ITEMID: 001-83273
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KHAMIDOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 8;Violations of P1-1;Violations of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 6. The applicant was born in 1954 and lives in the village of Bratskoye, Nadterechny District, Chechnya.
7. The facts of the case as submitted by the parties are summarised in section A below (paragraphs 8-54). A description of the documents submitted by the parties is contained in section B below (paragraphs 55-84).
8. The applicant is a co-owner of real estate in the village of Bratskoye. The other co-owner is the applicant's brother, Mr Dzhabrail Abulkhanovich Khamidov, who is not a party to the proceedings before the Court. In reply to the Registry's specific query in that respect, the applicant's representative stated in a letter of 14 February 2004 that the applicant's brother did not intend to participate in the proceedings before the Court, that the applicant had participated in the domestic proceedings by himself (see below) and that in any event the applicant had furnished the Court with a general power of attorney granted to him by his brother. The document in question confirms the applicant's right to represent his brother before the Court if necessary.
9. Prior to the events described below, the applicant and his brother registered a limited liability company called Nedra (общество с ограниченной ответственностью «Недра») and, together with their families (hereafter “the applicant's family”), ran a bakery business. According to the applicant, this business was their main source of income.
10. The estate (hereafter “the applicant's estate”) comprises a plot of land of 1.5 hectares transferred to the Nedra company under an indefinite lease, a house of 251.3 square metres owned by the applicant, a house of 186 square metres owned by his brother and industrial buildings and equipment, including a mill, a bakery and storage facilities with a total surface of 2,000 square metres assigned to the Nedra company.
11. In late 1996, as alleged by the Government, or in early 1998, as alleged by the applicant, he and his family left their estate as they were constantly threatened by Chechen rebel fighters, who then moved in.
12. At the beginning of September 1999 the fighters left and the applicant and his family returned to their estate. According to the applicant, they found quarters that had been built by the fighters on the plot of land using the applicant's building materials, but the houses, industrial premises and equipment had remained intact and they restarted their business.
13. In early October 1999 the Russian Government launched a counter-terrorist operation in the Chechen Republic. Fearing possible attacks, the applicant and his relatives left the village.
14. On 13 October 1999 the Tambov consolidated police units of the Ministry of the Interior (Тамбовский сводный отряд милиции МВД РФ – “the police units”) moved onto the applicant's estate.
15. On 19 October 1999 the applicant and his family tried to return, but the police units denied them access to the estate.
16. On 4 November 1999 the applicant requested the Nadterechny Temporary Office of the Interior (временный ОВД Надтеречного района – “the VOVD”) to vacate his houses and industrial premises.
17. By a letter of 19 December 1999 the VOVD refused the applicant's request. The letter stated that they would only vacate the buildings after the termination of the hostilities in the region and the withdrawal of the Russian troops. As to the alleged damage to the applicant's property, the letter advised him to lodge a compensation claim with a court.
18. Since, at the material time, the courts on the territory of the Chechen Republic were inoperative, the applicant only submitted his claims in January 2001.
19. The applicant and his family spent the winter of 1999-2000 in a refugee tent camp in the village of Znamenskoye, Chechnya. According to him, poor living conditions in the camp resulted in the death of his nephew, who was one year and seven months' old. The applicant submitted medical death certificate no. 00-172 issued in respect of his nephew on 29 December 2000. It states that the boy died of acute double bronchial pneumonia. The date and place of death are recorded as 27 December 1999, Northern refugee camp. The applicant also claimed that the health of other family members had seriously deteriorated.
20. On 27 January and 16 October 2000 respectively, the head of the local council of the village of Bratskoye (глава органа местного самоуправления с. Братское) issued three similar certificates in respect of the applicant, his brother and their company Nedra, stating that federal police units had been occupying the applicant's estate since 13 October 1999 and refused to move out.
21. On 25 May 2000, upon the applicant's request, the military commander of the Nadterechny District (военный комендант Надтеречного района) ordered the police units to ensure that no damage would be caused to the applicant's property. According to the applicant, no measures to protect his property followed.
22. On 26 May 2000, upon the applicant's request, a commission composed of the head of the local council of Bratskoye, representatives of planning and building organisations (представитель проектной организации, представитель подрядной организации) and the military commander drew up evaluation reports (дефектные акты) reflecting in detail the poor state of the applicant's property (see paragraphs 63-67 below).
23. Another commission made up of the head of the local council and several residents of Bratskoye issued a certificate stating that federal interior troops had been stationed on the applicant's estate from 13 October 1999 until 26 May 2000, and that they had damaged the applicant's houses and industrial premises, the damage having been certified by the above-mentioned evaluation reports. The undated certificate was signed and sealed by the commission members and the military commander.
24. In a letter of 12 September 2000 an acting prosecutor of the Nadterechny District (исполняющий обязанности прокурора Надтеречного района) suggested that the military commander should order the police units either to vacate the applicant's house or enter into a lease agreement with him. The commander never responded.
25. By a letter of 25 December 2000 an acting prosecutor of the Nadterechny District invited the applicant to apply to a court in the event of the police units' refusal to follow the above recommendation.
26. From November 1999 to December 2000 the applicant also lodged a large number of complaints with State bodies, including military authorities, prosecutors at various levels and other law-enforcement agencies, regional and federal administrative authorities, seeking eviction of the police units. Mostly he received formal responses by which his complaints were transmitted to other bodies, but no effective measures were taken.
27. In January 2001 the courts in Chechnya became operational again. The applicant, in his own name and on behalf of his brother, brought an action in which he sought the eviction of the Tambov consolidated police units from his estate.
28. By a default judgment of 14 February 2001 the Nadterechny District Court of the Chechen Republic confirmed the title of the applicant and his brother to the plot of land and the houses and industrial premises, with reference to numerous documents submitted by the applicant. The court, having examined the evidence submitted by the applicant, found as follows:
“...Internal troops and police units from various regions of Russia involved in the counter-terrorist operation in the Chechen Republic occupied the houses and industrial premises belonging to the Khamidovs, without seeking approval of the rightful owners and in breach of all the provisions of law in force and the Constitution of Russia. The power structures, called upon to protect the interests of civilians, have themselves turned to breaching the Constitution of Russia...
...
The well-foundedness of [the applicant's] claim can also be confirmed by the district prosecutor's letter addressed to the district military commander, which states that since 13 October 1999 the police units of the federal troops have been occupying the residential and industrial premises belonging to [the applicant] on the western outskirts of the village of Bratskoye in the Nadterechny District. The actions of the police units of the federal forces have flagrantly breached [the applicant's] housing and civil rights secured by the Constitution of Russia and by housing and civil legislation.
...
Earlier, on 25 May 2000, the military commander of the Nadterechny District issued an order obliging the defendant to preserve the Khamidovs' property and upon the expiry of a three-month period to return them their property intact.
The defendant ignored this order.”
The court concluded that the Tambov police units of the Ministry of the Interior had adversely occupied the applicant's estate and ordered their eviction, thus allowing the applicant's claim in full.
29. On 24 February 2001 the judgment came into force and enforcement proceedings were commenced accordingly. A bailiff's attempts to enforce the judgment proved to have been in vain, as the police units refused to comply with the writ of execution. In his attempts to enforce the judgment the bailiff unsuccessfully sought the assistance of the head of the administration of the Nadterechny District, the military commander of the Nadterechny District and the military commander of the Chechen Republic.
30. The applicant's numerous complaints to local and federal administrative bodies were to no avail.
31. On 2 March 2001 the Supreme Court of the Chechen Republic forwarded the applicant's request to enforce the judgment in his favour to the Chechen Minister of Justice and invited him to take the necessary measures.
32. According to the Government, in April 2001, within the statutory time-limit provided for in domestic law for the enforcement of a final judgment, the Tambov police units vacated the buildings on the applicant's estate, but relocated to the applicant's plot of land instead.
33. On 21 May 2001 the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic (Специальный представитель Президента Российской Федерации по соблюдению прав и свобод человека в Чеченской Республике) requested the Russian Minister of the Interior to order the enforcement of the judgment of 14 February 2001. On 18 July 2001 the Special Envoy sent the applicant's new complaint to the Minister of the Interior and stated that he had still not received any reply to his previous query of 21 May 2001.
