ITEMID: 001-57770
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF B. v. FRANCE
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (six month period);Violation of Art. 8;Not necessary to examine Art. 3;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;John Freeland;N. Valticos;R. Pekkanen
TEXT: 9. The applicant, who is a French citizen, was born in 1935 at Sidi Bel Abbès, Algeria, and was registered with the civil status registrar as of male sex, with the forenames Norbert Antoine.
10. Miss B., the eldest of five children, adopted female behaviour from a very early age. She was considered as a girl by her brothers and sisters and is said to have had difficulty coping with a wholly segregated scholastic environment.
She completed her military service in Algeria, as a man, and her behaviour at the time was noticeably homosexual.
After spending five years teaching reading and writing to young persons from Kabylia, she left Algeria in 1963 and settled in Paris, working in a cabaret under an assumed name.
11. Distressed by her feminine character, she suffered from attacks of nervous depression until 1967, when she was treated in hospital for a month. The doctor who treated her from 1963 observed a hypotrophy of the male genital organs and prescribed feminising hormone therapy, which rapidly brought about development of the breasts and feminisation of her appearance. The applicant adopted female dress from then on. She underwent a surgical operation in Morocco in 1972, consisting of the removal of the external genital organs and the creation of a vaginal cavity (see paragraph 18 below).
12. Miss B. is now living with a man whom she met shortly before her operation and whom she at once informed of her situation. She is no longer working on the stage, and is said to have been unable to find employment because of the hostile reactions she aroused.
13. Miss B., wishing to marry her friend, brought proceedings against the Libourne public prosecutor (procureur de la République) on 18 April 1978, asking the court
"to hold that, registered in the civil status register of [her] place of birth as of male sex, [she was] in reality of feminine constitution; to declare that [she was] of female sex; to order rectification of [her] birth certificate; to declare that [she should] henceforth bear the forenames Lyne Antoinette".
14. On 22 November 1979 the Libourne tribunal de grande instance dismissed her action for the following reasons:
"...
Whereas it is clear from the experts’ report and is moreover not contested that [B.], correctly registered at birth as of male sex, developed towards female morphology, appearance and behaviour, apparently because of congenital hypogenesis ... and psychological tendencies following hormone treatment and surgical operations;
Whereas it is thus apparent that the change of sex was intentionally brought about by artificial processes;
Whereas the application of Norbert [B.] cannot be granted without attacking the principle of the inalienability of the status of individuals;
..."
15. The applicant appealed, but on 30 May 1985 the Bordeaux Court of Appeal upheld the judgment of the lower court. The court said inter alia:
"... contrary ... to Mr [B.’s] contention, his present state is not ‘the result of irreversible innate factors existing before the operation and of surgical intervention required by therapeutic necessities’, nor can it be considered that the treatment voluntarily undergone by Mr [B.] led to the disclosure of his hidden true sex, but on the contrary it indicates a deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [B.’s] biological development.
..."
16. Miss B. appealed to the Court of Cassation. Her single ground of appeal was as follows:
"This appeal complains that the challenged judgment dismissed the appellant’s application for rectification of civil status,
On the grounds that if, notwithstanding the principle of the inalienability of the status of individuals, an amendment can be made where ‘irreversible necessity, independent of the individual, compels this’, which may be the case with real transsexuals, such amendment can be approved only after a long period of observation and reflection prior to the operation stage, during which a qualified medical team can ‘gradually reach the conclusion that the situation is genuine and irreversible’; that in this case ... ‘no form of psychological or psychiatric treatment was tried’; that ‘the first doctor who prescribed hormone treatment did not carry out any protracted observation, no guarantee of such observation was given before the surgical operation carried out abroad’; that ‘the apparent change of sex was brought about solely by Mr [B.’s] intention and it is clear that even after the hormone treatment and surgical operation he still shows the characteristics of a person of male sex whose external appearance has been altered thanks to cosmetic plastic surgery’; that, therefore, far from having led to the ‘disclosure of his hidden true sex’, the treatment undergone by him indicates a ‘deliberate intention on his part without any other treatment having been tried and without the operations having been necessitated by Mr [B.’s] biological development’ ...;
Whereas sexual identity, which is a fundamental right of the individual, is constituted not only by biological components but also by psychological ones; that by considering surgery undergone by a transsexual to bring his anatomy into harmony with his being as inoperative merely because he still kept his male genetic and chromosomal characteristics, and by not undertaking any investigation of his contradictory psychological history - investigation which was not prevented by the lack of psychotherapy of the patient before the operation, bearing in mind the expert report produced for the court - the Court of Appeal deprived its decision of any legal foundation with respect to Article 99 of the Civil Code.
..."
The applicant’s supplementary pleadings opened with the following "introduction":
"The Court of Cassation now has a fresh chance to let transsexuals enter into normality, by allowing them rectification of their civil status.
The solution is legally possible since the European Commission of Human Rights has stated sexual identity to be a fundamental right of the individual.
It is humanly necessary in order for people who are not medically perverted but are merely victims of aberrations of nature finally to be able to live in harmony with themselves and with the whole of society."
It also included an argument relating to the Convention:
"VI. In the European legal system this argument [accepting the transsexual’s right to recognition of his true identity] has been entirely accepted, thus making up for the absence of a French statutory provision on the point.
The European Commission of Human Rights, when applied to by a transsexual whose request had been dismissed by a final judgment of the Brussels Court of Appeal, considered that by refusing to take account of changes which had occurred lawfully Belgium had failed to observe the respect due to the applicant’s private life within the meaning of Article 8 para. 1 (art. 8-1) of the European Convention on Human Rights; and that by refusing to take into account ‘his sexual identity resulting from his change of physical form, his psychical make-up and his social role ... Belgium had treated the applicant as an ambiguous being, an appearance’ ...
This follows from a report dated 1 March 1979, which recognises that sexual identity is a fundamental right of the individual.
France has expressly subscribed thereto by issuing a declaration [recognising] the right of individual petition to the European Commission of Human Rights ..."
17. The appeal was dismissed by the First Civil Chamber of the Court of Cassation on 31 March 1987 for the following reasons:
"Whereas, according to the findings of the court below, Norbert [B.] submitted an application to the tribunal de grande instance for a declaration that he was of female sex, that his birth certificate should consequently be amended, and for authorisation henceforth to bear the forenames Lyne Antoinette; whereas his application was dismissed by the confirmatory judgment under appeal;
Whereas Norbert [B.] complains that the Court of Appeal (Bordeaux, 30 May 1985) so decided despite the fact that sexual identity is constituted not only by biological components but also by psychological ones, so that by taking a decision without carrying out any investigation of his psychological history it deprived its decision of any legal foundation;
Whereas, however, the court of second instance found that even after the hormone treatment and surgical operation which he underwent Norbert [B.] continued to show the characteristics of a person of male sex; whereas it considered that, contrary to the contentions of the person in question, his present state is not the result of elements which existed before the operation and of surgical intervention required by therapeutic necessities but indicates a deliberate intention on the part of the person concerned; whereas it thus justified its decision in law; whereas the ground of appeal can therefore not be upheld;
..." (Bulletin des arrêts de la Cour de cassation, chambres civiles (Bull. civ.) I, 1987, no. 116, p. 87)
18. No legal formality or authorisation is required for hormone treatment or surgery intended to give transsexuals the external features of the sex they wish to have acknowledged.
It has been possible for surgical operations to take place in France since 1979 subject to medical control; before then they were carried out abroad. There is no objection by the National Council of the Medical Association, and the costs of some of these operations are borne by the social security service.
Persons who commit intentional attacks on the physical integrity of a human being are criminally liable, as are their accomplices, but although prosecutions are possible, they are exceptional in cases of transsexualism.
19. Events which take place during the lives of individuals and affect their status give rise to a marginal note on the birth certificate or are transcribed on to the certificate: acknowledgement of an illegitimate child (Article 62 of the Civil Code), adoption (Article 354), marriage (Article 75), divorce (Article 1082 of the new Code of Civil Procedure), and death (Article 79 of the Civil Code). Civil status registrars are asked to leave sufficient space for these purposes (section 3 of Decree no. 62-921 of 3 August 1962 amending various regulations relating to civil status).
20. Under the first paragraph of section 8 of the Decree of 3 August 1962,
"Civil status registers dating less than one hundred years back may be consulted directly only by public officials authorised to do so and persons with the written permission of the procureur de la République".
21. However, "the public nature of civil status documents shall be ensured by the issue of full copies or extracts" (same section, second paragraph).
Full copies of a birth certificate can be issued only to the person concerned, his ascendants or descendants, his spouse, his legal representative, the procureur de la République or any person authorised by him (section 9, first and third paragraphs). However, any person can obtain an extract of another person’s birth certificate (section 10).
The information which appears on an extract of birth certificate is subject to certain restrictions. Thus in the case of legal adoption, such an extract must not include any reference to the adoption order or the family of origin (section 12).
In addition, the Decree of 26 September 1953 on the simplification of administrative formalities provides that in the case of procedures and investigations carried out by public bodies, services and offices or by undertakings, organisations and health insurance institutions under State supervision, extracts of civil status documents shall be replaced by production of a civil status certificate. Such a certificate does not indicate sex.
22. The following provisions govern the rectification of civil status documents:
"The birth certificate shall state the day, time and place of birth, the sex of the child and the forenames given, the forenames, surnames, ages, occupations and addresses of the father and mother and, if appropriate, those of the person reporting the birth. If either or both of the father and mother of an illegitimate child are not named to the civil status registrar, no mention relating thereto shall be made in the registers.
