ITEMID: 001-111044
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF SCOPPOLA v. ITALY (No. 3)
IMPORTANCE: 2
CONCLUSION: No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote)
JUDGES: András Sajó;David Thór Björgvinsson;Dean Spielmann;Françoise Tulkens;George Nicolaou;Guido Raimondi;Helen Keller;Ineta Ziemele;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Lech Garlicki;Mark Villiger;Mihai Poalelungi;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Vincent A. De Gaetano;Vladimiro Zagrebelsky
TEXT: 11. The applicant was born in 1940 and is currently in compulsory residence at San Secondo Hospital – Fidenza (Parma).
12. On 2 September 1999, after a violent family dispute, the applicant killed his wife and injured one of his sons. He was arrested the following day.
13. At the end of the preliminary investigation the Rome prosecution service asked for the applicant to be committed to stand trial for murder, attempted murder, ill-treatment of his family and unauthorised possession of a firearm.
14. On 24 November 2000, under the summary procedure under which the applicant had elected to stand trial, the Rome preliminary hearings judge (giudice dell’udienza preliminare) found the applicant guilty of all the charges and noted that he should be sentenced to life imprisonment. However, because the summary procedure had been used, he sentenced the applicant to thirty years’ imprisonment and a lifetime ban from public office within the meaning of Article 29 of the Criminal Code (see paragraph 36 below).
15. The judge noted that the applicant had first attempted to strangle his wife with the cable of the telephone she had used to call the police. Then, when his wife and children ran out of the flat and down the stairwell of the building, he had fired several shots at his wife at close range, and at one of his sons, who had initially been ahead of his mother but had gone back to help her.
16. In fixing the sentence the judge took into account certain aggravating circumstances, namely the fact that the applicant’s criminal behaviour had been against his own family and had been triggered by so trifling an incident as his children having allegedly broken his mobile phone.
17. The judge made no allowance for the fact that the applicant had no previous criminal record, an argument the applicant had relied on as a mitigating circumstance. He found that the applicant’s attitude in denying some of his actions and blaming his family, who he claimed were guilty of rebelling against his authority, showed that he felt no remorse whatsoever.
18. Lastly, the judge noted that according to witness statements the applicant had been responsible for other episodes of violence over the past twenty years, such as insults, physical violence and threats against his wife and children, including with weapons.
19. Both the Public Prosecutor’s Office and the applicant appealed against that judgment, and in a judgment of 10 January 2002 the Rome Assize Court of Appeal sentenced the applicant to life imprisonment, upholding the conclusions of the preliminary hearings judge as to which aggravating and mitigating circumstances should be taken into account.
20. The applicant appealed on points of law, and in a judgment deposited with its registry on 20 January 2003 the Court of Cassation dismissed the appeal.
21. Under Article 29 of the Criminal Code, the life sentence imposed on the applicant entailed a lifetime ban from public office, which in turn led to the permanent forfeiture of his right to vote, in conformity with section 2 of Presidential Decree no. 223 of 20 March 1967 (“Decree no. 223/1967” – see paragraph 33 below).
22. The applicant’s disenfranchisement was not mentioned in the judgments against him.
23. In application of section 32 of Decree no. 223/1967 (see paragraph 35 below), on 2 April 2003 the electoral committee deleted the applicant’s name from the electoral roll.
24. On 30 June 2004 the applicant lodged a complaint with the electoral committee. Referring to the Hirst v. the United Kingdom (no. 2) judgment (no. 74025/01, 30 March 2004), amongst other authorities, he alleged that depriving him of the right to vote was incompatible with Article 3 of Protocol No. 1 to the Convention.
25. The complaint was rejected, and on 16 July 2004 the applicant lodged an appeal with the Rome Court of Appeal. He contended that the fact that the removal of his name from the electoral roll, as an automatic consequence of his life sentence and lifetime ban from public office, was incompatible with his right to vote guaranteed by Article 3 of Protocol No. 1 to the Convention.
26. By a judgment deposited with its registry on 29 November 2004 the Court of Appeal dismissed the appeal. It pointed out that, unlike in the Hirst (no. 2) case (cited above), where every person sentenced to imprisonment was divested of the right to vote, with no assessment of the competing interests or the proportionality of the measure, in Italian law the impugned measure was applied only where the offence was punishable with a particularly heavy sentence, including life imprisonment. The court found that the automatic aspect of the application of the voting ban to any custodial sentence was lacking in the applicant’s case.
27. The applicant appealed on points of law, alleging, inter alia, that his disenfranchisement was a consequence of the ancillary penalty banning him from public office (which was itself the result of the main penalty imposed on him). In his view the impugned ban had nothing to do with the offence committed and the courts had no power to decide to apply such a measure.
28. In a judgment deposited with its registry on 17 January 2006 the Court of Cassation dismissed the applicant’s appeal. First, it referred to the Hirst (no. 2) judgment of 6 October 2005 (Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 77, ECHR 2005IX), where the Grand Chamber considered that the withdrawal of voting rights in the United Kingdom “concern[ed] a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity”. It then noted that in Italian law, under Article 29 of the Criminal Code, only those offenders sentenced to at least three years’ imprisonment were deprived of the right to vote. Where the offence attracted a sentence of less than five years, the disenfranchisement lasted only five years, a lifelong ban on voting being reserved for offenders sentenced to between five years and life.
29. On 24 March 2003, the applicant lodged an application with the Court alleging, inter alia, that his life sentence had breached Articles 6 and 7 of the Convention.
30. In a judgment of 17 September 2009 the Grand Chamber of the Court found violations of those Articles (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, 17 September 2009).
31. ’s sentence of life imprisonment is replaced by a penalty consistent with the principles set out in the present judgment, which is a sentence not exceeding thirty years’ imprisonment.” (see Scoppola (no. 2), cited above, § 154).
32. Consequently, by a judgment deposited with its registry on 28 April 2010, the Court of Cassation reversed its judgment of 20 January 2003 (see paragraph 20 above), set aside the judgment of the Rome Assize Court of Appeal of 10 January 2002 (see paragraph 19 above) and fixed the applicant’s sentence at thirty years’ imprisonment.
33. In the Italian legal system a ban from public office is an ancillary penalty (Article 28 of the Criminal Code) which entails forfeiture of the right to vote (Presidential Decree no. 223/1967) and for which express provision is made by law in connection with a series of specific offences, irrespective of the duration of the sentence imposed – such as embezzlement of public funds, by a public official (peculato) or otherwise, extortion, and market abuse (punishable, respectively, under Articles 314, 316 bis, 317 and 501 of the Criminal Code); certain offences against the judicial system, such as perjury by a party, fraudulent expertise or interpretation, obstructing the course of justice and “disloyal counsel” (consulenza infedele) (punishable, respectively, under Articles 371, 373, 377 and 380 of the Criminal Code); and offences involving abuse and misuse of the powers inherent in public office (Article 31 of the Criminal Code).
34. Conviction for any offence punishable by imprisonment also results in the offender being banned from public office. The ban from public office may be temporary (where the sentence is three years or more) or permanent (for sentences of five years or more and life imprisonment). The relevant domestic legal provisions are the following.