34. On 22 May 2001 the President of the State Duma Commission for the Promotion of the Normalisation of the Political, Social, and Economic Situation and the Protection of Human Rights in the Chechen Republic (Комиссия по содействию нормализации общественно-политической и социально-экономической обстановки и соблюдению прав человека в Чеченской Республике) notified the Minister of the Interior of the unlawful occupation by the police units of the applicant's estate and their refusal to comply with the judgment in the applicant's favour and requested that the Minister take up the applicant's case, given that it had already attracted the attention of the Commissioner for Human Rights of the Council of Europe.
35. On 30 May 2001 the first deputy-head of the Office of the President of Russia (Администрация Президента – “the President's Office”) transmitted the applicant's complaint to the Minister of the Interior for examination.
36. On 7 June 2001 the General Prosecutor's Office forwarded the applicant's complaint to the prosecutor's office of the Chechen Republic (прокуратура Чеченской республики) “for examination on the merits”.
37. By letter of 13 June 2001 the first deputy commander of the United Group Alignment in the Northern Caucasus (первый заместитель командующего ОГВ(с) в СКР – “the deputy commander”) informed the Nadterechny District Court that the judgment in the applicant's favour had been executed and the defendant units had left the applicant's estate. In reply, on 26 June 2001 a bailiff reported that the judgment remained unenforced. He stated that he had visited the applicant's estate and found out that even though the Tambov consolidated police units had left, the Tula consolidated police units (Тульский сводный отряд милиции) had moved into the applicant's property.
38. On 18 June 2001 the prosecutor's office of the Chechen Republic invited the Chief Bailiff of Russia (главный судебный пристав РФ) to provide information as to what measures had been taken to enforce the judgment in the applicant's favour and whether the question of administrative or criminal liability for evasion from enforcement by the personnel of the consolidated police units had ever been raised. It is unclear whether any answer was given to this query.
39. On 26 June 2001 the Chief Bailiff informed the President's Office that the term allowed for the examination of the applicant's complaint regarding the prolonged non-enforcement had been extended for 30 days.
40. On 27 June 2001 the Ministry of the Interior informed the President's Office that the judgment of 14 February 2001 had been enforced.
41. In a letter of 30 June 2001 the prosecutor's office of the Chechen Republic, with reference to the letter of the deputy commander of 13 June 2001, notified the applicant that the judgment had been executed.
42. According to the Government, on 4 July 2001 the bailiff imposed a fine equal to 200 times the minimum monthly salary on the police units for their refusal to comply with the court judgment. The fine, however, could not be recovered because of delays in the payment of wages to military personnel in Chechnya. The Government also submitted that on 14 July 2001 the Tambov police units had left the territory of the applicant's estate, and the bailiff had closed the enforcement proceedings and returned the writ of execution to the Nadterechny District Court on 17 July 2001, but thereafter the Tula police units had occupied the applicant's estate.
43. On 30 July 2001, in the course of the eviction proceedings, the bailiff drew up three reports on the eviction of the police units from the applicant's houses and industrial premises. The reports listed items of the applicant's property that had been destroyed or damaged and were signed by the applicant, the bailiff and two attesting witnesses (see paragraphs 68-71 below). It does not appear that the actual eviction took place.
44. In a letter of 10 August 2001 a Deputy Chief Bailiff of Russia informed the applicant of the developments in his case, stating that the execution of the judgment depended in fact on the Ministry of the Interior rather than on the efforts of a bailiff.
45. By a letter of 13 August 2001 the President's Office transmitted the applicant's new complaint to the Ministry of Justice. It also referred to the Chief Bailiff's letter of 26 June 2001 and stated that even though 30 days had already passed, no information had been submitted on the developments in the enforcement proceedings.
46. On 26 February 2002 the bailiff reported that on an unspecified date the police had vacated the houses, but remained in quarters they had built on the applicant's land and continued using the applicant's resources for their needs. The report also stated that the Tula consolidated police units had been replaced by the Kaluga consolidated police units (сводный отряд милиции УВД Калужской области), that trenches, check-points and barbed wire restricted access to the land, and that the applicant could not enter it even for a short time, let alone permanently reside there.
47. On 14 June 2002 the bailiff closed the enforcement proceedings, as the police units had finally left the applicant's estate. The bailiff drew up a report on the eviction, briefly indicating the damage to the applicant's property. It was signed by the applicant, the bailiff and two attesting witnesses (see paragraph 72 below).
48. On 30 July 2001 the applicant, acting in his own name and on behalf of his brother, brought an action against the Russian Ministry of the Interior in the Zamoskvoretskiy District Court of Moscow (Замоскворецкий межмуниципальный суд г. Москвы – “the District Court”). He complained that the consolidated police units of the Ministry of the Interior had occupied and wrecked his estate and had been refusing to comply with the judgment of 14 February 2001. He sought recovery of possession of his movables and real property as well as compensation in an amount of 10,787,040 Russian roubles (RUB; approximately EUR 315,732) for pecuniary losses that he had sustained as a result of the adverse occupation of his estate and compensation in an amount of RUB 5,241,175 (approximately EUR 153,418) for the damage caused thereto. The applicant also stated that as a result of the unauthorised occupation of his estate he and his family had had to live in a refugee camp in appalling conditions which had resulted in the death of his nephew, and he claimed compensation of RUB 10,000,000 (approximately EUR 292,685) in respect of non-pecuniary damage.
49. The applicant filed numerous documents in support of his claims, including those confirming his and his brother's title to the houses, industrial buildings and the plot of land, two registration certificates in respect of the Nedra company, his applications to various State bodies and respective replies, a copy of the judgment of 14 February 2001 and the bailiff's reports on the police units' failure to comply with that judgment as well as the certificate issued by the commission made up of the head of the local council of Bratskoye and local residents (see paragraph 23 above), together with the evaluation reports of 26 May 2000 and estimates of repair costs for his property.
50. On 23 January 2002 the District Court delivered its judgment. At the trial the defendant Ministry did not contest, as such, the accuracy of the applicant's submissions or the evidence he had presented, but denied its responsibility for the consolidated police units, stating that they had formed part of the federal troops within the territory of Chechnya and had been under the command of the military authorities of the United Group Alignment. The court made no comment in respect of those submissions by the defendant Ministry. It examined the material before it and established that the applicant owned the property in question, that the local council had certified on 16 October 2000 the unauthorised occupation of that property by federal police units, that the applicant had requested the authorities to ensure his estate be vacated and that by a judgment of 14 February 2001 the Nadterechny District Court had ordered the eviction of the Tambov consolidated police units from the applicant's premises. The court further found as follows:
“The plaintiffs have filed a certificate issued by [the commission composed of] the head of the local council and residents of Bratskoye. The certificate states that the federal military were located on the plaintiffs' estate from 13 October 1999 until 26 May 2000 and that they caused damage to the plaintiffs' property.
The plaintiffs have produced evaluation reports and estimates of repair costs to corroborate their arguments concerning the property damage. The plaintiffs have also adduced a calculation of lost profit ...
Having assessed the evidence in its entirety, the court sees no reason to allow the plaintiffs' claims, since the houses and industrial premises have already been vacated, as the [first] plaintiff has confirmed during the hearing. Besides, another judgment in force ordered the police units' eviction, and enforcement proceedings were commenced.
The court cannot award repair costs and compensation for property damage either, since the plaintiffs have failed to present sufficient proof that their houses and the industrial premises were damaged through the fault of the Ministry of the Interior.
The only evidence the plaintiffs have produced to corroborate their claims is the certificate issued by the head of the local council of Bratskoye, which states that the federal interior troops caused the property damage. However, the court cannot consider this document as evidence, since the date of its issue is missing. Besides, there is nothing in this document to suggest that the real amount of the damage corresponds to that indicated by the plaintiffs.
...
The plaintiffs have adduced photographs of their houses and industrial premises. The court cannot admit these photographs in evidence, since there is no indication that they represent the plaintiffs' houses and industrial premises.
In view of the fact that during the trial the plaintiffs' arguments that it was the Ministry of the Interior which adversely occupied their property have proved groundless, the court finds the Khamidovs' claims unfounded.”
51. The court rejected the applicant's claims accordingly, without separately addressing his claims regarding compensation for the adverse occupation of his estate or that in respect of non-pecuniary damage.