If the certificate drawn up relates to an illegitimate child, the registrar shall within one month give notice thereof to the judge of the tribunal d’instance for the district of the birth.
The forenames of a child appearing on his birth certificate may in the case of a legitimate interest (intérêt légitime) be amended by an order of the tribunal de grande instance made on application by the child or, during his minority, on application by his legal representative. The order shall be made and published subject to the conditions provided for in Articles 99 and 101 of this Code. The addition of forenames may likewise be ordered."
"Rectification of civil status documents shall be ordered by the president of the court.
Rectification of declaratory or supplementary judgments relating to civil status documents shall be ordered by the court.
An application for rectification may be brought by any person concerned or by the procureur de la République; the latter shall be obliged to act ex officio where the error or omission relates to an essential indication in the document or in the decision taking its place.
The procureur de la République having local jurisdiction may carry out administrative rectification of merely material errors and omissions in civil status documents; for this purpose he shall give the relevant instructions directly to those having custody of the registers."
"No citizen may bear a surname or forename other than those stated in his birth certificate; those who have abandoned them shall be obliged to resume them."
23. A large number of French tribunaux de grande instance (T.G.I.) and courts of appeal (C.A.) have granted applications for amendment of entries in civil status registers relating to sex and forenames (see inter alia T.G.I. Amiens, 4.3.1981 ; Angoulême, 18.1.1984; Créteil, 22.10.1981; Lyon, 31.1.1986; Montpellier, 6.5.1985; Nanterre, 16.10.1980 and 21.4.1983; Niort, 5.1.1983; Paris, 24.11.1981, 16.11.1982, 9.7.1985 and 30.11.1988; Périgueux, 10.9.1991; Saint-Etienne, 11.7.1979; Strasbourg, 20.11.1990; Thionville, 28.5.1986; Toulouse, 25.5.1978; C.A. Agen, 2.2.1983; Colmar, 15.5.1991 and 30.10.1991; Nîmes, 2.7.1984; Paris, 22.10.1987; Toulouse, 10.9.1991; Versailles, 21.11.1984) or relating to forenames only (T.G.I. Lyon, 9.11.1990; Metz, 6.6.1991; Paris, 30.5.1990; Saint-Etienne, 26.3.1980; C.A. Bordeaux, 18.3.1991). Some of these decisions specified that the amendment of civil status should not have retroactive effect, in order not to affect earlier legal acts or situations. The great majority of them have become final and binding, the prosecutor’s office not having exercised its right to appeal.
Contrary rulings have, however, been given by other courts (see inter alia T.G.I. Bobigny, 18.9.1990; Paris, 7.12.1982; C.A. Bordeaux, 13.6.1972 and 5.3.1987; Lyon, 19.11.1987; Nancy, 5.4.1973, 13.4.1977 and 22.4.1982; Nîmes, 10.3.1986, 7.6.1986, 7.5.1987 and 2.7.1987; Rouen, 8.10.1986 and 26.10.1988).
24. The Court of Cassation has had occasion to give decisions on this point some twelve times from 1975 to 31 May 1990.
In two judgments of 16 December 1975 (Bull. civ. I, no. 374, p. 312, and no. 376, p. 313; Recueil Dalloz Sirey (D.S.) 1976, p. 397, note Lindon; Juris-Classeur périodique (J.C.P.) 1976, II, 18503, note Penneau) it ruled out any possibility of taking into account a change of sexual attributes following hormone treatment and surgery which the person concerned had voluntarily undergone (first judgment), but indicated that the courts could take into account involuntary morphological changes following treatment carried out in a concentration camp during the second world war (second judgment).
On 30 November 1983 (Bull. civ. I, no. 284, p. 253; D.S. 1984, p. 165, note Edelman; J.C.P. 1984, II, 20222, submissions of Mr Advocate General Sadon) it dismissed an appeal which had been brought against a judgment refusing to allow a change of sex despite a favourable medical report, as "the Court of Appeal [had] found that despite the operations undergone by her, Nadine V. was not of male sex".
Two further judgments were given by the Court of Cassation on 3 and 31 March 1987 (Bull. civ. I, no. 79, p. 59, and no. 116, p. 87; D.S. 1987, p. 445, note Jourdain). The latter judgment relates to the present case (see paragraph 17 above). In the former, the court had to rule on the position of a transsexual who was married and the father of a child. While acknowledging that genetically he was still a man, the Nîmes Court of Appeal had on 2 July 1984 ordered rectification of his birth certificate and change of forenames. On appeal by the procureur’s office the Court of Cassation quashed the judgment on the grounds that its findings of fact did not show that there was a change of sex caused by a factor extraneous to the will of the person concerned.
On 7 March 1988 (Bull. civ. I, no. 176, p. 122), 7 June 1988 (Gazette du Palais (G.P.) 7-8 June 1989, jurisprudence, p. 4) and 10 May 1989 (Bull. civ. I, no. 189, p. 125) the court dismissed appeals by transsexuals who had voluntarily undergone hormone treatment only, on the grounds that the Court of Appeal had found that the said treatment was of voluntary nature and had been entitled to regard as insufficient the psychological and social factors relied on.
On 21 May 1990 the Court of Cassation dealt in the same way with four appeals (J.C.P. 1990, II, 21588, with report by Mr Massip and submissions of Mrs Advocate General Flipo). It stated in particular that:
"... transsexualism, even where medically acknowledged, cannot be regarded as a true change of sex, as the transsexual, although having lost certain characteristics of his original sex, has not thereby acquired those of the opposite sex; ..."
In the fourth of these appeals the Court of Appeal was criticised for "not having investigated further to see if, in default of rectification of sex, at the very least the substitution of forenames requested ought to have been allowed". The Court of Cassation’s response was that the applicant had "before the Court of Appeal requested a change of forenames only as a consequence of the change of sex she was claiming" and that she had "not shown that she had a legitimate interest within the meaning of the third paragraph of Article 57 of the Civil Code in her forenames being amended even if the change of sex were not allowed". The ground of appeal was therefore rejected, as it had not been argued before the court below.
25. As a general rule, sex is not indicated on administrative documents issued to natural persons, such as traditional national identity cards, classic style passports, driving licences, voting cards, certificates of nationality, etc.
However, the new computerised identity cards do mention sex in order to enable an individual to be identified by machine and to take account of the existence of ambiguous forenames. This also applies to the "Community" style passports which are gradually replacing "national" passports.
26. The National Institute for Statistics and Economic Studies (Institut national de la statistique et des études économiques, INSEE) allocates everyone a number. The first digit of the number indicates sex (1 for male sex, 2 for female sex). The number appears in the national identification register of natural persons; the social security bodies use it with additional digits for each person insured.
The right to make use of this number is governed by Law no. 78-17 of 6 January 1978 on data processing, files and civil liberties. Under section 8 of this Law access to the register for the purpose of processing data involving names is subject to authorisation by a decree in the Conseil d’Etat issued after consultation with the National Commission on Data Processing and Civil Liberties (Commission nationale de l’informatique et des libertés, CNIL). Decree no. 82-103 of 22 January 1982 relating to the said register provides that "with the exception of the cases specifically provided for by law, the register may not be used for the purpose of tracing individuals" (section 7).
In an opinion of June 1981 the CNIL defined in broad terms the principles which it intended to follow in supervising the use of the register and the registration numbers in it. Since then it has recommended against use of the number or had its use withdrawn in numerous cases relating inter alia to taxation and public education. On the other hand, it approved its use for checking personal identities in connection with the computerisation of criminal records and the central data file of cheques of the Banque de France. A decree of 11 April 1985 likewise authorised social security institutions to make use of the registration number. The CNIL has also, when various rules were being drawn up relating to employees’ pay, allowed the number to be used as a means of correspondence with social security bodies.
27. There is no provision of law which makes it compulsory for banking and postal institutions to include the prefix "Madame", "Mademoiselle" or "Monsieur" on cheques, but in practice they are usually included. However, anyone may require that his surname and forenames only be used.
28. Invoices must include the surnames of the persons they concern but need not indicate their sex (section 3 of Order no. 86-1243 of 1 December 1986).
VIOLATED_ARTICLES: 8


ITEMID: 001-5797
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: IVENS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1938 and living in Leigh on Sea.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was convicted on 21 December 1994 of conspiracy to deliver counterfeit notes, granted bail and sentenced on 20 January 1995 to thirty months’ imprisonment. During the trial it emerged that one of the jurors had been bribed. The judge discharged the juror and proceeded with the trial, saying that he was reluctant to order a retrial because it would delay the proceedings. According to English law this was not a factor which the judge should have considered in exercising his discretion.
The applicant applied for leave to appeal on 20 January 1995. His application was refused on 22 May 1995. He made an application to the full Court of Appeal for leave to appeal, which was refused on 7 June 1995. On 4 July 1995 he filed a renewed application for leave to appeal. There was a hearing of his application on 7 March 1996, when he was granted leave to appeal. On 24 April 1996, following a hearing, the Court of Appeal granted his appeal.
The applicant appealed to the Home Office for compensation for wrongful conviction and detention. By a letter dated 11 April 1997 he was informed that under English law there was no general entitlement to recompense for wrongful conviction and that the facts of his case did not entitle him to compensation under the statutory scheme (section 133 of the Criminal Justice Act 1988) or to an ex gratia payment.
