ITEMID: 001-77904
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: ORANGE SLOVENSKO, A.S. v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a joint stock company which was established in 1996 and has its registered office in Bratislava. Since 2002 the name of the applicant company has been Orange Slovensko, a.s. It operates a mobile phone network in Slovakia. It is represented before the Court by Mrs E. Csekes, a lawyer practising in Bratislava. The respondent Government are represented by Mrs A. Poláčková, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
Under a contract of 1996 between the applicant company and the Slovak Intelligence Service (Slovenská informačná služba – “the SIS”), which was supplemented by an annex of 1997, the applicant company cooperated with the SIS in its monitoring of telecommunication traffic (“interception”) in the applicant company’s network. The cooperation included adjustments to the applicant company’s switchboards.
At that time the SIS’s role and powers of interception were laid down in section 20 (2) of the Telecommunications Act of 1964 (Law no. 110/1964 Coll., as amended). This provision contained no express rules as to who was to finance the interception and the equipment necessary for it (“interception equipment”). According to the Government, however, the provision was in practice understood as imposing the duty to finance the interception equipment on the operators of telephone networks.
On 1 July 2000 the Telecommunications Act of 2000 (Law no. 195/2000 Coll.) entered into force. It replaced the Telecommunications Act of 1964. Under section 9 (6) the applicant company had a duty towards lawenforcement and State defence and security authorities to provide, at its own cost, the means for interceptions in its network. The scope and technical specifications of the interception equipment were to be approved by the Telecommunications Office of the Slovak Republic (Telekomunikačný úrad Slovenskej republiky).
In a letter of 8 January 2001 the SIS requested that the Telecommunications Office authorise an extension of the interception equipment used in the applicant company’s network. The request concerned the existing equipment, which had been procured in 1997 and now had to be extended on account of the expansion and modernisation of the applicant company’s network. The police and the Ministry of Defence, who were also involved with interception, supported the request.
The request was granted on 28 May 2001, but the decision was quashed on 3 July 2001 on appeal (rozklad) on account of formal shortcomings.
On 13 July 2001 the Telecommunications Office held a hearing. It was attended by representatives of the applicant company, the SIS and the ministries of the interior, defence, justice, finance, and transportation, post and telecommunications.
On 26 July 2001 a representative of the applicant company was allowed to consult the case file. Following the consultation, on the same day, the Telecommunications Office again authorised the extension sought. It was understood that, by virtue of section 9 (6) of the Telecommunications Act of 2000, it was the applicant company alone that was to bear the costs of the extension.
At the same time the Telecommunications Office ruled that the authorisation would become effective immediately even if the decision as such were to be appealed against. This ruling was based on the pressing general interest which the Telecommunications Office found in the need to ensure the proper functioning of the State organs and agencies whose task was to monitor telecommunications.
On 18 September 2001 the Director of the Office dismissed an appeal by the applicant company as unfounded.
The applicant company challenged the decisions of 26 July and 18 September 2001 by an administrativelaw action in the Supreme Court (Najvyšší súd). As in the proceedings before the Telecommunications Office, the applicant company did not object to the duty to contribute to the financing of the interception equipment as such, but merely to the scope of that duty as established by the Telecommunications Office. The applicant company further argued that the procedure and the decisions had been arbitrarily classified as “secret”; that the extension took no account of the applicant company’s technical, staffing and financial capacity; and that no cost-benefit analysis had been carried out. The extension was therefore at variance with the applicant company’s property rights guaranteed under the Constitution and Article 1 of Protocol No. 1.
On 23 April 2002 the applicant company lodged an application requesting the Supreme Court to stay the proceedings under Article 109 § 1 (b) of the Code of Civil Procedure and initiate proceedings in the Constitutional Court (Ústavný súd) with a view to reviewing the compliance of section 9 (6) of the Telecommunications Act of 2000 with the relevant provisions of the Constitution and with Article 1 of Protocol No. 1.
On 25 April 2002 the Supreme Court dismissed the action. It observed that the Telecommunications Office had held a hearing and that its decision had been delivered publicly. Classifying the proceedings as “secret” was not excluded by law and had not curtailed the applicant company’s procedural rights. The Supreme Court also held that section 9 (6) of the Telecommunications Act of 2000 unequivocally imposed on the applicant company the financial burden of the equipment in question. It was for the Telecommunications Office to specify the scope and technical features of the equipment, which it had rightly done. As to the applicant company’s constitutional and Convention objections, the Supreme Court “discerned no violation of the applicant company’s constitutional rights”. No decision was taken and no opinion was expressed in respect of the applicant company’s application of 23 April 2002 to stay the action and challenge the constitutionality of the relevant provisions of the Telecommunications Act of 2000. No appeal lay against that judgment and, upon service on the parties, it became final on 13 June 2002.
The applicant company complied with the above decisions and accordingly incurred financial expense.
In October 2002 the applicant company requested the Prosecutor General to exercise his discretionary power to challenge section 9 (6) of the Telecommunications Act of 2000 in the Constitutional Court as being contrary to the Constitution and the Convention. The Prosecutor General acceded to the request.
On 1 January 2004 the Electronic Communications Act (Law no. 610/2003 Coll.) entered into force. Section 13 (2) (j) of that Act provided for a similar duty in respect of financing interception equipment as section 9 (6) of the Telecommunications Act of 2000.
The Prosecutor General subsequently withdrew his constitutional challenge in respect of section 9 (6) of the Telecommunications Act and the proceedings in respect of it were discontinued without any decision being given on the merits.
In January 2005 the applicant company again requested the Prosecutor General to exercise his discretionary power and challenge section 13 (2) (j) of the Electronic Communications Act of 2003 in the Constitutional Court as being contrary to the Constitution and the Convention. From the official internet page of the Constitutional Court (http://www.concourt.sk) it appears that the Prosecutor General lodged the challenge on 21 July 2006 and that it is still pending.
Article 125 § 1 (a) provides:
“The Constitutional Court shall have jurisdiction to determine the compliance of statutes with the Constitution, constitutional statutes and international treaties which have been assented to by the National Council of the Slovak Republic and ratified and promulgated in the manner required by statute.”
Article 127, as in force from 1 January 2002, reads as follows:
“1. The Constitutional Court shall decide complaints by natural or juristic persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.
4. The liability for damage or other loss of a person who has violated another person’s rights or freedoms within the meaning of paragraph 1 shall not be affected by the Constitutional Court’ s decision.”
Pursuant to Article 130 § 1:
“The Constitutional Court shall open proceedings on an application by
a) no less than one fifth of the deputies of the National Council of the Slovak Republic,
b) the President of the Slovak Republic,
c) the Government of the Slovak Republic,
d) a court of law,
e) the Prosecutor General
f) any person whose rights are the subject of proceedings under Articles 127 and 127a [of the Constitution].”
Article 154c provides:
“1. International treaties on human rights and fundamental freedoms ratified by the Slovak Republic and promulgated in accordance with the statutory requirements existing prior to the entry into force of this constitutional law shall be part of the national legal order and take precedence over national laws provided that such international treaties guarantee more extensive constitutional rights and freedoms.
2. Other international treaties ratified by the Slovak Republic and promulgated under statutory requirements existing prior to the entry into force of this constitutional law shall be part of the national legal order if so provided by statute.”
Details concerning the status of the Constitutional Court and of the procedure before it are laid down in the Constitutional Court Act.
Under section 20 (3), which applies to all types of proceedings before the Constitutional Court, as a general rule, the scope of the Constitutional Court’s examination of a case is limited by the summary of the application for commencement of the proceedings, as formulated in a standardised and prescribed form by the plaintiff.
Specific rules applicable in respect of complaints under Article 127 of the Constitution are laid down in sections 49 et seq.
Under section 53 (1) a constitutional complaint is not admissible if the complainant has not exhausted effective remedies that are available to him or her in respect of the rights and freedoms in question.
Section 53 (3) provides that a constitutional complaint can be lodged within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which notice of other interference has been given. As regards measures and other interferences, the above period commences when the complainant could have become aware of them.
A complaint under Article 127 of the Constitution, as in force from 1 January 2002, cannot be directed against violations of fundamental rights which took place before 1 January 2002 (see, for example, the decision of 9 May 2002, file no. II. ÚS 72/02).
The Constitutional Court has no power of alternative or extraordinary review in respect of matters that fall within the jurisdiction of the ordinary courts (see, for example, the decision of 10 January 1995, file no. II. ÚS 1/95). As a matter of principle, the Constitutional Court has no power to review factual findings and legal conclusions of the ordinary courts (see, for example, decision of 16 May 1996, file no. II. ÚS 21/96) or to scrutinise their interpretation and application of the law (see, for example, decision of 20 August 1998, file no. I. ÚS 52/98). The jurisdiction of the Constitutional Court is subsidiary and applies only to matters that fall outside the jurisdiction of the ordinary courts (see decision of 14 February 2001, file no. II ÚS 13/01). The Constitutional Court can examine decisions of the ordinary courts as such only if they are “manifestly ill-founded or arbitrary” (see, for example, decision of 19 April 2001, file no. I. ÚS 17/01). Apart from that, the Constitutional Court’s role is principally limited to examining whether the effects of the ordinary courts’ decisions are compatible with the Constitution and applicable international instruments (see, for example, decision of 13 March 2002, file no. I. 19/02). If an incompatibility is found, the Constitutional Court exercises its power to quash the decision concerned and to award just satisfaction (see, for example, judgments (nález) of 15 July 2003, 19 May 2004 and 12 October 2005, file nos. I. ÚS 23/01, III. ÚS 60/04 and III. ÚS 191/05, respectively).