52. The applicant appealed against the above-mentioned judgment. He pointed out, among other things, that the District Court's finding to the effect that “during the trial the plaintiffs' arguments that the Ministry of the Interior unlawfully occupied their property had proved groundless” was arbitrary and contravened Article 55 of the Code of Civil Procedure which stated that the facts established by a court judgment that had entered into force should not have to be proved again during examination of other civil disputes between the same parties. The applicant also claimed that the District Court had been arbitrary in that it had rejected the certificate drawn up by the commission consisting of the head of the local council and residents of Bratskoye by merely referring to the fact that this certificate was undated, even though the said document directly referred to the evaluation reports of 26 May 2000 that had been enclosed with it and submitted to the first-instance court.
53. On 8 April 2002 the Moscow City Court dismissed the applicant's appeal. It restated, in essence, the reasoning of the first-instance judgment and confirmed that all the findings had been correct.
54. The applicant's subsequent requests for supervisory review were to no avail.
55. Among a considerable number of other documents, the applicants submitted the following.
56. Registration certificates nos. 322 and 323 issued on 18 October 2000 by a competent local authority in respect of the applicant's house and that of his brother confirm that the houses belong to the applicant and his brother respectively.
57. A temporary registration certificate of 5 September 1996 issued by a competent authority confirms the transfer of the plot of land of 1.5 hectares to the Nedra company under an indefinite lease.
58. Certified technical descriptions issued to the applicant and his brother for their respective houses and to the Nedra company in respect of the industrial premises indicate the surface area of the buildings (see paragraph 10 above) and contain a plan of the buildings showing their dimensions.
59. The Charter of the Nedra company was approved by its founders on 22 March 1996 and registered with the Chechen Ministry of Justice on 3 April 1996 under number 3398. It states that the multifunctional firm Nedra is a limited liability company and a legal entity. The founders of the company are the applicant and his brother. The Charter stipulates that the founders are the company's owners and that in case of their death the right of ownership shall be transferred to their heirs. The liability of the founders for the company's debts is limited to the amount of their shares. They are empowered to appoint the director of the company.
60. Certificate no. 3398 issued by the Chechen Ministry of Justice on 3 April 1996 confirms the registration of the Nedra company on the same date. The certificate states that Nedra is a private company, indicates the company's registered address and the amount of the charter capital and states that the company's “director (founder) is Mr Dzhabrail Abulkhanovich Khamidov”, the applicant's brother.
61. Certificate no. 273 of 16 August 2000 confirms that the Nedra company was re-registered on the same date. It states that Nedra is a private company, indicates the company's registered address and the amount of the charter capital and states that the company's “director (founder) is Mr Dzhabrail Abulkhanovich Khamidov”.
62. Extract no. 602a of 1 December 2006 from the Unified State Register of Legal Entities provides a very detailed account regarding the Nedra company, stating, in particular, that “the founders (owners) of the company are two natural persons”, namely the applicant and his brother.
63. The applicants submitted four evaluation reports issued in the presence of the applicant and his brother on 26 May 2000 by a commission composed of the deputy head of the commission, Mr I., the head of the local council of Bratskoye, Mr T., a representative of the planning organisation, Mr M., and a representative of the building organisation, Mr Ib. The reports are countersigned by the military commander of the Nadterechny District, General-Major K., and the head of the administration of the Nadterechny District, Mr Z. The reports are issued in respect of the applicant's house, his brother's house, the storage facility and the industrial equipment and state that each item of the property in question has been damaged and that its restoration requires a certain amount of work as listed below.
64. The report issued in respect of the applicant's house lists the following types of work:
Repair of the roof – 140 square metres;
Interior plasterwork – 190 square metres;
Double whitewashing of walls – 1,150 square metres;
Installation of 4 doorways measuring 2.6 x 1.3 metres – 14 square metres;
Installation of 9 doorways measuring 2.2 x 1.8 metres – 22 square metres;
Installation of 7 window openings – 28 square metres;
Glazing of windows – 110 square metres;
Cementing of the floor – 250 square metres;
Covering of the floor with linoleum – 250 square metres;
Repair of two boilers;
Laying of 20 mm heating pipes – 10 metres;
Laying of 32 mm heating pipes – 50 metres;
Laying of 50 mm heating pipes – 160 metres;
Installation of 20 heating radiators – 48 equivalent square metres;
Repair of the ceiling – 30 cubic metres;
Sanitary equipment – 100 per cent;
Electrical equipment – 100 per cent;
Major repair of electric wiring – 400 metres;
Covering of the floor with ceramic tiling – 48 square metres;
Covering of the walls with ceramic tiling – 50 square metres;
Painting of doors, windows, pipes and radiators – 280 square metres;
Repair of the iron fence – 80 metres;
Repair of 50 [concrete fence] blocks – 25 square metres;
Backfilling of the dug-outs and trenches – 100 per cent;
Removal of debris – 20 cubic metres;
Repair of a gravel driveway – 2,400 square metres.
65. The report issued in respect of the house belonging to the applicant's brother lists the following work:
Repair of the roof – 110 square metres;
Interior plasterwork – 60 square metres;
Installation of 4 doorways – 9.7 square metres;
Installation of 3 window openings – 12 square metres;
Glazing of windows – 63 square metres;
Cementing of the floor – 150 square metres;
Covering of the floor with linoleum – 180 square metres;
Major repair of electric wiring – 400 metres;
Repair of a boiler;
Laying of 20 mm heating pipes – 5 metres;
Laying of 32 mm heating pipes – 40 metres;
Laying of 50 mm heating pipes – 120 metres;
Installation of 11 heating radiators – 26 equivalent square metres;
Repair of the ceiling – 20 cubic metres;
Sanitary equipment – 100 per cent;
Electrical equipment – 100 per cent;
Covering of the floor with ceramic tiling – 40 square metres;
Covering of the walls with ceramic tiling – 28 square metres;
Painting of doors, windows, pipes and batteries – 85 square metres;
Repair of the iron fence – 100 metres;
Repair of the gates measuring 3.5 x 5 metres;
Repair of 62 [concrete fence] blocks – 37 square metres;
Backfilling of the dug-outs and trenches – 100 per cent;
Removal of debris – 20 cubic metres.
66. As regards the storage facility the report lists at the outset three types of necessary work revealing that the roof was destroyed completely. The report continues as follows:
Replacement of 4 entrance gates – 86 square metres;
Replacement of 2 exit gates – 34 square metres;
Installation of 8 window openings – 24 square metres;
Glazing of windows – 48 square metres;
Covering of 8 windows with bars – 24 square metres;
Cementing of the floor – 1,600 square metres;
Installation of paving borders – 180 metres;
Repair of the paving around the building – 240 square metres;
Asphalting of an area of 1,400 square metres;
Repair of two boilers;
Installation of 2 heating radiators;
Repair of a gas-flow line – 200 metres;
Major repair of electric wiring – 500 metres;
Electrical equipment – 100 per cent;
Installation of electric cable – 120 metres;
Repair of 26 luminescent bulbs;
Repair of 3 electric control units;
Repair of 4 electric switches;
Repair of 186 [concrete fence] blocks – 112 square metres;
Backfilling of the dug-outs and trenches – 100 per cent;
Removal of debris – 50 cubic metres;
Repair of a gravel driveway – 3,600 square metres.
67. The report issued with respect to the industrial equipment states that the mill machinery and the mini-bakery had been disassembled completely.
68. The applicant submitted three bailiff's reports on the eviction of the police units dated 30 July 2001 (see paragraph 43 above). The reports were drawn up in respect of the applicant's house, his brother's house and the industrial equipment and premises, in the presence of the applicant, his brother and two attesting witnesses. They are signed by the applicant, the bailiff and the witnesses. The reports list the items of the applicant's property that were destroyed or damaged and indicate the degree of damage caused.
69. The report relating to the applicant's house provides the following details:
The roof is damaged – 140 square metres;
The plaster inside the building is damaged – 190 square metres;
The ceiling is damaged – 48 square metres;
9 window openings are broken – 22 square metres;
Window glass is broken – 110 square metres;
4 doorways measuring 2.6 x 1.3 metres have been removed – 14 square metres;
9 doorways measuring 2.2 x 1.1 metres have been removed – 22 square metres;
The heating system is non-functional and has been disassembled completely – 100 per cent;
Floor linoleum has been removed – 250 square metres;
Floor ceramic tiles have been removed – 48 square metres;
A bath and sanitary facilities are missing – 100 per cent;
A fence of iron sheets is missing – 80 square metres;
50 [concrete fence] blocks are missing – 25 square metres;
A drinking water well has been filled up with debris – 100 per cent;
Electric wiring has been dismantled;
Furniture and household belongings are missing completely – 100 per cent;
Infrastructure inside and around the building is damaged because of trenches, dug-outs and debris;
A driveway's hard coating is broken completely – 2,400 square metres.