35. Presidential Decree no. 223/1967 (on the Unified Code governing the active electorate and the maintenance and revision of the electoral rolls) reads as follows, in so far as relevant:
“1. The following persons shall not vote: ...
(d) persons who have been sentenced to penalties entailing a lifetime ban from public office...
(e) persons under a temporary ban from public office, for the duration of that ban.
2. Judgments in criminal cases shall entail the loss of voting rights only once they have become final.”
“No change may be made to the electoral rolls ... save ...:
(3) where the right to vote has been lost as a result of a judgment or other measure by a judicial authority. ...
(7) appeals against decisions to change the electoral rolls may be lodged with the relevant electoral committee within a ten-day time-limit. The committee shall decide within fifteen days ...”
“The decisions of the electoral committee ... may be challenged by appeal to the appropriate Court of Appeal.”
36. The Criminal Code provides as follows, in so far as relevant:
“The ban from public office may be for life or temporary.
In the event of a lifetime ban from public office, unless the law provides otherwise, the convicted person shall be deprived of:
(1) the right to vote or stand for election in any electoral body (comizio elettorale) and all other political rights.”
...
“A sentence to life imprisonment or to imprisonment for no less than five years shall entail a lifetime ban from public office for the convicted person; sentencing to imprisonment for not less than three years shall entail a five-year ban from public office ...”
37. Articles 132 and 133 of the Criminal Code lay down sentencing guidelines for the trial courts and read as follows:
“Within the limits set by the law, the court shall apply the sentence at its discretion; it shall justify its use of this discretionary power with proper reasoning.
In increasing or decreasing the sentence the court shall not overstep the statutory limits for each type of sentence, save where expressly provided for by law.”
“In exercising the discretionary power mentioned in the preceding Article the court shall take into account the gravity of the offence, having regard to:
(1) the nature, type, means, object, time, place and any other attribute of the action;
(2) the gravity of the harm done or the danger caused to the victim of the offence;
(3) the level of intent or the degree of guilt.
The court shall also take into account the offender’s propensity to commit crime (capacità a delinquere), based on:
(1) the motives behind the offence (motivi a delinquere) and the character of the offender (reo);
(2) the offender’s past criminal and judicial record and, in general, the person’s life and conduct prior to committing the offence;
(3) the offender’s conduct at the time of, or after, the offence;
(4) the offender’s personal, family and social situation.”
38. Articles 178 and 179 of the Criminal Code provide for the rehabilitation of offenders and read as follows:
“Rehabilitation shall terminate any ancillary penalties and other penal effect of the conviction, unless otherwise provided by law.”
“Rehabilitation may be granted three years after the day on which the main penalty has been completed or otherwise extinguished, provided that the offender has displayed consistent and genuine good conduct. ...”
39. Law no. 354 of 26 July 1975 provides, inter alia, for the possibility of early release. The relevant part of section 54 (1) reads as follows:
“In order to facilitate reintegration into society, convicted prisoners who take part in the re-education scheme may have their sentence reduced by forty-five days for every six months served ...”
40. The relevant provisions of the International Covenant on Civil and Political Rights read as follows:
“1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
...
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation ...”
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.”
41. In its General Comment no. 25 (1996) on Article 25 of the International Covenant on Civil and Political Rights, the Human Rights Committee expressed the following view:
“14. In their reports, States parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote. The grounds for such deprivation should be objective and reasonable. If conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.”
42. In its views on the Yevdokimov and Rezanov v. Russian Federation case (21 March 2011, no. 1410/2005), the Human Rights Committee, referring to the Court’s judgment in Hirst (no. 2) [GC] (cited above), stated:
“ 7.5 ... the State party, whose legislation provides a blanket deprivation of the right to vote to anyone sentenced to a term of imprisonment, did not provide any arguments as to how the restrictions in this particular case would meet the criterion of reasonableness as required by the Covenant. In the circumstances, the Committee concludes there has been a violation of article 25 alone and in conjunction with article 2, paragraph 3, of the Covenant...”
43. Article 23 of the American Convention, under the heading “Right to Participate in Government”, provides:
“1. Every citizen shall enjoy the following rights and opportunities:
a. to take part in the conduct of public affairs, directly or through freely chosen representatives;
b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and
c. to have access, under general conditions of equality, to the public service of his country.
2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.”
44. This document, adopted by the European Commission for Democracy through Law (“the Venice Commission”) at its 51st plenary session (5-6 July 2002) and submitted to the Parliamentary Assembly of the Council of Europe on 6 November 2002, lays out the guidelines developed by the Commission concerning the circumstances in which people may be deprived of the right to vote or to stand for election. The relevant passages read as follows:
“i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions:
ii. it must be provided for by law;
iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them;
iv. the deprivation must be based on mental incapacity or a criminal conviction for a serious offence;
v. Furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law.”
45. Nineteen of the forty-three Contracting States examined in a comparative law study place no restrictions on the right of convicted prisoners to vote: Albania, Azerbaijan, Croatia, Cyprus, Czech Republic, Denmark, Finland, Ireland, Latvia, Lithuania, Moldova, Montenegro, Serbia, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia” and Ukraine.
46. Seven Contracting States (Armenia, Bulgaria, Estonia, Georgia, Hungary, Russia and the United Kingdom) automatically deprive all convicted prisoners serving prison sentences of the right to vote.
47. The remaining sixteen member States (Austria, Belgium, Bosnia and Herzegovina, France, Germany, Greece, Luxembourg, Malta, Monaco, Netherlands, Poland, Portugal, Romania, San Marino, Slovakia and Turkey) have adopted an intermediate approach: disenfranchisement of prisoners depends on the type of offence and/or the length of the custodial sentence. Italy’s legislation on the subject resembles that of this group of countries.
48. In some of the States in this category the decision to deprive convicted prisoners of the right to vote is left to the discretion of the criminal court (Austria, Belgium, France, Germany, Greece, Luxembourg, Netherlands, Poland, Portugal, Romania and San Marino). In Greece and Luxembourg, in the event of particularly serious offences disenfranchisement is applied independently of any court decision.
49. In 1992 the Supreme Court of Canada unanimously struck down a legislative provision barring all prisoners from voting (Sauvé v. Canada (no. 1), Supreme Court Report, 1992, vol. 2, p. 438). Amendments were introduced limiting the ban to prisoners serving sentences of two years or more. The Federal Court of Appeal upheld that provision. However, on 31 October 2002 the Supreme Court held by five votes to four, in the case of Sauvé v. Attorney General of Canada (no. 2), that section 51 (e) of the 1985 Canada Elections Act, denying the right to vote to all persons serving sentences of two years or more in a correctional institution, was unconstitutional as it infringed Articles 1 and 3 of the Canadian Charter of Rights and Freedoms, which provide:
“1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
“3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”
50. The majority opinion given by Beverly McLachlin CJ considered that the right to vote was fundamental to democracy in Canada and the rule of law and could not be lightly set aside. Limits on this right required not deference, but careful examination. The majority found that the Government had failed to identify the particular problems that required denying the right to vote and that the measure did not satisfy the proportionality test, in particular as the Government had failed to establish a rational connection between the denial of the right to vote and its stated objectives of enhancing civic responsibility and respect for the rule of law and imposing appropriate punishment.