Ordinary courts are obliged in civil proceedings to interpret and apply the relevant laws in accordance with the Constitution and with international treaties. Accordingly, the ordinary courts have the primary responsibility for upholding rights and fundamental freedoms guaranteed by the Constitution or international treaties (see, for example, the decision of 22 March 2000, file no. I. ÚS 9/00).
Any type of proceedings before the Constitutional Court can only be commenced in a separate set of proceedings and only on the application of persons or bodies which have standing to initiate them. No type of constitutional proceedings can be instituted within proceedings of another type. An examination of a complaint under Article 127 of the Constitution cannot entail a review of the constitutionality of legislation (see, for example, decision of 6 February 2002, file no. II. ÚS 5/02).


ITEMID: 001-58744
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF CURLEY v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;Violation of Art. 5-5;No violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 6. In 1979, the applicant, then aged 17, was convicted of murder and sentenced to be detained during Her Majesty’s pleasure. The “tariff” part of the applicant’s sentence, attributable to deterrence and punishment, was set at 8 years and expired in 1987.
7. Following the expiry of his tariff, the applicant’s case was the subject of review by the Parole Board on a number of occasions. Following the fourth review in January 1991, the applicant absconded from prison. Following his recapture on 6 July 1993 it was decided that his case should be reviewed again in January 1995.
8. At this, the fifth review, which in fact took place in August 1995, the Parole Board recommended that the applicant be given a provisional release date of 12 months hence, during which time he should spend six months in a Category D open prison, followed by six months in a Pre-Release Employment Scheme Hostel.
9. The Parole Board’s recommendation was not accepted by the Secretary of State who directed that the applicant be transferred to a Category D prison and his case be subject to further review in 12 months. The applicant was notified of the Secretary of State’s decision and the Parole Board’s recommendation by letter of 17 November 1995. By letter dated 6 December 1995, the applicant made representations against that decision. These were rejected by the Secretary of State by letter dated 2 January 1996.
10. The applicant sought leave to apply for judicial review of the Secretary of State’s decision. Leave was refused by a single judge of the High Court on 26 April 1996. The applicant was advised by counsel who represented him at the hearing that there was no tenable basis for appeal against the decision refusing leave.
11. On 12 August 1996, the applicant was notified that, pursuant to interim measures introduced by the Secretary of State on 23 July 1996, the applicant’s case would be referred back to the Parole Board for review in the form of an oral hearing at which the applicant would be entitled to legal representation. That review took place on 7 February 1997 and, by letter dated 14 February 1997, the Parole Board recommended the applicant’s release. The Home Secretary followed the recommendation and released the applicant on 7 May 1997.
12. English law imposes a mandatory sentence for the offence of murder in respect of offenders under the age of 18 known as detention during Her Majesty’s pleasure (section 53(1) of the Children and Young Persons Act 1933); in respect of offenders between the age of 18 and 20 years, custody for life (section 8(1) of the Criminal Justice Act 1982), and in respect of offenders aged 21 and over, life imprisonment (section 1(1) of the Murder (Abolition of Death Penalty) Act 1967).
13. Mandatory life sentences are fixed by law, in contrast to discretionary life sentences which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences (e.g. manslaughter, rape or robbery). The principles underlying the imposition of a discretionary life sentence are:
14. Discretionary life sentences are indeterminate in order that “the prisoner’s progress may be monitored ... so that he will be kept in custody so long as public safety may be jeopardised by his being let loose at large” (R v. Wilkinson [1983] 5 Cr. App. Rep. 105, p. 108).
15. The notion of detention during Her Majesty’s pleasure had its origins in an Act of 1800 for “the safe custody of insane persons charged with offence”. Section 1 provided that defendants acquitted of a charge of murder, treason or felony on the grounds of insanity at the time of the offence were to be detained in “strict custody until His Majesty’s pleasure” and described their custody as being “during His <Majesty’s> pleasure”.
16. In 1908, detention during His Majesty’s pleasure was introduced in respect of offenders aged ten to sixteen and then extended to cover those under eighteen in 1933. The provision in force at present is Section 53 (1) of the Children and Young Persons Act 1933 (as amended) which provides:
“A person convicted of an offence who appears to the Court to have been under the age of eighteen years at the time the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life nor shall sentence of death be pronounced on or recorded against any such person but in lieu thereof the court shall ... sentence him to be detained during Her Majesty’s pleasure and, if so sentenced, he shall be liable to be detained in such a place and under such conditions as the Secretary of State may direct.”
17. In the case of ex parte Prem Singh on 20 April 1993, Evans LJ in the Divisional Court held as follows in respect of detention during Her Majesty’s pleasure:
“At the time of sentencing, the detention orders under section 53 were mandatory. It is indeed the statutory equivalent for young persons of the mandatory life sentence for murder. But the sentence itself is closer in substance to the discretionary sentence of which part is punitive (retribution and deterrence) and the balance justified only by the interests of public safety when the test of dangerousness is satisfied. The fact that the mandatory life prisoner may be given similar rights as regards release on licence does not alter the fact that the mandatory life sentence is justifiable as punishment for the whole of its period: see R. v. Secretary of State, ex. p. Doody & others [1993] Q.B. 157 and Wynne v. UK (E.C.H.R. 1st December 1992). The order for detention under section 53 is by its terms both discretionary and indeterminate: it provides for detention ‘during Her Majesty’s pleasure’. (Section 53(4) which expressly authorised the Secretary of State to discharge the detainee on licence ‘at any time’ was repealed by the Parole Board provisions of the Criminal Justice Act 1967, but this does not, in my judgment, alter the nature of the sentence in any material respect.) I would decide the present case on the narrow ground that, notwithstanding Home Office and Parole Board practice, the applicant should be regarded as equivalent to a discretionary life prisoner for the purpose of deciding whether Wilson rather than Payne governs his case.”
18. The Divisional Court accordingly held that the applicant in that case, who was detained during Her Majesty’s pleasure, should be afforded the same opportunity, as would be given a discretionary life prisoner, to see the material before the Parole Board when it decided upon whether he should be released after his recall to prison on revocation of his licence.
19. Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty’s pleasure have a “tariff” set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in recent years, in particular, following the coming into force on 1 October 1992 of the Criminal Justice Act 1991.
20. Under the relevant provisions of the Criminal Justice Act 1967, the regime applying to the release of discretionary and mandatory life prisoners was the same. Section 61(1) of the 1967 Act provided inter alia that:
“The Secretary of State may, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life or custody for life or a person detained under section 53 of the Children and Young Persons Act 1933 (young offenders convicted of grave crimes), but shall not do so in the case of a person sentenced to imprisonment for life or custody for life or to detention during Her Majesty’s pleasure or for life except after consultation with the Lord Chief Justice of England and the trial judge if available.”
21. The 1991 Act instituted changes to the regime applicable to the release of discretionary life prisoners following the decision of the European Court of Human Rights in the case of Thynne, Wilson and Gunnell v. the United Kingdom (judgment of 25 October 1990, Series A no. 190-A).
22. Pursuant to section 34 of the 1991 Act, after the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a prisoner is entitled to an oral hearing, to disclosure of all evidence before the Parole Board and to legal representation. He is also entitled to call witnesses on his behalf and to cross-examine those who have written reports about him.
23. The regime applicable to mandatory life prisoners was, however, preserved within section 35 of the 1991 Act. Section 35 of the 1991 Act provides insofar as relevant:
“(2) If recommended to do so by the Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.”
24. The criterion for determining whether re-detention is justified is that of dangerousness, meaning a consideration of whether the offence constitutes an unacceptable risk of physical danger to the life or limb of the public (see R v. Secretary of State for the Home Department, ex. parte Prem Singh, unreported, transcript pp. 26F-27B; and the Singh v. the United Kingdom judgment of 21 February 1996, Reports of Judgments and Decisions 1996-I, at § 39).
25. In light of the judgments of the Court in the cases of Singh v. the United Kingdom and Hussain v. the United Kingdom (Singh v. the United Kingdom judgment of 21 February 1996, loc. cit. p. 280, and Hussain v. the United Kingdom judgment of 21 February 1996, Reports 1996-I, p. 252), the Secretary of State announced, on the 23 July 1996, the introduction of interim measures taking effect from 1 August 1996 which changed the procedure under which the cases of prisoners detained during Her Majesty’s pleasure were reviewed by the Parole Board.