The applicant applied for legal aid to challenge this decision and was refused. His appeal against the refusal of legal aid was dismissed on 17 September 1997, on the grounds that he had no reasonable propects of success in the proceedings.


ITEMID: 001-105820
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GEORGEL AND GEORGETA STOICESCU v. ROMANIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (victim);Violation of Art. 8;Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
TEXT: 6. The applicant was born in 1929. She was retired and living in Bucharest before her death on 29 December 2007.
7. On 24 October 2000 the applicant, aged 71 at the time, was attacked, bitten and knocked to the ground by a pack of around seven stray dogs in front of her home in the Pajura neighbourhood, a residential area in Bucharest. As a result of the fall, the applicant suffered a head injury and fractured her left thigh bone which required four days’ hospitalisation in the CFR Hospital in Bucharest. After being discharged from hospital she was prescribed medical treatment which proved to be too expensive for her.
8. Following the incident, the applicant started suffering from amnesia and shoulder and thigh pains and had difficulty walking. In addition, she lived in a constant state of anxiety and never left the house for fear of another attack. By the year 2003 she had become totally immobile.
9. At the time of the incident the applicant and her husband were retired and their entire monthly income amounted to the equivalent in Romanian lei (ROL) of 80 euros. They claim that this amount was wholly insufficient for her medical treatment, and that they had to live at subsistence level. As a result, the applicant had lost weight.
10. The applicant’s state of health continued deteriorating with the result that two and a half years after the incident, on 4 June 2003, she was declared disabled by a medical panel of the Bucharest Local Council and was offered financial aid and free access to medical assistance and medicines.
11. On 10 January 2001 the applicant, represented by her husband, filed a civil action with the Bucharest District Court (Judecătoria Sectorului 1) requesting damages of ROL 100,000,000 (EUR 4,000) under the provisions of the Civil Code on civil liability for torts, and claiming that, as a result of the attack, she had become disabled. The applicant filed the action against the Bucharest Mayor’s Office because, according to the words embossed on the stamp used on a letter from the Animal Control Agency (Administratia pentru Supravegherea Animalelor - ACA), the latter was a body under the authority of the Mayor’s Office.
12. At the first hearing the court noted that the applicant had not paid the statutory court fee and ordered the payment of ROL 6,145,000 (EUR 250). Being unable to pay this sum, which amounted to her entire family income for four months, the applicant paid only ROL 500,000 (EUR 20), which she borrowed from various acquaintances.
13. By a judgment of 6 March 2001 the court declared the applicant’s civil action invalid for non-payment of the full court fee.
14. On 19 June 2001 the Bucharest County Court (Tribunalul Bucuresti) allowed an appeal by the applicant against the judgment of 6 March 2001. The County Court held that the first-instance court should have decided the case within the limits of the court fee paid and that in any event, the applicant was exempted by law from paying a court fee for this type of action. The court further held that the amount already paid should have been treated as a deposit, to be returned at the end of the proceedings. With respect to the merits of the case, the court held that the ACA, a public body under the authority of the Bucharest Mayor’s Office, had indeed not taken all necessary measures to avoid endangering the lives of the population and to preserve their health and physical integrity, and had thus violated the provisions of Bucharest Municipal Council decision no. 38/1996. According to that decision, the ACA had a duty to capture, control and sterilise all stray dogs in order to prevent any danger they may pose to the life, health and physical integrity of the population. The court further held that the attack had endangered the applicant’s life and health, causing her physical and psychological suffering and depriving her of a normal life because she was so traumatised that she did not dare leave her apartment for fear of another attack.
Lastly, the County Court ordered the Bucharest Mayor’s Office to pay the applicant non-pecuniary damages, within the limits of the deposit paid, namely, ROL 10,000,000 (approximately EUR 400), which was 10% of the damages claimed by the applicant.
15. The Bucharest City Hall lodged an appeal on points of law (recurs) against the judgment of 19 June 2001, claiming that it did not have legal capacity as defendant because the ACA was placed under the authority of the Bucharest Municipal Council, and not the Bucharest Mayor’s Office.
16. By a final judgment of 17 December 2001, the Bucharest Court of Appeal allowed the appeal on points of law and dismissed the applicant’s action on the grounds that it had been lodged against a party who did not have legal capacity as defendant. The court found that the ACA had been created by decision no. 38/1996 of the Bucharest Municipal Council and that therefore the latter institution was the one against which the applicant should have brought her court action.
17. On 28 June 2002 the applicant, represented by her husband, filed a civil action with the Bucharest District Court requesting damages of ROL 50,000,000 (EUR 2,000) from the ACA and the Bucharest Municipal Council. The applicant did not pay the court fee.
18. On 3 December 2002 the Bucharest District Court dismissed the action, holding that the Bucharest Municipal Council did not have legal standing as defendant. With regard to the ACA, the court found that on 31 October 2001 the Municipal Council had adopted decision no. 287 by which the ACA was closed down and the control of stray dogs was transferred to the mayor’s offices of the six Bucharest districts.
19. By a final judgment of 13 March 2003, the Bucharest Court of Appeal dismissed an appeal on points of law lodged by the applicant and upheld the judgment of the first-instance court.
20. Under section 5 of the Local Public Administration Act of 1991 (Law no. 69/1991), local self-government was conferred on the local councils as legislative authorities and the mayor’s offices as executive authorities.
21. That Act was replaced on 23 April 2001 by a new Local Public Administration Act (Law no. 215/2001). Section 21 of that Act provides:
“The local public administration authorities which ensure local self-government in municipalities and towns are the municipal authorities and the local town councils as legislative authorities, and the mayors’ offices as executive authorities.”
22. Section 39 of Law no. 60 of 29 October 1974 provided that the local authorities of each department were in charge of ensuring proper veterinary activity and thus entitled, inter alia, to “organise the capture and destruction of stray dogs”.
23. Section 39 of Law no. 60/1974 was amended on 28 August 1998 to provide that the local authorities were in charge of “organising the capture of stray dogs and employing, for this purpose, specific techniques authorised by international veterinary norms”.
24. On 13 December 2001 Emergency Decree no.155/2001 on the stray dogs management programme entered into force. Its relevant provisions provide:
“1. The local councils must create, within 30 days from the entry into force of this decree, specialised services in order to manage the stray dogs situation.
[...]
4. Stray dogs shall be captured and transported to the shelters of specialised services set up for [this purpose], where they will be kept for up to seven days [...].
5. (1) Following an examination by the veterinary doctor, any stray dogs that are aggressive or suffer from chronic or incurable illnesses shall be euthanised immediately [...].
[...].
7. (1) Dogs which have not been claimed or adopted after the expiry of the seven-day time-limit referred to in Article 4 above shall be euthanised.
[...]. ”

25. Section 1(2) of Law no. 205/2004 on the protection of animals, which entered into force on 24 June 2004, provided that the rules governing stray dogs on the territory of Romania would be adopted by means of a specific law.
26. On 15 January 2008 Law no. 9/2008, amending Law no. 205/2004, entered into force. It forbade, inter alia, the euthanasia of stray dogs.
27. In November 2009 a draft Law on stray dogs was put on the agenda of Parliament. The draft, which provided, inter alia, for a duty on the authorities to capture and euthanise all stray dogs in order to preserve the safety and health of the population, was rejected by the Senate on 25 November 2009.
It is currently pending before the Chamber of Deputies, without any date set for its discussion so far, according to the web page of the Romanian Chamber of Deputies.
28. Article 1 of Decision no. 38 of 2 January 1996 of the Bucharest Municipal Council on the breeding, maintenance and circulation of animals in Bucharest provides as follows:
“With effect from the date of the present decision, the Municipal Knackers Service shall be renamed the Animal Control Agency, a public body with legal status functioning under the authority of the Bucharest Municipal Council and staffed by 33 to 50 employees.”
29. Annex no.1, Chapter 1, of Decision no. 75 of 16 May 1996 of the Bucharest Municipal Council on the breeding, maintenance and circulation of animals in Bucharest provides, in its relevant parts, as follows:
“a) The service provider within the Animal Control Agency has a duty to capture stray dogs on the basis of written complaints received from private or legal persons.
...
c) The captured animals shall be sterilised, vaccinated, disinfested and identified in an integrated database, with the exception of those that are to be euthanised.
d) Dogs shall be returned to the area in question upon request by the community (private or legal persons); these dogs shall have the protected status of community dogs (câini comunitari).
e) Responsibility for community dogs shall be assumed by the community requesting the dogs’ return.”
30. Article 2 of Decision no. 82 of 19 April 2001, issued by the Bucharest General Council regarding the programme for the sterilisation of stray dogs in Bucharest, provides:
“Bearing in mind that the Animal Control Agency is placed under the authority of the Bucharest General Council, the analysis, supervision and monitoring of compliance with the programme for the sterilisation of stray dogs in Bucharest shall henceforth be entrusted to the commission created for this purpose by Decision no.149/2000 ....”
31. Article 1 of Decision no. 287 of 31 October 2001 of the Bucharest Municipal Council on the improvement of the ACA’s activities provides:
“The Animal Control Agency shall cease its activity with effect from 15 November 2001.
From that date onwards, the organisation, control and monitoring of animals shall be undertaken by the mayor’s offices of Bucharest districts nos. 1 to 6, each within its own area of authority.”
32. Article 1 of Decision no. 105 of 10 April 2003 of the Bucharest Municipal Council on the functioning of the ACA provides as follows:
“With effect from 15 April 2003, the Animal Control Agency, as a legal person having the aforesaid purpose, shall be placed under the authority of the Bucharest Municipal Council.”