70. The report drawn up in respect of the house of the applicant's brother lists damage as follows:
The roof is damaged – 110 square metres;
The plaster inside the building is damaged – 60 square metres;
7 doorways have been removed – 9.7 square metres;
3 window openings are broken – 12 square metres;
Window glass is broken – 63 square metres;
Floor linoleum has been removed – 180 square metres;
Floor ceramic tiles have been removed – 40 square metres;
The heating system is non-functional, a boiler and heating radiators have been removed – 100 per cent, to be restored completely;
A bath and sanitary facilities are missing – 100 per cent;
A fence of iron sheets is missing – 100 square metres;
62 [concrete fence] blocks are missing – 37 square metres;
Iron entrance gates are missing – 17.5 square metres;
Electric wiring has been dismantled – 100 per cent;
Infrastructure inside and around the building is damaged (trenches, dug-outs, debris) – 100 per cent;
Furniture and household belongings are missing completely – 100 per cent.
71. The report drawn up in respect of the industrial equipment and premises states as follows:
Mill machinery has been disassembled;
A four-core cable is missing – 890 metres;
Bakery equipment is missing completely;
The roof has been dismantled – 2,000 square metres;
4 entrance gates have been removed – 85 square metres;
2 exit gates have been removed – 34 square metres;
8 window openings with bars have been removed – 24 square metres;
Window glass is missing – 48 square metres;
2 iron main beams are damaged – 22 metres;
The concrete ceiling is damaged – 1,600 square metres;
The paving around the building is broken – 240 square metres;
An asphalt area of 1,400 square metres is broken;
The heating system in the mill has been destroyed – 100 per cent;
A gas-flow line has been destroyed – 200 metres;
Electric illumination of the mill has been destroyed – 100 per cent;
186 [concrete] blocks are missing from the fence – 112 square metres;
A driveway's hard coating is broken completely – 3,600 square metres;
An area of 3,500 square metres has been alienated and re-planned and [built upon] using the materials [of the applicant and his brother].
72. The report of 14 June 2002 states that the police units were evicted from “[the applicant's] private house and the Nedra company's premises”. The state of the house is described as follows:
The heating system has been destroyed;
The ceiling has been dismantled;
The electric wiring has been destroyed;
Doors are missing completely;
Windows are partly broken.
73. The Government did not furnish the Court with any documents before the admissibility decision was taken. After the case was declared admissible the Government submitted a number of documents, including certificate no. 3398 of 3 April 1996 (see paragraph 60 above), a temporary registration certificate of 5 September 1996 (see paragraph 57), a decision of 4 January 2000 taken by the applicant's brother to re-register the Nedra company in accordance with the Russian legislation in force and to appoint the applicant as the company's director, an evaluation report of 26 May 2000 issued in respect of the storage facility (see paragraph 66), certificate no. 273 of 16 August 2000 (see paragraph 61), registration certificate no. 322 of 18 October 2000 (see paragraph 56) and extract no. 10123 of 17 January 2007 from the Unified State Register of Legal Entities which provides information identical to that contained in extract no. 602a (see paragraph 62).
74. The other documents submitted by the Government may be summarised as follows.
75. A certificate of 12 January 2007 issued by a housing authority of the Nadterechny District states that the residential properties of the village of Bratskoye have never been included in a register for administration by the said housing authority and that the latter has no information as to whether the applicant and his brother have any housing.
76. A written explanation given by Mr T., the head of the local council of Bratskoye, on 12 January 2007 states that the applicant and his brother used to live in Bratskoye but no longer reside there. According to Mr T., in 1995 the applicant was assigned a plot of land of 1.5 hectares for construction purposes and the applicant built a storage facility and two houses thereon. The explanation further states that in the period from 1997 to 1999 the applicant's estate was occupied by Chechen rebel fighters who had built quarters on the applicant's land and that in late 1999 they were replaced by federal police who remained on the estate until 2001 or 2002. In Mr T.'s submission, he does not remember the exact period during which various military structures were placed on the applicant's estate, and cannot indicate the legal basis for the occupation of the estate. According to him, “after the police units left, the situation on the estate was as it is now; there were only slight defects in the rooms of the house, which we reported when drawing up documents”. In his explanation Mr T. submits that he does not remember the date on which the said documents were drawn up, and that the local council of Bratskoye does not have these documents at its disposal.
77. One of three certificates issued by Mr T., the head of the local council of Bratskoye, on 12 January 2007 states that the limited liability company Nedra situated on a plot of land of 1.5 hectares on the outskirts of Bratskoye is registered in the names of the applicant and his brother, but the latter two, themselves, are not registered in the village. The remaining two certificates state that the houses of the applicant and his brother respectively are not listed in the property register of the village of Bratskoye.
78. Two certificates issued by the State enterprise “Russian Real Estate Centre” on 12 January 2007 state that “as a result of military actions within the territory of the Chechen Republic the archive of the Chechen branch of the Russian Real Estate Centre was completely destroyed (burnt)” and that “according to the archive data since 27 April 2000, as at the date of 12 January 2007, there is no housing registered for the applicant and his brother respectively”.
79. The Government submitted a number of photographs taken on 12 January 2007 which represent two houses photographed from the outside and situated in close proximity to each other and a long construction with a missing roof and missing floor. Some photographs represent a partly broken fence made from concrete blocks. The Government did not make any comments regarding the photographs.
80. The Government also submitted three undated evaluation reports drawn up in the applicant's presence by a commission comprising a technical expert, Mr I., a representative of the administration of the Nadterechny District, Mr Ib., and the head of the local council of Bratskoye, Mr T. The reports are countersigned by the deputy head of the administration of the Nadterechny District. They do not specify in respect of which particular building they are made, but contain a hand-drawn plan of the respective building and indicate the work required to restore the property.
81. One of the reports lists work very similar to that indicated in the evaluation report of 26 May 2000 issued in respect of the applicant's house (see paragraph 64 above):
Repair of the roof – 140 square metres;
Interior plasterwork – 1,150 square metres;
Double whitewashing of walls – 1,150 square metres;
Installation of 4 doorways measuring 2.6 x 1.3 – 14 square metres;
Installation of 9 doorways measuring 2.2 x 1.1 – 22 square metres;
Installation of 7 window openings – 28 square metres;
Glazing of windows – 110 square metres;
Cementing of the floor – 250 square metres;
Covering of the floor with linoleum – 250 square metres;
Repair of two boilers;
Laying of 120 mm heating pipes – 10 metres;
Laying of 32 mm heating pipes – 50 metres;
Laying of 50 mm heating pipes – 160 metres;
Installation of 20 heating radiators – 48 equivalent square metres;
Repair of the ceiling – 30 cubic metres;
Sanitary equipment – 100 per cent;
Electrical equipment – 100 per cent;
Major repair of electric wiring – 400 metres;
Covering of the floor with ceramic tiling – 48 square metres;
Covering of the walls with ceramic tiling – 50 square metres;
Painting of doors, windows, pipes and batteries – 280 square metres;
Repair of the iron fence – 80 metres;
Replacement of 50 [concrete fence] blocks – 25 square metres;
Backfilling of the dug-outs and trenches – 100 per cent;
Repair of a gravel driveway – 2,400 square metres.