26. Pursuant to these measures, the review took the form of an oral hearing at which prisoners were entitled to legal representation and to examine and cross-examine witnesses. Prisoners also normally received full disclosure of all material relevant to the question of whether they should be released prior to the hearing. Pending amendment of section 53(2) of the 1991 Act, the Parole Board did not, however, have power to direct the release of any prisoner. This remained the prerogative of the Secretary of State subject to consultation with the judiciary, as required by section 53(2) of the 1991 Act.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
5-5
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-93640
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: KOVALEVA AND OTHERS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicants, Ms Galina Vasilyevna Kovaleva and 11 others are Russian nationals living in Novokuznetsk, Kemerovo region. Their names and dates of birth are listed in the appendix.
The applicants are co-owners of a company “Hairdressing saloon Viola” located in Novokuznetsk (“the company”).
On 24 November 2006, the company sued the Municipal Property Management Committee of Novokuznetsk in the Kemerovo Regional Commercial Court, claiming property rights on a building located in Novokuznetsk and used by the company for its professional activities.
On 9 August 2007, the court dismissed the company's claims finding that the building at issue had not been included in the real estate subject to privatisation and that the company's action was time barred.
The company lodged an appeal with the Appellate Instance of the Kemerovo Regional Commercial Court, contesting the lower court's finding that the action was time-barred. On 30 October 2007, the Appellate Instance upheld the first instance judgment.
The Appellate Instance of the Kemerovo Regional Commercial Court continued to consider commercial cases on appeal until 7 December 2007 when the Seventh Commercial Court of Appeal started its activities in Novosibirsk.
The company applied to the Federal Commercial Court for the West-Siberian Circuit against the lower court's decisions on the ground that they had distorted the facts and violated material law. On 28 April 2008 the court dismissed the company's complaint and upheld the previous judgments.
On an unspecified date, the company lodged an application for supervisory review with the Supreme Commercial Court. On 3 July 2008, a single judge declared the application admissible.
On 23 July 2008 the Supreme Commercial Court, sitting in a committee of three judges, dismissed the company's application for supervisory review of the lower courts' judgments. The court concluded that the application, which relied upon “violations of substantive and procedural law”, was in effect aiming at the reconsideration of the lower courts' conclusions. Therefore, the court did not find any ground for examination of the case by the Presidium of the Supreme Commercial Court in accordance with Article 304 of the Code of Commercial Procedure.
The Federal Constitutional Law (No. 4-ФКЗ) in force since 4 July 2003 provided for setting up of commercial courts of appeal. It provided, in particular, that the Seventh Commercial Court of Appeal be set up by 1 January 2006 for review of judicial decisions of commercial courts of the Altay, Kemerovo, Novosibirsk, Tomsk regions and of the Altay Republic (Article 3 and new Article 33 § 1(4) introduced in the Federal Constitutional Law on commercial courts of the Russian Federation (No. 1-ФКЗ) of 28 April 1995).
Under Article 2, a commercial court of appeal is considered as set up once the minimum of three judges are appointed on its bench; its activities start on the date to be determined by the Plenum of the Supreme Commercial Court; the appellate instances of regional commercial courts continue reviewing cases on appeal up until the start of activities of the relevant court of appeal.
On 15 November 2007 the Plenum of the Supreme Commercial Court, after having examined the report of the President of the Seventh Commercial Court of Appeal, decided that the activity of the latter would start on 7 December 2007.
The Code of Commercial Procedure (no. 70-FZ of 5 May 1995) in force before 2003 provided that final judgments and decisions of commercial courts were amenable to supervisory review initiated on an application by the President of the Supreme Commercial Court or his deputy or by the Prosecutor General of the Russian Federation or his deputy (Articles 180 and 181).
On 1 January 2003, Chapter 36 of the new Code of Commercial Procedure “Proceedings for the review of courts' decisions by way of supervision” (“Производство по пересмотру судебных актов в порядке надзора”) entered into force.
According to Article 292, an application for supervisory review may be lodged with the Supreme Commercial Court by the parties to the case or certain other persons entitled by the Code if they consider that the contested judicial decision substantially violates their rights and legitimate interests in commercial or other economic activities due to a breach or improper application by a commercial court of material or procedural law. The application for supervisory review may be lodged within three months after the contested judicial decision enters into force, if all other judicial remedies were exhausted.
According to the transitional provisions of the Law on the Introduction of the Code of Commercial Procedure of 24 July 2002 (Федеральный закон «О введении в действие Арбитражного процессуального кодекса РФ» No. 96-ФЗ), the supervisory review proceedings against the court decisions delivered before 1 January 2003 could be brought before the Supreme Commercial Court within three months from this date (Article 9).
The admissibility of the application (вопрос о принятии заявления или представления к производству) is decided by a single judge within five days after receipt of the application (Article 295). Once declared admissible, the application is considered by a committee of judges, which decides, within one month after receipt of the application or of the case-file, whether to send the case to the Presidium of the Supreme Commercial Court for supervisory review (Article 299). If the conditions provided for in Article 304 are satisfied, the court makes a decision to send the case for supervisory review and transmits the case to the Presidium within five days after this decision (Article 299). The Presidium will consider the case within three months after the decision to transmit the case to the Presidium (Article 303).
Article 304, as originally adopted, provided as follows:
Article 304 Grounds for revising or repealing by way of supervision of the judicial decisions entered into legal force
“Judicial decisions of the commercial courts entered into legal force shall be revised or repealed if the Presidium of the Supreme Commercial Court of the Russian Federation reviewing the case by way of supervision finds that the contested judicial decision:
1) violates the uniformity of the interpretation of the legal norms by commercial courts;
2) prevents the delivery of a lawful judicial decision in another case;
3) violates the rights and legitimate interests of an undetermined number of people or other public interests.”
On 5 April 2005, the Federal Law of 31 March 2005 (No. 25-ФЗ) entered into force replacing the point 2 above by the following:
“2) violates the human and citizens' rights and freedoms in accordance with the universally recognised principles and norms of international law and the international treaties of the Russian Federation; (...).”
Article 311 of the Code of Commercial Procedure provides for reopening of commercial proceedings on the basis of newly discovered circumstances. One of the grounds allowing such reopening is a violation of the Convention found by the European Court of Human Rights in the examination of a particular case by a commercial court on account of which the applicant complained to the European Court (Article 311 § 7).


ITEMID: 001-5456
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: C.E.M. FIREARMS LIMITED AND BRADFORD SHOOTING CENTRE AND 11 OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: A.
The facts of the case, as submitted by the parties, may be summarised as follows. The applicants are engaged in the business of operating commercial shooting centres. A list of applicants is annexed to the present decision. They are represented before the Court by Edwin Coe, Solicitors, London.

In the case of application no. 37674/97, the applicant company (C.E.M. Firearms Limited) was established approximately 10 years ago. The shares are held in equal proportions by a married couple and their son, all of whom are actively involved in running the business.
On 25 December 1987 the applicant company leased land from Swansea City Council on a 99-year lease. The current rent for the land is £5,000 per annum, with rent reviews every five years. Under the terms of the lease, the land can be used only as a shooting range and for associated retailing. The land is in an area designated under planning legislation as one in which there is a presumption in favour of planning permission for sporting activities. Since the land was acquired by the company, it has installed a 25-metre shooting range with five lanes for handgun shooting, a club room with a pool table and television, a retail shop selling predominantly handguns and accessories, a workshop for processing ammunition (90% of which was handgun ammunition), a secure storage area for firearms and office, kitchen and toilet facilities.

The applicant is unable to pursue the predominant part of its business activities following the prohibition of handguns imposed by the 1997 Firearm Amendment legislation: the Firearms (Amendment) Act 1997 and the Firearms (Amendment) (No. 2) Act 1997 (“the 1997 Amendment Acts”; see below). Club membership fell from over 1,000 to less than 40, and turnover was reduced by more than 90%. The value of the assets of the business has fallen substantially. Prior to the ban on handguns, the applicant estimates the value of the premises to have been £400,000. The premises were subsequently offered for sale at £250,000, and alternatively for rent or redevelopment. The applicant company ceased trading as a going concern on 1 October 1997 and the payment of salaries to directors and staff ceased on the same date. The applicant has been unable to sell or otherwise dispose of its premises.
The applicants in application no. 37677/97 rely on the application of C.E.M. Firearms Limited and, with the exception of Sheffield Shooting Centre Limited (“Sheffield Shooting Centre”), have made no submissions of fact in relation to their claims. Sheffield Shooting Centre states that it invested £210,000 in its premises, as follows: acquisition cost of indoor range: £40,000; fitting out of members’ lounge: £40,000; building costs, architects’ fees and costs of planning permission and other costs in connection with the conversion of the building to a shooting range: £130,000. It states that its annual income was £214,000 (subscription fees from 450 members of £54,000, and sales revenue from its bar and shop of £160,000). No profit or loss figures are provided. In 1995 to 1996, the sales achieved by Sheffield Shooting Centre were about 20% lower than the 1991 to 1992 level, and continued to drop during the 1996 to 1997 accounting year. The business closed in August 1997. Sheffield Shooting Centre received £1,000 compensation in respect of the fixtures and fittings from its members’ lounge, and sold its premises for £26,450.