51. The minority opinion given by Gonthier J found that the objectives of the measure were pressing and substantial and based upon a reasonable and rational social or political philosophy (for further details of these opinions, particularly concerning the objectives of the impugned measure, see Hirst (no. 2) [GC], cited above, §§ 36-37).
52. On 1 April 1999 the Constitutional Court of South Africa considered the application of prisoners for a declaration and orders that the Electoral Commission take measures enabling them and other prisoners to register and vote while in prison. It noted that, under the South African Constitution, the right of every adult citizen to vote in elections for legislative bodies was set out in unqualified terms, and it underlined the importance of that right:
“The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts.”
53. The Constitutional Court found that the right to vote by its very nature imposed positive obligations upon the legislature and the executive and that the Electoral Act must be interpreted in a way that gave effect to constitutional declarations, guarantees and responsibilities. It noted that many democratic societies imposed voting disabilities on some categories of prisoners. Although there were no comparable provisions in the Constitution, it recognised that limitations might be imposed upon the exercise of fundamental rights, provided they were, inter alia, reasonable and justifiable.
54. The question whether legislation barring prisoners would be justified under the Constitution was not raised in the proceedings and the court emphasised that the judgment was not to be read as preventing Parliament from disenfranchising certain categories of prisoners. In the absence of such legislation, prisoners had the constitutional right to vote and neither the Electoral Commission nor the Constitutional Court had the power to disenfranchise them. It concluded that the Commission was under the obligation to make reasonable arrangements for prisoners to vote.
55. The Constitutional Court of South Africa examined whether the 2003 amendment to the Electoral Act, depriving of the right to vote those prisoners serving sentences of imprisonment without the option of a fine, was compatible with the Constitution.
56. The Constitutional Court found the measure unconstitutional, by nine votes to two, and ordered the Electoral Commission to take the necessary steps to allow prisoners to vote in elections.
57. Chaskalson CJ, for the majority, concluded that in a case such as this where the government sought to disenfranchise a group of its citizens and the purpose was not self-evident, there was a need for it to place sufficient information before the court to enable it to know exactly what purpose the disenfranchisement was intended to serve. Moreover, in so far as the Government relied upon policy considerations, there should be sufficient information to enable the court to assess and evaluate the policy that was being pursued (see paragraphs 65 and 67 of the judgment). Chaskalson CJ further noted that this was a blanket exclusion aimed at every prisoner sentenced to imprisonment without the option of a fine, and that there was no information about the sort of offences concerned, the sort of persons likely to be affected and the number of persons who might lose their vote for a minor offence.
58. Madala J, for the minority, considered that the temporary removal of the vote and its restoration upon the prisoner’s release was in line with the Government’s objective of balancing individual rights and the values of society, particularly in a country like South Africa with its very high crime rate (see paragraphs 116 and 117 of the judgment).
59. The High Court of Australia found by four votes to two against the general voting ban that had been introduced in the place of the previous legislation, which had provided for the loss of the right to vote only in connection with prison sentences of three years or more (see Roach v. sElectoral Commissioner [2007] HCA 43 (26 September 2007)).
60. The High Court noted, inter alia, that the earlier legislation took into account the seriousness of the offence committed as an indicium of culpability and temporary unfitness to participate in the electoral process, beyond the bare fact of imprisonment (see paragraph 98 of the judgment).
NON_VIOLATED_ARTICLES: P1
NON_VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-84360
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF CRAVCENCO v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13+6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 5. The applicant was born in 1954 and lives in Cahul. The facts of the case, as submitted by the parties, may be summarised as follows.
6. The applicant worked for a State-owned theatre in Cahul (Teatrul Republican Muzical-Dramatic 'B.P. Haşdeu', “the employer”).
7. On 22 October 1996 she was dismissed and initiated court proceedings to have that dismissal annulled. On 5 February 1997 the Cahul District Court ordered her re-instatement. Following the employer's refusal to abide by the court order, she complained to the Ministry of Culture (“the Ministry”) on 6 February 1997. On 20 March1997 the Ministry assured her that the employer would abide by the judgment, failing which it would take action.
8. The applicant was re-instated on 31 March 1997. Notwithstanding that fact, another person continued to be mentioned in the staff lists as chief accountant. On 3 June 1997 the Regional Court quashed the lower court's judgment. It delivered its reasoned decision six months later.
9. On 3 June 1997 the applicant was again dismissed from her job. She continued to complain to various authorities, including the Ministry. On 26 August 1998 the Supreme Court of Justice quashed the Regional Court's judgment of 3 June 1997 and upheld the judgment of 5 February 1997. On 15 September 1998 the order of 3 June 1997 dismissing the applicant was annulled; at the same time she was again dismissed.
10. The Prosecutor's Office initiated court proceedings in the applicant's interest, seeking the annulment of the dismissal order of 15 September 1998. On 16 September 1998 the Deputy President of the Cahul District Court informed the regional prosecutor about the employer's persistent resistance and the resulting failure to properly enforce the judgment of 5 February 1997. Moreover, the prosecutor was informed of the applicant's further dismissal on 15 September 1998. In the light of these events, the court requested the prosecutor to open a criminal investigation against the employer's director.
11. The applicant continued to complain about the incomplete enforcement of the judgment of 5 February 1997. On 13 January 1999 she was informed by the Cahul District Court of an administrative fine imposed on the theatre director on 16 September 1998, and of the request to open a criminal investigation against him. The employer submitted to the court another order, dated 26 March 1999, annulling the applicant's dismissal of 15 September 1998. On 6 April 1999 a bailiff confirmed that the applicant had not been de facto re-instated in the specific prior position. On 26 May 1999 the President of the Cahul District Court requested the prosecutor to open a criminal investigation against the theatre director for failure to enforce the judgment of 5 February 1997.
12. On 17 July 1999 the applicant was dismissed from the post of superior accountant. On the same date the court informed the Ministry of the employer's persistent refusal to enforce the judgment of 5 February 1997. On an unknown date the employer presented a new order, dated 2 April 1999, in accordance with which the position of “chief accountant” no longer existed. On 27 July 1999 the court again asked the prosecutor to initiate criminal proceedings against the theatre director. It also informed the Ministry of the employer's failure to enforce the court judgment in the applicant's favour in a proper manner. The Ministry drew the employer's attention to the need to abide by the judgment.
13. On 8 December 1999 the Cahul District Court annulled the dismissal order of 17 July 1999 and ordered the applicant's immediate re-instatement.
14. On 11 December 1999 the employer adopted a new order (“the first order of 11 December 1999”) whereby the applicant was re-instated in the position of “superior accountant”. On 13 December 1999 the bailiff confirmed that the judgment had not been properly enforced and on 14 December 1999 he asked the court to impose an administrative fine on the theatre director.
