. In 2001 the applicant, invoking the above declaratory judgment, instituted civil proceedings against the Municipality requesting compensation in an amount of SEK 3,000,000 for the damage he had suffered due to the refusal to grant him the building permit. He claimed that this damage corresponded to the market value of the part of his property upon which he would have built the house. The Municipality contested the request.
33. In a judgment of 4 March 2003, the District Court of Lund noted that the proceedings relating to the building permit were still pending and that it was improbable that he would be granted such a permit. However, even if he were to be granted a permit, the decision would most likely be quashed on appeal. Thus, it rejected the applicant’s claim on the ground that he had not shown that he had suffered any actual damage as a consequence of the Municipality’s fault and neglect. The applicant appealed against the judgment to the Court of Appeal.
34. By a judgment of 19 December 2003, the Court of Appeal upheld the District Court’s judgment of 4 March 2003, sharing the latter’s view that the applicant had failed to show that a building permit granted by the Municipality would have stood after the review by higher instances. The Municipality could reasonably argue that the question of damage could not therefore be assessed only on the basis of the fact that the Municipality was formally obliged to grant the applicant a building permit. It found that the applicant had not been able to demonstrate that the consideration of his application for a tentative approval by the Municipality of Lund, while blameworthy, had led to his being denied a definite right to divide and build a new house on his property. Nor had he demonstrated that the Municipality’s handling of his case had caused the damage for which he had claimed compensation.
35. The applicant appealed against the judgment to the Supreme Court, which on 23 May 2005 refused the applicant leave to appeal.
36. The 1987 Act entered into force on 1 July 1987 and contains provisions about the planning of land and water areas as well as buildings. Their purpose is to promote the development of a society characterised by equal and good living conditions for people today and for future generations, whilst having due regard to the freedom of the individual (Chapter 1, section 1).
The provisions of the 1987 Act which are relevant to the present case read as follows:
“Chapter 1 - Introductory provisions
Section 5
When issues are examined in accordance with this Act, consideration shall be given to both public and private interests unless otherwise provided.
Section 6
Land shall only be used for development if it is suitable for this purpose from the public interest point of view. The examination of suitability is carried out in connection with a planning procedure or during the examination of an application for a building permit or tentative approval....
Chapter 5 - Detailed development plans and area regulations
Section 1
The examination of the suitability of the site for development and the regulation of the manner of design of the area of construction are to be carried out in accordance with a detailed development plan, which applies to
1. new continuous developments;
2. new individual buildings, the use of which will have significant impact on the surroundings or which are to be located in an area where there is considerable demand for building sites, or where the examination of the proposed building cannot be carried out in connection with the review of the application for a building permit or tentative approval....
Chapter 8 - Building permit, demolition permit and land permit
Section 34
Upon application, the Building Committee shall give tentative approval for a particular measure, requiring a building permit, to be permitted on a designated site.
When a tentative approval is granted, it shall contain the necessary conditions. The tentative approval is binding if an application for a building permit is made within two years from the date when the tentative approval was granted.
If an application for a building permit is not made within the time specified in the second paragraph, the tentative approval will cease to be valid. ...”
37. The 1988 Act was introduced as a result of the European Court of Human Rights’ findings in several cases, notably against Sweden, that lack of judicial review of certain administrative decisions infringed Article 6 § 1 of the Convention. It was enacted as a temporary law to remain in force until 1991; its validity has subsequently been extended, as from 1 July 1996 without any limitation in time.
Pursuant to section 1 of this Act, a person who has been a party to administrative proceedings before the Government or any other public authority may, in the absence of any other remedy, apply to the Supreme Administrative Court, as the first and only court, for review of any decisions in the case which involve the exercise of public authority vis-à-vis a private individual. The kinds of administrative decisions covered by the Act are further defined in Chapter 8, sections 2 and 3 of the Instrument of Government (regeringsformen), to which section 1 of the 1988 Act refers. Section 2 of the Act specifies several types of decisions falling outside its scope, none of which is relevant in the instant case.
In proceedings brought under the 1988 Act, the Supreme Administrative Court examines whether the contested decision “conflicts with any legal rule” (section 1 of the 1988 Act). According to the preparatory work to the Act, as reproduced in Government Bill 1987/88:69 (pp.23-24), its review of the merits of the cases concerns essentially questions of law but may, in so far as relevant for the application of the law, extend also to factual issues; it must also consider whether there are any procedural errors which may have affected the outcome of the case.
If the Supreme Administrative Court finds that the impugned decision is unlawful, it must quash it and, where necessary, refer the case back to the relevant administrative authority.
The procedure before the Supreme Administrative Court is governed by the Administrative Procedure Act 1971 (förvaltningsprocesslagen). It is in principle a written procedure, but the Supreme Administrative Court could decide to hold an oral hearing on specific matters if this was likely to assist it in its examination of the case or to expedite the proceedings (section 9). As from 1 July 1996 (1996:420), section 3a of the 1988 Act provides:
“The [Supreme Administrative] Court shall hold an oral hearing if this has been requested by the person seeking judicial review and it is not manifestly unnecessary.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1