The consequences of the 1997 Amendment Acts are that the applicants are unable to derive handgun-related income from their businesses, and that the value of the goodwill and assets of those businesses has depreciated. The applicants have received no compensation for the reduction in value of their goodwill.
By the beginning of 1999, approximately £22 million had been paid to some 1,500 dealers under the compensation schemes, of a total of approximately £67 million which had been paid to individuals, dealers and others. The Government estimated the total costs which would be involved in paying compensation under the schemes to be approximately £120 million.
B. Domestic law and practice
The Firearms Act 1968 has been periodically amended since it was passed, and forms the basis of the current system of the control of firearms in the United Kingdom. Section 5 of the Act of 1968 prohibits the possession, purchase, acquisition, manufacture, sale or transfer of the firearms there specified. Section 1 of the Firearms (Amendment) Act 1997 (“the First Amendment Act”) added large-calibre handguns to the class of prohibited firearms in section 5 of the 1968 Act.
Section 5 of the Act of 1968, as amended by the First Amendment Act, provided:
“(1) A person commits an offence if, without the authority of the Defence Council, he has in his possession, or purchases or acquires, or manufactures, sells or transfers -
...
(aba) any firearm which has a barrel length of less than 30 centimetres in length or is less than 60 centimetres in length overall, other than an air weapon, a small-calibre pistol, a muzzle-loading gun or a firearm designed as signalling apparatus.”
The Firearms (Amendment) (No. 2) Act 1997 (“the Second Amendment Act”; together with the First Amendment Act, “the 1997 Amendment Acts”) extended the scope of the prohibition in section 5 to small-calibre pistols by declaring (in section 1) that the words “a small-calibre pistol” in section 5(1)(aba) of the 1968 Act as amended by the First Amendment Act should cease to have effect.
The First Amendment Act provides as follows, so far as material:
“15 Surrender of prohibited small firearms and munitions
(1) The Secretary of State may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of section 1 or 9 above.
...
16 Payments in respect of prohibited small firearms and ammunition
(1) The Secretary of State shall, in accordance with a scheme made by him, make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section 15 above.
(2) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition -
(a) which they had, and were entitled to have in their possession on or immediately before 16th October 1996 by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers; or
(b) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers,
and their possession of which will become, or has become, unlawful by virtue of section 1(2) or 9 above.
17 Payments in respect of ancillary equipment
(1) The Secretary of State shall, in accordance with any scheme which may be made by him, make payments in respect of ancillary equipment of any description specified in the scheme.
(2) For the purposes of subsection (1) above, ‘ancillary equipment’ means equipment, other than prohibited ammunition, which-
(a) is designed or adapted for use in connection with firearms prohibited by virtue of section 1(2) above; and
(b) has no practicable use in connection with any firearm which is not a prohibited weapon.
(3) A scheme under subsection (1) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment-
(a) which they had in their possession on 16th October 1996; or
(b) which they had in their possession after that date, having purchased it by virtue of a contract entered into before that date.
...
18 Parliamentary control of compensation schemes
(1) Before making a compensation scheme the Secretary of State shall lay a draft of it before Parliament.
(2) The Secretary of State shall not make the scheme unless the draft has been approved by resolution of each House.
(3) This section applies to any alteration to the scheme as it applies to a compensation scheme.
(4) In this section ‘compensation scheme’ means a scheme under section 16 ... above.”
The Firearms (Amendment) Act 1997 Compensation Scheme (“the First Scheme”) was laid in draft before Parliament and approved by resolution of both Houses of Parliament. It was made on 10 June 1997. The First Scheme provided compensation for the large-calibre handguns themselves, for prohibited expanding ammunition and for certain ancillary equipment. There were three options for claiming compensation: Option A, a flat rate payment for individual items, Option B, a payment for an individual item at the price in the list of values annexed to the First Scheme and Option C, a payment based on the market value of an individual item at or immediately before 16 October 1996 (the date of the announcement by the Government of their response to, and legislative intention following, the Cullen Report).
Under Option A, a payment of £150 could be claimed for each large-calibre handgun. Under Option B, a payment could be claimed which was based on average retail values on 16 October 1996, reduced by about 25% to reflect normal depreciation in value. Under Option C, dealers were entitled to claim the “full market value” of the large-calibre handguns and ancillary equipment which they held in stock. The full market value was to be calculated on the basis of the cost to the dealer of the item plus 25%.
By section 2 of the Second Amendment Act, the provisions of sections 16 to 18 of the First Amendment Act were applied to small-calibre pistols. The Firearms (Amendment) (No. 2) Act 1997 Compensation Scheme (“the Second Scheme”) was made in December 1997, after having been laid in draft before both Houses of Parliament and approved by resolution of each House. The Second Scheme applied in relation to small-calibre pistols held on or immediately before 14 May 1997. The date for the calculation of full market value for the purposes of Option C remained 16 October 1996. The Second Scheme made provision for compensation in respect of small-calibre pistols, on materially the same terms as provided for in the First Scheme in respect of large-calibre handguns.


ITEMID: 001-97603
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: OBCIANSKE ZDRUZENIE ZI A NECHAJ ZIT v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Občianske združenie Ži a nechaj žiť (Civic Association Live and Let Live), is an association with its seat in Bratislava. The application on its behalf was submitted by its President, Ms D. Šteffelová. The applicant association was represented by Mr P. Kotvan, a lawyer practising in Bratislava.
The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant association organised a cycle-ride event in the course of which a road crossing was blocked in Bratislava with a view to pointing out the difficulties encountered by cyclists in the streets of the capital.
On 17 August 2001 the Mayor of Bratislava imposed on the applicant association a fine of 30,000 Slovakian korunas (SKK), which was then the equivalent of approximately 750 euros (EUR), for using roads in an unauthorised manner.
The applicant association appealed.
On 8 October 2001 the Bratislava I District Office upheld the Mayor's decision.
On 27 June 2002 the Regional Court in Bratislava dismissed the applicant association's motion against the above administrative decisions.
On 27 December 2002 the applicant association lodged a complaint with the Constitutional Court alleging a violation of Article 11 of the Convention and of its constitutional equivalent. The applicant association claimed, inter alia, SKK 10,000 as just satisfaction for non-pecuniary damage. Its representative stated that the fine imposed exceeded the financial means of the association, that its representatives had been exposed to considerable pressure and that enforcement proceedings had been brought, the costs of which exceeded SKK 50,000. As a result, the association had difficulties in obtaining grants and had been restricted in carrying out its activities.
At the request of the Mayor of Bratislava of 15 April 2003 the Bratislava II District Court discontinued the enforcement proceedings on 5 February 2004. It held that no fees were payable to the enforcement officer.
On 30 March 2004 the Constitutional Court concluded that the applicant association's right under Article 11 of the Convention had been violated. It quashed the Regional Court's judgment and returned the case to the Regional Court. It ordered the latter to reimburse the applicant association's costs incurred in the constitutional proceedings and held that the above finding of a breach of the applicant association'
On 12 May 2005 the Regional Court quashed the Bratislava I District Office's decision as being unlawful with reference to the finding of the Constitutional Court. It ordered the administrative authority to reimburse the costs which the applicant had incurred.
On 3 October 2005 the District Office reimbursed the relevant sum to the applicant association. On 21 November 2005 it returned the file to the Mayor of Bratislava.
By a decision of 17 January 2007 the Mayor of Bratislava discontinued the proceedings in which the above fine had been imposed on the applicant association.
Until 1 July 2004 the sphere of State liability for damage caused by wrong decisions and official misconduct was regulated by the State Liability Act of 1969 (Law no. 58/1969 Coll.).
In accordance with the courts' practice, the State Liability Act of 1969 did not allow for compensation to be awarded for damage of a nonpecuniary nature. The only exception to this rule was compensation for damage to health.
With effect from 1 July 2004 Law no. 514/2003 Coll. was enacted, replacing the State Liability Act of 1969.
Under section 3(1)(a), the State is liable for damage caused by an unlawful decision.
Section 17 of the Act provides for compensation for pecuniary damage including loss of profit and, where appropriate, compensation for damage of a non-pecuniary nature.
Pursuant to section 27, the provisions of Law no. 514/2003 apply only to damage caused by decisions which were given after its entry into force.


ITEMID: 001-69449
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: AYDIN AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants, Ms Şükran Aydın, Ms Ayşe Aydın and Mr Veysi Aydın, who were born in 1954, 1933 and 1965 respectively, are all Turkish nationals and they live in the district of Bismil in Diyarbakır. They were represented before the Court by Mr S. Aslantaş, a lawyer practising in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 July 1991 at about 11.45 p.m. Vedat Aydın, President of the Diyarbakır Branch of People's Labour Party (HEP), was taken away from his home allegedly by police officers from the Political Affairs Department of the Security Directorate. From the window of their house his wife, who is the first applicant, saw Vedat Aydın being put in the back seat of a dark-coloured Renault estate car and immediately rang their lawyer. The lawyer called the police headquarters; however, she was told that Vedat Aydın was not detained there.