33. Article 12 of the European Convention for the Protection of Pet Animals, ratified by Romania on 6 August 2004 (ETS no.125 – Strasbourg, 13 November 1987), provides:
“When a Party considers that the numbers of stray animals present it with a problem, it shall take the appropriate legislative and/or administrative measures necessary to reduce their numbers in a way which does not cause avoidable pain, suffering or distress.
a Such measures shall include the requirements that:
i if such animals are to be captured, this is done with the minimum of physical and mental suffering appropriate to the animal;
ii whether captured animals are kept or killed, this is done in accordance with the principles laid down in this Convention;
b Parties undertake to consider:
i providing for dogs and cats to be permanently identified by some appropriate means which causes little or no enduring pain, suffering or distress, such as tattooing as well as recording the numbers in a register together with the names and addresses of their owners;
ii reducing the unplanned breeding of dogs and cats by promoting the neutering of these animals;
iii encouraging the finder of a stray dog or cat to report it to the competent authority.”
34. Since the mid-1990s the Romanian and foreign printed, on-line and audiovisual media have regularly reported on the large number of stray dogs on the streets and the problems that have ensued: attacks by stray dogs resulting in serious injuries to many people or even death in some cases; huge indignation caused in Romania and abroad by a number of actions taken by the authorities and with the purpose of euthanising some of the stray dogs; organisation of donation campaigns in favour of the sterilisation of stray dogs, and so on.
By the year 2000, the population of stray dogs in the city of Bucharest alone numbered some 200,000.
In March 2001 the mayor of Bucharest decided to have recourse to euthanasia, in the light of statistics for the city of Bucharest indicating that the population of stray dogs had doubled between 1996 and 2001; that in 2000 some 22,000 persons had received medical care following attacks by stray dogs; that from the beginning of 2001 more than 6,000 persons had been bitten by stray dogs; and that the persons most vulnerable to such attacks and seriously injured were children and elderly people. The international media widely reported on the mayor’s attempt to tackle this issue, as well as on the other solutions envisaged by candidates in local elections throughout the country, and on the criticism of euthanasia measures by certain international public figures, such as the actress Brigitte Bardot, who in 2001 had donated some 100,000 euros to the City of Bucharest for the purpose of sterilising stray dogs instead of killing them.
The euthanasia campaign in Bucharest was stopped in 2003, after some 80,000 dogs had been euthanised.
In 2005 the media reported that the population of stray dogs had again risen alarmingly, and that between 40 and 50 complaints of dog attacks were being registered daily by the animal control service in the Bucharest City Hall.
The issue of the situation of stray dogs in Romania, as a public health issue, and the proposed ways of tackling it by legislative measures, was reportedly raised by various Romanian politicians with European Union bodies.
35. Specific incidents were also widely and regularly covered by the media from 2000. Thus, national newspapers such as Evenimentul Zilei, Ziua and Adevărul reported on their internet pages the death of a sixty-eight-year-old Japanese businessman after being bitten by a stray dog in the centre of Bucharest and the death of a two-year-old boy and a forty-five year old schizophrenic, both bitten by stray dogs in Craiova. Several news agencies, such as Mediafax and Ziare.com, and most newspapers reported on the death in similar circumstances of a six-year-old girl and of two other elderly persons in various major cities throughout Romania. In January 2011, an elderly woman was bitten to death by stray dogs in the centre of Bucharest.
36. According to the news agency Hotnews, the number of persons bitten by stray dogs in Bucharest has kept on increasing every year; for instance, it is reported that between November 2009 and February 2010, some 10,000 persons were bitten by stray dogs in Bucharest alone.
37. The Government have not submitted any official statistics or reports on the issue of stray dogs in Romania.
38. On 13 October 2009, the advisory body to the prefect, the Prefectural College, met and discussed, inter alia, the issue of stray dogs on the streets of Bucharest. In a statement published on the website of the Bucharest Prefect’s Office following this meeting, the prefect stated that the problem of stray dogs was not yet solved and mentioned that:
“... although they have been sterilised and have an identification microchip, they can still bite and therefore pose a threat to our health, our children’s health and to visitors to Bucharest.”
The Prefect of Bucharest further stated that the data received from the Institute of Infectious Diseases of Bucharest were worrying and showed that a total of 9,178 persons had been bitten by stray dogs in Bucharest during the first six months of 2009, of which 1,678 were children. He also quoted a report by the Animal Control Agency, according to which 38% of the dogs collected by that authority from the streets of Bucharest in the first half of 2009 were infested with leptospirosis, an infectious disease transmissible to humans and which can cause meningitis, liver damage and renal failure.
39. On 2 February 2010, in a press release published on the website of the Bucharest Prefect’s Office, the same prefect stated that there were almost 100,000 stray dogs in Bucharest and that more than 10,000 people were bitten every year.
40. In an interview of 27 April 2010 the prefect of Bucharest indicated that, according to the latest statistics, the number of stray dogs in the streets of Bucharest was between 40, 000, according to the NGOs, and 100,000, according to the local administration, that in 2009 around 7, 000 persons had been bitten in Bucharest by stray dogs, that in the first four months of 2010 the number of persons bitten by stray dogs was more than 2,000, and the costs for the treatment of these persons was about 400,000 euros per year. The prefect further indicated that he had proposed a draft law allowing the euthanasia of stray dogs in certain circumstances.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79622
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: HENDERSON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr David Henderson, is a British national who was born in 1970 and lives in Glasgow. He is represented before the Court by Mr J. Carroll, a lawyer practising in Glasgow.
The United Kingdom Government (“the Government”) were represented by their Agent, Mr Derek Walton of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 June 2000, the applicant was questioned by the police and charged with various offences. He and two other men were later tried in the High Court at Inverness on twenty-one charges, predominantly of assault and drugs offences. The trial lasted from 25 September 2000 to 3 November 2000. The Crown withdrew a number of charges at the close of the prosecution case, such that the applicant was ultimately convicted of two charges of assault and robbery and one of assault causing injury to a Mr Denny. He was sentenced on 3 November 2000 to 6 years’ imprisonment. The trial had been recorded by mechanical means.
On or about 1 January 2001, the applicant lodged an appeal against both conviction and sentence. Leave to appeal was refused by a single judge on 14 March 2001. By letter dated 4 April 2001, the applicant’s representatives applied for review of that refusal.
On 4 May 2001, the applicant was granted leave to appeal against sentence and limited leave to appeal against conviction on the charge of assault and robbery, identified for purposes of the proceedings as “Charge 7.” Charge 7 read in material part as follows:
“[the applicant did] repeatedly punch and kick David Charles Denny on the head, repeatedly threaten to slash and stab him, present a knife to him, attempt to cut off his finger with a knife or similar instrument, all to his injury.”
By letter dated 14 May 2001, it was indicated that leave had been granted to appeal against conviction on Charge 7 on the basis that “there might be an arguable point as to the need for corroboration on the use of a knife.”
The applicant obtained legal aid for the instruction of senior and junior counsel on 15 June 2001. He thereafter sought to substantiate the factual basis of the appeal against conviction on Charge 7. He sought authority (in general terms) to have transcribed the recording of counsel’s submissions in support of the contention that there was no case to answer. He was granted legal aid to this effect on 20 August 2001 and court authorisation on 21 August 2001; he received the transcript on 27 December 2001. He obtained counsel’s advice in June 2002 and, as a consequence, amended his Note of Appeal. The revised Note of Appeal lodged on 22 July 2002 expanded his initial ground of appeal against conviction on Charge 7 as follows:
“That specifically in relation to charge seven, the trial judge misdirected himself in law and fact when he rejected the submission by counsel that there was insufficient corroboration to allow the jury to find the appellant guilty of attempting to cut off Crown witness Denny’s finger. Esto there was sufficient evidence for the jury to convict, they should have been directed that before they could do so in relation to the attempted cutting off of the Crown witness Denny’s finger they must find corroboration in the evidence before they could convict of this element of the charge.”
Further, the applicant sought transcripts of the evidence of certain witnesses to seek support for the revised grounds of appeal. This was because it appeared to the applicant and his representatives that the trial judge’s record of the evidence was different to that of his agents. On 31 July 2002 sanction was granted by the court for the funding of the transcription of the evidence of the relevant witnesses. At a hearing on 15 August 2002, the court allowed the revised grounds of appeal, ordered a supplementary report from the trial judge, and took note of the position on transcripts.
The trial judge provided a supplementary report on 15 September 2002. The judge noted the attack on the element of charge 7 relating to the “attempt to cut off [Denny’s] finger with a knife or similar instrument,” and continued:
“There is no suggestion now, nor was there then, that there was insufficient evidence for the remainder of [charge 7] (of which whole charge the applicant was found unanimously guilty) including in particular the allegation that the appellant, acting along with two others, repeatedly threatened to slash and stab the complainer and presented a knife at him. This has significance... for the question of corroboration.”
The trial judge noted the evidence of a Sergeant Scott to the effect that:
“the complainer sought to speak to him two days later on 29 March and then told him informally what had happened, although apparently too scared to give a formal statement. At that stage the witness saw not only the injuries to the complainer’s forehead and face, apparently consistent with the punching and kicking attack spoken to by the complainer, but also a cut to the complainer’s pinkie.