15. On 11 January 2000 the prosecution informed the applicant that its verification revealed a failure to properly enforce the judgment of 5 February 1997 and that the employer's order of 11 December 1999 had been challenged in court.
16. On 1 February 2000 the employer adopted a new order to the effect that the position of “chief accountant” would no longer exist after 2 April 2000. On 2 February 2000 the applicant was informed that a new order dated 11 December 1999 (“the second order of 11 December 1999”) had been adopted, under the same number as the previous order of that date (see paragraph 14 above), re-instating her in her original position as chief accountant. She was also warned that that position would end on 2 April 2000.
17. On 15 February 2000 the Cahul Regional Court upheld the judgment of 8 December 1999. By another decision of the same date the court rejected the bailiff's request to impose a fine on the theatre director.
18. On 21 February 2000 the applicant requested the employer to issue an order whereby the position of chief accountant would be “created in reality” and reflected in the official documents (state de personal) since no such position allegedly existed officially, apart from her re-instatement order. She also asked to be given the necessary authorities and access to documents in order to perform her functions.
19. On 21 March 2000 the Cahul Regional Court quashed the decision of 15 February 2000 not to impose a fine on the theatre director. It ordered a re-hearing of the case.
20. The applicant initiated new court proceedings, seeking to have the order of 1 February 2000 annulled as unlawful.
21. On 19 April 2000 the Cahul District Court decided to declare invalid the first order of 11 December 1999 (order no. 1, re-instating her in the position of superior accountant, see paragraph 14 above), and to declare valid the other order with the same number and date (order no. 2, re-instating her in the position of chief accountant, see paragraph 16 above). On 24 August 2000 the Cahul Regional Court quashed that judgment and simultaneously adopted a new one, which also annulled the first order and upheld the second. On 10 October 2000 the Chişinău Court of Appeal quashed both judgments and ordered a full re-hearing.
22. On 5 March 2001 the Cahul District Court ordered the re-instatement of the applicant in the position of chief accountant. On 30 October 2001 the Chişinău Regional Court quashed that judgment and discontinued the proceedings in respect of the annulment of the order of 1 February 2000, stating that the decision to abolish a position - taken in accordance with the relevant procedure - was an internal matter for the theatre and was not subject to judicial control. The court also ordered a re-hearing of the case in respect of the annulment of the order of 11 December 1999, the applicant's de facto re-instatement and payment of her salary for the duration of her involuntary absence from work. On 15 January 2002 the Court of Appeal dismissed the applicant's appeal against the discontinuation of proceedings with regard to the annulment of the order of 1 February 2000.
23. On 14 June 2002 the Cahul District Court discontinued the proceedings in respect of the annulment of the order of 11 December 1999 and the de facto re-instatement of the applicant because the proceedings had been incorrectly initiated as civil proceedings, whereas they were within the competence of the administrative courts. On the same date the Cahul District Court dismissed the bailiff's proposal to fine the theatre director for failure to enforce the judgment of 8 December 1999. This latter decision was subsequently upheld by the Comrat Regional Court on 29 June 2004.
24. On 24 September 2003 the applicant inquired about the reasons for the non-enforcement of the judgment of 5 February 1997. It appears that she did not receive any reply. She repeated her request on 23 March 2004, when she was informed about the decisions of 14 June 2002. She then appealed.
25. On 13 July 2004 the Comrat Regional Court quashed the first of the two decisions of 14 June 2002 (regarding discontinuation of the proceedings for lack of competence) and ordered a re-hearing of the case. The court found that the parties had not been informed about the hearing and had not been sent a copy of the decision and, further, that the case file had not been received at the registry of the lower court until 24 February 2004.
26. On 12 April 2005 the Cahul District Court found that the applicant's re-instatement had been ordered three times by final court judgments (on 5 February 1997, 8 December 1999 and 15 February 2002) and that she had been properly re-instated on 11 December 1999; it therefore dismissed her claim for re-instatement. However, the court accepted her claim for payment of salary for involuntary absence from work for the period from 15 February 2000 until 25 August 2000, when she was dismissed by an order which she did not challenge. The court left unexamined her request for compensation for the effects of inflation on the late payment and her claim for non-pecuniary damage, which could be examined in separate proceedings.
27. The applicant submitted that she was not informed of her employer's order of 25 August 2000, had not acknowledged receipt of the order as required by law, and was thus unable to challenge it in court. The order had not been presented to the courts or to any other authority in any of the proceedings after August 2000, which meant that it was fake.
28. On 17 April 2006 the Cahul District Court partly accepted the applicant's claims and found that her employer had not paid her salary for certain periods in 2000 or made mandatory social welfare payments in respect of the applicant. The court declared void the first order of 11 December 1999 to re-instate the applicant, and found that the second order of the same date and with the same number remained valid. It awarded the applicant compensation for non-pecuniary damage in the amount of 350 Moldovan lei (MDL) (equivalent to 22 euros (EUR) at the time) for the failure to pay a part of her salary in 2000, finding that the employer had in the meantime paid another MDL 350 in salary arrears.
29. The applicant submitted medical evidence concerning several periods of in-patient hospital treatment during the proceedings and claimed that she had spent a considerable amount of money on treatment for herself and her daughter.
30. According to a letter from the Ministry of Justice to the Government's Agent, dated 26 June 2006, the applicant's appeal was sent to the Cahul Court of Appeal on 19 May 2006. That court sent the case to the Supreme Court of Justice, asking it to examine the issue of the impossibility of examining the appeal, due to the fact that that all the judges in the Cahul Court of Appeal had already taken part in previous examinations of the case. On an unknown date the case was transferred to the Chişinău Court of Appeal. According to a certificate issued by the Decisions Enforcement department in Cahul on 3 March 2006, the applicant received MDL 1,680 in salary arrears for 1999.
31. On 1 November 2006 the Chişinău Court of Appeal upheld the judgment of 17 April 2006. That judgment was also upheld by the Supreme Court of Justice on 25 April 2007 and thus became final.
32. The relevant provisions of the Code of Civil Procedure, in force before 12 June 2003, read:
“Article 208
Court judgments are immediately enforceable if they order the defendant to:
... (2) pay [an employee] his/her salary ...
... (4) re-instate in his/her job an unlawfully dismissed worker.”
33. The relevant provisions of the new Code of Civil Procedure read:
“Article 192.
... (2) Court actions regarding ... work related claims ... shall be examined urgently and on a priority basis.
Article 256
(1) Court decisions and judgments are immediately enforceable if they order the defendant to:
... d) pay compensation for involuntary absence from work, when the person is re-instated in his or her job.
(2) Court judgments regarding re-instatement in post of those unlawfully dismissed or transferred shall be enforced immediately.”
34. The relevant provisions of the Labour Code (in force at the time) read:
“Article 221.