82. Another report lists work very similar to that indicated in the evaluation report of 26 May 2000 issued in respect of the house of the applicant's brother (see paragraph 65 above), such as:
Repair of the roof – 110 square metres;
Interior plasterwork – 450 square metres;
Installation of 4 doorways – 9.7 square metres;
Installation of 3 window openings – 12 square metres;
Glazing of windows – 63 square metres;
Cementing of the floor – 150 square metres;
Covering of the floor with linoleum – 180 square metres;
Major repair of electric wiring – 300 metres;
Repair of a boiler;
Laying of 20 mm heating pipes – 5 metres;
Laying of 32 mm heating pipes – 40 metres;
Laying of 50 mm heating pipes – 120 metres;
Installation of 11 heating radiators – 26 equivalent square metres;
Repair of ceiling – 20 cubic metres;
Sanitary equipment – 100 per cent;
Electrical equipment – 100 per cent;
Covering of the floor with ceramic tiling – 40 square metres;
Covering of the walls with ceramic tiling – 28 square metres;
Painting of doors, windows, pipes and batteries – 85 square metres;
Repair of the iron fence – 100 metres;
Repair of the gates measuring 3.5 x 5 metres – 17.5 square metres;
Replacement of 62 [concrete fence] blocks – 37 square metres;
Backfilling of the dug-outs and trenches – 100 per cent;
Removal of debris – 20 cubic metres.
83. The third report lists work very similar to that indicated in the evaluation report of 26 May 2000 issued in respect of the industrial premises (see paragraph 66 above). In particular, the first three types of work indicate that the roof of the respective building has been completely destroyed. The report further states as follows:
Installation of 4 entrance gates – 86 square metres;
Installation of 2 exit gates – 34 square metres;
Repair of 8 window openings – 24 square metres;
Glazing of windows – 48 square metres;
Covering of 8 windows with bars – 24 square metres;
Cementing of the floor – 1,600 square metres;
Installation of paving borders – 180 metres;
Repair of the paving around the building – 240 square metres;
Asphalting of an area of 1,400 square metres;
Repair of two boilers;
Installation of 2 heating radiators;
Repair of a gas-flow line – 200 metres;
Major repair of electric wiring – 500 metres;
Electrical equipment – 100 per cent;
Installation of electric cable – 120 metres;
Replacement of 26 luminescent bulbs;
Replacement of 3 electric control units;
Replacement of 4 electric switches;
Repair of 186 [concrete fence] blocks – 112 square metres;
Backfilling of the dug-outs and trenches – 100 per cent;
Removal of debris – 50 cubic metres;
Repair of a gravel driveway – 3,600 square metres.
84. Finally, the Government submitted written statements by eight police officers who were stationed on the applicant's estate at various times in 2000 – 2002. The statements were made in the period between 16 and 18 November 2004. Officer S. submitted that the property had been kept in the same condition in which it had been taken over; officers G. and Sh. stated that nothing had been plundered from the estate, and that the condition of the property had been assessed as being good at the time of its transfer to other police units. Five other officers submitted that they had been stationed in the quarters on the applicant's land plot, and that they had been unaware who had owned the property in question.
85. Article 25 of the Constitution provides that housing shall be inviolable and that no one shall have the right to enter housing against the will of those living there, except in the cases established by a federal law or pursuant to a court decision.
86. Article 35 § 1 states that the right of private property shall be protected by law.
87. Article 40 § 1 provides that no one may be arbitrarily deprived of his or her home.
88. Under Article 55 § 3 the rights and freedoms set forth in the Constitution may only be limited by the federal law to the extent necessary for the protection of the fundamental principles of the constitutional system, morality, health, the rights and lawful interests of other people, or for ensuring defence of the country and security of the State.
89. Article 301 of the Civil Code provides that an owner has the right to recover his property from adverse possession.
90. By virtue of Article 303, an owner, when recovering property from adverse possession, has the right to claim from a person who knows, or should have known, that his possession is adverse (the possessor in bad faith), the return or reimbursement of all profits which that person has, or should have, received during the entire period of the possession.
91. Article 304 states that an owner is entitled to seek the elimination of all violations of his property rights even if such violations do not involve deprivation of possession.
92. Article 1064 provides that damage caused to the property of an individual or of a legal entity shall be compensated for in full by the person who inflicted such damage. The latter may be released from the obligation to make compensation if he or she can prove that the damage was not inflicted through his or her own fault; however, the law may provide for compensation in respect of damage even in the absence of fault by the person who caused it. Damage inflicted by lawful actions shall be compensated for in cases established by law.
93. By virtue of Article 1067, damage inflicted in a situation of absolute necessity, and notably for elimination of a danger threatening the tortfeasor or third parties, if the danger, in the circumstances, could not be eliminated by any other means, shall be compensated for by the tortfeasor. Having regard to the circumstances in which the damage was caused, a court may impose an obligation to compensate for such damage on a third party in whose interests the tortfeasor acted, or release from such an obligation, partially or in full, both the third party and the tortfeasor.
94. Article 1069 stipulates that a State agency or a State official will be liable towards a citizen for damage caused by their unlawful actions or failure to act. Compensation for such damage will be awarded at the expense of the federal or regional treasury.
95. Article 50 of the Code of Civil Procedure states that each party to proceedings must prove those circumstances to which it refers in support of its submissions. A court decides what circumstances are relevant for the case and which party must prove them and proposes those circumstances for discussion even if some of them have not been referred to by any of the parties. Evidence is submitted by the parties and other persons involved in the proceedings. A court may propose that the parties or other persons involved in the proceedings submit additional evidence. If it is complicated for the parties or other persons involved in the proceedings to submit additional evidence, the court, on their request, assists them in obtaining that evidence.
96. Article 55 provides that the facts established by a court judgment that has entered into force will not have to be proved again during examination of other civil disputes between the same parties.
97. Article 117 establishes, as a general rule, that actions must be brought in the court of the defendant's place of residence.
98. Article 118 stipulates the plaintiff's right to bring a claim of compensation for damage to his or her property in the court of his or her choosing – either that of the defendant's place of residence or that of the place where the damage has been caused.
99. Under Article 119, actions concerning the determination of rights over immovable property may only be brought in the court of the place where such property is situated.
100. The Law on Suppression of Terrorism of 25 July 1998 (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом»), as in force at the relevant time provided as follows:
“For purposes of the present Federal Law the following basic concepts shall be applied:
... 'suppression of terrorism' shall refer to activities aimed at the prevention, detection, suppression and minimisation of consequences of terrorist activities;
'counter-terrorist operation' shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts;
'zone of a counter-terrorist operation' shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted; ...”
“1. In the zone of a counter-terrorist operation, the persons conducting the operation shall be entitled:
(1) if necessary, to take measures aimed at temporary restriction or prohibition of vehicle and pedestrian traffic in the streets and on the roads, to prohibit the access of transport vehicles, including those of embassies and consulates, and that of citizens to certain territories or objects, or to remove citizens from certain territories or objects and to tow away transport vehicles;
(2) to check the identity documents of private persons and officials and, where they have no identity documents, to detain them for identification;
(3) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in a counter-terrorist operation, including acts of unauthorised entry or attempted entry to the zone of the counter-terrorist operation, and to convey such persons to the local bodies of the Ministry of the Interior of the Russian Federation;
(4) to enter unimpeded (penetrate) private residential or other premises or plots of land belonging to individuals, or the territory and premises of an organisation regardless of to whom such organisation may belong ... while suppressing a terrorist act or pursuing persons suspected of committing such an act, when a delay may entail a real risk for human life or health;
(5) to search persons, their belongings and vehicles entering or exiting the zone of a counter-terrorist operation, including with the use of technical means;
(6) to use, for duty purposes, any means of communication, including special ones, belonging to a citizen or organisation regardless of to whom such organisation may belong;
(7) to use, for duty purposes, transport vehicles belonging to an organisation regardless of to whom such organisation may belong, except for those of embassies, consulates or other representations of foreign States and international organisations, and to use, in the event of emergency, transport vehicles belonging to citizens for the purpose of preventing a terrorist act, or pursuing and detaining persons who committed such an act, or conveying persons in urgent need of medical assistance to medical institutions, and arriving at the scene of an incident.
2. In the zone of a counter-terrorist operation, the activity of representatives of the mass-media shall be regulated by the head of the operational headquarters for a counter-terrorist operation, unless federal law provides otherwise.”
“On the basis of the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of a counter-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.”
101. Section 9 of the Law on Enforcement Proceedings provides that a bailiff's order on the institution of enforcement proceedings must fix a time-limit for the defendant's voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.
102. Under Section 13, enforcement proceedings should be completed within two months following receipt of the writ of enforcement by the bailiff.