On 6 July 1991 the first applicant and her lawyer contacted the police headquarters, the Governor of the emergency region, the Governor of Diyarbakır, the Chief Public Prosecutor of the State Security Court, the Chief Prosecutor of the province and the gendarmerie headquarters. All these authorities replied that they did not know anything about Vedat Aydın. Police officers took a statement from the first applicant on the same day.
On 7 July 1991 a body was found in Maden District attached to the province of Elazığ. An on-site body examination was carried out by the Maden public prosecutor and a doctor. The report noted the presence of a number of bullet entry holes on the back of the trunk of the body and exit holes on the front. The doctor stated that the cause of death was internal bleeding and brain destruction caused by trauma. As the cause of death was clearly established, it was not considered necessary to carry out a full post-mortem examination. The unidentified body was then buried in the Maden cemetery.
On 8 July 1991, the third applicant, Vedat Aydın's brother, heard about the body and went to Maden. The gendarmes showed him some clothes and he identified these clothes as those of Vedat Aydın. The body was exhumed and another post-mortem examination conducted, which confirmed the findings of the previous examination. The body was handed over to the family on 10 July 1991.
The first applicant was invited to the police station on 20 and 28 July 1991 respectively to give statements. On 28 July 1991, she gave a description of the people who had abducted Vedat Aydın and upon this description photo fit drawings of the abductors were produced.
On 23 February 1998 the applicants sent a letter to Ankara's Chief Public Prosecutor to be conveyed to the Elazığ State Security Court Public Prosecutor. In this letter, the applicants referred to the Susurluk report, which concluded that Vedat Aydın had been killed by agents of the State. They asked the prosecutor to investigate these allegations and to inform the family about the outcome of the investigation. They received no reply to this letter.
On 11 October 1998 the applicants repeated their submissions in a letter addressed to Ankara's Chief Public Prosecutor.
On 17 November 1998 the public prosecutor attached to Malatya State Security Court informed the applicants that the investigation into the killing of Vedat Aydın was still pending.
On 6 July 1991 Vedat Aydın's lawyers lodged a petition with the Diyarbakır public prosecutor's office stating that their client had been taken from his house on 5 July 1991 by persons who had introduced themselves as police officers from the Political Affairs Department of the Security Directorate. The same day, Vedat Aydın's wife gave a statement at the police and maintained that her husband had been taken away from their house by two armed men.
On 7 July 1991 a body was found in the Maden District attached to the province of Elazığ. The Maden public prosecutor and a doctor carried out an on-site body examination and established the cause of death as brain destruction and internal bleeding. The body was subsequently buried in the Maden cemetery as its identity could not be established.
On 9 July 1991 the body was identified as that of Vedat Aydın and it was handed over to Vedat Aydın's family on 10 July 1991. A further body examination was carried out by the Diyarbakır public prosecutor's office which confirmed the previous findings.
The Diyarbakır public prosecutor's office commenced an investigation into the death of Vedat Aydın. On 20 and 28 July 1991 respectively the first applicant gave statements to the police and described the persons who had abducted Vedat Aydın. Statements were taken from Vedat Aydın's neighbours and from the officers who had found his body on 7 July 1991 in Maden.
On 7 August 1991 the Diyarbakır public prosecutor declared lack of jurisdiction and transferred the file to Maden public prosecutor. The first applicant intervened in the proceedings.
On 9 August 1991 the Regional Criminal Police Laboratory reported that the bullets found in Vedat Aydın's body had not been used in any previous incidents.
On 25 December 1992 the Maden public prosecutor delivered a decision of non-jurisdiction and sent the file to the public prosecutor attached to the Kayseri State Security Court on the ground that Vedat Aydın's killing could be politically motivated.
On 1 December 1992 the Kayseri Public Prosecutor's office requested the Maden Public Prosecutor's office that progress reports at regular intervals be submitted concerning the attempts to identify the perpetrators.
On 21 July 1993 the case-file was transferred to the public prosecutor attached to the Erzincan State Security Court, who subsequently sent the file to the public prosecutor attached to Malatya State Security Court. Upon receipt of the file, the prosecutor requested regular progress reports from the Maden public prosecutor.
The perpetrators of the killing of Vedat Aydın still remain unknown and the investigation is pending before the Malatya State Security Court public prosecutor's office.
A full description of the relevant domestic law may be found in the Bayram and Yıldırım v. Turkey decision (no. 38587/97, ECHR 2002-III).


ITEMID: 001-4617
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: MALUSZCZAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish national born in 1949. He is currently detained in Strzelce Opolskie prison.
On an unspecified date in the 1990s, the applicant was convicted of burglary and sentenced to imprisonment.
Between 17 March 1997 and 3 June 1997, the applicant stayed at the Wrocław Prison Hospital. He was admitted to that facility after he had been diagnosed as suffering from anaemia and from an infection on the inside of his left cheek. The applicant underwent a histopathological examination which showed that the condition of his cheek was not cancerous but rather caused by a self-inflicted injury. In addition, a haematologic examination led to the conclusion that the applicant’s anaemia resulted from a heavy loss of blood caused by self-inflicted injuries as well. The applicant was treated with ferric preparations. When his condition improved, he was discharged from the hospital and transferred to a nearby residential facility of the Wrocław Prison Hospital. However, an examination of the applicant conducted a few days later showed a low level of haemoglobin and a loss of tissue on the inside of his left cheek. He was brought back to the hospital, where he was given a blood transfusion which led to an improvement of his condition. On 3 June 1997, the applicant was discharged from the hospital and transferred to Wołów prison.
On 23 October 1997, the applicant was admitted to the Cracow Detention Centre Hospital, where he was diagnosed as suffering from anaemia, an infection of his left cheek and suspected self-mutilation. During his hospitalisation in that facility, he underwent the following examinations: blood, urine and stool tests, a chest x-ray, an ultrasound of the abdominal cavity, ECG, histopathological, dental and rectal examinations. He was also examined in the maxillofacial surgery ward. Moreover, the applicant was treated with ten different medicines and received a transfusion of red blood cells. Subsequently his condition improved and on 22 December 1997 he was transferred to Nowy Wiśnicz prison.

On 5 January 1998, the applicant lodged a complaint with the Central Prison Administration concerning the allegedly inadequate medical care he had received in the Cracow Detention Centre Hospital. On 29 January 1998, his complaint was transmitted to the District Director of the Prison Service in Cracow. On 31 January 1998, the District Director rejected the complaint as unfounded. He pointed out that during his hospitalisation, the applicant had undergone several examinations and had received pharmaceutical treatment. He further informed the applicant that he agreed with the doctors who had examined him and had found that no other treatment was required by his condition. In addition, the District Director observed that it appeared that the applicant had been mutilating himself by bloodletting and advised him that any further self-mutilation would lead to a deterioration of his state of health.
In a letter of 5 February 1998 addressed to the District Director of the Prison Service, the applicant contested the conclusions stated in the Director’s letter of 31 January 1998. On 16 February 1998, the Director informed that applicant that he saw no reason to change his position and objected to the insults the applicant had used in his letter against prison doctors, in particular to a comparison of the Cracow Detention Centre with a concentration camp.
On 17 February 1998, the Penitentiary Judge dismissed the applicant’s complaint concerning the allegedly inadequate medical treatment received by him at the Cracow Detention Centre.
On 10 April 1998, the Cracow District Prosecutor informed the applicant that she had requested his medical file to be submitted to her in order to investigate his complaint about inadequate medical care provided by the Cracow Detention Centre.
On 13 May 1998, a physician from Wołów prison provided the applicant, upon his request, with a health certificate which described his state of health as “average”.


ITEMID: 001-75190
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: DEMIR AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Ms H. D. Deyar and Mr B. Deyar, lawyers practising in Diyarbakır.
The facts of the case, as submitted by the parties, may be summarised as follows.
Until 1994 the applicants lived in Ziyaret (Fis), a village of the Lice district in Diyarbakır, where they own property. It is to be noted that the documents attesting ownership of property, which Ali Balare, Asiye Balare, Emin Balare Emin Balare, Abdullah Balare, Zeki Balare, Zeliha Balare, Zeliha Balare and İmiş Balare, Mahsun Fidan, Şahin Fidan, Dilan Fidan, Netice Fidan, Necla Fidan and Abdulmuttalip Fidan (Application nos. 27901/02 and 28740/02) used in Ziyaret, bear their mothers’ names. It is further to be noted that the documents attesting ownership of property, which Mehmet Can Fidan, İbrahim Fidan, Fatma Fidan, Necla Fidan, Meyrem Fidan, Mehmet Ali Fidan, Mekin Fidan, Tekin Fidan, Recep Fidan, Tarık Fidan, Binevş Fidan and Hasibe Fidan (Application no. 29888/02) used in their village bear their brother’s name.
On 14 May 1994 security forces destroyed the applicants’ property. The applicants then moved to Diyarbakır, where they currently live. The security forces arrived to Ziyaret again and destroyed the remainder of the village on 23 January 1995 and 1 October 1995.