Standing the evidence of Sergeant Scott there was, it seemed to me, arguably enough evidence of the part of the assault in question. Further I took the view that if the jury believed the complainer as to the detailed account he gave (including threats and the presentation of the knife) there was no need for specific corroboration of the matter.
...
[i]n this case, in circumstances in which it was accepted that there was sufficient evidence for the allegation of repeated threats to slash and stab the complainer and of presentation of the knife at him, and where the complainer accepted that the apparent attempt to cut off his finger was not carried through to any great extent, I did not think, leaving aside for the moment the evidence of Sergeant Scott, that any specific corroboration was needed.”
The trial judge also noted that, even if the appeal on this point was allowed, and a question was raised as to its effect upon the applicant’s evidence, it would have made no difference to the sentence he imposed.
The Justiciary Office wrote to the applicant’s representatives on 23 September 2002 to ask whether the appeal was ready to proceed; the applicant’s representatives responded that they were unable to do so until they received the transcripts. On 23 October 2002, they were received. By letter dated 24 October 2002, the applicant’s representatives wrote to the company contracted to provide the transcription requesting the evidence of a Mr O’Reilly. By letter dated 28 October 2002 the transcribers advised the Clerk of the Justiciary that it had proved impossible to transcribe his evidence due to his diction and the quality of the recording. This letter was passed to the applicant’s representatives, who, on 8 November 2002, replied that counsel’s view was that the lack of this transcript would put the appeal in severe difficulties and requesting to have the tape cleaned up.
Technical attempts were made by specialists to recover the evidence of Mr O’Reilly. The applicant’s representatives wrote to the transcribers on 31 March, 23 June and 14 August, 30 September and 27 October 2003. In the last letter they stated that the transcript was of "critical importance to the appeal".
On 28 October 2003, the transcribers finally advised that the defects could not be resolved, and that the transcript of Mr O’Reilly’s evidence could not be provided.
At a procedural hearing on 31 March 2004, fixed by the Clerk, the court directed that the applicant had three weeks to confirm if the appeal was to proceed.
On 20 April 2004, the applicant tendered a new and additional ground of appeal, namely that there had been a failure by the court to conclude the appeal within a reasonable time in breach of the applicant’s Article 6 rights. This ground was supported by a chronology, in which it was recorded that “On 13 November 2002, copy transcripts of the evidence were lodged with Justiciary Office and the appellant’s agents awaited notification of a hearing on the appeal.” The applicant accepted that the time taken to 13 November 2002 was reasonable. However, he contended that, upon lodging the transcripts with the Judiciary Office, “it should have been clear to the authorities that this case was now pressing and that urgent steps should have been taken to secure a hearing at a time which would have accorded with a reasonable and proportionate time in which to conclude such a case.”
On 14 May 2004, at a procedural hearing, the court granted leave to appeal on this further ground.
On 2 June 2004, the court directed that a hearing be assigned during the sitting of the appeal court on 22 June 2004.
On 10 June 2004, the applicant abandoned his appeal against conviction, stating that it was counsel’s view that without the transcription of Mr O’Reilly’s evidence the appeal against Charge 7 in relation to the use of the knife on Mr Denny’s little finger could not be sustained. As the sitting on 22 June 2004 concerned appeals against conviction, not sentence only appeals, no date was assigned on that occasion. A date was later fixed for 19 November 2004.
On that date, the Appeal Court of the High Court of Justiciary heard the Article 6 challenge and the appeal against sentence in November 2004, and dismissed them both on 17 December 2004.
The Appeal Court noted that the report of the trial judge showed that Mr O’Reilly’s evidence was not relied upon to provide corroboration of the single feature of Charge 7 that was the subject of challenge. Further, the Appeal Court considered that the chronology supplied on 20 April 2004 by the applicant’s representatives in support of the Article 6 challenge was:
“neither comprehensive nor entirely accurate. In particular, the suggestion that as from 22 November 2002 the appellant’s agents were simply awaiting notification of an appeal diet cannot be reconciled with the position presented in the later case and argument that appeal could not proceed without the transcripts, nor with the efforts made to recover O’Reilly’s evidence until October 2003.”
The Appeal Court considered that the issue relating to corroboration had been “fully ventilated” by September 2002, and that:
“[t]hereafter time was taken up by the fruitless search for support from some unspecified deficiency in the evidence. It is important to note that there is no suggestion that the transcribed evidence of the witnesses, on whom the trial judge’s analysis of the assault on Denny’s little finger depended, failed in any way whatsoever to bear out the analysis in his reports. Delay in this case was due to the intransigent insistence of the appellant and his advisers in pursuit of the irrelevant.... ”
The Appeal Court then considered the question of length by specific reference to Article 6 and, in particular, the case of Majarič v. Slovenia (no. 28400/95, 8 February 2000). It considered that:
“at each stage in the prosecution of this appeal the appellant had the benefit of a prompt response from the Court to applications made to it. The simple explanation of the major part of the time that has elapsed between conviction and the disposal of the appeal against sentence is the insistence of the appellant in an appeal against conviction that had to be abandoned as having no foundation. [The applicant’s representative’s] assertion that there was some absolute duty on the Court to procure a speedy disposal of the appeal, whatever the position of the appellant, is clearly not supported by the European jurisprudence. The conduct of the appellant is a factor. Had the Court intervened to require the appeal to be disposed of while the appellant continued to pursue his quest for transcripts, we have no doubt that that would have been the focus for complaint. Time passed in this appeal because the court allowed the appellant the time he sought to pursue these matters.”
As regards the appeal against sentence, the Appeal Court found no basis to interfere with the trial judge’s determination of the relative criminality of the applicant and Mr Byrne, the central ground upon which the applicant maintained that the sentence imposed him had been excessive.
In the meantime, the applicant had been released on parole licence on 30 June 2004, having served two-thirds of his sentence.


ITEMID: 001-82390
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KAMENIK v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: The applicant, Mr Kristjan Kamenik, is a Slovenian national who was born in 1972 and lives in Slovenske Konjice. He was represented before the Court by Mrs M. Nosan, a lawyer practising in Celje.
The respondent Government were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 27 April 1997 at 9.30 a.m. the applicant was arrested on suspicion of murdering four persons in Tekačevo, Slovenia. He was put in pre-trial detention, which was transformed into detention on remand on 29 April 1997.
On 8 May 1997 the judicial investigation proceedings were instituted against the applicant by decision of the investigating judge of the Celje District Court (Okrožno sodišče v Celju).
On 23 July 1997 the Celje District Public Prosecutor’s Office (Okrožno državno tožilstvo v Celju) lodged a bill of indictment against the applicant, charging him with murder. The applicant’s objection to the indictment was rejected by the Celje District Court on 15 September 1997.
Between 20 January 1998 and 6 May 1998, the Celje District Court held twelve hearings. The court heard twenty-six witnesses. It also appointed and heard several experts in forensic science, including two Slovenian experts who prepared expert opinions about the footprints found at the scene of the crime.
At the thirteenth hearing, held on 30 September 1998, the court decided to conduct the trial ab initio, as more than one month had elapsed since the last hearing. The applicant requested that the witnesses and experts be examined again.
Between 6 October 1998 and 21 June 1999, the court scheduled eighteen hearings, many of which were cancelled or adjourned due to the applicant’s inability to attend the hearings while he was on hunger strike and due to his requests for withdrawal of different judges and experts.
On 14 April 1999 the court requested the Forensic Science Institute (l’Institut de Police Scientifique) of the University of Lausanne to prepare another expert opinion about the footprints found at the scene of the crime.
On 22 June 1999 the applicant was released from custody after two years, one month and twenty-six days.
As the one month period since the last hearing had elapsed, the trial began again on 31 August 1999. The court held further hearings on 15, 16, 17, 20, 21, 29 and 30 September, 10, 17, 18, 24 and 26 November and 8 December 1999.
During these hearings, the court heard thirty-five witnesses and eight different experts in forensic science. In addition, the court read out two expert opinions, including the one prepared by the Swiss experts.
On 13 December 1999 the court delivered a judgment finding the applicant guilty of committing two murders and acquitting him of the other charges. He was sentenced to twenty years of imprisonment.
On 26 January 2000 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). The Public Prosecutor cross-appealed.
On 24 May 2000 the court dismissed the applicant’s appeal, allowed the Public Prosecutor’s appeal and found the applicant guilty of all four murders.
The applicant and his legal representative lodged separate appeals with the Supreme Court (Vrhovno sodišče) on 21 and 23 June 2000 respectively.
On 1 March 2001 the court allowed both appeals, annulled the first and second instance courts’ judgments and remitted the case for re-examination.
On 18 February 2002 the first instance court scheduled hearings for 14, 20, 21, 26, 27 and 28 March and 9, 10, 11, 17, 18 and 24 April 2002. All hearings were held as planned.
During these hearings the court heard several witnesses. It also heard the two experts in forensic science from Switzerland.
The court held further hearings on 3 and 4 June 2002.
At a hearing held on 7 June 2002, the court decided to appoint new experts in forensic science and ordered them to submit another expert opinion about the traces found at the scene of the crime. On 13 June 2002 the court specified the questions they should answer. The production of the expert opinion was eventually entrusted to the Forensics Institute of the Federal Forensics Bureau in Wiesbaden, Germany.
The court held hearings on 4 September and 21 November 2002.
In 2003 the court held hearings on 29 January, 23 April and 3, 4, 5 and 6 June. During these hearings the court confronted Slovenian, Swiss and German forensics experts.