An employee may apply to the labour disputes commission or a court directly within one month from the date on which he or she discovered or ought to have discovered the violation of his or her rights. Where an employee is dismissed, the period of one month is counted from the day on which the dismissal order was announced to him or her and was acknowledged by the employee's signature.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-109927
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: CASE OF INTERDNESTRCOM v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 1. The applicant is a company from the breakaway Transdniestrian region of Moldova in the telecommunications field. It was represented before the Court by Mr V. Griţco, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
2. On 12 June 2003 the Government of Moldova adopted decision No. 712, under which private businesses from the breakaway Transdniestrian region of Moldova could obtain temporary registration with the Moldovan Registration Chamber to facilitate their export operations by using Moldovan customs stamps.
3. On 8 July 2004 the Government of Moldova adopted decision No. 782-37, making it possible for the applicant company to obtain a licence in the telecommunications field after obtaining temporary registration. This decision was taken in private, however, it appeared later from the decision of the Constitutional Court of 2 September 2004 (see below) that the purpose of the decision was to unify the telecommunications systems of the two banks of the Dniester River and to re-establish telephone communications with the breakaway province.
4. On 13 July 2004 the applicant company obtained temporary registration under Moldovan law in accordance with Government decision no. 712 and was issued with a State registration number and a registration certificate by the State Registration Chamber.
5. On 15 July 2004 the applicant company obtained, in accordance with Government decision no. 782-37, two licences from the National Regulatory Agency for Telecommunications and Informatics (“ANRTI”) to provide mobile and fixed telephony services, for which it paid one million United States dollars (“USD”) to the Moldovan Ministry of Finance.
6. On 21 July 2004 the Supreme Security Council of the State decided against allowing the applicant company a presence in the Moldovan telecommunications market, and on 27 July 2004 the President of Moldova challenged Government decision no. 782-37 before the Constitutional Court. The grounds for challenging the decision were, inter alia, that the price paid by the applicant company had been considerably lower than that paid by other similar companies present on the market and that the rules of fair competition had thus been infringed.
7. On 30 July 2004 ANRTI decided to suspend the applicant company’s licences.
8. On 31 July 2004 the Government suspended decision no. 712.
9. On 2 September 2004 Government decision no. 782-37 was declared unconstitutional by the Constitutional Court.
10. On 29 October 2004 ANRTI informed the applicant company that on 21 October 2004 its licences had been withdrawn in view of the fact that its registration as a legal entity under Moldovan law had been terminated and in accordance with the Constitutional Court decision of 2 September 2004. The letter made reference to the provisions of section 21 (1) (b) of the Licensing Act (see below).
11. It does not appear from the materials of the case that upon learning the above the applicant company challenged the State Registration Chamber’s decision to terminate its registration or ANRTI’s decision to withdraw its licences. Instead, the applicant company requested on several occasions that the Government refund the money paid for the licences. Since the Government refused to refund the money, on 1 December 2005 the applicant company initiated proceedings before the Economic Court claiming USD 1,000,000 and default interest from the Government.
12. During the proceedings the Economic Court requested information from the State Registration Chamber concerning the applicant company. The State Registration Chamber informed the court that no company named Interdniestrcom was registered in Moldova.
13. On 13 April 2006 the Economic Court struck the applicant company’s application off the list of cases, on the ground that it did not have standing to initiate a civil action because it was not registered as a legal entity in Moldova or in any other country. The court ordered the Ministry of Finance to return to the applicant company the court fees paid by it. The court fees were paid by the Ministry of Finance to the applicant company’s account.
14. The applicant company appealed and argued, inter alia, that it had followed the rules instituted by the Government when it had obtained a temporary registration and had paid the money for the licences. It also argued that its registration under Moldovan law had never been formally cancelled.
15. On 15 June 2006 the Supreme Court of Justice dismissed the applicant company’s appeal and upheld the first-instance court’s decision. It reached the same conclusion as the first-instance court, that the applicant company lacked capacity to plead before courts as it was legally nonexistent.
16. On 3 August 2006 the applicant company wrote to the State Registration Chamber and inquired whether it was still registered as a legal entity in Moldova. In a letter dated 8 August 2006 the State Registration Chamber explained to the applicant that its registration had automatically became null when decision no. 712 was suspended on 31 July 2004.
17. On 10 November 2006 the applicant company wrote again to the Ministry of Finance and requested the refund of the money paid for the licences. In a letter dated 27 December 2006 the Minister of Finance informed the applicant company that its request had been examined and asked the applicant company to provide details of its bank account. The applicant company complied, but no payment followed.
18. According to sections 14 and 27-29 of Law No. 1265 of 5 October 2000 on the State registration of legal entities (“the Legal Entities (State Registration) Act 2000”), the termination of registration of a legal entity can be carried out only on the basis of a request by the legal entity in question or on the basis of a court decision.
19. According to section 21 (1) (b) of Law No. 451 of 30 July 2001 on licensing (“the Licensing Act 2001”), a licence can be withdrawn, inter alia, as a result of adoption of a decision terminating the state registration of the company. According to Section 21 (5) of the same act, if a licence is withdrawn for any reason the licence fee shall not be refunded by the State.
20. Article 267 (b) of the Code of Civil Procedure provides that a court shall strike out applications lodged by incapable persons. According to Article 60 of the Civil Code a legal entity acquires capacity (dobândeşte capacitatea de folosinţă) on registration by the State Registration Chamber, and loses capacity (pierde capacitatea de folosinţă) on removal from the registry of the State Registration Chamber.


ITEMID: 001-4558
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: SARIASLAN AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicants, all farmers, are Turkish citizens who are related to each other and are resident in Adana, Turkey. They are represented by Mr Selim Sarıibrahimoğlu, a practising lawyer in Ankara.
The facts of the case, as they have been submitted by the applicants, may be summarised as follows.
The applicants maintain that their families had de facto possession (zilyedlik) of an area of land in the Karaömerli Village in Adana for more than half a century. They allege that over the years their ascendants had been leasing the land to various villagers and had successfully claimed and defended their rights over the land.
According to the applicants, one of their ancestors in 1936 leased the land to a family in the village (aşiret). For reasons which are unknown, the money which was received in rent for the lease of the land was paid directly to the village administration. The ancestor sued the Karaömerli Village Administration for the return of the money, claiming that the latter had unlawfully retained it. However, their ancestor and the village mayor (Muhtar) reached a friendly settlement (sulh). According to the terms of that settlement, the ancestor agreed that the village mayor could collect and keep the rent due under the lease up until 1941. In return the mayor agreed that, after 1941, “the village people” would respect the ancestor’s property (mülkiyet) rights over the land. On 25 November 1939, this friendly settlement was registered with the Kadirli Magistrates’ Court (Sulh Hukuk Mahkemesi) in the form of a judgment.
At various times in the 1940s their ancestors complained to the Ezirli Enforcement Office that some villagers had trespassed on and used the land without their consent. The Ezirli Enforcement Office, with reference to the judgment of the Kadirli Magistrates’ Court of 25 November 1939, upheld the complaint.
In 1943 the former mayor of the village was charged with abusing his official powers as a civil servant in connection with the conclusion of the 1939 friendly settlement with one of the applicants’ ancestors. In a judgment dated 8 May 1945 the Kadirli Criminal Court acquitted the former mayor of the charge.