On 9 September 2001 the District Gendarmes Headquarters in Lice sent a letter to the village mayors in Lice. According to that letter, access to Ziyaret would be possible only during summer for the inhabitants to work in their farms, and only during daytime. The villagers would not be allowed to spend the nights in their village. Moreover, the villagers would be required to apply to the gendarmes stations and request permission.
On 11 September 2001 the 2nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office in Lice informing him that the military operations against terrorism were to continue in the district. The commander requested the District Governor’s office to warn the inhabitants of these operations and notify them that the security forces would not be responsible for any casualties.
On 25 December 2001 some of the applicants lodged a petition with the Ministry of the Interior requesting compensation for the pecuniary and non-pecuniary damages they suffered and asked for permission to return to their village.
The applicants received no response to their petition.
On the same day they filed a petition with the Public Prosecutor’s office in Diyarbakır for submission to the Public Prosecutor’s office in Lice, complaining about the burning down of their houses by the security forces on 14 May 1994, 23 January 1995 and 1 October 1995.
On 17 January 2002 the Lice Public Prosecutor issued a decision of non-jurisdiction and sent the case file to the Military Prosecutor’s office in the 7th Diyarbakır Corps Command, in accordance with Article 9 of the Military Criminal Code (Law no. 1632).
The applicants were residents in Tepecik, a village of the Kocaköy district in Diyarbakır, where they own property.
On 22 December 1992 security forces and village guards entered Tepecik and destroyed some of the houses in the village. They came again on 4 November 1994, 30 October 1995 and 8 November 1995, destroyed the remainder of the village and evicted the inhabitants, who moved to Diyarbakır, where they currently live.
On 12 February 2001 two other inhabitants of Tepecik, Mr Şerefettin Yaşa and Mr Kadri Yaşa, filed a petition with the Public Prosecutor’s office in Kocaköy complaining about the killing of eight people, the burning down of their house and the destruction of their trees and farms by security forces and village guards.
On 8 October 2001 the Kocaköy Public Prosecutor decided to discontinue proceedings. Assessing the offence in question as theft, he decided that the statutory time-limit for the offence in question had expired.
On 24 October 2001 the legal representative of Mr Şerefettin Yaşa and Mr Kadri Yaşa lodged an appeal with the Siverek Assize Court against the decision of the Kocaköy Public Prosecutor.
On 22 November 2001 the Siverek Assize Court upheld the decision of the Kocaköy Public Prosecutor.
The applicants considered themselves exempt from lodging further complaints concerning the burning down of their houses following the decision of the Siverek Assize Court. It is to be noted that the applicants did not submit any document to the Court attesting that they had filed petitions containing a request for permission to return to their villages.
Until 1994 the applicants lived in Hedik, a village of the Lice district in Diyarbakır, where they own property.
On 22 November 1994 security forces destroyed the applicants’ property. The applicants then moved to Diyarbakır, where they currently live.
On 9 September 2001 the District Gendarmes Command in Lice sent a letter to the village mayors in Lice. According to that letter, access to Ziyaret would be possible only during summer for the inhabitants to work in their farms, and only during daytime. The villagers would not be allowed to spend the nights in their village. Moreover, they would be required to apply to gendarmes stations and request permission.
On 11 September 2001 the 2nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office in Lice informing him that the military operations against terrorism were to continue in the district. The commander requested the District Governor’s office to warn the inhabitants of these operations and notify them that security forces would not be responsible for any casualties.
On 7 January 2002 some of the applicants lodged a petition with the Ministry of the Interior requesting compensation for the pecuniary and non-pecuniary damages they suffered and permission to return to their village.
On the same day they filed a petition with the Public Prosecutor’s office in Diyarbakır to be referred to the Public Prosecutor’s office in Lice, complaining about the burning down of their houses by the security forces on 22 November 1994.
On 16 January 2002 the Lice Public Prosecutor issued a decision of non-jurisdiction and sent the case file to the Military Prosecutor’s office in the 7th Diyarbakır Corps Command, in accordance with Article 9 of Law no. 1632 (Military Criminal Code).
On 25 April 2002 the State of Emergency Regional Governor’s office in Diyarbakır rejected applicants’ claim for compensation. It is to be noted that the applicants did not submit any document attesting the response of this office.
The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village.
The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).


ITEMID: 001-57848
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF A. v. FRANCE
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (out of time);Preliminary objection rejected (non-exhaustion);Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;John Freeland
TEXT: 6. Mrs A., a French national, is a cardiologist and lives in Paris.
7. On 23 July 1981 a Paris investigating judge charged her, together with five other persons including Mr Serge Gehrling, with attempted murder, infringement of the arms and ammunition legislation and infringement of the Law of 25 July 1980 on the protection and control of nuclear substances.
On the same day the investigating judge remanded Mrs A. in custody. She was released, subject to court supervision, on 26 March 1982 by decision of the Indictment Division of the Paris Court of Appeal.
On 7 March 1991 the judge made an order finding that the six persons charged, including the applicant, had no case to answer, as there was insufficient evidence against them.
8. In July or August 1980 Mr Gehrling went to the Paris police headquarters. He informed Chief Superintendent (commissaire divisionnaire) Aimé-Blanc, the Head of the Central Office for the Prevention of Serious Crime, that Mrs A. had hired him to kill Mr Pierre De Varga, who was himself facing charges in relation to the attempted murder of Prince Jean de Broglie and was in custody in the Santé prison in Paris. Mr Gehrling volunteered to make a telephone call to Mrs A.’s home to discuss possible methods for carrying out the crime and to record the telephone conversation.
The Chief Superintendent accepted Mr Gehrling’s offer. Once the recording was in his possession, he informed his superiors of the threat to Mr De Varga, but did not reveal the identity of his informant or the existence of the cassette.
9. When questioned on 22 September 1981 in connection with the investigation into the attempted murder of Mr De Varga, Chief Superintendent Aimé-Blanc told the investigating judge as follows:
"Gehrling called [Mrs A.] at 10.30 p.m. from my office. He got her to talk about the case and the conversation lasted a good quarter of an hour. I recorded this conversation with a tape recorder. I have kept the tape recording in question, which I hold at your disposal. ... I wish to make clear that I did not report this tape recording to my superior officer."
The next day, on the instructions of the investigating judge, he handed over the recording to the latter.
10. On 9 November 1981 Mrs A. laid a complaint, together with an application to join the proceedings as a civil party (constitution de partie civile), against Mr Gehrling and Chief Superintendent Aimé-Blanc for invasion of privacy and breach of the confidentiality of telephone communications. She relied on Articles 368, 369 and 378 of the Criminal Code and on Article L.42 of the Post and Telecommunications Code (see paragraphs 18 and 22 below).
11. On 28 January 1985 the judge assigned to the investigation of the case made an order finding that there was no case to answer. He began by noting that the conversation recorded did not concern private life:
"...
... the offences (délits) provided for and penalised under [Articles 368-1o and 369 of the Criminal Code] require not only an actual interference with another’s private life, but also the intention to infringe a fundamental individual right.
...
In this case, the transcript of the recording obtained by Serge Gehrling shows that what [Mrs A.] said, apart from a few spontaneous remarks unrelated to the general subject-matter of the conversation, was extraneous to the complainant’s emotional or personal life."
On the question of the alleged violation of Article L.42 of the Post and Telecommunications Code, the judge stated as follows:
"That provision expressly states that the protection of secrecy is extended to the person making the call or its recipient only if neither of them consents to the revelation concerned.
As one of the participants in the conversation, Serge Gehrling, had, by handing over the recording to Chief Superintendent Aimé-Blanc, manifested the consent required by the aforesaid provision, the offence was not made out."
12. On Mrs A.’s appeal, the Indictment Division of the Paris Court of Appeal upheld the above-mentioned order on 22 October 1985, on the following grounds:
"...
... as one of [the participants in the conversation], Gehrling, had consented to this disclosure [of the content of a telephone communication] by voluntarily handing over to Chief Superintendent Aimé-Blanc the tape recording, the offence [of breach of the confidentiality of telephone communications] is not made out and the relevant order must be upheld in this respect.
...
... it appears that the conversation recorded between Gehrling and Mrs [A.] is entirely extraneous to the emotional or personal life of the woman concerned. On the contrary, Gehrling deliberately steered the conversation towards two matters, the preparation of the murder or a smuggling scheme, thereby seeking to prompt the recipient of his call to confirm the statements which he had made to Chief Superintendent Aimé-Blanc ...
In these circumstances, it appears that at no time did Gehrling try to make Mrs [A.] reveal a secret of her private, emotional, family or physical life, as he sought only to obtain statements concerning facts constituting serious breaches of the criminal law, matters which could not be classified as intimate."
13. Mrs A. appealed on points of law; she complained, inter alia, of procedural irregularities in the designation of the members of the Indictment Division.
On 11 May 1987 the Criminal Division allowed the appeal and remitted the case to the Paris Indictment Division, composed differently.