103. Decree no. 1255c of the Russian President “On Measures Aimed at Increasing the Effectiveness of Counter-Terrorist Operations within the Territory of the North-Caucasian Region of the Russian Federation” of 23 September 1999 (указ Президента Российской Федерации от 23 сентября 1999 № 1255с «О мерах по повышению эффективности контртеррористических операций на территории Северо-Кавказского региона Российской Федерации») provided that the United Group Alignment be formed in the North-Caucasian region from units and detachments of the Russian armed forces, those of the interior troops and departments of the Russian Ministry of the Interior, departments of the Russian Ministry for Emergency Situations, those of the Federal Security Service and the Federal Guard Service. The decree also empowered the commander of the United Group Alignment to take decisions that were binding for all the forces forming the United Group Alignment.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22881
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: KUZDUBOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Mieczysław Kuźdubowski, is a Polish national, who was born in 1937 and lives in Kalisz.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was employed in the Zjednoczone Zakłady Gazów Technicznych in Warsaw, a state owned company, which was subsequently acquired by the Liquid Carbonic Poland Ltd (“LCP”).
In 1989 the applicant and his colleague T.J. invented a new, modernised system of water management for their company (projekt racjonalizatorski pt. Modernizacja gospodarki wodnej w WGT Polgaz). The system came into use in March 1990.
Under the relevant legislation the applicant and T.J. should have been remunerated for their project. They had reached the settlement with the company in respect to the payment but it was not effected.
Subsequently, the applicant and T.J. sued the company for payment. They filed their statement of claim with the Warsaw Regional Court (Sąd Wojewódzki) on 19 May 1993.
On 29 June 1993 the Warsaw Regional Court ordered the applicant to pay court fees. Later, on an unspecified date the court granted him an exemption from court fees.
On 21 July 1993 the applicant modified his claim.
On 27 October 1993 the court held a hearing. The Government submit that the applicant asked the court to adjourn the hearing. The applicant argues that he had never asked for the hearing to be adjourned.
On 28 October 1993 the applicant submitted a settlement proposal. In a letter of 22 November 1993 “LCP” informed that the applicant’s claim was partially granted and asked him to submit further documentary evidence.
On 24 November 1993 the applicant filed another statement of claim.
On 29 November 1993 the applicant filed with the Warsaw Regional Court yet another statement of claim. On the same date he also withdrew his statement of claim of 24 November 1993.
On 27 April 1994 the court held a hearing but the applicant failed to appear.
The court held further hearings on 20 February 1995, 29 June 1995 and 7 February, 10 June, 23 October 1996. It heard evidence from the applicant and five witnesses.
The applicant submits that on an unknown date in November or December 1996 the court held yet another hearing.
The applicant was not present during the hearing held on 20 January 1997. On that date the court heard evidence from an expert.
On 31 January 1997 the court ordered that expert evidence be obtained. On 12 February 1997 one expert returned the case-file submitting that he was not competent to prepare a report. On 25 February 1997 the court transferred the file to another expert, who again was not competent to deal with case. On 26 May 1997 the Warsaw Regional Court asked yet another expert to prepare a report. In his letter of 26 June1997 the applicant asked the court to reverse its decision to obtain expert evidence and to determine the claim on the basis of evidence as it stood at that time. Despite that, on 8 July 1997, the court ordered that evidence from a new expert be obtained.
On 28 October 1997 the report was submitted to the court. The applicant contested the report.
On 16 February 1998 the court held a hearing. It closed the examination of the case and informed the parties that the final decision would be delivered on 2 March 1998. The applicant was present during that hearing.
The Warsaw Regional Court gave judgment on 2 March 1998 in the applicant’s absence. The applicant appealed but he failed to comply with formal requirements which resulted in his appeal being eventually rejected by the Warsaw Court of Appeal on 5 February 1999.


ITEMID: 001-89384
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KANDZHOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 10;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 5. The applicant has been involved in politics since the beginning of the democratic changes in Bulgaria in 1990 and was an activist of one of the major political parties in the 1990s, the Union of Democratic Forces (“UDF”). He played an active role in the UDF’s campaign during the parliamentary elections in April 1997. After the elections, he grew gradually disenchanted with the UDF’s policies and some of its leaders. He was particularly disappointed by Mr Teodosiy Simeonov, a UDF Member of Parliament from the Pleven constituency and head of the UDF branch in Pleven. On 4 February 1999 the applicant, together with a few other members of the UDF, formed the “Committee against corruption in the UDF – Pleven”. In his capacity as chairman of the committee, the applicant wrote to the Prime Minister, who was also leader of the UDF, alleging that Mr Simeonov had been heavily involved in political intrigue and corruption.
6. On 18 December 1999 Mr Simeonov was reelected as head of the Pleven branch of the UDF and on 21 December 2000 appointed as Minister of Justice.
7. On 1 June 2000, in an interview discussing the widely publicised trial of five Bulgarian nurses facing the death penalty in Libya, Mr Simeonov expressed the opinion that Libya was not a “white” country. This statement was severely criticised by the press and sparked a protest from the Libyan ambassador to Bulgaria. On 14 June 2000 the daily newspaper Monitor ran an editorial expressing the opinion that with his statement Mr Simeonov was “on his way to being ranked ‘top idiot’ of the year”.
8. In the beginning of July 2000 the applicant, together with some friends and political supporters, founded an initiative committee to campaign for Mr Simeonov’s resignation. On 7 July 2000 he notified the mayor of Pleven that on 10, 11 and 12 July 2000 in the centre of Pleven UDF supporters would gather signatures calling for the resignation of “the top idiot of the Bulgarian Government – Teodosiy Simeonov”. The organisers planned to gather signatures between 9 a.m. and 5 p.m. on the abovementioned days at four stands placed in front of the town hall, the district police station, the theatre and the Monument to the Unknown Soldier – all in the centre of Pleven.
9. On 7 July 2000 the deputy mayor, who at the time was acting as mayor, refused to give permission for the gathering of signatures. His refusal was based on a lack of evidence that the applicant had been authorised to represent the initiative committee. The mayor further reasoned that coordination was necessary in order to ensure “the safety of citizens and buildings pursuant to Regulation no. 1 on the maintenance and protection of public order and public property in the municipality of Pleven” and invited the applicant, if he insisted on carrying out the action, to discuss where exactly the tables could be placed. On 9 July 2000 the police tried to apprise the applicant of this refusal but could not find him at his address.
10. At about 9 a.m. on 10 July 2000, while on his way to one of the signaturegathering stands, the applicant was stopped in front of the district police station by the head of the police department, who informed him about the deputy mayor’s refusal. The applicant, who was determined to go ahead with his plan, went to the town hall and met with the deputy mayor, but did not reach an agreement with him.
11. The applicant decided to complete the planned action. He put in the centre of Pleven two stands and two posters reading “We, the supporters of the UDF, call for the resignation of the top idiot of the Government Teodosiy Simeonov”. A number of people, including some police officers, gathered around the stands.
12. At 11.35 a.m. the same day a police officer warned the applicant in writing that he should remove the stands, pending approval of their locations by the deputy mayor. The applicant refused to take them away, as he considered that the placing of stands on public ground did not amount to a breach of public order and that the law did not require him to seek permission from the mayor for that.
13. At 12.30 p.m. another police officer ordered the applicant’s arrest. The order was based on section 70(1) of the 1997 Ministry of Internal Affairs Act and Articles 148 § 1 (1) and (3) and 325 § 2 of the 1968 Criminal Code (see paragraphs 27 and 30 below). It did not set out the specific acts alleged against the applicant. Immediately after that the police arrested the applicant and seized the two posters.
14. Later in the day the police officer who had ordered the applicant’s arrest instituted a criminal investigation against him for publicly insulting the Minister of Justice in his official capacity, contrary to Article 148 § 1 (1) and (3) of the 1968 Criminal Code, and for performing indecent actions, grossly violating public order, and demonstrating overt disrespect for society, characterised by exceptional cynicism and arrogance, contrary to Article 325 § 2 of the Code (see paragraphs 27 and 30 below). He did not specify exactly what acts the applicant had carried out.
15. The applicant was questioned at 6.30 p.m. He pleaded not guilty and refused to make any statements until the arrival of his counsel.
16. On 11 July 2000 the Pleven District Prosecutor’s Office received a complaint by Mr Simeonov who requested that criminal proceedings for insult under Article 148 and for hooliganism under Article 325 of the 1968 Criminal Code be instituted against the applicant.