On 11 June 2003 the court made public the judgment delivered on 7 June 2003. The applicant was acquitted.
On 18 July 2003 the Public Prosecutor appealed to the Celje Higher Court (Višje sodišče v Celju).
On 21 April 2004 the court allowed the appeal, annulled the first instance court’s judgment and remitted the case for re-examination.
On the same day, the applicant was caught in Serbia in possession of narcotics and put in detention on suspicion of drug trafficking. Due to the applicant’s absence, the court did not schedule any further hearings.
On 16 December 2004 the court requested the applicant’s attorney and the Public Prosecutor to make proposals with regard to evidence.
On 8 February 2006 the applicant notified the court that there were no more obstacles to the trial being continued, as his arrest in Serbia had been quashed.
On 8 March 2006 the court again asked the Public Prosecutor to make proposals with regard to evidence.
On 1 January 2007 the 2006 Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”) became operational (see below).
As a result of the applicant’s supervisory appeal (an acceleratory remedy under the 2006 Act) lodged on 13 March 2007, the court held a hearing on 12 June 2007.
During the hearing, the court decided to nominate the Forensic Science Centre - a British institution - to deliver yet another expert opinion about the shoeprints found at the scene of the crime.
During the hearing held on 19 June 2007, the court detailed the questions the forensics institution should answer. The court also decided to hold the next hearing on 11 September 2007. Subsequently, the case-file was transmitted to an investigating judge in order to obtain the requested expert opinion.
On 24 July 2007 the applicant made a request for the withdrawal of the nominated investigating judge, stating that she had been questioned as a witness in the previous stages of the trial.
The proceedings have been pending since then.
In the period between 3 August 1999 and 21 February 2000, the Police lodged ten criminal complaints with the Celje Public Prosecutor’s Office apparently alleging that the applicant and several other individuals were involved in drug trafficking.
On 10 March 2000 the investigating judge of the Celje District Court granted the Public Prosecutor’s request for a criminal investigation in respect of the applicant.
On 31 May 2000 the applicant was put in detention on remand.
On 16 June 2000 a “group of public prosecutors for special matters” appointed to prosecute organised crime, lodged a bill of indictment against the applicant and six other individuals in the Celje District Court. They were chiefly charged with drug trafficking.
At the first hearing held on 2 October 2000, the court decided to return the case to the investigating judge to order the transcription of secretly recorded telephone conversations of the accused.
After the transcripts had been made, the court held a hearing on 1 October 2001. It decided to separate the proceedings concerning two defendants who did not attend the hearing.
Between 2 October 2001 and 8 March 2002, the court held five further hearings.
On 11 March 2002 the President of the Celje District Court, acting ex proprio motu, appointed an attorney for the applicant, although the applicant had been duly represented throughout all the previous stages of the proceedings.
On 15 March 2002 the applicant requested that the hearings scheduled for April be adjourned till after 24 April 2002 because the court had already scheduled hearings in that period in another set of proceedings in which the applicant was charged with four murders (see above).
The hearings scheduled for 8, 15, 16 April and for 13, 20, 21 May 2002 were cancelled pending the decision of the Supreme Court upon the requests of the applicant and other defendants for withdrawal of the Chair of the sitting court panel and the presidents of the Celje District and the Celje Higher Court, lodged following the decision to appoint an attorney. It appears that all the requests were rejected.
On 27 and 30 May and on 10 June 2002 the court held hearings.
On 11 June 2002 the court found the applicant and other defendants guilty and sentenced the applicant to five years of imprisonment. The judgment was pronounced only orally. The court stated that a written judgment would be delivered in due course.
On 9 August 2002 the court decided to extend the applicant’s detention until the first instance judgment became final. On 16 August 2002 the applicant appealed against this decision. He also requested the court to issue a written judgment in order to enable him to appeal against it.
The written judgment of the first instance court was served on the applicant’s attorney on 19 August 2002.
On 26 August 2002 the applicant appealed to the Celje Higher Court.
On 6 January 2003 the Celje Higher Court upheld the applicant’s appeal as well as the appeals of the other defendants and annulled the first instance court’s judgment. One of the defendants was acquitted and the case, in respect of the other defendants, including the applicant, was remitted to the first instance court for re-examination. It appears that the applicant was released from custody on the same day.
The first hearing of the new trial scheduled for 10 July 2003 was adjourned due to the absence of the Public Prosecutor, the defence counsel, and the applicant.
The hearings scheduled for 5, 18, 19 September, for 7, 16, 23 October, for 20 November, for 19 December 2003, for 5 and 25 March 2004 were cancelled or adjourned due to various reasons, including requests for withdrawal of the judges, the applicant’s, other defendants’ or attorneys’ absence or illness.
The hearings fixed for 8 and 22 April were adjourned as the applicant did not appear at the court. The inquiries made by the court disclosed that the applicant had been arrested in Serbia (see above).
According to the Government’s submissions, no hearings could be called in 2005 due to the applicant’s detention and the trial against him in Serbia.
The proceedings have been pending since then.
In a letter of 9 October 2006 the State Attorney General officially informed the Court that, further to its judgment in Lukenda v. Slovenia (no. 23032/02, §§ 93 and 95, ECHR 2005X) binding the Slovenian State to adopt appropriate legal measures and administrative practices in order to secure the right to a trial within reasonable time, the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”) had been enacted on 26 April 2006. The 2006 Act came into force on 27 May 2006 and became operational on 1 January 2007.
On 13 March 2007 the applicant lodged a supervisory appeal with the Celje District Court concerning the first set of proceedings. Relying on Section 5 of the 2006 Act, he complained that after the Higher Court’s last judgment had been delivered on 21 April 2004, his case was only re-assigned to different judges. He further argued that none of these judges had ever tried to set a date for a hearing nor had they made any efforts to obtain a new expert opinion as instructed by the Higher Court. As in his letter of 8 February 2006, he stressed that there were no more obstacles deriving from the criminal trial against him in Serbia that would prevent the continuation of the impugned proceedings.
On 16 March 2007 the President of the Celje District Court, after acquiring a report of the Chair of the sitting court panel (“the judge”), decided that the court had been unduly protracting the decision-making and ordered the judge to set a date for a hearing on 30 June 2007, at the latest. He further ordered the judge to submit a report indicating performed procedural acts within the same period. The decision was served on the applicant on 19 March 2007.
The 2006 Act has been implemented since 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings.
Section 3 provides for two remedies to expedite pending proceedings - a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog) - and, ultimately, for a claim for just satisfaction in respect of damage sustained because of the undue delay (zahteva za pravično zadoščenje).
Section 4 defines the criteria that domestic authorities should take into account when assessing the complaints:
“When deciding on the legal remedies under this Act, the circumstances of the particular case shall be taken into account, namely: its complexity in terms of facts and law; actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings; compliance with rules on the set order for resolving cases, or with statutory deadlines for fixing preliminary hearings or for giving court decisions; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged; the nature and type of case and its importance for a party.”
The supervisory appeal is governed by sections 5, 6 and 7 which, in so far as relevant, provide as follows:
“(1) If a party considers that the court is unduly protracting the decision-making, he or she may lodge a supervisory appeal in writing before the court hearing the case; the decision thereon is taken by the ... president of the court (hereinafter ‘the president of the court’).
...”
“...
(3) ..., the president of the court shall, ... request the ... judge or chair of a court panel (hereinafter ‘the judge’) to whom the case has been assigned for resolution to submit a report indicating reasons for the duration of proceedings, not later than fifteen days after receiving the request of the president of the court or after obtaining the file, if necessary for drawing up the report. The report shall include the declaration in respect of criteria referred to in section 4 of this Act and the opinion on the time-limit within which the case may be resolved...
...
(6) If the president of the court ... in view of the criteria referred to in section 4 of this Act, (he)
...”
“(1) If the president of the court acts in compliance with Article 6, paragraphs 4 or 6 of this Act, the party may not file a new supervisory appeal nor a motion for a deadline concerning the same case before the expiry of deadlines set in the notification or ruling of the president of the court...
...”
Section 8 defines the motion for a deadline. It reads, in so far as relevant, as follows:
“(1) If, ... , the president of the court dismisses the supervisory appeal or fails to respond to the party within two months or fails to send the notification referred to in section 6(4) of this Act within the said time-limit or if appropriate procedural acts have not been performed within the time-limit set in the notification or ruling of the president of the court, the party may lodge a motion for a deadline under section 5(1) of this Act with the court hearing the case.
...
(3) The party may lodge the motion for a deadline within fifteen days after receiving the ruling or after the time-limits provided for in paragraph 1 of this section.”
Further to section 15, just satisfaction may be provided by payment of monetary compensation, a written statement of the State Attorney’s Office or the publication of a judgment:
“(1) If the supervisory appeal lodged by the party was granted or if a motion for a deadline has been lodged, the party may claim just satisfaction under the present Act.
...”
Section 16 provides for a compensatory remedy for non-pecuniary damage and fixes the maximum amount that could be awarded, that is 5,000 euros.
Sections 19, 20 and 21 govern just satisfaction proceedings and proceedings in respect of pecuniary damage:
“(1) Proceedings to enforce a claim for just satisfaction, provided that the condition referred to in section 15(1) of this Act is met, shall be instituted by a party by means of a motion for settlement lodged with the State Attorney’s Office with a view to reaching an agreement on the type or amount of just satisfaction. The party may lodge such motion within nine months after the final resolution of the case. The State Attorney’s Office shall rule on the motion of the party within a period of three months if it establishes that the just satisfaction claim is substantiated. Until the expiry of the above-mentioned period, the party may not assert any claim for monetary compensation by way of just satisfaction by bringing an action before the competent court.