In 1946 several villagers requested the Kadirli Civil Court of General Jurisdiction (Asliye Hukuk Mahkemesi) to rule that the applicants’ ancestors had unlawfully interfered with their use of the land. In its judgment of 4 March 1946 that court held that the consent of the former mayor of the village to the friendly settlement which was registered with the Kadirli Magistrates’ Court on 25 November 1939 did not bind the villagers. The court nevertheless found that the plaintiff villagers’ claims to be in de facto possession (zilyedlik) of the land were manifestly ill-founded. On the other hand, the court also accepted that the villagers had built houses and barns on the land and had cultivated fruit gardens in good-faith and with the knowledge of the applicants’ ancestors. For that reason, it held that the latter had interfered with the plaintiffs’ possessions on the land. It would appear that the applicants’ ancestors did not appeal.
In 1950 other villagers resident in the Karaömerli Village challenged the decision of the Kadirli Magistrates’ Court of 25 November 1939 before the Kadirli Civil Court of General Jurisdiction (Asliye Hukuk Mahkemesi). However, a friendly settlement (sulh) was reached between the applicants’ ancestors and the plaintiff villagers according to which the former accepted the villagers’ property rights with respect to a certain part of the disputed land. This friendly settlement was registered with the Kadirli Civil Court of General Jurisdiction in the form of a judgment dated 20 March 1950. The applicants’ ancestors appealed on procedural grounds. The Court of Cassation upheld the registration judgment.
On 15 December 1952, at the request of the applicants’ ancestor, the disputed areas of land were registered with the land registry (Tapu Kütüğü) of Kadirli. This registration was based on the judgment of the Kadirli Magistrates’ Court of 25 November 1939.
In 1953 and twice in 1955 some villagers attempted to use the land without the consent of the applicants’ ancestors. The latter complained to the Office of the Kadirli County Governor under Law No. 5971 which protects de facto possessors of immovable property against third party interferences. The Governor ordered the villagers to leave the land with the exception of that part of the land which they used as meadowland (mera).
At some stage, certain villagers together with the Karaömerli Village Administration requested the Kadirli Civil Court of General Jurisdiction (Asliye Hukuk Mahkemesi) to annul the title deed to the land which had been registered by the applicants’ ancestor with the land registry of Kadirli in December 1952. On 31 May 1956 the court concluded that the mayor was not entitled to enter into a friendly settlement on behalf of the village in the absence of a decision of the Board of Aldermen (İhtiyar Heyeti). The court nevertheless ruled that the plaintiffs failed to provide sufficient evidence to show that the disputed land was meadowland and as such the property of the Village. The plaintiff village and the villagers appealed. The applicants have not provided a copy of the decision of the Court of Cassation.
Following an official cadastre measurement (tapulama tesbiti) dated 20 June 1959, the Kadirli Cadastre Administration (Kadastro Müdürlüğü) identified the disputed land as “village heritage” and classified it as meadowland, which was to be registered as the property of the village.
On an unknown date the applicants challenged the decision of the Kadirli Cadastre Administration before the Kadirli Cadastre Court. The court held on 4 April 1977 that the applicants had to lodge their complaint with the Objections Commission (İtiraz Komisyonu) of the Title Deeds Directorate (Tapulama Müdürlüğü) and for that reason the file was transferred to the latter authority.
On 9 April 1991 the Objections Department of the Kadirli Title Deeds Administration (Tapulama Müdürlüğü) rejected the applicants’ complaints.
On 28 June 1993 and 20 September 1993, the applicants challenged the decision of the 9 April 1991 before the Kadirli Cadastre Court. The respondents were the Karaömerli Village (legal entity) represented by its mayor (muhtar) and the Municipality (Belediye Başkanlığı) of Kadirli-Sumbaş District. The applicants requested that the administrative classification be annulled and their former registration as owners in the land registry (tapu kütüğü) be reconfirmed. The State Treasury of Kadirli (Kadirli Maliye Hazinesi) also challenged the decision before the same court, claiming that certain lots which were registered as the property of Kadirli village were in fact the property of the Treasury.
In support of their claims, the applicants referred to the events surrounding the land since the 1930s. They argued that their property rights as the undisputed owners of the land had been determined and affirmed by the 1939 court decision and that no other court could alter that decision.
The Kadirli Cadastre Court heard all the concerned parties as well as witnesses. The court commissioned the preparation of expert reports on the disputed land and also inspected the site.
On 29 December 1994 the Kadirli Cadastre Court concluded that the classification of the land as meadowland by the Cadastre Administration and the registration of the Karaömerli Village as the owner was lawful. The court also ruled that certain parts of the disputed land were the property of the State Treasury of Kadirli. In its reasoning the court held that the judgment of the Kadirli Magistrates’ Court of 25 November 1939 only pertained to a dispute over receivables between two parties (one of the applicants’ ancestors and the village) and was only intended to register the friendly settlement reached. According to the court, the 1939 judgment was neither a determination of ownership of the land nor a legal basis for registering the applicants’ title to it in the land register in 1952.
The applicants appealed. They complained that the trial court did not investigate the case sufficiently. They also claimed that the court could not give a judgment which was in contradiction to the judgment of the Kadirli Magistrate’s Court of 25 November 1939.
On 20 June 1995 the 17th Chamber of the Court of Cassation for Civil Law Matters upheld the judgment of the Kadirli Cadastre Court. It ruled that the lower court had investigated the case sufficiently and evaluated the evidence in accordance with the law. It concluded that the 1952 registration of the applicants as owners in the land registry was groundless since it was not based on a judgment validating title to the land (tescil ilamı). According to the Chamber, the 1939 judgment of the Kadirli Magistrate Court did not affect the rights of the State Treasury of the Kadirli village since it was not a party to the friendly settlement. It added that the meadowland was public property and bona fide possessors thereof could not acquire property rights with the passage of time. The Chamber furthermore found that in any event the land was never in the undisputed and uninterrupted possession of the applicants for more that twenty years. The Chamber nevertheless stated that it was not the first instance court’s task to determine the true owners of the lots. The trial court should have confined itself to ordering that the classification of the land as meadowland be registered as such in the relevant register. The Chamber corrected the corresponding parts of the trial court’s judgment.
The applicants asked for the correction (karar düzeltme) of the Court of Cassation judgment. On 19 October 1995 the 17th Chamber of the Court of Cassation of Civil Law Matters rejected their request.


ITEMID: 001-89552
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KUZMINSKIY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1966 and lives in Rostov-on-Don, a town in the Rostov Region.
5. In 2002–03 the applicant stood trial for bribery but was acquitted. The applicant spent this time in pretrial custody.
6. On 30 December 2003 the Rostov Regional Court awarded the applicant against the Ministry of Finance 48,245.12 Russian roubles (RUB) in respect of pecuniary damage inflicted by the trial. This judgment became binding on 11 March 2004 and was enforced on 29 April 2005.
7. On 28 April 2005 the Presidium of the Regional Court awarded the applicant against the Ministry of Finance RUB 10,000 in respect of non-pecuniary damage sustained in pretrial custody. This judgment became binding on 28 April 2005 and was enforced on 21 March 2006.