17. The same day a prosecutor of the Pleven District Prosecutor’s Office, acting on the proposal of the police and pursuant to his powers under Article 152a § 3 of the 1974 Code of Criminal Procedure (see paragraph 34 below), ordered that the applicant be detained for seventy-two hours, starting at 12.30 p.m. that day, pending a ruling by the Pleven District Court on whether he should be placed in “pretrial detention”. He noted that proceedings had been instituted against the applicant on charges of insult and hooliganism and stated, inter alia, that there was a real risk that he would flee or reoffend. The applicant’s counsel immediately appealed against the order to the Pleven Regional Prosecutor’s Office. She did not receive a reply.
18. On the same day the investigator in charge of the case interviewed Mr Simeonov. He said that he had felt very insulted and humiliated by the campaign for his resignation and by the description of him as a “top idiot”. He had learned about the events from his son and had immediately telephoned the deputy mayor, the vicechairman of the UDF in Pleven and the head of the district police department, insisting that they “ensure public order”. The investigator also interviewed two police officers who had eyewitnessed the events of 10 July 2000.
19. On 12 July 2000 the investigator interviewed the deputy mayor, the vicepresident of the UDF in Pleven and the applicant’s father. The interviews finished at 4.45 p.m.
20. At 11 a.m. on 14 July 2000 the Pleven District Court examined the request for placing the applicant in “pre-trial detention” at a public hearing. It heard submissions from the prosecutor and the applicant’s counsel. It held that, while there were indications that the applicant had committed the offence alleged against him, it was not necessary to place him in “pre-trial detention”, because there was no risk that he would abscond or reoffend. The court also noted certain health problems experienced by the applicant. It decided to release him on bail. The applicant apparently paid the bail immediately after the hearing, which finished at 11.30 a.m., and was released.
21. The investigation against the applicant was completed on 24 July 2000 and the case file was sent to the Pleven District Prosecutor’s Office. On 25 July 2000 it indicted the applicant, accusing him of aggravated hooliganism. The insult charges had apparently been dropped earlier.
22. After holding a trial, in a judgment of 23 April 2001 the Pleven District Court found the applicant guilty of aggravated hooliganism, contrary to Article 325 § 2 of the 1968 Criminal Code (see paragraph 27 below) and sentenced him to four months’ imprisonment, suspended for three years.
23. Upon an appeal by the applicant, on 25 September 2001 the Pleven Regional Court quashed the lower court’s judgment and acquitted him.
24. The Pleven Regional Prosecutor’s Office appealed on points of law. The appeal was examined by the Supreme Court of Cassation at a public hearing which took place on 15 January 2002. The prosecution, which was represented by a prosecutor of the Supreme Cassation Prosecutor’s Office, expressed the opinion that the acquittal was correct and should be upheld.
25. In a final judgment of 11 February 2002 the Supreme Court of Cassation upheld the applicant’s acquittal in the following terms:
“... The court of first instance failed to give any arguments, but merely declared that [the applicant’s] acts amounted to ‘a brutal demonstration against the established order’ and had caused ‘considerable harm’ to this order. ...the testimony of the persons authorised to preserve public order – the [police officers] questioned as witnesses, and in particular, [one of them], who was specifically asked about this – shows that no ‘disarray, commotion or breach of public order’ had occurred at the place where [the applicant] and the other UDF supporters had organised the gathering of signatures in support of the removal from office of the then Minister of Justice T. Simeonov. The only thing which could be characterised as scandalous is the label ‘top idiot’ accompanying the name of the witness Simeonov on the two posters explaining the aim of the event. However, there is no evidence whatsoever that the use of these words was intended to discredit T. Simeonov by lowering his prestige and dignity.”
26. The court went on to say that it was public knowledge that a month before the events of 10 July 2000 Mr Simeonov had made an unacceptable statement in respect of Libya, which, in view of its potentially damaging repercussions for relations between the two countries, had been assessed very negatively by the press and had eventually led to the loss of his post. It was the press that had first called Mr Simeonov a “top idiot” and there was no indication that any newspaper had been called upon to answer for this phrase. It was thus completely natural for the applicant, when calling for the Minister’s resignation, to use the same phrase, thus expressing the public – and not merely his own – attitude towards Mr Simeonov’s activities. On this basis, the court concluded that:
“It is clear from the above, that, as regards the subjective element, no offence under Article 325 §§ 1 or 2 [of the 1968 Criminal Code] has been committed, because there were no acts which meant to breach public order or demonstrate overt disrespect for society. The offence alleged against [the applicant] was not objectively committed either: there was no public disorder and the presence of police officers at the site was due to the need to prevent possible incidents. The expression of indignation by [some of the persons who were present there], which was an act of political support for T. Simeonov, cannot be seen as a consequence of hooliganism either.”
27. Article 325 §§ 1 and 2 of the 1968 Criminal Code, as in force at the relevant time, provided:
“1. Whoever carries out indecent actions which grossly violate public order and show overt disrespect for society shall be punished for hooliganism by up to two years’ imprisonment or by corrective labour, as well as by public reprimand.
2. If the actions are accompanied by resistance against [a law enforcement officer], or are characterised by exceptional cynicism or arrogance, the penalty shall be up to five years’ imprisonment.”
28. In a binding interpretative decision made in 1974 (Постановление № 2 от 29 ноември 1974 г. по н.д. № 4/1974 г., Пленум на ВС), the Supreme Court defined the elements of hooliganism. The first element is the perpetration of indecent actions, which are described as actions which are “improper or impudent, expressed through curses, raving, bad manners or other actions scandalising society”. Indecent actions must both grossly violate public order and demonstrate overt disrespect for society. Gross violation of public order occurs when “through his actions the perpetrator makes a brutal demonstration against the established order”. These actions violate “important State, public or personal interests or substantially affect morality”. “Overt disrespect for society” is present when through his actions the perpetrator “openly demonstrates a high level of disrespect for the individuals and the rules of society”.
29. According to the decision, “exceptional cynicism” within the meaning of paragraph 2 of Article 325 is present when “the acts of hooliganism are particularly impudent, grossly violate moral values and affect citizens’ feelings”. Obscene actions which are performed in public and cause indignation in society are also “exceptionally cynical”. “Exceptional arrogance” is present when “the actions gravely and persistently affect public and personal interests and express a disparaging attitude towards public order or other public or personal interests”. These actions “scandalize society and demonstrate rude impudence or cause grave insult”.
30. Insult is a criminal offence under Article 146 of the 1968 Criminal Code. It is aggravated if committed in public and/or in respect of public officials carrying out their duties (Article 148 § 1 (1) and (3) of the Code). Prior to March 2000 it was privately prosecutable save in cases where the victim was a public official (Article 161 of the Code, as in force before March 2000). After an amendment to the Code of March 2000 insult became privately prosecutable in all cases and was no longer punishable with a term of imprisonment. This means that there is no pretrial investigation (Articles 171 and 240 of the 1974 Code of Criminal Procedure and Articles 191 and 247 § 1 of the 2005 Code of Criminal Procedure) and that no preventive measures, such as pretrial detention or bail, may be imposed on the accused, as they are possible solely in respect of publicly prosecutable offences (Article 146 of the 1974 Code and Article 56 § 1 of the 2005 Code). Pretrial detention is not permissible either, as it can only be imposed when the charges concern an offence punishable with a term of imprisonment or a harsher penalty (Article 152 § 1 of the 1974 Code and Article 63 § 1 of the 2005 Code).
31. Under the 1997 Ministry of Internal Affairs Act, as in force at the relevant time, the police could, on the basis of a written order to that effect (section 72(1)), arrest an individual who had committed a criminal offence (section 70(1)(1)). An individual taken in police custody was entitled to be assisted by counsel and seek judicial review of his detention (section 70(3) and (4)). The application had to be examined immediately (section 70(3) in fine). Police detention under section 70(1)(1) and (1)(2) could not exceed twentyfour hours (section 71 in fine).
32. Police detention under section 70(1)(1) was lawful only if it immediately preceded the opening of a preliminary investigation against the arrestee (реш. № 9779 от 24 ноември 2004 г. по адм. д. № 4925/2004 г., ВАС, V отд.). It was imposed with a view to instituting such a preliminary investigation (реш. № 3996 от 13 април 2006 г. по адм. д. № 9362/2005 г., ВАС, V отд.). The power to detain was given to the police to assist them in the investigation of crime (реш. № 1812 от 27 февруари 2003 г. по адм. д. № 10831/2002 г., ВАС, V отд.; реш. № 810 от 27 януари 2005 г. по адм. д. № 6185/2004 г., ВАС, V отд.; реш. № 2550 от 21 март 2005 г. по адм. д. № 7391/2004 г., ВАС, V отд.). All reported cases under section 70(1)(1) concern publicly prosecutable offences.