(2) If, in accordance with paragraph 1 of this section, the agreement has been reached with the party, the State Attorney’s Office shall enter into an out-of-court settlement with the party.”
“(1) If no agreement under section 19 of this Act is reached upon the motion for settlement, or the State Attorney’s Office and the party fail to negotiate an agreement within three months of the date of the motion being lodged, the party may bring an action for damages.
(2) An action for damages against the Republic of Slovenia shall be brought not later than eighteen months after the final resolution of the party’s case.
...”
“(1) Action in respect of pecuniary damage caused by a violation of the right to a trial without undue delay may be brought by the party within eighteen months of the final ruling of the court on the party’s case in accordance with the provisions of the Obligations Code concerning pecuniary damage.
...”


ITEMID: 001-78199
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KILIC v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Kasım Kılıç, is a Turkish national who was born in 1965 and lives in Diyarbakır. He is represented before the Court by Mr Selahattin Demirtaş, Ms Aygül Demirtaş, Ms Reyhan Yalçındağ and Mr Cihan Aydın, lawyers practising in Diyarbakır. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 October 2001 at about 6.30 a.m. a group of police officers from the Anti-Terrorism Branch of the Diyarbakır Security Department surrounded the applicant’s house in Silvan. The applicant alleges that the police officers entered the house, carried out a search and asked the applicant’s daughter, Selma Kılıç, to show them the cellar which was in the basement of the house. Selma resisted going down with them; however the officers forced her to. The applicant then heard the police officers ask Selma whether there were any PKK terrorists in the house. When Selma replied that there was no one else in the house, she was beaten and insulted. After a few minutes, the applicant heard gun shots. The firing continued for about two minutes. When the firing stopped, the applicant and the other family members were taken out and they saw that Selma, who was badly wounded, was lying in the street. The applicant tried to help his daughter, but the police officers prevented him by pointing a gun at his head. No medical assistance was requested and Selma was left in the street for a long time. The police officers told Selma that they would only take her to the hospital if she accepted that there were other terrorists in the house. After some time, Selma was taken to the State Hospital, where she died.
On the same day, a classical autopsy was performed on Selma’s body at the Diyarbakır State Hospital in the presence of the Silvan public prosecutor. The report indicates that a bullet which had entered the body from the left of the chest damaged the spleen, stomach, and the left part of the liver, and the cause of death was internal bleeding.
On the same day, the police officers drew up an incident and arrest report. In the report, it was stated that, upon receipt of intelligence that armed PKK terrorists had been hiding in the applicant’s house, an operation was conducted to arrest the terrorists. The incident report states that, upon arrival at the scene at around 6 a.m., the house was surrounded by the security forces. At that time, three persons tried to leave the house by the back door. The security forces ordered them to surrender but one of the terrorists threw a hand grenade towards the officers. The officers then fired warning shots into the air and the terrorists responded with gun shots. A clash broke out, during which two terrorists died and one of them was wounded. Two police officers were also wounded during the clash. The wounded terrorist (Selma Kılıç) was taken to the State Hospital. The police then secured the area and conducted a search. They found three hand grenades and a Browning pistol on the first terrorist, N.O., and two hand grenades and an Astra model gun on the second terrorist, S.R, a Syrian national. They also found another hand grenade which was ready to explode near the two bodies. Kasım Kılıç (the applicant), Reşit Kılıç and Adil Kılıç were taken into custody for aiding and abetting the PKK.
Also on the same day, the Diyarbakır Emergency Governor issued a public statement and announced that, in the course of an operation conducted against the PKK, three terrorists had been killed and two police officers had been wounded.
On 19 October 2001 the Diyarbakır Criminal Police Laboratory delivered a ballistics report. It established that there were gunpowder traces on the hands of N.O. and S.R. No evidence of any gunpowder residue was found on Selma’s hands. The ballistics report further confirmed the existence of an explosive material in the earth sample which had been brought for analysis from the scene of the incident where the hand grenade had exploded.
For the purpose of the proceedings before the domestic courts, the applicant instructed two lawyers who worked at the same law office, namely Ms Reyhan Yalçındağ and Mr Cihan Aydın.
On 19 November 2001 the applicant’s representatives lodged a petition with the Silvan public prosecutor, stating that the applicant’s daughter had been unlawfully killed by the police. Maintaining that Selma was not connected to any illegal organisation, they requested the prosecutor to conduct an investigation into her death.
On 4 February 2002, pursuant to Law No. 4483 on the prosecution of civil servants, the Silvan prosecutor sent the file to the Diyarbakır Emergency Governor’s office to obtain authorisation to initiate criminal proceedings against the forty-three police officers who had been involved in the operation.
On 18 February 2002 the Governor appointed a police officer as rapporteur to investigate the allegations. On 2 April 2002, basing himself on the rapporteur’s report, the Governor decided that there was no need to prosecute the accused police officers.
This decision was challenged before the Diyarbakır Regional Administrative Court. However, the challenge was rejected.
On 1 August 2003, referring to the decision of the Diyarbakır Emergency Governor, the Silvan public prosecutor delivered a decision of non-prosecution in respect of the police officers.
On 9 September 2003 the applicant’s representatives appealed.
On 1 October 2003 the Siverek Assize Court rejected the applicant’s appeal. This decision was notified to Ms Reyhan Yalçındağ on 22 October 2003 and to Mr Cihan Aydın on 28 October 2003.


ITEMID: 001-89026
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: DIMITROVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: The applicant, Mrs Elena Dimitrovska, is a Macedonian national who was born in 1958 and lives in Skopje. She was represented before the Court by Mr S. Filipov, a retired lawyer from Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 15 September 1997 the applicant's husband, Mr D., brought a civil action against the Embassy of the Russian Federation (“Embassy”) in the former Yugoslav Republic of Macedonia claiming salary arrears and other employment-related allowances.
On 3 April 1998 the Skopje Court of First Instance rejected Mr D.'s claim as falling outside its competence. That decision was confirmed by the Skopje Court of Appeal of 14 October 1998. On 10 June 1999 the Supreme Court granted Mr D.'s appeal on points of law and remitted the case for re-examination. It held that the Macedonian courts had been competent to decide the case, in particular as it had involved obligations enforceable in the State.
On 18 October 2002 the Skopje Court of First Instance dismissed Mr D.'s claim. On 13 November 2002 he appealed.
On 23 November 2002 Mr D. died.
On 4 March 2003 the Skopje Court of Appeal dismissed Mr D.'s appeal.
On 2 April 2003 the applicant requested the public prosecutor to lodge an application for the protection of legality (барање за заштита на законитоста) with the Supreme Court. On 23 May 2003 the public prosecutor informed the applicant that there were no grounds for using that remedy.


ITEMID: 001-72594
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SHCHUKIN v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - State to pay outstanding judgment debt;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1940 and lives in the village of Veseloye, Kherson region, Ukraine.
5. In 2001 the applicant instituted proceedings in the Novokakhovskiy Town Court against his former employer, the State-owned “Uzhelektromash” company, to recover salary arrears. On 17 December 2001 the court awarded the applicant UAH 10,282 in salary arrears and compensation.
6. On 26 June 2002 the Novokahovska Bailiffs’ Service returned the writ of execution to the applicant on the ground that the debtor lacked funds that could be attached and the court had prohibited seizure of the debtor’s accounts.
7. On 10 June 2005 the Novokakhovskiy Town Court, following the applicant’s complaint, ordered the Bailiffs’ Service to renew the enforcement proceedings in the case.
8. The judgment in the applicant’s favour remains unenforced.
9. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90207
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KACHERSKAYA AND FROLOVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 5. The first applicant was born in 1937; the second applicant was born in 1958. They live in Pervomaysk, Mykolaiv region, Ukraine.
6. On 22 June 1999 the Pervomaysk Court awarded the first applicant 1,410.85 Ukrainian hryvnas (UAH) in salary arrears against the Pervomaysk State department for education.
7. On 2 August 1999 the same court awarded the first applicant UAH 324.34 in compensation for recreation leave allowance against the same defendant.
8. On 22 June 1999 the Pervomaysk Court awarded the second applicant UAH 794.60 in salary arrears against the Pervomaysk State department for education. On 2 August 1999, the same court awarded the second applicant UAH 274 in compensation for recreation leave allowance against the same defendant.
9. In December 2003, the Mykolaiv Regional Department of Justice informed the applicants that the judgments in their favour could not be enforced due to lack of the funds in the State budget, and the property of the debtor could not be attached since it was a public institution.
10. The judgments given in favour of the applicants remain unenforced.
11. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004) and Kechko v. Ukraine (no. 63134/00, §§ 16-18, 8 November 2005).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-75601
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MEŽAN v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1936 and lives in Radovljica.
6. During the works on a nearby motorway, some plots of the applicant’s land were damaged by the investor – the National Road Administration of Ljubljana (“the NRAL”).
7. On 4 July 1992 the applicant instituted civil proceedings against the NRAL in the Kranj Basic Court, Radovljica Unit (Temeljno sodišče v Kranju, Enota v Radovljici), seeking compensation in the amount of 2,487,490 Slovenian tolars (approximately 10,370 euros).
On 22 April 1993 the court held a hearing and decided to appoint an expert to assess the damage sustained by the applicant.