14. On 13 January 1988 the Indictment Division again upheld the order finding that there was no case to answer, on the following grounds:
"The transcript of the tape recording made by Gehrling in the office of Superintendent Aimé-Blanc reveals that, apart from a few spontaneous remarks unrelated to the general subject-matter of the conversation, the words spoken at her home by [Mrs A.] allude to a plan to commit murder and to a smuggling operation. Gehrling deliberately steered the conversation towards these two subjects and systematically brought [Mrs A.] back to them during the call. [Mrs A.] was thus asked a series of questions through which Gehrling tried to get her to confirm the allegations which he had made to the superintendent;
The mutually corroborative statements of Lucien Aimé-Blanc and Serge Gehrling establish that the latter agreed to the disclosure of this conversation;
I. The alleged interference with the intimate side of the civil party’s private life
In the first place, the offence punishable under Article 368 of the Criminal Code requires an actual interference with the intimate side of another person’s private life. The unlawful viewing or interception must involve situations, activities, attitudes or words revealing states of mind, feelings, opinions or occupations which there is a legitimate desire to confine to a restricted circle, and which relate to family life, personal relations, personal finances, thought, health and leisure;
That is not the case of remarks relating to a criminal conspiracy likely to lead to an attempt on the life of a third person and to prejudice public order;
Consequently, in this case, the words spoken by [Mrs A.] at her home and recorded without her knowledge by Gehrling, who had called her with the sole purpose of talking about a plan to murder Mr De Varga of which she was allegedly the instigator, and who had systematically kept the conversation on that subject and that of a smuggling operation, fall outside the sphere of private life;
It follows that Gehrling is not guilty of the offence (délit) of invasion of privacy;
Secondly, the retention and disclosure of recordings or documents obtained by stealth or without the knowledge of another person are punishable under the first paragraph of Article 369 of the Criminal Code only when they relate to the intimate side of that person’s private life;
The tape recording of the conversation between the complainant and Gehrling contains remarks which manifestly have no connection whatsoever with the private lives of the persons involved;
Consequently, Lucien Aimé-Blanc is not guilty of the offence of which he is accused;
II. The alleged breach of the confidentiality of telephone communications
While it is an offence under Article 42 of the Post and Telecommunications Code for a third person to divulge the content of telephone calls, the confidentiality of which the provision is designed to protect, either of the interlocutors may agree to disclosure, which then ceases to be criminal;
In the present case, it being noted that the complainant has not criticised in this respect the decision that there was no case to answer, Lucien Aimé-Blanc is not guilty of the offence in question, since it was established during the proceedings that Serge Gehrling had implicitly agreed to the possible disclosure of the telephone conversation by handing over voluntarily the recording made on his own initiative for that very purpose;"
15. Mrs A. lodged a further appeal on points of law, which the Court of Cassation dismissed on 8 November 1988.
16. The first ground of appeal was based on the violation of Article 191 of the Code of Criminal Procedure and again related to the composition of the Paris Indictment Division. The Court of Cassation took the view that the submission was unfounded.
17. The second ground of appeal, based on the violation of Articles 368 and 369 of the Criminal Code and Article 593 of the Code of Criminal Procedure, related to the reasons given in the order finding that there was no case to answer; the submission was worded as follows:
"... the contested decision found that Aimé-Blanc and Gehrling had no case to answer in respect of the charge of invasion of Mrs [A.’s] privacy;
...
firstly, the act of invasion of another’s privacy is perpetrated by the recording of words spoken in a private place and in the absence of the consent of the person who pronounces them as regards the recording of his statements; ...
secondly, the decision, which ... recognises ... that the alleged murder plot was not the sole subject of the telephone conversation in question, but does not report the statements extraneous to that purpose which could strictly concern the private life of the complainant, does not make it possible for the Court of Cassation to carry out its review and does not satisfy the essential conditions for its legal validity;
and finally, the decision, which states that ‘the words spoken by Mrs [A.] at her home ... fall outside the sphere of private life’ whereas it notes elsewhere that the telephone conversation included ‘spontaneous remarks unrelated to the general subject-matter of the conversation’, and which thus recognises that statements were made which were capable of concerning the strictly private life of the complainant, is vitiated by a contradiction and does not satisfy the essential conditions for its legal validity;"
The Criminal Division declared the submission inadmissible, for the following reasons:
"The wording of the impugned decision makes it possible for the Court of Cassation to satisfy itself that, in order to uphold the investigating judge’s order, the Indictment Division, after examining all the facts alleged by the complainant, replied to the main arguments in the latter’s memorials and stated the reasons on the basis of which it considered that it was able to infer that the constituent elements of the offences of which the defendants were accused had not been made out;
Under Article 575 of the Code of Criminal Procedure, in the absence of an appeal by the prosecution, a civil party is barred from contesting independently the merits of such grounds in support of an appeal to the Court of Cassation against a decision of that type, even if those grounds contain errors of law or are contradictory;"
18. Three provisions of the Criminal Code are relevant to this case:
"It is an offence punishable by a term of imprisonment of not less than two months and not more than one year and by a fine of not less than 2,000 francs and not more than 50,000 francs, or by one of the above penalties only, intentionally to interfere with the intimate side of another person’s private life:
1o By intercepting, recording or transmitting with any kind of device words spoken in a private place by another person without that person’s consent;
..."
"It is an offence, punishable by the penalties set out in Article 368, knowingly to keep, to bring, or intentionally to allow to be brought, to the attention of the public or of a third person, or to use publicly or otherwise any recording or document obtained by means of one of the actions described in that Article.
..."
"... any person who reveals secrets entrusted to him by reason of his status or profession, or of his temporary or permanent duties, except in those cases where he is obliged or authorised by law to lay an information, shall be liable to a term of imprisonment of not less than one month and not more than six months and to a fine of not less than 500 francs and not more than 15,000 francs.
..."
19. Since the events in this case the relevant French case-law and legislation have evolved.
20. By its Derrien judgment of 13 June 1989, the Criminal Division of the Court of Cassation held that "although Articles 81 and 151 of the Code of Criminal Procedure permit an investigating judge to order, subject to certain conditions, the interception or recording of telephone conversations, no statutory provision authorises officers of the criminal investigation branch to carry out such operations in connection with a preliminary police inquiry" (Bulletin criminel (Bull.) no. 254; Recueil Dalloz Sirey (D.S.) 1989, informations rapides, p. 219).
On 24 November 1989, the Court of Cassation, in plenary session, declared void telephone tapping which had not been effected as part of a judicial investigation:
"...
It appears from the impugned judgment and the evidence produced in the proceedings that, having been informed that Christian Baribeau was engaged in drug-trafficking and had in particular had as a customer André Salmeron, the police, on their own initiative, requested Salmeron to telephone Baribeau with a view to fixing a rendez-vous for a drugs delivery and recorded their conversation on cassette, then drew up a report on this operation; at the time fixed for the rendez-vous, the police were therefore able to follow Salmeron into Baribeau’s home, arrest the occupants and proceed with a search;
In order to refuse to annul the report describing the interception and recording of this conversation, the Court of Appeal held that the police had not used a technical device to intercept and record all the telephone conversations conducted from a subscriber’s telephone;
In making this ruling, when, without having obtained a warrant for this purpose from a judge, the police had, unknown to Baribeau, intercepted and recorded statements made by him on a telephone line which had been assigned to him, the Court of Appeal disregarded the above-mentioned provisions." (Bull. no. 440; D.S. 1990, case-law, p. 34)
21. Law no. 91-646 of 10 July 1991 concerning the confidentiality of telecommunications did not amend Articles 368, 369 and 378 of the Criminal Code, but introduced a new Article 186-1 which is worded as follows:
"Any depository or agent of the public authorities, any agent of the public telecommunications operator or any agent of another operator of an authorised telecommunications network or of another provider of telecommunications services who, acting in the performance of his duties or on the occasion of the performance of his duties, has ordered, committed, or facilitated, in circumstances not covered by the cases provided for by law, the interception or diversion of communications issued, transmitted or received through telecommunications technology, or the use or disclosure of their content, shall be liable to a term of imprisonment of not less than three months and not more than five years and to a fine of not less than 5,000 francs and not more than 10,000 francs.
..."
22. Under Article L.42 of the Post and Telecommunications Code,
"Any person who, without the authorisation of the person making the communication or the recipient thereof, discloses, publishes or uses the content of a communication transmitted by radioelectric means or reveals its existence shall be liable to the penalties prescribed in Article 378 of the Criminal Code."
This provision was repealed by the above-mentioned Law of 10 July 1991.
23. Article 9 of the Civil Code provides as follows:
"Everyone has the right to respect for his private life.
Judges may, without prejudice to a right to compensation for the damage sustained, order any measures, such as seizure, attachment and others, that may prevent or cause to cease an interference with the intimate side of private life; in the event of urgency such measures may be ordered on an interlocutory application."
VIOLATED_ARTICLES: 8


ITEMID: 001-22948
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: BENACKOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs Anna Beňačková, is a Slovakian national, who was born in 1947 and lives in Bratislava.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 24 June 1997 a person sued the applicant for defamation before the Bánovce nad Bebravou District Court. On 15 April 1998 the plaintiff extended his action. He claimed that the applicant should be ordered to abstain from alleging that he had stolen objects which formed part of his personal belongings and which were kept by the applicant. The plaintiff further claimed that the applicant should apologise for her above statements and that she be ordered to pay him 10,000 Slovakian korunas (SKK) in compensation for non-pecuniary damage resulting from the interference with his personality rights.