33. Arrest orders under section 70 were administrative decisions. According to the case-law of the Supreme Administrative Court (опр. № 1793 от 17 февруари 2006 г. по адм. д. № 1390/2006, ВАС, V отд.; реш. № 894 от 31 януари 2005 г. по адм. д. № 5783/2004 г., ВАС, V отд.), the persons affected by them could challenge their lawfulness before a court and, if they were set aside, they could seek damages under section 1 of the 1988 State Responsibility for Damage Act (see paragraph 35 below).
34. Article 152a of the 1974 Code of Criminal Procedure, which governs the procedure for imposing “pretrial detention” (“задържане под стража”) under Article 152 of the Code, was changed in its entirety with effect from 1 January 2000, in a bid to bring Bulgarian law in line with Article 5 the Convention (тълк. реш. № 1 от 25 юни 2002 г. по н.д. № 1/2002 г., ОСНК на ВКС). The amended paragraph 3 of Article 152a provided that the investigation and the prosecution authorities had to ensure the immediate appearance of the accused before the competent firstinstance court and, if necessary, detain them until that moment. Such detention could not exceed twentyfour hours if ordered by an investigator and seventytwo hours if ordered by a prosecutor. This distinction was apparently intended to ensure compliance with Article 30 § 3 in fine of the 1991 Constitution, which provides that any deprivation of liberty has to be reviewed by an “organ of the judicial power” within twentyfour hours.
35. Section 1 of the 1988 State Responsibility for Damage Caused to Citizens Act (“the SRDA” – „Закон за отговорността на държавата за вреди, причинени на граждани“ – this was the original title; on 12 July 2006 it was changed to the State and Municipalities Responsibility for Damage Act, „Закон за отговорността на държавата и общините за вреди“), provided that the State was liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties. Section 1(2), as in force at the material time, provided that compensation for damage arising from unlawful decisions could be claimed after the decisions concerned had been annulled in prior proceedings.
36. Section 2 of the SRDA reads, in so far as relevant:
“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful:
1. pretrial detention, including when imposed as a preventive measure, when it has been set aside for lack of lawful grounds;
2. criminal charges, if the person concerned has been acquitted, or if the criminal proceedings have been discontinued because the act has not been committed by the person concerned or did not constitute a criminal offence...”
37. According to the courts’ caselaw, the State is liable for all damage caused by pre-trial detention where the accused has been acquitted (реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС) or the criminal proceedings discontinued on grounds that the charges have not been proven, the perpetrated act is not an offence, or the criminal proceedings were unlawful from the outset because they were opened after the expiry of the relevant limitation period or an amnesty (реш. № 859/ 2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС).
38. In a binding interpretative decision (тълк. реш. № 3 от 22 април 2004 г. на ВКС по тълк.д. № 3/2004 г., ОСГК), made on 22 April 2004 pursuant to the proposal of the President of the Supreme Court of Cassation, the Plenary Meeting of the Civil Chambers of that court resolved a number of contentious issues relating to the construction of various provisions of the SRDA. In point 13 of the decision it held that compensation awarded in respect of the nonpecuniary damage arising under section 2(1) or (2) of the SRDA should also cover nonpecuniary damage stemming from unlawful pre-trial detention imposed during the proceedings, whereas compensation for pecuniary damage resulting from such detention should be awarded separately. The reasons it gave for this conclusion were as follows:
“Pretrial detention is unlawful when it does not comply with the requirements of [the Code of Criminal Procedure].
The State is liable under section 2(1) [of the] SRDA when the pretrial detention has been set aside as unlawful, irrespective of how [the criminal] proceedings unfold later. In such cases compensation is determined separately.
If the person has been acquitted or the criminal proceedings have been discontinued, the State is liable under section 2(2) [of the] SRDA. In that case, the compensation for non-pecuniary damage has to cover the damage resulting from the unlawful pretrial detention. If pecuniary damage has arisen, compensation for it is not included but has to be awarded separately, taking into account the particular circumstances of each case.”
39. Persons seeking redress for damage resulting from decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SRDA have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС, ІV г.о.).
VIOLATED_ARTICLES: 10
5
VIOLATED_PARAGRAPHS: 5-1
5-3


ITEMID: 001-92462
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: GNANDT v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicant, Mr Szilárd Gnándt, is a Hungarian national who was born in 1971 and lives in Edelény. He was represented before the Court by Ms Á. Gyuris, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1997 criminal proceedings were instituted against the applicant. On 15 June 1998 he and 35 accomplices were indicted for fraud and other offences. A first judgment of the Mátészalka District Court was reversed by the Szabolcs-Szatmár-Bereg County Regional Court on 30 April 2004, whose decision was in turn quashed by the Supreme Court on 17 December 2004.
In the repeated proceedings, on 21 April 2005 the Regional Court convicted the applicant of 29 counts of fraud and other offences, and sentenced him to two years' imprisonment. The court appreciated as an important mitigating factor the excessive protraction of the proceedings and stressed that this was the reason for imposing a relatively light sentence. The court went on to hold that, again because of the excessive duration of the proceedings, it was appropriate further to mitigate the punishment by suspending its execution. Once more denoting the length of the trial as its reason, it decided to limit the probationary period to three years. This judgment was upheld by the Debrecen Court of Appeal on 29 September 2005.


ITEMID: 001-100083
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GALINA KUZNETSOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1948 and lives in Zarubino in the Primorye Region.
5. On 12 February 2001 the Khasanskiy District Court of the Primorye Region (the District Court) partly granted the applicant's tort action against a municipal housing maintenance company of the Khasanskiy District and awarded her 48,461.01 Russian roubles (RUB) as compensation for pecuniary damage and RUB 1,200 as compensation for non-pecuniary damage. The district court also ordered that the housing authority should repair the roof, the heating system and the water-pipes in the applicant's house.
6. On 28 March 2001 the Primorye Regional Court amended the judgment on appeal, increased the amount of compensation for pecuniary damage by RUB 8,994.12 and upheld the remainder of the judgment.
7. On 16 January 2002 the respondent company was declared insolvent and the insolvency procedure started.
8. On 26 May 2003 the District Court index-linked the award of 12 February 2001 and held that the respondent company was to pay the applicant RUB 13,441.20. The judgment became final ten days later.
9. By letter of 18 May 2005 an insolvency manager of the housing maintenance company had notified the applicant that the respondent company had been declared insolvent and that the debtor was to be released from claims that were unsatisfied in the insolvency proceedings, since there was a lack of assets. Accordingly, the applicant's claims could not be satisfied. The case materials do not contain further information on the insolvency proceedings.
10. The judgments of 12 February 2001 and 26 May 2003 have not been enforced to date.
11. On an unspecified date the applicant sued the Ministry of Finance and the Primorye Regional Department of the Ministry of Justice for compensation for damage caused by the bailiffs' failure to enforce the judgment of 12 February 2001.
12. On 4 February 2003 the District Court partly granted her action. The court found that the bailiff had failed to send the enforcement documents to the applicant in time and was inactive in obtaining the execution of the judgment. The court awarded the applicant RUB 5,000 against the local department of the Ministry of Justice as compensation for non-pecuniary damage and RUB 4,678.42 as compensation for expenses related to the enforcement and court proceedings against the regional department of the Ministry of Justice. The district court also held that the respondents were not under an obligation to pay the applicant RUB 40,642.50 because the bankruptcy proceedings in respect of the municipal company were pending and the applicant had been included in the register of the housing maintenance company creditors' claims. On 19 March 2003 the Primorye Regional Court upheld the judgment on appeal.
13. On 12 August 2003 RUB 9,678 of the court award had been paid to the applicant by the respondent authority.
14. According to the Government, at some point the bailiff was dismissed on account of her failure to ensure timely enforcement of the judgments in the applicant's favour. On 12 February 2004 the District Court held that the bailiff should repay RUB 7,078 of damages to the authorities.
VIOLATED_ARTICLES: 6