8. On 4 April 2004 the Sovetskiy District Court of Rostov-on-Don adjusted the award of 30 December 2003 for the cost of living and awarded a further RUB 7,034.68.
9. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-99102
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF DEMERDŽIEVA AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: 5. The applicants were born in 1979, 1986 and 1941 respectively and live in Skopje.
6. On 19 November 2004 the Gevgelija Court of First Instance (“the trial court”) convicted the applicants of drug trafficking and sentenced them to three, six and four years' imprisonment respectively. The trial court established that on 22 June 2004, a certain N. (the last name of Mr K.N., as established in the course of the domestic proceedings, later referred to as Mr K.N.) and the third applicant had arrived at the first applicant's house where she lived with the second applicant, her stepson. The applicants bought 1,012 g of heroin from N. for 7,500 euros (EUR). After keeping some drugs back at the house, the applicants divided the remaining 952 g into two packs to sell to Mr N.N., an unidentified end buyer whom they had arranged to meet in a car park near Gevgelija. The second applicant hired a taxi and the remaining applicants took N.'s car to meet Mr N.N. The police stopped the cars and found the drugs in the taxi. N. escaped. The trial court established these facts on the basis, inter alia, of the statements of the second and third applicants given in the pre-trial proceedings. The court also referred to the first and third applicants' statements at the hearing, notably that they had been victims of a constructed scenario and that they had not known N. before the date when the offence was committed, but disregarded them as self-serving. The testimonies of two witnesses, as well as items of real evidence, were also taken into account.
7. The applicants complained, inter alia, that they had been set up to commit the offence by N., an alleged agent provocateur, whom police had allowed to leave the scene. They further complained that no attempt had been made to uncover the truth as regards N.'s involvement in the commission of the offence.
8. At a public session (јавна седница) of 25 March 2005, in the presence of the public prosecutor, the applicants and their lawyer, the Skopje Court of Appeal dismissed the applicants' appeal and upheld the trial court's decision. It stated that efforts to discover N.'s whereabouts had been unsuccessful. It further argued that the trial court had based its decision on considerable evidence which, taken as a whole, had confirmed the applicants' involvement in the commission of the crime.
9. The trial court sent this decision to the applicants by mail. A stamp “Skopje-Madzari” of 13 April 2005 was affixed on the post slip returned to the trial court. According to the Government, this stamp was affixed by the detention centre where the applicants were being detained pending the proceedings in question. According to three other return receipts bearing the detention centre's receipt stamp, this decision was received by the latter on 14 April 2005. Each applicant signed and dated these receipts: the first applicant received the decision on 18 April 2005, the second applicant on 14 April 2005 and the third on 16 April 2005.
10. On 16 May 2005 the applicants lodged an appeal on points of law with the Supreme Court. They set out its general basis in a succinct manner and stated that detailed submissions would follow.
11. In submissions of 30 May 2005, the applicants provided full factual and legal grounds of appeal. They complained, inter alia, of having been entrapped into committing the offence by N., whose real name was Mr K.N. They provided his whereabouts and stated that he had been actively involved in the crime and had operated as an agent provocateur, under the guidance of the police, who had sent him to incite the second applicant to buy the drugs, given his previous criminal record in that respect. They further maintained that Mr K.N. had cooperated with the police in other cases, setting up other people in order to help his cousin who was serving a prison sentence for drug trafficking. The police's involvement in the crime was supported, inter alia, by the following: they had allowed Mr K.N. and Mr N.N., the unidentified end buyer, to leave the scene at the time of the applicants' arrest; the drugs had not been found in a routine police check, but on the basis of advance information about their whereabouts; and two detectives with known identities had been present at the scene. They further complained that the courts had failed to take evidence from these two detectives and other police officers who had been present at the scene. The applicants made reference to the Court's case-law on the impact of an agent provocateur on convicts' rights under Article 6 of the Convention.
12. On 6 September 2005 the Supreme Court rejected (отфрла) the appeal on points of law as out of time. It did so after it had obtained submissions from the public prosecutor in which the latter had requested that the appeal be dismissed on the merits. The court established that the Court of Appeal's decision had been served on the applicants on 13 April 2005.
13. In submissions of 7 and 25 November 2005 respectively, the applicants asked the Supreme Court to rectify the error in respect of the date of service of the Court of Appeal's decision. In support of their request they submitted a copy of the return receipts bearing the detention centre's receipt stamp and their signatures (see paragraph 9 above). This request remained unanswered.
14. Under section 84 of the Criminal Proceedings Act, it is neither the date of service of the judgment, nor the date of the event, that is taken to be the date from which the time-limit starts to run. It is the next day that is taken as the starting date for calculation of the time-limit. If the last day of the time-limit falls on a public holiday, Saturday or Sunday, the time-limit expires at the end of the next working day.
15. Section 411(1) and (2) provides that a person convicted by a final decision and sentenced to imprisonment may lodge an appeal on points of law (барање за вонредно преиспитување на правосилна пресуда). The appeal may be submitted within thirty days of the date on which the convicted person was served with the decision.
16. Other provisions relevant to the present case were described in the cases of Gorgievski and Mamudovski (see Gorgievski v. the former Yugoslav Republic of Macedonia (dec.), no. 18002/02, 6 May 2008, and Mamudovski v. the former Yugoslav Republic of Macedonia (dec.), no. 49619/06, 10 March 2009).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103583
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MAVRINAC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: The applicant, Ms Sonja Mavrinac, is a Croatian national who was born in 1960 and lives in Čavli. She was represented before the Court by Mr M. Šegota, an advocate practising in Rijeka. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1987 the applicant, whilst a passenger in a coach owned by company A., sustained injuries in a road traffic accident.
In 1991 she instituted civil proceedings against the company in question before the Rijeka Municipal Court (Općinski sud u Rijeci). On 3 December 1991 that court delivered a judgment in favour of the applicant and awarded her compensation.
On 29 March 1994 the applicant’s doctor made a request for an assessment of her work capacity to the Croatian Pension Fund.
On 1 June 1994 the Disability Commission of the Croatian Pension Fund carried out an expert medical evaluation and found that the applicant’s work capacity was reduced. It stated depression as the main disorder significantly affecting the applicant’s capacity to work and noted several physical ailments as other disorders affecting that capacity. On the same day the Disability Commission carried out an expert medical evaluation with a view to assessing whether, owing to her physical ailments, the applicant could be considered as having a physical impairment (tjelesno oštećenje) within the meaning of the relevant legislation entitling her to certain benefits on that account. It found that no such impairment existed.
On 27 June 1994 the Rijeka Regional Office of the Croatian Pension Fund issued a decision acknowledging the applicant’s reduced work capacity and granting her the rights related thereto, such as the right to employment corresponding to her remaining work capacity and the right to compensation for the loss of salary resulting from a reduced capacity to work.