On 13 May 1998 the applicant requested the exclusion of the District Court judge dealing with the case with reference to the conduct of the latter. On 5 August 1998 the Trenčín Regional Court decided that the District Court judge was not biased.
On 24 September 1998 the Bánovce nad Bebravou District Court granted the plaintiff’s action. The applicant was ordered to revoke her statement that the plaintiff had stolen the property in question, to abstain from such statements in the future and to apologise in writing to the plaintiff. The District Court further decided that the applicant had to pay SKK 10,000 to the plaintiff in compensation for non-pecuniary damage and to reimburse the plaintiff’s costs amounting to SKK 2,400.
On 24 November 1998 the applicant appealed. She stated that the judgment had been served on her on 9 November 1998. On 14 December 1998 the applicant submitted the reasons for her appeal.
On 30 March 1999 the Trenčín Regional Court rejected the appeal on the ground that it had been lodged belatedly. The decision stated, with reference to the relevant provisions of the Code of Civil Procedure, that the first instance judgment was to be considered as having been served on 26 October 1998, that is on the third day after it had been deposited at the post office. The Regional Court noted that the deposition of the judgment at the post office, of which the applicant was notified in writing, had been preceded by two unsuccessful attempts to serve it on the applicant in person at her address.
On 1 June 1999 the applicant filed an appeal on points of law. She relied on Section 237(f) of the Code of Civil Procedure and argued that the Regional Court’s conclusion concerning the date of service of the first instance judgment was erroneous.
The applicant further requested that she should be exempted from the obligation to pay the costs of the proceedings concerning her appeal on points of law and that a lawyer should be assigned to her by the court. She explained that she was handicapped and that her only income was an invalidity pension amounting to SKK 4,724 a month. The applicant concluded that her financial and social situation did not allow her to incur any costs in the context of the proceedings.
On 30 July 1999 the Bánovce nad Bebravou District Court exempted the applicant from the obligation to pay the court fees in respect of the proceedings on her appeal on points of law. It further dismissed her request that a lawyer be assigned to her.
In its decision the District Court noted that the court fee due by the applicant amounted to SKK 2,400, that is approximately a half of her monthly income. The court therefore considered it justified to exempt the applicant from the obligation to pay it.
As to the applicant’s request that a lawyer be appointed to represent her, the District Court established, with reference to the relevant regulations, that an advocate was entitled to charge the applicant SKK 1,400 for representing her in the proceedings on her appeal on points of law. It held that the applicant could afford to pay that sum and that her monthly income would in such a case still remain over the statutory minimum which then corresponded to SKK 3,230.
On 2 September 1999 the applicant appealed. She claimed that her living costs and expenditures on medicaments did not allow her to pay the fees of a lawyer. On 31 January 2000 the Trenčín Regional Court rejected the appeal on the ground that it had been lodged out of time.
On 6 April 2000 the applicant filed an appeal on points of law against the Regional Court’s decision of 31 January 2000. She argued that she had appealed in time. The applicant also claimed that she should be exempted from the obligation to pay the court fees in respect of her appeal on points of law and that an advocate should be appointed to represent her.
On 30 May 2000 the Supreme Court invited the applicant, with reference to Section 241 (1) of the Code of Civil Procedure and to the Bánovce nad Bebravou District Court’s above decision of 30 July 1999, to appoint a lawyer within five days. The letter further stated that the proceedings would be discontinued in the event that the applicant failed to comply with the request.
The applicant received the Supreme Court’s letter on 1 June 2000, and on 4 June 2000 she replied that she could not comply with the request within the time-limit fixed as she was to start a cure in the Piešťany spa as from 6 June 2000. The applicant further stated that she did not know when the cure would end. A certificate attached to the applicant’s letter indicated that the cure was to last twenty-one days as from 6 June 2002.
On 27 June 2000 the Supreme Court discontinued the proceedings on the applicant’s appeals on points of law. The decision stated that the applicant had been notified about the dismissal of her request for an advocate to be assigned to her by the District Court on 9 March 2000. Accordingly, she had had enough time to appoint a lawyer of her own choice or, as the case might be, to ask the Bar Association or the Chamber of Commercial Lawyers to assign a lawyer to her. The Supreme Court concluded that the applicant’s conduct indicated that she had no genuine interest in complying with the formal requirements for her appeals on points of law to be proceeded with.
In a letter dated 28 June 2000 and sent on 30 June 2000 the applicant asked the president of the Bar Association to assign a lawyer to her in the proceedings on her appeals on points of law. She explained that she was handicapped and indigent.
On 2 August 2000 the vice-president of the Bar Association replied to the applicant, with reference to Section 15 (3) of the Bar Act of 1990, that an advocate could be assigned only to persons who were denied legal assistance. The letter further stated that the applicant had not shown that advocates had refused to represent her.
On 20 September 2000 the applicant again requested that the president of the Bar Association assign a lawyer to her.
On 17 October 2000 the vice-president of the Bar Association reiterated the position set out in her letter of 2 August 2000.
On 21 May 2001 the applicant asked the Bar Association to assign a lawyer to her in the proceedings on her appeal on points of law against the Regional Court’s decision of 31 January 2000. She explained that she was indigent and that her mobility was reduced. The applicant further stated that she would not contact an advocate directly, and that she considered indecent and discriminatory the requirement that she should show that three advocates had refused to represent her prior to addressing her request to the Bar Association. The applicant reiterated her request on 27 July 2001.
On 1 February 2000 an enforcement officer informed the applicant that proceedings had been brought with a view to enforcing the above District Court’s judgment of 24 September 1998.
The applicant filed an objection to the enforcement. She argued that it had no legal ground as she had not offended the plaintiff. The applicant further contested the costs of the enforcement.
On 30 March 2000 the Bánovce nad Bebravou District Court dismissed the applicant’s objection to the enforcement. It found that the applicant still owed the sum in question, and there existed no impediment to the enforcement. The District Court further found that the applicant’s objection to the costs of the enforcement was justified.
On 11 December 2001 the enforcement officer issued an order under which the sum due by the applicant was to be withdrawn from the applicant’s invalidity pension. Subsequently the order was quashed as the costs of the enforcement had not been determined in it correctly.
On 11 March 2002 a new enforcement order was issued. The sum owed by the applicant has been enforced by monthly instalments of SKK 2,002 deducted from her invalidity pension. The applicant was informed that the sum which had already been enforced under the above order of 11 December 2001 would be deducted from the sum due by her.
On 10 April 2002 the applicant requested that the enforcement proceedings be discontinued. She argued that the costs of the enforcement had been indicated erroneously in the order of 11 March 2002.
On 27 May 2002 the applicant submitted to the District Court, at the latter’s request, documents concerning her health.
On 24 June 2002 the District Court requested the applicant to inform it whether she had apologised to the plaintiff and abstained from further defamatory statements in his respect as ordered by the judgment of 24 September 1998.
On 10 July 2002 the applicant informed the court that she had sent the plaintiff a registered letter of apology. The applicant further pointed out that the above District Court’s letter of 24 June 2002 had been erroneously sent to her mother’s place in Bánovce nad Bebravou and not to her permanent address in Bratislava.
In a separate letter of 10 July 2002 the applicant complained to the Minister of Justice that the Association of Enforcement Officers had failed to examine her complaint about the enforcement officer dealing with her case.
Section 30 (1) provides that courts may appoint a representative to a party to the proceedings, at the latter’s request, provided that he or she meets the requirements for waiver of court fees and that such an appointment is necessary for the protection of the party’s interests. Pursuant to paragraph 2 of Section 30, the president of the court’s chamber shall appoint an advocate to represent a party in circumstances set out in the first paragraph when the protection of the party’s interests so requires.
Pursuant to Section 237 (f), an appeal on points of law is available when a party has been prevented, by the appellate court’s conduct, from acting before the court.
Section 241 (1) provides, inter alia, that in proceedings on an appeal on points of law the plaintiff has to be represented by an advocate or a commercial lawyer unless he or she has legal qualification.
Section 15 (1) of the Bar Act (Zákon o advokácii) of 1990 provides that everybody has the right to legal assistance and can ask any advocate for it.
Paragraph 2 of Section 15 provides that an advocate is entitled to refuse legal assistance to a person only for serious reasons permitting the advocate to conclude that he or she cannot provide such assistance in an appropriate manner. This does not apply to cases when an advocate was assigned to represent a person, for example under Section 30 of the Code of Civil Procedure. An advocate shall explain the reasons for which he or she refused to provide legal assistance to a client. The Bar Association shall examine whether such a refusal was justified.
Under paragraph 3 of Section 15, a person whose request for legal assistance has been turned down can ask the Bar Association to appoint an advocate to represent him or her.
Section 19 (3), as in force since 1 December 1999, provides that citizens are entitled to legal assistance at a reduced cost or free of charge when it is justified by the client’s personal or material situation or by other particular reasons.