On 28 June 1994 the Convention entered into force with respect to Slovenia.
On 10 October 1994 the applicant appealed against the court’s decision on the expert’s costs. On 9 January 1995 he also appealed against the subsequently issued correcting decision concerning these costs. On 27 February 1996 the Ljubljana Higher Court (Višje sodišče v Ljubljani) rejected the second applicant’s appeal.
In the meantime, the Slovenian judicial system was reorganized and the Kranj District Court (Okrožno sodišče v Kranju), on 1 January 1995, obtained jurisdiction in the present case.
On 6 May 1998 the applicant made a request that a date be set for a hearing.
Of the two hearings held on 11 March and 7 June 1999, neither was adjourned at the request of the applicant.
At the last hearing, the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 4 September 1999.
8. On 17 September 1999 the applicant appealed to the Ljubljana Higher Court. The NRAL cross-appealed.
On 23 March 2000 the applicant made a request to expedite the proceedings.
On 11 October 2000, the Higher Court upheld both appeals and the case was remitted to the first-instance court for re-examination. The decision was served on the applicant on an unspecified date.
9. In the re-examination proceedings, between 28 March and 3 December 2001, the applicant filed three written submissions.
The court appointed a new expert to asses the damage.
Of the three hearings held between 28 May 2001 and 18 September 2003, none was adjourned at the request of the applicant. However, one hearing fixed for 3 May 2001 was called off on the applicant’s request.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 2 December 2003.
10. On 15 December 2003 the applicant appealed to the Ljubljana Higher Court.
On 2 March 2005 the court upheld the applicant’s appeal regarding the costs of the proceedings and in this part remitted the case to the first instance court. The court rejected the remainder of the appeal.
The judgment was served on the applicant on 5 April 2005.
11. On 30 March 2005 the Kranj District Court issued a new decision on the costs of the proceedings, which was served on the applicant on 6 April 2005.
12. On 18 April 2005 the applicant appealed also against this decision.
On 23 November 2005, the Ljubljana Higher Court rejected the applicant’s appeal.
The decision was served on the applicant on 13 December 2005.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97468
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BARTOS v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Adrian Ioan Bartoş, is a Romanian national who was born in 1950 and lives in Sibiu. He was represented before the Court by Mr Ionel Olteanu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In 1997 the Public Health Agency of Sibiu County (“the agency”), further to a competitive examination, appointed the applicant in the post of economic deputy director in the Sibiu County Hospital (“the hospital”), a public institution. The hospital was in charge with the enforcement of that decision.
4. In April 2001 the agency found management deficiencies by the applicant. Therefore on 9 May 2001 the agency decided to dismiss him from his position as deputy director. That decision was to be enforced by the hospital and provided for a thirty-day time-limit to be challenged before the courts.
5. Consequently, on 11 May 2001 the hospital offered the applicant two alternative posts, either as economist or as consultant in the accounting department, informing him that in case of refusal it would terminate his employment contract in accordance with Article 130 § 1 (e) of the Labour Code for professional incompatibility. The applicant declined the two offers.
6. On 14 May 2001 the hospital charged the applicant with pecuniary damage caused to the institution, on the basis of the above-mentioned findings.
However, on 1 October 2001 the Sibiu jurisdictional branch of the Court of Accounts annulled that decision, considering that the pecuniary damage had not been caused by the applicant and therefore he was not liable under the Labour Code. That judgment became final.
On 7 December 2001 the public prosecutor also found no grounds which would justify initiating a criminal action against the applicant.
7. On 16 May 2001, having regard to the decision of 9 May 2001 and to the fact that the applicant had refused the two alternative posts, the hospital dismissed him from his job.
8. On 28 May 2001 the applicant challenged the decision of 16 May 2001 before the courts, seeking reinstatement in his previous job and payment of salary arrears. In his subsequent submissions, he also challenged the decision of 9 May 2001.
9. On 1 March 2002, the post of economic director was discontinued in line with new legal provisions.
10. On 13 June 2002 the Sibiu County Court allowed that action in part and annulled the decision of 16 May 2001, considering that his dismissal under Article 130 § 1 (e) of the Labour Code for management deficiencies had been groundless. It held that the legal grounds for terminating his employment contract should be reconsidered in a fair manner, by taking into account the applicant's preference for ceasing or continuing in another post.
However, the court dismissed his complaint against the decision of 9 May 2001 as being out of time. Consequently, even if it found that the grounds for his dismissal were unfounded, it dismissed his other claims, considering that it could not order reinstatement in his previous job and payment of salary since that decision taken by the agency to dismiss him from his post had not been examined on the merits and had not been annulled. The court concluded that the hospital was not at fault for the termination of his employment contract because the applicant had previously been dismissed from his job by the hierarchically superior body and had not opted for another position. Therefore, in spite of upholding the annulment of his dismissal, the court considered that the provisions of Article 136 of the Labour Code were not applicable in the case. That Article provided that in case of annulment of a dismissal decision, the institution had an obligation to reinstate that person in his previous job and to pay him damages.
11. The applicant appealed, considering his reinstatement as the legal consequence of annulling the decision by which he had been dismissed. He also submitted that he had working relations with the hospital and that the decision taken by the agency was not relevant in his case.
The hospital argued that the decision to dismiss the applicant had been taken by the hierarchically superior body, which had also employed him, and that the hospital had only enforced that decision in the absence of a positive answer by the applicant to its two alternative job proposals. The hospital also submitted that the two contested decisions did not have the same purpose because the decision taken by the agency aimed only at dismissing the applicant from his post, thus giving the possibility to continue working relations in another post, according to his qualifications.
12. On 7 October 2002 the Alba Iulia Court of Appeal upheld that judgment by a final decision. It considered that the annulment of the decision of 16 May 2001 had no influence over the previous decision of 9 May 2001, which had not been challenged in due time. Therefore, since the latter decision had not been annulled, it was not possible to order the applicant's reinstatement in his previous job or payment of salary. The court also considered to be irrelevant the fact that the applicant had working relations with the hospital, since the Regulations for the organisation and functioning of the public health agencies had provided that those agencies were entitled to revoke directors' appointments in subordinate institutions (see “Relevant domestic law” below).
13. On 28 October 2002 the applicant requested the hospital to reinstate him in accordance with the judgments of 13 June and 7 October 2002, considering that his employment contract was still in effect. He also submitted that he had the qualifications required for the post of accounting director or director in charge with reform. On 30 October 2002, during a meeting with the hospital's management, the applicant was informed about the unavailability of any post of economist within the hospital. He was also informed that the post of accounting director was not vacant and that the appointment in the post of director in charge with reform was to be made by the Ministry of Health, and not by the hospital.
14. Therefore, on 29 October 2002 the hospital requested the Sibiu County Employment Agency (the “AJOFM”) to find a corresponding job for the applicant and also informed the applicant about this action. On 21 November 2002 the AJOFM informed the hospital of the existence of two available posts of economist in a certain company.
15. On 25 November 2002 the hospital invited again the applicant to its headquarters. The applicant went on 28 November 2002, but refused to read the information sent by the AJOFM, requesting to have it submitted to him by post. Eventually, the applicant refused those offers.
16. Therefore, on 17 January 2003 the hospital terminated his employment contract under Article 130 § 1 (a) of the Labour Code, which provided for dismissal of an employee by the institution when the post occupied by the former had been discontinued following reorganisation. In accordance with the judgments of 13 June and 7 October 2002 it annulled the mention in his employment record which provided that he had been dismissed because of management deficiencies. The decision further stated that the period between 15 May 2001 and 17 January 2003 was not considered as length of service.
17. The applicant challenged that decision, seeking its annulment, his reinstatement in an equivalent post and payment of salary starting with 7 October 2002, the date on which the judgment of 13 June 2002 became final (see paragraph 12 above). He submitted that the annulment of the decision of 16 May 2001 had restored the status quo ante and therefore his employment contract was still valid.
The hospital submitted that the post occupied by the applicant had been discontinued in accordance with new legal provisions, that it had no vacancy suited to the applicant's qualifications and that it had requested assistance from the AJOFM. Since the applicant had declined those offers, the hospital reconsidered the grounds for his dismissal, as stated in the judgment of 13 June 2002.
18. On 16 June 2003 the Sibiu County Court dismissed his action. It considered his dismissal as the only alternative, taking into account that his post had been discontinued, that the hospital had offered him another post corresponding to his qualifications and also the fact that the applicant had claimed only a post of accounting director or director in charge with reform, which could only be filled by competitive examination.
The court further noted that the judgment of 13 June 2002 had only annulled the decision of 16 May 2001 by which the applicant had been dismissed from his job, but not the decision taken by the agency on 9 May 2001 with a view to dismiss him from his post. As a result his employment contract continued to be in effect, but his reinstatement in his previous job was no longer possible. The court also held that the period between 15 May 2001 and 17 January 2003 had legally been considered as not amounting to length of service, since neither the applicant nor the employer had paid social security during that period, as provided for by the legal provisions. Finally, the court dismissed as groundless his claim for overdue salary starting with 7 October 2002 for the reason that he had not worked.
That judgment became final.
19. The order no. 1562/1993 of the Ministry of Health on the organisation and functioning of the public health agencies provided that the hierarchically superior body was in charge with appointing or revoking the appointments of the directors from the subordinate institutions. Those attributes were preserved by the order no. 120/2001 of the Ministry of Health on the approval of the Regulations for the organisation and functioning of the public health agencies.