On 9 October 1995 the Disability Commission of the Croatian Pension Fund, of its own motion, carried out an expert medical evaluation of the applicant’s state of health and found that the applicant’s health had deteriorated to the extent that she had lost her capacity to work completely and permanently and thus could be considered disabled for the purposes of awarding her a disability pension. It stated depression as the main disorder causing the applicant’s disability and noted several physical ailments as other disorders contributing to that disability.
On 20 November 1995 the Rijeka Regional Office of the Croatian Pension Fund issued a decision granting the applicant a disability pension on the basis of her incapacity to work.
On 6 February 1997 the applicant brought a civil action in the Rijeka Municipal Court against company A., seeking compensation for lost earnings on account of her incapacity to work that had resulted from the injuries she had sustained in the road traffic accident in 1987.
The Municipal Court heard evidence from a medical expert, who established that the 60% of the applicant’s disability had been caused by the injuries sustained in the road traffic accident in 1987 and 40% by her previous health problems.
On 26 February 2002 the Municipal Court delivered a judgment whereby it awarded the applicant 202,429.81 Croatian kunas (HRK) in compensation for lost earnings, together with statutory default interest running from the date of the adoption of the judgment.
On 31 May 2006 the Rijeka County Court (Županijski sud u Rijeci) dismissed an appeal by the defendant and upheld the first-instance judgment.
However, following an appeal on points of law (revizija) by the defendant, on 30 May 2007 the Supreme Court (Vrhovni sud Republike Hrvatske) reversed the lower courts’ judgments and dismissed the applicant’s claim, on the grounds that the civil courts had had no jurisdiction to question the findings of the competent administrative authority as to the reasons for the applicant’s incapacity to work. The relevant part of the judgment reads as follows:
“In the [...] proceedings it was established that the plaintiff was injured in a road traffic accident on 29 April 1987 while travelling in the defendant’s coach. On that occasion she sustained blows to her head, torso, left knee, left hip and neck. In the proceedings for damages conducted before the same court ... the plaintiff obtained damages by a judgment of 3 December 1991. In those proceedings it was established, by taking evidence from a medical expert, that owing to the whiplash injury the plaintiff’s capabilities were reduced by 10% [but] that an even greater reduction in her capabilities existed due to previously existing neural disorders and degenerative processes in the plaintiff’s spine and joints, for which she had been treated in previous years.
After the traffic accident, the plaintiff continued to work at her job until 1 January 1994 when her employment was terminated as redundant. From then until her retirement she had been registered as unemployed at the Employment Office.
It was also established that by a decision of the Croatian Pension Fund of 20 November 1995, the plaintiff had been granted a disability pension as of 9 October 1995 on the basis of a loss of capacity to work due to an illness.
Despite the finality of the definitive decision of the Croatian Pension Fund, the [first-instance] court decided to take evidence by obtaining an opinion from a medical expert with a view to establishing that the immediate cause of the plaintiff’s retirement was the consequence of the whiplash injury sustained in the road traffic accident in 1987, and not the disorders that manifested before the tortious event, as established by the Disability Commission of the Croatian Pension Fund in the proceedings for awarding the right to a disability pension.
...
The defendant is right in arguing that the lower courts’ judgments are based on a misapplication of substantive law. Where the Disability Commission of the Croatian Pension Fund has established that [a] plaintiff has lost capacity to work owing to an illness and where a final decision of a competent authority is based on that finding, it is not legally possible that the loss of capacity to work was caused by some other reason.
A court is bound by this final decision as regards the reasons for the incidence of the loss of the plaintiff’s capacity to work owing to an illness, and the content of that decision can no longer be decided as a preliminary issue. A court cannot examine whether the final decision rendered in the administrative proceedings was correct or assess its validity.
Since there is no legal basis for the defendant’s liability in damages for the lost earnings, the defendant’s appeal on points of law has to be allowed and ... the plaintiff’s claim dismissed ...”
On 19 November 2007 the applicant lodged a constitutional complaint against the Supreme Court’s judgment. She alleged a violation of her constitutional right to work guaranteed by Article 54 paragraph 1 of the Constitution. In her constitutional complaint the applicant wrote, inter alia:
“The purpose and scope of the Croatian Pension Fund’s decision [of 20 November 1995] is that it represents the basis for payment of the complainant’s pension. The Croatian Pension Fund does not have a duty or a right to decide on the causes of one’s difficulties, but [rather] only whether there was an incidence of disability, or alteration or reduction of the capacity to work. Therefore, it cannot be expected that the Croatian Pension Fund be accurate or meticulous when determining other circumstances. Given that the Supreme Court wrongly assessed or interpreted that decision, the constitutionally guaranteed right has been breached.”
On 30 April 2008 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 5 June 2008. The relevant part of that decision reads as follows:
“Having examined the arguments raised in the constitutional complaint, the contested judgment and the relevant statutory provisions, the Constitutional Court finds that the constitutional right relied on by the complainant was not breached by the contested judgment. ...
The right to work and the freedom of work also entail the right of an individual that his or her employment is not terminated in a manner contrary to that prescribed by the relevant law. The content of this right is also to protect statutorily established rights of citizens arising from their work, including the protection in respect of termination of employment if that termination is contrary to the law.
The Constitutional Court therefore finds that the complainant’s constitutional right guaranteed by Article 54 paragraph 1 of the Constitution (Everyone shall have the right to work and enjoy the freedom of work) has not been breached by the contested judgment, which was rendered in accordance with the relevant legislation.”
The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette of the Republic of Croatia nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows:
“All shall be equal before the law.”
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
“Everyone shall be guaranteed respect for, and the legal protection of, his personal and family life, dignity, reputation and honour.”
“The right of ownership shall be guaranteed.
Ownership implies duties. Owners and users of property shall contribute to the general welfare.”
“Ownership may be restricted or taken in accordance with the law and in the interests of the Republic of Croatia subject to payment of compensation equal to the market value.
The exercise ... of the right of ownership may, on an exceptional basis, be restricted by law for the protection of the interests and security of the Republic of Croatia, nature, the environment or public health.”
“Everyone shall have the right to work and enjoy the freedom of work.”
In its decisions nos. U-I-892/1994 of 14 November 1994 (Official Gazette no. 83/1994) and U-I-130/1995 of 20 February 1995 (Official Gazette no. 112/1995) the Constitutional Court held that all rights guaranteed in the Convention and its Protocols were also to be considered constitutional rights having legal force equal to the provisions of the Constitution.
The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (“constitutional right”)...
2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.”
“A constitutional complaint shall contain ... an indication of the constitutional right alleged to have been violated [together] with an indication of the relevant provision of the Constitution guaranteeing that right...”
“ ... [t]he Constitutional Court shall examine only the violations of constitutional rights alleged in the constitutional complaint.”
Section 12(1) of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) provides that when a court decision depends on the prior resolution of an issue whether a certain right or legal relationship exists, and this issue has not yet been resolved by a court or another competent authority (a “preliminary issue”), the court may decide on that issue itself unless special legislation provides otherwise. From that provision it follows, by converse implication, that the court is not entitled to decide on a preliminary issue if that issue has already been finally decided on as a main issue in another set of proceedings.